Luo v. Baldwin Union Free School District et al

Filing 85

MEMORANDUM & ORDER: Plaintiff's Motion for Reconsideration 37 is GRANTED and Briglio's counterclaim against Plaintiff is DISMISSED WITH PREJUDICE. Plaintiff's renewed Motion to Dismiss Briglio's Counterclaim 76 is DENIED AS MO OT and Plaintiff's Motion for Sanctions 73 is DENIED. On Plaintiff's Motion to Strike 63 , the Court RESERVES JUDGMENT. The District and Gallo are ORDERED TO SHOW CAUSE, within 30 days of the date of this Order, why Plaintiff's Moti on to Strike should not be granted. If they do no do so, the District and Gallo are in danger of being in default. The Court certifies that any appeal would not be taken in good faith and in forma pauperis status is DENIED for the purpose of an appeal. Ordered by Judge Joanna Seybert on 2/12/2014. (C/M Plaintiff) (Nohs, Bonnie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------X
JENN-CHING LUO,
Plaintiff,
-against-

MEMORANDUM & ORDER
12-CV-3073(JS)(AKT)

BALDWIN UNION FREE SCHOOL DISTRICT,
MICHELLE GALLO, SUSAN M. GIBSON,
and ROBERT BRIGLIO,
Defendants.
------------------------------------X
APPEARANCES
For Plaintiff:
Jenn-Ching Luo, pro se
830 Hastings Street
Baldwin, NY 11510
For Defendants
District, Gallo,
and Martin:

Jeltje DeJong, Esq.
Kelly E. Wright, Esq.
Devitt Spellman Barrett, L.L.P.
50 Route 111
Smithtown, NY 11787

Gibson:

Ralph A. Catalano, Esq.
Catalano, Gallardo & Petropoulous, L.L.P.
1565 Franklin Avenue
Mineola, NY 11501

Briglio:

Martin J. Coleman, Esq.
Law Offices of Martin J. Coleman
100 Crossways Park Drive West, Suite 412
Woodbury, NY 11797

SEYBERT, District Judge:
Pro se plaintiff Jenn-Ching Luo (“Luo” or “Plaintiff”)
commenced this action to redress perceived shortcomings in the
way

defendant

“District”)

and

Baldwin
several

Union

Free

individual

School
defendants

District
addressed

(the
the

educational

needs

of

B.L.,

Plaintiff’s

disabled

child.

Plaintiff sued the District, Michelle Gallo (“Gallo”), Susan B.
Gibson

(“Gibson”),

collectively,

and

Robert

“Defendants”);

Briglio

he

asserts

(“Briglio,”
violations

and

of

the

Individuals with Disabilities Education Act (“IDEA”), Section
1983 of Title 42 of the United States Code (“Section 1983”), and
Section 1985 of Title 42 of the United States Code (“Section
1985”).
motion

Currently pending before the Court are: (1) Plaintiff’s
for

reconsideration

of

the

Court’s

March

21,

2013

Memorandum and Order (the “March 2013 Order,” Docket Entry 37);
(2) Plaintiff’s motion to strike the District and Gallo’s Answer
(Docket Entry 63); (3) Plaintiff’s motion for sanctions (Docket
Entry

73);

and

(4)

Plaintiff’s

counterclaim

(Docket

Entry

Plaintiff’s

motion

for

accordingly,

his

DENIED

AS

motion

MOOT.

motion

76).

For

to
the

reconsideration
to

His

dismiss
motion

dismiss

Briglio’s

following

reasons,

is

Briglio’s

for

GRANTED

and,

counterclaim

sanctions

is

is

DENIED.

Furthermore, the Court RESERVES JUDGMENT on Plaintiff’s motion
to strike, and the District and Gallo are ORDERED TO SHOW CAUSE
why Plaintiff’s motion to strike should not be granted.
BACKGROUND
I. Factual Background
The Court presumes familiarity with the facts of this
case,

which

are

detailed

in

the

2

Court’s

March

2013

Order.

Briefly, Plaintiff’s autistic child, B.L., was a student in the
District.
director

(March 2013 Order at 2.)
of

pupil

services

for

Defendant Gallo is the

the

District,

who

Plaintiff

alleges, inter alia, presented a flawed evaluation report from
2009 regarding B.L. and failed to address Plaintiff’s suggestion
of B.L. Possibly attending a school in Pennsylvania during a
July

2011

Committee

on

Special

Education

(“CSE”)

meeting.

(March 2013 Order at 2-3.)
Plaintiff was dissatisfied with the results of the CSE
meeting and filed a due process complaint.
3.)
and

(March 2013 Order at

Accordingly, the District held an administrative hearing
appointed

officer.

Defendant

Briglio

as

an

(March 2013 Order at 3-4.)

independent

hearing

Plaintiff alleges that

Briglio made certain errors during the course of that hearing.
(March 2013 Order at 4.)
Gibson,

the

District’s

He has also alleged that Defendant

legal

consultant,

violated

the

IDEA.

(See March 2013 Order at 3, 9-10 (attempting to characterize
Plaintiff’s claims against Gibson).)
II. Procedural Background
In
Gibson

and

Complaint,

the

March

Briglio’s
(2)

the

2013

Order,

respective

District

and

the

Court

motions
Gallo’s

to

addressed:
dismiss

partial

motion

(1)
the
to

dismiss the Complaint, and (3) Plaintiff’s motion to dismiss
Briglio’s

counterclaims

against

3

him.

The

Court

ultimately

granted Gibson and Briglio’s motions to dismiss, granted in part
and denied in part the District and Gallo’s partial motion, and
denied Plaintiff’s motion to dismiss Briglio’s counterclaims.
Thereafter, on May 29, 2013, the District and Gallo
filed their Answer.

(Docket Entry 54.)
DISCUSSION

The Court will address each of the currently pending
motions in turn, beginning first with Plaintiff’s motion for
reconsideration of the March 2013 Order.
I. Plaintiff’s Motion for Reconsideration
A. Legal Standard
Motions for reconsideration may be brought pursuant to
Rules 59(e) and 60(b) of the Federal Rules of Civil Procedure
and Local Civil Rule 6.3.

See Wilson v. Pessah, No. 05-CV-3143,

2007 WL 812999, at *2 (E.D.N.Y. Mar. 14, 2007).

A motion for

reconsideration is appropriate when the moving party believes
the

Court

overlooked

decisions”

that

Shamis

Ambassador

v.

would

important
have

“matters

influenced

Factors

Corp.,

the
187

or
prior
F.R.D.

controlling
decision.
148,

151

(S.D.N.Y. 1999) (internal quotation marks and citation omitted).
Reconsideration is not a proper tool to repackage and relitigate
arguments and issues already considered by the Court in deciding
the original motion.

See United States v. Gross, No. 98-CR-

0159, 2002 WL 32096592, at *4 (E.D.N.Y. Dec. 5, 2002) (“A party

4

may not use a motion to reconsider as an opportunity to reargue
the same points raised previously.”).
new arguments and issues.

Nor is it proper to raise

See Lehmuller v. Inc. Vill. of Sag

Harbor, 982 F. Supp. 132, 135 (E.D.N.Y. 1997).

Reconsideration

may only be granted when the Court did not evaluate decisions or
data that might reasonably be expected to alter the conclusion
reached by the Court.

Wechsler v. Hunt Health Sys., 186 F.

Supp. 2d 402, 410 (S.D.N.Y. 2002).
B. Plaintiff’s Motion
Plaintiff seeks reconsideration of the Court’s March
2013 Order insofar as the Court denied Plaintiff’s motion to
dismiss Briglio’s counterclaim.

More specifically, he asserts

that the Order contradicts New York and Second Circuit Law.
(Pl.’s Mot. for Reconsideration, Docket Entry 37, at 1.)

The

Court finds that reconsideration is warranted here.
As the Court stated in the March 2013 Order, Briglio
asserts a counterclaim based upon abuse of process, alleging
that Plaintiff filed this lawsuit to “punish and/or publicly
demean all defendants in this case.”
Entry

6;

March

2013

Order

at

(Briglio’s Ans., Docket

19-20.)

The

Court

held

that

Briglio’s allegations that Plaintiff has engaged in litigation
with the intent and motive to demean and punish him sufficiently
stated a claim for abuse of process.
21.)

5

(March 2013 Order at 20-

Plaintiff now moves for reconsideration on the grounds
that the institution of a civil action in and of itself is not
process that can be abused.

Notably, Plaintiff raises a new

argument not presented in his prior motion; at the same time, he
also sets forth relevant case law that would impact the Court’s
decision.

Plaintiff is correct that the commencement of an

action by summons and complaint is not “process” capable of
being abused in this context.

See, e.g., Chrysler Corp. v.

Fedders

706,

Corp.,

540

(collecting cases).

F.

Supp.

725-26

(S.D.N.Y.

1982)

Rather, “[t]he traditional rule in New York

has been that ‘the pursuit of a collateral objective must occur
after the process is issued; the mere act of issuing process
does not give rise to a claim.’”

Gilman v. Marsh & McLennan

Cos., Inc., 868 F. Supp. 2d 118, 131 (S.D.N.Y. 2012) (quoting
Lopez v. City of N.Y., 901 F. Supp. 684, 691 (S.D.N.Y. 1995)
(emphasis in original)).
When Plaintiff initially filed his motion to dismiss
Briglio’s counterclaim, Briglio filed a relatively minimalistic
opposition. (See Coleman Aff., Docket Entry 30, ¶ 4 (“In light
of

the

simplicity

opposition

to

of

the

defendant

ROBERT

plaintiff’s

BRIGLIO’s

Motion

to

argument
Dismiss

in
his

Counterclaim, the argument usually reserved for a Memorandum of
Law

is

set

forth

herein.”).)

Following

Plaintiff’s

current

motion for reconsideration, however, Briglio has made clear that

6

his

counterclaim

action.

is

based

(See

solely

Briglio’s

upon

Opp.

commencement
Br.

to

of

this

Mot.

for

Sanctions/Dismissal, Docket Entry 83, at 4 (“Luo’s Complaint is
the

regularly

issued

process

that

was

the

basis

for

the

Counterclaim.”).)
In

fact,

in

opposing

Plaintiff’s

motion

for

reconsideration, Briglio cites to the case of Parkin v. Cornell
University,

Inc.

for

the

proposition

pleading can support abuse of process.”

that

“an

initial

legal

(Briglio’s Opp. Br. to

Mot. for Recon., Docket Entry 38, at 2 (citing Parkin v. Cornell
Univ., Inc., 78 N.Y.2d 523, 530, 583 N.E.2d 939, 577 N.Y.S.2d
227 (N.Y. 1991).)

There, the New York Court of Appeals noted

that the meaning of improper conduct after issuance of process
was somewhat vague and that “an abuse of process claim based on
the

issuance

of

the

process

itself”

could

potentially

sufficient to assert an abuse of process claim.
N.Y.2d at 530, 583 N.E.2d at 943.
of law has been somewhat unclear.

be

Parkin, 78

Since then, the exact state
See Pinter v. City of N.Y., -

-- F. Supp. 2d ----, 2013 WL 5597545, at *21 n.129 (S.D.N.Y.
Oct. 10, 2013).

However, “[t]he court’s analysis in Parkin was

dicta and this Court remains bound by the law of the Second
Circuit, which requires improper use of process after it is
regularly issued.”
3459,

2013

WL

Widget v. Town of Poughkeepsie, No. 12-CV-

1104273,

at

*8

n.7

7

(S.D.N.Y.

Mar.

18,

2013)

(emphasis in original); accord Gilman, 868 F. Supp. 2d at 13132.
As

Briglio’s

counterclaim

is

based

solely

on

the

institution of the action by summons and complaint, Plaintiff’s
motion

for

reconsideration

is

GRANTED,

and

Briglio’s

counterclaim is DISMISSED.1
II. Plaintiff’s Motion to Strike
A. Legal Standard
Motions to strike are governed by Rule 12(f) of the
Federal Rules of Civil Procedure, which provides, in relevant
part,

that

“[t]he

court

may

strike

from

a

pleading

an

insufficient defense or any redundant, immaterial, impertinent,
or scandalous matter.”

FED. R. CIV. P. 12(f).

“Resolution of a

Rule 12(f) motion is left to the district court’s discretion.”
EEOC

v.

Bay

Ridge

(E.D.N.Y. 2004).

Toyota,

Inc.,

327

F.

Supp.

2d

167,

170

However, motions to strike are disfavored.

See Illiano v. Mineola Union Free Sch. Dist., 585 F. Supp. 2d

Furthermore, given that Briglio has filed several briefs
regarding his counterclaim, and not raised any “process”
sufficient to maintain an abuse of process claim, his
counterclaim is DISMISSED WITH PREJUDICE. Briglio’s assertion
that particular events took place before Plaintiff filed his
Complaint do not address the requirement that there be some
abuse of process after issuance of process. (See Briglio’s Opp.
Br. to Mot. for Sanctions/Dismissal at 2 (“To the extent
necessary, Mr. Briglio’s [sic] asks for leave of the Court to
Amend his Counterclaim to include allegations related to the
underlying administrative record from which Mr. Luo’s Complaint
was taken.”).)
1

8

341, 357 (E.D.N.Y. 2008).

To prevail, a movant typically must

show that there is no question of fact which might allow the
defense to succeed, there is no substantial question of law
under which the defense could succeed, and that the movant is
prejudiced by inclusion of the defense.

See County Vanlines

Inc. v. Experian Info. Solutions, Inc., 205 F.R.D. 148, 153
(S.D.N.Y. 2002) (quoting SEC v. Toomey, 866 F. Supp. 719, 722
(S.D.N.Y. 1992)).
B. Plaintiff’s Motion
Plaintiff

moves

to

strike

Answer because it is untimely.
Entry 63).

the

District

and

Gallo’s

(Pl.’s Mot. to Strike, Docket

The Court RESERVES JUDGMENT on this motion.
The Court issued its March 2013 Order on March 21,

2013.

(See Docket Entry 34.)

The District and Gallo did not

file an Answer until May 29, 2013.
such, the Answer was untimely.
(providing

that

where

the

(See Docket Entry 54.)

As

See FED. R. CIV. P. 12(a)(4)(A)

court

denies

a

Rule

12

motion,

a

responsive pleading “must be served within 14 days after notice
of the court’s action”).
However, under Rule 6(b) of the Federal Rules of Civil
Procedure, courts are permitted to extend a deadline that has
already

passed

if

the

late

submission

was

for

reasons

excusable neglect, and there is no harm to the plaintiff.
R. CIV. P. 6(b).

of
FED.

The factors encompassing excusable neglect are:

9

“‘[1] [t]he danger of prejudice to the [opposing party], [2] the
length

of

the

delay

and

its

potential

impact

on

judicial

proceedings, [3] the reason for the delay, including whether it
was in the reasonable control of the movant, and [4] whether the
movant acted in good faith.’”

Tancredi v. Metro. Life Ins. Co.,

378 F.3d 220, 228 (2d Cir. 2004) (quoting Pioneer Inv. Servs.
Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395, 113 S.
Ct. 1489, 123 L. Ed. 2d 74 (1993) (alterations in original)).
Here, Gallo and the District have not responded to
Plaintiff’s motion to strike nor proffered any reason for their
late

filing.

Nonetheless,

courts

in

this

Circuit

typically

prefer to resolve issues on the merits, see Connell v. City of
N.Y., 230 F. Supp. 2d 432, 437 (S.D.N.Y. 2002); Dunkin’ Donuts
Franchised Restaurants LLC v. Got-A-Lot-A-Dough, Inc., No. 07CV-2303, 2008 WL 4861968, at *2 (E.D.N.Y. Oct. 31, 2008), and
“routinely deny motions to strike answers where a defendant has
shown that the untimely submission was inadvertent and caused no
harm to the Plaintiff,” Purisima v. Tiffany Entm’t, No. 09-CV03502, 2013 WL 4500699, at *4 (E.D.N.Y. Aug. 20, 2013).
Accordingly,

the

Court

RESERVES

JUDGMENT

on

Plaintiff’s motion to strike and the District and Gallo are
ORDERED TO SHOW CAUSE why their Answer should not be striken.

10

III. Plaintiff’s Motions for Sanctions and to Dismiss Briglio’s
Counterclaims
Given that the Court has granted Plaintiff’s motion
for

reconsideration

counterclaim,

and

Plaintiff’s

thereby
renewed

counterclaim is DENIED AS MOOT.

dismissed

motion

to

Briglio’s
dismiss

the

The Court therefore turns to

Plaintiff’s motion for sanctions.
A. Legal Standard on a Motion for Sanctions
In deciding whether a pleading violates Rule 11, the
Court

applies

an

“objective

standard

of

reasonableness.”

MacDraw, Inc. v. CIT Grp. Equip. Fin., Inc., 73 F.3d 1253, 1257
(2d Cir. 1996).

“‘A party advances an objectively unreasonable

claim if . . . ‘it is patently clear that [the] claim has
absolutely no chance of success under the existing precedents,
and where no reasonable argument can be advanced to extend,
modify or reverse the law as it stand[s].’”

Ho Myung Moolsan

Co., Ltd. v. Manitou Mineral Water, Inc., 665 F. Supp. 2d 239,
263 (S.D.N.Y. 2009) (quoting Eastway Const. Corp. v. City of
N.Y., 762 F. 2d 243, 254 (2d Cir. 1985)).

Thus, “sanctions may

not be imposed unless a particular allegation is utterly lacking
in support.”

Storey v. Cello Holdings, LLC, 347 F. 3d 370, 388

(2d Cir. 2003) (internal quotation marks and citation omitted).
Furthermore, the Court must “resolv[e] all doubts in favor of

11

the part[y] facing sanctions.”

Coakley v. Jaffe, 72 F. Supp. 2d

362, 365 (S.D.N.Y. 1999).
C. Plaintiff’s Motion
Luo contends that sanctions are appropriate because
Briglio’s

counterclaim

is

frivolous.

(See

Sanctions/Dismissal, Docket Entry 74, at 1.)

Pl.’s

Br.

re

Putting aside any

procedural issues with the motion, the Court disagrees on the
merits.
Although

the

Court

has

dismissed

counterclaim, sanctions are not merited.

Briglio’s

“Under the law of this

Circuit, ‘[a]n argument constitutes a frivolous legal position
for

purposes

of

Rule

11

sanctions

if,

under

an

objective

standard of reasonableness, it is clear . . . that there is no
chance of success and no reasonable argument to extend, modify,
or reverse the law as it stands.’”

In re Merrill Lynch Tyco

Research Sec. Litig., No. 03-CV-4080, 2004 WL 305809, at *5
(S.D.N.Y. Feb. 18, 2004) (quoting Morley v. Ciba-Geigy Corp., 66
F.3d 21, 25 (2d Cir. 1995)).

Here, Briglio has argued for an

extension of the law and cited to relevant precedent.
Moreover, that Briglio’s claim has been dismissed does
not

necessarily

mean

that

sanctions

are

appropriate.

See

Optimus Commc’ns v. MPG Assocs., Inc., 841 F. Supp. 2d 722, 72627 (E.D.N.Y. 2012) (declining to impose sanctions even where the

12

Briglio’s

plaintiff’s claims were “objectively unreasonable”). 2
counterclaim
Complaint.
find

addressed

inappropriate

language

in

Plaintiff’s

Despite Plaintiff’s arguments, the Court does not

that

Briglio’s

counterclaim

was

brought

in

bad

faith.

Accordingly, Plaintiff’s motion for sanctions is DENIED.
CONCLUSION
For

the

reconsideration
counterclaim
Plaintiff’s

foregoing

(Docket

against
renewed

reasons,

Entry

37)

Plaintiff
motion

to

is

Plaintiff’s

is

GRANTED

DISMISSED

dismiss

sanctions

(Docket

Entry

73)

is

DENIED.

and

WITH

Briglio’s

(Docket Entry 76) is therefore DENIED AS MOOT. 3

motion

for

Briglio’s
PREJUDICE.

counterclaim

His motion for

Finally,

the

Court

RESERVES JUDGMENT on Plaintiff’s motion to strike (Docket Entry
63).

Additionally, the Court notes that Plaintiff has continued to
maintain that statements such as “Robert Briglio acted as [an]
asshole kisser” are “meaningful.” (See Pl.’s Br. re
Sanctions/Dismissal at 14.) Plaintiff has previously been
warned that the use of foul language will result in sanctions.
(March 2013 Order at 21.) Such language and insults are neither
appropriate nor meaningful and Plaintiff has demonstrated his
ability to properly address his arguments in a legal framework
without resorting to such tactics. The Court will not accept
any further submissions from Plaintiff containing foul language
or insults. Unless Plaintiff is directly quoting a particular
statement or document, the Court will return his submissions
without consideration.
2

Insofar as Plaintiff has sought to appeal Magistrate Judge A.
Kathleen Tomlinson’s decision regarding discovery pertaining to
the counterclaim, such request is likewise DENIED AS MOOT. (See
Pl.’s Appeal, Docket Entry 62.)
3

13

The
within

thirty

District
(30)

and

days

of

Gallo

are

the

date

ORDERED
of

TO

this

SHOW

CAUSE,

Memorandum

and

Order, why Plaintiff’s motion to strike should not be granted.
If they do not do so, the District and Gallo are in danger of
being in default.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
that any appeal from this Order would not be taken in good faith
and therefore in forma pauperis status is DENIED for purpose of
an appeal.

Coppedge v. United States, 369 U.S. 438, 444-45, 82

S. Ct. 917, 8 L. Ed. 2d 21 (1962).
The Clerk of the Court is directed to mail a copy of
this Memorandum and Order to the pro se Plaintiff.

SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

February
14 , 2014
Central Islip, New York

14