Luo v. Baldwin Union Free School District et al

Filing 91

MEMORANDUM OF DECISION AND ORDER - For the foregoing reasons, Judge Tomlinsons May 20, 2013 Order is AFFIRMED, and Plaintiffs motion to strike is DENIED. the Court certifies that pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Ord er would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. See 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 by Judge Joanna Seybert on 8/12/2014. C/M to pro se Plaintiff via FCM. (Coleman, Laurie)

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 and MICHELLE GALLO
Defendants.
-----------------------------------X
APPEARANCES
For Plaintiff:
Jenn-Ching Lou, pro se
830 Hastings Street
Baldwin, NY 11510
For Defendants:

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

SEYBERT, District Judge:
Pro

se

plaintiff

Jenn-Ching

Luo

(“Plaintiff”)

brought this action to redress perceived shortcomings in
the way defendant Baldwin Union Free School District (the
“District”) and several individual defendants addressed the
educational needs of B.L., Plaintiff’s disabled child.

The

remaining defendants are Michelle Gallo, the director of
pupil

services

(collectively,

for

the

District,

“Defendants”),

whom

and

the

Plaintiff

District
alleges

violated 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

before

the

Code
Court

(“Section
are:

1985”).

(1)

Currently

Plaintiff’s

pending

appeal

from

Magistrate Judge A. Kathleen Tomlinson’s May 20, 2013 Order
during a conference (Pl.’s Appeal, Docket Entry 62), and
(2)

Plaintiff’s

motion

to

strike

Defendant’s

untimely

Answer (Pl.’s Mot. to Strike, Docket Entry 63).

For the

following reasons, Judge Tomlinson’s order is AFFIRMED and
Plaintiff’s motion to strike is DENIED.
BACKGROUND
I. Factual Background
The Court presumes familiarity with the facts of
this case, which are detailed in the Court’s prior Orders,
particularly

the

February

12,

2014

Memorandum

&

Order

(“Feb. 2014 Order,” Docket Entry 85) and the March 21, 2013
Memorandum & Order (“Mar. 2013 Order,” Docket Entry 34).
Briefly,

Plaintiff’s

District.
Gallo

child,

B.L,

(Mar. 2013 Order at 2.)

presented

a

flawed

was

a

student

in

the

According to Plaintiff,

evaluation

report

from

2009

regarding B.L. and failed to address Plaintiff’s suggestion
of a different school for B.L. during a July 2011 Committee
on Special Education (“CSE”) meeting.

(Mar. 2013 Order at

2-3.)

his

Plaintiff’s

claims

stem

with the results of that meeting.

2

from

dissatisfaction

II. Procedural Background
Plaintiff

originally

commenced

this

action

against the District and Gallo as well as Susan B. Gibson
(“Gibson”),
Briglio

District’s

(“Briglio”),

meeting.
a

the

the

legal

hearing

consultant,
officer

and

during

Robert
the

CSE

He asserted the following federal claims: first,

claim

that

(a) failing
placement

all

to

at

Defendants

consider

Camphill,

violated

information

a

school

in

the

IDEA

regarding

by

B.L.’s

Pennsyvlania,

or

a

similar setting; (b) failing to improve B.L.’s language and
social

skills;

and

(c)

conducting

administrative

proceedings in which erroneous arguments were presented and
adopted; second, a Section 1983 claim that all Defendants
deprived Plaintiff of his rights under the IDEA for the
same reasons; third, Section 1983 and 1985 claims against
Gallo

and

Gibson

for

conspiring

to

violate

Plaintiff’s

rights under the IDEA, and; fourth, a Section 1983 claim
against Gallo, Gibson, and Briglio for depriving Plaintiff
of due process under the Fourteenth Amendment.
Order at 5.)
of

The Complaint also asserted a state law claim

negligence

After

the

remaining

(Mar. 2013

against

Court’s
claims

Gallo.

March

are

his

2013
claim

(Mar.

2013

Order,
for

Order

at

Plaintiff’s

IDEA

5.)
only

administrative

review, and his Section 1983 claims against Gallo and the
3

District for (a) failing to consider information regarding
B.L.’s placement in a Camphill-like setting and thus not
providing

Plaintiff

recommend

an

with

educational

administrative

a

placement,

proceedings

were made and adopted.
Plaintiff

meaningful

in

which

opportunity

and

(b)

to

conducting

erroneous

arguments

(Mar. 2013 Order at 22.)

subsequently

filed

several

motions,

including a motion for reconsideration of the March 2013
Order (see Docket Entry 37).
the

Court

also

ruled

on

In addressing that motion,

Plaintiff’s

pending

motions

to

strike the District and Gallo’s Answer (Docket Entry 63),
Plaintiff’s

motion

for

Plaintiff’s

motion

to

sanctions
dismiss

Briglio (Docket Entry 76).

(Docket

a

Entry

counterclaim

73),
filed

and
by

Ultimately, the Court denied

Plaintiff’s motion for reconsideration, reserved judgment
on

Plaintiff’s

motion

to

strike

the

answer,

denied

Plaintiff’s motion for sanctions, and dismissed Briglio’s
counterclaim.
to

the

(See Feb. 2014 Order at 13.)

motion

to

strike,

the

Court

As it pertains

also

ordered

the

District and Gallo to show cause as to why their Answer
should not be stricken.
In
Plaintiff

addition,

also

(See Feb. 2014 Order at 9-10.)
during

submitted

a

the

course

of

litigation,

Pre-Discovery

Disclosure

Statement, seeking to interrogate the court reporter from
4

the administrative proceeding, as well as Briglio’s phone
records during the months of the hearing.
Stmt., Docket Entry 45, at 3-4.)
Plaintiff
relating

to
to

serve

narrowly

Plaintiff’s

(Pl.’s Disc.

Judge Tomlinson permitted

tailored

remaining

document

claims,

but

requests
did

not

permit Plaintiff to interrogate the court reporter or to
access to Briglio’s phone records.

(Minute Entry, Docket

Entry 56, at 1.)
DISCUSSION
Currently,
Order

denying

his

Plaintiff

Judge

requests.

discovery

appeals

Also

Plaintiff’s motion to strike the Answer.

Tomlinson’s
pending

is

The District and

Gallo have responded to the Court’s Order to Show Cause,
and this matter is also ripe for the Court’s review.

The

Court will address each issue in turn.
I. Appeal of Magistrate Judge Tomlinson’s Order
A. Legal Standard
When a party files a timely written objection to
the proposed findings of a magistrate judge, the district
court may “accept, reject, or modify, in whole or in part,
the

findings

judge.”

or

recommendations

made

by

28 U.S.C. § 636(b)(1)(C) (2009).

the

magistrate

The standard of

review, which the district court shall apply, depends upon
whether the order is dispositive.
5

DiPilato v. 7-Eleven,

Inc., 662 F. Supp. 2d 333, 340 (S.D.N.Y. 2009).

A pretrial

matter which is not dispositive of the party’s claim or
defense may only be modified or set aside when part of that
order is “clearly erroneous or is contrary to law.”
CIV. P. 72(a).

FED. R.

A magistrate decision is clearly erroneous

when “the court is, upon review of the entire record, [ ]
left with the definite and firm conviction that a mistake
has been committed.”

DiPilato, 662 F. Supp. 2d at 339-40

(internal quotation marks and citation omitted) (alteration
in original).
“generally

.

litigation”

Pretrial matters concerning discovery are
.

and

.
are

considered
therefore

‘non-dispositive’
subject

erroneous or contrary to law standard.

to

the

of

the

clearly

See Thomas E. Hoar,

Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990).
B. Interrogation of the Court Reporter
Here, Plaintiff seeks to interrogate the court
reporter from the administrative proceeding.
Stmt. at 4.)

(Pl.’s Disc.

After careful review of the entire record,

the Court has found no clear error with Judge Tomlinson’s
decision denying Plaintiff’s request.
Specifically, Plaintiff has not demonstrated the
relevance of the interrogation with regard to his remaining
claims.

In

his

Pre-Discovery

Disclosure

Statement,

Plaintiff merely provides a conclusory allegation that the
6

District may have “viciously influenced” the court reporter
to deny Plaintiff a fair hearing.
3.)

However,

this

is

(Pl.’s Disc. Stmt. at

neither

the

basis

of

any

of

Plaintiff’s claims, nor does he raise any allegations as to
the

court

reporter

or

the

accuracy

of

the

transcript.

Insofar as Plaintiff’s claims pertain to the administrative
proceedings,
evidence

Plaintiff

and

misconduct.

that

maintains

the

District

that
and

Gallo

Gallo

withheld

engaged

in

There is nothing to suggest that the reporter

was in any way involved in such misconduct.

See Kelly v.

Ulster Cnty., N.Y., No. 12-CV-1344, 2013 WL 3863929, at *6
(N.D.N.Y.

July

appeal

the

of

24,

2013)

Magistrate

(denying
Judge’s

as

moot

decision

plaintiff’s

regarding

his

motion to compel “full disclosure,” because the defendant
was dismissed from the action).
Accordingly, Plaintiff’s appeal in this regard is
DENIED and Judge Tomlinson’s decision is AFFIRMED.
C. Briglio’s Cell Phone Records
Plaintiff
denial

of

Briglio’s

also

Plaintiff’s
phone

records.

objects
request
(Pl.’s

to
for

Judge
the

Appeal

Tomlinson’s

production
at

1.)

of

Here,

however, given that Briglio is no longer a defendant in
this

matter

and

that

the

Court

has

dismissed

his

counterclaim, the request for the phone records is moot.
7

(See

Feb.

2014

Order

at

8.)

Accordingly,

Plaintiff’s

appeal in this regard is also DENIED and Judge Tomlinson’s
decision is AFFIRMED.
II. Plaintiff’s Motion to Strike
Thus, the Court turns to Plaintiff’s motion to
strike the District and Gallo’s Answer.
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

impertinent, or scandalous matter.”

redundant,

immaterial,

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

“Resolution of a Rule 12(f) motion is left to the district
court’s discretion.”

E.E.O.C. v. Bay Ridge Toyota, Inc.,

327 F. Supp. 2d 167, 170 (E.D.N.Y. 2004).
to strike are generally disfavored.

However, motions

See Illiano v. Mineola

Union Free Sch. Dist., 585 F. Supp. 2d 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.

8

148, 153 (S.D.N.Y. 2002) (quoting SEC v. Toomey, 866 F.
Supp. 719, 722 (S.D.N.Y. 1992)).
“Furthermore, the Second Circuit ‘has expressed
on

numerous

disputes

occasions

be

resolved

its

on

preference

the

merits,

that

not

litigation

by

default.’”

Azikiwe v. Nigeria Airways Ltd., No. 03-CV-6387, 2006 WL
2224450, at *1 (E.D.N.Y. July 31, 2006) (quoting Marfia v.
T.C. Ziraat Bankasi, 100 F.3d 243, 249 (2d Cir. 1996)).
Under Rule 6(b) of the Federal Rules of Civil Procedure, “a
court

may,

for

good

cause”

extend

the

time

to

file

an

answer “if the party failed to act because of excusable
neglect.”

Arena v. Vill. of Suffern, N.Y., 519 F. App’x

61, 62 (2d Cir. 2013) (quoting FED. R. CIV. P. 6(b)(1)(B)).
“Good

cause

is

usually

not

difficult

to

show,

and:

an

application for the enlargement of time under Rule 6(b)(1)
normally will be granted in the absence of bad faith on the
part

of

adverse

the

party

party.”

seeking

Rankin

relief

v.

City

or
of

prejudice
Niagara

to

the

Falls,

293

F.R.D. 375, 390 (W.D.N.Y. 2013) (internal quotation marks
and citation omitted), aff’d --- F. App’x ----, 2014 WL
2609641

(2d

Cir.

established,

the

encompassing

June

12,

court

excusable

2014).

then

neglect,

Once

good

looks

to

which

are:

cause

the
“‘[1]

is

factors
[t]he

danger of prejudice to the [opposing party], [2] the length
9

of

the

delay

proceedings,

and

[3]

its

the

potential

reason

for

impact
the

on

delay,

judicial
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)).
B. Plaintiff’s Motion
Plaintiff
Gallo’s

Answer

seeks

because

to

they

strike
failed

the
to

District

file

the

and

Answer

within fourteen days of the March 2013 Order denying their
motion

to

dismiss.

See

FED.

R.

CIV.

P.

12(a)(4)(A)

(providing that where the court denies a Rule 12 motion, a
responsive pleading “must be served within 14 days after
notice of the court’s action”).

The Court finds that the

Defendants have shown good cause and excusable neglect.
As more fully discussed below, the District and
Gallo have demonstrated good cause because they acted in
good

faith

throughout

the

litigation.

They

filed

an

untimely Answer due to confusion, and their delay did not
prejudice Plaintiff.
Moreover, the Court also finds that the untimely
answer

was

the

result

of

excusable
10

neglect.

“[T]o

establish prejudice in the context of a default, there must
be a showing that the delay will result in the loss of
evidence, create increased difficulties of discovery, or
provide greater opportunity for fraud and collusion.”

Car-

Freshner Co. v. Air Freshners, Inc., No. 10-CV-1491, 2012
WL

3294948,

at

*4

(N.D.N.Y.

quotation

marks

and

extension

after

a

Plaintiff

because

motions

for

citations

summary

was

also

potential

defenses

delay
has

judgment
aware
as

10,

2012)

omitted).

two-month
discovery

Plaintiff

Aug.

have

of

the

evidenced

Permitting

does

not

yet

not

not

yet

his

the

prejudice

concluded,

District
by

(internal

been
and

and

filed.
Gallo’s

memorandum

in

opposition to the motion to dismiss on July 18, 2011.

In

the memorandum, Plaintiff addressed Defendants’ defenses,
such as failure to state a claim, failure to set forth
sufficient facts, and qualified immunity. (Pl.’s Opp. Br.,
Docket Entry 26, at 2-8.)
Additionally,
Answer

seems

multiple
Plaintiff’s

to

be

cases
motion

the

Defendants’
result

Plaintiff
for

has

of

failure
confusion
pending,

reconsideration.

Defs.’ Opp. Br., Docket Entry 89-2.)

to

file

due
along

(See

to

an
the
with

generally

The District and

Gallo have demonstrated that their failure to answer was
the result of a good faith mistaken belief because they
11

have

actively

Defendants

participated

throughout

the

litigation.

discovery

procedures,

have

complied

with

in

multiple

telephone

participated

conferences,

and

properly served scheduling orders on Plaintiff, leaving no
indication that they intended to avoid prosecution of the
case.

Furthermore,

after

becoming

aware

of

Plaintiff’s

motion seeking default on May 28, 2013, the District and
Gallo

immediately

(Defs.’

Ans.)

filed

their

Finally,

Answer

policy

the

following

considerations

day.

favor

a

denial of the motion because striking the Answer, which
would be the functional equivalent of entering a default
judgment, would “violate the policy of resolving cases on
the merits.”

Llewellyn v. N. Am. Trading, No. 93-CV-8894,

1996 WL 715532, at *2 (S.D.N.Y. Dec. 11, 1996).
Accordingly,

Plaintiff’s

motion

to

strike

is

DENIED.
CONCLUSION
For the foregoing reasons, Judge Tomlinson’s May
20,

2013

Order

is

AFFIRMED,

and

Plaintiff’s

motion

to

strike is DENIED.
The Court certifies that 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 the purpose of any appeal.
12

See 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: August
12 , 2014
Central Islip, NY

13