Dorsett-Felicelli, Inc. et al v. County of Clinton et al

Filing 118

DECISION and ORDERED, that County Defendants Motion (Dkt. No. 117) to dismiss the Amended Complaint (Dkt. No. 74) as to Corporate Plaintiffs first and second causes of action is GRANTED. The Amended Complaint (Dkt. No. 74) accordingly is DISMISSED w ith prejudice as to Corporate Plaintiffs first and second causes of action; and it is further ORDERED, that the Amended Complaint (Dkt. No. 74) is sua sponte DISMISSED without prejudice as to Dorsett-Felicellis first and second causes of action for failure to prosecute; and it is further ORDERED, that North Country Kids Motions (Dkt. Nos. 112; 115) for entry of partial final judgment are DENIED as moot. Signed by Senior Judge Lawrence E. Kahn on July 29, 2013. (sas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
DORSETT-FELICELLI, INC., d/b/a
PYRAMIDS; PYRAMIDS PRE-SCHOOL,
INC.; and MELISSA DORSETTFELICELLI,
Plaintiffs,
-against-

1:04-CV-1141 (LEK/RFT)

COUNTY OF CLINTON; PAULA
CALKINS LACOMBE, individually and
in her capacity as Director of the County
of Clinton Department of Public Health;
KATHERINE O’CONNOR, individually
and in her official capacity as Early
Intervention Official and Pre-School
Related Service Coordinator; NORTH
COUNTRY KIDS, INC.; STEPHANIE
GIRARD; KELLY McCAULEY; and
MELISSA PUCHALSKI,
Defendants.
___________________________________
DECISION and ORDER
I.

INTRODUCTION
Presently before the Court are a Motion to dismiss pursuant to Federal Rule of Civil Procedure

12(b)(6) filed by Defendants County of Clinton, Calkins Lacombe, and Katherine O’Connor
(collectively, “County Defendants”) and a Motion and Letter Motion for entry of partial final judgment
pursuant to Federal Rule of Civil Procedure 54(b) filed by North Country Kids, Inc., Stephanie Girard,
Kelly McCauley, and Melissa Puchalski (collectively, “North Country Kids”). Dkt. Nos. 112 (“NCK
Motion”); 115 (“NCK Letter Motion”) (collectively with the NCK Motion, “North Country Kids’
Motions”); 117 (“County Defendants’ Motion”). For the following reasons, County Defendants’

Motion is granted and North Country Kids’ Motions are denied as moot.
II.

BACKGROUND
The Court assumes the parties’ familiarity with the factual and procedural background of this

case as set forth in detail in the Court’s Memorandum-Decision and Order filed on March 22, 2011, and
in the parties’ previous filings. See Dkt. Nos. 1 (“Complaint”); 74 (“Amended Complaint”); 80-2; 109
(“March 2011 Order”) at 2-4. The Court therefore recites here only the facts and procedure necessary
to address the instant Motions.
A. Factual Background
Dorsett-Felicelli, Inc., and Pyramids Pre-School (“Pyramids”) (collectively, “Corporate
Plaintiffs”) were providers of early-intervention and pre-school services under a written agreement
entered into between Corporate Plaintiffs and County Defendants.

Dkt. No. 80-3 (“Provider

Agreement”). Under the Provider Agreement, Corporate Plaintiffs agreed to provide early-intervention
services to infants and toddlers with developmental delays and disabilities in exchange for
reimbursement by County Defendants. Id. at 1, ¶ 10. County Defendants could terminate the Provider
Agreement on thirty days' notice or immediately for cause. Id. ¶ 21.
Beginning in Fall 2003 and continuing through December 2003, both Pyramids and Melissa
Dorsett-Felicelli (“Dorsett-Felicelli”) (collectively with Corporate Plaintiffs, “Plaintiffs”), the chief
executive officer, president, and executive director of Corporate Plaintiffs, complained to County
Defendants that County Defendants had given independent-contractor status to individual service
providers unlawfully and asked that County Defendants cease this illegal activity. Am. Compl. ¶¶ 9,
28-29. After Pyramids and Dorsett-Felicelli made their complaints, County Defendants transferred 57
weekly intervention sessions, representing $207,480 in yearly gross revenue, from Corporate Plaintiffs

2

to recently approved individual service provider North Country Kids, Inc., which had been formed by
Defendants Girard, McCauley, and Puchalski, all of whom were former employees of Corporate
Plaintiffs. Id. ¶¶ 31-42. County Defendants thereafter continued to transfer substantial additional
numbers of sessions away from Corporate Plaintiffs to North Country Kids, Inc., and to reduce the
number of case referrals made to Corporate Plaintiffs. See id. ¶ 43. No such transfers of intervention
sessions or reductions in referrals were made by County Defendants prior to Pyramids’ and DorsettFelicelli’s complaints. Id. ¶ 45.
On December 5, 2007, Pyramids filed a voluntary petition for Chapter 11 bankruptcy in the U.S.
Bankruptcy Court for the Northern District of New York. Dkt. No. 80-2. The petition did not list the
instant action as an asset in the bankruptcy proceeding. See generally id. On October 6, 2009, the
bankruptcy court dismissed Pyramids’ bankruptcy proceeding. In re Dorsett-Felicelli, Inc., No. 0713345-1, Dkt. No. 109 (Bankr. N.D.N.Y. Oct. 6, 2009).
B. Procedural Background
Corporate Plaintiffs commenced this action by filing a Complaint on September 30, 2004.
Compl. The Complaint alleged three causes of action: (1) that County Defendants violated Corporate
Plaintiffs’ First Amendment right to free speech by transferring intervention sessions away from
Corporate Plaintiffs and reducing case referrals to them in retaliation for Pyramids’ and DorsettFelicelli’s complaints; (2) that County Defendants violated Corporate Plaintiffs’ First Amendment
rights to petition the government for redress of grievances and for unimpeded access to the courts by
taking those actions; and (3) that North Country Kids engaged in tortious interference with Corporate
Plaintiffs’ contractual relationship with County Defendants. Id. ¶¶ 69-74.
On March 12, 2009, Corporate Plaintiffs moved to amend and supplement the Complaint in

3

several respects. Dkt. No. 51 (“Motion to Amend”). The Honorable Randolph F. Treece, U.S.
Magistrate Judge, granted in part and denied in part the Motion to Amend. Dkt. No. 73. Among other
things, Judge Treece permitted Corporate Plaintiffs to add Dorsett-Felicelli as a Plaintiff with respect
only to the first and second causes of action. Id. at 45. The Amended Complaint, in which DorsettFelicelli also asserts the first and second causes of action against County Defendants, was filed on
October 2, 2009. Am. Compl.
On October 9, 2009, North Country Kids filed a Motion to dismiss all causes of action asserted
against them in the Amended Complaint. Dkt. No. 80 (“NCK Motion to Dismiss”). The Court granted
the Motion in full in the March 2011 Order. Mar. 2011 Order. The NCK Motion and NCK Letter
Motion followed on April 19 and May 9, 2011, respectively. See North Country Kids’ Mots. In their
Motions, North Country Kids request entry of partial final judgment as to them, arguing that it would
be unjust to force them to wait for final judgment until all causes of action asserted against County
Defendants are also resolved. See Dkt. No. 112-3 at 1. Corporate Plaintiffs, which are not currently
represented by counsel, do not oppose North Country Kids’ Motions.1 See generally Dkt.
County Defendants filed their Motion to dismiss on May 16, 2011. Cnty. Defs.’ Mot. In their
Motion, County Defendants request dismissal of all causes of action asserted against them in the
Amended Complaint by Corporate Plaintiffs. See id. Corporate Plaintiffs do not oppose County
Defendants’ Motion. See generally Dkt.

1

Corporate Plaintiffs were represented throughout much of this litigation by attorney Meredith
H. Savitt (“Savitt”). See generally Dkt. Shortly after the Amended Complaint was filed, however,
Savitt filed a Motion to withdraw from the case. Dkt. No. 83. Judge Treece granted the Motion on
November 18, 2009. Dkt. No. 87. Plaintiffs have been without counsel since that time. See generally
Dkt.
4

IV.

DISCUSSION
A. County Defendants’ Motion to Dismiss
County Defendants contend that Corporate Plaintiffs’ first and second causes of action must be

dismissed under the doctrine of law of the case. Dkt. No. 117-2 (“Memorandum”) at 1-2. In its March
2011 Order, the Court dismissed Corporate Plaintiffs’ tortious-interference cause of action for several
reasons including because Pyramids failed to list this action as an asset in the bankruptcy proceeding.
Mar. 2011 Order at 7-8. According to County Defendants, the same reasoning applies to preclude
Corporate Plaintiffs from maintaining their first and second causes of action against County Defendants.
Mem. at 1-2. The Court agrees.
“As most commonly defined, the doctrine [of law of the case] posits that when a court decides
upon a rule of law, that decision should generally continue to govern the same issues in subsequent
stages in the same case.” Arizona v. California, 460 U.S. 605, 618 (1983). The primary grounds
justifying reconsideration of a previous decision are “an intervening change of controlling law, the
availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” See Atl.
Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (quoting 18B C. WRIGHT,
A. MILLER & E. COOPER, FEDERAL PRACTICE AND PROCEDURE § 4478, at 790 (1981)). “Application
of the law of the case doctrine is discretionary and does not limit a court’s power to reconsider its own
decisions prior to judgment.” Aramony v. United Way of Am., 254 F.3d 403, 410 (2d Cir. 2001); RSL
Commc’ns, PLC v. Bildirici, 649 F. Supp. 2d 184, 204 (S.D.N.Y. 2009).
“For purposes of applying the law of the case doctrine, courts have long recognized the
distinction between pre-discovery motions, based on an undeveloped record, and post-discovery
motions for summary judgment.” Pure Power Boot Camp, Inc. v. Warrior Fitness Boot Camp, LLC,

5

759 F. Supp. 2d 417, 424-25 (S.D.N.Y. 2010) (citing DiLaura v. Power Auth., 982 F.2d 73, 76-77 (2d
Cir. 1992) (holding that findings made by a court for the purpose of injunctive relief are not the law of
the case for subsequent litigation on the merits); Clalit Health Serv. v. Israel Humanitarian Found., 385
F. Supp. 2d 392, 398 n.8 (S.D.N.Y. 2005) (holding that a pre-discovery determination on a motion to
dismiss is not the law of the case for purposes of summary judgment); Colonial Tanning Corp. v. Home
Indem. Co., 780 F. Supp. 906, 911-12 (N.D.N.Y. 1991) (holding that a prior ruling in the context of a
discovery dispute did not establish law of the case with respect to unrelated issues which the court had
merely assumed for purposes of addressing the disputes, but which were not critical for resolution of
the dispute)).
The Court cannot discern a reason why its previous decision on the consequences of Pyramids’
failure to list this action as an asset in the bankruptcy proceeding should not also apply in the context
of County Defendants’ Motion. Plaintiffs do not oppose County Defendants’ Motion2 and therefore do
not make any arguments that the Court should reconsider its March 2011 Order because of “an
intervening change of controlling law, the availability of new evidence, or the need to correct a clear
error or prevent manifest injustice.” Atl. Airways, 956 F.2d at 1255. Furthermore, because the Court’s
March 2011 Order addressed North Country Kids’ Motion to dismiss, this is not a situation in which
applying a legal conclusion from that Order to resolve County Defendants’ Motion would be
inappropriate. Both Motions were made at the same stage of the litigation, and the relevant legal

2

Indeed, Corporate Plaintiffs could not oppose County Defendants’ Motion because at the time
it was filed Corporate Plaintiffs were not represented by counsel, and “[a] corporation is not allowed
to appear in federal court except by a licensed attorney.” United States v. Twenty Miljam-350 IED
Jammers, 669 F.3d 78, 91 (2d Cir. 2011) (citing Rowland v. Cal. Men’s Colony, 506 U.S. 194, 202
(1993)). Corporate Plaintiffs had approximately one and one half years between Savitt’s withdrawal
and the filing of County Defendants’ Motion to obtain new counsel, but they failed to do so.
6

conclusion applies broadly enough to preclude all of Corporate Plaintiffs’ causes of action, not just the
one at issue in the March 2011 Order.
Accordingly, the Court dismisses with prejudice Corporate Plaintiffs’ first and second causes
of action against County Defendants for failure to list this action as an asset during the bankruptcy
proceeding.
B. Sua Sponte Dismissal of Dorsett-Felicelli’s Causes of Action
Local Rule 41.2(a) of the Northern District of New York permits a court to sua sponte dismiss
an action “[w]henever it appears that the plaintiff has failed to prosecute [it] diligently.” L.R. 41.2(a);
see also FED. R. CIV. P. 41(b). “[T]he plaintiff’s failure to take action for four (4) months shall be
presumptive evidence of lack of prosecution.” L.R. 41.2(a).
There is abundant reason to conclude that Dorsett-Felicelli has failed to diligently prosecute her
causes of action against County Defendants. Dorsett-Felicelli last appeared in this case on April 26,
2011, in a telephone conference with Judge Treece. See Dkt No. 111; Minute Entry entered Apr. 26,
2011. And not since a Letter submitted to Judge Treece on March 25, 2010, has Dorsett-Felicelli filed
a letter or motion or made any other type of formal written request of the Court. Dkt. No. 104. See
generally Dkt. County Defendants’ March 30, 2011 Status Report indicates, furthermore, that the
parties had engaged in virtually no discovery up to that point, and there is nothing in the Docket that
suggests discovery has progressed any further since. Dkt. No. 110. See generally Dkt. Thus, it has
been more than two years—well beyond the four months necessary for the presumption of
nonprosecution to come into effect—since Dorsett-Felicelli has taken any kind of action in this case.
Accordingly, while the Court is mindful of Dorsett-Felicelli’s pro se status and the special
solicitude that is accordingly owed to her, see, e.g., Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir.

7

2010), the Court dismisses without prejudice Dorsett-Felicelli’s first and second causes of action against
County Defendants for failure to prosecute.
C. North Country Kids’ Motions for Entry of Partial Final Judgment
Because all causes of action asserted against County Defendants in the Amended Complaint
have been dismissed herein, and thus the Amended Complaint has now been dismissed in its entirety,
the Court denies as moot North Country Kids’ Motions for entry of partial final judgment as to them.
V.

CONCLUSION
Accordingly, it is hereby:
ORDERED, that County Defendants’ Motion (Dkt. No. 117) to dismiss the Amended

Complaint (Dkt. No. 74) as to Corporate Plaintiffs’ first and second causes of action is GRANTED.
The Amended Complaint (Dkt. No. 74) accordingly is DISMISSED with prejudice as to Corporate
Plaintiffs’ first and second causes of action; and it is further
ORDERED, that the Amended Complaint (Dkt. No. 74) is sua sponte DISMISSED without
prejudice as to Dorsett-Felicelli’s first and second causes of action for failure to prosecute; and it is
further
ORDERED, that North Country Kids’ Motions (Dkt. Nos. 112; 115) for entry of partial final
judgment are DENIED as moot; and it is further
ORDERED, that the Clerk serve a copy of this Decision and Order on all parties.

Dated:

July 29, 2013
Albany, NY

8