Tirelli v. O'Connell

Filing 37

MEMORANDUM-DECISION AND ORDER denying 28 Motion to Reopen Case; denying 31 Motion for Default Judgment: The Court hereby ORDERS that Plaintiff's motion to reopen is DENIED; and the Court further ORDERS that Plaintiff's motion for defa ult judgment is DENIED; and the Court further ORDERS that Plaintiff's request for costs and attorney fees is DENIED; and the Courtfurther ORDERS that Plaintiff's motion to amend the caption is DENIED; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order on the parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 7/1/13. [copy sent certified mail to pro se plaintiff] (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
ROSE TIRELLI,
Plaintiff,
vs.

1:12-cv-01066
(MAD/CFH)

JOSEPH O'CONNELL, Individually and in his
Official Capacity as a Police Officer of the Town
of Greenport,
Defendant.
____________________________________________
APPEARANCES:

OF COUNSEL:

ROSE TIRELLI
12 Worth Avenue
Hudson, New York 12534
Plaintiff pro se
TOWNE, RYAN & PARTNERS, P.C.
450 New Karner Road
P.O. Box 15072
Albany, New York 12205
Attorneys for Defendant

ELENA DEFIO KEAN, ESQ.

Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff commenced an action in this Court on July 2, 2012 alleging (1) that Defendant
"negligently imprisoned" her, (2) that she was "negligently endangered," which violated her
constitutional rights, and (3) that she was maliciously prosecuted. See Dkt. No. 25 at 4. On
February 13, 2013, this Court dismissed Plaintiff's claims as barred by both the statute of
limitations and by res judicata. See Dkt. No. 25 at 6-12.
Currently before the Court is Plaintiff's motion to reopen the case, as well as her motion
for a default judgment. See Dkt No. 28 at 4-5; Dkt. No. 31 at 1-2. In addition, Plaintiff submitted

an amended caption, and requests costs and attorney fees. See Dkt. No. 28 at 3; Dkt. No. 31-2 at
2. Defendant asserts that Plaintiff's motion to reopen the case must be denied because "there is no
set of facts that would overcome the statute of limitations or res judicata doctrines that were the
basis for the original dismissal." See Dkt. No. 33-8 at 5. Defendant claims that none of the
reasons to permit reopening listed in Fed. R. Civ. P. 60(b) apply to the instant case. See Dkt. No.
29 at 2. Defendant also states that Plaintiff provided no explanation as to why she wishes to
amend the caption, that there is no likelihood of success to warrant the amendment, and that the
Court should deny the request. See id. at 3. Defendant asserts that Plaintiff's motion for default
judgment must be denied because Defendant responded to Plaintiff's motion to reopen in a timely
manner. See Dkt. No. 33-6 at 6. Additionally, Defendant asserts that, even if he had not
responded in a timely manner, Plaintiff would not be entitled to damages as Plaintiff "has also
failed to establish her entitlement to damages." See Dkt. No. 33-8 at 6.

II. BACKGROUND
A.

Background Facts
Plaintiff alleges that on January 6, 2006, Defendant, then a Town of Greenport police

officer, entered her home "without service of process upon Plaintiff of an arrest warrant."1 See
Dkt. 33 at 11. Plaintiff was never read her Miranda rights; Defendant "badgered" her, and failed
to explain to her why she was being arrested. See id. Defendant then ordered Plaintiff to leave
her home, causing "a negligent imprisonment against Plaintiff, and . . . a negligent endangerment
against Plaintiff, upon escorting Plaintiff, without offering Plaintiff illumination, to a marked
police car." See id. at 12. Defendant handcuffed Plaintiff and brought her to the police station,

For the purposes of the "Background" facts, the Court is presuming the facts that
Plaintiff submitted to the Court to be true.
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without explaining why she had been arrested, until he finally "stated that [he] 'heard' that
Plaintiff was serving liquor to minors . . . admitt[ing] that Plaintiff's arrest was based on hearsay."
See id. at 13. Defendant handcuffed Plaintiff to a bench in the police station, where she "and
defendant remained alone for several hours . . . until the judge arrived so as to arraign Plaintiff."
See id. at 14. After the judge arrived, Plaintiff was arraigned, bail was set and paid, and she was
released. See id.

B.

Plaintiff's State Adjudication
Plaintiff first brought an action in December 2006 in New York State Supreme Court,

Columbia County, alleging that "defendant conspired with a Columbia county resident to have
plaintiff arrested and prosecuted in retaliation for plaintiff firing the resident's son from
employment at a restaurant called The Tuscan Oven." See Dkt. No. 25 at 2. Plaintiff was charged
with several misdemeanor complaints, and Plaintiff claims that Defendant "also contacted the
local newspaper regarding the charges." See id. at 2. The charges against Plaintiff were
dismissed on August 14, 2006. See id.
In Plaintiff's state action, she alleged "common law claims for libel and slander, false
arrest and malicious prosecution . . . [and] a claim for malicious prosecution and false arrest
pursuant to 42 U.S.C. § 1983" against Defendant and the Town of Greenport. See id. at 3. The
Court awarded Defendant summary judgment on Plaintiff's slander and libel claims as well as the
42 U.S.C. § 1983 claim. See id. at 3-4. After additional filings concerning the false arrest and
malicious prosecution claims, on January 9, 2013 the court awarded Defendant summary
judgment, dismissing the remainder of Plaintiff's complaint. See id.
C.

Plaintiff's Federal Adjudication

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Plaintiff filed a complaint with this Court in October of 2011. See Dkt. No. 1. Plaintiff
alleged that she "was 'negligently imprisoned' by defendant without service of an arrest warrant
and without reading plaintiff her Miranda rights . . . [and] that her 'constitutional rights were
violated' due to plaintiff being 'negligently endangered' and malicious prosecution." See Dkt. No.
25 at 4. The Court determined that Plaintiff's state claims for false imprisonment, false arrest, and
malicious prosecution were time barred. See id. at 7. The Court held that, "[u]nder New York
law, false arrest and false imprisonment claims are subject to a one year statute of limitations."
See id. Accordingly, those claims lapsed on or by January 7, 2007, one year after Plaintiff was
released from custody.2 See id. Similarly, the Court held that Plaintiff's malicious prosecution
claim lapsed on August 14, 2007, one year after the criminal charges against Plaintiff were
dismissed. See id. Moreover, the Court held that the conduct alleged was appropriately
characterized as intentional tortious conduct, rejecting Plaintiff's claim that Defendant's conduct
was negligent, and holding that the one-year statute of limitations for intentional conduct must
apply. See id. at 7-8.
In considering Plaintiff's § 1983 claims, Plaintiff was released on or by January 7, 2006,
and because false arrest claims expire three years after the occurrence, Plaintiff's false arrest claim
expired on or by January 7, 2009. See id. at 9. Similarly, claims for malicious prosecution have a
three-year statute of limitations; because the criminal charges against Plaintiff were dismissed on
August 14, 2006, the Court held that Plaintiff's cause of action for malicious prosecution lapsed
on August 14, 2009. See id. at 9-10.
Alternatively, the Court held that Plaintiff's claims were barred by res judicata. See id. at

Plaintiff alleges that she was arrested on January 6 and detained at the police station "for
several hours." See Dkt. No. 33 at 14. It is unclear whether Plaintiff was released on January 6 or
7, so the Court will refer to her release as taking place "on or by January 7," resolving the
ambiguity in Plaintiff's favor.
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12. The Court held that the three factors that bar a claim on res judicata grounds were met. See
id. The Court noted that the previous action involved the same plaintiff, the previous action
resulted in an "adjudication on the merits," and that the claims "asserted in the subsequent action
were, or could have been, raised in the prior action," as the claim in Plaintiff's federal complaint
and her prior state complaint "'involve[d] the same series of transactions - plaintiff's arrest.'" See
id. at 10-12 (quoting Monahan v. N.Y.C. Dep't of Corr., 214 F.3d 275, 285 (2d Cir. 2000)).
Therefore, the Court dismissed Plaintiff's § 1983 claims as barred by the doctrine of res judicata.
See id. at 12.

D.

Plaintiff's Present Motions
On February 26, 2013, in response to this Court's Memorandum-Decision and Order,

Plaintiff submitted a motion, stating that "Defendant and Defendant's counsel do not deny that
Plaintiff was never read Miranda rights, nor served with an arrest warrant, so as for Defendant
and Defendant's counsel to admit to Plaintiff's unconstitutional arrest." See Dkt. No. 28 at 1.
Therefore, Plaintiff reasons that "the judgment must be opened so as to retry the unconstitutional
issue raised herein in federal question." See Dkt. No. 28 at 2. Plaintiff stated, as a federal
question, "why should those who govern the governed permit proof of Defendant's
unconstitutional actions against Plaintiff and further violation of Plaintiff's civil rights" and "why
should those who govern the governed permit unconstitutional law enforcement against goodfaith-citizens?" See id. at 4. Plaintiff also submitted a "notice of amended caption," which altered
the listing of Defendant from "Joseph O'Connell. Individually and In his Official Capacity as a
Police Officer of the Town of Greenport" to include his current employer by adding "and In His
Official Capacity As a Police Officer Of the City of Hudson." See id. at 3.
In her February 26 motion, Plaintiff asserted "if Defendant fails to oppose Plaintiff's
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motion for a new trial within fourteen (14) days of receipt of Plaintiff's notice of motion via
express mail, a treble-damage award shall be due and owing to Plaintiff in the amount of six
hundred seventy five thousand dollars ($675,000.00)." See id. at 5.
On April 1, 2013, Defendant submitted an attorney affidavit in opposition to Plaintiff's
motion to reopen. See Dkt. No. 29 at 1. On April 9, 2013, Plaintiff submitted her motion for
default judgment, requesting "(i) [ ] Entry of a Default Judgment against Defendant and
Defendant's Counsel; and, further, (ii) to Award Plaintiff a Treble-Damage Default Judgment
Award In the Amount of Six Hundred Seventy-Five Thousand Dollars." See Dkt. No. 31 at 1-2.
Plaintiff's memorandum states that "Defendant and Defendant's counsel have run the statute of
limitations" and have been "placed in default April 2, 2013." See Dkt. No. 31-1 at 2.
Plaintiff requests "a writ of assistance" to aid Plaintiff in collecting the "money damages
due and owing to Plaintiff" as a result of Defendant's failure to reply to her motion in "the time
specified." See Dkt. No. 31-2 at 1-2. Plaintiff then asserted that,
[u]pon Defendant and Defendant's Counsel evidencing Contempt of
said Default Judgment Award . . . [Defendant] shall owe Plaintiff
additional Treble-Damages in the amount of Two-Million-TwentyFive-Thousand Dollars . . . and, Further, If Defendant and
Defendant's Counsel fail to comply upon Order of this Court,
Defendant and Defendant's Counsel shall be placed in Contempt of
Said Order and owe Plaintiff an additional Treble-Damage Award
in the Amount of Six-Million-Seventy-Five-Thousand Dollars.
See id. at 2. Plaintiff asserts that she did not receive Defendant's opposition papers until April 4,
2013, and that Defendant was placed in default on April 2, 2013. See Dkt. No. 32 at 1-2.
Plaintiff further requests "Costs and Attorney Fees for adjudicating the Above-Captioned Action."
See Dkt. No. 31-2 at 2.
On May 8, 2013, Plaintiff "notice[d] the Court, once again, for application of a default
judgment treble-damage award in the amount of six-hundred and seventy-five thousand dollars."
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See Dkt. No. 35 at 4. Plaintiff then submitted, on May 10, 2013, two "federal questions," which
discuss Plaintiff's deprivation of her "due process" and her "constitutional right to the pursuit of
life-liberty-and-happiness." See Dkt. No. 36 at 2-3. Plaintiff questions why those who use their
power ethically permit others to use their power unethically, and why they continue to do so. See
id. at 2-4.

III. DISCUSSION
A.

Plaintiff's Motion to Reopen
1. Standard of Review
Upon submission of a motion to reopen a case,
a court may relieve a party or its legal representative from a final
judgment . . . for the following reasons: (1) mistake, inadvertence,
surprise, or excusable neglect; (2) newly discovered evidence that,
with reasonable diligence, could not have been discovered in time
to move for a new trial under Rule 59(b); (3) fraud . . . ,
misrepresentation, or misconduct by an opposing party; (4) the
judgment is void; (5) the judgment has been satisfied, released, or
discharged; it is based on an earlier judgment that has been reversed
or vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.

Fed. R. Civ. P. 60(b). "A true Rule 60(b) motion must be predicated on one of five narrow and
specific grounds or on a sixth ground which, despite its open wording, has been narrowly cabined
by the precedent of [the United States Court of Appeals for the Second Circuit]." Harris v.
United States, 367 F.3d 74 at 80 (2d Cir. 2004). "In this District, reconsideration of an order
entered by the court is appropriate only upon a showing of '(1) an intervening change in
controlling law, (2) the availability of new evidence not previously available, or (3) the need to
correct a clear error of law or prevent manifest injustice.'" Pickering-George v. Cuomo, No. 1:10CV-0771, 2011 U.S. Dist. LEXIS 51033, *14 (N.D.N.Y. May 12, 2011) (collecting cases). "The
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benchmark for seeking reconsideration of a court's order has been described as 'demanding[.]'"
Id. at *16 (citation omitted).
"To qualify for reconsideration, '[t]he moving party [must] point to controlling decisions
or data that the court overlooked – matters, in other words, that might reasonably be expected to
alter the conclusion reached by the court.'" Id. at 17 (citing Shrader v. CSX Transp., Inc., 70 F.
3d 255, 257 (2d Cir. 1995)). If the party is moving for reconsideration under rule 60(b)(6), the
party must show "exceptional circumstances" or "extreme hardship." United States v. Cirami,
563 F.2d 26, 30 (2d Cir. 1977) (citing United States v. Cirami, 535 F.2d 736, 741 (2d Cir. 1976)).
The Second Circuit holds a "firm belief that courts should not encourage the reopening of final
judgments or casually permit the relitigation of litigated issues out of a friendliness to claims of
unfortunate failures to put in one's best case." United States v. Cirami, 563 F.2d 26, 33 (2d Cir.
1977).

2. Merits of Plaintiff's Motion
Plaintiff submitted a motion "for a new trial", stating that
Defendant evidenced an example of an unconstitutional act against
Plaintiff in violation of Plaintiff's civil rights, upon an initial
unconstitutional arrest of Plaintiff, in failing to read Plaintiff
Miranda rights and in failing to present to Plaintiff an arrest
warrant; [ ] Defendant evidenced a pattern of unconstitutional
actions against Plaintiff in violation of Plaintiff's civil rights, as an
officer on desk duty for the City of Hudson Police Department . . .
Plaintiff respectfully requests the judgment to be opened so as to retry the issue of violaion [sic] of Plaintiff's constitutional rights.
See Dkt. No. 28 at 4-5.
Plaintiff has not demonstrated that her motion to reopen satisfies the standard set forth in
Pickering-George v. Cuomo, which requires a change in the controlling law, newly available
evidence, or a need to correct a clear error of law or prevent manifest injustice. Plaintiff has not
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presented the Court with any information that meets the "demanding" standard required in order
to reopen a case. In fact, Plaintiff's motion is substantively the same as her prior complaint in this
Court. Plaintiff did not address the reasons why her claims were dismissed by this Court, being
that her claims were barred by the statute of limitations and res judicata. Plaintiff made no
showing of "extreme hardship" or an "exceptional circumstance" that would require an equitable
re-opening. Plaintiff's attempt to re-assert her claims cannot proceed without a demonstration that
improperly dismissed this matter on res judicata and statute of limitations grounds, which she has
failed to do.
Based on the foregoing, the Court denies Plaintiff's motion to reopen.

B.

Plaintiff's Motion for a Default Judgment
A motion for default judgment may be granted "[w]hen a party against whom a judgment

for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown
by affidavit or otherwise." Fed. R. Civ. P. 55. To obtain a default judgment, "[a] litigant must:
(1) properly serve defendant with a summons and complaint (to which no response has been
made); (2) obtain an entry of default . . ." Chao v. Party Rental Enters., 5:07-CV-0449, 2008
U.S. Dist. LEXIS 63872, *15 (N.D.N.Y. Aug. 15, 2008) (citing Fed. R. Civ. P. 55).
This Court instructed Defendant to respond to Plaintiff's motion to reopen by April 1,
2013. See Dkt. No. 33 at 36. This Court received and filed Defendant's response on April 1,
2013. See Dkt. No. 29 at 3. Further, Defendant has provided the Court with a certificate of
service from its sending of the response to Plaintiff which is dated April 1, 2013. See Dkt. No. 30
at 1. Defendant did not "fail[] to plead or otherwise defend." Defendant is therefore not in
default.
Based on the foregoing, the Court denies Plaintiff's motion for default judgment and her
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writ of assistance to obtain the default judgment.

C.

Plaintiff's Amended Caption
"A party may amend its pleading once as a matter of course within: (A) 21 days after

serving it." Fed. R. Civ. P. 15(a).
Plaintiff sent the court a "notice of amended caption," which simply stated that "Plaintiff .
. . notices all concerned parties as to the following Amended Caption," and provides an image of
the new caption.3 See Dkt. No. 28 at 3. In the amended caption, Plaintiff includes Defendant's
current employment in the City of Hudson in addition to his former employment with the Town
of Greenport at the time when the occurrences surrounding Plaintiff's claim took place. See id.
Since Plaintiff's motion to reopen the case is denied, however, Plaintiff's motion to amend is
denied as moot.
Even if the Court were reopening the case, the Court would not accept Plaintiff's amended
caption including Defendant in his official capacity as a police officer of the City of Hudson.
Plaintiff's claim against Defendant in his official capacity as a police officer of the City of Hudson
is barred by the statute of limitations because Plaintiff did not include this employer until eight
years after the occurrence that is the basis of Plaintiff's claims. Under Rule 15(c) of the Federal
Rules of Civil Procedure, "[a]n amendment to a pleading relates back to the date of the original
pleading when" the claim in the amendment "arose out of the conduct, transaction, or occurrence
set out . . . in the original pleading." Fed. R. Civ. P. 15. An amendment may "change[] the party
or the naming of the party against whom a claim is asserted," if the party "(i) received such notice
of the action that it will not be prejudiced in defending on the merits; and (ii) knew or should have

3

The Court will refer to Plaintiff's "notice of amended caption" as a motion to amend the

caption.
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known that the action would be brought against it, but for a mistake concerning the proper party's
identity." Id.
"[O]fficial capacity suits . . . 'generally represent only another way of pleading an action
against an entity of which an officer is an agent.'" Ky. v. Graham, 473 U.S. 159 at 165 (1985).
Therefore, Plaintiff's amended caption actually creates a claim against the City of Hudson. In the
present matter, it is clear that relation back would not apply for any claims brought against the
City of Hudson. Even if the doctrine did apply, any such claim would still be untimely for the
reasons set forth in the Court's Memorandum-Decision and Order dismissing this case.
Based on the foregoing, the Court denies Plaintiff's motion to amend her caption.

D.

Plaintiff's Request of Costs and Attorney Fees
Plaintiff additionally requests "Costs and Attorney Fees for adjudicating the . . . Action."

See Dkt. No. 31-2 at 2. Fee shifting is prohibited "in most cases." Chambers v. NASCO, Inc., 501
U.S. 32, 45 (1991) (citation omitted). The Supreme Court has recognized three circumstances in
which fee shifting is appropriate: 1) when a party's "litigation efforts directly benefit[s] others"; 2)
"as a sanction for the 'willful disobedience of a court order'"; and 3) "when a party has 'acted in
bad faith, vexatiously, wantonly, or for oppressive reasons.'" Id. at 45-46 (citations omitted)
(quotations omitted). The third circumstance is met "if a court finds 'that fraud has been practiced
upon it, or that the very temple of justice has been defiled' . . . as when a party 'shows bad faith by
delaying or disrupting the litigation by hampering enforcement of a court order.'" Id. at 46.
Plaintiff has asserted that Defendant did not respond in a timely manner to her motion to
reopen, claiming that Defendant must then pay attorney fees under the second or third
circumstance recognized in Chambers. Defendant did respond to Plaintiff's motion by the date
that this Court had instructed; therefore, Defendant's conduct did not constitute "willful
11

disobedience of a court order," and there is no evidence to support the proposition that he "acted
in bad faith, vexatiously, wantonly, or for oppressive reasons."
Based on the foregoing, the Court denies Plaintiff's request for costs and attorney fees.

IV. CONCLUSION
After carefully reviewing the record in this matter, the parties' submissions and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Plaintiff's motion to reopen is DENIED; and the Court further
ORDERS that Plaintiff's motion for default judgment is DENIED; and the Court further
ORDERS that Plaintiff's request for costs and attorney fees is DENIED; and the Court
further
ORDERS that Plaintiff's motion to amend the caption is DENIED; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: July 1, 2013
Albany, New York

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