Ferran et al v. City of Albany et al

Filing 151

SUMMARY ORDER - That M. Ferran's motions (1) to substitute pursuant to Fed. R. Civ. P. 17(a); (2) to vacate judgment pursuant to Fed. R. Civ. P. 60(b); (3) to make additional findings to amend judgment pursuant to Fed. R. Civ. P. 52(b); (4) to a lter or amend judgment pursuant to Fed. R. Civ. P. 59(e); and (5) for an extension of time to file a notice of appeal pursuant to Fed. R. App. P. 4(a)(5), (Dkt. No. 147), are DENIED. That City defendants' request for attorneys' fees and costs, (Dkt. No. 150), is DENIED. Signed by Senior Judge Gary L. Sharpe on 7/29/2020. (Copy served via regular and certified mail)(jel, )

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
MARK R. FERRAN et al.,
Plaintiffs,

1:14-cv-1362
(GLS/ATB)

v.
CITY OF ALBANY et al.,
Defendants.
________________________________
SUMMARY ORDER
Plaintiffs pro se, mother and son, Nadia Ferran (hereinafter “N.
Ferran”) and Mark R. Ferran (hereinafter “M. Ferran”) commenced this
action against forty-eight defendants, alleging over forty claims pursuant to
federal and New York state law. (Am. Compl., Dkt. No. 12.) On December
20, 2016, the court issued a Memorandum-Decision and Order (hereinafter
“the December 2016 Order”), dismissing certain claims and terminating
certain defendants, leaving the City of Albany, Hon. Gerald D. Jennings,
Joseph J. Toomey, Loren LaJoy, Vincent Dibiase, Valerie Y. Scott, John J.
Reilly, and Bradford Burns (collectively, “City defendants”), as well as the
Chazen Companies, Joseph Lanaro, and Felicia Russell (collectively,
“Chazen defendants”) as the only remaining defendants. (See generally

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Dkt. No. 73.) The following claims remained: (1) a conspiracy claim
pursuant to 42 U.S.C. § 1983 against all defendants; (2) a Fourteenth
Amendment procedural due process claim against City defendants; and
(3) a conversion claim pursuant to New York state law against City
defendants. (Id.)
Discovery was completed over the course of nearly two years. (Dkt.
Nos. 96, 138.) Defendants then moved for summary judgment. (Dkt.
Nos. 139-40.) Despite being provided with notice of the consequences of
failing to respond to these motions,1 (Dkt. No. 141), and despite a
forty-five-day extension of time to do so, (Dkt. Nos. 142-43), plaintiffs did
not file a response to either motion. On December 5, 2019, the court
issued a Memorandum-Decision and Order (hereinafter “the December
2019 Order”), granting defendants’ unopposed motions for summary
judgment, dismissing plaintiffs’ complaint, and directing the clerk to close
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The court’s notice specified, among other things, that (1) “[i]f
[plaintiffs’ did] not submit a proper response to the defendants’ statement
of material facts, the Court may deem [them] to have admitted the
defendants’ factual statements,” (2) “[i]f [they did] not submit copies of
record evidence in support of [their] denials, the Court may deem
defendants’ factual statements to be true,” and (3) “[i]f [they did] not
submit a proper response memorandum of law, the Court may deem
[them] to have conceded the defendants’ arguments.” (Dkt. No. 141,
Attach. 1.)
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the case. (Dkt. No. 144.)
On January 6, 2020, M. Ferran filed the following motions: (1) motion
to substitute pursuant to Fed. R. Civ. P. 17(a); (2) motion to vacate
judgment pursuant to Fed. R. Civ. P. 60(b); (3) motion to make additional
findings and amend judgment pursuant to Fed. R. Civ. P. 52(b); (4) motion
to alter or amend judgment pursuant to Fed. R. Civ. P. 59(e); and
(5) motion for an extension of time to file a notice of appeal pursuant to
Fed. R. App. P. 4(a)(5), which are all currently pending before the court.
(Dkt. No. 147.) Also pending is City defendants’ request for attorneys’ fees
and costs pursuant to Fed. R. Civ. P. 54(d). (Dkt. No. 150 at 6.)
For the following reasons, all motions are denied.
A.

Motions to Amend Judgment
M. Ferran moves the court to make additional findings and amend

its judgment pursuant to Fed. R. Civ. P. 52(b), and to amend or alter its
judgment pursuant to Fed. R. Civ. P. 59(e). (Dkt. No. 147.) It is unclear
from M. Ferran’s submissions whether these motions are made as to the
December 2016 Order or the December 2019 Order, but, in any case, the
motions are untimely.
Motions filed pursuant to Rules 52(b) or 59(e) must be filed no later
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than twenty-eight days after the entry of judgment. Fed. R. Civ. P. 52(b),
59(e). “These time limits may not be enlarged by the district court.”
Dotson v. City of Syracuse, 549 F. App’x 6, 7 (2d Cir. 2013) (citing Fed. R.
Civ. P. 6(b)(2) (“A court must not extend the time to act under Rules 50(b)
and (d), 52(b), 59(b), (d), and (e), and 60(b).”)). Because M. Ferran’s
motions were filed more than three years after the December 2016 Order
and thirty-two days after the December 2019 Order, the motions are
denied as untimely.
B.

Motion to Vacate Judgment
M. Ferran moves to vacate the December 2016 Order and the

December 2019 Order pursuant to Fed. R. Civ. P. 60(b). (Dkt. No. 147.)
Rule 60(b) sets forth six grounds upon which relief from a judgment or
order may be granted:
(1) mistake, inadvertence, surprise, or excusable
neglect; (2) newly discovered evidence . . . ; (3) fraud
(whether previously called intrinsic or extrinsic),
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 judgment is void under Rule 60(b)(4) . . . only if
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the court that rendered it lacked jurisdiction of the subject matter, or of the
parties, or if it acted in a manner inconsistent with due process of law.”
Grace v. Bank Leumi Trust Co. of N.Y., 443 F.3d 180, 193 (2d Cir. 2006)
(internal quotation marks and citations omitted). “A judgment is not
void . . . simply because it is or may have been erroneous.” United
Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 270 (2010) (internal
quotation marks and citations omitted).
Rule 60(b) “provides extraordinary judicial relief which should be
granted only upon a showing of exceptional circumstances. It may not be
used as a substitute for an appeal, and a claim based on legal error alone
is inadequate.” Mosquera v. Graham, No. 9:19-CV-0442, 2020 WL
1923237, at *1 (N.D.N.Y. Apr. 21, 2020) (internal quotation marks and
citations omitted). And courts generally “require that the evidence in
support of [a Rule 60(b)] motion . . . be highly convincing, that a party
show good cause for the failure to act sooner, and that no undue hardship
be imposed on other parties.” Id. (internal quotation marks and citation
omitted). “The decision whether to afford relief rests with the sound
discretion of the district court.” Id. (internal quotation marks and citation
omitted).
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Here, assuming that M. Ferran’s Rule 60(b) motion is timely as to
both orders, his motion fails to satisfy the Rule’s basic requirements. As
to the December 2019 Order, M. Ferran has strong opinions about the
findings and decisions made therein, but he does not seem to fully grasp
the fact that he did not respond to defendants’ motions for summary
judgment; despite a forty-five-day extension, being provided with notice of
the consequences of failing to respond, and the court waiting nine months
to render a decision. Without such response, the court properly deemed
all factually-supported submissions by defendants as true, and deemed all
of defendants’ arguments as conceded by plaintiffs, see N.D.N.Y.
L.R. 7.1(b)(3), as the court said it would do, (Dkt. No. 141, Attach. 1).
M. Ferran cannot now use Rule 60(b) as a vehicle to advance an eightmonth belated response to the motions for summary judgment.
Further, as to M. Ferran’s motion with regard to the December 2016
Order, the court has determined that all of the arguments made therein
are an attempt to improperly re-litigate issues already decided. See
Reddy v. Catone, No. 5:13-cv-00707, 2016 WL 6471226, at *3 (N.D.N.Y.
Nov. 1, 2016) (“Motions to vacate . . . should not be granted if a moving
party seeks only to relitigate an issue that has already been fully
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considered by the court.” (citation omitted)). The court will not now
entertain M. Ferran’s arguments for a second or third time.
In sum, having thoroughly reviewed M. Ferran’s arguments in
support of his motion to vacate, the court finds no basis upon which the
court would vacate the December 2016 Order or the December 2019
Order. Accordingly, the motion to vacate the judgments rendered in those
orders is denied.
C.

Motion to Substitute M. Ferran for N. Ferran
M. Ferran moves to substitute himself for N. Ferran pursuant to Fed.

Civ. P. 17(a). (Dkt. No. 147.) M. Ferran argues that substitution is
necessary because N. Ferran is elderly, sick, and “going blind and deaf.”
(Dkt. No. 147, Attach. 1 at 22.) “A Rule 17(a) substitution of plaintiffs
should be liberally allowed when the change is merely formal and in no
way alters the original complaint’s factual allegations as to the events or
the participants.” Dennis v. JPMorgan Chase & Co., 342 F. Supp. 3d 404,
416 (S.D.N.Y. 2018) (citation omitted). However, the motion “should be
denied if it is being proposed in bad faith or in an effort to deceive or
prejudice the defendants.” Id. at 416-17 (internal quotation marks and
citation omitted). Further, “[a] district court may deny a Rule 17(a) motion
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as untimely if it is not filed within a reasonable time after a standing
objection is raised.” Nat’l Credit Union Admin. Bd. v. U.S. Bank Nat’l
Ass’n, 898 F.3d 243, 256 (2d Cir. 2018) (internal quotation marks and
citation omitted).
The court agrees with City defendants, (Dkt. No. 150 at 2-6), that
this motion is a roundabout way of re-litigating the standing and
assignment issues, which were already litigated and decided more than
three years ago in a previous state action, in the December 2016 Order,
and in a subsequent order on plaintiffs’ motion for reconsideration, (Dkt.
No. 101). Consequently, the motion is made in bad faith and a grant of
that motion would prejudice defendants, for the same reasons explained
in City defendants’ opposition brief, (Dkt. No. 150 at 2-6), all of which the
court adopts without rehashing them here.
Further, this motion, which was filed one month after the court
directed the clerk to close the case, and several years after the standing
and assignment issues were first litigated, was not filed in a reasonable
time. See Nat’l Credit Union Admin. Bd., 898 F.3d at 256. Moreover, as
Chazen defendants argue, (Dkt. No. 149, Attach. 2 at 4), there is no case
for M. Ferran to substitute into, as the final judgment dismissing the
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complaint and closing the case, (Dkt. No. 144), will not be vacated or
amended, (see supra Parts A, B), and an extension of time to file a notice
of appeal is not granted, (see infra Part D).
Accordingly, M. Ferran’s motion to substitute is denied.
D.

Motion for an Extension of Time to Appeal
M. Ferran moves for an extension of time to file a notice of appeal

pursuant to Fed. R. App. P. 4(a)(5). (Dkt. No. 147.) Rule 4(a)(5) requires
the moving party to show “excusable neglect or good cause.” Fed. R.
App. P. 4(a)(5)(A)(ii). Having reviewed the entirety of M. Ferran’s
submissions, the court finds that there has been no showing of good
cause or excusable neglect for failing to timely file a notice of appeal.
Indeed, it is difficult to believe that such good cause or excusable neglect
could be shown, as M. Ferran filed forty-two and ninety-paged affidavits
just two days after the notice was due. (Dkt. No. 147, Attachs. 1-2.) In
other words, instead of filing the pending motions, M. Ferran could have
just as easily filed a notice of appeal. Accordingly, M. Ferran’s motion for
an extension of time to file a notice of appeal pursuant to Fed. R. App. P.
4(a)(5) is denied.
E.

Attorneys’ Fees and Costs
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In response to M. Ferran’s motions, City defendants request
attorneys’ fees and costs be imposed on M. Ferran “for the time and
expense [they] were forced to waste in defending a baseless motion which
[he] knew or should have known had no chance of success.” (Dkt.
No. 150 at 6.) “[T]he decision whether to award [fees and] costs
ultimately lies within the sound discretion of the district court.” Rizzo v.
Applied Materials, Inc., No. 6:15-cv-557, 2019 WL 311614, at *1 (N.D.N.Y.
Jan. 24, 2019) (quoting Marx v. General Revenue Corp., 568 U.S. 371,
377 (2013)). Although M. Ferran’s motions are arguably frivolous, and the
court is mindful that defendants have had to re-litigate the same issues
repeatedly over the course of this litigation, the court, in an exercise of its
discretion, declines to impose any sanctions on him at this time.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that M. Ferran’s motions (1) to substitute pursuant to
Fed. R. Civ. P. 17(a); (2) to vacate judgment pursuant to Fed. R. Civ. P.
60(b); (3) to make additional findings and amend judgment pursuant to
Fed. R. Civ. P. 52(b); (4) to alter or amend judgment pursuant to Fed. R.
Civ. P. 59(e); and (5) for an extension of time to file a notice of appeal
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pursuant to Fed. R. App. P. 4(a)(5), (Dkt. No. 147), are DENIED; and it is
further
ORDERED that City defendants’ request for attorneys’ fees and
costs, (Dkt. No. 150), is DENIED; and it is further
ORDERED that the Clerk provide a copy of this Summary Order to
the parties.
IT IS SO ORDERED.
July 29, 2020
Albany, New York

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