McDonough v. Smith, III et al

Filing 142

MEMORANDUM-DECISION AND ORDER granting 131 Motion for Entry of Judgment under Rule 54(b); granting 133 Letter Request: The Court hereby ORDERS that Plaintiff's motion for entry of a final judgment (Dkt. No. 131), joined byDefendant Smith ( Dkt. No. 133), is GRANTED; and the Court further ORDERS that the Clerk of the Court shall enter final judgment as to the dismissal of Plaintiff's claims against Defendant Smith; and the Court furtherORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order on all parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 5/8/2017.(copy mailed to all non-ecf parties) (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
EDWARD G. MCDONOUGH,
Plaintiff,
vs.

1:15-cv-01505
(MAD/DJS)

YOUEL C. SMITH, III, individually and as Special District
Attorney for the County of Rensselaer, New York a/k/a TREY
SMITH; RICHARD J. MCNALLY, JR., individually and as
District Attorney for the County of Rensselaer, New York;
KEVIN B. MCGRATH; JOHN F. BROWN; WILLIAM A.
MCINERNEY; JOHN J. OGDEN; KEVIN F. O'MALLEY;
DANIEL B. BROWN; ANTHONY J. RENNA; ALAN T.
ROBILLARD; THE COUNTY OF RENSSELAER, NEW YORK,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

PREMO LAW FIRM
20 Corporate Woods Boulevard
Albany, New York 12211
Attorneys for Plaintiff

BRIAN D. PREMO, ESQ.

ANDERSON, MOSCHETTI LAW FIRM
26 Century Hill Drive
Suite 206
Latham, New York 12110
Attorneys for Defendant McGrath

PETER J. MOSCHETTI, JR., ESQ.

OFFICE OF JAMES E. LONG
668 Central Avenue
Albany, New York 12206
Attorneys for Defendant McInerney

JAMES E. LONG, ESQ.

ATTORNEY GENERAL OFFICE - ALBANY
The Capitol
Albany, New York 12224
Attorneys for Defendant Ogden

WILLIAM A. SCOTT, AAG.

ANTHONY J. RENNA

102 Sherman Avenue
Troy, New York 12180
Defendant, pro se
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff Edward G. McDonough ("Plaintiff") commenced this action by filing a 174 page,
1220 paragraph complaint on December 18, 2015, asserting three causes of action pursuant to 42
U.S.C. § 1983 ("Section 1983") against eleven named Defendants. See Dkt. No. 1. In a
Memorandum-Decision and Order dated September 30, 2016, the Court dismissed Plaintiff's
claims against Defendants O'Malley, Robillard, McNally, and John and Daniel Brown. See Dkt.
No. 114. The Court dismissed all of Plaintiff's claims against Defendant McInerney except for
Plaintiff's Section 1983 conspiracy to commit malicious prosecution claim. See id. at 51. In a
Memorandum-Decision and Order dated December 30, 2016, the Court dismissed all of Plaintiff's
claims against Defendants Smith and the County of Rensselaer. See Dkt. No. 121 at 39. The
Court dismissed all of Plaintiff's claims against Defendant Ogden except for Plaintiff's Section
1983 conspiracy to commit malicious prosecution claim. See id. at 39.
On January 27, 2017, Plaintiff filed a notice of appeal to the Second Circuit, appealing
only the dismissal of Plaintiff's claims against Defendant Smith. See Dkt. No. 124. On February
17, 2017, Plaintiff filed a motion for entry of a final judgment pursuant to Fed. R. Civ. P. 54(b)
with respect to the dismissal of Plaintiff's claims against Defendant Smith. See Dkt. No. 131.
Defendant Smith joined in Plaintiff's motion for entry of a final judgment. See Dkt. No. 133. On
March 2, 2017, Magistrate Judge Stewart granted Defendant Ogden's request for a stay of
discovery pending the resolution of Plaintiff's appeal. See Dkt. No. 135.
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Currently before the Court is Plaintiff's motion, joined by Defendant Smith, for entry of a
final judgment pursuant to Fed. R. Civ. P. 54(b) with respect to the dismissal of Plaintiff's claims
against Defendant Smith. See Dkt. Nos. 131, 133.
II. BACKGROUND
The Court assumes the parties' familiarity with the factual background of this case, which
has been extensively discussed in the Court's prior rulings.
III. DISCUSSION
"In general, there is a 'historic federal policy against piecemeal appeals.'" Novick v. AXA
Network, LLC, 642 F.3d 304, 310 (2d Cir. 2011) (quoting Curtiss-Wright Corp. v. General
Electric Co., 446 U.S. 1, 8 (1980)) (other quotation omitted). "Thus, in the federal district courts,
the entry of a final judgment is generally appropriate 'only after all claims have been
adjudicated.'" Id. (quoting Harriscom Svenska AB v. Harris Corp., 947 F.2d 627, 629 (2d
Cir.1991)). However, Fed. R. Civ. P. 54(b) provides an exception to this general principle:
When an action presents more than one claim for relief – whether as
a claim, counterclaim, crossclaim, or third-party claim – or when
multiple parties are involved, the court may direct entry of a final
judgment as to one or more, but fewer than all, claims or parties
only if the court expressly determines that there is no just reason for
delay.
Fed. R. Civ. P. 54(b). Accordingly, for there to be a final judgment under Rule 54, "(1) multiple
claims or multiple parties must be present, (2) at least one claim, or the rights and liabilities of at
least one party, must be finally decided within the meaning of 28 U.S.C. § 1291, and (3) the
district court must make 'an express determination that there is no just reason for delay' and
expressly direct the clerk to enter judgment." Ginett v. Computer Task Grp., Inc., 962 F.2d 1085,
1091 (2d Cir. 1992) (emphasis omitted). "The requirement that the district court make an express
determination 'that there is no just reason for delay,' Fed. R. Civ. P. 54(b), means that the court
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must provide a 'reasoned,' even if brief, 'explanation' of its considerations[.]" Novick, 642 F.3d at
310 (citing Harriscom, 947 F.2d at 629).
"To be appropriate, a Rule 54(b) certification must take account of both the policy against
piecemeal appeals and the equities between or among the parties." Id. "It [is] therefore proper
for the District Judge . . . to consider such factors as whether the claims under review [are]
separable from the others remaining to be adjudicated and whether the nature of the claims
already determined [is] such that no appellate court would have to decide the same issues more
than once even if there were subsequent appeals." Curtiss-Wright, 446 U.S. at 8 (footnote
omitted). The Second Circuit has held that "a district court may properly make a finding that
there is 'no just reason for delay' only when 'there exists some danger of hardship or injustice
through delay which would be alleviated by immediate appeal[.]'" Advanced Magnetics, Inc. v.
Bayfront Partners, Inc., 106 F.3d 11, 16 (2d Cir. 1997) (quoting Cullen v. Margiotta, 811 F.2d
698, 711 (2d Cir. 1987)). One example of such hardship or injustice is "where an expensive and
duplicative trial could be avoided if, without delaying prosecution of the surviving claims, a
dismissed claim were reversed in time to be tried with the other claims[.]" Id. (quoting Cullen,
811 F.2d at 711). The Second Circuit has cautioned that "the court's power under Rule 54(b) to
enter a final judgment before an entire case is concluded should be exercised 'sparingly[.]'" Id.
(quoting Cullen, 811 F.2d at 710).
In the present matter, the first two factors for Rule 54(b) certification are easily met.
There are multiple claims and multiple parties present, as Plaintiff alleges distinct fabrication of
evidence and malicious prosecution claims against eleven different Defendants, four of whom
remain in this lawsuit. See Dkt. No. 1 ¶¶ 1209-20. With respect to the second element, "[a] claim
is deemed finally decided '[i]f the decision ends the litigation [of that claim] on the merits and
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leaves nothing for the court to do but execute the judgment entered on that claim.'"
Correspondent Servs. Corp. v. J.V.W. Inv. Ltd., 232 F.R.D. 173, 175 (S.D.N.Y. 2005) (quoting
Ginett, 962 F.2d at 1092) (internal quotation marks omitted). Plaintiff's fabrication of evidence
claim has been dismissed against all Defendants on statute of limitations grounds. See
Newspaper & Mail Deliverers' Union of N.Y. & Vicinity v. United Magazine Co., 829 F. Supp.
561, 565 (E.D.N.Y. 1993) (holding that a dismissal on statute of limitations grounds was final
within the meaning of 28 U.S.C. § 1291). Moreover, Plaintiff's claim for malicious prosecution
has been dismissed against Defendant Smith, and Defendant Smith has been terminated from this
action entirely.
Since the first two factors are present, the Court must consider whether there is no just
reason for delaying the entry of a final judgment. The claims that have been appealed are
Plaintiff's fabrication of evidence and malicious prosecution claims against Defendant Smith.
Plaintiff's fabrication of evidence claim was dismissed on statute of limitations grounds, and
Plaintiff's malicious prosecution claim was dismissed against Defendant Smith on absolute
prosecutorial immunity grounds. Plaintiff's remaining claim to be adjudicated before this Court is
Plaintiff's conspiracy to commit malicious prosecution claim against Defendants McInerney and
Ogden (and against Defendants McGrath and Renna, both of whom have not filed motions to
dismiss). The Court must consider "whether the claims under review [are] separable from the
others remaining to be adjudicated." Curtiss-Wright, 446 U.S. at 8. The Second Circuit has held
that "[o]nly those claims 'inherently inseparable' from or 'inextricably interrelated' to each other
are inappropriate for rule 54(b) certification." Ginett, 962 F.2d at 1096. "Courts 'should avoid
the possibility that the ultimate dispositions of the claims remaining in the district court could
either moot [a] decision on the appealed claim or require [the appellate court] to decide issues
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twice.'" Richardson v. City of N.Y., No. 04 Civ. 05314, 2007 WL 1732424, *1 (S.D.N.Y. June 14,
2007) (quoting Ginett, 962 F.2d at 1095).
Here, although it may appear at first glance that the claims are inherently inseparable, the
Court finds that the claims on appeal are sufficiently separable and unrelated to the claims
remaining to be adjudicated. Plaintiff's remaining conspiracy claims are completely unrelated to
the legal issue regarding whether the statute of limitations has expired on Plaintiff's fabrication of
evidence claim, and there is no risk that the Second Circuit would have to decide this issue again
on a subsequent appeal. Likewise, the issue of whether Defendant Smith is entitled to absolute
prosecutorial immunity is completely unrelated to the remaining claims before this Court, at least
from a legal standpoint, and there is no possibility that the Second Circuit would have to review
this issue twice.1 There is also no possibility that any decision by this Court could render the
issues before the Second Circuit moot. The remaining litigation in this case, namely, the
conspiracy to commit malicious prosecution claim against Defendants Ogden and McInerney
(and two other remaining Defendants), has no bearing whatsoever on the distinct legal issues
surrounding Plaintiff's appeal. If the Second Circuit reverses this Court's decisions, litigation
before this Court would continue in relatively the same manner but with the addition of
Defendant Smith. The Court acknowledges that the dismissed and surviving claims generally
arise from the same underlying facts, which weighs against granting certification, but the legal

Defendants Renna and McGrath still remain in this case and have not filed motions to
dismiss, but there is no possibility that the issue of absolute prosecutorial immunity would arise
as it relates to these Defendants such that the Second Circuit would have to review this issue
twice. The only Defendant who acted as a special prosecutor in Plaintiff's underlying criminal
proceedings was Defendant Smith, and the issue of his immunity will not come up again in this
litigation.
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issues are completely distinct and there is no chance that Plaintiff's appeal could be rendered moot
or that the Second Circuit would have to decide the same issue twice.
The Court also finds that there is a danger of hardship and injustice that could be
prevented by an immediate appeal. As discussed above, one example provided by the Second
Circuit of such a hardship is "where an expensive and duplicative trial could be avoided if,
without delaying prosecution of the surviving claims, a dismissed claim were reversed in time to
be tried with the other claims[.]" Advanced Magnetics, 106 F.3d at 16 (quotation omitted). That
is precisely the situation presented here. To prove the conspiratorial liability of Defendants
Ogden and McInerney, Plaintiff will have to prove the alleged underlying acts of Defendant
Smith. As Plaintiff explains, "[t]hat proof concerns thousands of documents, dozens of witnesses
and prior testimony concerning two (2) grand jury [proceedings] and two (2) jury trials that lasted
for sixteen (16) weeks." Dkt. No. 131-1 at 12. If there is no immediate appeal and the Second
Circuit ultimately reverses this Court's decision dismissing Defendant Smith, the parties would
have to conduct substantially all of the same discovery again and possibly have a duplicative trial.
See Krasner v. Rahfco Funds LP, No. 11 CV 4092, 2013 WL 12114473, *1 (S.D.N.Y. Feb. 20,
2013) ("Not entering judgment in favor of the moving defendants would only delay any potential
appeal by plaintiffs and could result in duplicative litigation if the Court's dismissal of the moving
defendants is ultimately reversed."). The Court also notes that Defendant Smith has joined in
Plaintiff's motion for all of the reasons asserted therein. See Dkt. No. 133.
Accordingly, the Court finds that there is no just reason for delaying the entry of a final
judgment, and Plaintiff's motion is granted.
IV. CONCLUSION

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After carefully reviewing the entire 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 for entry of a final judgment (Dkt. No. 131), joined by
Defendant Smith (Dkt. No. 133), is GRANTED; and the Court further
ORDERS that the Clerk of the Court shall enter final judgment as to the dismissal of
Plaintiff's claims against Defendant Smith; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on all parties in accordance with the Local Rules.

IT IS SO ORDERED.
Dated: May 8, 2017
Albany, New York

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