Miller v. City of Ithaca, New York et al

Filing 583

SUMMARY ORDER - That defendants' 575 motion requesting permission to file a reply is GRANTED and the proposed rely is deemed FILED. That defendants' 573 motion for reconsideration or relief from an order is DENIED. That Miller's 574 application for fees and costs and other relief relevant to Rule 11 is DENIED. Signed by Chief Judge Gary L. Sharpe on 9/29/2014. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
CHRISTOPHER MILLER,
Plaintiff,

3:10-cv-597
(GLS/DEP)

v.
CITY OF ITHACA, NEW YORK et
al.,
Defendants.
________________________________
SUMMARY ORDER
Pending is the motion for reconsideration, or, alternatively, for relief
from an order pursuant to Rule 60 of the Federal Rules of Civil Procedure,
of defendants City of Ithaca, Edward Vallely, John Barber, Pete Tyler, and
Marlon Byrd. (Dkt. No. 573.) In opposition to that motion, plaintiff
Christopher Miller, among other things, seeks a finding by the court that
defendants’ motion is frivolous, requests costs and fees, asks the court to
put defendants on notice that their motion violates Rule 11(b), and seeks
an order directing defendants to show cause why their conduct does not
violate Rule 11(b). (Dkt. No. 574.) For the reasons that follow, defendants’
motion is denied, and Miller’s request is likewise denied.
A.

Reconsideration

Without explaining how it satisfies the strict standard applicable to
motions for reconsideration, see In re C-TC 9th Ave. P’ship v. Norton Co.,
182 B.R. 1, 2-3 (N.D.N.Y. 1995) (“Generally, the court recognizes only
three possible grounds upon which motions for reconsideration may be
granted; they are (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.”), defendants
contend that the combination of the jury’s verdict, Judge McAvoy’s
December 21, 2012 order, and the arbitrator’s decision, show “mixed
motive,” which cannot support liability for retaliation based upon the law as
it existed in the Second Circuit at the time of trial, see, e.g., Matima v. Celli,
228 F.3d 68, 81 (2d Cir. 2000). (Dkt. No. 573, Attach. 1 at 1-3.) According
to defendants, controlling law in this Circuit dictates that the arbitrator’s
ruling “necessitates a judgment in favor of [them]” on the June 1 Notice of
Discipline (NOD) retaliation claim. (Id. at 3.)
The court will not address the merits of these arguments.
Defendants have failed to marry up their assertions with the rule of law
applicable to motions for reconsideration. Indeed, the court’s January 28,
2014 order made clear beyond doubt that defendants’ motion thereby
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resolved was denied because “no authority permits defendants to seek
judgment on the NOD-related claim at this late juncture, and no other
avenue—including a motion under Rule 50, 59, or 60, or one seeking
reconsideration of a prior order—affords them that ability either.” (Dkt. No.
572 at 5-6.) The court did not purport to resolve the legal issues identified
in defendants’ pending motion. And the court’s discussion of University of
Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013),
was only relevant inasmuch as it appeared as though defendants brought it
to the court’s attention for the purpose of demonstrating a change in law, 1
which, as analyzed by the court, could not support relief under Rule
60(b)(6). (Dkt. No. 572 at 10.) Accordingly, defendants’ motion for
reconsideration is denied.
B.

Relief From an Order Under Rule 60
Alternatively, defendants argue that the court should provide relief

pursuant to Rule 60 “to [c]orrect [c]lear [e]rror and to [a]void [m]anifest
[i]njustice” with respect to the NOD-based claim. (Dkt. No. 573, Attach. 1
at 4-5.) Defendants contend that the arbitrator’s decision constitutes: (1)

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Indeed, without any reference to Matima, defendants previously described Nassar as
“dispositive of the primary issue in its Renewed Motion for Summary Judgment.” (Dkt. No. 571
at 1.)

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newly discovered evidence mandating relief under Rule 60(b)(2); and (2)
demonstrates “extraordinary circumstances” justifying relief under Rule
60(b)(6). (Id.) In light of these arguments, defendants “request that the
[c]ourt exercise its authority . . . and enter judgment . . . on the [NOD]
retaliation claim.” (Id. at 5.) Alternatively, defendants seek a new trial. (Id.
at 5 n.2.)
Defendants do not specifically identify the order from which they seek
relief, which, in and of itself, counsels the denial of their motion. Without
knowing which order is challenged, the court is hard-pressed to measure
the timeliness of the motion under Rule 60(b). Regardless, neither of
defendants’ arguments are compelling on the merits either. First, the
arbitrator’s decision is not “newly discovered evidence” in the sense
required by the rule because it was not “of facts that existed at the time of
trial” but that the movant was “justifiably ignorant of . . . despite due
diligence.” United States v. Int’l Bhd. of Teamsters, 247 F.3d 370, 392 (2d
Cir. 2001) (emphasis added) (quoting United States v. Int’l Bhd. of
Teamsters, 179 F.R.D. 444, 447 (S.D.N.Y. 1998)). Indeed, the parties and
court well knew that the arbitrator’s decision was imminent at the time of

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trial, but that decision did not exist until afterward. (Dkt. No. 575, 2 Attach. 2
¶¶ 10-11, 15.) Accordingly, Rule 60(b)(2) is not a viable avenue of relief.
Second, on the Rule 60(b)(6) branch of the motion, defendants have
not demonstrated exceptional circumstances warranting relief. At trial,
defendants did not advance a mixed motive/same decision defense with
respect to the NOD retaliation claim. In their proposed jury instructions,
defendants in essence made a request that but-for causation be charged,
(Dkt. No. 315 at 4 (“In order to establish causation, the [p]laintiff must
produce sufficient evidence from which an inference could be drawn that
the adverse action would not have been taken had the [p]laintiff not
engaged in protected activity.”).) That request was not supported by
Second Circuit law at the time—and it was not even supported by Matima.
Undoubtedly, the standard of causation in the Second Circuit before
Nassar was motivating factor, which was exactly how the trial judge
charged the jury in Matima. See 228 F.3d at 77. The difference between
the present case and Matima is that a mixed motive/same defense charge
was also requested and given there, and the jury affirmatively found that,

2

The court notes that defendants sought permission to file a reply. (Dkt. No. 575.)
That motion is granted, the proposed reply is deemed filed, and was considered by the court.

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despite the plaintiff’s demonstration that his protected activity was a
motivating factor leading to an adverse employment action, the employer
would have taken the same employment action even if the unlawful
retaliatory motive was not present. Id. at 78. In other words, in Matima,
the defendant proved an affirmative defense that defendants here did not
pursue. The court finds no error in Judge McAvoy’s jury charge. In light of
the fact that defendants did not even pursue the mixed motive/same
decision defense as to the NOD-based retaliation claim, the court finds no
exceptional circumstances warranting relief pursuant to Rule 60(b)(6).
C.

Fees and Costs, and Rule 11
While defendants’ motion is without merit, it does not rise to the level

of sanctionable frivolity that Miller intimates. With the admonition that the
court will not tolerate vituperative comportment as between the parties
through the final disposition of this matter, nor will it be abused by requests
to pass upon the same arguments over and over again, Miller’s application
is denied.
Accordingly, it is hereby
ORDERED that defendants’ motion requesting permission to file a
reply (Dkt. No. 575) is GRANTED and the proposed reply is deemed
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FILED; and it is further
ORDERED that defendants’ motion for reconsideration or relief from
an order (Dkt. No. 573) is DENIED; and it is further
ORDERED that Miller’s application for fees and costs and other relief
relevant to Rule 11 (Dkt. No. 574) is DENIED; and it is further
ORDERED that the Clerk provide a copy of this Summary Order to
the parties.
IT IS SO ORDERED.
September 29, 2014
Albany, New York

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