Weilburg v. Rodgers et al
MEMORANDUM-DECISION AND ORDER: It is hereby ORDERED that Plaintiff's motion for summary judgement (Dkt. No. 21 ) is DENIED without prejudice to renewal following completion of discovery. Signed by Chief Judge Brenda K. Sannes on 1/17/2023. (Copy served upon pro se plaintiff via regular mail.) (nmk)
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
DARO C. WEILBURG,
ETHAN C. KOSS, New York State Trooper,
Plaintiff pro se:
Daro C. Weilburg
Munnsville, NY 13409
Attorney General of the State of New York
Brenda T. Baddam
Assistant Attorney General, of Counsel
Albany, NY 12224
Hon. Brenda K. Sannes, Chief United States District Judge:
MEMORANDUM-DECISION AND ORDER
Plaintiff pro se Daro C. Weilburg commenced this action pursuant to 42 U.S.C. § 1983
against Defendant New York State Trooper Ethan C. Koss and others, alleging that he was
falsely arrested for misdemeanor criminal trespass in the second degree in violation of New York
Penal Law § 140.15(1). (Dkt. No. 1). Following initial review of Plaintiff’s complaint under 28
U.S.C. § 1915(e), (Dkt. No. 6), this Court found that Plaintiff’s false arrest claim against
Defendant survived sua sponte review. (See Dkt. No. 6 (Report-Recommendation); Dkt. No. 13
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(order adopting Report-Recommendation in part)). Plaintiff now moves for summary judgment,
(Dkt. No. 21), and Defendant opposes, (Dkt. No. 24). For the following reasons, Plaintiff’s
motion for summary judgment is denied as premature.
STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56(a), summary judgment may be granted only if
all the submissions taken together “show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986).
The moving party bears the initial burden of demonstrating “the absence of a genuine issue of
material fact.” Celotex, 477 U.S. at 323. A fact is “material” if it “might affect the outcome of
the suit under the governing law,” and is genuinely in dispute “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248; see
also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005) (citing Anderson, 477 U.S. at
248). If the moving party meets this burden, the nonmoving party must “set forth specific facts
showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 248, 250; see also Celotex,
477 U.S. at 323–24; Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). “When ruling on a
summary judgment motion, the district court must construe the facts in the light most favorable
to the non-moving party and must resolve all ambiguities and draw all reasonable inferences
against the movant.” Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003).
Plaintiff moves for summary judgment on his false arrest claim, generally arguing that he
did not commit any crime on March 12, 2022 and that Defendant knew this when he arrested
Plaintiff. (Dkt. No. 21). Defendant argues that Plaintiff’s motion must be denied because it fails
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to comply with Local Rule 56.1, is premature as no discovery has been conducted, and fails to
establish that no genuine issue of material fact exists. (See generally Dkt. No. 24).
The Court agrees that Plaintiff’s motion for summary judgment is premature and must
therefore be denied. Summary judgment is a “drastic device” and “‘should not be granted when
there are major factual contentions in dispute,” “particularly . . . when, as here, one party has yet
to exercise its opportunities for pretrial discovery.’” Ass’n of Car Wash Owners Inc. v. City of
New York, 911 F.3d 74, 83 (2d Cir. 2018) (quoting Nat’l Life Ins. Co. v. Solomon, 529 F.2d 59,
61 (2d Cir. 1975)). A district court should only grant summary judgement “‘[i]f after discovery,
the nonmoving party has failed to make a sufficient showing on an essential element of [its] case
with respect to which [it] has the burden of proof.’” Hellstrom v. U.S. Dep’t of Veteran Affs., 201
F.3d 94, 97 (2d Cir. 2000) (quoting Berger v. United States, 87 F.3d 60, 65 (2d Cir. 1996));
Trebor Sportswear Co. v. The Ltd. Stores, Inc., 865 F.2d 506, 511 (2d Cir.1989) (“The
nonmoving party must have had the opportunity to discover information that is essential to his
opposition to the motion for summary judgment.” (citation and internal quotation marks
omitted)). “Only in the rarest of cases may summary judgement be granted against a [party] who
has not been afforded the opportunity to conduct discovery.” Hellstrom, 201 F.3d at 97; see also
United States v. E. River Hous. Corp., 90 F. Supp. 3d 118, 139 n.21 (S.D.N.Y. 2015) (noting that
“courts disfavor summary judgment motions made prior to the completion of discovery”).
As Defendant notes, “[i]t is undisputed that no discovery ha[d] been conducted in this
action” prior to Defendant’s deadline to respond to Plaintiff’s motion for summary judgment.
(Dkt. No. 24, at 8). By order dated August 22, 2022, an initial conference was scheduled for
November 22, 2022 and mandatory disclosures and the civil case management plan were to be
completed by November 15, 2022. (Dkt. No. 16). Plaintiff did not appear at the initial pretrial
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conference held on November 22, at which time discovery deadlines were set between December
9, 2022 and May 10, 2023. (Text Minute Entry dated Nov. 22, 2022; Dkt. No. 26). Moreover,
Plaintiff has not presented any argument for “why this is one of the ‘rarest of cases’ where
summary judgement may be granted against a [party] who has not been afforded the opportunity
to conduct discovery.” King v. Wenderlich, No. 14-cv-6491, 2016 WL 4678998, at *2, 2016 U.S.
Dist. LEXIS 120813, at *6 (W.D.N.Y. Sept. 7, 2016) (quoting Hellstrom, 201 F.3d at 97). Thus,
because Plaintiff’s motion was filed and briefed before the parties engaged in any discovery, the
Court finds that Plaintiff’s motion for summary judgement is premature. See Crystalline H2O,
Inc. v. Orminski, 105 F. Supp. 2d 3, 8 (N.D.N.Y. 2000) (collecting Second Circuit cases denying
summary judgment motions as premature where there was not “a fully adequate opportunity for
discovery at the time the moving party sought summary judgment” (internal citation omitted)).
The Court also notes that Plaintiff’s motion, in addition to being premature, does not
comply with Local Rule 56.1, which requires a party moving for summary judgment to submit a
“Statement of Material Facts.” N.D.N.Y. L.R. 56.1(a) (formerly N.D.N.Y. L.R. 7.1(a)(3)). The
Statement of Material Facts
shall set forth, in numbered paragraphs, a short and concise
statement of each material fact about which the moving party
contends there exists no genuine issue. Each fact listed shall set forth
a specific citation to the record where the fact is established. The
record for purposes of the Statement of Material Facts includes the
pleadings, depositions, answers to interrogatories, admissions and
affidavits. It does not, however, include attorney’s affidavits.
Id. Additionally, “[f]ailure of the moving party to submit an accurate and complete
Statement of Material Facts shall result in a denial of the motion.” Id. Plaintiff has failed
to comply with Local Rule 56.1, as his motion for summary judgment does not contain a
Statement of Material Facts or cite to specific portions of the record which establish his
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factual assertions. (See Dkt. No. 21). This failure constitutes an independent basis on
which the Court could deny Plaintiff’s motion. Although Plaintiff is a pro se litigant and
the Court will “make reasonable allowances to protect [him] from inadvertent forfeiture
of important rights because of [his] lack of legal training,” Caidor v. Onondaga County,
517 F.3d 601, 605 (2d Cir. 2008) (citation omitted), his pro se status does not relieve him
of the “requirement to follow the procedural formalities of Local Rule [56.1(a)],” McZorn
v. Endicott Police Dep’t, No. 06-cv-33, 2008 WL 163581, at *2, 2008 U.S. Dist. LEXIS
3513, at *6 (N.D.N.Y. Jan. 16, 2008). Plaintiff is advised that, going forward, his
submissions must comply with the Federal Rules of Civil Procedure and the Local Rules.
Accordingly, the Court denies Plaintiff’s motion for summary judgment as premature and
does not reach Defendant’s remaining arguments for denial. Plaintiff’s motion is denied without
prejudice to his filing a new motion for summary judgment after discovery has been completed. 1
Plaintiff also filed a letter dated November 11, 2022, in which he requests that he be appointed counsel. (Dkt. No.
25). Plaintiff argues that he “does not have access to a law library in which to research” and that appointment of
counsel will “even the playing field” between the parties. (Id.). While there is no right to appointment of counsel in
civil matters, Burgos v. Hopkins, 14 F.3d 787, 789 (2d Cir. 1994), a court may request an attorney to represent any
person “unable to afford counsel.” 28 U.S.C. § 1915(e)(1). In deciding whether to appoint counsel, the court should
first determine whether the indigent’s position seems likely to be of substance. If the claim meets this threshold
requirement, the court should then consider a number of other factors in making its determination. Terminate Control
Corp. v. Horowitz, 28 F.3d 1335, 1341 (2d Cir. 1994) (citation omitted). Among these are
[t]he indigent’s ability to investigate the crucial facts, whether conflicting evidence implicating the
need for cross-examination will be the major proof presented to the fact finder, the indigent’s ability
to present the case, the complexity of the legal issues, and any special reason . . . why appointment
of counsel would be more likely to lead to a just determination.
Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986). None of these factors is controlling, however, and each case
should be decided on its own facts. Id.
Here, this action is still in the early stages and, without any evidence before the Court, the Court is unable to assess
the threshold requirement of likely merit. See Harmon v. Runyon, No. 96-cv-6080, 1997 WL 118379, at *1, 1997 U.S.
Dist. LEXIS 2849, at *2–3 (S.D.N.Y. Mar. 17, 1997). Even if the Court were to assume that the case may be of
substance, the dispute appears to be limited to whether Defendant violated Plaintiff’s Fourth Amendment rights by
subjecting him to false arrest, which is not an overly complex issue. Further, if this case survives a dispositive motion
by Defendant, it is highly probable that the Court will appoint counsel for trial. The Court is not aware of any special
reason why appointment of counsel at this time would be more likely to lead to a just determination of this litigation.
The Court therefore denies Plaintiff’s request for appointment of counsel, without prejudice to renewal at some future
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For these reasons, it is hereby
ORDERED that Plaintiff’s motion for summary judgement (Dkt. No. 21) is DENIED
without prejudice to renewal following completion of discovery.
IT IS SO ORDERED.
Dated: January 17, 2023
Syracuse, New York
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