Vivar v. 90 Church Street Limited Partnership C/O CT Corporation System et al
Filing
95
OPINION AND ORDER DENYING MOTIONS TO REINSTATE 22 DISMISSED PLAINTIFFS: For the reasons stated, the motion by the 22 plaintiffs for Rule 60(b) relief is denied. The Clerk shall mark the motions identified in the attached schedule as terminated, and assure that the case and files of the plaintiffs are closed. (Signed by Judge Alvin K. Hellerstein on 10/19/2012) (ago)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------------------------- J{
IN RE WORLD TRADE CENTER LOWER
MANHATTAN DISASTER SITE LITIGATION
OPINION AND ORDER
DENYING MOTIONS TO
REINSTATE 22 DISMISSED
PLAINTIFFS
21 MC 102 (AKH)
--------------------------------------------------------------- J(
ALVIN K. HELLERSTEIN, U.S.D.I.:
This consolidated docket is made up of approJ{imately 800 plaintiffs, each
claiming injury because of post-9I11 cleanup work in buildings neighboring the World Trade
Center. ApproJ(imately 175 buildings are involved, including the Verizon building at 140 West
Street (immediately to the North of the World Trade Center), the multi-tenanted buildings of the
World Financial Center (a compleJ( between the World Trade Center and the Hudson River), and
numerous smaller buildings south, east and north of where the towers of the World Trade Center
stood. Plaintiffs have named as defendants the Port Authority of New York and New Jersey, Inc.
(the owner of the World Trade Center and its towers), various WTCP-named corporations that
hold long-term leases to the destroyed towers of the World Trade Center, the owners of the
neighboring buildings in which they worked, and numerous contractors and subcontractors
whom the building owners had engaged to perform the clean-up work. The compleJ(ity of the
discovery process, and the need by all parties and counsel to cooperate and attend to schedules
and deadlines cannot be overstated.
As was the case with the 10,000 plaintiffs (approJ(imately) who had performed the
clean-up work at the site of the World Trade Center and who claimed that they had suffered
injuries from their work, a rigorous core discovery program had been established by court and
counsel, and with the assistance of special masters, to enable these cases to progress. Each
plaintiff had to answer a set of Rule 33 interrogatories "separately and fully under oath," R.
33(b), Fed. R. Civ. P., s....'earing or affrrming that the answers they gave were "true and correct,"
see 28 U.S.C. § 1746. The moving defendants failed to do that, and failed to cure their neglects
despite repeated warnings that their cases would be dismissed in consequence.
The failures and neglects of the moving defendants, and my warnings of
dismissals in consequence, are documented in court orders and transcripts of pre-trial
conferences. The requirement that answers had to be given under oath was stated clearly in my
order of August 29, 20 II, and repeated in my order of September 28, 2011, and in the
conferences and arguments that preceded these orders. I gave plaintiffs until October 31, 20 II to
cure their failures, "but not beyond." October 31 came and went, and plaintiffs still did not cure
their deficient or absent responses. Their counsel pleaded for one more extension, and I gave it,
to November 14,2011, but subject again to dismissal if plaintiffs' counsel failed by November
18, 20 II to show cause why the errdJ1t plaintiffs should not be dismissed. Counsel identified
approximately 170 plaintiffs that were affected by my order and would be subject to involuntary
dismissal. On December 3, 2011, two weeks after the deadline, plaintiffs' counsel sought another
extension for these 170. By my order of December 8, 2011, I denied the motion, and dismissed
the 170 plaintiffs with prejudice.
Defendants then identified another 132 plaintiffs who also had failed to answer
their interrogatories under proper oath or affirmation and, on January 11, 2012, moved to dismiss
them for failure to prosecute their lawsuits. In response to the motion, all but 31 of this group
voluntarily dismissed their lawsuits. I heard oral argument as to the 31 plaintiffs on July 23, 2012
and, on July 25, 2012, ordered their cases dismissed. In response to plaintiffs' counsel's plea, but
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mindful of the needs of the cases before me which had to progress, I provided in the order that
plaintiffs, by August 24,2012, could seek relief from the judgment for one or more of the
reasons set out in Rule 60(b), Fed. R. Civ. P.
The motion now before me, on behalf of22 of this groupl of 31 dismissed
plaintiffs,was filed on August 24,2012. Plaintiffs argue that their failures reflect "excusable
neglect," and that their cases should be re-opened. Plaintiffs' motion is denied.
I.
Plaintiffs' Failure to Show a Ground for Relief from the Final Order
Dismissing Their Cases
The Federal Rules provide that a final judgment or order "may" be re-opened only
for limited reasons. Fed. R. Civ. P. 60. One such ground, the one to which plaintiffs cite, is
"Mistake, inadvertence, surprise, or excusable neglect." Fed. R. Civ. P. 60(bXI). Plaintiffs focus
on "excusable neglect." They explain that they failed to swear or affirm to the truth of their
responses because they were unsure whether to pursue an administrative remedy provided by
Congress, or their court suit, and so they did neither. Now that the deadline to pursue an
administrative remedy has passed, they ask to keep their court case alive. None ofthe 22 makes
mention of any particular injury they allegedly suffered by reason of their work in the post-9/11
period.
The Victims Compensation Fund (VCF), established by Congress in 2001 and
expanded by the James Zadroga 9111 Health and Compensation Act of2010, Pub. L. No. 111
347, 124 Stat. 3623 (2011), provided an administrative path to relief for those injured as a result
ofthe September II terrorist attacks. Participation in the VCF is voluntary and requires that a
party not be a participant in any lawsuit relating to the September II attacks. A party could
submit proof of withdrawal, settlement, or dismissal, of a September 11 suit prior to January 2,
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The 22 dismissed plaintiffs are identified in the sehedule attached to this opinion.
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2012, and remain eligible to participate in the VCF. Participation in the VCF also waives a
party's right to bring a lawsuit related to the September 11 attacks.
It is impossible to understand why plaintiffs' uncertainty over how to proceed
should be deemed "excusable neglect." The orders requiring oaths or affirmations for
interrogatory responses were clear, and the consequence of dismissal for failure to comply also
was clear. Plaintiffs' argument to the contrary is simply belied by the record of status
conferences and pre-trial orders described earlier in this Opinion. An administrative application,
if pursued, also would have required truthful information as to injury suffered and place and date
of work. Plaintiffs may have regarded their injuries, if any, as too slight to bother with or not
covered either by Zadroga or their lawsuit2 , but their change of mind and current wish again to
pursue their lawsuit hardly qualifies as "excusable neglect." None of the plaintiffs' affidavits
sheds light on why they opted not to bother with either their administrative or their judicial
remedy, or why they now change their minds, other than their wish to come back into the
lawsuit.
Plaintiffs argue that they had verified their interrogatory answers, swearing (or
affirming) on information and belief. But an interrogatory is not an allegation or a claim in a
complaint; it is an evidentiary response to a question, and must be sworn (or affirmed) as true. 28
U.S.C. § 1786. My court orders clearly ordered that plaintiffs provide proper oaths or
affirmations attached or specifically referring to their interrogatory answers. If they had not done
so, plaintiffs were ordered to cure their defective responses by given dates jfthey wished to
remain in the lawsuits, and plaintiffs were told that their lawsuits would be dismissed if they
'Many cancers were not covered in the settlements ofthe 10,000 lawsuits in the 21 MC 100 consolidated cases
involving clean-up work at the World Trade Center. Recent news articles describe a certain degree of greater
liberality of coverage under Zadroga. See. e.g., Government Will Fund Care for 50 Types or Cancers Linked to 9/11
Under Zadroga Act, CBS News, Sept. 10,2012. But this is not an excuse that explains why plainliffs' neglects to
swear that answers are true should be considered "excusable neglect."
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failed to cure by those dates. The "Verification" and "Certification" forms submitted along with
plaintiffs' individual motions and signed after the Court's December 2, 2011, deadline do not
help plaintiffs in their claim.
Plaintiffs argue, as to thirteen plaintiffs, that they did submit Certification forms
sworn to as true prior to December 2, 2011: Joseph Eramo, 06 Civ. 14632; James Higgins, 07
Civ. 5395; Charles Johnson, 07 Civ. 5558; Egerton Kelly, 06 Civ. 13971; Guy Tedaldi, 07 Civ.
5430; Jerome Tucker, 07 Civ. 5323; Mark Vanbelle, 06 Civ. 11281; Thomas Vario, 05 Civ.
1347; Anthony Alloggio, 07 Civ. 4240; John Colucci, 07 Civ. 1485; Beatriz Conception, 07 Civ.
1594; Luis Vivar, 07 Civ. 4523; Maria Hernandez, 08 Civ. 5156. The motion to reinstate is
denied as to these plaintiffs as well, for their answers were not attached to, and did not
specifically refer to, their interrogatory answers. An oath that all discovery is true is without
meaning for it cannot be effectively challenged as to any specific response. Like a blank check,
the signature can mean anything or nothing.
The ground of "excusable neglect" requires the defaulted party to show that his
dismissed action has merit. "Generally, courts require that the evidence in support of the motion
to vacate a final judgment 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." Kotlicky v. United States
Fidelity Guar. Co., 817 F .2d 6, 9 (2d Cir. 1987) (internal citations omitted). "The Second Circuit
has instructed that Rule 60(b) provides 'extraordinary judicial relief that may be granted 'only
upon a showing of exceptional circumstances.'" Harrison v. N.Y. City Admin. For Children's
Servs., 2005 WL 2033378 at *1 (S.D.N.Y. Aug. 23, 2005) (quoting Nemaizer v. Baker, 793 F.2d
58,61 (2d Cir. 1986». None of the plaintiffs makes such a showing.
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II.
Reinstatement of the 22 Plaintiffs Would be Unjust to the Many Cases that
Previously were Dismissed and to tbe Onward Progress of tbe Cases in
Active Discovery
Scores of plaintiffs were previously dismissed, or voluntarily dismissed their
cases, for failures to prosecute. None has appealed. The conduct of the 22 plaintiffs in this
motion is the same as in all the other dismissed cases. Justice requires consistency. It would be
unjust to favor these 22 cases when so many others, similarly situated, were dismissed.
The purpose of the core discovery program was to bring all cases forward
simultaneously, to allow counsel for plaintiffs and defendants, and the court and the special
masters, to work with a common core of knowledge to select sampled cases for intensive
deposition discovery, trials and negotiations of settlements. Truthful and reliable information
was necessary about each plaintiff, about the buildings in which they worked, when and for how
long they worked, the type of work they did, the doctors who treated them, the injuries they
suffered, and their prior medical histories. And each plaintiff had to give this information
consistently, reliably, and under oath, as with all relevant evidence. The information was to be
provided according to strict time schedules so each stage could be completed and become the
reliable basis for the next stage of pre-trial proceedings. Thus, depositions currently are being
held, sometimes several each day, with various chosen plaintiffs, about various chosen buildings,
and as to various chosen defendants, testing and expanding on the information previously
provided at the core diseovery stage. Motions and experts discovery will be entertained at the
conclusion of the depositions and, if cases survive and do not result in settlements, trials will be
scheduled.
The next stage in this case is to set schedules for the completion of fact
depositions, motions, and experts, in the sampled cases. Reinstatement of cases will slow and
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confuse the schedules. Those plaintiffs who experienced serious injuries or illnesses have the
greatest interest in advancing their cases towards trial, and will be prejudiced if the schedules
slow to allow reinstated plaintiffs to catch up and alter the mixes of the samplings of cases that
have taken place.
Plaintiffs argue that the dismissed cases, if they were reinstated, could simply
stand by, along with others, while the sampled cases proceed through depositions. Plaintiffs
forget that the sampling was on the basis of a complete field of information relating to all viable
cases, and that reinstatement of several for catch-up would skew the base of information. In
order for sampling on an intelligent basis to succeed, the field from which the sample was chosen
had to have a secure integrity, without changes or modifications in basic information as time
goes by. No one can tell now if any of the 22 cases (or the scores of similarly situated cases)
would have been chosen for the sample had the core questions been reliably answered.
Furthermore, plaintiffs are wrong to say that there are just nine cases that were chosen for
intensive deposition discovery. The process required the special masters first to select 150 cases.
Of these, plaintiffs, defendants, and the court, would each select 15 cases, thus allowing 45 cases
total to advance through full discovery. Order Amending Summary Order-August 2. 20 II
Conference, Aug. 29, 201 L However, the situation was infinitely more complex. The plaintiffs
whose depositions were taken changed as different buildings were chosen for intensive
depositions. Some workers were chosen for the sample because they worked in numerous
buildings, and some because they worked in one, or a few, buildings; some were chosen who
alleged slight injuries and some because they alleged severe injuries; some because their injuries
showed stronger relation to the toxins that floated into the buildings, and some because their
injuries, often cancers, were more tenuously linked to exposure to the debris. The choices and
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samplings were complex, often intuitive, and the errant plaintiffs should not now be allowed to
skew the substantial progress that has been made in all the viable cases.
III.
Conclusion
For the reasons stated, the motion by the 22 plaintiffs for Rule 60(b) relief is
denied. The Clerk shall mark the motions identified in the attached schedule as terminated, and
assure that the case and files of the plaintiffs are closed.
SO ORDERED.
Dated:
~~~~rn
October 42012
New York: New York
United States District Judge
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!case NumberfIitle
Document #
Filed
Corresponding 21
i Motion Text
1 '
. MC 102 Document # ,
05CVI181 McPartland 153
14411
FIRST MOTION '8124/2012,
Lv~.~S=il~V~~&=el~·n~____-4~______-4,~~____. ______~t~o~~eopenC~e
I
I 05CV1347 Vario v.
61
4426
FIRST MOTION 8/24/2012 i
Silverstein
to Reopen Case
I
i 05CVI678 Lombardi v. ' 20
4408
FIRST MOTION 8/24/2012'
, Silverstein
i
to Reopen Case
1 06CV8756 Daquila v. I 79
4381
i FIRST MOTION
,8/24/2012
• World Trade Center
: to Reopen Case
1
06CVIOS78 Schmidt v. 53
'14414
1 FIRST MOTION ,8/24/2012,
,
'
I ,
1 World Trade Centerto~eopen Case,
,
I-:OO-::6'i:-CV;:;'::::11;';;:2~81;:::V:':-an':::be~1l:':"e-+~33;;-----T44-:-:-=2-=-3-----i·0:;FIRST MOTION 1 8/24/2012 I
I,
v. 1 World Trade
:
to Reopen Case
Center
I
i
, 06CVI2062 Ferraro v. '26
14393
FIRST MOTION 8/24/2012
1 World Trade Center I ·
to Reopen Case
[-;,0""6';;;C';:':V'='13:-::9""7:=1';.;K-';el7-;;;;Cv:':;.7 -'-3;:-;9=-------r-7:-::-=S------+, FIRST MOTION 8/24/2012
ly 1
44 0
I
, World Trade Center
to Reopen Case
06CV 14632 Eramo v. 120
4387
FIRST MOTION 18/24/2012 I
1-1:-,W=::0.:-:rl..:,d"",T-=-ra:.:,:d:.:.e....:C:..:e::;.nt",e:..,f--t-=-______-+-=~--------__+to=Reopen Case
07CVI453 Acevedo v.
79
4369
FIRST MOTION I 812412012 i
Brookfield Financial
to Reopen Case
..
Properties
1 07CV 1485 Coluccl:-'
v-.---1":7::::9----+-:43::-:7=-=5:------+,F=I=R-:::S=T-:-M-=-O::':T=IC::O-=-N:--i--=S-=/2-:4/C::270C:-:12,.-i'1
i ~rookfield Financial
to Reopen Case
LProperties
I OiCVI594 Conception
92
4378
, FIRST MOTION 8/24/2012 1
, v. 80 Lafayette
to Reopen Case
I Associates
, 07CV4240 Alloggio v.
24
4372
• FIRST MOTION 1 8/2412012 i
1 A Russo Wrecking
I to Reopen Case,
'
: 4432
07CV4523 Vivary. 90 .91
,FIRST MOTION 18/24/2012
, Church Street Limited '
to Reopen Case
,
i Partnership
,
107CV5~2~8~5~W~a~lIa-c-e-v.-t~4~8----r4:-::3~S4~-----r.F=I=R~ST~M~O~TI~O~N~r.8~12~4~12~0~12~
, American Express
,
to Reopen Case
i
I
I'
I'
!
!
I
!
,Bank
07CV5323 Tuckerv.
46
,4420
FIRST MOTION S/24/2012
Tribeca North End
'
' to Reopen Case
i
07CV5395 Higgins v.
52
I 4399
FIRST MOTION I 812412012 ,
200 Vesey Street
to Reopen C~e'
I
, 07CV540''''S.o;:F:=-ru:::·rw:':'e-a-'th-e-r-;-i-;;:3-;:-8----i-4-:-;3:-O:9-;:-0-------\-OF~IR=-S=:T'E'M"'O~T=IO:;;N:-:-1"::'18/::::-24-:-/::::-20::-:1:-=2...1·,
' v. 7 World Trade
I
to Reopen Case'
I
.
I ~~
,
I
9
07CV5430 Tedaldi Y. A
Russo Wrecking
07CV5558 Johnson Y.
201 Warren Street
08CV2313 Vasquez Y.
7 World Trade
Company
OSCV5156 Hernandez
Y. 90 Church Street
28
4417
46
4402
64
12
FIRST MOTION
to Reopen Case
FIRST MOTION
to Reopen Case
FIRST MOTION
to Reopen Case
4429
4396
8/24/2012 I
8124/2012
!
812412012 •
FIRST MOTION IS/2412012
to Reopen Case
10
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