Schoolcraft v. The City Of New York et al

Filing 181

MEMORANDUM OF LAW in Support. Document filed by Adrian Schoolcraft. (Attachments: # 1 Exhibit Village Voice Article, # 2 Exhibit Trial Testimony)(Smith, Nathaniel)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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ADRIAN SCHOOLCRAFT,

10-cv-6005 (RWS)
Plaintiff,

MEMORANDUM OF
LAW

-againstTHE CITY OF NEW YORK, et al.,
Defendants.
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PRELIMINARY STATEMENT
Plaintiff, Police Officer Adrian Schoolcraft, submits this memorandum of
law in support of his motion to strike scandalous, inflammatory and immaterial
allegations of racist comments falsely attributed to Officer Schoolcraft that were
maliciously inserted without any legitimate purpose into the proposed
counterclaims filed by Defendant Steven Mauriello (Docket # 174-1). Not only are
the comments false, inflammatory and irrelevant to the claims being assert by
Defendant Mauriello but they were designed to be – and have already been –
reprinted and circulated on the internet. (See Exhibit A at p. 2.) The motion to
strike should be granted, and the Court should admonish Defendant Mauriello and
his counsel for violating the Court’s prior order that that the case should not be
tried in the media.

In addition, Officer Schoolcraft submits this memorandum of law to set forth
his position on the following matters that are on the Court’s calendar for October
16, 2013: (1) Defendant Mauriello’s motion to amend his answer to assert
counterclaims against Officer Schoolcraft; (2) the City Defendants’ motion to lift
the injunction on the NYPD administrative trial of Officer Schoolcraft; (3) the
scope of the attorney’s-eyes-only Confidentiality Order; and (4) the return of
Officer Schoolcraft’s personal property.
ARGUMENT
The Cross-Motion to Strike
Defendant Mauriello has filed a motion to amend his answer to assert
counterclaims against Officer Schoolcraft. The two proposed counterclaims are for
tortious interference with prospective economic advantage and for prima facie tort.
Both counterclaims arise from the allegation that Officer Schoolcraft made false
and defamatory statements to NYPD investigators about the ongoing practice of
downgrading reports of serious crimes at the 81st Precinct, which was run by
Defendant Mauriello. According to the alleged counterclaims, Officer Schoolcraft
made defamatory statements to internal NYPD investigators as part of a scheme
the “sole purpose” of which was to exact revenge against Mauriello and to damage
his reputation within the NYPD.
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In paragraph six of the proposed counterclaims (Docket No. 174-1 at p. 14)
Mauriello also alleges that Officer Schoolcraft made a statement to his father to the
effect that he did not want to work with “any n_ _ _ _ __” [ a particularly offensive
and racist comment] and that he made false statements to NYPD investigators
about his concern for predominantly minority community served by the 81st
Precinct. (Id.)

While these are utterly false and scurrilous allegations, they are

also totally irrelevant to the claims being asserted by Mauriello and were inserted
into the proposed pleading for the purpose of generating negative publicity and
media coverage in an effort to taint Officer Schoolcraft as a racist. Accordingly,
we request that the Court enter an order striking paragraph six of the proposed
pleading.
Rule 12(f) of the Federal Rules of Civil Procedure gives the Court the power
to strike from a pleading “any redundant, immaterial impertinent, or scandalous
matter.” Fed. R. Civ. Pro 12(f). While motions under Rule 12(f) are not favored,
materials will be stricken if they “serve no purpose except to inflame the reader.”
Shahzad v. H. J. Meyers & Co., 1997 U.S. Lexis 1128 at *40 (S.D.N.Y. Feb. 4,
1997) (Batts, J.). In addition, a motion to strike “may be granted where the
allegations challenged have no real bearing on the subject matter or are likely to
prejudice the movant.” Id. Thus, the Court may strike matter from a pleading “if
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it is likely to be immaterial or its effect would be prejudicial.” Lenihan v. B & E
Rock Corp., 1997 U.S. Dist. Lexis 12259 at 1 (S.D.N.Y. Jan. 16, 1997)
(Scheindlin, J.).
Inflammatory materials, like the ones at issue here, that are placed in a
pleading for no legitimate reason are properly stricken. See, e.g., Morse v.
Weingarten, 777 F. Supp. 312, 319 (S.D.N.Y. 1991) (Lasker, J.) (allegations
regarding Michael Milken’s criminal conviction and income level stricken because
neither allegation bore remotely on the allegations in a securities fraud class action
and the allegations serve no purpose except to inflame); Roberto’s Fruit Market,
Inc. v. Schaffer, 13 F. Supp. 2d 390, 396 (E.D.N.Y. 1998) (Spatt, J.) (allegations in
RICO action of ties to organized crime, ongoing federal investigations and
criminal conduct which could not be predicate acts under RICO were stricken
because “even assuming such allegations were true, they are interesting side issues
which bear no relation to a RICO claim.”)
Accordingly, paragraph six of the Mauriello pleading should be stricken.
The Motion to Amend Should Be Denied.
Over three years ago, on August 10, 2010, Officer Schoolcraft commenced
this action, naming Mauriello and others as defendants. (Dkt. # 1.) Mauriello and
the other NYPD Defendants filed their answer on December 2, 2010. (Dkt. #. 54.)
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Over the past three years, the parties have engaged in extensive motion practice,
thousands of documents have been exchanged, the plaintiff has been deposed for
three full days of testimony, inspections of the 81st Precinct and Jamaica Hospital
have been conducted, and the depositions of the defendants have begun.
After all this time and litigation, Mauriello asks this Court for leave to assert
two counterclaims against Officer Schoolcraft for tortious interference with
prospective economic advantage and prima facie tort. The motion should be
denied for several reasons: first, Mauriello delayed for over three years in
asserting these claims; second, the claims are barred by the statute of limitations
and do not relate back to the time of the commencement of this action; third, the
claims are meritless, fail to state a plausible claim for relief, and his claims for
damages are belied by Mauriello’s recent testimony in the recent stop-and-frisk
trial where he testified that after Officer Schoolcraft made his allegedly defamatory
statements to NYPD investigators he was rewarded by a transfer by his supervisor
to a position as the executive officer of a larger department within the NYPD. (See
Exhibit B at p. 1831.)
A motion to amend a pleading is addressed to the sound discretion of the
trial court and considerations of undue delay, bad faith, and prejudice to the
opposing party are the touchstones of a trial court’s discretionary authority to deny
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leave to amend.

Krumme v. Westpoint Stevens, Inc., 143 F. 3d 71, 88 (2d Cir.

1998). One of the most important considerations in determining whether to permit
an amendment is whether the amendment would delay the final disposition of the
action. Id.
Mauriello’s proposed amendment will require an additional round (or two)
of document discovery on Mauriello and on the specifics of the extensive
downgrading at the 81st Precinct involving thousands of misreported or unreported
crimes. The amended will also require the deposition of several other senior
NYPD superiors relating to the alleged damage to Mauriello’s reputation. Thus,
the claims will undoubtedly delay the final resolution of this action, which is
already over three years old. Under these circumstances, the Court should deny the
motion. See, e.g., Continental Bank, NA v Mayer, 10 F. 3d 1293 (7th Cir. 1993)
(district court did not abuse its discretion in refusing to allow defendant to amend
answer to add counterclaims where the defendant waited more than two years and
the amendment would require additional discovery); THK Am. v. NSK, 157 F. R.
D. 660 (N.D. Ill. 1994) (defendant’s motion to amend answer to assert
counterclaims denied where the defendant waited two years and discovery would
have to be reopened).
The proposed counterclaims are also barred by both the three-year
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limitations period for tort claims and the one-year limitation period for defamation.
CPLR §§ 214 & 215 (3); see also Besicorp Ltd. v. Kahn, 290 A.D.2d 147, 736
N.Y.S. 2d 708, 711-712 (3d Dept. 2002) (three-year period applies to tortious
interference claim and one-year period applies to claims for damage to reputation).
Indeed, since the gravamen of Mauriello’s claim is for alleged damages to his
reputation, he cannot circumvent the one-year limitation period by labeling the
claims as a tort. Entertainment Partners Group v. Davis, 198 A.D. 2d 63, 603
N.Y.S. 2d 439 (1st Dept. 1993).
Nor can Mauriello take advantage of the relation-back doctrine. Rule 15(c)
permits relation-back where the amendment arose of out the conduct, transaction
or occurrence set out in the original pleading. FRCP 15(c)(1)(B). Yet here
Mauriello fails to point to anything in his original answer that in any way related to
the claims he now seeks to interject into this case. Although Officer Schoolcraft’s
pleadings set forth Officer Schoolcraft’s his actions in reporting misconduct and
corruption to NYPD investigators, there is nothing in Mauriello’s original answer
that sets out any allegation from which his proposed counterclaims arise and
nothing in that answer provides Officer Schoolcraft with notice, directly or
indirectly, of the possibility or potential that Mauriello would or could assert a
claim for damages to his reputation.
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Although Mauriello makes a cryptic reference to CPLR § 203(f), he fails to
explain how that procedural section of New York law could be properly applied in
this Court. In re Mission Contr. Lit., 2013 U.S. Dist. Lexis 124926 at *45 n. 16
(S.D.N.Y. 2013) (“The standard for evaluating whether a proposed amendment
relates back is a procedural question and is therefore governed by federal law”).
Moreover, even if that provision of New York procedural law did apply here, the
there is nothing in the allegations of Mauriello’s original answer, as noted above,
that sets out any allegation from which his proposed counterclaims arise.
Finally, the proposed counterclaims against Officer Schoolcraft are
exceedingly weak on their face for two key reasons. First, Officer Schoolcraft, as a
sworn public officer, was reporting corruption and misconduct to NYPD
investigators, and Mauriello fails to plead facts that set forth a plausible claim that
the “sole” reason for Officer Schoolcraft’s action was malice against Mauriello.
Compare Raedle v. Credit Agricole Indosuez, 670 F. 3d 411, 417 (2d Cir. 2012)
(providing negative job reference does not constitute tortious interference by
wrongful means). Second, the claim for damages is belied by Mauriello’s
testimony before Judge Scheindlin in the stop-and-frisk trial in Floyd v. The City of
New York that nine months after Officer Schoolcraft reported in the Fall of 2009
misconduct and corruption at the 81st Precinct, Mauriello’s supervisors rewarded
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him with a lateral transfer to a position as an executive officer of a larger
department within the NYPD. (See Exhibit B at p. 1831.) Indeed, Mauriello
specifically denied that the transfer was a demotion, a judicial admission that is
fatal to his claim for reputational damages. (Id.; Transcript at p. 1831, line 25.)
The Injunction on the NYPD Administrative Trial Should Not Be Lifted.
Four months after the Court’s June 28, 2013 decision enjoining the City
Defendants from trying Officer Schoolcraft in their own forum, the City
Defendants seek to lift the injunction because they are now willing to agree that
their “trial” will not have any preclusive impact in this case. But the danger of
collateral estoppel was, as we pointed out in our initial motion, only one of several
reasons for staying the NYPD trial.
An interceding NYPD administrative trial of Plaintiff sought by the City
Defendant at this point in active pretrial litigation of the instant matter will
interfere with the prosecution of this action and will require the expenditure of time
and energy that should be spent getting this action ready for trial. It will also
require Officer Schoolcraft to defend charges leveled against him by the very
supervisors who are defendants in this action and permit the defendants to sit in
judgment over the plaintiff. It will give the defendants – who have already
deposed Officer Schoolcraft for three days lasting over 21 hours of actual
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examination – yet another opportunity to examine him again.
These are precisely the same considerations that properly led the District
Courts in Alvarez v. City of New York, 31 F. Supp. 2d 334 (S.D.N.Y. 1998) and
Mullins v. City of New York, 554 F. Supp, 2d 483 (S.D.N.Y. 2008) to enjoin the
NYPD from putting on trial in its own administrative forum police officers who
had filed federal claims against the NYPD. Those considerations, putting aside
considerations of issue preclusion and claim preclusion, apply with equal force
here and militate strongly toward maintaining the Court’s injunction.
The scheduling of depositions and the pretrial circumstances since the
Court’s June 28, 2013 ruling also support a decision denying the City Defendants’
application to lift the injunction. First, the City Defendants fail to address their
failure to make this request sooner and the parties are now in the midst of a heavy
discovery schedule that gives Officer Schoolcraft only three more months to
extract discovery from the defendants, who resist even the most basic discovery
requests at every opportunity. Indeed, in late August of 2013, the parties
forwarded to the Court an extensively negotiated discovery plan that the Court
entered on September 5, 2013 (Dkt. # 162). The City Defendants did not raise the
prospect of an administrative trial at that time, and the Court set deadlines in
accordance with the parties’ expectations about the amount of time required to
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complete discovery and otherwise prepare for trial.
Finally and most notably, the City Defendants do not provide the Court with
any explanation for why they are now so eager to try Officer Schoolcraft in their
own forum. Indeed, the Court should take judicial notice of the fact that the
political landscape of the City Defendants and the NYPD is changing. The results
of the September 2013 Democratic Primary for New York City Mayor have made
clear that the current administration of the NYPD will likely be changing by the
end of this year. Hence it seems clear that the only reason why the NYPD is now
so eager to try Officer Schoolcraft has nothing to do with the genuine needs of the
NYPD but with its current administration’s attempt to discredit Officer Schoolcraft
with an “adjudication” before the end of the year. These facts, therefore,
underscore the need to maintain the status quo.
The AEO Stipulation
The City Defendants continue to attempt to create confusion about the status
of the AEO designations. The Court should make clear that it has ruled that the
Plaintiff, Officer Schoolcraft, is entitled to review all documents and recordings
pertaining to all interviews of witnesses and defendants by NYPD investigators.
In addition, the Court should rule that all the materials designated as AEO
by the City Defendants for the protection of arrestees can be provided to Officer
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Schoolcraft because the City Defendants have already redacted the names of the
individuals and all other personally identifying information from the materials that
have been produced.
Finally, the Court should rule that the only materials that are properly the
subject of the AEO limitation are the designated disciplinary records of the
individual defendants (subject to a later motion by the plaintiff showing that the
disciplinary records are relevant to the issues in this case), and the criminal and
financial background checks conducted by the NYPD of Officer Schoolcraft’s
father and sister.
The Return of Officer Schoolcraft’s Property
The City Defendants, having delayed this issue for four months, now have
agreed to return Officer Schoolcraft’s digital recorder that was seized from Officer
Schoolcraft’s apartment after Officer Schoolcraft’s release from the psychiatric
ward of Jamaica Hospital. By that concession, the City Defendants admit that their
arguments about their right to keep the recorder and the Court’s lack power to
order its return were not substantially justified. Since there was no proper basis at
all for the original position, the Court should sanction the City Defendants for
taking an unjustified discovery position pursuant to FRCP 37(a)(5)(A). The Court
should also order the City Defendants to forthwith return the digital recorder,
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which is still in the possession of the City Defendants.
As to the rest of Officer Schoolcraft’s personal property, the City
Defendants should be required to provide a sworn statement by a responsible
individual as to the whereabouts and existence of all of Officer Schoolcraft’s
property taken from his person, his home and from his lockers at the 81st Precinct.
Among other things, the statement should affirmatively state that the second
recording device and all papers, including crime reports that were at Officer
Schoolcraft’s home or in his locker, have been searched for and located or not
located.
Conclusion
The cross-motion to strike should be granted and the motion to amend
Mauriello’s answer should be denied. In addition, the Court should make clear to
the defendants that the AEO limitation has been lifted except for those clearly
defined matters pertaining to designated disciplinary records and criminal and
background checks on Officer Schoolcraft’s father and sister. Finally, the Court
should direct the City Defendants to return forthwith Officer Schoolcraft’s
personal property, the Court should award plaintiff costs and expenses for having
to make the motion, and the City Defendants should be directed to provide an
affidavit attesting to that fact all of Office Schoolcraft’s property has been searched
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for and returned to the extent located.
Dated: October 15, 2013
LAW OFFICE OF
NATHANIEL B. SMITH
s/NBS
By:________________________
Nathaniel B. Smith
111 Broadway -- 13th Floor
New York, New York 10006
212-227-7062
Attorney for Plaintiff
Of Counsel,
John D. Lenoir

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