Schoolcraft v. The City Of New York et al

Filing 186

REPLY MEMORANDUM OF LAW in Support. Document filed by Steven Mauriello(Tax Id. 895117, Individually), Steven Mauriello(Tax Id. 895117 in his official capacity). (Kretz, Walter)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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ADRIAN SCHOOLCRAFT,
Plaintiff,
-against10-CV-06005 (RWS)
THE CITY OF NEW YORK, et al.,
Defendants.
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DEFENDANT MAURIELLO’S REPLY MEMORANDUM OF LAW
IN FURTHER SUPPORT OF HIS MOTION FOR LEAVE TO AMEND HIS
ANSWER TO ASSERT STATE-LAW COUNTERCLAIMS AND IN
OPPOSITION TO PLAINTIFF’S CROSS-MOTION TO STRIKE
Preliminary Statement
On behalf of defendant Steven Mauriello, we submit this
memorandum of law in further support of his motion for leave to serve an
amended answer to assert state-law counterclaims against the plaintiff and in
opposition to plaintiff’s motion to strike allegations from the proposed
counterclaims.
Summary of Argument
With respect to defendant Mauriello’s motion to amend his Answer
to assert counterclaims, plaintiff has not identified any exceptional circumstances
providing a compelling reason for the Court to decline the exercise of
supplemental jurisdiction pursuant to 28 U.S.C. section 1367(c). In addition,
nothing asserted by plaintiff challenges the conclusion that the Court “should
freely give leave” to defendant Mauriello to amend his Answer pursuant to Rule
15(a)(2) of the Federal Rules because “justice so requires”.

ARGUMENT
POINT I
THIS COURT SHOULD EXERCISE SUPPLEMENTAL
JURISDICTION OVER THE COUNTERCLAIMS AND
FREELY GIVE DEFENDANT MAURIELLO LEAVE TO AMEND
HIS ANSWER BECAUSE JUSTICE SO REQUIRES
Subsection (c)(4) of 28 U.S.C. section 1367 permits a district court
“to decline to exercise supplemental jurisdiction over a claim . . . if . . . in
exceptional circumstances, there are other compelling reasons for declining
jurisdiction.” Exceptional circumstances do not exist here to provide any
compelling reasons for the Court to decline supplemental jurisdiction. Such
reasons have been recognized to encompass “judicial economy, convenience
and fairness to litigants.” See Viacom Intern., Inc. v. Kearney, 212 F.3d 721, 728
(2d Cir. 2000), quoting Purgess v. Sharrock, 33 F.3d 134, 138 (2d Cir. 1994). All
of these considerations favor the Court’s exercise of jurisdiction over defendant
Mauriello’s state-law counterclaims, and the cases cited by plaintiff do not
support a contrary conclusion.
Plaintiff’s cite Krumme v. Westpoint Stevens, Inc., 143 F.3d 71, 88
(2d. Cir. 1998), for the proposition that leave to amend should be denied because
“the amendment would delay the final disposition of the action.” In Krumme,
however, the motion to amend the answer to assert counterclaims was not filed
until after discovery had concluded and the case was near resolution, apparently
by summary judgment. In addition, the facts relied upon to support the proposed
counterclaims had been known by the defendant for at least eight years. Id.

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None of those conditions exist here. See also Continental Bank, N.A. v. Meyer,
10 F.3d 1293 (7th Cir. 1993).
In addition, in THK America, Inc. v. NSK, Ltd., 157 F.R.D. 660
(N.D.Ill.,1994), also relied upon by plaintiff in opposition to defendant Mauriello’s
motion for leave to amend, the Court denied defendant’s motion for leave to
assert counterclaims because fact discovery was completed, expert discovery
was about to be completed, and the case was “very close to trial.” According to
the Court, after reciting a litany of discovery abuses and delay tactics by the
moving defendant, “[t]o permit the filing of [the] proposed counterclaims would
clearly unduly delay and complicate this case, and prejudice [the plaintiff] by
imposing additional expensive and time-consuming new discovery,” which the
Court feared “would bring the progress of this patent infringement litigation to a
virtual stand-still.” Id. at 665. Again, none of this could be said about this case or
defendant Mauriello’s proposed counterclaims.
POINT II
DEFENDANT MAURIELLO’S PROPOSED
COUNTERCLAIMS ARE TIMELY
Defendant Mauriello’s proposed counterclaims are state law claims
to which state law statutes of limitations apply. In addition, in conjunction with
Rule 15(c) of the Federal Rules, state law determines the extent of any tolling of
such state law statutes of limitations. See Sea Trade Co. Ltd. v. FleetBoston
Fin’l Corp., 2006 WL 2786081 (S.D.N.Y. 2006), quoting Personis v. Oiler, 889
F.2d 424, 426 (2d Cir. 1989). Under New York state law, section 203(d) of the
C.P.L.R. is controlling on the issue of tolling the statute of limitations applicable to
a counterclaim, and is controlling here. It provides as follows: “a defense or
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counterclaim is not barred if it was not barred at the time the claims asserted in
the complaint were interposed . . . .” Here, the proposed counterclaims were not
barred at the time the complaint was filed, and therefore would not now be
barred.
Rule 15(c) of the Federal Rules specifies that “[a]n amendment to a
pleading relates back to the date of the original pleading when: (A) the law that
provides the applicable statute of limitations allows relation back.” When Rule 15
was amended in 1991 to add the foregoing provision, the Commentary provided
the following instruction:
This provision is new. It is intended to make it clear that the rule
does not apply to preclude any relation back that may be permitted
under the applicable limitations law. Generally, the applicable
limitations law will be state law. If federal jurisdiction is based on
the citizenship of parties, the primary reference is the law of the
state in which the district court sits. If federal jurisdiction is based
on a federal question, the reference may be to the law of the state
governing relations between the parties. In some circumstances,
the controlling limitations may be federal law. Whatever may be the
controlling body of limitations law, if that law affords a more
forgiving principle of relation back than the one provided in this rule,
it should be available to save the claim (emphasis added) (citations
omitted.
See Sea Trade Co. Ltd., supra. In Sea Trade, the Court engaged in the two-step
process suggested in the Commentary, first explaining that the proposed
counterclaims relate back to the date of the original answer pursuant to Rule 15,
and then explaining, as the Commentary instructs, that New York’s tolling
provision applies rendering the counterclaims timely if they would have been
timely as of the date of the filing of the complaint. The same two-step process

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yields the conclusion here that defendant Mauriello’s proposed counterclaims are
not time-barred.1
CONCLUSION
Based upon the foregoing, the Reply Declaration of Walter Kretz,
and the papers initially submitted in support of defendant Mauriello’s motion, we
respectfully request that the Court exercise supplemental jurisdiction over
defendant Mauriello’s proposed counterclaims, permit him to serve his amended
Answer, and deem the counterclaims timely due to the tolling of the statutes of
limitations as of the date the original complaint was filed.
Dated: New York, New York
October 22, 2013
SCOPPETTA SEIFF KRETZ & ABERCROMBIE
Attorneys for Defendant STEVEN MAURIELLO

By: _____________________________
Walter A. Kretz, Jr., (WK-4645)
444 Madison Avenue, 30th Floor
New York, NY 10022
[e-mail]
212-371-4500

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In re Mission Contr. Lit., 2013 U.S. Dist. Lexis 124926 *at 45 n.16 (S.D.N.Y.), relied upon by plaintiff,
found the proposed counterclaims to be timely when deemed to relate back to the date of the original
answer pursuant to Rule 15(c). The Court, therefore, did not have to consider the second step with respect
to the application of the state-law tolling provision as such tolling was not needed to render the claims
timely. The decision does not alter the conclusion that defendant Mauriello’s proposed counterclaims are
properly deemed timely with the application of New York’s tolling provision, section 203(d) of the CPLR.

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