Schoolcraft v. The City Of New York et al

Filing 318

REPLY MEMORANDUM OF LAW in Support re: 290 MOTION to Amend/Correct . . Document filed by Adrian Schoolcraft. (Attachments: # 1 Exhibit Schoolcraft Depo Excerpts)(Smith, Nathaniel)

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

-against-

Plaintiff,

THE CITY OF NEW YORK, et al,

10-cv-6005 (RWS)
Reply Memorandum
of Law In Further
Support of Plaintiff’s
Motion To Amend

Defendants.
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Preliminary Statement
Plaintiff, Adrian Schoolcraft, submits this memorandum in reply to the oppositions
filed by the City Defendants and Jamaica Hospital to his motion to amend his Second
Amended Complaint. Plaintiff has not received any opposition to the motion by
Defendants Mauriello, Bernier or Isakov, who are represented by separate counsel.
Argument
The City Defendants and Jamaica Hospital make several arguments in opposition to
the motion. We briefly address those arguments as set forth below.
1. The City Defendants Arguments. The City Defendants make two arguments that
require a limited response: (A) that the relation-back doctrine does not apply to the
claims against Weiss and Mascol; and (B) that the proposed editorial changes to the
governing pleading “alter the landscape” of the litigation.
A. The Relation-Back Issue. The City Defendants oppose the motion to amend the

Second Amended Complaint to add two individuals to the caption of the action, Weiss
and Mascol, on the grounds that the claims against those two members of the NYPD are
barred by the three-year statute of limitations period and that the claims against them do
not relate back to the prior pleadings. There are several reasons why this argument
should be rejected.
First, at the outset we note that the City Defendants do not address the question of
whether the Law Department can or will represent Weiss or Mascol in this action, which
was an issue initially raised by the City Defendants in their letter to the Court, dated
December 5, 2014. Apparently, that representation issue has been resolved since the Law
Department is making arguments in support of the interests of Weiss and Mascol.
Accordingly, the representation issue is no longer a basis for denying the motion.
Second, the City Defendants’ limitations argument should be rejected because the
claims against Weiss and Mascol do related back to the prior pleadings, all of which were
filed within any applicable three-year limitations period. The last of the pleadings, the
Second Amended Complaint, was filed on October 1, 2012, which was within the threeyear period from the date of the illegal and warrantless entry into Officer Schoolcraft’s
home and his arrest and confinement. (Dkt. #103.) Since the City Defendants state that
the limitations period expired on October 31, 2012 (City Mem. at p. 4), the claims
against Weiss and Mascol are timely, provided that the relation-back doctrine applies.
Third, the City Defendants argue that the relation-back does not apply because the
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plaintiff made a “deliberate choice” in not previously listing them in the caption. (City
Mem. at p.6.) Of course, the City Defendants do not submit anything to support this
claim other than the repeated refrain that the action was commenced “years ago” and that
the pleadings were already “twice” amended. More important, the City Defendants fail
to address our central contention -- that the Second Amended Complaint on several
occasions referred to Weiss and Mascol as defendants, thus making it clear that their
omission from the caption was a mistake. (See Motion Exh. 2 at ¶¶ 66, 100, 107 & 134.)
Fourth, the City Defendants argue that there is no evidence that Weiss or Mascol
knew or should have known of the possible claims against them before February 28,
2013. (City Mem. at p. 7.) That argument should be rejected because the Law
Department has been representing all the City Defendants in this case (other than
Defendant Mauriello) since the inception of the action, and thus Weiss and Mascol were
on constructive notice.
On point is Abdell v. The City of New York, 2010 U.S. Dist. Lexis 137585 at
*10-11 (S.D.N. Y. Dec. 10, 2010). There, Judge Sullivan applied the relation back
doctrine where the proposed defendant was a New York City official being
represented by the Law Department and the Law Department had already been
representing the existing defendants.
Abdell holds:
Under the constructive notice doctrine, the court can impute knowledge of a
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lawsuit to a new defendant government official through his attorney, when the
attorney also represented the officials originally sued, so long as there is some
showing that the attorney knew that the additional defendants would be added
to the existing suit." Berry v. Village of Millbrook, No. 09 Civ. 4234 (KMK),
2010 U.S. Dist. LEXIS 103239, 2010 WL 3932289, at *5 & n.6 (S.D.N.Y.
Sept. 29, 2010) (internal citations and quotation marks omitted); see also Baez
v. Kahanowicz, 469 F. Supp. 2d 171, 177 (S.D.N.Y. 2007) ("[N]otice has been
imputed to a new defendant when he shares an attorney with the named
defendant, such as when both defendants are government officials represented
by the same government attorney . . . ."). The constructive notice doctrine
relies on "the theory that the newly added defendant is not prejudiced by the
lack of notice if his attorney has already begun preparing a defense for the
named defendant during the limitations period." Velez, 2008 U.S. Dist. LEXIS
96999, 2008 WL 5062601, at *6.
Id.
As in Abdell, the Law Department knew or should have known that Weiss and
Mascol were potential defendants since their were mentioned as defendants in the
Second Amended Complaint. See id. (“the City Law Department knew or should
have known that Galati would later be named)(citing and quoting Pape v. Board of
Educ. of the Wappingers Central School Dist, No. 07 Civ. 8828 (KMK), 2009 U.S.
Dist. LEXIS 91738, 2009 WL 3151200, at *13 (S.D.N.Y. Sept. 29, 2009) ("The
inquiry is not . . . whether defense counsel had actual knowledge but whether he
'knew or should have known' that the additional defendants would be added within
the statute of limitations period.")). Thus, the Court should reject the argument that
Weiss and Mascol were not on constructive notice.
B. The “Landscape” Argument. The City Defendants next argue that the
proposed editorial changes to the Second Amended Complaint “completely change
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the landscape” of the case. (City Mem. at p. 12.)

The argument does not withstand

any scrutiny.
First, the City Defendants suggest that the case was somehow limited to a
quota policy or practice related only to summons, and that references to quotas for
arrests and stops are “utterly new” claims. The argument, however, is manifestly
false: the Second Amended Complaint makes repeated references to quotas for
arrests and summons. (Motion Exh. 2 ¶¶ 2, 38, 40, 54, 62, 63 & 83.) The Second
Amended Complaint also makes repeated references to Officer Schoolcraft needing
to increase his “activity.” (See, e.g. Motion Exh. ¶¶ 66, 71 & 99.) And throughout
his deposition, Officer Schoolcraft repeatedly testified that he believed he received
his failing 2008 performance evaluation based on his low “activity,” which included
numerical quotas for stops, arrests and summons. (Reply Exhibit 1 (attached hereto)
Schoolcraft Tr. 10-11-12 at 56:13; 61:17-25; 63:2; 69:19-21; 79:10-2080:13-23;
83:7-11; & 86:21-23 and Tr. 9-26-13 at 51:19-53-5.) Thus, the argument that the
case was ever limited to a quota just on summons is false.
Second, the City Defendants attempt to splice hairs with regard to the other
proposed changes to the pleading. While actually admitting that these changes are
“small” and “may seem unimportant” (City Mem. at p. 12 & 13), the City defies it
own words and common sense when it suggests that these proposed changes also
somehow change the shape of the case. In fact, inspection of the proposed changes
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shows that they are designed to correct simple errors (e.g. changing 350 miles to 200
miles) or are designed to clarify the text (e.g., “denied access” to “denied physical
access” where telephonic access was available) or to conform the allegations in the
light of the evidence obtained in discovery (e.g., changing an allegation from the
“manufacture of false evidence” to the “destruction” of evidence).
In any event, the City Defendants fails to show how any of these changes
prejudice them. Nor do they show how any of these changes require any additional
discovery. Thus, the editorial and typographical changes should be permitted.
2. The Jamaica Hospital Arguments. Jamaica Hospital also makes several
arguments in opposition to the motion to amend. Those arguments are briefly
addressed below.
A. The Alleged “Delay.” Jamaica Hospital opposes the motion on the
ground that the motion to amend was filed several “years” into the litigation and
after several scheduling orders were entered into, extending the discovery and pretrial deadlines. What Jamaica Hospital fails to address is the fact that the discovery
that formed the basis for the motion to re-assert a Section 1983 claim against it was
obtained only this year as a result of the depositions of Doctors Dhar, Isakov and
Bernier. Thus, the suggestion that the claim should have been asserted before that
testimony was obtained is a fallacy. Rule 11 of the Federal Rules of Civil Procedure
requires that a pleading be grounded in a good faith factual basis, and the claim was
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re-asserted after that proper basis had been established. Since the claim was initially
only dismissed without prejudice, Jamaica Hospital cannot assert any cognizable
prejudice. Indeed, the suggestion that is lost “comfort” in the dismissal is not the
kind of prejudice that courts have recognized. And for good reason: it makes little
sense for a corporate entity – which is not a living human entity – to argue about its
lost “comfort” as a basis for showing the prejudice required to deny a motion to
amend a pleading.
B. The Official Policy Argument. Jamaica Hospital argues that the proposed
pleading does not assert that it is liable under Section 1983 for a policy or practice
that caused the loss of the plaintiff’s constitutional rights. It is wrong. The proposed
Third Amended Complaint adds Jamaica Hospital as a defendant liable for its
unconstitutional policies and practices, adds it as a defendant in the claim for false
imprisonment, and strikes a statement to the contrary in the prior pleading. (Exh. 1
at ¶¶ 243 & 283; Exh. 3 at ¶ 240 & n.1.)
C. The Individual Doctor’s “Isolated” Conduct. Jamaica Hospital argues that
the proposed claim against it is futile because the individual doctors who made the
decision, Doctors Bernier and Isakov, made their decisions as “isolated instances.”
The Court should reject this argument because the basis for the motion is centered on
the fact that Jamaica Hospital’s Rule 30(b)(6) witness confirmed what those doctors
stated – that it was the practice at Jamaica Hospital to commit a patient based on any
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potential or possible risk of dangerousness. Since a Rule 30(b)(6) witness is the
person who is speaking as a matter of law on behalf of the corporation, Jamaica
Hospital cannot run away from its corporate witness’s deposition testimony.
D. The “Clinical Judgment” Argument. Jamaica Hospital also tries to run
away from its witness’s testimony by hiding behind the shelter of a generality -- that
a doctor’s commitment decision is based on an obscure and undefined “clinical
judgment” concept and that that judgment is “not a policy issue.” It cannot escape
its legal obligations with those tautological statements so easily.
Section 9.39 of the Mental Hygiene Law requires Jamaica Hospital to
establish that a patient presents a substantial risk of dangerousness, and the Second
Circuit has expressed held that constitutional law requires that “the “involuntary
emergency commitment be made in accordance with a standard that promises some
reasonable degree of accuracy.” Rodriquez v. City of New York, 72 F. 3d 1051,
1061-62 (2d Cir. 1995) (emphasis added).

While the argument about “clinical

judgment” is meritless as a matter of law because some standard is required, the
Court should also note that any arguments about “clinical judgment,” even if valid,
do not render the proposed pleading futile. At best, Jamaica Hospital should be
required to make that argument to a jury.

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Conclusion
For these reasons and the reasons previously set forth, the motion should be
granted.
Dated: December 29, 2014

s/NBS
__________________________
Nathaniel B. Smith
111 Broadway – Suite 1305
New York, New York 10006
[phone]

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