Rodriguez et al v. Winski et al

Filing 237

MEMORANDUM AND ORDER: granting in part and denying in part 225 Motion for Leave to File Document. For the foregoing reasons, plaintiff's motion for leave to amend is granted in part and denied in part. Plaintiff is hereby ordered to file an am ended complaint in accordance with the rulings set forth in this opinion no later than May 31, 2019. In the event that the City Defendants anticipate filing a motion for judgment on the pleadings, the parties are directed to confer on a proposed briefing schedule and submit a stipulation or letter to the Court for its endorsement. The Clerk of Court is respectfully directed to terminate the motion pending at ECF No. 225. (Signed by Judge Naomi Reice Buchwald on 5/16/2019) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------X
YDANIS RODRIGUEZ, et al.,
Plaintiffs,
MEMORANDUM AND ORDER
- against 12 Civ. 3389 (NRB)
EDWARD WINSKI, et al.,
Defendants.
---------------------------------X
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
The National Press Photographers Association (the “NPPA” or
“plaintiff”) and sixteen individual plaintiffs filed their First
Amended Complaint (the “FAC”) on October 16, 2012, asserting 49
separate

causes

of

action

against

various

institutional

and

individual defendants, including, inter alia, allegations of the
violation of their federal First and Fourth Amendment rights, the
violation

of

their

New

York

State

constitutional

rights,

conspiracy to violate their constitutional rights, and state tort
law claims.
action.
the FAC.

The NPPA is now the sole remaining plaintiff in the

Pending before the Court is its motion for leave to amend
For the reasons set forth below, the NPPA’s motion is

granted in part and denied in part.

I.

BACKGROUND 1

The claims in this case “arise from a series of incidents in
connection with Occupy Wall Street [“OWS”] protests.”

FAC ¶ 2.

Beginning in approximately September 2011, OWS protestors gathered
or attempted to gather in a number of Manhattan locations to call
attention to “the effects of income inequality on society.”
¶ 251.

Id.

The NPPA, a 501(c)(6) tax exempt organization “dedicated

to the advancement of visual journalism,” id. ¶ 29, alleges on
behalf of its approximately five thousand (5,000) active members
that the City of New York, Edward Winski, Michael Bloomberg,
Raymond Kelly, Robert Matrisiciani, Steven Caro, Margaret Monroe,
Fernando

Trinidad,

Francis

Tloczkowski

and

Daniel

Albano

(together, the “City Defendants”) denied journalists access to
protest sites, forcibly interfered with their coverage of the
demonstrations, and, in some cases, placed NPPA members under
arrest while they were attempting to document the protests.
The NPPA joined the case on October 16, 2012, six (6) months
after fifteen individual plaintiffs had commenced the action.
Following the Court’s September 26, 2013 Memorandum and Order
dismissing certain claims and severing claims brought against a
subset of defendants, the remaining parties engaged in over a

1

The facts described below are largely drawn from the FAC [ECF No. 33] and
the Proposed Second Amended Complaint (“PSAC”) [ECF No. 226-1].
The Court
assumes familiarity with its September 26, 2013 Memorandum and Order [ECF No.
80], which more fully describes the factual background of the case.

2

year’s worth of fact discovery before jointly requesting referral
to a magistrate for settlement discussions.
2014, ECF No. 116.

See Ltr., Nov. 24,

The Court signed an order of reference the

following day, but denied defendants’ subsequent request for a
stay of discovery, encouraging the parties to “focus on discovery
that will advance the settlement process.”
ECF No. 146.

Ltr., Feb. 9, 2015,

Targeted discovery and several rounds of settlement

negotiations ensued.
By April 24, 2018, every plaintiff but the NPPA had either
settled in principle or withdrawn their claims against defendants.
On June 15, 2018, the City Defendants filed a letter seeking leave
to file a motion for judgment on the pleadings as to the NPPA’s
remaining claims, arguing that the NPPA did not have standing to
sue and that it had not adequately pleaded its causes of action.
See Ltr., ECF No. 218, June 15, 2018.

The NPPA now moves for leave

to amend the FAC in advance of the City Defendants’ anticipated
motion.
II.

PROPOSED AMENDMENTS

Plaintiff repeatedly characterizes its motion as an effort to
streamline the case and tailor the complaint to reflect the NPPA’s
status

as

the

sole

remaining

plaintiff

in

the

action.

To

plaintiff’s credit, the PSAC does cull settled or withdrawn parties
and

claims

from

the

pleading,

conform

previously

pleaded

allegations to the present posture of the case, and make other

3

non-substantive changes to the FAC, see, e.g., PSAC ¶ 53 (changing
“she

was

approached”

to

“she

alleges

she

was

approached”).

However, the NPPA’s suggestion that its proposed amendments are
merely

cosmetic

dramatically

understates

the

scope

and

significance of several contemplated changes.
For one, the PSAC expands the factual predicate of plaintiff’s
causes of action from “a series of incidents in connection with
Occupy Wall Street protest,” FAC ¶ 2, to actions arising from
demonstrations generally, including “The People’s Climate March in
2014, Black Lives Matter in 2015, National School Walkout for Gun
Control in 2018, and significant protests since the election of
President Donald Trump in 2016 on a wide range of issues from
immigration to women’s rights.”

PSAC ¶ 2.

To this end, plaintiff

scrubs the complaint of specific references to the OWS protests in
favor of generic descriptions of protest activity.
¶ 12. 2

See, e.g., id.

Plaintiff also adds allegations relating to the July 2018

arrest of NPPA member Angus Mordant while he was covering “a
demonstration regarding a shooting that had occurred in the Bronx,”
id. ¶ 56, and the arrest of NPPA member Robert Stolarik while he
was taking photographs in the Bronx on August 4, 2012 for a story
about the use of stop-and-frisk tactics by the NYPD, id. ¶¶ 45–48
(incorporating by reference Winnie Hu, New York Police Officer Is

2

By way of illustration, text searches performed by the Court reveal that
the PSAC reduces the number of “OWS” or “Occupy” references from approximately
275 to eight.

4

Convicted of Lying About Photographer’s Arrest, THE NEW YORK TIMES
(Oct. 15, 2015), https://nyti.ms/2DZhN5q).

Neither incident has

a meaningful connection to the OWS protests.
Second, the PSAC pleads new theories of relief.

While the

parties dispute whether the NPPA actively sought damages during
its settlement negotiations with the City Defendants, it is clear
that the NPPA did not assert a claim for monetary relief in its
939-paragraph FAC. See FAC ¶ 144 (“Plaintiff NPPA seeks injunctive
and equitable relief . . . .”).

The NPPA now seeks to recover for

economic harm suffered not only by the organization itself but by
its individual members.

See, e.g., PSAC ¶ 65 (“Plaintiff NPPA

seeks damages as well as injunctive and equitable relief . . .
.”); id. ¶ 98 (“The NPPA members have been economically harmed by
not only being prevented from performing their jobs and suffering
monetary loss when they cannot sell their images in a timely
manner, but also being required to take time away from other
employment opportunities while defending any criminal charges.
NPPA is also harmed financially as it has dedicated significant
resources towards supporting and defending its members.”).

In

this same vein, the NPPA proposes to add a claim for tortious
interference with business relations, also commonly referred to as
“tortious interference with economic advantage,” Catskill Dev.,
L.L.C. v. Park Place Entm’t Corp., 547 F.3d 115, 132 (2d Cir.
2008).

See PSAC ¶¶ 144–48.

5

Finally,

the

proposed

amendments

include

new

allegations

relating to the arrests of two members of the NPPA that arise from
their coverage of OWS-related protests.

See PSAC ¶¶ 39–41, 55.

NPPA member Douglas Higginbotham was arrested on November 15, 2011
while filming allegedly wrongful evictions of OWS protesters, and
Julie

Rinehard

was

arrested

anniversary OWS protest.

in

September

2012

at

a

1-year

Both arrests predate the filing of the

FAC.
III.

DISCUSSION

a. Legal Standard
Rule 15 of the Federal Rules of Civil Procedure directs a
court to “freely give leave [to amend] when justice so requires.”
Fed. R. Civ. P. 15(a)(2).

“The rule in this Circuit has been to

allow a party to amend its pleadings in the absence of a showing
by the nonmovant of prejudice or bad faith.”

AEP Energy Servs.

Gas Holding Co. v. Bank of Am., N.A., 626 F.3d 699, 725 (2d Cir.
2010) (quoting Block v. First Blood Assocs., 988 F.2d 344, 350 (2d
Cir. 1993)).

While mere delay is thus not a sufficient basis for

denying leave to amend, “the longer the period of an unexplained
delay, the less will be required of the nonmoving party in terms
of a showing of prejudice.”

Block, 988 F.2d at 350 (quoting Evans

v. Syracuse City Sch. Dist., 704 F.2d 44, 47 (2d Cir.1983)).
In

determining

what

constitutes

sufficient

prejudice

for

these purposes, we consider whether a proposed amendment would

6

“require the opponent to expend significant additional resources
to conduct discovery and prepare for trial” or “significantly delay
the resolution of the dispute.”

Block, 988 F.2d at 350.

We will

further be “hesitant to allow amendment where doing so unfairly
surprises the non-movant and impedes the fair prosecution of the
claim.”

Monahan v. New York City Dep’t of Corr., 214 F.3d 275,

284 (2d Cir. 2000).
“Leave to amend may [also] be denied on grounds of futility
if the proposed amendment fails to state a legally cognizable claim
or fails to raise triable issues of fact.”

AEP Energy, 626 F.3d

at 726.
b. Delay
Nearly six years have passed between the filing of the FAC
and the pending motion to amend.
“burden

is

on

the

party

who

In these circumstances, the

wishes

to

amend

to

provide

a

satisfactory explanation for the delay.”

Cresswell v. Sullivan &

Cromwell, 922 F.2d 60, 72 (2d Cir. 1990).

Plaintiff contends that

it requested leave to bring the instant motion shortly after
settlement negotiations between the NPPA and City Defendants broke
down, necessitating amendments “to narrowly tailor their claims as
the only remaining Plaintiff in this litigation.”

Pl.’s Mem. of

Law in Supp. of its Mot. to Amend (“Pl.’s Br.”) at 4, ECF No. 227.
This may explain why the NPPA waited to streamline the FAC until
after all other plaintiffs had settled or withdrawn their claims;

7

better to prune the pleading of irrelevant allegations in one fell
swoop than seriatim.

But it fails to explain why the NPPA has

waited to assert allegations relating to incidents involving its
members that occurred prior the filing of the FAC, or why it has
taken the NPPA six years to plead claims for monetary damages or
tortious interference.
delayed

in

expanding

It also leaves unanswered why the NPPA
the

scope

of

the

complaint

to

include

incidents arising from non-OWS demonstrations when it has known of
such incidents from the outset of the litigation. 3
Indeed, the timing of the proposed substantive amendments
makes little sense in the broader context of the case.

The NPPA

had every incentive to bolster, clarify, or add to its allegations
prior to or while engaging in extensive settlement negotiations
and

a

period

of

targeted

(but

hardly

limited)

discovery,

particularly with respect to allegations of economic harm and
damages suffered by both the organization and its individual
members.

The NPPA’s apparent disinterest in doing so cannot be

explained away as a mere function of the “schedule within which

3

For example, plaintiff has made no effort to explain why it failed to
allege Robert Stolarik’s non-OWS-related August 2012 arrest in the FAC, see
PSAC ¶¶ 45–48, when it included allegations relating to Stolarik’s OWS coverage,
see FAC ¶¶ 380–84. The pleading of the latter but not the former reflects a
deliberate decision on the part of the NPPA to limit this litigation to claims
arising from “a series of incidents in connection with Occupy Wall Street
protests.” FAC ¶ 2. That the NPPA has apparently reconsidered that decision
is not a sufficient explanation for the six-year delay.

8

all parties in this matter agreed to conduct settlement discussions
and related discovery.”

Pl.’s Br. at 4.

Accordingly, plaintiff has failed to offer a valid reason for
its significant delay in proposing substantive amendments to the
FAC.

With this in mind, we now turn to whether the City Defendants

have made a sufficient showing of prejudice.
c. Prejudice
City Defendants argue that the NPPA’s proposed amendments
would require expenditure of significant additional resources to
conduct

discovery

and

significantly

delay

resolution

of

this

matter. We agree with respect to some, but not all, of the proposed
amendments.
First, we agree that proposed allegations related to non-OWS
protest activities are likely to significantly expand the scope
and

length

of

Defendants.

discovery,

and

thus

unduly

prejudice

the

City

This case was brought in the wake of the Occupy Wall

Street protests and, for the last seven years, the operative
pleadings

have

explicitly

limited

its

factual

predicates

to

conduct arising from those protests. At this juncture, the parties
should be endeavoring to complete any outstanding discovery, not
introducing

new

“transactions

litigation. 4

See Pl.’s Mem. of Law in Reply at 4, ECF No. 230.

4

and

occurrences”

into

the

Plaintiff’s insistence that the “transactions and occurrences” at issue
in this case are the City Defendants’ “constitutionally violative [actions]”
generally, Pl.’s Br. at 6, and not more specifically the curtailing of

9

Because, as plaintiff acknowledges, “amendment is properly denied
where a movant seeks to change the focus of the lawsuit, such as
making allegations relating to a different set of facts than the
original pleading,” Pl.’s Br. at 3, we deny plaintiff leave to soamend the FAC.
A similar rationale applies to the NPPA’s proposed amendments
regarding

economic

harms

suffered

by

its

individual

members.

Plaintiff seeks to allege damages related to its members’ inability
to sell their images in a timely manner, as well as damages related
to lost opportunities caused by their need to defend themselves
against criminal charges.

These claims were obviously not “one of

the objects of discovery and related closely to the original
claim,” Tokio Marine & Fire Ins. Co. v. Employers Ins. of Wausau,
786 F.2d 101, 103 (2d Cir. 1986); they are entirely new theories
of relief that present extensive problems of proof, requiring
discovery into, e.g., the idiosyncratic financial condition of the
unidentified members for whom the NPPA now seeks to recover.

The

resulting “mini-trials” these new allegations would entail pose a
grave risk of further delay – an unacceptable proposition given
the amount of time that has passed since the filing of the FAC and
the substantial amount of pretrial discovery that has already been

constitutional rights during OWS protests, is belied by plain readings of both
the initial complaint and the FAC, see, e.g., FAC ¶ 2 (“The claims arise from
a series of incidents in connection with Occupy Wall Street protests . . . .”),
and construes the factual basis for the NPPA’s claims at too abstract a level
of generality.

10

completed. 5

See Barrows v. Forest Labs., Inc., 742 F.2d 54, 58

(2d Cir. 1984) (“In view of the fact that substantial discovery
had already been completed, it was certainly reasonable, two and
one-half years after the complaint had been filed, to deny such a
recasting of the complaint’s theories of relief.”).
However, the City Defendants have failed to demonstrate that
they will be sufficiently prejudiced by the timing of an addition
of a claim for damages suffered directly by the NPPA.
that

the

NPPA

has

incurred

in

“supporting

and

The expenses

defending

its

members” in connection with the alleged incidents, PSAC ¶ 140, are
presumably readily ascertainable and capable of being explored at
a deposition of the NPPA, which the parties agree has yet to occur
and will thus not require duplication of efforts already expended. 6
With respect to the allegations involving the arrests of NPPA
members Higginbotham,

id.

¶¶

39–41,

and

Rinehart,

id.

¶

55,

plaintiff concedes that amendments are “properly denied where

5

For these same reasons, we deny plaintiff’s request for leave to assert
a claim for tortious interference of business relations, which would also
require substantial member-specific discovery and is thus not merely a
“variation[] on the original theme” of the case, Hanlin v. Mitchelson, 794 F.2d
834, 841 (2d Cir. 1986), or an “alternative claim[],” Moreno-Godoy v. Gallet
Dreyer & Berkey, LLP, No. 14 Civ. 7082 (PAE/JCF), 2016 WL 5817063, at *2
(S.D.N.Y. Oct. 4, 2016), as plaintiff contends.
6

To the extent that the PSAC can be read to assert a tortious interference
claim for damages suffered by the NPPA as an organization (as opposed to its
individual members), we reject it as futile. To state a claim for tortious
interference under New York law, the NPPA must allege, inter alia, that “the
plaintiff had business relations with a third party,” Catskill Dev., 547 F.3d
at 132. The NPPA has failed to adequately allege any such business relations.
Any other issues with respect to the legal sufficiency of the NPPA’s damages
claim may be addressed in subsequent motion practice.

11

there was undue delay and evidence shows that the movant was aware
of the ‘new’ facts for several years prior to raising them with
defendants and/or moving to amend.”

Pl.’s Br. at 3.

Such is the

case here, where the arrests of Higginbotham and Rinehart were
known or should have been known at the time of the filing of the
FAC (and well in advance of the parties’ referral to a magistrate
for

discussions). 7

settlement

Because

these

allegations

are

asserted “after an inordinate delay, no satisfactory explanation
is offered for the delay, and the amendment[s] would prejudice the
defendant,” Cresswell, 922 F.2d at 72 (2d Cir. 1990), we reject
plaintiff’s belated attempt to assert them.
Finally, insofar as the PSAC proposes to excise parties,
claims, and allegations that are no longer relevant to the action,
or clarify previously pleaded allegations, the City Defendants
make no showing of bad faith or prejudice and the Court perceives
none.

Given

that

amendments

7

of

this

kind

would

Moreover, Higginbotham has already brought a lawsuit against the City of
New York alleging, inter alia, false arrest and that the City “intentionally
interfered with and prevented Plaintiff from exercising his rights under the
First and Fourteenth Amendments” in connection with his coverage of the OWS
demonstration. First Am. Compl. ¶¶ 21–27, Higginbotham v. City of New York, et
al., 14 Civ. 8549 (PKS), ECF No. 29. These claims were dismissed on summary
judgment, see Higginbotham, ECF No. 65, and the Second Circuit affirmed the
dismissal on appeal (which the NPPA joined as an amicus curiae).
See
Higginbotham, ECF No. 71. It strikes the Court as prejudicial in the extreme
to now resuscitate his allegations and require defendants to devote resources
to re-litigating the facts of his arrest. The same reasoning applies to the
proposed amendments relating to the arrest of Stolarik, which we rejected for
other reasons supra. Stolarik brought an individual lawsuit stemming from the
same occurrences described in the PSAC and all but one of his causes of action
were dismissed prior to trial, with a jury verdict in the City of New York’s
favor on the remaining claim of First Amendment retaliation. See J., Stolarik
v. City of New York et al., 15 Civ. 5858 (RMB), ECF No. 194.

12

"significantly stre~mline[) this
reach a

final

resolution

case,

faster,

without

prejudice on Defendants," Armstrong v.
Corp., No. 07-CV-1024
Sept.

30,

2009),

we

(JS)

hopefully enabling

plaintiff

to

imposing any apparent

Homebridge Mortg.

(ARL, 2009 WL 3253945, at *3

grant

it

leave

to

Bankers
(E.D.N.Y.

so-amend

the

complaint. 8
IV.

For the

CONCLUSION

foreg9ing reasons,

plaintiff's motion for

amend is granted in part and denied 1n part.

leave to

Plaintiff is hereby

ordered to file an amended complaint in accordance with the rulings
I

set forth in this opinion no later than May 31, 2019.

In the event

that the City Defendants anticipate filing a motion for judgment
I

on the pleadings, the parties are directed to confer on a proposed
briefing schedule a!nd submit a stipulation or letter to the Court
for its endorsement.

The Clerk of Court is respectfully directed

to terminate the mdtion pending at ECF No. 225.
I
Dated:

New York~ New York
May 16, 2019

b~~~
UNITtD STATES DISTRICT JUDGE

We reJect the Ciby Defendants' misplaced argument that plaintiff's motion
is futile because previously pleaded causes of action would not survive a motion
to d1sm1ss. Oppos1t:o~ to a motion for leave to amend is not the proper vehicle
for such an attack, 'particularly where, as here, defendants have already
answered the compla1nt1containing those causes of action, see Answer, Dec. 18,
2012, £CF No. 56.

13