Williams v. The City of New York et al

Filing 20

ORDER. Defendants' so-called motion for reconsideration is DENIED. IT IS SO ORDERED. Denying 14 MOTION for Reconsideration re; 13 Order on Motion to Dismiss filed by The City of New York. (Signed by Judge Naomi Reice Buchwald on 9/3/2015) Copies Mailed By Chambers. (rjm).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------X
SHON WILLIAMS,
O R D E R

Plaintiff,
- against -

14 Civ. 5123 (NRB)

THE CITY OF NEW YORK and JOHN DOES
## 1–20, in their individual
capacities,
Defendants.
--------------------------------X
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE

The facts of this case are discussed at length in our opinion
of July 21, 2015.

See Mem. & Order, 2015 WL 4461716, at *1–3,

2015 U.S. Dist. LEXIS 94895, at *3–9, ECF No. 13.

For present

purposes, it suffices to say that plaintiff was arrested on
February

27,

2012,

by

officers

of

the

New

York

City

Police

Department (NYPD) and indicted for attempted robbery, assault, and
related charges.

Over a year later, all charges were dismissed.

Plaintiff filed this action on July 9, 2014, alleging false
arrest, excessive force, and malicious prosecution.

The appearing

defendants filed a motion to dismiss, which we granted in part.
Surviving our decision were plaintiff’s section 1983 claims of
false arrest and excessive force (against the individual arresting
officers

only)

and

his

New

York

State

constitutional

claims

(against the individual arresting officers and against the City of

1

New York).

See id., 2015 WL 4461716, at *8, 2015 U.S. Dist. LEXIS

94895, at *19–20. We also directed the parties to commence limited
discovery regarding the identities of the John Doe police officers,
noting that we would likely decline supplemental jurisdiction over
the

state-law

claims

if

no

individual

defendant

could

be

identified. See id., 2015 WL 4461716, at *8, 2015 U.S. Dist. LEXIS
94895, at *20.
The City then filed a motion that it styled as a “motion for
reconsideration,” even though there is not even a faint resemblance
between the present motion and the prior motion.1

The previous

motion had to do with the sufficiency of plaintiff’s pleading,
while the present motion has to do with the statute of limitations
and plaintiff’s ostensible failure to file a notice of claim as
required by state law.

The motion for reconsideration merits

denial on this basis alone.
On the merits of the City’s new motion, it is not apparent
that an amendment to name individual John Doe plaintiffs will be

1 The City points to a footnote in defendant’s reply brief on the original
motion in which, without supporting argument, they purported to move against
plaintiff’s federal excessive-force claim on limitations grounds.
A stray
footnote in a reply brief constitutes neither a new motion nor a fairly presented
argument that would entitle defendants to reconsideration.
The City also considers the fact that the statute of limitations expired
after their motion was filed to be new “evidence.” A new defense that arises
during the course of motion practice may be grounds for a new motion, but not
for reconsideration.
The City concedes that the present motion for “reconsideration” is in
fact its first motion against plaintiff’s state-law claims on exhaustion or
limitations grounds, even though the City could have presented their new
arguments in their first motion.

2

time-barred under Federal Rule of Civil Procedure 15(c)(1)(A) and
section

1024

of

the

New

York

Civil

Practice

Law

and

Rules.

Whatever we ultimately conclude regarding plaintiff’s efforts to
identify the John Doe defendants, we cannot agree with the City
that his efforts amounted to an “amazing lack of diligence,” Def.
Reply Br. 4, ECF No. 19, as the City suggests. Plaintiff undertook
at least some investigation into the John Does’ identities before
the limitations period expired, see Decl. of Adam Deutsch ¶ 2, ECF
No. 18, and it is not clear why plaintiff’s counsel should have
continued his freelance investigation of the John Does while a
colorable motion to dismiss was pending and discovery was around
the corner.

Section 1024 demands reasonable diligence, not the

utmost diligence.

If and when plaintiff discovers the John Does’

identities and moves to amend, we will consider any limitations
arguments that the John Does present.
Finally, we have neither invited nor received full briefing
on the City’s new arguments that plaintiff failed to file timely
notice of his state-law claims and that plaintiff’s state-law
claims are time-barred.

See N.Y. Gen. Mun. Law §§ 50-e, -i; 423

S. Salina Street, Inc. v. City of Syracuse, 68 N.Y.2d 474, 482,
503 N.E.2d 63, 66 (1986) (holding that notice requirement applies
to claims arising under the New York State Constitution).

We are

confident that the parties can resolve these issues without our
assistance. Either some record exists showing that plaintiff filed

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a timely notice of claim,

in which case the City should not move

on that ground, or no such record exists, in which case plaintiff
should volunt a rily di s mis s his state-law claims.
we wish to decide--at most--one additional motion directed to
the pleadings.
to

dismiss

We therefore direct the City not to file any motion

on

limitations

grounds

at

this

time,

with

the

understanding that the City may present its limitations arguments
if

plaintiff

defendant.

successfully

identifies

at

least

one

individual

(We reiterate that we will likely decline to exercise

jurisdiction over state-law claims if plaintiff cannot identify
any individual defendant to answer for the federal claims.)
Meanwhile,

defendants'

so-called motion for reconsideration

is DENIED.

IT IS SO ORDERED.

Dated:

New York, New York
September .:J___, 2015

L~~
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE

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Copies of this Memorandum and Order have been mailed on this date
to the following:
Counsel for Plaintiff:

Adam E. Deutsch, Esq.
Morelli Alters Ratner LLP
777 Third Avenue, 31st Floor
New York, NY 10122
Counsel for Defendant:

Qiana Smith-Williams, Esq.
Office of the Corporation Counsel
City of New York
100 Church Street
New York, NY 10007

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