Nicholas v. Bratton et al

Filing 99

OPINION AND ORDER: re: 88 MOTION to Amend/Correct filed by Jason B. Nicholas. Plaintiff's motion for leave to file an amended complaint is therefore GRANTED IN PART and DENIED IN PART. The proposed amended complaint at Docket Number 88-1, not including the Fourth and Fifth Causes of Action at Paragraphs 162 and 163, is hereby deemed the operative complaint in this action and deemed filed with the Court. The Clerk of Court is directed to close the motion at Docket Number 88. SO ORDERED. (Signed by Judge J. Paul Oetken on 6/12/2017) Copies Mailed By Chambers. (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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JASON B. NICHOLAS,
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:
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Plaintiff,
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-v:
THE CITY OF NEW YORK, et al.,
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Defendants. :
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15-CV-9592 (JPO)
OPINION AND ORDER

J. PAUL OETKEN, District Judge:
Plaintiff Jason B. Nicholas, an independent photojournalist, filed this action pro se
against Defendants William Bratton, Stephen Davis, Michael DeBonis, and the City of New
York on December 8, 2015. (Dkt. No. 2.) Following an unsuccessful motion for emergency
relief, the Court granted Nicholas leave to file an amended complaint. (Dkt. No. 48 (“FAC”);
Dkt. No. 51.) Defendants then moved to dismiss the operative complaint, and this Court denied
that motion. (Dkt. No. 85.)
Nicholas now moves for leave to amend a second time. (Dkt. No. 88.) Defendants
oppose the motion, and, following a flurry of letters, the Court heard oral argument on the
question of whether the proposed second amended complaint runs afoul of a settlement and
signed release in another action. (See Dkt. No. 93; Dkt. No. 94; Dkt. No. 95.) For the reasons
that follow, Nicholas’s motion for leave to amend is granted in part and denied in part.
I.

Background
Familiarity with this case’s history and its factual background is presumed and is

discussed in more detail in this Court’s Opinion and Order of February 27, 2017. See Nicholas v.
City of N.Y., No. 15 Civ. 9592, 2017 WL 766905 (S.D.N.Y. Feb. 27, 2017). In sum, Nicholas

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alleges that Defendants abridged his newsgathering and revoked his press credential on October
30, 2015 (and then failed to return the credential or provide Nicholas a fair hearing in the weeks
and months that followed). In his first amended complaint, Nicholas also chronicled several
other run-ins with Defendants to provide a factual basis for his Monell claims.
Procedurally, as relevant here, on February 27, 2017, this Court denied Defendants’
motion to dismiss the operative first amended complaint. See Nicholas, 2017 WL 766905. In its
Opinion and Order denying Defendants’ motion, the Court included the following footnote:
Nicholas also discusses [Deputy Commissioner, Public Information (“DCPI”)
Lieutenant Eugene] Whyte as a putative defendant, but has failed to name Whyte
in the caption or to serve him. Any claims against Whyte, to the extent Nicholas
purports to assert them, are therefore dismissed without prejudice based on failure
to serve. Nicholas may seek leave to amend his pleadings to include Whyte if he
wishes.
Id. at *4 n.1 (internal citations omitted). Thereafter, Nicholas moved for leave to file a second
amended complaint. (Dkt. No. 88.)
The proposed second amended complaint (Dkt. No. 88-1 (“SAC”)) makes several
changes to the pleadings: It adds Whyte to the caption as a defendant and lists him as a party (id.
¶ 14); it describes Whyte as “approv[ing], acquesc[ing] to, condon[ing] and enforce[ing]” the
alleged policy of abridging newsgathering, a claim previously brought against other Defendants
(id. ¶ 8; FAC ¶ 6); it includes some additional description of Whyte’s conduct across the
incidents of abridged newsgathering (see SAC ¶¶ 6-7); and it purports to bring new causes of
action against Whyte arising from run-ins on September 17, 2014, and January 4, 2015, separate
and apart from the October 30, 2015, incident at the heart of this case (id. ¶¶ 162-63).
II.

Legal Standard
“The Court should freely give leave [to amend] when justice so requires.” Fed. R. Civ.

P. 15(a)(2); see also Foman v. Davis, 371 U.S. 178, 182 (1962). “This permissive standard is
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consistent with [the Second Circuit’s] ‘strong preference for resolving disputes on the merits.’”
Williams v. Citigroup Inc., 659 F.3d 208, 212-13 (2d Cir. 2011) (quoting New York v. Green, 420
F.3d 99, 104 (2d Cir. 2005)). “Motions to amend should therefore be denied only for good
reasons, including undue delay, bad faith or dilatory motive, undue prejudice to the non-moving
party, or futility.” Gordon v. City of N.Y., No. 14 Civ. 6115, 2016 WL 4618969, at *3 (S.D.N.Y.
Sept. 2, 2016) (citing Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 126 (2d Cir. 2008)).
Pro se submissions, in particular, must be construed liberally and read “to raise the strongest
arguments they suggest.” Ortiz v. McBride, 323 F.3d 191, 194 (2d Cir. 2003).
III.

Discussion
Defendants oppose Nicholas’s motion for leave to amend on futility grounds—they argue

chiefly that the res judicata effect of the settlement terms in another case brought by Nicholas in
this District against some of the same Defendants (as well as a general release he signed in
connection with that case) precludes the claims he seeks to add to this action. (Dkt. No. 89.) See
Nicholas v. City of N.Y., No. 15 Civ. 9896. Nicholas, for his part, argues that the settlement he
agreed to was not so broad as to prevent the amendments he proposes in his second amended
complaint here and that the general release he signed in connection with that case was not valid.
(Dkt. No. 93; Dkt. No. 95.)
In settling the earlier suit against the City of New York, the Stipulation of Settlement,
dated October 17, 2016, provides that the City of New York agrees to pay Nicholas $10,000,
and:
[I]n consideration for the payment of this sum, [Nicholas] agrees to dismissal of all
the claims against the defendants and to release defendants City of New York . . .
and all . . . agents of the City of New York or any entity represented by the Office of
the Corporation Counsel, from any and all liability, claims, or rights of action
alleging a violation of plaintiff s civil rights and any and all related state law claims,
from the beginning of the world to the date of the General Release, including claims
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for costs, expenses, and attorneys’ fees, with the exception of claims or rights of
action that have already been pled in . . . Jason Nicholas v. William Bratton et al.[,]
15 CV 9592 (JPO).
(Dkt. No. 92-1 (emphasis added).) (Nicholas also signed a General Release on October 17,
2016, reiterating the same. (Dkt. No. 92-2.))
Stipulations of settlement are “subject to settled principles of contractual interpretation.”
Tobin v. Gluck, 137 F. Supp. 3d 278, 293 (E.D.N.Y. 2015) (quoting McCoy v. Feinman, 99
N.Y.2d 295, 302 (2002)), aff’d, No. 15 Civ. 3500, 2017 WL 1163296 (2d Cir. Mar. 28, 2017).
Because they provide predictability and assurance that courts will honor the parties’ prior
agreements, “[s]tipulations of settlement are favored by the courts and not lightly cast aside.” Id.
(alteration in original) (quoting Hallock v. State, 64 N.Y.2d 224, 230 (1984)).
Here, the terms of the stipulation (and accompanying release) are clear: In consideration
of the $10,000 settlement award, Nicholas agreed to release the City of New York, its agents,
and any individuals represented by its counsel, from liability for all actions up until October 17,
2016. The only carve-outs from this broad release were the allegations already pleaded in this
action at the time the parties reached their settlement—that is, the allegations in the first
amended complaint, which was deemed the operative complaint in this action on August 5, 2016,
two months prior to the settlement. (Dkt. No. 51.)
While Whyte was not captioned as a Defendant or listed as a party in the first amended
complaint, this Court—in denying the motion to dismiss that complaint—acknowledged that
Whyte fairly appeared to be part of Nicholas’s claims. See Nicholas, 2017 WL 766905, at *4
n.1. In fact, in the first amended complaint, Nicholas listed Whyte as a putative defendant in one
cause of action. (FAC ¶ 159 (alleging that Whyte violated Nicholas’s First, Fourth, and
Fourteenth Amendment rights).) And Nicholas’s inclusion of Whyte in the cause of action,

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elsewhere in the pleadings, and in the briefing on the motion to dismiss led the Court to invite
Nicholas to seek leave to amend to properly name Whyte as a Defendant. See Nicholas, 2017
WL 766905, at *4 n.1. To that end—and taking seriously the obligation to construe pro se
filings liberally, see Ortiz, 323 F.3d at 194—the Court finds that claims against Whyte in
connection with the events and aftermath of October 30, 2015, were constructively pleaded in
this action at the time of the settlement (and associated release). (SAC ¶¶ 6-8, 14, 164.)
But the Court recognizes that the proposed second amended complaint represents a
significant departure from earlier complaints in this action by adding two new causes of action
against Whyte, stemming from incidents separate and apart from those at the heart of this case.
These incidents—which occurred on September 17, 2014, and January 4, 2015—fall within the
time period covered by the Stipulation of Settlement (and General Release) in Nicholas’s parallel
case, and were not before this Court as independent bases of causes of action (except as
predicates for Monell liability) when the Stipulation of Settlement was entered in Nicholas’s
other action. Defendants acknowledge the distinction between these new allegations and other,
previous allegations against Whyte. (See Dkt. No. 89 at 10 (“[T]here is a big difference between
pleading these other incidents [involving Whyte] as support for the claims already pled herein
arising out of the October 30, 2015 incident, which is what plaintiff had done [in the first
amended complaint], and what plaintiff may be attempting to argue now, namely that he had
already made claims herein arising out of those other incidents.”).) To that end, they agreed, as a
resolution of this dispute, to allow allegations to be pleaded as against Whyte only with respect
to the incidents on October 30, 2015. (Oral Arg. Tr. at 14:5-19.)
Because claims arising out of the September 2014 and January 2015 incidents involving
Whyte were not before this Court at the time of the Stipulation of Settlement in Nicholas’ other

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action against the City, and because they are covered by the broad language of the Stipulation of
Settlement, Nicholas may not amend his complaint to add the putative Fourth and Fifth Causes
of Action against Whyte. (SAC ¶¶ 162, 163.) 1 However, any additional factual description
surrounding those events—and Whyte’s involvement in them—may stand, as they represent
factual support for the Monell claims that had already been pleaded in this action in the first
amended complaint.
IV.

Conclusion
Plaintiff’s motion for leave to file an amended complaint is therefore GRANTED IN

PART and DENIED IN PART. The proposed amended complaint at Docket Number 88-1, not
including the Fourth and Fifth Causes of Action at Paragraphs 162 and 163, is hereby deemed
the operative complaint in this action and deemed filed with the Court.
The Clerk of Court is directed to close the motion at Docket Number 88.
SO ORDERED.
Dated: June 12, 2017
New York, New York
____________________________________
J. PAUL OETKEN
United States District Judge
COPY MAILED TO PRO SE PARTY BY CHAMBERS

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The Court need not address the validity of the General Release, which Nicholas
contests, because it finds that the terms of the Stipulation of Settlement cover these additional
putative claims against Whyte.
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