Sofia v. Esposito et al
Filing
116
OPINION AND ORDER. For the reasons set forth in this Opinion, Defendant's motion for summary judgment is GRANTED. Furthermore, Plaintiff's case is DISMISSED WITHOUT PREJUDICE as to the underlying merits of his claim. The Clerk of Court is d irected to terminate all pending motions, adjourn all remaining dates, and close this case. SO ORDERED. re: 102 MOTION for Summary Judgment filed by Gary D. Esposito. Gary D. Esposito terminated. (Signed by Judge Katherine Polk Failla on 12/4/2019) Copies Mailed By Chambers. (rjm) Transmission to Orders and Judgments Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ROBERT V. SOFIA,
Plaintiff,
-v.-
17 Civ. 1829 (KPF)
OPINION AND ORDER
GARY D. ESPOSITO,
Defendant.
KATHERINE POLK FAILLA, District Judge:
On February 23, 2016, Plaintiff Robert V. Sofia and Defendant Gary D.
Esposito, former co-owners of a comic book store, got into a physical
altercation inside the U.S. Bankruptcy Courthouse in lower Manhattan. On
March 10, 2017, Plaintiff filed a complaint, pro se, in this Court alleging
assault and asserting federal question jurisdiction as the basis for the Court’s
jurisdiction. Later, with the assistance of counsel, Plaintiff provided a more
specific jurisdictional basis, citing 41 C.F.R. § 102.74-390. Defendant now
moves for summary judgment, claiming both that the Court lacks subject
matter jurisdiction and that the applicable statute of limitations on Plaintiff’s
claim has passed. For the reasons set forth in this Opinion, the Court
concludes that it lacks subject matter jurisdiction and grants Defendant’s
motion, dismissing the case without prejudice.
BACKGROUND 1
A.
Factual Background
On February 23, 2016, Plaintiff and Defendant appeared at the U.S.
Bankruptcy Courthouse at One Bowling Green, in downtown Manhattan, for a
hearing regarding their former business, Brooklyn Comics and More, Inc.
(SAC 5). Plaintiff alleges that as he was speaking to Defendant’s counsel,
Defendant spit on him. (Id.). Plaintiff told Defendant that his action
constituted assault, and then turned away to proceed to the stairway. (Id.). At
this point, Plaintiff claims, Defendant charged after Plaintiff, grabbed him,
threw him to the ground, and scratched him, using a racial slur to refer to
Plaintiff. (Id.). Plaintiff alleges that he was taken to the hospital by an
ambulance after this altercation, and that he has suffered various injuries as a
result of it. (Id.).
B.
Procedural Background
Plaintiff originally filed this case in New York State Supreme Court on
February 17, 2017. (Pl. Decl. ¶ 3). However, on February 21, 2017, the state
1
The facts set forth in this Opinion are drawn from the Second Amended Complaint
(“SAC” (Dkt. #55)); Plaintiff’s Declaration in Opposition to the Motion for Summary
Judgment (“Pl. Decl.” (Dkt. #112)); Plaintiff’s Response to Defendant’s Statement of
Undisputed Facts (“Pl. 56.1 Opp.” (Dkt. #114)); and the exhibits attached to the
Declaration of Michael R. Rhodes (“Rhodes Decl., Ex. [ ]” (Dkt. #105)). For ease of
reference, Defendant’s opening brief is referred to as “Def. Br.” (Dkt. #103), and
Plaintiff’s opposition brief as “Pl. Opp.” (Dkt. #113).
Citations to a party’s 56.1 Statement incorporate by reference the documents cited
therein. Where facts stated in a party’s 56.1 Statement are supported by testimonial or
documentary evidence, and are denied with only a conclusory statement by the other
party, the Court finds such facts to be true. See Local Civil Rule 56.1(c) (“Each
numbered paragraph in the statement of material facts set forth in the statement
required to be served by the moving party will be deemed to be admitted for purposes of
the motion unless specifically controverted by a corresponding numbered paragraph in
the statement required to be served by the opposing party.”); id. at 56.1(d) (“Each
2
court advised Plaintiff that they did not have jurisdiction and told him that he
should try filing in this Court instead. (Id.). This Court’s Pro Se Intake Office,
in turn, referred Plaintiff to the pro se clinic run by the New York Legal
Assistance Group (“NYLAG”). (Id.). NYLAG advised Plaintiff that it would
research whether federal jurisdiction existed in this case, and later confirmed
to Plaintiff that it did. (Id.).
Plaintiff filed his original Complaint, pro se, on March 10, 2017, naming
as Defendants Gary D. Esposito and the latter’s counsel, Adam M. Levy, Esq.
(Dkt. #2). 2 In his original Complaint, Plaintiff asserted that federal question
jurisdiction was the basis for this Court’s subject matter jurisdiction.
(Compl. 2). When asked which of his federal constitutional or statutory rights
had been violated, Plaintiff alleged, “My right to feel safe inside a Federal Court
building because I am the victim of an assault that took place inside Federal
Property and have suffered much trauma.” (Id.).
On August 9, 2017, Plaintiff and Levy appeared for a pre-motion
conference regarding Levy’s anticipated motion to dismiss. (Dkt. #25
(transcript)). On September 29, 2017, Plaintiff filed his First Amended
Complaint (or “FAC”). (Dkt. #28). Plaintiff continued to assert federal question
jurisdiction, and in response to the question “[w]hich of your federal
statement by the movant or opponent ... controverting any statement of material fact[]
must be followed by citation to evidence which would be admissible, set forth as
required by Fed. R. Civ. P. 56(c).”).
2
Plaintiff’s original Complaint, and all subsequent complaints, were fillable form
complaints. See, e.g., Pro Se Complaint,
http://www.nysd.uscourts.gov/sites/default/files/2018-06/Complaint.pdf.
3
constitutional or federal statutory rights have been violated?,” Plaintiff
responded, “My right to feel safe and protected on Federal property and inside
a Federal Court building, I was the victim of a physical and verbal assault ….
This was a hate crime.” (FAC 2).
On October 16, 2017, Defendant Levy filed a motion to dismiss. (Dkt.
#31). After failing to oppose the motion, Plaintiff wrote to the Court on March
1, 2018, seeking to withdraw his lawsuit against Levy without prejudice. (Dkt.
#48). On March 9, 2018, Plaintiff requested leave to amend his First Amended
Complaint. (Dkt. #49). The Court granted Plaintiff’s request on March 13,
2018. (Dkt. #50). On April 10, 2018, the Court issued an Order and Opinion
dismissing Plaintiff’s claims against Levy with prejudice. (Dkt. #53).
Meanwhile, Defendant Esposito, pro se, answered Plaintiff’s First
Amended Complaint on March 30, 2018. (Dkt. #51). In consequence, on
April 2, 2018, the Court informed Defendant that it had granted Plaintiff leave
to amend his First Amended Complaint, and that Defendant would thus be
required to respond to that pleading once it was filed. (Dkt. #52). On June 5,
2018, Plaintiff filed his Second Amended Complaint (or “SAC”), which is the
operative complaint in this case. (Dkt. #55). Plaintiff again asserted federal
question jurisdiction, alleging, “I was the victim of a physical and verbal
assault …. This was a hate crime. My right to feel safe and protected on
Federal property and inside a Federal Court has been permanently
compromised.” (SAC 2).
4
Defendant answered Plaintiff’s Second Amended Complaint on June 25,
2018. (Dkt. #58). On July 31, 2018, the parties appeared pro se before the
Court for a pretrial conference. (Minute Entry of 7/31/2018). On August 2,
2018, the Court granted the parties’ respective requests for the appointment of
pro bono counsel for the limited purpose of assisting with discovery. (Dkt. #64).
On October 15, 2018, limited purpose pro bono counsel appeared for
Defendant. (Dkt. #65). On October 25, 2018, limited purpose pro bono counsel
appeared for Plaintiff. (Dkt. #66).
On December 18, 2018, the parties appeared with assistance of counsel
before the Court for a status conference. (Minute Entry of 12/18/2018). On
February 13, 2019, the parties submitted a Case Management Plan to the
Court outlining the deadlines for discovery. (Dkt. #74). Additionally, Plaintiff
indicated in a joint letter to the Court that he intended to amend his Complaint
further. (Id.). However, Plaintiff abandoned this course of action in a letter to
the Court dated February 20, 2019. (Dkt. #75).
On April 4, 2019, Defendant asked the Court for leave to file a motion for
judgment on the pleadings. (Dkt. #82). Additionally, on May 9, 2019,
Defendant requested a conference to discuss his motion to compel Plaintiff to
provide material facts underlying his claim of subject matter jurisdiction, as
requested by Defendant’s contention interrogatory. (Dkt. #88). On May 10,
2019, Defendant filed a motion for summary judgment (Dkt. #91), as opposed
to the previously requested motion for judgment on the pleadings (Dkt. #82);
the Court denied the motion as premature (Dkt. #95).
5
On May 17, 2019, the parties appeared with their respective counsel
before the Court for a pretrial conference. Given the apparent confusion on the
point, the Court asked Plaintiff’s counsel during the conference about the basis
for the Court’s subject matter jurisdiction. (See Dkt. #97 at 3:12-13).
Plaintiff’s counsel responded, “[i]t is federal question jurisdiction,” and said the
claim was based on “Title 41 Federal Code of Regulations Section 102-74.390.”
(See id. at 3:14-15, 4:1-2). Indeed, Plaintiff’s counsel informed the Court that
the cited regulation was “the only basis” for jurisdiction. (See id. at 5:9-12).
On May 20, 2019, the Court ordered Plaintiff to respond to Defendant’s
contention interrogatory and provide the factual basis for Plaintiff’s assertion of
subject matter jurisdiction. (Dkt. #96). On June 7, 2019, Plaintiff, with
assistance of counsel, responded to Defendant’s contention interrogatory that
called upon him to “[i]dentify all factual and legal bases to support a finding
that this Court has subject matter jurisdiction over this Action.” (Rhodes
Decl., Ex. 9 at 2). Plaintiff answered that the “physical attack occurred on
Federal Property, which is a violation of Title 41, Code of Federal Regulations,
Section 102-74.390.” (Id.). Fact discovery concluded on June 24, 2019 (Dkt.
#99), and Plaintiff’s counsel terminated her limited representation on July 11,
2019 (Dkt. #101).
On July 24, 2019, Defendant filed a motion for summary judgment along
with an accompanying memorandum of law and declaration. (Dkt. #102, 103,
105). On October 10, 2019, Plaintiff filed a declaration opposing Defendant’s
motion (Dkt. #112), and on October 15, 2019, Plaintiff filed a memorandum of
6
law opposing Defendant’s motion (Dkt. #113). On November 8, 2019,
Defendant filed his reply brief. (Dkt. #115).
DISCUSSION
A.
Applicable Law
1.
Summary Judgment Under Federal Rule of Civil Procedure 56
Under Federal Rule of Civil Procedure 56(a), a “court shall grant
summary judgment if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.”
Fed R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). 3 A genuine
dispute exists where “the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.” Fireman’s Fund Ins. Co. v. Great Am. Ins.
Co. of N.Y., 822 F.3d 620, 631 n.12 (2d Cir. 2016) (internal quotation marks
and citation omitted). A fact is “material” if it “might affect the outcome of the
suit under the governing law[.]” Anderson, 477 U.S. at 248. “In assessing the
record to determine whether there is a genuine issue to be tried, we are
required to resolve all ambiguities and draw all permissible factual inferences
in favor of the party against whom summary judgment is sought.” Gorzynski v.
3
The 2010 Amendments to the Federal Rules of Civil Procedure revised the summary
judgment standard from a genuine “issue” of material fact to a genuine “dispute” of
material fact. See Fed. R. Civ. P. 56, advisory comm. notes (2010 Amendments) (noting
that the amendment to “[s]ubdivision (a) … chang[es] only one word – genuine ‘issue’
becomes genuine ‘dispute.’ ‘Dispute better reflects the focus of a summary-judgment
determination.”). This Court uses the post-amendment standard, but continues to be
guided by pre-amendment Supreme Court and Second Circuit precedent that refers to
“genuine issues of material fact.”
7
JetBlue Airways Corp., 596 F.3d 93, 101 (2d Cir. 2010) (citing Anderson, 477
U.S. at 255).
While the moving party “bears the initial burden of demonstrating ‘the
absence of a genuine issue of material fact,’” ICC Chem. Corp. v. Nordic Tankers
Trading a/s, 186 F. Supp. 3d 296, 301 (S.D.N.Y. 2016) (quoting Catrett, 477
U.S. at 323), the party opposing summary judgment “must do more than
simply show that there is some metaphysical doubt as to the material facts,”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); see
also Brown v. Henderson¸257 F.3d 246. 252 (2d Cir. 2001). Rather, the
nonmoving party “must set forth specific facts showing that there is a genuine
issue for trial.” Parks Real Estate Purchasing Grp. v. St. Paul Fire & Marine Ins.
Co., 472 F.3d 33, 41 (2d Cir. 2006) (quoting Fed. R. Civ. P. 56(e)). “Where the
record taken as a whole could not lead a rational trier of fact to find for the
non-moving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at
587.
“When considering a dispositive motion made by or against a pro se
litigant the Court is ‘mindful that a pro se party’s pleadings must be ‘liberally
construed’ in favor of that party and are held to ‘less stringent standards than
formal pleadings drafted by lawyers.’’” Houston v. Teamsters Local 210,
Affiliated Health & Ins. Fund-Vacation Fringe Ben. Fund, 27 F. Supp. 3d 346,
351 (E.D.N.Y. 2014) (quoting Hughes v. Rowe, 449 U.S. 5, 9 (1980)). The
Second Circuit has instructed courts to interpret the submissions of a pro se
litigant “to raise the strongest arguments that they suggest.” See France v.
8
Morton, No. 12 Civ. 5576 (KMK), 2018 WL 1276860, at *8 (E.D.N.Y. Mar. 9,
2018) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir.
2006)). “Nonetheless, proceeding pro se does not otherwise relieve of a litigant
of the usual requirements of summary judgment, and a pro se party’s bald
assertions unsupported by evidence, are insufficient to overcome a motion for
summary judgment.” Houston, 27 F. Supp. 3d at 351 (internal quotation
marks and alterations omitted); see generally McLeod v. Jewish Guild for the
Blind, 864 F.3d 154 (2d Cir. 2017).
2.
Federal Question Jurisdiction
“Federal courts are courts of limited jurisdiction, possessing only that
power authorized by Constitution and statute.” Gunn v. Minton, 568 U.S. 251,
256 (2013) (internal quotation marks omitted) (quoting Kokkonen v. Guardian
Life Ins. Co. of America, 511 U.S. 375, 377 (1994)); accord Platinum-Montaur
Life Scis., LLC v. Navidea Biopharmaceuticals, Inc., — F.3d —, No. 18-3535-cv,
2019 WL 6258632, at *3 (2d Cir. Nov. 25, 2019) (collecting cases). “Individual
parties cannot confer subject matter jurisdiction where the Constitution and
Congress have not. The absence of such jurisdiction is non-waivable; before
deciding any case [the court is] required to assure [itself] that the case is
properly within [its] subject matter jurisdiction.” Perpetual Sec., Inc. v. Tang,
290 F.3d 132, 136 (2d Cir. 2002) (internal quotation marks omitted) (citing
Wynn v. AC Rochester, 273 F.3d 153, 157 (2d Cir. 2001)); see also Adames v.
Taju, 80 F. Supp. 3d 465, 467 (E.D.N.Y. 2015) (“Where a court lacks subject
matter jurisdiction, it must dismiss the complaint in its entirety.”).
9
The Constitution empowers federal courts to hear “all Cases, in Law and
Equity, arising under this Constitution, the Laws of the United States, and
Treaties Made, or which shall be made, under their Authority.” U.S. Const.
art. III, § 2, cl. 1. Furthermore, Congress has granted “the district courts …
original jurisdiction of all civil actions arising under the Constitution, laws, or
treaties of the United States.” 28 U.S.C. § 1331. This is known as federal
question jurisdiction, as contrasted with jurisdiction based on diversity of
citizenship, see 28 U.S.C. § 1332.
“Federal question jurisdiction exists where a well-pleaded complaint
‘establishes either that federal law creates the cause of action or that the
plaintiff’s right to relief necessarily depends on resolution of a substantial
question of federal law.’” Tang, 290 F.3d at 137 (italics omitted) (quoting
Greenberg v. Bear, Stearns & Co., 220 F.3d 22, 25 (2d Cir. 2000)). “[T]he vast
majority of cases brought under the general federal-question jurisdiction of the
federal courts are those in which federal law creates the cause of action.”
Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 808 (1986). “The plaintiff
bears the burden of proving subject matter jurisdiction by a preponderance of
the evidence.” Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638
(2d Cir. 2005).
B.
The Court Lacks Subject Matter Jurisdiction
Over the lifetime of this action, Plaintiff’s specific basis for federal
question jurisdiction has shifted dramatically. In the operative complaint,
which he filed pro se, Plaintiff asserted that the basis for jurisdiction was his
10
“right to feel safe and protected on Federal property.” (SAC 2). Then, when
Plaintiff had assistance of counsel, Plaintiff asserted to the Court (see Dkt. #97
at 3:14-15, 4:1-2), and to Defendant in a contention interrogatory (see Rhodes
Decl., Ex. 9 at 2), that his basis for jurisdiction was 41 C.F.R. § 102-74.390.
Now, for the first time, Plaintiff argues in his briefing that this Court has
subject matter jurisdiction because the assault at issue took place in a “federal
enclave.” (See Pl. Opp. 2). As the Court will explain in turn, Plaintiff has failed
to raise a triable issue of fact as to any of these asserted bases for subject
matter jurisdiction, and therefore the Court must dismiss the complaint.
1.
No Federal Question Is Presented on the Face of the Operative
Complaint
It is a general rule that “federal jurisdiction exists only when a federal
question is presented on the face of the plaintiff’s properly pleaded complaint.”
Adames, 80 F. Supp. 3d at 468 (quoting Beneficial Nat’l Bank v. Anderson, 539
U.S. 1, 12 (2003)). Of course, the Court recognizes that it has an obligation to
construe the Second Amended Complaint liberally and interpret it “to rise the
strongest argument that [it] suggest[s],” since it was filed pro se. See
Triestman, 470 F.3d at 474 (italics omitted). However, even when according
Plaintiff the “special solicitude” he is owed, see id. at 475, the Second Amended
Complaint cannot be read to raise a federal question.
At its core, Plaintiff’s Second Amended Complaint alleges a claim of
common-law battery that is non-cognizable under federal law. Cf. Henderson v.
Williams, No. 10 Civ. 1621 (JCH), 2013 WL 1984545, at *3 n.3 (D. Conn.
11
May 13, 2013) (“[T]here is no federal common law claim for assault or
battery.”). Plaintiff does plead that he was the victim of a hate crime (see
SAC 2), which could potentially implicate 18 U.S.C. § 249(a) (prohibiting the
willful causing of “bodily injury to any person … because of the actual or
perceived race, color, religion, or national origin of any person”). “However, this
law is a criminal statute that cannot be enforced by a private party in a civil
action such as this.” Lorenz v. Managing Director, St. Luke’s Hosp., No. 09 Civ.
8898 (DAB) (JCF), 2010 WL 4922267, at *8 (S.D.N.Y. Nov. 5, 2010). Moreover,
and as the Court will explain more fully below, there is not enough in this
Complaint or the larger record to allow the Court to find that Plaintiff has
adequately raised federal enclave jurisdiction. “[W]hether federal enclave
jurisdiction … exists is a complex question,” and it cannot be answered simply
by observing that the underlying acts took place on federal property. See Abdi
v. Brookhaven Science Assocs., LLC, 447 F. Supp. 2d 221, 227-28 (E.D.N.Y.
2006) (alterations omitted) (refusing to decide whether certain property was a
federal enclave when the only evidence offered was a “Deed of Cession” from
the State of New York to the United States). A rational fact-finder could not
find subject matter jurisdiction on such bare pleadings, even given Plaintiff’s
pro se status, and neither can the Court.
2.
41 C.F.R. § 102-74.390 Does Not Provide a Private Right of
Action
Although the regulation was not cited in any of Plaintiff’s three
complaints, Plaintiff and Plaintiff’s counsel represented to the Court and to
12
Defendant, through a contention interrogatory, that his asserted basis for
jurisdiction was 41 C.F.R. § 102-74.390. (See Dkt. #97 at 3:14-15, 4:1-2;
Rhodes Decl., Ex. 9 at 2). Section 102-74 is titled, “Facility Management,” and
Subpart C, wherein the regulation lies, is titled, “Conduct on Federal Property.”
Section 102-74.390 is titled, “What is the policy concerning disturbances?” It
provides:
All persons entering in or on Federal property are
prohibited from loitering, exhibiting disorderly conduct
or exhibiting other conduct on property that —
(a) Creates loud or unusual noise or a nuisance;
(b) Unreasonably obstructs the usual use of entrances,
foyers, lobbies…;
(c) Otherwise impedes or disrupts the performance of
official duties by Government employees; or
(d) Prevents the general public from obtaining the
administrative services provided on the property in a
timely manner.
41 C.F.R. § 102-74.390. Assuming arguendo that it may accept this regulation
as Plaintiff’s basis for federal question jurisdiction, the Court must nonetheless
determine whether the regulation suffices as a basis for the Court to exercise
its subject matter jurisdiction. Given Plaintiff’s pro se status, the Court will
also set to the side the fact that Plaintiff seems to have abandoned this basis
for jurisdiction in his briefing.
A regulation, by itself, may not create a private right of action. See
Alexander v. Sandoval, 532 U.S. 275, 286 (2001) (“[P]rivate rights of action to
enforce federal law must be created by Congress.” (emphasis added)). In order
13
to maintain an action pursuant to 28 U.S.C. § 1331, a plaintiff must be able to
point to a statute that creates a private right of action. See Kinneary v. City of
N.Y., 358 F. Supp. 2d 356, 360 (S.D.N.Y. 2005) (dismissing a case for lack of
subject matter jurisdiction because the statute relied on did not create any
private right of action). “A federal statute may create a private right of action
either expressly or, more rarely, by implication. Republic of Iraq v. ABB AG,
768 F.3d 145, 170 (2d Cir. 2014). Express rights of action are evident from the
text of the statute. See, e.g., 15 U.S.C. § 78p(b) (2018) (“Suit to recover such
profit may be instituted at law or equity in any court of competent jurisdiction
by the issuer.”). In order to determine whether a statute creates a private right
of action, “the statute in question must evidence congressional intent” to do so.
See Abrahams v. MTA Long Island Bus, 644 F.3d 110, 117 (2d Cir. 2011).
“Absent such intent, ‘a cause of action does not exist and courts may not
create one.’” Id. (quoting Sandoval, 532 U.S. at 286-87). “Language in a
regulation may invoke a private right of action that Congress through statutory
text created, but it may not create a right that Congress has not.” Sandoval,
532 U.S. at 291.
Following Sandoval, the Court must look back to the authorizing statute
for § 102-74.390 to determine whether it provides for either an express or
implicit private right of action. The relevant statute is 40 U.S.C. § 121 (2018).
Section 121(c)(1) provides that “[t]he Administrator [of General Services] may
prescribe regulations to carry out this subtitle,” and § 121(c)(2) mandates that
the Administrator “prescribe regulations that the Administrator considers
14
necessary to carry out the Administrator’s functions under this subtitle.”
Nowhere in the statute does the text provide for an express private right of
action. Thus, 40 U.S.C. § 121 must provide an implied private right for
Plaintiff to be able to rely on § 102-74.390 for federal question jurisdiction.
In analyzing statutes for the existence of implied rights of action, the
Second Circuit looks “first to the text and structure of the statute.” See
Republic of Iraq, 768 F.3d at 170 (quoting Lindsay v. Assoc. of Prof’l Flight
Attendants, 581 F.3d 47, 52 (2d Cir. 2009)). “For a statute to create private
rights, its text must be phrased in terms of the persons benefitted.” Gonzaga
Univ. v. Doe, 536 U.S. 273, 274 (2002). It is clear from the text and structure
of 40 U.S.C. § 121 that Congress had no intention of creating an implied
private right of action. With the exception of § 121(b), which discusses the
Comptroller General, the statute is focused entirely on the duties and powers of
the Administrator of General Services. In no way does the statute discuss the
creation of rights for any individual, nor does it speak of “persons benefitted.”
As a reference, Defendant helpfully points in his brief to an analogous
situation in Armstrong v. Exceptional Child Center, Inc., 135 S. Ct. 1378 (2015).
(See Def. Br. 11). In that case, the Supreme Court found that § 30(A) of the
Medicaid Act did not provide for an implied private right of action because the
statute “lack[ed] the sort of rights-creating language needed.” Id. at 1387. The
Act provided “that the ‘Secretary shall approve any plan which fulfills the
conditions specific in subsection (a),’” which the Supreme Court found was “a
directive to the federal agency …, not … a conferral of the right to sue.” See id.
15
Moreover, the Supreme Court noted that “the explicitly conferred means of
enforcing compliance with § 30(A) … suggests that other means of enforcement
are precluded.” Id. (citing Sandoval, 532 U.S. at 290).
Similar to the relevant statute in Armstrong, 40 U.S.C. § 121 is framed as
a directive to the Administrator, providing the authority by which the
Administrator may prescribe regulations or delegate authority, amongst other
actions. Furthermore, although the statute itself does not provide an express
enforcement mechanism, 41 C.F.R. § 102-74.450 (2005) states, “A person
found guilty of violating any rule or regulation in this subpart … shall be fined
under title 18 of the United States Code, imprisoned for not more than 30 days,
or both.” Plaintiff’s proffered regulation thus provides its own enforcement
mechanism — criminal penalties — which “suggests that other means of
enforcement are precluded.” Armstrong, 135 S. Ct. at 1387.
As the above analysis makes clear, neither 41 C.F.R. § 102-74.390 nor
its authorizing statute creates a private right of action, express or implied.
Therefore, there is no genuine dispute as to whether § 102-74.390 can serve as
a basis for subject matter jurisdiction. If this is the basis the Court must rely
on, the Court has no choice but to dismiss Plaintiff’s claim.
3.
Plaintiff Is Precluded from Relying on Federal Enclave
Jurisdiction
In his opposing brief, Plaintiff for the first time asserts that the Court
properly has subject matter jurisdiction because the underlying acts occurred
in a “federal enclave.” (See Pl. Opp. 2). The Court cannot opine on whether the
U.S. Bankruptcy Courthouse in Manhattan is indeed a federal enclave, as the
16
Court has no evidence to support the site’s qualification for that status except
that it is owned by the federal government. (See id. at 3). The Court need not
decide that question, though, as Plaintiff is precluded from advancing this
theory at this late stage of the litigation.
Plaintiff is precluded from any reliance on a federal enclave theory of
jurisdiction because Plaintiff expressed in a contention interrogatory, while
represented by counsel, that his sole basis for jurisdiction was 41 C.F.R. § 10274.390. (See Rhodes Decl., Ex. 9 at 2). Multiple courts in this District and
Circuit have recognized that answers to contention interrogatories can bind
parties to their answers. See In re Methyl Tertiary Butyl Ether (“MTBE”) Prod.
Liab. Litig., MDL No. 1358 (SAS), 2014 WL 494522, at *2-3 (S.D.N.Y. Feb. 6,
2014); Wechsler v. Hunt Health Sys., Ltd., No. 94 Civ. 8294 (PKL), 1999 WL
672902, at *2 (S.D.N.Y. Aug. 27, 1999); see also Pierre v. Hilton Rose Hall
Resort & Spa, No. 14 Civ. 3790 (VMS), 2016 WL 4742281, at *7 (E.D.N.Y.
Sept. 12, 2016). This is because contention interrogatories are “designed to
assist parties in narrowing and clarifying the disputed issues and reducing the
possibility of surprise at trial.” See Wechsler, 1999 WL 672902, at *1. Because
“the answering party is usually afforded ample opportunity fully to reflect on
the question, to consult all pertinent sources of information …, and to seek the
advice and assistant of counsel in order to craft answers that provide a full and
accurate disclosure,” see id. at *2, “[c]ontention interrogatories are treated as
judicial admissions which usually estop the responding party from later
17
asserting positions not included in its answers,” In re MTBE Prod. Liab. Litig.,
2014 WL 494522, at *2.
A party can potentially avoid this harsh sanction by making a motion
and being heard in court on the matter. See Design Strategy, Inc. v. Davis, 469
F.3d 284, 298 (2d Cir. 2006). No such motion has been made here, though,
and therefore Plaintiff’s failure to disclose or supplement his answer to the
contention interrogatory will result in preclusion unless it can be shown that
such failure was “substantially justified or … harmless.” See In re MTBE Prod.
Liab. Litig., 2014 WL 494522, at *3; Fed. R. Civ. P. 37(c)(1). This is especially
the case “when such failure results in prejudice to the adverse party.” See In re
MTBE Prod. Liab. Litig., 2014 WL 494522, at *3 (citing Unigene Labs. v. Apotex,
Inc., No. 06 Civ. 5571 (RPP), 2010 WL 2730471, at *6 (S.D.N.Y. July 7, 2010),
aff’d, 655 F.3d 1352 (Fed. Cir. 2011)).
The Court finds that Plaintiff’s previous failures to assert his federal
enclave theory, either in his original answer to the contention interrogatory or
as a supplement, were neither substantially justified nor harmless. While it is
true that prior to and following discovery Plaintiff has proceeded pro se, there is
no dispute that Plaintiff was represented by competent counsel throughout the
discovery process, including when Plaintiff responded to the contention
interrogatory. (See Pl. 56.1 Opp. ¶¶ 19-21). Plaintiff cannot escape the
consequences of his actions while counseled simply due to the termination of
that representation.
18
What is more, Plaintiff’s failure to disclose this theory is far from
harmless. As previously mentioned, “whether federal enclave jurisdiction …
exists is a complex question,” see Abdi, 447 F. Supp. 2d at 227, requiring an
analysis of the manner in which the federal government holds the land (i.e.,
leaseholder versus owner), when the federal government took ownership of the
land, and whether the State gave its consent to the federal government’s
acquisition and assertion of exclusive jurisdiction, see Paul v. United States,
371 U.S. 245, 264-65 (1963). Defendant would need considerably more time
and discovery in order to begin addressing this theory properly, despite the fact
that it has been nine months since the commencement of discovery, five
months since its completion, and four months since Defendant filed his motion
for summary judgment. Indeed, even if Plaintiff’s theory were not precluded,
the Court does not have the record necessary to find that Plaintiff had raised a
genuine dispute as to jurisdiction. To allow Plaintiff to assert this novel theory
this late in the game, after Plaintiff had the assistance of counsel for the
entirety of discovery, would be to render Rule 37(c)(1) toothless. The Court
cannot accept Plaintiff’s theory of federal enclave jurisdiction.
In sum, the Court finds that Plaintiff has failed to raise a triable issue as
to whether this Court properly has subject matter jurisdiction over this
litigation, and the matter must be dismissed pursuant to Rule 12(b)(1). Given
this resolution, the Court does not consider Defendant’s further argument that
Plaintiff’s claim is barred by the statute of limitations. See Cornwell v. Credit
Suisse Grp., 666 F. Supp. 2d 381, 385-86 (S.D.N.Y. 2009) (“[A]bsent authority
19
to adjudicate, the Court lacks a legal basis to grant any relief, or even consider
the action further.”); Norex Petroleum Ltd. v. Access Indus., 540 F. Supp. 2d
438, 449 (S.D.N.Y. 2007) (observing that dismissal for lack of jurisdiction
“moots, and thus terminates, all other pending motions”).
CONCLUSION
For the reasons set forth in this Opinion, Defendant’s motion for
summary judgment is GRANTED. Furthermore, Plaintiff’s case is DISMISSED
WITHOUT PREJUDICE as to the underlying merits of his claim. The Clerk of
Court is directed to terminate all pending motions, adjourn all remaining dates,
and close this case.
SO ORDERED.
Dated:
December 4, 2019
New York, New York
__________________________________
KATHERINE POLK FAILLA
United States District Judge
A copy of this Order was mailed by Chambers to:
Robert V. Sofia
29 38th Drive
Little Neck, NY 11363
20
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?