McGee v. Dunn et al
Filing
122
MEMORANDUM OPINION AND ORDER GRANTING THE PLAINTIFF'S MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT AND DISMISSING THE FIRST AMENDED COMPLAINT AS MOOT: For the reasons above, the plaintiff's motion for leave to file a second amended complaint (ECF No. 111) is GRANTED. Further, the plaintiff's first amended complaint is DISMISSED AS MOOT. All deadlines provided in this Court's most recent scheduling order (ECF No. 103)shall remain in effect. IT IS SO ORDERED. The Clerk is DIRECTED to transmit a copy of this memorandum opinion and order to counsel of record herein. Furthermore, the Clerk is DIRECTED to file the second amended complaint. (Signed by Judge Frederick P. Stamp, Jr on 12/30/2014) (lnl)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------X
JAMES P. McGEE,
Plaintiff,
v.
09 Civ. 6098 (FPS)
MEMORANDUM OPINION AND ORDER GRANTING THE
PLAINTIFF’S MOTION FOR LEAVE TO FILE A
SECOND AMENDED COMPLAINT AND DISMISSING
THE FIRST AMENDED COMPLAINT AS MOOT
JAMES DUNN, TOWN OF CARMEL,
TOWN OF CARMEL POLICE
DEPARTMENT, CHRISTOPHER FOX,
individually and in his official capacity,
ROBERT BAGNAROL, individually and in
his official capacity, BRIAN KARST,
individually and in his official capacity,
JOHN (JACK) HARNEY, individually and
in his official capacity, MICHAEL CAZZARI,
individually and in his official capacity,
CHIEF MICHAEL R. JOHNSON, individually
and in his official capacity.
Defendants.1
--------------------------------------------X
I. Procedural History
This action arises out of a longstanding dispute between the
plaintiff, James P. McGee, and one of the fifteen named defendants,
James Dunn. Because of the long procedural and factual history of
this civil action, the summary provided discusses only the most
1
In this memorandum opinion and order, the caption above is
styled as provided in the first amended complaint. ECF No. 99.
However, because the first amended complaint will be dismissed as
moot for reasons described herein, all future filings of the
parties must use the caption as styled in the second amended
complaint.
relevant information.2 The plaintiff originally filed a complaint
in the United States District Court for the Southern District of
New York seeking to redress violations of his constitutional rights
arising from a false arrest for alleged witness tampering in the
fourth degree. In his complaint, the plaintiff asserted claims
against the following defendants: Ector Perez Galindo (“Galindo”);
the Putnam County District Attorney’s Office, Kevin Wright, and
Robert Noah (collectively the “PCDA defendants”); the Town of
Carmel and the Carmel Police Department; the Carmel Police Officers
Christopher Fox, John Doe, Detective Robert Bagnarol, Lieutenant
Brian Karst, Sergeant John Harney, Lieutenant Michael Cazzari, and
Chief Michael R. Johnson (collectively “the officer defendants”);
and
James Dunn (“Dunn”) and J. Dunn Construction Corp. (“Dunn
Construction”).
The plaintiff alleges in his complaint that the
defendants conspired to bring about his arrest and prosecution
based on false and misleading evidence and to engage in a malicious
abuse of process.
The plaintiff brings his complaint pursuant to
42 U.S.C. § 1983, alleging due process violations that resulted
from the defendants’ conspiracy. According to the plaintiff, he is
entitled to compensatory damages, punitive damages, and attorney’s
fees for the mental and emotional pain and suffering he has
experienced as a result of the defendants’ alleged conspiracy.
2
For a more complete factual and procedural summary, see this
Court’s prior memorandum opinions and orders. See, e.g., ECF Nos.
80 and 83.
2
According to the plaintiff, Dunn used his influence with the
Carmel Police Department and the District Attorney’s Office to have
the
plaintiff
arrested.
Dunn
allegedly
did
that
to
gain
an
advantage in civil litigation between Dunn and the plaintiff,
arising from a contract dispute concerning home improvement work
that Dunn performed at McGee’s residence.
The plaintiff alleges
that the defendants were involved in a conspiracy to “do favors”
for friends, including Dunn, and that this conspiracy led to the
false arrest and malicious prosecution of the plaintiff.
Later, the following defendants filed motions to dismiss: (1)
Galindo; (2) PCDA defendants; (3) the Town of Carmel and the Carmel
Police
Department;
(4)
the
officer
defendants;
(5)
Dunn
Construction; and (6) Dunn. Because Dunn filed for bankruptcy at
that time, the claims against him were stayed until the bankruptcy
court lifted the automatic stay, pursuant to 11 U.S.C. § 362. This
Court entered a memorandum opinion and order granting the abovelisted defendants’ motions to dismiss, with the exception of Dunn.
ECF No. 50. Specifically, this Court dismissed the claims against
Galindo because the plaintiff failed to sufficiently plead that
Galindo conspired with the state actors as required under a § 1983
claim. Regarding the officer defendants, the Town of Carmel and the
Carmel Police Department, this Court dismissed the claims against
them
due
to
Construction,
qualified
this
immunity.
granted
its
3
Finally,
motion
to
concerning
dismiss.
Dunn
Therefore,
following that memorandum opinion and order, only the claim against
Dunn remained.
However, the action against him was stayed until
the bankruptcy court lifted the automatic stay.
Following that memorandum opinion and order, the plaintiff
appealed that ruling (ECF No. 50) to the United States Court of
Appeals for the
Second Circuit (“Court of Appeals”).
However, a
stay of appeal was entered by the Court of Appeals because the
plaintiff then file a motion to reconsider and motion to amend the
complaint. This Court denied the plaintiff’s motion to reconsider
and motion to filed an amended complaint in a subsequent memorandum
opinion and order. ECF No. 80. After that opinion, Dunn notified
this Court that the stay had been lifted on the action against him.
This Court then entered a memorandum opinion and order granting
Dunn’s prior motion to dismiss. ECF No. 83.
On September 15, 2014, the Court of Appeals issued its
mandate, which affirmed in part and vacated in part this Court’s
rulings on several matters.
ECF No. 93. The Court of Appeals
affirmed this Court’s rulings regarding: (1) dismissal of claims
against
Galindo;
(2)
dismissal
of
claims
against
the
PCDA
defendants; and (3) dismissal of the malicious prosecution claim.
Further,
the
Court
of
Appeals
found
the
claim
against
Dunn
Construction was abandoned due to insufficient allegations, which
this Court previously determined.
4
However, the Court of Appeals disagreed with three rulings by
this Court, and accordingly vacated them. First, regarding the
claims
against
Dunn,
the
Court
found
that
the
plaintiff
sufficiently stated a claim against Dunn for a § 1983 conspiracy,
contrary to this Court’s findings. Although they disagreed with
this Court regarding the § 1983 conspiracy claim, they did affirm
this Court’s finding that the underlying malicious prosecution
claim is barred against Dunn.
Second, the Court of Appeals disagreed with the dismissal of
the claims against the officer defendants. This Court found in its
opinion that the officer defendants arguably had probable cause to
arrest the plaintiff and thus their actions were subject to
qualified immunity. ECF No. 50. However, the Court of Appeals
disagreed, finding instead that this Court erred in determining
that
those
defendants
were
entitled
to
qualified
immunity.
Accordingly, the Court of Appeals vacated the dismissal of those
claims against the officer defendants.
Finally, the Court of Appeals disagreed with this Court’s
denial of the plaintiff’s initial motion to amend the complaint.
Specifically, the Court of Appeals found that because this action
remained in its early stages and that circumstances outside of the
plaintiff’s control contributed to his delay in filing a motion to
amend, the plaintiff should have been afforded an opportunity to
amend the complaint. However, the Court of Appeals did place a
5
limit on the extent of any amended complaint. In particular, the
Court of Appeals stated that, after viewing the proposed amendment,
the plaintiff was not permitted to reinstate any claims against any
party
whose
dismissal
from
the
action
the
Court
of
Appeals
affirmed. Also, the Court of Appeals stated that the complaint
cannot be amended to add Putnam County as a party because the
complaint fails to sufficiently state that the municipality via
policy or custom violated any of the plaintiff’s rights. Following
the mandate of the Court of Appeals, this Court conducted a status
and scheduling conference. ECF No. 97. Further, this Court entered
an order directing the plaintiff to file his amended complaint by
November 10, 2014. ECF No. 98.
At
issue
in
this
memorandum
opinion
and
order
is
the
plaintiff’s motion to amend/correct that amended complaint. On
November 10, 2014, the plaintiff filed his amended complaint,
pursuant to this Court’s order. ECF No. 99. Further, then-counsel
for the plaintiff, Lauren Klein, wrote a letter to the Court
indicating that she would be substituted as counsel and that she
was filing the amended complaint to avoid any prejudice to her
client, who she still represented at that time. ECF No. 100. One
week later, the plaintiff filed a notice of substitution of
counsel. ECF No. 106.
The plaintiff has now filed a motion to amend/correct the
amended complaint. ECF No. 111.
6
In it, new counsel for the
plaintiff claims that he reviewed the transcript of the status and
scheduling conference that this Court conducted.
As a result, he
claims to have revised the complaint so as to better comply with
the mandate of the Court of Appeals, as well as considerably
reduced its length. Thus, in order to reconcile the deficiencies in
the complaint with that of the Court of Appeals’s mandate, the
plaintiff requests that this Court grant him leave to file a second
amended complaint.3
In response, Dunn filed a memorandum in
opposition to the plaintiff’s motion. ECF No. 119. The defendant
Dunn claims that the plaintiff’s proposed second amended complaint
contains new allegations that contradict prior ones
and overall
demonstrates the plaintiff’s bad faith motives. Because of that,
the defendant Dunn requests that this Court deny the plaintiff’s
motion.
With
the
exception
of
Dunn,
none
of
the
remaining
defendants filed a response.
The
plaintiff
then
filed
a
reply,
arguing
that
Dunn’s
arguments asserting bad faith lack any merit. Specifically, the
plaintiff points to Kant v. Columbia University, No. 08CV7476, 2010
WL 807442 (S.D.N.Y. Mar. 9, 2010), alleging that he did not allege
new facts or allegations “so contradictory of his earlier pleadings
as to indicate bad faith.” ECF No. 120. Further, the plaintiff also
3
The remaining defendants filed motions by letter, requesting
that this Court postpone any answers to the previously filed
amended complaint until this Court ruled on the plaintiff’s motion
at issue. This Court granted the defendants’ requests. ECF Nos. 116
and 117.
7
claims that to the extent that the previously dismissed defendants
are referenced in the second amended complaint, such references are
necessary to establish context and a logical summary of the facts.
For those reasons, the plaintiff seeks to file a second amended
complaint.
III.
Federal
Rule
of
Applicable Law
Civil
Procedure
15(a)(1)(A)
states,
in
pertinent part, that “[a] party may amend its pleading once as a
matter of course . . . before being served with a responsive
pleading.”
If a party seeks to amend its pleadings in all other
cases, it may only do so “with the opposing party’s written consent
or the court’s leave.
justice so requires.”
Rule
15(a)
The court should freely give leave when
Fed. R. Civ. P. 15(a)(2).
grants
the
district
court
broad
discretion
concerning motions to amend pleadings, and leave should be granted
absent some reason “such as undue delay, bad faith, or dilatory
motive
on
the
part
of
the
movant,
repeated
failure
to
cure
deficiencies by amendments previously allowed, undue prejudice to
the opposing party by virtue of allowance of the amendment or
futility of the amendment.”
Foman v. Davis, 371 U.S. 178, 182
(1962); see also Ruotolo v. City of N.Y., 514 F.3d 184, 191 (2d
Cir. 2007); In re Tamoxifen Citrate Antitrust Litig., 429 F.3d 370,
404 (2d Cir. 2005); Ward Elec. Serv. v. First Commercial Bank, 819
8
F.2d 496, 497 (4th Cir. 1987); Gladhill v. Gen. Motors Corp., 743
F.2d 1049, 1052 (4th Cir. 1984).
IV.
Discussion
In his motion, the plaintiff argues that this Court should
grant him the opportunity to file a second amended complaint. In
support of this request, the plaintiff claims that the proposed
complaint better complies with the requirements and limitations
that the Court of Appeals provided in both its opinion and mandate.
Further, the plaintiff also notes that his current counsel was
substituted
after his prior counsel already submitted the first
amended complaint. ECF No. 106. Based on the circumstances, as well
as the lack of dilatory or bad faith motives on the part of the
plaintiff, he requests that this Court grant his motion to file a
second amended complaint.
This Court agrees that the plaintiff should be permitted to
file a second amended complaint as proposed. As indicated earlier,
“[d]istrict courts ‘ha[ve] broad discretion to decide whether to
grant leave to amend.’” Kant, 2010 WL 807442, at *4 (quoting In re
Tamoxifen Citrate Antitrust Litig., 429 F.3d 370, 404 (2d Cir.
2005)). Although leave to amend the complaint should be liberally
granted, situations exist where such an opportunity should be
denied. Ruotolo v. City of N.Y., 514 F.3d 184, 191 (2d Cir. 2007).
Those situations include “undue delay, bad faith or dilatory motive
on the part of the movant, repeated failure to cure deficiencies by
9
amendments previously allowed, undue prejudice to the opposing
party by virtue of allowance of the amendment, futility of the
amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962). After
comparing
the
current
amended
complaint
and
the
plaintiff’s
proposed second amended complaint, the plaintiff simply shortened
the length of the complaint and re-framed the allegations so as to
comply with the mandate of the Court of Appeals. Further, the
recently substituted counsel did not have an opportunity to file an
amended complaint. Rather, the plaintiff’s previous counsel still
represented the plaintiff when the deadline to file the initial
amended complaint arose.
Pursuant to the discretion that this
Court possesses, the plaintiff should be afforded an opportunity to
file a second amended complaint.
As mentioned earlier, however, only Dunn filed a response in
opposition. ECF No. 119. In his response, Dunn first claims that
the plaintiff’s motion should be denied because the plaintiff is
allegedly acting in bad faith. Second, Dunn asserts that the
plaintiff references certain defendants in the complaint, despite
the fact that the claims against them were dismissed.
Regarding
his bad faith argument, Dunn cites to Kant, stating that “leave to
amend should be denied when a proposed amended complaint presents
new facts and allegations so contradictory to his earlier pleadings
as to indicate bad faith.” ECF No. 119. If the facts of this civil
action mirrored the circumstances in Kant, perhaps Dunn’s argument
10
would be persuasive. The situation in this civil action, however,
does not.
In Kant, a pro se4 plaintiff attempted to file a second
amended complaint. That civil action involved a professor who
alleged
his
supervisors
promised
him
a
term
position
if
he
completed certain requirements. Kant, 2010 WL 807442, at *8.
However, the plaintiff in that case alleged in his first amended
complaint that he received an orally made employment contract where
performance would span two years. Id. Then, in his motion to file
a second amended complaint, he restated the facts, providing that
the same employment contract’s performance would only span one
year. Id. The court in that case determined that the plaintiff
changed his allegations so as to comply with the statute of frauds.
Id. at 6-7.
That, among many other stark changes in the facts and
allegations within the complaint, demonstrated to that Court the
plaintiff’s bad faith. Id.
“[c]ourts
are
free
to
As the court provided in its opinion,
consider
direct
contradictions
between
earlier pleadings and a proposed amended pleading in determining
whether to grant leave to amend, particularly when the proposed
amendments concern facts clearly within the plaintiff’s knowledge
when previous complaints were filed.” Id. at *7.
Accordingly, the
court in that case denied the plaintiff’s request for leave to file
4
Pro se describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Black’s Law
Dictionary 1416 (10th ed. 2014).
11
a second amended complaint, finding that the plaintiff acted in bad
faith.
In this civil action, no such situation exists. Unlike the
situation in Kant, the plaintiff’s actions here do not demonstrate
any indications of bad faith. Rather, the plaintiff’s proposed
second amended complaint attempts to better comply with the mandate
of the Court of Appeals. Further, the plaintiff does not appear to
circumvent any defenses asserted or prohibitory legal doctrines,
which the plaintiff in Kant attempted to do. It should also be
noted
that
Dunn
also
asserts
that
the
plaintiff
references
individuals in the proposed second amended complaint, such as
Galindo and Noah, despite the claims against them being dismissed.
Although this Court dismissed those claims against such defendants,
the plaintiff does not re-assert new or prior claims against them.
Rather, the plaintiff simply references those defendants in order
to provide context and a logical summary of the facts within the
complaint. Without those references, the complaint makes less
sense. Therefore, for the reasons provided above, the plaintiff’s
motion
should
be
granted.
Accordingly,
the
plaintiff’s
first
amended complaint (ECF No. 99) is dismissed as moot.
V.
Conclusion
For the reasons above, the plaintiff’s motion for leave to
file a second amended complaint (ECF No. 111) is GRANTED. Further,
the plaintiff’s first amended complaint is DISMISSED AS MOOT. All
12
deadlines provided in this Court’s most recent scheduling order
(ECF No. 103)shall remain in effect.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein. Furthermore, the
Clerk is DIRECTED to file the second amended complaint.
DATED:
December 30, 2014
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
13
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