Hoefer v. Board of Education of the Enlarged City School District of Middletown et al

Filing 44

OPINION AND ORDER re: 39 MOTION for Leave to File Summary Judgment Motion, filed by Kenneth Eastwood. For the reasons set forth above, Defendants' Motion for Permission to File a Dispositive Motion is hereby DENIED. The Clerk of the Court is r espectfully directed to terminate this motion, Doc. 39. The parties are directed to appear for a pre-trial conference on April 22, 2014 at 11:30 a.m. in Courtroom 619, at the Thurgood Marshall United States Courthouse, 40 Foley Square, New York, New York. It is SO ORDERED. (Pretrial Conference set for 4/22/2014 at 11:30 AM in Courtroom 619, 40 Centre Street, New York, NY 10007 before Judge Edgardo Ramos.) (Signed by Judge Edgardo Ramos on 4/4/2014) (ja)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#
DATE FILED: 4/4/14

FRANCIS E. HOEFER,
Plaintiff,
- against -

OPINION AND ORDER

BOARD OF EDUCATION OF THE ENLARGED
CITY SCHOOL DISTRICT OF MIDDLETOWN,
DR. KENNETH EASTWOOD, WILLIAM
GEIGER, JOHN DOE 1 and JOHN DOE 2,

10 Civ. 3244 (ER)

Defendants.

Appearances:
Michael Howard Sussman
Sussman & Watkins
Goshen, New York
Attorney for Plaintiff
John F. McKay, III
Howard M. Miller
Bond, Schoeneck & King, PLLC
Garden City, New York
Attorneys for Defendant Dr. Kenneth Eastwood
Ramos, D.J.:
On April 16, 2010, Francis E. Hoefer (“Plaintiff”) commenced this action pursuant to 42
U.S.C. § 1983 against the Board of Education of the Enlarged City School District of
Middletown (the “Middletown Board” or the “Board”), Dr. Kenneth Eastwood (“Eastwood”) and
William Geiger (“Geiger”), claiming violations of the First and Fourth Amendments. Doc. 1
(“Compl.”). 1 Plaintiff alleges that Eastwood, Geiger and the Middletown Board (the “School
1

Plaintiff also brought a claim against two John Doe Defendants, alleging that they violated the Fourth Amendment
by arresting and detaining Plaintiff without probable cause. Compl. ¶ 43. However, the Court deemed Plaintiff’s
claims against the John Doe Defendants abandoned and terminated them from the case on January 9, 2013. See
Doc. 21.

District Defendants”) violated Plaintiff’s First Amendment rights by preventing him from
speaking during the public participation portion of a public school board meeting and by
excluding Plaintiff from the meeting (the “First Amendment claim”), Compl. ¶¶ 40, 41, and that
Eastwood violated Plaintiff’s Fourth Amendment rights by causing his detention and arrest
without probable cause (the “false arrest claim”), id. ¶ 42. On March 23, 2012, the School
District Defendants successfully moved for partial summary judgment on Plaintiff’s false arrest
claim against Eastwood. Doc. 21 (“Jan. 9, 2013 Order”). Defendants did not move for summary
judgment on the First Amendment claim at that time.
Before the Court is Eastwood’s motion for leave to file a second motion for summary
judgment, this time addressing Plaintiff’s First Amendment claim, as well as a motion for
judgment on the pleadings under Rules 12(c) and 12(h)(2) of the Federal Rules of Civil
Procedure. Doc. 39. The only changed circumstance between March 23, 2012 and the present is
the identity of Eastwood’s counsel.
For the reasons set forth below, Eastwood’s motion, Doc. 39, is DENIED.
I. Procedural History
On March 23, 2012, the School District Defendants moved for partial summary judgment
exclusively on Plaintiff’s false arrest claim against Eastwood, Doc. 11, which the Court granted
by Order dated January 9, 2013. See Jan. 9, 2013 Order. 2
Shortly thereafter, on January 29, 2013, the Court held a status conference, at which time
it scheduled this matter for a jury trial to commence on May 6, 2013. Dkt. No. 10 Civ. 3244
(Minute Entry 1/29/2013). In accordance with the pretrial schedule set by the Court, the School
District Defendants filed a joint preliminary trial report on April 8, 2013 (Doc. 23) and a motion
2

The Court assumes familiarity with the underlying facts of this case, which it more fully set forth in the January 9,
2013 Order.

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in limine on April 15, 2013 (Doc. 24). The joint pretrial order specified that the trial would focus
on the only two remaining issues: (1) “[w]hether [the School District D]efendants violated
[P]laintiff[’s] right to free speech under the First Amendment when they prevented him from
speaking at a public meeting of the Middletown District … on March 4, 2010” and (2) if so, what
damages the School District Defendants owe Plaintiff. Joint Pretrial Order 2.
However, on April 22, 2013, counsel for the parties—Mr. Sussman, for Plaintiff, and Mr.
Mehnert, former counsel to all three School District Defendants—jointly informed the Court that
all claims had been settled. On April 23, 2013, the Court entered a so-called “sixty-day order”
discontinuing the action, subject to reopening should the parties fail to consummate the
settlement within sixty days thereof. Doc. 27. Sixty days of silence passed. 3
Then, on September 18, 2013, nearly five months after the entry of the sixty-day order,
the Court received its first indication that the parties had failed to completely resolve the case: a
letter from Mr. Sussman requesting a conference and new trial date. Doc. 28. Mr. Sussman
subsequently represented that Eastwood refused to participate in the settlement agreement that
presumably had been approved by each of the School District Defendants, including Eastwood.
Id.; Doc. 40 (“Eastwood Br.”) 6. Accordingly, the Court scheduled a conference for October 24,
2013. Doc. 32. Thereafter, Mr. Miller, Eastwood’s new attorney, requested a pre-motion
conference. Doc. 33.
At the pre-motion conference held on October 24, 2013, Mr. Miller requested that the
Court, in its discretion, grant Eastwood leave to file a motion for summary judgment and relief
under Rules 12(c) and 12(h)(2) of the Federal Rules of Civil Procedure. See Dkt. No. 10 Civ.
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Specifically, the sixty-day order provided that this action is hereby “discontinued, without costs to either party,
subject to reopening should the settlement not be consummated within sixty (60) days of the date hereof. The
parties are advised that if they wish the Court to retain jurisdiction in this matter for purposes of enforcing any
settlement agreement, they must submit the settlement agreement to the Court within the next 60 days with a request
that the agreement be ‘so ordered’ by the Court.’” Doc. 27 (emphasis added). Given that neither party contacted
the Court within sixty days, it is unclear whether this Court even has the ability to reopen this matter.

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3244 (Minute Entry 10/24/2013). The Court granted Eastwood leave to brief the issue of why
the Court should exercise its discretion to allow Eastwood to file a motion for relief that, by all
accounts, his prior counsel could conceivably have sought in the School District Defendants’
March 23, 2012 motion.
II. Discussion
A. Eastwood’s Proposed Motion for Summary Judgment under Rule 56
The deadline for filing dispositive motions in this case has passed. Eastwood maintains,
however, that his proposed motion would be timely because the Federal Rules of Civil Procedure
permit him to move “at any time” before trial. Eastwood Br. 2, 7. While Rule 56 provides that a
party against whom a claim is asserted may seek summary judgment “at any time” (Fed. R. Civ.
P. 56), as Eastwood acknowledges, “district courts enjoy considerable discretion in entertaining
successive dispositive motions.” Sira v. Morton, 380 F.3d 57, 68 (2d Cir. 2004); Doc. 43
(“Reply Br.”) 5 (citing id.). Moreover, “[t]he law is clear that ‘it is improper for a party to file a
successive motion for summary judgment which is not based upon new facts and which seeks to
raise arguments it could have raised in its original motion.’” Purchase Partners, LLC v. Carver
Fed. Sav. Bank, No. 09 Civ. 9687 (JMF), 2013 WL 1499417, at *’7 (S.D.N.Y. Apr. 10, 2013)
(emphasis added) (quoting Campers’ World Int'l, Inc. v. Perry Ellis Int'l, Inc., 221 F.R.D. 409,
409 (S.D.N.Y. 2004)); see also Brown v. City of Syracuse, 673 F.3d 141, 147 n.2 (2d Cir. 2012)
(“[S]uccessive motions for summary judgment may be procedurally improper if the arguments in
the second motion could have been raised in the first motion.”).
Eastwood attempts to distinguish precedent such as Camper’s World by arguing that he is
seeking to file a motion on a different issue than that raised in his previous summary judgment
motion. Eastwood Br. 3; Reply Br. 6-7. Yet, Eastwood does not deign to argue that new issues

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or evidence, of which he was unaware, have cropped up—instead, he merely characterizes prior
counsel’s decision to seek partial summary judgment as strategically ill-advised. Eastwood Br.
4; Reply Br. 8.
The Court finds Eastwood’s contentions unavailing. Eastwood’s argument amounts to
little more than an acknowledgement that strategic “mistakes were made.” 4 Because Eastwood
blatantly seeks to reargue points that he could have, but, “[f]or reasons unknown to [his] current
counsel” (Reply Br. 8), did not make, the Court will not exercise its discretion to permit
Eastwood to take a second bite at the apple. 5 The Court is particularly mindful of the fact that
this case was filed in April 2010 and scheduled for trial on this very claim in May 2013. Though
Eastwood generally states that the litigants may be “burden[ed] with unnecessary trial expenses”
if he is not permitted to seek summary judgment (Eastwood Br. 4), he fails to “state specifically
what those costs would be or to quantify them,” rendering the Court’s assessment of additional
costs impossible. Kirkland v. Cablevision Sys., No. 09 Civ. 10235 (LAP), 2012 WL 4336193, at
*4 (S.D.N.Y. Sept. 21, 2012). Accordingly, at this late juncture, any challenge to Plaintiff’s First
Amendment claim is properly left for trial. See, e.g., Purchase Partners, 2013 WL 1499417, at
*8; Campers’ World, 221 F.R.D. at 409.

4

See Carl M. Cannon, Reagan: Mistakes Were Made, Miami Herald, Dec. 7, 1986, available at
http://www.miamiherald.com/1986/12/07/457328/reagan-mistakes-were-made.html#storylink=cpy (discussing
President Reagan’s concession that “mistakes were made” in his administration’s secret arms deals in Iran).
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The cases relied upon by Eastwood universally recognize that courts enjoy broad discretion in this context, and are
all distinguishable. Sirico v. British Airways PLC (Eastwood Br. 3) involved a successive motion for summary
judgment by a pro se litigant. See No. 98 Civ. 4938 (FB), 2002 WL 113877, at *1 n.2 (E.D.N.Y. Jan. 22, 2002); see
also Perez v. Keysor, No. 10 Civ. 0518 (LEK) (CFH), 2013 WL 5493932, at *13 (N.D.N.Y. Sept. 30, 2013)
(permitting successive motion by pro se litigant where premised upon additional discovery obtained after first
motion). Likewise, the court’s decision to permit a successive motion in Beechwood Restorative Care Center v.
Leeds (Reply Br. 6) is distinguishable because there, “a significant amount of discovery” occurred after the court
had decided the earlier motion, years prior. See 811 F. Supp. 2d 667, 673-74 (W.D.N.Y. 2011). Indeed, the
Beechwood court’s holding undermines Eastwood’s position, as the court stated that the motion would be allowed
since, unlike here, the “defendants are not simply seeking to reargue matters that they raised, or could have raised,
on their prior motion.” Id. at 674 (emphasis added). Eastwood does not make any claim regarding new discovery—
the only thing that has changed since his first motion is that he retained new counsel.

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B. Eastwood’s Proposed Motion for Judgment on the Pleadings under Rule 12
Though Eastwood also claims that he is entitled to move for judgment on the pleadings
under Rules 12(c) and 12(h)(2) of the Federal Rules of Civil Procedure “at any time” (Eastwood
Br. 4-5), Eastwood again concedes—as he must—that his “entitlement” remains contingent
upon approval from this Court. Id. at 5-7. Rule 12(h)(2) provides, in relevant part, that “[f]ailure
to state a claim upon which relief can be granted … or to state a legal defense to a claim may be
raised” in: “(A) in any pleading allowed or ordered under Rule 7(a); (B) by a motion under Rule
12(c); or (C) at trial.” Fed. R. Civ. P. 12(h)(2). Given the current procedural posture of this
case, subsections (A) and (C) of Rule 12(h) do not apply. Rule 12(c) provides that, “[a]fter the
pleadings are closed—but early enough not to delay trial—a party may move for judgment on
the pleadings.” Fed. R. Civ. P. 12(c) (emphasis added).
Eastwood claims that the Court should exercise its discretion to permit his Rule 12(c)
motion because it will not prejudice Plaintiff or delay trial, and will serve judicial economy.
Eastwood Br. 5-6; Reply Br. 4-5. The Court emphatically disagrees. As already noted, given
that the Court previously set a trial date of May 6, 2013, Eastwood’s claim that his proposed
motion will not delay trial is meritless. At this point, a trial will most efficiently dispose of the
case, and any further briefing will significantly delay its resolution. 6 See In re CCT Commc’ns,
Inc., No. 07-10210 (SMB), 2011 WL 5509197, at *2-*3 (Bankr. S.D.N.Y. Nov. 10, 2011)
(declining to consider a Rule 12(c) motion, filed eighteen months after the pleadings closed, as it
would delay disposition of case); see also, e.g., Monahan v. New York City Dep’t of Corr., 214
F.3d 275, 284 (2d Cir. 2000) (in assessing “prejudice,” courts “generally consider whether the
assertion of the new claim or defense would (i) require the opponent to expend significant

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The joint pretrial order estimated that this case would take a week or less to try when all of the School Board
Defendants were involved, and now, only Eastwood remains. Joint Pretrial Order 2.

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