Lewis v. Newburgh Housing Authority et al
Filing
222
OPINION & ORDER: For the foregoing reasons, the Court's November 5, 2018 order dismissing this case without prejudice is VACATED. The Clerk of Court is respectfully directed to reopen the case. The order of reference to the Magistrate Judge i s also VACATED and the case will remain with the undersigned, at least for now. Plaintiff is cautioned, however, that the Court will have little tolerance for abusive, noncompliant or dilatory behavior. Further, Plaintiff is ORDERED not to telepho ne the Court, for reasons made plain in No. 21-CV-8487, ECF No. 20. All communications with the Court must be in writing, and emailed to temporary_pro_se_filing@nysd.uscourts.gov, sent by mail, or dropped off at the courthouse. The only excepti on to the above order that Plaintiff not call the Court is that the parties are to call 877-336-1839 and enter access code 1047966# for a telephonic status conference on December 13, 2022 at 10:15 a.m. SO ORDERED. (Telephone Conference set for 12/13/2022 at 10:15 AM before Judge Cathy Seibel.) (Signed by Judge Cathy Seibel on 11/23/2022) (mml)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------------x
REGINA LEWIS,
Plaintiff,
- against NEWBURGH HOUSING AUTHORITY and
MARC STARLING, in his official capacity as
Executive Director of the Newburgh Housing
Authority,
OPINION & ORDER
No. 11-CV-3194 (CS)
Defendants.
-------------------------------------------------------------x
Appearances:
Regina Lewis
Newburgh, New York
Pro Se Plaintiff
Michael J. Matsler
Rider Weiner & Frankel, P.C.
New Windsor, New York
Counsel for Defendants
Seibel, J.
Before the Court are several letters from Plaintiff, (see ECF Nos. 212, 213, 214, 216),
which the Court construes collectively as a motion to reopen this case, (ECF No. 217), which
was previously dismissed without prejudice, (ECF No. 202). For the following reasons, the
dismissal is vacated and the case is reopened.
I.
BACKGROUND
The Court assumes the parties’ familiarity with the extensive procedural history of this
case, and recites only the background relevant to the instant motion to reopen.
Plaintiff initiated this action on May 11, 2011, and Defendants answered on July 12,
2011. (ECF No. 6.). The case was originally assigned to District Judge Kenneth Karas, but the
parties, through their counsel, consented to the jurisdiction of a Magistrate Judge, and on
October 18, 2011 the case was assigned to former Magistrate Judge Lisa Margaret Smith for all
purposes. (ECF No. 14.) 1 Plaintiff’s counsel withdrew on October 20, 2011, (ECF No. 22), and
Plaintiff went forward pro se. Throughout 2012 Plaintiff failed to appear at several scheduled
conferences and demanded that the Court appoint counsel to accommodate her disability. (See
ECF No. 104 at 3-11.) Plaintiff was also arrested on federal charges and incarcerated in July
2012. (Id. at 9.) For most of 2013, the Court was unable to schedule and hold status conferences
with Plaintiff. (Id. at 11.)
Ultimately, this matter was stayed on January 10, 2014, (ECF No. 72), as Plaintiff was
found incompetent to stand trial in a criminal case and committed for hospitalization and
treatment. See United States v. Lewis, No. 12-CR-655, ECF No. 57. She was eventually found
competent to proceed in that case on July 15, 2014. See id., ECF No. 83. After she was found
guilty, sentenced to time served, and released from custody, Magistrate Judge Smith lifted the
stay in this case on February 13, 2015. (ECF No. 74.) In her order lifting the stay, Magistrate
Judge Smith stated that, given Plaintiff’s past conduct in the case, she would give Plaintiff “one
more opportunity” to pursue this case. (Id. at 10.) She ordered Plaintiff to, among other things,
1
Plaintiff claims that her then-attorney “signed my signature on the consent form during
a conference that I was not notified of or allowed to attend,” and that the District Judge (who she
identifies as “Judge Katz,” but who would have been Judge Karas) and Magistrate Judge Smith
knew that her attorney had already made a motion to withdraw. (ECF No. 214.) The docket
reflects that Plaintiff’s former counsel signed the consent form with her own name as Plaintiff’s
attorney on October 7, 2011, (ECF No. 14), and thereafter filed a motion to withdraw as
Plaintiff’s attorney on October 20, 2011, (ECF Nos. 22-23). That motion was prompted, among
other things, by Plaintiff’s letters to the Court accusing her attorney of misconduct. (ECF No. 23
¶¶ 4-5; see ECF No. 26.)
2
refrain from contacting her chambers by telephone and to cooperate with Defendants’ counsel to
have her deposition scheduled. (Id. at 10-11.)
After Plaintiff failed to appear at two consecutive hearings on March 4, 2015 and April
14, 2015, (see Minute Entry dated Mar. 4, 2015; Minute Entry dated Apr. 14, 2015), Defendants
moved to dismiss the case based on Plaintiff’s failure to prosecute, (ECF No. 79). On August
27, 2015, the Court issued a forty-five-page Decision and Order, which laid out the reasons why
Plaintiff’s case should be dismissed both for failure to prosecute and for her inappropriate
conduct, but ultimately gave Plaintiff until September 28, 2015 to show cause why the case
should not be dismissed on these grounds. (ECF No. 104.) On February 18, 2016, citing the
reasons detailed in the September 28, 2015 Decision and Order and the fact that Plaintiff had
failed to show cause (despite filing eight letters in the interim), the Court dismissed the case with
prejudice. (ECF No. 122.) Plaintiff moved for reconsideration, (ECF No. 124), and the Court
denied the request, (ECF No. 125). Plaintiff appealed, (ECF No. 127), and on June 30, 2017, the
Second Circuit reversed and remanded, holding that the Court should have made a competency
determination prior to dismissing the case, (ECF No. 131).
In compliance with the Second Circuit’s remand order, Magistrate Judge Smith
conducted a competency hearing pursuant to Rule 17(c) on September 29, 2017, ruled that
Plaintiff was not competent to represent herself in this action, appointed her brother to serve as
guardian ad litem (“GAL”), and stayed the action pending a conference to be held on December
1, 2017, giving Plaintiff’s guardian time to obtain counsel. (ECF No. 153.) The events that
followed are set out in detail in Magistrate Judge Smith’s October 2, 2018 Decision and Order
denying Plaintiff’s motion for reconsideration of the Court’s September 29, 2017 competency
determination, (see ECF No. 201), but in brief: on December 19, 2017, counsel Amy Jane
3
Agnew appeared on behalf of Plaintiff’s GAL, (ECF No. 164); on January 30, 2018, Mishael
Pine appeared as Ms. Agnew’s co-counsel, (Minute Entry dated Jan. 30, 2018); on March 9,
2018, at the GAL’s request, the GAL was terminated and the Court gave Ms. Agnew and Ms.
Pine sixty days to secure a replacement GAL through an Article 81 proceeding in state court,
(Minute Entry dated Mar. 9, 2018); on April 19, 2018, Ms. Agnew informed the Court that she
had withdrawn the Article 81 petition because Plaintiff would not participate, (ECF No. 179); on
May 11, 2018, the Court relieved Ms. Agnew and Ms. Pine from their representation, (Minute
Entry dated May 11, 2018); on October 2, 2018, the Court ordered that if Plaintiff did not obtain
a new GAL within thirty days, her case would be dismissed without prejudice, (ECF No. 201 at
21-22); and on November 5, 2018, the case was dismissed without prejudice, (ECF No. 202). In
the order dismissing the case, the Court stated, “If Plaintiff is, at some point, deemed competent
by a federal court, or if she is able to obtain a new GAL, she may move to reopen this action.”
(Id. at 2.)
On November 16, 2018, Plaintiff attempted to appeal the order of dismissal to the Second
Circuit, but her motion for leave to appeal was denied on March 25, 2019. (ECF No. 204.) 2 On
October 21, 2019, Plaintiff filed a motion for reconsideration under Rule 60(b)(6), (ECF No.
205), which Defendants opposed, (ECF No. 206), and the Court denied on October 29, 2019,
concluding that Plaintiff “ha[d] not provided any basis to believe that she no longer requires the
assistance of a Guardian ad litem,” (ECF No. 207). On December 7, 2019, Plaintiff wrote a
letter to then-Chief Judge McMahon arguing that she was competent to proceed in another case
that had been before Judge McMahon, see Lewis v. Newburgh Nissan Car Dealership, No. 04-
2
The Second Circuit had previously sanctioned Plaintiff by requiring her to obtain leave
to file appeals going forward. See Lewis v. County of Orange, No. 16-4017 (2d Cir.), ECF No.
77.
4
CV-562, 3 but because the letter also listed this case caption and case number, the document was
docketed in this case. (ECF No. 208.) On February 20, 2020, Plaintiff filed a “Motion for Trial”
in this case, (ECF No. 209), which Magistrate Judge Smith denied on February 24, 2020,
explaining that her ruling regarding Plaintiff’s competence had not changed, “and no evidence
has been submitted to the Court which would require review of that decision. The Plaintiff is
therefore not permitted to file motions on her own behalf without the assistance of a guardian ad
litem, and, if appropriate and necessary, an attorney,” (Text Order dated Feb. 24, 2020). On
March 2, 2020, Plaintiff filed a document captioned “Plaintiff’s Failure to Rule on Motion and
Time for Holding Issue Under Advisement,” again asserting that she was competent to pursue
her claims in this matter. (ECF No. 210.) On March 6, 2020, Magistrate Judge Smith denied
that application. (ECF No. 211.)
On March 18, 2021, in a different case, I held a competency hearing at which I found
Plaintiff competent to proceed. See Lewis v. City of Newburgh, No. 20-CV-7973 (S.D.N.Y.),
Minute Entry dated March 18, 2021. 4 By letter dated March 28, 2021, postmarked March 30,
2021, received April 1, 2021 and docketed April 12, 2021, Plaintiff wrote to Magistrate Judge
Smith (who had retired by that time) regarding this case, noting that I had found her competent
on March 18, 2021, and requesting that this case be reopened and an immediate hearing be held
“to discuss evidentiary matters and to set a trial date.” (ECF No. 212.) Apparently because this
case had been dismissed (albeit without prejudice) and Magistrate Judge Smith had retired, there
3
That case had been dismissed with prejudice on July 15, 2005 after the court granted
Defendants’ motion for summary judgment. See Lewis v. Newburgh Nissan Car Dealership, No.
04-CV-562, ECF No. 68.
4
That case was dismissed on the merits on December 20, 2021. Lewis v. City of
Newburgh, No. 20-CV-7973, 2021 WL 6052135, at *1 (S.D.N.Y. Dec. 20, 2021).
5
was no judge assigned at that point, and the letter did not come to the attention of a judge,
although Defendants’ counsel received electronic notification of the filing. Neither the Court nor
Defendants responded to Plaintiff’s letter. On August 26, 2021, Plaintiff filed a document styled
“Order to Show Cause,” in which she argued that any “stay” of this case was inappropriate and
that she is entitled to judgment as a matter of law under Fed. R. Civ. P. 56. (ECF No. 213.)
Again, no judge was notified but Defendants’ counsel was, and nobody responded.
By letter dated July 14, 2022, Plaintiff wrote to Chief Judge Laura Taylor Swain, alleging
that she had never consented to Magistrate Judge Smith’s jurisdiction and requesting a pre-trial
conference with a district judge. (ECF No. 214.) Counsel for Defendants responded on July 20,
2022, objecting to Plaintiff’s request on the ground that she had been found incompetent and as
such was not permitted to file motions on her own behalf. (ECF No. 215.) Plaintiff responded
by letter dated July 22, 2022, noting that another case of hers (No. 21-CV-9131) was going
forward in this District. (ECF No. 216.) On July 28, 2022, this matter was reassigned to me, and
I entered an order construing her recent letters as motions to reopen the case pursuant to
Magistrate Judge Smith’s statement in her order of dismissal that Plaintiff could so move if she
were deemed competent by a federal court. (ECF No. 217.) Defendants opposed the motion to
reopen, (ECF No. 218 (“Ds’ Opp.”)), and Plaintiff replied, (ECF No. 219).
II.
DISCUSSION
Rule 60(b)
Given Plaintiff’s pro se status, I construe her submissions as a as a motion for relief from
a final judgment, order, or proceeding under Rule 60(b). See Roland v. Rivera, No. 07-CV-230,
2007 WL 1651840, at *1 (N.D.N.Y. June 6, 2007) (treating request from pro se plaintiff to
reopen case that had been dismissed without prejudice as a motion under Rule 60(b)(6)); cf.
6
Fiorilla v. Citigroup, Inc., No. 22-CV-6189, 2022 WL 11245942, at *1 (S.D.N.Y. Oct. 19, 2022)
(“In the absence of binding precedent, the Court assumes without deciding that it has the power
to revive Mr. Fiorilla’s case under Rule 60(b) after a Rule 41(a)(1)(A)(i) voluntary dismissal
without prejudice.”); Walker v. Dep’t of Veterans Affs., No. 94-CV-5591, 1995 WL 625689, at
*1 (S.D.N.Y. Oct. 25, 1995) (voluntary dismissal without prejudice constitutes “a final judgment
in the sense that it ends the pending action,” such that a “plaintiff may proceed under Rule
60(b)”). 5
Rule 60(b) provides:
On motion and just terms, the court may relieve a party or its legal representative
from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have
been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on an
earlier judgment that has been reversed or vacated; or applying it prospectively is
no longer equitable; or
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b). “Because 60(b) allows extraordinary judicial relief, it is invoked only
upon a showing of exceptional circumstances.” Gabrieli v. Wal-Mart Stores E., LP, No. 12-CV1755, 2021 WL 4205174, at *2 (E.D.N.Y. Apr. 12, 2021) (cleaned up), aff’d, No. 21-1264, 2022
WL 2206463 (2d Cir. June 21, 2022). Rule 60 is intended to preserve “‘a balance between
5
The Court will send Plaintiff copies of all unpublished decisions cited as authority in
this Opinion and Order.
7
serving the ends of justice and ensuring that litigation reaches an end within a finite period of
time.’” Am. Tissue, Inc. v. Arthur Andersen L.L.P., No. 02-CV-7751, 2005 WL 712201, at *2
(S.D.N.Y. Mar. 28, 2005) (quoting Paddington Partners v. Bouchard, 34 F.3d 1132, 1144 (2d
Cir. 1994)). In striking this balance, a motion for relief from judgment is generally disfavored
and granted only when “exceptional circumstances” exist. United States v. Int’l Brotherhood of
Teamsters, 247 F.3d 370, 391 (2d Cir. 2001).
Here, the applicable provision is the catch-all Rule 60(b)(6), under which relief may be
granted for “any . . . reason that justifies relief.” Fed. R. Civ. P. 60(b)(6). As a threshold matter,
motions under this provision “must be made within a reasonable time,” id. 60(c)(1), and
Defendants argue that Plaintiff has not done so, citing “her delay in applying to the Court,” (Ds’
Opp. ¶ 12).
In considering whether a Rule 60(b)(6) motion is made within a reasonable time, the
particular circumstances of the case must be scrutinized, and the interest in finality must
be balanced against the reasons for the delay. As a result, there is a high burden for the
movant to demonstrate good cause for the failure to act sooner.
Broadway v. City of N.Y., No. 96-CV-2798, 2003 WL 21209635, at *3 (S.D.N.Y. May 21, 2003).
The docket reflects Plaintiff’s attempts to assert her competence and reopen this matter both
before and promptly after I found her competent in Lewis v. City of Newburgh on March 28,
2021. Prior to March 28, 2021, Plaintiff’s applications were denied. (See ECF Nos. 204, 207,
211; Text Order dated Feb. 24, 2020.) And the delay after my March 28, 2021 ruling cannot
fairly be attributed to Plaintiff, who wrote to the Court in the immediate aftermath of that
decision. (ECF No. 212.) Accordingly, I find that this motion is timely under Rule 60.
As to the merits of Plaintiff’s application, “[r]ecognizing Rule 60(b)(6)’s potentially
sweeping reach, courts require the party seeking to avail itself of the Rule to demonstrate that
‘extraordinary circumstances’ warrant relief.” Stevens v. Miller, 676 F.3d 62, 67 (2d Cir. 2012).
8
I find that Plaintiff’s return to competence is an extraordinary circumstance justifying the
reopening of the case. Cf., e.g., Biester v. Midwest Health Servs., Inc., 77 F.3d 1264, 1268 (10th
Cir. 1996) (being “adjudged incompetent” would constitute “exceptional circumstances” for
equitable tolling purposes).
Defendants point to Plaintiff’s record of delay in this case during discovery, reciting the
events that led to Magistrate Judge’s Smith’s February 18, 2016 order dismissing this case with
prejudice for failure to prosecute. (Ds’ Opp. ¶¶ 5, 13.) But it is not clear why that conduct is
grounds to deny Plaintiff’s petitions to reopen this case, given that the order dismissing the case
with prejudice was vacated, Plaintiff was determined to be incompetent, and the case was
ultimately dismissed without prejudice because of that determination. Plaintiff has now been
found competent and, presumably, is prepared to move this case forward. 6 Defendants also
argue that Defendant Marc Starling no longer works for the Newburgh Housing Authority and
that his whereabouts are unknown, but they provide no information about what efforts to locate
him have been made or would have to be made to get in contact with Mr. Starling. 7
Time Bar
Defendants’ argument that Plaintiff’s request to reopen this case should be denied
because the claim is now time-barred is likewise unavailing. Normally, “where the action has
been dismissed without prejudice, a plaintiff’s subsequent court filing is vulnerable to a time-bar
because the dismissal in and of itself does not halt the running of the limitations period, even
6
This is not to say that the Court excuses, or is disregarding the prejudicial effects of,
Plaintiff’s conduct in this case. Plaintiff is on notice that any delay, abusive behavior or failure
to comply with court orders on her part may result in dismissal of this action with prejudice.
7
A couple of minutes of Googling resulted in references to Mr. Starling suggesting that
he was alive, well, and locatable, at least as of mid-2022.
9
though designated to be without prejudice.” Johnson v. Nyack Hosp., 86 F.3d 8, 11 (2d Cir.
1996). But this order will vacate the dismissal without prejudice, and the effect will be that
Plaintiff’s original case, which was timely filed, will be reopened. 8
Even if that were not the case, as Defendants appear to assume, (see Ds’ Opp. ¶ 11),
Plaintiff’s period of incompetence is grounds to equitably toll the statute of limitations on her
claims. See Torres v. Miller, No. 99-CV-580, 1999 WL 714349, at *7 & n.8 (S.D.N.Y. Aug. 27,
1999) (collecting cases for proposition that statute of limitations may be tolled where party is
mentally incapacitated or incompetent); Willis v. Dep’t of Treasury, I.R.S., 848 F. Supp. 1127,
1131 n.8 (S.D.N.Y. 1994) (noting that equitable tolling has been applied “where the claimant is
incompetent”); see also Biester, 77 F.3d at 1268 (noting that plaintiff being adjudged
incompetent would constitute exceptional circumstance justifying equitable tolling). “Equitable
tolling allows courts to extend the statute of limitations beyond the time of expiration as
necessary to avoid inequitable circumstances.” Johnson, 86 F.3d at 11. “Generally, a litigant
seeking equitable tolling bears the burden of establishing two elements: (1) that he has been
pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.”
Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); see Hardie v. United States, 501 F. Supp. 3d
152, 161 (E.D.N.Y. 2020). In this context, “[t]he term ‘extraordinary’ refers not to the
uniqueness of a party’s circumstances, but rather to the severity of the obstacle impeding
compliance with a limitations period.” Harper v. Ercole, 648 F.3d 132, 137 (2d Cir. 2011).
8
Although a dismissal without prejudice usually means that the same claims can be filed
again in a new case, here Magistrate Judge Smith did not say that Plaintiff could refile if she
were found competent by a federal court in the future; she specifically stated in her order that if
Plaintiff were deemed competent by a federal court in the future, she could “move to reopen this
action.” (ECF No. 202 at 2.)
10
While “statutes of limitations protect important social interests in certainty, accuracy, and
repose,” and “equitable tolling is considered a drastic remedy applicable only in rare and
exceptional circumstances,” Hardie, 501 F. Supp. 3d at 161 (cleaned up), this is a case where
equitable tolling would be appropriate. Plaintiff’s adjudication of incompetence, which required
her to have a GAL in order to proceed, was a severe obstacle that prevented her from pursuing
her case. 9 And the fact that Plaintiff sent a letter to the Court only ten days after I ruled her
competent to proceed in Lewis v. City of Newburgh, (ECF No. 212), 10 leaves little question that
she has diligently pursued her rights. Given these circumstances and the language of Magistrate
Judge Smith’s order, which contemplated a motion of this nature, it would be inequitable to hold
that Plaintiff’s claims are now time-barred merely by virtue of the Court’s dismissal without
prejudice.
III.
CONCLUSION
For the foregoing reasons, the Court’s November 5, 2018 order dismissing this case
without prejudice is VACATED. The Clerk of Court is respectfully directed to reopen the case.
The order of reference to the Magistrate Judge is also VACATED and the case will remain with
the undersigned, at least for now.
Plaintiff is cautioned, however, that the Court will have little tolerance for abusive,
noncompliant or dilatory behavior. Further, Plaintiff is ORDERED not to telephone the Court,
for reasons made plain in No. 21-CV-8487, ECF No. 20. All communications with the Court
9
This is not to say that the Court was incorrect in finding Plaintiff to be incompetent, but
to illustrate the “severity of the obstacle” in continuing the case.
10
Defendants do not mention Plaintiff’s March 28, 2021 letter and argue that Plaintiff
delayed over a year after she was found competent before writing the Court in this case. (Ds’
Opp. ¶¶ 12, 15.) But Plaintiff’s initial letter was docketed in this case on April 12, 2021, (see
ECF No. 212), and there is no reason Defendants would not have seen it.
11
must be in writing, and emailed to temporary_pro_se_filing@nysd.uscourts.gov, sent by mail, or
dropped off at the courthouse. The only exception to the above order that Plaintiff not call the
Court is that the parties are to call 877-336-1839 and enter access code 1047966# for a
telephonic status conference on December 13, 2022 at 10:15 a.m.
SO ORDERED.
Dated: November 23, 2022
White Plains, New York
_____________________________
CATHY SEIBEL, U.S.D.J.
12
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