Ortiz v. Wagstaff, et al
Filing
56
DECISION AND ORDER adopting in part and rejecting in part 44 Report and Recommendations; granting in part 37 motion for leave to file an amended complaint; denying as moot 32 motion for judgment on the pleadings; granting 32 motion to compel discovery. Plaintiff is instructed to file an amended complaint by no later than March 27, 2019. The parties shall confer with Judge Scott regarding Plaintiff's deadline to produce the documents sought by Defendants. Signed by Hon. Elizabeth A. Wolford on 03/18/2019. (CDH)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
EWENGUTB
DISTRICT
JOSUE ORTIZ,
Plaintiff,
DECISION AND ORDER
I:I6-CV-0032I LAW
V.
RICHARD WAGSTAFF, MARY GUGLIUZZA,
BPD DOES I-12, BUFFALO POLICE
DEPARTMENT,THE CITY OF BUFFALO,
MARK STAMBACH,and MARK VAUGHN,
Defendants.
INTRODUCTION
Plaintiff Josue Ortiz ("Plaintiff) has sued Defendants for violations of his civil
rights related to his arrest and conviction for the murders of Nelson and Miguel Camacho,
and his subsequent exoneration. (Dkt. I). The matter has been referred to Magistrate Judge
Hugh B. Scott for hearing and disposition of all non-dispositive motions or applications,
supervision of discovery, and to hear and report upon dispositive motions for consideration
by the district judge. (Dkt. 33).
Currently pending before the Court is Judge Scott's Report and Recommendation
dated December 12, 2017 (Dkt. 44) (the "R&R"), regarding Defendants' motion for
judgment on the pleadings' or in the alternative to compel the production of documents
'
Defendants refer to their motion as a "Motion for Dismissal of Plaintiffs Complaint
pursuant to Rules 12(b)(6) and/or 12(c) of the Federal Rules of Civil Procedure[.]" (Dkt.
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(Dkt. 32) and Plaintiffs cross-motion for leave to file an amended complaint (Dkt. 37).
For the reasons set forth below,the Court adopts in part and rejects in part the R&R,grants
Plaintiffs cross-motion for leave to file an amended complaint except to the extent Plaintiff
seeks to assert an abuse of process claim or to assert claims against the City of Buffalo,
denies as moot Defendants' motion forjudgment on the pleadings, and grants Defendants'
alternative request to compel discovery.
FACTUAL AND PROCEDURAL BACKGROUND
The factual background underlying the instant action and the pending motions is set
forth in detail in the R&R,familiarity with which is assumed for purposes ofthis Decision
and Order. The Court has summarized the relevant facts in its analysis as necessary.
The instant action was filed on April 25, 2016. (Dkt. 1). Defendants filed their
Answer to the Complaint on August 15, 2016. (Dkt. 6). On September 29, 2016, Judge
Scott entered a Scheduling/Case Management Order providing, in relevant part, that
motions to amend the pleadings were due by no later than October 28, 2016. (Dkt. 10(the
"Scheduling Order")). Significant discovery disputes in this matter and the related matter
of Ortiz V. Case, Civil Action No. 1:16-cv-00322, regarding the production offiles related
32-1 at 1). A motion to dismiss pursuant to Rule 12(b)(6) must be filed before an answer
is interposed. See Leather v. Eyck, 180 F.3d 420,423 n.4(2d Cir. 1999). "A Rule 12(b)(6)
motion filed after a defendant answers the complaint should be treated as a motion for
judgment on the pleadings, under FRCP 12(c)." Wojtczak v. Safeco Prop. & Cas. Ins.
Companies, 669 F. Supp. 2d 305, 311 (W.D.N.Y. 2009). Accordingly, the Court has
treated Defendants' motion as a motion for judgment on the pleadings pursuant to Rule
12(c).
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to the investigation and prosecution of Plaintiffs state homicide case subsequently arose.
(See generally Dkt. 26). Motion practice related to these discovery disputes was occurring
in the state court by October 2016. (See Dkt. 41-1 at 4-5). While these discovery disputes
were pending, many of the deadlines set forth in the Scheduling Order, including the
deadline for amendment of pleadings, expired.
In early February 2017, counsel for the parties agreed upon a proposed amended
scheduling order pursuant to which motions to amend the pleadings would have been due
by February 28,2017. (See Dkt. 40-1). However,this proposed amended scheduling order
was never approved by Judge Scott or entered on the docket. Shortly thereafter, on March
16, 2017, Judge Scott entered a Text Order holding all deadlines in the Scheduling Order
in abeyance pending the resolution of various outstanding discovery issues, in response to
Plaintiff having "raised issues regarding the Scheduling Order(Docket No. 10)deadlines."
(Dkt. 19).
Defendants filed their motion for judgment on the pleadings or, in the alternative,
to compel on August 17,2017. (Dkt. 32). Plaintifffiled his response and cross-motion for
leave to amend on October 6, 2017. (Dkt. 37). Defendants filed a response in opposition
to Plaintiffs cross-motion on October 25, 2017(Dkt. 40), and the parties filed replies on
November 2,2017(Dkt. 41; Dkt. 42). Judge Scott issued the R&R on December 13,2017.
(Dkt. 44). The R&R recommends that the Court grant Defendants' motion for judgment
on the pleadings and that Plaintiffs cross-motion for leave be "granted in part only to allow
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amendment to remove the Buffalo Police Department as a suable party and denied as to
the remaining amendments . . . on timeliness [grounds]." {Id. at 18-21). However,
recognizing that the presiding district judge might disagree with his analysis of the
timeliness issue, Judge Scott also considered the merits of Plaintiffs proposed amended
complaint, and found that all of Plaintiffs proposed claims except his claim for abuse of
process and his claims against the City ofBuffalo were viable. {Id. at 23-32). Judge Scott
also found that Defendants would not be prejudiced by the filing ofthe proposed amended
complaint. {Id. at 21-22). Finally, Judge Scott found that in the event any of Plaintiffs
claims or proposed amended claims were permitted to proceed. Defendants' alternative
request to compel discovery should be granted. {Id. at 34).
Plaintiff filed objections to the R&R on January 5, 2018. (Dkt. 47). Defendants
filed their response on January 26,2018(Dkt. 49), and Plaintifffiled his reply on February
8, 2018 (Dkt. 50). Approximately one year later, on February 11, 2019, the presiding
district judge recused himself. (Dkt. 55). The matter was subsequently reassigned to the
undersigned.
DISCUSSION
I.
Standard of Review
Pursuant to 28 U.S.C. § 636(b)(1)(C), where a party makes specific objections to a
magistrate judge's report and recommendation, the district judge must "make a de novo
determination of those portions of the report or specified proposed findings or
recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C). "The Court
reviews unobjected-to findings for clear error." Am. Ins. Co. v. City ofJamestown, 914 F.
Supp. 2d 377, 384(W.D.N.Y. 2012). After conducting its review, the Court may "accept,
reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate judge." 28 U.S.C. § 636(b)(1)(C).
In this case. Plaintiff has objected to Judge Scott's recommendations that his crossmotion for leave to amend be denied,that his proposed cause of action for abuse of process
be found futile, and that Defendants' motion for judgment on the pleadings be granted.
(Dkt. 47). Defendants have not filed objections to the R&R.
The Court has reviewed the issues identified in Plaintiffs objections de novo and,
for the reasons discussed below, rejects the R&R to the extent that it recommends
Plaintiffs cross-motion for leave to amend be denied on timeliness grounds. The Court
adopts the R&R's assessment ofthe merits of Plaintiffs proposed amended complaint. In
light of the Court's resolution of the cross-motion for leave to amend, the Court denies
Defendants' motion for judgment on the pleadings as moot. The Court adopts Judge
Scott's unobjected-to recommendation that Defendants' alternative request to compel
discovery be granted.
II.
PlaintifPs Cross-Motion for Leave to Amend
In recommending a proposed resolution of the pending motions, the R&R first
considered whether Plaintiff should be permitted to file an amended complaint. As set
forth above, the R&R concluded that the vast majority of Plaintiffs cross-motion should
be denied because the request is untimely. The Court disagrees, for the reasons discussed
below.
A.
Legal Standard
"A district court has broad discretion in determining whether to grant leave to
amend[.]" Guraryv.
235 F.3d 792, 801 (2d Cir. 2000). Two provisions ofthe
Federal Rules of Civil Procedure guide the Court's analysis of a motion for leave to amend
where the deadline for such motions, as set forth in a scheduling order, has passed. The
first is Rule 15(a)(2), which provides that once the time for leave to amend as of right has
expired,"a party may amend its pleading only with the opposing party's written consent
or the court's leave. The court should freely give leave when justice so requires." Fed. R.
Civ. P. 15(a)(2). The second is Rule 16(b)(4), which provides that a "schedule may be
modified only for good cause and with the judge's consent." Fed. R. Civ. P. 16(b)(4).
"Where, as here, a scheduling order governs amendments to the complaint,... the lenient
standard under Rule 15(a), which provides leave to amend shall be freely given, must be
balanced against the requirement under Rule 16(b) that the Court's scheduling order shall
not be modified except upon a showing of good cause." Holmes v. Grubman, 568 F.3d
329, 334-35(2d Cir. 2009)(quotations and citations omitted).
"In determining whether a movant has satisfied the 'good cause' standard under
Rule 16(b), 'the primary consideration is whether the moving party can demonstrate
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diligence.'" Charter Commc'ns, Inc. v. Local Union No. 3, Int'l Bhd. ofElec. Workers,
AFL-CIO, 338 F. Supp. 3d 242, 254 (S.D.N.Y. 2018)(quoting Kassner v. 2nd Avenue
Delicatessen Inc., 496 F.3d 229, 244(2d Cir. 2007)). However, diligence is "not... the
only consideration. The district court, in the exercise of its discretion under Rule 16(b),
also may consider other relevant factors including, in particular, whether allowing the
amendment of the pleading at this stage of the litigation will prejudice defendants."
Kassner, 496 F.3d at 244.
Additionally, in considering whether to allow amendment, the Court should
consider whether the proposed amendments are futile. See Rujfolo v. Oppenheimer & Co.,
987 F.2d 129, 131 (2d Cir. 1993)("Where it appears that granting leave to amend is
unlikely to be productive ... it is not an abuse of discretion to deny leave to amend.").
B.
Timeliness of Plaintiffs Motion to Amend
Here,having taken into account the relevant factors and upon de novo consideration,
the Court finds that Plaintiff should be permitted to file his proposed amended complaint,
except insofar as it asserts a claim for abuse ofprocess or claims against the City ofBuffalo.
With respect to timeliness, the Court finds that good cause for amendment of the
Scheduling Order's deadline exists. The deadlines in the Scheduling Order were missed
largely because of the ongoing discovery disputes, which ultimately required motion
practice in both state court and this Court, and which appear to have been diligently
litigated by Plaintiff. The Court further finds that Plaintiff could not have known, at the
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time the proposed case management plan was submitted, that such significant and timeconsuming discovery disputes would arise.
While Plaintiff should have sought an
extension of the deadline prior to its expiration, Plaintiff did seek an extension of the
deadline for motions to amend in February 2017, which Defendants agreed to at that time.
While this extension was never entered by the Court, shortly thereafter Judge Scott held
the Scheduling Order's deadlines in abeyance, which Plaintiff may have mistakenly
believed meant that a new deadline for filing motions to amend was to be set. There is no
question that Plaintiff acted recklessly in not confirming the status of any deadline to
amend the pleadings, but on this record the Court cannot conclude that Plaintiff ignored
the deadline. Upon consideration ofall the relevant facts and circumstances, and balancing
the requirements of Rule 16(b)(4) with the liberal policy in favor of amendments set forth
in Rule 15(a)(2), the Court finds that Plaintiff was sufficiently diligent to satisfy the
requirements ofRule 16(b)(4).
In addition, the Court agrees with Judge Scott that there is no prejudice to
Defendants in allowing the proposed amendments, for the reasons set forth in the R&R.
(See R&R at 21-23). No party has objected to this conclusion, and the Court finds no error
in Judge Scott's recommendation in this regard. The Court further finds that justice
requires permitting Plaintiffleave to amend,inasmuch as Plaintiffhas viable claims against
Defendants and no prejudice to Defendants will result from amendment. For these reasons,
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the Court rejects the R&R's recommendation that the majority of the motion for leave to
amend be denied as untimely.
C.
The Merits of PlaintifPs Proposed Amendments
Having determined that the good cause requirement of Rule 16(b)(4) has been
satisfied in this case, the Court next considers whether Plaintiffs proposed claims are
futile. Judge Scott considered this issue and concluded that Plaintiffs proposed claims for
false arrest and imprisonment, malicious prosecution, violation of the right against selfincrimination, violation of the right to due process, and failure to produce exculpatory
evidence were not futile as to all defendants except the City of Buffalo. (See R&R at
23-32). No party has objected to this portion ofthe R&R and so the Court has reviewed it
for clear error only. The Court finds no error, clear or otherwise, in Judge Scott's
consideration ofthe merits ofPlaintiffs proposed claims for false arrest and imprisonment,
malicious prosecution, violation of the right against self-incrimination, violation of the
right to due process, and failure to produce exculpatory evidence, and therefore adopts
these aspects of the R&R.
Judge Scott further concluded that Plaintiffs proposed claim for abuse of process
was futile. In particular. Judge Scott found that Plaintiff had failed to allege a "collateral
purpose or objective for defendants arresting and prosecuting him," as required to maintain
an abuse of process claim. (R&R at 25-26)? Plaintiff objects to this portion ofthe R&R,
^
"In New York, a malicious abuse of process claim lies against a defendant who(I)
employs regularly issued legal process to compel performance or forbearance ofsome act
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arguing that the absence of probable cause is sufficient, standing alone, to establish a
collateral objective. (Dkt. 47 at 11-12).
The Court has considered this issue de novo and agrees with Judge Scott that
Plaintiffs proposed claim for abuse of process is futile. "An amendment to a pleading is
futile if the proposed claim could not withstand a motion to dismiss pursuant to Fed. R.
Civ. P. 12(b)(6)." Lucente v. Int'l Bus. Machs. Corp., 310 F.3d 243, 258 (2d Cir. 2002).
Courts in this Circuit have routinely held that "even where probable cause does not support
a plaintiffs prosecution, the failure to plead a collateral objective is fatal to an abuse of
process claim." Isaac v. City ofN.Y., No. 16-CV-4729(KAM),2018 WL 5020173, at *9
n.l5 (E.D.N.Y. Aug. 6, 2018), report and recommendation adopted, 2018 WL 4583481
(E.D.N.Y. Sept. 24,2018)(collecting cases). As these courts have explained, a "collateral
purpose" in the context of an abuse of process claim "must exist beyond or in addition to
the criminal prosecution" and "is usually characterized by personal animus." Folk v. City
ofN.Y., 243 F. Supp. 3d 363, 375 (E.D.N.Y. 2017) (internal quotations and alteration
omitted). Accordingly, a lack of probable cause is not enough, standing alone, to
demonstrate the existence of a collateral objective.
(2) with intent to do harm without excuse or justification, and (3) in order to obtain a
collateral objective that is outside the legitimate ends ofthe process." Cook v. Sheldon,41
F.3d 73, 80(2d Cir. 1994). A collateral purpose is distinct from a malicious motive and
"to state a claim for abuse of criminal process, it is not sufficient for a plaintiff to allege
that the defendants were seeking to retaliate against him by pursuing his arrest and
prosecution. Instead, he must claim that they aimed to achieve a collateral purpose beyond
or in addition to his criminal prosecution." Savino v. City ofN.F., 331 F.3d 63,77(2d Cir.
2003).
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Moreover, the other "collateral objectives" Plaintiff purports to assert—complying
with the City of Buffalo's policies, "padding the police officers' conviction rates," and
"avoid[ing] embarrassment when the real killer[s] were found"(Dkt. 47 at 12)—are all
related to Defendants' roles as police officers and do not show a collateral objective as
required to state a viable abuse ofprocess claim. See Folk,243 F. Supp.3d at 375(rejecting
argument that motivations such as wanting credit for an additional arrest or obtaining
additional overtime were "collateral objectives," because they "directly relate to the
Individual Defendants' roles as police officers and the criminal prosecution").
In the R«&R, Judge Scott also considered whether Plaintiffs proposed amended
complaint states a viable claim against the City of Buffalo. (R&R at 31-32). Judge Scott
suggested in the R&R that Plaintiffs claims were insufficiently pled as to the City of
Buffalo, but ultimately held that "[gjiven the tardiness of plaintiffs amendment,. . . this
Court need not address whether the municipal liability claims are also futile." {Id. at 32).
However,because the Court finds that amendment is not prohibited on timeliness grounds,
it must reach this issue.
The Court has reviewed the proposed amended complaint and concludes that it fails
to state a claim as to the City of Buffalo. "Under the standards of Monell v. Dep't ofSoc.
Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), a municipality can be held
liable under Section 1983 if the deprivation of a plaintiffs rights under federal law is
caused by a governmental custom, policy, or usage of the municipality." Ameduri v. Vill.
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of Frankfort, 10 F. Supp. 3d 320, 340 (N.D.N.Y. 2014). "A general and conclusory
allegation of a municipal policy or custom fails to state a facially plausible Monell claim."
Valdiviezo v. Boyer, No. 17-1093, 2018 WL 5096345 (2d Cir. Oct. 18, 2018)(quotation
omitted). Accordingly, "[t]o survive a motion to dismiss. Plaintiffs carmot merely allege
the existence of a municipal policy or custom, but'must allege facts tending to support, at
least circumstantially, an inference that such a municipal policy or custom exists.' Put
another way,conclusory allegations of a municipal custom or practice oftolerating official
misconduct are insufficient to demonstrate the existence ofsuch a custom unless supported
by factual details." Kucharczyk v. Westchester Cty., 95 F. Supp. 3d 529, 540 (S.D.N.Y.
2015)(quoting Santos v. New York City, 847 F.Supp.2d 573, 576(S.D.N.Y. 2012)).
In this case. Plaintiff has included in the proposed amended complaint a list of
purported customs and policies of the City of Buffalo. {See Dkt. 37-5 at TITj 68-69, 71)^.
Nearly all of these purported customs and policies are stated in purely conclusory terms.
For example. Plaintiff alleges that the City ofBuffalo had a custom or policy of"deliberate
indifference to the constitutional rights of citizens" and a custom or policy of"tolerat[ing]
or condon[ing] police officers' acts of misconduct and constitutional violations." {Id. at
^ 69). The Second Circuit has recently confirmed that under Monell, the "mere assertion
...that a municipality has...a custom or policy is insufficient in the absence ofallegations
^
The proposed amended complaint does not contain a paragraph numbered 70.
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offact tending to support, at least circumstantially, such an inference." Montero v. City of
Yonkers, 890 F.3d 386,403-04(2d Cir. 2018)(quotation omitted).
Plaintiffs proposed amended complaint fails to allege any facts that would even
circumstantially support an inference that the identified municipal customs and policies
exist, and therefore fails to state a viable claim as to the City of Buffalo. See Gross v. City
ofAlbany, No. l:14-CV-0736 LEK/TWD,2015 WL 5708445, at *4 (N.D.N.Y. Sept. 29,
2015)("Mere allegations of a municipal custom or inadequate training and/or supervision
are insufficient to state a plausible claim of municipal liability unless supported by factual
details."). To the contrary. Plaintiffs factual allegations relate solely to conduct in his own
case,"which is insufficient to establish Monell liability." Bryant v. Ciminelli, 267 F. Supp.
3d 467, 475 (W.D.N.Y. 2017){citing Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123
(2d Cir. 1991)); see also Green v. City of N.Y., 465 F.3d 65, 81 (2d Cir. 2006)("A
reasonable jury could not find that evidence of one instance [of a constitutional violation]
constituted a practice so manifest as to imply the constructive acquiescence of senior
policy-making officials.")(quotation omitted).
The only potential Monell claim with regard to which Plaintiffs proposed amended
complaint offers any specifics is the claim that the City of Buffalo had a custom or policy
of"intentionally fail[ing] to accept uncontradicted prooffrom the US Attorneys' office and
the FBI of the actual innocence of previously convicted defendants including [Plaintiff]."
(Dkt. 37-5 at T1 69). However, it is a matter of public record (and Plaintiff acknowledges
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in the related matter of Ortiz v. Case, Civil Action No. 1:16-cv-00322)that it was the Erie
County District Attorney's Office, and not the City of Buffalo, that had decision-making
authority with respect to whether or not to seek vacatur of Plaintiffs conviction. Indeed,
Plaintiffs own proposed amended complaint acknowledges that the United States
Attorney's Office sent the evidence related to Plaintiffs innocence to the Erie County
District Attorney's Office. (Dkt. 37-5 at
53-54). The proposed amended complaint fails
to set forth any factual allegations supporting the inference that the City of Buffalo could
have intervened or forced the Erie County District Attorney's Office to seek vacatur of
Plaintiffs criminal conviction, and therefore fails to state a viable claim with respect to
this purported municipal policy or custom. See Collins v. W. Hartford Police Dep't, 324
F. App'x 137, 139(2d Cir. 2009)(affirming dismissal of Monell claims where the plaintiff
"failed to identify a municipal policy or custom that caused him injury").
For all these reasons, the Court finds that Plaintiffs proposed amended complaint
does not state a viable Monell claim against the City ofBuffalo. As such. Plaintiff will not
be permitted to include the City of Buffalo as a defendant in his amended complaint.
III.
Defendants' Motion for Judgment on the Pleadings
"Judgment on the pleadings may be granted under Rule 12(c) where the material
facts are undisputed and where judgment on the merits is possible merely by considering
the contents ofthe pleadings." McAuliffe v. Barnhart,571 F. Supp.2d 400,402(W.D.N.Y.
2008). "In deciding a Rule 12(c) motion for judgment on the pleadings, the court should
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'apply the same standard as that applicable to a motion under Rule 12(b)(6), accepting the
allegations contained in the complaint as true and drawing all reasonable inferences in
favor of the nonmoving party.'" Aboushama v. EMF Corp., 214 F. Supp. 3d 202, 205
(W.D.N.Y. 2016)(quoting Mantena v. Johnson, 809 F.3d 721, 727-28(2d Cir. 2015)).
Here, Defendants' motion forjudgment on the pleadings is addressed to the original
Complaint. However, for all the reasons previously discussed. Plaintiff will be permitted
to file an amended complaint. "It is well established that an amended complaint ordinarily
supersedes the original, and renders it ofno legal effect."Shields v. Citytrust Bancorp,Inc.,
25 F.3d 1124, 1128(2d Cir. 1994). Accordingly, because the original Complaint will no
longer be the operative pleading in this matter, its adequacy is no longer relevant, and
Defendants' motion for judgment on the pleadings is denied as moot. See Thompson v.
Pallito, 949 F. Supp. 2d 558, 582 (D. Vt. 2013)("[Mjotions addressed to the original
complaint are generally regarded as moot upon the filing of an amended complaint.").
IV.
Defendants' Alternative Request to Compel Discovery
In their motion for judgment on the pleadings. Defendants made an alternative
request to compel discovery. In the R&R, Judge Scott recommended that this request be
granted in the event any ofPlaintiffs claims were permitted to proceed. (R&R at 34). No
party has objected to this recommendation, and the Court has not found clear error upon
review.'^ As such,the Court adopts Judge Scott's recommendation and grants Defendants'
Not only were no objections to Judge Scott's recommended disposition of the
request to compel filed,"motions to compel discovery are among those most traditionally
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request to compel. The Court leaves it to Judge Scott to set appropriate deadlines for
compliance with this aspect ofthe Court's Decision and Order.
CONCLUSION
For the reasons set forth above,the Court rejects in part and adopts in part the R&R
(Dkt.44). The Court grants Plaintiffs cross-motion for leave to file an amended complaint
(Dkt. 37)except to the extent Plaintiff seeks to assert an abuse of process claim or to assert
claims against the City of Buffalo. The Court denies as moot Defendants' motion for
judgment on the pleadings(Dkt. 32)and grants Defendants' alternative request to compel
discovery {id.).
Plaintiff is instructed to file an Amended Complaint that is in accord with this
Decision and Order by no later than March 27, 2019. The parties shall confer with Judge
Scott regarding Plaintiffs deadline to produce the documents sought by Defendants.
SO ORDERED.
gLKABETH^
Unite^tates District Judge
Dated: March 18, 2019
Rochester, New York
non-dispositive in nature," Boice v. M+W U.S., Inc., 130 F. Supp. 3d 677, 685-86
(N.D.N.Y. 2015), and the Court reviews a magistrate judge's disposition on a nondispositive matter for clear error only.
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