Casciani v. Town of Webster et al
Filing
37
ORDER granting defendants' 12 16 Motion to Dismiss and dismissing the complaint. ***CLERK TO FOLLOW UP. Signed by Hon. David G. Larimer on 10/4/11. (EMA)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________________
JOHN CASCIANI,
Plaintiff,
DECISION AND ORDER
09-CV-6519L
v.
TOWN OF WEBSTER,
RONALD NESBITT, Town Board Supervisor,
DONALD HAUZA, Assistant Public Works Commissioner,
Both in Their Individual and Official Capacities,
Defendants.
________________________________________________
While the maxim, “If at first you don’t succeed, try, try again,” may be sound advice for
everyday living, it is not always a good rule to follow where litigation is concerned. One week after
this Court dismissed a civil rights lawsuit (“Casciani I”) against the Town of Webster, New York
(“Town”) and Town Supervisor Ronald Nesbitt, the plaintiff, John Casciani, filed another suit
against the Town, Nesbitt, and another town official, Donald Hauza, alleging many of the same facts
and claims. That new action also followed this Court’s denial of plaintiff’s motion to amend his
complaint in Casciani I on the ground that allowing the amendment would be futile, since the
additional claims in the proposed amended complaint–some of which also appear in the present
action–would be subject to dismissal for failure to state a claim.1
Defendants in the present, i.e. second, action have moved for judgment on the pleadings
dismissing the complaint under Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons
that follow, the motion is granted, and the complaint is dismissed.
1
Since this Court found no merit in either the original or the proposed amended complaint in the
prior action, plaintiff and his counsel may have been better served by heeding the adage attributed
to W. C. Fields, who reputedly stated, “If at first you don’t succeed, try again. Then quit. No use
being a damn fool about it.” See http://www.notable-quotes.com/f/fools_quotes.html.
BACKGROUND
Much of the factual background of this case is set forth in this Court’s October 6, 2009
Decision and Order granting summary judgment for the defendants in Casciani I. See Casciani v.
Nesbitt, 659 F.Supp.2d 427, 430-33 (W.D.N.Y. 2009).2 Familiarity with that decision, which was
affirmed by the Second Circuit the following year, see 392 Fed.Appx. 887 (2d Cir. 2010), cert.
denied, ___ U.S. ___, 131 S.Ct. 2096 (2011), is assumed. In general, however, plaintiff alleged in
that action that the defendants had violated his rights under the First and Fourteenth Amendments
to the United States Constitution in connection with the defendants’ enactment and enforcement of
an ordinance (“the ordinance”) prohibiting any private aircraft from taking off or landing anywhere
within Webster. Plaintiff, a Webster resident, alleged that he owned a helicopter, for which he had
constructed a landing pad on his property, and that defendants prohibited him from flying his
helicopter. He alleged that they did so in violation of plaintiff’s right to equal protection, and in
retaliation for plaintiff’s previous exercise of his First Amendment rights.
The Court found all of those claims to be meritless. In my decision, I held that the ordinance
was facially valid, that plaintiff had failed to present evidence supporting an equal protection claim
under any of the several theories upon which he had relied, and that plaintiff had likewise failed to
demonstrate the existence of any genuine issues of material fact in regard to his First Amendment
retaliation claim.
Undeterred by this Court’s rulings, plaintiff, represented by the same counsel, filed the
complaint in the instant action on October 13, 2009. Plaintiff filed an amended complaint as of right
on October 21, 2009.
The sixty-five-page amended complaint sets forth lengthy allegations, many of which are
virtual duplicates of the allegations that plaintiff made in Casciani I. Plaintiff asserts that those
2
The defendants in Casciani I had moved to dismiss the complaint pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. Because plaintiff submitted affidavits and other
materials outside the pleadings, the Court converted the motion to a motion for summary
judgment under Rule 56, pursuant to Rule 12(d).
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allegations are simply “background evidence ... pursuant to Jute v. Sunstrand.” Dkt. #2 ¶ 21. That
is a reference to a case decided by the Second Circuit in 2005, in which the court held that “evidence
of an earlier alleged [discriminatory or] retaliatory act [that occurred before the commencement of
the limitations period] may constitute relevant background evidence in support of [a] timely claim
... [and] may be considered to assess liability on the timely alleged act.” Jute v. Hamilton
Sundstrand Corp., 420 F.3d 166, 176–77 (2d Cir. 2005) (internal quotation marks and citation
omitted).3
In his amended complaint here, plaintiff has alleged some additional acts that occurred after
the complaint in Casciani I was filed, and which were not alleged in either the pleadings or in
plaintiff’s other papers in that action.4 He alleges that defendant Nesbitt made certain disparaging
comments about plaintiff in a local newspaper. Amended Complaint ¶¶ 144-49, 166-81. Plaintiff
also alleges that the Town increased the assessment on several properties that he owned, in
retaliation for his filing and prosecution of the Casciani I action. Id. ¶¶ 155-57, 184.
In addition, plaintiff alleges here that defendant Hauza, the Town’s assistant public works
commissioner, “threatened” two elderly neighbors of plaintiff to coerce them into attending a Town
meeting to “complain” about plaintiff, and that Hauza “even induced them to write an editorial about
the Plaintiff in the newspaper disparaging the Plaintiff.” Id. ¶ 159. Plaintiff further alleges that
Hauza “unduly delayed a routine approval” of a permit application that plaintiff had filed, “for no
other reason that [sic] to harass and retaliate against the plaintiff ... .” Id. ¶ 161.
Based on these allegations, the amended complaint asserts three causes of action. The first
is asserted against the Town, Nesbitt, and Hauza, and alleges that they retaliated against plaintiff for
having exercised his First Amendment rights by filing his prior lawsuit challenging the ordinance.
3
As explained in more detail below, the court in Jute was concerned with limitations
issues, not with res judicata.
4
Some of the facts alleged in the complaint here were not alleged in the complaint in
Casciani I, but were alleged in plaintiff’s papers in opposition to defendants’ motion for
summary judgment in that case.
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Oddly, this cause of action as set forth in the complaint repeats plaintiff’s allegation from his prior
lawsuit that defendants also were motivated “by the fact that [plaintiff] is an Italian American
resident of the Town of Webster,” Dkt. #2 ¶ 184, although this claim as pleaded is limited to a First
Amendment claim and does not assert a claim for national-origin discrimination.
The second cause of action asserts a claim against the Town and Nesbitt for a violation of
plaintiff’s equal protection rights. The precise theory behind this claim is not apparent from the face
of the complaint, as it alleges a hodgepodge of “improper considerations” motivating the alleged
disparate treatment of plaintiff, including “his prior federal lawsuit, ... sheer malice, ... [and] the fact
that he is an Italian American ... .” Dkt. #2 ¶ 191. Plaintiff alleges that defendants’ acts “constitute
selective and arbitrary treatment” in violation of the Fourteenth Amendment. Dkt. #2 ¶ 192.
Plaintiffs’ third cause of action asserts a claim against the Town and Nesbitt for defamation
under New York law. This claim is based on certain statements that Nesbitt allegedly made in the
Webster Post newspaper.5 On June 4, 2008, the Post ran a piece authored by Nesbitt, in which he
denied Casciani’s accusations of discrimination against Italian-Americans, and opined that Casciani
“owes the residents of the town of Webster an apology for his allegations that this community is a
haven for discrimination against Italian Americans.” Dkt. #2 ¶ 194. Plaintiff alleges that Nesbitt’s
statements were libelous per se and that they have caused plaintiff to suffer mental anguish and loss
of his good reputation in the community. The complaint also refers to plaintiff’s “termination,” see
Dkt. #2 ¶ 196, although it is not clear to what that refers.
DISCUSSION
I. Res Judicata
Defendants contend that all of plaintiff’s claims are barred under the doctrine of res judicata,
or claim preclusion. That doctrine, which applies under both federal and New York law, “provides
5
These statements also form part of the basis for plaintiff’s retaliation claim.
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that [a] final judgment on the merits of an action precludes the parties ... from relitigating issues that
were or could have been raised in that action.” Duane Reade, Inc. v. St. Paul Fire & Marine Ins.
Co., 600 F.3d 190, 195 (2d Cir. 2010). The doctrine “appl[ies] in ‘later litigation if [an] earlier
decision was (1) a final judgment on the merits, (2) by a court of competent jurisdiction, (3) in a case
involving the same parties or their privies, and (4) involving the same cause of action.’” In re
Adelphia Recovery Trust, 634 F.3d 678, 694 (2d Cir. 2011) (quoting EDP Med. Computer Sys., Inc.
v. United States, 480 F.3d 621, 624 (2d Cir. 2007) (bracketed text in original; additional internal
quote omitted).
Applying these standards here, I conclude that all of plaintiff’s claims are barred by res
judicata. First, there is no dispute that this Court’s summary judgment decision dismissing the
complaint in Casciani I constituted a final judgment on the merits. The parties are also the same,
with the exception of Hauza, who was not named in Casciani I. The addition of Hauza, however,
does not preclude the application of res judicata here, since Hauza acted in his role as an official of
the Town, with respect to the same underlying dispute. See In re Bear Stearns Companies, Inc.
Securities, Derivative, and ERISA Litigation, 763 F.Supp.2d 423, 545 (S.D.N.Y. 2011) (“the
doctrines of res judicata and collateral estoppel bar claims against parties not named in the prior
suit”); Cameron v. Church, 253 F.Supp.2d 611, 623 (S.D.N.Y.2003) (“Res judicata operates to
preclude claims, rather than particular configurations of parties; Plaintiff’s addition of new
defendants ... does not entitle him to revive the previously-dismissed claims.”)
The instant action is also plainly based on the same “nucleus of operative facts” as Casciani
I. New Phone Co., Inc. v. City of New York, 498 F.3d 127, 129 (2d Cir. 2007). For page after page,
the amended complaint in this case reads like a retelling of the allegations set forth in Casciani I,
including plaintiff’s purchase and operation of his helicopter, the Town’s obduracy in attempting to
prevent plaintiff from using his helicopter, the Town’s more favorable treatment of other Webster
aircraft owners, and so on.
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Plaintiff attempts to avoid the obvious res judicata implications of all this by arguing that
paragraphs 22 through 137 of the amended complaint in this case are merely pleaded as “background
evidence” for his retaliation claim. In support of that argument, plaintiff cites Jute v. Hamilton
Sundstrand Corp., 420 F.3d 166 (2d Cir. 2005).
Jute is inapposite, however. That case addressed the extent to which a plaintiff may plead,
and a court should consider, allegations of events that occurred beyond the applicable limitations
period as background evidence in support of a timely claim. See id. at 176-77. Jute did not involve
res judicata at all.
Plaintiff has, as stated, added some new allegations in the present action. That alone is not
dispositive, however. A plaintiff cannot avoid the bar of res judicata simply by repeating allegations
from a prior, dismissed lawsuit, recasting them as “background evidence,” and appending a handful
of additional allegations, particularly when the new allegations concern the same parties and types
of events as the prior action.
The Second Circuit has rejected similar attempts to skirt the claim-preclusion doctrine, and
has made clear that courts should take a commonsense approach to determining when claims are
sufficiently factually related for the doctrine to apply. In Monahan v. New York City Dep’t of
Corrections, 214 F.3d 275 (2d Cir. 2000), for example, in which a group of correction officers
challenged their employer’s sick leave policy, the court held that the plaintiffs’ assertion of new
incidents arising from the application of the challenged policy was insufficient to bar the application
of res judicata arising from the settlement of a prior lawsuit concerning the same policy. Although
the new incidents postdated that prior lawsuit, the court stated that whether two actions involve the
same transaction or series of transactions must be determined by giving the term “transaction” “a
flexible, common-sense construction that recognizes the reality of the situation.” Id. at 289 (quoting
Interoceanica Corp. v. Sound Pilots, Inc., 107 F.3d 86, 91 (2d Cir. 1997)). Here, the court stated,
“[t]he hundreds of new incidents about which plaintiffs now complain fall within the same queue
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as those of injured officers who sought additional [sick] time ... under the earlier version.” Id. at
289-90.
Similarly, in Waldman v. Village of Kiryas Joel, 207 F.3d 105 (2d Cir. 2000), the court,
affirming a district court ruling that the plaintiff’s housing discrimination claims were barred by res
judicata, rejected the plaintiff’s contention that the action “was really ‘based upon’ things that ha[d]
happened since the filing of the prior suits,” which had been settled and terminated. Id. at 113.
Noting that the lawsuit before it shared extensive factual allegations with one of those prior suits
(which the court referred to as the “overlapping facts”), the court stated that “[t]he ‘overlapping
facts’ would seem, on their face, to constitute a common nucleus” of operative facts. Id. at 110. The
court added that “it [wa]s patent, despite Waldman’s contentions, that the overlapping facts were
directly relevant to the earlier suit and were not included in that case only as background
information.” Id. at 111. Thus, the court concluded, “the new facts asserted in Waldman’s
complaint do not create a ‘new’ cause of action that did not exist when the prior suits were brought.”
Id. at 112. Instead, those new facts were “nothing more than additional instances of what was
previously asserted.” Id. at 113. See also Pricaspian Development Corp. (Texas) v. Royal Dutch
Shell, PLC, 382 Fed.Appx. 100, 104 (2d Cir. 2010) (stating that plaintiff “misses the point that
although its instant claim to unjust enrichment is indeed based upon a subsequent transaction, it
arises from [the defendant’s] alleged use of the same confidential information that was the basis for
the claims asserted” in the prior action, which had been dismissed as time-barred, and that the
plaintiff’s “new claim is not based upon post-2003 facts in any meaningful way”).
The same principles apply here. To the extent that plaintiff has alleged additional facts
beyond what he alleged in Casciani I, those facts amount to nothing more than additional instances
of the same types of acts alleged in the prior action, and in some instances this Court has already
found those allegations wanting.
Plaintiff’s “new” allegations about disparaging comments that Nesbitt allegedly made about
him in a local newspaper, for example, were also presented in plaintiff’s proposed amended
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complaint in Casciani I. See 08-CV-6162, Dkt. #13-4 ¶¶ 96-101. The Court denied that motion on
the ground that amendment would be futile, and in doing so I specifically held that plaintiff’s
allegations about Nesbitt’s newspaper comments were insufficient, since they alleged “nothing more
than Nesbitt's statement of his opinion about a matter of public concern.” See Casciani I, 659
F.Supp.2d at 465-67.
In the instant case, plaintiff also alleges that in an article published in the Webster Herald on
October 14, 2009, Nesbitt was quoted as saying that plaintiff’s claims in Casciani I were “completely
fabricated.” Dkt. #2 ¶ 179. Those statements postdated plaintiff’s proposed amended complaint in
Casciani I and thus were not alleged in that case, but they fit well within the category of “additional
instances of what was previously asserted” that the Second Circuit held are subject to the bar of res
judicata. Waldman, 207 F.3d at 113. Assuming these allegations to be true, Nesbitt did no more
than deny the truth of plaintiff’s allegations in Casciani I, which is exactly what plaintiff had
previously alleged that Nesbitt had done. My prior ruling that such allegations were insufficient to
justify amendment of the complaint in the prior action thus bars these claims here as well.
Plaintiff’s allegations about the Town increasing the assessment on his property, in retaliation
for his filing and prosecution of the Casciani I action, id. ¶¶ 155-57, 184, was not alleged in that
action, but it certainly could have been. The complaint here alleges that the Town imposed a 95%
increase on the assessment of certain property owned by plaintiff on May 14, 2009. Dkt. #2 ¶ 155.
The Court did not dismiss Casciani I until October 6, 2009, and there is no apparent reason why
plaintiff could not have sought to raise that matter in Casciani I. In any event, this additional alleged
act also is nothing more than an additional instance of the same type of retaliation alleged previously,
and is also subject to dismissal for other reasons, as explained below.
Plaintiff’s allegation that Hauza “threatened” two elderly neighbors of plaintiff to coerce
them into attending a Town meeting to “complain” about plaintiff, and that he “induced them to
write an editorial about the Plaintiff in the newspaper disparaging the Plaintiff,” id. ¶ 159, likewise
simply picks up where Casciani I left off, and alleges the same type of acts that were alleged in that
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case. No specific dates are given for these alleged events, but the complaint indicates that they
occurred in or about February 2009. See Dkt. #2 ¶ 158. They too, then, could have been raised in
Casciani I. Even if these events occurred after Casciani I was dismissed, however, these allegations
are based on the very same type of harassment, false accusations and retaliation that formed the basis
of that prior lawsuit. See, e.g., Casciani I, 659 F.Supp.2d at 464-65 (describing plaintiff’s allegations
that plaintiff was unfairly criticized at meetings of the town board and that a town official solicited
a citizen to fabricate evidence against plaintiff).
Plaintiff further alleges that Hauza “unduly delayed a routine approval” of a permit
application that plaintiff had filed, “for no other reason that [sic] to harass and retaliate against the
plaintiff ... .” Id. ¶ 161. That appears to relate to the same matter as the allegations concerning
plaintiff’s neighbors, as all those allegations appear under the heading, “Hauza Complicates an
Approval Process.” Dkt. #2 at 47. As with the incidents concerning the neighbors, then, this could
have been raised in Casciani I and, in any event, simply alleges more of the same type of acts that
plaintiff alleged in that action.
I recognize that there is no absolute bar to filing a second action merely because the claims
raised therein are based on events that occurred during the pendency of an earlier related action. In
other words, there is no ironclad rule that any events that occur during the pendency of an action to
which they somehow relate must be alleged in that action, or that such events can never form the
basis for a subsequent action. See Waldman, 207 F.3d at 113 (“It is true that res judicata will not bar
a suit based upon legally significant acts occurring after the filing of a prior suit that was itself based
upon earlier acts”); SEC v. First Jersey Sec., Inc., 101 F.3d 1450, 1464 (2d Cir. 1996) (“If the second
litigation involved different transactions, and especially subsequent transactions, there generally is
no claim preclusion”). Here, however, plaintiff is attempting to assert what are essentially the same
claims that he raised in Casciani I. The only thing that distinguishes them from the claims and
allegations that he asserted in that action is his sprinkling in of a handful of events that occurred after
he filed the complaint in Casciani I. All of plaintiff’s allegations in the instant case, however, allege
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the same types of acts, as part of the same general course of conduct, as those alleged in Casciani
I. For the reasons stated above, such claims are barred by res judicata.
II. Tax Injunction Act
To the extent that plaintiff’s claims are based on the Town’s increase of the tax assessment
on some of his properties, those claims are also barred by the Tax Injunction Act (“TIA”), 28 U.S.C.
§ 1341, which provides that “[t]he district courts shall not enjoin, suspend or restrain the assessment,
levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had
in the courts of such State.” The Supreme Court has held that the principle of comity reflected in
the TIA bars taxpayers from asserting § 1983 claims against the validity of state tax systems in
federal courts. See Fair Assessment in Real Estate Assn., Inc. v. McNary, 454 U.S. 100, 116 (1981).
In partial recognition of that principle, plaintiff states that he withdraws his equal protection
claims concerning the valuation of his properties. See Plaintiff’s Mem. of Law (Dkt. #28-1) at 13.
He has not, however, withdrawn his claim that the increase in his tax assessments was retaliatory,
in violation of the First Amendment. Id.
Plaintiff has not cited any authority for his implied argument that the TIA does not cover
retaliation claims, and in fact courts have held that it does. See, e.g., Levy v. Pappas, 510 F.3d 755,
762 (7th Cir. 2007), abrogated on other grounds by Levin v. Commerce Energy, Inc., ___ U.S. ___,
130 S.Ct. 2323 (2010); Schulz v. Washington County Bd. of Supervisors, 349 F.Supp.2d 375, 378-81
(N.D.N.Y. 2004). The Court of Appeals has also held that New York courts provide a “plain, speedy
and efficient” remedy for claims under 42 U.S.C. § 1983 and the New York State Constitution, see
Bernard v. Village of Spring Valley, 30 F.3d 294, 297 (2d Cir. 1994). See also Terio v. Carlin, No.
10-CV-3201, 2010 WL 4117377, at *1 n.2 (S.D.N.Y. Oct. 18, 2010) (“It is well settled that the
courts of the State of New York provide adequate remedies that afford plaintiffs an opportunity to
raise all constitutional objections to the taxes imposed and the methods employed to collect them”)
(citing cases).
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III. Defamation
Plaintiff states that to the extent that his claim for defamation under state law is duplicative
of his First Amendment retaliation claim, he withdraws that claim. Plaintiff’s Mem. of Law (Dkt.
#28-1) at 13. For the reasons stated above, however, plaintiff’s retaliation claim is subject to
dismissal on grounds of res judicata and for the reasons stated in this Court’s Decision and Order
in Casciani I. See 659 F.Supp.2d at 466-67.
IV. The Merits of Plaintiff’s Claims
My ruling that claim preclusion applies here renders it unnecessary for me to address the
merits of plaintiff’s claims. I note, however, that they would be subject to dismissal in any event.
Again, much of what this Court stated in its decision in Casciani I applies with equal force
here. The same flaws that doomed that complaint are present in this case as well. With respect to
his equal protection claim, for example, plaintiff has again failed to identify any similarly situated
landowners who received preferential treatment compared with him, for impermissible reasons. See
id. at 446-58. As to his First Amendment claim, plaintiff has not alleged facts showing that he was
“‘actually chilled’ in exercising his rights.” Espinal v. Goord, 558 F.3d 119, 129 n.7 (2d Cir. 2009)
(quoting Curley v. Village of Suffern, 268 F.3d 65, 73 (2d Cir. 2001)); Casciani I, 659 F.Supp.2d at
460-61.
In these respects, this case provides a good example of the reasons for the res judicata
doctrine. The parties have litigated these same claims already, and both this Court and the Court of
Appeals have addressed those claims and found them to be completely meritless. To permit plaintiff
to relitigate these matters now, based only on the addition of a few new factual allegations, would
only lead to a waste of judicial resources and do a disservice to the Court and to the defendants.
Indeed, plaintiff’s filing of this lawsuit, the substance of which is nearly identical to Casciani
I, just eight days after the Court dismissed that case as meritless, is so egregious as to be potentially
sanctionable. See, e.g., Libaire v. Kaplan, 395 Fed.Appx. 732, 736 (2d Cir. 2010) (affirming award
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of sanctions against litigant who filed lawsuit alleging claims that were virtually identical to those
raised in previous lawsuit that had been dismissed); Srivastava v. Rosenberg, 88 Fed.Appx. 950, at
950-51 (7th Cir. 2004) (warning plaintiff that she would risk sanctions if she continued to ignore res
judicata); Gresham v. Miles, 82 Fed.Appx. 396, 396 (5th Cir. 2003) (ordering plaintiff to pay $150
in sanctions to clerk of the court, where plaintiff “continue[d] to file repetitive pleadings asserting
grounds for relief identical to those previously held to be without merit”). Plaintiff’s failure to
voluntarily withdraw this lawsuit after my dismissal of Casciani I was affirmed on appeal only
compounded plaintiff’s and his attorney’s culpability in that regard. See Libaire, 395 Fed.Appx. at
736 (noting that dismissal of prior suit had been affirmed by the time that plaintiff filed second,
nearly identical suit). While the Court declines to take steps to impose sanctions at this time, I warn
plaintiff and his attorney that further efforts on their part to pursue these patently meritless claims
may result in sanctions being imposed on them, under either Rule 11, 28 U.S.C. § 1927, or this
Court’s inherent power. See Schlaifer Nance & Co., Inc. v. Estate of Warhol, 194 F.3d 323, 333-35
(2d Cir. 1999).
CONCLUSION
Defendants’ motion to dismiss (Dkt. #12, #16) is granted, and the complaint is dismissed.
IT IS SO ORDERED.
_______________________________________
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
October 4, 2011.
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