Opinion
00 CIV. 4688 (DLC).
April 25, 2002
Richard A. Altman, New York, NY, For Plaintiffs.
Susan B. Eisner, Assistant Corporation Counsel, Special Federal Litigation Division, New York, NY, For Defendants.
OPINION AND ORDER
On July 2, 2001, this Court denied plaintiffs' motion for partial summary judgment in its entirety and granted defendants' cross-motion for partial summary judgment in its entirety. Anthony v. City of New York, No. 00 Civ. 4688 (DLC), 2001 WL 741743 (S.D.N.Y. July 2, 2001). As reflected in that Opinion, plaintiff Myra Anthony ("Anthony") has Down's Syndrome. Anthony had placed an incoherent telephone call complaining of being beaten by a man who also had a gun and a knife. The police had responded by entering the apartment where Anthony was staying, an apartment belonging to her half-sister, plaintiff Magdaline Wright ("Wright"), and by taking Anthony to the psychiatric ward at King's County Hospital. After the plaintiffs agreed to withdraw with prejudice the few claims not resolved by the July 2 Opinion, by Order dated July 17, 2001, plaintiffs' remaining claims were dismissed with prejudice and judgment was entered for defendants.
Approximately six months later, on January 22, 2002, plaintiffs moved, pursuant to Rules 60(b)(1), (2), and (6) and 15(a), Fed.R.Civ.P., to vacate the final judgment and for leave to amend their complaint to add a new claim. For the reasons that follow, plaintiffs' motion to vacate and for leave to amend is denied.
Background
The events underlying the causes of action brought in this action are described in detail in Anthony, 2001 WL 741743, at *1-3 (July 2, 2001), familiarity with which is assumed. The procedural history of this litigation is reviewed here.
Plaintiffs filed their complaint on June 23, 2000. On September 1, 2000, the defendants requested medical releases from the plaintiffs, and on September 6, the defendants served interrogatories and document requests. During an initial conference on September 22, 2000, plaintiffs' counsel Robert Altman ("Altman") represented that he would arrange for the plaintiffs to provide the releases necessary to obtain Anthony's medical records from Kings County Hospital. Accepting Altman's representations, the Court ordered the plaintiffs to furnish the releases to defendants by October 6, 2000, discovery to be completed by February 23, 2001, and any motion or a joint pretrial order to be filed by March 16, 2001.
By letter dated October 30, 2001, defendants' counsel informed the Court that Altman had not yet furnished plaintiffs' medical release forms. By letter dated November 3, 2001, Altman stated that he was on that date sending the executed releases to defendants' counsel under separate cover, and explained that "[t]he delay was caused by the need to obtain a copy of an order signed by a judge in Dominica regarding Ms. Wright's authority to act on behalf of Ms. Anthony, due to the latter's Down Syndrome."
By letter dated February 21, 2001, two days before the scheduled close of discovery, Altman wrote the Court seeking a protective order either barring the deposition of Anthony or requiring that it occur in Dominica. Anthony, who had been in New York to receive medical care, is a resident of Dominica and had returned there after the events that are the subject of this litigation. In the letter, Altman stated that the "deposition should not take place, given the imminence of my summary judgment motion, the conclusive testimony of the police officers and the hardship and expense to Ms. Anthony." Altman further stated that Anthony's "congenital Down's Syndrome makes it difficult for her to be understood in the best of circumstances," and that "plaintiff Anthony's prima facie case has been made out by the officers' testimony. . . . Under all of the circumstances, unless defendants can demonstrate a compelling need for Ms. Anthony's deposition, it should be barred altogether." Altman also explained that he had been having difficulty obtaining a visa for Anthony to enter the United States for a deposition. He had traveled to Dominica "for a few days" earlier that month, during which trip he had met with Dominican local counsel to seek assistance in procuring the visa.
By letter also dated February 21, 2001, defendants informed the Court that plaintiffs had not yet responded to any of defendants' discovery demands served on September 6. Those same demands had been re-served on December 19, without effect. Defendants also requested an extension of the time in which to complete discovery in order to take Anthony's deposition. By letter dated February 21, 2002, Altman acknowledged that the plaintiffs were entitled to a response to their discovery demands, but asserted that they had gotten much of the relevant information during Wright's deposition on January 17, 2001. By letter dated February 22, defendants wrote to the Court to oppose plaintiffs' application for a protective order and to request that they be given the opportunity to depose Anthony in the event the deposition were necessary to respond to plaintiff's motion for summary judgment or in the event of any claims surviving for trial.
On February 26, 2002, the Court held a telephone conference with counsel. The Court asked for the parties' reactions to postponing Anthony's deposition to the eve of trial, in the event the case survived the cross-motions for summary judgment, in light of Altman's representation that he was willing to have the parties' cross-motions decided without Anthony's testimony. In response, Altman reiterated that, in his view, he did not need Anthony's testimony to survive summary judgment and requested that defendants be barred from deposing her. In order to accommodate Anthony's disability and her absence from the country, the Court required the defendants to proceed with summary judgment motion practice without Anthony's deposition, but observed that the defendants would be given the opportunity to depose Anthony before trial if plaintiffs' case survived summary judgment. The time to complete discovery was extended to March 5, 2001, to permit Altman to respond to the defendants' September 6 discovery demands and other pending requests.
Between March 19 and April 5, the date on which a telephone conference was scheduled to occur to address plaintiffs' continuing failure to comply with their discovery obligations, Altman completed production of discovery materials. The cross-motions for partial summary judgment were fully submitted on May 7, 2001.
Final judgment for defendants was entered by the Clerk of Court on July 24, 2001. On August 17, 2001, plaintiffs filed a notice of appeal to the United States Court of Appeals for the Second Circuit. On the same date, Altman sent by overnight mail to Dominica an affidavit for Anthony's signature. In his affidavit in support of his motion to vacate and for leave to amend, Altman states that "Plaintiff Wright was able to locate a brother [of Anthony's] who lives in Dominica, and he agreed to assist with Ms. Anthony's execution of the affidavit before a notary public there." Altman also states:
There was also considerable delay in transmitting and receiving the affidavits [for Anthony and her brother Eric James]. They were sent by Express Mail for next day delivery on August 17, 2001, but they did not arrive in Dominica until August 27. They were executed just two days later and sent to me by Federal Express, but I did not receive them until October 11. No doubt the delay was at least partially due to the World Trade Center disaster of September 11, but the executed papers were also lost by Federal Express for some time as well, and it took them several weeks to investigate and locate them.
Plaintiffs have provided no airbills or receipts to support any of these claims of delays in the mail.
Anthony's affidavit (the "Affidavit") bears the date August 29, 2001. In it, she states, in pertinent part:
In March of last year I was in New York for medical care and was living in Brooklyn, New York with my sister Magdalene, who I call Nena. Around noon on March 7, I was sitting in the house alone watching television. I never made any telephone calls to 911 or anyone else on that day. I had no reason to do so, because I can take care of myself and was not in any danger or frightened about anything. There was no gun in the apartment and no one in it with a gun; I was alone.
(Emphasis supplied).
On January 22, 2002, plaintiffs filed their notice of motion to vacate and for leave to amend their complaint. On January 28, 2002, the parties submitted to the United States Court of Appeals for the Second Circuit a stipulation withdrawing their appeal without prejudice to its reinstatement.
Discussion
Plaintiffs make three arguments in support of their motion to vacate the final judgment and for leave to amend. First, plaintiffs argue that the Affidavit constitutes "newly discovered evidence" under Rule 60(b)(2), that the failure by plaintiffs' counsel to produce the Affidavit until six months after the entry of final judgment is "excusable neglect" under Rule 60(b)(1), and that the Affidavit raises questions of fact requiring vacatur of summary judgment. Second, plaintiffs argue that the Second Circuit's opinion in Kerman v. City of New York, 261 F.3d 229 (2d Cir. 2001), issued on July 26, 2001, constitutes a change of controlling law compelling relief from the final judgment under Rule 60(b)(6). Third, plaintiffs argue that the Honorable Robert W. Sweet's opinion in Standt v. City of New York, 153 F. Supp.2d 417 (S.D.N.Y. 2001), issued on July 19, 2001, provides them with a claim not previously available to them, and that, pursuant to Rule 15(a), they should be given leave to amend their complaint to add this claim. Each of these arguments is considered in turn.
I. Plaintiffs' Rule 60(b) Arguments
Rule 60(b) sets forth the grounds on which a court can rescind or amend a final judgment or order. "Rule 60(b) should be broadly construed to do substantial justice, yet final judgments should not be lightly reopened." Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986) (citations omitted). Relief from a final judgment under Rule 60(b) is "extraordinary judicial relief" and may be granted "only upon a showing of exceptional circumstances." Id. "An argument based on hindsight regarding how the movant would have preferred to have argued its case does not provide grounds for Rule 60(b) relief . . . nor does the failure to marshal all known facts in opposition to a summary judgment motion". Paddington Partners v. Bouchard, 34 F.3d 1132, 1147 (2d Cir. 1994) (citations omitted).
Rule 60(b)provides, in pertinent part:
On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud . . .; or (6) any other reason justifying relief from the operation of the judgment.
Rule 60(b), Fed.R.Civ.P.
A. The Anthony Affidavit
A motion brought under Rule 60(b)(2) must include "evidence that is truly newly discovered or could not have been found by due diligence." United States v. Potamkin Cadillac Corp., 697 F.2d 491, 493 (2d Cir. 1983) (citation omitted). Furthermore, the newly discovered evidence must be "highly convincing." Kotlicky v. U.S. Fidelity Guar. Co., 817 F.2d 6, 9 (2d Cir. 1987).
The Anthony Affidavit does not constitute "newly discovered evidence." Plaintiffs' counsel could have obtained this same affidavit before the close of discovery in April 2001, had he exercised due diligence, for example, by obtaining it during his trip to Dominica "for a few days" in February 2001. He has presented no explanation why the affidavit could not have been procured during that trip or during the discovery period with the assistance of those who helped him to obtain the August 2001 affidavit. Altman's conclusory assertion that it was "simply impossible" for him to obtain Anthony's affidavit during the discovery period is inadequate.
While not dispositive of this motion, it should be noted that Anthony's affidavit is, in any event, of limited relevance. Anthony represents in her affidavit that she never made any telephone call on the morning of March 7, 2000. This representation contradicts the Sprint Report submitted by defendants which showed that a call from Wright's apartment was transferred from the operator to 911, as well as the discharge summary prepared by an employee of Kings County Hospital which noted that Anthony had admitted that she had the telephone conversation with 911 and that she "apparently randomly selected the numbers without understanding the implications" of the call. The affidavit, therefore, raises a question of fact regarding who placed the telephone call to which the police responded. This dispute, however, has marginal relevance to the reasonableness of the actions of the responding officers in removing Anthony from the apartment or of the hospital officials in deciding to detain Anthony overnight. It is these latter decisions that are the primary focus of the complaint's allegations.
The most significant defect in this prong of plaintiff's motion, however, is the continued failure to produce Anthony for a deposition. The parties and the Court expended considerable resources on the cross-motions for summary judgment. In doing so, they accommodated the plaintiffs' request that the motions be decided without Anthony's deposition. There was no understanding that, in the event the defendants' summary judgment motion was granted, Anthony would then be given a second opportunity to create an issue of fact and that the summary judgment motions would then be relitigated based on that new record. Anthony's affidavit could not have been accepted then, and cannot be accepted now, to create an issue of fact without giving the defendants an opportunity to depose Anthony, an opportunity that, notably, the plaintiffs are not offering to the defendants even in the context of this Rule 60(b) motion. There is no principled basis to undo the judgment that has been entered on the basis of an affidavit from a party who has not made herself available for deposition.
Ultimately, Altman's tactical decision not to submit any testimony by Anthony when moving for and opposing summary judgment does not constitute "excusable neglect" under Rule 60(b)(1). "Mere dissatisfaction in hindsight with choices deliberately made by counsel is not grounds for finding the mistake, inadvertence, surprise or excusable neglect necessary to justify Rule 60(b)(1) relief." Nemaizer, 793 F.2d at 62.
B. The Kerman Decision
In Kerman v. City of New York, 261 F.3d 229 (2d Cir. 2001), the Second Circuit partially reversed and remanded the district court's judgment in Kerman v. City of New York, No. 96 Civ. 7865 (LMM), 1999 WL 509527 (S.D.N.Y. July 19, 1999). The district court's decision in Kerman was one of two opinions cited in the July 2 Opinion for the proposition that there were exigent circumstances justifying the warrantless entry into Wright's apartment. Id. at *4. The July 2 Opinion also relied for this proposition on Tierney v. Davidson, 133 F.3d 189, 192 (2d Cir. 1998), a case in which a report by a neighbor of a domestic dispute created exigent circumstances justifying a warrantless entry into a house. Id. at 197. The Kerman court reaffirmed Tierney, stating that a warrantless entry was justified when police enter "to render . . . assistance to a person whom they reasonably believe to be in distress." Kerman, 261 F.3d at 235 (quoting Tierney, 133 F.3d at 196). The Second Circuit in Kerman held that police may not rely, however, on an "anonymous and uncorroborated 911 call to justify a warrantless entry." Id. at 238. In Kerman, the call had not come from the residence which the police entered, but from an anonymous caller outside the residence, and the police had undertaken no investigation to confirm the information anonymously reported to them. Id. at 235.
Kerman is readily distinguishable from the facts of the instant case since the call to which the police responded came from the very location the police entered. Despite plaintiffs' argument to the contrary, the substance of the call — a plea for help from a terrified woman who claimed to be under attack — created exigent circumstances justifying, and indeed requiring, an immediate response.
II. Plaintiffs' Rule 15(a) Argument
Rule 15, Fed.R.Civ.P., governs the amendment of pleadings. Rule 15(a) instructs that leave to amend should be "freely given." Advanced Magnetics, Inc. v. Bayfront Partners, Inc., 106 F.3d 11, 18 (2d Cir. 1997) (citation omitted). Leave to amend should be denied, however, where the proposed amendment would be futile, if defendants have demonstrated undue delay, bad faith, or dilatory motive, or where defendants would suffer undue prejudice. Dluhos v. Floating and Abandoned Vessel, 162 F.3d 63, 69 (2d Cir. 1998) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). Where the plaintiff seeks to amend the complaint after an inordinate delay, it bears the burden to explain that delay. MacDraw v. CIT Group Equipment Financing, 157 F.3d 956, 962 (2d Cir. 1998). "When the moving party has had an opportunity to assert the amendment earlier, but has waited until after judgment before requesting leave, a court may exercise its discretion more exactingly." National Petrochemical Co. of Iran v. M/T Stolt Sheaf, 930 F.2d 240, 245 (2d Cir. 1991). "The merit of this approach is that to hold otherwise would enable the liberal amendment policy of Rule 15(a) to be employed in a way that is contrary to the philosophy favoring finality of judgments and the expeditious termination of litigation." Id. (citation omitted).
Plaintiffs seek to amend their complaint to allege a violation under 42 U.S.C. § 1983 of Anthony's right to consular notification in the event of arrest or detention, as established by Article 36 of the Vienna Convention on Consular Relations ("VCCR"), April 24, 1963, 21 U.S.T. 77, 101 T.I.A.S. No. 6820. Article 36 of the VCCR states, in pertinent part:
1. With a view to facilitating the exercise of consular functions relating to nationals of the sending state: . . .
(b) if [the defendant] so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph;
2. The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.
VCCR, Art. 36 (emphasis added). See also 28 C.F.R. § 50.5(a)(1) ("In every case in which a foreign national is arrested the arresting officer shall inform the foreign national that his counsul will be advised of his arrest unless he does not wish such notification to be given."). The VCCR was ratified by the United States on October 22, 1969. See Cong. Rec. 30997 (1969).
In Standt v. City of New York, 153 F. Supp.2d 417 (S.D.N Y 2001), Judge Sweet held that a private right of action exists under the VCCR for individuals detained by foreign officials, id. at 427, and that the plaintiff could pursue a Section 1983 claim for "violation of his right to consular notification under the VCCR." Id. at 429. The existence of a private right of action under the treaty had been addressed by several courts in decisions filed in 1999 and 2000. Id. at 423-24.
Plaintiffs argue that the decision in Standt provides them with a cause of action that, in their words, "did not exist earlier." (Plaintiffs' emphasis). The district court opinion in Standt did not, however, create a cause of action under Section 1983 for the denial of the right of consular notification. It merely confirmed that such a cause of action exists. Plaintiffs have offered no reasonable explanation for their failure to assert this cause of action in their original complaint — filed, incidentally, seven months after Standt filed his complaint.
Conclusion
For the reasons stated above, plaintiffs' motion to vacate and for leave to amend their complaint is denied.
SO ORDERED.