Opinion
No. 99-CV-941 (DRH)
May 9, 2003
Daniel J. Stewart, Esq., Dreyer Boyajian LLP, Albany, New York, for Plaintiff.
Michael J. Murphy, Esq., William J. DeCaire, Esq., Carter, Conboy, Case, Blackmore, Maloney Laird, P.C., Albany, New York, for Defendant Potenza.
Michael P. Ravalli, Esq., Clay J. Lodovice, Esq., Gleason, Dunn, Walsh O'shea, Albany, New York, for Defendant Lewis.
Joseph M. McCoy, Esq., Roche, Corrigan, Mccoy Bush, Albany, New York, for Defendant Cirincione.
MEMORANDUM-DECISION AND ORDER
Presently pending are the motions of (1) defendant William Potenza ("Potenza") for a separate trial on his cross-claim against co-defendant John L. Lewis ("Lewis") (Docket No. 116), and (2) defendant Lewis for an order dismissing that cross-claim (Docket No. 118). For the reasons which follow, Potenza's motion is denied and Lewis' motion is granted.
I. Background
Plaintiff Michael Noga ("Noga") commenced this action against Potenza, Lewis and co-defendant Paul S. Cirincione ("Cirincione") seeking recovery of damages under 42 U.S.C. § 1983 and New York state law for violations of his constitutional rights. The facts underlying Noga's claims are related in greater detail in two prior decisions of this Court, familiarity with which is assumed. See Noga v. Potenza, 241 F. Supp.2d 346 (N.D.N.Y. 2002) (Docket No. 94); Noga v. Potenza, 169 F. Supp.2d 83 (N.D.N.Y. 2001) (Docket No. 43). The additional facts related below pertain to the two pending motions.
In his answer to the amended complaint, Potenza asserted a cross-claim against Lewis and Cirincione for indemnification and "to have liability apportioned among and between all the defendants." Potenza Am. Ans. (Docket No. 14) at ¶¶ 13-14. Lewis also filed a cross-claim against Potenza and Cirincione for contribution and indemnification. Lewis Am. Ans. (Docket No. 16) at ¶¶ 28-29. The case proceeded to trial on March 18, 2002. On March 20, 2002, the jury returned a verdict in favor of Noga against all three defendants awarding damages totaling $235,000. Verdict (Docket No. 76). The jury was not asked and made no finding as to the cross-claims of either Potenza or Lewis. Id. On defendants' motions for remittitur, the award was reduced to $91,500 (Docket No. 94) and Noga was awarded $45,703.14 for attorney's fees and costs. Docket No. 111. An amended judgment was entered which purported to be final but which omitted any resolution of the cross-claims of Potenza or Lewis. Docket Nos. 75, 112.
Potenza and Lewis appealed. Docket Nos. 82, 83, 100. It appears that while these appeals were pending, the United States Court of Appeals for the Second Circuit brought to the attention of the parties for the first time that the record on appeal failed to indicate any disposition of the cross-claims of Potenza and Lewis. DeCaire Aff. I (Docket No. 116) at ¶ 5; Lodovice Aff. II (Docket No. 122) at ¶ 13. The parties then stipulated to withdraw the appeals to permit the parties to resolve the outstanding cross-claims. DeCaire Aff. I at Ex. A; Lodovice Aff. II at Ex. A. A schedule was set for motions and, if necessary, trial. Docket No. 115. The pending motions followed.
II. Discussion A. Potenza's Cross-Claim Against Lewis
Potenza moves for a separate trial on his cross-claim for contribution against Lewis pursuant to Fed.R.Civ.P. 42(b). Docket No. 116. Lewis opposes Potenza's motion. Docket Nos. 122, 123. Lewis also moves for an order precluding such a trial and dismissing Potenza's cross-claim against Lewis. Docket No. 118. Potenza opposed that motion. Docket Nos. 120, 121.
1. Abandonment
As a threshold matter, Lewis contends that Potenza has abandoned his cross-claim against Lewis. Abandonment may be found if, after pleading a claim or defense, the party fails to prosecute that claim or defense in the trial court. See Smith v. Amedisys, Inc., 298 F.3d 434, 451 (5th Cir. 2002). "[T]rial courts will not rule on claims — buried in pleadings — that go unpressed before the court." Vaughn v. Mobil Oil Exploration Producing Southeast, Inc., 891 F.2d 1195, 1198 (5th Cir. 1990). Underlying the concept of abandonment is the concern that
[t]he failure to present a theory of recovery or defense to the district court involves waste of judicial and private resources and should be strongly discouraged. In many cases, the failure to pursue a point before the trial court inevitably leads to the conclusion that the issue will not receive judicial consideration.Id.
Generally, a claim or defense will be deemed abandoned if, once pleaded, no further step is taken to prosecute the claim or defense in the trial court through the entry of judgment and the filing of a notice of appeal. See Smith, 298 F.3d at 451; National Ass'n of Gov't Employees v. City Pub. Serv. Bd. of San Antonio, Tex., 40 F.3d 698, 705-07 (5th Cir. 1994); Vaughn, 891 F.2d at 1198; see also Harrington v. Carlough, 173 F.3d 124, 1999 WL 92419 (4th Cir. Feb. 24, 1999) (holding in an unpublished decision that claim was not abandoned where the party submitted proposed "Conclusions of Law" regarding the claim prior to the entry of judgment).
Here, having pleaded his cross-claim at the end of his amended answer, Potenza failed to take a single step to prosecute that claim before the Court of Appeals discovered it "buried in pleadings." Vaughn, 891 F.2d at 1198. In particular:
Although directed to do so by the pretrial scheduling order (Docket No. 18 at 5-9), Potenza failed to raise the issue in his trial brief (Docket No. 59) or to request any jury charge on the issue in his proposed jury instructions (Docket No. 60).
Potenza made no mention of the claim in his opening statement. Docket No. 108 at 23-29.
Potenza made no mention of the claim in any motion at the close of the evidence. Lodovice Aff. I (Docket No. 118) at ¶ 8 Ex. C.
Copies of the proposed jury instructions and special verdict form were provided to counsel prior to the charge conference. Neither the proposed charge nor the special verdict form contained any instruction or question on Potenza's cross-claim. At the charge conference, Potenza made no objection to the proposed charge or the special verdict form regarding his cross-claim and did not request the inclusion of any charge or question on that claim. Lodovice Aff. I at ¶¶ 9-11 Ex. D.
Although Potenza made no request for a charge on his cross-claim, Cirincione, who had made no cross-claim, nevertheless requested a charge "that any damage award should be apportioned between the defendants." Docket No. 110 at 481; Lodovice Aff. I at Ex. D, p. 481. Cirincione grounded his request for the charge on "the scarcity of evidence against him" rather than on a theory of contribution. Id. Potenza never joined the request in any way and the request was denied. Id. Potenza now contends that Cirincione's request here constituted a request by Potenza for a jury instruction on his cross-claim. DeCaire Aff. II (Docket No. 120) at ¶ 13; Potenza Mem. of Law II (docket No. 121) at 5-6. Given the different basis for which Cirincione requested the apportionment charge and the fact that Potenza failed to join in the request, Cirincione's request did not operate to prosecute Potenza's cross-claim.
Potenza made no mention of the claim in his closing argument. Docket No. 110 at 502-13.
After the instructions were given to the jury, Potenza failed to object to the absence of any instruction or special interrogatory on his cross-claim. Docket No. 110 at 524, 555-57; Lodovice Aff. I at ¶¶ 13-18 Ex. E at 524, 555-57.
Judgment on the verdict was entered without any reference to Potenza's cross-claim. Docket No. 75. Potenza filed a post-trial motion challenging the verdict and judgment but omitted any mention of his cross-claim. Docket Nos. 79-80.
Finally, and most significantly, Potenza filed a notice of appeal following entry of the judgment and pursued that appeal without having sought or obtained a final resolution of his cross-claim. Docket No. 82. Given the requirements of Fed.R.Civ.P. 54(b) limiting an appeal to a final judgment, Potenza's prosecution of his appeal here without a final determination of his cross-claim confirms his abandonment of that claim. See National Ass'n of Gov't Employees, 30 F.3d at 706 (finding that abandonment of a claim was confirmed by the party's prosecution of an appeal of a judgment without a final resolution of the party's unresolved claim).
In short, after pleading his cross-claim, Potenza failed to take a single step to prosecute that claim before, during or after the trial or the entry of a judgment which the Court and parties all clearly believed was final. Potenza abandoned his cross-claim against Lewis. That cross-claim is, therefore, dismissed.
2. Timeliness
In the alternative, Lewis contends that Potenza's present motion for a separate trial on his cross-claim against Lewis is barred as untimely.
As contended by Potenza, Fed.R.Civ.P. 42(b) authorizes a court to order separate trials of a cross-claim on certain grounds. However, in accordance with Fed.R.Civ.P. 16(b), a scheduling order was entered in this case. Docket Nos 8, 18. The final amended deadline for filing any motion under the scheduling order was March 31, 2001. Docket No. 18 at ¶ 7. Potenza made no motion for a separate trial prior to that deadline or, indeed, at any time prior to the trial. His motion here for a separate trial on his cross-claim against Lewis was filed on March 21, 2003. Docket No. 116. A party filing a motion after the expiration of the deadline in the scheduling order must demonstrate good cause for any such delay. Fed.R.Civ.P. 16(b); see also N.D.N.Y.L.R. 16.1(f).
At a minimum, good cause requires a showing by the moving party of an objectively sufficient reason for extending a deadline. For purposes of Rule 16(b), "`good cause' requires "the party seeking relief to show that the deadlines cannot reasonably be met despite the diligence of the party needing the extension.'" Robinson v. Town of Colonie, No. 91-CV-1355, 1993 WL 191166, at *3 (N.D.N.Y. June 3, 1993) (McCurn, J.); see also Julian v. Equifax Check Servs., Inc., 178 F.R.D. 10, 16 (D. Conn. 1998);Pulsecard, Inc v. Discover Card Servs. Inc., 168 F.R.D. 295, 301 (D. Kan. 1996). The inquiry focuses on the moving party's reason for requesting the extension. Julian, 178 F.R.D. at 16. The mistake or inadvertence of counsel, without more, will not support a finding of good cause. See In reKirkland, 86 F.3d 172, 175 (10th Cir. 1996); Lory v. General Elec. Co., 179 F.R.D. 86, 88 (N.D.N.Y. 1998); Carnrite v. Granada Hosp. Group, Inc. 175 F.R.D. 439, 448 (W.D.N.Y. 1997).
Here, Potenza has filed his motion for a separate trial nearly two years after the deadline for filing motions in this case. However, he has offered no reason, and none appears from the record, why this motion could not have been filed within the deadline established in the scheduling order. In the alternative, therefore, Potenza's motion is untimely, that motion must be denied and Lewis' motion must be granted.
Lewis asserts various other grounds for the denial of Potenza's motion and the dismissal of Potenza's cross-claim. Given the conclusion reached on the above grounds, it is unnecessary to address Lewis' remaining grounds.
B The Remaining Cross-Claims
Potenza has moved for a separate trial only as to his cross-claim for contribution against Lewis and not as to his cross-claim against Cirincione. See Docket Nos. 116, 117. Similarly, Lewis has made no request for relief as to his cross-claims for contribution and indemnification against Potenza and Cirincione. Thus, both Potenza's cross-claim against Cirincione and Lewis' cross-claim against Potenza and Cirincione have been abandoned and are dismissed. See subsection II(A)(1)supra.III. Conclusion
For the reasons stated above, it is hereby ORDERED that:
1. Potenza's motion for a separate trial on his cross-claim against Lewis (Docket No. 116) is DENIED;
2. Lewis' motion for an order dismissing Potenza's cross-claim against him (Docket No. 118) is GRANTED and that cross-claim is DISMISSED; and
3. Potenza's cross-claim against Cirincione and Lewis' cross-claim against Potenza and Cirincione are each DISMISSED.
IT IS SO ORDERED.