Opinion
No. 99 CIV. 11701 (DLC)
September 4, 2002
Attorney for Plaintiff: Pro Se; Donald P. Rosendale from Amenia, NY.
Attorney for Municipal Defendants: James Kerr of Kerr Weiss from New Paltz, NY. Of Counsel Attorney for Municipal Defendants: Terry Rice of Rice Amon from Suffern, NY.
Attorney for Defendant Tamarack Preserve, Ltd.: Russel H. Beatie and Curt D. Marshall of Beatie Osborn LLP from New York, NY.
OPINION AND ORDER
This dispute arises from the issuance of a special use permit to defendant Tamarack Preserve ("Tamarack"), which describes itself as a rod and gun club. Since 1991, plaintiff Donald Rosendale ("Rosendale") has complained to local authorities about the noise caused by Tamarack's shooting operation. In 1999, Rosendale filed this suit pursuant to Title 42, United States Code, Sections 1983 and 1985. By Opinion and Order of February 13, 2002 ("February 13 Opinion"), Rosendale's federal law claims challenging the issuance and enforcement of a special use permit and enforcement of municipal ordinances and state law were dismissed.
Defendants Arlene Iuliano, Terry Binotto and the Town of Amenia (collectively, "municipal defendants"), as well as defendant Tamarack Preserve ("Tamarack") have now moved for an award of attorney's fees pursuant to 28 U.S.C. § 1988 ("Section 1988"). Rosendale, who was represented by counsel on the motion for summary judgment and is now proceeding pro se, has moved pursuant to Rule 60(b), Fed.R.Civ.P., ("Rule 60(b)") for reconsideration of the February 13 Opinion, and for costs pursuant to 28 U.S.C. § 1927 ("Section 1927"). For the reasons that follow, all motions are denied.
BACKGROUND
The February 13 Opinion granted defendants' motions for summary judgment on Rosendale's federal claims and declined to exercise pendant jurisdiction over his remaining state law claims. Rosendale v. Iuliano, 99 Civ. 11701 (DLC), 2002 WL 215656 (S.D.N.Y. Feb. 13, 2002). Rosendale argued, inter alia, that the municipal defendants, in conspiracy with Tamarack, violated his right to substantive due process by failing to enforce conditions attached to a special use permit issued to Tamarack for establishment of a rod and gun club in a residential area, as well as town building, zoning and noise ordinances. Rosendale also argued that the municipal defendants directly violated municipal law when they issued certain building permits to Tamarack without ensuring that Tamarack had complied with town building and zoning ordinances.
The February 13 Opinion granted defendants' motions for summary judgment and dismissed plaintiff's substantive due process claims on the ground that Rosendale did not have an entitlement to the municipal defendants' enforcement of municipal building, zoning and noise ordinances. It explained that under both New York state and Amenia municipal law, enforcement of town building and zoning codes rests in the discretion of the officials charged with enforcing those codes. Id. at *5 Because the municipal defendants were not required to bring an enforcement action against Tamarack for alleged violations of municipal law, plaintiff did not have an entitlement to or property right in such enforcement. Id. at *6.
DISCUSSION
1. Defendants' Section 1988 Motions for Fees
The defendants seek awards of attorney's fees pursuant to Section 1988 on the ground that the plaintiff's claims under Sections 1983 and 1985 were barred by unambiguous law. Rule 54(d)(2)(B), Fed.R.Civ.P., however, provides that "[u]nless otherwise provided by statute or order of the court," a motion for attorney's fees "must be filed and served no later than 14 days after entry of judgment." Fed.R.Civ.P. 54(d)(2) (B); see also Weyant v. Okst, 198 F.3d 311, 314 (2d Cir. 1999). Judgment for the defendants was entered on February 28, 2002. The fourteen day time period in which they might seek attorney's fees expired on March 14, 2002. The municipal defendants' fee application, filed on May 21, 2002, and Tamarack's fee application, filed on June 7, 2002, were untimely.
The municipal defendants argue that their motion for fees is not untimely because the plaintiff filed a notice of appeal on March 4, 2002. A notice of appeal, however, "does not extend the time for filing a fee claim based on the initial judgment." Fed.R.Civ.P. 54, advisory committee's notes.
The municipal defendants argue in the alternative that the fourteen day period was extended by the plaintiff's filing of a Rule 60(b) motion on May 22, 2002. For purposes of Rule 54, however, a "judgment" is "a decree and any order from which an appeal lies." Weyant, 198 F.3d at 314 (citation omitted). Post-judgment motions pursuant to Rules 50(b), 52 (b) or 59 extend the period in which an application for fees may be made because such motions "affect the finality of the judgment." Id. (citation omitted). A motion pursuant to Rule 60(b), however, does not affect the finality or appealability of a decision granting a motion for summary judgment. Consequently, the plaintiff's Rule 60(b) motion — which in any event was filed long after the time to bring a motion for attorney's fees had expired — did not extend the fourteen day time period.
Finally, the municipal defendants maintain that their application is a timely motion for attorney's fees pursuant to Local Civil Rule 54.1. This rule, however, allows the taxing of specifically enumerated costs, and does not authorize the collection of attorney's fees. Indeed, the rule specifically provides that "[a]ttorney fees and disbursements and other related fees and paralegal expenses are not taxable except by order of the court." Local Civil Rule 54.1(c)(7); see also Slader v. Pearle Vision Inc., 199 F.R.D. 125, 126 (S.D.N.Y. 2001).
In a footnote, the municipal defendants ask, should their application be found to be untimely, that "the Court extend the time within which to make such an application so that the merits of the same may, in any event, be considered." They have presented no explanation for their delay in seeking attorney's fees. The request for a nunc pro tunc extension of the time to move for fees is denied.
2. Plaintiff's Rule 60(b) Motion
Rosendale argues that the February 13 Opinion should be vacated based on a new theory of law and newly discovered facts. After the filing of an appeal, a district court may deny a Rule 60(b) motion, although it lacks jurisdiction to grant such a motion. See Selletti v. Carey, 173 F.3d 104, 109 (2d Cir. 1999).
"A motion for relief from judgment is generally not favored and is properly granted only upon a showing of exceptional circumstances." United States v. Int'l Brd. of Teamsters, 247 F.3d 370, 391 (2d Cir. 2001). 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). Rosendale has not presented grounds sufficient to warrant relief under any relevant subsection of Rule 60(b).
Rosendale's complaint alleged a violation of his rights under the Fifth and Fourteenth Amendments. He now seeks to bring a claim under the First Amendment based on a retaliation theory. He asserts that the Town of Amenia's building inspector denied him certificates of occupancy for his house and barn for ten years in retaliation for his complaints regarding the noise levels of the shooting at Tamarack. "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). Rosendale's failure to assert in the underlying litigation a theory which is based on facts of which he has long been aware is not a basis for vacating the February 13 decision.
To the extent Rosendale seeks to litigate his entitlement to certificates of occupancy, this is also an entirely new claim.
The newly discovered evidence that Rosendale contends entitles him to reopen this litigation consists of a recent conversation. Rosendale asserts that the Town of Amenia' s new CEO, Donald Smith ("Smith"), told him on January 15, 2002, that Tamarack required a variance to operate a commercial shooting range in a residential area and that such a variance had been granted. After reading the full document containing the "variance," Rosendale realized that the variance was not a "use" variance, but rather a variance allowing a fireplace in an assembly area of a clubhouse. Rosendale's argues that this "new evidence" that the Town knew a variance was required for Tamarack and yet allowed Tamarack to operate without a variance, and that it issued a special use permit when a variance was required, establishes his entitlement to enforcement of zoning laws sufficient to support a due process claim.
Even assuming the truth of the facts as described by the plaintiff, his argument remains a challenge to the Town's failure to enforce municipal zoning law. On analogous facts, the Second Circuit has held that while a plaintiff may argue that he had an interest in the doing of an act that is required by municipal law, the issue remained
whether such an interest rises to a constitutional level. Our precedents have firmly established that the mere violation of a state law does not automatically give rise to a violation of federal constitutional rights: Indeed, even an outright violation of state law in the denial of a license will not necessarily provide the basis for a federal claim, at least when the applicant has a state law remedy. . . . To permit an influx of such cases into federal courts would violate principles of federalism, promote forum-shopping, and lead to unnecessary state-federal conflict with respect to governing principles in an area principally of state concern.
Zahra v. Town of Southold, 48 F.3d 674, 682 (2d Cir. 1995) (citation omitted) (second emphasis supplied). Even if Tamarack is, in fact, operating in violation of municipal law, and even if Smith acknowledged that a variance was required, Rosendale has pointed to no provision of law that requires the Town to institute enforcement proceedings against Tamarack. Consequently, he does not have a constitutionally protected interest in such enforcement, and he has failed to establish a property right necessary to sustain a claim for a violation of due process.
Finally, Rosendale presents a new argument in support of his lawsuit. Rosendale maintains that the defendants misrepresented the nature of Tamarack's activities to him, by calling Tamarack a "club," and to the Court, by presenting evidence that a "Rod and Gun Club" was a use permitted under a special use permit. This argument is merely an effort to relitigate the merits. It does not present newly discovered evidence. See Fleming v. New York Univ., 865 F.2d 478, 484 (2d Cir. 1989). In any event, such a representation, even if incorrect, is not material because it does not alter the conclusion that the municipal defendants retained discretion in enforcing the Towns's zoning laws.
Rosendale also appears to argue that he recently obtained documents that establish that Tamarack is a for-profit organization. The February 13 Opinion assumed that Tamarack was run for profit.
Rosendale is not entitled to relief under Rule 60(b)(6), which allows for relief for "any other reason justifying relief from the operation of the judgment," Fed.R.Civ.P. 60(b)(6), because his claims are cogniziable under the more specific subsections of Rule 60(b). Int'l Brd. of Teamsters, 247 F.3d at 391-92.
Plaintiff also argues that the Second Circuit's decision in Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 91 (2d Cir. 2002), is an intervening change in law that requires relief from judgment. As plaintiff himself recognizes, Dougherty's recognition of a constitutionally protected right to be free from retaliation for the exercise of First Amendment rights was recognized in 1994 in Gagliardi v. Village of Pawling, 18 F.3d 188, 194 (2d Cir. 1994).
3. Amendment of Plaintiff's Complaint
Rosendale seeks leave to amend his complaint to add a First Amendment retaliation claim. "[O]nce judgment is entered the filing of an amended complaint is not permissible until judgment is set aside or vacated pursuant to Fed.R.Civ.P. 59(e) or 60(b)." Nat. Petrochem. Co. of Iran v. M/T Stolt Sheaf, 930 F.2d 240, 244 (2d Cir. 1991) (citation omitted). Consequently, "[u]nless there is a valid basis to vacate the previously entered judgment, it would be contradictory to entertain a motion to amend the complaint." Id. at 245. Because Rosendale has not established that he is entitled to relief under Rules 59(e) or 60(b), his motion to amend his complaint is denied.
4. Plaintiff's Section 1927 Motion for Sanctions
The plaintiff has moved for costs pursuant to Section 1927 based on Tamarack's filing and withdrawal of a motion for sanctions pursuant to Rule 11, Fed.R.Civ.P. Section 1927 provides that an attorney "who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct." 28 U.S.C. § 1927. The imposition of sanctions under Section 1927 requires "a clear showing of bad faith on the part of an attorney, and that bad faith may be inferred only if actions are so completely without merit as to require the conclusion that they must have been undertaken for some improper purpose such as delay." Salovaara v. Eckert, 222 F.3d 19, 35 (2d Cir. 2000) (citation omitted). Consequently, in order to impose sanctions under this provision, the court "must find clear evidence that (1) the offending party's claims were entirely meritless and (2) the party acted for improper purposes." Revson v. Cinque Cinque, P.C., 221 F.3d 71, 79 (2d Cir. 2000) (citation omitted).
Marshall, counsel for Tamarack, negligently failed to ensure that his motion conformed to the procedural requirements of Rule 11, including both the safe harbor provision and the requirement that a motion for Rule 11 sanctions be separately made. Rule 11 was amended to include the safe harbor provision at subsection (c)(1)(A) in 1993.
The Rule 11 motion was not so utterly without merit as to warrant an inference of bad faith. Marshal's ignorance of the law regarding Rule 11's procedural requirements is not a sufficient basis in this case to infer his bad faith. The plaintiff's motion for costs is denied.
CONCLUSION
For the foregoing reasons, defendants' motions for sanctions under Section 1988, plaintiff's motion to vacate the February 13 Opinion, and plaintiff's motion for costs under Section 1927 are denied.
SO ORDERED.