Opinion
No. 03 Civ. 5045 (SHS) (DF).
July 8, 2005
Lawrence Profeta, Esq., Assistant Corporation Counsel, New York, NY.
MEMORANDUM AND ORDER
INTRODUCTION
This matter was referred to me by Judge Stein for general pretrial supervision. Plaintiff Angelo Ruotolo ("Plaintiff") filed "objections" to two of the Court's non-dispositive pretrial orders. (Dkt. 48.) The Court (Stein, J.) deemed Plaintiff's filing to be a motion for reconsideration, and the motion was referred to me for determination. (Dkt. 49.)
First, Plaintiff seeks reconsideration of the portion of the Court's May 23, 2005 Order ("May 23 Order") that denied Plaintiff leave to supplement his Complaint, under Fed.R.Civ.P. 15(d), by adding a claim under 42 U.S.C. § 1983 that defendants, the City of New York (the "City") and individual employees of the New York Police Department (collectively "Defendants"), retaliated against Plaintiff for filing his Complaint in this action.
Second, Plaintiff seeks reconsideration of certain portions of the Court's May 26, 2005 Order ("May 26 Order"), which resolved a number of discovery disputes between the parties. In particular, Plaintiff objects to the Court's denial of his motion to compel Defendants to produce certain documents.
For the reasons set forth below, Plaintiff's motion for reconsideration is granted with respect to the May 23 Order on Plaintiff's motion to supplement his Complaint, but the motion is denied with respect to the May 26 Order resolving discovery disputes.
DISCUSSION
Familiarity with the May 23 and May 26 Orders is presumed. Under Local Rule 6.3, a motion for reconsideration is appropriate where the Court overlooks "controlling decisions or factual matters . . . which, had they been considered, might have reasonably altered the result before the [C]ourt." Range Road Music, Inc. v. Music Sales Corp., 90 F. Supp. 2d 390, 392 (S.D.N.Y. 2000). A motion for reconsideration also may be granted to "correct a clear error or prevent manifest injustice." Doe v. New York City Dep't of Soc. Servs., 709 F.2d 782, 789 (2d Cir. 1983). Invocation of Local Rule 6.3, however, "is not a substitute for appeal." RMED Int'l, Inc. v. Sloan's Supermarkets, Inc., 207 F. Supp. 2d 292, 296 (S.D.N.Y. 2002). This Court should only grant reconsideration as "an extraordinary remedy[,] to be employed sparingly in the interests of finality and conservation of scarce judicial resources." In re Health Mgmt. Sys., Inc. Sec. Litig., 113 F. Supp. 2d 613, 614 (S.D.N.Y. 2000).
I. SUPPLEMENTATION OF PLAINTIFF'S COMPLAINT
In the May 23 Order, the Court held that it would be futile to permit Plaintiff to add his proposed new First Amendment retaliation claim, because Plaintiff's Complaint in this action did not constitute "speech on a matter of public concern" under Second Circuit law. ( See May 23 Order at 12-15 (citing Lewis v. Cowen, 165 F.3d 154, 163-64 (2d Cir.), cert. denied, 528 U.S. 823 (1999); Saulpaugh v. Monroe Cmty. Hosp., 4 F.3d 134, 143 (2d Cir. 1993), cert. denied, 510 U.S. 1164 (1994); Ezekwo v. NYC Health Hosps. Corp., 940 F.2d 775, 781 (2d Cir.), cert. denied, 502 U.S. 1013 (1991)).) More specifically, the Court held that, unlike when Plaintiff authored the environmental report that is the basis of the retaliation claim in his initial Complaint, Plaintiff was motivated in filing his Complaint by an employee's desire to "`redress personal grievances'" rather than a citizen's desire to vindicate "`a broader public purpose.'" ( See id. at 13-14 (quoting Lewis, 165 F.3d at 163-64).) Plaintiff now argues, however, that the Court should reconsider its holding in light of the Second Circuit's recent decision in Konits v. Valley Stream Central High School, 394 F.3d 121 (2d Cir. 2005), which was issued after Plaintiff's motion to supplement was fully briefed. ( See Plaintiff's Objections to Rulings of Magistrate Judge, dated June 9, 2003 ("Mot. for Reconsideration") (Dkt. 48), ¶ 7.)
In Konits, plaintiff Carol Konits was a tenured high school music teacher who, in 1996, commenced a federal lawsuit against her school district and certain of her supervisors. See Konits, 394 F.3d at 123. In that lawsuit, she alleged that the defendants had retaliated against her, in violation of Title VII and the First Amendment, for helping a co-worker file a gender discrimination claim with the Equal Employment Opportunity Commission, and specifically, inter alia, for agreeing to testify as a witness in connection with the co-worker's claim. See id. Although Konits's 1996 case settled at trial, the same defendants allegedly continued to retaliate against her, and Konits filed a second lawsuit in 2001, alleging a new First Amendment retaliation claim against those defendants plus two additional administrators. See id. at 124. Konits's second lawsuit was apparently based on an allegation that the defendants had retaliated against her not for assisting her co-worker, but rather for having commenced the 1996 action. See id. The district court dismissed Konits's 2001 action on the ground that the 1996 lawsuit was not, in itself, speech "on a matter of public concern" because the lawsuit "centered around issues solely related to [Konits'] personal dissatisfaction with the terms and conditions of her employment." Id. at 125-26 (internal quotation marks omitted).
On appeal, the Second Circuit reversed the district court's decision. Id. at 124-26. The court first noted that gender discrimination in employment is "without a doubt a matter of public concern." Id. at 125. Beyond that, the court reasoned that the speech at issue in Konits's 1996 complaint was "of particular public concern" (emphasis added), in that it involved a charge of retaliation against Konits for her potential testimony in support of her co-worker's discrimination claim. Id. Taking the allegations as a whole, the court concluded that "[b]ecause Konits's 1996 lawsuit was predicated on speech about gender discrimination against a fellow employee that directly implicated the access of the courts to truthful testimony, we cannot agree with the district court that it `centered around issues solely related to [her] personal dissatisfaction with the terms and conditions of employment.'" Id. at 125-26. Thus, the court determined that the 1996 lawsuit itself "was speech on a matter of public concern." Id. at 126.
There are apparent differences between Konits and the case currently before this Court, not only in terms of the posture of the cases, but also in terms of their factual underpinnings. This case, predicated on claims of retaliation for whistle-blowing regarding environmental hazards, does not contain allegations of gender discrimination, nor does it involve a plaintiff's efforts to vindicate a co-worker's Title VII rights, nor does it "implicate the access of the courts to truthful testimony." Nonetheless, fairly read, Konits strongly suggests that where a lawsuit is "predicated" on speech that is plainly a matter of public concern (in other words, where a lawsuit adequately charges a First Amendment retaliation claim), the lawsuit itself, seeking redress for the First Amendment violation, should be deemed to constitute speech on a matter of public concern as well. Indeed, despite the distinctions between Konits and this case, Konits is the only Second Circuit case that this Court has now been able to locate that addresses whether the public concern requirement established by Connick v. Myers, 461 U.S. 138 (1983), is met in a First Amendment claim alleging retaliation for the filing of a First Amendment lawsuit. Konits rejects the notion that such a lawsuit should be viewed as speech merely intended to "redress personal grievances" and thus not as speech on a matter of public concern. Konits, 394 F.3d at 126.
Defendants argue that Konits only involved a single pattern of retaliatory conduct, "all stemming from the events that prompted [the] plaintiff to bring suit in the first instance," and that the Second Circuit really construed Konits's second retaliation claim as being based on the same protected speech as her first retaliation claim. ( See Defendants' Memorandum of Law in Opposition to Plaintiff's Motion for Reconsideration of May 23, 2005 Order, dated June 21, 2005 ("Def.Mem.") (Dkt. ____), at 2-4.) This reading of the decision, however, cannot square with the court's plain holding that Konits's "1996 lawsuit was speech on a matter of public concern." Konits, 394 F.3d at 126. Defendants further argue that construing Konits to hold that any complaint alleging a First Amendment violation is itself protected speech would require the Court to permit any plaintiff to supplement its complaint "automatically" with a later claim of retaliation for the filing of the complaint. ( See Def. Mem. at 3.) Yet this argument ignores the fact that Plaintiff must still plead the other necessary elements of a retaliation claim (including an adverse employment action and causation) in order to proceed on such a claim. The only element of Plaintiff's new retaliation claim that was at issue in this Court's May 23 Order was whether that proposed claim adequately alleged that Plaintiff engaged in protected speech in filing his Complaint. In light of the Second Circuit's decision in Konits, this Court is persuaded that Plaintiff's Complaint in this action did constitute speech on a matter of public concern, and that Plaintiff's new allegation is adequately pleaded in this regard.
Accordingly, Plaintiff's motion for reconsideration of the portion of the May 23 Order that denied him leave to supplement his Complaint by adding a new retaliation claim is granted. Plaintiff is granted leave to file his Second Amended Complaint, which the Court deems to include allegations supporting two separate claims under 42 U.S.C. § 1983 for retaliation in violation of the First Amendment: (1) retaliation for authoring an environmental report and (2) retaliation for filing his initial Complaint in this action. II. DISCOVERY RULINGS
Because the Court holds here that, in light of Konits, Plaintiff's Complaint in this action constituted speech on a matter of public concern, the Court does not reach the issue, also raised by the parties, of whether Plaintiff adequately pleaded a Monell claim in his Complaint, and if so, whether that alone caused Plaintiff's Complaint to constitute speech on a matter of public concern. ( See Mot. for Reconsideration ¶ 12; see also Def. Mem. at 5 n. 1.). Moreover, as the Court informed counsel in a telephone conference on March 29, 2005, Judge Stein has granted Defendants' request to bifurcate proceedings in this case, so as to address Plaintiff's claims against the individual defendants before any Monell claim against the City, and this Court has therefore stayed discovery on Plaintiff's purported Monell claim until such time as Plaintiff may prevail against the individual defendants.
In its May 26 Order, the Court denied several requests by Plaintiff to compel production of additional documents from Defendants and ordered limited production in response to several others. The May 26 Order was issued one day before the expiration of the "final" fact discovery deadline, which had been repeatedly extended to accommodate the needs of both parties, and it is best understood in that context.
Plaintiff commenced this action two years ago, in July 2003 ( see Complaint, filed July 8, 2003 ("Compl.") (Dkt. 1)), and it was referred to me for discovery supervision in October 2003. After two conferences with counsel in November 2003 and January 2004 (the latter of which was adjourned three times at counsel's request), the Court finally issued a Scheduling Order in February 2004, setting a fact discovery deadline of June 30, 2004. (Dkt. 21.) Discovery proceeded according to this schedule until May 14, 2004, when the Court stayed discovery in light of a request by Plaintiff's counsel to withdraw from the case. On August 18, 2004, the Court approved a substitution of counsel for Plaintiff, and discovery resumed. (Dkt. 23.) In granting the substitution of counsel, the Court cautioned Plaintiff that, prior to staying the case in May, it was the Court's view that
this was supposed to be the end of discovery. This was not supposed to be the time to start getting out all kinds of new demands that had not previously been made before. This is the time to get the document discovery done, get the depositions scheduled, get those done. Again, just because new counsel comes in doesn't mean that it is fair game to open this up to all kinds of new things that could have been anticipated before and could have been done sooner. You know, there are reasonable limits on that concept. . . . [I]f there are new facts that have come out and . . . it makes sense to have a follow-up demand, certainly if they are the kind of discovery demands that typically come at the end of discovery . . . I will expect the parties are reasonable and I will be reasonable. But this is not a time to just start the case all over again. Be aware that that's not what a substitution of counsel is about.
(Transcript of proceedings held on August 18, 2004, before the Honorable Debra Freeman (Dkt. 28), at 14.) After allowing Plaintiff's new counsel a reasonable transition period, and then considering counsel's arguments regarding the additional discovery that she believed was necessary, the Court set a new fact discovery deadline of January 24, 2005, an extension of nearly seven months past the original deadline. ( See Scheduling Order, dated October 12, 2004 (Dkt. 29).)
Discovery then resumed in the case, but on January 6, 2005, two weeks before the new close of fact discovery, the parties jointly requested a 60-day extension of that deadline. The Court approved this request, extending the deadline to March 15, 2005. (Dkt. 36.) The parties then raised a number of discovery disputes before the Court. In an Order dated February 7, 2005, the Court ruled on those disputes and granted the parties' joint request for a another extension of the fact discovery deadline, to April 30, 2005, cautioning the parties that there would be no further extensions of the deadline without good cause shown. (Dkt. 37.) Both parties appealed portions of the February 7, 2005 Order (Dkt. 38, 39, 41), but their appeals were denied by the Court (Stein, J.) on March 2, 2005 (Dkt. 40).
On March 25, 2005, the Court received a letter from Defendants' counsel, Donald Sullivan, Esq., requesting an additional three-month extension of the fact discovery deadline because Mr. Sullivan was leaving the New York City Law Department and a new attorney was to be taking over the case for Defendants. At a telephone conference with counsel for both parties on March 29, 2005, the Court refused Defendants' request, noting that the fact discovery deadline, which had been extended repeatedly by the Court, was still over a month away. Ultimately, at a follow-up telephone conference on April 18, 2005, the Court did extend the fact discovery deadline again, but only by one month, to May 27, 2005, in order to allow for the completion of production in response to certain outstanding requests and the taking of a limited number of depositions that had been the subject of some dispute.
Meanwhile, the parties continued to raise a multitude of discovery disputes with the Court. Telephone conferences were held with counsel for both parties on March 29, April 18, and May 9, 2005, to address these disputes. By the dates of these conferences, the Court had made it abundantly clear to counsel that no new document requests would be entertained, unless such requests arose out of one of the specifically permitted late depositions and the need for the documents could not have been anticipated earlier. Thus, for example, when Defendants asked the Court in May 2005 to compel Plaintiff to produce documents reflecting Plaintiff's pre-retirement earned income, the Court denied that request, except to the extent that such documents were covered by a request made by Defendants earlier in the discovery period.
On May 20, 2005, one week before the final fact discovery deadline, the parties submitted a joint letter to the Court, outlining discovery disputes that were purportedly still outstanding, although some had never previously been brought to the Court's attention. Before issuing a ruling on these matters, the Court requested and considered supplemental submissions by the parties explaining their positions on the newly raised disputes, and heard argument at a telephone conference on May 26, 2005.
Among the disputes raised by the parties were Plaintiff's requests for the following documents: (1) documents regarding any retaliation claims made against Defendant DiRusso by Sergeant Joe Anthony, a non-party, (2) training inspection reports from the precinct where Plaintiff served as Training Sergeant, from both before and after the date that Plaintiff was transferred out of the precinct, (3) portions of Defendant Henry's memo books not directly relating to Plaintiff, and (4) discipline records of certain non-party police officers whom Plaintiff wished to use as comparators in proving his claim that he was treated differently from other officers. ( See Letter from Bonnie Mussman to the Court, dated May 25, 2005 ("5/25/05 Mussman Letter"), attached to Mot. for Reconsideration as Ex. 6-1; see also Letter from Lawrence Profeta to the Court, dated May 25, 2005 ("Profeta Letter"), attached to Mot. for Reconsideration as Ex. 6-2.)
These documents were apparently covered by a previous discovery request by Plaintiff, but had not been produced, after Defendants asserted that no further responsive documents existed.
Defendant had already produced the memo book entries directly relating to Plaintiff, and thus only those entries not directly relating to Plaintiff were at issue.
In its May 26 Order, the Court directed Defendants to produce any public or internal First Amendment retaliation complaints made by Sergeant Anthony against Defendant DiRusso (as the Court had previously directed the production of any such complaints against any of the individual defendants); any portions of Defendant Henry's memo books that Henry reviewed in preparation for his deposition (as this request clearly arose from the deposition and could not have been earlier anticipated); and discipline records of those non-party police officers who, like Plaintiff, were disciplined for leaving their precinct while on duty (as Plaintiff had previously requested disciplinary records of other officers, in order to compare his disciplinary history to theirs, and these particular records appeared to provide a directly relevant comparison). ( See May 26 Order ¶¶ 3, 4(c), 5.) The Court declined to grant Plaintiff's requests beyond those limits, however, and also denied Plaintiff's request to compel production of training inspection reports from Plaintiff's precinct. ( See id. ¶¶ 3-5.)
Plaintiff now seeks reconsideration of these rulings, on the ground that they "preclude discovery of information that is central to [P]laintiff's case." (Mot. for Reconsideration ¶ 14.) Yet if the additional documents being sought are indeed "central" to Plaintiff's case, then they should have been sought by Plaintiff months ago, and, if sought and not produced, they long ago should have been the subject of a motion to compel. It appears that none of the document requests denied by the Court in its May 26 Order were requests that arose out of late depositions and could not have been made earlier. To the extent Plaintiff's counsel argues that she did not realize that Plaintiff needed to request additional documents until counsel reviewed other documents in preparation for those depositions, and that the lateness of the depositions was solely due to Defendants' delays ( see Declaration of Bonnie Mussman in Support of Objections to Discovery Rulings, sworn to June 9, 2005 ("6/9/05 Mussman Decl."), ¶ 8, attached to Mot. for Reconsideration), counsel's dilatory conduct in reviewing earlier-produced documents is not excused by any delays by Defendants in scheduling the depositions.
In any event, in making its final discovery rulings, the Court considered not only the arguments of both parties as to the timeliness of Plaintiff's requests, but also whether the information sought would have been cumulative of other information already disclosed through witness testimony or otherwise, whether the production would be unduly burdensome at this late stage, and whether the requested information was directly or, at best, tangentially relevant to Plaintiff's claims. Plaintiff has not argued that the Court, in considering these factors, overlooked any relevant law or factual matters, and the Court sees no basis to disturb its determinations.
Finally, to the extent Plaintiff argues that some of the documents it seeks were called for by its earlier discovery requests, and that Defendants may have mistakenly responded to those requests by stating that no such documents existed ( see 5/25/05 Mussman Letter at 2-3), the Court notes that nothing in its prior Orders is intended to relieve any party of its obligations under Fed.R.Civ.P. 26(e) to supplement its prior discovery responses, if that party learns that its prior responses were materially incorrect or incomplete.
CONCLUSION
For the foregoing reasons, Plaintiff's motion for reconsideration is granted with respect to the May 23, 2005 Order on Plaintiff's motion to supplement his Complaint, but the motion is denied with respect to the May 26, 2005 Order resolving discovery disputes. Accordingly, as set forth above, Plaintiff is granted leave to file his proposed Second Amended Complaint in its entirety. Defendants are directed to serve and file an Answer to Plaintiff's Second Amended Complaint within twenty (20) days of the date of this Order.
SO ORDERED.