CHARLES S. HAIGHT, JR., Senior District Judge.
Plaintiff Thais Ortolaza ex rel E., a minor child, has moved for the Court to reconsider and vacate its Ruling filed May 24, 2019, 388 F.Supp.3d 109 (D. Conn. 2019) ("the May 2019 Ruling"). The May 2019 Ruling dismissed Plaintiff's Amended Complaint against the CREC Defendants. Plaintiff couples the present motion for reconsideration of that Ruling with a stated intention to file a second amended complaint. The CREC Defendants oppose Plaintiff's Motion for Reconsideration.
The May 2019 Ruling, the subject of the present motion for reconsideration, was preceded by an opinion dismissing the original Complaint and granting Plaintiff leave to file the Amended Complaint. That earlier opinion is reported at 2018 WL 2100280 (D. Conn May 7, 2018) (the "May 2018 Ruling"). For purposes of this Ruling on Plaintiff's motion for reconsideration, familiarity with these two prior opinions is assumed. The prior opinions recite in detail the facts and circumstances of the case, a recitation repeated in this Ruling only to the extent necessary to explain the Court's resolution of Plaintiff's motion for reconsideration.
The incident in suit occurred during the morning of November 19, 2015, when E., a student at a CREC school, was arrested by Hartford police and briefly detained before being released without charges against him. The police acted in response to communications from school administrators who early that morning had received and considered an anonymous threatening e-mail. Plaintiff's initial complaint asserted claims arising out of E.'s arrest and detention against the school administrators ("the CREC Defendants") and Hartford police officers ("the Hartford Defendants").
The central fact at issue in Plaintiff's § 1983 action against the CREC-Defendant school administrators is the manner in which E. came to be identified to the Hartford police as the suspected author of the threatening e-mail. The gravamen of Plaintiff's federal claims against the CREC Defendants is that those Defendants should be regarded as joint "state actors" with the police with respect to the arrest and detention of E. In the May 2018 Ruling, the Court dismissed Plaintiff's original Complaint against the CREC Defendants because Plaintiff failed to make that showing as a matter of law. Plaintiff was granted leave to file an Amended Complaint in an effort to state a viable federal claim against the CREC Defendants. Plaintiff filed an Amended Complaint attempting to do so. The May 2019 Ruling dismissed the Amended Complaint on the same ground: Plaintiff's failure to sufficiently allege that the CREC Defendants were "state actors" for § 1983 purposes.
Plaintiff seeks reconsideration of the May 2019 Ruling on the basis of "newly discovered evidence." The CREC Defendants seek to preserve the May 2019 Ruling. Their initial contention is that the evidence Plaintiff relies upon is not "newly discovered," and consequently cannot support a motion for reconsideration.
This threshold dispute necessitates the fashioning of a procedural chronology. The following dates are pertinent:
As this litigation progressed, the parties to the action also conducted discovery. Although the CREC Defendants moved to dismiss the Amended Complaint against them on August 13, 2018, there was no application to stay discovery during the pendency of that motion. The Hartford Defendants, who had never moved to dismiss the action against them, continued their participation in the case, including pre-trial discovery, until the July 25, 2018 stipulation of dismissal as to them. It is necessary to consider the accomplished discovery in detail because Plaintiff contends the fruits of that discovery constitute "newly discovered evidence" requiring reconsideration and vacatur of the May 2019 Ruling dismissing the Amended Complaint against the CREC Defendants.
The discovery in question consists of six depositions and the interrogatory responses of two individuals. All the depositions were conducted by Plaintiff's counsel, who also propounded the interrogatories. The details are as follows:
Plaintiff contends that "the deposition testimony in question was unavailable, thus it is timely and is in fact newly-discovered." Reply Br. [Doc. 94] at 4. Particular stress is laid upon the deposition of Hartford Police Deputy Chief Buyak, the senior officer on site during the arrest, whose testimony Plaintiff says is "able to put all of the other evidence into context, and provide a credible backdrop on how to interpret the other testimony from CREC Defendants." Id. at 3. The result, Plaintiff contends, is that "the newly discovered evidence requires Plaintiff to alter and amend her pleading substantially to conform with the newly-discovered facts about the conduct of CREC Defendants [on] November 19, 2015." Id. at 4.
On the issue of timing, a significant element in the evaluation of whether particular evidence is "newly discovered," Plaintiff's Reply Brief makes the point that the sort of scheduling delays not uncommon in litigation occurred in this case. It is said that Plaintiff "first noticed the Buyak deposition September 27, 2018, and did not finally get a concrete date until May 22, 2019, which marked the fifth notice of deposition for Buyak." Id. at 3. The same circumstances surround the deposition of Sullivan, which Plaintiff also regards as important, and "required four notices." Id. "Plaintiff first issued notice for Defendant Sullivan January 4, 2019, yet scheduling circumstances delayed it until the May 13, 2019 deposition date." Id.
Plaintiff seeks reconsideration on the basis that "[n]ew testimony shows Defendant Nolan called Defendant Buyak before any police officer ever stepped foot on CREC property and volunteered E.'s identity." Pl.'s Br. on Mot. for Recons. [Doc. 86-1] (hereinafter "Brief"), at 2. Buyak is identified as "the Deputy Chief of Police of Hartford." Id. Counsel for Plaintiff took the deposition of Buyak at counsel's office in Hartford on May 22, 2019. Transcript [Doc. 87-1], at 1. According to the Brief at 2, Buyak "testified that Defendant Nolan identified E. as the writer of the e-mail," which leads Plaintiff to conclude: "Thus Plaintiff is able to allege CREC Defendants acted jointly with the police, and instigated the arrest." Brief at 3. Plaintiff moves for reconsideration "so she may amend her complaint [a second time] to update the allegations to show precisely what she has learned, which now nudges her complaint into the realm of private actor liability under 42 U.S.C. § 1983." Brief at 17.
The standard for granting a motion for reconsideration is "strict," and reconsideration will "generally be denied unless the moving party can point to controlling decisions or data that the court overlooked—matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995) (citing Schonberger v. Serchuk, 742 F.Supp. 108, 119 (S.D.N.Y. 1990)). This exacting standard is codified in the District of Connecticut Local Rules of Civil Procedure, which dictates that motions for reconsideration "shall satisfy the strict standard applicable to such motions" and "will generally be denied unless the movant can point to controlling decisions or data that the court overlooked in the initial decision or order." D. Conn. Civ. R. 7(c).
The Second Circuit has identified three major grounds that may justify reconsideration: "an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Virgin Atl. Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (quotation marks and citation omitted); see also Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Trust, 729 F.3d 99, 104 (2d Cir. 2013) (same).
In the case at bar, Plaintiff relies upon the second of these three grounds: "the availability of new evidence." Plaintiff professes to find, in police officer Buyak's deposition, newly discovered evidence which requires that this Court vacate its order dismissing the Amended Complaint against the CREC Defendants. New evidence as a ground for reconsideration was considered by Judge Hall in Marshall v. City of Meriden, No. 3:11-cv-577, 2017 WL 5513202 (D. Conn. March 13, 2017):
2017 WL 5513202, at *3 (citations and internal quotation marks omitted).
The requirement that evidence, to be considered as a basis for changing a judgment, must be newly discovered finds frequent expression in the cases. The question arises on motions for reconsideration under a local rule or for relief from a judgment under the Federal Rules. "A motion to alter or amend a judgment pursuant to Rule 59 is evaluated under the same standard as a motion for reconsideration under Local Civil Rule 6.3." Banco Central del Paraguay v. Paraguay Humanitarian Found., Inc., No. 01 Civ. 9649, 2007 WL2493684 (S.D.N.Y. Sept. 5, 2007), at *2. Judge Keenan said in that case:
Id. (citations and internal quotation marks omitted).
In Langsford v. Yale Univ. School of Med., 202 F.R.D. 367, 370 (D. Conn. 2001), District Judge Droney (as he then was), denying a motion for relief from a summary judgment on the ground of newly discovered evidence, recited the same elements as those articulated in Banco Central, and held on the facts of the Langsford case: "Assuming that the new evidence in this case is admissible and non-cumulative, the Court nevertheless concludes that the plaintiff was not excusably ignorant of the evidence. Nor did she use due diligence to learn of the evidence."
These well-established principles pose obvious difficulties for Plaintiff's attack upon the May 2019 Ruling on the ground of newly discovered evidence. The most important "newly discovered" evidence is Buyak's deposition, taken in May 2019. Buyak's testimony, Plaintiff now contends, causes her to revise her account of the communications between the school administrators and Hartford police resulting in E.'s arrest. According to Plaintiff's Brief at 1, previously Plaintiff had "relied on the December 2017 letter from CREC counsel for some of her allegations, because she had no other facts or allegations to understand the genesis of CFREC's actions on the day of the incident." Plaintiff asserts: "New testimony shows Defendant Nolan called Defendant Buyak before any police officer ever stepped foot on CREC property and volunteered E.'s identity." Brief at 2. That "new testimony" is Buyak's deposition. Plaintiff's argues that in fashioning her Amended Complaint: "Plaintiff pled McCain only provided the information from a prompt, based on CREC's December 2017 letter. Testimony now shows CREC Defendants told HPD of E. without being asked. Thus Plaintiff is able to allege CREC Defendants acted jointly with the police, and instigated the arrest." Id. at 3.
Plaintiff's Brief at 2 also contains this assertion: "In discovery — none of which was available to Plaintiff prior to her filing the Amended Complaint — Plaintiff obtained testimony refuting that McCain only identified the child to the police when they were in the room, pressuring him." (emphasis added). The "discovery" referred to centers around the Buyak deposition. This action was commenced on November 9, 2017. One cannot discern a basis for saying that a discovery deposition of Buyak, a Hartford police Defendant, was not "available" to Plaintiff until the Amended Complaint was filed on June 15, 2018. More to the point, Buyak continued to be available to be deposed from that date until May 22, 2019, when his deposition was taken. The CREC Defendants' motions to dismiss Plaintiff's pleadings have nothing to do with the scheduling or accomplishment of Buyak's deposition: Buyak was a Hartford Defendant, and the Hartford Defendants were fully engaged in the litigation until the stipulation dismissing them from the case on July 25, 2019.
Plaintiff asserts that her counsel "first noticed the Buyak deposition September 27, 2018 and did not finally get a concrete date until May 22, 2019." Reply at 3. One supposes that counsel for the parties were engaged in the customary exchange of courtesies about scheduling. There is no indication in the record that counsel for Plaintiff objected to or sought the Court's intervention about a delay in deposing Buyak.
The fact of the matter is that Buyak, a Hartford police Defendant and the head of the unit that arrested E., was in any meaningful sense of the word "available" under the discovery rules to be deposed by Plaintiff as soon as issue was joined on the pleadings.
Moreover, Plaintiff as the proponent of purportedly "newly discovered" evidence has the burden of showing that her exercise of "due diligence" failed to discover it. The difficulty for Plaintiff on that aspect of the case derives from the obvious fact that the content of relevant communications between the CREC school administrators and the Hartford police are of crucial importance in this § 1983 case.
Plaintiff did not participate in the conversation between Buyak and Nolan, and thus had no knowledge of its content, but the most obvious and elemental exercise of due diligence should have impelled Plaintiff to acquire that knowledge as quickly as possible. After all, Plaintiff's § 1983 claim against the CREC Defendants turned on whether "the form and substance of communication between private parties and the police" suffices "to make the private party a state actor," (see May 7 Ruling, 2018 WL 2100280 at *10), and what CREC Defendants and police officers said to each other during their initial exchanges are of crucial and obvious importance. Plaintiff filed her original Complaint on November 9, 2017. Plaintiff did not acquire the evidence now relied upon as the basis for reconsideration until Buyak was deposed on May 22, 2019. That chronology cannot be characterized as the exercise of due diligence in the pursuit of evidence of this significance.
As noted supra, there is no support in the record for Plaintiff's conclusory assertion that Buyak (a named Defendant in the action for whom counsel had appeared) was not "available" for a discovery deposition at any time after Plaintiff filed her original Complaint on November 9, 2017. The importance of police testimony on this aspect of the case was apparent at that early time. Plaintiff's counsel did not get around to deposing Buyak until May 22, 2019, and so far as the present record reveals, counsel acquiesced in repeated re-schedulings of that deposition after first noticing it for September 2018. "Due diligence" on the part of Plaintiff to obtain this evidence cannot be made of stuff such as this.
The manifest inability of Plaintiff to qualify Buyak's deposition testimony as "newly discovered evidence" mandates denial of her present motion for reconsideration. But I do not reject the motion for that reason alone. The Court's consideration of the substance of Buyak's testimony, together with Plaintiff's revised contentions related to it, would not alter the Court's May 2019 Ruling that Plaintiff's Amended Complaint fails to allege a viable § 1983 claim against the CREC Defendants.
The Court's May 2019 Ruling quoted or paraphrased the allegations of the Amended Complaint as follows (388 F. Supp. 3d at 112): McCain, Nolan and Sullivan, the three CREC Defendants, discussed the threatening e-mail during the early morning of November 19, 2015. "McCain called 911 at 6:21 a.m. and informed the HPD 911 dispatcher of the e-mail and that McCain believed the threat it contained was credible. This was the CREC Defendants' initial notification to the HPD about the incident." "McCain, Nolan and Sullivan determined that E. was a suspect in the sending" of the email and E's "authorship of the email was likely." E. boarded the school bus at about 6:57 that morning. "By this time, it appears that the CREC Defendants had identified E. to the HPD as the suspected author of the email, but they had made no effort to prevent E. From boarding the bus at that time." "McCain, Sullivan and Nolan told the Hartford Police Department that E. would be on the bus," and directed the bus to go to a different school close to the HPD, where a group of police, commanded by Buyak, arrested, handcuffed and removed E.
The deposition of Buyak, upon which Plaintiff bases her motion for reconsideration, establishes that he was on duty at the HPD headquarters on the morning of November 19, 2015, and contains this testimony:
Plaintiff undertakes to explain in her Brief why this testimony by Buyak requires the reconsideration and setting aside of the Court's May 2019 Ruling dismissing the Amended Complaint. Plaintiff's Brief argues that point in this manner:
In framing her Amended Complaint, Plaintiff "relied on the December 2017 from CREC counsel for some of her allegations, because she had no other facts or allegations to understand the genesis of CREC's actions on the day of the incident." Brief at 1. The May 23 Ruling gave consideration to, as party admissions by, certain statements in a December 2017 letter from McCain's counsel to Plaintiff's counsel. See 380 F. Supp. 3d at 113-114. Plaintiff, seeking reconsideration, now argues: "New testimony shows Defendant Nolan called Defendant Buyak before any police officer ever stepped foot on CREC property and volunteered E's identity." Brief at 2. "Defendant Buyak said it was Defendant Nolan who identified E. to the police." Id. at 6. "The person from CREC who identified E. to the police matters." Id. Expanding on that assertion, Plaintiff contends:
Id. at 12.
The substance of Buyak's deposition testimony does not support the conclusion Plaintiff seeks to draw from it. Buyak described the events leading up to E.'s arrest in a manner that alters, in one limited respect, the account recited by the Court in the May 2019 Ruling, based on the then-existing record. At one point in that Ruling, the Court said: "McCain took the manifestly sensible step of telephoning the Hartford police and informing them about the threatening e-mail, thereafter responding to police inquiries by giving them information about E." 388 F. Supp. 3d at 124. Buyak says in his testimony that it was Nolan, not McCain, who made the seemingly first call to the Hartford police about the school administrators' concerns about the email, and Nolan informed Buyak of the identity of the individual student the CREC Defendants suspected was the perpetrator.
Accepting arguendo that Buyak's account of those particular events was more accurate than the account recited in the May 2019 Ruling, the resulting alteration in the narrative does not alter the Court's conclusion that the Amended Complaint failed to allege a viable § 1983 claim against the CREC Defendants.
The May 2019 Ruling identifies the principle of law that governs this case: "The conduct of McCain and the other CREC Defendants would cast them in the role of `state actors' in E's arrest if they were acting `under color of' state law, as that phrase is used in (and required by) § 1983." 388 F. Supp. 3d at 116. I observed in the Ruling that § 1983 civil rights cases frequently "involve claims by individuals who were arrested as the result of communications between private parties and the police." Id. at 118. The Supreme Court has said that "state action may be found if, though only if, there is such a close nexus between the State and the challenged action that seemingly private behavior may fairly be treated as that of the State itself." Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass'n., 531 U.S. 288, 295 (2002) (internal quotation marks omitted). The Second Circuit applies certain pragmatic tests of conduct to determine whether "the actions of a nominally private entity are attributable to the state." Sybalski v. Indep. Grp. Home Living Program, 546 F.3d 255, 257 (2d Cir. 2008). In arrest cases such as the one at bar, King v. Crossland Savings Bank, 111 F.3d 251 (2d Cir. 1997), states the Second Circuit rule:
After reviewing these and other arrest cases, I concluded in the May 2019 Ruling:
388 F.3d at 124.
Applying those principles to the instant case, I held in the May 2019 Ruling that the CREC Defendants "cannot be regarded as state actors, or as having acted under color of state law, in connection with the arrest of Plaintiff's son E. by the Hartford police." 388 F. Supp. 3d at 134. The police were the state actors in the case. Their arrest of E. "resulted from information communicated to the police by the school administrators," id., for which th CREC Defendants bear no § 1983 liability as a matter of law. The school administrators have that freedom from liability, whether the first school communication to the police came from McCain (as Plaintiff alleged in the Amended Complaint) or from Nolan (as Plaintiff now asserts on this motion, based on Buyak's deposition). The evidence Plaintiff cites as ground for reconsideration, newly discovered or not, has no effect upon the May 2019 Ruling.
For the foregoing reasons, Plaintiff's Motion for Reconsideration [Doc. 86] is DENIED.
It is
