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Greene v. City of Norwalk

United States District Court, D. Connecticut

February 14, 2017

CODY GREENE, Plaintiff,
CITY OF NORWALK, et al., Defendants


          Hon. Vanessa L. Bryant United States District Judge.

         I. Introduction

         Plaintiff Cody Greene brought this action on July 16, 2014, in an eleven count Complaint alleging various claims against the City of Norwalk (the “City”) and four individual Police Officers (“Defendant Officers”) employed by the City. The case arises from Plaintiff's arrest on July 18, 2012 and the alleged use of force by the officers involved in his arrest. [Dkt. No. 1]. Several motions implicating the case schedule are before this Court:

(1) Defendants move to preclude Plaintiff from offering expert testimony at trial, because Defendants claim that Plaintiff failed to timely produce expert disclosures pursuant to Federal Rule of Civil Procedure 26(a)(2)(D). [Dkt. Nos. 61 and 62].
(2) Plaintiff moves to strike the Defendants' Answers and Special Defenses [Dkt. Nos. 67 and 69] as untimely and to deem the allegations in the Amended Complaint admitted, on the grounds that the Answers were not timely filed. [Dkt. Nos. 70 and 71].
(3) Plaintiff moves to stay the deadline for filing dispositive motions and to reopen discovery, claiming that additional discovery is required in light of Defendants' late filing of their Answers. [Dkt. No. 77].
(4) Plaintiff moves for an order deferring the Court's consideration of the City's Motion for Summary Judgment, on the grounds that Plaintiff needs additional discovery to uncover facts essential to its opposition. [Dkt. No. 89].

         All of these motions are DENIED.

         II. Background

         The Court has faced formidable challenges in managing this case. The parties have persistently refused to comply with the Federal Rules of Civil Procedure, the District of Connecticut Local Rules, and the Court's scheduling orders. First, Defendants filed successive procedurally improper motions to dismiss, mistitled “supplemental” memoranda, in an attempt to dismiss the Plaintiff's claims on different theories well after the time to file a motion to dismiss had expired. Second, Defendants filed their Answers to Plaintiff's Amended Complaint many months after the deadline set forth in the Federal Rules of Civil Procedure, admitting “simple inadvertence” as an excuse. Third, Plaintiff failed to diligently pursue expert discovery during the lengthy period afforded him to do so.

         A. Defendants Filed Procedurally Inappropriate Motions to Dismiss Certain Counts of the Complaint

         This case was filed nearly three years ago, on July 16, 2014. [Dkt. No. 1]. The summons was served on the Defendants and on July 24 the summons was returned to the Court. [Dkt. No. 9]. On August 15, 2014, Defendants filed a Motion to Dismiss the Fourth Count (Abuse of Process) and Fifth Count (Malicious Prosecution) of the Complaint. [Dkt. No. 10]. The memorandum of law in support of the Motion to Dismiss contained just three pages of argument. Id. Defendants conflated the Fourth and Fifth Counts of the Complaint and argued only for dismissal of Plaintiff's malicious prosecution claim. See Id. at 1 (“In the Fourth and Fifth Claims for Relief the plaintiff alleges that the defendants are liable upon a theory of malicious prosecution”). The sole argument made by the defense in support of the Motion to Dismiss was that in order for a plaintiff to state a valid malicious prosecution claim, a plaintiff must show “that the criminal proceedings were terminated in their favor.” Id. at 3 (citing Inkel v. Connecticut Dep't of Children & Families, 421 F.Supp.2d 513, 522 (D. Conn. 2006)). In his September 4, 2014 Opposition, Plaintiff withdrew the Fourth Count (Malicious Prosecution) of the Complaint. [Dkt. 15 at 2]. However, Plaintiff opposed dismissal of the Fifth Count (Abuse of Process), correctly arguing that Defendants failed to provide any legal or factual basis supporting dismissal of the abuse of process claim. [Dkt. No. 15].

         Although Local Rule 7(d) is clear that reply memoranda “must be strictly confined to a discussion of matters raised by the responsive brief, ” two weeks after Plaintiff filed its objection pointing out Defendants' error, on September 15, 2014, Defendants filed an eight page successive motion to dismiss, for the first time making a legal argument for the dismissal of the Fifth Count. This second motion to dismiss was disingenuously entitled “Supplemental Memorandum of Law in Support of Motion to Dismiss” in a thinly-veiled attempt to rectify its error in failing to make a legal argument for the dismissal of the Fifth Count. [Dkt. No. 20]. On March 5, 2015, after the Court had virtually completed its ruling on the initial motion to dismiss, which was delayed by consideration of the first successive motion to dismiss, Defendants filed a second successive motion to dismiss, again mistitled “Supplemental Memorandum, ” seeking, for the first time, dismissal of Count Six (Monell) and Count Eleven (Negligence) of the Complaint. [Dkt. No. 31]. This, too, was in contravention of Local Rule 7(d).

         Thereafter, on March 9, 2015, the Court entered an Order denying Defendants' Motion to Dismiss as moot, because of Plaintiff's agreement to withdraw Count Four, and noting that Defendants' supplemental memoranda at Docket Nos. 20 and 31 would not be considered by the Court because they were procedurally improper. [Dkt. No. 33]. The Court held:

“These memoranda are not supplemental but instead seek dismissal of counts not the subject of Defendants' original Motion to Dismiss, and Defendants have failed to cite any authority permitting them to assert new arguments not made in their original motion after Plaintiff filed his opposition. . . .” Id.

         The pleadings having been closed, the Court also ordered the Plaintiff to clarify the record by filing an Amended Complaint omitting the withdrawn malicious prosecution claim. Id.

         The following day, on March 10, 2015, Defendants importunately filed a motion for leave to file a third successive motion to dismiss [Dkt. No. 34], and a “supplemental memorandum of law” in support of that motion [Dkt. No. 35], curiously arguing that because the Court had not yet ruled on the Motion to Dismiss, it could consider the newly-raised arguments. On March 26, 2015, this Court entered an order denying Defendants' Motion for Leave. [Dkt. No. 36]. The Court's order stated that the second successive motion to dismiss was in contravention of Rule 12(g), and noted that the Defendants' reliance on Malin v. XL Capital Ltd., No. 3:03 CV 2001 PCD, 2005 WL 2146089 (2005), was misplaced. In that case, leave was permitted on the basis of a change of law articulated in a United States Supreme Court decision published after the original motion to dismiss. The order further explained that the Defendants neither claimed nor could claim that there ...

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