United States District Court, D. Connecticut
MEMORANDUM AND ORDER
Vanessa L. Bryant United States District Judge.
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].
these motions are DENIED.
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.
Defendants Filed Procedurally Inappropriate Motions to
Dismiss Certain Counts of the Complaint
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].
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).
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.
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.
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 ...