White ("D. White Deposition"), Exhibit N to Plaintiff's Statement of Disputed Facts, filed December 29, 1997, at 26. They returned to Santos's house and waited in Rybicki's car for the arrival of the police and Santos's step-father who was expected to return from work at about 11:15 P.M. Id., P 6.
Arriving at the White residence at approximately 10:00 P.M., shortly after Rybicki and White had left to go to Santos's house, the Abbotts and Laura Pfalzer were also informed by Susan White about Brad Pfalzer's call regarding Santos. Affidavit of Laura Pfalzer ("L. Pfalzer Affidavit") dated April 30, 1997, Exhibit H to Plaintiff's Cross-Motion for Partial Summary Judgment (Doc. # 23), filed April 30, 1997, P 3. Laura Pfalzer then attempted to reach her son and Santos without success. Abbott Deposition at 54. About fifteen minutes after arriving at the White's and following Laura Pfalzer's attempts to reach her son and Santos, Jessica Abbott called the City of Tonawanda police. Id.11 Abbott spoke with Lieutenant James Litz and told him that Brad Pfalzer had called earlier and that according to Brad's information, Santos was "frantic" and "sounded suicidal," however, Litz was initially hesitant to take action because Abbott's information was insufficiently direct. Abbott Deposition at 58; Deposition Testimony of James Litz ("Litz Deposition"), Exhibit A to Defendants' Motion for Summary Judgment (Doc. # 36), filed November 14, 1997, filed at 12. Laura Pfalzer then spoke with Litz and reiterated that Santos was "suicidal" and further stated that Santos had "access to a gun."
After Pfalzer demanded the police respond, the call was terminated. Pfalzer Affidavit, PP 4, 5.
As he had just come on duty, Litz, upon termination of the phone call with Laura Pfalzer, picked up his equipment and drove directly to Santos's home where he encountered Rybicki and White.
Litz Deposition at 14. Litz walked around the house and found nothing suspicious. Id. at 15. Litz explained to Rybicki and White that based on what he considered to be "fourth-hand" information and the absence of evidence of unusual activity, Litz concluded he lacked the authority to break into the house. Id. at 15-16. Litz specifically looked for indications that someone had recently entered the house in an effort to confirm what he had been told by Abbott and Laura Pfalzer, but found nothing. Id. at 16-17, 24. After completing his investigation at Santos's house, which lasted about ten minutes, Litz advised Rybicki and White they could if they desired make a forced entry, but they stated they would wait for Santos's stepfather to get home from work. Id. 15-16. Litz then reminded the two men to contact the police if they needed further assistance and resumed his patrol duty at about 10:50 P.M. Id. at 16; Rybicki Deposition at 42. Shortly thereafter, at approximately 11:21 P.M., the police received a call reporting that Santos had been found dead of a self-inflicted gun-shot wound at his home. Kisloski Affidavit, Exhibit F to Defendants' Notice of Motion (Doc. # 36), filed November 14, 1997, P 11.
Based on the following discussion, Plaintiff's motion for leave to file a second amended complaint (Doc. # 7) is DENIED; Defendants' cross-motion for summary judgment and dismissal of the complaint (Doc. # 10) is GRANTED; Defendants' cross-motion to compel discovery (Doc. # 10) is DISMISSED as moot; Plaintiff's cross-motion for partial summary judgment (Doc. # 23) is DENIED; Plaintiff's motion to amend the scheduling order (Doc. # 28) is DISMISSED as moot; Plaintiff's motion to compel and extend the period within which to identify experts (Doc. # 30) is DISMISSED as moot; Plaintiff's motion to amend the scheduling order (Doc. # 34) is DISMISSED as moot; and Defendants' motion for summary judgment (Doc. # 36) is GRANTED.
1. Summary Judgment
Summary judgment will be granted when the moving party demonstrates that there are no genuine issues as to any material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 331, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991). The moving party for summary judgment bears the burden of establishing the nonexistence of genuine issues of material fact. If there is any evidence in the record based upon any source from which a reasonable inference in the nonmoving party's favor may be drawn, the moving party cannot obtain a summary judgment. Celotex, supra, at 331.
The function of a district court in considering a summary judgment motion is not to resolve disputed issues of fact, but to determine whether there is a genuine issue to be tried. Rattner, supra, at 209. In assessing the record, including any affidavits, exhibits, and other submissions, the court is required to resolve all ambiguities and to draw all factual inferences in favor of the nonmoving party. Anderson, supra, at 255; Rattner, supra, at 209.
Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . show that there is no issue as to any material fact, and the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, supra, at 247-48. See also Lipton v. The Nature Company, 71 F.3d 464, 469 (2d Cir. 1995).
While the court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986), a party may not "rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986), cert. denied, 480 U.S. 932, 94 L. Ed. 2d 762, 107 S. Ct. 1570 (1987). The non-moving party may defeat the summary judgment motion by producing sufficient specific facts to establish that there is a genuine issue of material fact for trial. Celotex, supra, at 322-23. "Mere conclusory allegations or denials" in legal memoranda or oral argument are not evidence and cannot by themselves create a genuine issue of material fact where none would otherwise exist. Lipton, supra, at *11. "Rule 56 mandates the entry of a summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, supra, at 322.
To defeat a motion for summary judgment, the nonmoving party "must adduce factual material which raises a substantial question of veracity or completeness of movant's showing or presents countervailing facts." Beal v. Lindsay, 468 F.2d 287, 291 (2d Cir. 1972). See also Argus, Inc. v. Eastman Kodak Co., 612 F. Supp. 904, 909 (S.D.N.Y. 1985), aff'd, 801 F.2d 38 (2d Cir. 1986), cert. denied, 479 U.S. 1088, 94 L. Ed. 2d 151, 107 S. Ct. 1295 (1987) (where plaintiffs did not raise any genuine issue of fact by acceptable factual evidence that contradicted or varied the documentary proof, summary judgment could not be defeated). According to Fed. R. Civ. P. 56(e), such factual material is to be presented in affidavits which "shall be made on personal knowledge and shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant so competent to testify to the matters stated therein." Fed. R. Civ. P. 56(e). "This requirement means that 'hearsay testimony . . . that would not be admissible if testified to at the trial may not properly be set forth in [the Rule 56(e)] affidavit. Beyah v. Coughlin, 789 F.2d 986, 989 (2d Cir. 1986)(quoting 6 Moore's Federal Practice, P 56-22, at 56-1312 to 56-1316 (2d ed. 1985)(footnote omitted).
Although the non-moving party is not required to depose her own witnesses, summary judgment must be opposed by "any of the kinds of evidentiary materials listed in Rule 56(c) . . . except the mere pleadings themselves." Celotex, supra, at 324. Fed.R.Civ.P. 56(c) specifies depositions, answers to interrogatories, admissions on file, and affidavits as the means by which the non-moving party may oppose summary judgment by demonstrating the existence of material issues of fact.
In this case, Defendants have moved for summary judgment and to dismiss the removed Amended Complaint in its entirety, based on the expiration of relevant statutes of limitations contending Plaintiff failed to satisfy the prerequisites to an action against a municipality and its police officers under New York General Mununicipal Law §§ 50-e and 50-i. Defendants further contend that Defendant police officers were at all relevant times acting within the official scope of their employment and are thus qualifiedly immune from this suit; that there was no "special relationship" between the City and Santos necessary to support a claim of negligence against the City under state law; and that there is no basis for any federal civil rights claim. Defendants' Memorandum of Law in Opposition to Plaintiff's Motion to Amend the Complaint and in Support of the Defendants' Cross Motion for Summary Judgment and Cross Motion for an Order Dismissing Plaintiff's Complaint or, in the Alternative, Compelling Plaintiff to Respond to the Defendants' Discovery Demands ("Defendants' Memorandum of Law in Opposition to Plaintiff's Motion to Amend the Complaint and in Support of the Defendants' Cross Motion for Summary Judgment") (Doc. # 11), filed February 23, 1997, at 17-20. On April 30, 1997, Plaintiff moved for partial summary judgment seeking a determination that there was no probable cause to arrest Santos and to take him into police custody on February 5, 1994.
2. Statute of Limitations
As noted, Plaintiff has alleged state claims based on intentional torts, negligence and wrongful death and has also asserted federal civil rights violations.
Defendants contend that Plaintiff's state law claims are time barred and that Plaintiff cannot establish the requirements for her federal civil rights claims. Alternatively, Defendants maintain that Plaintiff has failed to show any material issue of fact going to the liability of the defendant City of Tonawanda and the unnamed police officers and, additionally, that qualified immunity applies to the actions of the police officers. Defendants therefore argue that Plaintiff's state claims should be dismissed and that summary judgment should be granted on the remaining federal claims thereby rendering Plaintiff's motion to file a second amended complaint naming the individual police officers who were involved in this matter moot.
It is basic that no case may be commenced if the relevant statute of limitations has passed. In a removed action based on federal question jurisdiction, the timeliness of state claims alleged in the removed case is governed by state law. See Carnegie-Mellon University v. Cohill, 484 U.S. 343, 351, 98 L. Ed. 2d 720, 108 S. Ct. 614 (1987); Federman v. Empire Fire and Marine Ins. Co., 597 F.2d 798, 813 (2d Cir. 1979). Thus, if the court after finding that the case has been properly removed, thereby affording a basis for federal subject matter jurisdiction under 28 U.S.C. § 1441(a), the court may, in its discretion, retain any removed state claims joined with the federal claim. 28 U.S.C. § 1441(c). However, the district court must apply applicable state substantive law to the resolution of the state law claims, including a statute of limitations defense. Guaranty Trust Company v. York, 326 U.S. 99, 109, 89 L. Ed. 2079, 65 S. Ct. 1464 (1945). Unless the case is remanded, after removal questions of procedure are governed by federal law. Fed.R.Civ.P. 81(c)(the Federal Rules of Civil Procedure "apply to civil actions removed to the United States District Courts from the state courts and govern procedure after removal"); Granny Goose Foods, Inc. v. Brotherhood of Teamsters and Auto Truck Drivers Local No. 70 of Alameda County, 415 U.S. 423, 438, 39 L. Ed. 2d 435, 94 S. Ct. 1113 (1974). Here, no motion to remand was made. Accordingly, as claims under 42 U.S.C. § 1983 are alleged, the court has jurisdiction over the matter. Further, as Defendants' statute of limitations defense does not present novel questions of state law, the court elects to retain jurisdiction of the state claims. Carnegie-Mellon University v. Cohill, 484 U.S. 343, 98 L. Ed. 2d 720, 108 S. Ct. 614 (1988).
a. The State Law Claims
Actions grounded in tort, including a wrongful death action, against a municipality or its officers acting in their official capacity are permitted under New York General Municipal Law ("N.Y. Gen. Mun. Law") § 50. Specifically, the statute provides that
the action or special proceeding shall be commenced within one year and ninety days after the happening of the event upon which the claim is based; except that wrongful death actions shall be commenced within two years after the happening of the death.