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MEJIA v. CITY OF NEW YORK

September 5, 2002

LUIS MEJIA AND AURA DINA MEJIA, PLAINTIFFS,
V.
CITY OF NEW YORK, AIRBORNE FREIGHT CORPORATION, BRENDA TIPTON, DANIEL MCNICHOLAS, AND JOHN SKINNER, DEFENDANTS.



The opinion of the court was delivered by: David G. Trager, United States District Judge

MEMORANDUM AND ORDER

Plaintiffs Luis and Aura Mejia originally brought this § 1983/Bivens action against the City of New York, Airborne Freight Corporation, U.S. Customs Service Special Agent Brenda Tipton, and Sergeant Daniel McNicholas and Detective John Skinner of the New York City Police Department ("NYPD") alleging false arrest, false imprisonment, use of excessive force, and malicious prosecution, all in relation to the controlled pickup of a shipment of cocaine. The Mejias also asserted pendent state law claims for false arrest, false imprisonment, malicious prosecution, and intentional infliction of emotional distress against various defendants.

By the Memorandum and Order of October 5, 2000: (1) the City's motion for summary judgment was granted; (2) Airborne's motion for summary judgment was granted with respect to the § 1983 excessive force claims and the intentional infliction of emotional distress claims, but denied with respect to the § 1983 false arrest and malicious prosecution claims, and the state law malicious prosecution claims; (3) Tipton's motion for summary judgment was granted with respect to the Bivens excessive force claims and the intentional infliction of emotional distress claims, but denied with respect to the Bivens false arrest and malicious prosecution claims; (4) McNicholas's motion for summary judgment was granted with respect to the state law false arrest claims, but denied with respect to the § 1983 false arrest, malicious prosecution, and excessive force claims, and the intentional infliction of emotional distress claims; and (5) Skinner's motion for summary judgment was granted with respect to the state law false arrest and intentional infliction of emotional distress claims, but denied with respect to the § 1983 false arrest, malicious prosecution, and excessive force claims. See Mejia v. City of New York, 119 F. Supp.2d 232, 289 (E.D.N.Y. 2000).

In addition, Airborne was granted leave to renew its motion for summary judgment on the § 1983 false arrest and malicious prosecution claims on the ground that plaintiffs have not shown that Airborne's alleged constitutional violations resulted from an official policy of Airborne, and on the state law malicious prosecution claims on the ground that they are untimely.*fn1 See id. Airborne did so on October 16, 2001.

Background

Familiarity with the facts of this case is assumed, see id. at 243-52, but in addition to any new relevant facts, the facts relevant to the current motion are taken from the Memorandum and Order and will be repeated in some detail.

(1)

There is no dispute over the initial events of this case. On November 18, 1993, U.S. Customs Service agents in Miami intercepted a package from Bogota, Columbia in which more than a pound of cocaine had been hidden in the covers of three books of textile samples. The package had been delivered to Miami by a Columbian express courier for transfer to Airborne, the connecting domestic courier. The airbill identified the recipient as Complete Diagnostic Best Sports Car Service in Hollis, New York, but did not list an individual addressee. The airbill also gave the recipient's phone number.

The Miami Customs officials forwarded the package to Tipton, an agent in the New York Customs office. Because the package contained less than one kilogram of cocaine, the matter fell outside federal prosecution guidelines. Tipton thus contacted Detective McNicholas about the possibility of the NYPD conducting a controlled delivery of the package.

On November 19, 1993, Tipton contacted John Bezmen, Airborne's regional security manager, and asked him to arrange to place an entry in Airborne's computer system to reflect a delay due to misrouting so as not to arouse the suspicion of the unknown recipient. Bezmen agreed to the request and offered to cooperate in any subsequent controlled delivery of the package.

That same day, another Customs Service agent visited Complete Diagnostic, and picked up a business card for the garage which included the name "Luis" and a telephone number that matched the one on the airbill. Tipton and McNicholas first considered having Customs sign over the package to the NYPD for a controlled delivery on the following day, but abandoned the plan because McNicholas believed there would be no way of knowing whether the person who happened to sign for the package at the garage was the intended recipient.

(2)

At the time of these events, Bezmen was supervised by Donald McGorty, the Airborne's Director of Security for Area 1, which covered the northeast. McGorty Dep. at 12. Bezmen was one of three "investigators" who reported to McGorty, and was stationed at Kennedy Airport. Id. at 13.

Although McGorty was Bezmen's supervisor, he did not actively oversee Bezmen's involvement in controlled deliveries. Id. at 15-17. Bezmen never asked McGorty's advice about how to conduct a controlled delivery; nor did McGorty ever review Bezmen's actions in them. Id. at 16-17.

At this time, Thomas Gennarelli was an Airborne cartage supervisor at Airborne's Inwood Station who supervised a group of thirty drivers. Gennarelli Dep. at 7. Gennarelli's direct supervisor was District Manager Bill Savino. Id. at 13. Gennarelli stated he was involved in approximately three controlled deliveries in his two years as Inwood Station's cartage supervisor. Id. at 13-14. In those situations, he provided a van and/or uniforms to the law enforcement officials, and "[t]he norm was to cooperate" with them. Id. at 16, 23.

(3)

At this point in the story, plaintiffs' and defendants' accounts of the events diverge widely. According to the defendants, on November 29, 1993, Tipton spoke to Bezmen, who had previously left a message for her. Bezmen told her that he had noticed an entry on Airborne's computer that indicated someone named "Luis" had called on November 22, 1993, asked about the package, and left the phone number for Complete Diagnostic.*fn3 Tipton and McNicholas then conferred to make arrangements for a controlled pickup at Airborne's facility the next day, November 30, 1993.

At Tipton's request, Gennarelli called the contact number and asked for "Luis Mejia."*fn4 A person answered and said: "This is Luis." Gennarelli told "Luis" that his package was available for pickup at Airborne's Inwood station, which is located near JFK. Gennarelli further advised "Luis" that he should come to pick up the package after noon the next day, November 30, 1993. Gennarelli does not recount having to give "Luis" any reasons as to why he was required to pick up the package at the Airborne office as opposed to it being delivered to Complete Diagnostic; Gennarelli stated that "Luis" simply agreed without asking any questions. According to Gennarelli, the call lasted approximately two minutes. After the call, Gennarelli advised Tipton that "Luis" said he would come to Airborne's facility the next day to pick up the package.

On November 30, 1993, Tipton brought the package to Airborne's Inwood station and signed it over to Detective Skinner. According to Tipton, she had no further role in the controlled pickup, though she remained at the facility until Mr. Mejia arrived.

Skinner placed the intercepted package in an Airborne box, sealed it, and gave it to Gennarelli. The police then waited for Mr. Mejia's arrival out of sight in prearranged positions.

Later that day, Mr. Mejia set off for the Airborne office along with his wife. Along the way, he got lost and had to call for directions. Gennarelli answered, or was given, the call and provided Mr. Mejia with additional directions. Shortly thereafter, Luis Mejia entered Airborne's facility and walked up to Gennarelli, who was wearing an Airborne uniform. Mr. Mejia signed for the package, accepted delivery, and walked out. According to Gennarelli, Mr. Mejia did not inspect the package while he was in the office or indicate in any way that the package was unexpected. According to Skinner, who was watching from the reception area of the Airborne office, once back in the car, Mr. Mejia handed the package to his wife, who immediately opened it.

About ten minutes later, McNicholas, Skinner, and several other NYPD officers pulled the car over to the side of the road and arrested the Mejias.

(4)

The Mejias tell a very different story about the events leading up to their arrest and prosecution. In essence, the Mejias allege that they knew nothing about the package from Colombia and that Airborne representatives (or government agents masquerading as Airborne representatives) coaxed and cajoled them into claiming the package under the pretense that the package was a Christmas gift from Venezuela.

Specifically, Mr. Mejia denies that he placed a call to Airborne inquiring about the package. Mr. Mejia testified in deposition that one of his employees, Charlie Diego, received a telephone call on November 22, 1993, from an unidentified individual who asked who owned the business. Diego told the caller the owner was named Luis. The caller also allegedly asked whether the owner was Colombian and whether everyone who worked at the garage was Spanish.

Thereafter, Mr. Mejia states that he received four unsolicited phone calls from Airborne in which one or possibly two purported Airborne agents beseeched him to come to the Airborne facility and pick up the package. The first alleged call took place early on the morning of November 29, 1993. The first caller asked him if he was "Luis" and told him that Airborne had a package for him. Mr. Mejia then stated: "Okay, why don't you deliver it." The caller responded that Airborne could not deliver the package because it was a personal package and that he would have to come and sign for it: "You have to come personally to pick up the package because it is addressed to you." Mr. Mejia then stated that he could not pick up the package that day because he was too busy. Mr. Mejia asked whether Airborne could just deliver the package for an extra charge, which he would pay. The caller answered that he could not do so, again, because the package was personal.

At that point, Mr. Mejia asked where the package was from, to which the caller responded: "Caracas, Venezuela." Mr. Mejia then had a conversation off the phone, in which he asked his wife whether she was expecting a package from Venezuela. When his wife answered no, Mr. Mejia "went back to the phone and told the man and said, `Are you sure it is coming from Venezuela?'" The caller answered yes. Mr. Mejia then asked the caller to describe the package. After a number of questions along that line, the caller said:

Look, this package, it was supposed — this package is supposed to be picked up few days going on, if you're not picking up the package, we are going to send it back and I'm going to get into trouble, because this package, I suppose [sic] to send it out and I forgot to send it out. . . . So please come and pick it up. . . . [sic] Put it away for you and you just come and take out this package.

Mr. Mejia then asked: "But where [sic] is the package?" The caller replied: "Looks like a Christmas present." Mr. Mejia again advised the caller: "Bring it to me and I will pay." The caller again stated that he could not do so because the package was already two days late and gave Mr. Mejia "a whole story about the package. Came through Miami also, the whole story." The caller added that the package would be sent back to Venezuela if he did not pick it up and again emphasized that it was a Christmas present.

Finally, Mr. Mejia stated that he "might pick it up later on," and asked for directions. At that point, Mr. Mejia and the caller had a conversation about the best route to take. The conversation ended with Mr. Mejia telling the caller that he would pick up the package, "[p]erhaps . . . today, I don't guarantee that."

Mr. Mejia testified that the call lasted over twenty to twenty-five minutes; later, he stated that it was probably even longer, between thirty and forty-five minutes. At no time during the call, however, did the caller use his last name.

The second alleged conversation occurred later on the afternoon of the 29th, around 2:30 p.m. or 3:00 p.m., when an unidentified, purported Airborne representative told Mr. Mejia: "We're waiting." Mr. Mejia replied: "I'm sorry, I forgot about it but I definitely [sic] pick it up tomorrow." Mr. Mejia then hung up. Mr. ...


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