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United States District Court, W.D. New York

April 29, 2004.


The opinion of the court was delivered by: MICHAEL TELESCA, Senior District Judge



Plaintiffs Sherry Palmer ("Palmer" or "plaintiff") and Mark Palmer bring this action against numerous defendants claiming that Palmer's Constitutional and common law rights were violated in connection with her arrest and prosecution on charges of Second Degree Grand Larceny. Plaintiff claims that she was falsely accused and maliciously prosecuted on charges that she embezzled $52,205.90 from defendant Burns Glass Service, d/b/a Ray Sands Glass, her former employer. She brings this action under 42 U.S.C. § 1983 claiming that her Constitutional rights were violated, and under New York State law claiming that she was subjected to malicious prosecution, abuse of process, intentional and/or reckless infliction of emotional distress, and negligence.

  On May 23, 2001, defendants David Burns, Frank Burns, and Burns Glass Service (the "Burns defendants"), moved for summary judgment on grounds that plaintiff has failed to state a viable cause of action against them. By Order dated August 21, 2001, this Court granted the Burns defendants' motion for summary judgment, and granted in-part and denied in-part plaintiffs' motion to amend. The Court additionally allowed plaintiffs to amend their complaint to add as defendants Sergeant Ralph Sarkis and Lieutenant Michael Nyhan. Thereafter, plaintiff moved for reconsideration, and by Decision and Order dated January 3, 2002, I vacated that portion of my previous Decision and Order dismissing plaintiffs' malicious prosecution claims. While I allowed plaintiffs to pursue their cause of action for malicious prosecution against the Burns defendants, I dismissed plaintiffs' civil rights claims against the Burns defendants on grounds that plaintiffs had failed to sufficiently allege that the Burns defendants were state actors or acted in concert with state actors.

  Currently before the court are three motions seeking various forms of relief. Defendants Charles Callear ("Callear"), Joseph Hennekey ("Hennekey"), Ralph Sarkis ("Sarkis"), Michael Nyhan ("Nyhan"); the County of Monroe; and the Monroe County Sheriff (hereinafter collectively referred to as the "County Defendants") move for summary judgment against the plaintiffs on all claims. Additionally, the County defendants (1) seek permission to amend their answers nunc pro tunc; (2) move to dismiss the Complaint for plaintiffs' disobedience of previous court orders; (3) move to preclude plaintiffs from offering certain evidence at trial; (4) move for an order of contempt; and (5) seek various other forms of relief. See County Defendants' Notice of Motion (docket item no. 132).

  The Burns defendants move for summary judgment against the plaintiffs, and seek sanctions pursuant to Rule 37(b)(2) of the Federal Rules of Civil Procedure including the striking of plaintiffs' complaint, and preclusion of the use by plaintiffs of certain evidence at trial.

  Plaintiffs move for summary judgment against the defendants and for an order permitting plaintiffs to amend the Complaint to include causes of action for false arrest under New York State Law, and misuse of grand jury subpoena power.


  Plaintiff Sherry Palmer was employed by defendant Burns Glass Service as an office manager from July 1994 until February 1998. In November of 1995, plaintiff was assigned certain accounting responsibilities. In January 1998, bookkeeper Ed Able, ("Able"), an employee whom Palmer placed on probation because of poor work performance, wrote a letter to David and Frank Burns (President and Vice President respectively of Burns Glass Service), and complained of a number of improprieties with respect to plaintiff's management of the office. According to Able, Palmer, among other things leaked confidential information to employees and failed to return overpayments to customers. Palmer denies these allegations, and claims that Able was a poorly-performing employee who wrote the letter only to save his job. David and Frank Burns investigated Able's claims and on February 6, 1998, they terminated plaintiff's employment on grounds that she allegedly leaked confidential information. At the time, plaintiff was then seven months pregnant.

  Upon plaintiff's termination, she hired an attorney in an attempt to obtain a monetary bonus from the previous year and severance pay. The parties were unable to negotiate a settlement of those claims.

  Following Palmer's termination, Frank and David Burns hired Patricia Hedeen, ("Hedeen"), as the replacement office manager. Hedeen was asked to review the financial records to determine if Palmer had engaged in any financial misconduct. In the course of her investigation, Hedeen learned that for every month from November 1995 (when plaintiff took over the accounting functions) through December 1997, (two months before plaintiff was fired), cash receipts for Burns Glass Service exceeded cash deposits. Hedeen found that for the approximately two-year period, receipts exceeded deposits in the amount of $52,205.90. Plaintiff claims that the investigation was flawed, and that there were no discrepancies. Specifically, plaintiff contends that the records used by the defendants did not accurately reflect which accounts were paid in cash, and which accounts were paid in some other manner. She contends that because the records utilized did not accurately reflect which accounts were paid in cash, those records would not correspond to cash deposits, and therefore any comparison of amounts from those sources is fundamentally flawed. She contends that had the defendants utilized accurate records in determining wether or not there was a discrepancy between cash receivables and cash deposits, the Burns defendants would have realized that there was no discrepancy, or at worst, and insignificant discrepancy.

  Following Hedeen's investigation, Burns Glass Service hired the accounting firm of Mengel, Metzger, Barr & Company, ("Mengel Metzger") to conduct an independent investigation. The firm utilized the same method to investigate records for two separate months, and reached the same conclusion as Hedeen: that there were discrepancies between cash receipts and cash deposits.

  One week after receiving the confirming report from Mengel Metzger, David and Frank Burns directed Hedeen to report her findings to the Monroe County Sheriff's Department. Monroe County Sheriff's Deputy Joseph Hennekey, ("Hennekey") investigated the allegations, and filed a felony Complaint against Palmer on September 3, 1998, charging her with second degree grand larceny. As part of his investigation, Hennekey obtained the plaintiffs' financial records and compared the plaintiffs' known expenditures to their known sources of income. In doing so, he concluded that plaintiffs, over the course of three years from 1996 through 1998, had spent over $19,000.00 in excess of their known sources of income. Plaintiffs dispute Hennekey's findings on grounds that Hennekey ignored over $19,000.00 in known income, and improperly calculated plaintiffs' expenditures by double-counting several expenditures. According to the plaintiffs, the actual discrepancy between plaintiffs income and expenditures over the course of approximately 2 and one half years was less than $300.00

  On March 12, 1999, a Grand Jury returned an Indictment against the plaintiff on Grand Larceny charges. The case was later tried at a bench trial before the Honorable William Bristol, who, on August 5, 1999, found the defendant not guilty. Plaintiffs filed the instant case on August 4, 2000.


  I. The Burns Defendants

  The sole remaining independent count against the Burns defendants is a claim for malicious prosecution. As I held in my January, 2002 Decision and Order, a complaining witness can be held liable for malicious prosecution if the witness "fail[s] to make a full and complete statement of facts to the District Attorney or the court," or "hold[s] back information that might have affected the results" of an investigation or trial. Alberto Ramos v. The City of New York, 2001 N.Y. Slip Op. 06735 (1st Dep't August 16, 2001). I therefore determined that the Burns defendants could be held liable for malicious prosecution "if it is found that they gave information which they knew to be false and which unduly influenced the authorities." January 3, 2002 Decision and Order at p. 3.

  The Burns defendants now move for summary judgment on grounds that as a matter of law, there is no evidence that they provided authorities with information they knew to be false or which unduly influenced authorities. In support of their argument, defendants contend, inter alia, that: (1) there is no evidence that the invoices they used to determine if there was a discrepancy between cash payments and cash deposits were unreliable; and (2) law enforcement authorities conducted their own independent investigation thus demonstrating that the information they reported to the authorities did not unduly influence law enforcement officials.

  I find, however, that there is a question of fact as to whether or not the Burns defendants provided information they knew to be false to law enforcement authorities, and whether or not law enforcement authorities were unduly influenced by that information. Specifically, with respect to the investigation conducted by the Burns, there is significant evidence in the record raising a question as to whether the investigation performed by the Burns defendants was made in good faith, and whether they knew the information presented to authorities was accurate or reliable. There is evidence that the invoices used by the Burns defendants to calculate cash receipts actually reflected receipts of cash, checks, or credit cards. Accordingly, because the invoices used to determine the amount of cash received on a given day may have actually reflected payments made in cash, credit cards, or checks, the comparison of these invoices only to deposits of cash would not necessarily reflect accurately any discrepancy between cash received and cash deposited. Moreover, there is evidence that the person who conducted the investigation knew that the invoices she used to calculate cash receipts included forms of payment other than cash — to wit: check and credit card payments. Because there is evidence that the Burns defendants knew or should have known that the methodology they used to calculate the discrepancy between cash receipts and cash deposits was subject to gross inaccuracies, I find that there is a question of fact as to whether or not they knew that the information they provided to investigators was false.

  There is also a question of fact as to whether or not the information provided by the defendants to investigators unduly influenced law enforcement officials. Viewing the evidence in the light most favorable to the plaintiffs, there is evidence demonstrating that based on the information the investigators received from the Burns defendants, the investigators focused their investigation solely on the plaintiff, and did not consider any other suspect, including other Burns employees with access to cash receipts. Moreover, plaintiffs have presented evidence suggesting that investigator Hennekey accepted the information he received from the Burns defendants without independently verifying it. Accordingly, there is a question of fact as to whether the information provided by the Burns defendants was unduly relied upon by the investigating authorities.

  II. The County Defendants

  The County Defendants move to amend their Answer to include the affirmative defenses of: (1) the New York State Statute of Limitations; (2) probable cause for the arrest of Sherry Palmer; and (3) immunity pursuant to the 11th Amendment of the United States Constitution. Pursuant to Rule 15(a), defendants motion is granted on grounds that amendment of the Answer would not unduly prejudice the plaintiffs or cause undue delay.

  The County Defendants also move for summary judgment against the plaintiffs on all counts of the Complaint. Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." When considering a motion for summary judgment, all inferences and ambiguities must be resolved in favor of the party against whom summary judgment is sought. R.B. Ventures, Ltd. v. Shane, 112 F.3d 54 (2nd Cir. 1997). If, after considering the evidence in the light most favorable to the nonmoving party, the court finds that no rational jury could find in favor of that party, a grant of summary judgment is appropriate. Annis v. County of Westchester, 136 F.3d 239, 247 (2nd Cir. 1998).

  For the reasons set forth below, the County defendants' motion for summary judgment is granted in-part and denied in-part.

  A. Malicious Prosecution

  Plaintiffs allege that the County defendants violated Palmer's federal constitutional and common law rights to be free from malicious prosecution. To state a claim for malicious prosecution under New York law, a plaintiff must prove "(1) the initiation or continuation of a criminal proceeding against plaintiff; (2) termination of the proceeding in plaintiff's favor; (3) lack of probable cause for commencing the proceeding; and (4) actual malice as a motivation for defendant's actions." Russell v. Smith, 68 F.3d 33, 35 (2nd Cir. 1995); Murphy v. Lynn, 118 F.3d 938, 947 (2nd Cir. 1997). A claim of malicious prosecution in violation of a person's federal civil rights is analyzed under the same standard as a common law malicious prosecution claim. Cook v. Sheldon, 41 F.3d 73, 79 (2nd Cir. 1994); Easton v. Sundram, 947 F.2d 1011, 1017 (2nd Cir. 1991).

  With respect to plaintiffs' claims of malicious prosecution, it is uncontroverted that a criminal proceeding was initiated against the plaintiff, and that the proceeding terminated in her favor. Thus, the only issues of contention for purposes of evaluating plaintiff's claims are whether or not defendants had probable cause to arrest or prosecute Palmer; and whether or not the defendants' actions were motivated by malice.

  Probable cause to prosecute exists where there are "facts and circumstances [that] would lead a reasonably prudent person in like circumstances to believe [that the criminal defendant is] guilty." Colon v. City of New York, 60 N.Y.2d 78, 82 (1983) (citations omitted). The issue of whether or not a party lacks probable cause to arrest or prosecute is measured by an objective standard, and where there are no material issues of fact in dispute, the issue may properly be disposed of on motion for summary judgment. Parkin v. Cornell University, Inc., 78 N.Y.2d 523, 529 (1991).

  In the instant case, because Palmer was indicted by a Grand Jury, there is a presumption that probable cause for her arrest and prosecution existed. White v. Frank, 855 F.2d 956, 961 (2nd Cir. 1988). The presumption of probable cause, however, may be overcome "by evidence establishing that the police witnesses have not made a complete and full statement of facts either to the Grand Jury or to the District Attorney, that they have misrepresented or falsified evidence, that they have withheld evidence or otherwise acted in bad faith." Colon, 60 N.Y.2d at 82-83 (citations omitted). In short, a plaintiff attempting to overcome the presumption of probable cause that arises from a grand jury indictment must establish that the indictment "was produced by fraud, perjury, the suppression of evidence or other police misconduct undertaken in bad faith." Id. at 83.

  In the instant case, plaintiff has alleged, and submitted evidence that investigator Hennekey acted in bad faith in conducting his investigation, or suppressed evidence. Specifically, plaintiffs have alleged that Hennekey, who determined that plaintiffs had spent approximately $19,000.00 more than they earned over the course of several years, willfully ignored known sources of income when he calculated plaintiff's income. Plaintiffs allege that Hennekey willfully failed to disclose the true amount of plaintiffs' income when he testified before the Grand Jury. Plaintiffs allege that had Hennekey engaged in a good faith investigation of the Palmer's finances, he would have determined that the Palmers' expenditures exceeded their income over the course of several years by an amount of less than $300.00. Defendants contend that even when viewed in the most favorable light to the plaintiffs, the plaintiffs' evidence demonstrates nothing more than a negligent investigation.

  I find that plaintiffs have raised a question of fact as to whether or not Hennekey acted in bad faith in his investigation of the Palmers, and thus find that there is a question of fact as to whether or not there was probable cause to arrest the plaintiff. At the time of the arrest, the substantial evidence against the plaintiff was the in-house investigation performed by the Burns defendants, and the investigation performed by Hennekey. Plaintiff has raised serious questions regarding the reliability of each investigation, and as a result, it cannot be said that no rational jury could find for the plaintiff with respect to probable cause.

  Finally, to sustain a malicious prosecution claim, the plaintiff must establish that the defendants acted with malice. Malice may be inferred from proof that there was no probable cause to arrest or prosecute. "The existence of malice is a question of fact for the jury to decide." Cox v. County of Suffolk, 827 F. Supp. 935 (E.D.N.Y. 1993). "Malice may . . . be inferred if Defendants have acted with a wanton, reckless, or grossly negligent disregard of Plaintiff's rights, inconsistent with good faith." Id. Plaintiffs have set forth sufficient evidence to demonstrate that there is a question of fact as to whether defendant Hennekey acted with malice in investigating, arresting, and prosecuting the plaintiff. Accordingly, Hennekey's motion for summary judgment with respect to plaintiff's malicious prosecution claims is denied.

  B. Abuse of Process

  Plaintiffs claim in Count III of the Complaint that defendant Callear, in contravention of law, issued subpoenas to obtain confidential payroll, financial and bank records prior to submitting the case to the Grand Jury. Plaintiff contends that the issuance of Grand Jury Subpoenas to obtain information in this case was an unlawful abuse of process.

  Under New York law, however, there is no requirement that the government open a Grand Jury proceeding prior to the return date of a Grand Jury Subpoena. Hirschfeld v. City of New York, 253 A.D.2d 53 (1st Dept. 1999). Moreover, a district attorney may retain evidence on behalf of the Grand Jury, and the district attorney may share Grand Jury evidence with a police officer specifically assigned to the investigation. New York Criminal Procedure Law § 610.25-1, 190.25-4(a). Accordingly, I find that plaintiff has failed to state a claim for abuse of process. Finally, even if plaintiffs' abuse of process claims were not substantively barred, plaintiffs abuse of process claims are barred by New York's one-year statute of limitations. N.Y. CPLR § 215(3) (McKinney 1990).

  C. Intentional Infliction of Emotional Distress

  Count V of plaintiffs' Complaint alleges that the defendants intended to cause Palmer to suffer severe emotional distress by arresting her at her place of employment and prosecuting her based on false and misleading information. Plaintiffs allege that this conduct violated her civil rights under 42 U.S.C. § 1983. Count IV alleges that the defendants intentionally or recklessly inflicted emotional distress on the plaintiffs in violation of Palmer's Constitutional right to Due Process.

  To state a claim for intentional infliction of emotional distress, a plaintiff must allege that the defendant engaged in "(1) extreme and outrageous conduct; (2) [with] intent to cause, or reckless disregard of a substantial probability of causing, severe emotional distress; (3) a causal connection between the conduct and the injury; and (4) severe emotional distress." Stuto v. Fleishman, 164 F.3d 820, 827 (2d Cir. 1999). The conduct complained of must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society." Fischer v. Maloney, 43 N.Y.2d 553, 558 (1978). Ordinarily, whether the challenged conduct is sufficiently outrageous will be determined as a matter of law. Nevin v. Citibank, 107 F. Supp.2d 333, 345-46 (S.D.N.Y. 2000) (citing Howell v. New York Post Company, Inc., 81 N.Y.2d 115, 121 (1993)).

  In the instant case, plaintiff has failed to establish that the defendants engaged in outrageous conduct sufficient to state a cause of action: i.e. conduct that goes beyond the bounds of human decency. Accordingly, I grant defendants' motion for summary judgment with respect to these claims.

  D. Failure to Properly Train or Supervise

  Plaintiff alleges that the defendant Monroe County Sheriff Andrew Meloni failed to properly train or supervise defendant Hennekey with respect to his investigation of the alleged theft of cash by Sherry Palmer, and therefore may be liable to the plaintiffs pursuant to 42 U.S.C. § 1983 for the alleged violation of their civil rights. Plaintiff has submitted no evidence to demonstrate that the Monroe County Sheriff failed to properly train or supervise defendant Hennekey. Defendants have submitted affidavits indicating that Hennekey was supervised by Sergeant Ralph Sarkis pursuant to the established chain of command maintained by the Sheriff's Department. Because there is no evidence that the Sheriff failed to properly train or supervise defendant Hennekey, plaintiffs' claims set forth in Count Seven of the Complaint are dismissed.

  E. False Arrest

  "A § 1983 claim for false arrest, resting on the Fourth Amendment right of an individual to be free from unreasonable seizures, including arrest without probable cause, is substantially the same as a claim for false arrest under New York law." Weyant v. Okst, 101 F.3d 845, 852 (2nd Cir. 1996) (citations omitted); Mandina v. City of Yonkers, 1998 WL 637471, *3 (S.D.N.Y., Sept. 16, 1998). "To succeed on a claim for false arrest under New York law, a plaintiff must show that `(1) the defendant intended to confine the plaintiff, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement, and (4) the confinement was not otherwise privileged.'" Mandina, 1998 WL 637471 at *3 (quoting Bernard v. United States, 25 F.3d 98, 102 (2nd Cir. 1994).

  In the instant case, there is no dispute that the plaintiff was arrested, and for the reasons set forth above, I find that there is a question of fact as to whether or not there was probable cause to arrest her. Accordingly, I deny the County defendants' motion for summary judgment on this claim.

  F. Negligent Investigation

  Plaintiff contends that the defendants owed her a duty of care with respect to their investigation of her alleged theft, and violated that duty by negligently investigating the alleged theft. There is no cause of action for negligent investigation under New York law, and therefore, plaintiff's cause of action is dismissed. Bernard v. U.S., 25 F.3d 98, 102 (2nd Cir. 1994); Chimerurenga v. City of New York, 45 F. Supp.2d 337 (S.D.N.Y. 1999)

  G. Derivative Claims

  Because plaintiffs' cause of action for malicious prosecution and false arrest may proceed against defendant Hennekey, plaintiffs' derivative cause of action on behalf of Mark Palmer may proceed as well, and defendants' motion for summary judgment on this claim is denied.

  IV. Defendants Callear, and the Monroe County District Attorney.

  Prosecutors are absolutely immune from suit for malicious prosecution. Imbler v. Pachtman, 424 U.S. 409 (1976). Similarly, a prosecutor is entitled to absolute immunity against a claim for false arrest. Tartaglione v. Pugliese, 2002 WL 31387255 (S.D.N.Y. Oct. 23, 2002). Moreover, the claims against these defendants are barred by the Eleventh Amendment to the Constitution, on grounds that federal courts are barred from entertaining suits brought by private parties against states. Because defendant's Callear and the District attorney are immune from liability on plaintiffs' only remaining independent causes of action, and because the Eleventh Amendment bars action against these defendants, defendants' motion for summary judgment is granted, the complaint against Callear and the Monroe County District Attorney is dismissed.

  V. Defendants Sarkis and Nyhan.

  By Order dated August 21, 2001, the Court granted plaintiffs' motion to amend the complaint to add as defendants Sergeant Ralph Sarkis ("Sarkis") and Lieutenant Michael Nyhan ("Nyhan"). Plaintiffs, however, failed to serve an Amended Complaint on those defendants. On April 15, 2004, after being alerted repeatedly by the defendants that no Amended Complaint had been served, and almost three years after this court permitted amendment of the Complaint, plaintiffs filed an Amended Complaint with the court.

  The Amended Complaint filed by plaintiff on April 15, 2004 is a nullity. Although plaintiff was granted permission to serve an amended complaint on August 21, 2001, plaintiff neglected to file or serve the complaint for over 2 and one-half years. There is no valid explanation for the delay, and defendants have opposed the filing and service of the complaint on grounds that service of an amended complaint at this stage is prejudicial, in that discovery has closed. Defendants contend that allowing plaintiff to amend the complaint now would delay the prosecution of this case, as it would require discovery to be reopened, and new substantive motions to be filed.

  Permission to file an amended complaint does not run ad infinitum. Plaintiffs failed to file and serve the amended complaint within a reasonable time, and therefore, plaintiffs have forfeited their opportunity to file an amended complaint. The interests of justice are not served by allowing a plaintiff to wait over 2 and one-half years to file an amended complaint once permission to file such a complaint is granted. A potential defendant can not be left to wait for years to wonder if suit will be filed against him, and if so, when. Accordingly, plaintiff's amended complaint filed on April 15, 2004 is stricken from the record. VI. Defendant County of Monroe

  It is well settled that a municipality may be held liable as a "person" for constitutional deprivations under § 1983. Monell v. Department of Social Services, 436 U.S. 658, 690-91 (1978). To establish municipal liability in a § 1983 action, the plaintiff must "first prove the existence of a municipal policy or custom . . . [and] [s]econd, . . . must establish a causal connection — an affirmative link — between the policy and the deprivation of his constitutional rights." Vippolis v. Village of Haverstraw, 768 F.2d 40, 44 (2nd Cir. 1985) (citing Oklahoma City v. Tuttle, 471 U.S. 808, 824 n. 8). A plaintiff may establish the existence of a policy or custom by submitting evidence of the policy itself, or by "establishing that responsible supervisory officials acquiesced in a pattern of unconstitutional conduct by subordinates." Dove v. Fordham University, 56 F. Supp.2d 330, 336 (S.D.N.Y. 1999).

  There is no evidence that plaintiffs' rights were violated pursuant to a municipal policy or custom. Nor is there evidence that any municipal policymaker adopted any policy attributable to the County of Monroe. Accordingly, plaintiffs' claims against the County are dismissed.

  VII. Plaintiffs' motion to file a Second Amended Complaint.

  Plaintiffs have moved to Amend the Complaint to add a cause of action under Section 1983 for the misuse of subpoena power and for false arrest under New York State Law. The motion to amend is untimely, would be futile, and is therefore denied. For the reasons set forth above, I have found that plaintiff has failed to state a claim for abuse of process with the respect to the defendants' issuance of Grand Jury subpoenas. Moreover, plaintiffs' state law claim for false arrest would be time barred under New York State's one-year limitations period, as the claim, even if it related back to the original complaint, was made more than one year after the events giving rise to the claim occurred. N.Y. CPLR § 215(3) (McKinney 1990).

  VIII. Defendants' Motions to Preclude.

  Defendants move to preclude plaintiffs' use at trial of evidence relating to their damages on grounds that plaintiffs have failed to comply with several court orders which directed plaintiffs to disclose that information.

  Plaintiffs were originally Ordered to disclose information related to damages on or before April 26, 2002. As of April 30, 2002, the plaintiffs had not disclosed that information, and the Court granted a continuance of 30 days to allow plaintiffs to disclose discovery materials related to damages. Plaintiffs failed to comply with this Order, and on September 6, 2002, the court granted plaintiffs an additional 30 days in which to serve the information. The plaintiffs, for a third time, failed to comply with the Court's deadline. According to defense counsel Howard Stark, plaintiff served the discovery information on November 6, 2002, literally minutes before the scheduled deposition of Sherry Palmer. Service of the materials more than 30 days after the Court's October 6 Deadline did not comport with this Court's Order, nor did if allow defense counsel any time to review the material prior to examining the plaintiff. Because plaintiff failed to comply with three court orders directing disclosure of damages information, and served that information in an untimely manner which prevented defendants from examining the evidence prior to deposing the plaintiff, the plaintiffs are prohibited from presenting that evidence at trial.


  For the reasons set forth above, the Burns defendants' motion for summary judgment (docket item no. 145) is denied. Plaintiffs may proceed on their common law claims of malicious prosecution, and Mark Palmer's derivative claim against the Burns defendants. The County defendants' motion for summary judgment (docket item no. 132) is granted in-part and denied in-part. Plaintiffs may proceed with their state and federal claims of malicious prosecution, federal false arrest claims, and Mark Palmer's derivative claim against defendant Hennekey. Plaintiffs claims against all other defendants are dismissed. The County defendants' motion to amend the answer is granted. Plaintiffs' motion for summary judgment and to amend (docket item no. 149) is denied. Finally, defendants' motions to preclude at trial plaintiffs' use of evidence (that was not timely disclosed) relating to damages is granted.



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