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Marinaccio v. Boardman

June 26, 2006

PAUL MARINACCIO, SR., ACCADIA SITE CONTRACTING, INC., AND MIDWAY ENTERPRISES, INC., PLAINTIFFS,
v.
JOSEPH H. BOARDMAN, IN HIS OFFICIAL CAPACITY; JAMES B. CANTWELL, STEVEN F. LEWIS, JAMES F. TYNAN AND ROBERT E. O'CONNOR, IN THEIR OFFICIAL AND INDIVIDUAL CAPACITIES, AS EMPLOYEES OF THE STATE OF NEW YORK, BY AND THROUGH, THE NEW YORK STATE DEPARTMENT OF TRANSPORTATION, DEFENDANTS.



The opinion of the court was delivered by: Neal P. McCurn, Senior District Judge

MEMORANDUM-DECISION and ORDER

I. Introduction

Presently before the court is a motion by plaintiffs, Paul Marinaccio, Sr. ("Marinaccio"), Accadia Site Contracting, Inc. ("Accadia Site"), and Midway Enterprises, Inc. ("Midway") (collectively, "Plaintiffs") pursuant to Fed. R. Civ. P. 60(b)(3) seeking relief from this court's April 19, 2005 order insofar as it awarded summary judgment to defendants, James B. Cantwell, Steven F. Lewis, James F. Tynan ("Tynan") and Robert E. O'Connor ("O'Connor") (collectively, "Defendants") on Plaintiffs' Due Process and First Amendment claims set forth in Counts I, II, III and V of their Amended Complaint. Plaintiffs further seek sanctions in the form of attorney's fees and costs associated with bringing the present motion and as a result of Defendants' "willful failure to disclose key documents" during discovery. Mem. of Law in Supp. of Pls.' Rule 60(b)(3) Mot. at 1; Dkt. No. 168.

II. Background

Although familiarity with the history of this case is presumed, see Marinaccio v. Boardman, No. 02-CV-831, 2005 WL 928631, at *1-8 (N.D.N.Y. April 19, 2005), a brief discussion of the background of the present motion is warranted.

On April 19, 2005, this court issued a Memorandum-Decision and Order which, among other things, granted Defendants' motion for summary judgment as to four of Plaintiffs' claims for relief. Count V of Plaintiffs' Amended Complaint set forth a claim under the First Amendment to the United States Constitution, and Counts I through III set forth claims under the Due Process Clause of the Fourteenth Amendment, all of which were predicated upon civil rights claims pursuant to 42 U.S.C. § 1983. Plaintiffs also based these claims on the equivalent provisions of the New York State Constitution. This court concluded that Defendants were entitled to qualified immunity as to Count V because it found that Plaintiffs did not have a clearly established First Amendment right at the relevant time, to wit, the date Attachment A to the Military Road contract was executed. See Marinaccio, 2005 WL 928631, at *16. Specifically, the applicable decisional law at the relevant time did not provide First Amendment protection to mere bidders for government contracts. See id. at *14-15, citing Board of County Commissioners v. Umbehr, 518 U.S. 668, 116 S.Ct. 2342 (1996). This court held that, because Midway did not have a pre-existing commercial relationship with the New York State Department of Transportation ("DOT") at the time Attachment A was executed, Defendants could not be deemed to have violated a clearly established First Amendment right. See id.

As to Plaintiffs' Due Process claims, this court dismissed same because it found Plaintiffs could not prove the deprivation of a protectible property or liberty interest. Specifically, this court noted that the applicable law does not recognize a vested property interest in the low bid on a public contract, and therefore, Plaintiffs suffered no deprivation of a property interest regarding the Master's Edge subcontract, the Williams Road contract, or the Route 33 contract. See Marinaccio, 2005 WL 928631, at *17. Moreover, Midway suffered no deprivation of property associated with the Military Road contract, since it was awarded same. See id. at *18. Likewise, as to the alleged deprivation of a liberty interest, this court found that Plaintiffs could not establish the requisite deprivation of a "legal right or status" accompanying the alleged injury to reputation. See id. at *20-21.

In September 2005, this court heard and considered motions in limine by all parties. Said motions were filed in anticipation of a jury trial in this action, originally scheduled to commence September 6, 2005. At that time, counsel for Defendants informed the court regarding the alleged late disclosure of certain items by Plaintiffs. After hearing argument from both parties regarding same, and in consideration thereof, the court established a schedule for extended discovery, and allowed Plaintiffs ample time to file a motion pursuant to Rule 60 if they chose to do so. Plaintiffs filed such a motion on November 28, 2005, and submitted copies of recently discovered documents in support of same. Plaintiffs contend that these documents: (1) create a question of fact as to whether they were deprived of a property interest in violation of their Due Process rights, and (2) establish that a pre-existing commercial relationship existed between Plaintiffs and the DOT such that Defendants should have known that the execution of Attachment A to the Military Road contract violated a clearly established First Amendment right. Therefore, Plaintiffs ask that the court reinstate Counts I through III of their Amended Complaint, and allow said claims to be submitted to a jury. As to Count V, Plaintiffs ask in the first instance that they be awarded summary judgment, and in the alternative that said claim be submitted to a jury.

Plaintiffs allege three categories of documents were not timely produced: "contractor files," certain DOT policy documents, and a generic group of documents contained by "20 to 25 boxes" located in the Buffalo, New York DOT office.

According to Plaintiffs, a handful of "important and significant documents" responsive to earlier discovery demands were not disclosed until September 2005, during pretrial preparations. See Aff. of Joseph J. Manna, Nov. 28, 2005, ¶ 10, Dkt. No. 168 ("Manna Aff."). Defendants explain that during preparation for trial, Shirley Clark, an analyst for the DOT who was named as a witness for Plaintiffs, met with Defendants' attorney, Michael McCartin ("McCartin") for the very first time. See Decl. Of Michael McCartin, Dec. 19, 2005, ¶ 3, Dkt. No. 170 ("McCartin Decl.").

At that time, Ms. Clark produced a file which contained some documents that had been produced during discovery and others that McCartin had never seen before. See id. DOT attorney Nancy Jones, who "was assigned to compile some of the documents in response to [P]laintiffs' extensive demands[,]" explained that during the original discovery period, she was unaware of the existence of this file, and unbeknownst to her, said file was maintained in the Pre-Award Unit of the DOT's "Main Office" as opposed to the other "contractor files" for Accadia Site, which were in the possession of the legal services division. See Decl. of Nancy E. Jones, Dec. 19, 2005, ¶¶ 8, 10-11, Dkt. No. 170 ("Jones Decl."). In any event, at some point during the next several days after McCartin met with Ms. Clark, certain documents, among which are those identified in Exhibits I, K, L, and M to the Manna Affidavit, were provided to Plaintiffs by email and facsimile. See id.

Also at that time, McCartin informed Manna of certain boxes of other material located in the Buffalo, New York DOT office. See id. McCartin asserts he learned of the existence of this material from DOT Claims Engineer, Paul Degen ("Degen"). See id. Apparently, these are the "20 to 25 boxes" referred to by Manna in his attorney affidavit. See Manna Aff. ¶ 14. In his reply affidavit, Manna admits the only relevance of Defendants' failure to disclose the documents in the referenced 20 to 25 boxes is to demonstrate Defendants' bad faith. See Reply Aff. of Joseph J. Manna, Dec. 23, 2005, ¶ 19, Dkt. No. 173 ("Manna Reply Aff."). Since some of those documents were produced, Manna claims, Defendants must have combed through the entire set of boxes in order to select certain of the documents for production. See id. McCartin asserts that when he learned of documents which were responsive to Plaintiffs' discovery demands, he produced them, and therefore did not act in bad faith. See McCartin Decl. ¶ 3.

Manna affirms that during the extended discovery period he spoke with Degen. See Manna Aff. ¶ 12. According to Manna, Degen revealed that he generally oversees document production in all DOT litigation, but after only recently being asked to assist in this case, he discovered that many documents responsive to Plaintiffs' earlier demands had not been produced. See Manna Aff. ¶¶ 12-13. Manna alleges that Degen admitted someone hand picked certain documents to disclose, but withheld others. See id. ¶ 13. In support of Defendants' opposition to the present motion, Degen states that he was asked to work on this litigation in August 2005 in order to prepare for trial, but denies the aforementioned statements attributed to him by Manna. See Decl. of Paul E. Degen, P.E., Dec. 19, 2005, ¶¶ 3, 9, Dkt. No. 170 ("Degen Decl."). According to Degen, prior to this litigation, he never worked on a federal civil rights lawsuit, but instead focused on litigation support for New York Court of Claims actions. See Degen Decl. ¶ 10. Moreover, while Degen admits telling Manna that DOT employees would have removed privileged and unresponsive documents from production during the earlier discovery period, Degen states that he "in no way said or implied that DOT personnel 'hand-picked' documents improperly." Id. ¶ 12.

Also previously undisclosed were Plaintiffs' "contractor files" located at DOT's office in Albany, New York, according to Manna. See Manna Aff. ¶ 15. Manna affirms he learned from Degen that "contractor files" are maintained for every contractor who performs work for DOT. See id. ¶ 16. However, according to Manna, while some of the documents in Plaintiffs' contractor files were produced during earlier ...


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