The opinion of the court was delivered by: Gerard E. Lynch, District Judge
Defendants in this civil rights action move for dismissal of the complaint for lack of personal jurisdiction, and for summary judgment.*fn1 The motion will be granted.
Plaintiff Kim Carl initially filed this action pro se on September 1, 2004, asserting claims against the City of Yonkers, the City of Yonkers Police Department ("the Department"), and seven Yonkers police officers for false arrest, the use of excessive force, and retaliation for filing an earlier lawsuit, arising from Carl's arrest on September 6, 2001. The Court's file does not contain, and the docket sheet for the case does not reflect the filing of, any affidavit of service on any of the defendants. On September 23, 2004, the Corporation Counsel of the City of Yonkers filed an answer on behalf of the City and the Department, asserting that the Court lacked personal jurisdiction over the Department and that the Department was not a suable entity (in addition to various other defenses on behalf of both defendants). No defense of lack of personal jurisdiction over the City of Yonkers itself was asserted. No answer was filed on behalf of the individual defendants, nor does the file contain any other notice of appearance on the part of the Corporation Counsel or any other lawyer representing those defendants.
On December 28, 2004, attorney Menez Jean-Jerome entered an appearance on behalf of plaintiff Carl, and on February 18, 2005, through counsel, Carl moved for leave to file an amended complaint. The case was then referred to the Honorable Mark D. Fox, United States Magistrate Judge, for all pretrial proceedings.
On October 31, 2005, Judge Fox ruled on the motion to file an amended complaint. The Court rejected as futile plaintiff's efforts to sue for false arrest, given that he had been convicted in the case resulting from his arrest. (10/31/05 Tr. 8.) It also rejected plaintiff's claim against the City of Yonkers based on Monell v. Dept. of Soc. Servs., 436 U.S. 658 (1978), finding that the allegations that the City had failed to train its officers were inadequate to state a claim. (10/31/05 Tr. 8-9.) The Court also rejected plaintiff's claim for injunctive relief. (Id. 9-10.) However, the Court found that the proposed amended complaint adequately set forth a claim for excessive force. (Id. 9.) Accordingly, the Court ruled that "the motion to amend the complaint is granted only to the extent of raising the 1983 claims based on excessive force and is denied in all other respects." (Id. 10.) With respect to the false arrest claim, the denial was expressly without prejudice to reasserting such claims if "plaintiff's convictions are reversed by the state appellate court." (Id.) So far as the docket reflects, the City and Department did not answer this complaint, presumably because the only claim left in the case by the Magistrate Judge's rulings did not apply to them.
Plaintiff did not seek review of this ruling by the assigned District Judge. Instead, on December 12, 2005, plaintiff filed a second amended complaint, without leave of the Court, reasserting his claims for excessive force, false arrest, and Monell liability, and adding pendent state law claims for various torts. The City promptly moved to strike this pleading in its entirety, as an unauthorized amendment of the complaint. Judge Fox held oral argument on the motion, and rendered a written decision granting the motion to strike on April 27, 2006. The Court ruled
(1) that service of the complaint violated Rule 15; (2) that the plaintiff's Monell and false arrest claims had already been stricken from the amended complaint; (3) that the intervening affirmance of plaintiff's conviction ended any prospect of adding a false arrest claim; and (4) that the pendent state law claims that plaintiff had asserted for the first time in the purported second amended complaint were barred by the statute of limitations. (Order of Apr. 27, 2006, at 4-6.)
Accordingly, the Court adhered to its prior ruling with respect to the first amended complaint, and granted the motion to strike the second amended complaint in its entirety. Lest there be any misunderstanding about the effect of that ruling, the Court made clear that "the only claim on which [p]laintiff may proceed is his claim of excessive force under § 1983 against the individual police officers." (Id. 6.) The Court was similarly explicit about the operative pleading in the case: "Because [p]laintiff submitted a proposed amended complaint with his motion for leave to amend . . . , there was no need for [p]laintiff to file a second amended complaint." (Id. 4 n.2.) Once again, plaintiff did not seek review of this decision by the assigned District Judge.
Thus, as of June 2, 2006, when the reference to the Magistrate Judge was closed and the case returned to the District Court, it was crystal clear that the operative complaint was the first amended complaint, but only insofar as it asserted claims for the use of excessive force by the individual officer defendants. Although the City of Yonkers and its Police Department had thus effectively been dismissed from the case, and never filed an answer to this complaint, the Corporation Counsel continued to appear on their behalf, opposing repeated motions by plaintiff before the Magistrate Judge and the District Judge to extend the discovery period and to transfer the case to the Manhattan Division of the Court. So far as this Court has been able to determine, whenever defense counsel filed papers or appeared in court, he identified himself as counsel for the City of Yonkers and the City of Yonkers Police Department.
When all of these preliminary motions had been cleared away, on July 17, 2007, defense counsel filed a "motion for dismissal of the plaintiff's complaint for lack of personal jurisdiction and [s]ummary [j]udgment." (Declaration of Joseph T. Bonanno, dated July 13, 2007, ¶ 2.) Identifying himself as "attorney for the defendants in this matter" (id. ¶ 1), counsel submitted a memorandum of law arguing that the Court "lacks personal jurisdiction over the individual defendants" (D. Mem. 7), because none of the officers had been personally served, and indeed, that none of the individual defendants "had any knowledge regarding the subject lawsuit, up to the point that they were requested to submit affidavits in support of this motion" (id. 9); that the Department is not a proper party and should be dismissed from the suit (id. 10); and that summary judgment in favor of the City of Yonkers was proper because the plaintiff's Monell claim had never been properly asserted and in any event was without merit (id. 12).
Plaintiff opposed the motion, principally addressing the merits of the excessive force claim, and arguing briefly, and without the submission of supporting evidence, that the City should be found liable because the City "has created policies that encourage discrimination against certain social groups," and "has the custom of overlooking complaints of use of excessive force by its police officers." (P. Mem. 5.) With respect to the service issue, plaintiff argued that the summons and complaint had been "served on the defendant officers via the Yonkers Police Department," and that it would be "reasonable to assume that the [Department] would turn over those legal papers to each individual officer." (Id. 4.) Plaintiff further noted that "at the time the summons was served," plaintiff was an incarcerated prisoner who was proceeding pro se. (Id.)*fn2
The events described above reflect an extraordinary record of ineffectiveness on the part of plaintiff's attorney. Entering the case only a few months after the complaint was filed by an incarcerated pro se litigant, plaintiff's counsel neglected to determine whether the complaint had ever been properly served, and took no steps himself to effectuate proper service. Over the course of several years of litigation, counsel appears never to have noticed that the individual defendants did not appear in the case or file an answer. When the individual defendants finally moved for dismissal for failure of service, counsel filed an opposition brief that addressed the issue in a mere two paragraphs, without citation to legal authority and without submission of any affidavit or other evidentiary matter substantiating the facts asserted by counsel in the memorandum of law. With respect to the municipal defendants, counsel has filed an unauthorized amended complaint, and continues to argue for liability on the part of the City of Yonkers, without even ...