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Pipitone v. City of New York

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK


August 25, 2009

PAULINE PIPITONE, INDIVIDUALLY AND AS THE ADMINISTRATOR OF THE ESTATE OF NICHOLAS GUIDO, PLAINTIFF,
v.
CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, STEPHEN CARACAPPA AND LOUIS EPPOLITO, DEFENDANTS.
FRANCES BISHOP, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF JAMES BISHOP, PLAINTIFF,
v.
CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, STEPHEN CARACAPPA AND LOUIS EPPOLITO, DEFENDANTS.
RACHEL LEAH GREENWALD, AS ADMINISTRATOR OF THE ESTATE OF ISRAEL GREENWALD, MICHAL GREENWALD AND YAEL GREENWALD, PLAINTIFFS,
v.
CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, STEPHEN CARACAPPA AND LOUIS EPPOLITO, DEFENDANTS.
SUSAN BORRIELLO, INDIVIDUALLY AND AS THE ADMINISTRATRIX OF THE ESTATE OF BARTHOLOMEW BORRIELLO, PLAINTIFF,
v.
CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, STEPHEN CARACAPPA AND LOUIS EPPOLITO, DEFENDANTS.
MARY ANN DI LAPI AND SALVATORE DI LAPI, INDIVIDUALLY AND AS THE ADMINISTRATORS OF THE ESTATE OF ANTHONY DI LAPI, PLAINTIFFS,
v.
CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, STEPHEN CARACAPPA AND LOUIS EPPOLITO, DEFENDANTS.
ANNA LINO, AS THE ADMINISTRATOR OF THE ESTATE OF EDWARD LINO, PLAINTIFF,
v.
CITY OF NEW YORK, STEPHEN CARACAPPA AND LOUIS EPPOLITO, DEFENDANTS.
TINA MORRIS, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF JOHN OTTO HEIDEL, PLAINTIFF,
v.
CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, STEPHEN CARACAPPA AND LOUIS EPPOLITO, DEFENDANTS.
KAREN FACCIOLO, AS THE ADMINISTRATOR OF THE ESTATE OF BRUNO FACCIOLO AND ROSEANN LIPARI, PLAINTIFFS,
v.
CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, STEPHEN CARACAPPA AND LOUIS EPPOLITO, DEFENDANTS.

The opinion of the court was delivered by: Azrack, United States Magistrate Judge

ORDER

On August 20, 2009, counsel for plaintiffs and counsel for defendants City of New York and the New York City Police Department (collectively, the "City") appeared before the undersigned for a status conference. For the reasons outlined below, it is ORDERED that: (1) the City's motion for reconsideration is GRANTED; (2) plaintiffs shall renew motions for default judgment as to defendants Stephen Caracappa ("Caracappa") and Louis Eppolito ("Eppolito") (collectively, the "individual defendants") on or before September 18, 2009; (3) plaintiffs' motion to compel the deposition of Burton Kaplan ("Kaplan") is DENIED as moot; (4) plaintiffs' motion for a ruling that Kaplan's prior testimony qualifies as admissible evidence is DENIED without prejudice; (5) any remaining document discovery and all remaining depositions shall be completed on or before December 31, 2009; and (6) the parties are directed to appear before the undersigned for a final pretrial conference on January 12, 2009 at 12:00 PM.

A. The City's Motion for Reconsideration

By letter dated June 25, 2009, the City requested reconsideration of denial of leave to file a motion to dismiss the Facciolo complaint. (See Dkt. No. 10 in CV-09-1332.) At a status conference held on May 21, 2009, it was this Court's understanding that, on consent of all parties, motion practice-including the City's contemplated motion to dismiss the Facciolo plaintiffs on statute of limitations grounds-would be held in abeyance without prejudice to raising all potentially case-dispositive issues in the context of summary judgment motions. (See Dkt. No. 84 in lead case CV-06-0145.) However, the City now clarifies that its consent extended only to participation in limited discovery with the Facciolo plaintiffs prior to filing a motion to dismiss. (See Dkt. No. 10 at 2 in CV-09-1332.)

In short, the City defendants argue that the Facciolo case is barred by the three year statute of limitations applicable to actions brought pursuant to 42 U.S.C. § 1983. (Id.) Specifically, the City defendants note that the criminal indictments of Caracappa and Eppolito were announced and publicized on March 10, 2005 and argue that, therefore, the statute of limitations expired on March 10, 2008-well before the filing of the Facciolo complaint on March 31, 2009. (Id.) The Court agrees that it is possible that the Facciolo action is potentially more vulnerable to a motion to dismiss than the related actions; therefore, the Court further agrees that the City should be permitted to seek leave to file its proposed motion. Accordingly, the City's June 25, 2009 application is GRANTED and the parties are directed to consult Judge Trager's Individuals Rules for guidance concerning dispositive motion practice.

B. Individual Defendants Caracappa and Eppolito

On March 30, 2007, Judge Trager denied motions for default judgments against Eppolito and Caracappa "with leave to renew if [Eppolito and Caracappa] do not answer the complaints within sixty days after all direct appeals are decided." (See Dkt. No. 36 in CV-06-0145.) The Supreme Court denied certiorarias to both petitioners on January 21, 2009. See United States v. Eppolito, 543 F.3d 25 (2d Cir. 2008) cert. denied, 129 S.Ct. 1027 (U.S. Jan. 21, 2009) (Nos. 08-7841 (Eppolito), 08-7842 (Caracappa)). Therefore, the time period within which to file responses to the various complaints has apparently long passed. However, it appears that no plaintiff has yet renewed motions for default. Accordingly, plaintiffs shall renew these motions in accordance with Federal Rule of Civil Procedure 55, Local Rules 55.1 and 55.2, and Judge Trager's Individual Rules no later than September 18, 2009.

C. Plaintiffs' Motion to Compel

By motion dated March 12, 2009, counsel for plaintiff Anna Lino sought an Order compelling the deposition of Kaplan, or, in the alternative, a ruling that testimony given by Kaplan in the criminal trial of the individual defendants be deemed admissible in these proceedings because Kaplan is "unavailable" within the meaning of Fed. R. Evid. 804. (See Dkt. No. 81 in CV-06-145.) The City eventually joined in Lino's primary motion to compel, but opposed her alternative Rule 804 application. (See Dkt. No. 83 in CV-06-145.) Counsel for Kaplan objected to any deposition on grounds that questioning Kaplan in this case would violate his privilege against self-incrimination. (See Dkt. Nos. 65, 86 in CV-06-145.) However, at the May 21, 2009 conference, all parties, as well as counsel for Kaplan, agreed to draft and exchange proposed deposition outlines in an attempt to achieve a stipulation concerning the scope of Kaplan's testimony. However, on or about July 20, 2009, the Court was informed that Kaplan had died earlier that month. Therefore, that portion of plaintiff's motion to compel is DENIED as moot.

In light of the above, the attorneys for plaintiffs Pipitone, Borriello, and Lino requested that the Court give renewed consideration to the alternative argument discussed above. (See Dkt. Nos. 89, 90.) Plaintiffs principally invoke the former testimony exception to the rule against hearsay, Fed. R. Evid. 804(b)(1),*fn1 and argue that Kaplan's prior testimony qualifies as statements against his penal interest under Fed. R. Evid. 804(3).*fn2 The City has not responded to plaintiffs' most recent submissions; however, in its original opposition brief, the City argued, inter alia, that it would be prejudiced if forced to make strategic trial decisions at this stage of the case; that because Kaplan testified pursuant to a cooperation agreement in order to obtain a reduced prison term his statements were not, in fact, against his penal interest; and that the City did not have any, let alone a meaningful, opportunity to cross-examine Kaplan during the criminal trial. (See Dkt. No. 83 at 10-11 in CV-06-145.)

The Court has considered the parties' submissions and concludes that this evidentiary issue is more appropriately decided by Judge Trager, who will ultimately decide any motions for summary judgment and preside over the trials of these cases.*fn3 As an initial matter, the Court is concerned that a determination concerning the admissibility of Kaplan's testimony at this stage may affect the pretrial preparation and strategic approach of defendants, as well as each individual plaintiff, when it has yet to be determined whether or not these cases will be tried together or separately. For example, some portions of Kaplan's former testimony may be relevant and admissible as to some individual plaintiffs, but not as to others. Moreover, even in the event that Judge Trager rejects plaintiffs' former testimony argument, it may be possible that the residual exception*fn4 to the rule against hearsay will provide a discretionary means of presenting at least some portions of Kaplan's prior testimony. At bottom, this Court does not believe that a preliminary ruling concerning these issues is appropriate. Accordingly, plaintiffs' motion for a ruling that the testimony given by Kaplan in the prior criminal trial of the individual defendants is admissible is DENIED without prejudice to renewal at the summary judgment stage of this litigation or when these cases are ultimately tried.

D. Discovery Deadlines and Further Proceedings

Plaintiffs shall renew motions for default judgment against the individual defendants on or before September 18, 2009. Any remaining document discovery and all remaining depositions shall be completed on or before December 31, 2009. A final pretrial conference will be held before the undersigned on January 12, 2010 at 12:00 PM.

SO ORDERED.

JOAN M. AZRACK UNITED STATES MAGISTRATE JUDGE


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