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Kogut v. County of Nassau

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK


March 8, 2010

JOHN KOGUT, PLAINTIFF,
v.
THE COUNTY OF NASSAU, POLICE COMMISSIONER DONALD KANE, POLICE COMMISSIONER WILLIAM J. WILLETT (2005), POLICE COMMISSIONER JAMES LAWRENCE, DETECTIVE SEAN SPILLANE (HEAD OF HOMICIDE 1985), DETECTIVE DENNIS FARRELL (HEAD OF HOMICIDE 2005), DETECTIVE JOSEPH VOLPE, DETECTIVE ROBERT DEMPSEY, DETECTIVE ALBERT MARTINO, DETECTIVE WAYNE BIRDSALL, DETECTIVE MILTON G. GRUBER, DETECTIVE CHARLES FRAAS, DETECTIVE FRANK SIRIANNI, DETECTIVE HARRY WALTMAN, P.O. MICHAEL CONNAUGHTON, P.O. WILLIAM DIEHL, AND JOHN DOES 1-5, DEFENDANTS.
JOHN RESTIVO, DENNIS HALSTEAD, MELISSA LULLO, JASON HALSTEAD, HEATHER HALSTEAD AND TAYLOR HALSTEAD, PLAINTIFFS,
v.
NASSAU COUNTY, JOSEPH VOLPE, IN HIS INDIVIDUAL CAPACITY, ROBERT DEMPSEY, IN HIS INDIVIDUAL CAPACITY, FRANK SIRIANNI, IN HIS INDIVIDUAL CAPACITY, MILTON GRUBER, IN HIS INDIVIDUAL CAPACITY, HARRY WALTMAN IN HIS INDIVIDUAL CAPACITY, ALBERT MARTINO, IN HIS INDIVIDUAL CAPACITY, CHARLIE FRAAS, IN HIS INDIVIDUAL CAPACITY, THOMAS ALLEN IN HIS INDIVIDUAL CAPACITY, RICHARD BRUSA, IN HIS INDIVIDUAL CAPACITY, VINCENT DONNELLY, IN HIS INDIVIDUAL CAPACITY, MICHAEL CONNAUGHTON, IN HIS INDIVIDUAL CAPACITY, WAYNE BIRDSALL, IN HIS INDIVIDUAL CAPACITY, WILLIAM DIEHL, IN HIS INDIVIDUAL CAPACITY, JACK SHARKEY, IN HIS INDIVIDUAL CAPACITY, DANIEL PERRINO, IN HIS INDIVIDUAL CAPACITY, ANTHONY KOZIER, IN HIS INDIVIDUAL CAPACITY, DETECTIVE SERGEANT CAMPBELL, (SHIELD #48), IN HIS INDIVIDUAL CAPACITY, SEAN SPILLANE, IN HIS INDIVIDUAL CAPACITY, RICHARD ROE SUPERVISORS #1-10, IN THEIR INDIVIDUAL CAPACITIES, DEFENDANTS.

The opinion of the court was delivered by: Seybert, District Judge

MEMORANDUM AND ORDER

(MEMBER CASE)

Plaintiffs commenced these actions 06-CV-6695 and 06-CV-6720 on December 19, 2006, and December 21, 2006, respectively. Subsequently, the Court consolidated both cases into the earlier-filed action. Kogut, Restivo, and Halstead base the majority of their claims against Nassau County ("County") and various Nassau County Police Department ("NCPD") officers and supervisors (collectively "Defendants") on 42 U.S.C. § 1983, alleging, inter alia, malicious prosecution, false arrest, and false imprisonment. Additionally, Kogut, Restivo, and Halstead assert 14th Amendment due process violations, and a variety of state claims stemming from their prior interrogations, arrests, and subsequent state prosecutions.

On August 27 and 28, 2008, Defendants moved to dismiss both actions. In an Order dated August 3, 2009 ("August 2009 Order"), the Court granted in part and denied in part Defendants' motions. In an Order dated December 11, 2009 ("December 2009 Order"), the Court granted in part and denied in part Plaintiffs' motions for reconsideration.

Approximately two months later, on February 4, 2010, Defendants filed a letter motion seeking certification of interlocutory appeal pursuant to 28 U.S.C. § 1292.

Section 1292 of Title 28 of the United States Code permits federal district courts to certify controlling issues of law for immediate appeal. It provides:

(b) When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, that application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.

28 U.S.C. § 1292(b) (emphasis in original). The court should not freely certify orders involving the sufficiency of pleadings, see Gottesman v. General Motors Corp., 268 F.2d 194, 196 (2d Cir. 1959), in part because "[i]nherent in the requirements of section 1292(b) [certification] is that the issue certified be ripe for judicial determination." Oneida Indian Nation of New York State v. County of Oneida, 622 F.2d 624, 628 (2d Cir. 1980). "Where the record has not yet developed far enough to permit considered appellate disposition of the claim presented, the case may not be 'ripe' for interlocutory review." Able v. United States, 870 F. Supp. 468, 471 (E.D.N.Y. 1994) (citing Paschall v. Kansas City Star Co., 605 F.2d 403, 406 (8th Cir. 1979) ("Consideration of the factual basis must be such that a sound premise exists upon which the legal issues can be determined with precision").

In this case, putting aside the fact that Defendants' motion is likely untimely,*fn1 Defendants have provided the Court with an insufficient basis to demonstrate that there is a substantial ground for difference of opinion surrounding the controlling issues of law decided in the December 2009 Order. In short, Defendants' current motion is just another rehash of its prior papers, arguing over and over the same points. Defendants state:

We believe that this and other court decisions conflating invalidity and favorable termination have misapplied Heck and that the most coherent reading of that precedent is that it creates a threshold invalidity requirement different from and in addition to the favorable termination element.

(Defs' Letter in Supp. 3.) Yet, Defendants provide the Court with no cases demonstrating the alleged misapplication or correct application, for that matter, of the Heck standard in a case similar to the one before the Court. Defendants' "belief" is not grounds for certification under Section 1292.

Moreover, this case is approaching the four-year mark, and has barely progressed through discovery, because of Defendants' repeated dilatory conduct. Section 1292 certification of this case would only serve to impede the advancement of this case further, which is directly opposite the statute's intentions.

CONCLUSION

For the reasons discussed above, Defendants' motion is DENIED.

SO ORDERED.

JOANNA SEYBERT, U.S.D.J.


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