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Wik v. City of Rochester

July 30, 2010

DANIEL JOSEPH WIK, PLAINTIFF,
v.
CITY OF ROCHESTER, ET AL. DEFENDANT.



The opinion of the court was delivered by: Siragusa, J.

DECISION & ORDER

INTRODUCTION

Plaintiff pro se challenges the issuance of a Decision and Order (Docket No. 93) by United States Magistrate Judge Jonathan W. Feldman, which denied Plaintiff motion (Docket No. 86) for sanctions. Plaintiff has challenged the authority of Judge Feldman to rule on his motion for contempt of court and sanctions. Plaintiff's motion (Docket No. 86) does not specify whether sanctions are sought under Federal Rule of Civil Procedure 37, or 11. The authority of a Magistrate Judge to finally resolve a motion for sanctions under Rule 11 is unsettled in the Second Circuit. Kiobel v. Millson, 592 F.3d 78 (2d Cir. 2010) (Cabranes, J., concurring; Leval, J., concurring; Jacobs, C.J., concurring). The Court, thus, will interpret Plaintiff's "Refusal for Cause of Fraud" (Docket No. 95), received by the Court on April 29, 2010, as an appeal from the decision of Judge Feldman only as it pertains to Plaintiff's motion for sanctions (Docket No. 86), and, upon review, the Court affirms Judge Feldman's decision, and further denies Plaintiff's outstanding motion (Docket No. 59) seeking sanctions against Defendants for their alleged failure to comply with the Court's February 18, 2009, Order.

BACKGROUND

On November 20, 2008, Plaintiff filed a motion (Docket No. 24) to compel Defendants to permit him to inspect his personal property removed from 366--366.5 Alexander Street and that was, at that time, being stored in a warehouse on 382 Avery Street, Rochester, New York. (Docket No. 24 ¶¶ 12--15.) On November 23, 2008, the Court issued a motion scheduling order (Docket No. 28) directing Defendants to respond to Plaintiff's motion by December 12, 2008. In his application (Docket No. 24), Plaintiff alleged, inter alia, that:

12. On or about Wednesday the 19th of November 2008 at approximately 2:00 pm, at the wharehouse [sic] where my property is being detained at (382 Avery Street Rochester, Monroe County, New York) I showed Mr. Campolieto the transcript and tried to resolve the matter.

13. After presenting Mr. Campolieto with the transcript at the warehouse he refused to allow the inspection of the property if I was to video tape it.

14. Under duress and objection I inspected the property to be in compliance with the court[']s order.

15. Upon inspecting some of the items and questioning a John Doe with "Champion Moving and Storage" John Doe stated words to the effect that not all the items have been removed from the 366-366.5 Alexander Street property..

19. The remaining property at the storage facility was in the comer of a basement, stored in a manner that there was one "aisle" to walk down and inspect a few items. The rest of the items were stored in boxes and totes that could not be view. An attempt was made to go back to view some items and entry was not able to occur because of the manner the items were stored. I requested if there were people or equipment so the heavy items could be moved so I could enter to view and inspect and Mr. Campolieto responded with words to the effect that there were no personnel or equipment to move the items. I was unable therefore to inspect any of the items that were not in the "aisle" or two sides not against the walls of the warehouse.

20. Items such as cabinets with numerous draws [sic] had been saran wrapped closed and all the items allegedly removed and bagged for transportation but were packed in boxed [sic] that could not be verified, viewed, or inspected.

21. At the end of the 30 minutes I estimated I had inspected and/or inventoried approximately 5% of my personal property. At this time Mr. Campolieto told me I had to leave.

22. I stated words to the effect to Mr. Campolieto that I was not given "reasonable" time to inventory my personal property in order to determine if an amicable solution could be possibly reached, and needed more time.

For the foregoing reasons the I request an order from the court that:

1. I be given one (1) day to inspect and/or inventory my personal property and be allowed to photograph and/or videotape my property.

2. That after inspection of my personal property I be given two (2) days to respond back to the court if an amicable resolution may be reached.

(Affirmation in Support of Motion to Clarify and Compel Inspection of Property (Docket No. 24) ¶¶ 12--15, 19--22 & at 5.)

Defendants did not file any response to Plaintiff's motion (Docket No. 24) and on February 18, 2009, the Court entered an Order (Docket No. 37) granting Plaintiff's unopposed motion (Docket No. 24), stating as follows:

There being no opposition to Plaintiff's motion (Docket No. 24) to clarify and compel, that motion is granted. Defendants are directed to permit Plaintiff a day to inspect his property. Both parties are to comply with Federal Rule of Civil Procedure 34. Plaintiff shall have until February 23, 2009, to file the information required by Rule 34(b)(1), after which Defendants shall comply with Rule 34(b)(2). Any disputes that cannot be resolved in good faith, will be referred to the Court for resolution.

(Decision and Order, Wik v. City of Rochester, No. 07-CV-6541 (W .D.N.Y. Feb. 18, 2009)

4. (Docket No. 37).)

On February 23, 2009, Plaintiff filed what he entitled, "Request for Production and Inspection" (Docket No. 40). In that filing, Plaintiff requested the City of Rochester to comply with the Court's February 18, 2009, Order directing inspection of his property as described in Docket No. 24. However, in his February 23, 2009, request (Docket No. 40), Plaintiff expanded upon the areas he wanted to access to view his property. Whereas in his request in Docket No. 24, Plaintiff mentioned only "the 366-366.5 Alexander Street property," (Docket No. 24), and in his Request for Production and Inspection (Docket No, 40), he requested: "That defendants produce and permit Daniel Joseph W ik and my agents to inspect, inventory, photograph, and videotape all of my property that was located at and removed from 366-366.5 Alexander Street, 23-31 Anderson Avenue and 31 Arlington Street, 179 North Union Street, 225 North Union Street, and 305 North Union Street." (Docket No. 40 ¶ 1.) Since Docket No. 40 was a request made pursuant to Federal Rule of Civil Procedure 34(b)(1), Defendants were required to respond to it within thirty days of being served with it. Fed. R. Civ. P. 34(b)(2)(A). The Clerk's docket sheet for this lawsuit does not show that Defendants responded to Docket No. 40.

On March 23, 2009, pursuant to 28 U.S.C. § 636(b)(1)(A) and (B), the Court entered an Order (Docket No. 53) referring this case to the Judge Feldman for, inter alia, hearing and disposition of all non-dispositive motions or applications. On April 1, 2009, Plaintiff filed what he entitled, "Notice of Motion for Contempt/Sanctions for Violation of Pretrial Order." (Docket No. 59). In Docket No. 59, Plaintiff referred to the Court's February 18, 2009, Order and his request for production (Docket No. 40). In Docket No. 59, Plaintiff sought the following relief:

For the foregoing reasons I am entitled to and I request the court to issue an:

22. Order holding Defendants and Counsel in contempt and committing them to the custody of the US Marshals until such time as they produce and allow me to inspect my property as ordered by the court and requested in my Request for Production.

23. Order for Entry of Default against all the Defendants.

24. Order Defendants to reimburse my agents and me for the time and expenses caused by Defendants not appearing for the inspection, ...


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