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Kent v. Drought

October 28, 2010


The opinion of the court was delivered by: John T. Curtin United States District Judge

Defendants Drought, Stymus, and Leo have moved, pursuant to Fed. R. Civ. P. 12(b)(6), for an order dismissing the complaint on the grounds that plaintiff has failed to state a claim against them and an order, pursuant to Rule 56, granting defendants summary judgment on their counterclaim (Item 16). Plaintiff opposes the motion and asserts that this court lacks jurisdiction to determine defendants' counterclaim (Item 23). Defendants have also filed a motion seeking to sever plaintiff's action against them from that of defendant Cardone (Item 33).


This action was originally commenced in New York State Supreme Court, Orleans County, and was removed to this court on June 4, 2008 (Item 1). In his complaint, plaintiff alleges that he is a logger and that he and defendant Gladys Drought entered into an agreement by which plaintiff agreed to log 79 designated trees on her property, in addition to an unspecified number of culled trees to be logged, at plaintiff's discretion (Item 1, Exh. F, ¶ 7). Under the contract, plaintiff was to pay defendant Drought $11,000.00 for the designated trees, and plaintiff would pay defendant an additional sum for the culled trees based on timber volume. Id., ¶¶ 8-9. In his complaint, plaintiff estimated that the additional payment to defendant would be approximately $4,000.00 to $6,000.00. Id., ¶ 10. Plaintiff gave defendant Drought a check in the amount of $1,000.00 as a down payment. Id., ¶ 11.

On February 2, 2006, plaintiff started to cut the trees in accordance with the contract and remove the culled trees (Item 1, Exh. F, ¶¶ 15--16). On February 20, 2006, defendant Stymus, Drought's brother, while carrying a gun, approached plaintiff while he was working on Drought's property. He accused plaintiff of being a thief and said that he wanted to have an expert determine the value of the trees. Id., ¶¶ 17-18. Plaintiff agreed not to dispose of the cut trees so that a representative of defendants could evaluate them. Id., ¶ 19. Plaintiff continued to work on the property and kept the cut trees for a period of two weeks so that defendants Drought, Stymus, and Leo, Drought's daughter, could have the cut trees evaluated. After two weeks, in which no one came to evaluate the trees, plaintiff sold the logs. Id., ¶¶ 20-21.

On February 25, 2006, defendant Leo contacted the New York State Police and filed a complaint against plaintiff, alleging that plaintiff unfairly convinced defendant Drought to sign a contract with him. Defendant Leo requested that charges be brought against plaintiff for larceny of the trees which were cut beyond the 79 trees specified in the contract (Item 1, Exh. F, ¶¶ 22-23). Plaintiff further alleges that on May 23, 2006, at the instigation of defendants Drought, Leo, and Stymus, plaintiff was arrested by Investigator Michael Notto of the New York State Police and charged with the crimes of grand larceny in the third degree, unlawful removal of protected plants, and trespass. He was taken to the State Police barracks, where he was detained for about 1 1/2 hours. He was then taken to court, where he was arraigned and released on his own recognizance. Plaintiff states that his arrest, brought about at the request and instigation of defendants Drought, Leo, and Stymus, was without probable cause. Id., ¶¶ 25-28.

Plaintiff also alleges that defendant Cardone, District Attorney of Orleans County, threatened to indict plaintiff if he did not pay defendant Drought the money that she and defendants Leo and Stymus sought (Item 1, Exh. F, ¶ 30). When plaintiff refused to pay, defendant Cardone presented several charges against plaintiff to the grand jury, including grand larceny in the third degree, criminal possession of stolen property, tampering with physical evidence, and removal of trees in violation of the Environmental Conservation Law. Id., ¶ 34. Plaintiff alleges that in April of 2007, the grand jury refused to indict plaintiff on most of the charges, except for the charge of tampering with evidence. That charge was dismissed later by County Court Judge Punch in August of 2007. Id., ¶¶ 38-39.

Plaintiff has alleged three causes of action against defendants Drought, Stymus, and Leo--false arrest (first through third causes of action), malicious prosecution (fourth cause of action), and, with defendant Cardone, conspiracy to violate plaintiff's civil rights (seventh cause of action). Specifically, he alleges that defendant Drought gave a supporting deposition to the police, in which she falsely alleged that plaintiff stole trees from her property (Item 1, Exh. F, ¶ 45). He states that defendant Leo contacted the New York State Police and requested that they "go after" plaintiff, as there was no civil recourse against him. Id., ¶¶ 65-66. He also alleges that defendant Stymus gave a false supporting deposition which led to plaintiff's arrest. Id., ¶¶ 74-76. As to the conspiracy, plaintiff alleges that defendants Drought, Stymus, Leo, and Cardone attempted to coerce plaintiff to pay monies he did not owe, and conspired to have him arrested and charged when he refused to pay. Id., ¶ 143.

Defendants Drought, Stymus, and Leo filed an answer to the complaint on July 16, 2008 (Item 5).*fn1 At that time, they interposed a counterclaim alleging that plaintiff had added the language regarding the culled trees after Drought had signed the contract. They further alleged that plaintiff cut 198 trees on plaintiff's property, well in excess of the 79 trees originally designated. Defendants obtained an appraisal of the cut timber and noted that plaintiff had paid only the $1,000 down payment. Id., ¶¶ 14 - 22. Accordingly, they sought a judgment in the amount of $21,726.00.

This motion to dismiss and for summary judgment was filed on December 29, 2009 (Item 16). Plaintiff filed a response to the motion on March 8, 2010 and cross-moved to dismiss the counterclaim for lack of jurisdiction (Item 23). Defendants did not file a response to the cross motion, nor did they file a reply in support of their motion to dismiss and motion for summary judgment. Instead, on May 4, 2010, defendants filed a motion seeking to sever the action against them from the action against defendant Cardone and seeking an order remanding the matters alleged against the Drought defendants back to state court (Item 33). On June 7, 2010, defendant Cardone filed a response in opposition to the motion (Item 34). The court determined that oral argument was not necessary. For the reasons that follow, the defendants' motion to dismiss the complaint is denied, the defendants' motion for summary judgment on the counterclaim is denied, plaintiff's motion to dismiss the counterclaim is denied, and the defendants' motion to sever is denied.


1. Standard on Motion to Dismiss

Federal Rule of Civil Procedure 8(a)(2) requires a "short and plain statement of the claim showing that the pleader is entitled to relief . . . ." This rule does not compel a litigant to supply "detailed factual allegations" in support of his claims, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), "but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, ___U.S.___, 129 S.Ct. 1937, 1949 (2009). "A pleading that offers 'labels and conclusions' . . . will not do." Id. (quoting Twombly, 550 U.S. at 555); see also In re NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir. 2007). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 557).

To survive a Rule 12(b) motion, the complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 570). This "plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (internal quotations omitted); see Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007) (interpreting Twombly to require a "plausibility standard" that "obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible") (emphasis omitted), rev'd on other grounds, 129 S.Ct. 1937 (2009). On a Rule 12(b)(6) motion, the court must accept as true all factual statements alleged in the complaint and draw all reasonable inferences in favor of the nonmoving party. Vietnam Ass'n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104, 115 (2d Cir. 2008), cert. denied, ___U.S.___, 129 S.Ct. 1524 (2009). The court may only consider the pleading itself, documents that are referenced in the complaint, documents that the plaintiff relied on in bringing ...

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