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Leroy M. Douglas; and v. New York State Adirondack Park Agency

October 30, 2012

LEROY M. DOUGLAS; AND THE DOUGLAS CORP. OF SILVER LAKE, PLAINTIFFS,
v.
NEW YORK STATE ADIRONDACK PARK AGENCY, ET AL.; DEFENDANTS.



The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge

DECISION and ORDER

Currently pending before the Court, in this civil rights action filed by Leroy M. Douglas Corporation of Silver Lake ("Plaintiffs") against the New York State Adirondack Park Agency and six of its employees ("APA Defendants"), the Adirondack Council, Inc., and two of its members ("AC Defendants"), Brian Ruder ("Defendant Ruder"), Hawkeye Conservationists, Inc. ("Defendant Hawkeye"), and ten John Does, are the following two motions: (1) Plaintiffs' motion to correct a clerical mistake in the Court's Decision and Order of September 11, 2012, under Fed. R. Civ. P. 60(a) and/or for reconsideration or reargument under Fed. R. Civ. P. 60(b); and (2) Defendant Hawkeye's motion for reconsideration of the Court's Decision and Order of September 11, 2012, under Fed. R. Civ. P. 59(e) and Local Rule 7.1(g). (Dkt. Nos. 92, 100.) For the reasons set forth below, Plaintiff's motion is granted in part and denied in part; and Defendant Hawkeye's motion is denied.

I. RELEVANT BACKGROUND

A. Court's Decision and Order of September 11, 2012

Because this Decision and Order is intended primarily for the review of the parties, and they have demonstrated an accurate familiarity with the Court's Decision and Order of September 11, 2012, the Court will not describe in detail that Decision and Order. Rather, the Court will merely state that the Decision and Order did the following five things, inter alia: (1) it stated in a footnote that Plaintiff's claim of conspiracy pursuant to "Section 1985" survives as against the APA Defendants; (2) it dismissed Plaintiffs' state-law claim of malicious prosecution against APA Defendants arising out of Administrative Enforcement Proceeding E2007-47 based on the one-year limitations period set forth in N.Y. C.P.L.R. § 215(3); (3) it dismissed Plaintiffs' state-law claim of abuse of process against APA Defendants arising out of Administrative Enforcement Proceeding E2007-47 based on the one-year limitations period set forth in N.Y. C.P.L.R. § 215(3); (4) it did not dismiss Plaintiffs' substantive-due-process claim against Defendant Hawkeye; and (5) it did not dismiss Plaintiffs' state-law claim of tortious interference with contract against Defendant Hawkeye.(See generally Dkt. No. 91.)

B. Parties' Briefing on Plaintiffs' Motion

Although Plaintiffs' motion is, in part, incorrectly based on Fed. R. Civ. P. 60(b), the Court will liberally construe it as having been partially based on Local Rule 7.1(g), out of special solicitude to Plaintiffs as civil rights litigants.

Liberally construed, Plaintiff's motion argues that reconsideration is necessary for three reasons: (1) the existence of a typographical error in footnote 46 on page 117 of the Decision and Order, which states that Plaintiff's claim of conspiracy pursuant to "Section 1985" survives as against the APA Defendants, when the Court clearly intended (based on its ruling in Part III.A.1. of the decision) to state that the claim of conspiracy pursuant to "Section 1983" survives as against the APA Defendants; (2) the existence of a clear error of law, and/or creation of manifest injustice, on pages 41-43 and 117 of the Decision and Order, which dismissed Plaintiffs' state-law claim of malicious prosecution against APA Defendants arising out of Administrative Enforcement Proceeding E2007-47 based on the one-year limitations period set forth in N.Y. C.P.L.R. § 215(3), when that claim did not accrue until the termination of that proceeding, which (according to Paragraph 197 of the Complaint) allegedly occurred in the fall of 2009, less than one year before the filing date of this action, on March 15, 2010; and (3) the existence of a clear error of law, and/or creation of manifest injustice, on pages 41-43 and 117 of the Decision and Order, which dismissed Plaintiffs' state-law claim of abuse of process against APA Defendants arising out of Administrative Enforcement Proceeding E2007-47 based on the one-year limitations period set forth in N.Y. C.P.L.R. § 215(3), when that claim did not accrue until the termination of that proceeding, which (according to Paragraph 197 of the Complaint) allegedly occurred in the fall of 2009, less than one year before the filing date of this action, on March 15, 2010. (Dkt. No. 92, Attach. 2, at 2-3 [Plfs.' Memo. of Law]; see also Dkt. No. 92, Attach. 1, at ¶¶ 5-8 [Plfs.' Atty. Affid.].)

In their opposition to Plaintiffs' motion, the APA Defendants assert four arguments: (1) Plaintiffs' reliance on Fed. R. Civ. P. 60(b) is inapposite, because that rule applies only to "a final judgment, order or proceeding," and the Decision and Order in question was not a final judgment, order or proceeding, but an interlocutory order; (2) Plaintiffs should not be permitted to challenge Defendants' statute-of-limitations argument because they failed to do so below, and case law makes clear that a motion for reconsideration is not a vehicle for taking a "second bite at the apple; (3) in any event, even if the Court were to consider Plaintiffs' grounds for reconsideration, the APA Defendants' burden on their underlying motion to dismiss the two state-law claims in question was lightened by the fact that Plaintiffs failed to oppose that motion, raising Plaintiffs' burden on its motion for reconsideration too high for them to meet, as happened in Continental Ins. Co. v. Coyne Int'l Enter. Corp., 700 F. Supp.2d 207, 217-18 (N.D.N.Y. 2010) (Suddaby, J.); and (4) in any event, as the APA Defendants explained in their underlying motion papers, alternative grounds exist on which to base a dismissal of the claims in question, specifically, (a) the fact that Administrative Enforcement Proceeding E2007-47 was supported by probable cause, (b) the fact that Administrative Enforcement Proceeding E2007-47 was not pursued by the APA Defendants with the required malice, and (c) the fact that, to recover on their abuse-of-process claim, Plaintiffs must allege and prove actual or special damages, but have not done so. (Dkt. No. 108.)

Neither the AC Defendants nor Defendant Ruder have filed an opposition to Plaintiff's motion. (See Dkt. Nos. 109, 110.) Similarly, Defendant Hawkeye has not filed an opposition to Plaintiff's motion. (See generally Docket Sheet.) While Defendant Hawkeye filed its own motion for reconsideration, that motion did not contain an opposition to Plaintiff's motion. (See Dkt. No. 100.)

In reply to the APA Defendants' opposition, Plaintiffs argue as follows: (1) whether its Decision and Order was a final order or not, the Court may correct it and reinstate Plaintiffs' state-law claims for malicious prosecution and abuse of process; and (2) Plaintiffs sufficiently opposed the APA Defendants' statute-of-limitations argument by (a) submitting a "voluminous set of papers" opposing the APA Defendants' motion to dismiss "in its entirety," and (b) recounting "the chain of events and the dates or times of the actionable conduct allegedly committed by the APA Defendants." (Dkt. No. 114.)

C. Parties' Briefing on Defendant Hawkeye's Motion

In its motion, Defendant Hawkeye argues that reconsideration is necessary for the following two reasons: (1) the existence of a clear error of law, and/or creation of manifest injustice, on pages 23-25 and 86 of the Decision and Order, which refused to dismiss Plaintiffs' substantive-due-process claim against Defendant Hawkeye, despite the fact that (a) on pages 3 and 118 of the Decision and Order, the Court granted in its entirety Defendant Hawkeye's motion to dismiss, and (b) on pages 77-81 of its Decision and Order, the Court found that there was no factual allegations plausibly that Defendant Hawkeye was a state actor or was conspiring with a state actor; and (2) the existence of a clear error of law, and/or creation of manifest injustice, on page 115 of the Decision and Order, permitted Plaintiff to file (in his Amended Complaint) a state-law claim of tortious interference with contract against Defendant Hawkeye even though the Amended Complaint is devoid of any factual allegations plausibly suggesting that Defendant Hawkeye "interfered with anything." (Dkt. No. 100, Attach. 2, at 2-4 [Def. Hawkeye's Memo. of Law]; see also Dkt. No. 100, Attach. 1, at ¶¶ 3-6 [Def. Hawkeye's Atty. Affid.].)

In their opposition to Defendant Hawkeye's motion, Plaintiffs assert the following five arguments: (1) Defendant Hawkeye's reliance on Fed. R. Civ. P. 59(e) is inapposite, because Fed. R. Civ. P. 60 governs its motion for reconsideration; (2) the reason the Court did not dismiss Plaintiffs' substantive-due-process claim against Defendant Hawkeye was that Defendant Hawkeye never, in its underlying motion to dismiss, challenged the pleading sufficiency of the elements of that claim (and thus it would be improper for the Court to entertain such a challenge now); (3) in any event, even if the Court were to entertain such a challenge now, the fact that the Court found that Plaintiffs had not pled facts plausibly suggesting that Defendant Hawkeye was not a state actor for purposes of Plaintiffs' malicious-prosecution claim does not require the Court to make such a finding with regard to Plaintiffs' substantive-due-process claim, because the Court found that a substantive-due-process claim is distinct from a malicious- prosecution claim; (4) in its opposition to Plaintiffs' underlying cross-motion for leave to amend, Defendant Hawkeye never challenged the pleading sufficiency of the elements of that claim, but merely argued that the proposed amendment "would be futile because it would be subject to the same arguments that are presently before the Court, namely that Hawkeye Conservationists, Inc. is not a state actor and did not engage in any conduct which would violate

42 U.S.C. § 1983," which arguments do not apply to Plaintiffs' state-law tortious-interference-with-contact claim (and thus it would be improper for the Court to entertain such a challenge now); and (5) in any event, even if the Court were to entertain such a challenge now, Defendant Hawkeye points to no specific pleading deficiency in that claim, other than to argue that the Amended Complaint is devoid of any factual allegations plausibly suggesting that Defendant Hawkeye "did anything." (Dkt. No. 112.)

Neither the AC Defendants nor Defendant Ruder have filed an opposition to Plaintiff's motion. (Dkt. Nos. 109, 110.) Similarly, while the APA filed an opposition to Plaintiffs' motion for reconsideration, that opposition did not contain an opposition to Defendant Hawkeye's motion. (See Dkt. No. 109.)

II. RELEVANT LEGAL STANDARDS

A. Legal Standard Governing Motion to Correct a Clerical Mistake Pursuant to Fed. R. Civ. P. 60(a)

Rule 60(a) of the Federal Rules of Civil Procedure provides as follows:

Corrections Based on Clerical Mistakes; Oversights and Omissions.

The court may correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record. The court may do so ...


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