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Vaher v. Town of Orangetown, New York

United States District Court, S.D. New York

January 2, 2013

Valdo VAHER, Plaintiff,
TOWN OF ORANGETOWN, NEW YORK, Town of Orangetown Police Department, Kevin Nulty, James Nawoichyk, Thomas Hoffman,

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Alan Edward Wolin, Wolin & Wolin, Jericho, NY, for Plaintiff.

John J. Walsh, II, Paul Edward Svensson, Hodges, Walsh & Slater, L.L.P., White Plains, NY, for Defendants.


RAMOS, District Judge.

Defendants Town of Orangetown, New York (the " Town" ), Town of Orangetown Police Department (" OPD" ), Kevin Nulty, James Nawoichyk, Thomas Hoffman and " John" Sullivan (" Defendants" ) bring this Motion to Dismiss Plaintiff's Amended Complaint in its entirety pursuant

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to Fed.R.Civ.P. 12(b)(6).[1] Doc. 33. Also before the Court is Plaintiff's Motion to Compel Defendants to identify the individual sued herein as " John" Sullivan [2] and to produce the last known addresses for Defendants Hoffman, and Nawoichyk. Doc. 28. For the reasons set forth below, Plaintiff's Motion is DENIED in full and Defendants' Motion is GRANTED in part and DENIED in part.

I. Background

Plaintiff Valdo Vaher commenced this action against Defendants on March 1, 2010, alleging seven causes of action under the First, Second, Fourth, Fifth and Fourteenth Amendments of the U.S. Constitution pursuant to 42 U.S.C. § 1983. Doc. 1. On October 26, 2010, Plaintiff filed an Amended Complaint which asserts the same seven causes of action against the same Defendants for the same constitutional violations as are alleged in the original Complaint. Doc. 10. (" Am. Compl." ). Plaintiff seeks compensatory and punitive damages as well as an order compelling Defendants to return all property that was confiscated from him as a result of the March 2007 Search described below.

A. Factual Background

The following facts have been taken from the allegations in the Amended Complaint, which the Court accepts as true for purposes of this motion.

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Famous Horse Inc. v. 5th Ave. Photo Inc., 624 F.3d 106, 108 (2d Cir.2010).

At all times relevant to the Amended Complaint, Defendants James Nawoichyk (" Nawoichyk" ), Thomas Hoffman (" Hoffman" ) and " John" Sullivan (" Sullivan" ) were employed by the Town as officers of the OPD. Am. Compl. ¶¶ 10-12. Defendant Kevin Nulty (" Nulty" ) was employed by the Town as the Police Chief for the OPD. Id. ¶ 9. Plaintiff has resided in the Town since 1974. Id. ¶ 17. At all times relevant to the allegations set forth in the Amended Complaint, he lived at 254 Betsy Ross Drive, Orangeburg, New York, located within the Town of Orangetown (the " residence" ), and was a police officer employed by the United States Department of Veterans Affairs. Id. ¶¶ 17-18.[3] Plaintiff was also the holder of various valid firearms licenses and firearms collectors' licenses. Id. ¶ 21. Pursuant to said licenses, Plaintiff collected military firearms and ammunition, and maintained a shop at the residence for the repair and reconditioning of military firearms. Id. ¶ 22.

Plaintiff asserts that, during the years prior to 2007, he was regularly the target of harassment and intimidation by Town officials and members of the OPD. Id. ¶ 24. While Plaintiff does not describe any incidents that occurred prior to 2007, said incidents are alleged to be part of an ongoing pattern and practice of harassment and intimidation by Defendants, which constituted the official policy and custom of the Town. Id. ¶¶ 16, 24.

Beginning in 1999, Plaintiff was a member of the New York Army National Guard's 442nd Military Police Company. Id. ¶ 19. Defendant Nawoichyk was also a member of the 442nd Military Police Company. Id. ¶ 20. At an unspecified time and for unspecified reasons, Nawoichyk became suspicious about Plaintiff's background and began to ask personal questions about what Plaintiff had done in Estonia, where he had been deployed as a member of the United States Army. Id. ¶¶ 19, 20. Plaintiff would not answer Nawoichyk's questions, because the information was classified. Id. ¶ 20. As a result, Nawoichyk became enraged and would thereafter threaten Plaintiff in an intimidating fashion. Id.

On March 8, 2007, a locksmith who had been called to the residence by Plaintiff's mother (who lived with Plaintiff) observed old military rifles and ammunition cases in Plaintiff's garage and subsequently reported his observations to the OPD. Id. ¶¶ 23, 25-28. The following day, Nawoichyk and Hoffman arrived at the residence and questioned Plaintiff's mother about his firearms. Id. ¶ 29. Nawoichyk and Hoffman also " severely pressured" Plaintiff's mother to permit them to enter the residence without a warrant. Id. ¶ 30. Plaintiff was not at the residence when Nawoichyk and Hoffman arrived; however, his mother told Nawoichyk and Hoffman that Plaintiff had valid licenses for " all firearms and related accessories." [4] Id. ¶¶ 29-30.

Plaintiff's mother told him about her interaction with Nawoichyk and Hoffman on the evening of March 8, 2007. Id. ¶ 31. Plaintiff then called Nawoichyk who told him that OPD had received a complaint

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about guns and ammunition in Plaintiff's garage. Id. ¶ 32. In response, Plaintiff told Nawoichyk that he held that appropriate licenses for all of his firearms and that he was a police officer with the U.S. Department of Veteran Affairs. Id. Nawoichyk tried to intimidate and pressure Plaintiff into permitting him to return to the residence, but Plaintiff refused, and Nawoichyk responded in a threatening fashion by saying: " If I feel something is in there I will break your door down." Id. ¶ 33.

On March 19, 2007, Plaintiff went to the OPD to show Defendants his licenses and his police and military identifications in an effort to end any further investigation into his lawfully owned firearms; however, Nawoichyk was not satisfied with the information Plaintiff provided. Id. ¶ 34. Accordingly, on March 26, 2007, Nawoichyk, Hoffman and other, unidentified OPD employees, members of the Rockland County Sheriffs' Department and agents of the United States Bureau of Alcohol, Tobacco & Firearms Enforcement (" ATFE" ) executed a search warrant at the residence that had been issued by the Justice Court of the Town of Orangetown at the request of Defendants.[5] Id. ¶¶ 35-36. The search warrant authorized Defendants to search for and seize " a large capacity ammunition feeding device that consists of ammunition, linked together by belt and links that it [sic] can be readily restored and converted to accept more than ten rounds of ammunition." Id. ¶ 35.

In executing the warrant, Defendants and other law enforcement officials searched Plaintiff's property " in an abusive and disrespectful manner," damaging his property, and rummaging through his personal belongings for several hours. Id. ¶¶ 40-46. For example, one member of the OPD, identified as Police Officer Sila, " menaced" Plaintiff by starting to draw his firearm; an unidentified ATFE agent threatened to handcuff Plaintiff and his mother, causing members of the Rockland County Sheriffs' Department to laugh; and Nawoichyk and Hoffman made ridiculing and sarcastic statements to Plaintiff. Id. ¶¶ 41, 42, 46. During the search, Plaintiff complained to an unidentified detective supervisor that Nawoichyk and Hoffman were harassing him, but the supervisor ignored his complaint. Id. ¶ 38. Plaintiff also attempted to contact Nulty twice on the day of the search, but Nulty did not return his telephone calls. Id. ¶ 39.

At the conclusion of the search, Defendants seized certain property, including property that Plaintiff asserts was not covered by the search warrant. Id. ¶¶ 42-43. Defendants then left the residence without providing Plaintiff with any receipt or inventory of the items taken. Id. ¶ 47. Plaintiff did subsequently receive an inventory of the property that was seized; however, the inventory did not include certain items that were seized, including a 20" barrel length AR15 rifle kit and a green military ammunition box with hinges. Id. ¶ 43. Plaintiff was never arrested and the seized property, which was lawfully owned, has never been returned. Id. ¶ 48. Plaintiff alleges that Defendants failed to provide him with notice or an opportunity to seek the return of the seized property, " nor have they provided [him] with any process whatsoever." Id. ¶ 49.

Defendants, including Nawoichyk, told various third parties, including officials of the 442nd Military Police Company and supervisors at the Department of Veterans

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Affairs, about the facts and circumstances surrounding the search. Id. ¶ 50. Nawoichyk told such third parties that he thought Plaintiff was a " foreign spy," and that Plaintiff's property had been turned over to Homeland Security and would never be returned. Id. ¶ 51. As a result of Defendants' statements to third parties, Plaintiff " has been stigmatized and his reputation diminished." Id. ¶ 52. Approximately ten months later, on January 28, 2008, Plaintiff filed a Notice of Claim relating to the events of March 26, 2007 (the " March 2007 Search" ). Id. ¶ 53.

Approximately one year later, Plaintiff had another encounter with members of the OPD (the " 2009 Incident" ) that is alleged to be part of the same ongoing pattern of harassment and intimidation. Id. ¶¶ 54-61. On March 3, 2009, Plaintiff called the OPD to request their assistance in resolving an altercation between himself and the son of a contractor whom Plaintiff had hired to perform certain work. Id. ¶¶ 54-56. The altercation related to Plaintiff's refusal to pay the contractor until certain deficiencies were addressed. Id. During the altercation, the contractor's son became enraged, threatened Plaintiff with violence, and swung a large piece of wood near Plaintiff's head while cursing at Plaintiff. Id. ¶ 55. In order to protect himself and because he felt threatened, Plaintiff displayed his firearm. Id. The contractor's son subsequently swung a steel tile cutter near Plaintiff's head and ignored Plaintiff's repeated requests to leave his property. Id. ¶¶ 55-56. The OPD was " dilatory" in responding to Plaintiff's call and he called 911 a second time. Id. ¶ 57.

When defendant Sullivan and Police Officer Fitzgibbons finally arrived at the residence, rather than complying with protocol by first speaking to Plaintiff, as the complainant, the officers initially spoke to the contractor and did not allow Plaintiff the opportunity to explain his version of the events. Id. ¶¶ 57-58. Sullivan also told Plaintiff several times, in a threatening and intimidating manner, that if Plaintiff did not pay the contractor, Sullivan would arrest Plaintiff and ensure that he lost his home and his job. Id. ¶ 58. Plaintiff was thus forced to pay the contractor under duress. Id. ¶ 59. Sullivan then prepared a complaint, in which he " falsely accused" Plaintiff of menacing and indicated that the contractor's son was the complainant and that Plaintiff was the perpetrator.[6] Id. ¶¶ 58, 60. Defendants subsequently contacted Plaintiff's employer, the U.S. Department of Veterans Affairs, to report the 2009 Incident. Id. ¶ 61. As a result, Plaintiff was placed on modified duty and ordered to undergo psychological testing. Id. Plaintiff passed all of the tests and was eventually restored to full duty status. Id. In furtherance of the ongoing pattern and practice of harassing Plaintiff, several nights after the 2009 Incident, a number of police cars from OPD drove to the rear of the residence and shined their spotlights on Plaintiff's house. Id. ¶ 62.

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The alleged pattern and practice of harassing Plaintiff continued approximately one year later. On March 11, 2010, in the vicinity of the intersection of Blaisedell Road and Orangeburg Road in the Town of Orangetown, Plaintiff was pulled over after making a right hand turn, and " for no reason, a uniformed officer approached plaintiff's vehicle from the passenger side with his gun drawn and pointed at plaintiff," and then repeated that action after retreating to his car, before ultimately allowing Plaintiff to leave. Id. ¶ 63.

On the basis of the foregoing incidents, Plaintiff asserts three causes of action for violations of his Fourth, Second and First Amendment rights (Plaintiff's First, Second and Third Claims for Relief, respectively), id. ¶ ¶ 65-81, and four causes of action for violations of his rights under the Fifth and Fourteenth Amendments (Plaintiff's Fourth, Fifth, Sixth and Seventh Claims for Relief). Id. ¶¶ 82-105.

B. Procedural History

On March 1, 2010, Plaintiff commenced this action by filing a Verified Complaint. Doc. 1. On May 4, 2010, in preparation for an initial pre-trial conference that was to be held before the Honorable Richard J. Sullivan, to whom this case was originally assigned, defense counsel first raised the issue of inadequate service with respect to all Defendants in an email exchange with Plaintiff's counsel. See Doc. 18 (" Sept. 2011 Order" ) at 2. On May 11, 2010, this case was reassigned to the Honorable Kenneth M. Karas. On July 20, 2010, Plaintiff's counsel submitted a letter to Judge Karas requesting a conference to address the issue of service. See Doc. 7. A pre-motion conference was held on September 13, 2010, after which Judge Karas entered an order granting Plaintiff leave to file an Amended Complaint and to file a Motion to Permit Late Service, since the 120-day period for service under Rule 4(m) had expired on June 29, 2010.[7] Doc. 8. The Amended Complaint was filed on October 26, 2010, Doc. 10, and the Motion to Permit Late Service was filed on November 2, 2010. Doc. 13.

On September 23, 2011, Judge Karas granted Plaintiff's request for an extension of time to serve the Amended Complaint, despite finding no good cause for the failure to timely serve the original Verified Complaint, because: (1) the three-year statute of limitations for § 1983 actions would bar re-filing of some of Plaintiff's claims; (2) Defendants had actual notice of the claims against them; and (3) Defendants would not be prejudiced by an extension of time to permit service. Sept. 2011 Order 4-5, 7-10. Judge Karas granted Plaintiff an additional thirty days to serve the Amended Complaint on all Defendants. Id. at 11.

On October 5, 2011, Plaintiff's counsel served defense counsel with a Demand for Addresses requesting the last known home and/or business addresses for Nawoichyk, Hoffman and Sullivan. Wolin Decl. Ex. B, Doc. 29-2; see Doc. 19. In a response the following day, October 6, 2011, defense counsel informed Plaintiff's counsel that he did not have addresses for Nawoichyk and Hoffman and that there was no record of any " Sullivan" being employed by the OPD or involved in the incidents described in the Amended Complaint.[8] Wolin Decl. Ex.

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A, at 8. Defense counsel also stated that Hoffman and Nawoichyk were no longer employed by the OPD, id. at 6, a fact that defense counsel had previously made known to Plaintiff's counsel in July 2010. See Sept. 2011 Order 2-3; see also Mot. Permit Late Serv. Ex. G. Plaintiff repeated his request that Defendants respond to the Demand for Addresses in two email messages to defense counsel on October 7, 2011. Wolin Decl. Ex. A, at 5-7.

After defense counsel told Plaintiff's counsel to make his own effort to locate the unserved Defendants, Plaintiff's counsel conducted an internet search for Nawoichyk on the website and discovered a possible address for Nawoichyk in the Town. Id. at 2. On October 10, 2011, Plaintiff served a copy of the Amended Complaint and Summons on the address believed to be the residence of Nawoichyk. See Doc. 23. The following day, October 11, 2011, Plaintiff's counsel again asked defense counsel to confirm that the address he located for Nawoichyk was accurate, and defense counsel responded on the same day by telling Plaintiff's counsel, again, that he did not have Nawoichyk's home address. Wolin Decl. Ex. A, at 2, 4. Plaintiff effected service on the Town, OPD, and Nulty by serving copies of the Amended Complaint on the Deputy Town Clerk on October 11, 2011, within the additional 30-day period granted by Judge Karas. See Docs. 20-22.

On October 19, 2011, four days before the expiration of the extended deadline for service, Plaintiff submitted a letter to Judge Karas requesting an additional extension of time to complete service on Hoffman and Sullivan, as well as an order directing Defendants to produce the last known home address for Hoffman and the proper name for the defendant misidentified as Sullivan. Doc. 19. On October 20, 2011, Judge Karas granted Plaintiff's request for an extension of time to serve the remaining defendants by an additional thirty days, and directed Defendants to respond to Plaintiff's request for the additional information. Id. at 2.

On October 25, 2011, Defendants submitted a letter to Judge Karas objecting to the request for the last known home addresses of the former police officers, and noting that Plaintiff's counsel had been aware of the service issues since May 4, 2010 and that the three year statute of limitations for the claims against Hoffman and Nawoichyk had already expired. Doc. 24. Defense counsel's letter also indicated that Nawoichyk had not been properly served with the Amended Complaint. Doc. 24 at 1-2. Defense counsel concluded by noting that Plaintiff's counsel had not offered any explanation for the delay in serving the Demand for Addresses on defense counsel or for seeking the Court's assistance with the outstanding service issues. Doc. 24 at 2.

Judge Karas directed Plaintiff to respond to Defendants' letter by October 31, 2011. Doc. 24. The docket sheet does not reflect any such letter being received by Judge Karas,[9] and neither party contacted the Court at any point after October 25, 2011 regarding the outstanding service issues or Plaintiff's request for an order compelling Defendants to produce information

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required for service.[10] There is also no indication that Plaintiff attempted to serve Nawoichyk at any other addresses, or that he made any effort to complete service on Hoffman or Sullivan prior to the expiration of the twice-extended service deadline of November 23, 2011.

This case was reassigned to the undersigned on January 23, 2012, Doc. 26, and a Notice of Court Conference was issued on February 4, 2012. Doc. 27. Neither party contacted the Court regarding any of the outstanding issues noted above prior to the conference. At the status conference that was held on February 21, 2012, Plaintiff again requested an order compelling Defendants to produce the information that was requested in the October 19, 2011 letter to Judge Karas and defense counsel responded with the same objections. Notwithstanding the parties' failure to move this case forward, the Court entered an order permitting Plaintiff to file yet another motion for an extension of time to serve the remaining Defendants, as well as a motion to compel Defendants to provide the information necessary to complete service. See Minute Entry dated Feb. 21, 2012. The Court also granted Defendants leave to file a motion to dismiss. Id. Both motions were fully submitted on March 26, 2012.

II. Plaintiff's Motion for an Extension of Time for Service and Motion to Compel

Plaintiff again asks the Court for an order (1) compelling the Town, OPD and Nulty— the three Defendants who have been served with the Amended Complaint— to provide him with the correct name of the officer misidentified in the Amended Complaint as " John" Sullivan and the last known addresses for defendants Nawoichyk, Hoffman, and Sullivan (the " unserved Defendants" ), and (2) granting him an additional extension of time to complete service on the unserved Defendants. Pl.'s Mem. Supp. Mot. Compel (" Pl's Mem. Compel." ) 1, Doc. 30. Plaintiff argues that he is entitled to the name and addresses under FRCP 33, because the unserved Defendants are " witnesses to events described in the Amended Verified Complaint and may have knowledge concerning those events." Pl.'s Mem. Compel at 4. The Court is constrained to point out, however, that Plaintiff's motion papers do not contain any arguments in support of the request for an extension.

At the February 21, 2012 status conference, Plaintiff was granted leave to file a motion for a third extension of time to complete service, and for an order compelling Defendants to produce the requested information for the purpose of completing service — in other words, if Plaintiff is not permitted additional time to effect proper service on the unserved Defendants, then his request for an order compelling Defendants to provide the information he requires for service is either moot or premature. Apart from criticizing Defendants' refusal to provide the information, Plaintiff's four-and-a-half page memorandum of law is devoid of any arguments or citations to legal authorities to support the extension request. Despite Plaintiff's failure to

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address the extension request, the Court will first consider whether an additional extension of time to serve is appropriate under Rule 4(m).

A. Discussion

Federal Rule of Civil Procedure 4(m) provides that " [i]f a defendant is not served within 120 days after the complaint is filed, the court ... must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure the court shall extend the time for service for an appropriate period." Fed.R.Civ.P. 4(m). " In determining whether a plaintiff has shown good cause, courts weigh the plaintiff's reasonable efforts and diligence against the prejudice to the defendant resulting from the delay." DeLuca v. AccessIT Group, 695 F.Supp.2d 54, 66 (S.D.N.Y.2010). " Good cause is generally found only in exceptional circumstances where the plaintiff's failure to serve process in a timely manner was the result of circumstances beyond its control." Beauvoir v. U.S. Secret Serv., 234 F.R.D. 55, 56 (E.D.N.Y.2006) (quoting E. Refractories Co. v. Forty Eight Insulations, Inc., 187 F.R.D. 503, 505 (S.D.N.Y.1999)) (internal quotation marks omitted). " Therefore, [a]n attorney's inadvertence, neglect, mistake or misplaced reliance does not constitute good cause." Id. (alteration in original) (quoting E. Refractories Co., 187 F.R.D. at 505) (internal quotation marks omitted).

Here, Plaintiff did not even attempt to demonstrate good cause for the failure to serve the Amended Complaint in his opening memorandum. In his Reply Memorandum, in response to various arguments set forth by Defendants regarding Plaintiff's lack of diligence, Plaintiff argues that: (1) he did what he thought was " prudent" to resolve the service issue, (2) he " did attempt to obtain the addresses," (3) if he had made a FOIA request— as Defendants had proposed— " [s]urely ... that request would have been ignored by the Town based upon its track record in this matter," and (4) " Defendants, by ignoring [Plaintiff's various] requests [for the identity and addresses of the unserved Defendants], have impeded plaintiff's right to discovery." Pl.'s Mem. Law Reply Mot. Compel (" Pl.'s Reply Mem. Compel." ) 1, Doc. 36. None of these assertions demonstrate good cause.

First, the plain language of Rule 4 makes clear that all defendants must be personally served within the 120-day period and it is undisputed that Plaintiff still has not served Nawoichyk, Hoffman or Sullivan.[11] Plaintiff's second argument is belied by the statement of facts set forth in his motion papers, which demonstrate an utter lack of reasonableness and diligence on the part of Plaintiff's counsel with respect to identifying or locating the

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unserved Defendants despite the notice he repeatedly received from defense counsel regarding the service deficiencies. See Doc. 24; see also Kurzberg v. Ashcroft, 619 F.3d 176, 185 (2d Cir.2010) (holding that " notification to the plaintiff by the defendant, rather than by the court, of a defect in the service of process is sufficient to start the clock on the reasonable amount of time afforded to the plaintiff to cure the defect." ). Furthermore, Plaintiff's counsel failed to seek a further extension of time to complete service until four months after the expiration of the twice-extended deadline in November 2011, and two years after he initiated this action, and only then because Defendants raised the service deficiencies once again during the status conference before this Court. As Defendants note, Plaintiff has blatantly and continually failed to pursue any of the many possible methods of discovering the information that he has now been demanding for more than a year. Defs.' Reply Mem. Law Opp. Mot. Compel (" Defs.' Opp." ) 7-8, Doc. 32; see also Doc. 24.

The third argument set forth in Plaintiff's Reply is based on nothing more than mere conjecture, and his fourth argument fails because it was the responsibility of his attorney— and not the Court or Defendants— to ensure that all Defendants were properly served with the Amended Complaint in a timely manner. Zapata v. City of New York, 502 F.3d 192, 199 (2d Cir.2007) (describing plaintiff's attorney's poor communication with client and " assum[ption] that the City would gratuitously supply the information necessary to effect service which she could not (or would not) obtain from her client," as " a confession of neglect, not an excuse for it." ); see also Beauvoir, 234 F.R.D. at 57 (noting that it is " counsel's responsibility to monitor [the service of process] and to take reasonable steps to assure that a defendant is timely served." (quoting McKibben v. Credit Lyonnais, No. 98 Civ. 3358(LAP), 1999 WL 604883, at *4 (S.D.N.Y. Aug. 10, 1999))) (internal quotation marks omitted).

A finding that Plaintiff lacked good cause for his failure to timely serve the Amended Complaint is not, however, fatal to his request. Zapata, 502 F.3d at 197 (" [A] district court may grant an extension in the absence of good cause, but it is not required to do so." ). Where a plaintiff has not shown good cause for his failure to effect service within the 120 day-period provided by Rule 4(m), the decision of whether to grant an extension, and the criteria for that decision, are left to the sound discretion of the district court. Id. at 197-98. " Where, as here, good cause is lacking, but the dismissal without prejudice in combination with the statute of ...

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