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Mhany Management Inc., Vic Devita, and Francine Mccray v. Incorporated Village of Garden City and Garden City Board of Trustees

April 29, 2013

MHANY MANAGEMENT INC., VIC DEVITA, AND FRANCINE MCCRAY, -AND-
PLAINTIFFS, NEW YORK COMMUNITIES FOR CHANGE, INC., INTERVENOR - PLAINTIFF,
v.
INCORPORATED VILLAGE OF GARDEN CITY AND GARDEN CITY BOARD OF TRUSTEES,
DEFENDANTS.



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

MEMORANDUM OF DECISION AND ORDER

In 2005, several individual plaintiffs and organizations commenced a lawsuit against the County of Nassau, the Incorporated Village of Garden City, and the Garden City Board of Trustees. Briefly, the Plaintiffs allege that the Defendants discriminatorily re-zoned two parcels of Nassau County-owned land that were located in Garden City to prevent the building of low- and middle-income housing on that site. The Plaintiffs further allege that this decision was part of a long-standing racially discriminatory policy maintained by the Defendants. Based on these allegations, the Plaintiffs assert claims pursuant to the Fair Housing Act ("FHA"), 42 U.S.C. § 3601 et seq.; 42 U.S.C. § 1981; 42 U.S.C. § 1982; 42 U.S.C. § 1983; and 42 U.S.C. § 2000d et seq. In response, the Defendants deny any wrongdoing, and assert that they have no racially discriminatory policies. Currently, only the Incorporated Village of Garden City and the Garden City Board of Trustees remain as defendants.

The matter is scheduled for a bench trial beginning on June 17, 2013. Presently before the Court is the Plaintiffs' motion to amend the Joint Pretrial Order ("JPTO") in two respects: (1) to supplement the Plaintiffs' list of trial witnesses by adding Lauren Davies, Sheila DiMasso, Kenneth Drummond, and Arnold Greene, and by reserving the right to call as witnesses any witnesses listed or called by the Defendants; and (2) to add a small number of documents to the Plaintiffs' list of trial exhibits. For the reasons set forth below, this motion is granted.

I. BACKGROUND

The JPTO in this matter was filed on December 4, 2012. (See Docket Entry No. 331.) Included as part of the JPTO were four nonparty individuals that the Defendants placed on the Witness List----Donna Armieri ("Armieri"), Gail Madigan ("Madigan"), Paul Ortton ("Ortton"), and Andrew Smith ("Smith"). According to the Defendants, these potential witnesses were included because their comments at public hearings were cited by the Plaintiffs' expert in his report, or were cited by this Court in its February 15, 2012 Order denying the Village's motion for summary judgment.

However, the Plaintiffs had not had the opportunity to depose Armieri, Madigan, Ortton, or Smith. Accordingly, at the December 6, 2012 pretrial conference before this Court, the Plaintiffs requested the right to depose these four individuals based upon their inclusion in the JPTO. The Court granted their request. At the time, the Plaintiffs did not specifically request the ability to add their own witnesses or conduct any additional depositions beyond those of Armieri, Madigan, Ortton, and Smith. However, on January 24, 2013, the Plaintiffs noticed the deposition by subpoena of four additional individuals----Lauren Davies ("Davies"), Shelia DiMasso ("DiMasso"), Kenneth Drummond ("Drummond"), and Arnold Greene ("Greene"). Presumably, the Plaintiffs either misunderstood the Court's oral rulings at the pretrial conference, or otherwise relied upon a non-authoritative minute entry that mistakenly stated that "every new witness for any side, will be deposed." (Docket Entry No. 333) (emphasis added). In any event, depositions for individuals that were not listed as potential witnesses in the JPTO had not been considered or ruled on by this Court at that time. For this reason, on February 5, 2013, the Court granted the Defendants' letter motion to quash these four subpoenas pursuant to Federal Rule of Civil Procedure 45(c)(3). To be clear, this ruling did not reflect the Court's view on the relevant issue----whether the Plaintiffs may amend their pretrial order at this stage of the litigation to include additional witnesses. Rather, the ruling reflected the Court's opinion that the Plaintiffs would not be permitted to depose non-party individuals that had not been identified at the pretrial conference as potential witnesses for the trial. That previous viewpoint does not foreclose or affect the Court's consideration of the instant motion.

On March 6, 2013, the Plaintiffs filed a motion to amend the JPTO in two respects: (1) to supplement the Plaintiffs' list of trial witnesses by adding Lauren Davies, Sheila DiMasso, Kenneth Drummond, and Arnold Greene, and by reserving the right to call as witnesses any witnesses listed or called by the Defendants; and (2) to add a small number of documents to the Plaintiffs' list of trial exhibits. The Defendants filed an opposition to this motion on March 19, 2013. On March 26, 2013, the Plaintiffs filed a reply.

II. DISCUSSION

A. Legal Standard

A motion to amend a pretrial order is governed by Rule 16(e) of the Federal Rules of Civil Procedure. This provision states that "[t]he court may modify the [pretrial] order issued after a final pretrial conference only to prevent manifest injustice." Fed. R. Civ. P. 16(e) (emphasis added). However, despite this language, the relevant precedent in the Second Circuit makes it apparent that "a district court has significant discretion in determining how to apply this directive." Helena Assocs., LLC v. EFCO Corp., No. 06 Civ. 0861, 2009 WL 2355811, at *2 (S.D.N.Y. July 29, 2009); see, e.g., Henry v. Department of Transp., 69 Fed. App'x. 478, 481 (2d Cir. 2003) ("The decision to permit amendment of the proposed joint pretrial order rests within the discretion of the Court and should be granted when 'the interests of justice make such a course desirable.'") (quoting Madison Consultants v. Federal Deposit Ins. Corp., 710 F.2d 57, 62 n.3 (2d Cir. 1983)); HBE Leasing Corp. v. Frank, 22 F.3d 41, 45 (2d Cir. 1994) ("A trial court is given broad discretion in managing a trial, and this discretion includes a certain amount of latitude to deviate from the terms of the pretrial order." (internal citations omitted)); Clark v. Pennsylvania R.R. Co., 328 F.2d 591, 594 (2d Cir. 1964) ("[I]t is a fundamental principle of pre-trial that this procedure be flexible, with power reserved to the trial judge to amend the order or permit a departure from strict adherence to the pre-trial statements of either party, when the interests of justice make such a course desirable."); Santrayll v. Burrell, No. 91 Civ. 3166, 1998 U.S. Dist. LEXIS 586, at *7--8 (S.D.N.Y. Jan. 22, 1998) ("'Motions to reopen or to modify a pre-trial order are addressed to the sound discretion of the trial judge.'" (quoting Bradford Trust Co. v. Merrill Lynch Fierce, Fenner, and Smith, Inc., 805 F.2d 49, 52 (2d Cir. 1986))). "As the commentary to Rule 16(e) notes, although 'pretrial orders should not be changed lightly[,] . . . total inflexibility is undesirable.'" Cross & Cross Properties, Ltd. v. Everett Allied Co., 886 F.2d 497, 503 (2d Cir. 1989). Thus, the Second Circuit "review[s] a trial court's decision to amend or modify a pretrial order for abuse of discretion." Potthast v. Metro--North R.R. Co., 400 F.3d 143, 153 (2d Cir. 2005) (citing RAPCO, Inc. v. Comm'r, 85 F.3d 950, 953 (2d Cir. 1996); Dunlap--McCuller v. Riese Org., 980 F.2d 153, 158 (2d Cir. 1992)); see also Laguna v. America Export Isbrandtsen Lines, Inc., 439 F.2d 97, 101-02 (2d Cir. 1971) ("We have not viewed . . . modification [of proposed pretrial orders] with hostility.").

To determine whether amendment of a pretrial order is appropriate, a court should balance "the need for doing justice on the merits between the parties (in spite of the errors and oversights of their attorneys) against the need for maintaining orderly and efficient procedural arrangements." Laguna v. Am. Export Isbrandsten Lines, Inc., 439 F.2d 97, 101 (2d Cir. 1971) (quoting 3 J. Moore, Federal Practice & Procedure ¶ 16.20 at 1136 (3d ed. 1968)). "The principal consideration is the degree of prejudice faced by the respective parties." Encyclopedia Brown Prods. V. Home Box Office, Inc., No. 91 Civ. 4092, No. 93 Civ. 1307, 1999 WL 126460, at *2 (S.D.N.Y. March 10, 1999).

The Second Circuit has recently set forth the relevant factors to consider in determining whether a pretrial order should be amended:

(1) the prejudice or surprise in fact to the opposing party; (2) the ability of the party to cure the prejudice; (4) the extent of disruption of the orderly and efficient trial of the case; and (4) the bad faith or willfulness of the non-compliance party. Prejudice to the party seeking amendment or modification of the order is also relevant, as a trial court should not refuse to modify a pre-trial order where manifest injustice will result.

Potthast v. Metro-North R.R. Co., 400 F.3d 143, 153 (2d Cir. 2005) (citing RAPCO, Inc. v. Comm'r, 85 F.3d 950, 953 (2d Cir. 1996)); see id. at 156 (reaffirming the need for district courts to allow flexibility in allowing revisions to pretrial orders); Vogelfang v. Riverhead Cnty. Jail, No. 04 Civ. 1727, 2012 WL 1450560, at *11 (E.D.N.Y. Apr. 19, 2012). The overarching principle in this regard is that "Rule 16 was not intended to function as an inflexible straitjacket on the conduct of litigation or to produce an abstract, perfect equivalence between the pretrial papers and the course of litigation; instead, it was intended to insure the efficient resolution of cases and, most importantly, minimize prejudicial surprise." Lamborn v. Dittmer, 873 F.2d 522, 527 (2d Cir. 1989).

However, it must be kept in mind that "though 'a court may permit the pretrial order to be amended when the danger of surprise or prejudice to the opposing party is small and a failure to amend might result in an injustice to the moving party . . . if the evidence or issue was within the knowledge of the party seeking modification at the time of the [pretrial] conference . . . then it may not be allowed.'" Potthast, 400 F.3d at 153 (quoting 6A Wright & Miller, Federal Practice and Procedure § 1527 (2d ed.1990)) (alterations in original); see also Katt v. City of N.Y., 151 F. Supp. 2d 313, 346 (S.D.N.Y. 2001) ("Finding a waiver pursuant to Rule 16(e) is particularly appropriate where . . . a party knew or should have known of an issue . . . yet failed to raise the issue either in a pretrial order or at the final pretrial conference." (emphasis in original)). A final pre-trial order "is not to be changed lightly . . . [and][t]hat which is not alleged in the Pre--Trial Order is generally deemed waived." Commerce Funding Corp. v. Comprehensive Habilitation Services, Inc., No. 01 Civ. 3796, 2005 WL 1026515, at * 6 (S.D.N.Y. May 2, 2005).

To elaborate on the notion of prejudice in this context, when a court evaluates whether prejudice to the opposing side will flow from allowing amendment, the Court must consider "whether the amendment is sought in the midst of trial or on the eve of trial." Finnish Fur Sales Co. Ltd. v. Furs Unlimited, Inc., No. 89 Civ. 6284, 1992 U.S. Dist. LEXIS 2390, at *3 (S.D.N.Y. Mar. 4, 1992) (internal citations omitted). "However, because the primary purpose of Rule 16 is to minimize prejudicial surprise during trial, . . . even an amendment sought at the last minute due to the movant's lack of diligence may be allowed if it does not significantly prejudice the opposing party." Helena, 2009 WL 2355811, at *3; see, e.g., Finnish Fur., 1992 U.S. Dist. LEXIS 2390, at *4 (allowing an amendment to a party's factual allegations in the pre-trial order at "the eleventh hour" where party's lack of diligence was balanced against the absence of any significant prejudice to the opposing party).

In sum, a trial court will typically amend the pretrial order when "no substantial injury will be occasioned to the opposing party, the refusal to allow the amendment might result in injustice to the movant, and the inconvenience to the court is slight." SEC v. U.S. Envtl., Inc., No. 94 Civ. 6608, 2002 U.S. Dist. LEXIS 19839, at *4 ...


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