United States District Court, S.D. New York
HEATHER CARPENTER and JULIO JOSE JIMENEZ-ARTUNDUAGA, Plaintiffs,
THE CITY OF NEW YORK, CHIEF OF DEPARTMENT JOSEPH J. ESPOSITO, CHIEF OF PATROL JAMES P. HALL, SGT. ROBERT BYRNE, SGT. CHRISTOPHER NEWSOM, SGT. RODRIGUEZ, and SGT. PATRICK WRIGHT, Defendants.
Ronald L. Kuby, and Leah Marielle Busby, Law Office of Ronald L. Kuby, New York, NY, for Plaintiffs.
Andrew Lucas, Assistant Corporation Counsel of the City of New York, New York City Law Department. New York, NY, for Defendants.
MEMORANDUM ORDER AND OPINION
DENISE COTE, District Judge.
The plaintiffs Heather Carpenter ("Carpenter") and Julio Jose Jimenez-Artunduaga ("Jimenez") in this Section 1983 case have moved for an entry of partial judgment pursuant to Rule 54(b), Fed.R.Civ.P. Through an Opinion of November 27, 2013 ("Opinion"), summary judgment was granted in part to the defendants. Carpenter v. City of New York, 11 Civ. 8414 (DLC), 2013 WL 6196968 (S.D.N.Y. Nov. 27, 2013). The defendants have moved for certification of an interlocutory appeal of the remaining claims in this case pursuant to 28 U.S.C. § 1292(b). For the reasons stated below, both motions are denied.
On November 21, 2011, Carpenter and Jimenez filed this action pursuant to 42 U.S.C. § 1983 seeking compensatory and punitive damages against the City of New York ("City") and various police officers. All of the plaintiffs' claims arise out of an October 15, 2011 protest organized by a group known as Occupy Wall Street, during which the plaintiffs were arrested for criminally trespassing in a Manhattan Citibank branch. The plaintiffs contend that the defendants violated their Fourth Amendment rights by falsely arresting them and using excessive force in the course of those arrests.
On November 27, 2013, the Opinion dismissed the false arrest claims because undisputed evidence established that the arresting officers had probable cause to believe that the plaintiffs committed the crime of criminal trespass. The excessive force claims against the individual defendants survived because the plaintiffs' allegations raised issues of fact that may only be resolved by a jury. The claims against the City, however, were dismissed because the plaintiffs failed to present evidence to establish Monell liability as to the surviving excessive force claims. The excessive force claims against the individual defendants are scheduled to be tried in March 2014.
On January 13, 2014, the plaintiffs moved for an entry of partial judgment pursuant to Rule 54(b), Fed.R.Civ.P., so that they might appeal the dismissal of their false arrest claims and the dismissal of the City as a defendant. On January 17, the defendants moved for certification of an interlocutory appeal pursuant to 28 U.S.C. § 1292(b) so that they might appeal the denial of summary judgment as to the excessive force claims against the individual defendants. A scheduling order of January 6 stated that any opposition to the motions was due by January 31 and any reply by February 7. No oppositions were filed on January 31, and thus the motions were fully submitted as of that date.
I. Defendants' Section 1292(b) Motion
Defendants seek certification of an interlocutory appeal on the surviving excessive force claims against the individual defendants pursuant to 28 U.S.C. § 1292(b). Section 1292(b) provides in relevant part:
When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order.
28 U.S.C. § 1292(b) (emphasis added); see Casey v. Long Island R. Co. , 406 F.3d 142, 146 (2d Cir. 2005) (noting that Section 1292(b) "imposes both procedural and substantive requirements on a would-be appellant").
Section 1292(b) is to be narrowly construed, as "the power to grant an interlocutory appeal must be strictly limited to the precise conditions stated in the law." Klinghoffer v. S. N.C. Achille Lauro , 921 F.2d 21, 25 (2d Cir. 1990) (citation omitted). Certification is thus appropriate only in the narrow class of cases in which "an intermediate appeal may avoid protracted litigation." Koehler v. Bank of Bermuda Ltd. , 101 F.3d 863, 866 (2d Cir. 1996). "[O]nly exceptional circumstances will justify a departure from the basic policy of postponing ...