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Col v. Rice

United States District Court, E.D. New York

May 7, 2014

ROBERT J. DEL COL, ESQ. and LEFTHERIS

MEMORANDUM & ORDER

MARGO K. BRODIE, District Judge.

Plaintiffs Robert J. Del Col, Esq. and Leftheris "Ted" Doukas filed the above-captioned action against Defendants on October 21, 2011. On November 1, 2013, Michael Trimarco and Beth Trimarco (collectively "the Trimarcos") submitted a letter to the Court requesting permission to intervene as plaintiffs in the case. (Docket Entry No. 178, "Letter dated November 1, 2013").) On November 5, 2013, the Court referred the motion to Magistrate Judge William D. Wall for a report and recommendation. On November 18, 2013, Judge Wall issued a report and recommendation ("R&R") recommending that the Court deny the proposed motion to intervene. (Docket Entry No. 187.) The Trimarcos filed an objection and the Court granted them leave to submit a proposed complaint and any papers, in accordance with Rule 24(c) of the Federal Rules of Civil Procedure, stating the specific grounds for intervention and the claims or defenses for which intervention is sought, along with any additional briefing they wished the Court to consider to supplement their objection to the R&R from Judge Wall. (Order dated January 24, 2014.) The Trimarcos submitted supplemental materials, including a proposed complaint on February 7, 2014. (Docket Entry No. 208.) On April 24, 2014, the Trimarcos filed an ex parte motion for protective order and motion for leave to file a "Third Party Complaint-in-Intervention." (Docket Entry No. 218.) For the reasons set forth below, the Court adopts Judge Wall's R&R in its entirety and denies the motion to intervene.

I. Background

The Court assumes familiarity with the underlying facts of this case, which are set forth in greater detail in the Court's Memorandum and Order of December 18, 2012, granting in part and denying in part Defendants' motion to dismiss the Complaint. See Del Col v. Rice, No. 11-CV-5138, 2012 WL 6589839 (E.D.N.Y. Dec. 18, 2012), adhered to on reconsideration, No. 11-CV-5138, 2013 WL 4052867 (E.D.N.Y. Aug. 12, 2013). The Court summarizes the relevant facts here.

Plaintiffs allege that they were arrested as part of a "pay to prosecute" conspiracy between the Data Treasury Corporation ("DTC"), Claudio Ballard, an officer of DTC, Shepard Lane, General Counsel for DTC, and Keith DeLucia, the Chief Executive Officer and majority shareholder of DTC, (collectively the "DTC Defendants"), Kathleen Rice, the District Attorney of Nassau County, Guido Gabriele III, a former Assistant District Attorney, Linda Peress, the Bureau Chief of the Nassau County District Attorney's Office, John and Jane Doe, assistant District Attorneys working for the Nassau County District Attorney's Office, John and Jane Doe, District Attorney Detective Investigators, and John and Jane Doe, Nassau County Police Officers (collectively the "Nassau County Defendants"), and Richard Friedman, an attorney who represented the DTC Defendants in a patent litigation. Del Col, 2012 WL 6589839, at *1.

According to the Complaint, Doukas was part of a joint venture with Ballard in 1994 and 1995, which led to the development of a valuable patent that was later assigned to DTC. Id. at *2. Doukas was not aware of the development of the patent until he had a conversation with Del Col in April 2009, while Del Col was representing Doukas in a divorce action and other state actions. (Compl. ¶¶ 91-93.) According to the Trimarcos, at that time, Del Col was also representing Michael Trimarco, in a breach of contract claim against DTC in the Supreme Court of New York, Suffolk County. Del Col, 2012 WL 6589839, at *2; Compl. ¶¶ 84-86; see also Trimarco v. Data Treasury Corp., No. 30324-2003, 2013 WL 7231013, (N.Y. Sup.Ct. 2013) ("the Trimarco litigation"). The Trimarco litigation alleged a breach of the terms of contract granting options to Michael Trimarco in October 2002, when Michael Trimarco joined DTC as its Chief Operating Officer.[1] (Compl. ¶ 85.) Upon learning of Doukas' role in the development of the technology that was later patented by Ballard and assigned to DTC, Del Col discussed Doukas' potential claims against DTC in a June 2009 filing in the Trimarco litigation. Del Col, 2012 WL 6589839, at *2. Shortly thereafter, according to Plaintiffs, Ballard and Lane began contributing to Rice's political committees. ( Id. ) On November 20, 2009, Del Col sent a letter on behalf of Doukas to Friedman, an attorney for DTC in the Trimarco litigation, indicating that his client Doukas wished to "discuss a pre-commencement settlement" of his claim with respect to the DTC patent. ( Id. )

In late December 2009 or early January 2010, Gabriele left his position at the Nassau County District Attorney's office and was appointed by Rice to serve as a Special Prosecutor. ( Id. ) On February 9, 2010, Gabriele secured a grand jury indictment against Del Col and Doukas for grand larceny in the second degree for the alleged extortion of the DTC Defendants. ( Id. ) Later that same day, Friedman, Ballard and Lane met with Del Col and Doukas, provided them with a check for $75, 000 as in initial settlement payment, and agreed to execute a settlement agreement for an additional $325, 000 in future payments. ( Id. at *3.) In exchange, Doukas agreed to sign an affidavit stating that he knew nothing about the ownership of DTC's patents. ( Id. ) As they left the meeting, Plaintiffs were arrested pursuant to the grand jury indictment and incarcerated for two nights. ( Id. )

On October 22, 2010, the Nassau County Court dismissed the indictment against Plaintiffs, finding that Rice had no authority to appoint Gabriele as a Special Assistant District Attorney. See People v. Del Col et. al., Ind. No. 313N-10, slip op. (Oct. 26, 2010). The court gave the District Attorney's Office leave to present the matter to a new grand jury within 45 days of the dismissal. ( Id. ) The District Attorney's Office appealed the dismissal and the Appellate Division affirmed the dismissal. See People v. Del Col, 930 N.Y.S.2d 488 (App. Div. 2011).

Plaintiffs filed this action on October 21, 2011, alleging unlawful search and seizure, abuse of process, conspiracy to violate federally protected rights, conspiracy to obstruct justice, manufacture of false evidence, malicious prosecution, intentional infliction of emotional distress, negligent infliction of emotional distress, New York constitutional tort, negligence, false arrest and false imprisonment claims pursuant to 42 U.S.C. § 1983, 42 U.S.C. § 1985, and New York state common law. At oral argument on July 26, 2012, the Court granted Defendants' motions to dismiss Plaintiffs' claims for the manufacture of false evidence, intentional infliction of emotional distress, negligent infliction of emotional distress, New York constitutional tort and negligence, and denied the motion to dismiss the search and seizure claim against the Nassau County Defendants. (Minute Entry dated July 26, 2012); see also Del Col, 2012 WL 6589839, at *2 n.3. By Memorandum and Order dated December 18, 2012, the Court dismissed the malicious prosecution claim as to the Nassau County Defendants, and the false imprisonment and false arrest claims as to all Defendants. Del Col, 2012 WL 6589839, at *15. The Court denied the motions to dismiss the conspiracy and abuse of process claims as to all Defendants and the malicious prosecution claim as to the DTC Defendants and Friedman. ( Id. )

On January 4, 2013, Judge Daniel Martin of the Suffolk County Supreme Court barred the Nassau County Defendants from seeking another indictment against Plaintiffs based on their failure to timely present the evidence against Plaintiffs to another grand jury. Del Col v. Rice, No. 21193-12, slip op. at 5 (N.Y. Sup.Ct. Jan. 4, 2013); see Del Col v. Rice, No. 11-CV-5138, 2013 WL 4052867, at *4 (E.D.N.Y. Aug. 12, 2013). The Defendants answered the Complaint on January 31, 2013. (Docket Entry No. 135.)

On November 1, 2013, the Trimarcos filed a letter with the Court seeking leave to become intervenor-Plaintiffs in the case, claiming that their civil rights have been violated by Defendants, that they have been deprived of the right to effective counsel, and that the arrest and indictment of Plaintiffs "have been brought up continually to discredit us and our legal team." (Docket Entry No. 178 at 1.) The matter was referred to Judge Wall, and the DTC Defendants, the Nassau County Defendants, Friedman and Del Col each submitted responses in opposition to the motion to intervene. (Docket Entry Nos. 180-185.) Judge Wall recommended that the Court deny the Trimarcos' motion. (Docket Entry No. 187.) The Trimarcos objected on the ground that their initial letter to the Court merely sought leave to move to intervene, and that they had not had the opportunity to submit a formal proposed intervenor-complaint. (Docket Entry No. 188.) The Court granted leave to the Trimarcos to submit a proposed complaint and any papers, in accordance with Rule 24(c) of the Federal Rules of Civil Procedure, stating the specific grounds for intervention and the claim or defense for which intervention is sought, along with any additional briefing they would like the Court to consider. (Order dated January 24, 2014.)

On February 7, 2014, the Trimarcos submitted a formal motion to intervene, (Docket Entry No. 208, ("Intervenor Compl.")), and provided a supplemental letter on March 17, 2014, (Docket Entry No. 210). The Trimarcos also moved for inclusion in the proposed protective order concerning the grand jury minutes in this case, moved to strike "prejudicial characterattack references" by DTC in their opposition papers, and moved to sanction DTC and its attorneys "for submitting such prejudicial matter." (Intervenor Compl. 1-2.)

II. Discussion

a. Standard of Review

i. Report and Recommendation

A district court reviewing a magistrate judge's recommended ruling "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). When a party submits a timely objection to a report and recommendation, the district court reviews the parts of the report and recommendation to which the party objected under a de novo standard of review. 28 U.S.C. § 636(b)(1)(C); see also Larocco v. Jackson, No. 10-CV-1651, 2010 WL 5068006, at *2 (E.D.N.Y. Dec. 6, 2010). The district court may adopt those portions of the recommended ruling to which no timely objections have been made, provided no clear error is apparent from the face of the record. 28 U.S.C. § 636(b)(1)(C); see also Larocco, 2010 WL 5068006, at *2. The clearly erroneous standard also applies when a party makes only conclusory or general objections, or simply reiterates its original arguments. See Rahman v. Fischer, No. 10-CV-1496, 2014 WL 688980, at *1 (N.D.N.Y. Feb. 20, 2014) ("If no objections are made, or if an objection is general, conclusory, perfunctory, or a mere reiteration of an argument made to the magistrate judge, a district court need review that aspect of a report-recommendation only for clear error." (citations omitted)); Time Square ...


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