United States District Court, S.D. New York
OPINION AND ORDER
NELSON S. ROMN, District Judge.
Before the Court is a motion for reconsideration from Defendant United States of America (the "Government") of this Court's Opinion and Order of May 14, 2014, which granted in part and denied in part the Government's motion to dismiss. (Docket No. 44 or the "May Order"). Familiarity with the May Order is assumed. The Court dismissed all claims against Defendant Catherine Pena and dismissed all but plaintiffs' claims of malicious prosecution and loss of consortium against the Government. The Government moved for reconsideration of the Court's Opinion and Order on May 30, 2014. The Government contends that the Court erred in denying the Government's motion to dismiss Plaintiffs' malicious prosecution claim.
STANDARD ON A MOTION TO RECONSIDER
Motions for reconsideration are governed by Local Civil Rule 6.3 and Fed. Rule Civ. P 60(b). The standard for granting a motion for reconsideration pursuant to Local Rule 6.3 is strict. Targum v. Citrin Cooperman & Company, LLP, 2013 WL 6188339, at *1 (S.D.N.Y. Nov. 25, 2013). They are "addressed to the sound discretion of the district court[.]" Mendell ex rel. Viacom, Inc. v. Gollust, 909 F.2d 724, 731 (2d Cir. 1990). A motion to reconsider "is not a vehicle for... presenting the case under new theories... or otherwise taking a second bite at the apple....'" Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012) (quoting Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998); see also Nat'l Union Fire Ins. Co. of Pittsburgh, PA v. Stroh Cos., 265 F.3d 97, 115 (2d Cir. 2001) (in moving for reconsideration, "a party may not advance new facts, issues, or arguments not previously presented to the Court.'") (quoting Polsby v. St. Martin's Press, 2000 WL 98057, at *1 (S.D.N.Y. Jan. 18, 2000) (Mukasey, J.)). They "will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked.'" Analytical Surveys, 684 F.3d at 52 (quoting Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995)). Reconsideration of a Court's previous order is "an extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources." In re Initial Pub. Offering Sec. Litig., 399 F.Supp.2d 298, 300 (S.D.N.Y. 2005) (internal citation and quotation omitted), aff'd sub nom. Tenney v. Credit Suisse First Boston Corp., Nos. 05 Civ. 3430, 05 Civ. 4759, & 05 Civ. 4760, 2006 WL 1423785, at *1 (2d Cir. 2006).
I. Basis for Denying the Government's Prior Motion to Dismiss Malicious Prosecution Claim
The Court's May Order permitted plaintiffs' claim of malicious prosecution and the attendant claim of loss of consortium to survive. The May Order analyzed Quinoy's Bivens claim against the Government for malicious prosecution under the Federal Tort Claims Act. The Court denied the Government's motion to dismiss Quinoy's malicious prosecution claim because the Court found questions of fact as to "whether and how Pena motivated the prosecution." May Order at 19. Specifically, the Court was unable to "make factual determinations as to grand jury testimony and the contents of 1D-4." Id. Such questions pertain to both the elements of lack of probable cause and actual malice requisite to a claim for malicious prosecution, id. at 15, and whether the malicious prosecution claim is barred because control of the prosecution has passed to the prosecutor, id. at 18.
The Government asks the Court to reconsider its decision in light of, among other factors, a recent Second Circuit decision dated May 16, 2014. The Government argues that the decision contradicts this Court's analysis of Rehberg immunity and its application to the instant case. Specifically, the Government says that the new decision bars any theory of liability arising from Pena's alleged false grand jury testimony. Mem. of Law in Supp. of Def. United States of America's Mot. for Recons. ("Govt. Br. in Supp. of Mot. for Recons.") at 7-9.
After this Court issued the May Order, the Second Circuit decided Morales v. City of New York, 752 F.3d 234, 237, 2014 WL 1978764, at *2 (2d Cir. May 16, 2014), finding that a federal agent was entitled to absolute immunity from Bivens liability for his alleged false grand jury testimony. Morales explicitly extends absolute immunity to a defendant federal agent's grand jury testimony in a Bivens suit. Id. ("In Rehberg v. Paulk, ___ U.S. ___, 132 S.Ct. 1497, 182 L.Ed.2d 593 (2012), the Supreme Court held that a grand jury witness was entitled to absolute immunity in a § 1983 action based on his grand jury testimony. Id. at 1506. We have since applied Rehberg to actions under § 1983 and the Federal Tort Claims Act, but not yet to a Bivens action. See Marshall v. Randall, 719 F.3d 113 (2d Cir. 2013); Vidro v. United States, 720 F.3d 148 (2d Cir. 2013). We now hold that [defendant] is entitled to absolute immunity from Bivens liability for his grand jury testimony.")
Although Morales was decided after the May Order, "[t]he general rule of long standing is that judicial precedents normally have retroactive as well as prospective effect.'" Kremer v. Chemical Const. Corp., 623 F.2d 786, 788 (2d Cir. 1980) (quoting National Association of Broadcasters v. FCC, 554 F.2d 1118, 1130 (D.C. Cir. 1976). Morales constitutes a change in law sufficient to warrant reconsideration of the Court's determination that Pena could not claim immunity for allegedly false grand jury testimony. The FTCA provides that "the United States shall be entitled to assert any defense based on judicial or legislative immunity which otherwise would have been available to the employee of the United States whose act or omission gave rise to the claim." 28 U.S.C. § 2674. The Court reconsiders the May Order, now foreclosing plaintiffs' theory of malicious prosecution based on allegedly false grand jury testimony and thus more narrowly construing plaintiffs' malicious prosecution claim.
However, Morales has no effect on the potential liability arising from Pena's alleged destruction of exculpatory evidence on 1D-4. The Court's inability to determine questions as to "the contents of 1D-4" at the pleading stage is a factor contributing to its decision not to dismiss the malicious prosecution charge. May Order at 19. The destruction of 1D-4 may be enough to show that Pena exerted control over the prosecution, implicating malicious prosecution. Given the "factual determinations" that the Court cannot make at the pleadings stage, the destruction of 1D-4 is potentially sufficient to show that Pena tainted the grand jury indictment. The Court finds that even without Pena's alleged false testimony, Pena's intentional destruction of evidence raises a potential malicious prosecution claim. The malicious prosecution claim still survives, albeit based only on Pena's destruction of evidence.
In the State of New York, the success of a claim for malicious prosecution under Bivens depends upon proof of each of the following elements: "(1) the initiation or continuation of a criminal proceeding against plaintiff; (2) termination of the proceedings in plaintiff's favor; (3) lack of probable cause for commencing the proceeding; and (4) actual malice as a motivation for defendant's actions." Manganiello v. City of New York, 612 F.3d 149, 160-61 (2d Cir. 2010); see May Order at 15. The May Order found that the first two required elements (initiation of a criminal proceeding and termination of the proceeding in the plaintiff's favor) were satisfied. With regard to the third element, the Court observed that "[b]ased on a review of the evidence submitted, Quinoy has not met the heavy burden of rebutting the presumption of probable cause [created by a grand jury indictment]." Id. at 17. The Court did not explicitly address whether Quinoy adequately plead actual malice. See Id. at 17 (observing only that "Plaintiffs' pleading of actual malice is limited to Pena"). Nevertheless, the Court found that questions of fact remained as to "whether and how Pena motivated the prosecution" and concluded that the malicious prosecution claim against the Government should survive the motion to dismiss. Id. at 19.
The Court's decision was based on its inability to resolve factual issues surrounding Agent Pena's destruction of the contents of 1D-4, which bears on probable cause and actual malice. Id. Plaintiffs speculate that Pena falsely testified before the grand jury, and that the indictment was the product of that testimony. Am. Compl. at ¶¶ 5, 43. Defendants counter that such speculation is mere conjecture and does not state a claim. Pena Reply at 2. In addition, Plaintiffs speculate that the destroyed conversation on 1D-4 contained exculpatory information provided by Officer D'Alessandro refuting the allegation that Quinoy used excessive force during the Gomez arrest. Am. Compl. ¶¶ 63-64. The Government responds that there is no harm caused by the loss of 1D-4 because the grand jury heard D'Alessandro testify on September 15, 2008 "that Jose Quinoy did not kick Gomez during the Gomez arrest." While Plaintiffs may not ultimately prove their malicious prosecution claim on ...