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distinguishing cases involving Monell claims because Monell claims "provid[e] an essential nexus between otherwise unrelated allegations of civil rights violations by individual officers"
Summary of this case from Springle v. City of N.Y.Opinion
10 Civ. 6622 (DAB) (JLC)
12-12-2012
SYLVESTER TWINE, Plaintiff, v. FOUR UNKNOWN NEW YORK POLICE OFFICERS, Defendants.
REPORT AND RECOMMENDATION
JAMES L. COTT, United States Magistrate Judge.
To The Honorable Deborah A. Batts, United States District Judge:
Pro se Plaintiff Sylvester Twine brings this action under 42 U.S.C. § 1983 against New York City Police Detectives Ronald Castro ("Castro") and Kevin Cannon ("Cannon") (collectively, "the Detectives") seeking compensatory and punitive damages. Twine alleges that Castro and Cannon violated his civil rights by subjecting him to false arrest and malicious prosecution for grand larceny and burglary. The Detectives have moved to dismiss the amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure on the basis that Twine's claims are precluded by a contractual release Twine signed in another case, and in the alternative, are barred by New York's three-year statute of limitations for personal injury claims. For the reasons set forth below, I recommend the Court grant the Detectives' motion as to Twine's false arrest claim and deny the motion as to Twine's malicious prosecution claim.
I. BACKGROUND
The following factual background is drawn from Twine's Motion for Leave to File an Amended Complaint, dated February 19, 2012 (Dkt. No. 38), which I accept as the operative pleading and consider in the light most favorable to Twine on this motion. I also recount the procedural history of the case in some detail, as it is relevant to my discussion of the timeliness of Twine's Amended Complaint. In addition, I rely upon a Certificate of Disposition and sealed felony complaint in People of the State of New York v. Sylvester Twine, Docket No. 2007NY054052, and portions of the record in Twine v. Vizcarrondo, et ano., No. 09 Civ. 573 (JBW) (LB) (E.D.N.Y.) ("Twine I"), which are properly considered on this motion to dismiss, as discussed infra.
Twine provided the full text of the Amended Complaint in his Motion for Leave to File an Amended Complaint, dated February 19, 2012. (Dkt. No. 38). Thereafter, in an April 24, 2012 letter to the Court, Twine clarified that his motion was "also the amended complaint," and requested the Court accept it as such. (Dkt. No. 56 (bold font in original)). The Office of the Corporation Counsel, which agreed to accept service of the amended complaint on behalf of the Detectives, was served with Twine's Motion for Leave to File an Amended Complaint, and has treated it as the operative complaint for the purposes of this motion to dismiss. (See Letter from Assistant Corporation Counsel Morgan Kunz to Judge Cott, dated Mar. 21, 2012 (undocketed); Certificate of Service, dated Feb. 19, 2012 (Dkt. No. 38); Memorandum of Law in Support of Defendants' Motion to Dismiss, dated Apr. 13, 2012 ("Defs.' Mem.") at 2 n.1 & 13 n.5 (Dkt. No. 45)). Accordingly, I accept Twine's Motion for Leave to File an Amended Complaint as the operative Amended Complaint ("Amended Complaint" or "Am. Compl."), vacate the Order at docket number 43 insofar as it required Twine to file any further amended complaint, and deem the Detectives to have been served with the Amended Complaint as of February 27, 2012.
A. Underlying Facts Giving Rise to Twine's Claims
According to Twine, on July 17, 2007, two plain-clothed New York City police officers arrested him without a warrant as he was being released from a Queens County courtroom on unrelated charges. (Am. Compl. ¶¶ 1-2). The officers drove Twine to a precinct in Manhattan, where he was placed in a holding room, still handcuffed. (Id. ¶¶ 3-5). After approximately one hour, the Detectives entered the holding cell, removed the handcuffs, and began to question Twine about a burglary, about which Twine denied any knowledge. (Id. ¶¶ 6-8). The Detectives then made Twine stand in a lineup with four unknown black men and told him they had a confidential informant who would identify him as a participant in the burglary. (Id. ¶¶ 9-16). After the lineup, the Detectives told Twine that the informant had not identified him, but declined Twine's requests to be released, and told him instead that he would be booked and "put through the system." (Id. ¶¶ 17-18). Twine complained that he should be free to leave if the witness did not identify him in the lineup, but Detective Castro said, "explain it to the judge." (Id. ¶¶ 19-20). Twine was then transferred to Central Booking at 100 Centre Street for arraignment and taken into the custody of the New York County Jail, where he spent five or six days. (Id. ¶ 21, First Claim for Relief ¶¶ 8-9).
In a felony complaint filed in New York City Criminal Court, Twine was charged with grand larceny in the second degree and burglary in the third degree. (Id. at First Claim for Relief ¶ 1; see also Declaration of Uriel B. Abt in Support of Motion to Dismiss, dated April 16, 2012 ("Abt Decl."), Ex, B (Certificate of Disposition) (Dkt. No. 49-2), Ex. F (sealed Felony Complaint) (Dkt. No. 49-6)). When Twine's lawyer argued at arraignment that Twine had not been identified in the lineup, the Assistant District Attorney assigned to the case informed the judge that there was no proof of a lineup. (Am. Compl. ¶¶ 22-23). The grand jury did not indict Twine, and the Assistant District Attorney later "admitted [Twine] was not [identified] in the line-up and released [him]." (Id. ¶ 25). On February 19, 2008, the charges against Twine were dismissed on speedy trial grounds. (See Certificate of Disposition (Dkt. No. 49-2)). B. The Settlement Release in Twine I
Twine's Amended Complaint alleges that the charges were dismissed on February 21, 2008. (Am. Compl. at First Claim for Relief ¶ 11). However, the Criminal Court Certificate of Disposition submitted by the Detectives, of which the Court takes judicial notice, reflects that the charges against Twine were dismissed on February 19, 2008. (See Abt Decl., Ex. B).
On December 21, 2009, Twine filed an unrelated lawsuit in the Eastern District of New York, asserting civil rights claims against New York City police detectives Damian Vizcarrondo and Brian Fitzpatrick based on an arrest for drug possession that occurred in a convenience store in Queens County in January 2007, (Abt. Decl., Ex. D (Complaint in Twine I) (Dkt. No. 49-4)). On October 25, 2010, Twine entered into a stipulation of settlement with the New York City Office of Corporation Counsel ("the City" or "Corporation Counsel"), which was representing Fitzpatrick and Vizcarrondo in Twine I, and agreed, as a condition of settlement, "to release the defendants, the City of New York, and any present or former employees and agents of the City of New York or any agency thereof, from any and all liability, claims, or rights of action which were or could have been alleged in this action[.]" (Abt. Decl., Ex. E (Stipulation of Settlement and Order of Dismissal ("Stipulation of Settlement") in Twine I) ¶ 2 (Dkt. No. 49-5)). The Stipulation of Settlement in Twine I was approved by the court on January 19, 2011, and filed on the public docket on February 4, 2011. (Id. at 3).
C. The Present Action
On August 18, 2010, while incarcerated on unrelated charges, Twine filed his original complaint in this case, alleging false arrest and malicious prosecution against "four unknown New York City police officers" based on the July 17, 2007 arrest at the Queens County Courthouse. (Complaint, dated Aug. 18, 2010 (the "Complaint" or the "original complaint") (Dkt. No. 2)). On September 23, 2010, after granting Twine's request to proceed in forma pauperis (Dkt. No. 1), the Court notified Twine that he was required to "serve the Complaint on the Defendant(s) and file proof of service with the Clerk of the Court within 120 days of the filing of the Complaint or write to the Court if [he could] demonstrate good cause for an extension before the expiration of the 120 days." (Order, dated Sept. 23, 2010 ("Rule 4(m) Order") (Dkt. No. 3) (citing Fed. R. Civ. P. 4(m)).
Although the Complaint was not filed with the Court until September 7, 2010, under the "prison mailbox rule," a pleading is considered "filed" by a pro se prisoner on the date it is given to a prison official for mailing. Houston v. Lack, 487 U.S. 266, 276 (1988). Twine's Complaint does not reflect the date it was given to prison officials for mailing, but indicates that it was signed on August 18, 2010. (Dkt. No. 2). I therefore infer that Twine gave it to prison officials that day as well. See, e.g., Peralta v. Connelly, No. 06 Civ. 5360 (DAB) (MHD), 2008 WL 8050791, at *4 n.6 (S.D.N.Y. Apr. 18, 2008).
Rule 4(m) states, in relevant part: "If 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 must extend the time for service for an appropriate period." Fed. R. Civ. P. 4(m).
1. Twine's Request for Valentin Assistance and a Rule 4(m) Extension
On September 21, 2010, before the Rule 4(m) Order had issued, Twine sent a letter to the Court requesting assistance in ascertaining the identities of the unnamed defendants pursuant to Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997), in which the Second Circuit held that a pro se litigant is entitled to assistance from a district court in identifying a John Doe defendant. (Letter from Sylvester Twine to Judge Batts, dated Sept. 21, 2010, at 1 ("First Valentin Letter") (undocketed)). Twine stated that "[b]ecause the defendants are unknown at this time, plaintiff cannot perfect service of summons," and requested that the Court direct Corporation Counsel, "although not named as a party in this action, to answer interrogatories from plaintiff . . . solely for the purpose of ascertaining the identities and addresses of the unknown defendants." (Id.). Twine also "request[ed] a[n] extension of time to perfect service of the summon[s] if and when the identities of the officers become known and plaintiff amends the complaint." (Id.). On September 28, 2010, Twine sent another letter to the Court, explaining that "Plaintiff is currently incarcerated with limited access to documents that may help to identify the defendants in this matter," and repeated his request for Valentin assistance and for an extension of time to file an amended complaint "once the identities of the defendants are discover[ed]." (Letter from Sylvester Twine to Judge Batts, dated Sept. 28, 2010 ("Second Valentin Letter"), at 1-2 (undocketed)).
The Court did not immediately rule on Twine's Valentin request. Instead, noting that Twine's claims were based on a July 17, 2007 arrest, the Court sua sponte ordered Twine to show cause why New York's three-year statute of limitations for civil rights claims under section 1983 did not bar his August 18, 2010 Complaint. (Order to Show Cause, dated Oct. 22, 2010 (Dkt. No. 4)). On January 20, 2011, Twine filed a timely response to the Order to Show Cause and explained that his malicious prosecution claim was timely because it did not accrue when he was arrested but rather when the criminal charges against him were dismissed. (Plaintiff's Motion in Response to Order to Show Cause, dated Jan. 20, 2011 ("OSC Response" or "OSC Resp.") at 4-5 (Dkt. No. 8); Affidavit of Sylvester Twine ¶ 6) (Dkt. No. 8)). Twine also argued that his false arrest claim was timely under Covington v. City of New York, 171 F.3d 117 (2d Cir. 1999) (OSC Resp. at 3-4), but has abandoned this argument, now conceding that his false arrest claim is time-barred. (See Plaintiff's Motion in Opposition to Defendant's Motion to Dismiss, dated May 2, 2012 ("Pl.'s Opp.") at 11 (Dkt. No. 54)).
On February 9, 2011, the Court found that Twine's OSC Response "present[ed] a plausible basis that the Statute of Limitations may not bar his claims" and granted his request for Valentin assistance. (Order, dated Feb. 9, 2011 ("First Valentin Order") at 1-2 (Dkt. No, 6)). Observing that Twine could not "identify the John Doe police officers that are alleged of [sic] wrongdoing in this action" but that "the Complaint supplies sufficient information to permit the City of New York to identify the John Doe Defendants," the Court ordered Corporation Counsel, as "attorney and agent of the New York City Police Department," to identify the John Doe defendants and provide an address where they could be served. (Id. at 1-2). The Court also extended the 120-day Rule 4(m) period for serving the summons and Complaint on the defendants, and ordered Twine to file an amended complaint within 45 days after the City provided him with the identities of the Doe defendants, and thereafter to serve the amended complaint on the defendants within 45 days after the Court's issuance of an amended Rule 4 service package. (Id. at 2). The Court directed the Clerk of the Court to "forward a copy of this Order to the appropriate representative at the Corporation Counsel's office and to [Twine]." (Id. at 3).
On April 7, 2011, after the City did not identify the officers or request an extension of time by the deadline set by the Court, Twine filed an "Order to Show Cause and Default Judgment," asking the Court to order the City to show cause why a default judgment should not be entered in his favor. (Order to Show Cause, and Default Judgment, dated Apr. 7, 2011 (the "Default Judgment Request") at 2 (Dkt. No. 11)). On April 13, 2011, the Court denied the Default Judgment Request, explaining that the "Court's records indicate that the Court's Valentin Order dated February 9, 2011 . . . was never served on New York City's Corporation Counsel as directed by the Court." (Order, dated Apr. 13, 2011 ("Second Valentin Order") (Dkt. No. 10)). The Court again directed the Clerk of the Court to serve Corporation Counsel with its First and Second Valentin Orders and ordered that "[a]ll dates provided in the February 9, 2011 Order shall now begin to accrue from the date of this Order." (Id.). On April 13, 2011, the Clerk of the Court mailed copies of the First and Second Valentin Orders to Corporation Counsel.
2. Twine's First Motion for Leave to File an Amended Complaint
Two days later, on April 15, 2011, Twine notified the Court that he had determined that the identity of one of the John Doe defendants was Detective Castro and requested permission to amend the original complaint to reflect Castro's identity. (Motion for Leave to File an Amended Complaint, dated Apr, 15, 2011 (Dkt. No. 12)). On April 26, 2011, the City notified the Court that it had received the Court's Valentin Order on April 21, 2011, but that, because the charges against Twine were dismissed, "any records regarding the incident alleged in the complaint, including the city's own records, would be sealed pursuant to New York Criminal Procedure Law § 160.50." (Letter from Assistant Corporation Counsel Boris Zeldin to Judge Batts, dated Apr. 26, 2011 at 1) (Dkt. No. 13)). The City requested that Twine be directed to execute and return a release form authorizing the City to access the sealed records (the "section 160.50 release"), and that the City's time to respond to the Valentin Order be extended. (Id. at 2). On May 3, the Court endorsed the City's letter, directed Twine to provide the release by May 27, 2011, and extended the City's time to identify the Doe defendants until July 11, 2011. (Order, dated May 3, 2011 (Dkt. No. 13)).
On May 9, 2011, Judge Batts referred this case to me for general pretrial supervision and a report and recommendation regarding any dispositive motions. (Dkt. No. 14). Pending at the time was Twine's April 15 motion for leave to file an amended complaint as well as a May 5, 2011 submission from Twine entitled "Order to Compel Identity," in which Twine sought an order further compelling the "Corporation Counsel . . . to provide the identities of the unknown officers without further delays." (Dkt. No. 15). On May 17, 2011, I denied both motions without prejudice, instructed Twine to file an amended complaint only after the July 11 deadline by which the City was to identify the Doe defendants, and redirected Twine to execute the section 160.50 release by May 27, 2011. (Order, dated May 17, 2011, at 1 (Dkt. No. 16)).
3. The Delay in the Identification of the Doe Defendants
Due to three consecutive transfers between prison facilities, Twine was unable to execute the section 160.50 release until July 19, 2011, and accordingly, the Court granted several extensions of the Valentin schedule, which altogether extended the City's time to identify the Doe defendants until September 9, 2011. (See Order, dated June 7, 2011 (Dkt. No. 17); Pro Se Memorandum re Change of Address, dated May 25, 2011 (Dkt. No. 18); Order, dated July 6, 2011 (Dkt. No. 19); Pro Se Memorandum re Change of Address, dated June 26, 2011 (Dkt. No. 20); Letter to Judge Batts, dated Sept. 18, 2011 (Dkt. No. 22)). On September 9, 2011, Corporation Counsel identified two of the John Doe defendants as Detectives Castro and Cannon but explained that it was unable to identify the two officers "'who allegedly picked [Twine] up at the Queens County Courthouse and transported him to the 10th Precinct,'" and requested that Twine be directed to provide a physical description of those officers. (Letter from Boris Zeldin to Judge Cott, dated Sept. 9, 2011 (undocketed)). On September 14, 2011, the Court directed Twine to provide such a description by October 11, 2011 and remarked that "[o]nce the two remaining John Doe Defendants are identified, or not, Plaintiff will be able to serve and file his Amended Complaint." (Order, dated Sept. 14, 2011 (Dkt. No. 21)).
By letter dated September 15, 2011, Twine explained that, while he waited for a notary public to become available at the Metropolitan Detention Center in Brooklyn to witness his signature on the section 160.50 release, he was transferred to an Oklahoma City transit facility, and later to Pine Knots, Kentucky, and subsequently back to Brooklyn, and that, as a result of those transfers and prison rules prohibiting him from carrying any property while in transit, he had been unable to execute the release until July 19, 2011. (Letter from Sylvester Twine to Judge Batts, dated Sept. 18, 2011 (Dkt. No. 22)).
On October 28, 2011, after learning that Twine had again been transferred to a different prison facility, and (presumably for that reason) had not yet given the City a description of the officers who arrested him, the Court again extended the deadlines for the City to identify the unnamed officers, and for Twine to file an amended complaint. (Order, dated Oct. 28, 2011 (Dkt. No. 26); see also Change of address notice from Sylvester Twine, dated Oct. 30, 2011 (Dkt. No. 27)). On November 8, 2011, Twine sent the City a description of the unidentified officers, as directed by the Court. (Letter from Sylvester Twine to Boris Zeldin, dated Nov. 5, 2011 (Dkt No. 29)).
4. Twine's Second Motion for Leave to File an Amended Complaint and the Detectives' Request for Sua Sponte Dismissal
On November 9, 2011, Twine again moved for leave to file an amended complaint naming Castro and Cannon as defendants. (Dkt. No. 28). On November 15, 2011, Twine filed a motion to preserve evidence pursuant to Rule 34 of the Federal Rules of Civil Procedure "so that the parties and the court may have all of the relevant facts available at the time the merits of this case are tried." (Dkt. No. 30). In response, on December 20, 2011, the Detectives requested that I vacate the September 14 and October 28, 2011 Orders and sua sponte recommend that Twine's complaint be dismissed as time-barred. (Letter from Boris Zeldin to Judge Cott, dated Dec. 20, 2011, at 1-4 (undocketed)). Alternatively, the City requested an extension of time to identify the remaining John Doe defendants and respond to Twine's motion to preserve evidence. (See id. at 4-6). On December 28, 2011, I granted the City's request for an extension of time and reserved decision on the Detectives' application for dismissal. (Order, dated Dec. 28, 2011 (Dkt. No. 32)). On February 3, 2012, Corporation Counsel sent a letter explaining that, "after conducting a good faith investigation, [it was] unable to identify the two officers Plaintiff alleges arrested him at Queens County Courthouse." (Letter from Morgan Kunz to Judge Cott, dated Feb. 3, 2012, at 1-2 (undocketed)). Corporation Counsel also outlined the steps it had taken to preserve relevant evidence, and indicated that it had located the investigatory file relating to the alleged burglary for which Twine was arrested and was in the process of obtaining the District Attorney's file. (Id. at 3).
5. Twine's Amended Complaint and the Instant Motion
On February 19, 2012, Twine moved for a third time for leave to file an amended complaint naming Castro and Cannon as the detectives who conducted the lineup and instituted the criminal charges against him. (Motion for Leave to File an Amended Complaint, dated Feb. 19, 2012 (Dkt. No. 38)). On March 7, 2012, I granted Twine's motion to amend and denied without prejudice Twine's pending motion to preserve evidence based on the City's representation that it had taken steps to preserve the evidentiary items identified by Twine. (See Order, dated Mar. 7, 2012, at 1-2 (Dkt. No. 41)).
On April 13, 2012, the Detectives moved to dismiss Twine's Amended Complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure, arguing that when Twine entered into the Stipulation of Settlement in Twine I, he released the instant claims against Cannon and Castro, and alternatively, that Twine's claims are time-barred under New York's three-year statute of limitations for personal injury claims, which applies to section 1983 actions such as Twine's. (See generally Memorandum of Law in Support of Defendants' Motion to Dismiss, dated Apr. 13, 2012 ("Defs.' Mem.") (Dkt. No. 45)). On May 7, 2012, Twine filed an opposition to the Detectives' motion, conceding that his false arrest claim is time-barred, but arguing that the Twine I release does not extend to his malicious prosecution claim because of joinder and venue rules, and that the doctrines of "relation back" and equitable tolling permit his malicious prosecution claim to proceed. (See generally Pl.'s Opp. (Dkt. No. 54)). The Detectives filed a reply on June 5, 2012. (Reply Memorandum of Law in Further Support of Defendants' Motion to Dismiss, dated June 5, 2012 ("Defs.' Reply") (Dkt. No. 55)).
II. DISCUSSION
A. Standard of Review
"For a complaint to survive dismissal under Rule 12(b)(6), the plaintiff must plead 'enough facts to state a claim to relief that is plausible on its face.'" Rivera v. City of New York, No. 07 Civ. 5999 (DAB), 2010 WL 1253983, at *2 (S.D.N.Y. Mar. 17, 2010) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "[D]ismissal under Rule 12(b)(6) is appropriate if 'it is clear from the face of the complaint, and matters of which the court may take judicial notice, that the plaintiff's claims are barred as a matter of law.'" Joseph v. HDMJ Rest., Inc., 685 F. Supp. 2d 312, 315 (E.D.N.Y. 2009) (citing Conopco, Inc. v. Roll Intern., 231 F.3d 82, 86 (2d Cir. 2000)). "Where the dates in a complaint show that an action is barred by a statute of limitations," dismissal under Rule 12(b)(6) is proper. Ghartey v. St. John's Queens Hosp., 869 F.2d 160, 162 (2d Cir. 1989); accord Francis v. Blaikie Grp., 372 F. Supp. 2d 741, 743 n.2 (S.D.N.Y. 2005) ("Defenses based on statutes of limitations are properly brought under Rule 12(b)(6) as motions to dismiss for failure to state a claim on which relief can be granted.") (citation omitted). Likewise, the defense that a claim is barred by a contractual release may be asserted on a Rule 12(b)(6) motion, and where the language of the release is unambiguous, dismissal is proper. See, e.g., Tromp v. City of New York, 465 F. App'x 50, 52-53 (2d Cir. 2012) (affirming Rule 12(b)(6) dismissal based on unambiguous language of general release); Chepilko v. City of New York, No. 11-CV-2878 (ARR) (LB), 2012 WL 2792935, at *2-4 (E.D.N.Y. July 6, 2012) (dismissing case under Rule 12(b)(6) after finding claims barred by unambiguous general release); Wang v. Paterson, No. 07 Civ. 2032 (LTS) (AJP), 2008 WL 5272736, at *4-8 (S.D.N.Y. Dec. 18, 2008) (same).
On a Rule 12(b)(6) motion, the Court must accept all material factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Freedom Holdings, Inc. v. Spitzer, 363 F.3d 149, 151 (2d Cir. 2004). The Court may also consider any documents attached to the complaint or incorporated in it by reference, and may take judicial notice of matters of public record, such as court filings. See, e.g., Global Network Commc'ns, Inc. v. City of New York, 458 F.3d 150, 156-57 (2d Cir. 2006); Chepilko, 2012 WL 2792935, at *2 (taking judicial notice of documents publicly filed in earlier cases involving same plaintiff). The Stipulation of Settlement and Twine I complaint are filed on the public docket in Twine I and are part of the public record. Therefore, I take judicial notice of them for purposes of this motion, not for their truth, but for their existence and legal effect. See Global Network Commc'ns. Inc., 458 F.3d at 157 ("'A court may take judicial notice of a document filed in another court not for the truth of the matters asserted in the other litigation but rather to establish the fact of such litigation and related filings.'" (quoting Int'l Star Class Yacht Racing Ass'n v. Tommy Hilfiger U.S.A., Inc., 146 F.3d 66, 70 (2d Cir. 1998)).
Because Twine is proceeding pro se, the Court must "construe [his Amended Complaint] broadly and interpret it to raise the strongest arguments it suggests." Sharpe v. Conole, 386 F.3d 482, 484 (2d Cir. 2004) (citation omitted). Nevertheless, "a pro se litigant [is] bound by the same rules of law . . . as those [litigants] represented by counsel." Fertig v. HRA Med. Assistance Program, No. 10 Civ. 8191 (RPP), 2011 WL 1795235, at *4 (S.D.N.Y. May 6, 2011) (quotation marks and citation omitted). B. The Release in Twine I Does Not Bar the Malicious Prosecution Claim in this Case
The Detectives first argue that Twine's malicious prosecution claim is barred because he released it pursuant to the settlement agreement he signed in Twine I. (Defs.' Mem. at 7-11, Defs.' Reply at 1-8). "It is well established that settlement agreements are contracts and must therefore be construed according to general principles of contract law." Collins v. Harrison-Bode, 303 F.3d 429, 433 (2d Cir. 2002) (citation and internal punctuation omitted). While "federal law governs the validity of releases of federal causes of action," the court will "look to state law to provide the content of federal law." Olin Corp. v. Consol. Aluminum Corp., 5 F.3d 10, 15 (2d Cir. 1993) (citations omitted). Therefore, I apply New York contract principles to determine the scope and effect of the Stipulation of Settlement. See e.g., Chepilko, 2012 WL 2792935, at *2 (citing New York State case law in considering scope of release executed between the City of New York and plaintiff in settlement of New York federal lawsuit); Robinson v. Pierce, No. 11 Civ. 5516 (GBD) (AJP), 2012 WL 833221, at *5-7 (S.D.N.Y. Mar. 13, 2012) (same) (report and recommendation).
Under New York law, "when a release is clear and unambiguous, it will be interpreted without resort to parol evidence and strictly enforced, such that any claim by a party that it intended something else is insufficient to vitiate the release's force and effect." ASI Sign Sys., Inc. v. Architectural Sys., Inc., 210 F.3d 354, at *2 (2d Cir. 2000) (citing Albany Savings Bank v. Halpin, 117 F.3d 669, 672 (2d Cir. 1997)); see also Shklovskiy v. Khan, 709 N.Y.S.2d 208, 209 (2d Dep't 2000) ("Where the language of the release is clear, effect must be given to the intent of the parties as indicated by the language employed[.]" (citations omitted)). However, a "'release may not be read to cover matters which the parties did not desire or intend to dispose of'[.]" ASI Sign Sys. Inc., 210 F.3d 354, at *2 (citing Lefrak SBN Assocs. v. Kennedy Galleries, Inc., 609 N.Y.S.2d 651, 652 (2d Dep't 1994)).
In this case, pursuant to the Stipulation of Settlement he signed in Twine I, Twine agreed to release "any present or former employees and agents of the City of New York . . . from any and all liability, [or] claims, . . . which were or could have been alleged in this action[.]" (Abt. Decl., Ex. E ¶ 2). As Twine's malicious prosecution claim against the Detectives was not alleged in Twine I (see Abt Decl., Ex. D), and it is undisputed that the Detectives are employees and agents of the City, and therefore covered by the release, the dispositive question to be resolved is whether Twine "could have" alleged the malicious prosecution claim in Twine I. The Court must look to both federal joinder and venue law to resolve this question. See, e.g., Chepilko, 2012 WL 2792935, at *3 (joinder rules governed whether claims "could have been alleged" in prior action); Gittens v. City of New York, et al., No. 10 Civ. 8502 (PAC), slip op. at 3-4 (S.D.N.Y. May 11, 2011) (same); Wang, 2008 WL 5272736, at *5-6 (same).
1. Joinder Rules Would Not Have Permitted Twine to Allege His Malicious Prosecution Claim in Twine I
Rule 20(a)(2) of the Federal Rules of Civil Procedure permits the joinder of multiple defendants in a single action if: "(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all defendants will arise in the action." Fed. R. Civ. P. 20(a)(2). "What will constitute the same transaction or occurrence under the first prong of Rule 20(a) is approached on a case by case basis." Kehr ex rel. Kehr v. Yamaha Motor Corp., U.S.A., 596 F. Supp. 2d 821, 826 (S.D.N.Y. 2008) (citation omitted). "In construing the term 'transaction or occurrence' under Rule 20, many courts have drawn guidance from the use of the same term in Rule 13(a), applying to compulsory counterclaims." Barnhart v. Town of Parma, 252 F.R.D. 156, 160 (W.D.N.Y. 2008) (citing Mosley v. General Motors Corp., 497 F.2d 1330, 1333 (8th Cir. 1974); Blesedell v. Mobil Oil Co., 708 F. Supp. 1408, 1421 (S.D.N.Y. 1989)). "As the Second Circuit has observed in the Rule 13 context, to determine whether a counterclaim arises out of the same transaction as the original claim, the court must assess the logical relationship between the claims and determine whether the 'essential facts of the various claims are so logically connected that considerations of judicial economy and fairness dictate that all the issues be resolved in one lawsuit.'" Id. (citing United States v. Aquavella, 615 F.2d 12, 22 (2d Cir. 1979)).
Twine argues that Rule 20(a) would not have permitted him to allege his malicious prosecution claim against the Detectives in Twine I because the claim is unrelated to the claim he asserted in Twine I and brought against different defendants. (Pl.'s Opp. at 3-4). I agree. In this case, Twine has sued Detectives Cannon and Castro based on a July 17, 2007 arrest in a Queens County courthouse and a prosecution for grand larceny and burglary that was dismissed on speedy trial grounds in New York County Criminal Court in February 2008. (See generally Am. Compl.). In Twine I, Twine sued Detectives Vizcarrondo and Fitzpatrick based on a January 9, 2007 arrest in a Queens County convenience store for possession of a controlled substance, which led to criminal charges of which Twine was acquitted by a jury in Queens County on January 14, 2008. (See Abt Decl., Ex. D (Complaint in Twine I, dated Dec. 16, 2009)). Although both cases involve arrests of Twine by New York City police officers, there is nothing in the record to suggest that the events underlying them are related (and there is no malicious prosecution claim in Twine I). Under such circumstances, Cannon and Castro would not be liable jointly, severally, or in the alternative for the events in Twine I, and joint resolution of such separate and unrelated cases in a single proceeding would not further "judicial economy and fairness," Aquavella, 615 F.2d at 22, but would likely confuse a jury and prejudice the parties.
For this reason, Wang, which the Detectives cite in support of their motion (Defs.' Mem. at 8), is distinguishable. See Wang, 2008 WL 5272736, at *6 (release extended to later-filed claims based on the "considerable overlap between the operative facts alleged" in earlier and later-filed cases).
The Detectives argue that Twine could have joined them as defendants in Twine I simply because the two cases "[b]oth involve arrests, allegedly without probable cause, by New York City police officers," and are thus "similar" in nature. (Defs.' Mem. at 8-9). However, courts in this Circuit have repeatedly held that joinder is improper where "the plaintiff does no more than assert that 'the defendants merely committed the same type of violation in the same way.'" Next Phase Distribution, Inc. v. John Does 1-27, 284 F.R.D, 165, 169 (S.D.N.Y. 2012) (citations omitted); see also Nassau Cnty. Ass'n of Ins. Agents, Inc. v. Aetna Life & Cas. Co., 497 F.2d 1151, 1154 (2d Cir. 1974) (joinder of multiple defendants improper where defendants' "actions as charged were separate and unrelated"); Deskovic v. City of Peekskill, 673 F. Supp. 2d 154, 167-68 (S.D.N.Y. 2009) (civil rights claims lacked "the requisite logical relationship to warrant joinder" in "the absence of a connection between Defendants' alleged misconduct" (citing cases)); Smith v. Goord, No. 04-CV-6432 (CJS), 2006 WL 2850597, at *3 (W.D.N.Y. Sept. 22, 2006) (joinder of civil rights claims against different defendants improper where there was "no suggestion that the original defendants were involved in [the other defendants' actions] taken . . . over a year later"); Robert v. Dep't of Justice, No. 05-CV-2543 (NGG) (ETB), 2005 WL 3371480, at * 10 (E.D.N.Y. Dec. 12, 2005) (joinder improper where, although government defendants were alleged to have engaged in same type of wrongdoing, there was "no common transaction or occurrence linking" their conduct). Thus, the fact that Twine asserted the same type of violation (false arrest) against Cannon and Castro on the one hand, and Fitzpatrick and Vizcarrondo on the other, is insufficient to support joinder under Rule 20(a).
The Detectives devote much of their argument to discussing the Second Circuit's recent summary order in Tromp v. City of New York and several Southern District cases finding that claims against the City and its officials were barred by releases essentially identical to the one signed by Twine. (Defs.' Mem. at 7-10). However, these cases are distinguishable in that, unlike in Twine's case here, they involved claims for municipal liability for alleged unconstitutional policies or practices by the City (i.e., "Monell claims"), thereby providing an essential nexus between otherwise unrelated allegations of civil rights violations by individual officers. In Tromp, which as a summary order lacks precedential value, see 2d Cir. Local R. 32.1.1(a), while the Circuit did not explicitly discuss the presence of Monell claims as a basis for its decision, the City specifically relied upon the plaintiff's Monell claims in arguing to the Second Circuit that joinder of later-filed claims to a previously-settled action would have been proper under Rule 20. See Appellees' Brief at 16-17 & n.3, Tromp v. City of New York, 465 F. App'x 50 (2d Cir. 2012) (No. 11-4132-cv) (that "plaintiff could have brought one lawsuit encompassing all of his claims," was a "conclusion . . . supported by the nearly identical Monell claims alleged by plaintiff in the respective actions"). Fernandez v. City of New York and Gittens v. City of New York, two district court cases also relied on by the Detectives (Defs.' Mem, at 8-11), are distinguishable on the same basis. See Fernandez v. City of New York, No. 10 Civ. 5933 (SMG) (SJ), slip op. at 2 & 6-9 (E.D.N.Y. Mar. 22, 2012) (civil rights claim against City "could have been alleged" in earlier case asserting municipal liability for alleged unconstitutional practices), aff'd 2012 WL 5458029 (2d Cir. Nov. 9, 2012); Gittens v. City of New York, No. 10 Civ. 8502 (PAC), slip op. at 3 (S.D.N.Y. May 11, 2011) ("Once Gittens asserted in the First Lawsuit the Monell claim based on both arrests, he could have joined the individual officers named in the Second Lawsuit. . . . While these two arrests are separate and distinct incidents, due to the common Monell claims, they qualify as part of the same series of transactions.") (citing Okin v. Village of Cornwall-on-Hudson Police Dept., 577 F.3d 415 (2d Cir. 2009)); accord Chepilko, 2012 WL 2792935, at *3 (joinder of claims against different officers proper because three separate incidents were "linked by plaintiff's identical [Monell] claim against the City of New York"). Thus, what the Detectives characterize as a "routine practice in this Circuit of allowing Plaintiffs to join different civil rights claims arising out of multiple, and otherwise unrelated, arrests" (Defs." Mem. at 9) is limited to cases in which disparate arrests are connected by a claim that they were undertaken pursuant to an unconstitutional policy or practice.
In Monell v. Dep't of Social Services of the City of New York, the United States Supreme Court held that local governments may be held liable for civil rights violations resulting from unconstitutional policies or customs of such governments, but may not be held vicariously liable for the unconstitutional acts of their agents. 436 U.S. 658, 694 (1978).
In support of this characterization, the Detectives cite several other cases, each of which also involved a claim for municipal liability (and in any case, did not address joinder). (Defs.' Opp. at 9). See Rodriguez v. City of New York, No. 10 Civ. 891 (BSJ) (S.D.N.Y. Dec. 30, 2010) slip op. at 11-12 (discussing municipal liability claim); Smith v. City of New York, No. 04 Civ. 3286 (TPG), 2010 WL 3397683, at *17 (S.D.N.Y. Aug. 27, 2010) (same); Thomas v. City of New York, No. 05 Civ. 6449 (LTS) (THK), 2008 WL 3456173, at *1 n.1 (S.D.N.Y. Aug. 12, 2008) (same).
In sum, although "courts have interpreted the requirements of Rule 20(a) liberally to promote judicial economy and to allow related claims to be tried within a single proceeding," Barnhart, 252 F.R.D. at 159 (citations omitted and emphasis added), they have not done so in derogation of the plain text of Rule 20(a)(2)(A) to join unrelated claims in a single proceeding, as the Detectives urge here. Without meeting the first requirement of Rule 20(a), joinder would not be proper and it is unnecessary to consider whether Rule 20(a)(2)(B) is met. See, e.g., Deskovic, 673 F. Supp. 2d at 159 ("As is clear from the plain language of Rule 20(a)(2), both criteria [of Rule 20(a)] must be met for joinder to be proper.") (citations omitted). Because Twine could not have joined his malicious prosecution claim asserted in this case to the earlier action, the release in Twine I does not extend to it.
The Detectives also cite Robinson v. Pierce, No. 11 Civ. 5516 (GBD) (AJP), 2012 WL 833221 (S.D.N.Y. Mar. 13, 2012) and Lewis v. City of New York, No. 10 Civ. 3266 (RJD) (LB), 2011 WL 3273939 (E.D.N.Y. July 28, 2011) in support of their contention that Twine released the instant claims. (Defs.' Mem. at 8, 10; Defs.' Reply at 4-5). These cases did not consider whether any claims "could have been alleged" in a prior action under Rule 20. See Robinson, 2012 WL 833221, at *6 (release at issue broadly covered all claims from "the beginning of the world" to the date of the release and was not limited to claims that "could have been alleged" previously); Lewis, 2011 WL 3273939, at *7 (court did not reach whether plaintiff "could have" asserted later claims in earlier case because plaintiff "in fact alleged those claims" in proposed supplemental complaint filed in earlier case). As the scope of the release in Robinson was not limited by Rule 20, as is the release in Twine I, and it is undisputed that Twine never alleged the instant claim in Twine I, Robinson and Lewis are inapposite.
2. Venue Rules Also Would Have Prevented Twine From Asserting His Malicious Prosecution Claim in Twine I
Twine also contends that, even had Rule 20 permitted him to join the malicious prosecution claim in Twine I, venue rules would have precluded him from doing so. (Pl.'s Opp. at 2-4). In a civil action, venue must be "proper as to each claim against each defendant." Holmes v. Grant, No. 03 Civ. 3426 (RJH) (RLE), 2006 WL 851753, at *21 (S.D.N.Y. Mar. 31, 2006) (citation omitted); see also Basile v. Walt Disney Co., 717 F. Supp. 2d 381, 386 (S.D.N.Y. 2010) ("[I]n a case of multiple claims, proper venue must be established with respect to each cause of action asserted.") (internal citation and quotation marks omitted). As Twine concedes that his false arrest claim is time-barred (Pl.'s Opp. at 11), I consider only whether Twine's malicious prosecution claim could have been brought in the Eastern District, an issue which the Detectives have not addressed in their papers. (See Defs.' Reply at 3).
Under 28 U.S.C. § 1391(b)(2), a claim may be brought in any "judicial district in which a substantial part of the events or omissions giving rise to the claim occurred[.]" To determine whether venue is proper under § 1391(b)(2), a court must conduct a two-part inquiry: (1) "identify the nature of the claims and the acts or omissions that the plaintiff alleges give rise to those claims," and (2) "determine whether a substantial part of those acts or omissions occurred in the district where suit was filed, that is, whether significant events or omissions material to those claims have occurred in the district in question." Daniel v. Am. Bd. of Emergency Med., 428 F.3d 408, 432 (2d Cir. 2005) (citing Gulf Ins. Co. v. Glasbrenner, 417 F.3d 353, 357 (2d Cir. 2005)) (internal punctuation omitted). "Although section 1391(b)(2) does not require that the most substantial part of the events giving rise to the claim occurred in the Eastern District, the Second Circuit has cautioned district courts 'to take seriously the adjective 'substantial" and thus 'for venue to be proper, significant events or omissions material to the plaintiff's claim must have occurred in the district in question.'" Cold Spring Harbor Lab. v. Ropes & Gray LLP, 762 F. Supp. 2d 543, 554 (E.D.N.Y. 2011) (quoting Gulf Ins. Co., 417 F.3d at 357) (emphasis in original)).
In full, the venue statute provides that a claim may be brought in:
(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located;28 U.S.C. § 1391(b). However, the Detectives do not argue that either of them reside in the Eastern District (see Defs.' Reply at 3) and, as venue was proper in this District, section 1391(b)(3) is inapplicable. Therefore, I consider only whether venue would have been permissible under 28 U.S.C. § 1391(b)(2).
(2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or
(3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action."
Applying the first step of the Daniel inquiry, to make out a claim for malicious prosecution, Twine must establish: "'(1) that the [Detectives] commenced or continued a criminal proceeding against him; (2) that the proceeding was terminated in [his] favor; (3) that there was no probable cause for the proceeding; and (4) that the proceeding was instituted with malice." Stevens v. City of New York, No. 10 Civ. 2172 (KBF) (JLC), 2012 WL 3000677, at *4 (S.D.N.Y. July 17, 2012) (citing Kinzer v. Jackson, 316 F.3d 139, 143 (2d Cir. 2003) (quotation marks omitted)). Thus, the alleged acts and omissions which gave rise to Twine's malicious prosecution claim are: (1) the lineup and questioning of Twine at a police precinct in Manhattan, which purportedly failed to produce any evidence of Twine's guilt (Am. Compl. ¶¶ 6-17); (2) the Detectives' commencement and/or continuation of criminal charges against Twine in Manhattan (see generally id. ¶¶ 18-25 and Second Claim for Relief); (3) Twine's imprisonment in the county jail in Manhattan for five days (id. ¶¶ 24, 26); and (4) dismissal of the criminal charges on speedy trial grounds in New York County Criminal Court in February 2008. (Id. ¶ 27 and First Claim for Relief ¶ 11). See Basile, 717 F. Supp. 2d at 386-87 ("'[t]he events giving rise to [a] claim for malicious prosecution involve the filing and handling of the New York lawsuit'" (quoting Engel v. CBS, Inc., 886 F. Supp. 728, 732 (C.D. Cal. 1995)).
Applying the second step of the Daniel inquiry, each of these events occurred in Manhattan, and therefore in the Southern District. (Id. ¶¶ 3-27, see also Abt Decl. Exs. B & C (showing that criminal case was filed in New York County)). The sole event that the Detectives identify as having occurred in the Eastern District is Twine's arrest by two unidentified officers. (Defs.' Reply at 3). While that event preceded Twine's criminal prosecution—and gave rise to a separate false arrest claim—it had no bearing on whether the subsequent criminal prosecution against Twine in Manhattan was instituted with probable cause or malice, or whether such prosecution was thereafter terminated in Twine's favor. Therefore, the arrest is not material to any element of Twine's malicious prosecution claim against the Detectives. As the Detectives point to no relevant events in the Eastern District other than the arrest, and none is alleged in Twine's Amended Complaint, I cannot conclude that the venue statute would have entitled Twine to bring his malicious prosecution claim in the Eastern District. See, e.g., Cmty. Surgical Supply of Toms River, Inc. v. Medline DiaMed, LLC, No. 11-00221 (GEB) (TJB), 2011 WL 3235706, at *3-4 (D.N.J. July 28, 2011) (finding venue improper over malicious use of process claim where underlying action was litigated in different district) (citing cases); see also Benjamin v. Carusona, No. 09 Civ. 9722 (RWS), 2010 WL 4448213, at *5-6 (S.D.N.Y. Nov. 5, 2010) (dismissing for improper venue where events material to claims occurred in Eastern, not Southern, District of New York).
In sum, Rule 20(a) and the venue statute provide alternative and independent bases for my determination that Twine could not have alleged his malicious prosecution claim in Twine I. Accordingly, I conclude that the release in Twine I is not a basis to dismiss Twine's malicious prosecution claim.
Twine also claims that, when he signed the Stipulation of Settlement in Twine I, the assistant Corporation Counsel defending that case "represented to" him that the release did not apply to the instant case, which was pending at the time. (Pl.'s Opp. at 5). The Detectives contend that this is merely Twine's interpretation of the stipulation language, but that in any event, extrinsic evidence may not be used to inject ambiguity into an otherwise unambiguous agreement. (See Defs.' Reply at 4 & n.3). Given the foregoing analysis, I need not reach this issue, or Twine's other arguments as to why the release does not bar his malicious prosecution claim. (See Pl.'s Opp. at 2-7).
C. The Statute of Limitations Bars the False Arrest Claim But Not the Malicious Prosecution Claim
The Detectives also argue that each of Twine's claims are barred by New York's three year statute of limitations for section 1983 actions. (Defs.' Mem. at 11-17; Defs.' Reply at 8-13). The statute of limitations for a section 1983 action is the same as that for personal injury actions in the state in which the cause of action arose. Wallace v. Kato, 549 U.S. 384, 387 (2007) (citations omitted). In New York, the applicable limitations period is three years. Patterson v. Cnty. of Oneida, 375 F.3d 206, 225 (2d Cir. 2004) (citing Wynder v. McMahon, 360 F.3d 73, 76 (2d Cir. 2004)). Federal law determines the date on which a claim accrues. See, e.g., Pearl v. City of Long Beach, 296 F.3d 76, 80 (2d Cir. 2002) (citation and internal quotation marks omitted). Under federal law, Twine's false arrest claim accrued on the day he was formally charged and detained pending criminal prosecution. See, e.g., Covington v. New York City Police Dep't, 471 F. App'x 28, 29 (2d Cir. 2012) (citing Wallace, 549 U.S. at 388-89). Since Twine was arraigned on July 18, 2007 (see Abt Decl., Ex. F), the statute of limitations for his false arrest claim began to run that day and expired on July 17, 2010. As Twine filed this suit on August 18, 2010, his false arrest claim is time-barred, which Twine concedes. (Pl.'s Opp. at 11).
A malicious prosecution claim, however, does not accrue until the date that criminal proceedings are terminated in favor of a plaintiff. Heck v. Humphrey, 512 U.S. 477, 489-90 (1994); see also Bakowski v. Kurimai, 387 F. App'x 10, 11 (2d Cir. 2003). Thus, the statute of limitations governing Twine's malicious prosecution claim began to run on February 19, 2008, the date the charges against him were dismissed, and expired three years later on February 18, 2011. Twine filed his original complaint on August 18, 2010, six months before the end of the limitations period, but did not file his Amended Complaint naming the Detectives until February 19, 2012, approximately one year after the statute of limitations expired. Therefore, Twine's Amended Complaint against the Detectives may proceed only if it meets the requirements for the "relation back" of claims or, alternatively, tolling of the statute of limitations.
1. Twine's Claims Against the Detectives "Relate Back" to August 18, 2010
Rule 15(c) of the Federal Rules of Civil Procedure governs when an amended pleading "relates back" to the original filing date for statute of limitations purposes. Rule 15(c) "'imposes three requirements before an amended complaint against a newly added defendant can relate back to the original complaint.'" Smith v. Westchester Cnty. Dep't of Corrs., No. 07 Civ. 1803 (SAS), 2012 WL 527222, at *4 (S.D.N.Y. Feb. 15, 2012) (citing Krupski v. Costa Crociere S.p.A., 130 S. Ct. 2485, 2491 (2010)). "First, the claim against the newly named defendant must have arisen 'out of the conduct, transaction, or occurrence set out—or attempted to be set out— in the original pleading.'" Id. (citing Fed. R. Civ. P. 15(c)(1)(B), (C)). "Second, 'within the period provided by Rule 4(m) for serving the summons and complaint' . . . the newly named defendant must have 'received such notice of the action that it will not be prejudiced in defending on the merits.'" Id. (citing Fed. R. Civ. P. 15(c)(1)(C)(i)). Third, "the plaintiff must show that, within the Rule 4(m) period, the newly named defendant 'knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity.'" Id. (citing Fed. R. Civ. P. 15(c)(1)(C)(ii)). These requirements seek "to balance the interests of the defendant protected by the statute of limitations with the preference expressed in the Federal Rules of Civil Procedure in general, and Rule 15 in particular, for resolving disputes on their merits." Krupski, 130 S. Ct. at 2494 (citations omitted). The Detectives concede that the claims against them arise out of the transaction or occurrence set forth in the original complaint (Defs.' Mem. at 13), and therefore I consider only whether the latter two requirements are met.
It is Twine's burden, as plaintiff, to establish that relation back is proper. See, e.g., In re Alstom SA, 406 F. Supp. 2d 402, 430 (S.D.N.Y. 2005) (citing Cornwell v. Robinson, 23 F.3d 694, 705 (2d Cir. 1994) and In re Sterling Foster & Co. Sec. Litig., 222 F. Supp. 2d 216, 261 (E.D.N.Y. 2002)). However, in light of the fact that there has not yet been any discovery in this case, as well as the applicable standard on a Rule 12(b)(6) motion, I consider only whether Twine has stated a plausible basis to conclude that relation back is proper. Cf. Baez v. JetBlue Airways, 745 F. Supp. 2d 214, 223 (E.D.N.Y. 2010) (denying motion to dismiss without prejudice where record was insufficient to conduct relation back inquiry and ordering limited discovery on issues of notice and prejudice).
a. The Rule 4(m) Period Ended April 13, 2012
The "period provided by Rule 4(m) for serving the summons and complaint" establishes the time frame for the notice requirements in Rule 15(c)(1)(C). Rule 4(m) generally allows 120 days from the filing of a case to serve a defendant with the summons and complaint, but also requires this period to be extended upon a showing of good cause. See Fed. R. Civ. P. 4(m). In this case, Twine filed his original complaint on August 18, 2010, and approximately one month later, requested an extension of time to serve the defendants because he lacked knowledge of their identities. (See First and Second Valentin Letters). The Court granted Twine's request and extended his time to serve the officers consistent with its direction that the City identify the John Doe defendants by March 28, 2011. (First Valentin Order at 2). Thereafter, for good cause, and at the request of both parties at various times, the Court extended this deadline multiple times, such that the last governing deadline relating to Twine's filing and service of his Amended Complaint was April 13, 2012. (Order, dated Apr. 3, 2012 (Dkt. No. 43)). Therefore, I conclude that the Rule 4(m) period expired on April 13, 2012.
By my count, the Court granted at least eleven extensions of the schedule governing Twine's filing and service of an amended complaint: (1) the First Valentin Order, dated Feb. 9, 2011 (Dkt. No. 6); (2) the Second Valentin Order, dated Apr. 13, 2011 (Dkt. No. 10); (3) the May 3, 2011 Order (Dkt. No. 13); (4) the June 7, 2011 Order (Dkt. No. 17); (5) the July 6, 2011 Order (Dkt. No. 19); (6) the September 14, 2011 Order (Dkt. No. 21); (7) the October 28, 2011 Order (Dkt. No. 26); (8) the December 28, 2011 Order (Dkt. No. 32); (9) the March 7, 2012 Order (Dkt. No. 41); (10) the March 16, 2012 endorsement (granting the City's March 14 request for an enlargement of time to determine whether it could accept service on behalf of Cannon) (Dkt. No. 42); and (11) the April 3, 2012 Order directing Twine to file his Amended Complaint by April 13, 2012 (Dkt. No. 43).
b. Notice and Prejudice
Having determined that April 13, 2012 was the deadline for serving the Amended Complaint under Rule 4(m), I next consider whether the record provides a plausible basis to conclude that, by that date, the Detectives had "received such notice of the action that [they] will not be prejudiced in defending on the merits[.]" Fed. R. Civ. P. 15(c)(1)(C)(i). The Detectives argue that the notice requirement has not been met because neither they nor Corporation Counsel became aware of the lawsuit until after the statute of limitations had expired. (Def. Reply at 9-10). But this argument is misguided. Rule 15(c) does not refer to notice within the limitations period, but instead requires notice within "the period provided by Rule 4(m) for serving the summons and complaint." Fed. R. Civ. P. 15(c)(1)(C); Thomas v. Aravelo, No. 95 Civ. 4704 (SS), 1998 WL 427623, at * 12 & n.6 (S.D.N.Y. July 28, 1998) ("Notice must be received within the time period authorized by Fed. R. Civ. P. 4(m)," which "'allows not only for 120 days specified in that rule, but also any additional time resulting from any extension order by the court'") (citations omitted); see also Williams v. City of New York, No. 06-CV-6601 (NGG), 2009 WL 3254465, at *5 (E.D.N.Y. Oct. 9, 2009) (same); Advisory Committee Notes to 1991 Amendment to Fed. R. Civ. P. 15(c)(3) ("In allowing a name-correcting amendment within the time allowed by Rule 4(m), this rule allows not only the 120 days specified in that rule, but also any additional time resulting from any extension ordered by the court pursuant to that rule . . . .").
In this case, the Rule 4(m) period was extended by the Court until April 13, 2012, and it is indisputable that both Corporation Counsel and the Detectives, whether by actual or constructive notice, knew of the suit by that date. Corporation Counsel, who is the attorney for and agent of the New York City Police Department, was aware of the case by April 21, 2011 (Dkt. No. 13), and had notice of Castro's identity on April 26, 2011, when Twine's first motion to amend the complaint to name Castro as a defendant was entered on the public docket. (Dkt. No. 12). Corporation Counsel is legally required, subject to narrow exceptions, to defend members of the New York City police department in any civil suit arising out of actions taken within the scope of their public employment. See McKinney's General Municipal Law § 50-k. Castro's legal entitlement to representation by Corporation Counsel is sufficient to impute Corporation Counsel's notice of this case to Castro as of April 26, 2011, well within the Rule 4(m) period. See, e.g., Bond v. Nolan, No. 89 Civ. 357 (JFK), 1994 WL 132139, at *2 (S.D.N.Y. Apr. 11, 1994) ("officers' statutory entitlement to government representation is sufficient to impute constructive notice to them").
The Court may also impute constructive notice to Cannon after Corporation Counsel learned of Castro's identity, "Under the constructive notice doctrine, the court can impute knowledge of a lawsuit to a new defendant government official through his attorney, when the attorney also represented the officials originally sued, so long as there is some showing that the attorney knew that the additional defendants would be added to the existing suit." Curry v. Campbell, No. 06-CV-2841 (DRH) (ETB), 2012 WL 1004894, at *3 (E.D.N.Y. Mar. 23, 2012) (citations omitted). "[T]he core issue under the doctrine is whether defense counsel knew or should have known the identity of the prospective defendants." Roe v. Johnson, No. 07-CV-2143 (RJD) (RER), 2011 WL 8189861, at *3 (E.D.N.Y. Aug. 12, 2011) (citing Gleason v. McBride, 869 F.2d 688, 693 (2d Cir. 1989)), adopted, 2012 WL 2575340 (E.D.N.Y. July 3, 2012); Velez v. Fogarty, No. 06 Civ. 13186 (LAK) (HBP), 2008 WL 5062601, at *6 (S.D.N.Y. Nov. 20, 2008) (collecting cases)).
Here, by April 26, 2011, Corporation Counsel knew of the events giving rise to Twine's malicious prosecution claim and the precise date and location of such events, and also had notice that Castro was one of the two detectives involved. Using this information, Corporation Counsel could have interviewed Castro and consulted police department records in order to discover Cannon's identity as the second detective. See id. (imputing constructive notice to newly added defendants where defense counsel had notice of "very specific allegations in the complaint, the very specific time period during which these events took place, and most importantly the names of the [other involved] employees" such that it "would have been a relatively simple matter for defendants' counsel to ascertain [identities of newly added defendants] during the Rule 4(m) period"); Archibald v. City of Hartford, 274 F.R.D. 371, 380 (D. Conn. 2011) (imputing constructive notice to Doe defendants where "defense counsel knew of the roles of the 'Doe' defendants, and knew that the officers who were on duty at the times and places identified in the Complaint would be named as defendants in the suit" because defense counsel "could have (and should have) consulted police department records and interviewed officers and other police department employees" in order to obtain their identities (quoting Byrd v. Abate, 964 F. Supp. 140, 146-47 (S.D.N.Y. 1997) (internal punctuation marks omitted)). Because Corporation Counsel had sufficient information on April 26, 2011 from which to discover Cannon's identity, constructive notice may be imputed to Cannon on that date.
Finally, the Detectives will not suffer any undue prejudice as a result of Twine's delay in filing and serving the Amended Complaint. Discovery has not yet commenced, and the Detectives will have ample time to develop a defense. See Thomas, 1998 WL 427623, at *14 (defendant "will not suffer any undue prejudice in defending against this action as she was named and served before discovery was commenced and she has had an opportunity to prepare a defense") (citations omitted and emphasis in original). In addition, Corporation Counsel has represented to the Court that it has taken steps to locate and preserve several items of evidence relevant to this case, and thus it does not appear that the delay beyond the limitations period has occasioned a loss of evidence. (See Order, dated Mar. 7, 2012, at 2 (Dkt. No. 41)). Therefore, the Detectives had notice of this action within the Rule 4(m) period such that they will not be prejudiced in defending it on the merits.
c. The Detectives Should Have Known that They Would Have Been Named in this Action but for a "Mistake" Concerning Their Identities
Next, I consider whether, within the Rule 4(m) period (i.e., by April 13, 2012), the Detectives knew or should have known that the action would have been brought against them "but for a mistake" concerning the proper parties' identities. Fed. R. Civ, P. 15(c)(1)(C)(ii). The Detectives argue that this element is not met because, under the law in this Circuit, naming a Doe defendant does not correct a "mistake" within the meaning of Rule 15(c) but instead corrects a lack of knowledge. (Defs.' Mem. at 14-15 (citing Barrow v. Wethersfield Police Dep't, 66 F.3d 466,469-70 (2d Cir. 1995), amended by 74 F.3d 1366 (1996)). As the Detectives correctly point out, the Second Circuit held in Barrow that naming a Doe defendant reflects ignorance of a defendant's true identity, rather than a mistake, and therefore replacing a Doe defendant does not satisfy the "mistake" requirement for relation back under Rule 15(c)(1)(C)(ii). Barrow, 66 F.3d at 470. Because the Supreme Court's 2010 decision in Krupski v. Costa Crociere S.p.A. set forth a broader understanding of "mistake" under Rule 15(c)(1)(C)(ii) than the one previously recognized by the Second Circuit, district courts disagree as to whether Barrow remains good law. However, I need not join this debate because there are unique events in the record of this case that can be characterized as a "mistake" concerning the Detectives' identities.
In Krupski, the Supreme Court held that "Rule 15(c)(1)(C)(ii) asks what the prospective defendant knew or should have known during the Rule 4(m) period, not what the plaintiff knew or should have known at the time of filing her original complaint." Krupski, 130 S. Ct. at 2493 (emphasis in original). The decision has "engendered a split in the district courts as to whether Barrow remains good law," Askins v. City of New York, No. 09 Civ. 10315 (NRB), 2011 WL 1334838, at *1 n.3 (S.D.N.Y. Mar. 25, 2011) (citing cases). Compare e.g., Archibald, 274 F.R.D. at 377 ("In Krupski[,] . . . the Supreme Court arguably confirmed that the reference to 'mistake' in Rule 15(c)(1)(C) does not necessarily bar relation back for a plaintiff who failed to properly name a defendant because he lacked knowledge of that defendant's name."); Bishop v. Best Buy, Co. Inc., No. 08 Civ. 8427 (LBS), 2010 WL 4159566, at *3 (S.D.N.Y. Oct. 13, 2010) (Krupski "dispose[d] of" contention that amendment naming Doe defendants did not relate back to the filing date of the original complaint because "the only question [under Krupski] is whether the [defendants] knew or should have known that, absent some mistake, the action would have been brought against them") (citation and internal quotation marks omitted); Jamison v. City of York, 09 Civ. 1289 (YK), 2010 WL 3923158, *5-6 (M.D. Pa. Sept. 30, 2010) ("While Plaintiff did not choose to sue a different defendant based on a misimpression, as was the case in Krupski, the Court cannot say with confidence that Plaintiff's [use of "John Doe I" rather than the proposed defendant's name] was the result of a fully informed decision as opposed to a mistake.") (emphasis in original); Abdell, 759 F. Supp. 2d at 457 ("Careful review of the Krupski opinion . . . belies [a] narrow understanding of a Rule 15(c) 'mistake.' . . . After Krupski, it is clear that a mistake 'concerning the proper party's identity' under Rule 15(c) includes lack of knowledge regarding the conduct or liability of that party.") with e.g., Felmine v. City of New York, No. 09-CV-3768 (CBA) (JO), 2012 WL 1999863, at *4 (E.D.N.Y. June 4, 2012) (rejecting argument that Krupski undermines Barrow); Rodriguez, 2011 WL 4344057, at *9 (distinguishing Krupski and applying Barrow because "[t]he situation addressed by the Court in Krupski is not that . . . addressed by the Second Circuit in Barrow") (collecting cases); Dominguez v. City of New York, No. 10 Civ. 2620 (BMC), 2010 WL 3419677, at *3 (E.D.N.Y. Aug. 27, 2010) ("Barrow's holding that a lack of knowledge is not a mistake is still intact.").
Although Twine filed his original complaint approximately six months before the end of the limitations period, and immediately sought the Court's assistance in identifying the John Doe defendants, approximately four months of the limitations period was thereafter consumed by the Court's decision to defer acting on Twine's request for Valentin assistance until Twine showed cause why his claims were not time-barred. While the Court did not intend to act in a manner that had the effect of running the limitations period, and thereby preventing Twine from ascertaining the defendants' identities prior to the end of the limitations period, this is what occurred. In ordering Twine to respond to its Order to Show Cause by January 25, 2011, the Court never warned Twine that the limitations period was nearing expiration. Further, after the Court granted Twine's request to obtain discovery on February 9, 2011—at a time when Twine still hypothetically might have amended his complaint within the limitations period—the Clerk's Office inadvertently failed to serve the First Valentin Order on the City, thereby preventing Twine from learning the Detectives' identities prior to the end of the limitations period. Notwithstanding these impediments, Twine diligently sought to learn the identities of the Doe defendants, and thereafter to amend his complaint, preserve evidence, and otherwise prosecute his case. Under the case law in this District, these circumstances constitute a "mistake" regarding Twine's ability to ascertain and name the Detectives prior to the end of the limitations period. See, e.g., Maccharulo v. Gould, 643 F, Supp. 2d 587, 596-97 (S.D.N.Y. 2009) ("Where a plaintiff tries diligently during the limitations period to ascertain the identities of the intended defendants, failure to ascertain the correct names within the period, combined with some 'John Doe' or other generic identification in the pleading, may suffice to establish a factual 'mistake' supporting relation back.") (citing Byrd, 964 F. Supp. at 145); Gonzalez v. Officer in Charge of Barber Shop on Duty on May 13, 1999, No. 99 Civ. 3455 (DLC), 2000 WL 274184, at *4-5 & n.6 (S.D.N.Y. Mar. 13, 2000) (where court informed plaintiff he could amend complaint to name unknown defendant and, after "diligent efforts" and in "apparent reliance on the Court's order," plaintiff did so, "[a]ny failure otherwise to amend the complaint [could] therefore be characterized as a mistake"); Thomas, 1998 WL 427623, at *15 (distinguishing Barrow and permitting relation back where, inter alia, "in naming 'John Doe' defendants, plaintiff was merely following the Court's own directive" which "was imprecise and did not properly warn the pro se plaintiff of the consequences should he not be able to meet the requirements of Rule 15(c)(3) for any newly-added defendants").
Because the unusual events in the procedural history of this case constitute a "mistake" with respect to Twine's naming of the Detectives, the only remaining issue is whether the Detectives knew or should have known that, but for such events, they would have been named prior to the running of the limitations period. As discussed, the Detectives had constructive notice of this case well before the Rule 4(m) time period expired, and also knew, through Corporation Counsel, of the circumstances that precluded Twine's discovery of their identities within the limitations period. Thus, the Detectives (through counsel) should have known—if they did not know—that, but for the foregoing events, they would have been timely identified and named in this action. Therefore, I conclude on the present record that the requirements for relation back under Rule 15(c)(1)(C) are plausibly met, and Twine's claim for malicious prosecution is timely.
2. Relation Back Is Also Proper Under New York State Law
Relation back of an amended pleading is also permitted when "the law that provides the applicable statute of limitations allows relation back[.]" Fed. R. Civ. P. 15(c)(1)(A). Federal courts in this District have applied New York State relation back law to cases involving John Doe defendants like this one, and concluded that "[a]lthough the language of the relation back test under state law mirrors that of Rule 15(c), the 'mistake' requirement under New York law is more forgiving than the federal rule." Mabry v. New York City Dep't of Corr., No. 05 Civ. 8133 (JSR) (JCF), 2008 WL 619003, at *6 (S.D.N.Y. Mar. 7, 2008) (citations omitted); accord Williams v. United States, No. 07 Civ. 3018 (RJS) (THK), 2010 WL 963474, at *12 (S.D.N.Y. Feb. 25, 2010), adopted 2010 WL 963465 (S.D.N.Y. Mar. 16, 2010); Wilson v. City of New York, No. 03 Civ. 2495 (RLC), 2006 WL 2528468, at *3 (S.D.N.Y. Aug. 31, 2006); Laureano v. Goord, No. 06 Civ. 7845 (SHS) (RLE), 2007 WL 2826649, at *6 (S.D.N.Y. Aug. 31, 2007); Blakeslee v. Royal Ins. Co. of Am., No. 93 Civ. 1633 (MBM), 1998 WL 209623, at *3 (S.D.N.Y. Apr. 29, 1998). "New York rules afford plaintiffs an additional 120 days to discover the identities of anonymous defendants, so long as they 'made genuine effort[s] to ascertain the defendants' identities prior to the running of the Statu[t]e of Limitations'" and like Rule 4(m), "permit[] the 120-day period to be extended when the interest of justice so require[s]." Laureano, 2007 WL 2826649, at *6 & n.3 (citing Luckern v. Lyonsdale Energy Ltd. Partnership, 654 N.Y.S.2d 543, 545 (1997); C.P.L.R. § 306-b; Leader v. Maroney, Ponzini, & Spencer, 97 N.Y.2d 95 (2001)). In such cases, New York State courts treat "the statute of limitations [as] . . . tolled from the date of the original filing until service." Williams, 2010 WL 963474, at *12 (citations omitted).
Because, as described above, Twine was diligent in seeking to ascertain the identities of the Detectives, and the 120-day period for serving his complaint was extended by the Court for good cause until April 13, 2012, at which point Twine had served his Amended Complaint on the Detectives, New York State law provides an alternative basis upon which to deem Twine's malicious prosecution claim timely for "relation back" purposes.
Twine also contends that if relation back does not apply, the Court should equitably toll the statute of limitations. (Pl.'s Opp. at 10). Given my finding that "relation back" applies, I do not reach this argument.
* * *
None of the foregoing analysis should be interpreted, in any way, to reflect upon the merits of Twine's malicious prosecution claim, which the Detectives have not challenged in their motion. But where, as here, a litigant has filed a civil rights claim in a timely manner, engaged in diligent efforts to ascertain the identities of the defendants but, through no fault of his own, been unable to do so prior to the running of the limitations period, and where no apparent prejudice to the defendants will result from allowing the case to proceed, dismissal would be both fundamentally unfair and inconsistent with the preference for resolving disputes on their merits. See, e.g., Thomas, 1998 WL 427623, at *16 ("It is . . . the Court's duty under the law of this Circuit to allow [a] plaintiff a fair opportunity to establish the merits of his claims.") (citations omitted).
III. CONCLUSION
For the reasons stated herein, I recommend the Detectives' motion be granted as to Twine's false arrest claim set forth as Count One of the Amended Complaint, and denied as to Twine's malicious prosecution claim set forth as Count Two of the Amended Complaint.
PROCEDURE FOR FILING OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Such objections, and any responses to such objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Deborah A. Batts and to the chambers of the undersigned, United States Courthouse, 500 Pearl Street, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Batts. FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. If Plaintiff does not have access to cases cited herein that are reported on LexisNexis or Westlaw, he should request copies from Defendants' counsel. See Lebron v. Sanders, 557 F.3d 76, 79 (2d Cir. 2009). Dated: New York, New York
December 12, 2012
/s/_________
JAMES L. COTT
United States Magistrate Judge
Copies sent by ECF to counsel and by regular mail to:
Sylvester Twine Reg # 15561-056 United States Penitentiary McCreary P.O. Box 3000, Unit 4A Pine Knot, KY 42635 Sylvester Twine Reg. # 15561-056 F.C.C. Allenwood P.O. Box 2000 White Deer, PA 17887