Armatas v. Maroulleti, 08-CV-0310(SJF)(RER)

• Decision Date: 24 July 2014
• Docket Number: 08-CV-0310(SJF)(RER)
• Court: U.S. District Court — Eastern District of New York
• Parties: PANAGIOTIS ARMATAS, Plaintiff, v. ELENA MAROULLETI, THE CITY OF NEW YORK, THE NEW YORK CITY POLICE DEPARTMENT, ERIC CHRISTOPHERSEN, ROBERT EDWIN, STEVEN BORCHERS, ALVIN GOMEZ, SGT. GOETZ, and CASEY ALPERT, Defendants.

PANAGIOTIS ARMATAS, Plaintiff,
v.
ELENA MAROULLETI, THE CITY OF NEW YORK,
THE NEW YORK CITY POLICE DEPARTMENT,
ERIC CHRISTOPHERSEN, ROBERT EDWIN, STEVEN BORCHERS,
ALVIN GOMEZ, SGT. GOETZ, and CASEY ALPERT, Defendants.

08-CV-0310(SJF)(RER)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

FILED: JULY 24, 2014

ORDER

FEUERSTEIN, J.

On July 29, 2009, plaintiff Panagiotis Armatas ("plaintiff") filed an amended complaint against Elena Maroulleti ("Maroulleti"), and the City of New York, New York City Police Department, Detective Eric Christophersen, Robert Edwin, Steven Borchers, Alvin Gomez ("Gomez"), John Goetz of the New York City Police Department, and Carey Alpert (collectively, "City Defendants"), alleging that defendants violated 42 U.S.C. § 1983 and asserting state law tort claims. [Docket Entry No. 41]. The City Defendants and Maroulleti each filed a motion for summary judgment. [Docket Entry Nos. 95, 100].

On October 19, 2010, Magistrate Judge Ramon E. Reyes, Jr. issued a Report and Recommendation (the "Report") that: (1) the City Defendants' motion be granted in its entirety; and (2) Maroulleti's motion be granted in part and denied in part. [Docket Entry No. 130]. On October 21, 2010, plaintiff filed objections to the Report ("Pl. Obj. to Report"). [Docket Entry No. 139]. On October 22, 2010, this Court overruled plaintiff's objections and adopted the Report ("10/22/2010 Order"), in part, by: (1) granting the City Defendants' motion for summary

Page 2

judgment in its entirety; (2) granting Maroulleti's summary judgment motion as to all claims except the remaining state claims of false arrest and malicious prosecution; and (3) dismissing plaintiff's remaining state claims for lack of subject matter jurisdiction. [Docket Entry No. 140].

On October 22, 2010, judgment was entered dismissing the complaint and closing this action (the "Judgment"). [Docket Entry No. 141]. On November 9, 2010, plaintiff filed a notice of appeal of the Judgment. [Docket Entry No. 143]. On May 30, 2012, following a de novo review of this Court's order granting summary judgment, the United States Court of Appeals for the Second Circuit ("Second Circuit") issued a summary order affirming the Judgment of this Court. Armatas v. Maroulleti, 484 F. App'x 576 (2d Cir. May 30, 2012) [Docket Entry No. 159]. On April 1, 2013, the Supreme Court of the United States ("Supreme Court") denied plaintiff's petition for writ of certiorari to review the Second Circuit's May 30, 2012 summary order. Armatas v. Maroulleti, 133 S.Ct. 1727, 185 L.Ed.2d 787 (2013). On June 3, 2013, the Supreme Court denied plaintiff's petition for rehearing of the denial of his petition for writ of certiorari. Armatas v. Maroulleti, 133 S.Ct. 2791, 186 L.Ed.2d 235 (2013).

On July 8, 2013, plaintiff filed a motion seeking relief from the Judgment pursuant to Federal Rule of Civil Procedure 60(b)(6) ("First Motion for Reconsideration"). [Docket Entry No. 162]. On February 4, 2014, this Court denied plaintiff's First Motion for Reconsideration. [Docket Entry No. 169].

On October 18, 2013, plaintiff filed a motion for contempt of non-party Michael N. Gianaris ("Gianaris") pursuant to Rule 45 of the Federal Rules of Civil Procedure for failure to comply with a subpoena ("Motion for Contempt of Gianaris"). [Docket Entry No. 164]. On January 8, 2014, plaintiff filed a motion for contempt against Maroulleti, Gomez, "and their counsels Alan C. Kestenbaum (Kestenbaum) and Qianna Smith-Williams (Smith-Williams)"

Page 3

pursuant to Rule 56(h) of the Federal Rules of Civil Procedure "for submitting affidavits and declarations in bad faith" ("Motion for Contempt of Defendants"). [Docket Entry No. 167]. On January 25, 2014, Kestenbaum filed a letter, on behalf of himself and Maroulleti, opposing the Motion for Contempt of Defendants ("K&M Opp."), and cross-moving for sanctions, attorneys' fees, and to renew their motion for taxation and costs ("K&M Costs Motion").¹ [Docket Entry No 168].

On February 14, 2014, plaintiff filed a motion for reconsideration of this Court's February 4, 2014 order denying the First Motion for Reconsideration ("Motion for Reconsideration"). [Docket Entry No. 171].

For the reasons that follow, plaintiff's motions are denied, and Maroulleti's and Kestenbaum's cross motion is granted in part and denied in part.

I. Analysis

A. Motion for Reconsideration

Plaintiff's Motion for Reconsideration of the February 4, 2014 order denying the First Reconsideration Motion is denied.

B. Motion for Contempt of Gianaris

According to plaintiff, he obtained a subpoena from the pro se clerk's office on June 25, 2009, which directed Gianaris to produce "certified copies and usage details for the phone number 718 545-3889 and for your cell phone number for the time period 6-24-06 to 8-28-2006" and to "[i]nclude incoming and outgoing calls when possible" (the "Subpoena"). Mot. for

Page 4

Contempt of Gianaris, Ex. B. Plaintiff contends that "Gianaris never responded to the subpoena." Mot. for Contempt of Gianaris, at 3.

On October 18, 2013, nearly three (3) years and four (4) months after the Subpoena was issued, and three (3) years after judgment was entered closing this case, plaintiff filed the instant motion pursuant to Rule 45 of the Federal Rules of Civil Procedure seeking an order holding Gianaris in contempt for failing to comply with the Subpoena. [Docket Entry No. 164]. Upon termination of this action on October 22, 2010, all outstanding discovery requests, including the Subpoena, were terminated. Plaintiff's motion to hold non-party Gianaris in contempt for failing to comply with the Subpoena is untimely and moot. See Dluhos v. Floating & Abandoned Vessel Known as New York, 979 F.Supp. 138, 141 (N.D.N.Y. 1997) ("In light of the dismissal of this action, [plaintiff's] motions . . . for sanctions against [claimaint] for discovery violations are moot."), aff'd, 162 F.3d 63 (2d Cir. 1998); Brandt v. Vulcan, Inc., 30 F.3d 752, 757 (7th Cir. 1994) (holding that unreasonable delay rendered motion for sanctions untimely where plaintiff had "obvious suspicion that [defendant's] responses were incomplete or false" years before, but "let the matter rest"). Accordingly, plaintiff's motion to hold non-party Gianaris in contempt is denied.

C. Motion for Contempt of Defendants

Plaintiff now moves pursuant to Rule 56(h) of the Federal Rules of Civil Procedure for an order holding defendant Maroulleti, and her attorney, Kestenbaum, and defendant Gomez, and his attorney, Smith-Williams, in contempt for submitting affidavits and declarations in bad faith. Plaintiff has a history of filing similar motions for sanctions in this action, all of which have been denied.² The Court again declines to impose sanctions and plaintiff's Motion for Contempt of

Page 5

Defendants is denied. See Stern v. Regency Towers, LLC, 886 F. Supp. 2d 317, 327 (S.D.N.Y. 2012) (denying 56(h) motion for sanctions because there was no evidence to rise to level of misconduct required for imposition of sanctions); Baseball Quick, LLC v. MLB Advanced Media, L.P., No. 11 Civ. 1735, 2012 WL 1071230, at *5 (S.D.N.Y. Mar. 30, 2012) (declining to impose sanctions under 56(h) where any misstatements in declarations were either mistakes or were corrected).

Just as with plaintiff's previous motions for sanctions, the instant motion...