Dacosta v. City of N.Y., 15–CV–5174

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Writing for the CourtJack B. Weinstein, Senior United States District Judge
Citation296 F.Supp.3d 569
Docket Number15–CV–5174
Decision Date08 November 2017
Parties Maxie DACOSTA, Plaintiff, v. The CITY OF NEW YORK, Detective David Shapiro, Shield #6054, and Police Officers John and Jane Doe #1 through 20, individually and in their official capacities, Defendants.

296 F.Supp.3d 569

Maxie DACOSTA, Plaintiff,
v.
The CITY OF NEW YORK, Detective David Shapiro, Shield #6054, and Police Officers John and Jane Doe #1 through 20, individually and in their official capacities, Defendants.

15–CV–5174

United States District Court, E.D. New York.

Signed November 8, 2017


296 F.Supp.3d 575

Kim Richman, Clark A. Binkley, Javier Osvaldo Hidalgo, The Richman Law Group, 81 Prospect Street, Brooklyn, NY 11201, (212)687–8291, Fax: (718)228–8522, krichman@richmanlawgroup.com, for Maxie DaCosta

Kavin Suresh Thadani, Daniel G. Saavedra, New York City Law Department, Special Federal Litigation Division, 100 Church Street, New York, NY 10007, 212–356–3534, Fax: 212–356–3509, kthadani@law.nyc.gov, for The City of New York, Det. David Shapiro

MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION FOR LEAVE TO AMEND HIS COMPLAINT

Jack B. Weinstein, Senior United States District Judge:

Table of Contents

I. Introduction...576

II. Facts...576

III. Procedural History...577

IV. Law...578

A. Standard of Review from Objections to Magistrate Judge's Report and Recommendations...578

B. Statute of Limitations...579

C. Motion for Leave to Amend a Pleading...583

D. Relation Back...584

1) Federal Rule 15(c)(1)(A)...584

a) New York CPLR 1024...584

b) New York CPLR 203...585

2) Federal Rule 15(c)(1)(C)...590

E. Disclosure Obligations...595

F. Particular Need for Discovery in Police Civil Rights Cases...596

G. Ethical Obligations of Government Counsel...599

V. Application of Law to Facts...603

296 F.Supp.3d 576

A. Ethical Obligations of Counsel...604

B. Leave to Amend Under Federal Rules 15 and 16...605

C. Relation Back Under Federal Rule 15(c)(1)(A)...606

D. Relation Back Under Federal Rule 15(c)(1)(C)...606

VI. Conclusion...607

I. Introduction

Two legal issues are central to this civil rights opinion: first, is it ethical for a government defense attorney to fail to correct plaintiff's counsel's misconception about the proper defendant; and second, should the relation back of an amendment adding a new defendant be allowed nunc pro tunc to avoid a statute of limitations defense pursuant to the standards of the Supreme Court and the New York Court of Appeals rather than the more rigid standards sometimes applied in cases decided in the Second Circuit. The answer to the first question is "no," such a practice of holding back the identity of the proper defendant is neither ethical nor allowed in the Eastern District of New York under local and national rules. And to the second, "yes," the more flexible standards of the two highest courts allow a nunc pro tunc amendment avoiding the statute of limitations.

Plaintiff has alleged serious civil rights violations by a New York City police officer. He filed suit the day before the expiration of the statute of limitations naming the wrong police officer in his complaint about his prosecution for robbery. The City's attorney representing the named officer possessed, or should have possessed, knowledge about which police officer was involved in the investigation leading to Plaintiff's prosecution for robbery. When Plaintiff finally learned the name of the officer who was responsible for the alleged harm, the attorney for the City claimed it was too late to amend the complaint to name the proper party.

Plaintiff's amended complaint naming the proper police officer is allowed, with a relation back to the time the original complaint was filed. Defendants' motion for summary judgement on the grounds of a statute of limitations defense is denied.

II. Facts

Plaintiff was accused of three crimes in 2007: homicide, escape, and robbery. He was acquitted of the homicide and escape by a jury, and the robbery charge was shortly after dismissed. This suit is based primarily on a theory that the police lacked probable cause to bring charges and prosecute Plaintiff for the robbery.

The homicide and escape charges are unrelated to the robbery. Oct. 23, 2017 Hr'g Tr. 12:12–20. Plaintiff was accused of committing a murder on July 28, 2007, id. 16:12–20, and it was alleged that while in custody for the homicide charge, Plaintiff, while under the supervision of Detective David Shapiro, escaped from the police precinct, id. 9:25–10:6. Eventually, Plaintiff was sent to jail on the homicide and escape charges. Id. 16:12–17:8; Am. Compl. ¶ 12.

The robbery charge that forms the basis of the present civil suit is based on a different set of facts. On the evening of July 28, 2007, an armed man entered a retail sports store, threatened and assaulted employees, and forcibly removed $4,600 from the cash register. Plaintiff's Response to Defendants' Statement Pursuant to Local Rule 56.1 ("56.1 Stmt.") at ¶ 1, ECF No. 65.

About a month later, on August 29, 2007, one of the robbery victims, Mohammad Sarwar, was watching the news on television and saw a picture of Plaintiff on a

296 F.Supp.3d 577

wanted poster related to the homicide and escape accusations. Id. at ¶¶ 2, 3. Mr. Sarwar believed that Plaintiff was the person who robbed the store the previous month; he contacted the 106th Precinct Detective Squad. Id.

A day later, he met with Detective Fortunato Tranchina, the lead detective responsible for investigating the robbery. Id. at ¶¶ 4–5. Mr. Sarwar was shown a photo array at the precinct and again identified Plaintiff. Id. at ¶ 7. The photo array contained a photograph from the wanted poster that Mr. Sarwar had seen the day earlier—the same photograph that prompted him to come forward to the police. Id. Two other eyewitness-victims of the robbery were also there, Anita Saunders and James Cadawan. Id. They had seen the same wanted poster that Mr. Sarwar saw the prior day, but they expressed some uncertainty about whether Plaintiff was the perpetrator of the robbery. Id.

On March 11, 2008, Mr. Sarwar, Ms. Saunders, and Mr. Cadawan returned to the precinct to view a lineup. Id. at ¶ 8. Mr. Sarwar identified Plaintiff as the guilty person. Id. Ms. Saunders and Mr. Cadawan viewed the lineup, but did not identify Plaintiff. Id. Ms. Saunders identified a different person with 80% confidence and Mr. Cadawan told the police that he did not recognize any of the people in the lineup. Id.

On April 24, 2008, Detective Tranchina arrested Plaintiff, who was already in jail on the other charges—homicide and escape—and signed a criminal court complaint charging him with two counts of Robbery in the First Degree. Id. at ¶¶ 9, 11. Plaintiff was, on May 15, 2008, indicted by a Grand Jury for one count of Robbery in the First Degree, one count of Robbery in the Second Degree, two counts of Assault in the Second Degree and one count of Criminal Possession of a Weapon (in the robbery) in the Fourth Degree. Id. at ¶ 13. On September 3, 2008, a criminal court judge determined that the indictment was not defective. Id. at ¶¶ 14–15.

After spending several years in jail on the robbery, homicide, and escape charges, Plaintiff was tried and acquitted of the homicide and escape. Am. Compl. ¶ 22. That same day he was released from jail on his own recognizance. Id. at ¶ 23. A month later, on September 6, 2012, the robbery charges were dismissed. Id. at ¶ 13.

Detective Tranchina was the lead detective on the robbery case, which forms the basis of this lawsuit. Plaintiff and his counsel were under the mistaken notion that Detective Shapiro, the officer who was involved in the murder investigation, and from whose custody Plaintiff allegedly escaped, was in charge of the robbery investigation. See Compl. Plaintiff filed suit on this assumption, and named as defendants Detective Shapiro along with twenty John and Jane Doe officers. Id.

Plaintiff believed that Shapiro had orchestrated his arrest for the robbery as payback for his alleged escape. Oct. 23, 2017 Hr'g. Tr. 9:16–10:13. In discovery, Plaintiff found no evidence that this theory was true, but learned of the extensive involvement of Detective Tranchina in the robbery prosecution. Id.

III. Procedural History

Plaintiff filed suit on September 5, 2015. See Compl. As amended, the complaint asserts claims under 42 U.S.C. § 1983 for deprivation of federal civil rights, malicious abuse of process, malicious prosecution, municipal liability, and a claim for intentional infliction of emotional distress under New York state law. See Am. Compl. at 5–10. The original complaint named The City of New York, David Shapiro, a detective,

296 F.Supp.3d 578

and twenty John and Jane Doe defendants. See Compl. at 1.

On February 26, 2016, Defendants filed a motion to dismiss the action for failure to state a claim. Plaintiff then amended his complaint on March 18, 2016, mooting the motion to dismiss. See April 19, 2016 Order, ECF No. 21. On June 3, 2016, Defendants answered Plaintiff's First Amended Complaint. See Answer, ECF. No. 25.

After engaging in discovery, on January 9, 2017, Plaintiff filed a motion to...

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27 practice notes
  • Zhang Jingrong v. Chinese Anti-Cult World Alliance, 15–CV–1046
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • May 30, 2018
    ...written consent or the court's leave. The court should freely give leave when justice so requires.' " DaCosta v. City of New York , 296 F.Supp.3d 569 (E.D.N.Y. 2017) (quoting Fed. R. Civ. P. 15(a)(2) ), reconsideration denied sub nom. DaCosta v. Tranchina , 285 F.Supp.3d 566 (E.D.N.Y. 2018)......
  • Leonard v. Gen. Motors L.L.C., No. 3:19-cv-1682 (SRU)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • November 30, 2020
    ...cannot be characterized as a mistake." Hogan v. Fischer , 738 F.3d 509, 518 (2d Cir. 2013) ; see also DaCosta v. City of New York , 296 F. Supp. 3d 569, 592–93 (E.D.N.Y. 2017) ("Despite Krupski ’s admonition that courts focus on the knowledge of the defendant, rather than that of the plaint......
  • Boston v. Suffolk Cnty., 14-cv-5791 (ADS) (AKT)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • January 9, 2018
    ...15(c)").Contrary to the Plaintiff's arguments, Barrow is still the law of the Second Circuit. See, e.g., DaCosta v. City of New York , 296 F.Supp.3d 569, 593 (E.D.N.Y. 2017) ("[T]he Court of Appeals for the Second Circuit has not yet abandoned the Barrow rule."). In fact, in Hogan , the Cou......
  • Ash v. City of N.Y., 1:16-cv-9548-GHW
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • January 6, 2020
    ...a defendant; instead they rule that Section 1983 claims are time-barred against the newly named defendants." Dacosta v. City of N.Y., 296 F. Supp. 3d 569, 591 (E.D.N.Y. 2017) (citing Feliciano v. County of Suffolk, No. CV 04-5321, 2013 WL 1310399 (E.D.N.Y. Mar. 28, 2013); Felmine v. City of......
  • Request a trial to view additional results
27 cases
  • Zhang Jingrong v. Chinese Anti-Cult World Alliance, 15–CV–1046
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • May 30, 2018
    ...written consent or the court's leave. The court should freely give leave when justice so requires.' " DaCosta v. City of New York , 296 F.Supp.3d 569 (E.D.N.Y. 2017) (quoting Fed. R. Civ. P. 15(a)(2) ), reconsideration denied sub nom. DaCosta v. Tranchina , 285 F.Supp.3d 566 (E.D.N.Y. 2018)......
  • Leonard v. Gen. Motors L.L.C., No. 3:19-cv-1682 (SRU)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • November 30, 2020
    ...cannot be characterized as a mistake." Hogan v. Fischer , 738 F.3d 509, 518 (2d Cir. 2013) ; see also DaCosta v. City of New York , 296 F. Supp. 3d 569, 592–93 (E.D.N.Y. 2017) ("Despite Krupski ’s admonition that courts focus on the knowledge of the defendant, rather than that of the plaint......
  • Boston v. Suffolk Cnty., 14-cv-5791 (ADS) (AKT)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • January 9, 2018
    ...15(c)").Contrary to the Plaintiff's arguments, Barrow is still the law of the Second Circuit. See, e.g., DaCosta v. City of New York , 296 F.Supp.3d 569, 593 (E.D.N.Y. 2017) ("[T]he Court of Appeals for the Second Circuit has not yet abandoned the Barrow rule."). In fact, in Hogan , the Cou......
  • Ash v. City of N.Y., 1:16-cv-9548-GHW
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • January 6, 2020
    ...a defendant; instead they rule that Section 1983 claims are time-barred against the newly named defendants." Dacosta v. City of N.Y., 296 F. Supp. 3d 569, 591 (E.D.N.Y. 2017) (citing Feliciano v. County of Suffolk, No. CV 04-5321, 2013 WL 1310399 (E.D.N.Y. Mar. 28, 2013); Felmine v. City of......
  • Request a trial to view additional results

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