Davidson v. Keenan, s. 1058

Decision Date18 July 1984
Docket NumberNos. 1058,1214,D,s. 1058
Citation740 F.2d 129
PartiesStephen DAVIDSON and Mary Parshall, Plaintiffs-Appellants/Cross-Appellees, v. Joseph KEENAN, Suffolk County District Attorney's Office and Suffolk County Department of Civil Service, Defendants-Appellees/Cross-Appellants. ockets 83-9065, 84-7005.
CourtU.S. Court of Appeals — Second Circuit

Barbara Simon, Mineola, N.Y., (Solerwitz, Solerwitz & Leeds, Mineola, N.Y., of counsel), for plaintiffs-appellants/cross-appellees.

Theodore D. Sklar, Asst. County Atty., Hauppauge, N.Y. (Martin Bradley Ashare, Suffolk County Atty., Hauppauge, N.Y., of counsel), for Suffolk County Dist. Atty.'s Office and Suffolk County Dept. of Civil Service.

Robert Schaufeld, Mineola, N.Y. (Axelrod, Cornachio & Famighetti, Mineola, N.Y., of counsel) for Joseph Keenan.

Before LUMBARD, MANSFIELD and WINTER, Circuit Judges.

LUMBARD, Circuit Judge:

Plaintiffs-appellants Stephen Davidson and Mary Parshall appeal from the dismissal of their Sec. 1983 civil rights action in the Eastern District of New York, Glasser, J. Defendants-appellees Suffolk County District Attorney's Office, Suffolk County Department of Civil Service, and Joseph Keenan, an employee of the Suffolk County District Attorney's Office, cross-appeal from the denial of their motion for attorneys' fees, pursuant to 42 U.S.C. Sec. 1988.

We affirm the dismissal of appellants' suit, and reverse and remand for reconsideration the denial of appellees' motion for attorneys' fees.

Appellants' Sec. 1983 claim is based on an alleged conspiracy between members of the Suffolk County District Attorney's (D.A.'s) Office and the Suffolk County Department of Civil Service to bypass appellants for civil service appointment as Detective-Investigators with the D.A.'s Office. The events alleged in support of that claim are as follows.

In April, 1978, appellants Stephen Davidson and Mary Parshall, both then employed by the Suffolk County D.A.'s Office as probation officers, and appellee Joseph Keenan, then employed as a provisional Detective Investigator in the same office, took a Suffolk County civil service examination for the permanent position of Detective Investigator. Davidson, Parshall and Keenan were ranked 20, 22 and 44, respectively, on the certified list of eligible candidates issued on October 20, 1978. Subsequent modified lists continued to rank Davidson, Parshall and Keenan in the same relative positions.

On May 22, 1979, Keenan instituted a proceeding in New York State Supreme Court, Suffolk County, pursuant to Article 78 of the New York Civil Practice Law, to strike from the list of eligibles Parshall, Davidson, and three other candidates who ranked above him. Parshall, Davidson, and two of the three other candidates filed a cross-motion to have Keenan struck from the list on the ground that he had concealed on his application the fact that he did not meet the residency requirements. On April 23, 1980, the state court struck Keenan's name from the list, finding that his misstatement of residence was a "fraud of a substantial nature," but denied Keenan's motion to strike appellants' names.

Thereafter, eleven candidates, not including appellants, were appointed from the eligibles list to the position of Detective Investigator. Some of those appointed had been ranked lower than appellants on the list. On August 14, 1981, appellants commenced this action in the Eastern District, alleging that Keenan and the Suffolk County D.A.'s Office had conspired with the Suffolk County Department of Civil Service to bypass appellants for appointment, in retaliation for appellants' having successfully moved in the Article 78 proceeding to have Keenan's name struck from the list. Charging that the conspiracy violated rights guaranteed to them under the First, Fifth, Seventh, Ninth and Fourteenth Amendments, appellants sought declaratory and injunctive relief and damages pursuant to 42 U.S.C. Secs. 1983 and 1985 and 28 U.S.C. Sec. 2201.

By a pretrial scheduling order dated June 28, 1982, discovery was to be completed by January 15, 1983, and trial was set for September 19, 1983. Although discovery was subsequently extended to March 31, 1983, to allow Davidson and Parshall time to depose defendants, they did not do so. On June 16, 1983, defendants' attorney contacted Davidson's and Parshall's attorney to request that he discuss with his clients the possibility of discontinuing their action on the grounds that it was frivolous. On September 7, 1983, plaintiffs' counsel advised that his clients wished to proceed with the action.

Trial was rescheduled for November 7, 1983. On September 28, 1983, defendants moved to dismiss the complaint under Fed.R.Civ.P. 12(b)(6), or, in the alternative, Fed.R.Civ.P. 56(b), and for an award of attorneys' fees from plaintiffs pursuant to 42 U.S.C. Sec. 1988. In support of their Rule 12(b)(6) motion to dismiss, defendants argued that as to all three defendants, plaintiffs had failed to allege any specific facts to support their conclusory allegations either of deprivation of constitutional rights, 1 see Batista v. Rodriquez, 702 F.2d 393, 397 (2d Cir.1983), or of conspiracy under 42 U.S.C. Sec. 1985, see Koch v. Yunich, 533 F.2d 80, 85 (2d Cir.1976). Additionally, they argued that as to the two municipal defendants, plaintiffs had failed to allege that the objectionable conduct charged was the result of a governmental policy or custom, as required by Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), and its progeny, see, e.g., Batista v. Rodriquez, supra. Finally, they argued that as to defendant Keenan, plaintiffs had failed to plead any facts indicating that the objectionable conduct alleged was pursued under color of state law.

In support of their motion in the alternative for summary judgment, defendants submitted, inter alia, an affidavit from Morton Stark, Chief of Examinations for Suffolk County Department of Civil Service, stating that plaintiffs were lawfully bypassed for appointment pursuant to Sec. 61 of the New York Civil Service Law. 2 They also submitted an affidavit from George Holmes, Chief Investigator for the Suffolk County D.A.'s Office, stating that Keenan, as Holmes's subordinate, had no authority over the appointments made, and noting that two of the three other cross-movants involved in the successful Article 78 proceeding to remove Keenan from the eligibles list had not been bypassed for appointment, thereby refuting plaintiffs' retaliation theory.

Defendants' motion to dismiss, returnable on October 14, 1983, was served on plaintiffs' attorneys and filed with the court on September 30, 1983--several days before the ten-day notice deadline set by the motion practice of Judge Glasser and Fed.R.Civ.P. 56(c). When the motion was called on October 14, counsel for plaintiffs, who had submitted no papers in opposition to the motion, requested additional time to obtain affidavits from non-party witnesses. Noting that plaintiffs should have sought an extension of time to file affidavits prior to the motion return date, see Fed.R.Civ.P. 56(f), the court denied plaintiffs' belated request and deemed the motion to be submitted on October 14 unopposed.

On October 20, Judge Glasser's chambers received from plaintiffs' counsel an unfiled "Notice of Cross-Motion to Extend Time to Answer Defendants' Motion," with supporting papers. Declining to consider the opposition papers on the ground that they were untimely filed, on November 30, 1983, the court granted summary judgment to defendants on the basis of their unopposed statement of material facts. The court denied defendants' motion for attorneys' fees, on the ground that as plaintiffs had acted under advice of counsel to proceed in their suit, they were deemed to have acted in "good faith" for purposes of 42 U.S.C. Sec. 1988.

Plaintiffs appeal from the grant of summary judgment, on the ground that the court abused its discretion in refusing to consider their late-filed papers in opposition to the motion. Defendants cross-appeal from the denial of attorneys' fees, asserting that the court applied an improper standard in reviewing their claim.

The district court properly granted appellees' motion for summary judgment. Under the Federal Rules and the rules of the district court, appellants were required to oppose or otherwise respond to appellees' motion to dismiss prior to the return date. Fed.R.Civ.P. 56(c); Motion Practice of District Judge I. Leo Glasser, condition 2. Had appellants applied to the court within that prescribed period for an extension of time to respond, the court in its discretion would have been free to grant such an extension "for cause shown," pursuant to Fed.R.Civ.P. 6(b)(1) or 56(f). However, as appellants failed to communicate their difficulties to the court at all until the hearing on October 14th and did not move for an extension of time until October 20th, their motion is governed by Rule 6(b)(2), not Rule 6(b)(1).

Rule 6(b)(2) provides that the court may "upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect." The determination whether neglect is "excusable" in a particular case rests with the sound discretion of the district court. Manhattan-Ward, Inc. v. Grinnell Corporation, 490 F.2d 1183, 1186 (2d Cir.1974). We find no abuse of that discretion here. Appellants excuse their failure to make a timely request on the ground that they were unable to locate until after the return date of the motion two nonparty witnesses whose affidavits were essential to counter appellees' motion to dismiss. Accepting arguendo the truth of that assertion, it simply does not explain why appellants failed to request additional time prior to the return date of the motion. As it is undisputed that appellees' motion...

To continue reading

Request your trial
80 cases
  • Rounseville v. Zahl
    • United States
    • U.S. District Court — Northern District of New York
    • April 15, 1993
    ...a stronger basis to support such a conclusion. Colombrito v. Kelly, 764 F.2d 122, 128-29 (2d Cir. 1985); see also Davidson v. Keenan, 740 F.2d 129, 133 (2d Cir.1984) (discussing appropriateness of an award of fees for defendants even when plaintiffs act in good faith on bad advice from thei......
  • Blackwelder v. Safnauer
    • United States
    • U.S. District Court — Northern District of New York
    • June 17, 1988
    ...itself is meritless," and the court is to measure the merits of the plaintiff's claim against an objective standard. Davidson v. Keenan, 740 F.2d 129, 133 (2d Cir.1984). In the instant action, none of plaintiffs' claims sink to the level of frivolity contemplated by this standard, and thus ......
  • Hueble v. S.C. Dep't of Natural Res.
    • United States
    • South Carolina Supreme Court
    • April 27, 2016
    ...F.2d 989, 991 (10th Cir.1986) (holding a plaintiff's ability to pay attorneys' fees is not a special circumstance); Davidson v. Keenan, 740 F.2d 129, 133 (2d Cir.1984) (finding a defendant's reliance on the advice of counsel does not create special circumstances).8 We note that Justice O'Co......
  • Cooper Industries, Inc. v. Agway, Inc.
    • United States
    • U.S. District Court — Northern District of New York
    • November 17, 1997
    ...to grant parties permission to file untimely papers upon a showing of good cause. See, e.g., Local Rule 7.1(b)(3); Davidson v. Keenan, 740 F.2d 129, 132 (2d Cir.1984); Wood v. Santa Barbara Chamber of Commerce, Inc., 705 F.2d 1515, 1519 (9th Cir.1983), cert. denied, 465 U.S. 1081, 104 S.Ct.......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT