Eisert v. Town of Hempstead

• Decision Date: 06 March 1996
• Docket Number: No. 93 CV 2388 (ADS).,93 CV 2388 (ADS).
• Citation: 918 F. Supp. 601
• Parties: Angela EISERT and Thomas Myles, Plaintiffs, v. TOWN OF HEMPSTEAD, Town of Hempstead Civil Service Commission, Nassau County Republican Committee, and Town of Hempstead Republican Committee, Defendants.
• Court: U.S. District Court — Eastern District of New York

918 F. Supp. 601

Angela EISERT and Thomas Myles, Plaintiffs, v. TOWN OF HEMPSTEAD, Town of Hempstead Civil Service Commission, Nassau County Republican Committee, and Town of Hempstead Republican Committee, Defendants.

No. 93 CV 2388 (ADS).

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

March 6, 1996.

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Law Offices of Frederick K. Brewington by Frederick K. Brewington. Daniel Cherner, New York City, for Plaintiffs.

Rivkin, Radler & Kremer by Kenneth Novikoff, Town of Hempstead and Town of Hempstead Civil Service Commission, Uniondale, New York, for Defendants.

Kwiatkowski & Ryan by John Ryan, Nassau County Republican Committee and Town of Hempstead Republican Committee, Floral Park, New York, for Defendants.

SPATT, District Judge:

Presently before the Court are three motions. The plaintiffs, Angela Eisert ("Eisert") and Thomas Myles ("Myles" collectively the "plaintiffs") have brought a motion to alter or amend the judgment pursuant to Fed.R.Civ.P. 59(e). The defendants, the Town of Hempstead (the "Town") and the Town of Hempstead Civil Service Commission (the "Commission," together the "Town defendants") have brought a motion for summary judgment by order to show cause to dismiss the remaining state law claims. The defendants Nassau County Republican Committee (the "Committee") and the Town of Hempstead Republican Committee (the "Town Committee," together the "Committee defendants") have brought a separate motion for summary judgment also to dismiss the remaining state law claims.

I. Background

The essence of this lawsuit is that the defendants allegedly deprived the plaintiffs "of employment through a patterned use of fraud, misrepresentation, misinformation, political patronage, abuse and manipulation of laws, rules and regulations." The plaintiffs contend that their denial of employment violated 42 U.S.C. § 1983, the First Amendment of the United States Constitution, the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961-68, and related state law.

On February 5, 1996, this Court granted the defendants' motions for summary judgment with respect to the plaintiffs' section 1983 and RICO claims on the grounds that those causes of actions were time barred. The Court, however, retained supplemental jurisdiction over the remaining state law claims pursuant to 28 U.S.C. § 1367 due to the fact that this case is on the eve of trial and because of the Court's concern that these claims would be time barred if refiled in state court. Familiarity with the Court's earlier decision is presumed. See Eisert v. Town of Hempstead, 1996 WL 50022 (E.D.N.Y.1996).

The facts of this case are briefly recounted as follows. The plaintiffs, residents of Nassau County, took a civil service examination in 1987 in order to apply for the position of Assistant to the Commissioner of Purchasing for the Town of Hempstead. Myles received the second highest score on the examination and Eisert received the third highest score. According to New York Civil Service Law § 61 the appointing officer, in this case Frank Lauria ("Lauria"), the Purchasing Commissioner, is required to fill the position with one of the top three scorers. This method of selection is referred to as the "rule of three." If one of the top three scorers declines the position, his or her application is replaced with that of the next highest scorer. This process is repeated until the appointing officer has a pool of three applicants from which to choose.

On August 18, 1987, the plaintiffs were told to appear for interviews. Eisert admits that during her interview she was questioned regarding her political affiliation. Further, Eisert asserts that she was originally offered a position, apparently during her interview. However, as indicated below, Lauria subsequently changed his mind. Moreover, on September 3, 1987, Eisert called Lauria's office to inquire as to whether a final hiring decision had been made. She was informed by Lauria's secretary that both Morton Yuter, the applicant with the highest test score, and Myles had declined the position although they apparently contend that they had never been offered the job. Myles however, does not allege that any misrepresentations were made to him.

According to the plaintiffs, Morton Yuter, the applicant who had received the highest score on the examination was eliminated from the pool of three after volunteering that he would be unavailable to begin working for three weeks. Although the facts are disputed, the plaintiffs assert that Yuter was never informed that time was of the essence with respect to the job. Rather, the defendants were looking for an excuse to disregard his application and consider John Meehan, the fourth highest scorer for the position. The plaintiffs further contend that Meehan was then bribed to decline the offer so that the defendants could consider Gary Parisi, the fifth highest scorer and a Republican Committeeman who already occupied the position of Assistant to the Commissioner of Purchasing, in a provisional capacity.

On September 9, 1987, the plaintiffs each received a letter informing them that they were not selected for the job. Although the Committee defendants used September 15, 1987 as the operative date, the Court will use September 9, 1987 to facilitate its analysis.

The plaintiffs filed their complaint on May 26, 1993 alleging that they were denied employment in violation of their First Amendment rights to free association, the RICO statute and related state law.

On January 26, 1996, the defendants filed two motions for summary judgment claiming that the plaintiffs' federal claims were time barred and that the pendent state law claims should be dismissed for lack of subject matter jurisdiction pursuant to United Mine Workers v. Gibbs, 383 U.S. 715, 726-27, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966).

As stated above, in a decision dated February 5, 1996, this Court granted the defendants' motions for summary judgment with respect to the plaintiffs' constitutional and RICO claims but retained jurisdiction over the state law claims because this case is on the eve of trial and because of the Court's concern with respect to the state law claims being untimely if they were refiled in state court.

In finding the plaintiffs' federal causes of action time barred this Court held that their claims accrued on September 9, 1987, the date the plaintiffs were informed of the adverse employment decision, namely the decision denying them the job as Assistant to the Commissioner of Purchasing. Because section 1983 claims have a three year statute of limitations, Eagleston v. Guido, 41 F.3d 865, 871 (2d Cir.1994), and RICO claims have a four year statute of limitations, Agency Holding Corp. v. Malley-Duff & Assocs., Inc., 483 U.S. 143, 156, 107 S.Ct. 2759, 2767, 97 L.Ed.2d 121 (1987), the complaint, which was filed on May 26, 1993, over five years later, was untimely.

In addition this Court held that the doctrines of equitable tolling and fraudulent concealment did not apply. These doctrines toll the statute of limitations until a plaintiff discovers, or with the exercise of reasonable diligence should have discovered, the underlying cause of action. However, to "take advantage of the equitable tolling doctrine based on fraudulent concealment, `a plaintiff must submit non-conclusory evidence of a conspiracy or other fraudulent wrong which precluded his possible discovery of the harms that he suffered.'" Eisert at * 6, citing, Pinaud v. County of Suffolk, 52 F.3d 1139, 1157 (2d Cir.1995) (emphasis in original). Applying these standards the Court held that the plaintiffs should have known of their injury on September 9, 1987, the date they were denied the job. Moreover, since there was no evidence of the plaintiffs attempting to discover the infringement of their rights, the relevant statutes of limitations were not tolled. Accordingly, the plaintiffs' claims pursuant to section 1983 and RICO were time barred and the defendants' motions for summary judgment were granted.

II. The plaintiffs' Rule 59 motion

As stated above the plaintiffs move to alter or amend the judgment pursuant to Fed.R.Civ.P. 59(e). However, no final judgment was entered. Accordingly, the plaintiffs' motion is properly referred to as a motion for reconsideration pursuant to Local Rule 3(j) of the Local Rules of the United States Courts for the Southern and Eastern Districts of New York. Local Rule 3(j) provides as follows:

A notice of motion for reargument shall be served within ten (10) days after the docketing of the court's determination of the original motion ... There shall be served with the notice of motion a memorandum setting forth concisely the matters or controlling decisions which counsel believes the court has overlooked. No oral argument shall be heard unless the court grants the motion and specifically directs that the matter shall be reargued orally. No affidavits shall be filed by any party unless directed by the court. (emphasis added)

The standard for granting a motion for reargument is strict "in order to dissuade repetitive arguments on issues that have already been considered fully by the Court." Ruiz v. Commissioner of the D.O.T. of City of New York, 687 F.Supp. 888, 890 (S.D.N.Y. 1988), aff'd, 858 F.2d 898 (2d Cir.1988). Granting such a motion means that a court must find that it overlooked "matters or controlling decisions" which, if it had considered such issues, "would have mandated a different result." H. Sand & Co., Inc. v. Airtemp Corp., 743 F.Supp. 279, 280 (S.D.N.Y.1990), aff'd in part and rev'd in part, 934 F.2d 450 (2d Cir.1991), citing Durant v. Traditional Investments, Ltd., 1990 WL 269854 (S.D.N.Y. April 25, 1990).

The defendants oppose the motion arguing that the plaintiffs do not contend that the Court overlooked "matters or controlling decisions," which would have mandated a different result. Rather, t...