Fabian v. Pappalardo

• Decision Date: 20 July 2019
• Docket Number: 1:18-cv-9096-GHW
• Citation: 395 F.Supp.3d 257
• Parties: Ramon FABIAN and Victor Vasquez, Plaintiffs, v. New York City Police Officer Michael A. PAPPALARDO and New York City Police Officer John Paul Leddy, Defendants.
• Court: U.S. District Court — Southern District of New York

395 F.Supp.3d 257

Ramon FABIAN and Victor Vasquez, Plaintiffs,

v.New York City Police Officer Michael A. PAPPALARDO and New York City Police Officer John Paul Leddy, Defendants.

1:18-cv-9096-GHW

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

Signed July 20, 2019

Filed July 22, 2019

Ralph DeSimone, DeSimone & Associates, LLC, New York, NY, for Plaintiffs.

Evan F. Jaffe, New York City Law Department, Office of the Corporation Counsel, New York, NY, for Defendants.

MEMORANDUM OPINION AND ORDER

GREGORY H. WOODS, United States District Judge:

On July 9, 2015, Plaintiffs Ramon Fabian ("Fabian") and Victor Vasquez ("Vasquez") were pulled from their truck by two police officers and violently handcuffed. As a result of that encounter, Plaintiffs filed this lawsuit, bringing claims under 42 U.S.C. § 1983 (" § 1983") against New York City police officers Michael A. Pappalardo ("Pappalardo") and John Paul Leddy ("Leddy") for excessive force and denial of medical care.

This is not the first case before this Court arising out of Plaintiffs' encounter with Pappalardo and Leddy. Plaintiffs brought a prior action involving substantially the same claims against the City of New York (the "City") and a number of "John Doe" defendants. While it was apparent that the John Doe defendants named in that complaint were Pappalardo and Leddy, Plaintiffs never amended the complaint to name them, and never served them. After discovery and motion practice, the Court granted the motion for summary judgment brought by the only named and served defendant in the case, the City, because the Plaintiffs had not adduced evidence sufficient to create a material question of fact as to the City's Monell liability. Fabian v. City of New York , No. 16-CV-5296 (GHW), 2018 WL 2138619, at *6-10 (S.D.N.Y. May 9, 2018).

Eleven days following the Court's decision in Fabian I , Plaintiffs brought this case—this time naming the officer who allegedly violated their rights—in the Eastern District of New York. Compl., Dkt. No. 1. The case was subsequently transferred to this district.

Officers Pappalardo and Leddy have moved to dismiss this case—contending that the doctrines of res judicata and collateral estoppel preclude this litigation. The officers were never named or served in Fabian I , nor were the issues litigated and decided in Fabian I identical to the issues to be litigated in this case. Accordingly, for the reasons that follow, neither doctrine applies and Defendants' motion to dismiss is DENIED.

I. BACKGROUND¹

A. Factual Backdrop

On July 9, 2015, Plaintiffs were working as drivers of a commercial truck making food deliveries to clients in Manhattan. Compl., Dkt No. 1 ¶ 11. Around 3 a.m., Plaintiffs had just left a delivery at 666 Lexington Avenue and were driving up 3^rd Avenue towards 59^th St. when they were pulled over by Officers Leddy and Pappalardo. Id. ¶ 11.

Defendants pulled Plaintiffs from their truck, threw them from their seats onto the sidewalk, and handcuffed them face down on the sidewalk. Id. ¶ 12. Plaintiffs were repeatedly accused of theft. Id. ¶ 12. They waited for a period of time in handcuffs, but they were never taken to the police station or charged with any crime. Id. ¶¶ 12, 13.

The following day, both Plaintiffs went to the Emergency Room at Montefiore Medical Center. Id. ¶ 14. Fabian was treated for chest abrasions and a right knee contusion

. Id. Vasquez was also treated for chest abrasions, in addition to bilateral knee contusions. Id. Despite their treatment, Plaintiffs continued to experience pain and discomfort for some time after their arrest. Id. ¶ 15. In addition to physical pain, Plaintiffs allege that they suffered and continue to suffer emotional trauma, discomfort, humiliation, fear, anxiety, and embarrassment. Id. ¶ 17.

B. Procedural History of Fabian I

This is the second case brought by the same Plaintiffs arising out of the July 9, 2015 incident. Plaintiffs filed Fabian I on July 5, 2016, bringing claims against the City of New York and "NYPD Police Officers John Does ## 1-___." Fabian I , Compl., Dkt. No. 1. The City of New York answered the Fabian I complaint on October 31, 2016. Fabian I , Dkt. No. 10.

That case was designated for participation in the district's Plan for Certain Section 1983 Cases Against the City of New York pursuant to Rule 83.10 of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York, formerly known as the " Section 1983 Plan" (the "Plan"). Fabian I , WL 2138619 at *3. The Plan required that the parties exchange identified categories of discovery—including the names of the officers—before the parties appeared before the Court. On November 21, 2016, the City served its initial disclosures, in which, the Court understands, Officers Leddy and Pappalardo were named as parties likely to have information regarding Plaintiffs' claims. Fabian I , Dkt. No. 23-2. The Court held an initial pretrial conference on January 24, 2017 and issued a case management plan and scheduling order the same day. Fabian I , Dkt. No. 17. Amongst other things, that order required that any requests for leave to amend the complaint to add additional parties be filed no later than Feb. 23, 2017. Id. ¶ 4. Plaintiffs did not move to amend the complaint to substitute Officers Pappalardo and Leddy for the nominal "John Doe" defendants by that deadline.

Officer Pappalardo was deposed on July 21, 2017, during which he was asked questions about his role in the incident that gave rise to the case. July 21, 2017 Dep. of Michael A. Pappalardo, Dkt. No 25-3 ("Pappalardo Dep."). On July 31, 2017, Officer Leddy was deposed and faced similar questions. July 31, 2017 Dep. of John Paul Leddy, Dkt. No. 25-4 ("Leddy Dep."). After several extensions, discovery closed on September 8, 2017. Fabian I , Dkt. No. 30. Despite Plaintiffs' knowledge that Officers Pappalardo and Leddy were the "John Doe" officers described in the Fabian I complaint, and despite the fact that Plaintiffs took their depositions during the pendency of Fabian I , Plaintiffs never moved to substitute Leddy nor Pappalardo for the John Doe defendants. Nor were they ever served with the complaint in Fabian I. Fabian I , 2018 WL 2138619 at *4, 10-11.

Following the close of discovery, on December 22, 2017, the City of New York served a motion for summary judgment. Fabian I , Dkt. No. 43. On May 9, 2018, the Court granted the City's motion for summary judgment, and dismissed the claims against the John Doe defendants because the individual officers had never been named in the complaint or served. Fabian I , 2018 WL 2138619, at *10.

In the interest of clarity, the Court held a telephone conference on May 10, 2018—one day after entry of its summary judgment decision. Fabian I , May 10, 2018 Tr., Dkt. No. 73. The Court was concerned about Plaintiffs' counsel's failure to amend the complaint to name the specific officers, and was mindful of the ticking statute of limitations. As a result, the Court commented during the conference that the Court's "decision to not exercise supplemental jurisdiction over [their state law] claims does not mean that the claims are not viable in other courts." Id. at 4:20-22. During the call, Plaintiffs' counsel advised the Court that there were "strategic" reasons why he had chosen not to name the officers in Fabian I , and that litigation over the alleged conduct was "not done." Id. at 3:22-23. Counsel did not explain what those strategic reasons were at the time. The strategy, if not its motivating logic, was revealed when Plaintiffs filed substantially the same claims in this case (naming the individual defendants this time) in a federal courthouse less than two miles from where Fabian I was litigated.

C. Procedural History

Plaintiffs commenced this action in the Eastern District of New York on May 21, 2018, eleven days after Fabian I was decided. Compl., Dkt. No. 1. In the Complaint, Plaintiffs plead essentially the same facts and circumstances as those alleged in Fabian I against the now-named defendant officers, Pappalardo and Leddy. Plaintiffs bring claims arising under § 1983 for use of excessive force, denial of medical care, and deprivation of Plaintiffs' rights under the Fourth and Fourteenth Amendments of the United States Constitution. Plaintiffs additionally bring state law claims of negligence and negligent infliction of emotional distress. Compl. at 1. The same causes of action were alleged in Fabian I , along with additional common law state claims against the John Doe Officers and municipal claims against the City. Compare Compl. at 4-7 with Fabian I , Dkt. No. 1 at 8-19.

On August 13, 2018, Defendants submitted a pre-motion conference letter as to their then-anticipated motion to dismiss this case, or in the alternative to transfer the case to this district. Defs.' pre-motion lttr., Aug. 13, 2018, Dkt. No. 12 at 1 n.1. The Honorable Pamela K. Chen construed that pre-motion letter as a substantive motion, provided the parties with an opportunity to submit additional briefing, and heard oral argument on the motion. After considering the parties' positions, Judge Chen—noting that Plaintiffs' counsel had admitted to this Court that the choice to not name the officers in the original action was "strategic," that the Eastern District had no connection to the original events, which had occurred in Manhattan, and that Plaintiffs' decision to file this case in the Eastern District constituted "blatant forum shopping"—granted Defendants' motion and transferred the case to this Court. Order, Oct. 2, 2018. On November 14, 2018, Defendants served their motion to dismiss. Defs.' Motion, Dkt. No. 24. On December 12, 2018 Plaintiffs opposed that motion, Opp., Dkt. No. 27, and on December 26, 2018 Defendants served their reply in support of their motion to dismiss. Reply, Dkt. No. 29.

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain "a short and plain statement of the claim...