Richardson v. Pratcher, 12 Cv. 8451 JGK.

• Decision Date: 27 September 2014
• Docket Number: No. 12 Cv. 8451 JGK.,12 Cv. 8451 JGK.
• Parties: Tarrus L. RICHARDSON, Plaintiff, v. Tyson PRATCHER and Raudline Etienne, Defendants.
• Court: U.S. District Court — Southern District of New York

48 F.Supp.3d 651

Tarrus L. RICHARDSON, Plaintiff

v.Tyson PRATCHER and Raudline Etienne, Defendants.

No. 12 Cv. 8451 JGK.

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

Signed Sept. 27, 2014.

Richard L. Brodsky, Richard Brodsky, Esq., Stuart Evan Kahan, Oxman Tulis Kirkpatrick Whyatt & Geiger, LLP, White Plains, NY, John Siegal, Samir Kher Ranade, Baker & Hostetler LLP, New York City, NY, for Plaintiff.

Ira Martin Feinberg, Theresa M. House, Hogan Lovells U.S. LLP, New York, NY, for Defendants.

OPINION AND ORDER

JOHN G. KOELTL, District Judge:

Tarrus Richardson brings this action against defendants Tyson Pratcher and Raudline Etienne for alleged violations of 42 U.S.C. § 1983, the New York State Constitution, and New York common law. Richardson alleges that Pratcher and Etienne, employees of the Office of the New York State Comptroller (the “OSC”), retaliated against him because he promoted legislation contrary to the OSC's interests, and thereby violated his rights under the First Amendment of the United States Constitution and article I, sections 8 and 9 of the New York State Constitution. Richardson also claims that the defendants tortiously interfered with his partnership contracts and tortiously interfered with various prospective business relations.¹

The defendants moved pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment on all causes of action. This Court has jurisdiction under 28 U.S.C. § 1331 and 28 U.S.C. § 1367(a). For the reasons explained below, the defendants' motion is granted in part and denied in part.

I.

The standard for granting summary judgment is well established. “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a) ; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir.1994). “[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution.”Gallo, 22 F.3d at 1224.

The moving party bears the initial burden of “informing the district court of the basis for its motion” and identifying the matter that “it believes demonstrate[s] the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The substantive law governing the case will identify those facts that are material, and “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) ). Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir.1994). If the moving party meets its burden, the nonmoving party must produce evidence in the record and “may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible.” Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir.1993) ; see also Indian Harbor Ins. Co. v. City of San Diego, 972 F.Supp.2d 634, 637 (S.D.N.Y.2013).

II.

The parties do not dispute the following facts unless otherwise noted.

A.

Richardson co-founded ICV Capital Partners, LLC (“ICV”), a New York based private equity firm, with Willie Woods. During the relevant time, Richardson was a managing director of ICV and had an ownership interest in ICV and its operating entities. Woods is a co-founder, a managing director, and the managing member of ICV. American Securities is a partial owner of ICV, and Michael Fisch is the President and CEO of American Securities.

During the relevant time period, Etienne served as the Deputy Comptroller for Pension Investment and Cash Management and as the Chief Investment Officer (“CIO”) of the New York State Common Retirement Fund (the “CRF”). The CRF is the pension fund for New York State employees and participating local governments and private employees. As CIO, Etienne managed the CRF, which required her to approve any investment partners. Pratcher—operating under Etienne's supervision—was the Director of the Emerging Managers Program. The Emerging Managers Program identifies CRF investment opportunities for relatively small and new asset managers. As Director, Pratcher evaluated and monitored prospective and existing Emerging Managers Program investments.

The CRF invests in private equity funds directly and indirectly through “funds-of-funds” managers, who then invest in CRF-approved funds. When Richardson worked at ICV, the CRF indirectly invested in two ICV funds: ICV Partners I, L.P. (“ICV Fund I”) and ICV Partners II, L.P. (“ICV Fund II”). In 2009, ICV commenced fundraising for a new fund, ICV Growth Fund (“ICV Growth”).

B.

The Council of Urban Professionals (“CUP”) is an organization that advocates for minority and women professionals, and Richardson served as the chair of its board from 2007 to 2010. In the fall of 2009, CUP hired Seth Bryant, who was also a founding member of CUP, to draft legislation promoting CRF investment in minority and women-owned business enterprises (“MWBEs”). Also in 2009, CUP hired two lobbyists, Jacqueline Williams and Larry Scherer, to promote the same legislation.

On February 22, 2010, New York State Senator Ruth Hassell–Thompson introduced Senate Bill 6888 in the New York Senate, and Assemblywoman Crystal Peoples–Stokes (with others) introduced Assembly Bill 9976 in the New York State Assembly. The bill, collectively referred to here as S.6888, largely tracked language drafted and prepared by CUP members—including Richardson—and its advisors. As introduced, S.6888 contained a provision calling for the OSC to invest at least fifteen percent of externally managed CRF assets with emerging managers (the “fifteen percent provision”) and another defining emerging managers as MWBEs with a significant presence in New York (the “New York focus provision”).²

Between March 2010 and June 2010, OSC staff participated in a series of meetings with state legislators, CUP representatives, and others regarding S.6888. Internally and in these meetings, OSC staff expressed concern that the fifteen percent provision violated the New York State Constitution and that the New York focus provision risked retaliation by other states. Pratcher and Etienne attended a number of these meetings. (Etienne Dep. Tr. 87, 152–53; Pratcher Dep. Tr. 160–61, 211–14). Richardson did not attend meetings with the OSC, but he discussed the S.6888 negotiations with CUP board members, representatives, and other bill advocates and supported S.6888 through in-person, phone, and e-mail advocacy.

C.

On June 10, 2010, Richardson and Pratcher attended a conference at the Westin New York Hotel in Times Square. During a break in the proceedings, Richardson and Pratcher—who until then had a cordial relationship—ran into each other in a hallway. Although both parties substantially agree that they discussed S.6888, Pratcher and Richardson provide significantly different accounts of the conversation. (Pratcher Decl. ¶¶ 31–34; Richardson Decl. ¶¶ 32–36.)

Pratcher claims Richardson stated that he had sufficient votes to pass S.6888 regardless of the Comptroller's opposition, that he would tell the press the Comptroller and Pratcher “did not care about the interests of black people,” that he “was responsible for getting [Pratcher] his job,” that there would be “retaliation” against the Comptroller for opposing S.6888, that the bill was “bigger” than Pratcher's or the Comptroller's job, and that he did not care what Pratcher “thought, because he had a business to build.” (Pratcher Decl. ¶¶ 31–33.) Pratcher described Richardson as “agitated,” “aggressive,” and “hostile” and considered his behavior during the conversation “rude,” “unprofessional,” “confrontational,” and “completely inappropriate.” (Pratcher Decl. ¶¶ 34, 36.) Pratcher also was surprised that Richardson would display such behavior in a “public setting” with “one of his investors.” (Pratcher Decl. ¶¶ 34–35.)

Richardson disputes the tone and substance of the conversation. While discussing the bill, Richardson admits he told Pratcher that 2010 “was a unique time for passage of MWBE legislation,” that it was “too late for CUP ... to directly negotiate with him and the OSC,” and that the bill was “bigger” than any individual. (Richardson Decl. ¶¶ 33–36.) Richardson describes the conversation as “active,” but not “loud,” “angry,” or “argument[ative].” (Richardson Dep. Tr. 236–37.) Richardson maintains that he never referred to S.6888 as “my legislation,” that he did not state he would tell the press that the Comptroller and Pratcher did not care about black people, that he did not imply he was responsible for Pratcher's job, and that he did not assert his business was more important than Pratcher's job. (Richardson Decl. ¶ 36.)

Pratcher then returned to the OSC office and informed Joe Dawson and Etienne about his conversation with Richardson. (Etienne Decl. ¶ 28; Pratcher Decl. ¶ 36.) Dawson does not recall the details of his conversation with Pratcher, but remembers that Pratcher “seemed visibly shaken by it.” (Dawson Dep. Tr. 148–53.) Dawson later informed Woods,...