ZIMMERMAN v. POLY PREP COUNTRY DAY Sch.

• Decision Date: 13 April 2011
• Docket Number: No. 09 CV 4586 (FB),09 CV 4586 (FB)
• Parties: JAMES ZIMMERMAN, PHILIP CULHANE, DAVID HILTBRAND, WILLIAM JACKSON, GEORGE ZAROU, JOHN JOSEPH PAGGIOLI, "JOHN DOE II," "JOHN DOE III," and "JOHN DOE IV," Plaintiffs, v. POLY PREP COUNTRY DAY SCHOOL, WILLIAM M. WILLIAMS, DAVID B. HARMAN, AND VARIOUS MEMBERS OF THE POLY PREP BOARD OF TRUSTEES, WHOSE NAMES ARE CURRENTLY UNKNOWN AND THUS DESIGNATED AS "JAMES DOES I-XXX," Defendants.
• Court: U.S. District Court — Eastern District of New York

JAMES ZIMMERMAN, PHILIP CULHANE, DAVID HILTBRAND, WILLIAM JACKSON, GEORGE ZAROU, JOHNJOSEPH PAGGIOLI, "JOHN DOE II," "JOHN DOE III," and "JOHN DOE IV,"Plaintiffs,

v.POLY PREP COUNTRY DAY SCHOOL, WILLIAM M. WILLIAMS, DAVID B. HARMAN, ANDVARIOUS MEMBERS OF THE POLY PREP BOARD OF TRUSTEES, WHOSE NAMES ARE CURRENTLYUNKNOWN AND THUS DESIGNATED AS "JAMES DOES I-XXX,"Defendants.

No. 09 CV 4586 (FB)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Dated: April 13, 2011

MEMORANDUM & ORDER

On October 26, 2009, seven plaintiffs¹ filed a Complaint under the Racketeer Influenced and Corrupt Organizations Act("RICO"), 18 U.S.C. §§ 1961-68, against Poly Prep Country Day School ("Poly Prep"), Poly Prep's former headmaster, William M. Williams("Williams"), Poly Prep's current headmaster, David B. Harman("Harman"), and members of Poly Prep's Board of Trustees("the Board").²(Compl.³¶¶ 5, 15-18).Plaintiffs' claims relate to the defendants' alleged response to allegations that Philip Foglietta("Foglietta"), Poly Prep's football coach and physical education instructor from 1966 through 1991, who is now deceased, sexually abused⁴certain students.(Id.¶¶ 3, 22).

Currently pending before this Court is plaintiffs' motion for sanctions, pursuant to Rule 37 of the Federal Rules of Civil Procedure, based on defendants' alleged spoliation and/or fraud on the court.In addition to seeking sanctions in the form of additional discovery, plaintiffs also seek a cost-shifting sanction and move for permission to file a second amended complaint pursuant to Rule 15 of the Federal Rules of Civil Procedure.

FACTUAL BACKGROUND

As a result of the destruction and/or disposal of numerous documents by the defendants over the years, as well as their lack of record-keeping, as discussed throughout this Order, many of the facts regarding the long and complicated history of this case remain uncertain and/or disputed among the parties.However, the Court has attempted, as best as possible, to lay out the facts, as alleged by the parties, in a coherent fashion.

Poly Prep, established in 1854, is a college preparatory school for fifth through twelfth grade students, located in Brooklyn, New York.(Am. Compl. ¶¶ 1, 18).From 1966 through 1991, Philip Foglietta was employed as a football coach and physical education instructor at Poly Prep.(Id.¶ 22).His employment corresponded with the tenure of three different headmasters: J. Folwell Scull, who served as headmaster until 1970, defendant Williams, who served from 1970 to 2000, and defendant Harman, who became headmaster in 2000 and still serves to the present day.(Id.¶¶ 19-20, 41, 59).During much of this time period, Foglietta was supervised by Harlow Parker("Parker"), who was the Athletic Director at Poly Prep from 1949 until his retirement in 1987.(MulhearnDecl., Ex. 24⁵).

Plaintiffs allege that, beginning in 1966, accusations of sexual abuse were made against Foglietta by students who attended Poly Prep between 1966 and 1984, by their parents, and by other unidentified individuals; these accusations were brought to the school's attention during meetings with the headmaster, by anonymous letters and telephone calls, and by written and verbal communications from former Poly Prep students.(Am. Compl. ¶¶ 24-25, 41-42, 66-67, 70-71, 122, 140).However, Poly Prep asserts that it was not until 1991, when plaintiff Hiltbrand came forward, that it became clear that these allegations were sexual in nature and appeared to be credible.(Id.¶¶ 83-85, 100;Mulhearn Decl., Ex. 3at 67-71, 88-89, 107-08, 110).

Moreover, it was not until October of 2002 that Poly Prep disclosed these allegations of abuse in a letter that defendant Harman sent out to the school's alumni.(MulhearnDecl., Ex. 10⁶).The letter stated that the school had "recently received credible allegations" of sexual abuse taking place at Poly Prep, but did not name the alleged perpetrator, Foglietta.(Id.(emphasis added)).After this letter was distributed, the school received additional complaints from former students, alleging that they had also been sexually abused at Poly Prep by Foglietta.The details of all of the alleged complaints and the school's responses are summarized below.

A.The Tenure of Headmaster Scull.1966 - 1970

PlaintiffWilliam Jackson("Jackson") attended Poly Prep from 1966 until he was expelled in 1968.(Am. Compl. ¶ 53).In 1966, Jackson, then an eighth grade student at Poly Prep, accompanied by his parents, allegedly met with Headmaster Scull and Athletic Director Harlow Parker and accused Foglietta of repeated sexual abuse, providing graphic and explicit details.(Id.¶¶ 41-42).Jackson alleges that he was then told by the school officials that he"would face severe consequences if he persisted in accusing Foglietta of sexual misconduct."(Id.¶145).However, defendants claim that Scull reviewed the matter with the Board, investigated the accusations, and found that Jackson's allegations were not credible.(Id.)Plaintiffs dispute that any investigation was conducted and categorize this supposed investigation as a "sham"(id.), noting that Poly Prep did not memorialize this meeting or the supposed investigation in any way.(Pis.' Mem.⁷at 10).

B.The Tenure of Headmaster Williams.1970 - 2000

Plaintiffs contend that, upon assuming the role of headmaster in 1970, Headmaster Williams was notified of Jackson's earlier complaints; Williams and the defendants, however, refute this allegation.(Am. Compl. ¶ 60;seealsoMulhearn Decl., Ex. 3at 38-39, 69).

John Marino("Marino"), a freshman at Poly Prep in 1972, alleges that Foglietta attempted to sexually abuse him, but that he rebuffed Foglietta's advances.(Am. Compl. ¶ 62).He also claims that Foglietta thereafter proceeded to physically, verbally, and emotionally abuse him until he graduated in 1976.(Id.¶¶ 62-63).Marino further alleges that he saw Foglietta sexually abusing other boys on or near Poly Prep's grounds on at least ten occasions.(Id.¶ 64).According to plaintiffs, in 1973, Marino and his parents met with defendant Williams and Mr. Parker, at which time Marino accused Foglietta of "fooling around with boys" in Foglietta's car on Battery Avenue.(Id.¶¶ 66-68;Mulhearn Decl., Ex. 3at 67).At this meeting, Williams and Parker allegedly told Marino's parents that "their son had started false and malicious rumors about Foglietta's abuse of children and that John Marino was undisciplined and a troublemaker."(Am. Compl. ¶ 67).They also threatened to expel him if he continued to make such accusations.(Id.)During his deposition, defendant Williams acknowledged having this meeting with Marino and his parents, but testified that the allegations were not deemed credible.(Pis.' Mem.at 10(citingMulhearn Decl., Ex. 3at 67, 71)).Again, it does not appear that this meeting was memorialized in any way or that any investigation was conducted into these allegations.(Pis.' Mem.at 10-11).

Plaintiffs further allege that Marino and his parents had a second meeting with Williams and Parker in 1974 and that Marino again accused Foglietta of sexually abusing male students.(Am. Compl. ¶ 70).Plaintiffs also allege that both Marino and his father reported that on one occasion, they had witnessed Foglietta sexually abusing a child at Poly Prep.(Id.¶ 65).At this second meeting, plaintiffs claim that Marino was again threatened with expulsion for misbehavior, which included his continued allegations against Foglietta.(Id.¶¶ 67, 71).

In his deposition, however, Williams asserted that Marino was a bad student with behavioral problems and that his accusations, which were not considered to be sexual in nature, were therefore not taken seriously.(Mulhearn Decl., Ex. 3at 68, 70).Williams also testified that he felt that Foglietta did not "seem like the kind of guy who would do that..." and that he further believed that the accusations had more to do with Marino not getting enough playing time during football games.(Id. at 67-69).Despite acknowledging the occurrence of at least one of these meetings,⁸ Williams asserted in his deposition that "the first time, and only time, that they -anybody had identified themselves as somebody who had been molested in the school"(Mulhearn Decl., Ex. 3at 99), was when David Hiltbrand sent his letter in February of 1991 alleging sexual abuse by Foglietta.(See discussion, infra at 11-12).In the context of Hiltbrand's letter, Williams testified that "[w]hen a kid says to me, T was molested by a teacher,' this is big to me."(Mulhearn Decl., Ex. 3at 102).However, as plaintiffs' assert, he dismissed Marino's allegations and did not take them seriously.

Williams also stated, during his deposition, that he believes that he discussed Marino's accusations with Parker or Novello,⁹ and that they agreed that Marino was not credible because otherwise, he and his parents would have been more explicit in their accusations.(Id. at 68, 70).However, according to Williams, it was school policy to always speak with a teacher after a complaint was made against them; therefore, although he had no specific recollection of such a conversation, he claims that either he or Parker must have spoken with Foglietta after the meeting with the Marino family.(Id. at 70, 89).He also believes that Foglietta denied the allegations and responded that he had kids in his car all the time to take them places.(Id. at 68).Regardless, there does not appear to be any record of these meetings or conversations.

In the mid-1970s, Williams received two anonymous letters that stated: "You need to know that Mr. Foglietta is doing terrible things to your students."(Id. at 84-86(discussing the "first letter")).Williams testified at his deposition that he was concerned by the letters, but that he interpreted the accusations as complaints of verbal, rather than sexual, abuse.(Id. at 88-89).Williams testified...