Opinion
No. 96-CV-1950 (FJS/DRH)
November 13, 2001
Sue H.R. Adler, Esq., Counsel for Plaintiff.
Hoguet Newman Regal, LLP, Frederic S. Newman, Esq., Melissa L. Weiss, Esq., Counsel for Defendants Pataki, Doherty, Natoli, Finnegan and Maul.
Snitow Kanfer Holtzer Millus, Franklyn H. Snitow, Esq., Richard A. Braunstein, Esq., Counsel for Defendants Vacco and Flynn.
John T. Casey, Jr., Esq., Attorney for Non-Party Witness Bruno.
MEMORANDUM-DECISION AND ORDER
Presently pending are the motions of plaintiff Alan M. Adler ("Adler") for orders (1) compelling the deposition of non-party witness Joseph L. Bruno ("Bruno") (Docket No. 183), and (2) granting Adler leave to file an amended complaint to add a "John Doe" defendant pursuant to Fed.R.Civ.P. 15. Docket No. 184. For the reasons which follow, both motions are denied.
I. Background
Prior to December 6, 1996, Adler's wife had resigned from her position as an Assistant Attorney General in the New York Department of Law and commenced a law suit against defendants Dennis C. Vacco, then the New York Attorney General, and William M. Flynn and other Vacco assistants. See generally Savitt v. Vacco, No. 95-CV-1842, 1998 WL 690939 (N.D.N.Y. Sept. 28, 1998). Ms. Adler's action generally alleged that she had been constructively discharged, inter alia, for political reasons in violation of various constitutional and statutory rights. That action was pending on December 6, 1996 when Adler was terminated from his position as deputy counsel for the New York State Office of Mental Retardation and Developmental Disabilities (OMRDD). In this action, Adler contends that his employment at OMRDD was terminated in retaliation for his wife's law suit in violation of his First Amendment right of association. See generally Adler v. Pataki, 185 F.3d 35 (2d Cir. 1999).
II. Discussion
A. Motion to Compel Deposition
In their answer and pleadings, defendants George Pataki, Thomas F. Doherty, James Natoli, Michael Finnegan and Thomas Maul ("Governor defendants") asserted, inter alia, that Adler was not terminated because of his wife's law suit but as part of a state-wide transition in which the Governor defendants sought to place those who shared their political philosophy in policymaking positions such as that held by Adler. Adler contends that such motivation is a pretext and that the Governor defendants were actually motivated to terminate his employment by his wife's law suit. In support, Adler has contended that he received endorsements from Bruno, among others, to retain his position in OMRDD. Bruno is and was the New York State Senate Majority Leader and, like the defendants, a Republican. Thus, Adler contends, the termination of his employment notwithstanding such an endorsement refutes the Governor defendants' asserted reason for his termination and supports his claim of pretext.
On or about July 25, 2000, Adler served deposition subpoenas on Bruno and Richard C. Burdick, an assistant to Bruno. Bruno and Burdick moved to quash the subpoenas on various grounds. Docket No. 83. That motion was denied as to Burdick and granted as to Bruno with leave to Adler to renew his demand for Bruno's deposition at the close of discovery. Docket No. 98. The non-party witnesses and Adler both appealed that order (Docket Nos. 103, 106), the order was affirmed (Docket No. 135), and Burdick's deposition was completed on April 11, 2001. S. Adler Decl. (Docket No. 183) (hereinafter "S. Adler Decl. I") at Ex. D. With discovery now completed, Adler renews his motion for an order compelling the deposition of Bruno. Bruno opposes the motion. Docket No. 187.
Although Bruno asserted multiple grounds in support of his prior motion to quash the subpoena for his deposition, that motion was granted without prejudice in deference to Bruno's official position. See National Nutritional Foods Ass'n v. F.D.A., 491 F.2d 1141, 1144-46 (2d Cir. 1974). A litigant seeking to depose a high level government official must satisfy a difficult two-pronged test. First, the deposition must be necessary to obtain information not available from any other source. Second, the deposition must not hinder the official's ability to perform his or her duties. See Marisol A. v. Giuliani, No. 95 CIV. 10533, 1998 WL 132810, at *2 (S.D.N.Y. Mar. 23, 1998); Martin v. Valley Nat'l Bank, 140 F.R.D. 291, 314 (S.D.N.Y. 1991).
With the Speaker of the New York State Assembly, Bruno is the highest ranking member of the New York State Legislature. Adler does not dispute that Bruno's position constitutes that of a high level government official.
As to the first prong, a party seeking the deposition must establish that relevant information is not available from other sources. See Marisol A. v. Giuliani, 1998 WL 132810, at *3 (this requirement "strictly imposed"); L.D. Leasing Corp. v. Crimaldi, No. 91-CV-2430, 1992 WL 373732, at *1 (E.D.N.Y. Dec. 1, 1992) (party must show that official possessed "particularized first-hand knowledge that cannot be obtained from any other source"). The party must also demonstrate that the official's testimony will "likely lead to the discovery of admissible evidence and is essential to that party's case." Warzon v. Drew, 155 F.R.D. 183, 185 (E.D.Wis. 1994).
Here, Adler contends that while he never personally met Bruno, Bruno's endorsement was obtained through the intercession of former New York Court of Appeal Chief Judge Sol Wachtler with whom Adler enjoyed a "close relationship." S. Adler Decl. I at ¶ 3. Adler contends that Bruno twice acted to avert the termination of Adler's employment. First, in late 1994 or early 1995, Bruno sent a note to Burdick regarding Adler which stated, "[b]e helpful if possible." Tr. of Burdick Dep. (Docket No. 187, attach.) at 77-78. Burdick, with whom Adler did speak, then contacted defendants Natoli and Doherty concerning Adler's continued employment at OMRDD. S. Adler Decl. I at ¶¶ 4-11.
Second, after Adler's employment was terminated in December 1996, Adler was told by Doherty that the termination of Adler's employment could only be reversed if Bruno himself made a telephone call to Natoli or Doherty on Adler's behalf. Tr. of A. Adler Dep. (Docket No. 183, Ex. A) at 117-18, 163. There is no evidence that Bruno himself ever made such a telephone call. See id. at 163 (Adler denies knowledge of any such telephone call by Bruno). Adler conveyed to Burdick what Doherty had said. Id. at 118. Burdick subsequently told Adler that he had spoken to Bruno about the matter but that notwithstanding Doherty's statement that a personal telephone call from Bruno might be helpful to Adler, Bruno had directed Burdick to telephone Natoli on behalf of Adler and two other individuals to "see what could be done for" them. Id.
Adler seeks to depose Bruno concerning (1) Bruno's relationship with Judge Wachtler, (2) Bruno's conversations with Judge Wachtler regarding Adler, (3) what Bruno intended to convey in his note to Burdick, and (4) whether Bruno ever personally telephoned any defendant in December 1996 on behalf of Adler and, if so, the content of any such conversation. S. Adler Decl. I at ¶¶ 9, 14, 15. The first two topics are irrelevant to any matter at issue here. Bruno's relationship with Judge Wachtler and what was said between these two non-parties concerning Adler are not probative of the reason for the defendants' termination of Adler's employment. See Fed.R.Evid. 401. Moreover, such evidence could be obtained from a deposition of Judge Wachtler, an alternative source. Cf. Sanstrom v. Rosa, No. 93 Civ. 7146, 1996 WL 469589, at *4-5 (S.D.N.Y. Aug. 16, 1996) (former Governor Cuomo no longer protected from deposition as high level government official after he left office).
The record does not indicate whether Judge Wachtler was deposed.
For the same reason, the third topic affords no basis for deposition. Burdick, who has been deposed, testified that he received the note from Bruno and, as it directed, contacted Natoli on Adler's behalf. Again, what Bruno intended to convey to Burdick in the note will not tend to prove or disprove what motivated the defendants to terminate Adler's employment. The matter at issue here is the motivation of the defendants in terminating Adler's employment. What occurred between non-parties such as Bruno and Burdick is relevant to that issue only to the extent that Bruno's views were conveyed to one of the defendants. There is no claim that Bruno ever personally communicated with any defendant concerning Adler, only that he directed Burdick to do so. Burdick has been deposed. Thus, a deposition of Bruno on this topic as well is unlikely to lead to the discovery of admissible evidence.
Finally, Adler, Burdick and the defendants have denied knowledge of any telephone call made personally by Bruno in or about December 1996 to any defendant on Adler's behalf. Where all alternative sources of the fact which Adler seeks to establish have testified that they have no recollection of or information regarding such a telephone call, it is pure speculation that Bruno's testimony will differ. Thus, with this topic as well, the deposition of Bruno is unlikely to lead to the discovery of admissible evidence. Because Adler has failed to meet the first prong of the test, Adler's renewed motion for an order compelling Bruno to appear for deposition is denied.
B. Motion for Leave to File an Amended Complaint
On a date not specified in the record in mid-2000, the defendants produced to Adler in discovery a one-page document on which were listed the names of six OMRDD employees, included Adler's. S. Adler Decl. (Docket No. 184) (hereinafter "S. Adler Decl. II") at ¶ 2 Ex. A; Weiss Aff. (Docket No. 189) at ¶ 4 Ex. A. Under a "Comments" column for all six names was written "[a]ctive Cuomo supporter." Id. The list purportedly identified those OMRDD employees whose employment was to be terminated in the transition to the Republican Pataki administration from the Democratic Cuomo administration. S. Adler Decl. II at ¶ 2. The list was produced to Adler from files maintained by defendant Doherty. Id. at ¶ 2 Ex. B.
Adler contends that the description of him as an "Active Cuomo supporter" was inaccurate. Id. at ¶ 2. Adler contends further that the inaccuracy of this description was known to the defendants at the time of the termination of his employment and, therefore, the list constitutes additional evidence that the defendants' claim that Adler was terminated for reasons of politics was a pretext for terminating him because of his wife's law suit. Adler now moves for an order (1) granting him leave to file an amended complaint adding as a "John Doe" defendant in this action the as yet unknown author of the list or, in the alternative, (2) compelling the defendant to identify the author of the list, or (3) precluding the defendants from asserting that the list played any role in their decision to terminate Adler's employment.
1. Amendment
Fed.R.Civ.P. 15(a) requires that leave to amend a pleading be "freely given when justice so requires." This "facilitate[s] a proper decision on the merits" and identifies the material issues of the case. Foman v. Davis, 371 U.S. 178, 182 (1962). While courts have broad discretion to grant a party leave to amend its pleadings, Local 802, Associated Musicians of Greater N.Y. v. Parker Meridien Hotel, 145 F.3d 85, 89 (2d Cir. 1998), courts may deny such motions where the timing of the motion demonstrates dilatory motive, bad faith or undue delay in correcting the complaint's deficiencies. See Vine v. Beneficial Finance Co., 374 F.2d 627, 636-37 (2d Cir. 1967); see also Friedman v. Chesapeake Ohio Ry. Co., 261 F. Supp. 728, 734 (S.D.N.Y. 1966), aff'd, 395 F.2d 663 (2d Cir. 1968).
Here, Adler's motion to amend must be denied for two reasons. First, Adler's motion fails to attach a copy of the proposed amended complaint as required by N.D.N.Y.L.R. 7.1(a)(4) ("An unsigned copy of the proposed amended pleading must be attached to a motion brought under Fed.R.Civ.P. . . . 15"). The absence of a proposed amended complaint prevents the parties and the Court from evaluating the sufficiency of the allegations. By itself, the failure to comply with this requirement is grounds for denial of the motion. See Johnson v. Monsanto Chem. Co., 129 F. Supp.2d 189, 197 (N.D.N Y 2001) (Kahn, J.); County of Washington v. Counties of Warren Washington I.D.A., No. 93-CV-0086, 1997 WL 152001, at *4 n. 11 (N.D.N.Y. Mar. 31, 1997) (Scullin, J.), aff'd, No. 00-7472, 2001 WL 96566 (2d Cir. Jan. 3, 2001).
Second, Adler's motion is untimely. Adler filed the complaint almost five years before this motion was filed. Docket No. 1. Pretrial proceedings have been unusually protracted and contentious. Early on, the defendants moved for summary judgment, that motion was granted, Adler appealed, and the Second Circuit reversed the judgment and remanded for further proceedings. Docket Nos. 42, 53, 60. There have been motions for a preliminary injunction, to disqualify counsel (two), to quash subpoenas (two), and for sanctions (two). Docket Nos. 10, 32, 34, 83, 123, 140. There has been a motion to disqualify the assigned district judge (Docket No. 92) and an appeal seeking a writ of mandamus. Docket No. 151. As a result of the early litigation of the defendants' motion for summary judgment, discovery was stayed until September 10, 1999. Docket Nos. 31, 64.
Discovery has taken two years. The discovery in this case has been broad in scope, involving thousands of pages of documents and approximately twenty-four depositions. Weiss Aff. at ¶ 3. The discovery deadline established in the original scheduling order has been extended four times and ultimately passed on October 1, 2001. Docket Nos. 62, 120, 128, 152, 156. There have been at least twenty discovery conferences, most requested by Adler, and resulting discovery orders. Docket Nos. 61, 69, 74, 77, 98, 100, 115, 118, 126, 132, 136, 139, 145, 146, 153, 156, 159, 161, 175, 180, 188, 197. There have been numerous other proceedings during depositions in which the parties sought rulings which were memorialized in the record of the particular deposition. See, e.g., Tr. of Burdick Dep. at 52-67. There have been five appeals of non-dispositive rulings to the district court. Docket Nos. 103, 106, 160, 170, 174.
The document upon which Adler bases this motion was obtained by him over one year ago. This motion was filed on September 6, 2001, three weeks before the close of all discovery. Because the proposed amendment would add a "John Doe" defendant, discovery would necessarily be reopened to permit discovery concerning the identity of "John Doe" if the motion is granted. Once that individual is identified, Adler would then need to substitute that individual for the "John Doe" and effect service of process. Once served, that individual would be entitled to time to investigate and then move to dismiss or answer, and to review and obtain discovery. It is not unreasonable to estimate conservatively the additional time this would require in this case as at least one year.
Delay alone in moving for leave to file an amended complaint will not bar such amendment if the moving party can demonstrate good cause for the delay. See Datascope Corp. v. SMEC, Inc., 962 F.2d 1043, 1045 (Fed. Cir. 1992). However, the longer the delay, the greater the burden on the moving party to demonstrate good cause for the delay. See Evans v. Syracuse City Sch. Dist., 704 F.2d 44, 47 (2d Cir. 1983); Phaneuf v. Tenneco, Inc., 938 F. Supp. 112, 115-16 (N.D.N.Y. 1996) (Hurd, M.J.). Given the duration of and prior proceedings in this case, Adler's burden here is great.
Adler was in possession of the document which gave rise to this motion for over one year before filing this motion. Adler contends that he delayed bringing this motion because of a desire to complete the deposition of Burdick first in an effort to ascertain the identity of the author of the list. Burdick's deposition was completed on April 11, 2001. Even crediting this reason as sufficient to explain the delay until that date, Adler offers no valid cause for the delay from April 11, to September 6, 2001. Given the five year history of this case, its contentiousness, the two years of discovery, Adler's receipt of the document in question over one year earlier, the filing of this motion only three weeks before the discovery deadline, and the substantial additional delay which would ensue if this motion were granted, Adler's failure to demonstrate good cause for this delay renders the motion untimely.
Adler's motion for leave to file an amended complaint is denied.
2. Compel Discovery
In the alternative, Adler requests an order compelling the defendants to identify the author of the list. This request appears to seek an order compelling discovery under Fed.R.Civ.P. 37(a). However, first, Adler has provided no discovery demand for this information previously served on any defendant with which a defendant has failed to comply. See Fed.R.Civ.P. 37(b)(2)(A) (moving party must first demonstrate that adverse party has "fail[ed] to make a disclosure required by Rule 26(a)"). On this ground alone, Adler's motion here must be denied.
Second, during the deposition of Burdick on April 11, 2001, Burdick testified that he had provided the list to the defendants. Adler asked Burdick who authored the list. Tr. of Burdick Dep. (Weiss Aff., Ex. B) at 107-09; Weiss Aff. at ¶ 7. Burdick's counsel objected. Tr. of Burdick Dep. at 109. A conference with counsel and the undersigned was conducted on the record. Id. at 109-18. Adler was permitted to ask Burdick if the source of the information on the list was a defendant, but the objection was otherwise sustained. Id. at 116. Adler took no appeal from this ruling. The defendants contend that this ruling constitutes the law of the case and that Adler's motion here constitutes an effort to circumvent the prior ruling.
"The law of the case doctrine is, at best, a discretionary doctrine which does not constitute a limitation on the court's power but merely expresses the general practice of refusing to reopen what has been decided." United States v. Williams, 205 F.3d 23, 34 (2d Cir.), cert. denied, 531 U.S. 885 (2000) (internal quotation marks omitted). Adler did not seek reconsideration of the ruling or take an appeal. The parties have completed discovery in reliance on that ruling. At this late date, compelling discovery of the identity of the source of the list would be improper both because the evidence remains irrelevant for the reasons stated during the Burdick deposition and because Adler did not timely take steps to reverse that ruling. Therefore, whether cast as the law of the case or simply as the rule under which discovery was conducted here, that ruling will not be reconsidered or reversed here.
Burdick testified that he did not recall who provided the information in the list. Tr. of Burdick Dep. at 120.
Adler contends that his failure to appeal should not bar the relief sought here because he could not appeal from an oral order made during a deposition not later reduced to writing. S. Adler Reply Decl. (Docket No. 191) at ¶ 4. Under 28 U.S.C. § 636(b)(1)(A), Fed.R.Civ.P. 72(a) and N.D.N.Y.L.R. 72.1(b), a party may object and appeal to the district court any non-dispositive ruling of a magistrate judge. Adler contends that since Rule 72(a) refers to "a copy of the magistrate judge's order," she was required to and could appeal only from a written order. However, both section 636(b)(1)(A) (district court may reconsider "any pretrial matter") and Local Rule 72.1(b) (party may appeal "determination of a non-dispositive matter") authorize appeal from all non-dispositive rulings of a magistrate judge. See Young v. Conductron Corp., 899 F. Supp. 39, 40 (D.N.H. 1995) ("The [district] court is empowered to modify or set aside any factual or legal ruling of a magistrate judge . . ." on non-dispositive matters). Thus, Adler was authorized to appeal the ruling made during the Burdick deposition. His failure to do so militates against reconsideration here.
Therefore, Adler's motion in the alternative to compel defendants to disclose the identity of the author of the list is denied.
3. Preclusion
Finally, Adler moves in the alternative for an order precluding the defendants from asserting that they relied on the list in making their decision to terminate Adler's employment. Preclusion is available as a sanction for improper conduct. See Fed.R.Civ.P. 37(b)(2)(B) (permitting order of preclusion against "disobedient" party). There has been no showing here that the defendants have acted improperly regarding the list. Adler has failed to demonstrate any basis for preclusion and, therefore, his motion to preclude the defendants from asserting reliance on the list is denied.
III. Conclusion
For the reasons stated above, it is hereby
ORDERED that Adler's motion for an order:
1. Compelling non-party witness Bruno to appear for a deposition is DENIED; and
2. Granting leave to file an amended complaint or, in the alternative, compelling discovery or precluding evidence is DENIED in all respects.
IT IS SO ORDERED.