The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
__________________________________________
JANET DAVIS,
Plaintiff,
v. 5:16-CV-1337
(TJM/ATB)
KENNETH LUFT, et al.,
Defendants.
___________________________________________
Thomas J. McAvoy,
Sr. U.S. District Judge
DECISION & ORDER
Before the Court is Plaintiff’s motion for reconsideration of the Court’s Order
granting in part and denying in part the Defendants’ motion for summary judgment. See
dkt. # 50. This case involves allegations that Defendants violated Plaintiff’s constitutional
rights when they arrested her for refusing to return an American Express debit card used
by Defendant Lois McRedmond at a Key Bank branch in Johnstown, New York. Plaintiff
managed the branch. Also before the Court is Plaintiff’s motion for default judgment
against Defendant McRedmond. See dkt. # 51. The parties have briefed the issues and
the Court has determined to resolve the questions without oral argument.
I. BACKGROUND
Between 10:00 a.m. and 11:00 a.m. on February 9, 2016, Lois McRedmond used
an American Express debit card to make a withdrawal from an ATM at the Key Bank
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branch in Johnstown. McRedmond did not remove the debit card from the ATM when she
left the bank. Approximately 45 minutes later, upon realizing she no longer possessed the
card, McRedmond returned to the bank seeking the card. Bank employees refused to
return the card, citing company policy.
McRedmond went to the Johnstown Police for assistance later that day. At the
police station, McRedmond described the earlier events to Defendant Sgt. John
Rodriquez. McRedmond also met with another officer, Defendant Kenneth Luft, and
relayed the same facts. Luft went to the bank and met with Plaintiff Janet Davis, the bank
manager. When Luft requested she return the card to McRedmond, Plaintiff refused.
While Luft was in the bank, he threatened to make an arrest if someone did not return the
card to him.
Eventually, Police charged Plaintiff with grand larceny in the fourth degree, but a
Johnstown City Court eventually granted Plaintiff’s motion to dismiss the charges against
her as unopposed.
Plaintiff filed a Complaint in this Court on November 8, 2016. The Complaint
contained four causes of action. Defendants Gifford, Luft, and Rodriguez answered that
Complaint. See dkt. # 5. Defendant McRedmond never did. On April 13, 2018, Plaintiff
filed an Amended Complaint without objection from the Defendants. See dkt. # 31. That
Amended Complaint raises four causes of action. Count One, raised against all
Defendants, alleges false arrest in violation of Plaintiff’s rights under the United States
Constitution. Count Two alleges malicious prosecution against all Defendants. Count
Three alleges Defendants Gifford, Gilbo, and the City of Johnstown violated Plaintiff’s
constitutional rights by ratifying the unconstitutional conduct of municipal policymakers.
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Count Four alleges false arrest and malicious prosecution under state law against
McRedmond.
The City of Johnstown, Gifford, Gilbo, Luft, and Rodrigquez answered the Amended
Complaint. See dkt. # 35. Those parties engaged in discovery, and those Defendants
eventually filed the instant motion for summary judgment. The Court issued a decision on
August 15, 2019 granting the Defendant’s motion in part and denying it in part. The Court
dismissed all claims against the City of Johnstown and dismissed Plaintiff’s malicious
prosecution claim. The Court denied the motion in all other respects.
The Court also noted that no proof of service of the Amended Complaint on
Defendant McRedmond has ever been filed, nor had any request for entry of default or
motion for default judgment with respect to that Defendant and that Amended Complaint.
Plaintiff responded by filing a motion for default judgment. Plaintiff did not seek an entry
of default from the Clerk of Court.
II. LEGAL STANDARD
A. Reconsideration
Plaintiff moves for reconsideration of the portions of the Court’s order that granted
Defendants’ motion for summary judgment. When a party files a motion for
reconsideration, “[t]he standard for granting such a motion is strict, and reconsideration
will generally be denied unless the moving party can point to controlling decisions or data
that the court overlooked–matters, in other words, that might reasonably be expected to
alter the conclusion reached by the court.” Shrader v. CSX Transp., 70 F.3d 255, 257 (2d
Cir. 1995). Such a motion is “not a vehicle for relitigating old issues, presenting the case
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under new theories, securing a rehearing on the merits, or otherwise taking ‘a second bite
at the apple[.]’” Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 41 (2d Cir.
2012) (quoting Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998)).
B. Default Judgment
The Local Rules for the United States District Court for the Northern District of New
York provide that:
A party shall accompany a motion to the court for entry of a default judgment,
pursuant to Fed. R. Civ. P. 55(b)(2), with a clerk’s certificate of entry of default in
accordance with Fed. R. Civ. P. 55(a), a proposed form of default judgment, and
a copy of the pleading to which no response has been made. The moving party
shall also include in its application of the moving party or the moving party’s
attorney setting forth facts as required by L.R. 55.2(a).
L.R. 55.2(b) (emphases in original).
III. DISCUSSION
The Court will address each motion in turn.
A. Reconsideration
Plaintiff seeks reconsideration of two parts of the Court’s order. The Court will
address each in turn.
i. Claims Against the City of Johnstown
Plaintiff first seeks reconsideration of the Court’s order dismissing claims against
the City of Johnstown. She claims that the Court erred in finding that Plaintiff had offered
no opposition to Defendants’ motion to dismiss those claims, and that in any case the
evidence in the case supports a claim against the City because “its chief policymakers,
Police Chief Gifford and Lieutenant Gilbo were the driving force behind the Plaintiff’s
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arrest and malicious prosecution.” She argues that they were the moving force behind her
false arrest–a claim that remains–and that the Court erred in finding summary judgment
for the City because of their alleged role in directing her arrest. Defendants respond that
this argument came not in response to Defendants’ arguments about municipal liability,
but in response to the individual Defendants’ claims of qualified immunity.
In its decision permitting false arrest claims to go forward against the Defendants,
the Court concluded that “the claims against Gifford and Gilbo on this Count are based on
their decision to prosecute the Plaintiff. As the Court has found a constitutional violation in
the decision to arrest Plaintiff, and evidence indicates that Gifford and Gilbo were directly
involved in that decision, the Court will deny the motion with respect to those Defendants.”
In terms of municipal liability, “when a subordinate municipal official is alleged to have
committed the constitutional violation, municipal liability turns on the plaintiffs’ ability to
attribute the subordinates’ conduct to the actions or omissions of higher ranking officials
with policy making authority.” Amnesty America v. Town of West Hartford, 361 F.3d 113,
126 (2d Cir. 2004). “One means of doing so . . . is to establish that a policymaker ordered
or ratified the subordinates’ actions.” Id. (citing Weber v. Well, 804 F.2d 796, 803 (2d Cir.
1986)(“liability could be premised on sheriff’s ordering of unconstitutional strip searches.”).
While the Court notes that Plaintiff did not make this argument about municipal liability in
response to Defendants’ arguments but instead in response to their qualified immunity
claims, the Court must acknowledge that the Plaintiff is correct that the municipality could
be liable under these circumstances. Clear error of law would exist to find otherwise, and
the Court will grant the motion with respect to this claim. The false arrest claim against the
City of Johnstown will be reinstated in this case.
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ii. Malicious Prosecution Claim
Plaintiff next argues that the Court committed clear error of law by finding that
Plaintiff could not support her malicious prosecution claim. She argues that dismissal of
her case on her motion, coupled with the prosecutor’s statement of doubt that a charge
could be sustained, is sufficient evidence to overcome summary judgment, and that the
Court committed clear error by finding otherwise. In Lanning v. Glens Falls, 908 F.3d 19,
25 (2d Cir. 2018), the Second Circuit Court of Appeals “[wrote] to dispel any confusion
among district courts about the favorable termination element of a § 1983 malicious
prosecution claim.” The Court explained that New York common law rules for malicious
prosecution were different than those applied in a Section 1983 claim, and a constitutional
claim required more emphatic proof of such favorable termination. Id. at 25-29. To prevail
on such a claim, a plaintiff must show that “the criminal proceedings against [her] were
terminated in a manner indicating her innocence.” Id. at 29. The Court here found that
the charges were dismissed with prosecutors having doubts about whether they could
prevail at trial. Such evidence does not “indicate” innocence, but instead a decision that
the case was not worth pursuing. Plaintiff’s brief did not address the law on the issue of
favorable termination, instead claiming in a footnote that the favorable termination element
was obvious. The Court does not find clear error in applying this standard, and will deny
the motion on these grounds.
B. Default Judgment
Plaintiff has filed a motion for default judgment. See dkt. # 51. In her motion,
Plaintiff represents that the Clerk of Court filed an entry of default against Lois
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McRedmond on March 14, 2017. See Affirmation of Elmer Keach, dkt. # 51-1, □□□□□ The
Court notes that the docket contains such an entry with reference to Plaintiff's original
Complaint. See dkt. # 15. The docket also reflects that on March 16, 2017, the Court
informed the Plaintiff that any motion for default judgment against McRedmond should be
filed within 30 days of the entry of default. See dkt. #16. On May 1, 2017, the Court
granted Plaintiff's request for an extension of time to move for default judgment, providing
Plaintiff until June 1, 2017 to file such a motion. See dkt. #17. During a telephone
conference with Magistrate Judge Baxter on June 14, 2017, Plaintiff's counsel informed
the court that McRedmond had filed for bankruptcy. See docket entry dated June 14,
2017. Counsel intended to explore options with McRedmond and her counsel. Id. On
September 18, 2017, Plaintiff's counsel informed Magistrate Judge Baxter that he hoped
to depose McRedmond to determine whether she should be dismissed from the action.
See docket entry for September 18, 2017. During a telephone conference on February 7,
2018, Magistrate Judge Baxter inquired as to the status of Defendant McRedmond in
relation to the Amended Complaint Plaintiff prosed filing. See docket entry for February 7,
2018. No response by counsel is recorded in the docket entry.
On April 13, 2018, Plaintiff filed an Amended Complaint that again named
McRedmond as a Defendant. See dkt. #31. McRedmond has never answered this
Complaint. Litigation continued on the matter. On August 15, 2019, the Court granted in
part and denied in part Defendants’ motion for summary judgment. See dkt. # 49. In that
opinion, the Court noted that Defendant McRedmond had never answered the Amended
Complaint. The Court directed Plaintiff to take appropriate action. After Plaintiff filed the
instant motion for default judgment, Defendant McRedmond, who is proceeding pro se,
wrote the Court. See dkt. # 52. On September 9, 2019, McRedmond wrote the Court in
response to a “certified letter she had received.” Id. McRedmond further related that she
had not wanted Plaintiff to be arrested, but she followed police officers’ advice in her
attempt to get her credit card returned. Id. McRedmond also claims that she had been
informed at a court hearing “that the lawyer for the Johnstown Police Department would
take care of me in this case.” Id.
The Court will deny the Plaintiff’s motion for default judgment with leave to renew at
an appropriate time. First, as explained above, a pre-condition for obtaining default
judgment is entry of default by the Clerk of Court. While Plaintiff obtained an entry of
default for her original complaint, she filed an Amended Complaint that again named
McDermond as a defendant. McDermond did not answer or otherwise respond to this
pleading, but Plaintiff has never requested an entry of default due to that failure. Default
judgment is not appropriate without that entry. Moreover, McRedmond’s letter to the Court
makes clear that she intends to raise a defense in this action. Given her pro se status and
her clear lack of understanding of court procedures, the Court will permit McRedmond
time to answer or otherwise respond to the Amended Complaint. Plaintiff can take
appropriate action if she fails to respond as directed.
IV. CONCLUSION
For the reasons stated above, the Plaintiff’s motion for reconsideration, dkt. # 50, is
hereby GRANTED IN PART and DENIED IN PART. The motion is GRANTED with
respect Plaintiff’s false arrest claims against the City of Johnstown, and the Clerk of Court
is directed to REINSTATE the City as a Defendant in this matter. The motion is DENIED
in all other respects. The Plaintiff’s motion for default judgment against Defendant
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McRedmond, dkt. # 51, is hereby DENIED. Defendant McRedmond is hereby ORDERED
to answer or otherwise respond to the Plaintiff's Amended Complaint within 21 days of the
date of this order. Failure to respond could lead to entry of default and default judgment
against the Defendant.
IT IS SO ORDERED.
Thomas J. MgAvoy
Senior, U.S. District Judge
Dated: November 12, 2019