Wilson v. Town of Cheektowaga

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

_____________________________________________

DOMINIQUE N. WILSON,

DECISION

Plaintiff, and

v. ORDER

TOWN OF CHEEKTOWAGA, 18-CV-01255W(F)

TOWN OF CHEEKTOWAGA POLICE DEPARTMENT,

and TIMOTHY TURNBULL, Police Officer,

Defendants.

_____________________________________________

APPEARANCES: GREGORY D. ABRAM, ESQ.

Attorney for Plaintiff

249-12 Jericho Turnpike

Suite 230

Floral Park, New York 11001

COLUCCI & GALLAHER, P.C.

Attorneys for Defendants

MARYLOU KATHRYN ROSHIA, of Counsel

2000 Liberty Building

424 Main Street

Buffalo, New York 14202-3695

JURISDICTION

This case was referred to the undersigned by Honorable Elizabeth A. Wolford on

February 6, 2019, for pretrial nondispositive matters. The matter is presently before the

court on Plaintiff’s motion to compel joinder1 (Dkt. 17), filed June 26, 2019.

1 Motions for joinder pursuant to Fed.R.Civ.P. 20(a) are non-dispositive. Hatemi v. M&T Bank

Corporation, 2015 WL 13549199, at * 1 (W.D.N.Y. Mar. 5, 2015) (citing cases).

BACKGROUND and FACTS2

On November 9, 2015, Plaintiff Dominique N. Wilson (“Plaintiff”) was arrested by

Defendant Timothy Turnbull (“Turnbull”), a police officer with Defendant Town of

Cheektowaga Police (“Police”) and charged with reckless endangerment and menacing,

both in the second degree, in violation of New York Penal Law §§ 120.20 and 120.14-

01, and taken into custody. Plaintiff’s arrest arose from a domestic incident (“the

domestic incident”), with her then fiancé, Micaiah Abram (“Abram”), with whom Plaintiff

resided at 1440 Harlem Road in the Town of Cheektowaga, New York (“the residence”).

Specifically, Turnbull was dispatched in response to a neighbor’s call reporting Plaintiff

and Abram were outside the residence fighting and Plaintiff was waving a handgun

registered to Abram. Plaintiff, who admitted the handgun belonged to Abram, was

arrested and charged with reckless endangerment in the second degree and menacing

in the second degree. Abram was not charged, but subsequent to Plaintiff’s arrest, the

residence was searched and all firearms were removed from the residence and

transported to the Police headquarters where they remain retained by the Police for

“safekeeping.” Prosecution of the criminal charges against Plaintiff ended with both

charges being dismissed.

On November 8, 2018, Plaintiff filed the Complaint (“Complaint”) commencing the

instant action pursuant to 42 U.S.C. § 1983, alleging Defendants, including the Town of

Cheektowaga (“Town”), the Police, and Turnbull (together, “Defendants”), subjected

Plaintiff to false arrest, false imprisonment, assault and battery, defamation of character,

and malicious prosecution in violation of Plaintiff’s constitutional rights under the Fourth,

2 The Facts are taken from the pleadings and motion papers filed in this action.

Fifth, and Fourteenth Amendments. On November 9, 2018, Abram commenced a

separate action in this court against the Town, the Police, and David J. Zack,

Cheektowaga Police Chief (“Zack”), asserting the confiscation of Abram’s firearms in

connection with the domestic incident and the subsequent failure to return the firearms

to Abrams violated Abram’s rights under the Fifth and Fourteenth Amendments. See

Abram v. Town of Cheektowaga Police Department, Dkt. No. 18-CV-001267-EAW-LGF

(“Abram’s action”).

On June 26, 2019, Plaintiff filed in the instant action a motion seeking to compel

the joinder of Abram as a plaintiff (Dkt. 17) (“Plaintiff’s motion”), attaching in support the

statement of Gregory Dale Abram, Esq. (Dkt. 17-1) (“Abram Statement”), and the

Memorandum of Points and Authorities (Dkt. 17-2) (“Plaintiff’s Memorandum”). In

opposition to Plaintiff’s motion, Defendants filed on July 16, 2019, the Affidavit of

Marylou K. Roshia, Esq. (Dkt. 20) (“Roshia Affidavit”), exhibits A through F (Dkt. 20-1

through 20-6) (“Defendants’ Exh(s). __”), and the Memorandum of Law in Opposition to

Plaintiff’s Motion to Compel Joinder (Dkt. 20-7) (“Defendants’ Memorandum”). On July

18, 2019, Plaintiff filed the Affidavit of Gregory Dale Abram in Reply (Dkt. 21) (“Abram

Reply Affidavit”), attaching the Memorandum of Law in Reply to Defendant’s Opposition

to Motion for Joinder (Dkt. 21-1) (“Plaintiff’s Reply”). Oral argument was deemed

unnecessary.

Based on the following, Plaintiff’s motion is DENIED.

DISCUSSION

Plaintiff moves to compel the joinder of Abram as a Plaintiff in the instant action

because the claims asserted by Plaintiff in the instant case and by Abram in Abram’s

action arose out of the same transaction, i.e., the domestic incident, and involve

common issues of law or fact. Plaintiff’s Memorandum at 3. In opposition to joinder,

Defendants argue Plaintiff’s motion is procedurally improper because Abram has not

moved for joinder as a plaintiff in the instant action. Defendants’ Memorandum at 2.

Further, although both the instant action and Abram’s action stem from the same

domestic incident involving Plaintiff and Abram on November 9, 2015, the claims

asserted in each case differ with Plaintiff’s claims based on her arrest and Abram’s

claims based on the confiscation of his firearms, id. at 4, such that there is no law or fact

common to both cases. Id. Defendants further maintain joinder would not be in the

interest of judicial economy especially given there is currently pending in Abram’s action

a motion to dismiss. Id. at 5. In further support of joinder, Plaintiff argues joinder will

“promote trial convenience and expedite the resolution of disputes, thereby eliminating

unnecessary lawsuits” in accordance with the central purpose of Fed.R.Civ.P. 20,

Plaintiff’s Reply at 3-4, and that there can be no question that the claims Plaintiff asserts

in the instant case arose out of the same transaction or occurrence that gives rise to the

claims asserted in Abram’s action. Id. at 5-6.

Plaintiff’s motion seeks to compel the joinder of Abram as a plaintiff pursuant to

Fed.R.Civ.P. 20 (“Rule 20”), which, as relevant here, provides for permissive joinder of

plaintiffs in one action if:

(A) they assert any right to relief jointly, severally, or in the alternative with

respect to or arising out of the same transaction, occurrence, or series of

transactions or occurrences; and

(B) any question of law or fact common to all plaintiffs will arise in the action.

Fed.R.Civ.P. 20(a)(1).

Both elements must be met for proper joinder under Rule 20. Brown v. Chappius, 2014

WL 1795015, at * 3 (W.D.N.Y. May 6, 2014) (citing Barnhart v. Town of Parma, 252

F.R.D. 156, 159 (W.D.N.Y. 2008) (joinder is improper if both elements are not

established)). Although the requirements are to be liberally interpreted, both

requirements must be met and constrain the court's discretion. Id. In determining

whether claims arise out of the same “transaction” or “occurrence” under Rule 20,

“courts are to look to the logical relationship between the claims and determine ‘whether

the essential facts of the various claims are so logically connected that considerations of

judicial economy and fairness dictate that all the issues be resolved in one lawsuit.’” Id.

(quoting Barnhart, 252 F.R.D. at 160). Further, Plaintiff bears the burden of

demonstrating that joinder is proper under Rule 20. Id. Here, Plaintiff has failed to meet

her burden for joinder.

With regard to the first element, although the claims asserted by Plaintiff in this

case, as well as the claims asserted by Abram in Abram’s action arose from the same

November 9, 2015 domestic incident, Plaintiff’s claims are based on her arrest and the

resulting criminal charges filed against her, whereas Abram’s claims are based on the

confiscation of his firearms stemming from the search of the residence, and inability to

have the firearms returned. In other words, Plaintiff’s claims pertain to her conduct in

threatening Abram while brandishing a firearm, whereas Abram’s claims pertain to the

subsequent search of the residence and confiscation of his firearms3 which Abram then

was unable to have returned.4 Accordingly, the first element is not satisfied.

Nor is the second element met. In particular, Plaintiff’s claims turn on the legality

of her arrest and subsequent prosecution, whereas Abram’s claims involve the search

of the residence without any warrant, resulting in the seizure of Abram’s weapons, the

return of which Abram was unable to arrange. Accordingly, the instant case and

Abram’s action share no common issue of fact or law.

Moreover, insofar as Plaintiff and Abram seek to avoid duplicative efforts with

regard to discovery in both actions, such concerns can be addressed by the parties to

both actions stipulating that all discovery in either this action or Abram’s action may also

be used in the other action.

Accordingly, joinder under Rule 20 is not supported and Plaintiff’s motion should

be DENIED.

CONCLUSION

Based on the foregoing, Plaintiff’s motion (Dkt. 17) is DENIED.

SO ORDERED.

/s/ Leslie G. Foschio

______________________________________

LESLIE G. FOSCHIO

UNITED STATES MAGISTRATE JUDGE

DATED: January 30, 2020

Buffalo, New York

3 The police officer or officers who searched the residence and seized the weapons is not identified either

in the instant record or in the record in Abram’s action. See, e.g., Abram’s Action Complaint (Dkt. 1) at 4

(“On 11/09/2015 plaintiffs property consisting of firearms was removed from his home by members of the

Town of Cheektowaga Police Department, unlawfully and return of said property has been denied.”).

4 It is not clear from the record whether Abram’s firearms were ever returned to him.