The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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MERYL BRODSKY,
Plaintiff,
24 Civ. 2823 (PAE) (GS)
-against-
ORDER
THE NEW YORK CITY
CAMPAIGN FINANCE BOARD,
SYLVIA O. HINDS-RADIX, NEW
YORK CITY CORPORATION
COUNSEL AND THE NEW YORK
CITY SHERIFF (NON-PARTY),
Defendants.
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GARY STEIN, United States Magistrate Judge:
By letter dated September 4, 2024, Defendants New York City Campaign
Finance Board (the “Board”); Sylvia O. Hinds-Radix, New York City Corporation
Counsel (“Hinds-Radix”); and the New York City Sheriff (“Sheriff”) (collectively,
“Defendants”) seek clarification as to whether the Court considers certain
individuals, added to the docket as defendants following Plaintiff Meryl Brodsky’s
filing of her Amended Complaint, “to be properly named Defendants in this matter.”
(Dkt. No. 23 at 1). These individuals are former New York State Judge Eileen M.
Rakower (“Rakower”); Muriel Goode-Trufant, the current Acting New York City
Corporation Counsel (“Goode-Trufant”); Hillary Weisman, the Board’s former
General Counsel (“Weisman”); and Louise Tomassetti, a former employee of the
Board (“Tomassetti”). (Id.).1
Having reviewed Defendants’ letter, the Amended Complaint, other filings on
the docket, and relevant law, the Court will not treat these individuals as
defendants at this time, except insofar as the Amended Complaint sues the
Corporation Counsel in her official capacity, who at present is Goode-Trufant.
Rule 10(a) of the Federal Rules of Civil Procedure requires that every party
to an action be named in the complaint’s caption. See Fed. R. Civ. P. 10(a) (“[t]he
title of the complaint must name all the parties”). Plaintiff, who is proceeding pro
se, did not name Rakower, Goode-Trufant, Weisman, or Tomassetti as defendants in
the caption of the Amended Complaint. Nevertheless, “the caption itself is normally
not determinative of the identity of the parties or of the pleader’s statement of
claim.” Heicklen v. U.S. Dep’t of Homeland Sec., No. 10 Civ. 2239 (RJH) (JLC), 2011
WL 3841543, at *10 n.12 (S.D.N.Y. Aug. 30, 2011) (finding that pro se plaintiff
intended to name an individual and agency as defendants, even though they were
not listed as defendants in the caption).
Based on the Court’s review, it is unclear whether Plaintiff intended to name
Rakower, Weisman and/or Tomassetti as defendants. The Amended Complaint
contains a section entitled “Parties.” (Dkt. No. 14 at 7-9). The first paragraph of
this section identifies Brodsky as the plaintiff; explains that the New York City
1 The Amended Complaint refers to “Louise Tomassetti” in one place (Dkt. No. 14 ¶ 12(d)), but to
“Julie Tomassetti” in two other places (id. ¶¶ 12(b), 23) and simply to “Tomassetti” in several other
paragraphs (id. ¶¶ 26, 28, 28(a), 28(b), 71).
Campaign Finance Board is being sued under the New York State Municipal Law;
refers to the Corporation Counsel and the City of New York as public corporations;
and states that, “[s]o far,” the New York City Sheriff is a nonparty. (Id. ¶ 12).
Plaintiff also states that she is suing the Campaign Finance Board “via” Acting
Corporation Counsel Good-Trufant, who replaced Hinds-Radix upon the latter’s
resignation on June 1, 2024. (Id. ¶ 12(a)). All this suggests Plaintiff intended, as
indicated by the caption, to name only the Board and the Corporation Counsel (as
well as the Sheriff as a “nonparty”).
However, Plaintiff also alleges, in the “Parties” section, that she is entitled to
file a claim against the City for disseminating her tax return information in
violation of federal tax law and that “this includes any ‘former officer or employee’
charged with filings.” (Dkt. No. 14 ¶ 12(ii)). She goes on to make various
allegations purportedly connecting Rakower, Weisman, and Tomassetti (as well as
Jihee Suh, a former lawyer for the Board) to the alleged improper dissemination of
her tax return information. (Id. ¶¶ 12(b), 38, 40-42, 62). Plaintiff’s causes of action,
which are predicated on the alleged illegal dissemination of her tax return
information, refer to Weisman and Tomassetti (as well as Suh) as “defendants.” (Id.
¶¶ 71-72). Although Rakower is not similarly described as a “defendant” in the
causes of action, the Amended Complaint elsewhere asserts Rakower can be liable
as a party because she is not entitled to judicial immunity. (Id. ¶¶ 12(iii)). These
allegations suggest that Plaintiff did intend to name Rakower, Weisman, and
Tomassetti as defendants.
Ultimately, however, the Court need not determine whether Plaintiff
intended, when she filed the Amended Complaint, to name these individuals as
defendants. So far as the docket reflects, neither Rakower, Weisman, nor
Tomassetti has been served in this action. Nor did Plaintiff request the issuance of
a summons from the Clerk’s Office for purposes of serving any of these individuals.
More than 90 days have passed since the original Complaint was filed on April 15,
2024 and the Amended Complaint was filed on July 3, 2024, beyond the period in
which Plaintiff was required to effect service. See Fed. R. Civ. P. 4(m) (“If a
defendant is not served within 90 days after the complaint is filed, the court—on
motion or on its own after notice to the plaintiff—must dismiss the action without
prejudice against that defendant or order that service be made within a specified
time.”).
Moreover, since the filing of Defendants’ September 4, 2024 letter, which
noted that “these individuals have not been served” (Dkt. No. 23 at 2), Plaintiff has
not taken any steps to serve Rakower, Weisman, or Tomassetti, or obtain an
extension of her time to do so. Indeed, Plaintiff has not submitted any response to
Defendants’ September 4, 2024 letter. Accordingly, given this context, the Court
does not view Rakower, Weisman, or Tomassetti as defendants.
The analysis differs with respect to Goode-Trufant. The Court understands
that Plaintiff named Hinds-Radix in the original Complaint solely in Hinds-Radix’s
then-official capacity as Corporation Counsel. The Court similarly understands
that the Amended Complaint refers to Goode-Trufant solely in her official capacity
as Acting Corporation Counsel following Hinds-Radix’s resignation. (See Dkt. No.
14 12(a)). There appear to be no allegations of personal involvement or
wrongdoing by Hinds-Radix or Goode-Trufant that could give rise to individual
liability. Accordingly, it is appropriate to substitute Goode-Trufant as a Defendant
in lieu of Hinds-Radix. See Fed. R. Civ. P. 25(d) (‘when a public officer who is a
party in an official capacity ... resigns... while the action is pending,” the “officer’s
successor is automatically substituted as a party”); Hill v. City of N.Y., No. 13 Civ.
6147 (PKC) (JO), 2019 WL 1900508, at *1 n.1 (E.D.N.Y. Apr. 29, 2019) (substituting
current city officials for former city officials named only in their official capacities).
kee
The Clerk of Court is respectfully directed to amend the caption on the docket
in accordance with this Order by: G@) terminating Rakower, Weisman and
Tomassetti as parties to this action; and (ii) substituting Goode-Trufant in the place
of Hinds-Radix as a Defendant.
SO ORDERED.
DATED: New York, New York
November 13, 2024 O. Mea
The Honorable Gary Stein
United States Magistrate Judge