UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -----------------------------------X JENN-CHING LUO, Plaintiff,
-against- MEMORANDUM & ORDER 12-CV-3073(JS)(AKT) BALDWIN UNION FREE SCHOOL DISTRICT and MICHELLE GALLO
Defendants. -----------------------------------X APPEARANCES For Plaintiff: Jenn-Ching Lou, pro se 830 Hastings Street Baldwin, NY 11510
For Defendants: Jeltje DeJong, Esq. Kelly E. Wright, Esq. Devitt Spellman Barrett, L.L.P. 50 Route 111 Smithtown, NY 11787
SEYBERT, District Judge:
Pro se plaintiff Jenn-Ching Luo (“Plaintiff”)
brought this action to redress perceived shortcomings in
the way defendant Baldwin Union Free School District (the
“District”) and several individual defendants addressed the
educational needs of B.L., Plaintiff’s disabled child. The
remaining defendants are Michelle Gallo, the director of
pupil services for the District, and the District
(collectively, “Defendants”), whom Plaintiff alleges
violated the Individuals with Disabilities Education Act
(“IDEA”), Section 1983 of Title 42 of the United States
Code (“Section 1983”), and Section 1985 of Title 42 of the
United States Code (“Section 1985”). Currently pending
before the Court are: (1) Plaintiff’s appeal from
Magistrate Judge A. Kathleen Tomlinson’s May 20, 2013 Order
during a conference (Pl.’s Appeal, Docket Entry 62), and
(2) Plaintiff’s motion to strike Defendant’s untimely
Answer (Pl.’s Mot. to Strike, Docket Entry 63). For the
following reasons, Judge Tomlinson’s order is AFFIRMED and
Plaintiff’s motion to strike is DENIED.
BACKGROUND
I. Factual Background
The Court presumes familiarity with the facts of
this case, which are detailed in the Court’s prior Orders,
particularly the February 12, 2014 Memorandum & Order
(“Feb. 2014 Order,” Docket Entry 85) and the March 21, 2013
Memorandum & Order (“Mar. 2013 Order,” Docket Entry 34).
Briefly, Plaintiff’s child, B.L, was a student in the
District. (Mar. 2013 Order at 2.) According to Plaintiff,
Gallo presented a flawed evaluation report from 2009
regarding B.L. and failed to address Plaintiff’s suggestion
of a different school for B.L. during a July 2011 Committee
on Special Education (“CSE”) meeting. (Mar. 2013 Order at
2-3.) Plaintiff’s claims stem from his dissatisfaction
with the results of that meeting.
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II. Procedural Background
Plaintiff originally commenced this action
against the District and Gallo as well as Susan B. Gibson
(“Gibson”), the District’s legal consultant, and Robert
Briglio (“Briglio”), the hearing officer during the CSE
meeting. He asserted the following federal claims: first,
a claim that all Defendants violated the IDEA by
(a) failing to consider information regarding B.L.’s
placement at Camphill, a school in Pennsyvlania, or a
similar setting; (b) failing to improve B.L.’s language and
social skills; and (c) conducting administrative
proceedings in which erroneous arguments were presented and
adopted; second, a Section 1983 claim that all Defendants
deprived Plaintiff of his rights under the IDEA for the
same reasons; third, Section 1983 and 1985 claims against
Gallo and Gibson for conspiring to violate Plaintiff’s
rights under the IDEA, and; fourth, a Section 1983 claim
against Gallo, Gibson, and Briglio for depriving Plaintiff
of due process under the Fourteenth Amendment. (Mar. 2013
Order at 5.) The Complaint also asserted a state law claim
of negligence against Gallo. (Mar. 2013 Order at 5.)
After the Court’s March 2013 Order, Plaintiff’s only
remaining claims are his claim for IDEA administrative
review, and his Section 1983 claims against Gallo and the
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District for (a) failing to consider information regarding
B.L.’s placement in a Camphill-like setting and thus not
providing Plaintiff with a meaningful opportunity to
recommend an educational placement, and (b) conducting
administrative proceedings in which erroneous arguments
were made and adopted. (Mar. 2013 Order at 22.)
Plaintiff subsequently filed several motions,
including a motion for reconsideration of the March 2013
Order (see Docket Entry 37). In addressing that motion,
the Court also ruled on Plaintiff’s pending motions to
strike the District and Gallo’s Answer (Docket Entry 63),
Plaintiff’s motion for sanctions (Docket Entry 73), and
Plaintiff’s motion to dismiss a counterclaim filed by
Briglio (Docket Entry 76). Ultimately, the Court denied
Plaintiff’s motion for reconsideration, reserved judgment
on Plaintiff’s motion to strike the answer, denied
Plaintiff’s motion for sanctions, and dismissed Briglio’s
counterclaim. (See Feb. 2014 Order at 13.) As it pertains
to the motion to strike, the Court also ordered the
District and Gallo to show cause as to why their Answer
should not be stricken. (See Feb. 2014 Order at 9-10.)
In addition, during the course of litigation,
Plaintiff also submitted a Pre-Discovery Disclosure
Statement, seeking to interrogate the court reporter from
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the administrative proceeding, as well as Briglio’s phone
records during the months of the hearing. (Pl.’s Disc.
Stmt., Docket Entry 45, at 3-4.) Judge Tomlinson permitted
Plaintiff to serve narrowly tailored document requests
relating to Plaintiff’s remaining claims, but did not
permit Plaintiff to interrogate the court reporter or to
access to Briglio’s phone records. (Minute Entry, Docket
Entry 56, at 1.)
DISCUSSION
Currently, Plaintiff appeals Judge Tomlinson’s
Order denying his discovery requests. Also pending is
Plaintiff’s motion to strike the Answer. The District and
Gallo have responded to the Court’s Order to Show Cause,
and this matter is also ripe for the Court’s review. The
Court will address each issue in turn.
I. Appeal of Magistrate Judge Tomlinson’s Order
A. Legal Standard
When a party files a timely written objection to
the proposed findings of a magistrate judge, the district
court may “accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1)(C) (2009). The standard of
review, which the district court shall apply, depends upon
whether the order is dispositive. DiPilato v. 7-Eleven,
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Inc., 662 F. Supp. 2d 333, 340 (S.D.N.Y. 2009). A pretrial
matter which is not dispositive of the party’s claim or
defense may only be modified or set aside when part of that
order is “clearly erroneous or is contrary to law.” FED. R.
CIV. P. 72(a). A magistrate decision is clearly erroneous
when “the court is, upon review of the entire record, [ ]
left with the definite and firm conviction that a mistake
has been committed.” DiPilato, 662 F. Supp. 2d at 339-40
(internal quotation marks and citation omitted) (alteration
in original). Pretrial matters concerning discovery are
“generally . . . considered ‘non-dispositive’ of the
litigation” and are therefore subject to the clearly
erroneous or contrary to law standard. See Thomas E. Hoar,
Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990).
B. Interrogation of the Court Reporter
Here, Plaintiff seeks to interrogate the court
reporter from the administrative proceeding. (Pl.’s Disc.
Stmt. at 4.) After careful review of the entire record,
the Court has found no clear error with Judge Tomlinson’s
decision denying Plaintiff’s request.
Specifically, Plaintiff has not demonstrated the
relevance of the interrogation with regard to his remaining
claims. In his Pre-Discovery Disclosure Statement,
Plaintiff merely provides a conclusory allegation that the
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District may have “viciously influenced” the court reporter
to deny Plaintiff a fair hearing. (Pl.’s Disc. Stmt. at
3.) However, this is neither the basis of any of
Plaintiff’s claims, nor does he raise any allegations as to
the court reporter or the accuracy of the transcript.
Insofar as Plaintiff’s claims pertain to the administrative
proceedings, Plaintiff maintains that Gallo withheld
evidence and that the District and Gallo engaged in
misconduct. There is nothing to suggest that the reporter
was in any way involved in such misconduct. See Kelly v.
Ulster Cnty., N.Y., No. 12-CV-1344, 2013 WL 3863929, at *6
(N.D.N.Y. July 24, 2013) (denying as moot plaintiff’s
appeal of the Magistrate Judge’s decision regarding his
motion to compel “full disclosure,” because the defendant
was dismissed from the action).
Accordingly, Plaintiff’s appeal in this regard is
DENIED and Judge Tomlinson’s decision is AFFIRMED.
C. Briglio’s Cell Phone Records
Plaintiff also objects to Judge Tomlinson’s
denial of Plaintiff’s request for the production of
Briglio’s phone records. (Pl.’s Appeal at 1.) Here,
however, given that Briglio is no longer a defendant in
this matter and that the Court has dismissed his
counterclaim, the request for the phone records is moot.
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(See Feb. 2014 Order at 8.) Accordingly, Plaintiff’s
appeal in this regard is also DENIED and Judge Tomlinson’s
decision is AFFIRMED.
II. Plaintiff’s Motion to Strike
Thus, the Court turns to Plaintiff’s motion to
strike the District and Gallo’s Answer.
A. Legal Standard
Motions to strike are governed by Rule 12(f) of
the Federal Rules of Civil Procedure, which provides, in
relevant part, that “[t]he court may strike from a pleading
an insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.” FED. R. CIV. P. 12(f).
“Resolution of a Rule 12(f) motion is left to the district
court’s discretion.” E.E.O.C. v. Bay Ridge Toyota, Inc.,
327 F. Supp. 2d 167, 170 (E.D.N.Y. 2004). However, motions
to strike are generally disfavored. See Illiano v. Mineola
Union Free Sch. Dist., 585 F. Supp. 2d 341, 357 (E.D.N.Y.
2008). To prevail, a movant typically must show that there
is no question of fact which might allow the defense to
succeed, there is no substantial question of law under
which the defense could succeed, and that the movant is
prejudiced by inclusion of the defense. See County
Vanlines Inc. v. Experian Info. Solutions, Inc., 205 F.R.D.
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148, 153 (S.D.N.Y. 2002) (quoting SEC v. Toomey, 866 F.
Supp. 719, 722 (S.D.N.Y. 1992)).
“Furthermore, the Second Circuit ‘has expressed
on numerous occasions its preference that litigation
disputes be resolved on the merits, not by default.’”
Azikiwe v. Nigeria Airways Ltd., No. 03-CV-6387, 2006 WL
2224450, at *1 (E.D.N.Y. July 31, 2006) (quoting Marfia v.
T.C. Ziraat Bankasi, 100 F.3d 243, 249 (2d Cir. 1996)).
Under Rule 6(b) of the Federal Rules of Civil Procedure, “a
court may, for good cause” extend the time to file an
answer “if the party failed to act because of excusable
neglect.” Arena v. Vill. of Suffern, N.Y., 519 F. App’x
61, 62 (2d Cir. 2013) (quoting FED. R. CIV. P. 6(b)(1)(B)).
“Good cause is usually not difficult to show, and: an
application for the enlargement of time under Rule 6(b)(1)
normally will be granted in the absence of bad faith on the
part of the party seeking relief or prejudice to the
adverse party.” Rankin v. City of Niagara Falls, 293
F.R.D. 375, 390 (W.D.N.Y. 2013) (internal quotation marks
and citation omitted), aff’d --- F. App’x ----, 2014 WL
2609641 (2d Cir. June 12, 2014). Once good cause is
established, the court then looks to the factors
encompassing excusable neglect, which are: “‘[1] [t]he
danger of prejudice to the [opposing party], [2] the length
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of the delay and its potential impact on judicial
proceedings, [3] the reason for the delay, including
whether it was in the reasonable control of the movant, and
[4] whether the movant acted in good faith.’” Tancredi v.
Metro. Life Ins. Co., 378 F.3d 220, 228 (2d Cir. 2004)
(quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.
P’ship, 507 U.S. 380, 395, 113 S. Ct. 1489, 123 L. Ed. 2d
74 (1993) (alterations in original)).
B. Plaintiff’s Motion
Plaintiff seeks to strike the District and
Gallo’s Answer because they failed to file the Answer
within fourteen days of the March 2013 Order denying their
motion to dismiss. See FED. R. CIV. P. 12(a)(4)(A)
(providing that where the court denies a Rule 12 motion, a
responsive pleading “must be served within 14 days after
notice of the court’s action”). The Court finds that the
Defendants have shown good cause and excusable neglect.
As more fully discussed below, the District and
Gallo have demonstrated good cause because they acted in
good faith throughout the litigation. They filed an
untimely Answer due to confusion, and their delay did not
prejudice Plaintiff.
Moreover, the Court also finds that the untimely
answer was the result of excusable neglect. “[T]o
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establish prejudice in the context of a default, there must
be a showing that the delay will result in the loss of
evidence, create increased difficulties of discovery, or
provide greater opportunity for fraud and collusion.” Car-
Freshner Co. v. Air Freshners, Inc., No. 10-CV-1491, 2012
WL 3294948, at *4 (N.D.N.Y. Aug. 10, 2012) (internal
quotation marks and citations omitted). Permitting the
extension after a two-month delay does not prejudice
Plaintiff because discovery has not yet concluded, and
motions for summary judgment have not yet been filed.
Plaintiff was also aware of the District and Gallo’s
potential defenses as evidenced by his memorandum in
opposition to the motion to dismiss on July 18, 2011. In
the memorandum, Plaintiff addressed Defendants’ defenses,
such as failure to state a claim, failure to set forth
sufficient facts, and qualified immunity. (Pl.’s Opp. Br.,
Docket Entry 26, at 2-8.)
Additionally, Defendants’ failure to file an
Answer seems to be the result of confusion due to the
multiple cases Plaintiff has pending, along with
Plaintiff’s motion for reconsideration. (See generally
Defs.’ Opp. Br., Docket Entry 89-2.) The District and
Gallo have demonstrated that their failure to answer was
the result of a good faith mistaken belief because they
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have actively participated throughout the litigation.
Defendants have complied with discovery procedures,
participated in multiple telephone conferences, and
properly served scheduling orders on Plaintiff, leaving no
indication that they intended to avoid prosecution of the
case. Furthermore, after becoming aware of Plaintiff’s
motion seeking default on May 28, 2013, the District and
Gallo immediately filed their Answer the following day.
(Defs.’ Ans.) Finally, policy considerations favor a
denial of the motion because striking the Answer, which
would be the functional equivalent of entering a default
judgment, would “violate the policy of resolving cases on
the merits.” Llewellyn v. N. Am. Trading, No. 93-CV-8894,
1996 WL 715532, at *2 (S.D.N.Y. Dec. 11, 1996).
Accordingly, Plaintiff’s motion to strike is
DENIED.
CONCLUSION
For the foregoing reasons, Judge Tomlinson’s May
20, 2013 Order is AFFIRMED, and Plaintiff’s motion to
strike is DENIED.
The Court certifies that pursuant to 28 U.S.C.
§ 1915(a)(3) that any appeal from this Order would not be
taken in good faith and therefore in forma pauperis status
is denied for the purpose of any appeal. See Coppedge v.
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United States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 8 L.
Ed. 2d 21 (1962).
The Clerk of the Court is directed to mail a copy
of this Memorandum and Order to the pro se Plaintiff.
SO ORDERED.
/s/ JOANNA SEYBERT Joanna Seybert, U.S.D.J.
Dated: August 12 , 2014 Central Islip, NY
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