Richardson v. Nassau County

184 F.R.D. 497, 1999 U.S. Dist. LEXIS 1343, 1999 WL 66131
CourtDistrict Court, E.D. New York
DecidedFebruary 8, 1999
DocketNo. 96 CV 3956 ADS
StatusPublished
Cited by11 cases

This text of 184 F.R.D. 497 (Richardson v. Nassau County) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Richardson v. Nassau County, 184 F.R.D. 497, 1999 U.S. Dist. LEXIS 1343, 1999 WL 66131 (E.D.N.Y. 1999).

Opinion

MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge.

On this motion by the defendants to vacate their default, the Court is disturbed by the conduct of the Nassau County Attorney’s Office which prompted the entry of the default. That conduct can only be described as deliberately indifferent to this case, and disdainful of the time of the Court and the plaintiffs attorney. At issue is whether the actions of the County Attorney’s Office rise to the level of “bad faith” warranting denial of the motion.

I. BACKGROUND

The incarcerated plaintiff, Donald Richardson (“Richardson” or “the plaintiff’), initiated this lawsuit on August 9,1996 by filing a pro se summons and complaint against the defendants, Nassau County, Nassaii County Sheriff Joseph P. Jablonsky, and Corrections Officers Janicello and Karol (collectively, the “defendants” or the “County”), pursuant to 42 U.S.C. § 1983, alleging excessive force and due process violations during his confinement at the Nassau County Correctional Facility.

By Order dated February 18, 1997, this Court directed the appointment of counsel from a member of the Pro Bono Panel of the Eastern District of New York. The plaintiffs present attorney, James J. Corbett, was so selected, and he filed a notice of appearance on April 25,1997.

A. The County’s Violation of Magistrate Judge Boyle’s October 23, 1996 Order

On October 23,1996, United States Magistrate Judge E. Thomas Boyle directed the County to produce, within 60 days of the date of the Order, certain items of discovery, including records pertaining to the incidents at issue in the complaint. During a conference held before the Magistrate Judge on June 30, 1997, more than six months beyond the time limit, Judge Boyle noted that the County had yet to comply (Order dated June 30, 1997). Judge Boyle also found that the County “failed to provide the Court with an adequate reason to justify their failure to file objections or otherwise comply with the discovery order of the Court dated October 23, 1996” (Order dated June 30, 1997). Judge Boyle held that the County defendants were deemed to have waived their right to object to the terms of the October 23, 1996 Order, and directed.compliance by July 1, 1997 (Order dated June 30, 1997). In addition, Judge Boyle directed all parties to appear before him for a settlement conference on November 13,1997.

B. The County’s Failure to Appear at the November 13, 1997 Settlement Conference

In violation of the June 30,1997 scheduling order, the County did not appear at the November 13, 1997 conference before Judge Boyle (Order dated November 13, 1997). In his Order issued on that date, Judge Boyle stated:

Once again, the County Attorney’s Office has frustrated the purpose of a conference — this time a settlement conference by failing to appear. Pursuant to Rule 16(f) of the Fed.R. of Civ.P., on motion of the plaintiff, the County Attorney of Nassau [500]*500County is directed to pay to plaintiffs counsel — who appears herein as pro bono counsel for the incarcerated plaintiff — reasonable expenses incurred by plaintiffs counsel as a result of the [defense] counsel’s non-compliance with the scheduling order of this Court. This shall include compensation to plaintiffs counsel for his time involved in this appearance, computed at the rate of $150.00 per hour [for a total sum of $285.00].

(Order dated November 13, 1997; Corbett Letter dated December 11,1997).

C. The County’s Motion for Reconsideration

According to Corbett’s uncontradieted affidavit, when he informed Assistant County Attorney Katrina R. Brooks, who was then assigned to the case, of Judge Boyle’s Order directing the County to pay expenses and attorney’s fees, she replied that the County “would not fork over a dime.”

Subsequently, the County made a letter motion for reconsideration of the sanction. The sole proffered justification for missing the November 13, 1997 conference was that the assigned attorney had left the office, the file was reassigned to Deputy County Attorney Katrina R. Brooks and “the County did not have the case diaried in our office calendar.” (Corbett Aff., Ex. F: Letter from Katrina R. Brooks dated December 5, 1997). Rather than accept responsibility for the failure to appear, the County — in what can only be described as a bizarre tactic — attempted to blame plaintiffs counsel, saying that he should have told Deputy County Attorney Charles Horn about the conference when he happened to see him earlier that day, even though Horn was not yet assigned to the ease. Judge Boyle denied the County’s motion for reconsideration of the sanction, finding that the “facts set forth in [defendants’] letter application do not justify the unilateral non-appearance for which the sanction has been imposed.” (Corbett Aff., Ex. F: Order dated December 15,1997).

D. The County’s Failure to Appear at the August 20,1998 Conference

This Court issued an Order, dated July 7, 1998, directing all parties to appear for a conference on August 20, 1998, at 9:00 a.m. The County did not request an adjournment of the conference. The County Attorney’s Office did not call, write, fax, or contact Chambers in any manner to advise that none of its attorneys would be unable to attend the conference. The County did not appear on the scheduled date.

Accordingly, on August 20, 1998, the date of the conference, at 9:30 a.m., a half hour after it was scheduled to start, the Court orally ordered that the defendants’ answer be stricken on default, that liability be determined in favor of the plaintiff, and that the matter be set down for an inquest as to damages before Judge Boyle. The Court further directed that pursuant to Fed. R.Civ.P. 16(f), the County Attorney pay plaintiffs counsel reasonable compensation, at the rate of $ 150.00 per hour for 1.2 hours for a total sum of $ 180.00, incurred as a result of the defendants’ default, consisting of time expended in travel, appearance before the Court, and preparation of the Order. Plaintiffs counsel prepared a proposed order, which this Court signed on August 24, 1998, setting forth these directives.

E. The County Attorney’s Motion to Vacate the Default Judgment

In motion papers dated September 24, 1998, the County moved to vacate the Court’s August 20, 1998 oral Order. According to the Affidavit of Deputy County Attorney Charles Horn, which is unaccompanied by a Memorandum of Law, he offers the same excuse which Judge Boyle rejected in his December 15,1997 Order, namely, that:

4. The Office of the County Attorney missed the Status Conference in this matter as the case was originally assigned to an attorney who has since left the office and the matter has been unassigned until now. The absence of the defendants at the August 20,1998 Conference was a result of law office failure due to the fact that there was confusion as to which attorney was going [to] handle the Conference.
5. The Bureau of Litigation is presently handling 4,500 active cases with only 14 attorneys. The nature of the office fosters

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Cite This Page — Counsel Stack

Bluebook (online)
184 F.R.D. 497, 1999 U.S. Dist. LEXIS 1343, 1999 WL 66131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richardson-v-nassau-county-nyed-1999.