Aurecchione v. Falco

Aurecchione v. Falco et al,

No. 7:22-cv-4538 (NSR)

United States District Court, S.D. New York

August 30, 2022

MEMORANDUM ENDORSEMENT

NELSON S ROMAN, UNITED STATES DISTRICT JUDGE

The Court is in receipt of the attached moving papers from Plaintiff, filed August 27, 2022, seeking: (i) under FRCP 37 (a)(1), to compel Defendant Rockland County Sheriff Louis Falco III to disclose the identities of John Doe defendants 1-4; (ii) alternatively, under FRCP 26(d)(1), for an order allowing limited discovery about the identities of the John Doe defendants; (iii) alternatively, under FRCP 27, to perpetuate the testimony of people who have information related to the identity of the John Doe defendants; and (iv) under FRCP 4(m), to extend Plaintiff's time by 30 days to serve the John Doe defendants once they are identified. The Court is also in receipt of the attached letter from Defendant Rockland County Sheriff Louis Falco III and District Attorney Tom Walsh (collectively, the “County Defendants”), seeking a pre-motion conference and leave to file a motion to dismiss Plaintiff's First Amended Complaint.

With respect to Plaintiff's moving papers, the Court DENIES Plaintiff's instant motion without prejudice with leave to refile for failure to follow this Court's Individual Rules of Practice in Civil Cases.^[1] See Sec. 3.A. Specifically Plaintiff failed “to request an informal conference with the Court before filing any such motion.” Id. Further, a review of Plaintiff's moving papers indicates that Plaintiff also failed to comply with the “meet and confer” rule required by Local Rule 37.2 and FRCP 37(a)(1).

Notably Plaintiff's exhibits shows that on August 5, 2022, his counsel communicated with Mr. Robert Weissman (who Plaintiff's counsel believed at the time to have been already assigned as lead counsel for Sheriff Falco) and that Mr. Weissman responded to Plaintiff's counsel at 7:58 a.m. on August 10, 2022-the same day on which Sheriff Falco was served with the summons and complaint at 1:03 p.m. (See ECF Nos. 25-1 & 25-2; see also ECF No. 17.) In his response, Mr. Weissman responded to Plaintiff's counsel that as of that day (August 10th), he lacked the authority to provide him with any documents from Rockland County until he was officially assigned as lead counsel to the instant case but that once he was assigned, then he could address counsel's request for documents to identify the John Doe defendants at that time. (ECF No. 25-1.) In short, Plaintiff's exhibits show that his counsel's communications were premature for purposes of the “meet and confer” rule as required by Local Rule 37.2 and FRCP 37(a)(1).

And with respect to the County Defendants' request, the Court DIRECTS Plaintiff file a response with his own position on or before September 6, 2022.

The Clerk of the Court is directed to terminate the motion at ECF No. 24.

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

PHILIP S. AURECCHIONE Petitioner

v.

NEW YORK ATTORNEY GENERAL LETITIA JAMES (OFFICIAL CAPACITY); ACTING COMMISSIONER ANTHONY J. ANNUCCI NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION (OFFICIAL CAPACITY); SHERIFF LOUIS FALCO III OF THE ROCKLAND COUNTY SHERIFF'S DEPARTMENT (OFFICIAL CAPACITY; DISTRICT ATTORNEY OF THE ROCKLAND COUNTY DISTRICT ATTORNEY'S OFFICE; OFFICERS JOHN DOE 1 - 4 OF THE ROCKLAND COUNTY SHERIFF'S DEPARTMENT (OFFICIAL AND INDIVIDUAL CAPACITY); PAROLE OFFICERS RYAN AND JOHNSON (OFFICIAL CAPACITY AND INDIVIDUAL CAPACITY) Respondents.

No. 7:22-cv-04538-NSR

MOTION TO EXTEND TIME FOR SERVICE OF COMPLAINT AND COMPEL ROCKLAND COUNTY SHERIFF TO IDENTIFY DEFENDANT OFFICERS JOHN DOES 1- 4 BEFORE R. 26(f) CONF.

MOTION TO EXTEND TIME FOR SERVICE AND EXPEDITED DISCOVERY

PLEASE TAKE NOTICE that, upon the affirmation of counsel, the exhibits annexed thereto, and annexed memorandum of law submitted herewith, Plaintiff will move this Court at the United States Courthouse, on a date and time to be set forth by this Court, for an order

1) Pursuant to Fed.R.Civ.P. 37(a)(1) to compel Defendant Rockland County Sheriff to disclose the identities of the Rockland County Sheriff's Officer(s) John Does 1 - 4, as it pertains to the June 01, 2021 arrest of the Plaintiff, as premised upon Valentin v Dinkins, 121 F.3d 72 [2d Cir 1997].

2) Pursuant to Fed R. Civ. P. 26(d)(1), for an order in the alternative permitting Plaintiff's leave to discover limited information about the identities and names of the Rockland County Sheriff's Officers named as Defendant's John Doe(s) 1-4, by way of a Fed.R.Civ.P. 34 request or R. 45 Subpoena.

3) Grant leave in the alternative pursuant to Fed R. Civ. P. 27 et. seq. to perpetuate the testimony of person(s) who have information related to the identity of the John Doe Officers for the limited purpose of revealing their identities to aid in service of the complaint against them.

4) Pursuant to Fed.R.Civ.P. 4(m) extend the time of service by an additional thirty (30) days following disclosure of the identities of the named Defendant Officers John Does 1-4 to allow Plaintiff the opportunity to serve the John Doe Defendants.

Respectfully Submitted, Robert C. Barchiesi, II, Esq. PA BAR ID No. 328056 Counsel for Plaintiff

Martín Souto Díaz, Esq. PA BAR ID No. 326462 Counsel for Plaintiff

ORDER ON MOTION FOR EXTENSION OF TIME FOR SERVICE AND EXPEDITED DISCOVERY

NELSON ROMAN, U.S. DISTRICT JUDGE

THIS CAUSE having come before the Court on Plaintiff's Motion to Extend the Time for Service of the Summons and Complaint upon the unnamed John Doe defendants 1-4; for an order to Compel Defendant Rockland County Sheriff Louis Falco to disclose the names of same; and on request of Plaintiff for leave in the alternative for expedited discovery prior to the R. 26(f) conference, the Court being duly advised in the premises does hereby Orders as follows.

1) That pursuant to Fed.R.Civ.P. 37(a)(1) this court hereby ORDERS Defendant Rockland County Sheriff to disclose the identities of the Rockland County Sheriff's Officer(s) John Does 1 - 4, as it pertains to the June 01, 2021 arrest of the Plaintiff;

2) That pursuant to Fed R. Civ. P. 26(d)(1), Plaintiff's request for leave in the alternative permitting Plaintiff to discover limited information about the identities and names of the Rockland County Sheriff's Officers named as Defendant's John Doe(s) 1-4, by way of a Fed.R.Civ.P. 34 request or R. 45 Subpoena is hereby GRANTED;

3) That Plaintiff's request for leave in the alternative pursuant to Fed R. Civ. P. 27 et. seq. to perpetuate the testimony of person(s) who have information related to the identity of the John Doe Officers for the limited purpose of revealing their identities to aid in service of the complaint against them is further GRANTED; and

4) That pursuant to Fed.R.Civ.P. 4(m) extend the time of service by an additional thirty (30) days following disclosure of the identities of the named Defendant Officers John Does 1-4 to allow Plaintiff the opportunity to serve the John Doe Defendants is hereby GRANTED.

ORDERED.

ATTORNEY AFFIRMATION IN SUPPORT OF MOTION FOR LEAVE TO EXTEND TIME FOR SERVICE AND EXPEDITED DISCOVERY

AFFIRMATION OF ROBERT C. BARCHIESIII ESQ.

ROBERT C. BARCHIESI, II, ESQ., an attorney duly admitted to practice Pro Hoc Vice before the United States District Court for the Southern District of New York hereby affirms the following to be true under the penalties of perjury pursuant to CPLR § 2106 and 28 U.S.C. § 1746.

1. I am one of Plaintiff s attorneys in the above-captioned matter and am appearing with the permission of the Corn! Pro Hoc Vice. ECF Doc No. 4.

2. Plaintiff filed the underlying Complaint on June 1, 2022. ECF Doc No(s) 1 & 3.

3. On July 1, 2022, a Summons was issued in this matter upon Defendant, Louis Falco III, Rockland County Sheriff. ECF Doc No. 11 4. On August 10, 2022, the Defendant Sheriff was served with a copy of the summons and complaint in this action. ECF Doc No. 17.

5. That despite the diligent efforts of counsel to identify the unnamed John Doe Defendants, counsel is still without the necessary information to identify and name the Defendant Officers John Does 1-4 without the assistance of the Court or through early discovery prior to the R. 26(f) conference.

6. Undersigned counsels' due diligence includes, but is not limited to:

i. On August 5, 2022, undersigned counsel contacted opposing counsel in the underlying state case Aurecchione v. Rockland County for information regarding this issue. A true and correct copy of this exchange is attached as “Exhibit A.”

ii. Undersigned counsel requested the identity of the John Doe Defendants via a Freedom of Information Law request on August 5, 2022. A true and correct copy of this request is attached as “Exhibit B.” Although, Sergeant Thomas Hendrickson responded that the Department would provide a response withing twenty (20) business days, no such response has been delivered as of this writing.

7. As the foregoing attempts have been unsuccessful, the undersigned counsel hereby requests this Court order Defendant Rockland County Sheriff to disclose the identities of the Rockland County Sheriff's Officer(s) John Does 1 - 4, as it pertains to the June 01, 2021 arrest of the Plaintiff.

8. Plaintiff requests, in the alternative, that the com! giant leave to the undersigned to issue a subpoena for any related documents or information from any party or 3rd party who may have such information in its possession or under its control.

9. As a further alternative. Plaintiff seeks this Court's leave to perpetuate the testimony of person(s) who may have such information related to the identity of the John Doe Officers for the limited prupose of revealing their...