Ezagui v. City of New York

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MENACHEM EZAGUI, Plaintiff, v. CITY OF NEW YORK, POLICE OFFICER MCCANN, SHIELD #14257, Defendants.

No. 20-CV-06360-DG-SJB

United States District Court, E.D. New York

February 14, 2023

REPORT & RECOMMENDATION

SANKET J. BULSARA United States Magistrate Judge.

Plaintiff Menachem Ezagui (“Ezagui”) seeks to reopen this case pursuant to Rule 60(b)(6) of the Federal Rules of Civil Procedure. This case was closed on February 5, 2021 after the parties entered into a stipulation dismissing Ezagui's federal claims and remanding the action to state court. Over one year later, Ezagui, represented by new counsel, moved for relief from that judgment, arguing that his former attorney “lacked the authority” to enter into the stipulation on his behalf. The motion to vacate was referred by the Honorable Diane Gujarati to the undersigned. (Order Referring Mot. dated Sept. 20, 2022). For the reasons stated below, the Court respectfully recommends that Ezagui's motion to vacate be denied.

FACTS AND PROCEDURAL HISTORY

Menachem Ezagui first sued the City of New York and Police Officer Dylan McCann, Shield #14257 (together “Defendants”) in Kings County Supreme Court alleging violations of 42 U.S.C. § 1983 and assault and battery arising from injuries he sustained while observing a street protest. (Complaint dated Oct. 25, 2020 (“Compl.”), attached as Ex. 1 to Notice of Removal dated Dec. 30, 2020 (“Notice of Removal”), Dkt. No. 1).

Defendants timely removed the case to this Court, on the basis of federal question jurisdiction. (Notice of Removal ¶ 5). Approximately one month later, the parties entered into a joint stipulation dismissing with prejudice Ezagui's federal claims (for violations of § 1983) and remanding the case to state court. (Stipulation of Dismissal dated Feb. 1, 2021, Dkt. No. 8). The agreement provided:

It is hereby stipulated, consented to and agreed, by and between the attorneys for the parties, pursuant to Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure, that all Federal Causes of Action brought, or that could have been brought, against defendants . . . are hereby dismissed with prejudice by plaintiff in this case and any case to be filed in, or remanded to, state court. The parties agree that this action will be remanded forthwith to the New York Supreme Court, Kings County, for all further proceedings dealing with the Plaintiff's state law claims only. The parties further agree that this stipulation will not be utilized to prohibit plaintiff from alleging any and all applicable state law causes of action and that Plaintiff only renounces his federal causes of action.

(Id.). Counsel for Ezagui, David A. Zelman, signed the stipulation on his behalf. (Id.). Judge Gujarati issued an order remanding the case to state court in light of the stipulation. (Order of Remand to State Ct. dated Feb. 5 2021). The Clerk of Court thereafter sent a certified copy of the remand order to the Kings County Supreme Court, and this federal case was closed that same day. (Id.).

Ten months later, Ezagui sought-in a filing made by his then counsel Zelman-a pre-motion conference in anticipation of a motion to vacate the stipulation. (Mot. for Pre-Mot Conference dated Oct. 5, 2021, Dkt. No. 9). Ezagui argued that, in executing the stipulation, he relied upon Corporation Counsel's false and misleading representation that it represented Officer McCann. (Id. at 3). According to him, as a result, the rule of unanimity-which requires that all defendants consent to removal-was violated. (Id.). Ezagui also indicated that he continued to prosecute the case against Defendants in state court including by moving for default judgment against McCann. (Id. at 2). Defendants' opposition argued that Corporation Counsel did represent McCann for the purposes of effectuating removal, and the office eventually represented-and continues to represent-McCann for all purposes. (Letter in Opp'n to Pl.'s Req. for Pre-Mot. Conference, Dkt. No. 10 at 2). The Court ordered Plaintiff to show cause why this Court had jurisdiction over this closed case, particularly in light of the pending state court proceeding. (Order to Show Cause dated Jan. 12, 2022). The parties filed their responses to the Court's order and, on May 13, 2022, Ezagui withdrew his motion. (Letter, Dkt. No. 16).

Several months later, on August 22, 2022, Ezagui, through new counsel, filed the present motion to vacate the stipulation pursuant to Federal Rule 60(b)(6). (Mot. to Vacate Stipulation dated Aug. 22, 2022 (“Mot. to Vacate”), Dkt. No. 17). The Court granted a 60-day extension of time for Defendants to file their response, but an opposition was not filed. (Order dated Sept. 21, 2022).

DISCUSSION

There is a threshold jurisdictional question that the Court briefly addresses. “[W]hether a court has subject-matter jurisdiction over a claim is distinct from whether a court chooses to exercise that jurisdiction.” Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009). This case was originally removed to federal court on the basis of federal question jurisdiction. See 28 U.S.C. § 1441(a); (Notice of Removal ¶ 5). Following the stipulation dismissing the federal claims with prejudice, the Court remanded the action to state court. (Order of Remand to State Ct. dated Feb. 5, 2021). Though the Court could have exercised supplemental jurisdiction over any state claims, in light of the stipulation it chose not to do so. (See id.); Carlsbad Tech., 556 U.S. at 639 (“With respect to supplemental jurisdiction in particular, a federal court has subjectmatter jurisdiction over specified state-law claims, which it may (or may not) choose to exercise.”). Said differently, the case left federal court in favor of state court not because of the absence of subject matter jurisdiction, but because the stipulation made clear the Court should not exercise federal jurisdiction. See 28 U.S.C. § 1367(c)(3); Duffy v. Absecon Police Dep't, No. 17-CV-1117, 2019 WL 5265322, at *2 (D.N.J. Oct. 17, 2019) (holding that, where removal is based on 28 U.S.C. § 1331, plaintiff's voluntary dismissal of his federal claims by stipulation to remand “provides a basis for the [c]ourt to consider whether, in its discretion, it should continue to exercise subject matter jurisdiction over [p]laintiff's state law claims under 28 U.S.C. § 1367”). This decision is “purely discretionary.” Carlsbad Tech., 556 U.S. at 639; Warren v. Mariner Fin., LLC, No. 20-CV-4193, 2021 WL 5232253, at *4 n.3 (2d Cir. Nov. 10, 2021). “[A]n exercise of discretion under § 1367 cannot be characterized as a subject matter jurisdiction remand[.]” Dirauf v. Berger, 57 F.4th 101, 106 (3d Cir. 2022).

As a result, although the parties are now litigating in state court, this Court still has jurisdiction to evaluate the terms on which it left this federal forum. E.g., id. (affirming district court's decision to decide Rule 60 motion following remand based on declination of supplemental jurisdiction).

As such, the Court turns to the merits of the motion and recommends that it be denied. Ezagui argues that his former counsel, Zelman, lacked authority to withdraw his federal § 1983 claims, and relief from the judgment-which dismissed these claims with prejudice and remanded the state claims-is appropriate under Federal Rule 60(b)(6). (Mem. of Law in Supp. of Mot. to Vacate (“Mem. of Law”), attached as Ex. 21 to Mot. to Vacate, at 6-12, 16). In support of his motion, Ezagui submitted transcripts of recorded telephone calls and text message and email correspondence with Zelman allegedly demonstrating his lack of knowledge or consent of Zelman's decision to enter into the stipulation. (See also id. at 3-6, 11-12).

“Rule 60 regulates the procedures by which a party may obtain relief from a final judgment. . . . The rule attempts to strike a proper balance between the conflicting principles that litigation must be brought to an end and that justice should be done.” 11 Charles Alan Wright & Arthur R. Miller et al., Federal Practice and Procedure § 2851 (3d ed. 2022). Relevant here is subsection 6 of Rule 60(b) which provides that “[o]n motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for . . . any other reason that justifies relief.” Fed.R.Civ.P. 60(b)(6). “[T]he broad power granted by clause (6) is not for the purpose of relieving a party from free, calculated, and deliberate choices the party has made. A party remains under a duty to take legal steps to protect his own interests.” Wright & Miller et al., supra, § 2864. Rule 60(b)(6) “is properly invoked only when there are extraordinary circumstances justifying relief, [and] when the judgment may work an extreme and undue hardship.” Nemaizer v. Baker, 793 F.2d 58, 63 (2d Cir. 1986) (citations omitted).

Inherent in the limitation “any other reason,” Rule 60(b)(6) relief is available only when “the asserted grounds for relief are not recognized in clauses (1)-(5) of the Rule.” Id.; United States v. Cirami, 563 F.2d 26, 35 (2d Cir. 1977) (finding vacatur under Rule 60(b)(6) appropriate where there is a “truly extraordinary turn of events not covered by the first five clauses of the rule” resulting in “substantial injustice”). And, thus, relief may not be based upon the grounds set out in subsection (b)(1)-“mistake, inadvertence, surprise, or excusable neglect.” Fed.R.Civ.P. 60(b)(1).

“Relief from counsel's error is normally sought pursuant to 60(b)(1),” Nemaizer, 793 F.2d at 62, making it ineligible for 60(b)(6) relief. Couched as a claim of error Ezagui's claim would fail. Rule 60(b)(1) relief is limited to one year following entry of the challenged judgment. Fed.R.Civ.P. 60(c)(1). The judgment here was entered in February...