dunnjudgementfull.pdf
DESCRIPTION
A ruling by a federal judge tossing the $10 Million suit against the Putnam Humane Society, Sheriff's Department and former Sheriff's Deputy Barbara Dunn. Anna Nicole Moha claimed Dunn fabricated abuse charges in order to seize Moha's horse and sell it to her own sister.TRANSCRIPT
UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK
ANNA NICOLE MOHA and NANCY BRUNO,
Plaintiffs, 12 Civ. 5075 (PED)
- against - MEMORANDUMAND ORDER
BARBARA DUNN, et al.,
Defendants.
PAUL E. DAVISON, U.S.M.J.:
I. INTRODUCTION
Before the Court are the following motions: (1) defendant Barbara Dunn (“Dunn”)’s
motion for summary judgment on plaintiffs’ malicious prosecution claim (Dkt. 44); (2)
defendant Putnam County Humane Society, Inc. (“PHS”)’s motion for summary judgment on all
claims asserted against it (Dkt. 49); (3) defendants Donald Blame Smith (“Smith”) and the
County of Putnam (“Putnam County” or the “County”)’s motion for judgment on the pleadings
as to all claims except the malicious prosecution claim (Dkt. 53); and (4) plaintiffs Anna Nicole
Moha f/k/a Anna Nicole Bruno (“Moha”) and Nancy Bruno (“Bruno”)’s motions to amend their
pleading to add a cause of action for replevin and for summary judgment on that claim (Dkt. 57).
The parties have consented to my jurisdiction for all purposes. (Dkt. 35.) For the reasons set
forth below, Dunn’s motion is GRANTED; PHS’s motion is GRANTED; Smith and the
County’s motion is GRANTED; and plaintiffs’ motions are DENIED. The case is
DISMISSED.
II. BACKGROUND
of 42 U.S.C. § 1983 and state law arising from events relating
L)
Case 7:12-cv-05075-PED Document 91 Filed 09/25/13 Page 1 of 35
to Moha’s 2005 arrest and prosecution on animal abuse charges. The pertinent allegations and
disputed and undisputed facts are summarized below.
A. The Arrest and the Initiation of the Criminal Proceeding
At some point prior to December 6, 2005, Bruno adopted a thoroughbred horse named
Colby ‘as a gifi” for her daughter, Moha. Both plaintiffs ‘owned and exercised control and/or
custody over their family’s horse.” (Am. Compi. ¶ 37, 41.) On December 6, 2005, an
accusatory instrument was filed in the Town of Putnam Valley Justice Court that charged Moha
with one count of animal cruelty, in violation of Section 353 of the New York State Agriculture
and Markets Law,1 for beating Colby on the head with a weapon.2 The accusatory information
was based on three supporting depositions by eyewitnesses who described the attack in detail.
(Witness Statements (attached to Aronwald Affirm. (Dkt. 45). at Ex. A); Def. Barbara Dunn’s
Statement of Undisputed Material Facts Pursuant to Local Civ. R. 56.1 (“Dunn’s 56.1(a)”) ¶ 2
(Dkt. 47); Pis.’ Response to Def. Barbara Dunn’s Statement of Undisputed Facts Pursuant to
A person who overdrives, overloads, tortures or cruelly beats or unjustifiably injures,maims, mutilates or kills any animal, whether wild or tame, and whether belongingto himself or to another, or deprives any animal of necessary sustenance, food ordrink, or neglects or refuses to furnish it such sustenance or drink, or causes,procures or permits any animal to be overdriven, overloaded, tortured, cruellybeaten, or unjustifiably injured, maimed, mutilated or killed, or to be deprived ofnecessary food or drink, or who wilfully sets on foot, instigates, engages in, or in anyway furthers any act of cruelty to any animal, or any act tending to produce suchcruelty, is guilty of a class A misdemeanor and.. . shall be treated as a misdemeanordefined in the penal law.
N.Y. Agric. & Mkts. Law § 353.
2 Specifically, the information alleged that on November 17, 2005, Moha beat the horsewith a chain lead shank, causing two severe injuries to his face requiring veterinary treatment,stitches and surgical staples.” (Information (attached to Marzolla Aff. (Dkt. 58), at Ex. G).)
2
Case 7:12-cv-05075-PED Document 91 Filed 09/25/13 Page 2 of 35
Local Civil R. 56.1 (“Pl.’s 56.1(b) to Dunn”) ¶ 2 (Dkt. 72); Def. Putnam County Humane
Society’s Statement of Undisputed Facts Pursuant to Local R. 56.1 C’PHS’s 56.1(a)”) ¶ 4 (Dkt.
51); Pls.’ Resp. to Def. Putnam County Humane Society’s Undisputed Facts Pursuant to Local
Civ. R. 56.1 (“PIs.’ 56.1(b) to PHS”) ¶ 4 (Dkt. 71).) The information was subscribed by Dunn,
then employed as a Deputy Sheriff for the County. (Information; Am. Compl. ¶ 8, 39-40; PHS’s
56.1(a) ¶ 1; Pls.’ 56.1(b) to PHS ¶ 1; Pis.’ Local R. 56.1 Statement of Facts (“Pls.’ 56.1(a)”) ¶ I
(Dkt. 60); Def. Putnam Humane Society’s Resp. to Pls.’ Statement of Material Facts Pursuant to
Local Civ. R. 56.1 (“PHS’s 56.1(b)”) ¶ 1 (Dkt. 66); Defs. Dunn & Hall’s Resp. to Pls.’
Statement of Material Facts Pursuant to Local Civ, R. 56.1 (“Dunn’s 56.1(b)”) ¶ 1 (Dkt. 87).) A
temporary order of protection was issued requiring Moha to stay away from the farm where
Colby boarded. (Am. Compl. ¶ 46.) Dunn arrested Moha on December 17, 2005. (j ¶ 47;
PHS’s 56.1(a) ¶ 3; Pis.’ 56.1(b) to PHS ¶ 4.) At some point thereafter, Moha retained counsel.
PHS’s 56.1(a) Statement states: “The Information and appearance ticket were issuedbased on complaints and sworn handwritten statements of three witnesses. Exhibit ‘A’ tothe Affirmation of William Aronwald.” (PHS’s 56.1(a) ¶ 4.) Plaintiffs’ counter-statement statessimply: “Deny. The document speaks for itself and Plaintiffs respectfully refer all questions oflaw to the Court.” (Pls.’ 56.1(b) to PHS ¶ 4.) Plaintiffs’ response to a similar paragraph inDunn’s 56.1(a) statement is the same. (Dunn’s 56.1(a) ¶ 2; Pls.’ 56.1(b) to Dunn ¶ 2.) Thesecounter-statements do not comply with Local Rule 56.1(d), which requires that “[ejach statementby the. . . opponent pursuant to Rule 56.1 . . . (b), including each statement controverting anystatement of material fact,. . . be followed by citation to evidence which would be admissible,set forth by Fed. R. Civ. P. 56(c).” Local R. 56.1(d). Plaintiffs’ 56.1(b) statements cite noadmissible evidence to controvert the material fact that the accusatory was based upon the swornstatements of three eyewitnesses. Plaintiffs’ failure to comply with the local rule by citingadmissible evidence in support of their controverted statement deems the defendants’ statementsadmitted. R. 56.1(c); Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir. 2003).
Plaintiffs maintain that Dunn simultaneously served as President of PHS during thistime. PHS and Dunn dispute this and admit only that Dunn served as President in June 2006when Moha pled guilty. (Pls.’ 56.1(a) ¶ 2; PHS’s 56.1(b) ¶ 2; Dunn’s 56.1(b) ¶ 2.)
3
Case 7:12-cv-05075-PED Document 91 Filed 09/25/13 Page 3 of 35
Dunn was aware that Moha had engaged legal representation. (Am. Compi. ¶ 51-52.) Moha
pled not guilty and posted bail. (Pre-Arraignment Bail and Appearance Ticket (attached to
Sauter Decl., at Ex. C (Dkt. 50))): Am. Compl. ¶ 48, 53.)
B. Communications Between Dunn and Moha
Plaintiffs allege that, at some point after Moha’s arrest and before disposition of the
charge, Dunn communicated with Moha outside the presence of counsel. (Am. Compi. ¶ 54-
81; see PHS’s 56.1(a) ¶ 8; Pls.’ 56.1(b) to PHS ¶ 8.) One such contact occurred in June 2006
when Dunn visited plaintiffs’ home dressed in her sheriffs uniform. (Am. Compl. ¶ 60;
PUS’s 56.1(a) ¶J 8-9; Pls.’ 56.1(b) to PHS ¶ 8-9.) Dunn talked to Moha about her criminal case
and encouraged her to accept a plea bargain. (Am. Compl. ¶ 71; see PHS’s 56.1(a) ¶ 8-10; Pls.’
56.1(b) to PHS ¶ 8-10.) Among other things, Dunn ‘promised that if Plaintiffs forfeited Colby
upon [Moha]’s guilty plea, [Moha] would still be able to interact with Colby on a regular basis at
Tilly Foster Farm, a farm utilized by the [PHS] as a boarding facility for Colby.” (Am. Compi. ¶
72.) Dunn also “promised a quid pro quo whereby if Plaintiff forfeited Colby as part of the plea
deal then. . . Dunn would ensure that Plaintiff could continue to visit and care for the forfeited
horse after sentence was imposed[ and] could get Colby back in the future.” (i ¶ 76; see also
id. ¶ 79.) Dunn instructed Moha not to tell her attorney about the visit. (Ij ¶ 80-81.)
C. The Guilty Plea Sentence, and Ownership Interests in the Horse
Moha maintains that she relied upon Dunn’s representations when she decided to plead
guilty. On June 28, 2006, Moha pled guilty in the Town of Southeast Justice Court to a reduced
charge of one count of attempted animal cruelty.5 (July 19, 2006 Certificate of Disposition
“A person is guilty of an attempt to commit a crime when, with intent to commit acrime, he engages in conduct which tends to effect the commission of such crime.” N.Y. Penal
4
Case 7:12-cv-05075-PED Document 91 Filed 09/25/13 Page 4 of 35
(attached to Marzolla Aff., at Ex. H); Am. Compl. ¶j 82-86; Pis.’ 56.1(a) ¶ 3; PHS’s 56.1(b) ¶ 3;
Dunn’s 56.1(b) ¶ 3; PHS’s 56.1(a) ¶ 13; Pis,’ 56.1(b) to PHS ¶ 13.) She was sentenced on June
28, 2006 to a conditional discharge that included a condition that Colby be forfeited to PHS.6
(July 19, 2006 Certificate of Disposition; PHS’s 56.1(a) ¶ 14; Pls.’ 56.1(b) to PHS ¶ 14; Am.
Compi. ¶J 87-88.) Moha alleges that she complied with the terms of the sentence. (Am. Compi.
¶ 89.) In particular, Bruno (not Moha), signed an agreement dated June 13, 2006 that
surrendered Colby to PHS. (Agreement Surrendering Animals to Humane Society (attached to
Aronwald Affirm., at Ex. B); PHS’s 56.1(a) ¶ 12; PIs.’ 56.1(b) to PHS ¶ 12.)
By letter dated April 24, 2007, Dunn directed Moha to refrain from further interaction
with Colby at the farm where he boarded. (Apr. 24, 2007 Letter (attached to Marzolla Aff., at
Ex. M); Am. Compi. ¶ 95; Pls.’ 56.1(a) ¶ 12; PHS’s 56.1(b) ¶ 12; Dunn’s 56.1(b) ¶ 12.) In late
May and early June 2007, Dunn and her sister, defendant Kathleen Dunn Hall (“Hall”) adopted
Colby from PHS. (May 20, 2007 Adoption Appl. (attached to Marzolla Aff., at Ex. N); May 22,
2007 Adoption Appi. (attached to Marzolla Aff., at Ex. N); June 1, 2007 Receipt (attached to
Marzolla Aff., at Ex. N); June 1, 2007 Adoption Contract (attached to Marzolla Aff., at Ex. N);
Law 110.00.
The Certificate of Disposition included the following conditions: (1) “Horse forfeitureto Putnam County Humane Society,” (2) “Order of Protection” for the eyewitnesses whosupplied the supporting depositions, and (3) “Anger Management classes to be completed within90 days.” (July 19, 2006 Certificate of Disposition.) Although the sentencing took place onJune 28, 2006, the Certificate of Disposition is dated July 19, 2006.
Plaintiffs maintain that, although they “agreed to surrender Colby and forfeit ownershipto the Putnam Humane Society” on June 13, 2006, (Am. Compl. ¶ 85), the signed Agreementremained in counsel’s possession until after the June 28, 2006 sentence, (Aff. of Anna NicoleMoha f/k/a Anna Nicole Bruno in Opp’n ¶24 (Dkt. 68); Aff. of Nancy Bruno in Opp’n ¶ 14(Dkt. 69)).
5
Case 7:12-cv-05075-PED Document 91 Filed 09/25/13 Page 5 of 35
Am. Compi. ¶J 98-100: Pis.’ 56.1(a) ¶ 15-21; PHS’s 56.1(b) ¶ 15-21; Dunn’s 56.1(b) ¶J 15-
21.) On January 7, 2008, Dunn transferred her ownership interest in Colby to defendant Janet
Cundari (“Cundari”). (Jan. 7, 2008 Doe. (attached to Marzolla Aff., at Ex. Q); Am. Compi. ¶f
101-02; PIs.’ 56.1(a) ¶ 23; Dunn’s 56.1(b) ¶1 23.) On April 10. 2009. Cundari transferred her
ownership interest back to Dunn. (cc Apr. 8, 2013 Letter (attached to Marzolla Aff., at Ex.
AA).)
D. Post-Conviction Procceding
By motion dated December 11, 2008, Moha moved in the Town of Southeast Justice
Court to (1) dismiss the information on the ground that it was facially insufficient,8and (2)
vacate her conviction on the grounds that: (a) it was obtained by duress, fraud, or
misrepresentation;9(b) new evidence was discovered after the entry ofjudgment;° and (c) it was
8 “After arraignment upon an information.. . the local criminal court may, upon motionof the defendant, dismiss such instrument or any count thereof upon the ground that. . . [ut isdefective, within the meaning of[N.Y. Crim. Proc. Law §] 170.35.” N.Y. Crim. Proc. Law §1 70.30(1)(a). “An information. . . is defective within the meaning of [N.Y. Crim. Proc. Law §170.35(1)(a)] when. . . [i]t is not sufficient on its face pursuant to the requirements of[N.Y.Crim. Proc. Law § 100.40. . . .“ Id. § 170.35(1)(a).
An information, or a count thereof, is sufficient on its face when. . . [ijt substantiallyconforms to the requirements prescribed in [N.Y. Crim. Proc. Law § 100.15; and.
[tjhe allegations of the factual part of the information, together with those of anysupporting depositions which may accompany it, provide reasonable cause to believethat the defendant committed the offense charged in the accusatory part of theinformation; and.. . [njon-hearsay allegations of the factual part of the informationand1or of any supporting depositions establish, if true, every element of the offensecharged and the defendant’s commission thereof.
Id. § 100.40(1).
9
At any time after the entry of a judgment, the court in which it was entered may,upon motion of the defendant, vacate such judgment upon the ground that... [tjhe
6
Case 7:12-cv-05075-PED Document 91 Filed 09/25/13 Page 6 of 35
obtained in violation of her state and/or federal constitutional rights.” (Notice of Mot. (attached
to Sauter Dccl.. at Ex. E); PHSs 56.1(a) ¶ 15; Pls.’ 56.1(b) to PHS ¶ 15.) The motion was based
on substantially the same factual allegations that are alleged in this action. (S PHSs 56.1(a) ¶
16; Pis.’ 56.1(b) to PHS ¶ 16.) By decision and order dated May 19, 2009, the motion was
denied. (May 19, 2009 Decision & Order (attached to Sauter Decl., at Ex. F): PBS’s 56.1(a) ¶
17; Pis.’ 56.1(b) to PHS ¶ 17.) Moha appealed and by order dated February 9,2011, the Second
Department reversed the lower court’s ruling and remitted the matter. (Apr. 1, 2011 Decision
(attached to Sauter Dccl., at Ex. G); PBS’s 56.1(a) ¶J 18-20; Pls.’ 56.1(b) to PHS ¶J 18-20.)
Thereafter, Moha filed a new motion in the Town of Southeast Justice Court that sought: (1) to
judgment was procured by duress, misrepresentation or fraud on the part of the courtor a prosecutor or a person acting for or in behalf of a court or a prosecutor.
N.Y. Crim. Proc. Law § 440.10(1)(b).
I0
At any time after the entry of a judgment, the court in which it was entered may,upon motion of the defendant, vacate such judgment upon the ground that.. . [n]ewevidence has been discovered since the entry of judgment based upon a verdict ofguilty after trial, which could not have been produced by the defendant at the trialeven with due diligence on his part and which is of such character as to create aprobability that had such evidence been received at the trial the verdict would havebeen more favorable to the defendant; provided that a motion based upon suchground must be made with due diligence after the discovery of such alleged newevidence. .
N.Y. Crirn. Proc. Law § 440.10(g).
At any time after the entry of a judgment, the court in which it was entered may,upon motion of the defendant, vacate such judgment upon the ground that.. . [tjhejudgment was obtained in violation of a right of the defendant under the constitutionof this state or of the United States.
N.Y. Crim. Proc. Law § 440.10 (amended by 2010 N.Y. Sess. Laws. ch. 332, § 1(2010)).
7
Case 7:12-cv-05075-PED Document 91 Filed 09/25/13 Page 7 of 35
vacate the judgment of her conviction, inter a/ia, on the ground that it was procured on the basis
of misrepresentations made by Dunn; (2) to dismiss the information on the ground that it was not
supported by non-hearsay allegations; and (3) to set aside the guilty plea on the ground that
Moha was deprived of her right to a speedy trial, (Notice of Mot. to Dismiss (attached to Sauter
Dccl., at Ex. J).) By order dated December 27, 2011, the motion was granted and the conviction
was vacated pursuant to N.Y. Crim. Proc. Law § 440.10(1)(b). (Dec. 27, 2011 Town of
Southeast Justice Ct. Decision & Order (attached to Marzolla Aff., at Ex. Y). 12) A certificate of
disposition dismissing the case was filed on January 9, 2012. (Jan. 9, 2012 Certificate of
Disposition (attached to Marzolla Aff., at Ex. Z).)
E. Procedural History
Plaintiffs filed their complaint in this Court on June 28, 2012. (Compl. (Dkt. 1).) With
leave of the Court, plaintiffs filed an amended complaint on December 7, 2012. The amended
pleading contains the following causes of action:
(1) a violation of Moha’ s right to counsel under federal and state constitutionsagainst all defendants, (Am. Compl. ¶ 125-29);
(2) a violation of plaintiff(s)’s right to be free from abuse of process underfederal and state constitutions and common law against all defendants, (id.¶f 130-38);
(3) malicious prosecution of plaintiff(s) in violation of federal and stateconstitutions and common law against all defendants, (id. ¶J 139-46);
(4) violations ofplaintiff(s)’s rights to due process, a fair trial, and confrontationof witnesses under federal and state constitutions against all defendants, (id.¶ 147-52);
(5) fraud against PHS, Hall, Dunn, and Cundari, (jd. ¶ 153-57); and(6) a Monell claim against Putnam County and Smith, (ij, ¶ 158-64). ‘
During a May 2, 2013 pre-motion conference, the parties were granted leave to file the
2 The order incorrectly cites N.Y. Penal Law § 440.10(1)(b).
3 Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).
8
Case 7:12-cv-05075-PED Document 91 Filed 09/25/13 Page 8 of 35
instant motions. Dunn and Hall seek summary judgment with respect to the third cause of
action. P1-IS seeks summary judgment with respect to all of the claims asserted against it (claims
one through five). Smith and the County seek partial judgment on the pleadings and dismissal of
all of the § 1983 claims against them, with the exception of the malicious prosecution claim. By
letters dated May 21. 2013, Cundari. Dunn, and Hall join each of the motions made by their co
defendants. Plaintiffs seek to further amend their complaint to add a seventh cause of action for
replevin against PHS. Dunn, Hall, and Cundari. Plaintiffs also seek summary judgment on that
claim. The parties have filed memoranda in opposition to the motions as well as replies. The
Court heard oral argument on July’ 29, 2013.
III. DISCUSSION
A. Lea1 Standards
1. Motion to Amend Standard
Leave to amend a pleading should be freely given when justice so requires. Fed. R. Civ.
P. 15(a)(2).
[Tihe grant or denial of an opportunity to amend is within the discretion of theDistrict Court, but outright refusal to grant the leave without any justifying reason
is not an exercise of discretion; it is merely abuse of that discretion andinconsistent with the spirit of the Federal Rules.
Foman v. Davis, 371 U.S. 178, 182 (1962). Accordingly, leave “should not be denied unless
there is evidence of undue delay, bad faith, undue prejudice to the non-movant, or futility.”
Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001) (citing Foman, 371 U.S. at
182).
“One appropriate basis for evaluating the productivity of a proposed amendment lies in
the relative futility of accepting the proposed amended complaint. If the proposed amendment
9
Case 7:12-cv-05075-PED Document 91 Filed 09/25/13 Page 9 of 35
would not survive a motion to dismiss, then it is appropriately denied as futile.” Talley v.
Brentwood Union Free Sch. Dist., 728 F. Supp. 2d 226, 23 1-32 (E.D.N.Y, 2010) (internal
quotation marks and citations omitted).
2. Motion to Dismiss Standard
“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the
claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of
what the. . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiff’s obligation to provide the grounds of his
entitle[ment] to relief requires more than labels and conclusions, and a forrnulaic
recitation of the elements of a cause of action will not do.
(internal quotation marks and citations omitted). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that
is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550
U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” (quoting Twombly, 550 U.5. at 556). “Where a complaint pleads facts that are
‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and
plausibility of entitlement to relief.” i (quoting Twombly, 550 U.S. at 557).
“While Federal Rule of Civil Procedure 8 ‘marks a notable and generous departure from
the hyper-technical, code-pleading regime of a prior era.. . . it does not unlock the doors of
10
Case 7:12-cv-05075-PED Document 91 Filed 09/25/13 Page 10 of 35
discovery for a plaintiff armed with nothing more than conclusions.” Porrazzo v. Bumble Bee
Foods, LLC, 822 F. Supp. 2d 406, 410 (S.D.N.Y. 2011) (quoting lqbaL 556 U.S. at 678-79).
In considering whether a complaint states a claim upon which relief can begranted, the court may “begin by identifying pleadings that, because they are nomore than conclusions, are not entitled to the assumption of truth,” and thendetermine whether the remaining well-pleaded factual allegations, accepted as true,‘plausibly give rise to an entitlement to relief” [Iqbal, 556 U.S. at 679.] Decidingwhether a complaint states a plausible claim for relief is ‘a context-specific task thatrequires the reviewing court to draw on its judicial experience and common sense.”jçj., “[W]here the well-pleaded facts do not permit the court to infer more than themere possibility of misconduct, the complaint has alleged—but it has not‘show[n]’—ihat the pleader is entitled to relief.” Id. (second alteration in original)(quoting Fed. R. Civ. P. 8(a)(2)).
Id.
3. Judgment on the Pleadings Standard
Rule 12(c) of the Federal Rules of Civil Procedure provides that “[a]fier the pleadings are
closed—but early enough not to delay trial—a party may move for judgment on the pleadings.”
Fed. R. Civ. p. 12(c). “The same standard applicable to [Rule] 12(b)(6) motions to dismiss
applies to [Rule] 12(c) motions for judgment on the pleadings.” Bank of N.Y. v. First
Millennium, Inc., 607 F.3d 905, 922 (2d Cir. 2010) (citing Sheppard v. Beerman, 18 F.3d 147,
150 (2d Cir. 1994)). However, on a 12(c) motion, “the court considers ‘the complaint, the
answer, any written documents attached to them, and any matter of which the court can take
judicial notice for the factual background of the case.” L-7 Designs, Inc. v. Old Navy, LLQ
647 F.3d 419, 422 (2d Cir. 2011) (quoting Roberts v. Babkiewicz, 582 F.3d 418, 419 (2d Cir.
2009) (per curiam)). A pleading is [also] deemed to include any written instrument attached to
it as an exhibit, materials incorporated in it by reference, and documents that, although not
incorporated by reference, are integral” to it. jj (quoting Sira v. Morton, 380 F.3d 57, 67 (2d
Cir. 2004)).
11
Case 7:12-cv-05075-PED Document 91 Filed 09/25/13 Page 11 of 35
4. Summary Judgment Standard
Summary judgment may be granted where the pleadings, discovery materials, and any
affidavits show “that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. p. 56(a); see also Celotex Corp. v. Catrett.
477 U.S. 317, 322 (1986). A genuine issue of material fact exists 1f the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). “When ruling on a summary judgment motion, the district court
must construe the facts in the light most favorable to the non-moving party and must resolve all
ambiguities and draw all reasonable inferences against the movant.” Dallas Aerospace. Inc. v.
CIS Air Corp.. 352 F.3d 775, 780 (2d Cir. 2003). “At summary judgment, the Court is not
charged with weighing the evidence and determining its truth, but with determining whether
there is a genuine issue for trial.” West v. Whitehead, No. 04 Civ. 9283(KMK), 2008 WL
4201130, at *10 (S.D.N.Y. Sept. 11, 2008); see Knight v. U.S. Fire Ins. Co., 804 F.2d 9. 11 (2d
Cir. 1986) (the court’s responsibility on summary judgment “is not to resolve disputed issues of
fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and
drawing reasonable inferences against the moving party”). While “disputes over facts that might
affect the outcome of the suit under the governing law will properly preclude the entry of
summary judgment[,] [fjactual disputes that are irrelevant or unnecessary will not be counted.”
Anderson, 477 U.S. at 248.
The burden of showing that no genuine issue of material fact exists rests on the movant.
See Celotex, 477 U.S. at 322-23; Atl. Mut. Ins. Co. v. CSX Lines, LLC, 432 F.3d 428, 433 (2d
Cir. 2005).
When the burden of proof at trial would fall on the nonmoving party, it ordinarily is
12
Case 7:12-cv-05075-PED Document 91 Filed 09/25/13 Page 12 of 35
sufficient for the movant to point to a lack of evidence to go to the trier of fact on anessential element of the nonmovant’s claim. In that event, the nonmoving party mustcome forward with admissible evidence sufficient to raise a genuine issue ofmaterialfact for trial in order to avoid summary judgment.
Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008) (internal citations omitted); see
also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Accordingly,
the nonmoving party must offer “concrete evidence from which a reasonable juror could return a
verdict in his favor,” Anderson, 477 U.S. at 256, and “may not rely on conclusory allegations or
unsubstantiated speculation,” Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998).
5. 42U.S.C.1983
Section 1983 provides, in relevant part, that:
Every person who, under color of any statute, ordinance, regulation, custom, orusage, of any State . . . subjects, causes to be subjected, any citizen of the UnitedStates . . . to the deprivation of any rights, privileges, or immunities secured by theConstitution and laws, shall be liable to the party injured in an action at law. .
42 U.S.C. § 1983. Accordingly, “[tb state a claim under § 1983, a plaintiff must allege that (1)
the challenged conduct was attributable at least in part to a person who was acting under color of
state law and (2) the conduct deprived the plaintiff of a right guaranteed under the Constitution
of the United States.” Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999).
6. Limitations Periodfor 1983 Actions
In New York State, the statute of limitations for most claims arising under § 1983 and
alleging personal injury is three years. See, e.g., Paige v. Police Dep’t of City of Schenectady,
264 F.3d 197, 199 n.2 (2d Cir. 2001) (per curiam); see also Dellutri v. Vill. of Elmsford, 895 F.
Supp. 2d 555, 563 n.5 (S.D.N,Y. 2012) (citing Romag Fasteners, Inc. v. Bauer, No. 11 Civ.
3181(PAC), 2011 WL 5513380, at *8 (S.D.N.Y. Nov. 9,2011)); N.Y. C.P.L.R. § 214(5).
13
Case 7:12-cv-05075-PED Document 91 Filed 09/25/13 Page 13 of 35
“While state law supplies the statute of limitations for claims under § 1983, federal law
determines when a federal claim accrues.” Van Wormer v. City of Rensselaer, 293 F. App’x
783, 783 (2d Cir. 2008) (quoting Eagleston v. Guido, 41 F.3d 865, 871 (2d Cir. 1994)); see also
Wallace v. Kato, 549 LI.S. 384. 388 (2007) (emphasis omitted) (the accrual date of a § 1983
cause of action is a question of federal law that is not resolved by reference to state law”). The
general rule under federal law is that “the time of accrual [isi that point in time when the plaintiff
knows or has reason to know of the injury which is the basis of his action.” Covington v. City of
New York, 171 F.3d 117, 121 (2d Cir. 1999) (internal quotation marks and citations omitted);
see also Wallace, 549 U.S. at 388 (internal quotation marks and citations omitted) (a § 1983
claim accrues “when the plaintiff has a complete and present cause of action, that is, when the
plaintiff can file suit and obtain relief.”).
The Supreme Court carved out an exception to this general rule in Heck v. Humphrey.
512 U.S. 477 (1994). In Heck, the Court considered “whether a state prisoner may challenge the
constitutionality of his conviction in a suit for damages under 42 U.S.C. § 1983.” 512 U.S. at
478. In that case, the plaintiffs complaint alleged malicious prosecution, sought monetary
relief, and was filed while the plaintiff was incarcerated and serving a sentence of imprisonment
for the conviction that was the subject of the civil complaint. The Court noted that the case lay
“at the intersection of the two most fertile sources of federal-court prisoner litigation,” § 1983
and the federal habeas corpus statute. at 480. It also noted that a required element of a
malicious prosecution claim is the termination of the criminal proceeding in the plaintiffs favor.
i at 484. This element is sufficient to prevent a plaintiff from collaterally attacking his
conviction through a civil suit for monetary relief because it necessarily requires the plaintiff to
14
Case 7:12-cv-05075-PED Document 91 Filed 09/25/13 Page 14 of 35
show that the conviction no longer stands. See id, at 484-85 (citation omitted). The Court
reflected on its long expressed. . . concern[ j for finality and consistency” ofjudgments and
stated that “the hoary principle that civil tort actions are not appropriate vehicles for challenging
the validity of outstanding criminal judgments applies to § 1983 damages actions that necessarily
require the plaintiff to prove the unlawfulness of his conviction or confinement.” . at 484-86.
Specifically, the Court held that:
[un order to recover damages for allegedly unconstitutional conviction orimprisonment, or for other harm caused by actions whose unlawfulness would rendera conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction orsentence has been reversed on direct appeal, expunged by executive order, declaredinvalid by a state tribunal authorized to make such determination, or called intoquestion by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254.A claim for damages bearing that relationship to a conviction or sentence that has notbeen so invalidated is not cognizable under § 1983. Thus, when a state prisonerseeks damages in a § 1983 suit, the district court must consider whether a judgmentin favor of the plaintiff would necessarily imply the invalidity of his conviction orsentence: if it would, the complaint must be dismissed unless the plaintiff candemonstrate that the conviction or sentence has already been invalidated. But if thedistrict court determines that the plaintiff’s action, even if successful, will notdemonstrate the invalidity of any outstanding criminal judgment against the plaintiff,the action should be allowed to proceed, in the absence of some other bar to the suit.
Rh at 486-87 (emphasis in original).
Some years later, the Court addressed the applicability of the Heck rule to a claim for
false arrest. In Wallace v. Kato, 549 U.S. 384 (2007), the plaintiff tiled a § 1983 suit in 2003,
shortly after he prevailed on direct appeal and the 1996 criminal charges against him were
dismissed. When the case reached the Supreme Court, the Court first noted the general rule that
a cause of action accrues “when the plaintiff has a complete and present cause of action, that is,
when the plaintiff can file suit and obtain relief.” Wallace, 549 U.S. at 388 (internal quotation
marks and citations omitted). The Court then found that, in the context of a false arrest action, a
15
Case 7:12-cv-05075-PED Document 91 Filed 09/25/13 Page 15 of 35
plaintiff can file suit when his false arrest officially terminates, which is when his confinement
has been legitimized pursuant to some legal process. See id. at 389. Accordingly, the Court
rejected the plaintiffs argument that his false arrest claim accrued only after his conviction ‘as
reversed and the charges against him were dismissed. The statute of limitations began to run on
the date that the plaintiff appeared before a magistrate and was arraigned on the charges
stemming from his false arrest. See id. at 390-91. The Court specifically rejected the plaintiffs
“theory. . . that the initial Fourth Amendment violation set the wheels in motion for his
subsequent conviction and detention[. i.e. ] [t]he unlawful arrest lead to the coerced confession,
which was introduced at his trial, producing his conviction and incarceration].” Instead, it held
that a “cause of action accrues even though the full extent of the injury is not then known or
predictable.” Ri. at 391 (internal quotation marks and citation omitted). “Were it otherwise, the
statute would begin to run only after a plaintiff became satisfied that he had been harmed
enough, placing the supposed statute of repose in the sole hands of the party seeking relief” Id.
B. Application
1. Timeliness ofPlaintiffs’ 1983 claims”
Defendants argue that all of plaintiffs’ § 1983 claims—apart from the malicious
prosecution claim—are time-barred)5 In response, plaintiffs argue that, as in Heck, the statute of
limitations on their claims did not begin to run until Moha’s conviction was vacated. Plaintiffs
W Plaintiffs have voluntarily discontinued their first cause of action, which alleged a right
to counsel claim. (PIs.’ Mem. of Law in Opp’n to Defs.’ Mot. for Summ. J. (“PIs.’ Mem. in
Opp’n”), at 2 (Dkt. 70).) Accordingly, that claim is dismissed without further discussion.
IS Defendants tacitly concede that Heck applies to the malicious prosecution claim, and
have not argued that that claim is time-barred. But see Poventud v. City of New York, 715 F.3d
57 (2d Cir. 2013)(rehearing en banc pending) (Heck rule does not apply to § 1983 plaintiff who
is not in custody and consequently has no habeas corpus remedy).
16
Case 7:12-cv-05075-PED Document 91 Filed 09/25/13 Page 16 of 35
also argue that the Heck rule bars all § 1983 claims until the criminal conviction has been
invalidated where an actual, existing conviction exists. Finally, plaintiffs argue that their § 1983
claims are “inextricably intertwined” with Moha’s judgment of conviction and sentence. and that
this “intertwining” prevented the statutes from running until her conviction was set aside.
(See Pls.’ Mern. in Opp’n. at 1 112.)I6 Defendants dispute plaintiffs’ legal analysis and argue
that the general federal rule for accrual applies. (See generally Mem. of Law in Supp. of Summ.
J. Mot. of the Def. Putnam County Humane Society alk!a Putnam Humane Society (‘PHS’s
Mem.”) (Dkt. 52); Mem. of Law in Supp. of Defs. Donald Blame Smith & the County of
Putnam’s Mot. for Partial J. on the Pleadings (“Smith & the County’s Mem.”) (Dkt. 55); May
21, 2013 Richard G. Monaco Letter (Dkt. 61) (joining each argument on behalf of Cundari);
May 21. 2013 William 1. Aronwald Letter (Dkt. 62) (joining each argument on behalf of Dunn
and Hall).) I agree with defendants.
i. Abuse of Process Claim
Plaintiffs’ second cause of action alleges abuse of process in violation of the Fifth, Sixth,
and Fourteenth Amendments against all defendants. (ç Am. Compl. ¶J 130-38.) Defendants
argue that this claim accrued no later than December 11, 2008, when Moha moved to vacate her
conviction based on substantially the same facts alleged here, and that the three-year limitations
Plaintiffs also suggest that they are entitled to equitable tolling because Wallacechanged the law regarding accrual of their claims in a way they could not have foreseen. ççPis.’ Mem. in Opp’n, at 14.) However, equitable tolling requires a showing of diligence, andplaintiffs have not explained why they waited more than five years to file suit after Wallace wasdecided in February 2007. f, Wharton v. Cnty. of Nassau, No. 07 Civ. 2137(RRM)(ETB),2010 WL 3749077, at *4 (E.D.N.Y. Sept. 20, 2010) (equitable tolling warranted despite “short”three-month delay in filing claim after Wallace was decided).
17
Case 7:12-cv-05075-PED Document 91 Filed 09/25/13 Page 17 of 35
period therefore expired by December 11, 2011, long before plaintiffs filed suit in June 2012.17
(See PH5s Mem.. at 6-8; Smith & the County’s Mem.. at 4-6; May 21. 2013 Richard G.
Monaco Letter; May 21, 2013 William 1. Aronwald Letter.)
“The torts of malicious prosecution and abuse of process are closely allied. While
malicious prosecution concerns the improper issuance of process. [tihe gist of abuse of process is
the improper use of process after it is regularly issued.” Cook v. Sheldon. 41 F.3d 73, 80 (2d
Cir. 1994) (internal quotation marks and citation omitted).
In New York, a malicious abuse of process claim lies against a defendant who (1)employs regularly issued legal process to compel performance or forbearance ofsome act (2) with intent to do harm without excuse or justification, and (3) in orderto obtain a collateral objective that is outside the legitimate ends of the process.
i4 The claim accrues at the time that the “plaintiff is aware, or ought to be aware, of those facts
providing a basis for his claim.” Duamutefv. Moffis, 956 F. Supp. 1112, 1118 (S.D.N.Y. 1997).
Here, plaintiffs allege that they were duped by Dunn’s false promises—i.e., among other
things, that if Moha pled guilty, Dunn would allow Moha to visit Colby and plaintiffs could hope
to regain possession of Colby in the future. Plaintiffs learned, or should have learned, that
Dunn’s promises were false when Dunn wrote to Moha on or about April 24, 2007 and
instructed her to have no further contact with Colby. Plaintiffs subsequently learned that Dunn
herself had adopted the animal. Moha then moved on December 11, 2008 to vacate her
conviction on the basis that Dunn’s actions were fraudulent, misleading, and undertaken so as to
Some authority suggests that an abuse of process claim under New York law may besubject to a one-year statute of limitations period as an intentional tort. See, e.g., Korova MilkBar of White Plains, Inc. v. PRE Props., LLC, No. 11 Civ. 3327(ER), 2013 WL 417406, at *15(S.D.N.Y. Feb. 4, 2013); Dellutri, 895 F. Supp. 2d at 563 n.5 (citing Romag, 2011 WL 5513380,at *8); see also N.Y. C.P.L.R. § 2 15(3). However, because defendants have not argued that aone-year period bars the claim, this Court will assume the three-year period applies.
18
Case 7:12-cv-05075-PED Document 91 Filed 09/25/13 Page 18 of 35
further a personal interest unrelated to her legal responsibilities as Deputy Sheriff. (S Kelly
Affirm. ¶ 17-45.) Thus, plaintiffs were plainly aware of the facts which underlie their abuse of
process claim by the time that motion was filed.
Plaintiffs maintain that an abuse of process claim is similar to a malicious prosecution
claim in that it “cannot accrue until the underlying action which is the basis for the claim is
conclusively terminated in Plaintiff’s favor.” (Pis.’ Mem. in Opp’n, at 15 (quoting Kennedy
Bifulco v. Town of Huntington, No. 08 Civ. 1612(ERK)(ETB), 2010 WL 6052343, at *10
(E.D.N.Y. Oct. 29, 2010) (Report & Recommendation), adopted in part on other grounds by
2011 WL 883697 (E.D.N.Y. Mar. 10, 2011)); see id. at 15-16.) Accordingly, they argue that
pursuant to Heck, the claim was not cognizable until Moha’s conviction was vacated. I disagree.
First, the Court in Heck focused on the fact that an essential element of a malicious
prosecution claim is a favorable termination of the criminal proceedings. This element is not
required in an abuse of process claim. Indeed, the Heck court specifically suggested that a
successful abuse of process claim would not undermine the validity of the underlying criminal
conviction. $ Heck, 512 U.S. at 486 n.5.’8 Other courts within this district have similarly
The Court noted in a footnote,
Justice’s SOUTER’s discussion of abuse of process,. . . does not undermineth[e] principle [that civil tort actions are not appropriate vehicles for challenging thevalidity of outstanding criminal convictions]. It is true that favorable termination ofprior proceedings is not an element of that cause of action—but neither is animpugning of those proceedings one of its consequences. The gravamen of that tortis not the wrongfulness of the prosecution, but some extortionate perversion oflawfully initiated process to illegitimate ends. Cognizable injury for abuse ofprocess is limited to the harm caused by the misuse of process, and does not includeharm (such as conviction and confinement) resulting from that process’s beingcarried through to its lawful conclusion.
19
Case 7:12-cv-05075-PED Document 91 Filed 09/25/13 Page 19 of 35
concluded that accrual of an abuse of process claim is not linked to favorable termination of the
criminal proceedings, See, e.g., Korova Milk Bar, 2013 WL 417406, at *15 (quoting Lucas v.
Nov ogratz. 01 Civ. 5445(GEL). 2002 WL 31844913. at *6 (S.D.N.Y. Dec. 18. 2002)) (‘“since
accrual of a cause of action for abuse of process need not await the termination of an action in
claimant’s favor, the statute of limitations expires one year from institution of the process, that
is, from the ... complaint”); Dellutri, 895 F. Supp. 2d at 563-64 (collecting cases and holding
that the plaintiff’s abuse of process claim accrued at the time he was clearly aware of’ his
injuries, and not on the date that his conviction was reversed); see also, e.g., Duamutef. 956 F.
Supp. at 1118-19 (abuse of process claim accrued on the date the plaintiff became aware of the
facts underlying the cause of action).
The cases that plaintiffs rely on do not support a different conclusion. ( Pis.’ Mem. in
Opp’n, at 15-16.) First, although the Report and Recommendation in Kennedy-Bifulco states
that “a claim for malicious prosecution or abuse ofprocess cannot accrue until the underlying
action which is the basis for the claim is conclusively terminated in plaintiff’s favor,” 2010 WL
6052343, at *10 (emphasis added), the court did not actually apply that rationale when it
analyzed the issue. Instead, the court found that the abuse of process claim was untimely based
upon the date that the criminal proceeding against the plaintiff was initiated—not when it
terminated favorably. . at * 15. Plaintiffs’ reliance on Romag and Grandome is also
misplaced. Those cases applied New York law in holding that an abuse of process claim accrues
upon the termination of the proceeding. Romg, 2011 WL 5513380, at *9 (citing 10 Ellicott
Square Court Corp. v. Violet Realty, Inc., 916 N.Y.S.2d 705 (App. Div. 4th Dep’t 2011));
Heck, 512 U.S. at 486 n.5 (internal citations omitted and emphasis added).
20
Case 7:12-cv-05075-PED Document 91 Filed 09/25/13 Page 20 of 35
Grandome Enters.. Inc. v. Stillrnan, No. 92 Civ. 7525(LAP), 1993 WL 119800 (S.D.N.Y. Apr.
13. 1993) (citing Cunningham v. State. 53 N.Y.2d 851 (1981). Keller v. Butler. 246 N.Y. 249
(1927), and Pico Prods., Inc. v. Eagle Comtronics. Inc., 465 N.Y.S.2d 628 (App. Div. 4th Dep’t
1983)). It is clear that ‘“[wjhile state law supplies the statute of limitations for claims under §
1983, federal law determines when a federal claim accrues.” Van Wormer, 293 F. App’x at 783
(quoting Eagleston. 41 F.3d at 871): see also Wallace, 549 U.S. at 388 (emphasis omitted) C’the
accrual date of a § 1983 cause of action is question of federal law that is not resolved by
reference to state law”). Plaintiffs’ reliance on cases applying state law is therefore unavailing.
Second, the Court in Heck was concerned with ‘the intersection” of the prisoner
litigation statutes found in42 U.S.C. § 1983 and 28 U.S.C. § 2254. 512 U.S. at 480. The Court
held that “when a state prisoner seeks damages in a § 1983 suit, the district court must consider
whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his
conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can
demonstrate that the conviction or sentence has already been invalidated.” at 487 (emphasis
added). Here, Moha was not imprisoned prior to the vacatur of her conviction and therefore did
not have access to federal habeas relief. Her remedies—and the consequences to finality and
consistency ofjudgments that flow from them—were different from those that the Court was
concerned with in Heck. See id. at 484-86. Accordingly, her contention that she could not have
asserted this claim, under Heck, until her conviction was vacated, is rejected. Plaintiffs’ failure
to raise the § 1983 abuse of process claim within three years after learning of its factual
basis—i.e., by at least December 11, 2011—requires the dismissal of the claim now.
ii. Fair Trial, Due Process, and Confrontation of Witnesses Claims
Plaintiffs’ fourth cause of action alleges a violation of Moha’s rights to a fair trial, due
21
Case 7:12-cv-05075-PED Document 91 Filed 09/25/13 Page 21 of 35
process, and to confront witnesses pursuant to the Fifth, Sixth, and Fourteenth Amendments
against all defendants. ( Am. Compi. ¶J 147-52.) Specifically, the claim states that
defendants “intentionally and actively concealed, withheld, suppressed and manipulated” certain
“evidence and information” that was “material” and “favorable” to plaintiffs “as exculpatory
and/or impeaching.” (, ¶ 148.) PHS moves for summary judgment on two grounds. First, it
argues that the allegations fail to state a claim upon which relief may be granted. Specifically,
PHS argues that plaintiffs insufficiently pled the claim because the pleading contains conclusory
allegations and fails to identify what “evidence” was allegedly withheld or concealed.
PHS’s Mem., at 8-9.) Dunn, Hall, and Cundari join this argument. ($ May 21, 2013 Richard
G. Monaco Letter; May 21, 2013 William I. Aronwald Letter.) Plaintiffs dispute this and argue
that the claim is sufficiently pled because its allegations state that “[t]he defendants, by
misrepresentation and fraud secured a conviction and sentence that included a term of forfeiture
of Colby. . . [a]nd, after the conviction was vacated and the sentence lifted, the Defendants did
not return the horse.” (Pls.’ Mem. in Opp’n, at 31.)
Second, PHS moves for summary judgment on the ground that the claim was untimely
filed. Specifically, it argues that any claim alleging that Moha was improperly coerced into
pleading guilty (and thereby causing her to forego her right to trial, to confront witnesses, and to
due process) accrued on the date of the coercion—that is, on the date that Dunn spoke to Moha at
her home and persuaded her to plead guilty. PHS’s Mem., at 8-9.) Smith and the County
move for judgment on the pleadings on statute of limitations grounds as well. (Smith & the
County’s Mem., at 6-7.) Dunn, Hall, and Cundari join these arguments. (S May 21, 2013
Richard G. Monaco Letter; May 21, 2013 William I. Aronwald Letter.) Plaintiffs dispute this
and argue that, pursuant to Heck, the claim was not cognizable until Moha’s conviction was
22
Case 7:12-cv-05075-PED Document 91 Filed 09/25/13 Page 22 of 35
vacated because the claim is “inextricably intertwined with the judgment of conviction,” and
therefore “necessarily impl[ies] the invalidity” of the conviction. (S. Pis.’ Mem. in Opp’n, at
16.)
I agree with defendants that the claim must be dismissed as time-barred.
a. Fair Trial
A successful fair trial claim under § 1983 must allege that “(1) an investigating official
(2) fabricate[dj evidence (3) that [was] likely to influence a jury’s decision, (4) forward[ed] that
information to prosecutors, and (5) the plaintiff suffer[edj a deprivation of liberty as a result.”
Jovanovic v. City of New York, 486 F. App’x 149, 152 (2d Cir. 2012) (citing Jocks v. Tavernier,
316 F.3d 128, 138 (2d Cir. 2003) and Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d
Cir. 1997)). As an initial matter, the amended complaint here contains no factual allegations
which, accepted as true, would enable this Court to draw a reasonable inference that Dunn
fabricated evidence that could have been used against Moha at trial. Igbal, 556 U.S. at 678;
Twombly, 550 U.S. at 556. Moreover, plaintiffs have failed to identify any such evidence in
their opposition to summary judgment. Without more, their conclusory and vague allegation that
Dunn fabricated evidence is insufficient to defeat the motion. See Scotto, 143 F.3d at 114.
Accordingly, to the extent the fourth cause of action alleges a § 1983 fair trial claim, that claim
must be dismissed.
In any event, even if the claim were sufficiently pled and plaintiffs produced affirmative
evidence to establish a genuine issue of triable fact, the claim is untimely. It is clear that the
factual basis of this claim must have accrued at some point prior to Moha’s conviction in
2006—i.e., at a time when Dunn could have forwarded fabricated evidence to prosecutors—or at
least by the time that plaintiffs were aware of such impermissible conduct. See, e.g., Brandon v.
23
Case 7:12-cv-05075-PED Document 91 Filed 09/25/13 Page 23 of 35
City of New York, 705 F. Supp. 2d 261, 278 n.4 (S.D.N.Y. 2010) (quoting Veal v. Geraci, 23
F.3d 722, 724 (2d Cir. 1994)) (distinguishing a malicious prosecution claim from a fair trial
claim and noting that, ‘“[fjor statute of limitations purposes, a § 1983 claim, including a Sixth
Amendment fair trial claim, accrues when the alleged conduct has caused the claimant harm and
the claimant knows or has reason to know of the allegedly impermissible conduct and the
resulting harm”); Mitchell v. Home, 377 F. Supp. 2d 361, 374 (S.D.N.Y. 2005) (citing Yi. 23
F.3d at 724-25) (“fair trial claim premised on fabrication of evidence” by investigating officer
accrued at the time “plaintiff knew or should have known that the evidence was fabricated and
that she had suffered some injury as a result”). As discussed above, plaintiffs were aware of
these facts no later than the time that Moha filed her motion to vacate in 2008. Accordingly,
plaintiffs’ failure to raise this claim within three years after learning of its factual basis—i.e., by
December 11, 2011—requires dismissal of the claim now.
b. Due Process
“To state a due process violation—procedural or substantive—Plaintiff[s] must first show a
deprivation of a constitutionally protected property or liberty interest.” S.C. v. Monroe
Woodbury Cent. Sch. Dist., No. 11 Civ. 1672(CS), 2012 WL 2940020, at *5 (S.D.N.Y. July 18,
2012) (quotation and citations omitted). Although not specifically stated in the paragraphs that
make up the pleading’s fourth cause of action, the Court reads plaintiffs’ memorandum in
opposition to defendants’ motions to indicate that plaintiffs are referring here to their property
interests in the horse. (ç Pis.’ Mem. in Opp’n, at 31.) Accordingly, the Court construes their
due process claim as a takings claim. See, e.g., Cangemi v. United States, No. 12 Civ.
3989(JS)(WDW), 2013 WL 1332842, at *7 (E.D.N.Y. Mar. 29, 2013) (construing separately
raised “due process” claim alleging defendants “deprived plaintiffs of their property without due
24
Case 7:12-cv-05075-PED Document 91 Filed 09/25/13 Page 24 of 35
process of law,” in violation of the Fourteenth Amendment, as a takings claim). Such a claim
requires a plaintiff to show: “(1) a property interest; (2) that has been taken under the color of
state law; (3) without due process or just compensation.” Anderson v. N.Y.S. Office of Court
Admin. of the Unified Court Svs., 614 F. Supp. 2d 404, 426 (S.D.N.Y. 2009)).
The Court agrees with defendants insofar as it finds that the due process claim was
untimely filed. Again, plaintiffs’ argument that any due process claim is “inextricably
intertwined” with the vacatur of Moha’s conviction is rejected. As discussed above, plaintiffs
were aware of the facts underlying their claim that their property was allegedly wrongfully taken
no later than the date that Moha filed her motion to vacate. See, e.g., Dellutri, 895 F. Supp. 2d at
563-64 (collecting eases and holding that plaintiffs due process claim accrued when he “was
clearly aware of’ his injuries, and not on date conviction was reversed). Plaintiffs’ reliance on
Rosato v. New York County District Attorney’s Office, No. 09 Civ. 3742(DLC), 2009 WL
4790849 (S.D.N.Y. Dec. 14, 2009). for their contention that Heck precludes “malicious
prosecution and other due process violations,” (PIs. ‘s Mem. in Opp’n, at 16 (emphasis in
original)), is misguided. It is clear that the “due process violations” that the court in Rosato
referred to involved claims of malicious prosecution, fabrication of evidence, and failure to
investigate—not a property taking. 2009 WL 4790849, at *2. Accordingly, plaintiffs’ failure to
raise this claim within three years—i.e., by December 11, 2011 at the latest—now requires its
dismissal.
c. Confrontation of Witnesses
The Confrontation Clause of the Sixth Amendment provides that a criminal defendant
“enjoy[s] the right. . . to be confronted with the witnesses against hint” U.S. Const. amend. VI.
Moha waived this right when, with the assistance of counsel, she pleaded guilty. To the extent
25
Case 7:12-cv-05075-PED Document 91 Filed 09/25/13 Page 25 of 35
plaintiffs contend that this right was involuntarily waived because Moha relied upon Dunn’s
statements she later learned to be false, that information was discovered by plaintiffs more than
three years prior to the initiation of this lawsuit. Accordingly, as discussed above, the claim
accrued at least by December 11, 2008 when Moha filed her motion to vacate on the basis of this
information. The statute of limitations therefore expired no later than December 11, 2011. The
claim must now be dismissed.
2. Malicious Prosecution Claim
PHS, Dunn, and Hall seek summary judgment on the third cause of action alleging
malicious prosecution. They maintain that no genuine dispute of material fact exists with respect
to: (1) the probable cause that existed when the proceeding initiated; (2) the unfavorable
termination of the proceeding; and (3) the absence of any liberty deprivation. (S PHS’s Mem.,
at 12-20; Mem. of Law in Supp. of Def. Barbara Dunn’s Mot. for Summ. J. Dismissing the 3rd
Cause of Action for Malicious Prosecution (“Dunn’s Mem.”), at 2-4 (Dkt. 46).) Cundari joins
this argument. ($ May 21, 2013 Richard G. Monaco Letter.) Plaintiffs dispute this and
contend that: (1) probable cause was absent; (2) the proceeding terminated favorably; and (3) a
seizure of property supplants the deprivation of liberty requirement. (Pis.’ Mem. in Opp’n, at
21-27.) 1 agree with defendants that summary judgment is warranted.
Malicious prosecution claims brought under § 1983 and New York state law are
substantially the same. Jocks, 316 F.3d at 134. “A malicious prosecution claim under New
York law requires the plaintiff to prove ‘(1) the initiation or continuation of a criminal
proceeding against plaintiff; (2) termination of the proceeding in plaintiff’s favor; (3) lack of
probable cause for commencing the proceeding; and (4) actual malice as a motivation for
defendant’s actions.” Id. at 136 (quoting Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir. 1997)),
26
Case 7:12-cv-05075-PED Document 91 Filed 09/25/13 Page 26 of 35
In addition, a plaintiff must show some sufficient deprivation of liberty to prevail on a § 1983
malicious prosecution claim. See id. (citing Muhy, 118 F.3d at 947) (holding “the
requirements of attending criminal proceedings and obeying the conditions of bail suffice” as
sufficient deprivations of liberty): see also Garrett v. Port Auth. of N.Y. & N.J., No. 04 Civ.
7368(DC). 2006 WL 2266298, at *7 (S.D.N.Y. Aug. 8. 2006) (collecting cases).
“[T]he existence of probable cause is a complete defense to a claim of malicious
prosecution in New York,” Savino v. City of New York, 331 F.3d 63, 72 (2d Cir. 2003) (citing
Colon v. City of New York, 60 N.Y.2d 78, 82 (1983)), “unless th[e] officer, following the arrest
but prior to initiating prosecution, learned of facts that would negate his earlier determination of
probable cause,” Moscoso v. City of New York. 92 F. Supp. 2d 310, 313 (S.D.N.Y. 2000).
“Courts evaluating probable cause for an arrest must consider those facts available to the officer
at the time of the arrest and immediately before it.” Lowth v. Town of Cheektowaga, 82 F.3d
563, 469 (2d Cir. 1996). “Probable cause exists when there are ‘facts and circumstances
sufficient to warrant a prudent man that the [suspect] had committed or was committing an
offense.” jçj. (quoting Gerstein v. Pugh, 420 U.S. 103, 111(1975)). In New York State, a
prosecution is commenced upon the filing of an accusatory instrument. S.çç N.Y. Crim. Proc.
Law § 100.05.19
]9
A criminal action is commenced by the filing of an accusatory instrument
with a criminal court, and if more than one such instrument is filed in the course of
the same criminal action, such action commences when the first of such instruments
is filed. The only way in which a criminal action can be commenced in a superior
court is by the filing therewith by a grand jury of an indictment against a defendant
who has never been held by a local criminal court for the action of such grand jury
with respect to any charge contained in such indictment. Otherwise, a criminal
action can be commenced only in a local criminal court, by the filing therewith of
27
Case 7:12-cv-05075-PED Document 91 Filed 09/25/13 Page 27 of 35
In this case, on December 6, 2005, three eyewitnesses provided written statements to
Dunn that described in detail the incident between Moha and Colby. Specifically, the witnesses
stated that they saw, among other things:
“[Moha] kept shanking [the horse] hard, he was trying to get away and sheproceeded to shank him harder and harder, pulling down hard on him when he triedto rear up. Then she put him in a stall, I heard a lot of banging, commotion, yelling.He escaped from her at one point, terrorized he was trying to climb the outside barnon the stall in the aisle. She got him back in the stall and kept zanking [sic] on theshank.... There was blood all over the water buckets and on the wall of the stall.There was no visably [sic] noticeable injury to Colby’s face when he was in theaisleway. (Except for his swollen eye.) When he went into the stall he cut his face.When the vet arrived Colby came out ofthe stall full ofblood all over his entire face.
(Witness Statements, at 1-2 (unpaginated).) The witness described a “shank” as “the metal part
of the leather lead rope — the metal part was on the halter over his nose which when pulled, or
applied pressure is very painful.” (jj at 3.)
A second witness stated that when Moha and Colby arrived at the barn, Moha
[A]nnounced that she had a terrible ride with [Colby] and that he [sic] was going topunish him for his errant behavior.... [Moha] then returned to further discipline herhorse by pulling hard on the lead shank which was wrapped around his nose, over& over relentlessly. The horse began to rear and become agitated as a result of herabusive and harsh treatment.
(Id. at 6.) At that time, the witness observed no facial injury on the horse other than a swollen
left eye. (Id. at 7.) Moha then brought the horse into a stall, the witness heard much commotion
coming from the stall, and then saw Colby when he came out of the stall. (Içj, at 8-9.) When
“Colby emerge[] from his stall to be treated by the vet I saw a huge cut on Colby’s face which
a local criminal court accusatory instrument, namely: 1. An information; or 2. Asimplified information; or 3. A prosecutor’s information; or 4. A misdemeanorcomplaint; or 5. A felony complaint.
N.Y. Crim. Proc. Law § 100.05.
28
Case 7:12-cv-05075-PED Document 91 Filed 09/25/13 Page 28 of 35
started over his right eye and went down to his nose. During the treatment Colby was bleeding
profusly [sic] in the aisle. The vet proceeded to place 21 metal staples on his face to close the
wound.” (Id. at 9.)
A third witness stated that after Moha returned to the barn with Colby, she:
[S]tarted to yell at him and using great force and shanking him so hard she wasn’tletting up on him.... She kept shanking him and trying to force him in the stall. Hereared up and he was trying to get away from her. She finally got him in the stall andI heard banging and screaming at him.... He was trying to get away from her. Inotice all blood every where in the stall as I walk by.
(Id. at 12-13.) Before the horse was placed into the stall, the witness observed “no injuries to his
face.” (Id. at 14.) Afterwards, the “vet came out to stitch the horse up and blood was all over
the floor.” (Id.)
These statements clearly provided probable cause to support a charge of animal abuse
against Moha.2° The prosecution of Moha then commenced with the filing of the accusatory
information that Dunn prepared. The information was filed on the same day that the witnesses
signed their supporting depositions, and expressly indicated that it was based in part on “signed
written witness statements.” Plaintiffs have not alleged that Dunn learned anything else on
December 6, 2005 that would negate the probable cause established by the witnesses’
statements. Plaintiffs point to no affirmative evidence which tends to undermine this showing of
probable cause. Instead, plaintiffs make conclusory assertions in their memorandum that Dunn
“misrepresented or falsified the evidence.” Such a “conclusory allegation[] or unsubstantiated
speculation” is insufficient to defeat a motion for summary judgment. Scotto, 143 F.3d at 114.
Moreover, plaintiffs merely deny the “truthfulness or accuracy” of the witnesses’ statements in
20 Plaintiffs’ counsel confirmed at oral argument that plaintiffs do not contend that thewitnesses did not make these statements.
29
Case 7:12-cv-05075-PED Document 91 Filed 09/25/13 Page 29 of 35
their Rule 56.1(b) statement, (Pis.’ 56.1(b) to PHS ¶ 5-6.) They do not point to any
affirmative evidence suggesting that Dunn knew the statements were false when she prepared the
accusatory information and initiated the criminal proceeding, or indeed at any point thereafter.
Plaintiffs also argue that any presumed existence of probable cause may be rebutted
where there is proof offraud, perjury or the misrepresentation or falsification of evidence.”
(Pis.’ Mem. in Opp’n, at 25.) However, plaintiffs have offered no concrete evidence” to
support their argument that Dunn falsified, fabricated, or misrepresented any of the evidence that
established probable cause. Anderson, 477 U.S. at 256. Without more, no genuine issue of
material fact has been shown that would allow a reasonable jury to decide in plaintiffs’ favor on
this claim.
Plaintiffs also contend that a lack of probable cause may be shown because Dunn and
other municipal defendants “deviated so egregiously from acceptable police conduct as to
demonstrate an intentional disregard for proper police procedure.” (Pis.’ Mem. in Opp’n, at 24.)
Again however, plaintiffs do not identify what procedures Dunn allegedly deviated from when
she prepared the accusatory instrument or when she arrested i oha on the basis of the probable
cause established by the eyewitnesses’ statements. Dunn’s later conduct in preventing Moha
from visiting Colby and in adopting the animal herself does not, without more, “negate[ ]the
probable cause that existed at the time of the arrest.” Rennols v. City of New York. No.00 Civ.
6692(NGG), 2003 WL 22427752, at *4 (E.D.N.Y. Oct. 23, 2003). In order for probable cause
to dissipate, the groundless nature of the charges must be made apparent by the discovery of
some intervening fact.” (quoting Lowth, 82 F.3d at 571). Plaintiffs do not identify any
evidence that creates a genuine issue of fact as to whether Dunn knew or learned that the
eyewitnesses’ supporting depositions were false. Without more, the statements were sufficient
30
Case 7:12-cv-05075-PED Document 91 Filed 09/25/13 Page 30 of 35
to enable a reasonable police officer to conclude that Moha did in fact commit a crime. Içj
(citing Lowth, 82 F.3d at 572); see also. e.g., Widget v. Town of Poughkeepsie, No. 12 Civ.
3459(ER). 2013 WL 1104273, at *6 (S.D.N.Y. Mar. 18. 2013) (citing Jocks, 316 F.3d at 136)
( [t]he crucial question then, is whether the arresting officers deliberately disregarded facts
known to them,” which would then negate probable cause); Jean v. City of New York, No. 08
Civ. 157(RER), 2009 WL 3459469, at *7 (E.D.N.Y. Oct. 22, 2009) (“[a]bsent any evidence that
[the officer] created or forwarded false evidence, or otherwise engaged in fraudulent police
conduct, [plaintiff] has not shown a genuine dispute over whether [the officer] initiated or
continued the criminal proceeding”). Even if Dunn later exploited the arrest and prosecution to
gain control of the horse, the existence of this ulterior objective, without more, does not
undermine probable cause in these circumstances. Accordingly, summary judgment on the
malicious prosecution cause of action is granted.2
At oral argument and by subsequent letter dated July 30, 2013, plaintiffs maintained—for
the first time—that probable cause was not established because Dunn filed the accusatory
instrument without filing the supporting depositions of the witnesses along with it. Instead,
plaintiffs maintain that the witnesses’ statements were filed sometime after Moha entered her
guilty plea. Plaintiffs suggest that “Defendant Dunn lied in hoisting the accusation” because the
accusatory she prepared states that it was based upon her own personal observations. (July 30,
2013 Letter, at 1.) Because she did not have personal knowledge of what occurred, plaintiffs
argue that the accusatory lacks probable cause. (See id. at 1-2.) In addition, plaintiffs maintain
211 do not reach defendants’ alternative arguments. In addition, because I determine that
plaintiffs have failed to identify evidence that may reasonably infer a genuine factual issue
concerning the existence of probable cause, the claim is dismissed against all defendants.
31
Case 7:12-cv-05075-PED Document 91 Filed 09/25/13 Page 31 of 35
that the witnesses’ statements do not provide probable cause because “they do not contain any
express statement that anyone saw Plaintiff Moha hit the horse with a ‘shank’ as alleged.” at
2.)
Plaintiffs’ arguments—even assuming that they are properly considered at this stage—are
without merit. See, e.g., Hodge v. Unum Grp., No. 08 Civ. 2276(KAM), 2010 WL 1286257, at
*4 n.3 (E.D.N.Y. Mar. 30, 2010) (quoting Nobel Ins. Co. v. City of New York, No. 00 Civ.
1328(KMK), 2006 WL 2848121, at *16 (S.D.N.Y. Sept. 29, 2006)) (“‘Normally, the Court will
not consider arguments raised for the first time in a reply brief let alone at or after oral
argument.”). First, the accusatory instrument does not state that it is based only upon Dunn’s
personal knowledge. Rather, it states that the allegations “are based upon personal knowledge of
the complainant (and upon information and belief the sources of the complainant’s information
being. signed written witness statements and police investigation[ ) j.” (Information.) The
reasonable inference is that Dunn prepared the accusatory instrument on the basis of the
information given to her by the eyewitnesses that day. Again, plaintiffs have not responded with
any affirmative, non-conclusory evidence to suggest that the witnesses did not prepare these
statements or share their information with Dunn, or that Dunn somehow convinced the three
individuals to lie.
Second, even assuming, arguendo, that the accusatory instrument was procedurally
defective, that defect alone does not show that Dunn lacked probable cause to initiate the
criminal proceedings against Moha, since Dunn herself took the witnesses’ statements. See, e.g.,
Hernandez v. City of Rochester, 260 F. Supp. 2d 599. 612 (W.D.N.Y. 2003) (“[E]ven if... the
accusatory instrument did not establish probable cause, that would not necessarily mean that the
arresting officer lacked probable cause, since not everything known to the officer was set forth in
-3
Case 7:12-cv-05075-PED Document 91 Filed 09/25/13 Page 32 of 35
the accusatory instrument.”). Finally, plaintiffs are simply incorrect when they assert that the
witnesses do not describe the abuse as involving a “shank.” A review of the statements confirms
that each witness referred to a shank.
The Court notes that the defendants’ motions have been brought at an unusual stage of
this proceeding. i.e., before the close of discovery. Nevertheless, plaintiffs have not objected on
the basis that further discovery is necessary. (Indeed, plaintiffs themselves seek, in their own
motion, not only to amend to add a new claim, but also for summary judgment on that claim
without first engaging in discovery.) The Federal Rules of Civil Procedure provide that,
•‘[ujnless a different time is set by local rule or the court orders otherwise, a party may file a
motion for summary judgment at any time until 30 days after the close of all discovery.” Fed. R.
Civ. P. 56(b) (emphasis added). If, at the time the motion is filed a nonmovant shows by
affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its
opposition, the court may. . . allow time. . . to take discovery.” id. R. 56(d)(2). Accordingly,
for the court to deny or postpone a motion for summary judgment on the basis that the factual
record requires further development, the party seeking that order “‘must file an affidavit
describing: (1) what facts are sought and how they are to be obtained; (2) how these facts are
reasonably expected to raise a genuine issue of material fact; (3) what efforts the affiant has
made to obtain them; and (4) why the affiant’s efforts were unsuccessful. ‘ Cusamano v. Sobek,
604 F. Supp. 2d 416, 505 (N.D.N.Y. 2009) (quoting Gualandi v. Adams, 385 F.3d 236, 244 (2d
Cir. 2004)). Plaintiffs have not opposed summary judgment in this manner. Accordingly, the
claim is dismissed.
3. MonelI claim
The sixth cause of action alleges a Monell claim against Smith and the County for having
33
Case 7:12-cv-05075-PED Document 91 Filed 09/25/13 Page 33 of 35
“developed, implemented, enforced, encouraged and sanctioned de facto policies, practices,
and/or customs exhibiting deliberate indifference to the Plaintiffs constitutional rights which
caused the violation of such rights.” (Am, Compi. j 159; see id. ¶ 158-64.) However. because
the Court has dismissed all of plaintiff[s’] § 1983 claims, there can be no liability under Monell.”
Sanchez v. Port Auth. of N.Y. & N.J., No. 08 Civ. 1028(RRM)(CLP), 2012 WL 1068078, at *11
(E.D.N.Y. Mar. 29, 2012) (citing City of L.A. v. HeHer, 475 U.S. 796, 799 (1986) (per curiam).
Segal v. City of New York. 459 F.3d 207, 219 (2d Cir. 2006), and Graham v. City of New York,
No. 08 Civ. 3518 (KAM)(RML), 2011 WL 3625074. at *1314 (E.D.N.Y. Aug. 17, 2011)).
Accordingly, this claim is dismissed.
4. Pendent State Law Claims
Because plaintiffs’ § 1983 claims have all been dismissed, the Court declines to exercise
jurisdiction over any remaining pendent state law causes of action. 28 U.S.C. § 1367(c)(3);
United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966); see also, e.g., Carnegie-Melon Univ.
v. Cohill, 484 U.S. 343, 350 n.7 (1988) C’in the usual case in which all federal law claims are
eliminated before trial, the balance of factors to be considered under the pendent jurisdiction
doctrine—judicial economy, convenience, fairness, and comity—will point toward declining to
exercise jurisdiction over the remaining state-law claims”).
5. Plaintiffs’ Motions
Plaintiffs seek leave to amend their pleading in order to add a new claim for replevin
against Dunn, Hall, PHS, and Cundari. Plaintiffs also move for summary judgment on the
proposed repleviri claim. PHS, Dunn, Hall, and Cundari oppose the motions. (See generally
Mem. of Law of the Def. Putnam County Humane Society in Opp’n to Pls.’ Mot. to Amend the
34
Case 7:12-cv-05075-PED Document 91 Filed 09/25/13 Page 34 of 35
Compi. to Add a Cause of Action for Replevin & for Summ. J. (Dkt. 65); Defs.’ Dunn & Hall’s
Mem. of Law in Opp’n to Pls.’ Mot. to Amend the First Am. Compi. to Add a Cause of Action
for Replevin & for Summ. J. (Dkt. 64); June 19. 2013 Richard G. Monaco Letter coining the
oppositions filed by PHS, Dunn, and Hall on behalf of Cundari) (Dkt. 77).) Here, plaintiffs’ §
1983 claims have all been dismissed and this Court has declined to exercise pendent jurisdiction
over state law claims, § 1367(c)(3); United Mine Workers, 383 U.S. at 726; see also, e.g.,
Cohill, 484 U.S. at 350 n.7. Plaintiffs’ motions are accordingly denied.
IV. CONCLUSION
For the reasons set forth above, defendants’ motions for summary judgment and
judgment on the pleadings are GRANTED. Plaintiffs’ motions to amend and for summary
judgment are DENIED. The action is DISMISSED and judgment shall be entered against
plaintiffs.
The Clerk is directed to terminate the pending motions (Dkts. 44. 49, 53. 57).
Date: September! 2013White Plains, New York
SO ORDERED
United States Magistrate Judge
35
Case 7:12-cv-05075-PED Document 91 Filed 09/25/13 Page 35 of 35