MEDIA

September 9, 2011

Discovery, Arbitration, Bullying, Child Custody

Published in: New York Law Journal | volume 246

This column reports on several significant, representative decisions handed down recently in the U.S. District Court for the Eastern District of New York. Judge Kiyo A. Matsumoto ordered the government to turn over to defendant a 1992 homicide file prepared by the New York City Police Department. Judge Jack B. Weinstein dismissed claims against New York City and other defendants related to alleged peer classroom bullying at a public school. Magistrate Judge Joan M. Azrack rejected a father’s petition seeking return of his child to Romania under the Hague Convention. And Judge Arthur D. Spatt denied a motion by defendant, a collection agency, to compel arbitration of plaintiffs’ claims under the Fair Debt Collection Practices Act.

Discovery of Police Report

In United States v. Messina, 11 CR 31 (EDNY Aug. 8, 2011), Judge Matsumoto granted defendant’s request to compel discovery of an NYPD investigative file, now in the custody of the U.S. Attorney’s Office, concerning a 1992 murder listed among the charges against defendant in a pending federal racketeering indictment.

In January 2011 defendant was indicted on eight counts charging (inter alia) racketeering conspiracies and various predicate acts, including conspiracy to rob and murder one Joseph Pistone in 1992. Defendant moved, pursuant to Rule 16, F.R. Crim. P., for pretrial production of the NYPD’s "homicide file" on the Pistone murder. Opposing the motion, the government sent defense counsel a Brady letter disclosing only certain information from the homicide file.

Rule 16(a)(1)(E) requires the government, upon defendant’s request, to disclose an item in its possession "material to preparing the defense." But discovery is limited by Rule 16(a)(2), which states: "Except as Rule 16(a)(1) provides otherwise," defendants are not entitled to "the discovery or inspection of reports, memoranda, or other internal government documents made by an attorney for the government or other government agent in connection with investigating or prosecuting the case." Under case law, such memoranda prepared by a federal prosecutor in connection with a case are protected from discovery regardless of "materiality."

In finding that the homicide file is "material," Judge Matsumoto emphasized a number of factors: The file relates directly to an unsolved murder that occurred 19 years ago. The government’s Brady letter shows that the file contains exculpatory information from witnesses interviewed by the NYPD shortly after the murder. The Brady letter identifies nothing linking defendant to that crime. In fact, the witnesses indicated perpetrators other than defendant and additional facts material to preparing the defense. Slip op. 5-7.

Judge Matsumoto also found the homicide file to be outside the limitations of Rule 16(a)(2) relating to "internal government documents" and therefore "discoverable."

Though several reported decisions from the Southern District of New York have found that Rule 16(a)(2) barred discovery of reports prepared by state and local law enforcement agents, the Second Circuit has never held that Rule 16(a)(2) exempts such documents from discovery in all cases. Moreover, two pertinent Southern District decisions denying discovery highlighted rationales not applicable here. One of those decisions turned on the fact that the file there related to the same criminal conduct by the same defendants in the federal case. The other turned on the existence of a joint federal/local investigation. Slip op. 7-10.

Significantly, there is no evidence that the NYPD homicide file here relates to any activity by defendant or that he was even a suspect in the 1992 local investigation. As Judge Matsumoto observed:

That the Pistone murder has now been charged in the instant case against [defendant] does not create a joint investigation merely because the NYPD may have turned over its investigative file to the federal government. Further, the government has not articulated any legitimate law enforcement interest in protecting the Homicide File. Nor has the NYPD, which has primary responsibility for the investigative file at issue, opposed production of the Homicide File to defendant.

Slip op. 10-11.

Bullying

In K.W., a minor child, by her mother and natural guardian, Vicki Brown v. the City of New York, et al., 11 CV 00338 (EDNY, Aug. 9, 2011), a case involving alleged classroom bullying, Judge Weinstein granted a motion to dismiss brought by the City of New York as well as by the City’s Department of Education, its Office of School Safety, and various officials in their individual and official capacities.

Plaintiff claimed to have been the victim of bullying at a New York City public kindergarten. The complaint alleged, and the court accepted for purposes of the motion, that one or more students had cut off plaintiff’s braids on two occasions and, on other occasions, had pulled all the beads out of plaintiff’s hair, "shoved or elbowed" her, and repeatedly taken her lunch. Plaintiff was "so traumatized that she was in fear for her safety every day she went to school," though there was no allegation that she missed school. Plaintiff’s request for transfer to another school was initially denied, but ultimately granted.

Judge Weinstein dismissed the claims alleging due process violations under 42 U.S.C. §1983 because the alleged bullying fell short of the "shock the conscience" standard applied by the U.S. Court of Appeals for the Second Circuit in Smith v. Guilford Bd. of Educ., 226 Fed. Appx. 58 (2d Cir. 2007). Dismissal against certain municipal defendants was warranted for the additional reason that there was no relevant municipal policy or practice alleged, as required by Monell v. Dept. of Soc. Servs., 436 U.S. 658 (1968). The Equal Protection claims lacked "sufficient description in the Complaint . . . of protected characteristics or any suggestion of what motivated defendants," and the complaint’s allegations of conspiracy were too conclusory to support the claims under 42 U.S.C. §§1985 and 1986. Slip op. 9-10.

Judge Weinstein dismissed all the federal claims with prejudice. State law claims alleging denial of a right to education and negligent hiring, supervision and retention practices were dismissed without prejudice, for want of federal jurisdiction. The court declined to exercise supplemental jurisdiction under 28 U.S.C. §1367(c) because, among other reasons, no discovery had taken place on state issues and "the subject of bullying in New York public schools is a developing state legal issue" more appropriately addressed in state court. Slip op. 11-12.

International Child Abduction

In Radu v. Toadler, 11 CV 1676 (EDNY, Aug. 3, 2011), Magistrate Judge Azrack denied a father’s petition brought pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, implemented in the United States by the International Child Abduction Remedies Act, seeking return of his child to Romania. The child presently lives in Forest Hills, Queens, with his mother, stepfather and stepsibling.

Iulian Cristian Radu and Petruta Toadler were married in Romania in 1993 and lived together there until they divorced in 2009. Their son, L.R., was born in Romania in 2005. Toadler, the child’s mother, supported the family and sought the divorce. In October 2009, in a final and irrevocable court decision, the Bucharest Court issued a Divorce Decree granting Toadler "sole custody of the child and granting Radu visitation rights, for one year, for two weekends each month and during holidays."

In September 2010, Toadler moved to the United States with her child without notifying Radu. Radu has communicated with his child via phone calls and video conference from Romania. In the United States, Toadler remarried and had a second child. L.R. has completed kindergarten, learned English and made friends.

The Hague Convention is intended to protect children against wrongful removal from a country and retention in another country and to establish procedures to ensure their prompt return. A petitioner must meet a prima facie burden of proving that the child was wrongfully removed or retained by showing that: (1) the child habitually resided in one state and has been retained in a different state; (2) the retention breached petitioner’s custody rights under the law of the state of habitual residence; and (3) petitioner was exercising his or her custody rights at the time of the removal.

Here, petitioner failed to establish a prima facie case. There was no dispute that L.R. was a habitual resident of Romania at the time of his removal, but Radu failed to establish a breach of his custody rights. The irrevocable and final Divorce Decree issued by the Romanian court gave sole custody to Toadler. Although Radu had visitation rights, with sole custody Toadler had the right to request a passport for the child and travel abroad without the other parent’s consent. Judge Azrack rejected Radu’s arguments that he had rights to contest the removal under various Romanian statutes. The Divorce Decree was the final determination, and it gave petitioner no custody rights.

Motion to Compel Arbitration

In Butto v. Collecto Inc., 10 CV 2906 (EDNY, Aug. 15, 2011), Judge Spatt denied defendant’s motion to compel arbitration under cell phone service contracts plaintiffs had entered into with Verizon Wireless and AT&T Mobility. Plaintiffs failed to pay their cell phone bills. Verizon and AT&T cancelled their service and referred their accounts to Collecto, with whom each had collection agreements. All plaintiffs received a "Notice of Collection Placement" in the mail demanding payment of principal and collection costs.

Plaintiffs commenced a class action against Collecto asserting that the demand for collection costs was improper under the Fair Debt Collection Practices Act and New York’s consumer protection statute. Collecto moved to compel plaintiffs to arbitrate their claims under Verizon’s and AT&T’s service contracts with plaintiffs. Collecto was not a party to either service contract.

As Judge Spatt noted, there is a strong federal policy favoring arbitration, but arbitration is a matter of agreement. Collecto had the burden of showing that it had the right to enforce the arbitration provision in the service agreements. While Collecto sought to enforce the arbitration agreements based on separate arguments of agency and estoppel, Judge Spatt found that analysis of the estoppel argument subsumed the issues of agency and treated the two together.

Collecto satisfied the first prong of the test for estoppel because plaintiffs’ claims were intertwined with the service agreements signed by AT&T and Verizon. Collecto, however, did not satisfy the second part of the test, which required a relationship among the parties justifying a conclusion that the party which agreed to arbitrate with one entity should be estopped from denying an obligation to arbitrate with a separate entity. To support such estoppel, the Second Circuit has required some sort of corporate relationship, agency, or concerted action, between the signatory to the contract – here, Verizon and AT&T – and the party seeking arbitration – here, Collecto.

Judge Spatt determined that no agency relationship existed between Collecto and Verizon or AT&T. Indeed, both the Collecto/Verizon and Collecto/AT&T collection agreements expressly disclaimed that Collecto was an agent. Noting a denial of arbitration under "strikingly similar" facts in Lucy v. Bay Area Credit Svc LLC, No. 10-cv-1024, –F.Supp.2d–, 2011 WL 2006358 (D. Conn. May 23, 2011), Judge Spatt concluded: "the disavowal of both agency and control in the collection agreements nullifies Collecto’s assertion that these agreements could form the basis for finding that an agency relationship existed." Slip op. 10.

As neither a corporate relationship nor concerted action was present to stand in for the missing agency, Collecto’s motion to compel arbitration was denied.

Harvey M. Stone and Richard H. Dolan are partners at Schlam Stone & Dolan. Bennette D. Kramer, a partner of the firm, assisted in the preparation of the article.

[This article is reprinted with permission from the September 9, 2011, issue of the New York Law Journal. Copyright © 2011 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.]