19-205-cv
Marentette v. City of Canandaigua

                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                               SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON
OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1
AND THIS COURT’S LOCAL RULE         32.1.1.   WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS
COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY      ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.


        At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 4th day of February, two thousand twenty.

PRESENT:
                  ROBERT A. KATZMANN,
                       Chief Judge,
                  PETER W. HALL,
                  RICHARD J. SULLIVAN,
                       Circuit Judges.

MARK MARENTETTE,

                            Plaintiff-Appellant,

                  v.                                                       No. 19-205-cv

CITY OF CANANDAIGUA, NEW YORK; TED
ANDRZEJEWSKI, INDIVIDUALLY AND AS CITY
MANAGER OF CITY OF CANANDAIGUA; JOHN
GOODWIN, INDIVIDUALLY AND AS ASSISTANT
CITY MANAGER, BUDGET DIRECTOR, CITY
MANAGER, AND DESIGNATED APPOINTING
AUTHORITY OF CITY OF CANANDAIGUA; NANCY
ABDALLAH, INDIVIDUALLY AND AS
CLERK/TREASURER OF CITY OF CANANDAIGUA,

                            Defendants-Appellees.1


         1
             The Clerk of Court is directed to amend the caption to conform to the above.
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 For Plaintiff-Appellant:                            KEVIN W. CONNELL (Michael Thomas
                                                     Harren, on the brief), Trevett Cristo Salzer &
                                                     Andolina P.C., Rochester, NY.

 For Defendants-Appellees:                           JENNA WHITE KLUCSIK, Sugarman Law Firm,
                                                     LLP, Syracuse, NY.


       Appeal from a judgment entered on January 9, 2019 in the United States District Court

for the Western District of New York (Wolford, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the appeal is DISMISSED.

       Plaintiff-appellant Mark Marentette appeals the district court’s order granting summary

judgment to defendants. We assume the parties’ familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal.

       From March 2011 through April 2017, Marentette served as Fire Chief for the City of

Canandaigua, New York. In early 2017, several disciplinary charges were lodged against him.

Following a contested evidentiary hearing (at which Marentette was represented by counsel), a

Hearing Officer found that “substantial evidence” supported several of the charges and

recommended that Marentette be demoted. Defendant-appellant John Goodwin, then the

Assistant City Manager, adopted the Hearing Officer’s findings of fact but decided to terminate

rather than demote Marentette.

       Marentette sought reinstatement and back pay by way of an Article 78 petition filed in

New York State Supreme Court. See N.Y. C.P.L.R. § 7801 et seq. In his petition, Marentette

contended that New York statutory law and the Due Process Clause of the Fourteenth

Amendment both require that for-cause termination decisions be based upon a preponderance of

the evidence, rather than substantial evidence. The Supreme Court transferred the matter to the

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Appellate Division, Fourth Department pursuant to C.P.L.R. § 7804(g). In his brief to that court,

Marentette renewed his argument that termination based on substantial evidence violates due

process. The Fourth Department rejected Marentette’s challenge, concluding that “due process

requires application of the preponderance of the evidence standard only when the penalty of

dismissal is accompanied by some added stigma,” which the court found was not present in this

case. Marentette v. City of Canandaigua, 73 N.Y.S.3d 823, 825 (4th Dep’t 2018).2

       While the Article 78 proceeding was pending, Marentette commenced a separate action

in state court for damages against the City of Canandaigua and several city officials pursuant to

42 U.S.C. § 1983, alleging that the defendants had denied him due process by firing him based

on substantial evidence. Defendants removed the case to federal court. After the Fourth

Department issued its decision, the parties cross-moved for summary judgment on the due

process claims. The district court granted summary judgment to defendants, concluding that

Marentette was collaterally estopped from re-litigating his due process claims and that, in the

alternative, he was afforded adequate process.3

       Marentette died on January 9, 2019, the same day judgment was entered in the district

court. His counsel then filed a timely notice of appeal on Marentette’s behalf, as permitted by

Federal Rule of Appellate Procedure 43(a)(2). However, Marentette’s counsel made no motion to

substitute a personal representative. See Fed. R. App. P. 43(a)(1)–(2). In fact, counsel neglected




       2
         Unless otherwise noted, case quotations omit all internal quotation marks, citations,
footnotes, and alterations.
       3
          Marentette also claimed that defendants had violated his First Amendment right to
petition the government by requiring him to communicate with the City only through an
attorney. The district court granted defendants judgment on the pleadings as to this claim and
Marentette has abandoned it on appeal.

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even to inform this Court that Marentette had died. That notice was instead provided by

defendants, who filed a statement of death on February 8, 2019.

       Inexplicably, although defendants noticed Marentette’s death on the record months

before any briefing was due, Marentette’s counsel still made no motion for substitution, nor did

they mention the death in the opening brief. Even after defendants raised the issue again in the

response brief and asked this Court to dismiss the appeal on that basis, Marentette’s counsel

refused to acknowledge the problem in the reply brief. It was not until December 17, 2019—over

eleven months after their client had died, two months after briefing was completed, and less than

one month from the date scheduled for oral argument—that counsel first acknowledged

Marentette’s death and moved for substitution of his ex-wife, Ann Hamming. That motion was

based on counsel’s expectation that Hamming would be appointed as administratrix of

Marentette’s estate prior to oral argument. Defendants opposed the motion to substitute and

cross-moved for dismissal of the appeal.

       Then, on January 8, 2020—now only about a week prior to oral argument—Marentette’s

counsel informed this Court that it was Marentette’s daughter (who had only recently reached the

age of majority and thus become eligible) who would be appointed administratrix. Yet the

documents submitted indicate that Marentette’s daughter turned 18 on July 3, 2019—months

before Marentette’s counsel ever moved for substitution. Moreover, counsel conceded at oral

argument that the daughter’s application to serve as administratrix had not yet been approved. He

represented that it would be approved imminently and that he would transmit the papers

confirming her appointment to this Court within a week. However, on January 31, 2020, counsel

filed a letter indicating that the appointment was still merely pending. Neither this letter, nor the




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two attached attorney affirmations, offered a timeline by which we might expect the appointment

to be complete.

       It has now been several weeks since oral argument. We have before us no qualified

representative to prosecute this appeal. We therefore find it necessary to dismiss this appeal

“base[d] on the inherent power of this Court to manage and control its docket.” Johnson v.

Morgenthau, 160 F.3d 897, 899 (2d Cir. 1998) (per curiam). Defendants-appellees’ motion to

dismiss the appeal with prejudice, ECF No. 89, is granted. Plaintiff-appellant’s motion to

substitute, ECF No. 85, is denied.

       We feel obliged to note our concern at what appears to be a lack of candor on the part of

Marentette’s counsel, Michael Thomas Harren and Kevin Connell, in proceedings before this

Court. Their failure to notify the Court about Marentette’s death for more than 11 months, even

after defendants repeatedly raised the issue, is inexcusable, as is their failure to timely move for

substitution of a qualified representative. Furthermore, we are not satisfied by the explanations

offered in counsel’s most recent letter. Under the circumstances, we find it appropriate to refer

attorneys Harren and Connell to the Court’s Grievance Panel. See Li Fang Liu v. Mukasey, 296

F. App’x 162, 164 (2d Cir. 2008) (summary order).

       Accordingly, the appeal is DISMISSED with prejudice.

                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe, Clerk




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