Dekom et al v. Nassau County et al

Filing 21

MEMORANDUM AND ORDER granting 12 Motion to Dismiss for Failure to State a Claim; granting 12 Motion to Dismiss for Lack of Jurisdiction; denying 13 Motion to Disqualify Judge. For the foregoing reasons, Plaintiffs' motion for recusal i s DENIED, Defendants' motion to dismiss is GRANTED and Plaintiffs' Complaint, except for any state law claims, is DISMISSED WITH PREJUDICE. Furthermore, if Defendants intend to file a motion for attorneys' fees, they must do so within thirty (30) days of the date of this Memorandum and Order. The Clerk of the Court is directed to serve a copy of this Memorandum and Order on the pro se Plaintiffs and mark this matter CLOSED. So Ordered by Judge Joanna Seybert on 9/18/2013. C/M; C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
MARTIN DEKOM, JULIE DEKOM, KENNETH
JACOBY, and DEBORAH JACOBY,
Plaintiffs,
-against-

MEMORANDUM & ORDER
12-CV-3473(JS)(ARL)

NASSAU COUNTY, WILLIAM BIAMONTE,
LOUIS SAVINETTI, JOHN RYAN,
MATTHEW KIERNAN, FRANCIS X.
MORONEY, DONALD T. O’BRIEN,
RONALD HORES, CINDY PERDIKAKIS,
JOSEPH MONDELLO, PETER BEE, and
JOHN DOES 1-100,
Defendants.
---------------------------------------X
APPEARANCES
For Plaintiffs:
Martin Dekom
Martin Dekom, pro se
34 High Street
Manhasset, NY 11030
Julie Dekom

Julie Dekom, pro se
34 High Street
Manhasset, NY 11030

Kenneth Jacoby

Kenneth Jacoby, pro se
3016 Roxbury Road
Oceanside, NY 11572

Deborah Jacoby

Deborah Jacoby, pro se
3016 Roxbury Road
Oceanside, NY 11572

For Defendants:
County and Individual
Defendants

Individual Defendants

Peter Laserna, Esq.
Nassau County Attorney’s Office
One West Street
Mineola, NY 11501
Christine Helen Price, Esq.
Ralph M. Cursio, Esq.

Steven G. Leventhal, Esq.
Thomas J. Mullaney, Esq.
Leventhal, Cursio, Mullaney & Sliney,
LLP
15 Remsen Avenue
Roslyn, NY 11576
SEYBERT, District Judge:
Pro se Plaintiffs Martin Dekom (“Dekom”), Julie Dekom,
Kenneth Jacoby, and Deborah Jacoby (collectively “Plaintiffs”)
commenced this action on July 13, 2012 against Defendants Nassau
County

(the

“County”);

William

Biamonte

and

Louis

Savinetti,

Commissioners of the Nassau County Board of Elections (“NCBOE”);
John Ryan, Republican counsel for the NCBOE; Matthew Kiernan,
assistant to Louis Savinetti; Francis X. Moroney, Chief Deputy
Comptroller
Lakeville

of
Fire

the

County;

Water

Donald

T.

Commissioner;

O’Brien,
Ronald

the

Manhasset

Hores;

Cindy

Perdikakis; Joseph Mondello, the Chairman of the Nassau County
Republication Committee; Peter Bee (collectively, except for the
County,

the

“Individual

Defendants,”

and

County, “Defendants”), and John Does 1-100.

together

with

the

Currently pending

before the Court are: (1) Defendants’ motion to dismiss the
Complaint (Docket Entry 12); and (2) Plaintiffs’ motion seeking
the undersigned’s recusal (Docket Entry 13).

For the following

reasons, Defendants’ motion is GRANTED and Plaintiffs’ motion is
DENIED.

2

BACKGROUND
I.

Factual Background1
On July 14, 2011, Plaintiffs submitted petitions to

the Nassau County Republican Committee (also referred to as the
“Nassau GOP”), seeking to be placed on ballots for the office of
“committeeman.”

(Compl. at 4-6.)

As Plaintiffs describe the

process, the NCBOE maintains custody of the petitions.

(Compl.

at 6.)

Individuals seeking to file objections to a petition

must

so

do

request.

through

a

Freedom

of

Information

Law

(“FOIL”)

(Compl. at 6.)
Plaintiffs allege that Defendant Francis X. Moroney

(“Moroney”), “a senior officer of the Nassau GOP,” used his
stature to influence “junior Nassau County employee,” Defendant
Cindy Perdikakis to improperly file objections to Plaintiffs’
petitions.

(Compl. at 7-8.)

Additionally, they allege that

Defendant Donald T. O’Brien, whose views are “at odds” with
those

of

Plaintiff

Dekom,

also

influenced

two

individuals,

including Defendant Ronald Hores, to file objections.

(Compl.

at 9-10.)
After

submitting

Plaintiffs’

petitions,

Dekom

made

FOIL requests for all of the petitions for “Member of the Nassau
GOP” as well as a list of current members.

(Compl. at 10-11.)

The following facts are taken from Plaintiffs’ Complaint and
the documents attached thereto and are presumed to be true for
the purposes of this Memorandum and Order.
1

3

According to Plaintiffs, the NCBOE raised several obstacles in
responding to Dekom’s FOIL requests, evidencing its policy of
willfully

concealing

information.

should

otherwise

be

available

to

adjudicate

(Compl. at 10-11.)

On
Plaintiffs’

what

August

3,

2011,

petitions.

the

NCBOE

(Compl.

at

met

12.)

According

to

Plaintiffs, this meeting should have been, but was not, public.
(Compl. at 12-13.)

At that time, the NCBOE rejected Plaintiffs’

petitions, and on August 5, 2011 Plaintiffs received notice via
United

States

Postal

“insufficient.”

Service

mail

(Compl. at 14.)

that

their

petitions

were

Plaintiffs assert that New

York Election Law allowed them only three business days to file
for judicial review.

(Compl. at 16.)

Accordingly, they allege,

the notice of insufficiency was improperly delayed and, in any
event,

did

regarding

not

how,

provide

Plaintiffs

exactly,

their

with

petitions

sufficient
were

detail

insufficient.

(Compl. at 15-16.)
Thereafter, Dekom sought the minutes from the NCBOE’s
August 3, 2011 meeting.
FOIL

request

and

(Compl. at 16.)

followed

up

regarding

He twice submitted a
availability

of

the

minutes on several occasions, but did not receive them until
August 15, 2011.
On

(Compl. at 16-18.)

August

17,

2011,

Dekom

submitted

petitions, even though the deadline had passed.
4

corrected

(Compl. at 23.)

On August 30, 2011, Plaintiffs received letters from Defendant
John Ryan stating that the corrected petitions had been denied.
(Compl. at 25.)

The primary election took place on September

13, 2011 and Plaintiffs were not on the ballot.
After the primary, on September 20, 2011, the Nassau
GOP and the three town Republican committees of Nassau County
held conventions.
as

an

officer

Committee,

(Compl. at 28.)
of

which

(Compl. at 28.)

the

would

Town
have

Dekom sought to be elected

of

North

made

him

Hempstead
a

Nassau

Republican
GOP

member.

However, at the outset of the North Hempstead

Republican convention, Defendant Moroney “yelled at [Dekom] that
the meeting was not public and [that] he could not be there.”
(Compl. at 29.)
of issues.

Dekom apparently stayed, but observed a number

Defendant Peter Bee (“Bee”) served as the temporary

chair of the convention, but despite Bee’s “renowned” status,
there was no statutory roll call, the elections were “rigg[ed],”
and members voted without producing “actual proxies.”

(Compl.

at 29.)
That

same

day,

Dekom

also

sought

additional

party

positions and attended the Nassau County Republican Committee
convention.

(Compl.

at

30.)

Again,

Dekom

alleges,

Bee

conducted the convention in a manner that did not conform to
Election Law.

(Compl. at 30-31.)

5

II.

Procedural Background
Prior to the instant Memorandum and Order, Plaintiff

Dekom has also litigated two relevant cases in the Supreme Court
of the State of New York.
In Dekom v. Moroney, 34 Misc. 3d 1207(A), 946 N.Y.S.2d
66 (Sup. Ct. Nassau Cnty. 2012), Dekom sought an order declaring
the actions taken by the North Hempstead Republican Committee on
September 20, 2011, when Dekom attempted to be elected as an
officer of the Town of North Hempstead Republican Committee,
null and void.

The Supreme Court dismissed that case, finding

that Dekom had failed to join necessary parties, service was
improper,

the

case

was

barred

by

the

ten-day

statute

of

limitations set by New York Election Law § 16-102, and that
Dekom

lacked

standing

because

he

was

not

an

“aggrieved

candidate” or other person designated by New York Election Law
§ 16-102(1).

Id. at *2.

Currently, there is an appeal pending

from that case (App. Div. Case No. 2012-1930).
In Dekom v. Mondello, No. 17803/11 (Laserna Decl. Ex.
A), Dekom asserted that the Nassau County Republican Committee
convention

was

“conducted

in

violation

of

both

committee rules and stated election law provisions.”
Decl. Ex. A at 2.)

applicable
(Laserna

Once again, the Supreme Court found that

Dekom’s action was barred by the ten-day statute of limitations
set by Election Law § 16-102, Dekom had failed to join necessary
6

parties, and Dekom was not an “aggrieved candidate.”

(Laserna

Decl. Ex. A at 2-3.)
DISCUSSION
The Court reads the Complaint to assert the following
claims

pursuant

to

42

U.S.C.

§

1983

(“Section

1983”):

(1)

violation of due process because Plaintiffs were deprived of
participation in the August 3, 2011 NCBOE hearing and their
petitions were improperly denied; (2) violation of due process
because Plaintiffs did not receive proper notice of the denial
of their petitions, both because the notice and the minutes of
the

hearing

were

improperly

delayed

and

because

the

notice

lacked sufficient detail; (3) violation of their First Amendment
rights to vote and to free speech and association

2

; and (4)

violation of their Equal Protection rights because they were
discriminated against based upon their “creed.”

Plaintiffs also

allege claims for: (1) conspiracy pursuant to 42 U.S.C. § 1985
(“Section 1985”); (2) violation of Section 11(b) of the Voting
Rights Act; (3) violation of New York’s Open Meetings Law; and
(4) a state law claim for emotional distress.
Defendants

move

to

dismiss

each

of

these

claims

because, they argue: (1) Plaintiffs were not deprived of their
Plaintiffs allege that by denying their petitions and by
denying “Certificates to fill a Vacancy,” which Plaintiffs also
submitted (see Compl. at 17, 27), they were unable to become
members of the Nassau GOP and therefore unable to vote for
positions such as the elections commissioner.
2

7

constitutional rights; (2) at least some of Plaintiffs’ claims
are barred by the Rooker-Feldman doctrine; and (3) the Court
should not exercise supplemental jurisdiction over Plaintiffs’
state law claims. In the alternative, Defendants assert that
should the Court decline to dismiss the Complaint, it should
order

Plaintiffs

to

join

a

necessary

party

and/or

Plaintiffs to provide a more definite statement.

require

Plaintiffs

move for recusal of the undersigned.
The Court will first discuss Plaintiffs’ motion for
recusal before turning to the motion to dismiss.
I.

Plaintiffs’ Motion for Recusal
Plaintiffs filed a one-page letter motion requesting

that the undersigned recuse herself.
Docket Entry 13.)

(Pls.’ Mot. to Recuse,

The motion is a single sentence, stating:

“Because of your relationships and recent history, and in the
interest

of

plaintiffs

avoiding

request

you

an

exhaustive

voluntarily

treatment
yourself

motion,

from

this

(Pl.s’ Mot. to Recuse.)

case, by January 30th, 2013.”

remove

by

The

Court, however, declines recusal.
The recusal of federal judges is governed by 28 U.S.C.
§ 455.

Section 455 provides, in relevant part, that “[a]ny

justice, judge, or magistrate judge of the United States shall
disqualify himself in any proceeding in which his impartiality
might reasonably be questioned,” or “[w]here he has a personal
8

bias or prejudice concerning a party, or personal knowledge of
disputed

evidentiary

facts

U.S.C. §§ 455(a), (b)(1).
relevant

inquiry

observer

fully

is

concerning

proceeding.”

28

The Second Circuit has held that the

“whether

informed

the

of

an

the

objective,
underlying

disinterested
facts,

[would]

entertain significant doubt that justice would be done absent
recusal, or alternatively, whether a reasonable person, knowing
all the facts, would question the judge’s impartiality.”

United

States v. Yousef, 327 F.3d 56, 169 (2d Cir. 2003) (internal
quotation marks and citation omitted) (alteration in original);
see also United States v. Carlton, 534 F.3d 97, 100 (2d Cir.
2008).
“To

establish

a

basis

for

recusal,

‘[m]ovants

must

overcome a presumption of impartiality, and the burden for doing
so is substantial.’”

Da Silva Moore v. Publicis Groupe, 868 F.

Supp. 2d 137, 150 (S.D.N.Y. 2012) (quoting Metro. Opera Ass’n,
Inc. v. Local 100, Hotel Emps. Int’l Union, 332 F. Supp. 2d 667,
670

(S.D.N.Y.

2004)).

disqualification

have

not

“[W]here
been

met,

optional; rather, it is prohibited.”

the

standards

governing

disqualification

is

not

Aguinda v. Texaco, Inc.

(In re Aguinda), 241 F.3d 194, 201 (2d Cir. 2001); see also
Thorpe v. Zimmer, Inc., 590 F. Supp. 2d 492, 494 (S.D.N.Y. 2008)
(“The Court has an affirmative duty not to disqualify itself
unnecessarily.”).

A court’s decision not to recuse itself is
9

reviewed

by

the

Second

Circuit

for

abuse

of

discretion.

LoCascio v. United States, 473 F.3d 493, 495 (2d Cir. 2007).
Plaintiff Dekom is not new to this Court.
Plaintiffs

Martin

Dekom

and

Kenneth

Jacoby

Recently,

moved

for

the

undersigned’s recusal in another action, Dekom v New York, No.
12-CV-1318(JS)(ARL).

There, Dekom and Jacoby argued for recusal

because “they disagree[d] with the decisions that have been made
to date” and “they believe[d] that, due to the fact that the
undersigned was elected to the state bench in Nassau County as a
member of the Republican Party, Judge Seybert can be expected to
be particularly loyal to the machine which made her.”

Dekom v.

New York, No. 12-CV-1318, 2013 WL 3095010, at *7 (E.D.N.Y. June
18, 2013) (internal quotation marks and citation omitted).

The

Court found neither argument persuasive.
Here,

although

Plaintiffs

do

not

clearly

state

the

basis of their motion, it seems that they seek to rehash the
very

same

First,

arguments

as

apparently

to

that

this

challenge

this

Court

Court’s
rulings

“recent
that

were

has

already

history,”
not

in

rejected.
Plaintiffs

their

favor.

However, as the Court has previously noted, “‘judicial rulings
alone

almost

never

partiality motion.’”

constitute

a

valid

basis

for

a

bias

or

Id. at *7 (quoting LocCascio v. United

States, 372 F. Supp. 2d 304, 315 (E.D.N.Y. 2005), aff’d, 473
F.3d 493 (2d Cir. 2007)).
10

Second,

as

to

this

Court’s

“relationships,”

it

is

unclear whether Plaintiffs intend to assert bias due to this
Court’s prior dealings with the Plaintiffs or whether they claim
bias due to the undersigned’s prior political affiliations.

To

the extent that Plaintiffs believe that the undersigned should
recuse herself due to the Plaintiffs’ prior litigations and the
Court’s prior rulings, this is not a proper basis for recusal
and, in any event “the Court has been lenient and accommodating
to Plaintiffs on multiple occasions” in their other cases.
at *7.

Id.

To the extent that Plaintiffs raise an issue as to prior

political affiliations, the Court has noted that “‘it is rare
that recusal is granted based only on a question of impartiality
because of the judge’s former affiliation.’”

Id. at *8 (quoting

Local 338, RWDSU v. Trade Fair Supermarkets, 455 F. Supp. 2d
143, 144 (E.D.N.Y. 2006)).

Furthermore, in Dekom v. New York,

many of the defendants in that action are also defendants here,
and the Court noted that it had no particular relationships or
loyalties to these defendants.

Id. at *8.

Accordingly, Plaintiffs’ recusal motion is DENIED.
II.

Defendants’ Motion to Dismiss
Defendants

seek

dismissal

of

Plaintiffs’

Complaint

under Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of
Civil Procedure.

The Court will first address the applicable

11

legal

standards

before

turning

to

Defendants’

motion

for

specifically.
A.

Legal Standards
1.

Rule 12(b)(1)

“A

case

is

properly

dismissed

for

lack

of

subject

matter jurisdiction under Rule 12(b)(1) when the district court
lacks the statutory or constitutional power to adjudicate it.”
Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).
resolving

a

motion

jurisdiction,
materials

to

the

Court

beyond

questions.

the

dismiss
may

for

lack

consider

pleadings

to

of

subject

affidavits
resolve

and

In

matter
other

jurisdictional

See Morrison v. Nat’l Austl. Bank Ltd., 547 F.3d

167, 170 (2d Cir. 2008), aff’d, ––– U.S. ––––, 130 S. Ct. 2869,
177 L. Ed. 2d 535 (2010).

The Court must accept as true the

factual allegations contained in the complaint, but it will not
draw argumentative inferences in favor of the plaintiff because
subject matter jurisdiction must be shown affirmatively.

See

id.; Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d
Cir. 1998).

The plaintiff bears the burden of establishing

subject matter jurisdiction by a preponderance of the evidence.
Morrison, 547 F.3d at 170.
2.

Rule 12(b)(6)

In

deciding

Rule

12(b)(6)

motions

to

dismiss

for

failure to state a claim, the Court applies a “plausibility
12

standard,”

which

is

guided

by

“[t]wo

working

principles.”

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L.
Ed. 2d 868 (2009); accord Harris v. Mills, 572 F.3d 66, 71-72
(2d

Cir.

2009).

allegations

as

First,
true,

although

the

Court

“tenet”

is

“inapplicable

this

must

accept
to

all

legal

conclusions;” thus, “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not
suffice.”

Iqbal, 556 U.S. at 678 (citing Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555, S. Ct. 1955, 167 L. Ed. 2d 929
(2007)); accord Harris, 572 F.3d at 72.

Second, only complaints

that state a “plausible claim for relief” can survive a Rule
12(b)(6) motion to dismiss.
Twombly, 550 U.S. at 556).

Iqbal, 556 U.S. at 679 (citing

Determining whether a complaint does

so is “a context-specific task that requires the reviewing court
to

draw

on

its

judicial

experience

and

common

sense.”

Id.

(citation omitted); accord Harris, 572 F.3d at 72.
While pro se plaintiffs enjoy a somewhat more liberal
pleading standard, see Erickson v. Pardus, 551 U.S. 89, 94, 127
S. Ct. 2197, 167 L. Ed. 2d 1081 (2007) (“[A] pro se complaint,
however

inartfully

pleaded,

must

be

held

to

less

stringent

standards than formal pleadings drafted by lawyers.” (internal
quotation marks and citation omitted)), they must still comport
with the procedural and substantive rules of law, see Colo.
Capital v. Owens, 227 F.R.D. 181, 186 (E.D.N.Y. 2005).
13

B.

Plaintiffs’ Claims Pursuant to Section 1983
Section 1983 provides that “[e]very person who, under

color of any statute, ordinance, regulation, custom, or usage,
of any State . . . subjects, or causes to be subjected, any
citizen of the United States . . . to the deprivation of any
rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured . . . .” 42
U.S.C.

§ 1983

substantive

(2000).

right;

Section

rather,

to

1983

does

recover,

a

not

create

a

plaintiff

must

establish the deprivation of a separate, federal right.

See

Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999).
Defendants assert that this action should be dismissed
because
rights.

Plaintiffs
The

were

Court

will

not

deprived

address

of
of

each

any

constitutional

Plaintiffs’

claims

separately.
1.

Due Process

Plaintiffs allege that Defendants violated their due
process

rights

by

depriving

them

of

the

opportunity

to

participate in the August 3, 2011 hearing, improperly denying
their

petitions,

and

failing

to

give

them

proper

notice

of

denial, both because the notice and the minutes of the hearing
were delayed and because the notice lacked sufficient detail.
The Court disagrees.

14

The Due Process Clause protects against deprivations
of constitutionally protected rights without due process of law.
See Rivera-Powell v. N.Y.C. Bd. of Elections, 470 F.3d 458, 464
(2d

Cir.

2006).

“‘[T]o

determine

whether

a

constitutional

violation has occurred, it is necessary to ask what process the
State provided, and whether it was constitutionally adequate.’”
Id. at 465 (quoting Zinermon v. Burch, 494 U.S. 113, 126, 110 S.
Ct. 975, 108 L. Ed. 2d 100 (1990) (alteration in original)).

In

considering the adequacy of the process, “‘the Supreme Court has
distinguished

between

(a)

claims

based

on

established

state

procedures and (b) claims based on random, unauthorized acts by
state

employees.’”

Id.

(quoting

Hellenic

Am.

Neighborhood

Action Comm. v. City of N.Y., 101 F.3d 877, 880 (2d Cir. 1996)).
If

the

state

conduct

is

random

and

unauthorized,

deprivation remedy satisfies due process.
action

is

deprivation

based

on

remedy

established

is

not

state

necessarily

deprivation hearing may also be necessary.

Id.

post-

If the state

procedures,
adequate

a

and

a

posta

pre-

Id.

Both parties rely heavily on Rivera-Powell v. N.Y.C.
Bd. of Elections and dispute whether the state actions at issue
here were random and unauthorized.

(See Defs.’ Br. in Support

of Mot. to Dismiss (“Defs.’ Br.”), Docket Entry 12-3, at 4-7;
Pls.’ Br. in Opp. to Mot. to Dismiss (“Pls.’ Opp. Br.”), Docket
Entry 17, at 3-8.)

In that case, Verena Rivera-Powell, who
15

sought to be a candidate for judge of the Civil Court of the
City of New York, and her supporters, appealed an order from the
Southern District of New York dismissing their case.
at 460-61.

470 F.3d

The plaintiffs contended, inter alia, that the New

York City Board of Elections violated their due process rights
under the Fourteenth Amendment and infringed on their freedom of
association

and

voting

rights

in

violation

of

the

First

Amendment when it removed Rivera-Powell from the ballot after
receiving an allegedly untimely objection to her petition.

Id.

at 461.
The

Second

Circuit

ultimately

determined

that,

regardless of whether or not the actions in question were random
and

unauthorized,

adequate.

the

process

Id. at 466.

provided

to

Rivera-Powell

was

First, the Court said, Rivera-Powell

received a pre-deprivation hearing when the Board considered the
objections

to

importantly,”

her
the

petition.

Court

Id.

declared,

Second,

“after

the

and

“[m]ore

Board’s

action,

Rivera-Powell had the opportunity to obtain full judicial review
by

way

of

a

special

proceeding

under

New

York

Election

Law

section 16-102, which provides for expedited proceedings as to
designations.”
In
alleged

Id. at 467.

the

actions

present
were

case,

random

and

Defendants

maintain

unauthorized,

and

that

any

therefore

there was no due process violation because Plaintiffs could have
16

sought a post-deprivation remedy through New York Election Law
§ 16-102 (“Section 16-102”).
19, at 5-6.)

(Defs.’ Reply Br., Docket Entry

Plaintiffs assert that they were entitled to a

pre-deprivation hearing and because, unlike Rivera-Powell, they
were not given the opportunity to participate in the August 3,
2011 hearing regarding objections to their petitions, Defendants
violated their due process rights.
Significantly,

the

(Pls.’ Opp. Br. at 3.)

Second

Circuit

in

Rivera-Powell

noted that, depending on when one considers a “deprivation” to
have occurred, a proceeding pursuant to Section 16-102 could
actually be considered pre-deprivation.
at

468,

n.10.

Since

then,

courts

Rivera-Powell, 470 F.3d

have

addressed

this

very

issue, finding that Section 16-102 provides a pre-deprivation
remedy and thus denying due process claims strikingly similar to
those Plaintiffs now raise.

See, e.g., Murawski v. Pataki, 514

F. Supp. 2d 577, 586 n.5 (S.D.N.Y. 2007) (“Even in the absence
of an opportunity to be heard prior to a BOE decision, however,
the

statutory

provision

for

an

expedited

review

of

that

determination by the New York Supreme Court provides adequate
pre-deprivation

review

and

satisfies

due

process

requirements.”); Douglas v. Niagara Cnty. Bd. of Elections, No.
07-CV-0609, 2007 WL 3036809, at *5 (W.D.N.Y. Oct. 16, 2007) (“In
the Court’s view, the special proceeding constitutes an adequate
‘pre-deprivation’

procedure.”).
17

Section

16-102

specifically

allows for an expedited judicial proceeding to review the Board
of

Election’s

decision,

primary election.

thus

providing

a

remedy

before

See Douglas, 2007 WL 3036809, at *5.

the

This is

true even where, as here, a plaintiff alleges that the Board of
Elections delayed or deprived him of information.

See Tiraco v.

N.Y. State Bd. of Elections, --- F. Supp. 2d ----, 2013 WL
4046257,

at

*7-8

(E.D.N.Y.

Aug.

7,

2013)

(dismissing

a

due

process claim where the plaintiff alleged that the City Board
denied him access to the congressional ballot by failing to
timely provide him with the 6th Congressional District map and
information about Independence Party voters); Leroy v. N.Y.C.
Bd. of Elections, 793 F. Supp. 2d 533, 537-38 (E.D.N.Y. 2011)
(dismissing a due process claim where the plaintiff alleged, in
part,

that

the

Board

of

Elections

violated

her

due

process

rights by waiting four days to send her notification that her
amended petition was defective).
Furthermore,
themselves

of

a

that

Section

Plaintiffs

16-102

failed

proceeding

is

of

to
no

avail
moment.

Rivera-Powell, 470 F.3d at 468 n.9 (“The fact that Rivera-Powell
failed properly to pursue the state court action, and that it is
now

too

late

to

do

so,

does

not

affect

our

due

process

analysis.”); Murawski, 514 F. Supp. 2d at 586 (“The fact that
plaintiff did not avail himself of the opportunity to challenge
the State BOE’s determination does not create a procedural due
18

process violation.”).

What is significant is that they could

have done so if they had chosen.

See Murawski, 514 F. Supp. 2d

at 586 (noting that the plaintiff could have raised “any and all
issues relating to the validity of his petition” in a Section
16-102 proceeding).
Accordingly, Defendants’ motion to dismiss Plaintiffs’
Section

1983

claims

based

upon

alleged

deprivations

of

due

Defendants’

actions

process is GRANTED.
2.

First Amendment

Plaintiffs

also

allege

that

violated their First Amendment rights to vote and to political
speech and associational rights.
Here,
“virtually

Plaintiffs’

indistinguishable”

The Court disagrees.
First

from

Rivera-Powell, 470 F.3d at 468.

Amendment
their

due

claims

process

are

claims.

Thus, since Plaintiffs’ due

process claims fail, their First Amendment claims necessarily
fail

as

well.

Id.

at

469

(“When,

as

here,

a

plaintiff

challenges a Board of Election decision not as stemming from a
constitutionally or statutorily invalid law or regulation, but
rather as contravening a law or regulation whose validity the
plaintiff does not contest, there is no independent burden on
First

Amendment

rights

when

the

state

provides

adequate

procedures by which to remedy the alleged illegality.”); accord

19

Marchant v. N.Y.C. Bd. of Elections, No. 13-CV-5493, 2013 WL
4407098, at *4 (S.D.N.Y. Aug. 16, 2013).
Accordingly, Defendants’ motion to dismiss Plaintiffs’
First Amendment claims is GRANTED.
3.

Equal Protection

Plaintiffs

further

allege

that

Defendants

violated

their equal protection rights on the basis of their “creed.”
(Compl.

at

32.)
claims

protection
dismissal.

Defendants
are

argue

that

conclusory

and

Plaintiffs’
therefore

equal
require

The Court agrees.
“The

Equal

Protection

Clause

of

the

Fourteenth

Amendment commands that no State shall deny to any person within
its jurisdiction the equal protection of the laws, which is
essentially

a

direction

should be treated alike.”

that

all

persons

similarly

situated

City of Cleburne v. Cleburne Living

Ctr., Inc., 473 U.S. 432, 439, 105 S. Ct. 3249, 87 L. Ed. 2d 313
(1985) (internal quotation marks and citation omitted).

“The

Second Circuit has held that ‘a § 1983 action to remedy errors
in the election process allegedly violating the equal protection
clause

does

not

exist

unless

the

state

intentional or purposeful discrimination.’”

action

constituted

Marchant, 2013 WL

4407098, at *4 (quoting Gold v. Feinberg, 101 F.3d 796, 800 (2d
Cir.

1996)).

Thus,

Plaintiffs

must

allege

that

Defendants

intentionally discriminated against them “either by adopting out
20

of [discriminatory] animus policies which are facially neutral
but

have

facially

a

.

.

neutral

.

discriminatory

policy

in

a

.

.

effect,
.

or

by

applying

discriminatory

a

manner.”

Rivera-Powell, 470 F.3d at 470.
Plaintiffs

assert

that

Defendants

discriminated

against them because they are “‘Tea Party’ activists within the
GOP, and the defendants are part of the ‘establishment’ which
resists their reforms.”

(Compl. at 32.)

However, Plaintiffs’

allegations “amount to nothing more than conclusory assertions
devoid

of

adequate

factual

enhancement

that

plausible [their] equal protection claim[s].”
4046257,

at

*12.

discriminatory

There

animus,

are

and

no

even

render

Tiraco, 2013 WL

allegations
Dekom’s

would

to

claim

suggest
of

a

voter

intimidation alleges only that Moroney “yelled at [Dekom] that
the meeting was not public” (Compl. at 29), not that there were
any utterances or suggestions of animus.

See Leroy, 793 F.

Supp. 2d at 542 (“There is absolutely nothing in the pleadings
to suggest that Leroy’s gender played any role in [the] BOE’s
decision.”).
The Court also finds that, even if Plaintiffs intend
to bring equal protection claims under a “class of one” theory,
such

claims

fail.

See

Tiraco,

2013

WL

4046257,

at

*12

(rejecting class of one theory even though not raised by the
parties).

“In order to adequately allege an equal protection
21

claim on a ‘class of one’ theory, a plaintiff must demonstrate
that: (1) he was ‘intentionally treated differently from others
similarly situated,’ and (2) ‘that there is no rational basis
for

the

difference

in

treatment.’”

Vaher

v.

Town

of

Organgetown, N.Y., 916 F. Supp. 2d 404, 433 (S.D.N.Y. 2013)
(quoting Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120
S. Ct. 1073, 145 L. Ed. 2d 1060 (2000)).
Plaintiffs proffer two examples of individuals that
were

similarly

situated

but

treated

differently.

Neither,

however, supports Plaintiffs’ proposition that candidates who
were endorsed by the Nassau GOP were subject to different, more
favorable standards.

Plaintiffs allege that Norma Gonsalves,

who was endorsed by the Nassau GOP for county legislature, was
treated more favorably than Plaintiffs because Savinetti did not
agree with the bipartisan research team that entering the wrong
town on the line specifically designated for “Town” invalidated
her petition.
NCBOE

(Compl. at 22.)

minutes

regarding

It is not wholly clear from the

objections

to

Gonsalves’s

petition

(Compl. Ex. F) what the basis was for Savinetti’s disagreement.
In any event, the bipartisan research team determined, and there
was no dispute that, Gonsalves had submitted thirty-one valid
signatures.

(Compl. Ex. F.)

As Gonsalves only required twenty-

nine signatures, the Nassau County Board of Elections deemed her
petition valid.

(Compl. Ex. F.)
22

Plaintiffs

also

allege

that

Defendants

treated

Christian Browne, a Republican endorsed by the Nassau GOP for
county

legislator,

more

favorably

because

in

his

case,

the

Nassau GOP Commissioners split on the validity of his petition,
and it was therefore deemed valid.

(Compl. at 26.)

Plaintiffs

assert that “[i]f Biamonte disagreed with Savinetti/Ryan, the
plaintiffs[’] petitions should have been deemed valid as well.
Again,

the

(Compl.

at

objections

standards
26.)
to

changed

However,

Plaintiffs’

when

the

applied

NCBOE

petitions

to

minutes

plaintiffs.”

addressing

specifically

there was no disagreement among the Commissioners.

state

the
that

(Compl. Ex.

N.)
Thus,

neither

example

shows

how

“the

standards

changed” when applied to Plaintiffs or how anyone was treated
more favorably than them.
(“The

lack

of

similarly

See Leroy, 793 F. Supp. 2d at 542
situated

individuals

also

makes

any

‘class of one’ claim non-meritorious, because, to prevail on
such a claim, Leroy ‘must demonstrate that [she was] treated
differently than someone who is prima facie identical in all
relevant
App’x

respects.’”

210,

Accordingly,

213

(2d

(quoting
Cir.

Defendants’

Prestopnik

2007)

motion

protection claims is GRANTED.

23

to

v.

(alteration
dismiss

Whelan,
in

249

F.

original)).

Plaintiffs’

equal

C.

Plaintiffs’ Claims Regarding the September 20, 2011
Conventions
In addition to the aforementioned allegations, Counts

thirteen and fourteen of the Complaint also raise various claims
regarding the September 20, 2011 Nassau GOP and North Hempstead
Republican

Committee

conventions.

More

specifically,

the

Complaint alleges that Moroney violated Section 11(b) of the
Voting Rights Act by intimidating Dekom at the outset of the
North Hempstead Republican convention 3 (Count 13) and that Bee,
at the direction or consent of Mondello and Moroney, conducted
the Nassau GOP convention in such a manner as to deprive Dekom
of his constitutional rights (Count 14).

Defendants maintain

that these claims are barred by the Rooker-Feldman doctrine.
Plaintiffs counter that their claims must survive because they
were

not

previously

litigated.

Plaintiffs’

argument

is

unavailing.
The Rooker-Feldman doctrine “establishes the principle
that federal district courts lack jurisdiction over suits that
are,

in

substance,

appeals

from

state-court

judgments.”

MacPherson v. Town of Southampton, 738 F. Supp. 2d 353, 362

Although Count 17 of the Complaint also asserts a claim
pursuant to Section 11(b) of the Voting Rights Act because
“defendants engaged in a pattern of voter intimidation” (Compl.
at 33), the only allegations regarding voter intimidation are
that Moroney yelled at Dekom during the North Hempstead
Republican Committee convention, and therefore the Court does
not read this as a separate, viable claim.
3

24

(E.D.N.Y. 2010).

Courts in this Circuit typically apply four

factors to determine whether Rooker-Feldman bars a federal suit,
namely that: (1) plaintiff is a state court loser; (2) plaintiff
complains of injuries caused by the state court judgment; (3)
plaintiff seeks review of the state court judgment; and (4) the
state

court

judgment

proceedings began.

was

rendered

before

district

court

Id.

The case law is clear that “recasting [a] complaint in
the form of a civil rights action pursuant to 42 U.S.C. § 1983”
does not avoid the Rooker-Feldman bar.
860 F. Supp. 54, 65 (E.D.N.Y. 1994).

Fariello v. Campbell,

Whether the doctrine bars

the subsequent Section 1983 federal action depends upon whether
the Section 1983 claims are “inextricably intertwined” with the
state court judgment.
As

the

Id.

Court’s

prior

recitation

of

the

procedural

history makes clear, Dekom lost in two prior state court actions
regarding the September 20, 2011 conventions.

See supra pp. 6-

7.

a

Thus,

the

first

and

analysis are satisfied.
Plaintiffs

complain

of

fourth

factors

in

Rooker-Feldman

What is unclear, however, is whether
injuries

caused

by

judgments and, therefore, seek their review.

those

state

court

To the extent that

they do raise such claims, they are clearly barred by RookerFeldman

and,

accordingly,

Defendants’

GRANTED in this regard.
25

motion

to

dismiss

is

However, Plaintiffs argue in their opposition brief
that

their

current

claims

under

Counts

13

and

14

previously litigated in the state court actions.
Br. at 12.)

were

not

(Pls.’ Opp.

Where, as here, Plaintiffs re-raise issues that

were the subject matter of a state court judgment but do not
complain

of

injuries

caused

by

the

state

court

judgment,

collateral estoppel and res judicata may present a bar, even if
the Rooker-Feldman doctrine does not.

See Hayes v. Cnty. of

Sullivan, 853 F. Supp. 2d 400, 424 n.22 (S.D.N.Y. 2012).
“Under the doctrine of res judicata, . . . ‘a final
judgment on the merits of an action precludes the parties or
their privies from relitigating issues that were or could have
been raised in that action’ not just those that were actually
litigated.”

Caldwell v. Gutman, Mintz, Baker & Sonnenfeldt,

P.C., 701 F. Supp. 2d 340, 351 (E.D.N.Y. 2010) (quoting Flaherty
v. Lang, 199 F.3d 607, 612 (2d Cir. 1999)).

New York uses the

“transactional approach” to res judicata, “barring a later claim
arising out of the same factual grouping as an earlier litigated
claim

even

if

the

later

claim

is

based

on

different

theories or seeks dissimilar or additional relief.”
Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).

legal

Burgos v.

Thus, “[t]he doctrine

applies only if (1) there is a previous adjudication on the
merits; (2) the previous action involved [the party against whom
res

judicata

is

invoked]

or

its
26

privy;

and

(3)

the

claims

involved were or could have been raised in the previous action.”
Caldwell, 701 F. Supp. 2d at 351 (internal quotation marks and
citation omitted) (alteration in original).
Here, it is undisputed that the state court actions
were

on

the

therein.

merits,

See

Dekom

as

they

both

v.

Moroney,

dismissed
34

Misc.

the

3d

complaints

1207(A),

946

N.Y.S.2d 66 (Sup. Ct. Nassau Cnty. 2012); Laserna Decl. Ex. A.
Furthermore, both Counts 13 and 14 appear to be on behalf of
Plaintiff Dekom only, who was also a plaintiff in both state
court actions.

(See Compl. at 29 (Count 13 of the Complaint,

which alleges that Moroney intimidated Dekom); id. at 31 (Count
14, alleging that “Bee . . . conducted the proceeding in such a
way [as] to prevent participation by anyone not preselected, and
Dekom, being an outsider, was thus prevented.
him

[i.e.,

Dekom]

being

deprived

of

the

This resulted in

right

political speech and associational rights.”).)

to

vote,

and

Finally, Dekom

could have brought his current claims in the prior state court
actions.

The state court actions involved the very same subject

matter as Counts 13 and 14--the September 20, 2011 conventions-and had fully occurred by the time he commenced those actions.
Accordingly, Counts 13 and 14 are barred by res judicata and
Defendants’ motion to dismiss these claims is GRANTED.

27

D.

Plaintiffs’ Claims Pursuant to Section 1985
Plaintiffs have also alleged that Defendants conspired

to violate their constitutional rights in violation of Section
1985.

However, as the Court has found that Defendants did not

violate

Plaintiffs’

constitutional

rights,

a

claim

for

conspiracy under Section 1985 necessarily fails as well.

See

Malsh v. Austin, 901 F. Supp. 757, 763 (S.D.N.Y. 1995) (“[T]here
can be no conspiracy to violate the plaintiff’s constitutional
rights because, as explained above, the plaintiff has failed to
allege

any

plaintiff

facts

showing

involved

any

that

the

violations

actions
of

his

concerning

the

constitutional

rights.”); Trombly v. O’Neill, --- F. Supp. 2d ----, 2013 WL
869514,

at

*9

(N.D.N.Y.

Mar.

7,

2013)

(“A

violated

constitutional right is a natural prerequisite to a claim of
conspiracy to violate such right.” (internal quotation marks and
citation omitted)).

Accordingly, Defendants’ motion to dismiss

Plaintiffs’ Section 1985 conspiracy claim is GRANTED.
III.

Defendants’ Request for Attorneys’ Fees
Finally, Defendants’ reply brief also raises the issue

of attorneys’ fees.

However, a party cannot raise arguments for

the first time in a reply brief.

See Fairfield Fin. Mortg.

Grp., Inc. v. Luca, 584 F. Supp. 2d 479, 485 n. 2 (E.D.N.Y.
2008).

Thus, to the extent that Defendants seek attorneys’

fees, they must make a separate motion for such relief.
28

IV.

Plaintiffs’ State Law Claims
Defendants

further

move

for

this

Court

to

decline

pendent jurisdiction on any of Plaintiffs’ state law claims.

As

the Court has dismissed all of Plaintiffs’ federal claims, the
Court declines pendent jurisdiction over Plaintiffs’ state law
claims.
“A

federal

court

has

the

power

to

hear

state

law

claims under the doctrine of pendent jurisdiction if the state
and federal claims derive from a ‘common nucleus of operative
fact’ such that the plaintiff ordinarily would be expected to
try

them

all

Contracting

in

Corp.,

one
772

judicial
F.

proceeding.”

Supp.

821,

831

Drummer

v.

(S.D.N.Y.

DCI

1991).

Whether to exercise pendent jurisdiction is within the Court’s
discretion,
judicial

though

economy,

the

Court

may

convenience,

and

consider
fairness.

factors
St.

such

as

Louis

v.

N.Y.C. Health & Hosp. Corp., 682 F. Supp. 2d 216, 238 (E.D.N.Y.
2010).

“[W]hen all federal claims are eliminated in the early

stages of litigation, the balance of factors generally favors
declining to exercise pendent jurisdiction over remaining state
law claims and dismissing them without prejudice.”

Tops Marks,

Inc. v. Quality Markets, Inc., 142 F.3d 90, 103 (2d Cir. 1998)
(emphasis omitted).

29

Accordingly,

Defendants’

motion

in

this

regard

is

GRANTED and Plaintiffs’ state law claims are DISMISSED WITHOUT
PREJUDICE.
V.

Leave to Replead
Although

Plaintiffs

have

not

requested

leave

to

replead, the Second Circuit has stated that “[w]hen a motion to
dismiss is granted, the usual practice is to grant leave to
amend the complaint.”

Hayden v. Cnty. of Nassau, 180 F.3d 42,

53 (2d Cir. 1999), overruled on other grounds by Gonzaga v. Doe,
536 U.S. 273, 122 S. Ct. 2268, 153 L. Ed. 2d 309 (2002); see
also FED. R. CIV. P. 15(a)(2) (“The court should freely give leave
[to amend] when justice so requires.”).

“However, a district

court has the discretion to deny leave to amend where there is
no indication from a liberal reading of the complaint that a
valid claim might be stated.”

Perri v. Bloomberg, No. 11-CV-

2646, 2012 WL 3307013, at *4 (E.D.N.Y. Aug. 13, 2012) (citing
Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010)).

Because,

as explained above, Plaintiffs’ claims fail as a matter of law,
leave to replead would be futile.

Accordingly, leave to replead

is DENIED, and, with the exception of Plaintiffs’ state law
claims, Plaintiffs’ Complaint is DISMISSED WITH PREJUDICE.
CONCLUSION
For

the

foregoing

reasons,

Plaintiffs’

motion

for

recusal is DENIED, Defendants’ motion to dismiss is GRANTED and
30

Plaintiffs’

Complaint,

except

DISMISSED WITH PREJUDICE.

for

any

state

law

claims,

is

Furthermore, if Defendants intend to

file a motion for attorneys’ fees, they must do so within thirty
(30) days of the date of this Memorandum and Order.
The Clerk of the Court is directed to serve a copy of
this Memorandum and Order on the pro se Plaintiffs and mark this
matter CLOSED.

SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

September
18 , 2013
Central Islip, NY

31