Kernan et al v. New York State Department of Financial Services et al
Filing
61
MEMORANDUM & ORDER denying 24 Motion for Leave to File; denying 9 Motion to Dismiss for Lack of Jurisdiction. For the foregoing reasons, the Complaint is DISMISSED WITHOUT PREJUDICE and the State Defendants' motion to dismiss and Plainti ffs' motion for leave to file an amended complaint are consequently DENIED AS MOOT. The Court GRANTS Plaintiffs leave to file an amended complaint that provides a short and plain statement of their claims and that includes only simple, direct, a nd concise allegations within thirty (30) days of this Memorandum and Order. Plaintiffs are warned that if the amended complaint does not comply with Rule 8, the Court will dismiss this action with prejudice. The Clerk of the Court is directed to mail a copy of this Memorandum and Order to pro se Plaintiff Kernan. So Ordered by Judge Joanna Seybert on 3/31/2014. C/M; C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
JAMES M. KERNAN, individually and on
behalf of all those independent
entrepreneurs, small and disadvantaged
business enterprises, suffering
serious, permanent and irreparable
economic and social injury and damage
as a result of actions by the
Defendants to limit the effectiveness
of Plaintiffs James M. Kernan, Oriska
Corporation and Oriska Insurance
Company to support the efforts of
independent entrepreneurs, small and
disadvantaged business enterprises to
create jobs for the disadvantaged which
can lead to rewarding careers providing
reliable and steady income and benefits
for their workers and their families,
ORISKA CORPORATION, and ORISKA
INSURANCE COMPANY,
Plaintiffs,
-againstNEW YORK STATE DEPARTMENT OF FINANCIAL
SERVICES f/k/a New York State Department
of Insurance; BENJAMIN M. LAWSKY,
Superintendent; CHARLES “BUZZ” SAWYER,
Assistant Chief Investigator; MICHAEL
A. MARK, Investigator; JAMES MASTERSON,
Supervising Insurance Examiner, Property
Bureau; MICHAEL V. IMBRIANO, Principal
Insurance Examiner; EUGENE BENGER, Esq.,
Deputy General Counsel, Insurance; JOHN
G. ROTHBLATT, Esq., former Principal
Counsel; BETH COHAN, Esq., Associate
Attorney; JEFFREY A. STONEHILL, Esq.,
Hearing Officer; HOWARD D. MILLS,
III, former Superintendent; EDWARD
R. BROTON, Assistant United States
Attorney; and the UNITED STATES OF
AMERICA, as their several interests
may appear,
Defendants.
----------------------------------------X
MEMORANDUM & ORDER
13-CV-3196(JS)(ARL)
APPEARANCES
For Plaintiffs
James M. Kernan:
James M. Kernan, pro se
2 South End Avenue
New York, NY 10280
Oriska Corp. and
Oriska Ins. Co.:
Antonio Faga, Esq.
23 Oxford Road
New Hartford, NY 13424
For Defendants
State Defendants:
Ralph Pernick, Esq.
New York State Attorney General
200 Old Country Road, Suite 240
Mineola, NY 11501
Federal Defendants:
Thomas McFarland, Esq.
United States Attorney’s Office
Eastern District of New York
610 Federal Plaza
Central Islip, NY 11722
SEYBERT, District Judge:
Presently before the Court are (1) defendants New York
State
Department
of
Financial
Services,
Benjamin
M.
Lawsky,
Charles “Buzz” Sawyer, Michael A. Mark, James Masterson, Michael
V. Imbriano, Eugene Benger, Jon G. Rothblatt, Beth Cohen, Jeffrey
A. Stonehill, and Howard D. Mills III’s (collectively, the “State
Defendants”) motion to dismiss the Complaint pursuant to Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6) and (2) pro se
plaintiff James M. Kernan and plaintiffs Oriska Corporation and
Oriska Insurance Company’s (collectively, “Plaintiffs”) motion for
leave to file an amended complaint.
For the following reasons,
the Complaint is DISMISSED WITHOUT PREJUDICE for failure to comply
with the requirements set forth in Federal Rule of Civil Procedure
2
8 that a complaint contain a “short and plain statement of the
claim” and that each allegation “be simple, concise, and direct.”
FED. R. CIV. P. 8(a)(2), (d)(1).
The State Defendants’ motion to
dismiss the Complaint and Plaintiff’s motion for leave to file an
amended complaint are consequently DENIED AS MOOT.
DISCUSSION
In a 115-page, 467-paragraph Complaint, Plaintiffs bring
this action against thirteen defendants alleging numerous claims
pursuant to various federal statutes and state laws.
Defendants have moved to dismiss the Complaint.
The State
(Docket Entry 9.)
Plaintiffs have sought leave to file a 152-page, 665-paragraph
amended complaint including approximately 2,000 pages of exhibits.
(Docket Entries 17, 24, 30).
According to Plaintiffs, they seek
leave to file this prolix pleading “in order to promote judicial
economy and obviate the need to burden the Court with considering
a motion to dismiss . . . .”
Federal
Rule
of
(Pls.’ Br., Docket Entry 24, at 3.)
Civil
Procedure
8
provides
that
a
complaint shall contain “a short and plain statement of the claim
showing that the pleader is entitled to relief,” FED. R. CIV.
P. 8(a)(2), and that each allegation “be simple, concise, and
direct,” FED. R. CIV. P. 8(d)(1).
“The statement should be short
because unnecessary prolixity in a pleading places an unjustified
burden on the court and the party who must respond to it because
they are forced to select the relevant material from a mass of
verbiage.”
Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988)
3
(internal quotation marks and citation omitted). “When a complaint
does not comply with the requirement that it be short and plain,
the court has the power, on its own initiative or in response to
a
motion
by
the
defendant,
to
strike
any
portions
that
redundant or immaterial, or to dismiss the complaint.”
are
Id.
(internal citation omitted) (affirming dismissal under Rule 8 of
complaint that “span[ned] 15 single-spaced pages” and “contain[ed]
a
surfeit
of
detail”
with
“explicit
descriptions
of
20–odd
defendants, their official positions, and their roles in the
alleged denials of [the plaintiff’s] rights”); see Blakely v.
Wells, 209 F. App’x 18, 20 (2d Cir. 2006) (stating that “[t]he
District Court acted within the bounds of permissible discretion
in dismissing the second amended complaint for noncompliance with
Rule 8(a)” because “[t]he pleading, which spanned 57 pages and
contained 597 numbered paragraphs, was far from short or plain”);
Rosa v. Goord, 29 F. App’x 735, 735 (2d Cir. 2002) (affirming
dismissal of complaint and amended filings that “remained prolix
and not susceptible of a responsive pleading” (internal quotation
marks omitted)).
The Court finds that Plaintiffs’ Complaint fails to
comply with Rule 8, as it is far from “short and plain” and it is
not “simple, concise and direct.”
As noted above, the Complaint
spans 115 pages and contains 467 paragraphs.
It purports to state
ten different claims against thirteen defendants and includes a
wealth of extraneous information.
4
Although Plaintiffs claim that
their proposed amended complaint will “promote judicial economy,”
the proposed pleading seeks to add 198 additional paragraphs,
thirteen
exhibits.
new
defendants,
and
approximately
2,000
pages
of
Such a voluminous filing will not cure Plaintiffs’
failure to comply with Rule 8.
Accordingly, the Complaint is
DISMISSED WITHOUT PREJUDICE, and the State Defendants’ motion to
dismiss and Plaintiffs’ motion for leave to file an amended
complaint are consequently DENIED AS MOOT.
CONCLUSION
For the foregoing reasons, the Complaint is DISMISSED
WITHOUT PREJUDICE and the State Defendants’ motion to dismiss and
Plaintiffs’ motion for leave to file an amended complaint are
consequently DENIED AS MOOT.
The Court GRANTS Plaintiffs leave to
file an amended complaint that provides a short and plain statement
of their claims and that includes only simple, direct, and concise
allegations within thirty (30) days of this Memorandum and Order.
Plaintiffs are warned that if the amended complaint does not comply
with Rule 8, the Court will dismiss this action with prejudice.
The Clerk of the Court is directed to mail a copy of
this Memorandum and Order to pro se Plaintiff Kernan.
SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:
March
31 , 2014
Central Islip, NY
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?