Monzert et al v. United Security Inc. et al

Filing 36

MEMORANDUM AND ORDER granting 33 Motion to Dismiss for Failure to State a Claim. For the reasons stated herein, Defendant USI's motion to dismiss is granted, without prejudice. (Ordered by Judge Leonard D. Wexler on 6/21/2016.) (Fagan, Linda)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

----------------------------------------------------------)(
TIMOTHY MONZERT, STEVEN GASSERT,
and WAYNE PINSENT,
Plaintiffs,
-againstUNITED SECRUTIY, INC., and SAUL M. ROOND
in his official capacity and individual capacity,
Defendants.

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APPEARANCES:

MEMORANDUM AND ORDER

cv 14-3274
(Wexler, J.)

FILED
IN CLERK'S OFFICE
U S DISTRICT COURT E D N y

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JUN

21 ZOt6

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LONG ISLAND OFFICE

LAW OFFICE OF STEVEN A. MORELLI, P.C.
By:
Steven A. Morelli, Esq.
Mindy Kallus, Esq.
990 Stewart Avenue
Garden City, NY 11530
Attorneys for Plaintiffs
COLES, BALDWIN & KAISER, LLP
By:
John B. Kaiser, Esq.
1 Eliot Place, Third Floor
Fairfield, CT 06824
Attorneys for Defendant United Security, Inc.
WE)(LER, District Judge:
Before the Court is the motion of Defendant United Security, Inc. ("USI" or "Defendant")
to dismiss the complaint of plaintiffs Timothy Monzert, Steven Gassert and Wayne Pinsent
("Plaintiffs"). Plaintiffs'complaint alleges three claims: the first two are styled as Bivens claims
against defendant Saul M. Roond ("Roond") for First Amendment Retaliation and equal
protections violations; the third claim is against the moving defendant, USI for breach of
contract.
Plaintiffs were employees of Defendant USI, which, according to the complaint, provided

security services to the United States Government. The gravamen of Plaintiffs' claims is that
Roond, who was the Area Commander for the Federal Protective Service, which received the
security services provided by USI, violated Plaintiffs' constitutional rights under the First and
Fourteenth Amendments, and USI breached its contract with Plaintiffs by violating terms of the
employee handbook, which Plaintiffs allege constituted a contract.
It is undisputed that Defendant Roond has not appeared in this case. 1 Defendant USI

moves to dismiss pursuant to the Federal Rules of Civil Procedure ("Fed.R.Civ.P."), Rule
12(b)(l), arguing that since the federal claims against Defendant Roond will not be adjudicated
since he has not appeared, there is no basis for federal jurisdiction, and the Court should decline
to exercise supplement jurisdiction over the state claim (for breach of contract) that has been
lodged against US I. In the alternative, USI argues the breach of contract claim should be
dismissed under Rule 12 (b)(6), since there is no basis for Plaintiffs (employees) to assert a
breach of contract against USI since there is no contractual relationship between them, either
under law since Plaintiffs were "at-will" employees, or because the terms in the employee
handbook do not create a contract.
The Court agrees with Defendant USI that continuing federal jurisdiction here is
improper. Since Defendant Roond has not appeared in this case and the only federal claims 2 are
expressly alleged against him alone, there are no federal claims for this Court to adjudicate, and

1

The Court finds it unnecessary to take a position on whether Roond was properly served,
since there is no dispute he has not appeared, and indeed Plaintiffs raise the prospect of seeking a
default against him in their opposition papers. See Plaintiffs' Memorandum in Opposition ("Pl.
Mem."), at 8.
2

Plaintiff appears to argue in their opposition papers that they also allege a conspiracy
claim against USI (see Pl. Mem., at 7), but that claim is not pled in the complaint.
-2-

the Court declines to exercise supplemental jurisdiction pursuant to 28 U.S.C. § 1367(c) over the
state law claim that continues against Defendant USI. It is clear to this Court that the state law
claim, as the only remaining claim, clearly "predominates" over the federal claim that will not be
adjudicated. See 28 U.S.C. § 1367(c)(2). Therefore, Defendant USI's motion to dismiss is
granted, without prejudice. 3
CONCLUSION
For the reasons stated above, Defendant USI's motion to dismiss is granted, without
prejudice.
SO ORDERED.

/J

A

s/ Leonard D. Wexler

V{EONARD D. WEXLER

/
UNITED STATES DISTRICT JUDGE

Dated: Central Islip, New York
June'Z\ 2016

3

Since the Court declines to exercise supplemental jurisdiction, it declines to comment or
rule on the merits of Defendant's argument that Plaintiffs have failed to state a breach of contract
claim.
-3-