Vested Business Brokers Ltd. v. County of Suffolk et al

Filing 48

ORDER granting DE 31 , 34 , and 38 , Motions to Dismiss for Failure to State a Claim. For the reasons set forth in the attached Order, the Court hereby grants the motions to dismiss the Complaint for failure to state a claim in their entirety with prejudice. Ordered by Magistrate Judge Steven I. Locke on 9/15/2017. (Budhu, Ryan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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VESTED BUSINESS BROKERS, LTD,
Plaintiff,
-against-

MEMORANDUM AND ORDER
16-CV-4945 (JMA)(SIL)

COUNTY OF SUFFOLK, SUFFOLK COUNTY
POLICE DEPARTMENT, DETECTIVE
THOMAS GABRIELE (Shield # 1203),
RICHARD DORMER, ALEXANDER J. CARO,
KIERAN RODGERS, BRIDGE BUSINESS &
PROPERTY BROKERS, INC., JOSEPH
HOLSTEIN, ZYGMUND MARSZALEK,
ARROW SECURITY, INC., JOHN AND JANE
DOES 1-10
Defendants.
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LOCKE, Magistrate Judge:
Presently before the Court are three motions to dismiss Plaintiff Vested
Business Brokers, LTD’s (“VBB” or “Plaintiff”) Complaint (“Compl.”) filed by:
(1) Defendants Alexander J. Caro (“Caro”), Bridge Business & Property Brokers, Inc.
(“Bridge”), and Arrow Security, Inc. (“Arrow”); (2) Zygmund Marszalek (“Marszalek”)
(collectively “Private Defendants”); and (3) the County of Suffolk (“Suffolk County”),
the Suffolk County Police Department (“SCPD”), Detective Thomas Gabriele (“Det.
Gabriele”), and Richard Dormer (“Dormer”) (collectively “County Defendants”).1 See

Pro se Defendant Joseph Holstein interposed an Answer, see DE [23], but did not file a motion to
dismiss. Defendant Kieran Rodgers has failed to respond or otherwise appear in this matter.
Nevertheless, because the federal law claims that establish subject matter jurisdiction are dismissed
for the reasons set forth below, and the Court declines to exercise supplemental jurisdiction over the
state law claims against Holstein and Rodgers, their failure to file a motion to dismiss does not save
any of Plaintiff’s claims in this Court.
1

1

motion to dismiss (“Caro Motion”), Docket Entry (“DE”) [31]; motion to dismiss
(“Marszalek Motion”), DE [34], motion to dismiss (“County Motion”), DE [38]; see also
Compl., DE [1]. On April 14, 2017, Judge Azrack referred these motions to this Court
for a Report and Recommendation as to whether they should be granted. See DE [41].
On April 26, 2017, pursuant to 28 U.S.C. § 636(c), the parties filed an executed Notice,
Consent, and Reference of a Civil Action to a Magistrate Judge, indicating their
intention to have this Court “conduct all proceedings and order the entry of a final
judgment” on the motions, which Judge Azrack So Ordered on the same date. See DE
[41, 42]. For the reasons set forth herein, the motions to dismiss are granted in their
entirety with prejudice.
I.

STATEMENT OF RELEVANT FACTS
The following facts, set forth in the Complaint and the attached exhibits, are

presumed true for purposes of Defendants’ motions.
The gravamen of Plaintiff’s claims are that, due to a conspiracy amongst the
Private and County Defendants, the County Defendants failed to properly
investigate and prosecute the Private Defendants for crimes committed against
VBB.

See Compl. ¶ 43.

VBB is a web-based business designed to allow

independent contractor-brokers to arrange the purchase and sale of other
businesses. See id. ¶¶ 8, 21. Plaintiff allegedly created a proprietary system called
“Broker Net” which contains more than 225,000 pre-qualified, registered business
buyers as well as the financial details of approximately 12,000 businesses for sale.
Id. ¶ 21. In order to safeguard financial details, VBB requires all of its employees

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and independent brokers to execute non-disclosure and restrictive covenant
agreements prior to receiving a password to enter the Broker Net system. Id. ¶ 24.
On or about January 16, 2004, VBB and Defendant Kieran Rodgers
(“Rodgers”) entered into an employment agreement and executed a non-disclosure
and restrictive covenant agreement. Id. ¶ 25. Around the same time, Defendant
Caro founded Bridge Business and Property Brokers, Inc. and “decided to build
Bridge’s business by stealing confidential information, including business listings,
training information and other processes and procedures, and listing pitches and
sales techniques from VBB.” Id. ¶ 27. To that end, in 2006, Caro approached
Rodgers and asked him to steal leads and other proprietary information from
Plaintiff, and for a confidential VBB log-in username and password. Id. ¶¶ 29, 31.
According to the Complaint, Defendants Joseph Holstein (“Holstein”) and
Marszalek, also worked with Caro and Rodgers to steal listings and other
confidential information from VBB.

See id.

Sometime thereafter, Plaintiff

allegedly confronted Rodgers about his conduct and he confessed. See id. ¶ 37.
Subsequently, VBB filed complaints with, and turned over evidence to, the SCPD
about the Private Defendants’ alleged crimes. Id. ¶ 39. The SCPD, however, failed
to make any arrests, and Plaintiff’s complaint was closed in November 2015.
Id. ¶ 42.
II.

PROCEDURAL HISTORY
As set forth above, VBB filed its Complaint on September 5, 2016. See DE [1].

The Complaint seeks money damages and equitable relief for: 1) violations of the

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Fourteenth Amendment of the U.S. Constitution made pursuant to 42 U.S.C. § 1983;
2) conspiracy claims made pursuant to 42 U.S.C. §§ 1985(3) and 1986; 3) breach of
contract; 4) tortious interference with contract; 5) misappropriation; and
6) an injunction against Rodgers, Caro, and Bridge.

See generally Compl.

In

response, on February 13th, 16th, and 17th, 2017, Caro, Bridge, and Arrow, as well as
Marszalek and the County Defendants, respectively, moved pursuant to Federal Rule
of Civil Procedure (“Fed. R. Civ. P.”) 12(b)(6) to dismiss. See DE [31, 34, 38]. On
March 16, 2017, Judge Azrack referred the motions to this Court for Report and
Recommendation. See DE [41]. On April 26, 2017, the motions to dismiss were
referred to this Court to conduct all proceedings and enter a final order on the motions
in accordance with 28 U.S.C. § 636(c). See DE [47].
III.

LEGAL STANDARD
A. Fed. R. Civ. P. 12(b)(6)
To survive a motion to dismiss pursuant to Rule 12(b)(6), a complaint must set

forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the Court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009). But, a pleading
“that offers only ‘labels and conclusions’ or ‘a formulaic recitation of the elements of
a cause of action will not do.’” Id. (quoting Twombly, 550 U.S. at 555, 127 S. Ct. at

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1965). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further
factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557, 127 S. Ct. at 1966).
In reviewing a motion to dismiss, the Court must accept the factual allegations
set forth in the complaint as true and draw all reasonable inferences in favor of the
non-moving party. See LaFaro v. New York Cardiothoracic Grp., PLLC, 570 F.3d 471,
475 (2d Cir. 2009). Notwithstanding, “threadbare recitals of the elements of a cause
of action” that are supported by “conclusory” statements and mere speculation are
inadequate and subject to dismissal. See Chavis v. Chappius, 618 F.3d 162, 170 (2d
Cir. 2010) (internal quotation and citation omitted).
In deciding a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the court
may consider:
(1) the factual allegations in the complaint, which are
accepted as true; (2) documents attached to the complaint
as an exhibit or incorporated . . . by reference; (3) matters
of which judicial notice may be taken; and (4) documents
upon whose terms and effect the complaint relies
heavily, i.e., documents that are “integral” to the
complaint.
Calcutti v. SBU, Inc., 273 F. Supp. 2d 488, 498 (S.D.N.Y. 2003) (internal citation
omitted); see also Miotto v. Yonkers Pub. Sch., 534 F. Supp. 2d 422, 425 (S.D.N.Y.
2008) (“[I]n assessing the legal sufficiency of a claim, the court may consider only the
facts alleged in the complaint, and any document attached as an exhibit to the
complaint or incorporated in it by reference.”).

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IV.

DISCUSSION
Applying the standards outlined above, and for the reasons set forth herein,

the Court grants Defendants’ respective motions to dismiss in their entirety with
prejudice.

Plaintiff asserts several federal causes of action made pursuant to

42 U.S.C. §§ 1983, 1985(3), and 1986 based upon alleged violations of its rights under
the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the
United States Constitution. Initially, the Court considers the Private and County
Defendants’ argument that these claims are barred by the applicable statutes of
limitations and, alternatively, fail to state a claim upon which relief can be granted.
The Court then considers the remaining state law claims.
A. Conversion to a Motion for Summary Judgment
As a preliminary matter, the Court considers whether the affidavits annexed
to the County Defendants’ motion and Plaintiff’s opposition papers converts that
motion to one for summary judgment. On a 12(b)(6) motion, “[i]f matters outside the
pleadings are presented to the court, a court may convert the motion to dismiss into
a summary judgment motion.”

Vailette v. Lindsay, No. 11-CV-3610, 2014 WL

4101513, at *3 (E.D.N.Y. Aug. 18, 2014); see also Friedl v. City of N.Y., 210 F.3d 79,
83 (2d Cir. 2000) (“When matters outside the pleadings are presented in response to
a 12(b)(6) motion, a district court must either exclude the additional material and
decide the motion on the complaint alone or convert the motion to one for summary
judgment under Fed. R. Civ. P. 56 and afford all parties the opportunity to present
supporting material.”) (internal quotation marks and alterations omitted). Although

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the court “must ordinarily give notice to the parties” before conversion, “a party ‘is
deemed to have notice that a motion may be converted ... if that party should
reasonably have recognized the possibility that such a conversion would occur.’ “
Almonte v. Pub. Storage Inc., No. 11 CIV. 1404, 2011 WL 3902997, at *1 (S.D.N.Y.
Sept. 2, 2011) (quoting Sira v. Morton, 380 F.3d 57, 68 (2d Cir. 2004)); see also In re
G. & A. Books, Inc., 770 F.2d 288, 295 (2d Cir. 1985) (“The essential inquiry is whether
[the party] should reasonably have recognized the possibility that the motion might
be converted into one for summary judgment or was taken by surprise and deprived
of a reasonable opportunity to meet facts outside the pleadings.”).
Whether to convert the motion is in the District Court’s discretion. See Liberty
Mut. Ins. Co. v. N. Picco & Sons Contracting Co., No. 05 CIV. 217, 2008 WL 190310,
at *3 (S.D.N.Y. Jan. 16, 2008) (“It is within the discretion of this Court to convert a
motion filed under Rule 12(b)(6) into a motion seeking summary judgment when
matters outside the pleadings have been presented and accepted by the Court, and
where all parties have been given a reasonable opportunity to present materials
pertinent to the motion’s disposition.”) (internal quotation marks omitted); Scope, Inc.
v. Pataki, 386 F. Supp. 2d 184, 190 (W.D.N.Y. 2005) (“The Court determines in its
discretion, however, not to convert these motions on the pleadings to ones for
summary judgment at this time.”); Staveley v. St. Charles Hosp., 173 F.R.D. 49, 51
(E.D.N.Y. 1997) (“In its discretion and upon notice to the parties, a court may consider
materials outside the pleadings. If it does so, and notice is given to the parties, the
motion for judgment on the pleadings is treated as one for summary judgment.”). In

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exercising this discretion, Courts “look[] to the substance of the motion,” Ansonia
Tenants’ Coal., Inc. v. Ansonia Assocs., 163 F.R.D. 468, 470 (S.D.N.Y. 1995), as “[t]he
element that triggers the conversion . . . is a challenge to the sufficiency of the
pleader’s claim supported by extra-pleading material.” Nat’l Cement Co. v. Mead
Corp., 80 F.R.D. 703, 704–05 (S.D.N.Y. 1978) (citing 9 Wright & Miller, Federal
Practice and Procedure, § 1366, at 676)).
Here, the Court declines to exercise its discretion to convert this motion into
one for summary judgment. The County Defendants’ and Plaintiff’s extra-pleading
material consists of two affidavits by Robert Creighton (“Creighton”), a non-party
former Chief Investigator of the Suffolk County District Attorney’s Office who
initially contacted the District Attorney’s Office on behalf of VBB, and an affidavit by
Frank Shea (“Shea”), a non-party private investigator contacted by Creighton about
VBB’s claims. See Creighton Affidavit in Support, DE [39-2]; Creighton Affidavit in
Opposition; DE [35],2 Ex. B; Frank Shea Affidavit in Opposition, DE [35], Ex. A.
Creighton’s and Shea’s affidavits have no impact on the Court’s analysis however.
See, e.g., FragranceNet.com, Inc. v. Les Parfums, Inc., 672 F. Supp. 2d 328, 334
(E.D.N.Y. 2009) (declining conversion where “there is nothing for the Court to
consider, in terms of evidence from the defendants, if it were to convert the motion to
dismiss into a summary judgment motion.”).

Moreover, the County Defendants

neither include a Rule 56.1 statement nor advocate for summary judgment in their

In response to the Creighton Affidavit in Support, submitted by the County Defendants, VBB
submitted the Creighton Affidavit in Opposition, of which the latter clarifies and expands on
information propounded in the former.
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brief. See County Defendants’ Memorandum of Law (“County Def.’s Mem. Law”),
DE [38]. For these reasons, the Court declines to convert the County Defendants’
motion to dismiss to a motion for summary judgment. Accordingly, the ignores the
Creighton and Shea Affidavits, as well as facts in the County Defendants’ motion
papers and Plaintiff’s Opposition Papers not set forth in the Complaint, in
determining this motion. See Patell Indus. Mach. Co. v. Toyoda Mach. U.S.A., Inc.,
No. 93-CV-1572, 1997 WL 10972, at *2 (N.D.N.Y. Jan. 9, 1997) (“The Court, however,
declines to convert Defendant’s motion to a motion for summary judgment, and
therefore will not consider Plaintiff’s affidavit in ruling upon the merits of
Defendant’s Rule 12(c) motion.”).
B. Timeliness of VBB’s Federal Law Claims
Initially, the Private and County Defendants move to dismiss Plaintiff’s
various federal law claims on timeliness grounds. In response, VBB argues that its
claims are timely as the applicable statutes of limitations are tolled by the doctrines
of continuing harm and equitable estoppel.
i. VBB’s 42 U.S.C. §§ 1983, 1985(3), and 1986 claims
Plaintiff’s Section 1983, 1985(3), and 1986 claims are untimely. While Section
1983 does not contain a statute of limitations provision, the Supreme Court has held
that courts entertaining claims brought under 42 U.S.C § 1983 should borrow the
state statute of limitations governing general personal injury actions. See Owens v.
Okure, 488 U.S. 235, 249, 109 S. Ct. 573, 582 (1989). New York State has a threeyear statute of limitations governing such claims. See CPLR § 214(5). Accordingly,
the Supreme Court has held that the statute of limitations for claims brought under
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42 U.S.C. § 1983 in New York State is three years. See Owens, 488 U.S. at 249, 109
S. Ct. at 582; Curto v. Edmundson, 392 F.3d 502, 504 (2d Cir. 2004) (finding N.Y.
C.P.L.R. 214(5), which sets the statute of limitations for personal injury claims,
supplies the limitations period for a civil rights claim brought under 42 U.S.C. § 1983
in New York). “[A] section 1983 cause of action accrues . . . when the plaintiff knows
or has reason to know of the injury which is the basis of his action.” Pearl v. City of
Long Beach, 296 F.3d 76, 80 (2d Cir. 2002). The statute of limitations governing
actions brought under 42 U.S.C. § 1985 is also three years. See Cornwell v. Robinson,
23 F.3d 694, 703 (2d Cir. 1994). A cause of action also accrues under Section 1985
“once the plaintiff knows or has reason to know of the injury which is the basis of his
action.” Id. (internal quotation marks omitted). In contrast to Sections 1983 and
1985, a claim under Section 1986 must be commenced within one year after the cause
of action has accrued. See 42 U.S.C. § 1986.
Although VBB fails to allege when it initially filed a complaint with the SCPD,
the events that form the basis for its Sections 1983, 1985(3), and 1986 claims occurred
between 2007 and 2008. See Compl. ¶¶ 35-41. Plaintiff does not dispute that it
gained knowledge of the allegedly unlawful activity at this time. Accordingly, the
three-year limitations period began no later than 2008, and ended in 2011. As a
result, the Complaint’s federal law claims, which were filed on September 5, 2016,
over eight years later, are time-barred.
ii. The Continuing Violation Doctrine
Instead, Plaintiff argues that its federal law claims are saved by the continuing
violation doctrine.

The Court disagrees.
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Pursuant to the continuing violation

doctrine, “[w]here a plaintiff can demonstrate an ongoing or continuing violation of
his federally protected rights, the plaintiff is entitled to bring suit challenging all
conduct that was part of the violation, even conduct that occurred outside the
limitations period.” Cornwell, 23 F.3d at 704. Generally, under the continuingviolation doctrine, where there is an “ongoing discriminatory policy or practice,” the
accrual time for the statute of limitations may be delayed until the last act in
furtherance of the policy.”

Harris v. City of New York, 186 F.3d 243, 248

(2d Cir. 1999). “[C]ourts of this circuit consistently have looked unfavorably on
continuing violation arguments . . . and have applied the theory only under
compelling circumstances.” Blankman v. Cnty. of Nassau, 819 F. Supp. 198, 207
(E.D.N.Y. 1993). Compelling circumstances have been found “where the unlawful
conduct takes place over a period of time, making it difficult to pinpoint the exact day
the violation occurred; where there is an express, openly espoused policy [that is]
alleged to be discriminatory; or where there is a pattern of covert conduct such that
the plaintiff only belatedly recognizes its unlawfulness.” Ruane v. Cty. of Suffolk, 923
F. Supp. 2d 454, 460 (E.D.N.Y. 2013) (internal quotations and citations omitted).
The Second Circuit has held that “a continuing violation cannot be established merely
because the claimant continues to feel the effects of a time-barred discriminatory act.”
Harris, 186 F.3d at 250. Instead, to trigger the continuing violation doctrine, a
plaintiff must also allege some non-time-barred acts taken in furtherance of a
discriminatory policy. See id. Moreover, the Second Circuit has made clear that
“[c]haracterizing defendants’ separate wrongful acts as having been committed in

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furtherance of a conspiracy or as a series of interlocking events does not postpone
accrual of claims based on individual wrongful acts.” Singleton, 632 F.2d at 192
(internal quotations omitted). “To permit [a plaintiff] to wait and toll the running of
the statute simply by asserting that a series of separate wrongs were committed
pursuant to a conspiracy would be to enable [plaintiff] to defeat the purpose of the
time-bar, which is to preclude the resuscitation of stale claims.” Id.
Here, VBB’s allegations are insufficient to establish a continuing violation.
Plaintiff argues that the “SCPD committed a continuing wrong up until November
2015 and that therefore, the statute of limitations runs from that date.” VBB’s
Combined Memorandum of Law in Opposition to the Defendants’ Motion to Dismiss
(“Pl.’s Opp.”) at 10. Plaintiff also argues that it refrained from commencing a civil
action against the Private Defendants on the “belief that [the Private Defendants]
would be arrested and prosecuted.” Id. VBB, however, does not dispute that it had
knowledge of the requisite facts underlying its claims when it made its initial
complaint to the SCPD sometime in 2007 or 2008. Further, Plaintiff fails to allege
what constitutional wrongs were committed by the Private and County Defendants
in the period between 2008 and September 2016, or identify any compelling
circumstances that would warrant the application of the continuing violation
doctrine.

Finally, VBB’s mistaken belief that the Private Defendants would be

arrested does not constitute a continued wrongdoing; it is, instead, a continued effect
of the time-barred allegedly unlawful acts.

Accordingly, VBB has failed to

demonstrate that tolling the statute of limitations under the continuing violation

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doctrine is warranted. Moreover, the Court recognizes that the weight of authority
in the Second Circuit appears to hold that the continuing-violation doctrine may not
be applied to Section 1983 civil rights claims that do not involve allegations of
discrimination. See, e.g., Koehl v. Greene, No. 06-CV-0478, 2007 WL 2846905, at *8
(N.D.N.Y. Sept. 26, 2007) (collecting cases).

Accordingly, even if the continuing

violation doctrine might otherwise be applicable, it would not save Plaintiff’s Section
1983 claims, which do not involve allegations of unlawful discrimination.
iii. The Equitable Estoppel Doctrine
VBB also fails to demonstrate a basis for tolling the statute of limitations under
the doctrine of equitable estoppel. “The doctrine of equitable estoppel applies where
it would be unjust to allow a defendant to assert a statute of limitations defense . . .
[such as] where a plaintiff is induced by fraud, misrepresentations or deception to
refrain from filing a timely action.” Good Luck Prod. Co. v. Crystal Cove Seafood
Corp., 60 F. Supp. 3d 365, 373 (E.D.N.Y. 2014) (quoting Twersky v. Yeshiva Univ.,
993 F. Supp. 2d 429, 442 (S.D.N.Y. 2014) (internal quotation marks and citations
omitted)).

“To invoke equitable estoppel, a plaintiff must show that:

(1) the

defendant made a definite misrepresentation of fact, and had reason to believe that
the plaintiff would rely on it; and (2) the plaintiff reasonably relied on that
misrepresentation

to

his

detriment.”

Tardd

v.

Brookhaven

Nat’l

Lab.,

407 F. Supp. 2d 404, 416 (E.D.N.Y. 2006) (internal quotation marks and citation
omitted). “Typically, the doctrine is invoked in cases in which [a defendant] has made
misrepresentations concerning the statute of limitations or lulled the plaintiff into

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believing that it was not necessary for him to commence litigation.” Id. (internal
quotation marks and citation omitted).
VBB’s equitable estoppel argument fails as the Complaint is devoid of any
allegations of fraud, misrepresentation, or deception that prevented the timely
commencement of the instant action. Plaintiff argues that it was “led by the SCPD
to believe that its investigation was active and ongoing and that the wrongdoers
would eventually be brought to justice, thereby inducing [P]laintiff to defer from
commencing a civil action.” See Pl.’s Opp. at 9. However, VBB fails to describe any
statements or acts committed by the Private or County Defendants that affirmatively
concealed any facts or prevented the timely commencement of a civil action. Instead,
as set forth above, it is undisputed that, since 2008, VBB had knowledge of the
requisite facts underlying its claims. Plaintiff, therefore, has failed to demonstrate
that it was prevented in “some extraordinary way” from exercising its rights in a civil
action. See Pearl v. City of Long Beach, 296 F.3d 76, 85 (2d Cir. 2002). As a result,
Plaintiff is unable to invoke the doctrine of equitable estoppel as a means of tolling
the applicable statutes of limitations, and its Sections 1983, 1985, and 1986 claims
are untimely. Accordingly, Defendants’ motions to dismiss VBB’s federal claims as
time-barred are granted.
C. VBB’s 42 U.S.C. § 1983 Claims
Alternatively, VBB’s Complaint also fails to plausibly state a cause of action
pursuant to Section 1983. In the Complaint, Plaintiff asserts multiple causes of
action under 42 U.S.C. § 1983 against the County Defendants for: (1) violations of

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the Equal Protection Clause of the Fourteenth Amendment regarding its “class of
one” claim; (2) violations of the Due Process Clause of the Fourteenth Amendment;
and (3) municipal liability based on the SCPD’s policy and practice of improperly
investigating alleged crimes. See Compl. The Court considers each argument in turn.
i. 42 U.S.C. § 1983 Generally
42 U.S.C. § 1983 provides, in relevant part, that:
Every 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. Although Section 1983 itself does not create substantive rights, it
does provide “a procedure for redress for the deprivation of rights established
elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993). To prevail on a claim
arising under 42 U.S.C. § 1983, a plaintiff must demonstrate: “(1) the deprivation of
any rights, privileges, or immunities secured by the Constitution and its laws; (2) by
a person acting under the color of state law.” Hawkins v. Nassau Cty. Corr. Facility,
781 F. Supp. 2d 107, 111 (E.D.N.Y. 2011) (citing 42 U.S.C. § 1983). Further, “it is
well-settled that ‘personal involvement of defendants in alleged constitutional
deprivations is a prerequisite to an award of damages under § 1983.’” Jones v. Nassau
County Sheriff Dep’t, 285 F. Supp. 2d 322, 325 (E.D.N.Y. 2003) (quoting McKinnon v.
Patterson, 568 F.2d 930, 934 (2d Cir. 1977)).
ii. Failure to Allege “Class of One” Equal Protection Violations

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Plaintiff has failed to adequately allege a “class of one” claim. The Equal
Protection Clause of the Fourteenth Amendment guarantees “‘[the] right to be free
from invidious discrimination in statutory classifications and other governmental
activity.’” Bernheim v. Litt, 79 F.3d 318, 323 (2d Cir. 1996) (quoting Harris v. McRae,
448 U.S. 297, 322, 100 S. Ct. 2671, 2691 (1980)). “The [Clause] requires that the
government treat all similarly situated people alike.” Harlen Assocs. v. Inc. Village
of Mineola, 273 F.3d 494, 499 (2d Cir. 2001); accord City of Cleburne, Texas v.
Cleburne Living Center, 473 U.S. 432, 105 S. Ct. 3249 (1985); Disabled American
Veterans v. United States Dep’t of Veterans Affairs, 962 F.2d 136, 141 (2d Cir. 1992).
Following the Supreme Court’s decision in Engquist v. Oregon Dep’t of Agric,
553 U.S. 591, 603, 128 S. Ct. 2146, 2154 (2008), to succeed on a “class of one” claim,
a plaintiff must allege: (1) that it was treated differently from others similarly
situated in all relevant respects; (2) that defendants had no rational basis for the
differential treatment; and (3) that the differential treatment resulted from a nondiscretionary state action. Seymour’s Boatyard, Inc. v. Town of Huntington, No. 08CV-3248, 2009 WL 1514610, at *7 (E.D.N.Y. June 1, 2009).
Initially, the plaintiff ‘‘must demonstrate that [he was] treated differently than
someone who is prima facie identical in all relevant respects.” Mangino v. Inc. Vil. of
Patchogue, 739 F. Supp.2d 205, 255 (E.D.N.Y. 2010) (quoting Neilson v. D’Angelis,
409 F.3d 100, 104 (2d Cir. 2005)). This requires a showing that the level of similarity
between the plaintiff and the person(s) with whom she compares herself is “extremely
high”-so high (1) that “no rational person could regard the circumstances of the

16

plaintiff to differ from those of a comparator to a degree that would justify the
differential treatment on the basis of a legitimate government policy,” and (2) that
“the similarity in circumstances and difference in treatment are sufficient to exclude
the possibility that the defendant acted on the basis of a mistake.” Id.
Plaintiff’s “class of one claim” fails for two reasons. Initially, the Complaint
fails to adequately allege the existence and differential treatment of any similarly
situated individuals. See Fortress Bible Church v. Feiner, 694 F.3d 208, 222 (2d Cir.
2012) (“[A] class-of-one claim requires a plaintiff to show an extremely high degree of
similarity between [himself] and [his] comparators.”) (internal citations omitted).
Here, VBB alleges that Dormer’s relationship to Caro “is the reason it was treated
differently than other victims of similar crimes in Suffolk County.” Compl. ¶ 68.
Even assuming a relationship between Dormer and Caro existed, the Complaint, does
not reference a person that was a “victim[] of similar crimes” or how he was “treated
differently” by the SCPD.

Accordingly, Plaintiff’s claim fails as it is unable to

demonstrate the existence of and differential treatment of similarly situated
individuals.
Moreover, the SCPD’s decision not to arrest the Private Defendants constitutes
a discretionary state action. See DePietro v. City of N.Y., No. 09–CV–932, 2010 WL
449096, at *10 (E.D.N.Y. Feb. 2, 2010) (“When officials act within their discretion,
basing their decision on a variety of factors that could yield different results on a case
by case basis, the rationale of Engquist precludes a class of one challenge.”). The duty
to investigate possible criminal acts involves a significant level of law enforcement

17

discretion. See Town of Castle Rock v. Gonzales, 545 U.S. 748, 760, 125 S. Ct. 2796,
2805 (2005) (observing that “[i]n each and every state there are longstanding statutes
that, by their terms, seem to preclude nonenforcement by the police” but that, “for a
number of reasons, including their legislative history, insufficient resources, and
sheer physical impossibility,” such statutes “clearly do not mean that a police officer
may not lawfully decline to make an arrest”) (alteration and internal quotation marks
omitted); Harrington v. County of Suffolk, 607 F.3d 31, 34 (2d Cir. 2010). Here, the
decision to initiate and continue an investigation, such as the one involving VBB and
the Private Defendants, inherently rests upon a variety of factors to be determined
on a case-by-case basis. See Heckler v. Chaney, 470 U.S. 821, 831–32, 105 S. Ct. 1649,
1656, (1985) (finding that the courts are ill-equipped to deal with the many variables
involved in the proper ordering of law enforcement priorities in light of finite
resources). Therefore, to the extent that VBB is challenging the SCPD’s investigation
and subsequent decision not to make an arrest, the actions and decisions taken are
discretionary, and not subject to a “class of one claim.” Accordingly, Plaintiff has
failed to state a cause of action for a violation of the Equal Protection Clause of the
Fourteenth Amendment, and the motion to dismiss this claim is granted.
iii. Failure to Allege Due Process Violations
Plaintiff has also failed to state a claim for a violation of the Due Process
Clause under the Fourteenth Amendment. While the Complaint does not assert a
separate cause of action for alleged Due Process violations, it does allege unspecified
violations of the Due Process Clause. See Compl. ¶¶ 45, 65, 80, 102. The Supreme
Court has explained that, with respect to a Due Process claim, “a benefit is not a
18

protected entitlement if government officials may grant or deny it in their discretion,”
id. at 756, 125 S. Ct. at 2804, and that a “well established tradition” of police
discretion has long existed. See id. at 760, 125 S. Ct. at 2806. Accordingly, the Court
has declared that “the benefit that a third party may receive from having someone
else arrested for a crime generally does not trigger protections under the Due Process
Clause, neither in its procedural nor in its substantive manifestations.” Id. at 768,
125 S. Ct. at 2810. Simply, there is “no constitutional right to an investigation by
government officials.” Stone v. Dep’t of Investigation of City of New York, No. 91 CIV.
2471, 1992 WL 25202, at *2 (S.D.N.Y. Feb. 4, 1992) (citing Gomez v. Whitney, 757
F.2d 1005 (9th Cir.1985)).
Applying these principles, VBB does not have a protected interest in the
County Defendants’ investigation or the arrest of the Private Defendants. As stated
above, the duty to investigate possible criminal acts involves a significant level of law
enforcement discretion. See Castle Rock, 545 U.S. at 760, 125 S. Ct. at 2805. That
discretion precludes any “legitimate claim of entitlement” to a police investigation.
See id. at 756, 125 S. Ct. at 2804 (explaining that a discretionary benefit is not a
protected entitlement); see also Roth, 408 U.S. at 577, 92 S. Ct. at 2709. Accordingly,
as VBB does not have “a legitimate claim of entitlement” to a police investigation,
and as no procedural irregularities have been alleged, it has failed to adequately
allege a violation of the Due Process Clause of the Fourteenth Amendment, and the
County Defendants’ motion to dismiss this cause of action is granted.

19

iv. Municipal Liability Arising Under 42 U.S.C. § 1983
Plaintiff’s claim of municipal liability under 42 U.S.C. § 1983 is also untenable.
A municipality may not be held liable under Section 1983 on a respondeat superior
theory of liability. Monell v. N.Y.C. Dep’t of Soc. Servs., 436 U.S. 658, 690-91, 98 S.
Ct. 2018, 2036 (1978); see also Genovese v. Town of Southampton, 921 F. Supp. 2d 8,
24 (E.D.N.Y. 2013) (“[A] municipal entity may only be held liable where the entity
itself commits a wrong; a municipality cannot be held liable under § 1983 on a
respondeat superior theory.”) (internal quotation omitted).

To state a claim for

municipal liability, a plaintiff must allege “(1) an official policy or custom that (2)
causes the plaintiff to be subjected to (3) a denial of a constitutional right.” Torraco
v. Port Authority of New York & New Jersey, 615 F.3d 129, 140 (2d Cir. 2010) (citing
Wray v. City of New York, 490 F.3d 189, 195 (2d Cir. 2007)); see Norton v. Town of
Islip, 97 F. Supp. 3d 241, 264 (E.D.N.Y. 2015), reconsideration denied, 12 CV 4463,
2016 WL 264930 (E.D.N.Y. Jan. 21, 2016), aff’d, 16-490-CV, 2017 WL 440131 (2d Cir.
Feb. 1, 2017) (citing Monell, 436 U.S. at 690-91, 98 S. Ct. at 2036; Lamont v. City of
New York, 12-CV-2478, 2014 WL 4829328, at *7 (E.D.N.Y. Sept. 29, 2014)).
Moreover, though Section 1983 does not require application of a heightened
pleading standard to allege municipal liability, a complaint does not “suffice if it
tenders naked assertion[s] devoid of further factual enhancement.” Iqbal, 556 U.S.
at 678, 129 S. Ct. at 1937 (alteration in original) (internal citations and quotation
marks omitted); see Leatherman v. Tarrant Cnty. Narcotics Intelligence &
Coordination Unit, 507 U.S. 163, 168, 113 S. Ct. 1160, 1163 (1993). Thus, Plaintiff
cannot simply allege the existence of a policy and/or custom without putting forth
20

“facts tending to support, at least circumstantially, an inference that such a
municipal policy or custom exists.” Santos, 847 F. Supp. 2d at 576 (citing Dwares v.
City of New York, 985 F.2d 94, 100 (2d Cir. 1993), overruled on other grounds by
Leatherman, 507 U.S. at 164, 113 S. Ct. at 1163-64)). Simply asserting that the
alleged violations could not have occurred unless supervisors and policy makers
tolerated them is insufficient to demonstrate the existence of such a custom unless
the assertion is clearly supported by an articulated factual context. See Missel v.
Cnty. of Monroe, 351 F. App’x. 543, 545 (2d Cir. 2009); Duncan v. City of New York,
11-CV-3826, 2012 WL 1672929, at *3 (E.D.N.Y. May 14, 2012) (holding that
“boilerplate statements” claiming that the city has a custom of making and tolerating
false arrests and of using excessive force “are insufficient to state a claim of municipal
liability under Monell”); Bradley v. City of New York, 08-CV-1106, 2009 WL 1703237,
at *3 (E.D.N.Y. June 18, 2009) (“The Complaint’s conclusory, boilerplate language –
that the City ‘fail[ed] to adequately discipline and supervise’ employees and ‘fail[ed]
to promulgate and put into effect appropriate rules and regulations applicable to the
duties and behavior’ of its employees – is insufficient to raise an inference of the
existence of a custom or policy, let alone that such a policy caused Plaintiff to be
arrested without probable cause.”) (internal citations omitted).
A policy or custom for purposes of municipal liability under Section 1983 need
not be explicit however. Sorlucco v. N.Y.C. Police Dep’t, 971 F.2d 864, 870 (2d Cir.
1992). Rather, a policy or custom may be inferred from constitutional violations that
are so “persistent and widespread” that they “practically have force of law.” Davis v.

21

City of New York, 959 F. Supp. 2d 324, 338 (S.D.N.Y. 2013). Accordingly, “a single
incident involving an employee below the policymaking level will not suffice to
support an inference of municipal custom or policy.” Brewster v. Nassau County, 349
F. Supp. 2d 540, 549 (E.D.N.Y. 2004) (quoting Vann v. City of New York, 72 F.3d 1040,
1050 (2d Cir. 1995)).
A municipality may also be held liable where it demonstrates a “manifest
failure to train, supervise or discipline [its] employees.” Mahan v. City of New York,
No. 00-CV-6645, 2005 WL 1677524, at *3 (E.D.N.Y. July 19, 2005) (citing Oklahoma
City v. Tuttle, 471 U.S. 808, 823, 105 S. Ct. 2427, 2436 (1985)). In such cases, an
inference of a municipal custom or policy may
be drawn from circumstantial proof, such as evidence that
the municipality so failed to train its employees as to
display a deliberate indifference to the constitutional
rights of those within its jurisdiction, or evidence that the
municipality had notice of but repeatedly failed to make
any meaningful investigation into charges that its agents
were violating citizens’ constitutional rights.
DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir. 1998); see also Batista v. Rodriguez, 702 F.2d
393, 397 (2d Cir. 1983) (“We have held that municipal inaction such as the persistent
failure to discipline subordinates who violate civil rights could give rise to an
inference of an unlawful municipal policy or ratification of unconstitutional conduct
within the meaning of Monell.”). However, “[o]nly where a failure . . . reflects a
deliberate or conscious choice by a municipality . . . can a city be liable for such a
failure under § 1983.” City of Canton v. Harris, 489 U.S. 378, 389, 109 S. Ct. 1197,
1205 (1989); see also Triano v. Town of Harrison, 895 F. Supp. 2d 526, 538 (S.D.N.Y.
2012) (“A municipality may be liable for the failure to supervise or discipline its
22

employees only where the need to act is so obvious, and the inadequacy of the current
practices so likely to result in a deprivation of federal rights, that the municipality or
official can be found deliberately indifferent to the need.”) (internal quotation
omitted).
Applying these standards, VBB has failed to state a claim for municipal
liability under Section 1983. As to municipal liability, Plaintiff alleges that the SCPD
has adopted: (1) careless and reckless policies, customs, or practices, that include,
among other violations, a policy for stalling and impeding criminal investigations; (2)
a policy of refusing to remove conflicted police officers when required; (3) a policy of
permitting its officers to protect individuals who commit crimes with whom they are
connected in an effort to shield such individuals from prosecution; (4) a policy of
permitting its officers to intentionally manipulate evidence and withhold
documentation in an effort to protect individuals who commit crimes and with whom
they are connected in an effort to shield such individuals from prosecution; and (6) a
policy of failing to properly discipline its police officers for their wrongdoing, improper
investigation techniques and other violations. Plaintiff, however, fails to state any
facts that support the allegations that the SCPD has adopted and implemented any
of the above-mentioned policies. See Zahra v. Town of Southhold, 48 F.3d 674, 685
(2d Cir. 1995) (“[A]ssertion[s] . . . that a municipality has such a custom or policy is
insufficient in the absence of allegations of fact tending to support, at least
circumstantially, such an inference.”). Instead, it appears that VBB attempts to
impermissibly infer a policy from the alleged violation of its own civil rights.

23

See Anderson v. City of New York, 657 F. Supp. 1571, 1574 (S.D.N.Y. 1987) (“Plaintiff
cannot infer a policy from the alleged violation of his own civil rights.”). Therefore,
at most, Plaintiff has identified a single alleged incident which is insufficient to state
a claim for municipal liability. See Tuttle, 471 U.S. at 814, 105 S. Ct. at 2431 (“Proof
of a single incident of unconstitutional activity is not sufficient to impose liability
under Monell.”). Accordingly, the County Defendants’ motion to dismiss Plaintiff’s
municipal liability claim is also granted.
D. VBB’s 42 U.S.C. § 1985(3) Claims
All Defendants also move to dismiss VBB’s conspiracy claims pursuant to 42
U.S.C. § 1985(3) for failure to state a cause of action. To state a valid claim pursuant
to Section 1985(3) a plaintiff must allege:
(1) a conspiracy, (2) for the purpose of depriving any person
or class of persons of the equal protection of the laws or of
equal privileges and immunities under the laws, (3) an act
in furtherance of the conspiracy, and (4) whereby a person
is injured in his person or property or deprived of a right or
privilege of a citizen.
Turkmen v. Hasty, 789 F.3d 218, 262 (2d Cir. 2015). To prevail on a claim under
42 U.S.C. § 1985(3), “the conspiracy must also be motivated by ‘some racial or perhaps
otherwise class-based, invidious discriminatory animus behind the conspirators’
action.”

Thomas

v.

Roach,

165

F.3d

137,

146

(2d

Cir.

1999)

(quoting Mian v. Donaldson, Lufkin & Jenrette Secs. Corp., 7 F.3d 1085, 1088
(2d Cir. 1993)).

VBB alleges that the Private and County Defendants’ actions

contained the “necessary ‘invidiously discriminatory animus’ necessary to support” a
Section 1985(3) claim. The Complaint, however, fails to allege that Defendants acted
24

with any racial or class-based invidious discriminatory motivation. Accordingly,
Plaintiff has failed to adequately state a Section 1985(3) claim and this claim is
dismissed.
E. Plaintiff’s 42 U.S.C. § 1986 Claims
As VBB has failed to adequately plead a violation of Section 1985, its
Section 1986 claim is similarly invalid. 42 U.S.C. § 1986 imposes liability on an
individual who has knowledge of discrimination prohibited under 42 U.S.C. § 1985.
Graham v. Henderson, 89 F.3d 75, 82 (2d Cir. 1996). Accordingly, Section 1986 claim
is contingent upon a tenable Section 1985 claim. See Mian, 7 F.3d at 1088 (finding
that Section 1986 claims are contingent upon a valid section 1985 claim). As a result,
having found that VBB fails to state a claim under Section 1985, its Section 1986
claim must also be dismissed.
F. Qualified Immunity and the Individual County Defendants
Defendants further argue that Plaintiff’s claims against Dormer and Gabrielle
arising under Section 1983 should be dismissed pursuant to the doctrine of qualified
immunity. See County Defs.’ Mem. at 20-21. The doctrine of qualified immunity
“protects government officials from suit if their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.” Gonzalez v. City of Schenectady, 728 F.3d 149, 154 (2d Cir. 2013)
(internal quotation omitted). A police officer is entitled to qualified immunity if he
establishes “either that his conduct did not violate ‘clearly established rights’ of which
a reasonable person would have known, or that it was ‘objectively reasonable’ to

25

believe that his acts did not violate these clearly established rights.”

Landy v.

Irizarry, 884 F. Supp. 788, 800 (S.D.N.Y. 1995) (quoting Finnegan v. Fountain, 915
F.2d 817, 818 (2d Cir. 1990)). In determining whether the doctrine of qualified
immunity applies, courts consider: “(1) whether a plaintiff has shown facts making
out a violation of a constitutional right; (2) if so, whether that right was clearly
established; and (3) even if the right was clearly established, whether it was
objectively reasonable for the officer to believe the conduct at issue was lawful.”
Deanda v. Hicks, 137 F. Supp. 3d 543, 561 (S.D.N.Y. 2015) (quoting Gonzalez, 728
F.3d at 154). An officer’s actions are objectively reasonable “if officers of reasonable
competence

could

Rohman v. N.Y.C.

disagree
Transit

on

the

Auth.,

legality

215

F.3d

of

the

208,

defendant’s
216

(2d

actions.”

Cir.

2000)

(internal quotation omitted). On a motion to dismiss, “[t]he initial question with
respect to qualified immunity is whether, viewing the facts alleged in the light most
favorable to the plaintiff, there was a constitutional violation.” Fierro v. City of New
York, 341 Fed. App’x. 696, 698 (2d Cir. 2009) (citing Clubside, Inc. v. Valentin, 468
F.3d 144, 152 (2d Cir. 2006)). Here, as VBB has failed to allege an underlying
constitutional violation, an inquiry on the issue of qualified immunity is unnecessary.
See Pearson v. Callahan, 555 U.S. 223, 243, 129 S. Ct. 808, 822 (2009) (citing Saucier
v. Katz, 533 U.S. 194, 194, 121 S. Ct. 2151, 2152 (2001)).
G. Supplemental Jurisdiction Over State-Law Claims
Having concluded that each of Plaintiff’s federal claims against the moving
Defendants must be dismissed, the Court declines to exercise supplemental

26

jurisdiction over any remaining state law causes of action. Supplemental jurisdiction
over Plaintiff’s state-law claims is governed by 28 U.S.C. § 1367, which provides that,
“in any civil action of which the district courts have original jurisdiction, the district
courts shall have supplemental jurisdiction over all other claims that are so related
to claims in the action within such original jurisdiction that they form part of the
same case or controversy . . . “ 28 U.S.C. § 1367(a). However, a district court may
decline to exercise supplemental jurisdiction where, as here, all claims over which it
had original jurisdiction have been dismissed.

28 U.S.C. § 1367(c). When such

circumstances arise prior to the commencement of trial, Second Circuit precedent
consistently recognizes that, “the balance of factors to be considered,” which includes
“judicial economy, convenience, fairness and comity,” “will point toward declining to
exercise jurisdiction over the remaining state-law claims.” Valencia v. Lee, 316 F.3d
299, 305 (2d Cir. 2003).
The County and Private Defendants’ filed their Rule 12 motions to dismiss
the Complaint in lieu of an Answer. See DE [31], [34], [38]. Thus, this litigation is
still in its initial stages and no discovery has taken place. Accordingly, the Court
grants the Private and County Defendants’ motions to dismiss as to Plaintiff’s
federal claims and declines to exercise supplemental jurisdiction over VBB’s statelaw causes of action.
H. Leave to File an Amended Complaint
While leave to amend a complaint should be freely given “when justice so
requires,” Fed. R. Civ. P. 15(a)(2), it is “within the sound discretion of the district

27

court to grant or deny leave to amend.” McCarthy v. Dun & Bradstreet Corp., 482
F.3d 184, 200 (2d Cir. 2007). Consistent with this principle, “a district court may
deny leave to amend when, as here, amendment would be futile because the problem
with the claim ‘is substantive ... [and] better pleading will not cure it.’” Reynolds v.
City of Mount Vernon, 14-CV-1481, 2015 WL 1514894, at *5 (S.D.N.Y. Apr. 1, 2015)
(quoting Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)).
The Court finds that the deficiencies in VBB’s pleadings are substantive and,
due to the untimely and untenable nature of its claims, any subsequent amendments
would be futile. Additionally, in its opposition VBB has not requested permission to
file an amended complaint, nor has it “given any indication that it is in possession of
facts that would cure the problems identified in this opinion.” Clark v. Kitt, 12-CV8061, 2014 WL 4054284, at *15 (S.D.N.Y. Aug. 15, 2014). Accordingly, as the facts
present in the pleadings “give[] no indication that a valid claim may be stated,” the
Court denies Plaintiff leave to amend. See Flaherty v. All Hampton Limousine, Inc.,
02-CV-4801, 2008 WL 2788171, at *8 (E.D.N.Y. July 16, 2008).
V.

CONCLUSION
Based on the foregoing, the Court hereby grants the motions to dismiss the

Complaint for failure to state a claim in their entirety with prejudice.
Dated: Central Islip, New York
September 15, 2017

/s/ Steven I. Locke
STEVEN I. LOCKE
United States Magistrate Judge

28