Kuritz et al v. The State of New York et al

Filing 63

MEMORANDUM-DECISION AND ORDER granting in part and denying in part # 46 Motion for Judgment on the Pleadings; Approving in part Report and Rejecting in part Recommendations re # 56 Report and Recommendations. Signed by U.S. District Judge Mae A. D'Agostino on 3/20/15. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
HYMAN KURITZ, individually and on behalf of all
persons similarly situated, ALVIN MAGID, individually
and on behalf of all persons similarly situated,
SARA A. KNAPP, individually and on behalf of all persons
similarly situated, LAWRENCE S. WITTNER,
individually and on behalf of all persons similarly situated,
FREDERICK E. KOWAL, as President of the United
University Professions, and UNITED UNIVERSITY
PROFESSIONS,
Plaintiffs,
vs.

1:11-CV-1529
(MAD/CFH)

THE STATE OF NEW YORK, ANDREW M. CUOMO,
as Governor of the State of New York, NEW YORK STATE
DEPARTMENT OF CIVIL SERVICE, PATRICIA A. HITE,
as Acting President of the New York State Department
of Civil Service and as Acting Commissioner of the New York
State Department of civil Service, NEW YORK STATE CIVIL
SERVICE COMMISSION, CAROLINE W. AHL and J. DENNIS
HANRAHAN, as Commissioners of the New York State Civil
Service Commission, NEW YORK STATE HEALTH
INSURANCE PLAN, NEW YORK STATE DIVISION
OF THE BUDGET, ROBERT L. MEGNA, as Director of the
New York State Division of the Budget, NEW YORK STATE
GOVERNOR’S OFFICE OF EMPLOYEE RELATIONS,
GARY JOHNSON, as Director of the New York State
Governor's Office of Employee Relations, THOMAS P.
DiNAPOLI, as Comptroller of the State of New York, and
GARY JOHNSON, individually and in his official capacity
as Director of the New York State Governor's Office of
Employee Relations,

Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

NEW YORK STATE UNITED TEACHERS
800 Troy-Schenectady Road
Latham, New York 12110-2455
Attorneys for Plaintiffs

HAROLD EISENSTEIN, ESQ.
ROBERT T. REILLY, JR., ESQ.

OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorneys for Defendants

HELENA LYNCH, AAG
JUSTIN L. ENGEL, AAG
RACHEL M. KISH, AAG

Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
In a complaint dated December 28, 2011, Plaintiffs allege that Defendants unilaterally
increased the percentage of contributions that Plaintiffs, active and retired employees, are
required to pay for health insurance benefits in retirement and, thereby, violated the Contracts and
Due Process Clauses of the United States Constitution, impaired Plaintiffs' contractual rights
under the terms of their Collective Bargaining Agreement, and violated state law. See Dkt. No. 1.
On May 28, 2014, Defendants filed a motion for judgment on the pleadings, seeking the dismissal
of all individual and official capacity claims against all Defendants except Defendants Hite and
Megna. See Dkt. No. 41. In a July 25, 2014 Report-Recommendation and Order, Magistrate
Judge Hummel recommended that the Court deny Defendants' motion in its entirety. See Dkt.
No. 56.1

On March 28, 2014, Plaintiffs filed a motion to amend their complaint. See Dkt. No. 43.
In the July 25, 2014 Report-Recommendation and Order, Magistrate Judge Hummel granted
Plaintiffs' motion to amend but directed Plaintiffs to file an edited amended complaint removing
any reference to previously deleted claims and parties. See Dkt. No. 56. The amended complaint
made the following changes: (1) substituted Frederick Kowal as a president of the union and
removed Philip H. Smith; (2) added new factual allegations relating to a new Collective
Bargaining Agreement; (3) added new allegations relating to the personal involvement of
Defendants Cuomo, Hite, Hanrahan, Ahl, Megna, DiNapoli and Johnson, as well as to clarify that
they are being sued in their individual and official capacities; and (4) added new calculations
regarding dollar amounts of coverage under the insurance plans. See Dkt. No. 57. Since
Magistrate Judge Hummel granted Plaintiffs' motion to amend, the amended complaint is now the
operative pleading in this matter.
1

2

Currently before the Court are Defendants' objections to Magistrate Judge Hummel's
Report-Recommendation and Order.2

II. DISCUSSION
A.

Standard of review
In deciding a Rule 12(c) motion, the court "'employ[s] the same standard applicable to

dismissals pursuant to Fed. R. Civ. P. 12(b)(6).'" Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir.
2010) (quoting Johnson v. Rowley, 569 F.3d 40, 43 (2d Cir. 2009)). A motion to dismiss for
failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the
legal sufficiency of the party's claim for relief. See Patane v. Clark, 508 F.3d 106, 111-12 (2d
Cir. 2007). In considering the legal sufficiency, a court must accept as true all well-pleaded facts
in the pleading and draw all reasonable inferences in the pleader's favor. See ATSI Commc'ns,
Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (citation omitted). This presumption of
truth, however, does not extend to legal conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citation omitted). Although a court's review of a motion to dismiss is generally limited to
the facts presented in the pleading, the court may consider documents that are "integral" to that
pleading, even if they are neither physically attached to, nor incorporated by reference into, the
pleading. See Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006) (quoting Chambers v.
Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002)).
To survive a motion to dismiss, a party need only plead "a short and plain statement of the
claim," see Fed. R. Civ. P. 8(a)(2), with sufficient factual "heft to 'sho[w] that the pleader is

The Court directs the parties to its December 3, 2012 Memorandum-Decision and Order,
in which the Court discussed in detail the relevant factual background. See Dkt. No. 16.
2

3

entitled to relief.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (quotation omitted).
Under this standard, the pleading's "[f]actual allegations must be enough to raise a right of relief
above the speculative level," see id. at 555 (citation omitted), and present claims that are
"plausible on [their] face," id. at 570. "The plausibility standard is not akin to a 'probability
requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully."
Iqbal, 556 U.S. at 678 (citation omitted). "Where a complaint pleads facts that are 'merely
consistent with' a defendant's liability, it 'stops short of the line between possibility and
plausibility of "entitlement to relief."'" Id. (quoting [Twombly, 550 U.S.] at 557, 127 S. Ct. 1955).
Ultimately, "when the allegations in a complaint, however true, could not raise a claim of
entitlement to relief," Twombly, 550 U.S. at 558, or where a plaintiff has "not nudged [its] claims
across the line from conceivable to plausible, the[] complaint must be dismissed[,]" id. at 570.
When a party files specific objections to a magistrate judge's report-recommendation, the
district court makes a "de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). However,
when a party files "[g]eneral or conclusory objections or objections which merely recite the same
arguments [that he presented] to the magistrate judge," the court reviews those recommendations
for clear error. O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *1 (N.D.N.Y. Mar. 16,
2011) (citations and footnote omitted). After the appropriate review, "the court may accept,
reject, or modify, in whole or in part, the findings or recommendations made by the magistrate
judge." 28 U.S.C. § 636(b)(1).

B.

Defendants' objections

4

In their objections, Defendants state that they object "to that portion of Magistrate Judge
Hummel's July 25, 2014 Report and Recommendation . . . on Defendants' Motion for Judgment
on the Pleadings . . . finding that Plaintiffs adequately alleged that Defendants Cuomo, Ahl,
Hanrahan, Johnson, and DiNapoli were personally involved in alleged constitutional violations
and therefore may be liable for monetary damages in their individual capacities pursuant to 42
U.S.C. § 1983." Dkt. No. 61-1 at 4.3 Defendants rely on this Court's decision in Brown v. New
York, 975 F. Supp. 2d 209, 229-31 (N.D.N.Y. 2013), a companion case, in which the Court
dismissed claims against these Defendants in their individual capacities based on the plaintiffs'
failure to plausibly allege their personal involvement. See Dkt. No. 61-1 at 5-8. Defendants
contend that the allegations in the present matter are indistinguishable from the allegations in
Brown. See id. Finally, Defendants contend that the personal involvement of Defendants Cuomo,
Ahl, Hanrahan, and DiNapoli was not previous addressed by the Court, contrary to the findings in
the Report-Recommendation and Order. See id. at 8-9.

C.

Personal Involvement
"It is well settled that, in order to establish a defendant's individual liability in a suit

brought under § 1983, a plaintiff must show, inter alia, the defendant's personal involvement in
the alleged constitutional deprivation." Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir.
2013) (citations omitted). "[W]hen monetary damages are sought under § 1983, the general
doctrine of respondeat superior does not suffice and a showing of some personal responsibility of

To avoid confusion, anytime the Court references a specific page number for an entry on
the docket, it will cite to the page number assigned by the Court's electronic filing system.
3

5

the defendant is required." Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quotation and other
citations omitted). Nevertheless,
[t]he personal involvement of a supervisory defendant may be
shown by evidence that: (1) the defendant participated directly in
the alleged constitutional violation, (2) the defendant, after being
informed of the violation through a report or appeal, failed to
remedy the wrong, (3) the defendant created a policy or custom
under which unconstitutional practices occurred, or allowed the
continuance of such a policy or custom, (4) the defendant was
grossly negligent in supervising subordinates who committed the
wrongful acts, or (5) the defendant exhibited deliberate indifference
to the rights of [plaintiffs] by failing to act on information
indicating that unconstitutional acts were occurring.
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).4 "[W]hile facts and evidence solely within a
defendant's possession and knowledge may be pled 'on information and belief,' this does not mean
that those matters may be pled lacking any detail at all." Miller v. City of New York, No. 05-6024,
2007 WL 1062505, *4 (E.D.N.Y. Mar. 30, 2007) (citing, inter alia, First Capital Asset Mgmt.,
Inc. v. Satinwood, Inc., 385 F.3d 159, 180 (2d Cir. 2004)); see DiVittorio v. Equidyne Extractive
Indus., Inc., 822 F.2d 1242, 1247 (2d Cir. 1987) ("[T]he allegations must be accompanied by a
statement of the facts upon which the belief is based").
The Court will review Plaintiffs' allegations with respect to each of the individual
Defendants in turn.5
Although the Supreme Court's decision in Ashcroft v. Iqbal, 556 U.S. 662 (2009), may
have heightened the requirements for showing a supervisor's personal involvement with respect to
certain constitutional violations, the Court will assume for purposes of this motion that Colon is
still good law. See Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013).
4

Defendants are correct that the Court did not previously address the moving Defendants'
personal involvement. Although confusion often arises when the basis for subject matter
jurisdiction is also an element of the plaintiff's asserted federal cause of action, the courts agree
that the claimed lack of personal involvement should be evaluated as going to the merits of the
claim under Rule 12(b)(6), not to the Court's subject matter jurisdiction. See Jones v. Nassau
County Sheriffs Dept., 285 F. Supp. 2d 322, 324 (E. D.N.Y. 2003) (treating the defendants'
5

(continued...)
6

1. Defendant Cuomo
In the amended complaint, the only allegations regarding Defendant Cuomo allege that
Defendant Cuomo is the Governor of New York and that,"[u]pon information and belief,
defendant Cuomo approved and directed the implementation of reduced health insurance benefits
for retired State employees, effective October 1, 2011." Dkt. No. 57 at ¶¶ 42-43.

2. Defendants Ahl and Hanrahan
The amended complaint provides that Defendants Ahl and Hanrahan constitute the Civil
Service Commission, and that, "[u]pon information and belief, defendants Hite, Ahl and
Hanrahan approved the implementation of reduced health insurance benefits for retired
employees effective October 1, 2011." Dkt. No. 57 at ¶¶ 45-47. No other allegations in the
amended complaint mention Defendants Ahl or Hanrahan by name.

3. Defendant DiNapoli

5

(...continued)

argument that the plaintiff failed to allege their personal involvement as going to the merits of his
federal claim, not to the court's subject matter jurisdiction); see also Nowak v. Ironworkers Local
6 Pension Fund, 81 F.3d 1182, 1187-89 (2d Cir. 1996) ("Because of the more-than-occasional
difficulties involved in parsing a claim alleging federal question jurisdiction to determine whether
it fails to state a claim or fails to meet jurisdictional requirements, the federal courts have
followed a general practice of granting jurisdiction in most cases and dismissing for lack of
subject matter jurisdiction only under narrow circumstances"). Since personal involvement does
not go to the Court's subject matter jurisdiction, the Court did not address this issue in its previous
decision sua sponte. Additionally, even if the Court had previously decided this issue, the law of
the case doctrine is discretionary when a court, as here, is considering whether to revisit its own
decisions or the decisions of a sister court, as opposed to a matter ruled upon by an appellate
court. See In re Northern Telecom Ltd. Securities Litig., 42 F. Supp. 2d 234, 239 (S.D.N.Y. 1998)
(citing cases).
7

According to the amended complaint, Defendant Thomas P. DiNapoli is the Comptroller
of the State of New York, and that, as State Comptroller, he is responsible for the administration
of the New York State and Local Retirement System, including the monthly payment of pensions
to eligible retired State employee pensioners, "less any deductions for the payment of retiree
health insurance premium costs." Id. at ¶¶ 50-51. Additionally, the amended complaint states
that Defendant DiNapoli, as Comptroller, is head of the New York Department of Audit and
Control and he is the Trustee of the New York State and Local Retirement System. See id. The
amended complaint contains no other allegations relating to Defendant DiNapoli.

4. Defendant Johnson
In their objections and underlying motion, Defendants also contend that the allegations
against Defendant Johnson are equally vague and conclusory, and fail to plausibly allege his
personal involvement. See Dkt. No. 61-1 at 6 n.3. The amended complaint asserts that Defendant
Johnson "is the duly appointed Director of the Governor's Office of Employee Relations with the
duties and powers of that position as set forth in Article 24 of the New York Executive Law."
Dkt. No. 57 at ¶ 52. Additionally, the amended complaint asserts that, "[u]pon information and
belief, defendant Johnson administratively extended and implemented reduced health insurance
benefits for state employees effective October 1, 2011." Id. at ¶ 53.

5. Application
In the present matter, the Court agrees with Defendants Cuomo, Ahl, Hanrahan, Johnson
and DiNapoli that the amended complaint fails to plausibly allege their personal involvement in
the alleged constitutional violations and, therefore, the claims brought against them in their
8

individual capacities must be dismissed. The allegations contained in the present amended
complaint are virtually indistinguishable to the allegations in the complaint in Brown.
At best, the amended complaint alleges that, because Defendant Cuomo appointed those
responsible for overseeing these changes in the law, he was responsible for the actions of these
subordinates. The law is clear that vicarious liability and respondeat superior are inapplicable in
actions brought pursuant to 42 U.S.C. § 1983. See Iqbal, 556 U.S. at 676 ("Because vicarious
liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each
Government-official defendant, through the official's own individual actions, has violated the
Constitution"); Madsen v. Washington, No. C12-5928, 2013 WL 1499145, *4 (W.D. Wash. Mar.
13, 2013) (holding that simply because the governor appointed the individual alleged to have
violated the plaintiff's rights is insufficient to allege the governor's personal involvement).
The amended complaint in the present matter and the complaint in Brown both allege that
Defendants' implementation of the reduced contribution rates was ultra vires and in violation of
state law. In Brown, the Court discussed this claim at length and the applicability of the
exception to Eleventh Amendment immunity discussed by the Supreme Court in Florida Dep't of
State v. Treasure Salvors, Inc., 458 U.S. 670, 696–697, 102 S. Ct. 3304, 73 L. Ed. 2d 1057
(1982). See Brown, 975 F. Supp. 2d at 226-28. In the present matter, Plaintiffs' fourth cause of
action, which is entitled "Ultra Vires," only names Defendants Hite and Megna, and clearly
discusses only whether they had "authority to extend the increase in the percentage of the
premiums to the plaintiffs." Dkt. No. 57 at ¶ 146. No other Defendant is named in this one
sentence cause of action.
As to Defendants Hanrahan, Ahl and DiNapoli, as noted above, the amended complaint
does nothing more than identify who they are and their positions within the state government.
9

Such allegations are clearly insufficient to plausibly allege their personal involvement in the
alleged unconstitutional conduct.
Finally, as to Defendant Johnson, the two sentences in which he is mentioned are clearly
insufficient to plausibly allege his personal involvement.
Based on the foregoing, the Court grants Defendants' motion for judgment on the
pleadings on this ground.6

III. CONCLUSION

After carefully reviewing the entire record in this matter, the parties' submissions and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that the July 25, 2014 Report-Recommendation and Order is REJECTED in
part and ACCEPTED in part; and the Court further
ORDERS that Defendants' motion for judgment on the pleadings is GRANTED in part
and DENIED in part; and the Court further
ORDERS that the claims brought against Defendants Cuomo, Hanrahan, Ahl, Johnson
and DiNapoli in their individual capacities are DISMISSED; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on the parties in accordance in the Local Rules; and the Court further

In their objections to the Report-Recommendation and Order, Defendants do not
challenge Magistrate Judge Hummel's recommendation that the Court deny the motion as to the
official capacity claims brought against Defendant Cuomo, Ahl, Hanrahan, Johnson, and
DiNapoli. Having reviewed the parties' submissions and the applicable law, the Court finds that
Magistrate Judge Hummel did not clearly err in denying that portion of Defendants' motion for
judgment on the pleadings.
6

10

ORDERS that all further non-dispositive pretrial matters are referred to Magistrate Judge
Hummel.

IT IS SO ORDERED.
Dated: March 20, 2015
Albany, New York

11