Lepre v. New York State Insurance Fund et al
Filing
48
DECISION & ORDER granting Defendants New York State Insurance Fund and State of New York's # 10 motion to dismiss; granting Defendant United States # 19 Motion to dismiss; and denying Plaintiff's # 37 , 45 , 46 and 47 motions. Plain tiff's complaint as against all Defendants is dismissed in its entirety with prejudice; and the Clerk is directed to amend the docket to reflect that the United States Attorney General is not a named defendant in this action. Signed by Judge Glenn T. Suddaby on 8/18/14. (lmw)(Copy served upon pro se plaintiff via regular mail and certified mail)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_________________________________________
JOHN DAVID LEPRE,
Plaintiff,
v.
1:13-CV-0926
(GTS/CFH)
NEW YORK STATE INSURANCE FUND; THE
UNITED STATES. INC.; and THE STATE OF
NEW YORK,
Defendants.1
_________________________________________
APPEARANCES:
OF COUNSEL:
JOHN DAVID LEPRE
Plaintiff, Pro Se
1475 Orphan School Road
Kingsley, PA 18826
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendants, New York State
Insurance Fund and the State of New York
The Capitol
Albany, NY 12224-0341
ADRIENNE J. KERWIN, ESQ.
HON. RICHARD S. HARTUNIAN
United States Attorney for the N.D.N.Y.
Counsel for Defendants, The United States, Inc.
James Hanley U.S. Courthouse
100 South Clinton Street
Syracuse, NY 13261-7198
WILLIAM F. LARKIN, ESQ.
GLENN T. SUDDABY, United States District Judge
1
The United States Attorney General is erroneously listed as a defendant on the
docket in this matter. The Clerk of the Court is directed to amend the docket, accordingly.
DECISION and ORDER
Currently before the Court in this action filed by pro se plaintiff, John David Lepre
(“Plaintiff”) against the three above-named government entities are (1) a motion to dismiss for
lack of subject matter jurisdiction, lack of personal jurisdiction and failure to state a claim upon
which relief can be granted by defendants, New York State Insurance Fund and the State of New
York (“the State Defendants”) pursuant to Rule 12(b) of the Federal Rules of Civil Procedure
(Dkt. No. 10); (2) a motion to dismiss for lack of subject matter jurisdiction and/or for failure to
state a claim upon which relief can be granted by defendant, the United States, Inc. (“United
States”) pursuant to Rule 12(b) of the Federal Rules of Civil Procedure (Dkt. No. 19); (3) a
motion by Plaintiff to identify Defendants as corporate entities (Dkt. No. 37); (4) a motion by
Plaintiff for sanctions against Defendants (Dkt. No. 45); (5) a letter motion by Plaintiff seeking
the status of the pending motions to dismiss (Dkt. No. 46); and (6) Plaintiff’s motion for
judgment on the pleadings and/or for summary judgment (Dkt. No. 47). For the reasons set forth
below, Defendants’ motions to dismiss are granted and Plaintiff’s motions are denied.
I.
RELEVANT BACKGROUND
A.
Plaintiff’s Complaint
This action was commenced on August 5, 2013 with the filing of Plaintiff’s “Petition for
Judicial Review” of a denial of Plaintiff’s claim for damages presented to the Environmental
Protection Agency (“EPA”). (Dkt. No. 1 [Pl.’s Compl.].) Plaintiff’s claim to the EPA is related
to the New York State Department of Environmental Conservation’s (“DEC”) enforcement of a
requirement that Plaintiff obtain a permit in order to continue quarry related work on certain
property in Chenango County, New York (“the subject property”). (Id.) Plaintiff further
challenges the legality of a September 17, 2009 Judgment of New York State Supreme Court
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Justice Kevin M. Dowd that, among other things, prohibited Plaintiff from engaging in any
mining activities at the subject property and ordered Plaintiff to obtain a permit or to commence
and complete reclamation of the site. Plaintiff seeks damages as well as a declaratory judgment
from this Court that Defendants “violated the Laws of the United States and the Private Property
Rights and Common Law Rights of” Plaintiff. (Id.)
Plaintiff’s claim before the EPA, dated September 4, 2012, seeks damages related for
“tortious interference with prospective advantage” stemming from an alleged injury that
occurred on February 21, 2006 through “present” resulting from DEC officers entering the
subject property in order to compel the cessation of work on the property until a permit was
obtained. (Dkt. No. 1-2, at 4.) On January 15, 2013, the EPA denied Plaintiff’s claim for failure
to state a claim for which relief is available under the Federal Tort Claims Act (“FTCA”) and
advised Plaintiff that he may “file suit in the appropriate U.S. District Court no later than six
months from the date of” its denial. (Id., at 15.) Rather than commence an action in U.S.
District Court, Plaintiff sent a “Notice of Appeal” to the EPA on January 22, 2013, which the
EPA treated as a request for reconsideration of its January 15, 2013 denial of Plaintiff’s claim.
(Id., at 16, 18.) On February 19, 2013, the EPA upheld its January 15, 2013 decision
“pertain[ing] to [Plaintiff’s] quarry activities” due to Plaintiff’s failure to state a claim for relief
that is available under the FTCA. (Id., at 18.) The EPA again advised Plaintiff of his right to
seek judicial review no later than six months from its February 19, 2013 decision denying
Plaintiff’s claim.
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B.
Defendants’ Motions
1.
State Defendants’ Motion to Dismiss
Generally, in support of their motion to dismiss Plaintiff’s Complaint, the State
Defendants assert the following four arguments: (1) the State Defendants have not consented to
suit or waived their sovereign immunity and therefore, Plaintiff’s claims against them are barred
under the Eleventh Amendment; (2) Plaintiff’s claims are barred by the Rooker-Feldman
doctrine; (3) Plaintiff has failed to properly serve the State Defendants and therefore, Plaintiff’s
complaint must be dismissed for lack of personal jurisdiction; and (4) Plaintiff fails to allege any
wrongdoing by the State or its officers and therefore Plaintiff has not stated a claim against the
State Defendants upon which relief can be granted. (See generally Dkt. No. 10-1.)
Generally, liberally construed, in response to the State Defendants’ motion to dismiss,
Plaintiff asserts the following four arguments: (1) the State is barred by the doctrine of laches
and/or collateral estoppel from re-litigating this case; (2) the Rooker-Feldman doctrine is
misapplied to this case because Plaintiff’s rights were violated under laws enforced by the State
Defendants; (3) Plaintiff has a right to amend, supplement, and/or repair his pleadings before the
Court dismisses any of his claims; and (4) the State Defendants are private business entities and
are not protected by sovereign immunity. (See generally Dkt. No. 11.)
2.
United States’ Motion to Dismiss
Generally, in support of its motion to dismiss Plaintiff’s Complaint, the United States
asserts the following two arguments: (1) Plaintiff’s complaint against the United States must be
dismissed because (a) it is barred by the statute of limitations under the jurisdiction requirements
of the FTCA and (b) the FTCA does not waive the sovereign immunity of the United States for
4
claims regarding the interference with contractual rights; and (2) Plaintiff’s complaint fails to
state a claim upon which relief can be granted against the United States because Plaintiff fails to
allege any wrongdoing by an employee of the United States acting within the course and scope
of his or her employment. (See generally Dkt. No. 19-2.)
Generally, liberally construed, in response to the United States’ motion to dismiss,
Plaintiff asserts the following six arguments: (1) the United States is barred by the doctrine of
laches and/or collateral estoppel from re-litigating this case; (2) the United States is a private
business entity and is not protected by sovereign immunity; (3) Plaintiff has a right to amend,
supplement, and/or repair his pleadings before the Court dismisses any of his claims; (4)
Plaintiff’s administrative claim was timely as the deprivations of his rights are ongoing; (5)
Plaintiff did not have a contractual relationship with the United States and therefore, the United
States’ argument that the FTCA does not waive its sovereign immunity is based on a
misrepresentation of fact; and (6) under the doctrine of agency, the actions of New York State
officials binds the United States and therefore, Plaintiff has stated a claim against the United
States. (See generally Dkt. No. 33.)
Generally, in reply to Plaintiff’s response the United States asserts the following two
arguments: (1) Plaintiff failed to timely file an administrative claim under the FTCA and
therefore, this Court lacks subject matter jurisdiction over this action against the United States;
and (2) an amendment of the complaint will not cure the jurisdictional deficit and therefore, any
request for leave to amend should be denied as futile. (See generally Dkt. No. 34.)
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C.
Plaintiff’s Motions
Generally, in support of his motion to identify the Defendants as corporate entities,
Plaintiff argues that such a determination will establish that none of the Defendants have
sovereign immunity. (See generally Dkt. No. 37)
Generally, in support of his motion for sanctions against Defendants, Plaintiff argues that
Defendants are delaying this action in order to manipulate the Court into dismissing the action
for failure to prosecute under Local Rule 41.2. (See generally Dkt. No. 45).
Generally, in support of his letter motion for status of the pending motions to dismiss,
Plaintiff contends that he did not consent to any indefinite period of adjournment of the hearings
on these motions. (See generally Dkt. No. 46).
Generally, in support of his motion for judgment on the pleadings and/or for summary
judgment, Plaintiff asserts, in addition to those arguments previously advanced in support of his
opposition to the Defendants’ motions to dismiss, that there are no questions of fact to be
decided as the Defendants have admitted Plaintiff’s asserted facts by their silence. (See
generally Dkt. No. 47).
II.
RELEVANT LEGAL STANDARDS
A.
Legal Standard Governing Dismissal for Failure to State Claim
It has long been understood that a complaint may be dismissed for failure to state a claim
upon which relief can be granted on either or both of two grounds: (1) a challenge to the
“sufficiency of the pleading” under Fed. R. Civ. P. 8(a)(2); or (2) a challenge to the legal
cognizability of the claim. Jackson v. Onondaga Cnty., 549 F. Supp. 2d 204, 211, nn. 15-16
(N.D.N.Y. 2008) (McAvoy, J., adopting Report-Recommendation on de novo review).
6
Because such motions are often based on the first ground, a few words on that ground are
appropriate. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a pleading
contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2) (emphasis added). In the Court’s view, this tension between permitting a
“short and plain statement” and requiring that the statement “show[]” an entitlement to relief is
often at the heart of misunderstandings that occur regarding the pleading standard established by
Fed. R. Civ. P. 8(a)(2).
On the one hand, the Supreme Court has long characterized the “short and plain”
pleading standard under Fed. R. Civ. P. 8(a)(2) as “simplified” and “liberal.” Jackson, 549 F.
Supp. 2d at 212, n.20 (citing Supreme Court case). On the other hand, the Supreme Court has
held that, by requiring the above-described “showing,” the pleading standard under Fed. R. Civ.
P. 8(a)(2) requires that the pleading contain a statement that “give[s] the defendant fair notice of
what the plaintiff’s claim is and the grounds upon which it rests.” Jackson, 549 F. Supp. 2d at
212, n.17 (citing Supreme Court cases) (emphasis added).
The Supreme Court has explained that such fair notice has the important purpose of
“enabl[ing] the adverse party to answer and prepare for trial” and “facilitat[ing] a proper decision
on the merits” by the court. Jackson, 549 F. Supp. 2d at 212, n.18 (citing Supreme Court cases);
Rusyniak v. Gensini, 629 F. Supp. 2d 203, 213 & n.32 (N.D.N.Y. 2009) (Suddaby, J.) (citing
Second Circuit cases). For this reason, as one commentator has correctly observed, the “liberal”
notice pleading standard “has its limits.” 2 Moore’s Federal Practice § 12.34(1)(b) at 12-61 (3d
ed. 2003). For example, numerous Supreme Court and Second Circuit decisions exist holding
that a pleading has failed to meet the “liberal” notice pleading standard. Rusyniak, 629 F. Supp.
7
2d at 213, n.22 (citing Supreme Court and Second Circuit cases); see also Ashcroft v. Iqbal, 556
U.S. 662, 677-83, 129 S. Ct. 1937, 1949-52 (2009).
Most notably, in Bell Atlantic Corp. v. Twombly, the Supreme Court reversed an
appellate decision holding that a complaint had stated an actionable antitrust claim under 15
U.S.C. § 1. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955 (2007). In doing
so, the Court “retire[d]” the famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 4546, 78 S. Ct. 99 (1957), that “a complaint should not be dismissed for failure to state a claim
unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.” Twombly, 550 U.S. at 561, 127 S. Ct. at 1968-69. Rather
than turning on the conceivability of an actionable claim, the Court clarified, the “fair notice”
standard turns on the plausibility of an actionable claim. Id. at 556-70, 127 S. Ct. at 1965-74.
The Court explained that, while this does not mean that a pleading need “set out in detail the
facts upon which [the claim is based],” it does mean the pleading must contain at least “some
factual allegation[s].” Id. at 555, 127 S. Ct. at 1965, n.3. More specifically, the “[f]actual
allegations must be enough to raise a right to relief above the speculative level [to a plausible
level],” assuming (of course) that all the allegations in the complaint are true. Id. at 554, 127 S.
Ct. at1965.2
2
It should be emphasized that Fed. R. Civ. P. 8’s plausibility standard, explained in
Twombly, was in no way retracted or diminished by the Supreme Court’s decision (two weeks
later) in Erickson v. Pardus, in which (when reviewing a pro se pleading) the Court stated,
“Specific facts are not necessary” to successfully state a claim under Fed. R. Civ. P. 8(a)(2).
Erickson v. Pardus, 551 U.S. 89, 93, 127 S. Ct. 2197, 2200 (2007) (emphasis added). That
statement was merely an abbreviation of the often-repeated point of law–first offered in Conley
and repeated in Twombly–that a pleading need not “set out in detail the facts upon which [the
claim is based]” in order to successfully state a claim. Twombly, 550 U.S. at 555, 127 S. Ct. at
1965, n.3 (citing Conley, 355 U.S. at 47) (emphasis added). That statement did not mean that all
8
As for the nature of what is “plausible,” the Supreme Court explained that “[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). “[D]etermining whether a complaint states a
plausible claim for relief . . . [is] a context-specific task that requires the reviewing court to draw
on its judicial experience and common sense. . . . [W]here the well-pleaded facts do not permit
the court to infer more than the mere possibility of misconduct, the complaint has alleged–but it
has not show[n]–that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679, 129 S. Ct. at 1950
[internal quotation marks and citations omitted]. However, while the plausibility standard “asks
for more than a sheer possibility that a defendant has acted unlawfully,” id., it “does not impose
a probability requirement.” Twombly, 550 U.S. at 556, 127 S. Ct. at 1965.
Because of this requirement of factual allegations plausibly suggesting an entitlement to
relief, “the tenet that a court must accept as true all of the allegations contained in the complaint
is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
supported by merely conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678, 129 S. Ct. at
1949. Similarly, a pleading that only “tenders naked assertions devoid of further factual
enhancement” will not suffice. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949 (internal citations and
alterations omitted). Rule 8 “demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Id., at 678, 129 S. Ct. at 1949.
pleadings may achieve the requirement of “fair notice” without ever alleging any facts
whatsoever. Clearly, there must still be enough facts set out (however set out, whether in detail
or in a generalized fashion) to raise a right to relief above the speculative level to a plausible
level. See Rusyniak, 629 F. Supp. 2d at 214 & n.35 (explaining holding in Erickson).
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This pleading standard applies even to pro se litigants. While the special leniency
afforded to pro se civil rights litigants somewhat loosens the procedural rules governing the form
of pleadings (as the Second Circuit has observed), it does not completely relieve a pro se
plaintiff of the duty to satisfy the pleading standards set forth in Fed. R. Civ. P. 8, 10 and 12.
See Vega v. Artus, 610 F. Supp. 2d 185, 196 & nn.8-9 (N.D.N.Y. 2009) (Suddaby, J.) (citing
Second Circuit cases); Rusyniak, 629 F. Supp. 2d at 214 & n.34 (citing Second Circuit cases).
Rather, as both the Supreme Court and Second Circuit have repeatedly recognized, the
requirements set forth in Fed. R. Civ. P. 8, 10 and 12 are procedural rules that even pro se civil
rights plaintiffs must follow. See Vega, 610 F. Supp. 2d at 196, n.10 (citing Supreme Court and
Second Circuit cases); Rusyniak, 629 F. Supp.2d at 214 & n.34 (citing Second Circuit cases).
Stated more simply, when a plaintiff is proceeding pro se, “all normal rules of pleading are not
absolutely suspended.” Jackson, 549 F. Supp. 2d at 214, n.28.
A few words are appropriate regarding what documents are considered when deciding
whether a complaint must be dismissed for failure to state a claim upon which relief can be
granted, pursuant to Fed. R. Civ. P. 12(b)(6). The court may consider the following documents
without triggering the summary judgment standard: “(1) documents attached as an exhibit to the
complaint or answer, (2) documents incorporated by reference into the complaint (and provided
by the parties), (3) documents that, although not incorporated by reference, are “integral” to the
complaint, or (4) any matter of which the court can take judicial notice for the factual
background of the case.” Planck v. Schenectady Cnty., No. 12-CV-0336, 2012 WL 1977972, at
*5 (N.D.N.Y. June 1, 2012) (Suddaby, J.).
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B.
Legal Standard Governing Dismissal for Lack of Subject Matter Jurisdiction
“It is a fundamental precept that federal courts are courts of limited jurisdiction.” Owen
Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). Generally, a claim may be
properly dismissed for lack of subject-matter jurisdiction where a district court lacks
constitutional or statutory power to adjudicate it. See Makarova v. United States, 201 F.3d 110,
113 (2d Cir. 2000). A district court may look to evidence outside of the pleadings when
resolving whether to dismiss for lack of subject-matter jurisdiction. Makarova, 201 F.3d at 113.
The plaintiff bears the burden of proving subject-matter jurisdiction by a preponderance of the
evidence. Makarova, 201 F.3d at 113 (citing Malik v. Meissner, 82 F.3d 560, 562 (2d Cir.
1996)). When a court evaluates whether to dismiss for lack of subject-matter jurisdiction, all
ambiguities must be resolved and inferences drawn in favor of the plaintiff. Aurecchione v.
Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005) (citing Makarova, 201 F.3d at
113).
C.
Legal Standard Governing Motions to Amend or Supplement a Complaint
A motion for leave to amend a complaint is governed by Rule 15 of the Federal Rules of
Civil Procedure, which states that leave to amend should be freely given “when justice so
requires.” Fed. R. Civ. P. 15(a)(2); Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227 (1962);
Manson v. Stacescu, 11 F.3d 1127, 1133 (2d Cir.1993). Pursuant to Fed. R. Civ. P. 15(a)(2),
leave to amend a complaint should be freely given in the absence of any apparent or declared
reason to not grant leave to amend, such as undue delay, bad faith or dilatory motive on the part
of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue
11
prejudice to the opposing party by virtue of allowance of the amendment, or futility of
amendment. See Foman, 371 U.S. at 182; S.S. Silberblatt, Inc. v. E. Harlem Pilot Block–Bldg. 1
Hous., 608 F.2d 28, 42 (2d Cir.1979); Meyer v. First Franklin Loan Servs, Inc., No. 08-CV1332, 2010 WL 277090, at *1 (N.D.N.Y. Jan. 19, 2010); Jones v. McMahon, No. 98-CV-0374,
2007 WL 2027910, at *10 (N.D.N.Y. July 11, 2007).
“An amendment to a pleading is futile if the proposed claim could not withstand a motion
to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).” Annunziato v. Collecto, Inc., 293 F.R.D. 329,
333 (E.D.N.Y. 2013) (citing Lucente v. Int’l Bus. Machs. Corp., 310 F.3d 243, 258 (2d
Cir.2002)). Therefore a proposed amendment is not futile if it states a claim upon which relief
can be granted. See id. (citations omitted).
Rule 15(d) of the Federal Rules of Civil Procedure provides that a party must obtain
leave from the court to supplement a pleading setting forth transactions or occurrences or events
that have happened since the date of the pleading sought to be supplemented. Rule 15(d) allows
a party to supplement the complaint in order to present subsequent material that is related to the
claims presented in the original complaint. See Labarbera v. Audax Const. Corp., 971 F. Supp.
2d 273, 284 (E.D.N.Y. 2013) (citing Argus, Inc. v. Eastman Kodak Co., 552 F. Supp. 589, 602
(S.D.N.Y.1982) (citing 3 Moore’s Federal Practice ¶ 15.16[1], at 15176 (2d ed.1982))). Matters
stated in a supplemental complaint should have some relation to the claim set forth in the
original pleading. See 3 Moore’s Federal Practice ¶ 15.16[3], at 15183 (2d ed.1989). As with
Rule 15(a), the decision to grant or deny a Rule 15(d) motion is within the sound discretion of
the district court. See id.
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D.
Legal Standards Governing Plaintiff’s Claims
1.
FTCA
Generally, the FTCA permits private citizens to recover damages for injuries allegedly
caused by the negligence of government employees acting within the scope of their employment.
See 28 U.S.C. § 1346(b)(1). That being said, the United States is generally immune from suit.
See United States v. Bormes, 568 U.S. —, —, 133 S. Ct. 12, 16 (2012) ( “Sovereign immunity
shields the United States from suit absent a consent to be sued that is ‘unequivocally
expressed.’” (quoting United States v. Nordic Village, Inc., 503 U.S. 30, 33-34, 112 S. Ct. 1011
(1992))). Under the FTCA, “Congress waived the United States’ sovereign immunity for claims
arising out of torts committed by federal employees” while acting within the scope of their
employment. Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 217, 128 S. Ct. 831 (2008).
However, the FTCA exempts from this waiver certain categories of claims. See 28 U.S.C. §
2680(a)-(n). Included among these exemptions is “[a]ny claim arising out of assault, battery,
false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander,
misrepresentation, deceit, or interference with contract rights[.]” 28 U.S.C. §§ 2680(h). Thus, if
a claim asserted by a plaintiff is subject to exemption from the FTCA, this Court lacks subject
matter jurisdiction to hear it. See Vitrano v. United States, No. 06-CV-6518, 2008 WL 1752221,
at *4 (S.D.N.Y. Apr. 16, 2008).
Moreover, “the FTCA’s limited waiver of the United States’ sovereign immunity against
tort claims requires a plaintiff to “comply with several strictly construed prerequisites.’”
Goldblatt v. Nat’l Credit Union Admin., 502 F. App’x 53, 55 (2d Cir. 2012) (quoting Johnson v.
Smithsonian Inst., 189 F.3d 180, 189 (2d Cir.1999)). First, the FTCA provides that “[a] tort
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claim against the United States shall be forever barred unless it is presented in writing to the
appropriate Federal agency within two years after such claim accrues.” Kronisch v. United
States, 150 F.3d 112, 120-121 (2d Cir. 1998) (quoting 28 U.S.C. § 2401(b)). Next, under the
FTCA, a plaintiff must file his or her claim against the United States “within six months after the
date of mailing ... of final denial of the claim by the agency to which it was presented.”
Goldblatt, 502 F. App’x at 55 (quoting 28 U.S.C. § 2401(b)). Also, an FTCA claim must be
filed with the court within six years of its accrual. See § 2401(a). A plaintiff’s FTCA claim
accrues at the time of injury. See Barrett v. United States, 689 F.2d 324, 327 (2d Cir.1982).
In suits under the FTCA, “the court [is] to apply the substantive law of the place where
the events occurred,” here, New York. Farag v. United States, 587 F. Supp. 2d 436, 451
(E.D.N.Y.2008) (quoting Castro v. United States, 34 F.3d 106, 110 (2d Cir.1994)). Under New
York common law, in order to prevail on a claim for tortious interference with prospective
advantage, also known as tortious interference with business relations,3 “a party must prove that
(1) it had a business relationship with a third party; (2) the defendant knew of that relationship
and intentionally interfered with it; (3) the defendant acted solely out of malice, or used
dishonest, unfair, or improper means; and (4) the defendant’s interference caused injury to the
relationship.” Vitrano, 2008 WL 1752221, at *4 (quoting State Street Bank & Trust Co. v.
Inversiones Errazuriz Limitada, 374 F.3d 158, 171 (2d Cir.2004) (footnote omitted)).
3
See Lombard v. Booz-Allen & Hamilton, Inc., 280 F.3d 209, 214 (2d Cir.2002);
Goldhirsh Group, Inc. v. Alpert, 107 F.3d 105, 108-109 (2d Cir.1997). See also El Greco
Leather Prods. Co. v. Shoe World, Inc., 623 F. Supp. 1038, 1044 (E.D.N.Y.1985).
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III.
ANALYSIS
A.
Plaintiff’s Claims Against the New York State Defendants Must Be
Dismissed
Plaintiff’s claims against the State of New York and the New York State Insurance Fund
must be dismissed, generally for the reasons asserted by those defendants in their memorandum
of law. (See Dkt. No. 10-1 [State Defs.’ Mem. of Law].) The Court would only add the
following three points.
First and foremost, the State Defendants have sovereign immunity from suits such as this
one. Under the Eleventh Amendment, “states and their agencies are immune from suits brought
by private parties in federal court, unless Congress ‘unequivocally expresses its intent’ to
abrogate that immunity and ‘acts pursuant to a valid exercise of power,’ or a state waives its
immunity.” Cruz v. New York, — F. Supp. 2d —, —, 2014 WL 2547516, at *4 (W.D.N.Y.
2014) (quoting In re Charter Oak Assocs. ., 361 F.3d 760, 765 (2d Cir.2004) (internal quotations
and citation omitted)). Moreover, this jurisdictional bar applies “whether the relief sought is
legal or equitable.” Papasan v. Allain, 478 U.S. 265, 276, 106 S. Ct. 2932 (2d Cir.1986).
Congress has not expressed the intent to allow Plaintiff to sue the State of New York and the
State of New York has not waived its immunity. Therefore, on this basis alone, Plaintiff’s
complaint against the State Defendants must be dismissed for lack of subject matter jurisdiction.
Second, to the extent Plaintiff seeks relief from this Court that implicates the February
11, 2009 Order and/or the September 17, 2009 Judgment of the State of New York Supreme
Court, Chenango County regarding his failure to obtain a permit to continue his activities on the
subject property, Plaintiff’s complaint against the State Defendants must be dismissed under the
Rooker-Feldman doctrine. Under 28 U.S.C. § 1257, the United States Supreme Court has
15
exclusive appellate jurisdiction to reverse or modify a judgment by a state’s highest court. The
Rooker-Feldman doctrine provides that losing parties in state court cannot bring a claim in
federal district court to review and reject a judgment by the state court. See Exxon Mobile Corp.
v. Saudi Basic Indus. Corp., 544 U.S. 280, 283-84, 125 S. Ct. 1517 (2005) (citing Rooker v.
Fidelity Trust Co., 263 U.S. 413, 414 (1923); District of Columbia Court of Appeals v. Feldman,
460 U.S. 462 (1983)). Claims brought in district court in violation of the Rooker-Feldman
Doctrine are properly dismissed for lack of subject matter jurisdiction. Exxon Mobile Corp., 544
U.S. at 284. The Rooker-Feldman doctrine extends to claims that are “inextricably intertwined”
with issues already settled in state court. Bridgewater Operating Corp. v. Feldstein, 346 F.3d
27, 29 (2d Cir.2003) (holding that any claim that directly implicates a final judgment in state
court is barred by Rooker-Feldman ). Therefore, on this basis alone, Plaintiff’s complaint
against the State Defendants must be dismissed for lack of subject matter jurisdiction.
Finally, Plaintiff’s complaint fails to allege any facts that, assumed true, would plausibly
state a cause of action against the State Defendants. On this basis alone, Plaintiff’s complaint
against the State Defendants must be dismissed for failure to state a claim upon which relief can
be granted.
For all of these reasons, the State Defendants’ motion to dismiss the complaint against
them is granted.
B.
Plaintiff’s Claims Against the United States Must Be Dismissed
Plaintiff’s claims against the United States must be dismissed, generally for the reasons
asserted by the United States in its memorandum of law. (See Dkt. No. 19-2 [United States’
Mem. of Law].) The Court would only add the following three points.
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First, the United States correctly points out that Plaintiff’s claim is untimely. Plaintiff’s
administrative claim was filed on September 4, 2012, which is more than two years after its
accrual date of February 21, 2006. Consequently, Plaintiff’s claim is untimely pursuant to 28
U.S.C. § 2401(b). Plaintiff’s counter argument that his injury began on February 21, 2006 and is
continuing to this day may be liberally construed as an argument that a continuing violation
theory applies to the statute of limitations under the FTCA and that therefore, his claim is timely.
However, as indicated in Point II.D.1. of this Decision and Order, courts must apply New York
tort law when deciding claims under the FTCA. Here, New York common law does not
recognize tortious interference with prospective advantage as a continuing tort for purposes of
accrual of the statute of limitations. See Spinap Corp., Inc. v. Cafagno, 756 N.Y.S.2d 86, 87,
302 A.D.2d 588, 588 (N.Y. App. Div. 2003) (citing Bloomfield Bldg. Wreckers, Inc. v. City of
Troy, 364 N.E.2d 1130, 1131, 41 N.Y.2d 1102, 1103, 396 N.Y.S.2d 359, 360 (N.Y. 1977)).
Therefore, for this reason alone, Plaintiff’s complaint against the United States must be
dismissed for lack of subject matter jurisdiction.
Second, this court lacks subject matter jurisdiction of Plaintiff’s claim against the United
States because Congress has not waived the sovereign immunity of the United States in claims
for, as here, interference with contract rights. See Vitrano, 2008 WL 1752221, at *4 (citing 28
U.S.C. § 2680(h); Chen v. United States, 854 F.2d 622, 628, n.2 (2d Cir. 1988)). Therefore, for
this reason alone, Plaintiff’s complaint against the United States must be dismissed for lack of
subject matter jurisdiction.
Third, and finally, Plaintiff fails to allege any wrongdoing on the part of any employee or
agent of the United States that would give rise to any cause of action. For this reason alone,
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Plaintiff’s claims against the United States must be dismissed for failure to state a claim upon
which relief can be granted.
For these reasons, the United States’ motion to dismiss the complaint against it is
granted.
C.
Whether the Court Should Give Plaintiff an Opportunity to Further Amend
His Complaint Before Dismissing Any of His Claims
Liberally construed, Plaintiff’s opposition papers are interpreted to seek leave to amend
his complaint in order to repair any deficiencies. For the following reasons, Plaintiff’s request
for leave to file a motion to amend his complaint is denied.
Generally, when a district court dismisses a pro se action, the plaintiff will be allowed to
amend his action. See Gomez v. USAA Fed. Savings Bank, 171 F.3d 794, 796 (2d Cir. 1999).
However, an opportunity to amend is not required where, as here, the defects in the plaintiff’s
claims are substantive rather than merely formal, such that any amendment would be futile. As
the Second Circuit has explained, “[w]here it appears that granting leave to amend is unlikely to
be productive, . . . it is not an abuse of discretion to deny leave to amend.” Ruffolo v.
Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993) (citations omitted), accord, Brown v.
Peters, 95-CV-1641, 1997 WL 599355, at *1 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.) (“[T]he
court need not grant leave to amend where it appears that amendment would prove to be
unproductive or futile.”) (citation omitted); see also Foman v. Davis, 371 U.S. 178, 182 (1962)
(denial not abuse of discretion where amendment would be futile); Cuoco v. Moritsugu, 222 F.3d
99, 112 (2d Cir. 2000) (“The problem with Cuoco’s causes of action is substantive; better
pleading will not cure it. Repleading would thus be futile.”) (citation omitted); Cortec Indus.,
Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course, where a plaintiff is unable
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to allege any fact sufficient to support its claim, a complaint should be dismissed with
prejudice.”) (citation omitted).
Moreover, this rule applies even to pro se plaintiffs. See, e.g., Cuoco, 222 F.3d at 103;
Brown, 1997 WL 599355, at *1. While the special leniency afforded to pro se litigants
somewhat loosens the procedural rules governing the form of pleadings (as the Second Circuit
has observed), it does not completely relieve a pro se plaintiff of the duty to satisfy the pleading
standards set forth in Fed. R. Civ. P. 8; rather, as both the Supreme Court and Second Circuit
have repeatedly recognized, the requirements set forth in Fed. R. Civ. P. 8 are procedural rules
that even pro se civil rights plaintiffs must follow.
For these reasons, Plaintiff will not be given leave to amend his Complaint. Plaintiff’s
claims are dismissed with prejudice.
D.
Plaintiff’s Remaining Motions Must Be Denied
Remaining for this court’s consideration are Plaintiff’s motions for an Order (1)
identifying Defendants as corporate rather than government entities; (2) sanctioning Defendants
for delaying this action; (3) granting Plaintiff judgment on the pleadings, or, in the alternative,
summary judgment; and (4) providing the status of this action.
Because the court grants Defendants’ respective motions to dismiss Plaintiff’s complaint
with prejudice, Plaintiff’s motion for an Order identifying Defendants as corporate entities is
denied as moot. In any event, the relief Plaintiff seeks in this regard has no basis in law or fact
and is therefore, frivolous.
Plaintiff’s motion for sanctions against Defendants is denied as it has no basis in law or
fact and is therefore, frivolous.
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Plaintiff’s motion for status of this action is denied as moot.
Finally, Plaintiff’s motion for judgment on the pleadings and/or for summary judgment is
denied. As indicated above in Points III.A through III.C of this Decision and Order, Plaintiff’s
claims against the Defendants are dismissed with prejudice and any amendment would be futile.
For these reasons, each of Plaintiff’s motions is denied.
ACCORDINGLY, it is
ORDERED that the motion to dismiss the complaint by defendants New York State
Insurance Fund and State of New York (Dkt. No. 10) is GRANTED; and it is further
ORDERED that the motion to dismiss the complaint by defendant United States (Dkt.
No. 19) is GRANTED; and it is further
ORDERED that Plaintiff’s motions (Dkt. Nos. 37, 45, 46 and 47) are DENIED; and it is
further
ORDERED that, the Court having reviewed Plaintiff’s Complaint and having concluded
that there is no basis in law or fact for any of Plaintiff’s claims and that leave to re-plead would
be futile, Plaintiff’s Complaint as against all defendants (Dkt. No. 1) is DISMISSED in its
entirely with prejudice; and it is further
ORDERED that the Clerk of the Court shall amend the docket in this case to reflect that
the United States Attorney General is not a named defendant in this action.
Dated: August 18, 2014
Syracuse, New York
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