Donovan v. Norwich City School District et al

Filing 26

DECISION AND ORDER: It is hereby ORDERED that the # 18 Letter Request to Strike the Second Amended Complaint and the # 20 Letter Request to Strike the Second Amended Complaint are GRANTED and the # 16 Second Amended Complaint is STRICKEN. The # 17 Cross-Motion to file a Second Amended Complaint is DENIED and the Court sua sponte GRANTS Plaintiff leave of 21 days to file a Second Amended Complaint that complies with Fed. R. Civ. P. 8 and 10. Second Amended Complaint due by 3/9/2021. Th e # 11 Motion to Dismiss for Failure to State a Claim and the # 13 Motion to Dismiss for Failure to State a Claim are DENIED without prejudice to renewal upon Plaintiff filing a second amended complaint. Signed by Senior Judge Thomas J. McAvoy on 2/13/2021. (pjh, )

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
REGINA M. DONOVAN, individually
and o/b/o A.M.Y., an Infant,
Plaintiff,
-v-

3:19-CV-1638

NORWICH CITY SCHOOL DISTRICT, and
THE CITY OF NORWICH, NEW YORK,
Defendants.
_________________________________________
THOMAS J. McAVOY,
Senior United States District Judge

DECISION and ORDER
I.

INTRODUCTION
Plaintiff Regina M. Donovan, individually and on behalf of her daughter, A.M.Y.,

commenced this action against Defendants Norwich City School District (“School District”)
and The City of Norwich, New York (“City”). Plaintiff asserts that Defendants violated her
and A.M.Y.’s rights in connection with criminal charges brought against Donovan. These
criminal charges, which were dropped after Donovan was indicted by a grand jury, arose
because Donovan purportedly stated during a March 20, 2018 telephone conversation
with Norwich Middle School official Joseph Downey: “If someone touches my daughter
again, I will make it rain blood on the Norwich Middle School.” See Am. Compl., Dkt. No
10, Ex. A. There are several pending motions which the Court will address in an effort to
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obtain a clear operative pleading in this case.
II.

DISCUSSION
a. Second Amended Complaint, Dkt. No. 16
After Defendants moved to dismiss Plaintiff’s Complaint, Dkt. Nos. 4,6, Plaintiff filed

the Amended Complaint, Dkt. No. 10, as a matter of course pursuant to Fed. R. Civ. P.
15(a)(1)(B). In light of that filing, the Court denied Defendants’ initial dismissal motions as
moot. See Dkt. 15. Defendants then renewed their motions directed to the allegations in
the Amended Complaint. See Dkt. Nos. 11, 13. Defendant City also asserts in its motion
that if all claims are not dismissed, the Court should issue an order pursuant Fed. R. Civ.
P. 12(e) directing Plaintiff to file a more definite statement of her claims. Dkt. No. 13. The
asserted reason for this request is because Plaintiff’s “jumbled and repetitive presentation
of [her] claims made it difficult to ascertain what claims [she was] presenting with any
certainty.” Dkt. No. 13-3, at 25.
In response to these motions, Plaintiff filed a Second Amended Complaint. Dkt.
No. 16. Defense counsel correctly advised Plaintiff’s counsel that because Plaintiff had
previously filed an amended complaint as of course under Rule 15, Plaintiff could only
amend that pleading again with the opposing parties’ written consent or the court's leave.
See Fed. R. Civ. P. 15(a)(2). Defense counsel asked Plaintiff’s counsel to withdraw the
improperly filed Second Amended Complaint but Plaintiff’s counsel apparently ignored this
request and filed a cross-motion for leave to file a second amended complaint. Dkt. 17
(addressed below). Both Defendants move the Court to strike the Second Amended
Complaint that was improperly filed without stipulation or leave of court. See Dkt. Nos. 18,

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20. These motions, which are unopposed, are granted and the Second Amended
Complaint appearing on the docket as Dkt. No. 16 is stricken. See Rock v. American
Express Travel Related Services Co., No. 1:08-CV-0853 (GTS/RFT), 2008 U.S. Dist.
LEXIS 101909, *7-8 (N.D.N.Y. Dec. 17, 2008)(second amended complaint filed without
written consent of the opposing party or leave of the court is a nullity).
b. Cross-Motion for Leave to File Second Amended Complaint, Dkt. No. 17
Defendants oppose Plaintiff’s cross-motion for leave to file the proposed second
amended complaint. They correctly argue that Plaintiff failed to comply with applicable
Local Rules. The Local Rules provide in pertinent part:
A party moving to amend a pleading pursuant to Fed. R. Civ. P. 14, 15,
19-22 must attach an unsigned copy of the proposed amended pleading to
its motion papers. . . . The motion must set forth specifically the proposed
insertions and deletions of language and identify the amendments in the
proposed pleading, either through the submission of a redline/strikeout
version of the pleading sought to be amended or through other equivalent
means.
N.D.N.Y.L.R. 15.1 (formerly L.R. 7.1(a)(4), amended 1/1/21).
The proposed second amended complaint attached to the cross-motion is the
signed version that Plaintiff improperly filed, and it is not a redline/strikeout version of the
pleading sought to be amended. Further, the motion does not identify the proposed
insertions and deletions of language in the proposed pleading, or otherwise identify the
amendments in the proposed pleading. Moreover, Plaintiff does not address Defendants’
substantive arguments for dismissal of the claims in the Amended Complaint, or identify
where in the proposed second amended complaint factual allegations exist to legally

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support her claims. Rather, Plaintiff’s counsel asserts in an affirmation1 that Plaintiff seeks
leave to amend “on grounds that since filing the amended complaint, your affiant
subsequently retrieved materials held by [Donovan] relating to the underlying criminal
matter - such as the video recording referenced in the second amended complaint and
school board meeting minutes - that your affiant believes contain probative information
that helped your affiant address the alternate motion for a more definite statement, as well
as the motions per 12(b )(1) and (6).” Dkt. No. 17-1, ¶ 5. Despite this statem ent, Plaintiff
does not address Defendants’ substantive arguments for dismissal of the claims in the
Amended Complaint, identify where in the proposed second amended complaint factual
allegations exist to legally support her claims, or present any opposition to the request for
an order directing a more definitive statement. As argued by the defense, these omissions
have left the parties – and the Court – to sort through thirty-one pages of often-repetitive
and prolix allegations in an effort to determine what, if anything, Plaintiff has added in the
way of facts to address the alleged deficiencies in her claims. The Court declines to do
Plaintiff’s work for her. Because Plaintiff has failed to follow the Local Rules, her crossmotion to amend is denied without prejudice. For reasons discussed next, however, the
Court sua sponte grants Plaintiff leave to file a second amended complaint that complies
with Fed. R. Civ. P. 8 and 10.
c. Defendants’ Motions, Dkt. Nos. 11, 13, and Fed. R. Civ. P. 8, 10 & 12(e)
The fact that Plaintiff failed to respond to the substantive arguments in Defendants’
motions does not, by itself, prevent the Court from addressing the motions under the

1

Plaintiff did not provide a memorandum of law with her cross-motion as required by N.D.N.Y.L.R.

7.1(b).

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appropriate legal standard. See McCall v. Pataki, 232 F.3d 321, 322-23 (2d Cir. 2000);
Maggette v. Dalsheim, 709 F.2d 800, 802 (2d Cir. 1983); see also N.D.N.Y.L.R.
7.1(a)(3)(“Where a properly filed motion is unopposed and the Court determines that the
moving party has met its burden to demonstrate entitlement to the relief requested therein,
the non-moving party's failure to file or serve any papers as this Rule requires shall be
deemed as consent to the granting or denial of the motion, as the case may be, unless
good cause is shown.”). However, the manner in which Plaintiff has pleaded her various
claims, and without her responding to the Defendants’ arguments for dismissal, leads the
Court to conclude that a new pleading is required before the Court can rule on
Defendants’ arguments for dismissal.
“It has long been understood that a dismissal for failure to state a claim upon which
relief can be granted, pursuant to Fed. R. Civ. P. 12(b)(6), can be based on one 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.” Hughes v. Butt, No.
9:17-CV-1151 (DNH/ML), 2019 U.S. Dist. LEXIS 160042, at *21 (N.D.N.Y. Sep. 17, 2019)
(citing 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)). “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.’" Id., at *22 (quoting
Fed. R. Civ. P. 8(a)(2)). “[T]his 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.

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P. 8(a)(2).” Id. “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.’" Id.
(citing 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.’" Id. (quoting Jackson, 549 F. Supp. 2d at 212, n.17 (citing
Supreme Court cases)). “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.” Id. at *22-23 (citing 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.’” Id., at * 22 (citing 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.” Id. (citing Rusyniak, 629 F. Supp. 2d at 213, n.22 (citing Supreme Court and
Second Circuit cases); Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949-52, 173 L.
Ed. 2d 868 (2009)); see Iqbal, 556 U.S. at 678 ("[T]he pleading standard Rule 8
announces does not require detailed factual allegations, but it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation." )(citation and internal
quotation marks omitted); Dettelis v. Sharbaugh, 919 F.3d 161, 168 (2d Cir. 2019) ("Rule

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8 of the Federal Rules of Civil Procedure ‘demands more than an unadorned,
the-defendant-unlawfully- harmed-me accusation.'")(quoting Iqbal, 556 U.S. at 678).
The Claims for Relief in the Amended Complaint are hardly the model of pleading
clarity, and are not “short and plain statement[s] of the claim[s] showing that the pleader is
entitled to relief” as required by Fed. R. Civ. P. 8(a)(2). Plaintiff fails to label her causes of
action, engages in repetitive phrasing of boilerplate allegations in many of the causes of
action, see, e.g., Am. Compl. ¶¶ 32, 35, 38, 41, 44, 47, 51, 2 and uses long run-on
sentences and lengthy paragraphs. See, e.g., id. ¶¶ 31-33. For reasons discussed next,
the claims, as asserted, do not provide Defendants with fair notice of what Plaintiff's
claims are and the grounds upon which they rest.
Plaintiff appears to assert violations of several rights in single causes of action, and
some causes of action are susceptible to differing interpretations. For example, the
Fourth Claim for Relief can be read as a Fourteenth Amendment due process violation
based on A.M.Y.’s “liberty interest” in being “free from harm” by fellow students, as
Defendant City reads it. See Am. Compl. ¶¶ 40-42. But it can also be interpreted as
including a First Amendment retaliation claim by Plaintiff Donovan. See id. at ¶ 41
(“Defendants' actions and/or failures to act described herein . . . were retaliatory, intended
to punish plaintiff for exercising constitutional rights, and to stop her from any future
exercise of such rights, most notably her free speech right to advocate for her daughter's
safety at school, for her daughter's rights as a disabled infant, and her rights as parent of a
2

For instance, each of these paragraphs contain some variation of the phrase: “Defendants' acts
described above were taken at the direction of, and/or with approval, toleration and ratification by those with
final decision making authority on such matters, and/or with their approval, toleration and ratification, were all
performed with malice and premeditation under color of state law with willful and wanton disregard of
plaintiff's” rights.

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disabled infant.”). Plaintiff’s Seventh Claim for Relief can be interpreted as a state law
claim for slander, as Defendant City reads it, but it could also be interpreted as including a
First Amendment retaliation claim by Plaintiff Donovan. See id. ¶¶ 48-52 (“[S]chool district
officials and Norwich Police officials . . . engaged in a campaign of innuendo and slander
against the plaintiff for over a year” in connection with the criminal charges against Plaintiff
Donovan, “which was retaliatory and intended to punish plaintiff for exercising [her First
Amendment] rights . . . and to stop her from any future exercise of such rights.”).
Plaintiff’s Eleventh Claim for Relief can be interpreted as a state-law negligent failure to
train claim, as Defendant City interprets it, but it can also be interpreted as a Monell failure
to train or supervise claim against both Defendants. See id. ¶ 63 (“Such failures [to train or
supervise] amounted to deliberate indifference to rights of persons such as the plaintiff,
and was an actual cause of the constitutional deprivations and injuries plaintiff and her
daughter suffered as set forth herein.”). In Plaintiff’s Thirteenth Claim for Relief she
asserts that “Defendants' actions set forth herein violated plaintiff and her daughter's right
to be free from unreasonable searches and seizures, their rights to procedural and
substantive due process, as well as equal protection of the law under the New York State
Constitution's applicable provisions,” again seemingly asserting violations of several rights
in a single claim. Id. ¶ 65.
It is also unclear whether Plaintiff intends her Eighth and Ninth Claims for Relief to
be retaliation claims under Section 504 of the Rehabilitation Act of 1973 (“Rehabilitation
Act”) and Title II of the Americans with Disabilities Act (“ADA”) as Defendant City interprets

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the claims, see Dkt. 13-3, at 15-16, 3 see also Am. Compl. ¶ 53,4 ¶ 55 (same with regard to
the ADA), or claims brought pursuant to 42 U.S.C. § 1983 against both Defendants for
actions that interfered with Plaintiff or A.M.Y.’s rights under these statutes. Plaintiff asserts
at paragraph 5 that the School District is subject to jurisdiction under the Rehabilitation Act
and the ADA because it “is a recipient of federal financial assistance in connection with its
special education and other programs,” id. ¶ 5, but makes no similar claim against the
City. Thus, it appears that Plaintiff intends, at least with regard to Defendant City, that the
Eighth and Ninth Claims for Relief are brought pursuant to § 1983. But because Plaintif f
does not specifically assert these claims are brought pursuant to § 1983, 5 they are
susceptible to differing interpretations as happened with Defendant City.
“‘If a pleading . . . is so vague or ambiguous that [the responding] party cannot
reasonably be required to frame a responsive pleading, [the responding party] may move
for a more definite statement’ under Fed. R. Civ. P. 12(e) which is designed to strike at
unintelligibility rather than want of detail.” Bacon v. Mandell, Civil Action No. 10-5506

3

("Plaintiffs' claims under the Rehabilitation Act and the Americans with Disabilities Act (Eighth and
Ninth Claims) are deficient for failure to adequately allege a protected disability, and because the City is not
alleged to have taken any action against a disabled person. . . . Further, Plaintiffs have presented no factual
allegations making it ‘plausible’ to infer that the City’s police officers took steps against Plaintiff Donovan in
retaliation for her purported advocacy on behalf of her daughter, rather than in response to the report that she
had made a violent threat to the school official.")
4

(“Defendants' acts conspiring by concerted action to accomplish an unlawful purpose by unlawful
means, and/or their failures to act, were adverse to plaintiff and her daughter, were retaliatory, and intended
to intimidate, threaten, coerce and/or discriminate against plaintiff and her daughter for the purpose of
interfering with rights and/or privileges secured by the Rehabilitation Act (29 U.S.C. § 794, et seq.) for plaintiff
and her daughter, most notably retaliation by bringing false criminal charges against plaintiff for making
complaints and seeking investigation of what was happening to her daughter at school, and attempting to
stop plaintiff from any future assertion of her daughter's rights, or her own under the Act.”)
5

The only reference to Section 1983 is in the first paragraph where Plaintiff asserts: “This Court's
jurisdiction over this action's subject matter is predicated on 42 U.S.C. 1983, 28 U.S.C., Secs. 1331 and
1343. Plaintiff further invokes supplemental jurisdiction of this Court per 28 USC 1367 to hear and decide
plaintiff's state law claims.” Am. Compl. ¶ 1.

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(JAP), 2012 U.S. Dist. LEXIS 132231, at *62 (D.N.J. Sep. 14, 2012)(citations om itted).
While Rule 12(e) is generally raised by the responding party as Defendant City does here,
some courts have found that the Court may raise the issue sua sponte under its general
supervisory obligation. See Wagner v. First Horizon Pharm. Corp., 464 F.3d 1273, 1275
(11th Cir. 2006) ("district courts [have a] supervisory obligation to sua sponte order
repleading pursuant to [Rule] 12(e) when a shotgun complaint fails to link adequately a
cause of action to its factual predicates"); Bacon, 2012 U.S. Dist. LEXIS 132231, at *6263 (“Although, as a typical scenario, the protections of Rule 12(e) are resorted to by
responding parties making appropriate motions to the presiding tribunals, district courts
occasionally resort to Rule 12(e) sua sponte.”); 6 Prince v. Entergy Nuclear Operations,
Inc., No. 5:11-CV-74, 2011 WL 3363207, at *3 (D. Vt. Aug. 3, 2011)(“Accordingly, at the
conclusion of argument, the court ruled sua sponte that Plaintif fs allegations of unlawful
retaliation were not sufficiently specific with regard to whether he had engaged in
‘protected activity’ under FEPA, and ordered Plaintiff to submit a "more definite statement"
pursuant to Rule 12(e).”). Without Plaintiff’s response to the dismissal motions, and given
the confusing nature of some of the allegations, it would be a waste of scarce judicial
resources to proceed on Defendants’ motions based on their interpretations of the claims
only to have Plaintiff seek reconsideration on the grounds that the claims presented
different theories than ruled upon, or seek to am end after the ruling. The Court finds that

6

(citing Elliott v. Perez, 751 F.2d 1472, 1482 (5th Cir. 1985)(pointing out that the district court, when it
finds that the complaint is not sufficient to permit a proper adjudication of the matter of immunity has the
power, sua sponte, to require a more definite statement under Rule 12(e)); De Witt v. Pail, 366 F.2d 682, 685
(9th Cir. 1966) ("Failure, in an initial complaint, to set forth the claim by means of a short and plain statement,
as required by Rule 8(a)(2), is not a ground for dismissal of an action with prejudice, since there are
procedures available for correcting a vague or prolix complaint. Among such available procedures are those
provided for in Rule 12(e) . . . .")(internal citations omitted))

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it would be in everyone’s best interest to direct Plaintiff to file a second amended
complaint that more clearly provides fair notice of what Plaintiff’s claims are and the
grounds upon which they rest in accordance with Fed. R. Civ. P. 8(a)(2). Accordingly, the
Court sua sponte orders pursuant to Rule 12(e) that Plaintif f replead her claims consistent
with Rule 8's fair notice requirements. Further, Plaintiff should replead these claims in
accordance with Fed. R. Civ. 10's requirement that “[a] party must state its claims . . . in
numbered paragraphs, each limited as far as practicable to a single set of circumstances.”
Fed. R. Civ. P. 10(b). Defendants’ motions to dismiss, Dkt. Nos. 11, 13, are denied
without prejudice to renewal upon Plaintiff filing a second amended complaint.
IV.

CONCLUSION
For the reasons discussed above, Defendants’ motions to strike the Second

Amended Complaint, Dkt. Nos. 18, 20, are GRANTED, and Dkt. No. 16 is STRICKEN.
Plaintiff’s cross-motion to file the proposed second amended complaint, Dkt. No. 17, is
DENIED, and the Court sua sponte GRANTS Plaintiff leave of twenty-one (21) days to file
a second amended complaint that complies with Fed. R. Civ. P. 8 and 10. Defendants’
motions to dismiss, Dkt. Nos. 11, 13, are DENIED without prejudice to renewal upon
Plaintiff filing a second amended complaint.
IT IS SO ORDERED.
Dated: February 13, 2021

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