Rodriguez et al v. Winski et al

Filing 250

MEMORANDUM AND ORDER granting 246 Motion to Dismiss: For the foregoing reasons, defendants' motion to dismiss NPPA's Second Amended Complaint is granted for lack of standing. This Memorandum and Order resolves ECF Docket Entry No. 246. As there are no remaining plaintiffs, the Clerk of Court is respectfully directed to enter judgment for defendants and close the case. (Signed by Judge Naomi Reice Buchwald on 3/12/2020) (jwh) Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------X
YDANIS RODRIGUEZ, et al.,
Plaintiffs,
MEMORANDUM AND ORDER
- against –
12 Civ. 3389 (NRB)
EDWARD WINSKI, et al.,
Defendants.
---------------------------------X
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
This case arises from the so-called “Occupy Wall Street”
protests.

After years of litigation since this case was commenced

in 2012, the National Press Photographers Association (the “NPPA”
or “plaintiff”), which was added as a plaintiff in the First
Amended Complaint filed on October 16, 2012, is now the sole
remaining plaintiff. The only remaining defendants in this action
are the City of New York; former New York City Mayor Michael
Bloomberg; former New York City Police Commissioner Raymond Kelly;
and

several

officers

of

the

New

York

(“NYPD”) (collectively, “defendants”).

City

Police

Department

On May 16, 2019, the Court

granted in part and denied in part NPPA’s motion for leave to amend
its First Amended Complaint, and NPPA filed a Second Amended
Complaint (“SAC”) on June 7, 2019.
to dismiss the SAC.
is granted.

Subsequently, defendants moved

For the following reasons, defendants’ motion

I.
A.

BACKGROUND

Occupy Wall Street Protests

The claims NPPA seeks to assert in this action are based on
defendants’ alleged “mistreatment of [NPPA members] during their
press coverage of protests and demonstrations” that took place at
various locations in New York City in 2011 as part of the “Occupy
Wall Street” (“OWS”) protests.

SAC (ECF No. 247) ¶ 2.

Plaintiff

NPPA, a 501(c)(6) tax exempt New York corporation “dedicated to
the advancement of visual journalism,” id. at ¶ 10, alleges on
behalf of its approximately five thousand (5,000) active members
that the City of New York (the “City”) and other individuals who
are formerly or currently associated with the City in various
capacities denied its members’ rights.

Specifically, NPPA alleges

that defendants infringed its members’ rights under the First
Amendment to the United States Constitution (“First Amendment”)
and

Sections

8

and

12

of

Article

I

of

the

New

York

State

Constitution by (1) interfering with its members’ efforts to record
certain police actions in connection with the OWS protests, id. at
¶¶ 18-19;

and

(2)

preventing

them

from

reaching

publicly

accessible spaces where the OWS protests were taking place.

Id.

at ¶¶ 18, 24-25, 44.
In pleading its purported claims, NPPA identifies two of its
members by name.
arrested

on

First, NPPA member Stephanie Keith was allegedly

October

1,

2011

while

2

she

was

covering

an

OWS

demonstration on the Brooklyn Bridge.
defendant

NYPD

Lieutenant

Daniel

Id. at ¶ 44.

Albano

used

In addition,

physical

force

against Keith while she was covering a different demonstration on
September 15, 2012.

Id. at ¶ 47.

Second, NPPA alleges that, on

December 12, 2011, its member Robert Stolarik was physically
blocked by NYPD officers when he attempted to take photos of NYPD
officers arresting protesters at the Winter Garden.

Id. at ¶ 41.

NPPA also alleges that defendants infringed its members’
rights by taking action on November 15, 2011 to clear its members
out of the Zuccotti Park (the “Park”), which was then the primary
location of the OWS protests and by restricting access to the Park
for the remainder of the day.

Id. at ¶¶ 18, 25.

According to

NPPA, some journalists were arrested on the night of November 15,
2011 while attempting to reach the Park.

Id. at ¶ 25.

However,

NPPA does not identify any of its own members who were arrested
that night.

NPPA alleges that it expended time and resources

representing its members who were arrested or criminally charged
in the course of covering the OWS protests.
B.

Id. at ¶¶ 39; 49.

Procedural History

Fifteen individual plaintiffs commenced this action on April
30, 2012.

See ECF No. 1.

A few months later, on October 16, 2012,

NPPA joined this case when the First Amended Complaint (“FAC”) was
filed.

See ECF No. 33.

Following the Court’s Memorandum and Order

of September 26, 2013, which dismissed certain claims and severed

3

claims brought against a subset of defendants, see ECF No. 80, the
remaining parties engaged in over a year of fact discovery before
jointly requesting referral to a magistrate judge for settlement
discussions.

See ECF No. 116.

While the Court referred the case,

see ECF No. 118, it denied defendants’ subsequent request for a
stay of any further discovery in the hope that the parties would
“focus on discovery that will advance the settlement process.”
See

ECF

No.

146.

Targeted

discovery

and

several

rounds

of

settlement negotiations ensued.
By April 24, 2018, every plaintiff except NPPA had either
reached a settlement in principle with defendants or withdrawn her
claims.

See ECF No. 209.

On June 15, 2018, defendants filed a

letter seeking leave to file a motion for judgment on the pleadings
against NPPA, arguing that NPPA lacked standing to bring this
action and, alternatively, had failed to adequately plead any
claim.

See ECF No. 218.

In response, NPPA moved for leave to

amend its FAC in advance of defendants’ proposed motion.
No. 225.

On May 16, 2019, the Court issued a Memorandum and Order,

granting in part and denying in part NPPA’s motion.
237.

See ECF

See ECF No.

In granting leave, the Court allowed NPPA only to add “a

claim for damages suffered directly by the NPPA” because any other
substantive amendment following an unjustified delay of six years
would cause unfair prejudice to defendants.

4

Id. at 7-8, 11.

NPPA filed the SAC on June 7, 2019, see ECF No. 241, invoking
28 U.S.C. § 1331 for the Court’s jurisdiction over the claims it
seeks to assert under 42 U.S.C. § 1983.

See SAC ¶ 5.

As to the

claims it seeks to assert under New York law, NPPA has relied on
the Court’s supplemental jurisdiction.
dismiss the SAC on August 16, 2019.

II.

Id.

Defendants moved to

See ECF No. 246.

DISCUSSION: STANDING

At the outset, the Court addresses whether NPPA has standing
to bring the claims it seeks to assert in the SAC.

Standing “is

the threshold question in every federal case, determining the power
of the court to entertain the suit.”
443 F.3d 253, 263 (2d Cir. 2006).

Denney v. Deutsche Bank AG,

Article III of the United States

Constitution limits the Court’s jurisdiction to an “actual case or
controversy.”

U.S. Const. art III, § 2.

The doctrine of standing

animates this constitutional limitation by requiring a plaintiff
to establish “a personal stake in the outcome of the controversy
as to warrant his invocation of federal-court jurisdiction and to
justify exercise of the court’s remedial powers on his behalf.”
Warth v. Seldin, 422 U.S. 490, 498-99 (1975).
As the party invoking federal jurisdiction, NPPA bears the
burden of establishing standing.
504 U.S. 555, 561 (1992).

Lujan v. Defenders of Wildlife,

Under current standing jurisprudence,

an organization may assert two distinct types of standing: (1)

5

organizational standing, and (2) associational standing.
the

organizational

standing

theory,

“an

association

may

Under
have

standing in its own right to seek judicial relief to itself and to
vindicate whatever rights and immunities the association itself
may enjoy.”

Warth, 422 U.S. at 511.

In contrast, under the

associational standing theory, “an association has standing to
bring suit on behalf of its members.”

Hunt v. Wash. St. Apple

Advert. Commission, 432 U.S. 333, 343 (1977).
types of standing in bringing this action.

NPPA asserts both
Defendants maintain

that NPPA has neither.
A.

Organizational Standing

As just discussed, “an association may have standing in its
own right to seek judicial relief to itself and to vindicate
whatever rights and immunities the association itself may enjoy”
under the organizational standing theory.

Warth, 422 U.S. at 511.

To establish organizational standing, an organizational plaintiff
“must meet the same standing test that applies to individuals.”
Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638, 649 (2d Cir.
1998).

Accordingly, NPPA bears the burden of showing: (1) a

distinct and palpable injury in fact to itself as an organization;
(2) that is fairly traceable to the challenged action; and (3)
that a favorable decision would redress its injuries.
Daus, 644 F.3d 147, 156 (2d Cir. 2011).

6

Nnebe v.

The relief NPPA seeks in this action includes money damages
as well as injunctive and declaratory relief.

However, the only

injury allegedly suffered by NPPA as an organization is that NPPA
“dedicated

significant

time,

money,

and

resources

towards

advocating for its members’ rights and getting criminal charges
against its members dismissed after its members were arrested” as
a result of the challenged conduct by defendants.

SAC ¶¶ 39, 49.

The SAC does not contain allegations suggesting any infringement
of NPPA’s own rights—as opposed to its members’ rights—protected
by either of the Federal and the New York State Constitutions.
1.

Claim for Injunctive and Declaratory Relief

The alleged injury of “resources expended in advocating its
members’ rights and representing its members against criminal
charges” is insufficient to establish organizational standing to
pursue a claim for injunctive or declaratory relief.

On this

point, the Second Circuit’s decision in Knife Rights, Inc. v.
Vance, 802 F.3d 377 (2d Cir. 2015), is instructive and controlling.
In Knife Rights, the plaintiff Knife Rights was a membership
organization advocating the right to carry and use knives and
tools.

Id. at 381-82.

Knife Rights brought a lawsuit for

injunctive and declaratory relief against the City’s application
of New York Penal Law provisions criminalizing possession of
“gravity

knives,”

alleging

that

the

provisions in an overly vague manner.

7

City
Id. at

had

applied

379.

those

In bringing

that

lawsuit,

organizational
establish

Knife

Rights

standing.

organizational

asserted

Id.

at

both

associational

387-88.

standing,

Knife

In

its

Rights

and

effort
cited

to

“the

expenses [it] incurred in opposing [the City’s] application” of
the provisions at issue in a manner that infringed its members’
due process rights under the United States Constitution as the
injury it suffered on its own as an organization.
388.

Id. at 379,

Regarding this injury, the Second Circuit concluded that:
Even assuming that such expenditures “perceptively
impaired” [Knife Rights’] activities, they at best
demonstrate past injury.
Such injury might admit
standing to sue for compensatory damages. But it is not
an injury that can be redressed through the prospective
declaratory and injunctive relief sought in this action.

Id.

at

388

(emphasis

in

original).

Thus,

under

the

Second

Circuit’s reasoning in Knife Rights, the injury alleged by NPPA
does not provide NPPA organizational standing to pursue a claim
for the sought after injunctive or declaratory relief.

SAC ¶¶ 39,

49.
NPPA attempts to convert its alleged injury dating back to
2011 into a prospective one by citing a FINEST Message issued by
the NYPD on September 14, 2018 (the “Message”).

See SAC ¶ 50;

SAC, Ex. H (NYPD FINEST Message, dated September 14, 2018).

“The

NYPD’s ‘FINEST’ messaging system allows the transmission of legal
directives to the NYPD’s commands.”

Floyd v. City of New York,

959 F. Supp. 2d 668, 684 n.61 (S.D.N.Y. 2013).

8

In the Message,

NYPD reminded its officers to review their responsibilities when
dealing with members of the press, such as “not interfer[ing] with
photographing or videotaping by properly credentialed members of
the press.”

SAC, Ex. H.

The Message also reminded officers that

“parking of police (or other agency vehicles) . . . in areas that
are reserved by sign for the parking of press vehicles . . . [was]
strictly prohibited absent urgent or necessary police action.”
Id.

Despite the fact that the Message as a whole states a policy

that NPPA would presumably find unobjectionable, NPPA appears to
focus

on

the

phrase

“[i]n

light

of

recent

events

regarding

recording of police actions” at the beginning of the Message.
According

to

NPPA,

the

inclusion

of

this

phrase

necessarily

suggests that there had been a number of instances that constituted
violations of press members’ rights.
merit.

This argument is without

The relied upon statements in the Message are non-specific

and consequently cannot be used to establish a violation of any
NPPA member’s rights, upon which an injury to NPPA could be
predicated.

Further,

the

SAC

is

devoid

of

any

allegation

suggesting that the alleged conduct by defendants had persisted—
and that NPPA had repeatedly been injured as a consequence—during
the period of years between the incidents described in the SAC and
the issuance of Message. 1

The Message is not a substitute for such

1

Even were we to assume, contrary to the Message, that the alleged
“continuous and ongoing nature of the Constitutional violations at issue,” SAC
¶ 67, has created a prospect of NPPA expending additional resources in

9

an

allegation.

Moreover,

given

the

clear

policy

of

non-

interference that is currently in effect, there is no basis for
asserting a claim for equitable relief against the City, its former
officials and individual NYPD officers.

Therefore, the Court

dismisses NPPA’s claim that it seeks to assert on its own for lack
of standing to the extent it seeks any form of equitable relief.
2.

Claim for Compensatory Damages

As discussed above, the Second Circuit’s reasoning in Knife
Rights indicates that the injury alleged by NPPA might provide
NPPA organizational standing to pursue a claim for compensatory
damages.

However, NPPA has failed to proffer sufficient facts to

sustain its assertion of organizational standing to pursue any
such claim.

The Second Circuit has repeatedly observed that, in

contrast to a motion to dismiss for failure to state a claim, “when
the question to be considered is one involving the jurisdiction of
a federal court, jurisdiction must be shown affirmatively, and
that showing is not made by drawing from the pleadings inferences
favorable to the party asserting it.”

Shipping Fin. Serv. Corp.

v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998).

Therefore, in order

to pursue a claim to recover compensatory damages for resources it
allegedly

expended,

NPPA

must

adduce

sufficient

facts

that

advocating its members’ rights going forward, NPPA still has failed to establish
organizational standing to pursue a claim for equitable relief because it has
failed to show that such expenditures are “certainly impending” and not merely
possible. Knife Rights, 802 F.3d at 389.

10

establish an injury-in-fact on their face and without the benefit
of any inference that may be drawn therefrom.
To establish an injury-in-fact, an organizational plaintiff
must show that it has suffered “a ‘perceptible impairment’ of [its]
activities.”

Nnebe, 644 F.3d at 157.

NPPA’s allegation of injury

is, in essence, that it “dedicated significant time, money, and
resources towards advocating for its members’ rights and getting
criminal charges against its members dismissed after its members
were arrested by the NYPD for doing nothing more than performing
the responsibilities of their jobs.”

SAC ¶ 49. 2

Defendants argue

that the resources NPPA allegedly expended in advocating its
members do not amount to legally cognizable injury.

Contrary to

defendants’

“explicitly

contention,

the

Second

Circuit

has

rejected the argument that litigation expenses are insufficient to
demonstrate an injury in fact for the purposes of Article III
standing.”

Mental Disability Law Clinic, Touro Law Ctr. v. Hogan,

519 F. App’x 714, 717 (2d Cir. 2013).
However, NPPA still has failed to satisfy its burden to
affirmatively show that it has suffered injury-in-fact sufficient

2
NPPA’s conclusory allegation that it expended time and resources in
“supporting” its members in connection with the challenged conduct by
defendants, see, e.g., SAC ¶¶ 86, 94, does nothing to enhance its standing. To
establish organizational standing, an entity must sufficiently allege that “the
defendant’s conduct or policy interferes with or burdens an organization’s
ability to carry out its usual activities.”
De Dandrade v. U.S. Dep’t of
Homeland Sec., 367 F. Supp. 3d 174, 182 (S.D.N.Y. 2019) (emphasis added). The
SAC is completely devoid of any allegation detailing how the general support
that was purportedly provided by NPPA was inconsistent with NPPA’s ordinary
operations of advocating its members’ rights.

11

for organizational standing. As discussed earlier, the SAC focuses
on four incidents: the NYPD’s operation to expel protesters from
and deny them access to the Zuccotti Park on November 15, 2011; an
NYPD officer’s interference with NPPA member Stolarik’s attempt to
record police actions at the Winter Garden on December 12, 2011;
an NYPD officer’s arrest of Keith on the Brooklyn Bridge on October
1, 2011; and an encounter between defendant NYPD Lieutenant Daniel
Albano and Keith on September 15, 2012.

NPPA has failed to

establish any injury based on the incidents involving Stolarik and
Keith because the SAC provides no information as to how—or even
whether—NPPA expended any resources or time assisting either of
them in connection with these incidents.

The same defect applies

to NPPA’s pleading of injury-in-fact based on the November 15,
2011

Zuccotti

Park

incident.

The

SAC

does

not

provide

any

information—such as the number of members it assisted, the names
of arrested NPPA members who it assisted or any estimate of the
amount of time and money it expended in assisting its members—that
would help us determine that it actually expended any resources in
defending its members who were arrested or criminally charged in
connection with the Zuccotti Park incident.
NPPA’s failure to provide at this late date any specifics to
support

its

assertion

of

injury-in-fact

requisite

organizational standing is dispositive and inexcusable.

for

First,

NPPA was well aware from the defendants’ pre-motion letter, which

12

preceded NPPA’s motion for leave to amend, that defendants were
challenging NPPA’s standing.

Second, the absence of data to

support injury-in-fact is particularly striking since the record
of NPPA members who were represented by it should presumably be in
NPPA’s possession.
obtained

a

defendants.
2014.

Third, it is noteworthy that NPPA has already

significant

amount

of

discovery

materials

from

Discovery between NPPA and defendants began on May 1,

See ECF No. 99.

On November 19, 2014, on a motion to compel

by plaintiffs, the Court issued an order, requiring defendants to
produce certain documents “including arrest records.”
114.

See ECF No.

Defendants subsequently requested a stay of discovery with

respect to documents not covered by the Court’s Order of November
19, 2014, citing ongoing settlement discussions.
However, the Court denied the request.

See ECF No. 144.

See ECF No. 146.

By August

2016, the parties had already completed a substantial portion of
deposition discovery.

See ECF No. 176.

In sum, having failed to establish that the alleged conduct
by defendants caused any “perceptible impairment,” or even any
adverse effect, to its ordinary advocacy operations, NPPA has
failed to satisfy its burden to affirmatively show an injury-infact requisite for organizational standing.

Therefore, NPPA’s

claim for compensatory damages is dismissed for lack of standing.

13

B.

Associational Standing

As previously discussed, under the associational standing
theory, “an association has standing to bring suit on behalf of
its members” under qualifying circumstances.

Hunt v. Wash. St.

Apple Advert. Commission, 432 U.S. 333, 343 (1977).

To establish

associational standing, an organizational plaintiff must show that
“(1) its members would otherwise have standing to sue in their own
right; (2) the interests it seeks to protect are germane to the
organization’s purpose; and (3) neither the claim asserted nor the
relief requested requires the participation of individual members
in the lawsuit.”

Id. (numberings modified).

The Supreme Court

has treated this test as requiring, inter alia, “an organization
suing

as

representative

to

include

at

least

one

member

with

standing to present, in his or her own right, the claim (or the
type of claim) pleaded by the association.”

United Food and Com.

Workers Union Local 751 v. Brown Grp., Inc., 517 U.S. 544, 555
(1996).

While the first prong of the test prescribed in Hunt does

not go as far as requiring an organizational plaintiff asserting
associational standing to identify any member with standing in his
or her own right by name, the organizational plaintiff must at a
minimum “make specific allegations establishing that at least one

14

identified member had suffered or would suffer harm.”

Summers v.

Earth Island Inst., 555 U.S. 488, 498 (2009). 3
1.

Pleading of Associational Standing

NPPA’s pleading of associational standing fails to satisfy
the Hunt test.
name,

In the SAC, NPPA identifies two of its members by

Stephanie

Keith

and

Robert

Stolarik.

However,

the

allegations with respect to those members are insufficient to
support NPPA’s associational standing.

Stephanie Keith does not

have standing in her own right because, although she was an
original plaintiff, see ECF No. 1 (Complaint) at ¶ 23, Keith
eventually settled with defendants and consented to the dismissal
of all of her claims with prejudice.

See ECF No. 205.

Therefore,

allegations about any harm that Keith may have suffered cannot
provide any support to NPPA’s assertion of associational standing.
See

Summers,

555

U.S.

at

494

(rejecting

an

organizational

plaintiff’s assertion of associational standing based on a harm

3

We note that there is a split in this District as to whether the
associational standing doctrine requires identification by name of a member
with standing. Compare Equal Vote Am. Corp. v. Congress, 397 F. Supp. 3d 503,
509 (S.D.N.Y. 2019) (McMahon C.J.) (Stating “in order to bring claims on behalf
of its members under the ‘associational standing’ doctrine, an organizational
plaintiff . . . must identify, by name, at least one member with standing.”),
with Nat. Resources Def. Council, Inc. v. Wheeler, 367 F. Supp. 3d 219, 227
(S.D.N.Y. 2019) (Pauley J.) and New York v. U.S. Dep’t of Com., 351 F. Supp. 3d
502, 606 n.48 (S.D.N.Y. 2019) (Furman J.), rev’d on other grounds, 139 S. Ct.
2551 (2019) (Concluding that an organizational plaintiff must establish that at
least one identified member has suffered or would suffer harm but need not
identify by name any member with standing in his or her own right). We need
not address this issue in resolving this motion because NPPA’s pleading of
associational standing fails under either standard. Thus, we will proceed under
the more lenient standard.

15

allegedly suffered by its member who settled with respect to that
harm).
Nor are the allegations about Robert Stolarik sufficient to
establish NPPA’s associational standing.

NPPA alleges that NYPD

officers physically blocked its member Robert Stolarik while he
was attempting to record police actions in connection with a
demonstration that took place at the Winter Garden on December 12,
2011.

SAC ¶¶ 40-42. 4

Even were we to assume that Stolarik

sustained a harm sufficient under the first prong of the Hunt test,
NPPA’s assertion of associational standing based on Stolarik still
fails because of the third prong of the Hunt test, which requires
a showing that “neither the claim asserted nor the relief requested
requires the participation of individual members in the lawsuit.”
Hunt, 432 U.S. at 343.

Insofar as the claim NPPA seeks to assert

on behalf of its members is predicated solely on the interaction
between Stolarik and the NYPD on December 12, 2011 at the Winter
Garden, facts involving Stolarik as an individual would have to

4

Defendants argue that NPPA does not have standing to pursue any claim
based on allegations involving Stolarik because he filed a separate lawsuit on
his own, went to trial, and received a non-prevailing jury verdict. See Defs.’
Opp’n at 10.
This argument does not withstand close analysis.
In his own
lawsuit, Stolarik did not make any allegation as to the December 12, 2011
incident at Winter Garden and only asserted claims under the Fourth and
Fourteenth Amendments to the United States Constitution based on his arrest on
August 4, 2012 in the Bronx in a context completely unrelated to the OWS
protests. See Stolarik v. City of New York, et al., 15 Civ. 5858 (RMB), First
Amended Complaint (ECF No. 18). Accordingly, Stolarik’s individual action has
no bearing on this action, which is a lawsuit based on the alleged violations
of his First Amendment rights, and similar rights under the New York State
Constitution, in connection with the December 12, 2011 incident as part of the
OWS protests.

16

dominate, and Stolarik “would have to be involved in the proof of”
NPPA’s associational standing claim.

Bano v. Union Carbide Corp.,

361 F.3d 696, 714-15 (2d Cir. 2004).
Therefore,

NPPA

has

failed

to

satisfy

Article

III’s

requirements for associational standing, and any claims it seeks
to assert on behalf of its members are dismissed.
2.
Separate

Lack of Subject Matter Jurisdiction
from

NPPA’s

failure

to

satisfy

Article

III’s

requirements for associational standing, the claims NPPA seeks to
assert on behalf of its members should alternatively be dismissed
for lack of subject matter jurisdiction.

“It is the law of [the

Second] Circuit that an organization does not have standing to
assert the rights of its members in a case brought under 42 U.S.C.
§ 1983, as [the Second Circuit has] interpreted the rights § 1983
secures to be personal to those purportedly injured.”

Nnebe v.

Daus, 644 F.3d 147, 156 (2d Cir. 2011) (citing League of Women
Voters of Nassau Cty. v. Nassau Cty. Bd. of Supervisors, 737 F.2d
155, 160 (2d Cir. 1984)). While acknowledging different approaches
adopted by other circuits, the Second Circuit recently reaffirmed
this doctrine in Centro de la Comunidad Hispana de Locus Valley v.
Town

of

Oyster

Bay,

868

F.3d

104,

122-24

(2d

Cir.

2017).

Accordingly, NPPA cannot assert on behalf of its members any claim
under § 1983. Thus, the only remaining claims are those predicated
on alleged violations of its members’ rights under the New York

17

State Constitution. 5

NPPA relies on supplemental jurisdiction, as

it must, in invoking the Court’s jurisdiction over these claims.
Pursuant to 28 U.S.C. § 1367(c)(3), a district court “may decline
to

exercise

supplemental

jurisdiction

over

a

claim”

where

“the

district court has dismissed all claims over which it has original
jurisdiction.” See also Carnegie-Mellon Univ. v. Cohill, 484 U.S.
343, 350 n.7 (1988) (“[I]n the usual case in which all federal-law
claims are eliminated before trial, the balance of factors to be
considered under the pendent jurisdiction doctrine—judicial economy,
convenience, fairness, and comity—will point toward declining to
exercise

jurisdiction

over

the

remaining

state-law

claims.”).

Therefore, we decline to exercise supplemental jurisdiction over the
claims predicated on NPPA members’ rights under New York law that
NPPA seeks to assert on behalf of its members.

5

“The New York State Constitution provides a private right of action
where remedies are otherwise unavailable at common law or under § 1983.” Allen
v. Antal, 665 F. App’x 9, 13 (2d Cir. 2016).
Given the New York Court of
Appeals’ conclusion that an individual’s rights regarding the freedom of
expression and press under Article I, Section 8 of the New York State
Constitution are broader than those under the First Amendment to the United
States Constitution, Immuno AG. v. Moor-Jankowski, 77 N.Y.2d 235, 249 (N.Y.
1991), the NPPA members might have private causes of action under the New York
State Constitution that are distinct from the claims they might have been able
to bring under 42 U.S.C. § 1983. In resolving the pending motion, we assume
that NPPA members do have separate private causes of action under the New York
State Constitution without expressing any view as to the merits of this
proposition.

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