Gym Door Repairs, Inc. et al v. New York City Department of Education et al
Filing
56
OPINION re: 49 MOTION for Judgment on the Pleadings filed by Thomas Fanizzi, John T. Shea, The Board of Trustees of the New York City School Construction Authority, New York City Department of Education, Volkert Braren, The C ity of New York, Chris Coyle, John Does 1-5, Dennis M. Walcott, Chris D'Alimonte, New York City School Construction Authority. Upon the conclusions set forth above, Defendants' motion for judgment on the pleadings is granted and the Complaint is dismissed with leave given to replead within twenty-one days. It is so ordered. (See Order.) (Signed by Judge Robert W. Sweet on 11/3/2014) (ajs)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------x
GYM DOOR REPAIRS,
SYSTEMS LLC,
INC. and SAFEPATH
Plaintiff,
12 Civ. 7387
OPINION
-againstNEW YORK CITY DEPARTMENT OF EDUCATION,
DENNIS M. WALCOTT, as Chancellor of the
New York City Department of Education,
NEW YORK CITY SCHOOL CONSTRUCTION
AUTHORITY, THE BOARD OF TRUSTEES OF THE
NEW YORK CITY SCHOOL CONSTRUCTION
AUTHORITY, THE CITY OF NEW YORK,
JOHN T. SHEA, as chief Executive Officer
of New York City Department of
Education Division of School Facilities,
VOLKERT BRAREN, as Director of Program
Management of NYCDOE, CHRIS COYLE, as
Construction Project Manager of New York
City Department of Education,
CHRIS D'ALIMONTE, as Borough Contract
Manager of New York City Department of
Education, THOMAS FANIZZI, as Manhattan
Maintenance Planner of New York City
Department of Education and Division of
School Facilities and JOHN DOE NUMBERS 1
through 5, whose names are not presently
unknown, as agents, servants and employees
of THE CITY OF NEW YORK,
Defendants.
------------------------------------------x
A P P E A R A N C E S:
Attorneys for Plaintiffs
CALCAGNI & KANEFSKY, THE NEW JERSEY OFFICE OF HARRIS,
O'BRIEN, ST. LAURENT & CHAUDHRY, LLP
One Newark Center
1085 Raymond Blvd. 14th Floor
Newark, NJ 07102
By:
Eric T. Kanefsky, Esq.
Attorneys for Defendants
ZACHARY W. CARTER
Corporation Counsel of the City of New York
100 Church Street, Room 5-180
New York, NY 10007
By:
Scott Glotzer, Esq.
Sweet, D.J.
Defendants, New York City Department of Education
("DOE"), New York City School Construction Authority ("NYCSCA"),
The City of New York ("City" and collectively "Municipal
Defendants"), and The Board of Trustees of NYCSCA, Dennis M.
Walcott, John T. Shea, Volkert Braren, Chris Coyle, Chris
D'Alimonte, Thomas Fanizzi, as employees of DOE (sued only in
their official capacities)
("Individual Defendants" and,
together with Municipal Defendants, "Defendants"), have moved
for Judgment on the Pleadings with respect to the complaint
("Complaint") of plaintiffs Gym Door Repairs,
Inc.
("GDRI") and
Safepath Systems LLC ("SSL" and collectively, "Plaintiffs"), on
the grounds that Plaintiffs have not alleged the existence of an
unconstitutional municipal policy, that the lack of a
preexisting commercial relationship between Plaintiffs and
2
Defendants bars Plaintiffs' First Amendment retaliation claim,
and that the basis for injunctive relief has not been
established, pursuant to Rule 12(c) of the Federal Rules of
Civil Procedure.
Upon the conclusions set forth below, the
motion is granted.
Prior Proceedings
Plaintiffs filed this Section 1983 action on October
1, 2012, seeking compensatory damages and injunctive relief for
the deprivation of Plaintiffs' procedural due process,
substantive due process, and First Amendment rights.
Upon the
Defendants' motion to dismiss, this Court dismissed the
Complaint on September 10, 2013.
Plaintiffs appealed and, by
Summary Order dated April 30, 2014, the Second Circuit affirmed
the District Court's dismissal of the procedural and substantive
due process claims, and vacated the dismissal of Plaintiffs'
First Amendment retaliation claim.
See Safepath Sys. LLC v. New
York City Dep't of Educ., 563 F. App'x 851, 855
(2d Cir. 2014).
The Second Circuit remanded for further consideration of
Plaintiffs' claim for injunctive relief.
3
See id. at *857.
The Complaint sets forth the following allegations:
In 2001, the New York State legislature enacted Education Law
§
409-f (the "Statute") in response to the death of two students
resulting from accidents involving electrically operated
Compl. 'II 15.
partitions used in school gyms.
The Statute
mandated that
Every electrically operated partition or
room divider shall be equipped with safety
devices which, subject to standards
established in rules and regulations
promulgated by the commissioner, stop the
forward motion of the partition or room
divider .
. when a body passes between the
leading panel of such divider and a wall, or
when a body is in the stacking area of such
partition or divider.
N.Y. Educ. L.
§
409-f.
In furtherance of the Statute, the New York State
Education Department promulgated and implemented Commissioner's
Regulation
§
155.25 (the "Regulation"), which required, inter
alia, that the safety equipment installed pursuant to the Statue
"shall not be tampered with, overridden or by-passed" and "must
be maintained in accordance with the manufacturer's
instructions, including the manufacturer's recommended service
interval .
II
Compl. 'II 1 7.
4
Plaintiffs are manufacturers, installers and service
contractors of a door safety system called the Saf epath System
("SPS" or the "System"), which is designed to prevent accidents
involving electrically operated partition doors.
In or around
2007, NYCSCA, which is responsible for ensuring the safety of
New York City's school facilities,
issued the New York City
School Construction Authority Manual (the "Specifications"),
setting forth details and instructions regarding the design,
construction and maintenance of electrically operated partitions
in the City's schools.
Section 4(a) of the Specifications
mandated that "[t]he infra-red safety detection system shall be
"Safe-Path" as manufactured by [GORI]
II
Although there are more than 1,000 electrically
operated partitions that require a door safety system pursuant
to the Statute, Plaintiffs have not installed their Safepath
System in more than half of those locations.
Id. 'TI'TI 41-44.
Moreover, the Safepath Systems that have been installed have not
been regularly inspected, serviced, repaired and/or maintained
exclusively by Plaintiffs.
Id. 'TI'TI 45-46.
5
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-------
Beginning in 2004, Plaintiffs repeatedly advised
Defendants concerning their alleged property interest vested by
the Statute, Regulation and Specifications, and demanded that
Defendants adhere to the requirements of these mandates by
exclusively utilizing Plaintiffs' products and services.
48-57.
Defendants rejected these demands.
Id. '!I'll
Id. 'II 61.
After unsuccessfully seeking redress from the New York
City Department of Investigations and the New York State
Attorney General's Office, in March 2011 Plaintiffs commenced a
lawsuit in New York Supreme Court pursuant to N.Y. C.P.L.R. § 78
(the "Article 78 Action")
in which they sought to compel
Defendants to recognize their alleged property interest and
enforce the Defendants' compliance with the Statute and the
Regulation.
Id. '!I'll 63-65.
The New York Supreme Court
(the
"State Court") ultimately ruled that Plaintiffs lacked standing
Id. 'II 65.
to bring the Article 78 Action.
According to Plaintiffs, Defendants retaliated for the
filing of the Article 78 Action by directing contractors engaged
by NYCDOE and NYCSCA to perform school construction and
improvement work to "never use" Plaintiffs' Safepath System or
services on any school-related construction projects.
6
Id. 'II 66.
In or about April 2012, references to Plaintiffs and
the Safepath System were removed from the Specifications.
67.
Id.
<][
According to Plaintiffs, Defendants effected this
modification of the Specifications in retaliation for
Plaintiffs' efforts to enforce compliance with the Statute,
Regulation and Specifications.
Id.
Plaintiffs thereafter initiated the instant lawsuit,
in which they have asserted Section 1983 claims for violation of
their procedural and substantive due process rights as a result
of being deprived of their alleged property interest, and for
First Amendment retaliation, and requested injunctive relief
requiring Defendants to exclusively use Plaintiffs' products and
services in the course of complying with the Statute.
Following
this Court's September 10, 2013 decision on Defendants' motion
to dismiss and Plaintiffs' subsequent appeal to the Second
Circuit, only the First Amendment claim and request for
injunctive relief survive.
The Defendants' instant motion was heard and marked
fully submitted on September 17, 2014.
7
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The Applicable Standard
In deciding a motion under Rule 12 (c) of the Federal
Rules of Civil Procedure for judgment on the pleadings, courts
apply "the same standard as that applicable to a motion under
Rule 12(b) (6), accepting the allegations contained in the
complaint as true and drawing all reasonable inferences in favor
of the nonmoving party."
( 2d Cir. 2004)
Ziemba v. Wezner, 366 F.3d 161, 163
(internal quotations and citations omitted) .
The
issue "is not whether a plaintiff will ultimately prevail but
whether the claimant is entitled to offer evidence to support
the claims."
375, 378
Villager Pond, Inc. v. Town of Darien, 56 F.3d
(2d Cir. 1995)
(quoting Scheuer v. Rhodes,
416 U.S.
232, 235-36 (1974)).
Under Rule 12(b) (6), "a complaint must contain
sufficient factual matter, accepted as true, to 'state a claim
to relief that is plausible on its face.'"
556 U.S. 662, 678
(2009)
550 U.S. 544, 570
(2007)).
Ashcroft v. Iqbal,
(quoting Bell Atl. Corp. v. Twombly,
Plaintiffs must allege sufficient
facts to "nudge[ ] their claims across the line from conceivable
to plausible."
Twombly, 550 U.S. at 570.
Though the court must
accept the factual allegations of a complaint as true, it is
8
"not bound to accept as true a legal conclusion couched as a
factual allegation."
Iqbal, 556 U.S. at 678
(quoting Twombly,
550 U.S. at 555).
Section 1983 "does not itself provide substantive
rights, but in fact offers a method for vindicating federal
rights elsewhere conferred."
Humphrey v. County of Nassau,
CV-3682, 2009 WL 875534, at *17
(internal quotations omitted)
06-
(E.D.N.Y. Mar. 30, 2009)
(citing Patterson v. County of
Oneida, 375 F.3d 206, 225 (2d Cir. 2004)); City of Oklahoma City
v. Tuttle, 471 U.S. 808, 816 (1985); Sykes v. James, 13 F.3d
515, 519 (2d Cir. 1993).
In general, "Section 1983 provides a
cause of action for the 'deprivation of any rights, privileges,
or immunities secured by the Constitution and laws' by any
person acting 'under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory.'"
Gomez v. Toledo, 446 U.S. 635, 638
(1980).
The Substantive First Amendment Retaliation Claim Is
Adequately Pled
To prevail on a claim for First Amendment retaliation,
a plaintiff must demonstrate:
(1) that his speech addressed a
9
--------------------------------
matter of public concern;
(2) that he suffered an adverse
action; and (3) the existence of a causal connection between the
speech and the adverse action indicating that the speech was a
motivating factor for the adverse action.
Suffolk, 316 F.3d 368,382
(2d Cir. 2003)
Mandell v. County of
(internal quotations
omitted) .
The Second Circuit's determination that Plaintiffs
satisfied all three elements of their First Amendment
retaliation claim for the purposes of a motion to dismiss is
equally applicable to the instant motion for judgment on the
pleadings.
Safepath, 563 F. App'x at 857-58; see Ziemba, 366
F.3d at 163 (Rule 12(b) (6) and Rule 12(c) motions are decided
according to the same standard).
Nevertheless, Defendants
contend that Plaintiffs' claim merits dismissal because they
lack a preexisting commercial relationship with Defendants, as
required under Second Circuit law.
See generally, Defs.' Mem.
in Supp. 11-12.
While independent contractors in a preexisting
commercial relationship with a government entity are afforded
First Amendment protection, the same protection has not been
unequivocally extended to entities without a preexisting
10
commercial relationship.
See Bd. of Cnty. Comm'rs, Wabaunsee
Cnty., Kan. v. Umbehr, 518 U.S.
668,
685
(1996)
(declining to
address the possibility of First Amendment protection for
contractors without a pre-existing commercial relationship);
African Trade & Info. Ctr., Inc. v. Abromaitis, 294 F.3d 355,
360
(2d Cir. 2002)
(same).
A preexisting commercial relationship encompasses, but
also extends beyond, a contractual relationship.
Works,
Inc. v. Giuliani, 56 F. App'x 530,
533
See Hous.
(2d Cir. 2003)
In the absence of a contractual relationship, courts consider
whether there exists "a longstanding relationship" of a
character similar to those described in Umbehr and its companion
case, O'Hare Truck Serv., Inc. v. City of Northlake, 518 U.S.
712
(1996).
See Hous. Works,
56 F. App'x at 533.
In Umbehr, a
contractor provided a municipality with trash collection
services pursuant to a renewable six-year service contract,
which the municipality chose to not renew following the
contractor's exercising his First Amendment rights.
U.S. at 671.
See 518
In O'Hare, the contractor was on a list of
approved tow truck operators, from which the municipality
selected this contractor on a rotational basis.
715.
518 U.S. at
The Court in O'Hare found "it sufficient that there was a
11
[commercial] relationship that, based on longstanding practice,
[the plaintiff] had reason to believe would continue."
518 U.S.
at 721 (quoted in Hous. Works, Inc., 56 F. App'x at 533).
The Second Circuit in Housing Works similarly
concluded that the a preexisting commercial relationship existed
where a contractor and a municipality had a longstanding
relationship, pursuant to which the municipality entered into
numerous contracts with the contractor to receive a number of
services from the contractor with respect to the municipality's
homeless population.
Id.
By contrast, the Second Circuit ruled
that a preexisting commercial relationship did not exist where
consultants who had not previously been retained by a
municipality were allegedly removed from the pool of candidates
for an upcoming consultancy appointment.
Abromaitis, 294 F.3d 355, 358
African Trade v.
(2d Cir. 2002); cf. Mcclintock v.
Eichelberger, 169 F.3d 812, 816 (3d Cir. 1999)
(an oft-quoted
opinion where the Third Circuit held that two discrete contracts
between a municipality and a contractor, each for different
services, followed by a separate vendor-vendee relationship, did
not constitute a preexisting commercial relationship).
12
At the pleadings stage, the relationship between
Plaintiffs and Defendants can be fairly analogized to the
preexisting commercial relationship in O'Hare.
Over the course
of several years, Plaintiffs had provided subcontractor services
to approximately half of Defendants' 1,000 schools.
Prior to
Plaintiff's protected speech, SPS was explicitly referenced in
Defendants' Specifications and Plaintiffs had reason to believe
that they would be eligible subcontractors for door safety
services.
As in O'Hare, Plaintiffs were barred from being
considered as potential contractors by Defendants only following
their protected speech.
Defendants contend that Plaintiffs' injury not only
predated but actually precipitated their protected speech.
Defs.' Reply Mem. 8 (contending that it is the "absence of a
commercial relationship that Plaintiffs complained of").
However, Plaintiffs do not allege that they were banned as
subcontractors prior to their protected speech.
They also do
not allege that SPS had been officially removed from the
Specifications prior to their protected speech.
retaliatory acts against which Plaintiffs sue.
It is these
Plaintiffs "had
reason to believe [their preexisting relationship providing
Defendants with door safety services] would continue,"
13
O'Hare,
518 U.S. at 721, which changed only after their protected speech
and Defendants' decision to re-write the Specifications and to
bar general contractors from hiring Plaintiffs.
Defendants further contend that they lacked privity of
contract with Plaintiffs, and therefore, cannot be said to have
a commercial relationship.
See Defs.' Mem. in Supp. 12.
However, assuming Plaintiffs' First Amendment allegations to be
true, Defendants in fact determined whether Defendants could be
hired as subcontractors by the general contractors with whom
Defendants had contractual relationships, which thereby
constituted a de facto commercial relationship with Plaintiffs.
Thus, the absence of privity is not fatal to Plaintiff's First
Amendment retaliation claim.
In short, as the Second Circuit held in considering
Plaintiffs' appeal in this case, "although [P]laintiffs are
independent contractors rather than public employees, their
First Amendment rights are still protected."
App'x at 856.
14
Safepath, 563 F.
---------------- ----
----------~
The Monell Elements Are Not Met
In addition to the substantive elements of the First
Amendment retaliation claim, Plaintiffs must also satisfy the
elements under Monell v. Dep't of Soc. Servs. of City of New
York, 436 U.S. 658
(1978).
See Friel v. Cnty. of Nassau,
Supp. 2d 239, 256 (E.D.N.Y. 2013)
947 F.
(conducting a two-tier
analysis whereby both the First Amendment retaliation elements
and the Monell requirements must be met in a Section 1983
claim); Kilduff v. Rochester City Sch. Dist., 10-CV-06387, 2014
WL 4659324, at *5-6 (W.D.N.Y. Sept. 16, 2014)
(holding that a
valid constitutional law claim against a municipality requires
both the elements of the claim as well as the Monell
requirements to survive a motion to dismiss); cf. Segal v. City
of New York, 459 F. 3d 207, 219 (2d Cir. 2006)
(holding that
"[b]ecause the district court properly found no underlying
constitutional violation,
[it need not] address the municipal
defendants' liability under Monell" when dismissing a Section
1983 claim).
As Individual Defendants are sued in their
official capacities, the Monell requirements apply equally to
them.
Odom v. Kerns,
99 CIV. 10668, 2000 WL 1229849, at *2
(S.D.N.Y. Aug. 29, 2000)
(2d Cir. 1998)
(citing Decarlo v. Fry, 141 F.3d 56,
(a "claim against a municipal officer acting in
15
61
-
-- -
------------------
------
------------
his official capacity is equivalent to a claim against the
municipality").
To satisfy Monell: "a plaintiff must .
basic elements:
. show two
(1) the existence of a municipal policy or
. that caused his injuries beyond merely employing
custom .
the misbehaving officers and (2)
a causal connection-an
affirmative link-between the policy and the deprivation of his
constitutional rights."
App'x 36, 38
Harper v. City of New York,
(2d Cir. 2011)
424 F.
(internal quotations and citations
omitted).
In order to prove the existence of a policy or custom
under Monell,
following:
Plaintiffs must sufficiently plead one of the
(1) the existence of a formal policy, officially
promulgated or adopted by a municipality, Monell,
690-91;
436 U.S. at
(2) that an official or officials responsible for
establishing final policy with respect to the subject matter in
question took action or made a specific decision which caused
the alleged violation of Plaintiffs' constitutional rights,
Pembaur v. City of Cincinnati,
(plurality opinion);
(3)
475 U.S.
469,
483-84
(1986)
the existence of an unlawful practice
by subordinate officials so permanent and well settled as to
16
constitute "custom or usage," and proof that this practice was
so manifest or widespread as to imply the
constructive
acquiescence of policymaking officials, City of St. Louis v.
Praprotnik, 485 U.S. 112, 127-30 (1988)
(plurality opinion);
Sorlucco v. New York City Police Dep't, 971 F.2d 864,871
(2d
Cir. 1992); or, if liability is based on a claim of failure to
train or supervise, that
(4) "the failure to train amounts to
deliberate indifference to the rights of those with whom
municipal employees will come in contact."
U.S. at 388; Walker v. City of New York,
City of Canton,
489
974 F.2d 293, 297-98
(2d Cir. 1992).
Plaintiffs contend that they satisfy the second Monell
element, i.e., that the Individual Defendants, officials
responsible for establishing final policy with respect to the
subject matter in question, took action or made a specific
decision which caused the alleged violation of Plaintiffs'
constitutional rights.
"Defendants .
Pls.' Mem. in Opp'n 10 (contending that
. are municipal decision-makers possessing final
authority in determining whether Plaintiffs would be debarred
from working in city schools and who had the ability to control
the [S]pecifications.").
17
Federal courts do not apply a heightened pleading
standard in civil rights cases alleging municipal liability
under Section 1983.
Leatherman v. Tarrant Cnty. Narcotics
Intelligence & Coordination Unit,
the pleadings stage,
507 U.S. 163, 168
(1993).
At
it is sufficient for the complaint to
allege facts suggesting that Defendants may be determined to
have final policymaking authority as a matter of law.
Saenz,
2008 WL 2735867, at *3; see Tekula v. Bayport-Blue Point Sch.
Dist., 295 F. Supp. 2d 224, 234
Villager Pond,
Cir.1995)
(1974))
(E.D.N.Y. 2003); see generally
Inc. v. Town of Darien,
(quoting Scheuer v. Rhodes,
56 F.3d 375, 378
(2d
416 U.S. 232, 235-236
(holding that the issue to consider is not whether a
plaintiff will ultimately prevail but whether the claimant is
entitled to offer evidence to support the claims).
However,
even at the pleadings stage, a complaint must contain
allegations that the defendant-official had final policy making
authority in order to subject the municipality to liability.
See Schwab v. Smalls,
435 F. App'x 37,
40
(2d Cir. 2011)
(affirming the district court's dismissal of a§ 1983 claim
where the complaint contained little more than a "vague
assertion" that defendants had final policymaking authority) .
It is ultimately the plaintiff's burden to establish, as a
matter of law, "that [an] official had final policymaking
18
. It does not
authority in the particular area involved .
suffice for these purposes that the official has been granted
discretion in the performance of his duties.
Only those
municipal officials who have final policymaking authority may by
their actions subject the government to
Jeffes v. Barnes, 208 F.3d 49, 57
§
1983 liability."
(2d Cir. 2000)
(internal
quotations and citations omitted).
Plaintiffs here alleged that all of the Individual
Defendants "directed contractors engaged to perform school
construction and improvement work .
Plaintiffs' services."
53, 88.
See Compl.
. to 'never use'
~~
66; see also Compl.
~~
52,
Plaintiffs further allege that "Defendants" removed SPS
from the specifications, but do not actually reference that they
had or were acting pursuant to their final policymaking
authority.
See Compl.
~
67.
Defendants contend that these
allegations are insufficient to establish an unconstitutional
policy.
Defs.' Mem. in
Supp. 8.
Courts in this Circuit have dismissed Monell claims
that lack explicit allegations that the officials being sued had
final policymaking authority.
See, e.g., Schwab v. Smalls, 435
F. App'x 37, 40
(described above); Zherka v. City
(2d Cir. 2011)
19
of New York, N.Y., 08 CV 9005, 2010 WL 4537072, at *4
Nov. 9, 2010)
(S.D.N.Y.
(dismissing plaintiff's Section 1983 claim for
failing to plead "that any official's actions represent official
policy")
(internal quotations omitted) aff'd sub nom. Zherka v.
City of New York, 459 F. App'x 10 (2d Cir. 2012)
(affirming
dismissal, partly on the basis that the individual official
defendants were not themselves officials of the municipal
defendants); Canner v. City of Long Beach, 12-CV-2611, 2014 WL
2862791, at *11
(E.D.N.Y. June 23, 2014)
(dismissing Section
1983 claim were "plaintiffs do not reference any state law
supporting their claim that [the defendant] was a final
policymaker").
Where similar claims have survived past the
pleadings stage, the complaints contained allegations regarding
officials' final policymaking authority.
See e.g., Burhans v.
County of Putnam, 06 CIV. 8325, 2011 WL 1157693, at *7
Mar. 25, 2011)
(S.D.N.Y.
(denying the motion to dismiss where the
complaint alleged final policymaking authority but where neither
party meaningfully briefed the issue further); Kempkes v.
Downey, 07-CV-1298, 2008 WL 852765, at *8
2008)
(S.D.N.Y. Mar. 31,
(same); Pisano v. Mancone, 08 CIV. 1045, 2009 WL 2337131,
at *5 (S.D.N.Y. July 30, 2009)
(denying motion to dismiss where
the complaint alleged that a defendant acted under his authority
as Police Chief and where the complaint quoted from employment
20
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--·-----------
termination notices suggesting that the defendant had final
rulemaking authority); cf. Adams v. Smith, 07-CV-0452, 2010 WL
3522310, at *12 (N.D.N.Y. Sept. 1, 2010)
(denying motion to
dismiss where a prose plaintiff's complaint only alleged that
the mayor of a municipality instructed his subordinates to take
actions that infringed upon the plaintiff's constitutional
rights) .
With respect to pleading final policy making
authority, the Complaint contains "little more than [the] vague
assertion[s]" the Second Circuit deemed inadequate to trigger a
municipality's liability under Monell.
40.
Schwab, 435 F. App'x at
No explicit reference is made to the Individual Defendants'
having final policymaking authority, no Individual Defendants'
authority is described, and no allegation is made regarding
whether one or more Individual Defendants exercised their final
policymaking authority in causing Plaintiffs' injuries.
Therefore, the First Amendment Retaliation Claim brought against
Defendants under Section 1983 does not satisfy Monell and is
dismissed.
21
Plaintiffs' Requests For Injunctive Relief Are Dismissed
Under Second Circuit law, a plaintiff seeking
injunctive relief "must demonstrate:
irreparable injury;
(1) that it has suffered an
( 2) that remedies available at law, such as
monetary damages, are inadequate to compensate for that injury;
(3) that, considering the balance of hardships between the
plaintiff and defendant, a remedy in equity is warranted; and
(4) that the public interest would not be disserved by a
permanent injunction.
World Wide Polymers, Inc. v. Shinkong
Synthetic Fibers Corp., 694 F.3d 155, 160-61 (2d Cir. 2012)
(citing eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391
(2006))
(internal quotations omitted).
Defendants contend that: there is no irreparable
injury since no constitutional right was infringed; that the
balance of equities does not favor Plaintiffs; and that the
public interest would not be served by granting the injunctive
relief sought.
Defs.' Mem. in Supp. 13.
As discussed above, Plaintiffs have not adequately
pled a constitutional violation against Defendants as required
under Monell.
Moreover, the balance of hardships and public
22
interest considerations also militate against granting the
requested injunctive relief.
Plaintiffs seek an injunction that
extends far beyond requiring Defendants to reinstate Plaintiffs
as potential subcontractors and to not further retaliate against
Plaintiffs' proposed
them for their protected speech.
injunctive relief would also require Defendants to redraft their
Specifications to exclusively grant Defendants the right to
install and service SPS.
See Compl. ':ll':ll (c),
(d).
The proposed
relief has not been established to be in the public interest, as
it would foreclose the possibility of competitive bidding for
door safety services.
The proposed relief would also
inappropriate interfere with the Defendants' right to modify the
Specifications and to deny Plaintiffs, at Defendants'
discretion, the exclusive right to provide door safety services.
Moreover, the Complaint cannot be fairly read as
alleging that Plaintiffs have no adequate remedy at law to
address their injury.
Plaintiffs contend that equitable relief
is appropriate as the retaliatory action amounts to a
deprivation of Plaintiffs' livelihood.
Pls.' Mem. in Opp'n 17.
However, Plaintiffs do not allege that they can only provide
their services to Defendants.
In the absence of the requested
equitable relief, Plaintiffs may still sell their services to
23
other agencies within the municipality, the state, or the
country, not to mention to private customers requiring their
services.
If, as Plaintiffs assert, they have been deprived of
the opportunity to bid on installing SPS in approximately 500
schools, and have further been deprived of the opportunity to
bid on servicing, then a monetary award representing Plaintiffs'
lost fees can be calculated.
Conclusion
Upon the conclusions set forth above, Defendants'
motion for judgment on the pleadings is granted and the
Complaint is dismissed with leave given to replead within
twenty-one days.
It is so ordered.
5~·
2014
U.S.D.J.
24
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