Davis v. 1568 Broadway Hotel Management LLC Doubletree Hotel Times Square

Filing 33

ORDER AND OPINION re: 25 FIRST MOTION to Dismiss Plaintiff's Complaint. filed by 1568 Broadway Hotel Management LLC Doubletree Hotel Times Square, 20 MOTION ADMISSION. filed by Jameel Haikeem Davis. Plaintiff does not pl ead facts with any discernable clarity or particularity, let alone sufficiently state the elements required to satisfy the numerous claims advanced in the Complaint. Even under a generous reading of the Complaint, as is customary for pro se pleadi ngs, the Complaint is entirely deficient. Because Plaintiff fails to state a plausible claim for relief on any Count, Defendant's motion to dismiss is GRANTED WITH PREJUDICE. The Court also notes that several of the documents filed in this m atter appear to contain Plaintiff's personal identifying information, including his birth date and social security number, which has not been properly redacted as required by Federal Rule of Procedure 5.2. The Court has frozen the links for t hese documents (Docket Entries 1, 12-1, 12-2, 12-3, 12-4, 24-2, and 28-1). Defendant is ordered to redact these documents and any others necessary, including Plaintiff's submissions, and refile them by no later than January 19, 2018. The Clerk of the Court is respectfully directed to terminate Docket Entries 20, 25, and 31, and to close the case. (Signed by Judge Valerie E. Caproni on 1/5/2018) (kgo)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------- X
JAMEEL HAIKEEM DAVIS,
:
:
Plaintiff,
:
:
-against:
:
1568 BROADWAY HOTEL MANAGEMENT LLC :
DOUBLETREE HOTEL TIMES SQUARE,
:
:
Defendant.
:
--------------------------------------------------------------X

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
1/5/18
DATE FILED:

17-CV-1895 (VEC)
ORDER AND OPINION

VALERIE CAPRONI, United States District Judge:
Before the Court is Defendant’s motion to dismiss pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure. Plaintiff Jameel Haikeem Davis (“Plaintiff” or “Davis”),
proceeding pro se, commenced this lawsuit against Defendant Times Square Hotel Operating
Lessee LLC d/b/a DoubleTree Suites by Hilton – Times Square (“Defendant” or “DoubleTree”),
Complaint (“Compl.”) [Dkt. 1], alleging a variety of claims related to wage withholdings.
Defendant filed a motion to dismiss on the grounds that the Plaintiff fails to plead any cognizable
cause of action with regard to the eleven counts asserted. See Memorandum of Law in Support
of Defendant’s Motion to Dismiss (“MTD”) [Dkt. 27].1 For the reasons below, the Court
dismisses the Complaint with prejudice.

1

Defendant noted that it was improperly identified by Plaintiff as “1568 Broadway Hotel Management LLC
Doubletree Hotel Times Square,” so the Court will refer to it as signified above. MTD at 1.

1

I.

BACKGROUND
Plaintiff, a resident of New York City,2 makes several claims against his employer

DoubleTree, all essentially based on the allegation that he has been injured because Defendant
improperly withheld income taxes and executed a garnishment of his wages to satisfy his child
support obligations. Plaintiff asserts that he has communicated his wage-related grievances with
representatives of the hotel on two occasions. On December 16, 2016, Plaintiff met with
representatives of the Defendant and demanded that they stop the withholdings and
garnishments, submitting various documents in support of his request.3 Compl. ¶¶ 17–21, 29–
32; Exs. A–F. On February 2, 2017, Plaintiff again met with members of the staff and submitted
an affidavit in addition to the original set of documents.4 Id. ¶¶ 33–39; Ex. G. According to
Plaintiff, no change was made to his net compensation in response his requests. Id. ¶¶ 32, 41.
Plaintiff claims that he has suffered a broad array of injuries, laid out in eleven counts, which
include violations of due process and other civil rights (Counts One through Six); civil
conspiracy (Count Seven); abuse of process (Count Eight); breach of fiduciary duty (Count
Nine); economic duress (Count Ten); and infliction of emotional distress (Count Eleven). Id.
¶¶ 66–87.
II.

DISCUSSION
To survive a motion to dismiss under Rule 12(b)(6), “a complaint must allege sufficient

facts, taken as true, to state a plausible claim for relief.” Johnson v. Priceline.com, Inc., 711 F.3d

2

See Ex. C (stating Plaintiff’s home address is in New York, New York). Unless otherwise noted, exhibits
cited shall refer to the exhibits attached to the Complaint.

3
Present at the first meeting were Paola Marmol (Human Resources Coordinator), Martyn Reed (Assistant
General Manager), and Edwin Espinal (Union Delegate). Compl. ¶ 17.
4

Present at the second meeting were Alec Engineer (Human Resources Director), Paola Marmol, and Tony
Belizaire (fellow employee). Compl. ¶ 34.

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271, 275 (2d Cir. 2013) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007)).
“Although for the purposes of a motion to dismiss we must take all of the factual allegations in
the complaint as true, we ‘are not bound to accept as true a legal conclusion couched as a factual
allegation.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555).
“[T]o survive a motion under Rule 12(b)(6), a complaint does not need to contain detailed or
elaborate factual allegations, but only allegations sufficient to raise an entitlement to relief above
the speculative level.” Keiler v. Harlequin Enters., Ltd., 751 F.3d 64, 70 (2d Cir. 2014) (citation
omitted).
When considering a Rule 12(b)(6) motion to dismiss, the Court accepts all factual
allegations in the pleadings as true and draws all reasonable inferences in the light most
favorable to the plaintiff. See Gibbons v. Malone, 703 F.3d 595, 599 (2d Cir. 2013) (citation
omitted). “A document filed pro se is to be liberally construed, . . . and a pro se complaint,
however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted
by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S.
97, 106 (1976)) (internal quotation marks omitted).
A. The Tax Withholding and Garnishments Underlying the Allegations were
Proper
1. Tax Withholding
Plaintiff argues that Defendant’s withholding of income taxes from his wages was illegal.
Compl. ¶ 10–12. “All persons in the United States who receive earned income or remuneration
or unearned income are required to file tax returns and, if the income is sufficient, must pay
taxes.” Bey v. City of New York D.O.C., No. 97 CIV. 4866 (RPP), 1997 WL 576090, at *2
(S.D.N.Y. Sept. 17, 1997), aff’d sub nom. Akil Bey v. City of New York Dep’t of Correction, 164

3

F.3d 617 (2d Cir. 1998). See also United States v. O’Connor, No. 07-CR-86A, 2007 WL
3232093, at *3 (W.D.N.Y. Oct. 31, 2007) (quoting United States v. Sloan, 939 F.2d 499, 501
(7th Cir. 1991)). Deducting appropriate income taxes from an employee’s wages is a mandatory
legal obligation of an employer, not a discretionary policy. ‘El Bey v. MTA/New York, No. 00 CV
2504 (GBD), 2001 WL 487410, at *2 (S.D.N.Y. May 8, 2001) (citing 26 U.S.C. § 3402(a)(1)).5
An employer who duly complies with requirements to withhold taxes from wages cannot be held
liable for doing so. Id. (citing 26 U.S.C. § 3403; Maxfield v. U.S. Postal Serv., 752 F.2d 433,
434 (9th Cir. 1984); Edgar v. Inland Steele Co., 744 F.2d 1276, 1278 (7th Cir. 1984); Kupcho v.
Steele, 651 F. Supp. 797, 800 (S.D.N.Y. 1986)). To prevent a withholding of federal income tax,
there must be “some employment contractual provision to the contrary.” ‘El Bey, 2001 WL
487410, at *2 (citations omitted).
Certain individuals, including nonresident aliens, are exempt from federal income taxes.6
26 C.F.R. § 1.871-1(a). Plaintiff asserts he is a nonresident alien and has never “lived, worked,
nor ha[d] income from any source within” the United States, although he concedes that he was
born in New York State. Ex. A, Ex. E. Plaintiff further claimed to be a nonresident alien in a
W-8BEN form, in which he recorded his permanent address as “Earth (not within any
government),” but he listed a New York City mailing address immediately below (while
asserting that New York, New York is “not within any federal zone”). Ex. D; see also Ex. C
(listing the same address under “Home address”). The thrust of Plaintiff’s argument appears to
be that because he was born in New York State (or, as he refers to it, “New York State

5
Employers in New York State are also generally required to deduct and withhold state taxes. See N.Y. Tax
Law § 671.
6

A “nonresident alien” is one who “is neither a citizen of the United States nor a resident of the United
States . . . .” 26 U.S.C. § 7701(b)(1)(B). In contrast to nonresident aliens, resident aliens are generally taxable in
the same way as U.S. citizens, in that they are taxed on all sources of income. 26 C.F.R. § 1.871-1(a).

4

Republic”), rather than a non-state U.S. territory, he is not subject to U.S. jurisdiction and is
exempt from paying taxes. See Ex. E (“I hereby certify that I, Jameel Haikeem Davis, was born
in the continental New York State Republic, of the Union (u)nited [sic] States of America. I was
not born in a territory over which the United States is Sovereign and I am, therefore, not a
citizen of the United States, subject to its jurisdiction, to whom the Internal Revenue Code is
applicable . . . . I am a Citizen of New York State, and am domiciled in New York county, where
I have occupied such status for approximately 40 years since my date of birth . . . . I am,
therefore, a natural born Citizen of one of the 50 union American States . . . . ”).
Plaintiff is incorrect. New York is a state of the United States, and residents of New
York State are subject to U.S. federal jurisdiction. Plaintiff was born in New York and has lived
here all of his life; he is an American citizen. See 8 U.S.C. § 1401. As an American citizen
residing in the United States, Plaintiff is subject to the requirement that he pay income taxes.
Thus, Defendant properly withheld Plaintiff’s taxes.7
2. Child Support Garnishments
Plaintiff argues that the garnishments of his wages pursuant to an Income Withholding
Order (“IWO”) issued by Westchester County Child Support Enforcement are illegal. See, e.g.,
Compl. ¶ 11. Employers are required by New York State law to garnish obligatory child support
payments pursuant to an IWO. See N.Y. C.P.L.R. § 5241 (obligating employers to garnish
wages and subjecting employers to penalty for failure to do so); Davis IWO (“IWO”) [Dkt. 28-

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Guidance suggests that New York employers are required to withhold state taxes for several categories of
employees, including “New York State nonresidents being paid wages for services performed within the state.”
Withholding Tax Requirements, N.Y. State Dept. of Taxation and Finance (Nov. 30, 2017),
https://www.tax.ny.gov/bus/wt/whtax_require.htm. Accordingly, Plaintiff’s alleged non-resident alien status, which
the Court rejects, would not support an argument with regard to state tax withholding. Moreover, Plaintiff concedes
that he is a citizen of New York State and resides in New York City. Plaintiff has, accordingly, also failed to
provide grounds to challenge the withholding of his non-federal taxes.

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1]; 42 U.S.C. § 654(4)(B) (requiring that a state plan for child support must “enforce any support
obligation established” against a qualifying parent).
Plaintiff argues that the garnishments are illegal because the IWO is void. Id. ¶¶ 11, 23–
30; see also Ex. B. Plaintiff alleges that the IWO is “not a Court order pursuant trial by jury,”
adding that the Family Court child support hearings violate due process because they are “nonjudicial but administrative.” Id. at ¶¶ 11, 25. As a result, he claims, IWOs are “forgeries” and
“void judgments.” Id. at ¶ 28. Further, Plaintiff argues that the IWO was not signed by a judge
and is, therefore, an “invalid instrument and forged document.” Id. at ¶ 29. These arguments are
unavailing. Nothing in the statute or Plaintiff’s allegations suggests that an IWO, in order to be
effective, must be the result of a jury trial, or that a judge’s signature is required. The legal
authorities cited in support of his claims are uniformly misdirected and irrelevant. Even if the
Court takes all of his factual allegations as true, it cannot infer that Defendant had an obligation
to violate state law with regard to validly served garnishments.
B. Plaintiff’s Enumerated Causes of Action are Insufficiently Pleaded
With the understanding that Defendant did not act in violation of its statutory obligations
with regard to tax withholdings and child support garnishments, the Court now turns to
Plaintiff’s eleven causes of action. In each count, Plaintiff merely refers back to his meandering
narrative in the first sixty-five paragraphs and states that each purported violation occurred,
without making factual allegations necessary to allege the elements of each cause of action.

6

1. Deprivation of Civil Rights (Counts One through Six)
Plaintiff fails to plead adequate facts to establish the elements of his various civil rights
claims, namely claims under 28 U.S.C. §§ 1983, 1985, and 1986.8 See Compl. ¶¶ 66–77. These
causes of action hinge on there being (among other unsupported elements) an unconstitutional
deprivation of, in Plaintiff’s case, his wages.9 As discussed above, Defendant’s actions in
withholding taxes and executing garnishments were proper under federal and state law, and thus
there has been no deprivation of Plaintiff’s constitutional rights. Because the Complaint does not
plausibly show that the withholdings and garnishments violated Plaintiff’s civil rights, Counts
One through Six are dismissed.
2. Civil Conspiracy (Count Seven)
New York does not provide an independent cause of action for civil conspiracy. DDR
Const. Servs., Inc. v. Siemens Indus., Inc., 770 F. Supp. 2d 627, 659 (S.D.N.Y. 2011) (quoting
Maersk, Inc. v. Neewra, Inc., 687 F. Supp. 2d 300, 319 (S.D.N.Y. 2009)). Nevertheless, a

8

To the extent that Plaintiff broadly brings undefined claims under the Fifth and Fourteenth Amendments to
the U.S. Constitution for deprivation of property without due process, the Court construes these claims as subsumed
by Plaintiff’s claim under § 1983. The Court also notes that 28 U.S.C. § 1343, cited for Count Six, is a jurisdictional
provision and does not in itself provide a cause of action.
9

“To state a claim under § 1983, a plaintiff must allege two elements: (1) the violation of a right secured by
the Constitution and laws of the United States, and (2) the alleged deprivation was committed by a person acting
under color of state law.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 87–88 (2d Cir. 2015) (internal
quotation marks and citation omitted).
“A conspiracy claim under Section 1985(3) requires a plaintiff to allege 1) a conspiracy; 2) for the purpose
of depriving, either directly or indirectly, any person or class of persons of the equal protections of the laws, or of
equal privileges and immunities under the laws; and 3) an act in furtherance of the conspiracy; 4) whereby a person
is either injured in his person or property or deprived of any right or privilege of a citizen of the United States.”
Dolan v. Connolly, 794 F.3d 290, 296 (2d Cir. 2015) (quoting Britt v. Garcia, 457 F.3d 264, 269 n.4 (2d Cir. 2006))
(internal quotation marks omitted). Moreover, such a “conspiracy must also be motivated by some racial or perhaps
otherwise class-based, invidious discriminatory animus.” Id. (internal quotation marks and citation omitted).

A claim under § 1986 is contingent on a claim under § 1985, as it “provides a cause of action against
anyone who, having knowledge that any of the wrongs conspired to be done, and mentioned in [42 U.S.C. § 1985],
are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or
refuses so to do . . . .” Reynolds v. Barrett, 685 F.3d 193, 201 n.9 (2d Cir. 2012) (internal quotation marks omitted).

7

plaintiff can allege civil conspiracy “for the purpose of showing that an otherwise actionable tort
was committed jointly by the conspirators and that, because of the conspirators’ common
purpose and interest, the acts of one may be imputed to the others.” Id. (citing Maersk, 687 F.
Supp. 2d at 319) (emphasis added). A claim that fails to specify the “what, when, where, and
how of the conspiracy” and fails to “identify the actionable torts that were the objects of the
alleged conspiracy,” however, is deficient under Rule 12(b)(6). Id.; see also Ciambriello v. Cty.
of Nassau, 292 F.3d 307, 325 (2d Cir. 2002) (“[C]omplaints containing only conclusory, vague,
or general allegations that the defendants have engaged in a conspiracy to deprive the plaintiff of
his constitutional rights are properly dismissed; diffuse and expansive allegations are
insufficient, unless amplified by specific instances of misconduct.”) (citation omitted).
The Complaint fails to allege the basic elements of civil conspiracy by failing to identify
the single Defendant’s co-conspirator, let alone the underlying tort the co-conspirators conspired
to commit. Accordingly, Count Seven is dismissed.
3. Abuse of Process (Count Eight)
To establish a malicious abuse-of-process claim under New York law, a complaint must
allege that the defendant “(1) employs regularly issued legal process to compel performance or
forbearance of some act, (2) with intent to do harm without excuse of justification, and (3) in
order to obtain a collateral objective that is outside the legitimate ends of the process.” Savino v.
City of N.Y., 331 F.3d 63, 76 (2d Cir. 2003) (quoting Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir.
1994)). Plaintiff fails to allege that Defendant abused any legal process and fails to allege any
facts from which the Court can infer the requisite intent to harm or any collateral objective.
Accordingly, Count Eight is dismissed.

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4. Breach of Fiduciary Duty (Count Nine)
To allege a cause of action for breach of fiduciary duty under New York law, a plaintiff
must allege the existence of a fiduciary duty, a knowing breach of that duty, and damages
resulting from the breach. Johnson v. Nextel Commc’ns, Inc., 660 F.3d 131, 138 (2d Cir. 2011)
(citations omitted). Nowhere in the Complaint does Plaintiff allege that DoubleTree owed him a
fiduciary duty or that it knowingly breached any such duty, let alone a causal connection
between the breach and damages. Accordingly, Count Nine is dismissed.
5. Economic Duress (Count Ten)
“A party seeking to avoid a contract because of economic duress shoulders a heavy
burden [and] must show that the [contract] was secured (1) by means of wrongful threat
precluding the exercise of free will; (2) under the press of financial circumstances; (3) where
circumstances permitted no other alternative.” Oquendo v. CCC Terek, 111 F. Supp. 3d 389,
407–08 (S.D.N.Y. 2015) (internal quotation marks and citations omitted). Because Plaintiff
offers no facts regarding the execution of his employment contract, nor any associated threat
made by Defendant, Count 10 is dismissed.
6. Infliction of Emotional Distress (Count Eleven)
Plaintiff does not specify whether the alleged infliction of emotional distress was
intentional or negligent. Either way, the Complaint fails to plausibly state a cause of action.
A claim for intentional infliction of emotional distress requires “(1) extreme and
outrageous conduct, (2) intent to cause severe emotional distress, (3) a causal connection
between the conduct and the injury, and (4) severe emotional distress. . . . Conduct satisfying the
first element of the tort must be so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in

9

a civilized society.” Sesto v. Slaine, 171 F. Supp. 3d 194, 201 (S.D.N.Y. 2016) (quoting Conboy
v. AT&T Corp., 241 F.3d 242, 258 (2d Cir. 2001); Bender v. City of New York, 78 F.3d 787, 790
(2d Cir. 1996)) (internal quotation marks omitted). Negligent infliction of emotional distress
requires a breach of a duty of care resulting in a direct mental injury, and the claim must have
some guarantee of genuineness. Id. at 203–04 (citations omitted).
Plaintiff fails to plead, among other elements, any emotional distress, any extreme and
outrageous conduct, and any duty of care owed to him by Defendant. Defendant’s compliance
with state and federal withholding requirements as pled simply does not support any claim for
emotional distress, intentional or negligent. Accordingly, Count Eleven is dismissed.
III.

CONCLUSION
Plaintiff does not plead facts with any discernable clarity or particularity, let alone

sufficiently state the elements required to satisfy the numerous claims advanced in the
Complaint. Even under a generous reading of the Complaint, as is customary for pro se
pleadings, the Complaint is entirely deficient. Because Plaintiff fails to state a plausible claim
for relief on any Count, Defendant’s motion to dismiss is GRANTED WITH PREJUDICE.10
The Court also notes that several of the documents filed in this matter appear to contain
Plaintiff’s personal identifying information, including his birth date and social security number,
which has not been properly redacted as required by Federal Rule of Procedure 5.2. The Court
has frozen the links for these documents (Docket Entries 1, 12-1, 12-2, 12-3, 12-4, 24-2, and 28-

10

Although it is customary to allow a pro se plaintiff to amend his complaint at least once, see Grullon v. City
of New Haven, 720 F.3d 133, 139 (2d Cir. 2013) (“A pro se complaint should not [be] dismiss[ed] without [the
Court's] granting leave to amend at least once when a liberal reading of the complaint gives any indication that a
valid claim might be stated.”) (citing Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010)) (internal quotation
marks omitted), the Court is not doing so in this case because an amendment would clearly be futile. The core of the
Plaintiff’s dispute with the Defendant is that Defendant insists on withholding taxes, notwithstanding Plaintiff’s
novel arguments that he is not subject to the income tax laws, and executing child support garnishments. Those
activities simply do not give rise to a cause of action. Accordingly, amendment would be futile.

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1). Defendant is ordered to redact these documents and any others necessary, including
Plaintiff’s submissions, and refile them by no later than January 19, 2018.
The Clerk of the Court is respectfully directed to terminate Docket Entries 20, 25, and 31,
and to close the case.

SO ORDERED.

_________________________________
____________________________
__

Date: January 5, 2018
New York, New York

VALERIE CAPRONI
United States District Judge

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