Grant v. Abbott House et al

Filing 34

OPINION & ORDER re: 23 MOTION to Dismiss plaintiff's amended complaint filed by Abbott House, Richard Griffin, 30 MOTION to Dismiss filed by Westchester County. For the foregoing reasons, Defendants' motio ns to dismiss are GRANTED and Plaintiff's cross-motion to amend is DENIED. The Court respectfully directs the Clerk of the Court to terminate the motions at ECF Nos. 23 and 30 and to close the case. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 2/22/2016) (mml)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MICHELLE GRANT,
Plaintiff,
l 4-cv-8703 (NSR)
-againstOPINION & ORDER
ABBOTT HOUSE, WESTCHESTER COUNTY,
and RICHARD GRIFFIN,
Defendants.

NELSONS. ROMAN, United States District Judge
Plaintiff Michelle Grant ("Plaintiff') asserts claims against Defendants Abbott House,
Westchester County, and Richard Griffin (collectively, "Defendants") arising out of the
termination of her employment on July 12, 2013. Plaintiff alleges that:(!) Defendants conspired
to terminate and retaliated against Plaintiff for exercising her First Amendment rights, in
violation of42 U.S.C. §§ 1983 and 1985; (2) Defendants retaliated against Plaintiff for engaging
in protected conduct under the False Claims Act, 31 U.S.C. § 3729 et seq. and the New York
False Claims Act, N.Y. State Fin. Law§ 187 et seq.; (3) Westchester Countty tortiously
interfered with Plaintiffs contractual relations with Abbott House; and (4) Defendants retaliated
against Plaintiff because she complained about a protected activity, in violation ofNew York
State Executive Law§ 290 et seq. and New York Labor Law§ 215.
Before the Comt are two motions to dismiss, the first filed jointly by Defendants Abbott
House and Griffin, and the second filed individually by Defendant Westchester County. Also
before the Comt is Plaintiffs cross-motion to amend the Amended Complaint. For the following
reasons, Defendants' motions are GRANTED and Plaintiffs cross-motion is DENIED.

USDC SDNY
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BACKGROUND
The following facts are taken from the Amended Complaint (“AC”) unless otherwise
noted, and are accepted as true for the purposes of this motion.
Abbott House is a domestic not-for-profit corporation located in Bronx, New York,
which operates a group home that houses troubled children. (AC ¶¶ 7, 14-15.) During the time
period at issue in the Amended Complaint, Westchester County contracted with Abbott House to
place troubled children in its group home. (Id. ¶ 14.) Plaintiff was employed as a social worker
at Abbott House from January 31, 2011 to July 12, 2013, and was responsible for supervising the
children placed with Abbott House by Westchester County. (Id. ¶¶ 5, 11-12, 15.) Plaintiff was
supervised by Richard Griffin, an employee of Abbott House. (Id. ¶¶ 10, 13.)
At some point during Plaintiff’s tenure at Abbott House, there was a period of one month
when there was only one child placed in the group home. (Id. ¶ 18.) The child was purportedly
permitted by Abbott House supervisors and Westchester County to spend weekends at his
mother’s home and would return to the group home at the start of the week. (Id. ¶¶ 19-20.)
“Around the holidays in July 2013,” the child spent longer than the weekend at his mother’s
home. (Id. ¶ 21.) After Plaintiff requested that the child return to the group home, (id. ¶ 22), an
issue arose as to whether the child had been granted permission to stay at his mother’s home or
whether he was absent without leave (“AWOL”). (Id. ¶¶ 23 – 31.) Although Plaintiff believed
that the child had been granted permission to stay with his mother, Griffin asked Plaintiff to
falsely report that the child was AWOL. (Id. ¶ 31.) Plaintiff was also directed by Griffin to lie at
an upcoming permanency hearing in court – to state that the child was AWOL, rather than
permitted to leave – “in order to remain in good graces with Westchester County and to continue
their contract with Westchester County.” (Id. ¶ 32.) Another employee of Abbott House,

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“Annette,” also told Plaintiff to lie because it was what “Westchester County . . . wanted.” (Id. ¶
35.)
On July 11, 2013, Plaintiff testified at the permanency hearing for the child, stating that
the child was not AWOL. (Id. ¶ 36.) The following day, Griffin fired Plaintiff because she
refused to testify that the child was AWOL, which would have been a “lie” and a “false
statement[].” (Id. ¶ 39.)
STANDARD ON A MOTION TO DISMISS
To survive a motion to dismiss, a complaint must supply “factual allegations sufficient
‘to raise a right to relief above the speculative level.’” ATSI Commc’ns, Inc. v. Shaar Fund, Ltd.,
493 F.3d 87, 98 (2d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
In other words, the complaint must allege “‘enough facts to state a claim to relief that is plausible
on its face.’” Starr v. Sony BMG Music Entm’t, 592 F.3d 314, 321 (2d Cir. 2010) (quoting
Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In applying this standard, a
court should accept as true all well-pleaded factual allegations, but should not credit “mere
conclusory statements” or “[t]hreadbare recitals of the elements of a cause of action.” Id.
DISCUSSION
I.

“Transcripts” Attached to the Amended Complaint
Plaintiff attaches to the Amended Complaint purported “transcripts” of her conversations

with Defendants. (Pl.’s Opp. at 3.) Plaintiff asserts that the Court should consider these
transcripts in deciding the instant motions because the “transcripts were relied on in drafting the
complaints, [and] they are clearly germane to this motion.” (Pl.’s Opp. at 3 n.1.) The Court
must therefore determine whether it may consider the transcripts in deciding the instant motions.
3

In ruling on a motion to dismiss, a “court may consider the facts as asserted within the
four corners of the complaint together with the documents attached to the complaint as exhibits,
and any documents incorporated in the complaint by reference.” Peter F. Gaito Architecture,
LLC v. Simone Dev. Corp., 602 F.3d 57, 64 (2d Cir. 2010) (internal quotation marks and citation
omitted). Courts also may consider “matters of which judicial notice may be taken” and
“documents either in plaintiffs’ possession or of which plaintiffs had knowledge and relied on in
bringing suit.” Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993). “However,
‘even if a document is ‘integral’ to the complaint, it must be clear on the record that no dispute
exists regarding the authenticity or accuracy of the document.’” DiFolco v. MSNBC Cable
L.L.C., 622 F.3d 104, 111 (2d Cir. 2010) (quoting Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir.
2006)). “The ‘no dispute’ requirement has been interpreted strictly: even implicit, conclusory,
contradictory, or implausible objections to the authenticity or accuracy of a document render
consideration impermissible.” Fine v. ESPN, Inc., 11 F. Supp. 3d 209, 221 (N.D.N.Y. 2014)
(collecting cases); see also Cram v. Pepsico Executive Income Deferral Comp. Program, No. 08CV-10627 (CS), 2010 WL 4877275, at *4 (S.D.N.Y. Aug. 9, 2010) (refusing to consider a
document attached to the complaint, even though the complaint alleged that the document was
authentic, where plaintiff subsequently “seemingly dispute[d] the authenticity” of his exhibit).
Defendants seemingly call into question the authenticity and accuracy of the purported
transcripts. Westchester County asserts that “[i]t is unclear who or what was the source of the
reported conversations between Richard Griffin and plaintiff. The pages are not authored. They
are not sworn to and it is not always clear who the dialogue is being attributed to.” (Def.
Westchester County’s Mot. at 6 n.2.) Abbott House and Griffin “maintain that the purported
‘transcripts’ are inadmissible.” (Defs. Abbott House’s and Griffin’s Mot. at 5 n.3.) In light of

4

these apparent questions regarding the authenticity and accuracy of the transcripts, the Court will
not consider them in deciding the instant motions.
II.

Sections 1983 and 1985
Plaintiff asserts two theories of liability under 42 U.S.C. §§ 1983 and 1985 arising out of

Defendants’ violation of her First Amendment rights: 1) “as a result of her truthful statements in
court, [Defendants] conspired to have plaintiff terminated, and retaliated by threatening her with
termination,” (AC ¶ 48); and 2) “as a result of her truthful statements in court and her refusal to
change her truthful statements in a subsequent hearing, [Defendants] conspired to have plaintiff
terminated, and retaliated by terminating her.” (AC ¶ 52.) These acts purportedly “chilled”
Plaintiff’s speech in violation of the First Amendment. (AC ¶ 49.) In other words, Plaintiff
alleges claims of retaliation under § 1983 and conspiracy under §§ 1983 and 1985.
A.

Section 1983 Claims Against Abbott House and Griffin

To prevail on any claim under § 1983, a plaintiff must show “(1) the deprivation of a
right secured by the Constitution or laws of the United States, and (2) that the alleged deprivation
was committed under color of state law.” Landon v. Cnty. of Orange, No. 08 Cv. 8048 (CS)
(LMS), 2009 WL 2191335, at *4 (S.D.N.Y. July 23, 2009); see also Chambliss v. Rosini, 808 F.
Supp. 2d 658, 666 (S.D.N.Y. 2011). “Because the United States Constitution regulates only the
Government, not private parties, a litigant claiming that his constitutional rights have been
violated must first establish that the challenged conduct constitutes state action.” Fabrikant v.
French, 691 F.3d 193, 206 (2d Cir. 2012) (quoting Flagg v. Yonkers Sav. & Loan Ass’n, 396
F.3d 178, 186 (2d Cir. 2005)).
The threshold issue before the Court is whether the challenged conduct constitutes state
action. Plaintiff asserts that her employer, Abbott House, is a government contractor, and
Plaintiff and her supervisor Griffin are therefore a public employees. (AC ¶ 14, Pl.’s Opp. at 12.)
5

Alternatively, Plaintiff argues that if Abbot House is deemed to be private actor, Defendants are
still liable under § 1983 because Abbott House worked in conjunction with state actors. (Pl.’s
Opp. at 12.) Abbott House and Griffin contend that Abbott House is not a state actor and that
Plaintiff’s actions cannot be fairly attributable to the state. (Defs. Abbott House’s and Griffin’s
Mot. at 7.)
The Amended Complaint and Plaintiff’s own arguments in opposition to the instant
motions concede that Abbott House and its employees are private entities, and not state actors in
their own right. (See AC ¶ 7 (“ABBOTT HOUSE is a domestic not-for-profit corporation”);
Pl.’s Opp. at 12.). Plaintiff asserts, instead, that Abbott House and its employees are
“contractors” with Westchester County, and as such, should be considered public employees for
purposes of Plaintiff’s § 1983 claims. (AC ¶¶ 7, 14; Pl.’s Opp. at 12.) Plaintiff relies solely on
Golodner v. Berliner, 770 F.3d 196 (2d Cir. 2014) for this proposition, which explains that the
Second Circuit “consider[s] government contractors, such as Golodner and [his employer], as
equivalent to public employees for purposes of determining whether the speech at issue was
protected.” Golodner, 770 F.3d at 202 n.3. Here, unlike Golodner, the Court is not yet
“determining whether the speech at issue was protected,” but is instead determining the threshold
issue of whether Abbott House and Griffin are state actors for purposes of bringing a § 1983
claim. Golodner is therefore unhelpful in making this determination.
There is no single test for determining whether the actions of a private entity or person
such as Abbott House and Griffin have crossed into the realm of state action; rather, three main
tests have emerged:
For the purposes of section 1983, the actions of a nominally private entity are
attributable to the state . . . (1) [when] the entity acts pursuant to the coercive power
of the state or is controlled by the state (“the compulsion test”); (2) when the state
provides significant encouragement to the entity, the entity is a willful participant
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in joint activity with the state, or the entity’s functions are entwined with state
policies (“the joint action test” or “close nexus test”); or (3) when the entity has
been delegated a public function by the state (“the public function test”).
Fabrikant, 691 F.3d at 207 (quoting Sybalski v. Indep. Grp. Home Living Program, Inc., 546
F.3d 255, 257 (2d Cir. 2008)); see also Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n,
531 U.S. 288 (2001); Hogan v. A.O. Fox Memorial Hosp., 346 F. App’x 627, 629 (2d Cir. 2009);
Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 324 (2d Cir. 2002). The fundamental question
that underlies each of these tests is whether the challenged actions of the private actor are “fairly
attributable” to the state. Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982).
Reviewing the Amended Complaint in the light most favorable to Plaintiff, there are
simply no allegations sufficient to allege that Abbott House was being coerced or controlled by
the state, or that it was acting jointly with the state. In opposition to the instant motions, Plaintiff
points only to paragraph 39 of the Amended Complaint as evidence that she adequately pled
compulsion or joint action upon which to base her § 1983 claim. Paragraph 39 states, in
conclusory terms, that Plaintiff was fired because “Westchester County felt she was tainted.”
(AC ¶ 39.) There is no explanation as to why Westchester County purportedly felt that Plaintiff
was tainted, and even if Westchester County had made such a statement to Griffin, the Amended
Complaint is devoid of any allegations that Westchester County encouraged, coerced, or
compelled Griffin to terminate Plaintiff. Plaintiff would have the Court search Exhibit A to the
Amended Complaint – which the Court can only describe as a confusing and unauthenticated
transcript of purported conversations spanning more than twenty pages – for such allegations, but
as explained above the exhibit will not be considered in deciding the instant motions.
Plaintiff does not contend that Abbott House or Griffin are state actors under the public
function test. In any event, the Amended Complaint lacks any allegations to support the
proposition that the care of minors in group homes is a function traditionally and exclusively
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performed by the state. See Rendell-Baker, 457 U.S. at 842 (requiring the “traditional and
exclusive” showing). Even if the Amended Complaint contained such allegations, case law
suggests that these functions would not meet the requisite standard. See Phelan ex rel. Phelan v.
Torres, 843 F. Supp. 2d 259, 273 (E.D.N.Y. 2011) aff’d sub nom. Phelan ex rel. Phelan v.
Mullane, 512 F. App’x 88 (2d Cir. 2013) (“Sybalski also makes clear that the proposition that
private child-caring institutions may be state actors by virtue of their contractual relationship
with the State is likewise no longer a valid basis for finding state action.”) (citing Sybalski, 546
F.3d 255; Lowe v. Astor Servs. for Children & Families, No. 11 CV 0389 VB, 2011 WL
5142664, at *3 (S.D.N.Y. Sept. 29, 2011) aff’d sub nom. Faddis-DeCerbo v. Astor Servs. for
Children & Families, 500 F. App’x 46 (2d Cir. 2012) (not-for-profit organization providing
children’s mental health services, welfare services, and early development programs found not to
be “traditionally the exclusive prerogative of the state.”)
Accordingly, Plaintiff’s failure to demonstrate state action requires dismissal of her §
1983 claims.
B.

Section 1983 Claims Against Westchester County

Plaintiff also asserts her § 1983 claims against Westchester County. It has long been
established that a municipality cannot be held vicariously liable under § 1983 unless the
“execution of the government’s policy or custom . . . inflicts the injury.” Monell v. Dep’t of
Social Servs. of the City of N.Y., 436 U.S. 658, 694 (1978). Thus, Monell dictates that any §
1983 claim against a municipal entity must be premised on the theory that the municipal actor’s
allegedly unconstitutional “acts were performed pursuant to a municipal policy or custom.”
Patterson v. Cnty. of Oneida, 375 F.3d 206, 226 (2d Cir. 2004); see generally Monell, 436 U.S.
at 692-94.

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Courts in this Circuit apply a two prong test for § 1983 claims brought against a
municipal entity. Vippolis v. Vill. of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985) (internal
citation omitted). First, the plaintiff must “prove the existence of a municipal policy or custom
in order to show that the municipality took some action that caused his injuries beyond merely
employing the misbehaving [individual].” Id. (internal citation omitted). Second, the plaintiff
must establish a “‘direct causal link between a municipal policy or custom and the alleged
constitutional deprivation.’” Hayes v. Cnty. of Sullivan, 853 F. Supp. 2d 400, 439 (S.D.N.Y.
2012) (quoting City of Canton v. Harris, 489 U.S. 378, 385 (1989)).
To satisfy the first requirement, a plaintiff must allege the existence of:
(1) a formal policy which is officially endorsed by the municipality; (2) actions
taken or decisions made by government officials responsible for establishing
municipal policies which caused the alleged violation of the plaintiff’s civil rights;
(3) a practice so persistent and widespread that it constitutes a custom or usage and
implies the constructive knowledge of policy-making officials; or (4) a failure by
official policy-makers to properly train or supervise subordinates to such an extent
that it amounts to deliberate indifference to the rights of those with whom municipal
employees will come into contact.
Moray v. City of Yonkers, 924 F. Supp. 8, 12 (S.D.N.Y. 1996) (internal citations and quotation
marks omitted); see also Brandon v. City of New York, 705 F. Supp. 2d 261, 276-77 (S.D.N.Y.
2010) (quoting Moray and updating citations to cases). A plaintiff is not required to identify an
express rule or regulation in order to establish a Monell claim, and a court may infer a municipal
policy from acts or omissions of the municipality’s policy makers, but in the absence of other
evidence, a “single incident of errant behavior is an insufficient basis for finding that a municipal
policy caused plaintiff’s injury.” Sarus v. Rotundo, 831 F.2d 397, 402-03 (2d Cir. 1987); see
also DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir. 1998) (“[A] single incident alleged in a complaint,
especially if it involved only actors below the policy-making level, does not suffice to show a
municipal policy.”) (quoting Ricciuti v. N.Y. City Transit Auth., 941 F.2d 119, 123 (2d Cir.
9

1991)) (internal quotation marks omitted); see also City of St. Louis v. Praprotnik, 485 U.S. 112,
123, 125 (1988) (plurality opinion) (explaining that only municipal officials with “final
policymaking authority” concerning particular activities giving rise to plaintiff’s claims “may by
their actions subject the government to § 1983 liability”) (internal citation omitted). “In the end,
therefore, a plaintiff must demonstrate that, through its deliberate conduct, the municipality was
the moving force behind the alleged injury.” Hayes, 853 F. Supp. 2d at 439 (quoting Roe v. City
of Waterbury, 542 F.3d 31, 37 (2d Cir. 2008)) (internal quotation marks omitted).
In the context of a motion to dismiss, “a plaintiff must make factual allegations that
support a plausible inference that the constitutional violation took place pursuant either to a
formal course of action officially promulgated by the municipality’s governing authority or the
act of a person with policymaking authority for the municipality.” Missel v. Cnty. of Monroe,
351 F. App’x 543, 545 (2d Cir. 2009). See also Twombly, 550 U.S. at 555.
Plaintiff’s only allegation related to a policy of Westchester County is contained in
paragraph 35 of the Amended Complaint. Plaintiff alleges that “[o]n or about June 3, 2013
Annette, an employee of Abbott House agreed and informed plaintiff that since Westchester
County was funding the kids, she had to say what they wanted. She stated that this was a policy
of Westchester County.” (AC ¶ 35.) Not only is Plaintiff’s allegation conclusory, but it is based
on the statement of an employee of Abbott House, not a municipal official at the policy-making
level. Further, Plaintiff, at best, describes only a single instance of conduct consistent with the
purported policy. The combination of these deficiencies is fatal to Plaintiff’s Monell claim and
requires its dismissal. See DeCarlo, 141 F.3d at 61 (2d Cir. 1998) (“[A] single incident alleged
in a complaint, especially if it involved only actors below the policy-making level, does not
suffice to show a municipal policy.”)

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C.

Section 1985 Claims

Plaintiff’s § 1985 claims arise out of a purported conspiracy to terminate her “as a result
of her truthful statements in court” and “her refusal to change her truthful statements in a
subsequent hearing.” (AC ¶¶ 48, 52.) It is unclear whether Plaintiff’s claims arise under
subsections two or three of § 1985, but in any event, Plaintiff’s claims fail under either
subsection.
In order to sustain a cause of action under § 1985(2), a plaintiff must allege “(1) a
conspiracy between two or more persons, (2) to deter a witness ‘by force, intimidation, or threat’
from attending any court of the United States or testifying freely in a matter pending therein,
which (3) causes injury to the claimant.” Herrera v. Scully, 815 F. Supp. 713, 726 (S.D.N.Y.
1993) (citing 42 U.S.C. § 1985(2)). “[T]he statute applies only to conspiracies to prevent
witnesses from appearing in federal courts.” Id. (citing Redcross v. Rensselaer Cty., 511 F.
Supp. 364, 374 (N.D.N.Y. 1981)) (emphasis in original). Here, Plaintiff fails to allege that she
appeared or testified in a federal court. Plaintiff’s testimony occurred in a “permanency
hearing,” which is held in New York State family court. (AC ¶ 36); see also 22 CRR-NY 205.17
(permanency hearings conducted pursuant to Article 10-A of the Family Court Act). Plaintiff’s §
1985(2) claim is therefore dismissed.
Section 1985(3) prohibits two or more persons from conspiring for the purpose of
depriving any person of the equal protection of the laws or of equal privileges and immunities
under the laws. 42 U.S.C. § 1985(3). To adequately plead a claim under § 1985(3), a plaintiff
must allege “(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any
person or class of persons of equal protection 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 of a citizen of the United States.”
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Hollman v. Cnty. of Suffolk, No. 06-CV-3589 (JFB) (ARL), 2011 WL 280927, at *11 (E.D.N .Y.
Jan. 27, 2011) (quoting Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d
Cir.1993) (internal quotation marks omitted)); see Thomas v. Roach, 165 F.3d 137, 146 (2d Cir.
1999) (citing Traggis v. St. Barbara’s Greek Orthodox Church, 851 F.2d 584, 586-87 (2d Cir.
1988)). A § 1985(3) claim also requires some “some racial, or perhaps otherwise class-based,
invidiously discriminatory animus behind the conspirators’ action.” Griffin v. Breckenridge, 403
U.S. 88, 102 (1971).
The Amended Complaint is devoid of any allegations demonstrating racial, class-based,
or other “invidiously discriminatory animus” that might support a claim under § 1985(3).
Griffin, 403 U.S. at 102. Plaintiff asserts in opposition to the instant motions that “[t]erminating
one for engaging in protected speech—testimony before a court of law—is invidious as it is
unjust and unfairly discriminating.” (Pl.’s Opp. at 15.) Even this contention, a circular attempt
to pay lip service to the pleading requirements of a § 1985(3) claim, fails to allege any instances
of racial or class-based discrimination. All claims under § 1985(3) therefore fail.
III.

Federal and State False Claims Acts
A.

Plaintiff’s Claims

According to the Amended Complaint, Plaintiff asserts claims under the Federal and New
York State False Claims Acts (collectively, the “FCA” claims) arising out of a “lawsuit alleging
fraudulent acts perpetrated by the Defendant.” (AC ¶¶ 55, 59.) Plaintiff concedes in her
opposition to the instant motions that these allegations were the result of a “copy and paste[]”
error “from an old complaint and [Plaintiff] failed to remove references to [the] ‘prior lawsuit.’”
(Pl.’s Opp. at 17.) Instead, Plaintiff’s FCA claims are based on allegations that Abbott House
and Griffin:

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collected monies from the state to house residents, but rather sent employees home after
sending the resident[sic] home for extended periods of time. This saved the agency
money as it did not pay any employees on the days they[sic] resident was not in the
home, but it nevertheless collected money from State and upon information and
believe[sic] the federal government. A[bbott] H[ouse] did not inform the government
that there was no resident at the home and they being[sic] paid for services that was[sic]
not rendered.
(Pl.’s Opp. at 17.)
Although it is not clear from the Amended Complaint under which provisions of the
Federal and State FCAs Plaintiff brings her claims, Plaintiff’s requested relief tracks the statutory
relief outlined in Federal and State FCA “whistleblower” retaliation claims. Compare AC ¶¶ 56,
60 (seeking “an injunction to restrain continued discrimination, reinstatement to the position
Plaintiff held but for this discrimination or an equivalent position, . . . payment of two times back
pay, plus interest and compensation for any special damages sustained as a result of the
discrimination, including litigation costs and reasonable attorneys’ fees”) with 31 U.S.C. §
3730(h)(2) (“Relief under paragraph (1) shall include reinstatement with the same seniority
status that employee, contractor, or agent would have had but for the discrimination, 2 times the
amount of back pay, interest on the back pay, and compensation for any special damages
sustained as a result of the discrimination, including litigation costs and reasonable attorneys’
fees.”) and N.Y. State Fin. Law § 191 (“Such relief shall include but not be limited to: (a) an
injunction to restrain continued discrimination; (b) hiring, contracting or reinstatement to the
position such person would have had but for the discrimination or to an equivalent position; (c)
reinstatement of full fringe benefits and seniority rights; (d) payment of two times back pay, plus
interest; and (e) compensation for any special damages sustained as a result of the
discrimination, including litigation costs and reasonable attorneys’ fees.”).

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To state a FCA retaliation claim under Federal or New York state law, 1 a plaintiff must
show that: “(1) the employee engaged in conduct protected under the FCA; (2) the employer
knew that the employee was engaged in such conduct; and (3) the employer discharged,
discriminated against or otherwise retaliated against the employee because of the protected
conduct.” Garcia v. Aspira of New York, Inc., No. 07 CIV. 5600 PKC, 2011 WL 1458155, at *3
(S.D.N.Y. Apr. 13, 2011) (quoting McAllan v. Von Essen, 517 F. Supp. 2d 672, 685 (S.D.N.Y.
2007) (internal quotation marks omitted)). Protected conduct is defined as “an employee’s
actions . . . ‘in furtherance of an action under the FCA,’ that is, an employee ‘must have been
investigating matters that were calculated, or reasonably could have lead [sic], to a viable FCA
action.’” Id. at *4 (quoting Faldetta v. Lockheed Martin Corp., 98 Civ. 2614(RCC), 2000 WL
1682759, *12 (S.D.N.Y. Nov. 9, 2000)). Simply put, “[t]he plaintiff must demonstrate that her
investigation, inquiries, and/or testimony were directed at exposing a fraud upon the
government.” Moor-Jankowski v. Bd. of Trustees of New York Univ., No. 96 CIV. 5997 (JFK),
1998 WL 474084, at *10 (S.D.N.Y. Aug. 10, 1998) (internal citations and quotation marks
omitted).
The Amended Complaint lacks any allegations, well-pleaded or otherwise, concerning an
investigation undertaken by Plaintiff directed at exposing fraud upon the government. Even
Plaintiff’s purported permanency hearing testimony, which is decidedly at the heart of this
action, related to whether a child housed at Abbott House was absent without leave (“AWOL”),
(see AC ¶ 36), and had nothing to do with whether Abbott House was fraudulently collecting

1

“New York’s whistleblower retaliation statute ‘is essentially identical in language and substance to its
federal counterpart,’ Forkell v. Lott Assisted Living Corp., No. 10–cv–5765, 2012 WL 1901199, at *14 (S.D.N.Y.
May 21, 2012), and ‘courts interpret [the former] by closely tracking judicial interpretation of [the latter].’
Landfield v. Tamaeres Real Estate Holdings, Inc., No. 11–cv–105149, 2012 WL 3135052, at *6 (N.Y. Sup. Ct. July
23, 2012).” Monsour v. New York State Office for People with Developmental Disabilities, No. 1:13-CV-0336 TJM
CFH, 2014 WL 975604, at *10 (N.D.N.Y. Mar. 12, 2014).

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money from Westchester County without rendering services. Without undertaking an
investigation or engaging in any other FCA-protected conduct, Plaintiff cannot state a claim
under either the Federal or New York State FCA. Her claims are therefore dismissed.
B.

Request For Attorneys’ Fees and Expenses

Defendants Abbott House and Griffin seek attorneys’ fees and expenses pursuant to 31
U.S.C. § 3730(d)(4) and N.Y. Fin. Law § 190(6)(d) for defending against Plaintiff’s FCA claims.
“[A] district court may award a defendant reasonable attorneys’ fees against a qui tam
relator if the defendant prevails in the action and the court finds that the claim of the person
bringing the action was clearly frivolous, clearly vexatious, or brought primarily for purposes of
harassment. Any one of these three conditions is sufficient for an award of attorneys’ fees.”
Mikes v. Straus, 274 F.3d 687, 704-05 (2d Cir. 2001); see also 31 U.S.C. § 3730(d)(4). “A claim
is frivolous when, viewed objectively, it may be said to have no reasonable chance of success,
and present no valid argument to modify present law.” Id. at 705.
There is no evidence in the record that Plaintiff’s claims are clearly vexatious or brought
primarily for purposes of harassment. Although Plaintiff’s claims come alarmingly close to the
line of being completely frivolous, they do not cross it. The Court therefore declines to grant
Abbott House’s and Griffin’s request for attorneys’ fees and expenses. Nevertheless, the Court
can only assume that, based on the clear deficiencies in the Amended Complaint highlighted
above, Plaintiff’s counsel failed to conduct reasonable due diligence with respect to whether
Plaintiff could plausibly assert a claim under the Federal or State FCA. The deficiencies in the
Amended Complaint are only exacerbated by counsel’s myriad typographical, grammatical, and
self-described “copy and paste” errors, all of which lends further credence to the notion that
counsel failed to dedicate the time and attention to this matter that the Court expects of members

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of the bar of the Southern District of New York. Plaintiff’s counsel is hereby warned that such
actions could result in sanctions and/or the award of attorneys’ fees and expenses in the future.
IV.

Tortious Interference with Contractual Relations
Plaintiff’s fifth cause of action alleges tortious interference by Westchester County with

Plaintiff’s contractual relations with Abbott House. (AC ¶¶ 62-63.) Although Plaintiff asserts in
her opposition to the instant motions that the Court should “liberally read the complaint to state a
claim for interference with business relations,” (Pl.’s Opp. at 18), the Amended Complaint
specifically “asserts a claim for tortious interference with contractual relations,” (AC ¶ 63), and it
is well-settled that a plaintiff may not amend a complaint through briefs filed in opposition to a
motion to dismiss. See Disabled in Action of Metro. New York v. Trump Int’l Hotel & Tower,
No. 01 CIV. 5518 (MBM), 2003 WL 1751785, at *13 (S.D.N.Y. Apr. 2, 2003) (“A claim for
relief may not be amended by the briefs in opposition to a motion to dismiss.”) (internal citations
and quotation marks omitted). The Court therefore considers Plaintiff’s fifth cause of action as
one for tortious interference with contractual relations.
To establish a claim for tortious interference with contractual relations, a plaintiff must
allege “the existence of a valid contract between the plaintiff and a third party, defendant’s
knowledge of that contract, defendant’s intentional procurement of the third-party’s breach of the
contract without justification, actual breach of the contract, and damages resulting therefrom.”
Lama Holding Co. v. Smith Barney Inc., 88 N.Y.2d 413, 424 (1996) (internal citations omitted).
Construed liberally, at best the Amended Complaint alleges the existence of an at-will
employment contract between Plaintiff and Abbott House. However, “a contract terminable at
will cannot be the basis for a tortious interference with contract claim.” AIM Int’l Trading,
L.L.C. v. Valcucine S.p.A., No. 02 CIV. 1363 (PKL), 2003 WL 21203503, at *5 (S.D.N.Y. May
22, 2003) (collecting cases). “The reason for this principle is intuitive: there can be no breach of
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contract, a necessary element for tortious interference with contract, when the contract may be
terminated at will.” Id. Because Plaintiff cannot demonstrate a necessary element of her claim,
it is dismissed.
V.

New York State Executive Law
Plaintiff’s sixth cause of action alleges retaliation under the New York State Executive

Law. The Court construes this allegation as one for retaliation under New York State Executive
Law § 290 et seq., otherwise known as the New York State Human Rights Law (“NYSHRL”).
To establish a prima facie case of retaliation under the NYSHRL, a plaintiff must show: “1)
participation in a protected activity; 2) the defendant’s knowledge of the protected activity; 3) an
adverse employment action; and 4) a causal connection between the protected activity and the
adverse employment action.” Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 844 (2d Cir.
2013) (internal citation and quotation marks omitted); Forrest v. Jewish Guild for the Blind, 3
N.Y.3d 295, 313 (2004).
In order to sustain a NYSHRL retaliation claim, a plaintiff must allege participation in a
“protected activity” – an “action taken to protest or oppose statutorily prohibited discrimination.”
Wright v. Monroe Cmty. Hosp., 493 F. App’x 233, 236 (2d Cir. 2012) (quoting Cruz v. Coach
Stores, Inc., 202 F.3d 560, 566 (2d Cir. 2000)). Here, Plaintiff states in conclusory terms that
“she complained about a protected activity.” (AC ¶ 65.) Plaintiff elaborates on this alleged
“protected activity” in her opposition to the instant motions, describing it as “her protected
speech” and explaining that “[t]estimony in court is the quintessential protected speech.” (Pl.’s
Opp. at 19.) Conspicuously missing from Plaintiff’s Amended Complaint and her opposition
papers is any reference to some sort of statutorily prohibited discrimination. Instead, the
testimony that forms the basis of her purportedly protected activity relates to whether a child

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housed at Abbott House was AWOL. (AC ¶ 36.) Without alleging that she protested or opposed
statutorily prohibited discrimination, Plaintiff’s NYSHRL retaliation claim must fail.
VI.

New York State Labor Law
Plaintiff’s final cause of action alleges retaliation based on Plaintiff’s “complaints against

a protected activity” in violation of New York Labor Law § 215. (AC ¶ 67.) In order to state a §
215 claim, “a plaintiff must allege that (1) while employed by the defendant, he or she made a
complaint about the employer’s violation of New York Labor Law and (2) he or she was
terminated or otherwise penalized, discriminated against, or subjected to an adverse employment
action as a result.” Castagna v. Luceno, No. 09-CV-9332 CS, 2011 WL 1584593, at *12
(S.D.N.Y. Apr. 26, 2011) aff’d, 744 F.3d 254 (2d Cir. 2014) and aff’d, 558 F. App’x 19 (2d Cir.
2014) (quoting Higueros v. N.Y. State Catholic Health Plan, Inc., 526 F. Supp. 2d 342, 347
(E.D.N.Y. 2007)) (internal quotation marks omitted). Further, “[a] plaintiff must show that she
‘complained about a specific violation of the Labor Law.’” Id. (quoting Epifani v. Johnson, 65
A.D.3d 224, 236 (2d Dep’t 2009)). “An informal complaint to an employer that the employer is
violating a provision of the Labor Law suffices.” Id. (quoting Ting Yao Lin v. Hayashi Ya II,
Inc., No. 08–6071, 2009 WL 289653, at *7 (S.D.N.Y. Jan.30, 2009)).
Plaintiff asserts in her opposition papers that she “alleged in the Amended Complaint that
she complained to her manager Richard Griffin about being compelled to testify falsely” in
violation of New York Labor Law. (Pl.’s Opp. at 20.) The Court has searched the Amended
Complaint, yet it cannot find any allegations related to a complaint made by Plaintiff to Griffin
regarding her being compelled to testify falsely, let alone a complaint about a specific violation
of New York Labor Law. Plaintiff’s failure to plead that she complained about a specific
violation of New York Labor Law requires dismissal of her claim.

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VII.

Plaintiff’s Cross Motion to Amend
Plaintiff seeks to amend the Amended Complaint to add two new defendants, “Marisol

Doe” and “Neil Doe.” (Pl.’s Opp. at 22-23; Pl.’s Reply at 1.) This amendment is requested to
“add parties necessary to the action,” but “not to add more claims.” (Pl.’s Reply at 1.)
A party may amend a pleading once as a matter of course or at any time before trial with
leave of the court. Fed. R. Civ. P. 15(a)(1)-(2). When a party seeks leave to amend a pleading,
“[t]he court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2).
Nevertheless, the Court may deny leave to amend for “[r]easons [of] . . . undue delay, bad faith,
futility of amendment, and perhaps most important, the resulting prejudice to the opposing
party.” State Teachers Ret. Bd. v. Fluor Corp, 654 F.2d 843, 856 (2d Cir. 1981) (citing Foman
v. Davis, 371 U.S. 178, 182 (1962) (“In the absence of any apparent or declared reason–such as
undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue
of allowance of the amendment, futility of amendment, etc.–the leave sought should, as the rules
require, be ‘freely given.’”)).
Leave to amend may be denied “on grounds of futility if the proposed amendment fails to
state a legally cognizable claim or fails to raise triable issues of fact.” AEP Energy Servs. Gas
Holding Co. v. Bank of Am., N.A., 626 F.3d 699, 726 (2d Cir. 2010) (quoting Milanese v. RustOleum Corp., 244 F.3d 104, 110-11 (2d Cir. 2001)); accord Ruotolo v. City of New York, 514
F.3d 184, 191 (2d Cir. 2008) (quoting Foman, 371 U.S. at 182). A proposed amendment is futile
if it “could not withstand a motion to dismiss pursuant to [Rule] 12(b)(6).” Lucente v. Int’l Bus.
Machs. Corp., 310 F.3d 243, 258 (2d Cir. 2002) (internal citation omitted). Thus, a court should
deny a motion to amend if it does not contain enough factual allegations, accepted as true, to
state a claim for relief that is “plausible on its face.” Riverhead Park Corp. v. Cardinale, 881 F.
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Supp. 2d 376, 379 (E.D.N.Y. 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007) (denying motion to add claims as futile)).
All of Plaintiffs claims asserted in the Amended Complaint have been dismissed. As
none of the Court's rulings were based on Plaintiffs claims being asserted against the wrong
party, merely adding additional parties to this action would have no effect on the Court's rulings,
making any amendment futile. Plaintiffs request for leave to amend is denied.
CONCLUSION

For the foregoing reasons, Defendants' motions to dismiss are GRANTED and Plaintiffs
cross-motion to amend is DENIED. The Court respectfully directs the Clerk of the Court to
terminate the motions at ECF Nos. 23 and 30 and to close the case.
Dated:

,.,1-

February 1:Jl, 2016
White Plains, New York

United States District Judge

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