Eastchester Tobacco & Vape Inc. et al v. Town of Eastchester et al

Filing 35

OPINION AND ORDER re: 22 MOTION to Dismiss filed by Eastchester Town Board, Town of Eastchester Police Department, Luigi Marcoccia, Town of Eastchester, Joseph Dooley, Sheila Marcotte, Anthony S Colavita, Theresa Nicholson. The motion to dismiss is GRANTED. The Clerk is directed to terminate the motion (Doc. #22) and close this case. (Signed by Judge Vincent L. Briccetti on 8/1/2022) (mml) Transmission to Orders and Judgments Clerk for processing.

Case 7:21-cv-06996-VB Document 35 Filed 08/01/22 Page 1 of 15

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------x
EASTCHESTER TOBACCO & VAPE INC.,
:
EASTCHESTER SERVICE STATION INC.,
:
EASTCHESTER SERVICE CENTER INC.,
:
CHESTNUT MARTS INC., and SCARSDALE
:
AUTO CLINIC, INC.,
:
Plaintiffs,
;
v.
:
:
TOWN OF EASTCHESTER, EASTCHESTER
:
TOWN BOARD, ANTHONY S. COLAVITA,
:
JOSEPH DOOLEY, LUIGI MARCOCCIA,
:
THERESA NICHOLSON, SHEILA
:
:
MARCOTTE, and TOWN OF EASTCHESTER
:
POLICE DEPARTMENT,
Defendants.
:
---------------------------------------------------------------x

OPINION AND ORDER
21 CV 6996 (VB)

Briccetti, J.:
Plaintiffs Eastchester Tobacco & Vape Inc. (“ETV”), Eastchester Service Station Inc.
(“ESS”), Eastchester Service Center Inc. (“ESC”), Chestnut Marts Inc. (“CM”), and Scarsdale
Auto Clinic, Inc. (“SAC”), bring this action against defendants the Town of Eastchester (the
“Town”), the Eastchester Town Board, Anthony S. Colavita, Joseph Dooley, Luigi Marcoccia,
Theresa Nicholson, Sheila Marcotte, and the Town of Eastchester Police Department. Plaintiffs
allege the Town’s Electronic Nicotine Delivery Product Law (the “Local Law”), which prohibits
“[t]he sale, offer for sale, or distribution of Electronic Nicotine Delivery Products,” is preempted
by federal and state law, violates the First Amendment, and is unconstitutionally vague.
Now pending is defendants’ motion to dismiss the amended complaint pursuant to Rule
12(b)(6). (Doc. #22).
For the reasons set forth below, the motion is GRANTED.

1

Case 7:21-cv-06996-VB Document 35 Filed 08/01/22 Page 2 of 15

BACKGROUND
For the purpose of ruling on the motion to dismiss, the Court accepts as true all wellpleaded factual allegations in the amended complaint and draws all reasonable inferences in
plaintiffs’ favor, as summarized below.
On September 3, 2019, the Town enacted the Local Law. (Doc. #21 (“Am. Compl.”)
¶ 38). The Local Law prohibits “[t]he sale, offer for sale, or distribution of Electronic Nicotine
Delivery Products . . . within the Town of Eastchester,” Local Law § 3, and it directed all
persons to “cease all sales of such products within the Town of Eastchester within six (6) months
of” the Local Law’s enactment. Id. § 4.
The Local Law provides it is to be enforced by the Town of Eastchester Police
Department, and that “[a]ny Person who violates” the “Local Law shall be guilty of a violation
punishable by a fine not exceeding $1,000.00 for each offense.” Local Law §§ 5–6.
Under the Local Law, “Electronic Nicotine Delivery Products” are defined as:
Any article or product, not including cigarettes, cigars, pipe tobacco, or chewing
tobacco, made wholly or in part of a tobacco substitute or otherwise containing
nicotine that is expected or intended for human consumption, but not including a
tobacco substitute prescribed by a licensed physician or a product that has been
approved by the United States Food and Drug Administration for sale as a tobacco
use cessation or harm reduction product or for other medical purposes and which is
being marketed and sold solely for that approved purpose. Electronic Nicotine
Delivery Products include, but are not limited to, e-cigarettes, vapes, vaporizers,
vape pens, lozenges or other candy, drinks, liquid nicotine or other e-liquids or
inhalers.
Local Law § 2.
Plaintiffs are businesses within the Town that either have been cited for violations of the
Local Law, have lost business because of the Local Law, or seek to sell products potentially
banned by the Local Law. (Am. Compl. ¶¶ 7–11). ETV also alleges it has been cited for

2

Case 7:21-cv-06996-VB Document 35 Filed 08/01/22 Page 3 of 15

offering to sell component parts of Electronic Nicotine Delivery Products, such as a coil or
battery, which do not contain tobacco, a tobacco substitute, or nicotine. (See id. ¶¶ 45–48).
DISCUSSION
I.

Legal Standard
In deciding a Rule 12(b)(6) motion, the Court evaluates the sufficiency of the operative

complaint under “the two-pronged approach” articulated by the Supreme Court in Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009). 1 First, a plaintiff’s legal conclusions and “[t]hreadbare recitals
of the elements of a cause of action, supported by mere conclusory statements,” are not entitled
to the assumption of truth and are thus not sufficient to withstand a motion to dismiss. Id. at 678;
Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). Second, “[w]hen there are well-pleaded
factual allegations, a court should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. at 679.
To survive a Rule 12(b)(6) motion, the allegations in the complaint must meet a standard
of “plausibility.” Ashcroft v. Iqbal, 556 U.S. at 678; Bell Atl. Corp. v. Twombly, 550 U.S. 544,
557 (2007). A claim is facially plausible “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. at 678. “The plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 556).

Unless otherwise indicated, case quotations omit all internal citations, quotation marks,
footnotes, and alterations.

1

3

Case 7:21-cv-06996-VB Document 35 Filed 08/01/22 Page 4 of 15

II.

Federal Preemption
Defendants contend plaintiffs have not plausibly alleged the Local Law is preempted by

federal law.
The Court agrees.
A.

Legal Standard

The Supremacy Clause provides that federal law is “the supreme Law of the Land.” U.S.
Const. art. VI, § 2. Thus, “state and local laws that conflict with federal law are without effect.”
N.Y. SMSA Ltd. P’ship v. Town of Clarkstown, 612 F.3d 97, 103 (2d Cir. 2010). A plaintiff
may invoke federal subject-matter jurisdiction when it alleges a local law is federally preempted
and seeks injunctive and declaratory relief. Concerned Citizens of Cohocton Valley, Inc. v.
N.Y.S. Dep’t of Env’t Conservation, 127 F.3d 201, 206–07 (2d Cir. 1997).
The relevant type of federal preemption here is “express preemption,” when “Congress
has expressly preempted local law.” N.Y. SMSA Ltd. P’ship v. Town of Clarkstown, 612 F.3d
at 104. “Preemption analysis is guided by the presumption that a federal statute does not
displace the local law unless Congress has made such an intention clear and manifest,” especially
when “a locality seeks to exercise its police powers to protect the health and safety of its
citizens.” U.S. Smokeless Tobacco Mfg. Co. v. City of New York, 708 F.3d 428, 432 (2d Cir.
2013).
Here, plaintiffs contend the Local Law is expressly preempted the federal Family
Smoking Prevention and Tobacco Control Act (the “FSPTCA”). Because plaintiffs seek
injunctive and declaratory relief (Am. Compl. ¶¶ 76, 84), the Court possesses subject-matter
jurisdiction over this claim. Concerned Citizens of Cohocton Valley, Inc. v. N.Y.S. Dep’t of
Env’t Conservation, 127 F.3d at 206–07.

4

Case 7:21-cv-06996-VB Document 35 Filed 08/01/22 Page 5 of 15

The FSPTCA empowers the Food and Drug Administration (“FDA”) to regulate
“[t]obacco products.” 21 U.S.C. § 387a(a). This includes “all cigarettes, cigarette tobacco, rollyour-own tobacco, and smokeless tobacco,” id. § 387a(b), as well as nicotine delivered by
“electronic nicotine delivery systems,” such as “e-cigarettes.” Deeming Tobacco Products to Be
Subject to the Federal Food, Drug, and Cosmetic Act, 81 Fed. Reg. 28,973, 28,975 (May 10,
2016). To that end, the FSPTCA permits the FDA to promulgate “tobacco product standards,”
which regulate, for example, additives in and nicotine yields of tobacco products. See 21 U.S.C.
§ 387g.
Section 387p of the FSPTCA includes a preservation clause, a preemption clause, and a
saving clause.
The preservation clause states:
Except as provided in [the preemption clause], nothing in this subchapter, or rules
promulgated under this subchapter, shall be construed to limit the authority of a
Federal agency (including the Armed Forces), a State or political subdivision of a
State, or the government of an Indian tribe to enact, adopt, promulgate, and enforce
any law, rule, regulation, or other measure with respect to tobacco products that is
in addition to, or more stringent than, requirements established under this
subchapter, including a law, rule, regulation, or other measure relating to or
prohibiting the sale, distribution, possession, exposure to, access to, advertising and
promotion of, or use of tobacco products by individuals of any age, information
reporting to the State, or measures relating to fire safety standards for tobacco
products.
21 U.S.C. § 387p(a)(1).
The preemption clause states:
No State or political subdivision of a State may establish or continue in effect with
respect to a tobacco product any requirement which is different from, or in addition
to, any requirement under the provisions of this subchapter relating to tobacco
product standards, premarket review, adulteration, misbranding, labeling,
registration, good manufacturing standards, or modified risk tobacco products.
21 U.S.C. § 387p(a)(2)(A).

5

Case 7:21-cv-06996-VB Document 35 Filed 08/01/22 Page 6 of 15

The saving clause states that the preemption clause “does not apply to requirements
relating to the sale, distribution, possession, information reporting to the State, exposure to,
access to, the advertising and promotion of, or use of, tobacco products by individuals of any
age, or relating to fire safety standards for tobacco products.” 21 U.S.C. § 387p(a)(2)(B). “In
other words,” the FSPTCA “distinguishes between manufacturing and the retail sale of finished
products; it reserves regulation at the manufacturing stage exclusively to the federal government,
but allows states and localities to regulate sales and other consumer-related aspects of the
industry in the absence of conflicting federal regulation.” U.S. Smokeless Tobacco Mfg. Co. v.
City of New York, 708 F.3d at 434.
The Second Circuit has suggested in dicta that a municipality’s “complete” sales ban of a
category of tobacco products might be preempted by the FSPTCA because complete sales bans
are not within the scope of the FSPTCA’s saving clause. U.S. Smokeless Tobacco Mfg. Co. v.
City of New York, 708 F.3d at 435–36. Proponents of this argument “point to the difference in
language between the preservation clause, which refers to ‘measure[s] relating to or prohibiting
the sale’ of tobacco products, and the saving clause, which refers only to ‘requirements relating
to the sale’ of tobacco products.” Id. at 435 (alteration in original) (quoting 21 U.S.C.
§ 387p(a)). That is, they contend the reference to “measures relating to or prohibiting the sale
of” tobacco products in the preservation clause and the reference only to “measures relating to
the sale of” tobacco products in the saving clause means “measures prohibiting the sale of”
tobacco products are not covered by the saving clause. See id. The Circuit has declined to rule
on this interpretation of the FSPTCA. Id.

6

Case 7:21-cv-06996-VB Document 35 Filed 08/01/22 Page 7 of 15

B.

Analysis

Here, plaintiffs have not plausibly alleged the Local Law is expressly preempted by the
FSPTCA.
First, there is a strong presumption against federal preemption when, “as here, a state or
locality seeks to exercise its police powers to protect the health and safety of its citizens.” U.S.
Smokeless Tobacco Mfg. Co. v. City of New York, 708 F.3d at 432.
Second, the Local Law is a sales regulation, not a tobacco product standard. By enacting
the Local Law, the Town was attempting to regulate finished tobacco products, not their
manufacturing processes. For example, in U.S. Smokeless Tobacco Manufacturing Co. v. City
of New York, the Second Circuit concluded a New York City ordinance that prohibited “any
flavored tobacco product except in a tobacco bar” was a sales regulation, not a products standard
preempted by the FSPTCA, because the City was ultimately concerned with “whether final
tobacco products are ultimately characterized by—or marketed as having—a flavor,” not
whether the tobacco products were manufactured with additives. 708 F.3d at 434. Similarly
here, the Local Law does not address the composition of Electronic Nicotine Delivery Products
or how they are made, only that finished Electronic Nicotine Delivery Products are sold. As
such, the Local Law “represents an exercise of local police power that Congress specifically
allowed in enacting the FSPTCA, and thus it is not preempted.” Id. at 436; see, e.g.,
Neighborhood Mkt. Ass’n v. County of San Diego, 529 F. Supp. 3d 1123, 1135–36 (S.D. Cal.
2021) (San Diego County’s “temporary ban on the sale or distribution of electronic smoking
devices is not a tobacco product standard”).
Third, although the Local Law is a complete sales ban, the Court concludes complete
sales bans are within the scope of the FSPTCA’s saving clause. The saving clause provides that

7

Case 7:21-cv-06996-VB Document 35 Filed 08/01/22 Page 8 of 15

“requirements relating to the sale . . . of[ ] tobacco products by individuals of any age” are not
preempted by the FSPTCA. 21 U.S.C. § 387p(a)(2)(B). The Local Law “is, simply put, a
requirement that tobacco retailers or licensees” in the Town “not sell” Electronic Nicotine
Delivery Products. R.J. Reynolds Tobacco Co. v. County of Los Angeles, 29 F.4th 542, 558 (9th
Cir. 2022) (upholding flavored tobacco ban by Los Angeles County); accord Nat’l Ass’n of
Tobacco Outlets, Inc. v. City of Providence, 731 F.3d 71, 82–83 (1st Cir. 2013) (upholding
flavored tobacco ban by Providence, Rhode Island). Further, the Court is not persuaded that the
difference in language in the preservation clause and saving clause is relevant to the preemption
analysis. This is because “the preemption clause also omits the word ‘prohibiting,’” which
means “[i]f [plaintiffs] are correct that [the FSPTCA] draws a sharp distinction between
‘prohibitions’ versus mere ‘requirements relating to the sale . . . of[ ] tobacco products,’ then the
plain text of the preemption clause itself doesn’t preempt any tobacco product ‘prohibitions.’”
R.J. Reynolds Tobacco Co. v. County of Los Angeles, 29 F.4th at 559 (fourth and fifth
alterations in original).
Accordingly, plaintiffs’ federal preemption claim (Second Cause of Action) must be
dismissed.
III.

Section 1983 Claims
A.

First Amendment

Defendants contend plaintiffs have not stated a First Amendment claim.
The Court agrees, but for reasons different than those articulated by defendants.
The First Amendment prohibits state and local governments from “abridging the freedom
of speech.” U.S. Const. amend. I; 44 Liquormart, Inc. v. State of Rhode Island, 517 U.S. 484,
516 (1996). “Speech” in the context of the First Amendment encompasses conduct that is

8

Case 7:21-cv-06996-VB Document 35 Filed 08/01/22 Page 9 of 15

“sufficiently imbued with elements of communication.” Texas v. Johnson, 491 U.S. 397, 404
(1989). To determine whether conduct is “sufficiently imbued with elements of
communication,” courts have considered “whether an intent to convey a particularized message
was present, and whether the likelihood was great that the message would be understood by
those who viewed it.” Id.
Commercial speech, such as advertising, is also protected by the First Amendment, and
government regulations of commercial speech are subject to heightened scrutiny. Zauderer v.
Off. of Disciplinary Couns., 471 U.S. 626, 637–38 (1985). But regulations of what businesses
“must do[,] . . . not what they may or may not say,” are not considered regulations of commercial
speech. See Rumsfeld v. F. for Acad. & Institutional Rts., Inc., 547 U.S. 47, 60 (2006).
Here, plaintiffs do not sufficiently allege the Local Law regulates commercial speech
protected by the First Amendment. The Local Law prohibits “[t]he sale, offer for sale, or
distribution of Electronic Nicotine Delivery Products.” The law does not attempt to regulate
commercial speech by, for example, prohibiting plaintiffs from advertising accurate information
about lawfully sold products. 44 Liquormart, Inc. v. State of Rhode Island, 517 U.S. at 489
(prohibition on advertising prices of legal alcoholic beverages violates the First Amendment);
Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 750 (1976)
(prohibition on pharmacists advertising truthful information about legally prescribed prescription
drugs violates the First Amendment). The Local Law only regulates what plaintiffs “must do[,]
. . . not what they may or may not say.” Rumsfeld v. F. for Acad. & Institutional Rts., Inc., 547
U.S. at 60. Thus, the Local Law does not implicate the First Amendment.
Accordingly, plaintiffs’ First Amendment claim (Fourth Cause of Action) must be
dismissed.

9

Case 7:21-cv-06996-VB Document 35 Filed 08/01/22 Page 10 of 15

B.

Fourteenth Amendment

Defendants contend plaintiffs’ Fourteenth Amendment claim must be dismissed because
they do not plausibly allege the Local Law is void for vagueness.
The Court agrees.
The Due Process Clause of the Fourteenth Amendment requires state and local laws to
“inform[ ]” the public “as to what the State commands or forbids.” Melendez v. City of New
York, 16 F.4th 992, 1014–15 (2d Cir. 2021). Laws that fail to do so are “void for vagueness.”
Kolender v. Lawson, 461 U.S. 352, 357 (1983). “[L]aws imposing civil penalties” are subject to
“less demanding scrutiny than those with criminal consequences or those implicating
constitutional rights.” Melendez v. City of New York, 16 F.4th at 1015.
A law can be void for vagueness “for either of two independent reasons”: (i) “it fails to
provide people of ordinary intelligence a reasonable opportunity to understand what conduct it
prohibits”; or (ii) “it authorizes or even encourages arbitrary and discriminatory enforcement.”
Hill v. Colorado, 530 U.S. 703, 732 (2000).
Statutes that “do[ ] not implicate First Amendment rights” are “assessed for vagueness
only as applied, i.e., in light of the specific facts of the case at hand and not with respect to [their]
facial validity.” United States v. Rybicki, 354 F.3d 124, 129–30 (2d Cir. 2003) (collecting
cases). In other words, a plaintiff whose conduct “is clearly proscribed” by a law “cannot
complain of the vagueness of the law as applied to the conduct of others.” Village of Hoffman
Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 (1982).
As an initial matter, the Local Law does not implicate the First Amendment, and thus
may only be assessed for vagueness “as applied” to plaintiffs. United States v. Rybicki, 354 F.3d
at 129–30. Plaintiffs ESS, ESC, CM, and SAC seek to sell products proscribed by the Local

10

Case 7:21-cv-06996-VB Document 35 Filed 08/01/22 Page 11 of 15

Law (see Am. Compl. ¶¶ 8–11), and thus cannot raise a void-for-vagueness challenge. Village
of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. at 495. ETV, however, asserts it
was cited for offering for sale component parts of e-cigarettes and vaporizers that do not contain
tobacco, a tobacco substitute, or nicotine (see Am. Compl. ¶¶ 46–47), which are not clearly
proscribed by the Local Law. Thus, ETV may raise an as-applied challenge to the Local Law.
Here, ETV has not plausibly alleged the Local Law is void for vagueness as applied to its
sale of these component parts.
First, ETV has not plausibly alleged the definition of Electronic Nicotine Delivery
Products “fails to provide people of ordinary intelligence a reasonable opportunity to understand
what conduct it prohibits.” Hill v. Colorado, 530 U.S. at 732. Specifically, ETV has not
plausibly alleged the Local Law can be construed to reach the sale of component parts of
Electronic Nicotine Delivery Products that do not contain tobacco, tobacco substitute, or
nicotine.
The Local Law’s definition of Electronic Nicotine Delivery Products includes two parts:
the second part is an illustrative list of examples—“including, but not limited to, e-cigarettes,
vapes, vaporizers, vape pens, lozenges or other candy, drinks, liquid nicotine or other e-liquids or
inhalers”—and the first part limits the definition to products “made wholly in part of a tobacco
substitute or otherwise containing nicotine.” In other words, the Local Law defines Electronic
Nicotine Delivery Products as any products such as “e-cigarettes, vapes, vaporizers, vape pens,
lozenges or other candy, drinks, liquid nicotine or other e-liquids or inhalers” that are “made
wholly in part of a tobacco substitute or otherwise containing nicotine.”
Statutes must be construed as to “give force and effect to each of its provisions rather
than render some of them meaningless,” Allen Oil Co. v. Comm’r, 614 F.2d 336, 339 (2d Cir.

11

Case 7:21-cv-06996-VB Document 35 Filed 08/01/22 Page 12 of 15

1980), and to interpret the Local Law to reach products not “made wholly in part of a tobacco
substitute or otherwise containing nicotine” renders the first part of the definition meaningless.
Further, even if the “including, but not limited to” language in the second part of the definition
introduces some ambiguity into the Local Law, it is permissible ambiguity considering the Local
Law only imposes civil penalties and does not implicate the First Amendment. See Melendez v.
City of New York, 16 F.4th at 1015. Moreover, general terms in statutes followed by a list of
specific items are “to be construed to embrace only objects similar to those enumerated” in the
list, City of New York v. Beretta U.S.A. Corp., 524 F.3d 384, 402 (2d Cir. 2008), which means
“include, but not limited to” should be construed to cover objects similar to “e-cigarettes, vapes,
vaporizers, vape pens, lozenges or other candy, drinks, liquid nicotine or other e-liquids or
inhalers,” not “Snickers candy bars and Coca-Cola” as plaintiffs suggest. (Doc. #31, at 7).
Second, ETV has not plausibly alleged the Local Law authorizes arbitrary enforcement.
ETV alleges it was cited on one occasion for selling a component part not covered by the Local
Law, but this goes to the validity of ETV’s citation, not whether the law is unclear. See, e.g., In
re N.Y.C. Policing During Summer 2020 Demonstrations, 548 F. Supp. 3d 383, 416 (S.D.N.Y.
2021) (law enforcement officers’ failure to comply with procedures set forth in curfew orders go
to whether plaintiffs were properly arrested for violating the curfew orders, not whether the
curfew orders were unconstitutionally vague). ETV also does not plausibly allege a “practice
was so persistent or widespread as to constitute a custom or usage with the force of law”
sufficient to state a claim against the Town or any of its employees in their official capacity.
Green v. Dep’t of Educ., 16 F.4th 1070, 1077 (2d Cir. 2021) (citing Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 692–94 (1978)). In addition, defendants appear to concede the sale of

12

Case 7:21-cv-06996-VB Document 35 Filed 08/01/22 Page 13 of 15

component parts is not prohibited by the Local Law. (See Doc. #34, at 6 (noting plaintiffs
“allege they have been ticketed for conduct not prohibited by the Local Law”)).
Accordingly, plaintiffs’ void-for-vagueness claim (Fifth Cause of Action) must be
dismissed. 2
IV.

Remaining Claims
The Court dismisses plaintiffs’ remaining claims for lack of subject matter jurisdiction.
A.

Legal Standard

Federal courts have an independent obligation to determine whether subject matter
jurisdiction exists even when no party challenges it. See Joseph v. Leavitt, 465 F.3d 87, 89 (2d
Cir. 2006).
A district court may decline to exercise supplemental jurisdiction over state-law claims
when it “has dismissed all claims over which it has original jurisdiction.” 28 U.S.C.
§ 1367(c)(3). Generally, “when the federal-law claims have dropped out of the lawsuit in its
early stages and only state-law claims remain, the federal court should decline the exercise of
jurisdiction.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988).
The Declaratory Judgment Act, 28 U.S.C. § 2201, does not provide an independent basis
for jurisdiction. Niagara Mohawk Power Corp. v. Tonawanda Band of Seneca Indians, 94 F.3d
747, 752–53 (2d Cir. 1996). In the absence of such an independent basis, a declaratory judgment
claim must be dismissed. Correspondent Servs. Corp. v. First Equities Corp., 442 F.3d 767,
769–70 (2d Cir. 2006) (per curiam).

2

Plaintiffs’ Sixth Cause of Action is styled “Violation of 42 U.S.C. § 1983.” (Am. Compl.
at 26). To the extent plaintiffs attempt to assert a standalone Section 1983 claim, it must be
dismissed. “Section 1983 itself creates no substantive rights; it provides only a procedure for
redress for the deprivation of rights established elsewhere.” Sykes v. James, 13 F.3d 515, 519
(2d Cir. 1993).
13

Case 7:21-cv-06996-VB Document 35 Filed 08/01/22 Page 14 of 15

Rule 65 of the Federal Rules of Civil Procedure, which outlines the procedure for district
courts to issue preliminary injunctions or temporary restraining orders, also does not provide an
independent basis for jurisdiction. See Ali v. Barr, 464 F. Supp. 3d 549, 556 (S.D.N.Y. 2020).
B.

Analysis

Here, plaintiffs’ remaining substantive claims—that the Local Law is preempted by New
York law (Third Cause of Action) and is void for vagueness pursuant to the Due Process Clause
of the New York State Constitution (Seventh Cause of Action)—arise under state law. To the
extent plaintiffs seek declaratory judgment on these claims (Am. Compl. ¶¶ 98, 140), the
Declaratory Judgment Act does not provide an independent basis for federal jurisdiction.
Correspondent Servs. Corp. v. First Equities Corp., 442 F.3d at 769–70. In addition, although
plaintiffs style their claim for injunctive relief as an independent claim (First Cause of Action),
Rule 65 also does not provide an independent basis for federal jurisdiction. Ali v. Barr, 464 F.
Supp. 3d at 556.
Having dismissed the federal claims over which the Court has original jurisdiction, the
Court declines to exercise supplemental jurisdiction over plaintiffs’ remaining state-law claims.
See Kolari v. N.Y.-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (“Subsection (c) of
§ 1367 ‘confirms the discretionary nature of supplemental jurisdiction by enumerating the
circumstances in which district courts can refuse its exercise.’” (quoting City of Chicago v. Int’l
Coll. of Surgeons, 522 U.S. 156, 173 (1997))).

14

Case 7:21-cv-06996-VB Document 35 Filed 08/01/22 Page 15 of 15

CONCLUSION
The motion to dismiss is GRANTED.
The Clerk is directed to terminate the motion (Doc. #22) and close this case.
Dated: August 1, 2022
White Plains, NY

SO ORDERED:

____________________________
Vincent L. Briccetti
United States District Judge

15