Oliver v. New York State Police et al

Filing 19

DECISION AND ORDER. The pending motions in Civil Action No. 1:17-cv-01157 are resolved as follows: (1) Plaintiff's motion for costs (Dkt. 2) is denied; (2) Defendants' motion to dismiss and for a more definite statement (Dkt. 6) is denied to the extent it seeks dismissal and granted to the extent it seeks a more definite statement; and (3) Plaintiff's motion for transfer (Dkt. 16) is granted with respect to Civil Action No. 1:17-cv-01157 only. Plaintiff must file a more d efinite statement within 14 days of entry of this Decision and Order. The Clerk of Court is instructed to transfer Civil Action No. 1:17-cv-01157 to the United States District Court for the Northern District of New York. Plaintiff shall file her mo re definite statement in the Northern District of New York if it is filed after transfer is effectuated. The pending motions in Civil Action No. 1:18-cv-00732 are resolved as follows: (1) Defendants' motion to dismiss and for a more defi nite statement (Dkt. 6) is granted to the extent it seeks dismissal and denied as moot to the extent it seeks a more definite statement; (2) Plaintiff's cross-motion to compel (Dkt. 10) is denied; (3) Plaintiff's letter motion for a confere nce (Dkt. 12) is denied as moot; and (4) Plaintiff's motion for transfer of Civil Action No. 1:18-cv-00732 (Dkt. 13) is denied as moot. The Clerk of Court is directed to close Civil Action No. 1:18-cv-00732. Signed by Hon. Elizabeth A. Wolford on 02/05/2019. Associated Cases: 1:18-cv-00732-EAW, 1:17-cv-01157-EAW (CDH) (A copy of this Decision and Order has been mailed to Plaintiff)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT

FEB 0 5 2019

WESTERN DISTRICT OF NEW YORK

^■^/V districl9^
DISTRlgU
JEAN OLIVER,
DECISION AND ORDER

Plaintiff,
1:I7-CV-01157EAW

V.

1:18-CV-00732EAW

NEW YORK STATE POLICE, et al,
Defendants.

INTRODUCTION

Pro se plaintiff Jean Oliver ("Plaintiff) is a former employee of the New York State
Poliee (the "NYSP").

Plaintiff has filed numerous aetions related to her former

employment in this Court, the United States District Court for the Northern District of New
York, and the New York State courts. Two such aetions (Civil Action No. I:I7-CV-01157

(hereinafter the "2017 Action") and Civil Action No. l;18-CV-00732 (hereinafter the
"2018 Action")) are currently pending in this Court. The NYSP is a defendant in both the
2017 and 2018 Aetions. The other defendants in the 2017 Action (referred to collectively

with the NYSP as the "2017 Defendants") are eight high-level employees of the NYSP,

sued in their individual and official capacities. (2017 Action, Dkt. 1 at

8-15). The other

defendants in the 2018 Action (referred to collectively with the NYSP as the "2018

Defendants") are the New York State Attorney General (the "NYAG"), the New York State
Public Employment Relations Board (the "PERB"), and the New York State Governor's
Office of Employee Relations (the "GOEC"). (2018 Action, Dkt. 1 at 1).

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Currently before the Court are three motions filed in the 2017 Action and four

motions filed in the 2018 Action. In particular, in the 2017 Action, Plaintiff has filed a

motion for the costs of service (2017 Action, Dkt. 2) and a motion for transfer to the
Northern District of New York {id., Dkt. 16), while the 2017 Defendants have moved for
dismissal and for a more definite statement {id., Dkt. 6). In the 2018 Action, the 2018
Defendants have moved for dismissal and for a more definite statement(2018 Action, Dkt.

2), and Plaintiff has filed a cross-motion to compel {id., Dkt. 10), a motion for a conference
{id., Dkt. 12), and a motion for transfer to the Northern District ofNew York {id., Dkt. 13).
For the reasons discussed below, these motions are resolved as follows: (1) Plaintiffs

motion for costs (2017 Action, Dkt. 2) is denied; (2) the 2017 Defendants' motion to

dismiss or for a more definite statement {id., Dkt.6)is denied as to the request for dismissal

but granted as to the request for a more definite statement;(3)the 2018 Defendants' motion
to dismiss or for a more definite statement(2018 Action, Dkt.2)is granted as to the request

for dismissal and denied as moot as to the request for a more definite statement; (4)

Plaintiffs cross-motion to compel the 2018 Defendants to answer her Complaint {id., Dkt.

10) is denied;(5)Plaintiffs motion to transfer the 2017 Action to the Northern District of
New York (2017 action, Dkt. 16) is granted;(6) Plaintiffs motion to transfer the 2018
Action to the Northern District of New York(2018 Action, Dkt. 13)is denied as moot; and

(7)Plaintiffs letter motion for a conference in the 2018 Action {id., Dkt. 12) is denied as
moot.

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FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff began working for the NYSP in 1997, and originally spent 7 years as a

member of the road patrol. (2017 Action, Dkt. 1 at

26-27).' In 2005, Plaintiff was

promoted to the rank of investigator and assigned to the Batavia Downs Video Lottery
Unit. (Jd. at ^ 28). Plaintiff remained with the Batavia Downs Video Lottery Unit until
2008, when she was reassigned to the Community Narcotics Enforcement Team West
("CNBT West").(M at^iTf 17, 28).

While she was assigned to CNBT West, Plaintiffs supervisor was non-defendant
Paul Kelly. {Id. at TITf 16, 29). On October 26, 2013, Plaintiff filed an informal complaint

of gender discrimination, harassment, and misconduct by Kelly with the NYSP Office of
Human Resources. {Id. at ^ 16). Plaintiff claims that she was retaliated against as a result

of filing this complaint. {Id. at ^ 17).

Plaintiff filed a formal charge of harassment,

discrimination, and retaliation with the United States Equal Employment Opportunity
Commission (the "EEOC")on September 25, 2014, which was also simultaneously filed
with the New York State Division of Human Rights (the "NYSDHR"). {Id. at 19). On

January 29, 2015, the EEOC issued a determination finding probable cause that gender
discrimination and retaliation had occurred. {Id.). The EEOC further notified Plaintiff of
her right to sue. {Id.).

On April 14,2015,Plaintifffiled a pro se complaint in the Northern District ofNew
York related to the alleged discrimination and retaliation. Oliver v. New York State Police,

'

As is required at this stage of the proceedings, the Court has treated Plaintiffs

factual allegations as true.
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Civil Action No. l:15-cv-00444,Dkt 1 (N.D.N.Y. April 14,2015)(hereinafter the"NDNY
Action"). The NDNY Action remains pending.

Plaintiff filed a second EEOC charge on May 20, 2015, alleging continued
retaliation. (2017 Action, Dkt. 1 at ^ 21). On May 22, 2015, the EEOC issued a right to
sue letter and a letter informing Plaintiff that her complaints were subsumed by her initial
EEOC charge and addressed in the NDNY Action. {Id.).
On July 16,2015,Plaintiff dual-filed a complaint with the EEOC and the NYSDHR
alleging gender discrimination, harassment, disability discrimination, military status

discrimination^, and retaliation. {Id. at ^ 22). The NYSDHR dismissed the complaint for
administrative convenience on September 23,2015. {Id.). On October 23,2015,the EEOC
issued a right to sue letter. {Id.).

Temporarily represented by counsel. Plaintiffcommenced a lawsuit in this Court on

January 5, 2016. Oliver v. New York State Police, et al. Civil Action No. l:16-cv-00011
EAW, Dkt. 1 (W.D.N.Y. January 5, 2016)(hereinafter the "2016 Action"). The 2016
Action was voluntarily dismissed by Plaintiff on December 8, 2016. Id., Dkt. 15.

On September 9, 2017, Plaintiff filed a complaint with the NYSDHR alleging
retaliation. (2017 Action, Dkt. 1 at ^ 25). Plaintiff alleges that the NYSDHR refused to
process this complaint. {Id.).
The 2017 Action was commenced on November 9, 2017. (/J., Dkt. 1). In the 2017

Action, Plaintiff, acting pro se, alleges that the 2017 Defendants improperly handled the

^

Plaintiff is an officer in the United States Army Reserves. (2017 Action, Dkt. 1 at

\n).
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investigations into her discrimination and retaliation complaints, wrongfully terminated
Plaintiff, falsified submissions in a proceeding Plaintiff commenced in New York State
Court, and otherwise retaliated against Plaintiff. {Id. at

30-58). Plaintiff asserts claims

of gender discrimination, retaliation, conspiracy to violate her civil rights, military status
discrimination, and violations of the New York Civil Service and Labor Laws. {Id. at
Vi 59-79).
On January 5, 2018, Plaintiff filed a motion for the costs of service in the 2017

Action. {Id., Dkt. 2). In particular. Plaintiffcontends that pursuant to Federal Rule of Civil

Procedure 4(d), she requested that the 2017 Defendants waive service of a summons and
they failed to do so, entitling Plaintiff to recover the expenses incurred in making such
service. (2017 Action, Dkt. 2 at 1-2). The 2017 Defendants filed a response to Plaintiffs
motion for costs on January 17,2018 {id., Dkt. 8), and Plaintifffiled a reply on January 22,
2018 (/J, Dkt. 11).

On January 10, 2018, the 2017 Defendants filed a motion to dismiss Plaintiffs

Complaint for lack of personaljurisdiction, insufficient process, and insufficient service of

process, or, in the alternative, for a more definite statement. {Id., Dkt. 6). In particular, the
2017 Defendants contend that the summonses served upon them in this case are defective,
and that the Court therefore lacks personal jurisdiction over them. {Id., Dkt. 6-1 at 6-8).

The 2017 Defendants further argue that Plaintiffs Complaint is "an improper shotgun

pleading" because it fails to link any specific factual allegations to her asserted causes of
action, and that a more definite statement ofPlaintiffs claims is therefore required. {Id. at

8-10). Plaintiff filed a response in opposition to the 2017 Defendants' motion to dismiss
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on January 19, 2018 (2017 Action, Dkt. 9), and the 2017 Defendants filed a reply on
February 14, 2018 {id., Dkt. 13).

Plaintiff, acting pro se, commenced the 2018 Action on July 2,2018. (2018 Action,
Dkt. 1).

Plaintiff alleges that the 2018 Defendants violated the New York Civil Service

Law at various administrative hearings and failed to investigate her claims of
discrimination and retaliation. (Id. at

8-9,20-25). Plaintifffurther alleges that the 2018

Defendants submitted false documentation and engaged in litigation misconduct in an
action her former counsel commenced in New York State Court. (Id. at

10-19). Based

on these allegations. Plaintiffpurports to assert claims ofgender discrimination, retaliation,
conspiracy to violate Plaintiffs civil rights, and violations of state law. (Id. at

26-45).

The 2018 Defendants moved for dismissal or for a more definite statement on July
23, 2018. (2018 Action, Dkt. 2). In particular, the 2018 Defendants argue that Plaintiffs
claims against them are barred by the doctrine of sovereign immunity, are improperly

duplicative of her prior lawsuits, and are time barred. (Id., Dkt. 2-1 at 1-2). The 2018
Defendants further argue in the alternative that Plaintiffs Complaint is "an improper
shotgun pleading" and seek a more definite statement. (Id. at 2). Plaintifffiled a response
and a "cross-motion to compel Defendants to answer the charges" on August 20, 2018.
(2018 Action, Dkt. 10). The 2018 Defendants filed a reply on September 4, 2018. (Id.,
Dkt. 11).

On September 5, 2018, Plaintiff filed a letter motion in the 2018 Action requesting
that the Court schedule a conference to "address the ongoing violations of [her] 14th
Amendment rights to due process and equal protection under the law and the retaliation
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[she] continue[s] to be subjected to for exercising [her] rights under Title VII." {Id., Dkt.
12 at 6). The next day, Plaintiff filed a motion for transfer to the Northern District of New

York in both the 2017 and 2018 Actions. (2017 Action, Dkt. 16; 2018 Action, Dkt. 13).
The 2017 and 2018 Defendants filed responses on September 28,2018,indicating that they
take no position on Plaintiffs request for transfer, but requesting that the Court resolve the
pending motions to dismiss prior to deciding the venue issue. (2017 Action, Dkt.18; 2018

Action, Dkt. 15).^
DISCUSSION

I.

Plaintiffs Motion for Costs

The Court first considers Plaintiffs motion for the costs ofservice under Rule 4(d).
Under Rule 4(d):

An individual, corporation, or association that is subject to service under
Rule 4(e),(f), or(h)has a duty to avoid unnecessary expenses of serving the
summons. The plaintiff may notify such a defendant that an action has been
commenced and request that the defendant waive service of a summons.
Fed. R. Civ. P. 4(d)(1). In order to exercise the right to request a waiver, a plaintiff must:
serve appropriate notice upon the defendant that a lawsuit has been
commenced against them and further request such defendant to waive service
of process for the very purpose of controlling costs and minimizing the often
arduous and inconvenient task ofeffectuating personal service.Ifthe plaintiff
complies with all of the notice requirements set forth in Rule 4(d), which
includes attaching a copy of the complaint, then the defendant is compelled
to execute the waiver ofservice or be confronted with bearing the cost ofthe
personal service upon him.

^
On September 6, 2018, Plaintiff also filed a letter motion in the NDNY Action,
asking that the 2017 Action and 2018 Action be transferred to that court. NDNY Action,
Dkt. 123. United States Magistrate Judge Daniel J. Stewart denied the request on

September 25,2018, explaining that"any such request for a change ofvenue must be made
in the District Court where the case is presently pending." Id., Dkt. 132.
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Chapman v. New York State Div. for Youth, 227 F.R.D. 175, 179 (N.D.N.Y. 2005).
Importantly, "[s]ervice upon governmental agencies and their employees is governed by
Rule 4(j)," not Rule 4(e),(f), or(h), and "[f]or public policy reasons, neither governmental
agencies nor their employees or officials are obligated to comply with a request for waiver
nor will they be confronted with bearing the costs of the service of process." Chapman,
221 F.R.D. at 179;

also Rashada v. City ofBuffalo, No. 11CV873A,2013 WL 474751,

at *3 (W.D.N.Y. Feb. 6, 2013)("[C]ourts have held that police officers or corrections
officers, being sued in their official capacity, are not subject to the waiver and cost
provisions of Rule 4(d), because they are construed to have been served under Rule 4(j)."
(collecting cases)); Cupe v. Lantz,470 F. Supp. 2d 136,138(D. Conn. 2007)("Rule 4(d)'s
waiver of service provision [is] inapplicable to states and their employees sued in their
official capacities.").
Here, the 2017 Defendants consist of the NYSP and eight New York State

employees sued in their individual and official capacities. (2017 Action, Dkt. 1 at 1).
Because all of the 2017 Defendants are either agencies of New York State or state

employees sued in their official capacities, they are not subject to Rule 4(d)'s waiver of
service provision. See Chapman,227 F.R.D. at 179; see also Rashada, 2013 WL 474751,

at *3 (denying request for costs under Rule 4(d) where claims appeared to be asserted

against defendants in both their individual and official capacities). Plaintiffs motion for
the costs of service is therefore denied.

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II.

Motion to Dismiss the 2017 Action

The 2017 Defendants seek dismissal ofPlaintiffs claims against them on the basis

of lack of personal jurisdiction, insufficient process, and insufficient service of process.
(2017 Action, Dkt. 6). In particular, the 2017 Defendants argue that the summonses served
upon them fail to comport with the requirements of Rule 4(a). {Id., Dkt. 6-1 at 6-8). On

these grounds. Defendants seek dismissal of Plaintiffs Complaint in the 2017 Action
pursuant to Federal Rules of Civil Procedure 12(b)(2),(4), and (5). {Id. at 5).
A.

Legal Standard

Rule 4(c) provides that a "summons must be served with a copy ofthe complaint."
Fed. R. Civ. P. 4(c)(1). Pursuant to Rule 4(a), a summons must:

(A)name the court and the parties;(B)be directed to the defendant;(C)state
the name and address ofthe plaintiffs attorney or—ifunrepresented—ofthe
plaintiff; (D) state the time within which the defendant must appear and
defend;(E)notify the defendant that a failure to appear and defend will result
in a default judgment against the defendant for the relief demanded in the
complaint;(F)be signed by the clerk; and(G)bear the court's seal.
Fed. R. Civ. P. 4(a)(1).

Under Federal Rule of Civil Procedure 12(b), a defendant may assert the following

defenses, among others, by motion: lack of personal jurisdiction; insufficient process; and
insufficient service of process. Fed. R. Civ. P. 12(b)(2), (4),(5). Here, the Defendants

purport to bring their motion to dismiss pursuant to all of these provisions of Rule 12(b).
However,these grounds for relief are not interchangeable. "[A] Rule 12(b)(4) motion is a

challenge to the form of the process rather than the manner or method of its service,
whereas a Rule 12(b)(5) motion challenges the mode of delivery or the lack of delivery of

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the summons and complaint." Coon v. Shea, No. 2:14-CV-85, 2014 WL 5847720, at *4

(D. Vt. Sept. 5,2014)(quotation omitted),report and recommendation adopted in relevant
part. No. 2:14-CV-85, 2014 WL 5849053(D. Vt. Nov. 12, 2014). "Objections pursuant
to Rule 12(b)(2) concern lack of personal jurisdiction, which results when a summons and
complaint have not been served on the defendant pursuant to Rule 12(b)(5)." Jackson v.

City ofN.Y., No. 14-CV-5755 GBD KNF, 2015 WL 4470004, at *4 (S.D.N.Y. June 26,
2015)(quotation omitted);see also C. Wright, A. Miller,& M.Kane,5B Fed. Prac.& Proc.

Civ. § 1353 (3d ed.) ("Although the questions of personal jurisdiction and service of

process are closely interrelated, service of process is merely the means by which a federal
court gives notice to the defendant and asserts jurisdiction over him.").

Here, the only grounds for dismissal identified in Defendants' motion are alleged
deficiencies in the summonses served by Plaintiff with the Complaint in the 2017 Action.

Accordingly, the Court analyzes Defendants' motion under Rule 12(b)(4). "Objections to

sufficiency of process itself under Rule 12(b)(4) must identify substantive deficiencies in
the summons, complaint or accompanying documentation." Hilaturas Miel, S.L. v.

Republic ofIraq, 573 F. Supp. 2d 781,796(S.D.N.Y. 2008). Where the identified defects
in a summons are merely technical, "the appropriate remedy . . . [is] not to dismiss the
claims but to serve an amended summons[.]" Precision Assocs., Inc. v. Panalpina World

Transp. (Holding)Ltd., No.08-CV-42 JG VVP,2011 WL 7053807, at *45(E.D.N.Y. Jan.

4, 2011), report and recommendation adopted, 2012 WL 3307486 (E.D.N.Y. Aug. 13,
2012).

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There is some disagreement regarding the burden of proof with respect to a Rule
12(b)(4) motion. A recent case in this District held that "[t]he burden of proof regarding
the insufficiency of process ... is upon the challenger, here the defendant[.]" Burmaster v.
Pfizerlnc., No. 17CV1290V,2018 WL 5779133, at *5(W.D.N.Y. Apr. 23, 2018), report
and recommendation adopted, 2018 WL 5777032 (W.D.N.Y. Nov. 2, 2018); see also
Rasheedv. D'Antonio, No. CIV.A. 10-11253-GAO, 2012 WL 1065574, at *2(D. Mass.

Mar. 12, 2012), report and recommendation adopted, 2012 WL 1065572(D. Mass. Mar.

27, 2012)("In all challenges to the sufficiency of either the process or the service of
process, the burden ofprooflies with the challenging party."); Ortiz v. Reyes,No. CIV.051721(DRD), 2006 WL 940703, at *1 (D.P.R. Apr. 10, 2006)("The party raising the

insufficiency of service has .. the absolute burden of specifically establishing to the Court

how plaintiff failed to satisfy the requirements of the service provision utilized.").
However, cases from other districts suggest that the burden is on the plaintiff. See, e.g.,

Coleman v. Bank ofN.Y. Mellon,969 F. Supp. 2d 736,744(N.D. Tex. 2013)
("The plaintiff
bears the burden of proof regarding sufficiency of the process."); Sunoco v. Mid-Atl.

Region Retailer Compliance Ctr., No. CIV.A. 10-4941 NLH, 2012 WL 2870871, at *2
(D.N.J. July 12,2012)
("The plaintiffis responsible for effecting service and has the burden
of demonstrating its conformity with the Rules."). In this case, the Court need not decide

who bears the burden of proof because it concludes, for the reasons set forth below, that
Plaintiff has demonstrated that any defect in the summonses was merely technical and that
dismissal of this case is therefore not warranted.

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B.

Any Defects in the Summonses were Merely Technical

The 2017 Defendants argue that the summonses served by Plaintiff were defective
because:(1)there is no notation on the docket in this matter that summonses were issued;
(2)the summonses do not bear the seal ofthe Court; (3)the summons issued to defendant
Jason Hughes ("Defendant Hughes") does not bear the index number; and (4) the

summonses do not list all the parties, but instead list only the defendant to whom service
is directed. (2017 Action, Dkt. 6-1 at 6-8). In opposition. Plaintiff has submitted a sworn
affirmation in which she states that:(1) on December 8, 2017, she appeared in person at
the Clerk of Court's office and submitted summonses for each of the 2017 Defendants,

which were signed and stamped and returned to her;(2) she thereafter mailed two copies

of the Complaint and a summons as to each of the 2017 Defendants to a process serving
company in Albany, New York, which in turn served each of the 2017 Defendants;(3)

upon receiving a copy of the 2017 Defendants' motion to dismiss, she realized that the
summons issued to Defendant Hughes did not contain the index number, and that she
thereafter "corrected" the summons by adding the case number and caused a copy of the
corrected summons and the Complaint to be re-served on Defendant Hughes. {Id., Dkt. 10
at 11115-8).

"Any factual question raised by the affidavits or other evidence presented on a Rule

12(b)(4) or a Rule 12(b)(5) motion should be determined by the district court." C. Wright,
A. Miller,& M. Kane, 5B Fed. Prac. & Proc. Civ. § 1353(3d ed.). Here,the Court credits

Plaintiffs sworn allegations that the summonses in question were duly issued by the Clerk
of Court's Office, inasmuch as the summonses that were returned executed by Plaintiff
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bear the Clerk of Court's signature and are consistent with the form of summonses issued
in this District. (See 2017 Action, Dkt. 3). There is no evidence in the record that rebuts
Plaintiffs sworn statement that the challenged summonses were in fact issued and signed
by the Clerk of Court.

The facts that the 2017 Defendants point to in support oftheir motion do not change
this conclusion. First, the lack of a notation on the docket indicating summonses were

issued is not dispositive. The procedural history of the 2017 Action is somewhat unusual
in that summonses were not issued at the outset, as is normally the case. It was only a
month after the 2017 Action was commenced that Plaintiffreturned to the Clerk of Court's

Office and submitted summonses, which would have been issued by someone other than

the case administrator assigned to this matter. The Court has conferred with the Clerk of
Court's Office and confirmed that under these circumstances, the most likely explanation
is that a miscommunication between the individual who issued the summonses and the case
administrator resulted in a failure to note the issuance of summonses on the docket.

The fact that defense counsel claims to have called the Clerk of Court's Office on

December 13, 2017, and to have been told that no summonses had been issued (see id,

Dkt. 6-2 at ^ 5)is not probative. The employee ofthe Clerk of Court's Office with whom
defense counsel spoke would not have had any personal knowledge regarding the issuance
of summonses and would have been relying on the absence of a docket notation in
answering defense counsel's question.

Second, although the 2017 Defendants claim that the summonses with which they
were served did not bear the Court's seal, they have not submitted to the Court the actual
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summonses, but have instead cited to the scanned versions found on the Court's CM/ECF

filing system. (See id., Dkt.6-2 at^ 7). However, when, as in this case, summonses in this
District are issued as paper copies,the Clerk of Court's Office uses an embossed court seal

that is not visible when the summonses are scanned electronically. Defense counsel does
not purport to have any personal knowledge regarding whether the summonses served on
his clients were unsealed but relies solely on the scanned versions ofthe summonses,which
are not probative as to this issue. Thus, the record does not establish that the summonses
were unsealed, as Defendants claim.

Third, the summonses are not defective because they list only the defendant being

served. "Contrary to Defendants' assertion. Rule 4(a) does not require that all named
defendants, rather than just the defendant being served, be listed on every summons."
MacGregor v. Milost Glob., Inc., No. 17-CV-6691-LTS-KHP, 2018 WL 4007642, at *3
(S.D.N.Y. Aug.22,2018)
(denying Rule 12(b)(4) motion where the defendants argued that

"the summonses issued by Plaintiff were insufficient because they did not name all

parties") (quotation omitted). The summonses in this case list Plaintiffs name and the
name ofthe defendant being served, which is sufficient to comply with Rule 4(a).

The sole legitimate defect in the summonses identified by the 2017 Defendants is
that the summons issued to Defendant Hughes did not bear the index number. Plaintiff

acknowledges this defect but avers that she corrected it upon being notified of the defect
by virtue of the 2017 Defendants' motion. (2017 Action, Dkt. 10 at 4-5). Defendants do
not dispute that Plaintiff corrected the defect and re-served Defendant Hughes but argue
that she was not authorized to do so in advance and that "[ujnder Rule 4(a)(2), amendments
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to summonses require court approval." (Jd., Dkt. 13 at 4). This argument is the epitome
ofform over substance. The failure to include the index number on Mr. Hughes'summons
is a minor technical defect, and the remedy for technical defects in a summons is service
of an amended summons. Precision Assocs., 2011 WL 7053807, at *45. Here, Plaintiff

has already corrected the defect and re-served Defendant Hughes. While it would have
been better practice for Plaintiff to seek the Court's permission prior to making her

correction. Plaintiff is pro se and some allowances must be made.See Traguth v. Zuck,710
F.2d 90, 95 (2d Cir. 1983)(noting that there is "an obligation on the part of the court to
make reasonable allowances to protect pro se litigants from inadvertent forfeiture of

important rights because of their lack of legal training," which includes avoiding "harsh
application of technical rules"). The Court therefore exercises its authority to permit
amendment ofsummons under Rule 4(a)(2) and approves ofPlaintiffs amendment and reservice of the summons on Defendant Hughes nunc pro tune.

For all the foregoing reasons, the Court finds that any defects in the summonses in
the 2017 Action were minor technical defects that have been remedied, and concludes that

dismissal of Plaintiffs Complaint in the 2017 Action is not warranted under any of Rules
12(b)(2),(4), or (5). As such,the 2017 Defendants' motion to dismiss is denied.
III.

Motion to Dismiss the 2018 Action and Cross-Motion to Compel

The 2018 Defendants have also moved for dismissal of Plaintiffs claims against

them, arguing that(1)Plaintiffs claims are barred by sovereign immunity,(2)Plaintiffs
claims are barred by the doctrines of collateral estoppel and res judicata, and because she

has engaged in duplicative litigation and improper claim splitting, and(3)Plaintiffs claims
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are time barred. (2018 Action, Dkt. 2-1 at 1-2). Plaintiff opposes the 2018 Defendants'
motion and has filed a cross-motion requesting that the Court "compel Defendants to
answer the charges in [the] Complaint[.]" {Id., Dkt. 10 at 1). For the reasons discussed

below, the Court agrees that Plaintiffs claims against the 2018 Defendants are barred by

sovereign immunity, and therefore grants the 2018 Defendants' motion and denies
Plaintiffs cross-motion.
A.

Legal Standard

It is an open question in this Circuit whether a motion to dismiss made on the ground
of sovereign immunity should be reviewed under Federal Rule of Civil Procedure 12(b)(1)
or 12(b)(6). See Moore v. Samuel S. Stratton Veterans Administration Hospital, No.
1:16-CV-475LEKCFH, 2019 WL 251725, at *2 (N.D.N.Y. Jan. 17, 2019).

"This

distinction is significant, because while a district court must accept all factual allegations
in a complaint as true when adjudicating a motion to dismiss under Fed. R.Civ.P. 12(b)(6),
... in adjudicating a motion to dismiss for lack of subject-matter jurisdiction pursuant to
Rule 12(b)(1), a district court may resolve disputed factual issues by reference to evidence

outside the pleadings, including affidavits." Id. (quotations and alterations omitted). In
light of the unresolved nature of the standard, "the Court will follow the lead of several
other district courts within this Circuit and apply the Rule 12(b)(6) standard in analyzing
defendants' sovereign immunity arguments." Nolan v. Cuomo, No. ll-CV-5827 DRH
AKT,2013 WL 168674, at *6(E.D.N.Y. Jan. 16, 2013).

"In considering a motion to dismiss for failure to state a claim pursuant to Rule
12(b)(6), a district court may consider the facts alleged in the complaint, documents
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attached to the complaint as exhibits, and documents incorporated by reference in the
complaint." DiFolco v. MSNBC Cable LLC,622 F.3d 104, 111 (2d Cir. 2010). A court

should consider the motion by "accepting all factual allegations as true and drawing all
reasonable inferences in favor ofthe plaintiff." Trs. of Upstate N.Y. Eng'rs Pension Fund
V. Ivy Asset Mgmt.,843 F.3d 561, 566(2d Cir. 2016), cert, denied, 137 S. Ct. 2279(2017).
To withstand dismissal, a claimant must set forth "enough facts to state a claim to relief

that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "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."

Turkmen v. Ashcroft, 589 F.3d 542,546(2d Cir. 2009){o^oXmgAshcroftv. Iqbal, 556 U.S.
662,678 (2009)).

"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need

detailed factual allegations, a plaintiffs obligation to provide the grounds of his
entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (internal

quotations and citations omitted). "To state a plausible claim, the complaint's '[f]actual
allegations must be enough to raise a right to relief above the speculative level.'" Nielsen
V. AECOMTech. Corp., 762 F.3d 214, 218(2d Cir. 2014)(quoting Twombly, 550 U.S. at
555).

17

B.

PlaintifPs Claims Against the 2018 Defendants are Barred bv Sovereign
Immunity

All ofthe 2018 Defendants are New York State agencies. "Absent a waiver on the
part of the state, or a valid congressional override, the eleventh amendment prohibits
federal courts from entertaining suits by private parties against the states." Farid v. Smith,

850 F.2d 917, 920-21 (2d Cir.1988)(citing Kentucky v. Graham, A13 U.S. 159, 167 n. 14
(1985)). "State sovereign immunity not only extends to the state itself, but to state agencies
that constitute 'arms of the State.'" Barry v. City Univ. ofN.Y., 700 F. Supp. 2d 447,452
(S.D.N.Y. 2010)(quoting Y. Ins. Co. ofN.Y. v. Chatham County, Ga., 547 U.S. 189, 193
(2006)). In assessing whether sovereign immunity applies, the Court's "inquiry must go

beyond the label plaintiff attaches to [her] claims and focus on the substance of the claim
which [she] asserts." Mill Creek Grp., Inc. v. F.D.I.C., 136 F. Supp. 2d 36, 43(D. Conn.

2001)(quotation omitted); see also Marchese v. United States, 781 F. Supp. 241, 248 n.l

(S.D.N.Y. 1991)(noting that it is "the substance of plaintiffs' claim, regardless of how it
is framed," that governs the sovereign immunity inquiry).

Plaintiffs Complaint in the 2018 Action is far from a model of clarity. However,

read liberally, it alleges that:(1) the NYS? violated the New York Civil Service Law in
connection with an administrative hearing held in June and July of 2015 by refusing to
consider certain of Plaintiffs claims(2018 Action, Dkt. 1 at T[ 8);(2)the NYAG failed to

investigate "the crimes and civil rights violations Plaintiff reported" to the NYAG's office
{id. at ^ 9); (3) the NYAG and her employees engaged in litigation misconduct in a

proceeding in New York State Supreme Court, Erie County {id. at

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10-19); and (4)the

PERB and the GOEC refused to properly consider grievances submitted by Plaintiff{id. at
20-25). Based on these substantive allegations, Plaintiff seeks to assert claims under 42

U.S.C. § 1983 for violation of her constitutional rights, discrimination and retaliation
claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title
VII"), discrimination and retaliation claims under the New York State Human Rights Law,

Executive Law §§ 290 et seq. (the "NYSHRL"), conspiracy claims under 42 U.S.C.
§§ 1985(3)and 1986, and violations ofthe New York Civil Service Law. {Id. at^^ 26-45).
As a threshold matter, while Plaintiffhas labeled some ofher claims as arising under

Title VII, it is clear when looking at the substance of the allegations that Plaintiff has not

raised a viable Title VII claim.'' First, "Title VII imposes liability for employment
discrimination only on an employer[.]" Arculeo v. On-Site Sales & Mktg., LLC,425 F.3d
193, 197(2d Cir. 2005)(quotation omitted). Here, there is no allegation that Plaintiff was

ever employed by the NYAG, the PERB, or the GOEC, and she therefore has not and
cannot assert a valid Title VII claim as to any of these defendants. Second, none of the

allegations in the 2018 Action relate to discrimination based on a protected characteristic
or to retaliation by the NYSP. To the contrary, the factual allegations in the 2018 Action
regarding the NYSP are limited to an assertion that it mishandled Plaintiffs administrative
hearing in violation ofthe New York Civil Service Law. {See 2018 Action, Dkt. 1 at Tf 8).

^
"It is well established that Congress has abrogated the states' sovereign immunity
for claims under Title VII," Green v. Niagara Frontier Transportation Auth., 340 F. Supp.
3d 270, 273(W.D.N.Y. 2018)(quotation omitted), which is why the Court has considered
the viability ofPlaintiffs Title VII claim.
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Under these circumstances, Plaintiffs mere citation to Title VII does not prevent a finding
that her claims are barred by sovereign immunity.
Moreover, to the extent that Plaintiff is trying to assert a Title VII claim against the
NYSP in the 2018 Action, the Court agrees with the 2018 Defendants that such a claim is
improperly duplicative of the 2017 Action and the NDNY Action. The Complaint in the
2017 Action covers the time frame of the administrative hearing in June and July of 2015

and in fact expressly mentions that hearing in the allegations therein. (2017 Action, Dkt.

1 at

44-46). Similarly, the Second Amended Complaint in the NDNY Action, which is

the operative pleading, explicitly alleges misconduct during the administrative hearing in
June and July of2015. NDNY Action,Dkt. 37 at

114-117. "As part ofits general power

to administer its docket, a district court may stay or dismiss a suit that is duplicative of
another federal court suit." Curtis v. Citibank, N.A., 226 F.3d 133, 138 (2d Cir. 2000).

Accordingly, even had Plaintiff properly alleged a Title VII claim in the 2018 Action, it
would be subject to dismissal as improperly duplicative.
None of the other claims Plaintiff asserts in the 2018 Action may proceed against

agencies of New York State. "It is well established that New York State has not waived
its sovereign immunity from Section 1983 claims," Harrison v. New York, 95 F. Supp. 3d
293, 314 (E.D.N.Y. 2015) (quotation omitted), and Congress did not override that

immunity by enacting § 1983, see Will v. Mich. Dep't ofState Police, 491 U.S. 58, 66
(1989);

also Goonewardena v. N.Y., 475 F. Supp. 2d 310, 329(S.D.N.Y. 2007)("The

State ofNew York has not waived its sovereign immunity in regard to section 1983 actions

20

nor has its sovereign immunity been abrogated."). Plaintiff therefore cannot pursue her
§ 1983 claims against the 2018 Defendants.

New York State and its agencies also have sovereign immunity against claims
brought under 42 U.S.C. §§ 1985 and 1986. See, e.g., Murawski v. New York State Bd. of
Elections, 285 F. Supp. 3d 691, 696 (S.D.N.Y. 2018)("New York has not waived its
immunity or consented to being sued under the Constitution or 42 U.S.C. §§ 1985 or
1986[.]"); Qader v. Cohen & Slamowitz, No. 10 CV 01664 GBD,2011 WL 102752, at *3
(S.D.N.Y. Jan. 10,2011)("Plaintiff has not identified a statute wherein Congress abrogates

the traditional sovereign immunity of states with respect to suits brought under 42 U.S.C.
§ 1983, 42 U.S.C. § 1985, or 42 U.S.C. § 1986. Plaintiff has also not identified a statute

wherein the state of New York expressly waives its immunity from suits under any of the
aforementioned statutes.").

Turning to Plaintiffs state law claims, "it is well settled that the Eleventh
Amendment bars the adjudication of pendent state law claims against nonconsenting state
defendants in federal court. . . . Moreover, district courts in the Second Circuit [have]

consistently found that the NYSHRL does not include a waiver of the State's sovereign
immunity to suit in federal court." Winokur v. Office of Court Admin., 190 F. Supp. 2d
444, 451 (E.D.N.Y. 2002). Accordingly, sovereign immunity prevents the Court from

considering any of Plaintiffs state law claims.^

^
Plaintiffs claims are not saved by the fact that she seeks injunctive relief. The
Eleventh Amendment "applies to injunctive relief as well as claims for damages in suits
against the states." Harris v. N.Y. State Educ. Dep't, 419 F. Supp. 2d 530, 533(S.D.N.Y.
2006)(citing Luder v. Endicott, 253 F.3d 1020, 1024-25 (7th Cir. 2001)); see also Hover
-21 -

For the foregoing reasons, the Court finds that Plaintiffs claims against the 2018
Defendants are barred by sovereign immunity and grants the 2018 Defendants' motion to
dismiss on this basis. The Court denies Plaintiffs cross-motion to compel Defendants to
answer the Complaint for the same reasons.
IV.

Motions for a More Definite Statement

The 2017 Defendants and the 2018 Defendants have both requested that the Court
order Plaintiff to provide a more definite statement pursuant to Federal Rule of Civil
Procedure 12(c). (2017 Action, Dkt. 6; 2018 Action, Dkt. 2). In light of the Court having

granted the 2018 Defendants' motion to dismiss for the reasons set forth above, their
motion for a more definite statement is denied as moot. The 2017 Defendants' motion for

a more definite statement is granted, for the reasons set forth below.

Federal Rule of Civil Procedure 12(e) permits a party to "move for a more definite
statement of a pleading to which a responsive pleading is allowed but which is so vague or

ambiguous that the party cannot reasonably prepare a response[.]" Fed. R. Civ. P. 12(e).
Rule 12(e)is a "remedy for an allegation lacking sufficient specificity to provide adequate
notice[.]" Croons v. N.Y. State Office ofMental Health, 18 F. Supp.3d 193,199(N.D.N.Y.

2014) (quotation omitted). A Rule 12(e) motion is particularly appropriate in cases
involving "shotgun pleadings" where an asserted cause of action "incorporates all of the
factual allegations preceding it," rendering it "virtually impossible to know which

V. N.Y. State Officefor People With Developmental Disabilities, No. 3:17-CV-895, 2018
WL 3025038, at *2 (N.D.N.Y. June 18, 2018) (the exception to sovereign immunity
recognized in Ex parte Young, 209 U.S. 123 (1908), is limited to claims against state
officials and does not apply to claims asserted directly against the state and its agencies).
-22-

allegations of fact are intended to support which claim(s) for relief." Id. (quotation
omitted); see also In re Methyl Tertiary Butyl Ether ("MTBE") Prod. Liab. Litig., No.

1:00-1898, 2008 WL 2676278, at *2 (S.D.N.Y. July 8, 2008)("Rule 12(e) can be an
appropriate vehicle to pare down 'shotgun' pleadings[.]")(quotation omitted). The grant
or denial of a Rule 12(e) motion is "within the discretion of the district court." Vaden v.

Lantz, 459 F. Supp. 2d 149, 151 (D. Conn. 2006)(quotation omitted).

Here, the Court agrees with the 2017 Defendants that Plaintiffs Complaint

constitutes a shotgun pleading. Plaintiffs Complaint consists of voluminous factual
allegations followed by a list of 20 causes of action, none of which are tied to any of the

preceding facts. {See 2017 Action, Dkt. 1 at^^ 59-79). Accordingly, Plaintiff is ordered
to provide a more definite statement in which she sets forth the particular facts that support
each of her claims within 14 days of entry ofthis Decision and Order. Plaintiff is warned
that failure to comply with this direction may result in her Complaint being stricken.

See Fed. R. Civ. P. 12(e)("Ifthe court orders a more definite statement and the order is not

obeyed within 14 days after notice of the order or within the time the court sets, the court
may strike the pleading or issue any other appropriate order.").
V.

Motions to Transfer to the Northern District of New York

Plaintiff has asked the Court to transfer both the 2017 and 2018 Actions to the

Northern District of New York. (2017 Action, Dkt. 16; 2018 Action, Dkt. 13). Because
the Court has found that the 2018 Action must be dismissed. Plaintiffs request to transfer

that matter is denied as moot. Plaintiffs request to transfer the 2017 Action is granted,
for the reasons set forth below.
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A.

Legal Standard

The Court construes Plaintiffs request for transfer to the Northern District as a
motion under 28 U.S.C. § 1404(a), which provides that "[f]or the convenience of parties

and witnesses, in the interest ofjustice, a district court may transfer any civil action to any
other district or division where it might have been brought or to any district or division to

which all parties have consented." Id. Section 1404(a)is "a codification ofthe doctrine of

forum nan conveniens" and "governs the subset ofcases in which the [proposed]transferee
forum is within the federal system[.]" Martinez v. Bloomberg LP, 740 F.3d 211, 221 (2d
Cir. 2014) (quotations omitted). "The determination of whether an action should be

transferred pursuant to § 1404(a) depends upon a balancing of many different factors.
These factors include not only convenience to the parties and witnesses but also the relative

ease of access to proof, availability of witnesses ... and all other practical problems which
make trial of a case easy, expeditious, and inexpensive." Heyco, Inc. v. Heyman,636 F.

Supp. 1545, 1548 (S.D.N.Y. 1986). "The party seeking the transfer bears the burden of
establishing that the transfer is warranted[.]" Id.
B.

Transfer to the Northern District of New York is Warranted

Here,the relevant factors clearly support transfer ofthe 2017 Action to the Northern
District of New York. As a threshold matter, the Court finds that the matter could have

properly been brought in the Northern District ofNew York in the first instance. Pursuant
to 28 U.S.C. § 1391(b), a civil action may be commenced in "a judicial district in which

any defendant resides, if all defendants are residents of the State in which the district is
located." Id. For venue purposes, state officials are considered residents ofthe district in
-24-

which they performed their duties. See Berry v. N.Y. State Dep't of Corr. Servs., 808 F.
Supp. 1106, 1109(S.D.N.Y. 1992). The individual defendants in the 2017 Action are all
high-level employees of the NYSP's Division of Human Resources, Internal Affairs

Bureau, and Office of Legal Counsel, and performed their services in Albany, which is
within the Northern District of New York. Moreover, the NYSP's headquarters is in
Albany.
For these same reasons, the Northern District of New York is a more convenient

forum for the 2017 Defendants, and it is likely that the relevant witnesses and proof would

be found in the Northern District. Moreover, the Court agrees with Plaintiff that it would
serve the interests ofjustice to have her multiple lawsuits handled in the same court, to

avoid unnecessary duplication of effort and waste ofjudicial resources. Accordingly, the
relevant factors all favor a transfer of the 2017 Action to the Northern District of New

York. The Court therefore grants Plaintiffs motion for transfer with respect to the 2017
Action.

VI.

Motion for a Conference

Finally, Plaintiff has moved for a conference in the 2018 Action. (2018 Action,
Dkt. 12). This motion is denied as moot in light ofthe Court's determination that the 2018
Action must be dismissed.

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CONCLUSION

For the foregoing reasons, the pending motions in the 2017 Action (Civil Action
No. l:17-cv-01157) are resolved as follows:(1)Plaintiffs motion for costs {id., Dkt. 2)is
denied;(2)the 2017 Defendants' motion to dismiss and for a more definite statement {id.,

Dkt. 6)is denied to the extent it seeks dismissal and granted to the extent it seeks a more
definite statement; and (3) Plaintiffs motion for transfer {id., Dkt. 16) is granted with

respect to Civil Action No. l:17-cv-01157 only.

Plaintiff must file a more definite

statement as discussed above within 14 days of entry of this Decision and Order.

Plaintiff is warned that failure to file a more definite statement as ordered by the Court may

result in her Complaint being stricken. The Clerk of Court is directed to transfer Civil
Action No. l:17-cv-01157 to the United States District Court for the Northern District of

New York pursuant to 28 U.S.C. § 1404(a). Plaintiff should file her more definite
statement in the Northern District of New York if it is filed after transfer is
effectuated.

The pending motions in the 2018 Action (Civil Action No. l:18-cv-00732) are
resolved as follows:(1) the 2018 Defendants' motion to dismiss and for a more definite

statement {id., Dkt. 6)is granted to the extent it seeks dismissal and denied as moot to the
extent it seeks a more definite statement;(2)Plaintiffs cross-motion to compel {id., Dkt.

10)is denied;(3)Plaintiffs letter motion for a conference {id., Dkt. 12)is denied as moot;

and (4) Plaintiffs motion for transfer of Civil Action No. l:18-cv-00732 to the Northern
District of New York {id., Dkt. 13) is denied as moot. The Clerk of Court is directed to
close Civil Action No. 1:18-cv-00732.
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so ORDERED.

WOLI

States District Judge

Dated: February 5, 2019
Rochester, New York

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