Neisner, Jr. v. Town of Killington

Filing 25

ORDER granting in part Defendant's 22 Motion to Dismiss for Failure to State a Claim. Plaintiff's claim for violation of the federal Freedom of Information Act is dismissed with prejudice. The Court declines to exercise supplemental jurisdiction over Plaintiff's remaining state-law claims under 28 U.S.C. § 1367(c)(3), and, accordingly, they are remanded to state court. Signed by District Judge J. Garvan Murtha on 12/27/2016. (kak)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF VERMONT
MELVIN B. NEISNER, JR.,
individually and on behalf of all other
taxpayers in the Town of Killington,
Plaintiff,
v.
TOWN OF KILLINGTON,
Defendant.
_________________________________

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File No. 1:16-cv-00004-jgm

RULING ON DEFENDANT’S MOTION TO DISMISS
(Doc. 22)
I.

Introduction
Plaintiff Melvin B. Neisner, Jr. (“Neisner”), a licensed attorney acting pro se, sues the Town

of Killington (“Killington” or the “Town”) alleging a violation of the Freedom of Information Act
and multiple state law claims. (Doc. 19 (“Am. Compl.”).) Purporting to sue both individually and
on behalf of all other taxpayers in the Town of Killington, Neisner seeks a declaratory judgment, a
permanent injunction, and compensatory and punitive damages. Killington moves to dismiss the
amended complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).
(Doc. 22.) Neisner opposes the motion (Doc. 23) and Killington filed a reply (Doc. 24). For the
reasons discussed below, Killington’s motion to dismiss is granted in part and denied in part.
II.

Background
This case originated in state court in December 2015. (Doc. 9 (“Compl.”).) In early January

2016, the Town removed the case to this Court because the original complaint alleged violations of
Neisner’s due process rights under the United States Constitution. (Doc. 1.) Following the Town’s
January motion to dismiss (Doc. 7), Neisner moved to amend his complaint and to remand the case
to state court (Docs. 12, 14). The proposed amended complaint dropped the due process claim but

added a claim under the Freedom of Information Act. In April, the Court granted the motion to
amend, denied the motion to remand because of the federal claim asserted in the amended
complaint, and denied without prejudice Killington’s motion to dismiss in light of the filing of the
amended complaint. See Dkt. Entries 16-18 (Apr. 5, 2016). Accordingly, the amended complaint
was filed April 5, 2016.
The following facts are assumed to be true for purposes of the pending motions and are
gleaned from the amended complaint. Neisner is a resident, voter and taxpayer in the Town of
Killington. Killington is a chartered and organized town in Vermont with a Selectboard authorized
with the general supervision of the affairs of the town.
In Count IV, Neisner alleges a violation of the Freedom of Information Act (“FOIA”),
5 U.S.C. § 552. (Am. Compl. ¶¶ 31-33.) He alleges the Town is subject to the provisions of FOIA
with respect to public records information requests. Id. ¶ 4. He asserts the Town Selectboard and
Town Manager failed to provide requested documents and willfully destroyed documents in
violation of FOIA. (Am. Compl. ¶¶ 32-33.)
In Counts I-III and V-VII, Neisner alleges various state law claims including: breach of
fiduciary duty concerning the hiring and retention of a Town Manager (Am. Compl. ¶¶ 5-14); a
“Complaint for permanent injunction and declaratory judgment” regarding a sewer bond and park
and ride lease (Am. Compl. ¶¶ 15-22); a claim under Vermont’s Public Records Act, Vt. Stat. Ann.
tit. 1, § 317, and an “Appeal of Decision” under Vt. Stat. Ann. tit. 1, § 319 (Am. Compl. ¶¶ 23-30); a
fraud claim regarding missing and misleading information in Town Annual Reports (Am. Compl.
¶¶ 34-37; a damage to real property claim (Am. Compl. ¶¶ 38-42); and a defamation and libel claim
(Am. Compl. ¶¶ 43-50).

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III.

Discussion
The Court is normally required to read a pro se plaintiff’s complaint liberally and to construe

it to raise the strongest arguments it suggests. See, e.g., McEachin v. McGuinnis, 357 F.3d 197, 200
(2d Cir. 2004). Here, given that Plaintiff Neisner is an attorney currently practicing in Vermont, his
pleading is not entitled the special consideration ordinarily given to pro se plaintiffs. See Maloney v.
Cuomo, 470 F. Supp. 2d 205 (E.D.N.Y. 2007), aff’d, 554 F.3d 56 (2d Cir. 2009), vacated on other
grounds, 561 U.S. 1040 (2010); Kuriakose v. City of Mount Vernon, 41 F. Supp. 2d 460, 465
(S.D.N.Y. 1999).
A motion to dismiss tests the legal rather than the factual sufficiency of a complaint.
See, e.g., Sims v. Ortiz, 230 F.3d 14, 20 (2d Cir. 2000). The Court will grant a motion to dismiss
only if the pleader fails to show a “plausible entitlement to relief.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007). The Court must accept all facts alleged in the pleading as true and draw all
reasonable inferences in favor of the pleader. Natural Res. Def. Council v. Johnson, 461 F.3d 164,
171 (2d Cir. 2006). Though the court must accept as true all factual allegations, this requirement “is
inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “[T]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Id.; see also Turkmen v. Hasty, 789 F.3d 218, 233 (2d Cir. 2015). “
Irrespective of whether they are drafted pro se, all complaints must contain at least “some
minimum level of factual support for their claims.” Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887
(2d Cir. 1987). “Plaintiffs cannot amend their complaint by asserting new facts or theories for the
first time in opposition to Defendants’ motion to dismiss.” K.D. ex rel. Duncan v. White Plains
Sch. Dist., 921 F. Supp. 2d 197, 209 n.8 (S.D.N.Y. 2013).

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A.

Freedom of Information Act Claim

Neisner alleges a violation of the Freedom of Information Act, 5 U.S.C. § 552, stemming
from the Town Selectboard and Town Manager’s failure to provide requested documents and
alleged willful destruction of documents. (Am. Compl. ¶¶ 32-33.) He baldly asserts the Town is
subject to the provisions of FOIA with respect to public records information requests. Id. ¶ 4. The
Court does not accept this legal conclusion as true. See Iqbal, 556 U.S. at 678.
FOIA provides the public the right to request access to records from any federal agency.
“FOIA confers jurisdiction on the district courts ‘to enjoin the agency from withholding agency
records and to order the production of any agency records improperly withheld.’” Bloomer v. U.S.
Dep’t of Homeland Sec., 870 F. Supp. 2d 358, 364 (D. Vt. 2012) (quoting 5 U.S.C. § 552(a)(4)(B)).
Jurisdiction depends “on a showing that an agency has (1) improperly (2) withheld (3) agency
records.” U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989). The immutable defect in
the complaint is that “agency” includes federal governmental agencies but does not extend to
municipalities such as the Defendant Town of Killington. See Grand Cent. P’ship, Inc. v. Cuomo,
166 F.3d 473, 484 (2d Cir. 1999) (“[I]t is beyond question that FOIA applies only to federal . . .
agencies.”). Accordingly, Plaintiff’s FOIA claim is dismissed with prejudice because a federal FOIA
claim cannot be asserted against a Vermont town.
B.

State Law Claims

Since Plaintiff’s sole federal claim is being dismissed with prejudice, his remaining state
claims will also be dismissed. A district court “may decline to exercise supplemental jurisdiction”
where it has “dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3).
This determination is left to the discretion of the trial court. Lundy v. Catholic Health Sys., 711 F3d
106, 117 (2d Cir. 2013); Kolari v. N.Y. Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006)

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(reversing district court’s decision to exercise supplemental jurisdiction after dismissal of all federal
claims). “If at any time before final judgment it appears that the district court lacks subject matter
jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c).
Neisner requested that, if Defendant’s motion to dismiss were granted as to his federal
claim, the case be remanded to state court. (Doc. 13 at 4.) The factors of judicial economy,
convenience, fairness, and comity, Kolari, 455 F.3d at 119, all point to declining to retain jurisdiction
over the remaining state-law claims in this case. The parties have not yet engaged in discovery, and
Plaintiff’s state claims are more appropriately addressed in state court. Accordingly, the Court
declines to exercise supplemental jurisdiction over the remaining state-law claims and they are
remanded to state court. 28 U.S.C. § 1447(c).
IV.

Conclusion
The Town of Killington’s motion to dismiss for failure to state a claim (Doc. 22) is granted

in part. Neisner’s claim for violation of the federal Freedom of Information Act is dismissed with
prejudice. The Court declines to exercise supplemental jurisdiction over Neisner’s remaining statelaw claims under 28 U.S.C. § 1367(c)(3), and, accordingly, they are remanded to state court.
SO ORDERED.
Dated at Brattleboro, in the District of Vermont, this 27th day of December, 2016.
/s/ J. Garvan Murtha
Honorable J. Garvan Murtha
United States District Judge

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