HAIGHT, Senior District Judge:
Plaintiffs Franklyn Heusser, Sr., Franklyn Heusser, Jr., and Frank's LLC (collectively herein "Plaintiffs") have brought the present action against defendants Kevin J. Hale ("Hale") and the City of Ansonia ("the City" or "Ansonia") (collectively herein "Defendants") for the unlawful removal of Frank's Service Station from the City of Ansonia's Rotational Towing List ("RTL"), discriminatory refusal to reinstate that business to the list, and failure to accept the application of Frank's LLC to be placed on the list. Plaintiffs assert federal claims under the Constitution, and state law claims on the basis of pendent jurisdiction.
Pending before the Court is Defendants' motion to dismiss Plaintiff's Amended
Addressing Plaintiffs' state law claims, Defendants seek dismissal of Counts Five, Six, and Ten, alleging tortious interference with a business expectancy, on the ground that those counts fail to allege the existence of a business relationship with a third party. Lastly, Defendants argue that Plaintiffs have failed to set forth valid claims for negligent and intentional infliction of emotional distress in Counts Seven and Eight because Defendants' conduct, as alleged therein, is not sufficiently "outrageous" to sustain such claims.
Initially, the Court will examine whether Plaintiffs' federal claims survive Defendants' motion under Rule 12(b)(6) to dismiss them. If Defendants' motion succeeds as to Plaintiffs' federal claims, the Court will then consider whether or not to exercise supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367(a).
Plaintiff Franklyn Heusser, Sr. is the owner and operator of the service station known as "Frank's Service Station," located at 142 Wakelee Avenue in Ansonia, Connecticut. Doc. # 65, p. 1 (¶ 1); p. 3 (¶¶ 7-8). He has operated this business for the past forty years. Id., p. 3 (¶ 7). Plaintiff Franklyn Heusser, Jr. is the son of Heusser, Sr., and has worked for his father at Frank's Service Station for the past ten years. Id., p. 3 (¶ 8). As part of its business, Frank's Service Station sells gasoline, provides automobile maintenance, and offers towing services for inoperable automobiles and/or operators of vehicles who are unable to drive. Id., p. 1 (¶ 1); p. 3 (¶ 9).
Defendant Kevin Hale is the Chief of Police of the City of Ansonia. Id., p. 2 (¶ 4). As part of his position, Hale oversees Ansonia's Rotational Tow List ("RTL"), which is "a list of businesses engaged in the towing of [abandoned and inoperable] automobiles, with those on the list taking turns or alternating in towing vehicles" at Ansonia's request.
For many years, Frank's Service Station appeared on the RTL, which generated a large portion of the station's business by enabling Plaintiffs to tow vehicles at the request of the Ansonia Police Department. Id., p. 3 (¶ 9). Plaintiffs maintain that they relied on the RTL as a guaranteed source of revenue for Frank's Service Station. Id., p. 3 (¶ 10).
On September 20, 2007, Frank's Service Station was removed from the RTL based on the arrests of Plaintiffs Heusser, Sr. and Jr. Id., p. 4 (¶ 12), and p. 5 (¶¶ 15-16); see also Doc. # 74-1, p. 3, para. 1.
Plaintiffs Heusser, Sr. and Jr., maintain that Hale focused on their arrest on misdemeanor charges to "unilaterally and arbitrarily suspend Frank's Service Station from the `RTL.'
Plaintiff Heusser, Jr. asserts that he has repeatedly requested that Frank's Service Station be reinstated on the RTL to tow abandoned vehicles on Ansonia's behalf. Id., p. 3-4 (¶ 11). He claims that Hale has repeatedly and unlawfully denied that request. Id. Plaintiffs also allege that Hale has allowed Sardo's, an "out-of-town business," to perform that work while using dealer plates, which they contend is a violation of Connecticut law. Id., p. 4 (¶ 11). Surprisingly, Plaintiffs thereafter acknowledge that, as a result of Sardo's alleged unlawful practice, "representatives of Srado's [sic] Automotive were arrested, and the business itself suspended from the `RTL.'" Id.
On November 13, 2007, Plaintiffs Heusser, Sr. and Jr., commenced the present litigation against Hale in this Court. Heusser, et al. v. Hale, 3:10-CV-1660 (CSH) ("the 2007 Action"). The Complaint originally set forth one count against defendant Hale, alleging violation of Plaintiffs'
During the pendency of the present action, Plaintiffs' misdemeanor charges were reduced to non-criminal infractions. Doc. # 65, p. 5 (¶ 18). Plaintiffs aver that they informed Hale of the reduction in charges, but he refused to restore Frank's Service Station to the RTL, allegedly in retaliation for their lawsuit against him. Id. Plaintiffs further contend that Hale has a "personal hatred vendetta" against them, evidenced by his alleged demand that Ansonia police officers not associate with them.
Plaintiffs informed the Ansonia Board of Aldermen of Hale's refusal to reinstate Frank's Service Station onto the RTL and Hale's demands that his officers not associate with Plaintiffs. Id., p. 6 (¶ 20). On March 11, 2008, the President of the Board of Alderman informed Plaintiffs that Frank's Service Station would not be returned to the RTL because of their pending litigation against Hale. Id., p. 6 (¶¶ 20-22). Plaintiffs argue that the exclusion of Frank's Service Station is discriminatory, in that Sardo's remained on the RTL while it pursued a lawsuit against the City of Ansonia. Id., p. 6 (¶ 24).
The third plaintiff in this action is Frank's LLC, a limited liability corporation in the State of Connecticut, which is owned and operated by Plaintiff Franklyn Heusser, Jr. Id., p. 1 (¶ 3). Frank's LLC is a business engaged in providing towing services. Id., p. 6 (¶ 25). It is a new business that recently began operating; and is a separate entity from Frank's Service Station. Id., p. 6 (¶ 26). Frank's LLC submitted an application to be placed on the RTL, but the application was rejected. Id., p. 6 (¶ 27). Hale and Ansonia's Corporation Counsel, Kevin Blake, refused to provide an explanation for the rejection. Id.
Plaintiffs claim that all of the Defendants' alleged actions were taken "in a manner which was outrageously arbitrary," "irrational," and "shocking to the conscience." Id., p. 6 (¶ 28). Such behavior has allegedly caused Plaintiffs to suffer emotional distress. Id., p. 6 (¶ 29).
Plaintiffs assert that this Court has "federal question" subject matter jurisdiction over their claims pursuant to 28 U.S.C. §§ 1331
This Court may also exercise supplemental jurisdiction over Plaintiffs' state law claims of "tortuos [sic] interference with a business expectancy" (Counts Five, Six, Ten), "intentional infliction of emotional distress" (Count Seven), and "negligent infliction of emotional distress" (Count Eight) if these claims that are "so related to" Plaintiffs' constitutional claims "that they form part of the same case or controversy."
Venue is proper in this District pursuant to 28 U.S.C. § 1391. Section 1391(b) provides that a civil action "not founded solely on diversity of citizenship" may only be brought in three specified judicial districts:
28 U.S.C. § 1391(b). Pursuant to section 1391(b)(1), Defendant Hale resides in the State of Connecticut as Ansonia's Chief of Police and the City of Ansonia is a municipal corporation organized under the laws of Connecticut.
The United States Supreme Court's most recent iteration of the pleading standard required to withstand a Rule 12(b)(6) motion is set forth in Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.' 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." Iqbal, 129 S.Ct. at 1950 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)) (emphasis added). The complaint must thus set forth "enough fact to raise a reasonable expectation that discovery will reveal evidence" of the plaintiff's claim. Twombly, 550 U.S. at 556, 127 S.Ct. 1955.
Furthermore, the Supreme Court has distinguished between factual content and conclusory allegations, stating that factual grounds must consist of more than "labels and conclusions" or "a formulaic recitation of the elements of a cause of action," and must tender more than "naked assertion[s] devoid of further factual enhancement." Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555, 557, 127 S.Ct. 1955) (internal quotation marks omitted).
The Court's focus on a motion to dismiss under Rule 12(b)(6) is "not whether the plaintiff will ultimately prevail but whether the plaintiff is entitled to offer evidence to support the claims." Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir.1995) (citing pre-Iqbal and Twombly Scheuer v. Rhodes, 416 U.S. 232, 235-36, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). The complaint must do more than create "a sheer possibility that a defendant has acted unlawfully"—i.e., more than plead "facts that are `merely consistent with' a defendant's liability." Iqbal, 129 S.Ct. at 1949. Rather, it must include "enough facts to state a claim to relief that is plausible on its face."
Moreover, "[i]n adjudicating a Rule 12(b)(6) motion, a district court must confine its consideration to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken." Leonard F. v. Israel Discount Bank of New York, 199 F.3d 99, 107 (2d Cir.1999) (citation omitted).
Defendants first argue that Counts One and Two of Plaintiffs' Amended Complaint for First Amendment retaliation fail to state valid claims because neither alleges retaliation for speech that is a "matter of public concern." Rather, they contend that the speech for which Defendants allegedly retaliated, the filing of the complaint in the 2007 Action, related solely to Plaintiffs' financial interest (i.e., furthering their employment interest in remaining on the RTL). Defendants thus request that this Court dismiss both counts.
Generally, to prevail on a First Amendment retaliation claim under Section 1983,
The Second Circuit restated the criteria for First Amendment retaliation in Sousa v. Roque, 578 F.3d 164 (2d Cir.2009):
578 F.3d at 169-70 (emphasis added).
For a private citizen to prove First Amendment retaliation, he must show: "(1) he has an interest protected by the First Amendment; (2) defendants' actions were motivated or substantially caused by his exercise of that right; and (3) defendants' actions effectively chilled the exercise of his First Amendment right." Curley v. Village of Suffern, 268 F.3d 65, 73 (2d Cir.2001).
In White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1059 (2d Cir.1993), the Second Circuit clarified that a towing company with an informal towing arrangement with a town is considered a "public employee" for the purposes of First Amendment retaliation analysis.
In the case at bar, Plaintiffs have neither alleged the existence of, nor provided the Court with a copy of, a formal contract or agreement between the City and Plaintiffs with respect to the RTL. Thus, as in White Plains Towing Corp., 991 F.2d at 1059, Plaintiffs appear to have "no formal franchise from or contract with" the City. Because Plaintiffs explicitly allege that they had an "informal arrangement" with the City for towing, I conclude that they were "public employees" withing the meaning of White Plains Towing Corp. Hence, the Curley test is inapplicable to their First Amendment claim.
In their pending motion to dismiss, Defendants do not dispute whether Plaintiffs suffered any adverse action or whether Hale was motivated by Plaintiffs' speech to take such action. At present, Defendants solely contest whether, as a matter of law, Plaintiffs' speech in the 2007 Action was made "on matters of public concern." They point to the language of Plaintiffs' Complaint in the 2007 Action against Hale as establishing that the Complaint's "sole focus" was "to remedy the alleged wrongful removal of the Plaintiffs from the Rotational Tow List and to recover monetary damages related to the alleged removal." Doc. # 74-2, p. 8, para. 1. In essence, they argue that the previous suit was brought solely to further Plaintiffs' employment interest; and thus there is no matter of public concern.
"Public employee speech is protected from employer retaliation under the First Amendment only where `the employee spoke as a citizen on a matter of public concern.'" Storman v. Klein, 395 Fed. Appx. 790, 793 (2d Cir.2010) (quoting Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006)). Accord Sousa v. Roque, 578 F.3d 164, 169-70 (2d Cir.2009) ("To determine whether or not a plaintiff's speech is protected, a court must begin by asking `whether the employee spoke as a citizen on a matter of public concern.' If the court determines that the plaintiff either did not speak as a citizen or did not speak on a matter of public concern, `the employee has no First Amendment cause of action based on his or her employer's reaction to the speech.'") (citation omitted); White Plains Towing Corp., 991 F.2d at 1057 (public employee who seeks to recover for First Amendment retaliation must initially establish that his speech "may be fairly characterized as constituting speech on a matter of public concern") (internal quotations omitted).
"The Supreme Court has defined `a matter of public concern' as one that `relat[es] to any matter of political, social, or other concern to the community.'" Sousa, 578 F.3d at 170 (citing Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)). Whether an employee's speech addresses a matter of public concern is a question for the court to decide. Lewis v. Cowen, 165 F.3d 154, 163 (2d Cir.1999) (citing Connick, 461 U.S. at 147-48, 103 S.Ct. 1684). In so deciding, the court must take into account "the content, form, and context of a given statement, as revealed by the whole record." Lewis, 165 F.3d at 163 (citing Connick, 461 U.S. at 147-48, 103 S.Ct. 1684). As one factor, the court may consider the speaker's motive to "determine whether the speech was calculated to redress personal grievances or whether it had a broader public purpose." Lewis, 165 F.3d at 164.
"An employee who complains solely about his own dissatisfaction with the conditions of his own employment is speaking upon matters only of personal interest." Sousa, 578 F.3d at 174 (internal quotation marks omitted). However, "it does not follow that a person motivated by a personal grievance cannot be speaking on a matter of public concern." Id. (emphasis in original). Thus, motive alone is not dispositive in the "matter of public concern" inquiry. Id. at 173-74. See also Connick, 461 U.S. at 148-49, 103 S.Ct. 1684;
In the case at hand, the speech at issue is comprised of the allegations set forth in the Complaint of the 2007 Action. The filing of that lawsuit alone did not automatically constitute protected speech. It is
In the 2007 Action, Plaintiff Heussers, Sr. and Jr., clearly sought to further private interests, requesting compensatory and punitive damages, attorneys' fees and costs and a temporary and permanent injunction to return Frank's Service Station to the RTL. Doc. # 1, p. 3. The question is thus whether the Complaint also touches upon a matter of public concern, such as generalized police misconduct or unlawful discrimination.
Furthermore, although Plaintiffs reference a deprivation of their own personal rights to "procedural and substantive due process of law in violation of the Fourteenth Amendment," id. at p. 2-3 (¶ 10), they make no allegations regarding any pattern or series of unconstitutional practices by the Ansonia Police Department. See, e.g., Plofsky v. Giuliano, No. 06-cv-0789 (JCH), 2009 WL 902360, at *9 (D.Conn. Mar. 31, 2009) ("[I]n order to be considered a matter of public concern the speech must reach beyond matters of personal interest.... [A] generalized public interest in the fair or proper treatment of public employees is not enough." Moreover, "being denied due process concerns only [the individual Plaintiff], not the general public.") (citations omitted).
The Second Circuit held in Ruotolo v. City of New York, 514 F.3d 184, 190 (2d Cir.2008), that "retaliation against the airing of generally personal grievances is not brought within the protection of the First Amendment by the mere fact that one or two of [a public employee's] comments could be construed broadly to implicate matters of public concern." (citation and internal quotation marks omitted). In Ruotolo a former New York City Police Department ("NYPD") sergeant sued the City of New York and, inter alia, the NYPD, for retaliation in violation of his First Amendment right to free speech. Specifically, he alleged that he became the subject of adverse personnel actions (i.e., assignment to undesirable shifts, denial of leave time, transfer to a less desirable
The Ruotolo court reasoned that Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), properly mandated dismissal of the portion of his retaliation claim premised on his report because that report was speech made pursuant to his employment duties. See Garcetti, 547 U.S. at 419-24, 126 S.Ct. 1951 (employee who speaks in his official capacity is not speaking as a citizen for First Amendment purposes so employer retaliation for such speech does not justify displacement of managerial discretion by judicial supervision).
Moreover, and relevant to the case at bar, Ruotolo's claim that he was retaliated against for filing a federal lawsuit failed because that lawsuit focused primarily on grievances of a personal nature. The Second Circuit noted that a court's proper focus in the inquiry as to whether that lawsuit addressed a matter of public concern was the content, form and context of the particular statement.
"A public employee may not transform a personal grievance into a matter of public concern by invoking a supposed popular interest in the way public institutions are run." Ruotolo, 514 F.3d at 190 (quoting Boyce v. Andrew, 510 F.3d 1333, 1343 (11th Cir.2007)). In other words, "[a] generalized public interest in the fair or proper treatment of public employees is not enough." Ruotolo, 514 F.3d at 190.
In the present case, the Complaint in the 2007 Action primarily addresses the personal grievances of the two individual Plaintiffs, Heusser, Sr. and Jr., stemming from Hale's allegedly arbitrary removal of Frank's Service Station from, and subsequent repeated refusal to reinstate it to, the RTL. These accusatory allegations are entirely conclusory. There are no specific or well-pleaded factual allegations regarding a practice or history of discriminatory treatment of the other individuals or entities on the RTL. Moreover, all relief sought in the 2007 Complaint is of a personal nature, "compensatory damages, punitive damages, attorney fees and costs" and "a temporary and permanent injunction requiring" Hale to reinstate Frank's Service Station to the RTL. Doc. # 1, p. 3; Doc. # 74-2, p. 3.
While I accept in general the proposition that a police department's employment policies may constitute a matter of public concern, White Plains Towing Corp., 991 F.2d at 1058, judicial disposition of Defendants' motion to dismiss turns solely upon the pleadings in this case. The Complaint in the 2007 Action describes only the one-time suspension of Plaintiffs' business from the RTL and not a pattern or practice of such terminations. The 2007 Action, on its face, was thus an action to redress the deprivation of Plaintiffs' rights and not those of any other individual or group.
I am also mindful that a person motivated by a personal grievance may also speak on a matter of public concern. Thus, Plaintiffs' motivation to redress their personal grievances did not preclude them from also speaking out on a matter of public concern. However, such was not the case in the Complaint filed in the 2007 Action. As the Second Circuit set forth in Sousa, "[a]n employee who complains solely about his own dissatisfaction with the conditions of his own employment is speaking `upon matters only of personal interest.'" 578 F.3d at 174 (citing Connick, 461 U.S. at 147, 103 S.Ct. 1684). Such "speech on a purely private matter ... does not
In their Amended Complaint, Plaintiffs allege that they have been deprived of Equal Protection of the law in violation of the Fourteenth Amendment by Hale's (1) removal of Frank's Service Station from the RTL (Count Three), (2) refusal to return Frank's Service Station to the RTL (Count Four), and (3) failure to provide Frank's LLC a position on the RTL (Count Nine). With respect to each of these actions, Plaintiffs maintain that Defendants acted "intentionally, arbitrarily, maliciously and irrationally" and thereby treated Plaintiffs differently "from all identically situated individuals on the RTL." Doc. # 65, p. 8 (¶ 35); p. 8-9 (¶ 38); and p. 11 (¶ 52).
The Defendants assert that all Plaintiffs' Equal protection claims should be dismissed. They contend that, to the extent that these claims set forth "class-of-one" claims, such claims may not exist in a government employment context. Defendants rely principally upon Engquist v. Oregon Dep't of Agric., 553 U.S. 591, 598, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008). Alternatively, Defendants argue that, if viewed as "selective prosecution" claims,
The Court will examine Plaintiffs' Equal Protection claims under both the "class-of-one" and "selective enforcement" theories to determine whether any of these counts states a claim upon which relief may be granted.
Generally, the Equal Protection Clause requires that the government treat all similarly situated people in a like manner. See Harlen Assocs. v. Incorporated Vill. of Mineola, 273 F.3d 494, 499 (2d Cir.2001) (citing City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). While at first glance the phrase "class of one" seems oxymoronic, the Supreme Court has held that Equal Protection claims may be brought by a "class of one" where a plaintiff alleges that he or she has been "intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (per curiam) (citations omitted) (plaintiff property
In the context of public employment, however, the Supreme Court's decision in Engquist v. Oregon Dep't of Agric., 553 U.S. 591, 607, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008) eliminated "class-of-one" claims for government employees. See also Analytical Diagnostic Labs, Inc. v. Kusel, 626 F.3d 135, 140 (2d Cir.2010) (Engquist "eliminated class-of-one claims for government employees," making it a "jurisdiction-limiting decision"); Baptista v. Hartford Board of Education, No. 3:08-CV-1890 (MRK), 2009 WL 2163133, at *4 (D.Conn. July 21, 2009) ("an employee is unable to bring a class-of-one claim against a public employer under Engquist").
In Engquist, a former state employee was laid off during an agency reorganization. In response, she sued, arguing that she was terminated for arbitrary and malicious reasons. Engquist, 553 U.S. at 595, 128 S.Ct. 2146. She sought to bring a "class-of-one" Equal Protection claim, maintaining that the Constitution applies to the state in its role as employer, as well as in its role as regulator.
The Engquist Court held that a "class-of-one" claim under the Equal Protection Clause is unavailable as a matter of law when the government makes discretionary decisions as to government employment. The Court explained that it had "long ago recognized the `settled principle that government employment, in the absence of legislation, can be revoked at the will of the appointing officer.'" Id. at 606, 128 S.Ct. 2146 (citing Cafeteria & Rest. Workers v. McElroy, 367 U.S. 886, 896, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961)). "[R]ecognition of a class-of-one theory of equal protection in the public employment context— that is, a claim that the State treated an employee differently from others for a bad reason, or for no reason at all—is simply contrary to the concept of at-will employment. The Constitution does not require repudiating that familiar doctrine." Id. Thus, "[i]n concluding that the class-of-one theory of equal protection has no application in the public employment context ... we are guided, as in the past, by the common-sense realization that government offices could not function if every employment decision became a constitutional matter." Id. at 607-08, 128 S.Ct. 2146. (internal quotation and citation omitted). If public employees were allowed to claim discrimination because "they were treated by their employers worse than other employees similarly situated, any personnel action in which a wronged employee can conjure up a claim of differential treatment will suddenly become the basis for a federal constitutional claim. Indeed, an allegation of arbitrary differential treatment could be made in nearly every instance of an assertedly wrongful employment action —not only hiring and firing decisions, but any personnel action, such as promotion, salary, or work assignments—on the theory that other employees were not treated wrongfully." Id.
With respect to Frank's LLC's claim in Count Nine in particular, Defendants argue that Frank's LLC cannot, in any event, prevail on a "class-of-one" claim because it cannot make a prima facie showing that it is "identical in all relevant respects" to the individuals on the RTL. Doc. # 74-1, p. 12, para. 1 (citing Morron v. City of Middletown, 464 F.Supp.2d 111, 120 (D.Conn.2006) (setting forth elements of class-of-one claim)). In other words, Defendants claim that because Frank's LLC was never on the RTL, it is inherently different from those on the RTL, making it impossible for Frank's LLC to argue that it was "identically situated" to those on the list.
The Court need not address that argument because Engquist applies equally to hiring decisions, "which by their nature involve discretionary decisionmaking based on a vast array of subjective, individualized assessments." Engquist, 553 U.S. at 592, 128 S.Ct. 2146; see also Conyers v. Rossides, 558 F.3d 137, 151-52 (2d Cir.2009) (because plaintiff based claim on general allegation that employer "treated a prospective employee differently from others for a bad reason, or no reason at all," his Equal Protection claim was dismissed pursuant to Engquist); O'Hanlon v. City of Danbury, No. 3:07CV1727 (RNC), 2009 WL 586278, at *2 (D.Conn. Mar. 9, 2009) ("basis for the Court's holding in Enquist [sic] applies equally to hiring decisions").
The refusal to place Frank's LLC on the RTL is akin to an employment decision not to hire. That refusal took place in the context of a government employment
"It is well settled that, [t]o establish a violation of the Equal Protection Clause based on selective enforcement, a plaintiff must ordinarily show the following: (1) [that] the person, compared with others similarly situated, was selectively treated; and (2) that such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person." Emmerling v. Town of Richmond, 09-CV-6418 (CJS), 2010 WL 2998911, at *12, 2010 U.S. Dist. LEXIS 130948, at *35 (W.D.N.Y. July 23, 2010) (quoting Freedom Holdings, Inc. v. Spitzer, 357 F.3d 205, 234 (2d Cir.2004)). Thus, in order to state a valid claim for "selective enforcement," Plaintiffs must allege that they were treated differently than others similarly situated and that such selective treatment was based on impermissible considerations.
In Count Four, Plaintiffs allege that Defendants failed to return Frank's Service Station to the RTL "because of their status as Plaintiffs in a lawsuit, when other identically situated individuals also had suits against the town and were never removed." Doc. # 65, p. 8-9 (¶ 3 8). Because Plaintiffs base this Equal Protection claim on Defendants' alleged retaliation for the exercise of their First Amendment rights, Plaintiffs' Count Four Equal Protection claim and First Amendment claims "coalesce." The Second Circuit has held that where a selective enforcement claim is found to "coalesce" with a legally insufficient First Amendment retaliation claim, the Equal Protection claim must also fail as a matter of law. Cobb v. Pozzi, 363 F.3d 89, 110 (2d Cir.2003) (citing African Trade & Info. Cent. v. Abromaitis, 294 F.3d 355, 363 (2d Cir.2002)).
This Court has determined, supra, that Plaintiffs' First Amendment retaliation claims, based on the Complaint filed in the 2007 Action, fail as a matter of law because that Complaint implicates no "matter of public concern." Plaintiffs' "selective enforcement" claim set forth in Count Four, alleging retaliation based on Plaintiffs' exercise of First Amendment rights, coalesces with the defective First Amendment claims and therefore fails with them.
In Count Three, Plaintiffs allege that they were removed "from the RTL for a stated reason, that which others were never removed form the RTL." Doc. # 65, p. 8 (¶ 35). Earlier in their Amended Complaint, Plaintiffs specified that they "were told they were removed [from the RTL] as a result of their pending [criminal] cases but in the past other service station operators, namely Sardo's [A]utomotive, similarly situated to the plaintiffs[,] were not removed from the list when they were facing criminal charges." Doc. # 65, p. 5 (¶ 16).
Such alleged discrimination, based on pending criminal charges, does not constitute discrimination based on membership in a particular class, such as race or religion. It thus falls into the general category of selective treatment based on "malicious or bad faith intent to injure a person." See Freedom Holdings, Inc., 357 F.3d at 234.
The Second Circuit recently held that where a public employee alleges that "he was treated differently from other similarly situated employees for malicious reasons" and "not on the basis of his membership in any particular class, his equal protection claim is barred by Engquist." Massi v. Flynn, 353 Fed.Appx. 658, 660 (2d Cir.2009), cert. denied, ___ U.S. ___, 130 S.Ct. 2404, 176 L.Ed.2d 924 (2010) (emphasis added). In Massi, the plaintiff police officer "allege[d] that his employer, the Village of Mamaroneck Police Department, intentionally treated him `differently from others similarly situated' by filing two sets of disciplinary charges against him and suspending him without pay and failing to afford him sufficient due process."
The opinion in Massi evidences a movement by the Second Circuit toward holding that Engquist bars "selective enforcement" claims in the public employment context. Not surprisingly, district courts within this Circuit have consistently moved in the same direction. See, e.g., Spanierman v. Hughes, 576 F.Supp.2d 292, 307 (D.Conn. 2008) ("Given the Supreme Court's decision in Engquist, whether a LeClair
Lastly, even if Engquist did not bar Count Three, Plaintiffs themselves refute the very allegation that their business was the only one suspended from the RTL due to pending criminal charges. Specifically, they point out that Defendant Hale was aware that Sardo's violated state law by towing vehicles "while using dealer plates..., as representatives of Srado's [sic] Automotive were arrested, and the business itself suspended from the `RTL' because they engaged in ... [that] practice." Id., p. 4 (¶ 11) (emphasis added). By their own words, Plaintiffs acknowledge that Sardo's was suspended from the RTL while criminal charges were pending against its representatives. Such contradictory pleading creates confusion, by negating rather than supporting a plausible claim for selective enforcement.
In Count Nine of their Amended Complaint, Plaintiffs allege that, "in failing to provide Frank's LLC a position on the `RTL,'" Defendants "intentionally, arbitrarily, maliciously and irrationally treated the Plaintiff [differently] from all other identically situated individuals on the `RTL.'" Doc. # 65. p. 11-12 (¶ 51). Plaintiff does not base this Equal Protection claim on membership in a class or the exercise of constitutional rights. Rather, this claim asserts that Defendants simply acted "arbitrarily, maliciously and irrationally." As set forth, supra, the Second Circuit has held that Equal Protection claims based on malicious intent, rather than membership in a class, are "class of one" claims, which are precluded in the public context. Massi, 353 Fed.Appx. at 660. Because Plaintiff Frank's LLC claims that the City arbitrarily and maliciously failed to accept its application onto the RTL, thereby refusing to hire it in the government context, Plaintiffs' Equal Protection claim in Count Nine is barred.
"It is axiomatic that when all federal claims are eliminated prior to trial, a federal court should decline to exercise jurisdiction over any remaining state law claims." DeLeon v. Little, 981 F.Supp. 728, 742 (D.Conn.1997) (citing Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988),
Having presently determined that all federal claims should be dismissed, this Court declines to exercise supplemental jurisdiction over Plaintiff's state law claims and dismisses them without prejudice. See 28 U.S.C. § 1367(a);
Defendants' Motion to Dismiss (Doc. # 74) shall be granted as to all counts of Plaintiffs' Amended Complaint. Plaintiffs' First Amendment claims, as set forth in Counts One and Two, are fatally flawed in that they involve speech by public employees that does not relate to any "matter of public concern." See Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). As pled, Plaintiffs' Complaint in the 2007 Action (Doc. # 1) solely describes the suspension of Plaintiffs' business from the RTL and not a pattern or practice of discriminatory terminations or police misconduct. As such, it involves only matters of personal interest and sets forth no facts or circumstances to implicate any political, social, or other concern to the community. Plaintiffs' First Amendment claims thus pertain to unprotected speech and must, as a matter of law, be dismissed.
Plaintiffs' Equal Protection claims in Counts Three, Four, and Nine also fail. If framed as "class-of-one" claims, they are barred by Engquist v. Oregon Dep't of Agric., 553 U.S. 591, 606-07, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008), in that they allege arbitrary, irrational, and malicious employment actions taken by an employer in a public employment context.
Moreover, if Plaintiffs' Equal Protection claims are alternatively construed as "selective enforcement" claims, they remain fatally flawed. Count Four, based on discriminatory retaliation for Plaintiffs' filing of the 2007 Action, "coalesces" with Plaintiffs' First Amendment retaliation claims. Because this Court has determined that the First Amendment retaliation claims fail as a matter of law, the corresponding "selective enforcement" claim must necessarily fail.
With respect to Count Three, based on discriminatory removal from the RTL for criminal arrest, Plaintiffs' allegations of selective treatment are based on malicious intent. The Second Circuit held in Massi v. Flynn, 353 Fed.Appx. 658, 660 (2d Cir.
Lastly, Plaintiff's allegations of "selective enforcement" in Count Nine are also based on "malicious intent" and are thus precluded by Engquist. In that count, Plaintiffs seek recovery for Hale's malicious failure to place Frank's LLC on the RTL, thereby contesting a refusal to hire in a government employment context. Discretionary hiring decisions of public employees fall squarely within the Engquist ban.
Furthermore, regardless of the preclusive effect of Engquist, Count Nine is facially implausible in that the allegations contained therein lack the requisite degree of factual pleading set forth in Iqbal, 129 S.Ct. at 1950. Plaintiffs have failed to set forth sufficient factual content that there were "similarly situated" individuals from whom Frank's LLC was treated differently. LeClair v. Saunders, 627 F.2d 606, 609-10 (2d Cir.1980). Rather, Plaintiffs alleged that Frank's LLC was "identically situated" to individuals on the RTL without naming any such individuals who were "similarly situated" or specifying the "material respects" in which they were similar.
In sum, whether framed as "class of one" or "selective enforcement" claims, Plaintiffs Equal Protection Claims in Counts Three, Four, and Nine must all be dismissed.
Having determined that all federal claims in this action must be dismissed, the Court declines to exercise supplemental jurisdiction to review the validity of the state law claims. 28 U.S.C. § 1367(a). Accordingly, the state law claims will be dismissed without prejudice at this time. For all of the foregoing reasons, Defendants' Motion to Dismiss (Doc. #74) is hereby GRANTED. The Clerk is instructed to close the file.
It is SO ORDERED.
28 U.S.C. § 1343(a)(3).
28 U.S.C. § 1367(a).
The only detail Plaintiffs provide about the "identically situated" individuals is that they were on the RTL, which is insufficient to claim that they were similar in "all material respects" to Frank's LLC. Otherwise, all towing operators on the RTL would be materially similar to Frank's LLC, regardless of their characteristics or performance. For example, characteristics one might consider when hiring a towing service (e.g., number and quality of tow trucks, driving records, hours of service, location of business) are not provided. Moreover, no statistics or facts regarding hiring onto or termination from the RTL are given.
In sum, Plaintiffs have failed to adequately plead the first requisite element of a selective enforcement claim—i.e., that Frank's LLC was treated differently from other similarly situated individuals. Accordingly, the Equal Protection "selective enforcement" claim in Count Nine fails to pass muster under Iqbal.
484 U.S. at 350, 108 S.Ct. 614 (emphasis added).
