KENNETH M. KARAS, District Judge.
Irma Y. Drace ("Drace"), Dhyalma N. Vazquez ("Vazquez"), Sam Zherka ("Zherka"), and Dr. Giulio Cavallo ("Cavallo") (collectively, the "Individual Plaintiffs"), and The Westchester County Independence Party (the "Independence Party" or the "Party") (together, with the Individual Plaintiffs, "Plaintiffs") bring suit against 90 Defendants, under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961 et seq. Plaintiffs allege that Defendants violated and conspired to violate 18 U.S.C § 1962(b) and § 1962(c). Plaintiffs also allege that Defendants individually violated and conspired to violate the constitutional protections of the Due Process Clause, the First Amendment, and the Equal Protection Clause, and that Defendants Westchester County Board of Elections ("Board of Elections") and Douglas A. Colety ("Colety") committed the state tort of breach of fiduciary duty. Defendants move to dismiss all claims against them. For the following reasons, Defendants' Motions To Dismiss are granted.
The following factual summary is derived from Plaintiffs' Second Amended Complaint ("SAC"), which is assumed to be true for the purposes of these Motions.
The Independence Party is a political third party located in the County of Westchester. (SAC ¶ 1.) Plaintiff Drace was an employee in the Westchester County Attorney's Office Law Department and is the Treasurer of the Westchester County Independence Party. (Id. ¶ 2.) Plaintiff Vazquez is the Vice-Chair of the Independence Party, an Executive Committee member of the New York State Independence Party, a County Committee member, a District Leader and a Judicial Delegate. (Id. ¶ 3.) Zherka is a member of the Independence Party, and a District Leader. (Id. ¶ 4.)
A full description of the more than 90 Defendants is unnecessary, with the exception of Robert P. Astorino ("Astorino").
As alleged by Plaintiffs, this case concerns a scheme to raid the Independence Party in anticipation of the September 2013 primary election in order to ensure that Astorino, a Republican, would win the Independence Party nomination for County Executive, whereby more than 4,000 people who were not truly in sympathy with the principles of the Independence Party enrolled in the Party "at the midnight hour" in order to vote in the primary. (See id. at 9-10; ¶¶ 71, 603-04.) Under New York election law, individuals must register in a party well in advance of a primary election; thus, the deadline for registering in the Independence Party for the primary election held on September 10, 2013 was October 12, 2012 at 5 p.m. (Id. ¶¶ 71, 120.)
Plaintiffs allege that in 2010, Astorino "began an elaborate scheme to infiltrate and raid the Independence Party in a bid to rig the outcome of the September 10, 2013, countywide Independence Party primary elections." (Id. ¶ 225.) As evidence of this, Plaintiffs point to a phone call between Astorino and Zherka that occurred in March 2013, wherein Astorino allegedly stated that "he and his cohorts essentially raided the Independence Party to `buy insurance' in an attempt to rig and manipulate the outcome of the Independence Primary Election and to `decapitate' duly elected, Independence Party Chairman Giulio Cavallo and Vice Chairperson Dhyalma Vazquez, rendering them politically irrelevant so that no one [would] ever need their support or endorsement." (See id. ¶¶ 226, 231.) In this phone call, Astorino allegedly stated that "he knew immediately after getting elected in 2009 that he would not be re-endorsed by the Westchester County Independence Party chairman Dr. Giulio Cavallo," and therefore decided on the course of action to raid the party. (Id. ¶ 226.)
According to Plaintiffs, Defendants "used phones, email, fax, mail, and other forms of electronic communications, in order to scheme and defraud others, by falsely representing that these individuals were in sympathy with the principles of the Independence Party or in related efforts to raid the Independence Party," (SAC ¶¶ 46-47, 51, 54, 56-58, 60, 61, 63, 65-66, 72-73, 75-77, 79-91, 93, 95, 271, 374, 384, 394, 397, 410, 414, 417-21, 425-27, 430, 432-33, 438-39, 447-49, 452, 454-56, 458-60, 462, 502-03, 518, 520), and that they actively participated in registering friends, family, and acquaintances into the Independence Party in efforts to raid the Independence Party, (id. ¶¶ 6-7, 14, 16-17, 22, 24-51, 53-55, 57-58, 60-61, 63, 65-67, 69-70, 72-93, 95, 99, 223, 271, 310, 341, 344, 374, 384-85, 387, 394, 397, 414, 416-20, 424-26, 430, 432-34, 438-40, 442, 447-49, 452, 455-60, 462, 465, 468-70, 477, 502-03, 510, 512, 515, 517-18, 520, 529, 534).
Plaintiffs also allege that Defendants violated numerous state election laws in carrying out this scheme. For example, Plaintiffs allege that many of the Defendants were notaries and made false statements, (id. ¶ 547), that Defendants registered people despite knowing that they were ineligible to vote, (id. ¶ 541), that certain Defendants had registration cards that were backdated and submitted after the deadline to register individuals to vote, (see id. ¶ 475), and that certain Defendants allowed petitions to be filed after the deadlines had passed, (see id. ¶ 495). The latest that Plaintiffs allege a registration application was postmarked but still accepted was October 19, 2012. (See id. ¶ 183.)
On July 31, 2013, an action, Rhoades v. The Westchester County Board of Elections,
A second law suit, Rhoades v. The Westchester County Board of Elections, No. 3268/2013 (Sup.Ct.) ("Rhoades II"),
The SAC alleges the following injuries: (1) that the Independence Party "has been unable to earn the money donations it normally secures to elect candidates of their [sic] choice"; (2) "the Independence Party's business of choosing and securing candidates of their [sic] choice that are in sympathy with the principles of the Independence Party has been injured," (3) "[i]ndividual Independence voters were injured when their vote did not count as a result of this Scheme," (4) "jobs were lost on a county level as ... at least three County Legislators who normally would not have secured the Independence vote, did so and were elected," and (5) Plaintiffs' right to association was impaired. (Id. ¶¶ 581-85.) The SAC also repeatedly alleges "the Independence Party of Westchester County has been damaged by this raid in its ability to raise funds, maintain its integrity and reputation in Westchester County, and be an integral part of the election process in properly nominating candidates for public office." (See, e.g., ¶ 114 (emphasis omitted).)
The SAC also alleges that Drace and Vazquez lost their jobs, and that Cavallo was not reappointed to a volunteer position on the Westchester County Police Advisory Board. Plaintiffs allege that Drace was fired because of "her role in the sub-committee hearing held to dis-enroll thousands of newly added voters to the Independence Party," under the pretextual excuse that she was fired because she failed a civil service exam. (SAC ¶ 305-08.) With respect to Vazquez, Plaintiffs allege that Vazquez opposed a plan by Astorino and Gille to demote minority Department of Social Services workers. (Id. ¶ 293.) Additionally, the SAC alleges that "by late December 2012, Vazquez made it clear that the Independence Party would not re-endorse
Plaintiffs also allege that many Defendants benefited by virtue of their participation in the scheme. For example, Plaintiffs allege that, as a result of their participation in the scheme to raid the Independence Party, numerous Defendants were given raises or peculiarly high salaries, (see, e.g., id. ¶¶ 358, 361, 454, 513-18), that some Defendants or their family members were rewarded by being offered employment with the County, (see, e.g., id. ¶¶ 523, 525-26, 529), and that some Defendants were given unusually large sums of money from Astorino's political fund, (see, e.g., id. ¶¶ 532-38).
Plaintiffs filed a Complaint on October 31, 2013. (See Dkt. No. 1.) On January 15, 2014, Plaintiffs filed an Amended Complaint, adding and dropping some Defendants. (See Dkt. No. 3.) On March 13, 2014, the Court held a pre-motion conference, where the Parties discussed Defendants' letters seeking leave to file motions to dismiss. (See Dkt. (minute entry for Mar. 13, 2014).) On April 2, 2014, the Court held a second pre-motion conference and granted Plaintiffs leave to further amend their Complaint. (See Dkt. (minute entry for Apr. 2, 2014).) On May 7, 2014, the Court denied Plaintiffs' request to begin "nonparty discovery." (See Dkt. No. 174.) Plaintiffs filed the SAC on June 24, 2014. (See Dkt. No. 182.) The SAC dropped approximately 30 Defendants, and on August 13, 2014, the Court so ordered a stipulation of dismissal of those Parties. (See Dkt. No. 196.)
Pursuant to a scheduling order entered by the Court on July 18, 2014, (see Dkt. No. 184), Defendants filed their Motions To Dismiss no later than September 12, 2014. (See Dkt. Nos. 207-09, 220-22, 227, 229-30, 232-34, 236-38, 240-41, 244-46, 250-52.) On November 10, 2014, Plaintiffs filed a consolidated opposition to all of the Motions To Dismiss. (See Dkt. No. 264.) On November 21, 2014 Elisabeth Alberty, Robert A. Astorino, Christopher S. Caputo, Frank Catalina, Theodora Cerino, Diana McCaughey, Felicia McCloskey, Philomena McCloskey, Evelyn McCormack, Henry Neubeck, Christina Oros, Moses Pabon, Kathryn C. Plunkett, Thomas M. Reddy, Victoria Roach, Margaret M. Sculti, and Javier Vincens filed a letter correcting a point of law in their Memorandum of Law. (Dkt. No. 265.) Defendants then filed Reply papers between December 10, 2014 and December 12, 2014.
Defendants move to dismiss Plaintiffs' SAC under Rule 12(b)(6) of the Federal Rules of Civil Procedure. "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (brackets, citations, and internal quotation marks omitted). Rule 8 of the Federal Rules of Civil Procedure "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement." Id. (internal quotation marks and brackets omitted). Instead, a complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level...." Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Although "once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint," id. at 563, 127 S.Ct. 1955, and a plaintiff must allege "only enough facts to state a claim to relief that is plausible on its face," id. at 570, 127 S.Ct. 1955, if a plaintiff has not "nudged [his or her] claim[ ] across the line from conceivable to plausible, the[ ] complaint must be dismissed," id; see also Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 ("Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not `show[n]' — `that the pleader is entitled to relief.'" (citation omitted) (second alteration in original) (quoting Fed.R.Civ.P. 8(a)(2))); id. at 678-79, 129 S.Ct. 1937 ("Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.").
"[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007); see also Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir.2014) ("In addressing the sufficiency of a complaint we accept as true all factual allegations ...." (internal quotation marks omitted)); Dixon v. United States, No. 13-CV-2193, 2014 WL 23427, at *1 (S.D.N.Y. Jan. 2, 2014) ("For the purpose of this motion to dismiss, we assume that the facts alleged in [the plaintiff's] complaint are true."). Further, "[f]or the purpose of resolving [a] motion
"In ruling on a 12(b)(6) motion, ... a court may consider the complaint as well as any instrument attached to the complaint as an exhibit or any statements or documents incorporated in it by reference," as well as "matters of which judicial notice may be taken, and documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit." Kalyanaram v. Am. Ass'n of Univ. Professors at N.Y. Inst. of Tech., Inc., 742 F.3d 42, 44 n. 1 (2d Cir.2014) (brackets and internal quotation marks omitted)); see also Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) ("In 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." (internal quotation marks omitted)); Hendrix v. City of New York, No. 12-CV-5011, 2013 WL 6835168, at *2 (E.D.N.Y. Dec. 20, 2013) (same).
Plaintiffs claim that Defendants violated RICO (18 U.S.C. § 1962(c) and § 1962(b)), and conspired to violate RICO (18 U.S.C. § 1962(d)). Defendants move to dismiss these claims.
In their First Cause of Action, Plaintiffs allege that Defendants violated 18 U.S.C. § 1962(c).
"A private cause of action under RICO requires that the plaintiff allege: `(1) the defendant's violation of 18 U.S.C. § 1962, (2) an injury to the plaintiff's business or property, and (3) causation of the injury by the defendant's violation.'" Fertitta v. Knoedler Gallery, LLC, No. 14-CV-2259, 2015 WL 374968, at *5 (S.D.N.Y.
Defendants argue that Plaintiffs have not adequately pled most of these requirements. The Court agrees.
In response to Defendants' claim that Plaintiffs' allegations are insufficient, Plaintiffs argue only that they have adequately pleaded RICO predicates of mail and wire fraud. (See Mem. of Law in Opp'n to Defs.' Mot. To Dismiss ("Pls.' Mem.") 17-19 (Dkt. No. 264).) "The elements of wire fraud under 18 U.S.C. § 1343 are (i) a scheme to defraud (ii) to get money or property, (iii) furthered by the use of interstate wires." Tymoshenko v. Firtash, 57 F.Supp.3d 311, 321 (S.D.N.Y.2014) (internal quotation marks omitted) (quoting United States v. Pierce, 224 F.3d 158, 165 (2d Cir.2000)); see also Azkour v. Haouzi, No. 11-CV-5780, 2012 WL 3667439, at *4 (S.D.N.Y. Aug. 27, 2012) (same). "The elements of mail fraud under 18 U.S.C. § 1341 are identical, except that mail fraud must be furthered by use of the mails." Tymoshenko, 57 F.Supp.3d at 321; see also S.Q.K.F.C., Inc. v. Bell Atl. TriCon Leasing Corp., 84 F.3d 629, 633 (2d Cir.1996) ("A complaint alleging mail and wire fraud must show (1) the existence of a scheme to defraud, (2) defendant's knowing or intentional participation in the scheme, and (3) the use of interstate mails or transmission facilities in furtherance of the scheme."); Mayfield v. Asta Funding, Inc., 95 F.Supp.3d 685, 697 (S.D.N.Y.2015) (same); Delgado v. Ocwen Loan Servicing, LLC, No. 13-CV-4427, 2014 WL 4773991, at *17 (E.D.N.Y. Sept. 24, 2014) (same).
For both wire and mail fraud, the object of the scheme to defraud must be money or property. See Pierce, 224 F.3d at 165 ("In the context of mail fraud and wire fraud, the words `to defraud' commonly refer to wronging one in his property rights by dishonest methods or schemes, and usually signify the deprivation of something of value by trick, deceit, chicane or overreaching. A scheme to deceive, however dishonest the methods employed, is not a scheme to defraud in the absence of a property right for the scheme to interfere with." (citations and some internal quotation marks omitted)); Tymoshenko, 57 F.Supp.3d at 321 ("[T]o violate either the wire fraud or mail fraud statute, `the object of the fraud' must `be [money or] property in the victim's hands.'" (quoting Pasquantino v. United States, 544 U.S. 349, 355 & n. 2, 125 S.Ct. 1766, 161 L.Ed.2d 619 (2005) (alteration in original))); United States v. Martin, 411 F.Supp.2d 370, 373 (S.D.N.Y.2006) ("The wire fraud statute ... requires that money or property be the object of the defendant's `scheme to defraud.'"); cf. United States v. Starr, 816 F.2d 94, 98 (2d Cir.
To understand what schemes are covered by these statutes, it is helpful to briefly consider the history of their interpretation by the Supreme Court.
Over a decade after § 1346 was enacted, in Cleveland v. United States, 531 U.S. 12, 121 S.Ct. 365, 148 L.Ed.2d 221 (2000), the Supreme Court considered a mail fraud conviction based on false statements
With that backdrop, the Court now turns to Plaintiffs' claims in this case. Plaintiffs allege that Defendants "used phones, email, fax, mail, and other forms of electronic communications, in order to scheme and defraud others, by falsely representing that these individuals were in sympathy with the principles of the Independence Party or in related efforts to raid the Independence Party," (SAC ¶¶ 46-47, 51, 54, 56-58, 60, 61, 63, 65-66, 72-73, 75-77, 79-91, 93, 95, 271, 374, 384, 394, 397, 410, 414, 417-21, 425-27, 430, 432-33, 438-39, 447-49, 452, 454-56, 458-60, 462, 502-03, 518, 520), and that they actively participated in registering friends, family, and acquaintances into the Independence Party in efforts to raid the Independence Party, (id. ¶¶ 6-7, 14, 16-17, 22, 24-51, 53-55, 57-58, 60-61, 63, 65-67, 69-70, 72-93, 95, 99, 223, 271, 310, 341, 344, 374, 384-85, 387, 394, 397, 414, 416-20, 424-26, 430, 432-34, 438-40, 442, 447-49, 452, 455-60, 462, 465, 468-70, 477, 502-03, 510, 512, 515, 517-18, 520, 529, 534).
The scheme to raid the Independence Party, or to rig the outcome of the primary or general election, cannot serve as the foundation of a RICO predicate because the object of the scheme was neither the deprivation of honest services nor of money or property. With respect to the honest services, Plaintiffs allege that some Defendants were rewarded for participation in the alleged scheme, for example by receiving raises, but Plaintiffs fail to allege that any Defendant was acting in violation of a fiduciary duty. Indeed,
Next, the object of the scheme, as alleged, was control over the Independence Party, which cannot be considered property in the hands of the victim. In McNally, the Supreme Court cited United States v. Clapps, 732 F.2d 1148 (3d Cir.1984), and United States v. States, 488 F.2d 761 (8th Cir.1973), as examples of courts previously reading the wire fraud and mail fraud statutes to include "schemes to defraud... designed to deprive individuals, the people, or the government of intangible rights, such as the right to have public officials perform their duties honestly," which reading the Court rejected in McNally. See McNally, 483 U.S. at 358-59, 107 S.Ct. 2875 (citing Clapps, 732 F.2d at 1152; States, 488 F.2d at 764). In Clapps, the Third Circuit affirmed a mail fraud conviction that involved the fraudulent procurement and marking of absentee ballots in two primary elections and a general election, reasoning that the statute included a "scheme to deprive an electoral body of its political rights to fair elections free from dilution from the intentional casting and tabulation of false, fictitious or spurious ballots." 732 F.2d at 1149, 1153. Similarly, in States, the Eighth Circuit upheld a mail fraud conviction based on a "scheme to defraud the voters ... by the use of fraudulent voter registrations and applications for absentee ballots," where the alleged "purpose of the scheme to defraud was to influence the outcome of the election of the Republican Committeeman for the nineteenth ward and the Democratic Committeeman for the third ward for the purpose of securing and controlling said political offices and the political influence and financial benefits of said offices." 488 F.2d at 762 (internal quotation marks omitted). It is worth noting that in both Clapps and States, the courts upheld these convictions not based on the theory that the victims of the schemes somehow had a property right of which they were deprived, but rather based on the theory that the scheme deprived people of intangible non-property rights, that is, the intangible right to an honest election. Cf. United States v. Turner, 465 F.3d 667, 672-73 (6th Cir.2006) ("A review of the prominent pre-McNally election fraud cases ... reveals that none referred to the harm flowing from election fraud as a deprivation of a right to `honest services.' Indeed, most of these cases recognized that the application of the statute to election fraud was a modification of the intangible right of honest services, defined as a right to an honest election."). And, although Congress reinvigorated some of the pre-McNally case law by enacting the Honest Services Fraud Statute, it is clear in the wake of Skilling that deprivations of intangible rights, such as the right to a free and fair election, cannot constitute wire fraud or mail fraud without a quid pro quo bribery scheme and a breach of a fiduciary duty. See Skilling, 561 U.S. at 407, 411, 130 S.Ct. 2896 (limiting § 1346 to conduct that involved quid pro quo arrangements in violation of a fiduciary duty). That is to say, while the passage of § 1346 covered some of the schemes covered by the mail fraud and wire fraud statutes pre-McNally,
Indeed, following McNally, no court has held that a scheme to rig an election itself constitutes money or property fraud. See, e.g., United States v. DeFries, 129 F.3d 1293, 1304 (D.C.Cir.1997) (holding that, under McNally and Carpenter, the right to fair elections is "a[n] ... `ethereal' interest that does not constitute `property' under section 1341," reasoning that "it [was] particularly instructive that, in explaining the types of schemes that could not properly support a conviction under section 1341, the McNally Court referred to two election fraud cases as examples"); United States v. Gordon, 836 F.2d 1312, 1314 (11th Cir.1988) (holding that the Supreme Court's references to Clapps and States in McNally "seem[ed] to have repudiated the argument that election fraud cases involve more than an intangible right"); Ingber v. Enzor, 841 F.2d 450, 451, 453, 456 (2d Cir.1988) (vacating the conviction of a defendant who falsified voting documents, including absentee ballots, and who thereby "obtained through fraud the salary, powers[,] and privileges of the Office of Supervisor," because the government's theory of "deprivation of the right to fair and impartial elections" was "impermissible under McNally" (internal quotation marks omitted)); United States v. Schermerhorn, 713 F.Supp. 88, 89 (S.D.N.Y.1989) (noting that the Second Circuit has "held that the citizenry's intangible right to free and fair elections falls within the good-government intangible held by the McNally Court to be beyond the statute's reach" (citing Ingber v. Enzor, 664 F.Supp. 814, 820 (S.D.N.Y.1987), aff'd, 841 F.2d 450 (2d Cir. 1988))).
Proponents of a broad reading of "money or property" have had some — but still, extremely limited — success advocating a theory that election fraud can constitute money or property fraud when the object of the scheme is to obtain the salary that comes with elected office, the "salary theory" of election fraud. See Schermerhorn, 713 F.Supp. at 92 (accepting the salary theory); United States v. Webb, 689 F.Supp. 703, 707 (W.D.Ky.1988) (same). This theory has been accepted where the government is acting as an employer and thus has a property interest in choosing how to spend its money on its employees. See United States v. Granberry, 908 F.2d 278, 280 (8th Cir.1990) (holding that a school bus driver who received a school bus operator permit by falsifying an application and concealing that he had been convicted of first-degree murder committed money or property fraud because the "School District ha[d] been deprived of money in the very elementary sense that its money [went] to a person who would not have received it if all of the facts had been known"); United States v. Doherty, 867 F.2d 47, 60 (1st Cir.1989) (holding that a fraudulent scheme to obtain promotions by cheating on exams counted as money or property fraud because "[g]etting jobs by false pretenses ... `deprived' the Commonwealth `of control over how its money was spent'" (quoting McNally, 483 U.S. at 360, 107 S.Ct. 2875)).
However, the salary theory is an imperfect fit in the election context because the government has no choice in who is to be elected. It is the electorate that decides who receives the salary, and the government simply is required to pay the salary to the winner. Thus, the cases discussing the property interest the government holds in choosing how to spend its money "address the government's role as employer, where job qualifications can be economically quantified, are not analogous to an election fraud case, where the government's role is purely administrative and the public's role is a political one." Turner,
In the Second Circuit, the precedent on the salary theory is mixed. In Ingber v. Enzor, 664 F.Supp. 814 (S.D.N.Y.1987), aff'd, 841 F.2d 450 (2d Cir.1988), a court in this district considered whether a mail fraud conviction based on election tampering should be overturned after McNally. The court concluded both that (1) the conviction based on "tampering with the election process, [and thereby] depriving the voters of their right to honest elections," was no longer "within the reach of § 1341" after McNally, and that (2) "the scheme to get the salary and perquisites of office was essentially the same thing as the scheme
Because the Second Circuit has yet to address this issue and because the Court is persuaded by the reasoning of other circuits discussed above, it joins the majority of courts in holding that a person who has committed election fraud in order to obtain the normal salary given to the person holding that elected office has not committed money or property fraud, because the victim — the government — has not been deprived either of any money or property or of the choice in how to spend money. Rather, it is the public that is deprived of an intangible right to a free election, which cannot support a money or property fraud conviction and, in the absence of a quid pro quo and a violation of a fiduciary duty, cannot support an honest services fraud conviction.
However, even if the Court were to decide otherwise and find that the salary theory was valid with respect to election fraud, Plaintiffs still would not have adequately alleged such a theory in the SAC. As alleged, the object of the scheme was not to get a salary; rather, it was to rig elections. This claimed objective is insufficient because it does not suggest that the purpose of the fraud was to obtain salary. Indeed, the bulk of Plaintiffs' allegations, which merely claim that the object of the fraud was to rig the primary election, are even less sufficient because there is no salary to be directly obtained by virtue of winning a primary.
Even assuming that Plaintiffs had sufficiently alleged RICO predicates, the § 1962(c) claim should still be dismissed because Plaintiffs fail to sufficiently allege a pattern of racketeering activity.
"To satisfy closed-ended continuity, the plaintiff must prove `a series of related predicates extending over a substantial period of time.'" Cofacredit, 187 F.3d at 242 (quoting H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 242, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989)). "[C]losed-ended continuity is primarily a temporal concept." Spool, 520 F.3d at 184 (internal quotation marks omitted); see also Aronov, 2015 WL 1780164, at *5 ("The Second Circuit has identified several non-dispositive factors considered by courts in determining whether closed-ended continuity exists, including, inter alia, the length of time over which the alleged predicate acts took place, the number and variety of acts, the number of participants, the number of victims, and the presence of separate schemes. Notwithstanding this list of factors, the Second Circuit has repeatedly emphasized that closed-ended continuity is primarily a temporal concept...." (citation and internal quotation marks omitted)). Although there is not a bright line for what constitutes a "substantial period of time," since the Supreme Court set forth that requirement in H.J., the Second Circuit has "never held a period of less than two years to constitute a substantial period of time." Spool, 520 F.3d at 184 (internal quotation marks omitted); see also Lefkowitz v. Reissman, No. 12-CV-8703, 2014 WL 925410, at *6 (S.D.N.Y. Mar. 7, 2014) (same); Li Jun An v. Hui Zhang, No. 13-CV-5064, 2013 WL 6503513, at *8 (S.D.N.Y. Dec. 6, 2013) (same); Boritzer v. Calloway, No. 10-CV-6264, 2013 WL 311013, at *11 (S.D.N.Y. Jan. 24, 2013) (same); Kilkenny v. Law Office of Cushner & Garvey, L.L.P., No. 08-CV-588, 2012 WL 1638326, at *7
Plaintiffs' arguments in opposition to the Motions rely on the statements Astorino allegedly made while on the phone with Zherka, and summarily allege that "[t]his massive effort on the part of the Defendant co-conspirators did not occur in a single month or over the course of one short year but was planned and executed for over four years." (Pls.' Mem. 25.) Plaintiffs apparently derive this time period by assuming that the closed-ended pattern began in 2010, (see SAC ¶ 568), and was completed in 2013 at the time of the primary election, (see SAC ¶ 108). It is worth noting that the only citation to the SAC in this portion of Plaintiffs' Opposition is to a discussion of the 2013 Astorino tape. (See Pls.' Mem. 25-26 (citing SAC ¶ 568).)
At oral argument, Plaintiffs argued for the first time that the voter registration information annexed to the SAC was sufficient to establish a pattern over a sufficiently long time period. In particular, Plaintiffs' counsel argued that the cards annexed to the SAC indicated that some people who registered in 2010 and 2011 were among those voters purged from the ranks of the Independence Party as part of the Rhoades II decision. (See June 9, 2015 Oral Argument Tr. 77-83; see also SAC Exs. B, B2.) However, as acknowledged by counsel at argument, there is no allegation in the SAC that these 2010 and 2011 registrations were mailed, or that the registrants were not bona fide Independence Party members, especially given Plaintiffs' counsel's admission that some disenrolled members might have been legitimate Party members. (See June 9, 2015 Oral Argument Tr. 69, 81-83.) Thus, Plaintiffs do not plausibly plead that any racketeering activity occurred in 2010 or 2011.
The SAC also fails to sufficiently allege an open-ended pattern. "To satisfy open-ended continuity, the plaintiff need not show that the predicates extended over a substantial period of time but must show that there was a threat of continuing criminal activity beyond the period during which the predicate acts were performed." Cofacredit, 187 F.3d at 242. "In assessing whether or not the plaintiff has shown open-ended continuity, the nature of the RICO enterprise and of the predicate acts are relevant." Id. For example, "[w]here the enterprise is engaged primarily in racketeering activity, and the predicate acts are inherently unlawful, there is a threat of continued criminal activity, and thus open-ended continuity." Id. at 242-43; see also Spool, 520 F.3d at 185 (holding that a threat of continuing criminal activity is "generally presumed when the enterprise's business is primarily or inherently unlawful").
In the second category of cases, where an ongoing threat is not implied, "there must be some evidence from which it may be inferred that the predicate acts were the regular way of operating that business, or that the nature of the predicate acts themselves implies a threat of continued criminal activity." Spool, 520 F.3d at 185 (internal quotation marks omitted). Plaintiffs have not pled sufficient facts that would allow the Court to plausibly infer anything more than a single scheme that terminated with the 2013 primary election. As alleged in the SAC, the object of the alleged scheme was "to infiltrate and raid the Independence Party in a bid to rig the outcome of the September 10, 2013, countywide Independence Party primary elections." (SAC ¶ 225; see also ¶ 100 (alleging that Robert P. Astorino "organized an illicit, fraudulent scheme to rig the out-come of the September 10, 2013, county-wide Independence party primary election by inducing and coercing individuals to switch their party affiliations and enlist in the Independence Party"); id. ¶ 108 ("Each and every defendant, with intent to deceive, participated in an illicit, organized[,] and fraudulent scheme to rig the outcome of the September 10, 2013, county-wide Independence Party primary election by inducing and coercing individuals to switch their party affiliations and enlist in the Independence Party.").) Moreover, this scheme, as alleged by Plaintiffs, "has an intended and foreseeable endpoint," and therefore is "inherently terminable" and "will not constitute open-ended continuity." Dolan v. Fairbanks Capital Corp., 930 F.Supp.2d 396, 409 (E.D.N.Y.2013); see also FD Prop. Holding, Inc. v. U.S. Traffic Corp., 206 F.Supp.2d 362, 371 (E.D.N.Y.2002) (same); see also GICC Capital Corp. v. Tech. Fin. Grp., Inc., 67 F.3d 463, 466 (2d Cir.1995) ("Even if we assume that defendants' scheme was designed to deprive TFG of its assets, it is clear that the scheme was inherently terminable.... For example, the predicate acts alleged in connection with the repurchases of residual investor interests — that
Plaintiffs urge the Court to find that the threat of criminal activity is ongoing because one of the objectives, to "`decapitate' the current leadership of the Independence Party," is unaccomplished, and because the scheme "was done to affect future elections as well as to take control of the party...." (Pls.' Mem. 26.) Plaintiffs also argue that the scheme was not inherently terminable because it was broader than the election of just one person and the state court's order did not stop the enterprise's ability to resume its activity. (Id. at 27-28.) When pressed at oral argument, Plaintiffs' counsel merely asserted that the scheme is open-ended because people could still join the Independence Party without being bona fide members. (See June 9, 2015 Oral Argument Tr. 87-90.) However, Plaintiffs have not alleged sufficient facts plausibly showing that any such activity is ongoing, or that it is being done using wires or mail, and their claim to the contrary is simply speculative. Therefore, Plaintiffs have failed to adequately plead either a sufficient closed-ended or open-ended pattern of racketeering activity, and this claim must be dismissed.
Even setting aside the two problems discussed above, there is a further reason Plaintiffs' § 1962(c) claim must be dismissed. In order to bring a suit under RICO, each plaintiff must allege injury to his or her business or property caused "by reason of the substantive RICO violation." Sykes v. Mel S. Harris & Assocs. LLC, 780 F.3d 70, 91 (2d Cir.2015) (internal quotation marks omitted). "This causation analysis will require the district court to identify (1) the property interest that is protected by RICO, as alleged by plaintiffs, and (2) whether the injury to that interest was caused by the RICO violation." Id.; see also 18 U.S.C. § 1964(c) ("Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court...."); Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985) ("[T]he plaintiff only has standing if ... he has been injured in his business or property by the conduct constituting the violation." (emphases added)). The second part of the analysis requires that the RICO violation was both the proximate cause and the but-for cause of the plaintiffs' injuries. See UFCW Local 1776 v. Eli Lilly & Co., 620 F.3d 121, 132 (2d Cir.2010). "`When a court evaluates a RICO claim for proximate causation, the central question it must ask is whether the alleged violation led directly to the plaintiff's injuries.'" Naples v. Stefanelli, No. 12-CV-4460, 2015 WL 541489, at *14 (E.D.N.Y. Feb. 7, 2015) (quoting Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 461, 126 S.Ct. 1991, 164 L.Ed.2d 720 (2006)).
Thus, the Court must first assess whether each Plaintiff has asserted an injury to a property interest protected by RICO. Importantly, RICO only protects injury to the plaintiff's business or property, meaning that many injuries are insufficient to establish RICO standing. Personal damages, emotional damages, and physical damages, for example, are insufficient. See Angermeir v. Cohen, 14 F.Supp.3d 134, 152 (S.D.N.Y.2014) (holding that assertions that the plaintiffs had to waste time and effort, were subject to annoyance, embarrassment, emotional distress, and mental anguish were insufficient);
Following these principles, the Court concludes that Plaintiffs' assertions of injury, (see SAC ¶¶ 581-85), are insufficient. The SAC alleges the following injuries. First, with respect to the Independence Party, Plaintiffs allege that it has been injured because it "has been unable to earn the money donations it normally secures to elect candidates of their [sic] choice," and its "business of choosing and securing candidates of their [sic] choice that are in sympathy with the principles of the Independence Party has been injured." With respect to the individual Plaintiffs, the SAC alleges that "[i]ndividual Independence voters were injured when their vote did not count as a result of this Scheme," "jobs were lost on a county level as ... at least three County Legislators who normally would not have secured the Independence vote, did so and were elected," and
The Court will begin with the injuries asserted with reference to the individual Plaintiffs. The first and third categories of injuries above are personal/constitutional injuries that cannot form the basis of a RICO claim, as noted above. See, e.g., Wright, 2012 WL 268283, at *4.
The Court next turns to the allegations of injury suffered by the Independence Party. These, too, are insufficient. Plaintiffs' allegation that the Party "has been unable to earn the money donations it normally secures to elect candidates of their [sic] choice" lacks the requisite precision necessary to constitute a RICO injury, as "a plaintiff who alleges injuries that are indefinite and unprovable does not have standing under, and cannot recover damages pursuant to, RICO." Makowski v. United Bhd. of Carpenters & Joiners of Am., No. 08-CV-6150, 2010 WL 3026510, at *8 (S.D.N.Y. Aug. 2, 2010) (internal quotation marks omitted); see also Jakks Pac., 530 F.Supp.2d at 521 (same).
In opposition to Defendants' Motions To Dismiss, Plaintiffs argue that they have implicitly alleged that they were injured by virtue of paying attorneys' fees. (See Pls.' Mem. 33-37.) They argue that this is implicit because they have requested attorneys' fees in the wherefore clause of the SAC, (see id. at 34 ("While the SAC did not specifically make legal fees one of the enumerated injuries, it was nonetheless alleged in the wherefore clause where it states clearly we are seeking legal fees for the instant action.")), and they seem to argue that it was obvious that they had to expend legal fees in relation to the state court cases, (see id. ("[T]here is no requirement that legal fees be explicitly spelled out[;] rather it is axiomatic that legal fees were requested and would be a duly noted injury to the Plaintiffs having to address this RICO claim and having expended monies also in legal fees for the State Court actions (Rhoades) they were forced to bring to defend their interest herein.")). While it is true that in some cases legal fees can constitute a RICO injury if such fees are proximately caused by the RICO violation, see Stochastic Decisions, Inc. v. DiDomenico, 995 F.2d 1158, 1167 (2d Cir.1993), Angermeir, 14 F.Supp.3d at 153, Plaintiffs simply have not alleged that they have been injured in that way, nor have they alleged that such an injury was caused by the alleged RICO
For all of the foregoing reasons, Plaintiffs have failed to sufficiently allege a violation of § 1962(c), and their claim is dismissed.
Plaintiffs also bring a claim under 18 U.S.C. § 1962(b). Section 1962(b) provides that "[i]t shall be unlawful for any person through a pattern of racketeering activity or through collection of an unlawful debt to acquire or maintain, directly or indirectly, any interest in or control of any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce." To state a claim under this provision, "the plaintiff must allege that: (1) the defendants engaged in a pattern of racketeering activity for the purpose of acquiring an interest in or maintaining control of the enterprise; (2) the defendants in fact acquired an interest in or maintained control of the enterprise through a pattern of racketeering activity; and (3) the plaintiff suffered an injury as a result of the acquisition or control, separate and apart from any injuries attributable to the individual predicate acts of racketeering." Cont'l Fin. Co. v. Ledwith, No. 08 CIV. 7272, 2009 WL 1748875, at *4 (S.D.N.Y. June 22, 2009).
"Under any prong of § 1962, a plaintiff in a civil RICO suit must establish a pattern of racketeering activity. The plaintiff must plead at least two predicate acts, and must show that the predicate acts are related and that they amount to, or pose a threat of, continuing criminal activity." GICC, 67 F.3d at 465 (citation and internal quotation marks omitted); see also Jus Punjabi, LLC v. Get Punjabi Inc., No. 14-CV-3318, 2015 WL 2400182, at *4 (S.D.N.Y. May 20, 2015) (same); O'Neill v. Hernandez, No. 08-CV-1689, 2010 WL 1257512, at *9 (S.D.N.Y. Mar. 25, 2010) ("To state a RICO claim under [§] 1962(b) and (c), a plaintiff must plead seven elements: (1) that a defendant, (2) through the commission of two or more acts (3) constituting a pattern (4) of racketeering activity, (5) directly or indirectly invests in, or maintains an interest in, or participates in, (6) an enterprise, (7) the activities of which affect interstate or foreign commerce."); Jordan (Bermuda) Inv. Co. v. Hunter Green Invs. Ltd., 205 F.Supp.2d 243, 250 (S.D.N.Y.2002) (noting that, as under § 1962(c), to state a claim under § 1962(b), a plaintiff "must allege at least two predicate acts, and those acts must constitute a `pattern' of racketeering activity," which pattern could be either open-ended or closed-ended). As discussed in detail above, Plaintiffs do not plausibly allege the RICO predicates or the existence of either an open-ended or closed-ended pattern of RICO, and the § 1962(b) claim, like the § 1962(c) claim, must be dismissed. See, e.g., Kilkenny, 2012 WL 1638326, at *6 (noting that a § 1962(b) claim would fail for the same reason as the § 1962(c) claim — that the plaintiff did not adequately plead any RICO predicates and that he did not plead a closed-ended or open-ended pattern); Curtis & Assocs., P.C. v. Law Offices of David M. Bushman, Esq., 758 F.Supp.2d 153, 168 (E.D.N.Y. 2010) (dismissing § 1962(b) and § 1962(c) claims "because [the] plaintiffs ... failed as a matter of law to plead any underlying predicate acts which could form the basis for a pattern of racketeering activity" (internal
Additionally, as discussed above, to have standing to bring a RICO claim, a plaintiff must "allege injury to her business or property." S. Ill. Laborers' & Employers Health & Welfare Fund v. Pfizer Inc., No. 08-CV-5175, 2009 WL 3151807, at *4 (S.D.N.Y. Sept. 30, 2009); see also 18 U.S.C. § 1964(c) (providing that "[a]ny person injured in his business or property by reason of a violation of section 1962 of this chapter may sue"); DeFalco v. Bernas, 244 F.3d 286, 305 (2d Cir.2001) (noting that to bring a claim under any substantive RICO provision, a plaintiff must allege injury to business or property). To state a claim under § 1962(b), the RICO injury must have been caused by the acquisition or maintenance of control in an enterprise. See Fischbein v. Sayers, No. 04-CV-6589, 2009 WL 2170349, at *5 (S.D.N.Y. July 16, 2009) (finding that the plaintiff could not state a cause of action under § 1962(b) because "the [c]omplaint does not even attempt to allege any injury arising from the acquisition or maintenance of an enterprise...."). As discussed above, the alleged injuries of individual Independence Party voters when their votes did not count and to Plaintiffs' associational rights being impaired are personal/constitutional injuries that cannot constitute injury to business or property. With respect to Drace's and Vazquez's alleged job losses and the failure to reappoint Cavallo to the Westchester County Police Advisory Board, (see SAC ¶¶ 267-78, 293, 296-97, 302, 305-08), there is no allegation that these injuries were caused by Defendants' acquisition or maintenance of control of the Independence Party. Finally, as discussed above, the alleged inability of the Independence Party to collect donations is too speculative and conclusory to state a cognizable RICO injury. See Miller v. Carpinello, No. 06-CV-12940, 2007 WL 4207282, at *6 (S.D.N.Y. Nov. 20, 2007) ("A plaintiff has standing to bring a RICO claim only if he has been injured in his business or property by the conduct constituting the RICO violation and only when his actual loss is clear and definite."); Dornberger, 961 F.Supp. at 521 (holding that injury to business or property "requires a showing of some actual, out-of-pocket financial loss").
And finally, the Court holds that Plaintiffs have abandoned their § 1962(b) claim, as several Defendants moved to dismiss this claim, (see Dkt. No. 230 at 17; Dkt. No. 238 at 8-9; Dkt. No. 246 at 20; Dkt. No. 252 at 20-21), and Plaintiffs did not oppose its dismissal, (see generally Pls.' Mem.). See Tieman v. City of Newburgh, No. 13-CV-4178, 2015 WL 1379652, at *15 n. 10 (S.D.N.Y. Mar. 26, 2015) (holding that the plaintiff abandoned a claim when he did not respond to the defendant's arguments in support of its motion to dismiss); Liang v. City of New York, No. 10-CV-3089, 2014 WL 4966074, at *1 n. 1 (E.D.N.Y. Oct. 3, 2014) (deeming abandoned and dismissing RICO claim against certain defendants where the plaintiff did not respond to their arguments in support of their motion to dismiss); Wright v. Brae Burn Country Club, Inc., No. 08-CV-3172, 2009 WL 725012, at *5 (S.D.N.Y. Mar. 20, 2009) (deeming abandoned and dismissing
Finally, Plaintiffs also bring a RICO conspiracy claim under 18 U.S.C. § 1962(d). This section provides that "[i]t shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c), of this section." Although Plaintiffs did not set out a RICO conspiracy claim as a separate claim for relief in the SAC, they nonetheless urge that they have adequately pleaded a violation of § 1962(d). (See Pls.' Mem. 15-17.) However, because Plaintiffs have not adequately pleaded a substantive RICO violation, "the conspiracy claim under § 1962(d) also fails." BWP Media USA Inc. v. Hollywood Fan Sites, LLC, 69 F.Supp.3d 342, 363 (S.D.N.Y.2014); see also First Capital Asset Mgmt., Inc. v. Satinwood, Inc., 385 F.3d 159, 182 (2d Cir.2004) ("[B]ecause [the] [p]laintiffs did not adequately allege a substantive violation of RICO in [c]ount [f]ive on the part of either [defendant], the [d]istrict [c]ourt properly dismissed [c]ount [s]ix, which alleged a RICO conspiracy in violation of 18 U.S.C. § 1962(d)."); Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1191 (3d Cir.1993) ("Any claim under section 1962(d) based on a conspiracy to violate the other subsections of section 1962 necessarily must fail if the substantive claims are themselves deficient."); Reich v. Lopez, 38 F.Supp.3d 436, 453 (S.D.N.Y.2014) ("As [the] [p]laintiffs have not adequately pleaded a substantive RICO violation, their conspiracy claim under 18 U.S.C. § 1962(d) is also dismissed."), reconsideration denied, No. 13-CV-5307, 2015 WL 1632332 (S.D.N.Y. Apr. 13, 2015); Nat'l Grp. for Commc'ns & Computers Ltd. v. Lucent Techs. Inc., 420 F.Supp.2d 253, 272 (S.D.N.Y.2006) ("Case law in [the Second] Circuit confirms that a 1962(d) conspiracy claim must be dismissed where the substantive RICO claim is deficient.") (collecting cases). And there are no additional allegations with respect to the conspiracy count that the Defendants agreed to commit further acts that, had they been carried out, would have satisfied the RICO elements that the Court has held were deficient with respect to the substantive RICO counts. See Li Jun An, 2013 WL 6503513, at *11 ("Where `there is insufficient evidence that the [defendants] actually committed predicate acts displaying the continuity necessary to support a substantive RICO violation,' and `no evidence that defendants agreed to perform additional acts that, if committed, would have displayed continuity sufficient to establish a pattern of racketeering activity,' a RICO conspiracy claim must fail. Here, [the plaintiff] has failed to state a substantive RICO claim under 18 U.S.C. § 1962(c), and has made no additional allegations in pleading a RICO conspiracy claim." (quoting Cofacredit, 187 F.3d at 245)); see also Salinas v. United States, 522 U.S. 52, 65, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997) ("A conspirator must intend to further an endeavor which, if completed, would satisfy all of the elements of a substantive criminal offense...."); BWP Media USA, 69 F.Supp.3d at 563 ("Further, [the] [p]laintiffs have made no additional allegations in pleading a RICO conspiracy claim." (internal quotation marks omitted)). Therefore, the RICO conspiracy claim is dismissed.
Plaintiffs also assert a variety of constitutional claims. Specifically, Plaintiffs allege that Defendants' actions violated Plaintiffs' rights under the Equal Protection Clause, (see SAC ¶ 620), the Due Process Clause, (see SAC ¶ 619), and the First
First, Plaintiffs assert that their right to equal protection has been violated. "The Equal Protection Clause generally protects individuals from state action which causes them to be treated differently from others similarly situated." Willingham v. Cty. of Albany, 593 F.Supp.2d 446, 460 (N.D.N.Y. 2006). Plaintiffs do not specify under what theory they bring this equal protection claim, but they appear to allege that they were discriminated against as members of a political group.
Although Plaintiffs may have adequately alleged a violation of New York Election law, "[i]t is axiomatic that violations of state law alone are insufficient to state a claim for section 1983 relief." Weiss v. Inc. Vill. of Sag Harbor, 762 F.Supp.2d 560, 573 (E.D.N.Y.2011) (alteration in original) (internal quotation marks omitted) (quoting Powers v. Coe, 728 F.2d 97, 105 (2d Cir.1984)). "The mere fact that a case may involve voting rights or political elections does not change this analysis." Id. (citing Kasper v. Bd. of Election Comm'rs of the City of Chicago, 814 F.2d 332, 342 (7th Cir.1987)); see also Snowden v. Hughes, 321 U.S. 1, 11, 64 S.Ct. 397, 88 L.Ed. 497 (1944) ("Mere violation of a state statute does not infringe the federal Constitution.... A state statute which provided that one nominee rather than two should be certified in a particular election district would not be unconstitutional on its face and would be open to attack only if it were shown, as it is not here, that the exclusion of one and the election of another were invidious and purposely discriminatory."). Thus, more is needed for Plaintiffs to state a claim for equal protection based on state actors allegedly violating New York election law.
First, "[l]aws that by their own terms burden the fundamental rights of minority groups raise particular concerns of invidious discrimination, and those concerns are no less acute where the minority group is defined by shared political values rather than racial or ethnic characteristics."
There are two requirements for a plaintiff to assert an equal protection claim under the theory that members of their political group were denied certain rights: first, he must allege that his group was treated differently, and second, he must allege that this differential treatment was done with discriminatory intent. Here, Plaintiffs have failed to meet the first requirement because they simply make no allegation whatsoever that any other political group was treated differently. This, in itself, is fatal to any equal protection claim, as "[t]o establish ... intentional or purposeful discrimination, it is axiomatic that a plaintiff must allege that similarly situated persons have been treated differently." Marchant v. N.Y.C. Bd. of Elections, No. 13-CV-5493, 2013 WL 4407098, at *4-5 (S.D.N.Y. Aug. 16, 2013) (internal quotation marks omitted) (quoting Gagliardi v. Village of Pawling, 18 F.3d 188, 193 (2d Cir.1994)); see also Willingham, 593 F.Supp.2d at 460 ("[A]n equal protection claim requires proof that an identifiable group was treated differently and that such treatment was both intentional and unreasonable. The Equal Protection Clause does in fact protect against discrimination based on race, but it is intentional differential treatment, not simply racially discriminatory motivation, which is required to be shown." (citation omitted)); cf. Yale Auto Parts, Inc. v. Johnson, 758 F.2d 54, 61 (2d Cir.1985) ("[The] [p]laintiffs' brief states only that defendant Frederick Johnson's statement
Next, Plaintiffs claim that their due process rights were violated. It is unclear from the SAC whether Plaintiffs seek to allege a procedural or substantive due process claim, but in their opposition, Plaintiffs appear to treat this as a procedural due process claim, and the Court will follow suit. (See Pls.' Mem. 48-49 (arguing that the remedies provided to remedy the alleged raid were insufficient).)
"The Due Process Clause does not protect against all deprivations
Plaintiffs argue that Rosario holds that the state procedures at issue are inadequate. The Court disagrees. In Rosario, the Supreme Court heard a challenge to the New York Election Law that required
In addition to their voting rights being diluted, Plaintiffs allege that they suffered other injuries that were not redressed, namely a decreased ability to collect campaign contributions, reputational harm, and electoral losses. However, "[t]he Fourteenth Amendment due process guarantee ... only extends to property claims to which an individual has a legitimate claim of entitlement." N.Y. State Nat'l Org. for Women v. Pataki, 261 F.3d 156, 164 (2d Cir.2001) (internal quotation marks omitted). Thus, "a purely speculative property interest," for example, a possible future license, cannot be the property interest at the root of a due process claim. Spinelli v. City of New York, 579 F.3d 160, 169 (2d Cir.2009) (noting that "[w]hile a possible future license involves a purely speculative property interest, once the government has granted a business license to an individual, the government cannot deprive the individual of such an interest without appropriate procedural safeguards" (alterations and internal quotation marks omitted)). For that reason, the Due Process Clause does not protect the right to win an election or the right to receive campaign contributions that Plaintiffs surmise that they would receive in the future because those interests are purely speculative.
Plaintiffs allege that Defendants impaired Plaintiffs' First Amendment right to free association. (See SAC ¶¶ 617-18.) In an election case, where a plaintiff alleges a First Amendment claim based on the violation of election law by state actors, rather than alleging that the election law itself is unconstitutional, the First Amendment analysis converges with the due process analysis. As the Second Circuit has explained, "[w]hen, as here, a plaintiff challenges a Board of Election decision [or the decision of other state actors relating to the election] not as stemming from a constitutionally or statutorily invalid law or regulation, but rather as contravening a law or regulation whose validity the plaintiff does not contest, there is no independent burden on First Amendment rights when the state provides adequate procedures by which to remedy the alleged illegality." Rivera-Powell, 470 F.3d at 469. In this case, as in Rivera-Powell, Plaintiffs' First Amendment claim is indistinguishable from their due process claim because Plaintiffs allege no different facts for their First Amendment claim and again rely on the allegedly illegal application of valid state election laws. See id. at 469 (explaining that because the plaintiff did not challenge any state laws, or the official rules of the board of election, the plaintiff's "First Amendment claim [was] inextricably intertwined with the question of whether the state afforded her procedurally adequate process"). "Because, for the reasons discussed above, [Plaintiffs'] due process claim fails, their First Amendment claim likewise fails." Id. at 470; see also Dekom, 2013 WL 5278019, at *8 (dismissing a First Amendment claim based on a violation of election law by state actors because that claim was virtually indistinguishable from the due process claim, and the process provided was sufficient); Marchant, 2013 WL 4407098, at *4 (same);
Because Plaintiffs' substantive constitutional claims fail, their § 1983 conspiracy claim must also be dismissed. See Droz v. McCadden, 580 F.3d 106, 109 (2d Cir.2009) ("Because neither of the underlying [§] 1983 causes of action can be established, the claim for conspiracy also fails."); Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 119 (2d Cir.1995) ("The district court dismissed this claim on the ground that a plaintiff alleging a § 1983 conspiracy claim must prove an actual violation of constitutional rights. In this we agree.").
Finally, Plaintiffs assert a claim for breach of fiduciary duty under state law. Because the Court dismisses all of Plaintiffs' federal claims, it declines to exercise supplemental jurisdiction over Plaintiffs' state law claims. See United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966) ("Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.").
For the following reasons, Defendants' Motions To Dismiss are granted. To the extent that Defendants move for attorneys' fees in connection with the instant action, (see Dkt. No. 237), this Motion is denied without prejudice in connection with the Court's previous ruling that all the substantive motions to dismiss would be addressed before turning to any possible motions for sanctions and fees, (see Dkt. No. 261). The Clerk of the Court is respectfully directed to terminate the pending Motions, (see Dkt. Nos. 207, 220, 227, 232, 236, 237, 241, 250), and to close this case.
SO ORDERED.
