J. GARVAN MURTHA, District Judge.
Plaintiff Melvin B. Neisner, Jr. ("Neisner"), a licensed attorney acting pro se, sues the Town of Killington ("Killington" or the "Town") alleging a violation of the Freedom of Information Act and multiple state law claims. (Doc. 19 ("Am. Compl.").) Purporting to sue both individually and on behalf of all other taxpayers in the Town of Killington, Neisner seeks a declaratory judgment, a permanent injunction, and compensatory and punitive damages. Killington moves to dismiss the amended complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). (Doc. 22.) Neisner opposes the motion (Doc. 23) and Killington filed a reply (Doc. 24). For the reasons discussed below, Killington's motion to dismiss is granted in part and denied in part.
This case originated in state court in December 2015. (Doc. 9 ("Compl.").) In early January 2016, the Town removed the case to this Court because the original complaint alleged violations of Neisner's due process rights under the United States Constitution. (Doc. 1.) Following the Town's January motion to dismiss (Doc. 7), Neisner moved to amend his complaint and to remand the case to state court (Docs. 12, 14). The proposed amended complaint dropped the due process claim but added a claim under the Freedom of Information Act. In April, the Court granted the motion to amend, denied the motion to remand because of the federal claim asserted in the amended complaint, and denied without prejudice Killington's motion to dismiss in light of the filing of the amended complaint.
The following facts are assumed to be true for purposes of the pending motions and are gleaned from the amended complaint. Neisner is a resident, voter and taxpayer in the Town of Killington. Killington is a chartered and organized town in Vermont with a Selectboard authorized with the general supervision of the affairs of the town.
In Count IV, Neisner alleges a violation of the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. (Am. Compl. ¶¶ 31-33.) He alleges the Town is subject to the provisions of FOIA with respect to public records information requests.
In Counts I-III and V-VII, Neisner alleges various state law claims including: breach of fiduciary duty concerning the hiring and retention of a Town Manager (Am. Compl. ¶¶ 5-14); a "Complaint for permanent injunction and declaratory judgment" regarding a sewer bond and park and ride lease (Am. Compl. ¶¶ 15-22); a claim under Vermont's Public Records Act, Vt. Stat. Ann. tit. 1, § 317, and an "Appeal of Decision" under Vt. Stat. Ann. tit. 1, § 319 (Am. Compl. ¶¶ 23-30); a fraud claim regarding missing and misleading information in Town Annual Reports (Am. Compl. ¶¶ 34-37; a damage to real property claim (Am. Compl. ¶¶ 38-42); and a defamation and libel claim (Am. Compl. ¶¶ 43-50).
The Court is normally required to read a pro se plaintiff's complaint liberally and to construe it to raise the strongest arguments it suggests.
A motion to dismiss tests the legal rather than the factual sufficiency of a complaint.
Irrespective of whether they are drafted pro se, all complaints must contain at least "some minimum level of factual support for their claims."
Neisner alleges a violation of the Freedom of Information Act, 5 U.S.C. § 552, stemming from the Town Selectboard and Town Manager's failure to provide requested documents and alleged willful destruction of documents. (Am. Compl. ¶¶ 32-33.) He baldly asserts the Town is subject to the provisions of FOIA with respect to public records information requests.
FOIA provides the public the right to request access to records from any federal agency. "FOIA confers jurisdiction on the district courts `to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld.'"
Since Plaintiff's sole federal claim is being dismissed with prejudice, his remaining state claims will also be dismissed. A district court "may decline to exercise supplemental jurisdiction" where it has "dismissed all claims over which it has original jurisdiction." 28 U.S.C. § 1367(c)(3). This determination is left to the discretion of the trial court.
Neisner requested that, if Defendant's motion to dismiss were granted as to his federal claim, the case be remanded to state court. (Doc. 13 at 4.) The factors of judicial economy, convenience, fairness, and comity,
The Town of Killington's motion to dismiss for failure to state a claim (Doc. 22) is granted in part. Neisner's claim for violation of the federal Freedom of Information Act is dismissed with prejudice. The Court declines to exercise supplemental jurisdiction over Neisner's remaining state-law claims under 28 U.S.C. § 1367(c)(3), and, accordingly, they are remanded to state court.
SO ORDERED.