Opinion
09 Civ. 5938 (JGK).
August 27, 2010
MEMORANDUM OPINION AND ORDER
The plaintiff, Stephen Dibbs, brings this pro se action under 42 U.S.C. § 1983. Dibbs alleges that New York's statutory scheme for nominating candidates for Supreme Court judgeships violates his First and Fourteenth Amendment rights by denying him the opportunity to participate meaningfully in the election of judges; by denying him the "right to associate" with candidates of his choosing; by discriminating among voters on the basis of their judicial district; and by preventing would-be opponents of judicial nominees from mounting effective opposition campaigns.
The Office of Court Administration and the New York Attdrney General, named as defendants in this action, move to dismiss the suit pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6) for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. Dibbs seeks leave to amend his complaint, and brings cross-motions (1) to transfer the case to the United States District Court for the Eastern District of New York and (2) for a declaration of sufficiency of service.
I
Under New York law, the state is divided into 12 judicial districts, and Supreme Court justices are elected to 14-year terms in each district. See N.Y. State Bd. of Elections v. Lopez Torres, 552 U.S. 196, 199 (2008). Political parties within the state select their candidates for the court by a convention composed of delegates elected by party members. Id. at 200. In a September "delegate primary," party members elect delegates from each of New York's assembly districts to attend the party's convention; delegates are placed on the ballot by obtaining the requisite number of signatures, usually 500, on a petition in the months leading up to the delegate primary. Id. The delegates elected in the primaries are uncommitted; they are not required to vote for any particular judicial nominee. Id.
The nominating conventions take place one to two weeks after the delegate primaries; there, the party within each judicial district selects its candidate or candidates to run in the district's general election. Id. at 200-01. The nominees selected at the conventions are automatically placed on the district's general election ballot, joined by any non-nominated candidates who are able to obtain a requisite number of signatures, usually 3,500 or 4,000, on a petition. Id. at 201.
II
On a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the allegations in the Complaint are accepted as true. Grandon v. Merrill Lynch Co., 147 F.3d 184, 188 (2d Cir. 1998). In deciding a motion to dismiss, all reasonable inferences must be drawn in the plaintiff's favor.Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995); Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir. 1989). The Court's function on a motion to dismiss is "not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient."Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). The Court should not dismiss the Complaint if the plaintiff has stated "enough facts to state a claim to relief that is plausible on its face." Twombly v. Bell Atl. Corp., 550 U.S. 544 (2007). A claim has facial plausibility when the plaintiff pleads factual content that allows the Court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). This pleading standard requires more than "an unadorned, the defendant unlawfully harmed me accusation." Id. at 1949 (citations omitted). "A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement." Id. at 1949-50 (internal quotations and citations omitted).
In their papers, the defendants treat their alleged immunity from suit under the Eleventh Amendment as a limitation on the subject matter jurisdiction of this Court. Were the defendants correct in this regard, the Court would be required to address the defendants' assertions of immunity before reaching the legal sufficiency of the pleadings. See Rhulen Agency, Inc. v. Alabama Ins. Guaranty Ass'n, 896 F.2d 674, 678 (2d Cir. 1990) ("Where . . . the defendant moves for dismissal under Rule 12(b)(1) as well as on other grounds, the court should consider the Rule 12(b)(1) challenge first since if it must dismiss the complaint for lack of subject matter jurisdiction, the accompanying defenses and objections become moot and do not need to be determined.") (internal quotation marks and citation omitted).
Both the Supreme Court and the Second Circuit Court of Appeals have on occasion referred to Eleventh Amendment immunity as a "jurisdictional bar." See, e.g., Seminole Tribe v. Florida, 517 U.S. 44, 73 (1996); Woods v. Rondout Valley Cent. Sch. Dist. Bd. of Educ., 466 F.3d 232, 237 (2d Cir. 2006). They have also, however, described it as an affirmative defense, see Wisconsin Dep't of Corr. v. Schacht, 524 U.S. 381, 389 (1998) ("[T]he Eleventh Amendment grants the State a legal power to assert a sovereign immunity defense should it choose to do so."); Woods, 466 F.3d at 238, and as implicating personal, as opposed to subject matter, jurisdiction, see Schacht, 524 U.S. at 394 (Kennedy, J., concurring).
For purposes of this case, it is sufficient to note that the Supreme Court has held, first, that states may waive Eleventh Amendment immunity, Lapides v. Bd. of Regents, 535 U.S. 613, 618 (2002), and second, that lower courts are not required to raise the issue of Eleventh Amendment immunity sua sponte, Schacht, 534 U.S. at 389. Both holdings are inconsistent with a conclusion that the Eleventh Amendment removes the states from the scope of the federal judicial power. See id.; Ins. Corp. of Ireland v. Compagnie des Bauxites des Guinee, 456 U.S. 694, 702 (1982) (holding that a party's consent cannot confer subject matter jurisdiction upon a court); Mansfield, Coldwater Lake Mich. Ry. Co. v. Swan, 111 U.S. 379, 382 (1884) (holding that a court must always raise on its own motion any defect in subject matter jurisdiction). Therefore, the Court is not required to take up the defendants' assertion of immunity under the Eleventh Amendment before reaching the issue of the sufficiency of the Complaint.
Nonetheless, it should be noted that the suit against the Office of Court Administration ("OCA") must be dismissed on the basis of its immunity from suit under the Eleventh Amendment. See Posr v. Court Officer Shield No. 207, 180 F.3d 409, 414 (2d Cir. 1999) ("[T]he State Office of Court Administration is an arm of the State and therefore immune.").
The plaintiff has failed to meet the applicable pleading standards with respect to each of the allegations in his Complaint. Liberally construed, the Complaint alleges that the defendants (1) prevented the plaintiff from "be[ing] inform[ed] of, or challeng[ing], or [s]peak[ing] against, or participat[ing] in or engag[ing] in any way with political speech" through the judicial election process, and denied him "the right to associate with politicians and judges," in violation of the First and Fourteenth Amendments; (2) denied would-be challengers a reasonable opportunity to mount opposition campaigns, in violation of the First and Fourteenth Amendments; (3) denied Dibbs adequate notice and "the due process of a full, fair and informed public election" by providing only six weeks' notice of the identity of party-nominated judicial candidates, in violation of the Due Process Clause of the Fourteenth Amendment; and (4) discriminated as between the voters in different judicial districts by "manipulating" the delegate primaries in some districts to be uncontested, in violation of the Equal Protection Clause of the Fourteenth Amendment.
A
Dibbs first alleges that he was prevented from participating meaningfully in judicial elections, by being required to select among candidates whom he did not prefer or about whom he had inadequate information in the general election. Dibbs alternately casts this as a violation of his speech rights or his associational rights under the First Amendment. Similarly, Dibbs charges that New York's system of judicial nominating conventions denies would-be challengers an opportunity to meaningfully oppose party-nominated candidates, in violation of their First and Fourteenth Amendment rights.Leaving aside the substantial issue of Dibbs's standing to raise the rights of would-be candidates, Dibbs cannot prevail on any of these claims, because they are without merit in view of the Supreme Court's decision in Lopez Torres. In that case, the Supreme Court upheld New York's judicial nominating convention system against First Amendment challenges brought by both non-party candidates and voters and identical to the challenges Dibbs brings here.
Dibbs protests that the decision in Lopez Torres was confined by its terms to adjudicating the claims of non-party candidates. He argues that the Court's failure to mention explicitly the claims of voters left the Court of Appeals' ruling as to those claims, to the effect that New York's judicial election system violated the constitutional rights of voters, undisturbed. See Lopez Torres v. N.Y. State Bd. of Elections, 462 F.3d 161, 187 (2d Cir. 2006). This argument is unavailing. The propriety of the Court of Appeals' ruling on the issue of voters' rights was explicitly raised and briefed by the parties in Lopez Torres. See Br. of Intervenor-Appellant, 2006 U.S. Briefs 766, *32-33. Against that procedural backdrop, the Supreme Court reversed the ruling of the Second Circuit Court of Appeals, and upheld the New York statutory election scheme, without exception. The Court's holding that the New York election law did not violate the constitutional rights of voters was no less clear for being implicit.
B
Dibbs's due process claim fares no better. In his Complaint, Dibbs alleges simply that he and other voters were "denied adequate[] Notice, and the Due Process of a full, fair and informed Public Election," Compl. p. 6, because party candidates are chosen "too close to the general election for voters to be informed or make an effective vote, or dissent," Compl. p. 8, and "[t]he short, six week time period from when a political party chooses [its] judicial candidates, to the General Election, does not give voters . . . due process," Compl. p. 9. Notably absent from Dibbs's Complaint, however, are allegations of specific facts tending to show, for example, that six weeks is an insufficient time for voters to obtain and digest information on judicial candidates relevant to the election. A complaint that relies on legal conclusions, devoid of factual support, cannot survive a motion to dismiss in the wake of Iqbal. See id. at 1949-50.
C
Finally, Dibbs's equal protection challenge also fails. Dibbs alleges that voters in his district were "treated differently from other similarly situated Assembly Districts where voters . . . had Contested Judicial Delegate races," because voters in districts with contested delegate races were given "some form of contest and participation." Compl. p. 7. Dibbs offers no plausible basis, however, for tracing the fact that any delegate from his district ran unopposed to an act or omission by any defendant. Dibbs's allegation that the Chairman of the New York State Democratic Party, Defendant Herman Farrell, "acted . . . to manipulate these races to be uncontested" is unsupported and, in any event, irrelevant in light of the Supreme Court's endorsement of judicial nominating conventions. See Lopez Torres, 552 U.S. at 206 ("Party conventions, with all their attendant 'smoke-filled rooms' and domination by party leaders, have long been an accepted manner of selecting party candidates.").
Accordingly, the defendants' motion to dismiss is granted.
III A
Dibbs cross-moves for a change of venue pursuant to 28 U.S.C. § 1404(a). Under that statute, a district court has discretion to order a change of venue where it is necessary "[f]or the convenience of parties and witnesses, in the interest of justice." 28 U.S.C. § 1404(a). Because the Complaint is dismissed, the motion to transfer is denied as moot.B
Dibbs also moves for a "declaration from the court as to the sufficiency of service." Pl. Cross-Motion p. 4. In fact, it appears that insufficiency of service would provide an alternate ground of dismissal with respect to many of the defendants, because only three defendants — the New York State Attorney General, the New York State Democratic Party, and the Office of Court Administration — were served. See 09-Civ.-5938, Doc. No. 2, Affirmation of Service of Peter D. Campbell, Oct. 26, 2009. Accordingly, were it not moot, the plaintiff's request for a declaration that service was sufficient as to the remaining defendants would be denied.
It appears that the plaintiff's process server additionally mailed a request for a wavier of service to the New York State Board of Elections, pursuant to Fed.R.Civ.P. 4, but that the defendant did not reply, and service was not subsequently effected. Accordingly, there was no valid service with respect to that defendant. See Fed.R.Civ.P. 4.
IV
Finally, Dibbs has moved for leave to amend his complaint for the purpose of adding additional defendants.Generally, leave to amend is freely granted in the absence of "evidence of undue delay, bad faith or dilatory motive on the part of the movant, undue prejudice to the opposing party, or futility." Monahan v. New York City Dep't of Corr., 214 F.3d 275, 283 (2d Cir. 2000); Foman v. Davis, 371 U.S. 178, 182 (1962). In the circumstances of this case, however, the proposed amendment would be futile. None of the amendments Dibbs proposes alters the substance of his case, which, as discussed above, is legally deficient. See Health-Chem Corp. v. Baker, 915 F.2d 805, 810 (2d Cir. 1990). Accordingly, leave to amend is denied.
CONCLUSION
For the reasons described above, the defendant's motion to dismiss is granted, and the plaintiff's cross-motions are denied. To the extent that the plaintiff makes arguments not specifically addressed in this Order, the Court finds them to be either moot or without merit. Because the plaintiff has twice sought to amend his Complaint without improving on the allegations contained therein, the dismissal is with prejudice.
The Clerk is directed to enter judgment dismissing the Complaint and closing this case.