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denying motion to amend on ground of futility without issuing report-recommendation
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No. 96-CV-2023 (LEK/RFT)
October 17, 2001
JOSEPH HEIN, ESQ., Attorney for Plaintiff, 6468 French's Hollow Road, Altamont, N Y 12009-9404.
HON. ELIOT SPITZER, Attorney General for the State of New York, KAREN MARCOUX MANKES, ESQ., Assistant Attorney General, Attorney for Defendant, Department of Law, The Capitol, Albany, New York 12224.
MEMORANDUM-DECISION AND ORDER
Presently pending is plaintiff's motion for leave to file an amended complaint pursuant to Fed.R.Civ.P. 15(a) to add a claim under the Rehabilitation Act, 29 U.S.C. § 701-797b. Docket nos. 84 85. Defendant opposes the motion. Docket nos. 87-89. For the reasons that follow, plaintiff's motion is denied.
PROCEDURAL HISTORY
On December 26, 1996, plaintiff Joseph C. Kilcullen ("Kilcullen") filed this action alleging defendant New York State Department of Transportation ("defendant" or "NYSDOT") violated the anti-discrimination provisions of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. See docket no. 1. On August 6, 1998, NYSDOT moved for summary judgment pursuant to Fed.R.Civ.P. 56(b) claiming, inter alia, that it is immune from suit under the ADA pursuant to the Eleventh Amendment. Docket nos. 42-46. Kilcullen opposed the motion and cross-moved for partial summary judgment. Docket nos. 48-53. In a memorandum-decision and order dated January 19, 1999, the Honorable Lawrence E. Kahn granted defendant's motion and denied plaintiff's motion, holding that the ADA did not validly abrogate Eleventh Amendment immunity. Docket no. 69. On January 10, 2000, the Second Circuit reversed Judge Kahn's decision and remanded the action for further proceedings consistent with its decision in Muller v. Costello, 187 F.3d 298 (2d Cir. 1999) (ADA validly abrogated Eleventh Amendment immunity).
In a companion case, Kilcullen v. New York State Dep't of Labor ("Kilcullen II"), the Second Circuit held that the Rehabilitation Act validly abrogated Eleventh Amendment under section 5 of the Fourteenth Amendment and also that New York waived immunity by accepting condition federal funds. 205 F.3d 77 (2d Cir. 2000), abrogation rec'd by Gracia v. S.U.N.Y. Health Sciences Ctr. of Brooklyn, ___ F.3d ___, 2001 WL 1159970 (2d Cir. Sept. 26, 2001).
Following the Second Circuit's decisions in Muller and Kilcullen II, the Supreme Court held in Board of Trustees of the Univ. of Alabama v. Garrett, that Title I of the ADA did not validly abrogate Eleventh Amendment immunity. 531 U.S. 356 (2001) The Court did not decided, however, whether Title II of the ADA or the Rehabilitation Act validly abrogated Eleventh Amendment immunity. See Garrett, 531 U.S. at n. 1. Kilcullen's motion for leave to amend the complaint followed.
DISCUSSION
Fed.R.Civ.P. 15(a) states, in pertinent part, that leave to amend the complaint should be "freely given when justice so requires." Indeed, leave to amend should be denied only in the face of undue delay, bad faith, undue prejudice to the nonmovant, futility of amendment or where the movant has repeatedly failed to cure deficiencies in previous amendments. Foman v. Davis, 371 U.S. 178, 182 (1962); Day v. Morgenthau, 909 F.2d 75, 78 (2d Cir. 1990). Furthermore, district courts are vested with broad discretion to grant a party leave to amend the pleadings. See Local 802, Assoc. Musicians of Greater N.Y. v. Parker Meriden Hotel, 145 F.3d 85, 89 (2d Cir. 1998). Here, Kilcullen seeks to add a claim under the Rehabilitation Act. NYSDOT opposes the proposed amendment as futile.
A proposed amendment is futile where it fails to cure deficiencies in the original complaint, Acito v. Imcera Group, Inc., 47 F.3d 47, 54-55 (2d Cir. 1995), or where it would not survive a motion to dismiss. Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001). Therefore, to determine whether a proposed amendment is futile, it must be analyzed under the same standard as a Fed.R.Civ.P. 12(b)(6) motion to dismiss. See id. Here, Kilcullen contends that since the Supreme Court's decision in Garrett left open the question of whether the Rehabilitation Act validly abrogated Eleventh Amendment immunity, the Second Circuit's decision in Kilcullen II is controlling.
Since Kilcullen filed his memorandum in support of his motion for leave to amend the complaint, however, Kilcullen II was abrogated by Garcia. See footnote 1, supra. In Garcia, the Second Circuit held that in enacting Title II of the ADA, Congress exceeded its power under section 5 of the Fourteenth Amendment and therefore, failed to validly abrogate Eleventh Amendment immunity. Id. at *9. The Second Circuit further held that since "[section] 504 of the Rehabilitation Act and Title II of the ADA offer essentially the same protections for people with disabilities, [the] conclusion that Title II of the ADA as a whole exceeds Congress's authority under [section] 5 of the Fourteenth Amendment applies with equal force to [section] 504 of the Rehabilitation Act." Id. at 10.
As noted in Garcia, however, the Rehabilitation Act was also enacted pursuant to Congress' Article I Spending Clause authority. Id. (citing U.S. Const. art. I, § 8, cl. 1). Thus, Congress may condition federal funds on a waiver of Eleventh Amendment immunity. Indeed, the Rehabilitation Act specifically contains such a condition. See 42 U.S.C. § 2000d-7; see also Garcia, 2001 WL 1159970, at *10. Nonetheless, a waiver of Eleventh Amendment immunity must be an "intentional relinquishment or abandonment of a known right or privilege." College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 682 (1999) (citation omitted); see also Garcia, 2001 WL 1159970, at *11. In Garcia, the Second Circuit held that at the time New York State accepted federal funds, "Title II of the ADA was reasonably understood to abrogate New York's [ Eleventh Amendment] immunity under Congress's Commerce Clause authority." 2001 WL 1159970, at *11. Furthermore, since Title II of the ADA and section 504 of the Rehabilitation Act are "virtually identical," New York State reasonably believed it did not knowingly waive immunity by accepting federal funds. Id.
Garcia is controlling here. An argument may be made that New York State knowing waives Eleventh Amendment immunity for claims brought under the Rehabilitation Act if it continues to accept federal funds. See Garcia, 2001 WL 1159970, at *11 n. 4. The events involved in Kilcullen's complaint, however, involve a time period in which New York State reasonably believed it had already lost immunity under section 5 of the Fourteenth Amendment and Title II of the ADA. Therefore, Kilcullen is barred by the Eleventh Amendment from asserting a claim for damages under the Rehabilitation Act and his proposed amendment is futile.
WHEREFORE, it is hereby
ORDERED that Crosby's motion for leave to amend the complaint is DENIED.
IT IS SO ORDERED.