Opinion
00-CV-0756E(F).
February 16, 2001
ATTORNEYS FOR THE PLAINTIFF: John P. Bartolomei, Esq., c/o Bartolomei Associates, 335 Buffalo Ave., Niagara Falls, N.Y. 14303.
ATTORNEYS FOR THE DEFENDANT: Militello Militello Realty — J. Agostinelli, Esq. and Gerald T. Walsh, Esq., c/o Zdarsky, Sawicki Agostinelli, 404 Cathedral Place, 298 Main St., Buffalo, N.Y. 14202 Emmes — Paul Rubin, Esq., c/o Herrick, Feinstein, Two Park Ave., New York, N.Y. 10016 438 Main St., Delaware North, Jacobs, Nicol, Solar — Kevin M. Kearney, Esq., c/o Hodgson, Russ, Andrews, Woods Goodyear, One M T Plaza, Suite 2000, Buffalo, N.Y. 14203
BERC, Delisle, Masiello — Lawrence J. Vilardo, Esq., c/o Connors Vilardo, 1020 Liberty Bldg., 420 Main St., Buffalo, N.Y. 14202 City of Buffalo — David R. Hayes, Esq., Asst. Corporation Counsel, 1100 City Hall, Buffalo, N.Y. 14202
ECIDA — Patrick B. Naylon, Esq., c/o Saperston Day, 800 First Federal Plaza, Rochester, N.Y. 14614
Ciminelli Development, Ciminelli Management, Paul Ciminelli — Anthony J. Latona, Esq., c/o Jaeckle Fleischmann Mugel, 800 Fleet Bank Bldg., Twelve Fountain Plaza, Buffalo, N.Y. 14202
MEMORANDUM and ORDER
Plaintiff filed this action August 29, 2000 claiming, inter alia, that defendants had conspired to defraud it of its civil rights. Jurisdiction has been premised on 28 U.S.C. § 1331, 1343 and 1367 and on 42 U.S.C. § 1981, 1982, 1983, 1985, 1986 and 1988. Presently before this Court are plaintiff's motion to amend the Complaint, several motions to dismiss brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("FRCvP") by defendants James Militello and James R. Militello Realty Inc. (collectively "the Militello defendants"), 438 Main Street, Inc., Delaware North Companies, Inc., Jeremy Jacobs, Andrew Nicol and Solar Sportsystems, Inc. (collectively "the Delaware North defendants"), Ciminelli Development Co., Inc., Ciminelli Management Corp. and Paul Ciminelli (collectively "the Ciminelli defendants"), the Buffalo Economic Renaissance Corp., Alan H. Delisle and Anthony M. Masiello (collectively "the BERC defendants") and the City of Buffalo and several motions for sanctions brought pursuant to FRCvP 11 by the Delaware North defendants, the City of Buffalo and the BERC defendants. Plaintiff's motion to amend will be denied, the motions to dismiss will be granted, the motion for sanctions will be granted and this Court will dismiss the remainder of the action as against the remaining defendants for failure to state any cognizable federal claim.
The following facts are drawn from the Complaint in accordance with the standards governing FRCvP 12(b)(6) motions to dismiss. See Cooper v. Parksky, 140 F.3d 433, 440 (2d Cir. 1998) (noting that, in ruling on a FRCvP 12(b)(6) motion, federal district courts are "required to accept as true all factual allegations in the complaint" and must "consider documents attached to or incorporated by reference in the complaint"). Plaintiff, a New York corporation, states that it purchased certain real property ("the Property") in the City of Buffalo December 30, 1994 from defendant Solar Sportsystems, Inc. — allegedly a subsidiary of defendant Delaware North Companies, Inc. — for a purchase price of $6,500,000, of which $6,500,000 was satisfied by the execution of a Promissory Note and a Mortgage between plaintiff and defendant 438 Main Street, Inc., allegedly a subsidiary of defendant Delaware North Companies, Inc. Compl. ¶¶ 5, 20-22 Exs. B (promissory note) C (mortgage agreement). Plaintiff argues that it was "induced" to enter into such purchase because defendant Delaware North Companies, Inc. agreed to lease back sixty-percent of the property from plaintiff "for a term of 5 years plus two renewal terms." Compl. ¶¶ 23-24 Ex. D ("Official Lease Agreement"). Such lease commenced on the first day of January, 1995 and was to end December 31, 1999. Compl. ¶ 27.
Following the purchase of the Property, plaintiff states that it expended over $5,400,000 to renovate the Property's office space, principally for defendant Delaware North Companies, Inc.'s benefit, and performed various other improvements. Compl. ¶ 25. In September 1998 and before the end of defendant Delaware North Companies, Inc.'s five-year lease, plaintiff was informed by defendant James R. Militello Realty, Inc. that it "would have to respond to a Request for Proposals for the lease renewal and that [defendant Delaware North Companies, Inc.] would be considering other properties as well as [the Property] for its offices." Compl. ¶ 28. For reasons not altogether clear, defendant Delaware North Companies, Inc. extended its lease term with plaintiff to February 28, 2000, such extension being executed on June 1, 1999. Compl. ¶ 29. In light of such extension and because defendant Delaware North Companies, Inc. had expressed interest in further renewing its lease, plaintiff states that it, "in further anticipation of [defendant Delaware North Companies, Inc.'s] Lease renewal, expended $380,000.00 to improve the air conditioning system" at the Property. Compl. ¶¶ 29-31.
Unbeknownst to plaintiff, however, defendant Militello, who was also a Director of defendant Buffalo Economic Renaissance Corp., was allegedly working in "concert" with the other above-captioned defendants to arrange for defendant Delaware North Companies, Inc. to be given an United States Department of Housing and Urban Development ("HUD") "Section 108 Loan" from Buffalo Economic Renaissance Corp., a public benefit corporation, in an "amount of $8.6 Millions [ sic] at a low interest rate of 4.0% per annum, a $1.2 Million grant (gift) from the State of New York and [to be granted] other financial incentives totaling approximately $12 Million to relocate [defendant Delaware North Companies, Inc.'s] offices two blocks away in the Key Centre South Tower." Compl. ¶¶ 17, 33. Defendant 60 Key Centre Associates, LLC, was also "provided with an additional $5 Million for [the Delaware North defendants'] relocation there." Compl. ¶ 33. The Complaint alleges that, among others, defendant 60 Key Centre Associates, LLC, the Ciminelli defendants and defendant Emmis Management Co., Inc. had acquired ownership interests in the Key Centre South Tower in 1996. Plaintiff states that, in order to provide these "gifts and incentives" to defendant Delaware North Companies, Inc., "the Defendants had to represent that "but for' the grants and loans [defendant Delaware North Companies, Inc.] would leave the State of New York." Compl. ¶ 34. Plaintiff further states that "[s]uch representations were false because [defendant Delaware North Companies, Inc.] had always intended to stay in Buffalo which was a fact known to Militello." Compl. ¶ 34. The net result of obtaining such "gifts and subsidiaries [sic] and loans made by the Defendants and caused to be made by Defendants from the State of New York" was that defendant Delaware North Companies, Inc. "did not renew its lease at [the] Property but, rather, entered into a lease at the Key Centre South Tower." Compl. ¶ 40. An additional result of such non-renewal is that, without receiving any rental income from defendant Delaware North Companies, Inc., plaintiff is now unable to pay its mortgage to defendant 438 Main Street, Inc. and make the necessary tax payments to defendant City of Buffalo. Compl. ¶¶ 45-46. Such lack of payments has led to the initiation of a mortgage foreclosure proceeding against plaintiff wherein defendant Militello has been appointed Receiver of the Property and the threat of a tax foreclosure by defendant City of Buffalo. Compl. ¶¶ 44, 46. Plaintiff alleges that defendants "did this after plotting to take the Plaintiff's Property" and "under cover of law and with the improper use of the authority of the City of Buffalo." Compl. ¶¶ 54(i), 55.
In the Complaint, plaintiff states its belief that such facts support eighteen claims, of which twelve are purported to have a federal basis. COUNT ONE of the Complaint, brought pursuant to section 1981, alleges that the defendants' action "in plying [defendant Delaware North Companies, Inc.] with financial incentives to move to another property owned by [defendant 60 Key Centre Associates, LLC] was and is a deprivation of the Plaintiff's right to be treated equally under the Fourteenth Amendment." Compl. ¶ 57. COUNT TWO, also brought pursuant to section 1981, alleges that the "interference with the Plaintiff's tenant * * * [has] prevented Plaintiff * * * from developing and utilizing its Property to its fullest and most valuable use [and] constitutes an interference with Plaintiff's right to engage in commerce." Compl. ¶ 59. COUNT THREE, brought pursuant to section 1983, alleges that the acts of defendants have diminished the value of plaintiff's property and have prevented it from developing the Property, and constitutes "inverse or defacto condemnation." Compl. ¶ 61. COUNT FOUR, also brought pursuant to section 1983, alleges that the defendants' "conspiracy to take Plaintiff's property * * * constitutes a deprivation of the Plaintiff's constitutional right to be treated equally under the law." COUNT FIVE, brought pursuant to section 1985, alleges that defendants schemed and conspired "to misuse the City's tax foreclosure authority and to improperly use HUD funds and to deprive Plaintiff of its constitutional right to equal protection under the law" and that all defendants knew of "said conspiracy." Compl. ¶ 66. COUNT SIX, brought pursuant to section 1983, alleges that defendants' "conspiracy to diminish the value of Plaintiff's Property constitutes a conspiracy to take Plaintiff's Property without payment of just compensation * * *." Compl. ¶ 69. COUNT SEVEN, also brought pursuant to section 1983, alleges that defendants' actions violated plaintiff's rights to due process of law. Compl. ¶ 72. COUNTS EIGHT and NINE contain some general allegations regarding the conspiratorial and "improper and unconstitutional purpose of making a loan and grant of City funds" to defendant Delaware North Companies, Inc., and that such precipitated the "improper foreclosure proceedings" against the Property." Compl. ¶¶ 74, 76-77. COUNT TEN, brought pursuant to section 1985, claims that the "improper and unconstitutional purpose of making a loan and grant of City funds" to defendant Delaware North Companies, Inc. was to place plaintiff in default on its mortgage so that foreclosure proceedings could be be brought. Compl. ¶ 79. COUNTS ELEVEN and TWELVE, brought pursuant to section 1986, allege that each defendant either participated in or had knowledge of the aforementioned "conspiracy." Compl. ¶¶ 81, 83.
Inasmuch as COUNTS EIGHT and NINE of the Complaint do not appear to be independent causes of action and are, in fact, duplicative of plaintiff's other asserted grounds for relief, such will not be expressly addressed further.
FRCvP 15(a) provides that leave to amend a complaint "shall be freely given when justice so requires" and whether to grant such leave is a within the trial court's discretion. See Zahra v. Town of Southhold, 48 F.3d 674, 685 (2d Cir. 1995). Where such amendment would be futile, however, leave should be denied. See Fornan v. Davis, 371 U.S. 178 (1962). In bringing its motion to amend the Complaint, plaintiff desires to convert all references in the Complaint from 42 U.S.C. § 1981 to 42 U.S.C. § 1983 (effectively converting the section 1981 claims in COUNT ONE and COUNT TWO into section 1983 claims), delete paragraphs 73-76 (eliminating COUNT EIGHT), 78-79 (eliminating COUNT TEN) and 82-83 (eliminating COUNT TWELVE) and to make a number of other typographical corrections. Bartolomei Aff. ¶¶ 67-69, 111, 120(b). Nevertheless and in light of defendants' motions to dismiss, such application will be denied because the allowance of these changes would be futile. As will be explained below, plaintiff has failed to state any cognizable federal claim in any portion of the Complaint and such amendments do not remedy its inherent deficiencies.
Briefly stated, plaintiff's section 1981 claims cannot succeed because a corporation itself cannot be a member of a racial minority. Moreover and even if this Court were to construe the Complaint's aforementioned section 1981 claims as section 1983 claims pursuant to plaintiff's motion to amend, COUNTS ONE and TWO would nonetheless still be dismissed with prejudice. In particular, COUNT TWO alleges deprivations of plaintiff's Commerce Clause and First Amendment rights but the Complaint nowhere sets forth any statement of those claims showing that plaintiff is entitled to relief thereunder. FRCvP 8(a)(2). Such vacuous pleading is especially egregious with regard to plaintiff's First Amendment claim inasmuch as such claim is only mentioned in the caption to COUNT TWO and there are no further allegations relating to First Amendment rights in the body of the Complaint. Insofar as COUNT ONE's equal protection allegation is concerned, construing such to be a section 1983 claim would only duplicate the Complaint's remaining section 1983 claims and, for the reasons why the latter must be dismissed, would not state a claim upon which relief can be granted.
Section 1983 states, in relevant part, that "[e]very person who, under color any statute, ordinance, regulation, custom, or usage, of any State[,] * * * subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law suit in equity, or other proper proceeding for redress * * *." Inasmuch as section 1983 itself creates no substantive rights and provides only a procedure for redress for the deprivation of rights created elsewhere, a proper section 1983 claim requires that plaintiff allege that defendants were acting under color of state law and that such actions deprived plaintiff of a federal right. Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999). Examining the latter element — the deprivation of a federal right — first, there is no question but that COUNTS ONE (to the extent such is construed to be a section 1983 claim), THREE, FOUR, SIX and SEVEN fail because plaintiff has not alleged anything remotely approaching the deprivation of a federal right.
To establish either an inverse condemnation or taking claim, plaintiff must have alleged that government has somehow directly appropriated or "invaded" its property, or that government has exercised its regulatory powers in such a manner that is, in practice, confiscatory with regard to its property. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1014-1015 1027-1030 (1992). In other words, plaintiff must allege facts showing that governmental action has deprived it of some protected property interest. Insofar as plaintiff has not alleged that the government has physically occupied the Property its inverse condemnation claim and taking claim are of the "regulatory" variety and rest on a showing that "government regulation and its economic effect on the property owner render the regulation substantially equivalent to an eminent domain proceeding and, therefore, require the government to pay compensation to the property owner." Southview Assoc. v. Bongartz, 980 F.2d 84, 93 n. 3 (2d Cir. 1992). A review of the Complaint reveals no such claim. In this regard, plaintiff neither asserts the denial of any economically viable use of the Property nor claims any government regulation substantially equivalent to that of an eminent domain proceeding over any interest plaintiff has in the Property. Rather, plaintiff's position is that an inverse condemnation or taking is presented by defendant Delaware North Companies, Inc.'s receipt of certain governmental benefits that plaintiff did not receive, which receipt resulted in defendant Delaware North Companies, Inc.'s move to the Key Centre South Tower and deprived plaintiff of a renewed and continuing tenancy in the Property. However objectionable such benefits and incentives may be to plaintiff, their receipt nonetheless does not state a claim for any type of taking. Moreover and even this Court were to assume that plaintiff's prospective continuing lease by defendant Delaware North Companies, Inc. somehow constituted a type of property interest capable of being taken by the government, the fact that such defendant moved after the lease had expired renders such interest a nullity — i.e., plaintiff no longer had any interest in such lease because, by its terms and according to the Complaint, the lease term had ended. It is also pertinent to note that, insofar as such claim can be construed to allege that plaintiff was deprived of certain governmental benefits, nowhere in the Complaint is it alleged that plaintiff had applied for and been denied similar benefits. Plaintiff merely alleges that it had anticipated that defendant Delaware North Companies, Inc. would renew its lease. To have a property interest in these types of benefits, plaintiff must have "more than an abstract need or desire for [them]. [Plaintiff] must have more than a unilateral expectation of it. [Plaintiff] must, instead, have a legitimate claim of entitlement to it." Board of Regents v. Roth, 408 U.S. 564, 577 (1972). Under the facts as alleged in the Complaint, plaintiff had neither a legitimate claim to the lease's renewal nor a legitimate claim to any governmental incentives. Accordingly and because it is not alleged that plaintiff was eligible for any type of benefit and because plaintiff had no enforceable claim to having Delaware North Companies, Inc. renew its lease with plaintiff, no type of taking has been alleged in the Complaint and COUNTS THREE and SIX fail to state a claim upon which relief can be granted and will be dismissed with prejudice.
It must also be pointed out that an "established prerequisite to asserting a [takings] claim * * * is that the landowner first seek and be denied adequate compensation from the state, provided the state has `a reasonable, certain and adequate provision for obtaining compensation at the time of the taking.'" Vaizburd v. U.S., 90 F. Supp.2d 210, 217 (E.D.N.Y. 2000) (quoting Williamson Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 194 (1985)); see also Villager Pond, Inc. v. Town of Darien, 56 E3d 375, 379-380 (2d Cir. 1995) (stating that, "before a plaintiff may assert a federal takings claim," such party must first seek compensation from the state if the state has a reasonable, certain and adequate provision for obtaining compensation). As pointed out by the Militello defendants, "the State of New York has established remedies for just compensation claims, under New York Eminent Domain Procedures Law § 101 et seq. and [Civil Practice Law and Rules] Article 78, that meet all constitutional requirements." Militello Memorandum of Law at 12; see also Vaizburd, at 217 (noting that New York provides two such reasonable, certain and adequate provisions for obtaining compensation). Inasmuch as plaintiff has not attempted to seek compensation through such methods, it cannot now assert that its claim cannot be adequately compensated pursuant to state law. Plaintiff's takings claim may thus dismissed as unripe.
To succeed on its claim for a violation of due process rights — as asserted in COUNT SEVEN of the Complaint —, plaintiff must have alleged that it possessed a constitutionally protected property interest and that defendants deprived it of that interest without due process of law. Muller Tours, Inc. Vanderhoef, 13 F. Supp.2d 501 (S.D.N.Y. 1998). "In order to establish a constitutionally cognizable property interest, a litigant must demonstrate a legitimate claim of entitlement to the benefit in question." Crowley v. Courville, 76 E3d 47, 52 (2d Cir. 1996). Insofar as plaintiff alleges that it had a constitutionally protected property interest in the lease with defendant Delaware North Companies, Inc., the facts as alleged in the Complaint do not support such a contention. The Complaint plainly indicates that the lease provided such defendant with an option to renew, not an obligation to do so. When defendant Delaware North Companies, Inc. chose not to exercise this option, its choice cannot be said to have deprived plaintiff of any constitutionally cognizable properly interest. Insofar as plaintiff alleges that it is was not afforded "[d]ue process in having the opportunity to make application for grants and subsidies" — see Memorandum in Opp'n at 21, — such claim fails for the reasons articulated previously with regard to the dismissal of plaintiff's takings claim i.e., plaintiff must have a legitimate claim of entitlement to such grants and subsidies and, under the facts as alleged in the Complaint, no such legitimate claim of entitlement can be said to exist. Accordingly, COUNT SEVEN of the Complaint must be dismissed with prejudice for failing to state a claim upon which relief can be granted.
Internal quotation marks omitted.
Plaintiff's equal protection claim fares no better. "The Equal Protection Clause of the Fourteenth Amendment commands that no State shall `deny to any person within its jurisdiction the equal protection of the laws,' which is essentially a direction that all persons similarly situated should be treated alike" — Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985) — and, as a corporation organized pursuant to the laws of New York State, plaintiff is considered to be "a person under the Fourteenth Amendment and is entitled to Equal Protection." Muller Tours, Inc., at 507. The gravamen of plaintiff's equal protection claim is that, by providing defendant Delaware North Companies, Inc. "with financial incentives to move to another property," plaintiff's right to be treated equally under the Fourteenth Amendment was violated by defendants. See Compl. ¶¶ 57, 63, 74, 76. Such allegation alone, however, does not state an equal protection claim. A valid equal protection claim brought pursuant to section 1983 requires that "a plaintiff must charge a governmental officer `not only with deliberately interpreting a statute against the plaintiff, but also with singling him out alone for that misinterpretation.' * * * To establish such intentional or purposeful discrimination, it is axiomatic that a plaintiff must allege that similarly situated persons have been treated differently." Gagliardi v. Village of Pawling, 18 F.3d 188, 193 (2d Cir. 1994). With regard to allegations of any such similarly situated persons which show the existence of class animus, the Complaint is deficient. For example and as was stated previously, there are no allegations that plaintiff had applied for but had been denied incentives similar to that which was granted to another similarly situated person, including such received by any defendant. In this regard, plaintiff's assertion that "it could be argued that the Compliant establishes that the Plaintiff falls into a class of building owners or commercial landlords in the City of Buffalo who are protected by the requirement that they be afforded equal treatment by the governing authorities or by the government grant agencies or loan agencies or the real property tax departments" is simply unavailing. See Memorandum in Opp'n at 20. Such conjecture does not remedy the Complaint's patent failure to allege that plaintiff had been treated differently than other similarly situated persons and that such treatment had been motivated by considerations barred by the Fourteenth Amendment. Moreover, the fact that plaintiff admittedly never applied for governmental incentives is further preclusive of the instant claim because a "plaintiff must be personally and adversely affected by an alleged event in order to have standing to bring a lawsuit in federal court." Frasier v. U.S. Dept. of Health and Human Servs., 779 F. Supp. 213, 223 (N.D.N.Y 1991). Inasmuch as plaintiff never applied for such benefits and incentives and could not have been therefore denied such benefits and incentives, plaintiff "has not yet personally suffered an injury which this court can redress" and has no standing to pursue this particular cause of action. Ibid. Accordingly, COUNT FOUR — and, to the extent such is construed to allege an equal protection claim, COUNT ONE — of the Complaint will be dismissed with prejudice for failing to state a claim upon which relief can be granted.
Internal quotation marks and citations omitted.
Even assuming the existence of some deprivation' of a federal right, plaintiff's section 1983 claims also fail as against the Delaware North defendants and the Ciminelli defendants because plaintiff has not alleged facts showing that such defendants were acting under color of law. While a "private individual may be subject to liability under this section if he or she [or it] willfully collaborated with an official state actor in the deprivation of the federal right" — Dwares v. City of New York, 985 E2d 94, 98 (2d Cir. 1993) —, "the complaint must allege facts demonstrating that the private entity acted in concert with the state actor to commit an unconstitutional act." Spear v. Town of West Hartford, 954 F.2d 63, 68 (2d Cir. 1992). "Thus, complaints containing only conclusory, vague, or general allegations that the defendants have engaged in a conspiracy to deprive the plaintiff of [its] constitutional rights are properly dismissed; `[d]iffuse and expansive allegations are insufficient, unless amplified by specific instances of misconduct.'" Dwares, at 100 (quoting Ostrer v. Aronwald, 567 F.2d 551, 553 (2d Cir. 1977)). In the present action, plaintiff asserts nothing more than that those defendants did generally agree and conspire with each other to "deprive Plaintiff of [its] constitutional rights" through the procurement of certain government benefits and incentives. Memorandum in Opp'n at 20. The mere incantation of the word "conspiracy," however, is not some magical talisman by which an otherwise innocuous set of facts becomes actionable under section 1983. Insofar as the instant Complaint does not contain allegations which, if true, would support plaintiff's theory that the Delaware North defendants and the Ciminelli defendants participated in a conspiracy to deprive it of constitutional rights, plaintiff has not properly alleged that such defendants acted under color of law and a conspiracy claim under section 1983 as against them must fail.
Section 1985 states, in relevant part, that "[i]f two or more persons in any State or Territory conspire * * * for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws" or "if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators." 42 U.S.C. § 1985(3). "To state a cause of action under § 1985(3), a plaintiff must allege (1) a conspiracy (2) for the purpose of depriving a person or class of persons of the equal protection of the laws, or the equal privileges and immunities under the laws; (3) an overt act in furtherance of the conspiracy; and (4) an injury to the plaintiff's person or property, or a deprivation a right or privilege of a citizen of the United States." Thomas, at 146. "Furthermore, the conspiracy must also be motivated by `some racial or perhaps otherwise class-based, invidious discriminatory animus behind the conspirators' action.'" Ibid. (quoting Mian v. Donaldson, Lufkin Jenrette Secs., 7 F.3d 1085, 1088 (2d Cir. 1993)). Section 1985(3) does not, however, "reach conspiracies motivated by economic or commercial animus." United Broth. of Carpenters v. Scott, 463 U.S. 825, 837 (1983). Relatedly, section 1986 "provides a cause of action against anyone who `having knowledge that any of the wrongs conspired to be done and mentioned in section 1985 are about to be committed and having power to prevent or aid, neglects to do so.'" Mian, at 1088 (quoting Katz v. Morgenthau, 709 F. Supp. 1219, 1236 (S.D.N.Y 1989)). Consequently, a section 1986 claim "must be predicated upon a valid § 1985 claim." Ibid. Inasmuch as the Complaint lacks any allegation that raises a specter of some racial or class-based invidious discriminatory animus behind the alleged section 1985 conspiracy, these claims, as set forth by COUNTS FIVE and TEN, must be dismissed with prejudice as must the concomitant section 1986 claims, as set forth in COUNTS ELEVEN and TWELVE.
Pursuant to 28 U.S.C. § 1367(c)(3), this Court may decline to exercise supplemental jurisdiction if all claims over which it had original jurisdiction are dismissed. Dismissal of such claims is committed to the undersigned's discretion. See United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966). Inasmuch as plaintiff's federal claims will be dismissed in their entirety and there remains no independent basis on which to retain plaintiff's various state law claims, this Court declines to exercise supplemental jurisdiction. Accordingly, plaintiff's state law claims will be dismissed without prejudice.
Turning to the issue of whether plaintiff will be sanctioned for bringing the instant action, the undersigned notes that "the central purpose of Rule 11 is to deter baseless filings in district court and thus * * * streamline the administration and procedure of the federal courts." Cooter Gell v. Hartmarx Corp., 496 U.S. 384, 393 (1990); see also Advisory Committee Notes to the 1993 Amendments to FRCvP 11 ("the purpose of Rule 11 sanctions is to deter rather than to compensate"). Thus, in filing a complaint in federal court, a plaintiff's counsel certifies — pursuant to FRCvP 11 — that the action was not brought for some improper purpose, that the allegations therein have evidentiary support and that the client's claims are warranted by existing law. To warrant Rule 11 sanctions, it must be clear that, despite such certification, existing precedent clearly indicates that "there is no chance of success." Shafii v. British Airways, PLC, 83 F.3d 566, 570 (2d Cir. 1996) (quoting Mareno v. Rowe, 910 F.2d 1043, 1047 (2d Cir. 1990)). In making such determination, this Court applies an objective standard of reasonableness to determine if the subject of the motion has conducted a "reasonable inquiry" into the basis of the argument. See MacDraw, Inc. v. The CIT Group Equip. Fin., 73 F.3d 1253, 1257 (2d Cir. 1996). As applied to the present matter, an exhaustive review of the factual assertions outlined in the Complaint leads to a determination that such do not provide any basis for federal relief. Consequently, defendants' motions for sanctions will be granted and they shall be awarded an amount equivalent to such defendants' reasonable costs of defending against the federal claims.
Accordingly, it is hereby ORDERED that plaintiff's federal claims are dismissed with prejudice as to each defendant, that plaintiff's motion for leave to amend the complaint is denied as futile, that plaintiff's state law claims are dismissed without prejudice, that defendants' motions for sanctions is granted and that the Delaware North defendants, the City of Buffalo and the BERC defendants shall be awarded an amount equivalent to such defendants' reasonable costs of defending against the federal claims.
DATED: Buffalo, N.Y February 14, 2001.