Barber et al v. Rome Housing Authority et al

First MOTION to Dismiss for Failure to State a Claim

N.D.N.Y.April 18, 2017

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK JOHN W. BARBER, DEBRA L. BURTON, DAVID R. GRINNELL, TIMOTHY J. LEES, and MARSHALL L. THOMAS, individually, and on behalf of all persons who currently reside in Colonial II Apartments, or formerly resided therein at any time from December 2010 to date, NOTICE OF MOTION FOR JUDGMENT PURSUANT TO F.R.C.P. 12(b )(6), F.R.C.P 12(f) & L.R. 7.1 Plaintiffs, -against- Civil Case No.: 6:16-cv-01529 (MAD/TWD) ROME HOUSING AUTHORITY, JAMES BALDWIN, individually and as Executive Director of ROME HOUSING AUTHORITY, DARCEL PULEO, individually and as Property Manager of Colonial Apartments, MOTION BY: RETURN DATE AND TIME: SUPPORTING PAPERS: NATURE OF ACTION: Defendants. Defendants, Rome Housing Authority, James Baldwin, and Darcel Puleo, by and through their attorney John W. Liguori, Esq. of counsel to Towne, Ryan & Partners, P.C. June 6, 2017, at 10:00 a.m. (on submission), or on such other date, place and time as the Court may order, before Hon. Mae A. D' Agostino, James T. Foley Courthouse, 445 Broadway, Suite 330, Albany, New York 12207. Defendants' Memorandum of Law in Support of Their Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) and Motion to Strike the Amended Complaint Pursuant Fed. R. Civ. P. 12(f). Personal Injury and Property Damage as a result of Alleged Constitutional Violations. Case 6:16-cv-01529-MAD-TWD Document 27 Filed 04/18/17 Page 1 of 2 RELIEF DEMANDED: DATED: April 18, 2017 Albany, New York Dismissal of Plaintiffs' Amended Complaint in its entirety or, alternatively, the striking of Plaintiffs' Exhibits, redundant paragraphs, and Sixth Cause of Action and for any other relief this Court deems just and proper. Respectfully fUbmitted, ,/\ I I \ I i f By: I 2 John :'L/gµo ·, sq. NDNY Bfr 1 11 o. 507379 Of Counsel, To e, Ryan & Partners, P.C. Attorneys for Defendants - Rome Housing Authority, James Baldwin, and Darcel Puleo 450 New Karner Road Albany, New York 12212 (518) 452-1800 Case 6:16-cv-01529-MAD-TWD Document 27 Filed 04/18/17 Page 2 of 2 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK JOHN W. BARBER, DEBRA L. BURTON, DAVID R. GRINNELL, TIMOTHY J. LEES, and MARSHALL L. THOMAS, individually, and on behalf of all persons who currently reside in Colonial II Apartments, or formerly resided therein at any time from December 2010 to date, Plaintiffs, -against- ROME HOUSING AUTHORITY, JAMES BALDWIN, individually and as Executive Director of ROME HOUSING AUTHORITY, DARCEL PULEO, individually and as Property Manager of Colonial Apartments, Defendants. Civil Case No.: 6:16-cv-01529 (MAD/TWD) DEFENDANTS, ROME HOUSING AUTHORITY, JAMES BALDWIN, AND DARCEL PULEO'S, MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION TO DISMISS PLAINTIFFS' AMENDED COMPLAINT AND IN SUPPORT OF THEIR MOTION TO STRIKE PLAINTIFFS' AMENDED COMPLAINT John W. Liguori, Esq. NDNY Bar Roll No. 507379 Of Counsel TOWNE, RYAN & PARTNERS, P.C. Attorneys for Defendants Rome Housing Authority, James Baldwin, And Darcel Puleo 450 New Karner Rd Albany, New York 12212 P: (518) 452-1800 F: (518) 452-6435 Case 6:16-cv-01529-MAD-TWD Document 27-1 Filed 04/18/17 Page 1 of 33 TABLE OF CONTENTS Table of Authorities ................................................................................................................... ii-vii Preliminary Statement ...................................................................................................................... 1 Procedural Statement ....................................................................................................................... 1 Statement ofFacts ............................................................................................................................ 2 Standard of Review .......................................................................................................................... 3 Argument ......................................................................................................................................... 5 POINT I: PLAINTIFFS HA VE FAILED TO STATE A CLAIM FOR DEPRIVATIONS OF THEIR FIFTH AND FOURTEENTH AMENDMENT RIGHTS BY DEFENDANTS .................................................................. 5 A. Plaintiffs' Amended Complaint Fails to Establish They Were Individually Deprived of a Federal Right. ........................................................... 6 B. Plaintiffs' Amended Complaint Fails to Sufficiently Plead Facts to Plausibly Establish a Theory of State Action Under the "State-Created Danger" Exception to the Due Process Clause .............................................................................................. 9 C. Plaintiffs Failed to Sufficiently Plead Facts that Established Defendants' Alleged Acts and/ or Omissions "Shock the Conscience" ............................................................................................... 11 POINT II: INDIVIDUAL PLAINTIFFS, JOHN W. BARBER AND MARSHALL L. THOMAS', SECTION 1983 CLAIM IS BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS ............................... 13 POINT III: DEFENDANTS, BALDWIN AND PULEO, ARE ENTITLED TO QUALIDIED IMMUNITY ......................................................................................... 14 POINT IV: PLAINTIFFS' AMENDED COMPLAINT SHOUD BE DISMISSED Case 6:16-cv-01529-MAD-TWD Document 27-1 Filed 04/18/17 Page 2 of 33 AS THEY FAILED TO COMPLY WITH F.R.C.P. 8(a)(2) OR AT LEAST THE "REDUNDANT, IMMATERIAL, IMPERTINENT, AND SCANDALOUS" PLEADINGS SHOULD BE STRICKEN .................................. 15 POINTY: PLAINTIFFS' STATE LAW CLAIMS SHOULD BE DISMISSED AS THEY HA VE FAILED TO PLAUSIBLY PLEAD A CLAIM OF RELIEF UNDER EACH INDIVIDUAL THEORY OF LIABILITY .............................. 18 A. Plaintiffs failed to Plead Compliance with the Notice Requirements ofN.Y. Public Housing Law §157 and N.Y. General Municipal Law §50-e ............................................................................ 18 B. Plaintiffs Failed to Plead a Cause of Action under Section 349 ofN.Y. General Business Law ................................................................ 20 1. Further, Plaintiffs, Barber and Thomas', §349 Claim Is Barred by the Applicable Statute of Limitations ............................................. 21 C. Individual Plaintiffs, Barber, Grinnell, Lees and Thomas', Negligence Claims Are Barred by the Applicable Statute of Limitations ............................................................................................................... 23 D. Plaintiffs Fourth Cause of Action for Unjust Enrichment Should Be Dismissed as They Have Adequate Legal Remedies ................................. 24 Conclusions .................................................................................................................................... 25 11 Case 6:16-cv-01529-MAD-TWD Document 27-1 Filed 04/18/17 Page 3 of 33 TABLE OF AUTHORITIES Federal Statutes F.R.C.P. 8 ....................................................................................................................................... 16 F.R.C.P. 8(a) .................................................................................................................................. 15 F.R.C.P. 8(a)(2) ............................................................................................................ 1, 2, 5, 15, 16 F.R.C.P. 8(d)(l) ............................................................................................................................. 15 F.R.C.P. 12(b)(6) ................................................................................................................. 1, 2, 3, 5 F.R.C.P. 12(:f) ............................................................................................................... 1, 2, 4, 16, 17 42 U.S.C. § 1983 ............................................................................................................... 2, 5, 13, 17 Federal Regulations and Rules United States District Court Northern District of New York Local Rules L.R. 7.1 ........................................................................................................................................ 1, 2 Federal Cases United States Supreme Court Cases Ashcroft v. Igbal, 556 U.S. 662, 129 S. Ct. 1937 (2009) ........................................................ 3, 4, 5 Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808 (2009) ............................................................ 14 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955 (2007) ....................................... 3, 4, 6 Cnty of Sacramento v. Lewis, 523 U.S. 833, 118 S. Ct. 1708 (1998) ........................................... 11 Deshaney v. Winnebago Cnty Dep't of Social Services, 489 U.S. 189, 109 S. Ct. 998 (1989) ...... 9 Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662 (1986) .......................................................... 7, 8 Hudson v. Palmer, 468 U.S. 517,104 S. Ct. 3194 (1984) ........................................................... 7, 8 Greene v. Lindsey, 456 U.S. 444, 102 S. Ct. 1874 (1982) .......................................................... 6, 8 111 Case 6:16-cv-01529-MAD-TWD Document 27-1 Filed 04/18/17 Page 4 of 33 Harlow v. Fitsgerald, 457 U.S. 800, 102 S. Ct. 2727 (1982) ......................................................... 14 Gomez v. Toledo, 446 U.S. 635, 100 S. Ct. 1920 (1980) ................................................................ 5 Lindsey v. Normet, 405 U.S. 56, 92 S. Ct. 862 (1972) ............................................................ 6, 7, 8 United States Court of Appeals Cases Johnson v. Barney, 360 F. App'x 199 (2d Cir. 2010) ...................................................................... 5 Lombardi v. Whitman, 485 F.3d 73 (2d Cir. 2007) ....................................................... 9, 11, 12, 13 Velez v. Levy, 401 F.3d 75 (2d Cir. 2005) ...................................................................................... 5 Pena v. Deprisco, 432 F.3d 98 (2d Cir. 2005) ................................................................................. 9 Wynder v. McMahon, 360 F.3d 73 (2d Cir. 2004) ........................................................................ 16 Anderson v. Recore, 317 F.3d 194 (2d Cir. 2003) ......................................................................... 14 Smith v. Half Hollow Hills Cent. School Dist., 289 F.3d 168 (2d Cir. 2002) ............................... 11 Provost v. City of Newburgh, 262 F.3d 146 (2d Cir. 2001) ............................................................ 5 Corcoran v. N.Y. Power Auth., 202 F.3d 530 (2d Cir. 1999) ........................................................ 23 Lennon v. Miller, 66 F.3d 416 (2d Cir. 1995) ............................................................................... 15 Dwares v. City of New York, 985 F.2d 94 (2d Cir. 1993) .............................................................. 9 Brady v. Colchester, 863 F.2d 205 (2d Cir. 1988) ........................................................................... 7 Salahuddin v. Cuomo, 861 F.2d 40 (2d Cir. 1988) .................................................................. 15, 16 Robinson v. Via, 821 F.2d 913 (2d Cir. 1987) .............................................................................. 15 Pauk v. Bd. of Trustees, 654 F.2d 856 (2d Cir. 1981) ................................................................... 13 Singleton v. New York, 632 F.2d 185 (2d Cir. 1980) ................................................................... 13 Citizens Comm. For Faraday Wood v. Lindsay, 507 F.2d 1065 (2d Cir. 1974) ..................... 6, 7, 8 Escalera v. N.Y.C. Housing Auth., 425 F.2d 853 (2d Cir. 1970) cert denied 400 U.S. 853, 91 S. Ct. 910 (1970) ................. 7, 8 IV Case 6:16-cv-01529-MAD-TWD Document 27-1 Filed 04/18/17 Page 5 of 33 Coulter v. Unknown Prob. Officer, 562 Fed. Appx. 87 (3d Cir. 2014) ........................................... 7 Perry v. Housing Authority of Charleston, 664 F.2d 1210 (4th Cir. 1981) ..................................... 7 United States District Court Cases Diblanca v. Town of Marlborough, No. 1:13-cv-1579 (MAD/RFT), 2014 WL 2866341 (N.D.N.Y. June 24, 2014) ............... 24 Fischer v. Bank of Am., 2012 U.S. Dist. LEXIS, 2012 WL 1965371, *3 (D. Conn. May 31, 2012) ....................... 15 Jackson v. Onondaga County, 549 F. Supp. 2d 204 (N.D.N.Y. 2008) ............................................ 6 Reinhart v. City of Schenectady Police Dep., 599 F. Supp. 2d 323 (N.D.N.Y. 2005) .................. 14 Kuntz v. N.Y.S. Bd. of Elections, 924 F. Supp. 364 (N.D.N.Y. 1996) ......................................... 17 Filipowski v. Greenwood Lake, 2013 U.S. Dist. LEXIS 93695 (S.D.N.Y. 2013) ......................... .4 Allen v. N.Y.C. Hous. Auth, 2012 U.S. Dist. LEXIS 130307, 10 Civ 168 (S.D.N.Y. July 16, 2012) ...... 9, 10, 11, 12, 13 McLaurin v. New Rochelle Police Officers, 373 F. Supp. 2d 385 (S.D.N.Y. 2005) ..................... 19 Meadowbrook-Richman, Inc. v. Associated Fin. Corp., 325 F. Supp. 2d 341 (S.D.N.Y. 2004) ............................................................................... 22 Deutsche Asset Mgmt., Inc. v. Callaghan, No. 01 Civ. 4426, 2004 U.S. Dist. Lexis 5945, 2014 WL 758303 (S.D.N.Y. Apr. 7, 2004) ................................................................................................... 24 Roe v. City ofNew York, 151 F. Supp. 2d 495 (S.D.N.Y. 2001) ................................................. 16 Koch v, Dwyer, 2000 U.S. Dist. LEXIS 14181, No. 98 Civ. 5519 (S.D.N.Y. Sept. 29, 2000) .... 16 Index Fund, Inc. v. Haqopiani, 107 F.R.D. 95 (S.D.N.Y. 1985) ................................................... 17 Johnson v. Levy, 812 F.Supp.2d 167 (E.D.N.Y. 2011) .................................................................. .4 LaDay v. Ramada Plaza Hotel LaGuardia, 2007 U.S. Dist. LEXIS 9823 (E.D.N.Y. 2007) ........... 5 U.S. v. Leasehold Interest in 121 Nostrand Ave., Apt. 1-C, Brooklyn, N.Y., 760 F. Supp. 1015 (E.D.N.Y. 1991) ................................................................................ 7, 8 V Case 6:16-cv-01529-MAD-TWD Document 27-1 Filed 04/18/17 Page 6 of 33 Mroz v. City of Tonawanda, 999 F. Supp. 436 (W.D.N.Y. 1998) ................................................ 19 Fischer v. Bank of Am., 2012 U.S. Dist. LEXIS, 2012 WL 1965371(D. Conn. May 31, 2012) .............................. 16 Reese v. Loew's Madison Hotel Corp., 65 F. Supp. 3d 235 (D.C. Dist. 2014) ............................. 13 Duarte v. Cal. Hotel & Casino, 08-00185 (JMS/KSC), 2008 WL 4133333 (D. Haw. Sept. 5, 2008) ................................. 13 New York Statutes N.Y. Pub. Hous. Law §157 ...................................................................................................... 19, 20 N.Y. Pub. Hous. Law §157(1) ................................................................................................. 18, 19 N.Y. Pub. Hous. Law §157(2) ................................................................................................. 19, 23 N.Y. Gen. Mun. Law §50-e ........................................................................................................... 19 N.Y. Gen. Bus. Law §349 ............................................................................................ 20, 21, 22, 23 N.Y. Real. Prop. Law §235-b ........................................................................................................ 25 New York Cases New York Court of Appeals Cases Gaidon v. Guardian Life Ins. Co. of Am., 720 N.E. 2d 1078, 96 N.Y. 2d 201, 727 N.Y.S. 2d 30, (2001) .................................... 21, 22 Stutman v. Chemical Bank, 731 N.E. 2d 608, 95 N.Y. 2d 24, 709 N.Y.S. 2d 892 (2000) ............ 20 Whitney v. Quaker Chem. Corp., 683 N.E. 2d 768, 90 N.Y. 2d 845, 660 N.Y.S. 2d 862(1997) ............................................ 23 New York Appellate Division Cases Brooks v. Key Trust Co. Natl. Assn., 26 A.D. 3d 628, 809 N.Y.S. 2d 270 (N.Y. App. Div. 3d Dept. 2006) app. dismissed, 850 N.E. 2d 672, 6 N.Y. 3d 891, 817 N.Y.S. 2d 625 (2006) ....................................... 20, 21 Vl Case 6:16-cv-01529-MAD-TWD Document 27-1 Filed 04/18/17 Page 7 of 33 Via v. N.Y.C. Hous. Auth .. 26 N.Y.S.3d 282, 137 A.D.3d 465 (N.Y. App. Div. 1st Dept. 2016) ................................ 13 Leon v. N.Y.C. Employees' Retirement Sys., 658 N.Y.S. 2d 283,240 A.D. 2d 186 (N.Y. App. Div. 1st Dept. 1997) ............................ 19 Santiago v. Bd. of Ed., 340 N.Y.S. 2d 491, 41 A.D. 2d 616 (N.Y. App. Div. 1st Dept. 1973) ..... 19 Gurreri v. Mun. Hous. Auth., 270 A.D. 767, 59 N.Y.S. 2d 474 (N.Y. App. Div. 2d Dept. 1946) reh 'g denied, 270 A.D. 289, 61 N.Y.S. 2d 384, app. dismissed, 67 N.E. 2d 523,295 N.Y. 891, 295 N.Y.S. 891(1946) ........................................................................................................ 19 Powell v. Gates, 319 N.Y.S. 2d 650, 36 A.D. 2d 220 (N.Y. App. Div. 4th Dept. 1971) .............. 19 New York Trial Court Cases Jackson Terrace Ass'n v. Paterson, 155 Misc. 2d 556, 589 N.Y.S. 2d 141 (N.Y. Dist. Ct. 1992) ............................................... 7 Other Sources: 5 C. Wright, A. Miller, et al., Federal Practice & Procedure § 121 7 (3 d ed. 2016) ..................... 15 Vll Case 6:16-cv-01529-MAD-TWD Document 27-1 Filed 04/18/17 Page 8 of 33 PRELIMINARY STATEMENT Defendants, by and through their attorney, John W. Liguori, Esq., of counsel to Towne, Ryan & Partners, P.C. respectfully submits this Memorandum of Law in Support of their instant Motion for Judgment on the Pleadings pursuant to Fed. R. Civ. P. 12(b )(6), F.R.C.P. 8(a)(2) and L.R. 7.1 and Motion to Strike the Pleadings pursuant to Fed. R. Civ. P. 12(f). Plaintiffs in this action are public housing tenants of the Defendant, Rome Housing Authority, who have a difference of opinion as to the effectiveness of extermination techniques utilized in their building, known as the "Colonial II Apartments". Plaintiffs commenced this instant action in hopes of utilizing the federal court system to intervene in what is essentially a problem best solved by New York courts given that Plaintiffs want this Court to retain jurisdiction, and control the day to day operation, of a New York State public corporation. In short, Plaintiffs are seeking to make a federal case out of a landlord-tenant matter which is more appropriately within the purview of New York courts. PROCEDURAL STATEMENT On December 23, 2016, Plaintiffs filed their Complaint. (Dkt. Ent. #1). Thereafter, Defendants were served by Plaintiff a copy of the Summons and Complaint. (Dkt. Ent. #5). Defendants each individually appeared and Answered the Complaint on January 26, 2017. (Dkt. Ents. #6-8). In accordance with this Court's rules, Defendants sought a pre-motion conference with the Court to seek permission to move pursuant to Fed. R. Civ. P. 12(c) for a judgment on the pleadings. (Dkt. Ent. #12). On March 8, 2017, a conference was held at which time this Court questioned the basis and presentation of Plaintiffs' Section 1983 cause of action and, subsequently, directed Plaintiffs to file an "Amended Complaint that states a factual basis for the 1 Case 6:16-cv-01529-MAD-TWD Document 27-1 Filed 04/18/17 Page 9 of 33 alleged [Section] 1983 action"; after which, Defendants were permitted to file a motion to dismiss. (Dkt. Ent. for March 8, 2017). Plaintiffs on March 22, 2017 filed their Amended Complaint. (Dkt. Ent. #24). In response to the Amended Complaint, Defendants make the instant Motion for Judgment on the Pleadings pursuant to Fed. R. Civ. P. 12(b)(6), F.R.C.P. 8(a)(2) and L.R. 7.1 and Motion to Strike the Pleadings pursuant to Fed. R. Civ. P. 12(f). STATEMENT OF FACTS The facts of this case are simple, although, somewhat diluted by Plaintiffs' prolific Amended Complaint. Plaintiffs seek to hold Defendants liable for individual violations of their Due Process Rights for an alleged deprivation of their "property interest" as a result of an alleged bedbug infestation in the Colonial II Apartments under 42 U.S.C § 1983. (Dkt. Ent. #24 at ,r,r2- 5). Further, Plaintiffs now seek to prosecute this action as a class action for residents who resided in the Colonial II Apartments from December of 2013 to present. (see generally, Dkt. Ent. #24 at ,r,r73-82). In addition to their Constitutional claim, Plaintiffs originally brought ( 4) supplemental state law claims which, as discussed infra, without this Court's permission were expanded to five (5) five supplemental state law claims sounding theories of violation of New York statutes, negligence, breach of contract, and equity. (Dkt. Ent. #24 at ,r,rlOl-128). The Amended Complaint is replete with redundant allegations of the wrongs suffered by Plaintiffs and Defendants failures; however, Plaintiffs Amended Complaint is somewhat opaque as to the accrual date of many of their claims. (see generally, Amended Complaint). Yet, it appears that: a. Plaintiff Barber alleges his causes of action accrued sometime in 2008 which he conceded provided some temporary relief to the infestation. (Dkt. Ent. #24 at ,r,r18 and 49); 2 Case 6:16-cv-01529-MAD-TWD Document 27-1 Filed 04/18/17 Page 10 of 33 b. Plaintiff Burton alleges her causes of action accrued in July of 2016. (Dkt. Ent. #24 at ,r,rs4 and 56); c. Plaintiff Grinnell alleges his causes of action accrued in July of 2014. (Dkt. Ent. #24 at ,r,r60-62); d. Plaintiff Lees alleges his causes of action accrued sometime in 2014. (Dkt. Ent. #24 at if66); and e. Plaintiff Thomas alleges accrual of her cause of actions sometime in 2012. (Dkt. Ent. #24 at if70). Plaintiffs named three (3) Defendants, Rome Housing Authority, James Baldwin, and Darcel Puleo, in their official and individual capacities, in this action; although, in the entire one hundred sixty-three (163) pages of the Amended Complaint they fail to discuss the acts of the individual Defendants giving rise to liability. (see generally, Dkt. Ent. #24). Thus, based on the discussion infra, Defendants respectfully submit that Plaintiffs' Amended Complaint should be dismissed in its entirety. STANDARD OF REVIEW To survive a Rule l 2(b )( 6) motion to dismiss, a plaintiff must plead sufficient factual allegations in the complaint that, accepted as true, "state a claim for relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949-50 (2009), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1973-74 (2007). "If a party does not nudge [its] claims across the line from conceivable to plausible, [the] complaint must be dismissed.". Twombly, 550 U.S. at 569, 127 S. Ct. at 1973 (internal quotations omitted). These factual allegations do not need to be detailed, but must amount to "more than labels and 3 Case 6:16-cv-01529-MAD-TWD Document 27-1 Filed 04/18/17 Page 11 of 33 conclusions and a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555. 127 S. Ct. at 1964-65. Additionally, those facts pleaded in the complaint "must be enough to raise a right to relief above the speculative level." Id. "While Federal Rule of Civil Procedure 8 'marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era ... it does not unlock doors of discovery for a plaintiff armed with nothing more than conclusions."' Filipowski v. Greenwood Lake, 2013 U.S. Dist. LEXIS 93695, *18 (S.D.N.Y. 2013), quoting Igbal, 556 U.S. at 678-79, 29 S. Ct. at 1949-50. When considering a motion to dismiss, "a court accepts as true the factual allegations set forth in the complaint and draws all reasonable inferences in the plaintiffs favor." Johnson v. Levy, 812 F.Supp. 2d 167, 175 (E.D.N.Y. 2011). However, "although a court must accept as true all of the allegations contained in the complaint," this standard does not apply to legal conclusions "and threadbare recitals of the elements of a cause of action, supported by mere conclusory statements ... " Id. "[D]etermining 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." Id. Further, Fed. R. Civ. P 12(±) provides that "the court may order stricken from any pleading and insufficient defense or any redundant, immaterial, impertinent, or scandalous material,". F.R.C.P. 12(±). 4 Case 6:16-cv-01529-MAD-TWD Document 27-1 Filed 04/18/17 Page 12 of 33 POINT I PLAINTIFFS HA VE FAILED TO ST ATE A CLAIM FOR DEPRIVATION OF THEIR FIFTH AND FOURTEENTH AMENDMENT RIGHTS BY DEFENDANTS. To establish a prima facie showing of a deprivation actionable under 42 U.S.C. §1983, a Plaintiffs must allege, "( 1) that some "person" has deprived him of a federal right, and (2) that person who has deprived him of that right acted under color of state ... law." Velez v. Levy, 401 F.3d 75, 84 (2d Cir. 2005), quoting Gomez v. Toledo, 446 U.S. 635,640, 100 S. Ct. 1920, 1923 (1980). Thus, to survive a motion to dismiss under 12(b )(6), ''the critical substantive inquiry, then, is whether the plaintiff has alleged facts that would, if believed, show that she was deprived of the constitutional rights identified in her complaint." Id. Moreover, "it is well settled in this Circuit that 'personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983. "' LaDay v. Ramada Plaza Hotel LaGuardia, 2007 U.S. Dist. LEXIS 9823, * 11 - 12 (E.D.N.Y. 2007), quoting Provost v. City of Newburgh, 262 F.3d 146, 154 (2d Cir. 2001). Initially, it must be noticed by this Court that Plaintiffs' Amended Complaint fails to identify how the individually named Defendants were personally involved the alleged constitutional deprivations. (Dkt. Ent. #24 at ,r,r84-99). Plaintiffs' Amended Complaint lacks any indication of how and when Defendants, Baldwin and Puleo, personally acted to deprive Plaintiffs' of their alleged rights. (Id.). The Amended Complaint being devoid of such information makes it fundamentally flawed in providing the individual Defendants "fair notice" of their alleged malfeasance so that they may individually prepare answers and trial defenses in accordance with Fed. R. Civ. P. 8(a)(2). See, F.R.C.P. 8(a)(2); Iqbal, 556 U.S. at 676; Johnson v. Barney, 360 F. App'x 199,201 (2d Cir. 2010)(A Section 1983 complaint that does not allege 5 Case 6:16-cv-01529-MAD-TWD Document 27-1 Filed 04/18/17 Page 13 of 33 the defendants' personal involvement fails as a matter of law); Jackson v. Onondaga County, 549 F. Supp. 2d 204, 212, n.17 (N.D.N.Y. 2008). Further, the Amended Complaint is devoid of any allegation that any of the named Defendants affirmatively acted to create the alleged bedbug infestation or with such deliberate indifference to shock the conscience, and thus, amount to nothing more than a "formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555. A. Plaintiffs' Amended Complaint Fails to Establish They Were Individually Deprived of a Federal Right. To state a substantive due process claim, a party's pleadings must first establish that they had a valid "property interest" in some benefit that was protectible under the Fourteenth Amendment at the time they were deprived of that benefit. Brady v. Colchester, 863 F.2d 205, 211-12 (2d Cir. 1988). However, the negligent acts by state actors do not effect a "deprivation" for the purposes of the Due Process Clause, and the random and unauthorized conduct of a government actor, even if intentional, does not implicate the Due Process Clause if the state provides a meaningful post-deprivation remedy, such as, for example, a tort remedy in its own courts. Daniels v. Williams, 474 U.S. 327, 330-31, 106 S. Ct. 662, 664-65 (1986)(The Court held negligence does not constitute a "deprivation"); Hudson v. Palmer, 468 U.S. 517, 533, 104 S. Ct. 3194, 3203-04 (1984). A public housing tenant has does not have constitutionally protected property interest in their leasehold or in its quality. Greene v. Lindsey, 456 U.S. 444,451, 102 S. Ct. 1874, 1877 (1982); Lindsey v. Normet, 405 U.S. 56, 74, 92 S. Ct. 862, 874 (l 972)(the Court found that there is no constitutional guarantee of access to housing of a particular quality and thus, no Fourteenth Amendment violation); Citizens Comm. For Faraday Wood v. Lindsay, 507 F.2d 1065, 1071 (2d 6 Case 6:16-cv-01529-MAD-TWD Document 27-1 Filed 04/18/17 Page 14 of 33 Cir. 1974)(there was no violation of plaintiff's Fourteenth Amendment rights when the defendants chose not to proceed with a public housing project even though plaintiffs were currently residing in "inadequate and deteriorating housing" who would qualify for the new project); Coulter v. Unknown Prob. Officer, 562 Fed. Appx. 87, 90 (3d Cir. 2014)(parolee's denial of housing of her choice did not violate her due process rights); Perry v. Housing Authority of Charleston, 664 F.2d 1210, 1217 (4th Cir. 1981). Accordingly, the Courts of this Circuit have carved out an exception to this rule and acknowledged while a public housing authority tenant does not have a property interest in his or her leasehold, a tenant does have a "property interest" in the continued receipt of the benefit of low income housing and is thereby afforded limited constitutional protections with respect to continued receipt of said benefit of public housing. See, Escalera v. N.Y.C. Housing Auth., 425 F.2d 853, 861-62 (2d Cir. 1970) cert denied 400 U.S. 853, 91 S. Ct. 910 (1970)(the Second Circuit determined that continued tenancy in public housing was subject to due process protection); Normet, 405 U.S. at 74, 92 S. Ct. at 874; Citizens Comm. For Faraday Wood, 507 F.2d at 1071; U.S. v. Leasehold Interest in 121 Nostrand Ave., Apt. 1-C, Brooklyn, N.Y., 760 F. Supp. 1015, 1027 (E.D.N.Y. 1991)(a public housing tenant's continued tenancy in his apartment is a property interest protected by the Constitution.); Jackson Terrace Ass'n v. Paterson, 155 Misc. 2d 556, 557, 589 N.Y.S. 2d 141, 141 (N.Y. Dist. Ct. 1992)("A tenant in a federally subsidized housing project has a constitutionally protected expectation of continued occupancy ... " protected by the due process clause of the [C]onstitution.). In this case, Plaintiffs are incorrect in the assumption that they have a property interest in their housing from which they base their claim under Section 1983. The Amended Complaint fails to establish a deprivation of Plaintiffs' "property interest" in their apartments. (see 7 Case 6:16-cv-01529-MAD-TWD Document 27-1 Filed 04/18/17 Page 15 of 33 generally, Dkt. Ent. #24). While it is replete with allegations regarding the quality of Plaintiffs' housing, it however lacks any allegations that they were deprived of housing by Defendants - just that the housing was not of a certain quality. Plaintiffs allege a bedbug infestation as early as 2008 in the Colonial II Apartment Building; however, the Plaintiffs fail to allege that they have not been able to continue to occupy their respective apartments as a result of this alleged infestation. (Dkt. Ent. #24 at iiiF 8, 48-72, 84-100). In fact, the sum and substance of Plaintiffs' grievances can be found in Paragraph 6 of the Amended Complaint - that in their opinion "Defendants' utilized ineffective methods to eradicate the bed bug infestation ... "; or in other words, Defendants were negligent in their handling of Plaintiffs' complaints. (Dkt. Ent. #24 at ,I,I6; compare, Dkt. Ent. #24 at ,I,I83-99 with 109-113). The Amended Complaint is nothing more than a one hundred sixty-three (163) page allegation that Plaintiffs are not receiving housing of a quality of their choosing for which they ask this Court to find is a violation of their Fifth and Fourteenth Amendment Due Process Rights. However, as the Supreme Court and the courts of the Second Circuit have held, public housing tenants do not have a constitutional guarantee to housing of a certain quality and further the mere negligent act of a state actor, such as alleged in the Amended Complaint, does not give rise to a deprivation of a Constitutional right. Daniels, 474 U.S. at 330-31, 106 S. Ct. at 664-65; Hudson, 468 U.S. at 533, 104 S. Ct. at 3203-04; Greene, 456 U.S. at 451, 102 S. Ct. at 1877; Normet, 405 U.S. at 74, 92 S. Ct. at874 (1972); Citizens Comm. For Faraday Wood, 507 F.2d at 1071; Escalera, 425 F.2d at 861-62; Leasehold Interest in 121 Nostrand Ave., Apt. 1-C, Brooklyn, N.Y., 760 F. Supp. at 1027. Plaintiffs also failed to plead any violation of a federal statute or regulation which provides Plaintiffs with a right to maintain their First Cause of Action. Hence, it is respectfully submitted that Plaintiffs First Cause of Action should be 8 Case 6:16-cv-01529-MAD-TWD Document 27-1 Filed 04/18/17 Page 16 of 33 protected "property interest" in the quality of their housing only continued occupancy in such housing. B. Plaintiffs' Amended Complaint Fails to Sufficiently Plead Facts to Plausibly Establish a Theory of State Action Under the "State-Created Danger" Principle Exception to the Due Process Clause. The Due Process Clause of the Fourteenth Amendment does not require a state actor to protect life, liberty, or property but merely limits a state actor's power to act in the deprivation of an individual's life, liberty, or property interests. Deshaney v. Winnebago Cnty Dep't of Social Services, 489 U.S. 189, 201-03, 109 S. Ct. 998, 1006-07 (1989). Under the "state created danger" principle, this Circuit has recognized a state actor may still act to violate an individual's due process rights if it has taken some affirmative acts to create or increase the danger to a victim via a relationship with a third-party assailant. Lombardi-v. Whitman, 485 F.3d 73, 79 (2d Cir. 2007)(citing Dwares v. City of New York, 985 F.2d 94, 98-100(1993); Pena v. Deprisco, 432 F.3d 98, 109-10 (2d Cir. 2005); Dwares v. City of New York, 985 F. 2d 94, 99 (2d Cir. 1993); Allen v. N.Y.C. Hous. Auth, 2012 U.S. Dist. LEXIS 130307, 10 Civ 168, *22-*24 (S.D.N.Y. July 16, 2012). However, the Circuit has also recognized, in limited circumstances, a Due Process violation may be made out when a "private individual derives a false sense of security from an intentional misrepresentation by an executive official if foreseeable bodily harm directly results and if the official's conduct shocks the conscience.". Lombardi, 485 F.3d at 81. Instructive in this matter is the Southern District's holding in Allen, where plaintiffs brought a Section 1983 claim against the N.Y.C. Housing Authority alleging violation of their Substantive Due Process rights for exposure to mold. Id., 2012 U.S. Dist. LEXIS 130307, 10 Civ 168, *3-*4. The plaintiffs, in Allen, alleged that the N.Y.C. Housing Authority was aware of 9 Case 6:16-cv-01529-MAD-TWD Document 27-1 Filed 04/18/17 Page 17 of 33 toxic mold in their apartment and that the housing authority's act of painting over it was not an appropriate action to address the problem. Id., 2012 U.S. Dist. LEXIS 130307, 10 Civ 168, *26. The District Court held that the plaintiffs' complaint failed to allege affirmative conduct by the housing authority in creating the alleged danger or demonstrate conduct that left plaintiffs more vulnerable to a known danger. Id., 2012 U.S. Dist. LEXIS 130307, 10 Civ 168, *26-*27. The Court reasoned that the plaintiffs' pleadings merely alleged the housing authority's efforts to remediate the mold condition were ineffectual and inadequate which does not amount to active conduct. Id., 2012 U.S. Dist. LEXIS 130307, 10 Civ 168, *27. In this case, the allegations in Plaintiffs' Amended Complaint strike a close parallel to those in Allen. Id., 2012 U.S. Dist. LEXIS 130307, 10 Civ 168, *26. Plaintiffs' in their Amended Complaint allege not that Defendant created the danger or left Plaintiffs more vulnerable to the alleged harm but merely that their actions were inadequate and ineffectual in remedying the alleged bedbug infestation. (Dkt. Ent. #24 at ,r,r6, 38, 41, 90-91). Defendants' alleged employment of "Rid-0-Vit" to spray apartments is very similar to the passive act by the housing authority's, in Allen, in that it is not alleged to have created the supposed bedbug infestation or exacerbated the alleged infestation. Compare, Id, 2012 U.S. Dist. LEXIS 130307, 10 Civ 168, *26 with Dkt. Ent. #24 at ,r,r6, 38, 41, 90-91. Additionally, the Amended Complaint is absent any allegation that Defendants acts created a false sense a security in the Plaintiffs; rather, the Amended Complaint is rife with allegations to contrary - that Plaintiffs either did not believe Defendants' alleged statements or were aware of the risk of harm. Hence, Plaintiffs' Amended Complaint fails to plausibly state that Defendants acted to create or increase the danger of the alleged bedbug infestation. 10 Case 6:16-cv-01529-MAD-TWD Document 27-1 Filed 04/18/17 Page 18 of 33 C. Plaintiffs Failed to Sufficiently Plead Facts that Established Defendants' Alleged Acts and/or Omissions "Shock the Conscience". Further, in order to "shock the conscience" and trigger a Substantive Due Process violation, an official's conduct must "be outrageous or egregious under the circumstances; it must be truly 'brutal and offensive to human dignity ... ". Lombardi, 485 F.3d 73, 81 (2d Cir. 2007)(quoting Smith v. Half Hollow Hills Cent. School Dist., 289 F.3d 168, 173 (2d Cir. 2002)(further citation omitted); Allen, 2012 U.S. Dist. LEXIS 130307, 10 Civ 168, *28. An allegation of "negligently inflicted harm is categorically beneath the threshold,". Lombardi, 485 F.3d at 82 (quoting Cnty of Sacramento v. Lewis, 523 U.S. 833, 849, 118 S. Ct. 1708 (1998)); Allen, 2012 U.S. Dist. LEXIS 130307, 10 Civ 168, *28-*30; Allen, 2012 U.S. Dist. LEXIS 130307, 10 Civ 168, *28. The Second Circuit's decision in Lombardi is illustrative of what "shocks" the judicial conscience. Id. 485 F.3d at 85. In Lombardi, plaintiffs, members of a search, rescue and cleanup team at the World Trade Center site, alleged that federal officials issued knowingly false statements about the safety of the site in the days following the Word Trade Center attacks and that because of these reassurances plaintiffs were induced to injure themselves by failing to use proper respiratory equipment. Id., 485 F.3d at 74-75. The Court in reviewing whether defendants' statements "shocks the conscience" held that a "poor choice by an executive official between or among the harms risked by the available options is not conscience shocking merely because for some persons it resulted in grave consequences that a correct decision could have avoided.". Id., 485 F.3d at 85. In coming to this conclusion, the Court reasoned that the defendant's choice to make such misrepresentations to plaintiffs were made as "an exercise of the conscience" as defendants were balancing the risk of harm faced by plaintiffs to that of publicly disclosing the health danger of the site and the resulting chaos that could occur. Id. 11 Case 6:16-cv-01529-MAD-TWD Document 27-1 Filed 04/18/17 Page 19 of 33 Here, Plaintiffs' First Cause of Action fails as they failed to plead facts sufficient to demonstrate acts by Defendants that "shock the conscience". The Amended Complaint, at best, alleges nothing more than Defendants negligently inflicted harm upon Plaintiffs. (Dkt. Ent. #24 at if84-100). While the Amended Complaint alludes that Defendants allegedly made misrepresentations to Plaintiffs, such statements on their own do not rise to a level to shock the conscience. Like the plaintiffs in Lombardi, Plaintiffs fail to contemplate the broader stage upon which they and Defendants act upon. Id., 485 F.3d at 85; see also, Dkt. Ent. #24 at ,r22. Plaintiffs acknowledge the social stigma that comes from living in a building infested with bedbugs. (Dkt. Ent. #24 at ,r,r25, 28, and 68). Further, Plaintiffs also acknowledged that Defendant, a public housing authority, is tasked with providing low income housing to its tenants. (Dkt. Ent. #24 at ,r,r5 and 10). However, Plaintiffs in pleading to the extent that they complain about misrepresentation by Defendants fail to comprehend that in not outwardly disclosing information about the alleged bedbug infestation, if any, Defendants arguably were weighing the risk of a harm to a few individuals against the chaos that could incur if full disclosure was made to the tenants. Specifically, the potential chaos that could incur when one tenant found another tenant to be infested or even worse the potential for ridicule and potential retaliation among the tenants of Colonial II Apartments. Furthermore, much like the defendant in Allen, Defendants have not failed to act to try to resolve the alleged bed bug infestation. Allen, 2012 U.S. Dist. LEXIS 130307, 10 Civ 168, *26- *28. The essence of Plaintiffs' Amended Complaint is that while Defendants acted to resolve the alleged infestation, in Plaintiffs' opinion, the actions were not reasonable given the circumstances and, thus, not to Plaintiffs' liking. (Dkt. Ent. #24 at ifl9-21, and 34). However, Plaintiffs' pleadings for their First Cause of Action are, at best, a recitation of the elements to a 12 Case 6:16-cv-01529-MAD-TWD Document 27-1 Filed 04/18/17 Page 20 of 33 questionable negligence cause of action. (Id. at iiii84-98 and 109-113 ). However, as the court in Allen acknowledged that even the grossly negligent handling of a matter does not rise to a constitutional violation as the conduct cannot be described as "truly brutal and offensive to human dignity,". Allen, 2012 U.S. Dist. LEXIS 130307, 10 Civ 168, *29 (citing Lombardi, 485 F.3d at 81). Thus, it is respectfully submitted that Plaintiffs First Cause of Action should be dismissed by this Court as they failed to plausibly plead a claim under 42 U.S.C §1983. POINT II INDIVIDUAL PLAINTIFFS, JOHN W. BARBER AND MARSHALL L. THOMAS', FIRST CAUSES OF ACTION IS BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS A claim accrues under § 1983 when a plaintiff "knows or has reason to know" of the injury that is the basis of his or her action. Pauk v. Bd. of Trustees, 654 F.2d 856, 859 (2d Cir. l98l)(quoting Singleton v. New York, 632 F.2d 185, 191 (2d Cir. 1980). Hence, a plaintiff has athree (3) year statute of limitations to commence a § 1983 claim from the date of accrual of his or her injury. Pauk, 632 F.2d at 866. With respect to the accrual of claims for bedbugs, a plaintiffs claim accrues when he, or she, first experiences the symptoms of bed bug bites. Via v. N.Y.C. Hous. Auth .• 26 N.Y.S.3d 282,283, 137 A.D.3d 465,466 (N.Y. App. Div. 1st Dept. 2016)("Plaintiff s bedbug claims are note governed by CPLR 214-c, because her injuries were not caused by a "substance" ... "); see., Reese v. Loew's Madison Hotel Corp., 65 F. Supp. 3d 235, 247-48 (D.C. Dist. 2014); e.g., Duarte v. Cal. Hotel & Casino, 08-00185 (JMS/KSC), 2008 WL 4133333, *9-* 11 (D. Haw. Sept. 5, 2008). 13 Case 6:16-cv-01529-MAD-TWD Document 27-1 Filed 04/18/17 Page 21 of 33 Here, even if this Court finds that Plaintiffs may maintain their First Cause of Action, Mr. Barber and Ms. Thomas' individual claims must be dismissed as being barred by the applicable statute oflimitations given that their claims accrued 2008 and 2012, respectively. Mr. Barber's cause of action accrued sometime in 2008 when he first began to experience bedbug bites and became aware of the alleged infestation. (Dkt. Ent. #24 at ,r 49). Meanwhile, Ms. Thomas' causes of action accrued sometime in 2012. (Dkt. Ent. #24 at i-f70). As such, the statute of limitations ran for Mr. Barber and Ms. Thomas' claims in sometime 2011 and 2015, respectively, and well before Plaintiffs commenced this instant action. Hence, it is respectfully submitted that Mr. Barber and Ms. Thomas' First Cause of Action against Defendants should be dismissed as being barred by the applicable statute of limitations. POINT III DEFENDANTS, BALDWIN AND PULEO, IN THEIR OFFICIAL ARE ENTITLED TO QUALIFIED IMMUNITY. The doctrine of qualified immunity protects government officials " ... from the liability for civil damages insofar as their conduct does not violate clearly established statutory or Constitutional rights of which a reasonable person would have known". Pearson v. Callahan, 555 U.S. 223,231, 129 S. Ct. 808,815 (2009)(quotingHarlowv. Fitsgerald, 457 U.S. 800,818, 102 S. Ct. 2727, 2738-39 (1982). Defendant is entitled to qualified immunity if"(a) [his] action did not violate clearly established law, or (b) it was objectively reasonable for [him] to believe that [his] actions did not violate the law.". Reinhart v. City of Schenectady Police Dep., 599 F. Supp. 2d 323, 325 (N.D.N.Y. 2005)(citing Anderson v. Recore, 317 F.3d 194, 197 (2d Cir. 2003). "A right is clearly established if (1) the law is defined with reasonable clarity, (2) the Supreme Court or the Second Circuit has recognized the right, and (3) a reasonable defendant 14 Case 6:16-cv-01529-MAD-TWD Document 27-1 Filed 04/18/17 Page 22 of 33 would have understood from the existing law that his or her conduct was unlawful.". Id. 31 7 F.3d at 336. Even if the contours of a federal right and an officer's permissible actions were clearly delineated at the time of the acts complained of, a Defendant may still enjoy qualified immunity if it was objectively reasonable for him to believe that his acts did not violate that right. Id. (citing Robinson v. Via, 821 F.2d 913, 921 (2d Cir. 1987). The issue of objective reasonableness is one of law. Lennon v. Miller, 66 F.3d 416,421 (2d Cir. 1995). Based upon the foregoing argument in Support of the instant Motion to Dismiss as well as the foregoing, it was objectively reasonable for Defendants, Baldwin and Puleo, to believe that the pest remediation efforts and the housing provided Plaintiffs was adequate and in compliance with what the Constitution requires. Hence, Defendants are entitled to qualified immunity. POINT IV PLAINTIFFS AMENDED COMPLAINT SHOULD BE DISMISSED AS THEY FAILED TO COMPLY WITH F.R.C.P 8(a)(2) OR AT LEAST THE "REDUNDANT, IMMATERIAL, IMPERTINENT, AND SCANDALOUS" PLEADINGS SHOULD BE STRICKEN FROM THE COMPLAINT. A plaintiffs pleading must, in accordance with the Federal Rules, include "a short and plain statement of the claim showing that the pleader is entitled to relief.". F.R.C.P. 8(a)(2). An allegation must be "simple, concise, and direct and "taken together, Rules 8(a) and 8(d)(l) underscore the emphasis placed on clarity and brevity in the federal pleading rules.". 5 C. Wright, A. Miller, et al., Federal Practice & Procedure §1217 (3d ed. 2016). Or as the Second Circuit has observed" ... unnecessary prolixity in a pleading places an unjustified burden on the court and the party who must respond to it because they are forced to select the relevant material from a mass of verbiage.". Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). 15 Case 6:16-cv-01529-MAD-TWD Document 27-1 Filed 04/18/17 Page 23 of 33 As such, when a complaint does not comply with this requirement that it be short and plain, this Court has the power to strike any portions that are redundant or immaterial. Id. Dismissal is an appropriate remedy when the complaint is " ... so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised.". Id. Additionally, the length of the complaint is also considered a factor when determining compliance with Fed. R. Civ. P. 8(a)(2). Fischer v. Bank of Am., 2012 U.S. Dist. LEXIS, 2012 WL 1965371, *3 (D. Conn. May 31, 2012)(Plaintiff's 128-page complaint did not comply with Rule 8 "short and plain" pleading requirements and thus, warranted dismissal by the court). In this case, Plaintiffs' pleading fails to meet the clear low bar set by Fed. R. Civ. P. 8 and their thirty (30) page Amended Complaint with thirty-three (33) pages of exhibits should be dismissed by this Court as failing to adhere to Fed. R. Civ. P. 8(a)(2). As previously discussed, the bulk of the Plaintiffs' Amended Complaint fails to state a legally cognizable claim ofrelief. However, Plaintiffs' excessive use of unavailing and foundationless exhibits further demands dismissal by this Court as they have not been contemplated to ease the burden of this Court or Defendants in reviewing their allegations. Additionally, while Fed. R. Civ. P. 8 presents lenient standards warranting dismissal in certain occasions, Rule 12(f) of the Federal Rules of Civil Procedure allows this Court to strike from a pleading any matter that is "immaterial" or "impertinent.". F.R.C.P. 12(f); Wynder v. McMahon, 360 F.3d 73, 80 (2d Cir. 2004); Salahuddin, 861 F.2d at 42. Although generally not favored, striking portions of a pleading is an appropriate exercise of a district court's discretion when "(l) no evidence in support of the allegation would be admissible; (2) ... the allegations have no bearing on the issues in the case; and (3) ... to permit the allegation to stand would result in prejudice to the movant.". Roe v. City of New York, 151 F. Supp. 2d 495,510 16 Case 6:16-cv-01529-MAD-TWD Document 27-1 Filed 04/18/17 Page 24 of 33 (S.D.N.Y. 2001)(quoting, Koch v, Dwyer, 2000 U.S. Dist. LEXIS 14181, No. 98 Civ. 5519, *4 (S.D.N.Y. Sept. 29, 2000). Courts will also strike pleadings pursuant to Rule 12(f) when leave to amend was granted for a specific purpose, but the plaintiff files an amendment setting forth new claims that the court was not advised of at the time permission was granted. For example, in Index Fund, Inc. v. Haqopiani, 107 F.R.D. 95 (S.D.N.Y. 1985), the plaintiff sought leave to amend so it could pursue claims of secondary liability. The plaintiff did not, however, "request the right to add a punitive damage claim, nor was there any reason for the court to believe such a request would be forthcoming.". Id., 107 F.R.D. at 98. In granting the plaintiff the opportunity to amend the complaint, the court did not grant plaintiff the right to amend the complaint to add new causes of action nor did plaintiff raise the issue to allow the court to consider the new claims. Id.; see also, Kuntz v. N.Y.S. Bd. of Elections, 924 F. Supp. 364, 367-68 (N.D.N.Y. 1996)(dismissing and striking those portions of the plaintiff's amended complaint that exceeded the court's permission to amend). In this case, Plaintiffs' Exhibits "A" through "E, Paragraphs "33"-"36", "42", "47", "85"- "87'', "90", "91 ", "95". "97", "98", "111 ", and "112" along with their Sixth Cause of Action for alleged Breach of Contract should be stricken from the Amended Complaint. With respect to the Exhibits, they are the quintessential definition of immaterial as they have no bearing on the allegations or are necessary for Plaintiffs to produce at this stage of the litigation. The enumerated paragraphs in Plaintiffs' Amended Complaint, as this Court will see, are either unnecessary or redundant allegations already made by Plaintiff earlier in the Amended Complaint and only serve to Plaintiffs case to create an emotional response and fail to aid the reader in understanding the legal basis for Plaintiffs' causes of action; thereby, adding to the scandalous nature of the Amended Complaint. 17 Case 6:16-cv-01529-MAD-TWD Document 27-1 Filed 04/18/17 Page 25 of 33 Finally, the Sixth Cause of Action should be stricken in its entirety as Plaintiff in the conference held on March 8, 201 7 failed to request permission from this Court or even raise the possibility of further expanding their pleading to include an additional Breach of Contract cause of action. During the March 3th telephone conference, Plaintiffs were granted permission to revise their Complaint so that it plausibly alleged an action under 42 U.S.C § 1983 not to include a new state law cause of action which should have been apparent to Plaintiffs prior to the commencement of this action. Plaintiffs during this conference failed to request permission from this Court to further expand on their already epic complaint. Hence, it is respectfully submitted that this Court should strike the aforementioned sections of the Amended Complaint pursuant to Rule 12(f) as they are redundant, immaterial, impertinent or scandalous. POINTV PLAINTIFFS' STATE LAW CLAIMS SHOULD BE DISMISSED AS THEY HAVE FAILED TO PLAUSIBLY PLEAD A CLAIM OF RELIEF UNDER EACH INDIVIDUAL THEORY OF RECOVERY. A. Plaintiffs Failed to Plead Compliance with the Notice Requirements of N.Y. Public Housing Law §157 and N.Y. General Municipal Law § 50-e. As provided for in paragraph 1 of Section 157 of the N.Y. Public Housing Law: [i]n every action or special proceeding, for any cause whatsoever, prosecuted or maintained against an authority, other than a claim arising out of a condemnation proceeding, the complaint ... shall contain an allegation that at least thirty days have elapsed since the demand, claim or claims upon such action or section is founded were presented to the authority for adjustment and that it has neglected or refused to make an adjustment or payment thereof for thirty days after such presentment. N.Y. Pub. Hous. Law §157(1) (Lexis 2016). Further, an action cannot be commenced against a public housing authority for damages for injuries sounding in negligence or nuisance by said authority without plaintiff's compliance 18 Case 6:16-cv-01529-MAD-TWD Document 27-1 Filed 04/18/17 Page 26 of 33 with Section 50-e of New York's General Municipal Law. N.Y. Pub. Hous. Law §157(2). A complaint is jurisdictionally defective where there is a failure to plead compliance with subdivisions 1 and 2 of Section 157 and requires dismissal of the complaint. Gurreri v. Mun. Hous. Auth., 270 A.D. 767, 59 N.Y.S. 2d 474 (N.Y. App. Div. 2d Dept. 1946), reh 'g denied, 270 A.D. 289, 61 N.Y.S. 2d 384, app. dismissed, 67 N.E. 2d 523, 295 N.Y. 891, 295 N.Y.S. 891(1946); Mroz v. City of Tonawanda, 999 F. Supp. 436,453 (W.D.N.Y. 1998); McLaurin v. New Rochelle Police Officers, 373 F. Supp. 2d 385, 401-02 (S.D.N.Y. 2005). The notice provision of Section 157 of the Public Housing Law is dissimilar to that ofN.Y. General Municipal Law §50-e as it contemplates notice for "every action" to be maintained against a public housing authority. Compare N.Y. Pub. Hous. Law §157 with N.Y. Gen. Mun. Law §50-e; see, Leon v. N.Y.C. Employees' Retirement Sys., 658 N.Y.S. 2d 283,284,240 A.D. 2d 186 (N.Y. App. Div. 1st Dept. 1997)(the Court dismissed plaintiffs breach of contract claim for failure to comply with N.Y. Pub. Hous. Law §157(1)). In general, a notice must therefore provide a housing authority with sufficient knowledge of the nature of the claim, the time and place it arose, and the manner it arose or in other words how the claimant believes the housing authority to be responsible for her damages. Powell v. Gates, 319 N.Y.S. 2d 650, 36 A.D. 2d 220 (N.Y. App. Div. 4th Dept. 1971). Further, a letter written and not served in accordance with General Municipal Law §50-e that contains no allegation of liability against the public housing authority cannot be construed as a notice of claim or as proper service under the statute. See, Santiago v. Bd. of Ed., 340 N.Y.S. 2d 491,493, 41 A.D. 2d 616 (N.Y. App. Div. 1st Dept 1973). Here, Plaintiffs have failed to comply with the pleading requirements set forth above. Plaintiffs failed to allege that they presented their individual or collective claim to Defendants 19 Case 6:16-cv-01529-MAD-TWD Document 27-1 Filed 04/18/17 Page 27 of 33 thirty (30) days prior to commencing this action. Ms. Burton is the only plaintiff that allegedly provided Defendants with notice; however, even that fails on its face as it does not provide the Defendants with any notice as to the legal grounds upon which she now basis her complaint (Dkt. Ent. #24 at Group Exhibit "E"). Plaintiffs' allegation that Legal Services provided documentation about bedbug eradication techniques does not establish notice by any of the Plaintiffs for the above referenced action. (Dkt. Ent. #24 at ,I37). Thus, Plaintiffs' Complaint should be dismissed as failing to adhere to the pleading requirements of Section 157 of the Public Housing Law. B. Plaintiffs Failed to Plead a Cause of Action under Section 349 of N.Y. General Business Law. To a maintain a private action under §349 of New York' General Business Law, a private plaintiff must show that challenged act or practice was consumer-orientated, that it was materially misleading, and that plaintiff was injured as a result of the deceptive act or practice. N.Y. Gen. Bus. Law §349 (Lexis 2017); Stutman v. Chemical Bank, 731 N.E. 2d 608,611, 95 N.Y. 2d 24, 29, 709 N.Y.S. 2d 892, 895 (2000). Under §349, an act or practice is consumer- orientated if it has an impact on consumers at large or in other words, the gravamen of plaintiffs complaint cannot be a private contract dispute, unique to the parties. Brooks v. Key Trust Co. Natl. Assn., 26 A.D. 3d 628, 630-31, 809 N.Y.S. 2d 270,273 (N.Y. App. Div. 3d Dept. 2006) app. dismissed, 850 N.E. 2d 672, 6 N.Y. 3d 891, 817 N.Y.S. 2d 625 (2006). Instructive in this matter is the Third Department's upholding of a trial court's dismissal of plaintiffs complaint in Brooks on the ground that plaintiff failed to plead a cause of action under §349. Id. There plaintiff and wife after a series of meeting entered into an investment agreement with defendant and subsequently suffered substantial losses as a result of what 20 Case 6:16-cv-01529-MAD-TWD Document 27-1 Filed 04/18/17 Page 28 of 33 plaintiff characterized as defendant's deceptive practices. Id., 26 A.D. 3d at 629, 809 N.Y.S. 2d at 272. The Third Department held that plaintiffs cause of action founded upon §349 was properly dismissed as plaintiff failed to plead that defendant's act was targeted at a large consumer audience. Id., 26 A.D. 3d at 630-31, 809 N.Y.S. 2d at 273. The Court in reviewing the plaintiff's complaint found that the gravamen of plaintiff' grievance was a private contract dispute which did not affect the consuming public at large. Id. Here, Plaintiffs' Complaint must be dismissed as it fails to plead that Defendants marketed the Colonial II Apartments or were in consumer-orientated marketing that had aimed at the public at large; specifically, Plaintiffs failed to state the form of the advertising that Defendants (See, Dkt. Ent. #24 at ,ri113 and 102). It merely states that Defendants marketed and advertised their property for rent (Dkt. Ent. #24 at ifl 02); however, every public housing authority arguably has duty to make the public within their jurisdiction aware of their existence. Plaintiffs allegations of deception are not relative to the act of marketing or advertising but only relevant to their individual interactions with Defendants which they failed to individual plead. (Dkt. Ent. #24 at if104). Further, like the plaintiff in Brooks, the gravamen of Plaintiffs' contention is that of private contract action; specifically, Defendants did not deliver an apartment space to Plaintiffs as allegedly promised. (Dkt. Ent. #24 at ,r,r104-106). Hence, Plaintiffs Second Cause of Action should be dismissed as they failed to sufficiently plead the elements of a §349 claim. i. Further, Plaintiffs, Barber and Thomas, §349 Claims Are Barred by the Applicable Statute of Limitations. An action brought under Section 349 of New York's General Business Law must be commenced within three (3) years for the date of accrual of the claim. Gaidon v. Guardian Life 21 Case 6:16-cv-01529-MAD-TWD Document 27-1 Filed 04/18/17 Page 29 of 33 Ins. Co. of Am., 720 N.E. 2d 1078, 1082, 96 N.Y. 2d 201,208, 727 N.Y.S. 2d 30, 34 (2001). A right of action accrues under the statute when a plaintiff becomes aware of the injury suffered as a result of the alleged deceptive act or practicing violating the statute. Id., 720 N.E. 2d at 1083, 96 N.Y. 2d at 208, 727 N.Y.S. 2d at 35; Meadowbrook-Richman, Inc. v. Associated Fin. Corp., 325 F. Supp. 2d 341 (S.D.N.Y. 2004). In Gaidon, the Court of Appeals was confronted with the question as to when a claim accrued in regard to §349 claims against an insurance company. Id. 720 N.E. 2d at 1083, 96 N.Y. 2d at 208, 727 N.Y.S. 2d at 35. The Court reasoned that even though defendant admitted the plaintiffs' policy was defective upon delivery, the claim didn't accrue until plaintiffs had to pay additional premiums beyond the date they were led to believe that policy dividends would cover all costs. Id., 720 N.E. 2d at 1083-84, 96 N.Y. 2d at 211, 727 N.Y.S. 2d at 35-36. Thus, the Court held that a claim under §349 accrues once plaintiff pays additional, unnecessary or excessive amounts for a service. Id. In this case, Mr. Barber and Ms. Thomas' claims accrued no later than sometime in January 2011 and 2013, respectively, and are therefore barred by the applicable three (3) limitation period. As alleged, Mr. Barber began suffering from bed bug bites moved into Defendants' building sometime in 2008 which he has suffered from continually since that time. (Dkt. Ent. #24 at ,r,r49 and 51). Since no specific month had been pled for Mr. Barber's move in date or date he first suffered injury, the pleading viewed most favorable, provide that Mr. Barber suffered his injury no earlier than December 2008. If it is accepted that he suffered his injury in December of 2008, his claim would have accrued in January of 2009 when he paid his rent in full for an allegedly defective apartment. Thus, Mr. Barber's §349 claim ran in January of 2012 and should be dismissed as being barred by the applicable statute of limitations. 22 Case 6:16-cv-01529-MAD-TWD Document 27-1 Filed 04/18/17 Page 30 of 33 Similarly, Ms. Thomas moved into Defendants' building in August of 2004 (Dkt. Ent. #24 at if69). She first began to experience an infestation of bedbugs at an undisclosed time in 2012 (Dkt. Ent. #24 at if70). In arguendo, if it is assumed Ms. Thomas did not begin experiencing the infestation until December of 2012, her claim would have accrued no later than January of2013 when she paid her rent due for the month. Thus, Ms. Thomas' claim under §349 ran in January of 2016 and should be dismissed as barred by the applicable statute of limitations. C. Individual Plaintiffs, Barber, Grinnell, Lees and Thomas', Negligence Claims Are Barred by the Applicable Statute of Limitations. No action against a public housing authority shall be commenced after one (1) year and ninety (90) days from the happening of the event causing injury. N.Y. Pub. Hous. Law §157(2). A claim accrues the day upon which a claimant experiences the physical indicia of his/her injuries or became "aware of the primary condition for which damages are sought.". Corcoran v. N.Y. Power Auth., 202 F.3d 530, 540 (2d Cir. 1999)(quoting Whitney v. Quaker Chem. Corp., 683 N.E. 2d 768, 90 N.Y. 2d 845, 660 N.Y.S. 2d 862, 862 (1997)). In Corcoran, the Second Department upheld the district court's dismissal of plaintiffs complaint for exposure to excessive amounts radiation on the grounds that plaintiff failed to comply with N.Y.'s notice requirements under General Municipal Law §50-e. Id., 202 F .3d at 541. The Court agreed with the district court's analysis that the claim accrued when plaintiff became aware of her condition not upon a confirmed diagnosis of it. Id. Here, Plaintiffs, John W. Barber, David R. Grinnell, Timothy J. Lees and Marshall Thomas, are barred by the applicable one year and ninety-day statute of limitations. As previously discussed, Mr. Barber's claim, based upon his veiled pleadings, accrued either in 2008 or no later than December 2013. (Dkt. Ent. #24 at ,r,r18, 49 and 50). In any event, Mr. 23 Case 6:16-cv-01529-MAD-TWD Document 27-1 Filed 04/18/17 Page 31 of 33 Barber's should be precluded from maintaining a negligence claim against Defendants as the statute of limitations ran for Mr. Barber on March 31, 2014. Mr. Grinnell alleges he began experiencing bedbugs in his apartment in July of 2015. (Dkt. Ent. #24 at ,r,r60-63). Mr. Grinnell's claim ran on October 28, 2016. Mr. Lees plead that he first began to experience bedbugs on some undisclosed date in 2014. (Dkt. Ent. #24 at ,r,r66). Assuming the most favorable date for Mr. Lees of December 31, 2014 for calculation purposes, his claim ran March 30, 2016. Similarly, Ms. Thomas claims her first exposure on an undisclosed date in 2012. (Dkt. Ent. #24 at if70). Again, assuming the most favorable date for Ms. Thomas, her claim still ran on March 31, 2014. Hence, Plaintiffs, John W. Barber, David R. Grinnell, Timothy J. Lees and Marshall Thomas', Third Cause of Action should be dismissed as being barred by the applicable statute of limitations. D. Plaintiffs' Fourth Cause of Action for Unjust Enrichment Should Be Dismissed as They Have Adequate Legal Remedies to Pursue. "To state a [claim] for unjust enrichment, the [plaintiff] must show that the defendant received money from or was otherwise enriched by the plaintiff to the defendant's benefit and, pursuant to principles of equity and good conscience, the defendant should not retain what plaintiff seeks to recover.". Diblanca v. Town of Marlborough, No. 1:13-cv-1579 (MAD/RFT), 2014 WL 2866341 *21 (N.D.N.Y. June 24, 2014)(quoting Deutsche Asset Mgmt., Inc. v. Callaghan, No. 01 Civ. 4426, 2004 U.S. Dist. Lexis 5945, 2014 WL 758303, *11 (S.D.N.Y. Apr. 7, 2004 )( citations omitted)) The theory of unjust enrichment is an equitable remedy permitting the Court to create a legal fiction, i.e. a quasi-contract between the parties, to prevent a defendant from receiving a benefit that would pursuant to the principals of equity and good conscience should not be retained by defendant. Id. 2014 WL 2866341 *20. Furthermore, New York 24 Case 6:16-cv-01529-MAD-TWD Document 27-1 Filed 04/18/17 Page 32 of 33 recognizes the existence of written and oral leases with respect to the residential properties and provides tenants adequate legal remedies for any dispute with their landlord. See e.g., N.Y. Real Prop. Law §235-b (Lexis 2017). In this case, Plaintiffs' plead the existence of such a lease. (Dkt. Ent. #24 at if22). Further, by their own admission, the individual Plaintiffs have resided in their respective apartments for an enough time to establish a landlord-tenant relationship with Defendants, thereby providing legal remedy to their complaints. (Dkt. Ent. at ifif48, 54, 60, 65, and 69). Thus, Plaintiffs' Fourth Cause of Action should be dismissed as they have an adequate remedy in law. CONCLUSIONS In view of the foregoing points it is respectfully submitted that the Plaintiffs have failed to sufficiently plead a cause of action as against Defendants under Section 1983, New York Statutory, or common-law and therefore, the Complaint must be dismissed in its entirety with prejudice together with such other and further relief this Court deems just and proper. DATED: April 18, 2017 Albany, New York Resp~~ll submitted, / I I ' I I I J I ,_ By: I I 25 John W /Li I or",, Esq. NDNY/Bar\~ol No. 507379 Of Counsel, T ne, Ryan & Partners, P.C. Attorneys for efendants - Rome Housing Authority, James Baldwin, and Darcel Puleo 450 New Kamer Road Albany, New York 12212 (518) 452-1800 Case 6:16-cv-01529-MAD-TWD Document 27-1 Filed 04/18/17 Page 33 of 33