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March 3, 2000


The opinion of the court was delivered by: McAVOY, Chief Judge.


Plaintiff, Evac, LLC ("Evac"), commenced this action on July 21, 1999 alleging claims under the Sherman Antitrust Act of 1890, 15 U.S.C. § 1, et. seq. ("Sherman Act"), the Clayton Antitrust Act, 15 West Page 253 U.S.C. § 15, et. seq. ("Clayton Act"), and New York's Donnelly Act, N.Y. GEN. BUS. LAW § 340(1) ("Donnelly Act"). Evac further asserts claims under the Civil Rights Act, 42 U.S.C. § 1983, alleging that Defendants violated its rights under the Due Process Clause, Equal Protection Clause, Takings Clause, and the Federal Aviation Act, 49 U.S.C. § 40101, et. seq. (the "FAA") by providing free medical air transport services that had an adverse impact on its business. Plaintiff seeks injunctive and declaratory relief, monetary damages, and attorney's fees and costs.

Defendants Pataki and McMahon ("Defendants") move to dismiss Evac's Complaint in its entirety pursuant to FED. R. CIV. P. 12(b)(6) for failure to state a claim and/or qualified immunity. Evac cross-moves pursuant to FED. R. CIV. P. 15(a) for leave to amend the Complaint to add causes of action based on the Supremacy and Commerce Clauses.

I. Background

In considering a motion to dismiss, the Court accepts as true the factual allegations in the Complaint. See Dwyer v. Regan, 777 F.2d 825, 828-29 (2d Cir. 1985), modified on other grounds, 793 F.2d 457 (1986). Those allegations follow.

Evac is a medical air transport service, established in January 1996, operating in upstate New York in the region of Lewis, Jefferson, and St. Lawrence counties. Evac is a for-profit LLC, subject to federal taxation and FAA regulations. For approximately a year and a half, Evac operated a successful air transport service for various hospitals. Evac maintained a 24-hour, seven day a week, emergency on call service, which could perform an emergency lift off within seven minutes. In 1998, Defendants began providing free medical air transportation services using New York State helicopters. The helicopter service provided by Defendants may not be as timely as Evac's. Moreover, as a state entity, Defendants do not pay federal taxes and are not subject to FAA regulations.*fn1

Evac's business has decreased drastically since Defendants began providing free transport services. As a result, Evac now runs a 12-hour service instead of a 24-hour service.

II. Discussion

Presently before the Court is Defendants' motion pursuant to FED. R. CIV. P. 12(b)(6) to dismiss Evac's Complaint in its entirety and Evac's cross-motion for leave to amend the Complaint pursuant to FED. R. CIV. P. 15(a).

A. Standard

A district court should grant a motion to dismiss under FED. R. CIV. P. 12(b)(6) for failure to state a claim only if "`it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249-50, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)); see also Annis v. County of Westchester, 36 F.3d 251, 253 (2d Cir. 1994). In applying this standard, a district court must "read the facts alleged in the complaint in the light most favorable" to the plaintiff, and accept these allegations as true, id. at 249, 109 S.Ct. 2893; see also Christ Gatzonis Elec. Contractor, Inc. v. New York City Sch. Constr. Auth., 23 F.3d 636, 639 (2d Cir. 1994); LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991); Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir. 1989), and to consider documents attached to or incorporated by reference in the complaint. See Romea v. Heiberger & Assocs., 163 F.3d 111, 114 (2d Cir. 1998) (citing Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998)). The Court's duty is "to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980); accord Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). The appropriate inquiry, therefore, is not whether a plaintiff will ultimately prevail but whether he is entitled to offer evidence to support the claims. See Ricciuti v. New York City Transit Auth., 941 F.2d 119, 124 (2d Cir. 1991) (plaintiff is not compelled to prove his case at the pleading stage). Therefore, the court should not dismiss on a Rule 12(b)(6) motion unless it appears clear that the plaintiff cannot in any way establish a set of facts to sustain his claim which would permit relief. See Hughes v. Rowe, 449 U.S. 5, 10, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980); Cooper, 140 F.3d at 440 ("Although bald assertions and conclusions of law are insufficient, the pleading standard is nonetheless a liberal one."); Boddie v. Schnieder, 105 F.3d 857, 860 (2d Cir. 1997); Bernheim v. Litt, 79 F.3d 318, 321 (1996); Bass v. Jackson, 790 F.2d 260, 262 (2d Cir. 1986).

Additionally, the Rules do not require the claimant to set out in detail the facts upon which the claim is based, but only that a defendant be given "fair notice of what the claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Individual allegations, however, that are so baldly conclusory that they fail to give notice of the basic events and circumstances of which the plaintiff complains are meaningless as a practical matter and, as a matter of law, insufficient to state a claim. Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987).

It is with these standards in mind that the Court addresses Evac's claims.

B. Section 1983 Claims

Evac asserts both statutory and constitutional claims pursuant to Section 1983 against Defendants McMahon and Pataki. In response, Defendants contend that Evac's claims should be dismissed because: (1) Defendants were not personally involved in the complained of actions; (2) Evac's claims are not properly pled or are not viable; and (3) Defendants are shielded from liability by Eleventh Amendment and/or qualified immunity. The Court will address these claims in seriatim.

1. Personal Involvement

Defendants first contend that Evac's Section 1983 claims should be dismissed because Evac does not allege particular allegations of individual conduct, without which a Section 1983 claim must fail. See Def. Mem. of Law at 17.

To state a cognizable claim under Section 1983, Evac must allege: (1) that some person has deprived it of a federal right and (2) that the person who deprived it of that right acted under the color of state law. See Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980). Evac must also show that the Defendants were personally involved in the complained of conduct. See, e.g., Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985). "Where damages are sought in a Section 1983 action, the defendant must be responsible for the alleged constitutional deprivation: `[t]he general doctrine of respondeat superior does not suffice and a showing of some personal responsibility of the defendant is required.'" Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060, 1065 (2d Cir. 1989) (internal quotations and citations omitted); see also Monell v. Dep't of Social Serv., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (rejecting respondeat superior liability in section 1983 context). Accordingly, a court must look to the extent of each Section 1983 defendant's involvement in the complained of acts to determine liability. See Al-Jundi, 885 F.2d at 1065.

In this case, Evac alleges that Defendants are liable in their supervisory capacity. When supervisory liability is alleged, the requisite personal involvement may be shown in one or more of the following five ways:

(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of [plaintiff] by failing to act on information indicating that unconstitutional acts were occurring.

Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (quoting Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986)). Evac's Complaint alleges that "defendants Pataki and Mac Mahon [sic] joined the combination and boycott in providing free air transportation services contrary to federal law. The latter defendant provided free service of the New York State helicopters contrary to Federal Law." Complaint, ΒΆ 17. Although the Complaint does not explain how Defendants allegedly joined the boycott or whether Defendants had personal knowledge that New York State helicopters were used for medical transport, when developed, the facts could show that Defendants had sufficient personal involvement to create supervisory liability under Section 1983. Accordingly, the Complaint alleges sufficient personal involvement to survive a motion to dismiss pursuant to FED. R. CIV. P. 12(b)(6). See, e.g., Ricciuti, 941 F.2d at 123 (Finding that a Section 1983 claim should not be dismissed for failure ...

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