The opinion of the court was delivered by: McAVOY, Chief Judge.
MEMORANDUM — DECISION & ORDER
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
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
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.
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.
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 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.
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 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.
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.
(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
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, ¶ 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 ...