with HUD," when in fact they had no intention of doing so. At
best, this cause of action seems to allege fraud. However, it
fails to plead the specific elements of fraud with the
specificity required by Fed. R.Civ.P. 9(b), and therefore fails
to state a substantive cause of action.
Accordingly, the fifth and sixth causes of action are dismissed
for failure to state a claim under Rule 12(b)(6).
H. As to leave to replead
While the Plaintiffs have not requested leave to replead, this
Court in any event denies such leave. The Court has twice given
the Plaintiffs an opportunity to refine, sharpen, and specify
their claims, Mooney v. Vitolo, 435 F.2d 838, 839 (2d Cir.
1970) (leave to replead denied after two prior amendments to
complaint failed to cure defects), and yet the second amended
complaint still remains vague and confusing in some places.
Despite this Court's strong caution to the Plaintiffs that
"perfunctory or cosmetic changes" to the amended complaint would
not be sufficient, 47 F. Supp.2d at 371, the second amended
complaint indicates that the Plaintiffs apparently did not
adequately heed this warning. They failed to make any meaningful
changes to causes of action that had already been found to be
insufficient, such as the Monell claim, see 47 F. Supp.2d at
370-71, and continued to assert separate causes of action against
individuals who were completely omitted from the factual
allegations. Moreover, while the Plaintiffs may have excised
certain claims from the second amended complaint after the court
dismissed them, they left the underlying factual allegations that
supported those claims in the complaint, forcing the Court to
guess whether the Plaintiffs were continuing to pursue or
reassert these claims.
In light of the two prior efforts to remedy the defects in the
complaint and the Plaintiffs' failure, in part, to comply with
the previous order of the Court, leave to replead the second
amended complaint is denied.
For the foregoing reasons, except to the extent the first cause
of action alleges a cause of action under Section 1983 against
Defendants Gulotta, Walsh, Owens, and Cynar for retaliation
against the Plaintiffs for exercising their right to free speech
and for violation of the Equal Protection Clause relating to the
County's taking of a tax deed to the Plaintiffs' property, the
motions to dismiss the Section 1983 cause of action are GRANTED.
The motions to dismiss the second cause of action, alleging
municipal liability under Monell are GRANTED.
The motions to dismiss the third cause of action under Sections
1985 and 1986 are GRANTED.
The motions to dismiss the fourth cause of action for
interference with prospective economic advantage are GRANTED. The
motions to dismiss the fifth and sixth causes of action for
declaratory and other relief are GRANTED.
The caption of the case is amended to read:
ECONOMIC OPPORTUNITY COMMISSION OF NASSAU COUNTY, INC.; CEDC,
INC.; and JOHN L. KEARSE, Plaintiffs v. THOMAS GULOTTA; OWEN B.
WALSH; KENNETH CYNAR; and JOSEPH W. RYAN, JR., Defendants.
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