Cablevision opposes his motion on the ground that his proposed
amendment would be futile. At the outset, the Court notes that
the amended complaint and the second amended complaint are
identical except for the allegations regarding the claim brought
pursuant to 42 U.S.C. § 1985.
Leave to file an amended complaint "shall be freely given when
justice so requires." Fed.R.Civ.P. 15(a). Only "undue delay, bad
faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously allowed,
undue prejudice to the opposing party . . . [or] futility of
amendment" will result in the court's denial of a motion for
leave to amend. See Foman v. Davis, 371 U.S. 178, 182, 83
S.Ct. 227, 9 L.Ed.2d 222 (1962); Dougherty v. Town of North
Hempstead Board of Zoning Appeals, 282 F.3d 83 (2d Cir. 2002);
Milanese v. Rust-Oleum, 244 F.3d 104, 110 (2d Cir. 2001).
Cablevision's only basis for opposing Goldberg's amendment is
its alleged futility.
Where, as here, a plaintiffs motion for leave to amend is
filed in response to a motion to dismiss under Fed.R.Civ.P.
12(b)(6), "leave to amend will be denied as futile only if the
proposed new claim cannot withstand a 12(b)(6) motion to dismiss
for failure to state a claim, i.e., if it appears beyond doubt
that the plaintiff can plead no set of facts that would entitle
him to relief." Milanese, 244 F.3d at 110 (citing Ricciuti v.
N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991)). Thus,
the question before the Court is whether Goldberg's proposed
Section 1985 claim can withstand a Rule 12(b)(6) motion to
dismiss for failure to state a claim.
In support of his proposed Section 1985 cause of action,
Goldberg alleges that Cablevision conspired with the Town and
NYSPSC to deprive him of "his right to cablecast programming on
the public access channel." Goldberg claims that Cablevision
entered into the Franchise Agreement with the intention of
controlling public access in a manner that enabled it to
maximize profits while limiting and prohibiting public access to
the maximum extent possible. According to the proposed second
amended complaint, the Franchise Agreement allows Cablevision to
exercise editorial control over the public access channel
capacity, because the Agreement grants Cablevision unlimited
power and control to write the rules and regulations for the
administration of the PEG channel capacity. Goldberg further
alleges that the revised Access User Contract and Access Rules
deprives public access users of their "rights to be free from
intimidation by the cable operator in their use of the public
access channel capacity." The plaintiff contends that he
informed the NYSPSC and the Town of this violation, but neither
entity took action. Accordingly, Goldberg claims a violation of
Goldberg does not specify in his proposed second amended
complaint which subsection of Section 1985 has been violated.
Section 1985(1) pertains to preventing an officer from
performing his duties; Section 1985(2) pertains to obstructing
justice by intimidating a party, witness, or juror; and Section
1985(3) pertains to depriving persons of their rights or
privileges. Given the factual allegations set forth in the
proposed amended complaint, the Court finds that Section 1985(3)
is the only relevant subsection.
To state a cause of action under Section 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 of a
right or privilege of a citizen of the United States. See
Thomas v. Roach, 165 F.3d 137, 146 (2d Cir. 1999).
Significantly, the conspiracy must also be motivated by "`some
racial or perhaps otherwise class-based, invidious
discriminatory animus behind the conspirators' action."
Thomas, 165 F.3d at 146 (quoting Mian v. Donaldson, Lufkin &
Jenrette Secs., Corp., 7 F.3d 1085, 1088 (2d Cir. 1993)); see
Gyadu v. Hartford Ins. Co., 197 F.3d 590, 592 (2d Cir. 1999).
In addition, the plaintiff must allege that the conspiracy was
"`aimed at interfering with rights' that are `protected against
private, as well as official, encroachment.'" Bray v.
Alexandria Women's Health Clinic, 506 U.S. 263, 268, 113 S.Ct.
753, 758, 122 L.Ed.2d 34 (1993) (quotation omitted).
Here, Goldberg makes no allegations that Cablevision, the
Town, and the NYSPSC acted with race-based discriminatory
animus. In addition, the only class to which Goldberg could
belong would be that of public access channel programmers,
which, to date, has not been found to be a class protected by
Section 1985(3). Indeed, "[w]hatever may be the precise meaning
of `class' for purposes of [§ 1985(3)], the term unquestionably
connotes something more than a group of individuals who share a
desire to engage in conduct that the § 1985(3) defendant
disfavors." Bray, 506 U.S. at 269, 113 S.Ct. 753, 122 L.Ed.2d
34; see United Brotherhood of Carpenters and Joiners of
America, Local 610, AFL-CIO v. Scott, 463 U.S. 825, 835, 103
S.Ct. 3352, 3360, 77 L.Ed.2d 1049 (1983) ("The predominate
purpose of § 1985(3) was to combat the prevalent animus against
Negroes and their supporters."); LeBlanc-Sternberg v.
Fletcher, 67 F.3d 412, 426-27 (2d Cir. 1995) (religion
satisfies the requirement of a class-based, invidiously
discriminatory animus), cert. denied, 518 U.S. 1017, 116 S.Ct.
2546, 135 L.Ed.2d 1067 (1996).
Even if the provisions of Section 1985(3) were intended to
protect a class consisting of public access channel programmers
so as to satisfy the requirement of Section 1985(3), Goldberg
still fails to allege that the defendants' conduct was motivated
by hostility toward public access channel programmers. Rather,
he contends that the defendants acted with the intent to control
public access in a manner that enabled it to maximize profits
while limiting and prohibiting public access to the maximum
extent possible. The defendants' alleged motivation does not
qualify as animus, much less class-based, invidiously
discriminatory animus. Further, even if Goldberg had alleged
some type of hostility on the part of the defendants, it would
be economically motivated, and group actions resting on economic
motivations are "beyond the reach of § 1985(3)." United
Brotherhood of Carpenters and Joiners, 463 U.S. at 839, 103
S.Ct. at 3361.
In sum, Goldberg's proposed Section 1985(3) cause of action
could not withstand a 12(b)(6) motion to dismiss for failure to
state a claim. As such, his motion for leave to file a second
amended complaint in regard to that cause of action is denied as
futile. See Milanese, 244 F.3d at 110.
C. The Motion for a Preliminary Injunction
Goldberg moves for a preliminary injunction against
Cablevision directing them to cablecast all of the plaintiffs
future public access television programming without requiring
that he sign an Access User Contract, unless the program
contains content within the statutory exception. Initially, the
Court notes that the claims brought pursuant to
47 U.S.C. § 531(e), and 42 U.S.C. § 1985(3) have been dismissed. As such,
the only claims remaining against Cablevision are a breach of
contract cause of action, a claim that
Cablevision violated N.Y. Pub. Serv. L. § 229(3), and a claim
pursuant to the Declaratory Judgment Act. Accordingly, the
motion for a preliminary injunction will be analyzed only in
regard to these remaining causes of action. The Court further
notes that neither party has requested a hearing, and the Court
finds that no hearing is required.
A preliminary injunction is considered an "extraordinary"
remedy that should not be granted as a routine matter. See JSG
Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75, 80 (2d Cir.
1990); Hanson Trust PLC v. ML SCM Acquisition, Inc.,
781 F.2d 264, 273 (2d Cir. 1986); Wandyful Stadium, Inc. v. Town of
Hempstead, 959 F. Supp. 585, 591 (E.D.N.Y. 1997). Ultimately,
however, the decision to grant or deny this "drastic" remedy
rests in the district court's sound discretion. See American
Exp. Fin. Advisors, Inc. v. Thorley, 147 F.3d 229, 231 (2d Cir.
1998); Molloy v. Metropolitan Transp. Auth., 94 F.3d 808, 811
(2d Cir. 1996).
In the seminal case of Jackson Dairy, Inc. v. HP Hood & Sons,
Inc., 596 F.2d 70, 72 (2d Cir. 1979) (per curiam), the Court of
Appeals set forth the applicable standard in this Circuit to
obtain preliminary injunctive relief. According to Jackson
Dairy, the movant must clearly establish the following: "(a)
irreparable harm; and (b) either (1) likelihood of success on
the merits or (2) sufficiently serious questions going to the
merits to make them a fair ground for litigation and the balance
of hardships tips in favor of the movant." Id.; see also,
Alliance Bond Fund, Inc. v. Grupo Mexicano de Desarrollo, S.A.,
143 F.3d 688, 696 (2d Cir. 1998); Maryland Casualty Co. v.
Realty Advisory Bd., 107 F.3d 979, 984 (2d Cir. 1997).
A showing of irreparable harm is considered the "single most
important requirement" in satisfying the standard. See Alliance
Bond Fund, Inc., 143 F.3d at 696; Reuters Ltd. v. United Press
Int'l, Inc., 903 F.2d 904, 907 (2d Cir. 1990) (recognizing that
"irreparable harm is the single most important prerequisite for
the issue of a preliminary injunction"). "A moving party must
show that the injury it will suffer is likely and imminent, not
remote or speculative, and that such injury is not capable of
being fully remedied by money damages." National Ass'n for
Advancement of Colored People, Inc. (NAACP) v. Town of East
Haven, 70 F.3d 219, 224 (2d Cir. 1995) (citing Tucker Anthony
Realty Corp. v. Schlesinger, 888 F.2d 969, 975 (2d Cir. 1989)).
The movant must establish more than a mere "possibility" of
irreparable harm. Rather, he must show that irreparable harm is
"likely" to occur. JSG Trading Corp., 917 F.2d at 79.
The Court finds no basis for Goldberg's assertion that unless
the Court directs Cablevision to cablecast his programs without
obtaining a signed and unaltered Access User Contract, his
programs will not be cablecast. As the Court found above, the
only reason that Goldberg's programs are not currently being
cablecast on Cablevision's public access channel is that
Goldberg refuses to sign an unaltered Access User Contract.
Further, Cablevision has presented the Court with affidavits and
exhibits demonstrating that on April 20, 2001 Goldberg's wife,
Barbara Goldberg ("Mrs.Goldberg") submitted a signed Access User
Contract and Access User Application and submitted three
programs, which Goldberg produced, for cablecasting. Cablevision
cablecast all three of these programs in April and May 2001.
Goldberg does not deny that his wife has submitted his programs
or that Cablevision has cablecast all the material she submitted
on his behalf. In sum, the Court finds that Goldberg has failed
to demonstrate a likelihood of irreparable harm, because his
programs are still being
cablecast and, if they are not, it is because he has failed to
submit a signed and unaltered contract.
Goldberg's reliance on Moss v. Cablevision, 22 F. Supp.2d 1
(E.D.N.Y. 1998), is misplaced. In Moss, this Court found that
the plaintiff would suffer irreparable harm, because unless the
Court directed Cablevision to air the plaintiffs programs, the
ideas and positions of the Marijuana Reform Party would not be
cablecast during the 60 days preceding the November 1998
election. This case does not involve the immediacy present in
Moss. More importantly, in Moss, the plaintiff had no power
to cablecast his programs other than obtaining a court order.
Here, however, it is clear that any injury Goldberg is suffering
is self-inflicted. Given that Cablevision is cablecasting all of
Goldberg's programs when Mrs. Goldberg submits them with a
signed and unaltered Access User Contract, it is clear that he
does not need a preliminary injunction, which is extraordinary
relief, to have his voice and views cablecast on Cablevision. In
addition, he need only submit a signed and unaltered Access User
Contract to have direct and full use of Cablevision's public
access channel. Given that the only objection Goldberg has to
Cablevision's Access User Contract is that it does not contain
his proposed language, it appears that he is amenable to the
provisions of an unaltered Access User Contract. Accordingly,
the Court finds that Goldberg has failed to demonstrate a
likelihood of irreparable harm, and his motion for a preliminary
injunction is denied with leave to renew upon a showing that he
has submitted a signed and unaltered Access User Contract, and
that Cablevision still refuses to cablecast his programs.
Having given the parties an opportunity for oral argument, and
based on the foregoing it is here
ORDERED, that Cablevision's motion to dismiss the complaint
pursuant to Fed.R.Civ.P. 12(b)(6) is GRANTED in regard to the
first and fifth causes of action, for violations of
47 U.S.C. § 531(e) and 42 U.S.C. § 1985(3) respectively; and it is further
ORDERED, that Cablevision's motion to dismiss the complaint
pursuant to Fed.R.Civ.P. 12(b)(6) is DENIED in regard to the
second, third, and fourth causes of action; and it is further
ORDERED, that Goldberg's motion to file a second amended
complaint in regard to the Section 1985(3) cause of action is
DENIED; and it is further
ORDERED, that Goldberg's motion for a preliminary injunction
is DENIED, with leave to renew upon a showing that he has
submitted a signed and unaltered Access User Contract, and that
Cablevision still refuses to cablecast his programs; and it is
ORDERED, that the parties are directed to report to United
States Magistrate Judge E. Thomas Boyle forthwith to proceed
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