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PRESTOPNIK v. WHELAN

March 26, 2003

JAN S. PRESTOPNIK, PLAINTIFF, VS. JOHN WHELAN, BOTH INDIVIDUALLY AND AS SUPERINTENDENT OF THE GREATER JOHNSTOWN SCHOOL DISTRICT, JAMES HILLIER, BOTH INDIVIDUALLY, AND AS PRESIDENT OF THE GREATER JOHNSTOWN SCHOOL DISTRICT, AND THE GREATER JOHNSTOWN SCHOOL DISTRICT, DEFENDANTS.


The opinion of the court was delivered by: David N. Hurd, United States District Judge

MEMORANDUM-DECISION and ORDER

I. INTRODUCTION

Plaintiff Jan Prestopnik commenced the instant litigation pursuant to 42 U.S.C. § 1983 arising out of defendants' alleged refusal to permit her attorney to speak at a Board of Education meeting. Defendants move to dismiss pursuant to Fed.R.Civ.P. 12(b)(6).

Plaintiff cross-moves for partial summary judgment pursuant to Fed.R.Civ.P. 56. Oral argument was heard in Utica, New York on December 12, 2002. Decision was reserved.

II. FACTS

Plaintiff was employed as a teacher with the Greater Johnstown School District (the "District") from September 1, 1999 through June 30, 2002. (Compl. at ¶ 7.) The District's Superintendent, defendant John Whelan, did not recommend plaintiff for tenure. (Id. at ¶ 8.) The Board of Education ("the Board") adopted Whelan's recommendation and did not tenure plaintiff. (Id. at ¶ 9.) Plaintiff hired Attorney Elmer Robert Keach, III ("Keach") to represent her in connection with her denial of tenure and termination of employment. (Id. at ¶ 11.)*fn1 Keach attended a July 9, 2002 Board meeting. (Id. at ¶¶ 13-14.) At the meeting, he attempted to address the Board to ask that they reconsider the tenure decision concerning the plaintiff. (Id. at ¶¶ 14-15.) The District's attorney, Patrick J. Fitzgerald,*fn2 informed him that he would not be permitted to raise the issue of plaintiff's tenure during the public session of the meeting. (Id.) Thereafter, following some heated discussion, Keach was precluded from discussing plaintiff's tenure. (Id. at ¶ 18.) He was invited to address the Board in writing on behalf of the plaintiff. (Keach Aff., Ex. A, p. 8.)

III. STANDARD OF REVIEW

A. Defendants' Motion to Dismiss

"`A court may dismiss a complaint [under Fed.R.Civ.P. 12] only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)). In deciding a Rule 12(b)(6) motion, a court "must accept as true all of the factual allegations contained in the complaint." Swierkiewicz, 534 U.S. at 508 n. 1; see also Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir.), cert. denied, 513 U.S. 816 (1994); Kaluczky v. City of White Plains, 57 F.3d 202, 206 (2d Cir. 1995). Conclusory allegations that merely state the general legal conclusions necessary to prevail on the merits and are unsupported by factual averments will not be accepted as true. See, e.g., Clapp v. Greene, 743 F. Supp. 273, 276 (S.D.N.Y. 1990), aff'd, 930 F.2d 912 (2d Cir.), cert. denied, 502 U.S. 868 (1991); Albert v. Carovano, 851 F.2d 561, 572 (2d Cir. 1988). A complaint is sufficient if it gives the defendants fair notice of the plaintiff's claims, the grounds upon which they rest, and states claims upon which relief could be granted. Swierkiewicz, 534 U.S. at 514.

B. Plaintiff's Cross-Motion for Partial Summary Judgment

The local rules of the Northern District of New York provide that

Any motion for summary judgment shall contain a Statement of Material Facts. The Statement of Material Facts shall set forth, in numbered paragraphs, each material fact the moving party contends there exists no genuine issue. Each fact listed shall set forth a specific citation to the record where the fact is established. . . . Failure of the moving party to submit an accurate and complete Statement of Material Facts shall result in a denial of the motion.
N.D.N.Y.L.R. 7.1(a)(3) (emphasis in original). Local Rule 7.1(b)(3) similarly provides that "[a]ny papers required under this Rule that are not . . . in compliance with this Rule shall not be considered unless good cause is shown."

"The Local Rules are not suggestions, but impose procedural requirements upon parties litigating in this District." Osier v. Broome County, 47 F. Supp.2d 311, 317 (N.D.N.Y. 1999). The requirements of, and effects of failure to comply with, Rule 7.1 are clear — a proper Statement of Material Facts is required and a non-conforming motion must be denied. N.D.N.Y.L.R. 7.1(a)(3) ("Each fact listed shall set forth a specific citation to the record. . . . Failure . . . to submit a . . . complete Statement of Material Facts shall result in a denial of the motion.") (emphasis added).

In support of her motion for partial summary judgment, plaintiff submitted a Statement of Material Facts Not In Dispute. (Dkt. No. 13.) However, plaintiff failed to provide a single citation to the record where each fact is established. In an attempt to salvage this procedural failure, in her Reply Statement of Material Facts Not in Dispute, plaintiff "supplements her earlier statement provided to the Court, and indicates for the Court that the record supporting her suggested material ...


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