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February 24, 2004.


The opinion of the court was delivered by: THOMAS PLATT, JR., Senior District Judge

Defendants the City of Long Beach, Eugene Cammarato, Edward Eaton and Lawrence Wallace move, pursuant to the Federal Rules of Civil Procedure, to dismiss the Second Amended Complaint filed against them by James Hodge. Defendants allege that the Court lacks subject matter jurisdiction, and that the Complaint fails to state a claim upon which relief may be granted. The Court heard oral argument on August 29, 2003. For the following reasons, Defendants' motion to dismiss the Complaint pursuant to FED. R. CIV. P. 12(b)(1), for lack of subject matter jurisdiction, is DENIED, and Defendants' motion to dismiss pursuant to FED. R. CIV. P. 12(b)(6), for failure to state claims upon which relief may be granted, is also Page 2 DENIED.


 A. Procedural History

  This is Defendants' second Rule 12(b) motion. Defendants' first motion was scheduled for oral argument on April 12, 2003, at which time the Court gave the parties time to review the motion in light of the Supreme Court's decision in Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002). The Court then heard Defendants' motion on May 16, 2003, and both granted dismissal and gave Hodge leave to file another amended complaint. Hodge filed his Second Amended Complaint on June 11, 2003, and alleged violations of Sections 1981, 1983, 1985, 1986 and 2000d of Title 42 of the United States Code, and of the Civil Service and Executive Laws of New York State. Hodge seeks $80,000,000 in damages. Defendants again move to dismiss under Rules 12(b)(1) and 12(b)(6).

 B. Factual History

  Hodge is a black male who resides in Long Beach, New York. The City of Long Beach ["the City"] hired Hodge in 1991. James Cammarato is the City's Director of Operations and leader of the Long Beach Democratic Party. Edward Eaton is the City Manager and a Democratic Committeeman. Lawrence Page 3 Wallace is the City's Animal Commissioner. See Second Amended Complaint at ¶¶ 7-11.

  In 1999, Hodge received appointment to the Nassau County Democratic Committee. That same year, the City named Hodge the City's Assistant Animal Warden. In this position, Hodge earned a salary at a pay scale of Grade 8, Step 2. On August 30, 2001, Cammarato authorized the City's payroll department to "increase in pay out of title as Assistant Animal Warden" Hodge's salary. Hodge's pay became that of Grade 11, Step 4. See id. at ___ ¶ 13-17.

  In August 2001, the City's Democratic Party establishment decided to support Thomas DiNapoli as a candidate for the office of Nassau County Executive. Hodge, however, decided to publicly support Thomas Suozzi for the same position.*fn1 Although a registered Democrat, Hodge also supported Republican candidates for the City Council in that election. See id. at ___ ¶ 18-20. Page 4

  Hodge alleges that in response to his political actions, he was "harassed" by the individually-named Defendants. For example, in a September 16, 2001, meeting between Hodge and Cammarato, the latter allegedly told Hodge, "How dare you oppose me? I gave you a raise. I can take everything away from you. I took care of you. I made you. I took you off the streets and I took care of everything at the Animal Shelter." Similar incidents of alleged harassment are alleged to have been perpetrated upon Hodge by Cammarato and the other Defendants. See id. at ___ 28.

  On November 7, 2001, after the City Council election, Cammarato reduced Hodge's salary from Grade 11, Step 4 to Grade 10, Step 2. Hodge also alleges that Cammarato "constructively demoted" him to his former position of Animal Control Officer, in that Cammarato refused to finalize Hodge's temporary promotion to Assistant Animal Warden. On February 11, 2002, due to continuing incidents of alleged harassment, many of which concluded by Hodge calling for the assistance of paramedics and police officers, Hodge requested a medical leave to seek treatment for a severe stress disorder. See id. at ¶¶ 46-49; Defendants' Memorandum of Law in Support of their Motion to Dismiss at 1.


 A. FED. R. CIV. P. 12(b)(1) Page 5

  Dismissal for lack of subject matter jurisdiction is appropriate only when a federal district court lacks the statutory or constitutional power to adjudicate the dispute before it. See Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). Jurisdiction on the basis of the existence of a federal question is found when a federal law creates a complaint's claim, or when a plaintiff's right to relief depends upon the resolution of a question of federal law. See Greenberg v. Bear, Stearns & Co., 220 F.3d 22, 25 (2d Cir. 2000).

  Hodge's Second Amended Complaint alleges that Defendants reduced his pay and demoted him because of his race, and because of the content of his political speech and the nature of his political associations. See Complaint at ¶¶ 2, 28 (the latter paragraph stating that "statements and threats were leveled against [Hodge] as an African-American and representative of the African-American community who sought to exercise his freedom of speech"). These claims clearly implicate the First and Fourteenth Amendments of the United States Constitution and, as such, invoke federal jurisdiction. See Vezzetti v. Pellegrini, 22 F.3d 483, 486-87 ...

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