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
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).
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.
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.
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)
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,