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GILMORE v. AMITYVILLE UNION FREE SCHOOL DISTRICT

March 2, 2004.

ALEXANDRA GILMORE and JULIET JORDAN-THOMPSON, on behalf of themselves and the Voters of the Amityville Union Free School District, Plaintiff(s), -against-, THE AMITYVILLE UNION FREE SCHOOL DISTRICT, LEROY VAN NOSTRAND, BRUCE MacGILL, STEPHANIE ANDREWS, and GEORGE WOLF, Defendant(s)


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

MEMORANDUM AND ORDER
Defendants Amityville Union Free School District ("the District"), Stephanie Andrews ("Andrews") and Bruce MacGill ("MacGill"), (collectively "defendants") bring this motion to dismiss the amended complaint of plaintiffs Alexandra Gilmore ("Gilmore") and Juliet Jordan-Thompson ("Jordan-Thompson"), (collectively "plaintiffs"), for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6).*fn1 Page 2 The defendants also move to dismiss the amended complaint against the individual defendants, Andrews and MacGill, pursuant to Fed.R.Civ.P. 12(b)(2) for lack of personal jurisdiction based on a failure to timely serve in accordance with Rule 4(m) of the Federal Rules of Civil Procedure. Alternatively, the defendants move to stay the proceedings based on abstention principles due to the related administrative proceeding (the "Administrative Proceeding") before the New York State Commissioner of Education.*fn2

This is the defendants' second motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). Oral argument on the defendants' first motion to dismiss the plaintiffs' original complaint was heard on January 31, 2003. In an Order dated February 9, 2003, this Court dismissed the plaintiffs'_1983 claims with leave to Page 3 amend, advising the plaintiffs to "adequately allege municipal liability and to clarify the basis for a finding of intentional or purposeful discrimination." Gilmore v. Amityville Union Free School District, No. 02-CV-3751, at 23 (February 27, 2003).*fn3 Page 4

  For the foregoing reasons, defendants' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) should be GRANTED as to all federal claims, and as this Court declines to exercise supplemental jurisdiction pursuant to 28 U.S.C. _1367(c)(3), all remaining State law claims should also be DISMISSED without prejudice to any similar State proceedings.

  BACKGROUND

  This is a purported class — action which challenges the District's election for three seats on its Board of Education. As a Fed. R. Civ. P. 12(b)(6) motion requires this Court to find all allegations contained in the plaintiffs' amended complaint to be true, the facts below are derived from the amended complaint, unless otherwise Page 5 indicated.

 A. The Parties

  Named plaintiffs Gilmore and Jordan-Thompson are African — Americans and residents of the District. Gilmore resides in Massapequa, New York and Jordan-Thompson is a resident of Amityville, New York.

  While not a party to the present action, Tori A. Bean ("Bean"), who is African — American and Sam Williams ("Williams"), who is Caucasian, are also residents of the District. Jordan-Thompson, Bean and Williams were all candidates for the Board, as well as voters in the District, in May 2002.

  The plaintiffs purport to represent a class of approximately 1,800 voters of the Amityville School District, whose votes in a May 21, 2002, school board election were allegedly wrongfully tampered with and counted for the wrong candidates after the votes were tallied.

  Defendant District is a duly organized school district existing under the laws of the State of New York, located in Amityville, New York. Defendants MacGill, Van Nostrand, Williams and Wolf are residents of Suffolk County, New York, and each is an agent or employee of the District.

 B. Factual Background Page 6

  1. The Election

  The May 21, 2002, school board election was for three seats on the District's Board of Education ("Board"). Bean ran as a candidate for Seat #1 against Connie Palazzo ("Palazzo"). Bean was the incumbent. Jordan-Thompson ran as a candidate for seat #3. Running against her was Barbara Trant ("Trant")*fn4 and Diane Egglinger ("Egglinger"). Williams ran for Seat #5 against Charles Walters ("Walters"). Bean, Jordan-Thompson and Williams ran as a group known as "Strong Voice of Parents" ("SVP"). Palazzo, Egglinger, Walters and defendant Andrews ran as the "MMAC pack", a name given to them by a local newspaper. The ballot was set up by the District. The relevant part of the ballot was set up as follows:
Seat #1
1A Palazzo 1B Bean 1C [blank]
Seat #3 3A Trant 3B Jordan-Thompson 3C Egglinger 3D [Blank]
  Seat #5 Page 7
 
5A Williams 5B Walters 5C [Blank]
  The voting machines were provided to the District by "Election Machine Services" ("EMS"), a private company retained by the District. The President of EMS is Wolf, who is a former Suffolk County Board of Elections Commissioner.

  The election took place at two locations: the Amityville High School and the Northeast Elementary School. There were two voting machines ...


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