The opinion of the court was delivered by: WILLIAM CONNER, Senior District Judge
Plaintiffs Loronda Murphy, Vincent Murphy, her husband, and
Barbara Balaber-Strauss, trustee of the bankrupt estate of Mrs.
Murphy, bring this action pursuant to 42 U.S.C. § 1983 against
(1) the Town/Village of Harrison (the "Town"); (2) Frank
Allegretti, the Town attorney; (3) Stephen Malfitano, the Town
mayor; and (4) John Doe and Richard Roe, unidentified Town
detectives (collectively, "defendants"). Plaintiffs claim
defendants abused their respective governmental powers to
retaliate against plaintiffs and chill plaintiffs' First
Amendment rights by making defamatory comments about the Murphys
at a public meeting during which the Town's foreclosure of the
Murphy's home was discussed. Plaintiffs also allege violations of
their Fifth and Fourteenth Amendment rights, as well as a state
law claim for defamation.
Defendants now move to dismiss the Second Amended Complaint
(the "Complaint") pursuant to FED. R. CIV. P. 12(b)(6) for
failure to state a claim upon which relief can be granted. This
Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343.
For the reasons set forth herein, the motion to dismiss is
granted as to all the federal claims asserted in the Complaint.
As this Court declines to exercise supplemental jurisdiction over
the remaining state law defamation claim, that cause of action is
dismissed without prejudice.
The following statement of facts, which, for the purposes of
this motion, we assume to be true, is based on plaintiffs'
Complaint and the exhibits incorporated therein by reference.
Mrs. Murphy purchased a residential home located at 1596 Old
Orchard Street in the Town (the "Property") for $545,000 and took
title to the Property by deed dated June 29, 2000. (Complt. ¶
11.) By December 16, 2002, Mrs. Murphy had not paid real property
taxes on the Property, accruing an arrearage of $28,673.28.
(Id. ¶ 12.) As a result, the Town commenced an in rem tax
foreclosure proceeding in New York State Supreme Court for the
County of Westchester against the Property and nineteen other
properties also delinquent in the payment of real property taxes.
(Id. ¶ 13.)
The Town set a redemption date of May 9, 2003 (id. ¶ 13) and
allegedly served Mrs. Murphy and her mortgagor, Washington Mutual
Bank, F.A., with notice of the proceeding via ordinary mail.
(Id. ¶ 14.) After the redemption date passed with no payment
having been made, the Town moved for entry of a default judgment
against Mrs. Murphy's property. (Id. ¶ 16.) At that point, Mrs.
Murphy filed her opposition to the motion, claiming no notice was
given. (Id. ¶ 17.) The New York Sate Supreme Court nevertheless
granted the Town's motion for default judgment, awarding legal
title to the Property to the Town. (Id. ¶ 18.) By deed dated
September 26, 2003, the Town's Receiver of Taxes officially
conveyed title to the Town. (Id. ¶ 19.)
Through an agreement with the Town, the Murphys and their two
children continued living on the Property while negotiations
toward a resolution of the debt proceeded. (Id. ¶¶ 20, 22.)
During this period, Mrs. Murphy, with the assistance of an
organization called Concerned Harrison Homeowners ("CHH"), mailed
letters to Town residents explaining her situation and urging the
residents to contact the Town to voice their opposition. (Id. ¶
39 & Ex. A.) The campaign proved effective, garnering support for
the Murphy's cause and leading residents to contact Town
officials to express their disapproval of the Town's actions.
(Id. ¶ 40 & Ex. B.)
On or about February 26, 2004, negotiations broke down. (Id.
¶ 23.) The Town held a scheduled public meeting that evening, at
which the CHH campaign was addressed. (Id. ¶¶ 41-42.) At the
beginning of the public comment and participation portion of the
meeting, during which time Mrs. Murphy was registered to speak,*fn1
Over the past several days, as most of you are aware,
there was a mailing that was sent to the residents of
Harrison by an organization that is referred to in
the mailing as "Concerned Harrison Homeowners." The
purpose of the mailing was to call attention to the
Town of Harrison's foreclosure on (the Subject
Property). I want all of you to know who are here
this evening and who are listening that the mailing
does contain false and misleading information.
(Id. ¶ 42.) Malfitano then turned the meeting over to
Allegretti, who commented:
As the town attorney for the Town of Harrison, I feel
I have an obligation to set the record straight on
the misinformation that is being distributed to the
public in connection with a certain tax foreclosure
proceeding that I had brought on behalf of the Town
of Harrison against certain properties within the
town, one of them including property located at 1596
Old Orchard Street in Harrison whose title owner is
Loronda Murphy. Ms. Murphy purchased this property
following a mortgage foreclosure sale in June of
2000, for what appears to be the price of
$200,000.00. Mrs. Murphy was able to take cash from
the closing for herself as she obtained a mortgage in
the amount of $485,000.00.
. . .
It has also come to the attention of the Town that
Mrs. Murphy and her husband claimed tax deductions on
their personal tax returns submitted to both the IRS
and the New York State Commission for the years 2001
and 2002, years in which they paid absolutely no
taxes to the Town.
(Id. ¶¶ 55, 57.) The meeting was broadcast on local cable
television three times each day for two weeks, and the statements
were published in the March 5, 2004 edition of the Harrison
Report, a local Town newspaper.*fn2
(Id. ¶¶ 57, 64.)
Plaintiffs deny the truth of these assertions. On March 1, 2004, Mrs. Murphy filed a voluntary petition
seeking relief under Chapter 13 later converted to Chapter 7
of the Bankruptcy Code with the United States Bankruptcy Court
for the Southern District of New York ("Bankruptcy Court").
(Id. ¶ 24.) Balaber-Strauss was appointed trustee of the
bankruptcy estate at that time. (Id. ¶ 25.)
Three days later, Allegretti and several Town police officers
came to the Property. (Id. ¶ 27.) The parties agree that Mr.
Murphy informed Allegretti that any action by the Town would be
in violation of 11 U.S.C. § 362, the automatic stay of
enforcement proceeding provision of the Bankruptcy Code.*fn3
(Id. ¶ 28.) Plaintiffs allege Allegretti responded that the
"`Federal Bankruptcy Court means nothing to Harrison' and that
the automatic bankruptcy stay did not apply." (Id. ¶ 29.) At
some point during this meeting, an unidentified attorney
representing Mrs. Murphy reached an agreement with Allegretti
whereby Allegretti and the Town's building inspector would
inspect the Property and then leave the premises. (Id. ¶ 30.)
According to the Complaint, Allegretti left the premises after
the inspection but returned some hours later with a "phalanx" of
Town police officers and "forcibly evicted" the Murphys from the
Property. (Id. ¶¶ 31-32.)
On or about April 23, 2004, plaintiffs allege detectives Doe
and Roe appeared at Mr. Murphy's mortgage business looking for
Mrs. Murphy, who worked for her husband, in order to question her
in connection with a criminal investigation relating to the
Property. (Id. ¶ 71; Pls. Mem. Opp. Mot. Dismiss at 8-9.)
According to the Complaint, the detectives read Mr. Murphy his
Miranda rights and proceeded to interrogate him about doors and
windows missing from the Property. (Complt. ¶ 72.) The detectives
left without arresting Mr. Murphy, and no criminal charges were filed against him or his wife. (Id. ¶ 73.)
On May 4, 2004, Balaber-Strauss commenced an action in
Bankruptcy Court against the Town seeking to set aside the
conveyance of the Property. Plaintiffs filed the instant action
on February 7, 2005.
On a motion to dismiss pursuant to FED. R. CIV. P. 12(b)(6),
the issue is "whether the claimant is entitled to offer evidence
to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236
(1974), overruled on other grounds by Davis v. Scherer,
468 U.S. 183 (1984). A court's task in determining the sufficiency of
a complaint is "necessarily a limited one." Id. A complaint
should not be dismissed for failure to state a claim "unless it
appears beyond doubt that the plaintiff can prove no set of facts
in support of his claim which would entitle him to relief."
Padavan v. United States, 82 F.3d 23, 26 (2d Cir. 1996)
(quoting Hughes v. Rowe, 449 U.S. 5, 10 (1980)). Generally,
"[c]onclusory allegations or legal conclusions masquerading as
factual conclusions will not ...