The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
Siragusa, J. This employment discrimination case is before the Court on defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), 12(b)(6) and the Colorado River abstention doctrine, or in the alternative, to stay the action pending the outcome of plaintiff's State court action. For the reasons stated below, the motion is denied. The action pending in State court is not duplicative of the action pending before this Court. Consequently, there is no basis for abstention. Further, plaintiff's complaint does sufficiently state causes of action to avoid dismissal under Rule 12(b)(6).
Plaintiff alleges that he is a 19-year veteran of the Greece Police Department, employed since October 2, 1985 as a police officer. He further alleges that in October 1996, he was assigned to a Multi-Agency Drug Task Force ("MADTF") as a narcotics investigator/detective. The MADTF later became the Greater Rochester Area Narcotic Enforcement Team ("GRANET"). Plaintiff served in the MADTF and later the GRANET, as a narcotics investigator/detective for more than 72 months. He then petitioned defendants demanding that he be "placed as an investigator/detective under New York State Civil Service Law.." (Compl. ¶¶ 14, 17.) Although not set forth as an allegation in plaintiff's complaint, presumably his request was denied, since on May 8, 2002, he commenced a court proceeding. More specifically, he filed a petition in New York State Supreme Court under New York Civil Procedure Law and Rules, Article 78, seeking a judicial order directing that he be designated as an investigator/detective. That litigation is ongoing.*fn1 On February 12, 2003, defendants terminated plaintiff's position with MADTF/GRANET and moved him to road patrol. While litigation was pending (plaintiff's complaint does not specify a date), plaintiff alleges that Greece Police Department Chief Merritt Rahn stated to him that, "I may as well throw away my pencil [break off all your pencils and throw them away] [sic], you will never get promoted." (Compl. ¶ 20.)
During June 2002, plaintiff states that he took the examination for promotion to sergeant in the Greece Police force, but was passed over on three occasions by less senior and less experienced officers. On August 16, 2004, plaintiff alleges that he applied for an open position on GRANET. He further alleges that despite his 19 years of seniority and superior qualifications for the position, he did not receive an the appointment. Plaintiff further states that, pursuant to a collective bargaining agreement, he filed a grievance against the Town of Greece, Greece Police and Chief Rahn, but has not received any response. He asserts that defendants' actions against him are retaliatory, and that defendants have subjected him to a hostile working environment.
Plaintiff filed a complaint in this Court on February 1, 2005, alleging seven causes of action: (1) violation of his procedural due process rights; (2) violation of his substantive due process rights; (3) violation of his First Amendment rights; (4) violation of his Equal Protection rights as a result of an arbitrary and capricious demotion; (5) conspiracy to violate his civil rights contrary to 42 U.S.C. § 1985; (6) violation of his Equal Protection rights resulting in emotional distress; and (7) loss of reputation, property rights and economic losses as a result of defendants' acts.
Defendants moved, on March 22, 2005, to dismiss the complaint, arguing that "application of the Colorado River factors demonstrate that the instant case is an exceptional case where the interests of 'conservation of judicial resources and comprehensive disposition of litigation' militates in favor of abstention." (Defs.' Mot. to Dismiss ¶ 12 (quoting Colorado River Water Conservation District v. United States, 424 U.S. 800, 817 (1976).)
In considering a motion for dismissal under Rule 12, a defendant must show that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. See H.J. Inc. v. Northwest Bell Telephone Co., 492 U.S. 229, 249 (1989); see also 2 MOORE'S FEDERAL PRACTICE, § 12.34[a] (Matthew Bender 3d ed.). "In considering a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6), a district court must limit itself to facts stated in the complaint or in documents attached to the complaint as exhibits or incorporated in the complaint by reference." Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir. 1991). The Court must view the complaint, and draw all reasonable inferences, in the light most favorable to the non-moving party. Id.; see also 2 MOORE'S FEDERAL PRACTICE, § 12.34[b] (Matthew Bender 3d ed.) (court must accept plaintiff's factual allegations as true). Under the modern rules of pleading, a plaintiff need only provide "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), and that "all pleadings shall be so construed as to do substantial justice," Fed. R. Civ. P. 8(f). On a Rule 12(b)(6) motion, the issue before the Court "is not whether a plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claim." Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995).
A motion to dismiss under Rule 12(b)(1) may be granted only if a plaintiff fails to prove by a preponderance of evidence that subject matter jurisdiction exists over his complaint. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). When considering a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the Court may consider affidavits and other materials beyond the pleadings to resolve the jurisdictional question. See Robinson v. Gov't of Malaysia, 269 F.3d 133, 141 n.6 (2d Cir. 2001). The Court must accept as true all material factual allegations in the complaint, but will not draw inferences favorable to the party asserting ...