The opinion of the court was delivered by: Brieant, J.
Before the Court in this action, based on federal question jurisdiction, for violation of election rights and vote dilution, is a motion for preliminary injunction pursuant to Fed. R. Civ. Pro. 65, filed on February 5, 2008 (Doc. No. 11 ) and motions to dismiss the Second Amended Complaint, pursuant to Fed. R. Civ. Pro. 12(b)(1) and (6), filed on February 26 and 27, 2008 (Doc. Nos. 13, 16). Opposition papers were filed on April 15, 2008 (Doc. No. 24). Reply papers were filed on May 2 and 5, 2008 (Doc. Nos. 26, 29). Oral argument was heard on May 9, 2008.
The following facts are presumed true for the purposes of these motions only. Plaintiff Ernest D. Davisbecame involved in Mount Vernon politics in the mid-1970's at the encouragement of Reginald Lafayette,the Democratic Commissioner of the Westchester County Board of Elections, a municipal Defendant in this case. Mr. Davis served the City in several positions including Buildings and Assessment Commissioner and Chairman of the Planning and Real Estate Boards.He was one of the first African Americans elected to the Westchester CountyBoard of Legislators, where he served six consecutive two year terms. He was elected as a "reform" Mayor of Mount Vernon on November 7, 1995, re-elected to a second term in November 1999 and a third in November 2003.
Some have referred to Defendant Clinton Young as Ernest Davis' political protégé. In 1995, Mr. Davis is said to have hand-picked Mr. Young to run for the seat that Mr. Davis vacated on the Westchester Board of Legislators in order to run for Mayor. In November 2007, Mr. Davis was on the ballot for re-election as Mayor. Defendant Young and Janet Snyder were also candidates for that office.
The City of Mount Vernon, cradled between the Bronx and Bronxville, has approximately 68,000 people residing in 4.4 square miles. One of the many cities, towns and villages that make up Westchester County, Mount Vernon has an African American voting majority, that is also predominantly Democratic. The City once suffered from a reputation as being a maladministered haven for drugs and crime. From the time he was first elected to public office, Mr. Davis focused on economic and redevelopment strategies to revitalize the City. His goal was to transform Mount Vernon into a great place to do business. Accomplishments over the eleven years that Mr. Davis held office include the Sanford Boulevard retail development center, which has generated increased employment and over $5 million in sales tax revenue; the Third Street corridor revitalization project, involving new construction allowing businesses to move into the street storefronts; the preservation of Levister Towers and the Hartley Park renovation. Also, as part of his greater vision for the redevelopment of the City, Mr. Davis, an architect by profession, restored the traffic "circle" into the Roundabout; just one step in the hopes of transforming the City into a lively destination for businesses, tourists and artists. During his tenure as Mayor, Mr. Davis authorized the hiring of more City police officers. In November 2005, in response to the large Brazilian population now present in Mount Vernon, the Mayor traveled to Pocos de Caldas, a blue-collar City in the mountains of southeast Brazil, to sign a sister-city agreement to strengthen the bond between the two communities. Between 2000 and 2006, the City of Mount Vernon's economy grew 20.5%, making it one of the fastest growing cities in the metropolitan area of New York.
Search of Mount Vernon City Hall and DPW
On May 12, 2006, the United States Attorney's Office in this district issued a press release announcing that the Office would begin "stepping up its efforts to investigate and prosecute public corruption in Westchester, Rockland, Putnam, Dutchess, Orange and Sullivan Counties." The press release did not refer to any specific municipalities. However, pursuant to ongoing criminal investigations, on October 12, 2007, immediately prior to the November general election in Mount Vernon, agents of the FBI obtained and executed a federal search warrant at the offices of the Mount Vernon Department of Public Works ("DPW") and Mount Vernon City Hall. The search warrant sought documents related to contracts between the City of Mount Vernon and certain waste hauling companies. The search warrant, issued by a United States Magistrate Judge at White Plains, identified boxes, drawers and binders to be searched for such documents. An in camera review of the search warrant and the documentation on which it was issued, revealed that the search warrant was valid on its face and the search conducted was reasonable, and supported by probable cause. Enforcement of the warrant received significant press coverage. This Court has reviewed in camera proceedings in connection with the federal search warrant, dated October 9, 2007 and issued at 9:15 AM on that date, to search specific locations in the City of Mount Vernon therein described. These proceedings document existence of a scheme by private carters to defraud the City of at least one million dollars by overbilling for the removal and disposal of waste.
In March 2008, various waste haulers were indicted for federal charges relating to waste hauling contracts alleging that the City of Mount Vernon was criminally overcharged for waste hauling. On April 1, 2008, James Castaldo was arrested on charges that, while employed as a supervisor for the City of Mount Vernon DPW, he accepted bribes from waste haulers in return for allowing the haulers to overbill the City of Mount Vernon by at least $1.25 million for debris removed from a municipal storage yard. The investigation is currently on-going.
2008 Primaries and November Election
On September 19, 2007, Defendant Clinton Young defeated the incumbent Mayor Davis in the DemocraticParty primary by over 2,600 votes, winning the Democratic Party nomination for the upcoming mayoral election. Davis decided to continue on in the race as the candidate of the Independent and Conservative Party. Janet Snyder ran as the Republican Party candidate. Mount Vernon has a high Democratic enrollment and as such, the winner of the Democratic primary usually goes on to win the general election. The Mount Vernon mayoral election was held on November 6, 2007, and approximately 11,500 votes were cast. Clinton Young, as the Democratic Party candidate, won the election by over 2,600 votes, and has since taken office.
Plaintiffs filed a Complaint in this case on November 8, 2007, and an Amended Complaint on November 12, 2007. Plaintiffs, including former Mayor Ernest Davis, allege they are duly registered "African American and minority" voters of the City of Mount Vernon. They bring this action against Clinton Young and Janet Snyder as well as the United States Justice Department (the "USDoJ"), the Federal Bureau of Investigations (the "FBI") and ten unnamed FBI agents, Michael Garcia, the United States Attorney for the Southern District of New York, in his official capacity, the United States Attorney's Office for the Southern District of New York (the "USAO"), the New York State Board of Elections (the "NYSBE") and the Westchester County Board of Elections (the "WCBE"). Plaintiffs allege violations of 42 U.S.C. §§ 1973, 1983, 1985, 1988, and the rights guaranteed by the First, Fourth, Fifth and Fourteenth Amendments of the United States Constitution. In addition to the six million dollars in damages asserted, Plaintiffs request injunctive remedies resulting in removal of Clinton Young, the current Mayor of Mount Vernon, from office and scheduling a new election. On February 5, 2008, Plaintiffs filed a "Motion for Judgment", which included a "Second Amended Complaint", which differs from the Amended Complaint only with respect to adding as a Defendant Michael J. Garcia, the United States Attorney for the Southern District of New York. Plaintiffs did not obtain consent or leave to file this Second Amended Complaint, however the Court will permit it to be filed and treat the motions to dismiss as directed against it.
The Second Amended Complaint alleges that Defendants violated Plaintiffs' right to franchise by purposefully scheduling a widely publicized, racially motivated raid on offices of the Administration of the City of Mount Vernon, at the time Mr. Davis was Mayor, and in close proximity to the November 6, 2007 general election, in violation of the Plaintiffs' rights and in contravention of the Defendant Departments' expressed policy against such action. Plaintiffs allege that all named Defendants conspired to do so, and such action was purposefully conducted in order to dilute the votes of the Davis supporters in the Mayoral Election and distort the outcome. Plaintiffs contend also that these actions were racially driven, in order to undermine the candidacy of Plaintiff Davis, as well as intimidate, suppress and dilute the right of franchise of Plaintiffs and similarly situated African American and minority voters in Mount Vernon, while white voters and candidates are not subjected to such tactics. Further, Plaintiffs allege that the actions of Defendants were intended to and did damage the reputation of the Plaintiffs and caused the actual suppression of votes in the November 6, 2007 general election.
Plaintiffs do not specifically allege violations of the Federal Torts Claim Act (the "FTCA"), however the Second Amended Complaint maintains that Defendants acted with intent to inflict emotional distress on Plaintiffs and also that Defendants actions constituted Defamation. Additionally, in their motion papers, Plaintiffs assert that Defendants' actions constituted an abuse of process, and request an opportunity to amend their pleading to reflect such a claim under the FTCA. This Court perceives no need for further amendment, and treats the pleadings as tendering all available theories.
Application for TRO - Preliminary Injunction Denied as Moot
On December 28, 2007, the last business day of 2007, at approximately 4:30 pm, Plaintiffs sought a temporary restraining order ("TRO") and a preliminary injunction enjoining the inauguration of Mayor Young, set to take place four days later on January 1, 2008. Following a hearing, the Part I Judge of this Court denied Plaintiffs requests for a TRO. The Court held that Plaintiffs had failed to demonstrate a probability of success on the merits, a likelihood of irreparable injury, nor any showing of the balance of hardship tipping decidedly in their favor. There was also an issue as to whether adequate notice had been given to all affected parties. The Part I Judge concluded that, by failing to take any action prior to the election results being certified, Plaintiffs, to the extent that they had any, sat on their rights. "The citizens and voters of the City of Mount Vernon went to the polls on November 6, they cast their ballots, and the results of the election has [sic] taken place. I cannot and will not lightly disregard the results of that election, particularly in the absence of any  timely challenge to the certification of the results of that election." (Morrison Decl., Exh. C at 20-23.) This Court agrees with that analysis and for that reason alone preliminary injunctive relief of a sort which would materially alter the status quo pending trial should be and hereby is denied.
Discussion of the Motion to Dismiss
In deciding a motion to dismiss under Fed. R. Civ. Pro. § 12(b)(6), the Court must "accept the allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant." Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994). Additionally, in light of the recent Supreme Court decision in Bell Atlantic Corp. v. Twombly,127 S.Ct. 1955 (2007), in order to withstand dismissal, the complaint must plead "enough facts to state a claim to relief that is plausible on its face." Id. at 1974. (this abrogates the rule of Conley v. Gibson, 355 U.S. 41, requiring "no set of facts" inquiry for motion to dismiss). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the "grounds" of his "entitlement to relief" requires more than labels and conclusions, and a ...