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Gebman v. State

June 12, 2008

CLARK J. GEBMAN, PLAINTIFF,
v.
STATE OF NEW YORK, PRESHROCK CORPORATION, CITY OF BEACON, UNITED STATES OF AMERICA, AND JOHN OR JANE DOE 1-500 INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Gary L. Sharpe U.S. District Judge

MEMORANDUM-DECISION AND ORDER

I. Introduction

Clark Gebman, proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983, alleging certain injuries arising from the sale of real property from Preshrock Corporation ("Preshrock") to the City of Beacon (the "City"). Pending are motions to dismiss by the State of New York (the "State") and the City. As grounds for dismissal, the moving defendants raise lack of subject matter jurisdiction, Eleventh Amendment immunity, improper venue, and failure to state a claim.

II. Facts and Procedural History

Gebman filed his original Complaint on November 20, 2007, seeking, among other things, to block the sale from Preshrock to the City of a parcel of land in Dutchess County which the parties refer to as Hiddenbrooke. In broad strokes, the Complaint alleged that Preshrock and the City had failed to comply with the State Environmental Quality Review Act ("SEQRA") as a condition precedent to the contemplated sale. Additionally, Gebman alleged that storm water runoff from the Hiddenbrooke property had been illegally discharged onto lands in which Gebman held a development interest.

On December 12, 2007, and December 21, 2007, respectively, the State and the City filed motions to dismiss. (Dkt. Nos. 8 & 9.) In lieu of a response, Gebman sought permission to amend his Complaint. (See Letter Motion; Dkt. No. 11.) Permission was granted, in light of the fact that none of the defendants had yet filed a responsive pleading. (See Order; Dkt. No. 12.) Based upon Gebman's intention to file an amended complaint, the pending motions to dismiss were adjourned for a period of thirty days. (See Text Only Order, Jan. 28, 2008.) When Gebman failed to amend his Complaint, and upon request of the moving defendants, the motions to dismiss were reinstated on March 13, 2008. (See Dkt. Nos. 18, 19.) Subsequently, on April 17, 2008, Gebman filed an Amended Complaint (Dkt. No. 22), accompanied a day later by a response in opposition to the two motions to dismiss (Dkt. No. 24).

The Amended Complaint largely tracks the language of the original Complaint, with two exceptions. First, the Amended Complaint contains, by way of introduction, what counsel for the City has characterized as a "lengthy diatribe." It is only after this four page preliminary statement that the jurisdictional statement and numbered allegations begin. Second, the Amended Complaint seeks certain additional injunctive relief that was not requested in the original Complaint. The Amended Complaint, like the original Complaint, refers to a "scheduled" sale of the Hiddenbrooke property. However, the City informs the court that the sale has already been consummated. (See Ex. E to the Kean Aff.; Dkt. No. 9.)

The three causes of action in the Amended Complaint each contain a hodge-podge of unrelated allegations. This has made it difficult for the court to ascertain the legal bases of Gebman's claims. The difficulty is compounded by Gebman's use of run-on sentences, curiously archaic phrasing, and questionable grammar.*fn1 Moreover, Gebman's brief provides little help in deciphering the allegations in the Amended Complaint, as it consists almost entirely of block quotes from various cases, with no explanation as to how the quotes relate to the facts of the present case. Nevertheless, under a generous reading of the Amended Complaint, it is possible to ascertain the following causes of action: (1) violation of SEQRA; (2) violation of the federal Clean Water Act; (3) unconstitutional regulatory taking; (4) restraint of trade in violation of the Sherman and Clayton Acts and the New York State Donnelly Act; and (5) due process violations in the form of "a systemic pattern of harassment and illegal conduct" on the part of the City of Beacon Police Department.*fn2

Certain additional allegations are set forth in the introductory narrative contained in the first four and a half pages of the Amended Complaint. (See Amended Complaint at 1-5; Dkt. No. 22.) Among other things, the narrative contains allegations concerning the City of Beacon Master Plan, certain supposedly related cases that are pending in other courts, the actions of an "officer B," the wrongdoing of Gebman's wife's employer, and the involvement of the former governor of New York. However, the court will not consider this portion of the Amended Complaint, as it utterly fails to comply with Rule 8 of the Federal Rules of Civil Procedure.

III. Discussion

A. Subject Matter Jurisdiction

Jurisdiction in this case is premised on 28 U.S.C. §§ 1331 and 1343. (See Amended Complaint; Dkt. No. 22.) The City moves for dismissal pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, arguing that Gebman's claims are based solely on state law.

As the proponent of jurisdiction, Gebman bears the burden of proving by a preponderance of the evidence that it exists. See Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000); see also Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998) ("[W]hen the question to be considered is one involving the jurisdiction of a federal court, jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it."). However, "it is well-settled that the complaint will be construed broadly and liberally . . . particularly when it is presented by a litigant who is proceeding pro se." 5B CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1350, pp. 180-81 (3d ed. 2004).

While the City acknowledges that Gebman has alleged violations of the Clean Water Act, the Sherman Act, and the Clayton Act, it asserts that these federal statutes are merely window dressing, mentioned in an effort to obscure the fact that Gebman's claims are in truth only state law claims. In evaluating this contention, it is important to bear in mind that "the absence of a valid (as opposed to arguable) cause of action does not implicate subject-matter jurisdiction, i.e., the courts' statutory or constitutional power to adjudicate the case." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89 (1998) (emphasis in original). In other words, a motion to dismiss pursuant to Rule 12(b)(1) should not be confused with a motion to dismiss under Rule 12(b)(6); "the former determines whether the plaintiff has a right to be in the particular court and the latter is an adjudication as to whether a cognizable legal claim has been stated." 5B CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE ยง 1350, p. 106 (3d ed. 2004). Subject matter jurisdiction is lacking only when the federal claim ...


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