The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge
Plaintiff Cheryl Jones, a former principal and employee of Defendant Department of Education ("DOE"), filed suit against the DOE alleging a variety of claims arising out of a statement released by the DOE on June 28, 2004 (the "Press Release") and subsequent media coverage of it. In the Press Release, the DOE indicated that it had removed forty-five principals for "poor performance" and that these principals "had received or were in danger of receiving unsatisfactory ratings in their performance ratings." See Friedman Decl. Ex. B. Plaintiff alleged deprivations of property and liberty interests in violation of the Due Process Clause of the Fourteenth Amendment, and additional state law claims. The DOE moved to dismiss, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, seeking judgment in its favor on every claim. In a Memorandum and Order dated September 13, 2007 ("September 13, 2007 Order"), the court granted the DOE's motion, dismissing Plaintiff's property interest claim with prejudice, dismissing Plaintiff's liberty interest claim without prejudice, and declining to entertain Plaintiff's state law claims absent a valid federal claim. The court granted Plaintiff leave to replead the liberty interest claim.
Plaintiff filed an amended complaint on October 4, 2007 (the "Amended Complaint"), asserting an amended claim for deprivation of her liberty interest and reasserting the additional state law claims. The DOE filed the instant motion, seeking dismissal of the Amended Complaint, pursuant to Rule 12(c). Plaintiff opposes the motion in its entirety. For reasons set forth more fully below, the court grants the DOE's motion.
The following facts are either undisputed or drawn from the Amended Complaint, unless otherwise noted.*fn1 Plaintiff worked as a tenured teacher and then tenured assistant principal for the DOE for a number of years in various schools throughout New York City. In 2001, Plaintiff became the Principal of Far Rockaway High School, and worked in this capacity subject to a three-year probationary period, as do all new principals. To achieve tenure, new principals must receive "satisfactory" performance reviews for each evaluation conducted during the probationary period. See Def. Mem. at 3. Otherwise, new principals are subject to discontinuation. See id. Plaintiff received two "satisfactory" performance reviews. In May 2004, during the third year of Plaintiff's probationary period, the DOE informed her that she was at risk of receiving an "unsatisfactory" review. If she received an unsatisfactory review, her contract would be discontinued. She would not receive tenure or its associated benefits, including increased pension benefits.
On June 14, 2004, Plaintiff and the DOE negotiated and entered into an agreement (the "Agreement"). See generally Friedman Decl. Ex. A. Plaintiff attended the negotiation with a union representative and the union representative reviewed the Agreement with Plaintiff. In the Agreement, the DOE agreed to issue Plaintiff a satisfactory review for the 2003-2004 academic year, thereby permitting her to enjoy the benefits of tenure, including increased pension benefits. Plaintiff agreed to retire from the DOE and to refrain from seeking future employment with the DOE.
Approximately two weeks later, the DOE issued the Press Release, announcing the removal of forty-five principals. It did not contain the names of the principals. The DOE released their names only after it was served with a Freedom of Information Law ("FOIL") request, pursuant to N.Y. Public Officers Law §§ 84-90. Subsequently, various newspapers published articles naming Plaintiff as one of the removed principals. See Pl. Opp. at 3. Plaintiff commenced the instant action alleging that the Press Release and subsequent media coverage of it made finding new employment impossible. Plaintiff alleged deprivations of property and liberty interests in violation of the Due Process Clause and additional state law violations. The DOE moved to dismiss.
In the September 13, 2007 Order, the court granted the DOE's motion dismissing Plaintiff's property interest claim with prejudice, dismissing Plaintiff's liberty interest claim without prejudice (with leave to replead), and declining to entertain Plaintiff's state law claims absent a valid federal claim. The court informed Plaintiff that the "failing in [her liberty interest claim] is that she has not alleged that the DOE was affirmatively involved in the offending event." See September 13, 2007 Order at 7. The court further instructed Plaintiff that "[u]nless Plaintiff alleges that the DOE deliberately precipitated the media's eventual publication of her name when it issued its [the Press Release], Plaintiff's claim of deprivation of a liberty interest without due process will not lie." Id.
Shortly thereafter, Plaintiff filed the Amended Complaint. In the instant motion, the DOE moved to dismiss the Amended Complaint in its entirety contending that (i) a general release in the Agreement bars Plaintiff from filing any employment related lawsuits against the DOE, and (ii) Plaintiff's liberty interest claim, as amended, fails to state a claim upon which relief can be granted.
Rule 12(b)(6) of the Federal Rules of Civil Procedure states that a defendant may move, in lieu of an answer, for dismissal of a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). On a motion to dismiss, the court accepts as true all well-pleaded factual allegations and draws all reasonable inferences in the plaintiff's favor. See Dangler v. New York City Off Track Betting Corp., 193 F.3d 130, 138 (2d Cir. 1999). In Bell Atlantic Corp. v. Twombly, the Supreme Court retired the standard set forth half a century ago in Conley v. Gibson, that a complaint should not be dismissed "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," in favor of the requirement that plaintiff plead enough facts to "state a claim to relief that is plausible on its face." Bell Atlantic, 127 S.Ct. 1955, 1968-69, 1974 (2007) (quoting Conley, 355 U.S. 41, 45-46 (1957)). To be facially plausible, a complaint cannot make merely "a formulaic recitation of the elements of a cause of action," but must allege facts that "raise a right of relief above the speculative level on the assumption that all allegations in the complaint are true (even if doubtful in fact)." Bell Atlantic, 127 S.Ct. at 1964-65 (citations omitted). The Second Circuit interpreted Bell Atlantic to "requir[e] a flexible 'plausibility standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible," rather than to mandate a "universal standard of heightened fact pleading." Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007).
When material outside the complaint is "presented to and not excluded by the court, the motion must be treated as one for summary judgment . . . and all parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." Fed. R. Civ. P. 12(d). For the purposes of this rule, however, the complaint is deemed to include writings and documents attached to the complaint, referenced in the complaint, or integral to the complaint. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002); Fed. R. Civ. P. 10(c). A document is "integral" to the complaint if "the complaint relies heavily upon its terms and effects." Chambers, 282 F.3d at 153 (citations omitted). "A plaintiff's reliance on the terms and effect of a document in drafting the complaint is a necessary prerequisite to the court's consideration of the document on a dismissal motion; mere notice or possession is not enough." Id. (emphasis in original).
Plaintiffs are harmed when material outside a complaint is considered on a motion to dismiss because they lack notice that such consideration is taking place. Global Network Commc'ns, Inc. v. City of New York, 458 F.3d 150, 155 (2d Cir. 2006). Rule 12(d)'s conversion requirement remedies this problem by "deter[ring] trial courts from engaging in fact finding when ruling on a motion to dismiss and ensur[ing] that when a trial judge considers evidence dehors the complaint, a plaintiff will have an opportunity to contest defendant's relied-upon evidence by submitting material that controverts it." Id. Accordingly, where there is actual notice by the opposing party ...