The opinion of the court was delivered by: John G. Koeltl, District Judge
MEMORANDUM OPINION AND ORDER
This case concerns an allegation by plaintiff James Donelli that he was forced to quit his job as a heavy duty crane operator with the Sullivan County Department of Public Works (the "Department"). Mr. Donelli's wife, Joanne Donelli, is also a plaintiff in the case and seeks to recover for her financial and emotional share in the same alleged injury. The Amended Complaint asserts claims against six defendants, including two individual defendants who have not been served. Three of the defendants have filed separate but overlapping motions to dismiss the Amended Complaint. Those defendants are Sullivan County, former head of the Department Peter Lilholt, and head of engineering Robert Trotta (together, the "defendants"). Collectively, the defendants move to dismiss the Amended Complaint for lack of subject matter jurisdiction and failure to state a claim pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), respectively; for failure to satisfy the notice pleading requirements of Federal Rule of Civil Procedure 8(a) and, in the case of one of the plaintiffs' allegations, the heightened pleading requirements of Federal Rule of Civil Procedure 9(b); and because there is a substantially identical action pending in state court.
With respect to the final defendant -- the Department -- Sullivan County moves to dismiss any claims against that defendant because the Department is not distinguishable from Sullivan County and may not be sued as a separate legal entity.
The individual defendants have also filed cross-motions for sanctions pursuant to Federal Rule of Civil Procedure 11, and Sullivan County has indicated that it may file such a motion in the near future.
In defending a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), the plaintiff bears the burden of proving the Court's jurisdiction by a preponderance of the evidence. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). In considering such a motion, the Court generally must accept the material factual allegations in the Complaint as true. See J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004). The Court does not, however, draw all reasonable inferences in the plaintiff's favor. Id.; Graubart v. Jazz Images, Inc., No. 02 Civ. 4645, 2006 WL 1140724, at *2 (S.D.N.Y. Apr. 27, 2006). Indeed, where jurisdictional facts are disputed, the Court has the power and the obligation to consider matters outside the pleadings, such as affidavits, documents, and testimony, to determine whether jurisdiction exists. See APWU v. Potter, 343 F.3d 619, 627 (2d Cir. 2003); Filetech S.A. v. France Telecom S.A., 157 F.3d 922, 932 (2d Cir. 1998); Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986). In doing so, the Court is guided by that body of decisional law that has developed under Federal Rule of Civil Procedure 56. Kamen, 791 F.2d at 1011; see also Tsering v. Wong, No. 08 Civ. 5633, 2008 WL 4525471, at *1 (S.D.N.Y. Oct. 3, 2008); Melnitzky v. HSBC Bank USA, No. 06 Civ. 13526, 2007 WL 1159639, at *5 (S.D.N.Y. April 18, 2007).
On a motion to dismiss pursuant to Rule 12(b)(6), the allegations in the Complaint are accepted as true. Grandon v. Merrill Lynch & Co., 147 F.3d 184, 188 (2d Cir. 1998). In deciding a motion to dismiss pursuant to Rule 12(b)(6), all reasonable inferences must be drawn in the plaintiff's favor. Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995); Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir. 1989). The Court's function on a motion to dismiss is "not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). The Court should not dismiss the Complaint if the plaintiff has stated "enough facts to state a claim to relief that is plausible on its face." Twombly v. Bell Atl. Corp., 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). While the Court should construe the factual allegations in the light most favorable to the plaintiff, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Iqbal, 129 S.Ct. at 1949; see also Port Dock & Stone Corp. v. Oldcastle Ne., Inc., 507 F.3d 117, 121 (2d Cir. 2007); Smith v. Local 819 I.B.T. Pension Plan, 291 F.3d 236, 240 (2d Cir. 2002); Powe v. Cambium Learning Co., No. 08 Civ. 1963, 2009 WL 2001440, at *1 (S.D.N.Y. July 9, 2009).
The bulk of the plaintiffs' claims are governed by the basic requirements of notice pleading set forth in Rule 8(a). Rule 8(a) provides that a pleading must contain: "(1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; [and] (2) a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a). "[T]he purpose of Rule 8(a)(2) is to give fair notice of a claim and the grounds upon which it rests so that the opposing party may identify the nature of the case, respond to the complaint, and prepare for trial." Elektra Entertainment Group, Inc. v. Barker, 551 F. Supp. 2d 234, 238 (S.D.N.Y. 2008) (internal quotation marks omitted); see also Leibowitz v. Cornell Univ., 445 F.3d 586, 591 (2d Cir. 2006).
The Amended Complaint also contains an alleged violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq. In part the RICO claim appears to be based on an alleged conspiracy, rather than predicate acts of fraud. (Am. Compl. ¶ 19 ("Defendants, in their conspiracy . . . .").) "[T]he pleading requirements with respect to a RICO conspiracy . . . are governed by Federal Rule of Civil Procedure 8(a), not Rule 9(b)." Gulf Coast Development Group, LLC v. Lebror, No. 02 Civ. 6949, 2003 WL 22871914, at *4 (S.D.N.Y. Dec. 4, 2003); see also Hecht v. Commerce Clearing House, Inc., 897 F.2d 21, 26 n.4 (2d Cir. 1990). However, the RICO claim also appears to be based on predicate acts of fraud. To the extent that is so, the claim is subject to the heightened pleading standard of Rule 9(b). See Moore v. PaineWebber, Inc., 189 F.3d 165, 172 (2d Cir. 1999). Rule 9(b) provides that "[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally." Fed. R. Civ. P. 9(b). In order to meet the heightened pleading standard provided by Rule 9(b), a complaint must "specify the statements it claims were false or misleading, give particulars as to the respect in which plaintiffs contend the statements were fraudulent, state when and where the statements were made, and identify those responsible for the statements." Moore, 189 F.3d at 173.
The following facts alleged in the Amended Complaint are accepted as true for purposes of these motions to dismiss, unless otherwise indicated.
At the time of the events alleged in the Amended Complaint, Mr. Donelli worked as a heavy duty crane operator with Sullivan County, specifically the Sullivan County Department of Public Works. (Am. Compl. ¶¶ 3, 11.) Defendant Lilholt was the Commissioner of the Department and defendant Trotta was the head of engineering. (Am. Compl. ¶ 13.) It is unclear who Mr. Donelli's direct boss was at the Department. Whoever the supervisor was, the supervisor allegedly made Mr. Donelli work during his honeymoon and wrote critical reports about his work.
(Am. Compl. ¶¶ 11-12.) According to Mr. Donelli, the negative reports and other injustices visited upon him during his employment -- which included the denial of promotions, false accusations, and intimidation (Am. Compl. ¶ 51) - were due to the corruption of "all of the heads (bosses)" of the Department, including the individual defendants in this case. (Am. Compl. ¶ 13.) The Amended Complaint appears to allege that the heads of the Department were engaged in a scam wherein they ordered highway maintenance equipment purportedly for Sullivan County but appropriated the equipment for their own use and resale. (Am. Compl. ¶¶ 14, 16, 19.) The plaintiffs characterize this conduct as follows: "Defendants, in their conspiracy and control over the Division of Public Works has usurped their indicia of authority to purchase and illegally and improperly appropriate and steal heavy duty highway maintenance equipment . . . in interstate transactions." (Am. Compl. ¶ 19.)
The plaintiffs allege that "some or all of the defendants" tampered with and falsified Mr. Donelli's employment work records, along with those of other employees, in order to blackmail Mr. Donelli and other employees to keep quiet about corruption in the Department. (Am. Compl. ¶¶ 3, 31.)*fn1 Mr. Donelli complained of corruption in the Department and of the falsification of his employment records upon returning from his honeymoon, including making complaints to county and state government officials. (Am. Compl. ¶¶ 46, 93.) Such complaints allegedly provoked the defendants into further abuse of Mr. Donelli. (Am. Compl. ¶¶ 93-94.) The gist of the Amended Complaint is that the defendants' harsh and improper treatment of Mr. Donelli at the workplace forced him to resign.
The Amended Complaint also alleges that when the corruption in the Department became known and criminal proceedings were about to commence against certain of the allegedly corrupt actors, including Mr. Lilholt, Mr. Donelli's falsified records were burned or otherwise removed or destroyed in a deliberate arson at the Sullivan County Clerk's Office. (Am. Compl. ¶¶ 3, 32.)*fn2
The plaintiffs allege that prior to the arson in which Mr. Donelli's records were allegedly destroyed, there was an unauthorized break-in at the same building during which Mr. Donelli's employee file was tampered with "and/or burned and destroyed." The plaintiffs allege that Mr. Lilholt and Mr. Trotta were present at the time of the break-in. (Am. Compl. ¶ 118.) The plaintiffs do not explain how Mr. Donelli's file could have been destroyed twice.
The Amended Complaint alleges seven causes of action, five of which are at issue on these motions to dismiss.*fn3 The structure of the Amended Complaint makes it difficult to ascertain precisely what claims the plaintiffs seek to assert against which defendants. The Amended Complaint essentially presents a melange of federal statutes and constitutional provisions in its opening paragraphs, which are incorporated by reference into each of the five causes of action at issue. The five causes of action themselves (beginning at ¶ 62 of the Amended Complaint) which are directed at different defendants, make no reference to any federal laws except for RICO, and provide no explanation with respect to how the facts alleged throughout the Amended Complaint constitute a violation of any federal law. Therefore, the Court assumes that each of the five causes of action asserts all of the violations alleged in the opening paragraphs of the Amended Complaint -- the paragraphs that precede the ...