The opinion of the court was delivered by: Stephen C. Robinson, United States District Judge
Plaintiff, Lorraine Wetzel, brings this action against the Town of Orangetown ("Town"), Chief of Policy Kevin Nulty, Police Captain Robert Zimmerman*fn1 , Supervisor Thom Kleiner, Joseph E. Wooley, Esq., the law firm of Keane & Beane, P.C. ("K&B") and its partner, Lance H. Klein asserting federal claims of gender discrimination, retaliation, denial of equal protection, deprivation of due process and conspiracy, as well as several related state law claims. Currently pending before the Court are two motions: (1) a motion to dismiss Plaintiff's Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure submitted by the Town, Nulty, Kleiner, K&B, and Klein; and (2) a motion to dismiss Plaintiff's Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure submitted by Wooley. (Docket entries 14 and 19.) Both motions were referred to Magistrate Judge Fox for a Report and Recommendation ("R&R"), which was entered on May 16, 2008. Objections by both parties were filed and the matter is now before this Court as to whether to accept, reject or modify the Magistrate's R&R.
Plaintiff, Lorraine Wetzel, a 27-year veteran of the Town of Orangetown Police Department, alleges that she is the victim of gender discrimination as well as retaliation in the form of the preferment and prosecution of disciplinary charges. The Court assumes familiarity with the facts included in the Magistrate's R&R and now only supplements the record with additional facts necessary for consideration of this decision.
1.Adoption, Rejection or Modification of a Report and Recommendation
In reviewing an R&R, a district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). "If no objections are filed, or where objections are merely perfunctory responses, argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the original petition, reviewing courts should review a report and recommendation for clear error." Edwards v. Fischer, 414 F. Supp. 2d 342, 346-47 (S.D.N.Y. 2006) (citations and internal quotation marks omitted). When specific objections are made, "[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Fed. R. Civ. P. 72(b)(3); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997).
Plaintiff raised one well-articulated substantive objection, which is reviewed de novo: that Magistrate Judge Fox mistakenly relied on the decision of this Court in Colandrea v. Town of Orangetown, 490 F. Supp. 2d 342 (S.D.N.Y. 2007),in making his recommendations. See Pl.'s ObjectionsI, 1-2. Because all of Plaintiff's remaining objections, including those relating to the applicability of absolute immunity, are repetitive of her original arguments, those portions of the R&R are reviewed for clear error only.
Defendants also raise one well-articulated substantive objection to the R&R, which is reviewed de novo: that Magistrate Judge Fox failed to address the Town's motion to dismiss the fourth, fifth, sixth and eighth claims for failure to state a claim.
2.12(b)(6) Motion to Dismiss
Since the issuance of the R&R in this case, the Supreme Court has clarified the Motion to Dismiss standard. The Supreme Court's clarification of the motion to dismiss standard guides this Court in its review of the R&R.
It is now clear that in order to "survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In evaluating a motion to dismiss, a court must "view all allegations raised in the complaint in the light most favorable to the non-moving party . . . and 'must accept as true all factual allegations in the complaint.'" Newman & Schwartz v. Asplundh Tree Expert Co., Inc., 102 F.3d 660, 662 (2d Cir. 1996) (quoting Leatherman v. Tarrant County Narcotics Unit, 507 U.S. 163, 164 (1993)) (citation omitted). Nevertheless, the Court is "not bound to accept as true a legal conclusion couched as a factual allegation." Iqbal, 129 S.Ct. at 1950. Furthermore, if allegations taken as true are consistent with plaintiff's claim, but there is an "obvious alternative explanation" the court will find that the plaintiff's claim is not plausible. Twombly, 550 U.S. at 567.
The Court 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). Because the Amended Complaint must allege facts which confer a cognizable right of action, "'[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.'" York v. Ass'n ...