The opinion of the court was delivered by: John Gleeson, United States District Judge
FOR ELECTRONIC PUBLICATION ONLY
On June 23, 2009, plaintiff John Donaldson filed this pro se action for breach of contract against the New York City Department of Education. On October 7, 2009, I granted the plaintiff's request to proceed in forma pauperis. On January 29, 2010, the defendant filed a motion to dismiss the plaintiff's complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. Donaldson opposed the defendant's motion in writing, and I heard oral argument on the motion on March 12, 2010. For the reasons set forth below, the defendant's motion to dismiss is granted.
The following facts are drawn from Donaldson's pro se complaint and documents attached to and incorporated by reference in that complaint, and are assumed to be true for the purposes of this motion.
Donaldson was a tenured teacher with the New York City Department of Education ("DOE") for twenty years from 1984 to 2004. On February 23, 2004, the parties signed a settlement agreement resolving disciplinary charges that had been brought against Donaldson. In the agreement, the DOE agreed to withdraw all charges against Donaldson and, in exchange, Donaldson agreed to resign from his position as of November 30, 2004 and refrain from seeking employment with the DOE in the future.
On June 28, 2004, Donaldson received his annual professional and performance review, which rated his performance as unsatisfactory. Donaldson alleges that this performance review was a breach of the parties' settlement agreement, because it "resurrected" the charges against him. Compl. at 2.
In July 2004, Donaldson filed an Article 78 petition in the New York Supreme Court, New York County, seeking to vacate the settlement agreement and his letter of resignation. On October 19, 2007, Judge Eileen A. Rakower dismissed the petition in its entirety, holding that Donaldson's petition was barred by the four-month statute of limitations. Judge Rakower held that, because the June 2004 review played "no role in the agreed upon terms of the stipulation," the statute of limitations was unaffected by the DOE's submission of the performance evaluation. Ex. 2 to Anderson Aff at 3. Judge Rakower held that the statute of limitations began to run on February 23, 2004, when the settlement agreement became final and binding and, accordingly, it expired in June 2004, one month before Donaldson filed his complaint. In addition, Judge Rakower dismissed Donaldson's claims of duress and coercion, because the agreement states that he entered into the agreement "freely, knowingly and openly, without coercion or duress" and because his attorney signed the agreement as well.
A. Motion to Dismiss -- Standard of Review
"A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). When evaluating a motion to dismiss pursuant to Rule 12(b)(1), I must accept the factual allegations in the complaint as true, Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (per curiam), and draw all reasonable inferences in favor of the plaintiff. Bolt Elec., Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir. 1995); see also Jaghory v. N.Y. State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997). The plaintiff has the burden of showing, by a preponderance of the evidence, that subject matter jurisdiction exists. Makarova, 201 F.3d at 113. "The preliminary showing that must be made by the plaintiff, however, is not meant to be overly burdensome, allowing for subject matter jurisdiction so long as the federal claim is colorable." Tabor v. Bodisen Biotech, Inc., 581 F. Supp. 2d 552, 557 (S.D.N.Y. 2008)(internal quotation marks omitted).
Because Donaldson is pro se, his complaint must be read liberally and interpreted as raising the strongest arguments it suggests. See McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004); Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). If a liberal reading of the complaint "gives any indication that a valid claim might be stated," this Court must grant leave to amend it. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999).
When considering a motion to dismiss, a court may examine (1) the factual allegations in the complaint, which are accepted as true; (2) documents attached to the complaint as exhibits or incorporated in it by reference; (3) matters of which judicial notice may be taken; and (4) documents either in the plaintiff's possession or of which the plaintiff had knowledge and relied on in bringing suit. Brass v. American Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993). I may also "refer to evidence ...