The opinion of the court was delivered by: Seybert, District Judge
Plaintiffs Carol Schwasnick and Peter Schwasnick (collectively "Plaintiffs") commenced this action against the Town of Islip, the Town Board, and the following Defendants individually and in their official capacities: Phil Nolan, Christopher D. Bodkin, Steven J. Flotteron, John H. Edwards, Gene Parrington, William Rowley, John Norris, Gregory Clifton, George Schimph, Robert Quinlan, Esq., Robert Cicale, Esq., (collectively "Individual Town Defendants"), Town of Islip Zoning Board of Appeals, Walter W. Fields, Stacey Williams, Michael Williams, Thomas Partridge, and William C. Fields on November 24, 2008. Plaintiffs' Complaint alleges causes of action based on 42 U.S.C. §§ 1983, 1985(3), abuse of power/office, and the fourth, fifth, and fourteenth amendments. Plaintiffs also allege state law claims based on harassment, negligence, battery, and property damages.
Pending before this Court are Defendants' motions to dismiss all claims for failure to effectuate proper service pursuant to 12(b)(5) of the Federal Rules of Civil Procedure and 4(m) of the Federal Rules of Civil Procedure, and failure to state a cause of action pursuant to 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons that follow, the Court GRANTS Defendants' motions.
This case arises out of a dispute between Plaintiffs, Carol Schwasnick and Peter Schwasnick, and their neighbor, Defendant Ginny Fields ("Fields"), an Assemblywoman for the Town of Islip. (Compl. ¶ 51.) Problems between the neighbors commenced on or about April 20, 2006, when Plaintiffs complained to the town about garbage on Fields' property. (Id.) From then on, Fields annoyed the Plaintiffs, especially while Plaintiffs waited at a school bus stop with their children. (Id. ¶ 53.) For example, Fields drove past the bus stop at high speeds, put nails and other objects in the road to purposely endanger the Plaintiffs, and verbally told Plaintiffs that they could not use the bus stop. (Id. ¶¶ 53, 56, 58--60.)
Plaintiffs complained to the Town, and Town of Islip Code Enforcement Official, Greg Clifton ("Clifton"), informed Plaintiffs that they had "every right to use th[e] corner as a bus stop." (Id. ¶ 118.) Additionally, the assistant to Phil Nolan ("Nolan"), the Town of Islip Supervisor, told Plaintiffs that "everyone has the right to use the [bus stop] and no one may block or control it." (Id. ¶ 94 (emphasis in original.)) Eventually, however, Fields allegedly convinced the school Superintendent to move the bus stop. (Id. ¶ 101.)
In August 2007, the Town of Islip reissued Fields' rental permit even though it was allegedly not in compliance with the Town Code. (Id. ¶ 120.) Plaintiffs claim that allowing illegal renters on the Defendant's property decreased the value of Plaintiffs' property. (Id. ¶¶ 68--70.) Plaintiffs complained to the Town about the permit violation, and Nolan told Plaintiffs that Fields "would be treated 'like anyone else.'" (Id. ¶ 114.) Clifton also told the Plaintiffs to "hang in there." (Id. ¶ 119.) The Town, however, never intervened. (Id. ¶ 118.)
One month later, Fields informed the Town that Plaintiffs' bushes were a sight obstruction. (Id. ¶ 100.) Consequently, Fields and another unknown town employee stood on Plaintiffs' front lawn and looked at the bushes. (Pls.' Opp'n 21.) In January 2008, the Town issued a Notice of Violation to Plaintiffs. (Id. ¶¶ 96--99.) Town Inspector, Defendant John Norris ("Norris"), also told Plaintiffs that their driveway was too close to the property line, and thus required a permit. (Id. ¶ 130.) Plaintiffs state that six other driveways in the neighborhood were close to the property line, but the property owners were never issued Notices. (Id. ¶ 132.) Plaintiffs answered the Notice and resolved the issue. Plaintiffs were not required to alter their property in any way. Nevertheless, Plaintiffs assert that they suffered some damage from this violation in the form of time and costs.
Plaintiffs commenced this action on November 24, 2008, setting forth various causes of action against the Defendants pursuant to 42 U.S.C. §§ 1983 and 1985(3). Specifically, Plaintiffs claim that Defendants violated their (1) Fourth Amendment rights by standing on the Plaintiffs front lawn and visually inspecting their bushes, (Id. ¶ 100); (2) Equal Protection rights under the Fourteenth Amendment by selectively enforcing a Notice of Violation against the Plaintiffs but not against six other similarly situated neighbors, (Id. ¶¶ 96--99, 130, 132); (3) Due Process rights under the Fourteenth Amendment by not enforcing the Town Code against Fields and forcing the Plaintiffs to spend time and money to respond to the Notice of Violation, (Id. ¶ 99); and (4) Fifth Amendment right under the takings clause by renewing Fields' rental permit and thus causing the Plaintiffs' property value to decline, (Id. ¶¶ 68-- 70.) Additionally, Plaintiffs assert state law claims in battery, property damage, and negligence/harassment. (Compl. ¶¶ 103--10.)
I. Defendant's Motion To Dismiss Pursuant To 12(b)(5)
A. Standard Of Review Under 12(b)(5).
When a defendant moves to dismiss the complaint under Rules 12(b)(5) and 12(b)(6), the court must address the issue of proper service before the alleged failure to state a claim. Herzner v. U.S. Postal Serv., No. 05-CV-2371, 2007 WL 869585, at *3 (E.D.N.Y. Mar. 20, 2007). The defendant's motion must assert more than a general statement that service was inadequate, id., but plaintiff bears the burden to establish proper service. Id.
The Federal Rules of Civil Procedure enable the plaintiff to serve the summons according to state law. FED. R. CIV. P. 4(e)(1). Plaintiff can either use the state law where the district court sits or the state law where the defendant is served. Id. Since this Court sits in New York and the Defendants were all served in New York, the Plaintiff was permitted to serve the Summons according to New York state laws.
Pursuant to N.Y.C.P.L.R. 308(2), service of process on an individual is sufficient where the summons is left with a "person of suitable age and discretion at the actual place of business" and mailing a copy to the same. N.Y.C.P.L.R. 308(6) states that "'actual place of business' shall include any location that the defendant, through regular solicitation or advertisement has held out as its place of business." Where service is insufficient, the defendant may move to dismiss the complaint pursuant to Rule 12(b)(5). FED. R. CIV. P. 12(b)(5).
In fact, Rule 4(m) requires the court to "dismiss the action without prejudice" against the defendant under these circumstances. FED. R. CIV. P. 4(m).
Service on a town board or town supervisor is sufficient where the pleadings are left with the town clerk. See Contento v. Veteran, No. 80-CV-5903, 1981 U.S. Dist. LEXIS 13478, at *3 (S.D.N.Y. July 13, 1981) (finding that serving the town clerk on behalf of town board members and the town supervisor in their personal capacities was only insufficient because the plaintiff did not mail a copy to the defendant after personal service).
B. The Individual Town Defendants Were properly Served At Their "Actual Place Of Business" Because The Town Clerk And Defendants All Work In Town Hall
The Individual Town Defendants argue that service on the Town Clerk was insufficient because the Town Clerk's office is not their "actual place of business." (Individual Town Defs.' Mem. in Supp. 4.) The Court disagrees, and finds that service was sufficient for all Defendants except Robert Cicale, who no longer works for the Town. Plaintiffs state that the Town Clerk and the Defendants all work in Town Hall. (Pls.' Opp'n 6.) Although Defendants may work in a different office than the Town Clerk, their "actual place of business" is in the same building. Therefore, the Individual Town Defendants were properly served. On the other hand, Robert Cicale was not served at his "actual place of business" because, at the time of service, he was no longer a town attorney. Accordingly, pursuant to Rule 12(b)(5), Cicale should be DISMISSED from this action.
II. Defendants' Motion To Dismiss Pursuant To 12(b)(6)
The plaintiff must plead "a short and plain statement of the claim [demonstrating that he is entitled to] relief." FED. R. CIV. P. 8(a)(2). The purpose of this requirement is to put the defendant on "fair notice" of the plaintiff's claim. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 27 S.Ct. 1955, 1964, 167 L.Ed. 2d 929 (2007). To survive a 12(b)(6) motion to dismiss, specific factual details are not required. Id. The plaintiff must simply demonstrate that the alleged claims are plausible and more than speculative. Id. "[A] formulaic recitation of a cause of action's elements" is inadequate. Id.
When deciding a 12(b)(6) motion to dismiss, the court must assume that the allegations in the complaint are true.
Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002); G.I. Home Developing Corp. v. Weis, No. 07-CV-4115, 2009 U.S. Dist. LEXIS 29345, at *8 (E.D.N.Y. Mar. 31, 2009). In addition to the complaint, the court may consider any documents attached to the complaint or incorporated by reference. Chambers, 282 F.3d at 152. All reasonable inferences should be drawn in favor of the plaintiff. Id.
Where a town department is merely "an administrative arm," and thus lacks a separate legal identity from the municipality, a claim against both the town and the department is redundant. Carthew v. County of Suffolk, No 07-CV-4209, 2010 U.S. Dist. LEXIS 44384, at *12 (E.D.N.Y. May 6, 2010). If there is a redundancy, the "arm" of the municipality is usually dismissed and the lawsuit continues against the municipality. Id. For example, a court should dismiss Town Board Members from a lawsuit where both the town and its board members are named in their official capacities. See Castanza v. Town of Brookhaven, No. 06-CV-6654, 2010 U.S. Dist. LEXIS 27058, at *8 (E.D.N.Y. Mar. 22, 2010); Rini v. Zwirn, 886 F. Supp. 270, 281 (E.D.N.Y. 1995) (finding that any claims against town employees are redundant to claims brought against the town itself).
Here, Plaintiffs brought suit against the Town of Islip, the Town Board, the Town Members in their official capacities, and the Town of Islip Zoning Board of Appeals. The lawsuit against the Town of Islip is sufficient to encompass a lawsuit against any of its departments. See Rini, 886 F. Supp. at 271. Thus, Plaintiffs' claims against the Town Board, Town Members in their ...