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MacPherson v. Town of Southampton

September 7, 2010

DONALD C. MACPHERSON, 1104 NORTH SEA CO., INC., AND 1110 NORTH SEA CO., INC., PLAINTIFFS,
v.
TOWN OF SOUTHAMPTON, SOUTHAMPTON TOWN BOARD, KAITLIN GRADY, DONALD KAUTH, JOSEPH LOMBARDO AND DOES 1-5, DEFENDANTS.



The opinion of the court was delivered by: Hurley, Senior District Judge

MEMORANDUM & ORDER

Plaintiffs Donald MacPherson ("MacPherson"), 1110 North Sea Co., Inc. ("1110 North Sea"), and 1104 North Sea Co., Inc. ("1104 North Sea") (collectively, "Plaintiffs") filed the present action against Town of Southampton (the "Town"), Southampton Town Board (the "Town Board"), Kaitlin Grady ("Grady"), Donald Kauth ("Kauth"), and Joseph Lombardo ("Lombardo") (collectively, "Defendants") challenging Defendants' conduct in connection with the enforcement of various ordinances concerning residential properties. The Complaint also alleges that Defendants retaliated against them because of MacPherson's exercise of his First Amendment rights. Defendants move to dismiss the Complaint pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(1) and (6). For the reasons set forth below, Defendants' motion to dismiss is granted in part and denied in part.

BACKGROUND

The following facts are taken from the Complaint and are presumed true for purposes of this motion.

Plaintiffs each own residential property in the Town, where MacPherson is a part-time resident. Four properties are referred to in the Complaint: 1104 North Sea Road, 1106 North Sea Road, 1110 North Sea Road, and 1130 North Sea Road (the "North Sea Road properties"). The 1104 North Sea Road and 1110 North Sea Road properties are owned and operated by the 1104 North Sea and 1110 North Sea corporate entities. (Compl. ¶¶ 7, 8.) MacPherson is "associated" with all four properties "either as an owner, former owner, mortgagor, principal of the corporate owner, and/or consultant to the legal owner." (Id. ¶ 52.) Defendant Grady was one of the Town's zoning code enforcement officers and Defendant Kauth was one of the Town's senior code enforcement officers. Defendant Lombardo is one of the Town's attorneys.

I. The Initial Action

On August 22, 2007, MacPherson, along with two of his corporate entities that are not parties here, commenced a separate action before this Court asserting claims under 42 U.S.C. § 1983 ("Section 1983") against the Town, the Town Board, and several individual defendants that are not parties here (the "Initial Action").*fn1 The claims asserted in the Initial Action are premised upon the alleged unconstitutionality of the Town's seasonal rental permit law. On August 28, 2007, approximately one week after MacPherson commenced the Initial Action, the Town and Town Board "created a new Chapter 270 (Rental Properties) which was scheduled to become effective 30 days later and would be enforced beginning January 1, 2008." (Compl. ¶ 34.) On October 6, 2007, MacPherson filed an Amended Complaint in the Initial Action which challenged the constitutionality of this newly promulgated seasonal rental permit law.

II. The Alleged Retaliation

Plaintiffs allege that shortly after the Amended Complaint was filed in the Initial Action, Defendants began to engage in "a pattern of retaliation" against MacPherson. (Id. ¶ 39.) According to Plaintiffs, Defendants Grady and Kauth learned of the Initial Action when their co-worker Stephen A. Frano, who was named as an individual defendant in the Initial Action, was served with a summons and complaint. (Id. ¶ 40-41). Thereafter, as early as December 2, 2007, Defendants Grady, Kauth, "and other enforcement officers employed by the Town... began a series of repeated visits" to the North Sea Road properties and engaged in "a pattern of intimidation of tenant-occupants" in order to "obtain judicial access" to these properties. (Id. ¶¶ 42, 46.) Plaintiffs allege that the Town Board learned of these investigations and was aware of MacPherson's association with the North Sea Road properties. (See id. ¶ 52.)

In December 2007, after conducting searches of the North Sea Road properties, "GRADY and the TOWN learned that certain individuals were living in the finished basement areas" of these residences, despite the fact that the basement areas had not been approved for bedroom use. (Id. ¶¶ 49, 50.) Although Plaintiffs took immediate steps to have those individuals vacate the North Sea Road properties (id. ¶ 53), the Town and Town Board commenced civil actions against Plaintiffs on March 31, 2008 in New York Supreme Court (the "State Court Actions"). (See id. ¶ 54.)

III. The State Court Actions

On March 31, 2008, the Town and Town Board (through Lombardo as a Town Attorney) "sought a temporary restraining order and preliminary injunction prohibiting the property owners and all others... from all future use and occupancy of the North Sea Road residences until the state civil action was determined...." (Id. ¶ 55.) According to the Complaint, the Town, Town Board, and Lombardo initially attempted to obtain the temporary restraining orders without providing Plaintiffs with "any meaningful notice and an opportunity to be heard." (Id. ¶¶ 57-58.) Ultimately, Plaintiffs allege that they were provided with "legally and constitutionally insufficient" notice -- in the form of a telephone and facsimile message left after-hours at the office of one of Plaintiffs' attorneys -- that "an Order To Show Cause would be presented for signature to a justice on the following day in Riverhead." (Id. ¶ 59.)

Plaintiffs allege that because they were not provided with proper notice of the State Court Actions, they did not appear to oppose the relief sought by the Town and Town Board. (Id. ¶ 63.) Accordingly, on April 1, 2008, Acting New York State Supreme Court Justice Gary J. Weber issued three Orders to Show Cause why preliminary injunctions should not be granted pursuant to CPLR Article 63, the Town Law, and the Town Code that prohibited Plaintiffs from occupying or otherwise using the properties located at 1104, 1110, and 1130 North Sea Road (the "Orders to Show Cause"). (See Decl. of Michael S. Cohen in Supp. of Mot. to Dismiss the Compl., May 6, 2009 (the "Cohen Declaration"), Exs. C, E, G.) Justice Weber simultaneously issued temporary restraining orders (the "TROs") that prohibited Plaintiffs from using or occupying these three North Sea Road properties until Defendants' motions for preliminary injunctions were decided. (Id.) Thereafter, on July 28, 2008, the TROs were extended by order of New York State Supreme Court Justice Arthur G. Pitts (the "Extension Orders"). (Id., Exs, D, F, H; Compl. ¶ 64.)*fn2

Plaintiffs allege that Defendants "deliberately and intentionally provid[ed] false information to the state court"*fn3 and "utiliz[ed] and abus[ed] a New York State Rule of Civil Procedure" in order to obtain the TROs. (See Compl. ¶ 65.) According to Plaintiffs, Defendants' conduct constituted "the unlawful and unconstitutional seizure of Plaintiffs' property for a serious and significant amount of time,... in a manner akin to a pre-judgment attachment of the real property without any adequate prior notice and opportunity to be heard." (Id.) As a result, the North Sea Road properties could not be rented or occupied during the spring, summer, or fall of 2008 (even though such extended periods of non-occupancy violated the terms of the properties' mortgage contracts), and were subject to vandalism and mold growth in the basement.

(Id. ¶ 66.)

On or about September 10, 2008, the Town allegedly "sent a slew of fire marshals[,] Code enforcement officers, police officers and a Building Inspector onto the properties without probable cause, without a search warrant and without consent of the property owners...." (Id. ¶ 67.) Although Plaintiffs' counsel demanded that these Town employees vacate the premises, they refused because, according to Defendant Lombardo, "no one had a right to even be on the property at all." (Id.)

IV. The Complaint

The Complaint asserts eight causes of action. Count I seeks damages for alleged violations of Plaintiffs' Fourth and Fourteenth Amendment rights stemming from: (1) the September 10, 2008 incident (Compl. ¶ 72), and (2) Plaintiffs' allegation that "Defendants effectively 'seized' all use and occupancy of the real properties and all use [of] an income-generating property, through what is tantamount to an unconstitutional ex parte writ of attachment being sought by a municipality and granted by a state court judgment, without notice and opportunity to be heard." (Id. ¶ 73.)

Count II seeks damages for Defendants' alleged violation of Plaintiffs' First and Fourteenth Amendment rights by retaliating against MacPherson because he filed the Initial Action. (Id. ¶ 77.)

Count III seeks damages and declaratory relief based upon Defendants' alleged violation of Plaintiffs' Fifth and Fourteenth Amendment rights. In particular, Plaintiffs allege that Defendants violated their rights "to a fair administrative process and a fair criminal process," as well as Plaintiffs' procedural and substantive due process rights. (Id. ¶ 83). Plaintiffs further allege that they "have been treated differently from other persons who are similarly situated in numerous respects." (Id. ¶ 84.) Finally, Plaintiffs allege that "the manner in which Defendants have brought [ ] the TRO[s] and utilized the ex parte pre-judgment attachment process to deprive a homeowner [of] all use and occupancy of one's property is unconstitutional and could [affect] others if it is allowed to continue." (Id. ¶ 85.)

Count IV alleges that Defendants violated Plaintiffs' Fourth, Fifth, and Fourteenth Amendment rights by intentionally and deliberately failing "to constitutionally fulfill investigative and administrative functions" and by failing to "provide accused[ individuals] such as Plaintiff MacPHERSON with fair trials by obtaining full and complete information from the TOWN's code enforcement officers." (Id. ¶ 90.) Plaintiffs allege that "the TOWN's attorneys act also as the TOWN's own prosecutors... and have gone virtually unchecked and unsupervised by the Suffolk County District Attorney in any meaningful way...." (Id. ¶ 89.) Plaintiffs assert that they are entitled to damages as a result of Defendants' deliberate actions that deprived them of notice and fair hearings and transgressed their property and liberty interests. (Id. ¶ 91.) Similarly, Count V alleges that Defendants have violated Plaintiffs' Fourth, Fifth and Fourteenth Amendment rights by failing to "train and supervise their governmental employees not to violate civil rights of Plaintiffs and persons in Plaintiffs' situation." (Id. ¶ 100.) Plaintiffs seek damages for the resulting violations of their constitutional rights.

In Count VI, MacPherson alleges that he is "entitled to reimbursement for all legal expenses and costs which he incurred in connection with his legal defense of any Justice Court criminal prosecution and state court civil actions brought by the TOWN BOARD under the theory of common law indemnification." (Id. ¶ 122.)

In Count VII, Plaintiffs seek a declaration that Chapter 270 of the Town's Rental Law is unconstitutional and unenforceable. (Id. ¶¶ 125, 126.) Plaintiffs also seek a declaration that the Town and Town Board violated the Constitution by using "New York State civil procedures for the purpose of seeking ex parte TROs and preliminary injunctions, without adequate notice to the property owner and a full and fair opportunity to be heard...." (Id. ¶ 127.) Finally, Plaintiffs seek a declaration that the Town and Town Board's legislation and practice of "seizing all use of a residential property without providing for a full and fair post-seizure evidentiary hearing within 15 days" violates the Constitution. (Id. ¶ 128.)

Count VIII seeks various forms of injunctive relief that (1) requires Defendants to provide training to its code and law enforcement officers, (2) halts the Town's alleged practice of using the New York State Courts to issue TROs and preliminary injunctions without notice and a fair opportunity to be heard, (3) "stay[s] the pending civil actions against Plaintiffs in the state court and cancel[s] the TROs and preliminary injunctions in all such cases," and (4) requires Defendants to submit to monitoring by the New York State Attorney General's Office. (Id. ¶¶ 130-33.)

For the reasons indicated below, Defendants' motion to dismiss is granted in part and denied in part.

DISCUSSION

I. Motion to Dismiss for Lack of Subject Matter Jurisdiction

Plaintiffs seek damages as well as declaratory and injunctive relief based upon Defendants' alleged violations of Plaintiffs' procedural and substantive due process rights. Defendants move to dismiss these claims pursuant to Rule 12(b)(1) on the ground that the Court lacks subject matter jurisdiction over them. For the reasons discussed below, Defendants' motion to dismiss Plaintiffs' due process claims is granted.

A. Legal Standard

A case may properly be dismissed for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) "when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). "In contrast to the standard for a motion to dismiss for failure to state a claim under Rule 12(b)(6), a 'plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.'" MacPherson v. State Street Bank & Trust Co., 452 F. Supp. 2d 133, 136 (E.D.N.Y. 2006) (quoting Makarova, 201 F.3d at 113); see also Tomaino v. United States, 2010 WL 1005896, at *1 (E.D.N.Y. Mar. 16, 2010).

B. Plaintiffs' Due Process Claims are Dismissed

Throughout the Complaint, Plaintiffs allege that their due process rights were violated because Defendants did not provide Plaintiffs with notice or an opportunity to be heard before the TROs were issued by the New York Supreme Court. Specifically, in Count I, Plaintiffs seek damages based upon Defendants' "seiz[ure]" of the North Sea Road properties "through what is tantamount to an unconstitutional ex parte writ of attachment being sought by a municipality and granted by a state court judgment, without notice and opportunity to be heard." (Compl. ¶ 73.) Count III contains an allegation that "the manner in which Defendants have brought [ ] the TRO... is unconstitutional...." (Id. ¶ 85.) Finally, Count VIII seeks injunctive relief (1) prohibiting the Town from using the New York State Courts to obtain TROs without providing notice and an opportunity to be heard, and (2) canceling the TROs issued in the pending State Court Actions against Plaintiffs. (Id. ¶¶ 131, 132.)

Defendants contend that these claims are barred by the Rooker-Feldman doctrine and "basic principles of comity and federalism." (Defs.' Mem. at 5-9.)*fn4

1. The Rooker-Feldman Doctrine

Rooker-Feldman establishes the principle that federal district courts lack jurisdiction over suits that are, in substance, appeals from state-court judgments. See Hoblock v. Albany Cnty. Bd. of Elections, 422 F.3d 77, 84 (2d Cir. 2005). The doctrine evolved from the Supreme Court decisions in Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), which, taken together, stand for the principle that "lower federal courts lack jurisdiction to engage in appellate review of state-court determinations." Pennzoil Co. v. Texaco, Inc.,481 U.S. 1, 21 (1987) (Brennan, J., concurring). The Supreme Court has explained that Rooker-Feldman "is confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting the district court review and rejection of those judgments." Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,544 U.S. 280, 284 (2005).

In this Circuit, courts must make four determinations before applying the doctrine. See Hoblock, 422 F.3d at 84. First, the federal court plaintiff must have lost in state court. Second, the plaintiff must complain of injuries caused by a state-court judgment. Third, the plaintiff must invite district court review and rejection of that judgment. Fourth, the state-court judgment must have been "rendered before the district court proceedings commenced." Id. at 85. The first and fourth requirements are procedural, whereas the ...


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