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Fahs Constr. Group, Inc v. Michael Gray; John Van Auken; Timothy Farrell; John Doe No. 1

January 27, 2011

FAHS CONSTR. GROUP, INC., PLAINTIFF,
v.
MICHAEL GRAY; JOHN VAN AUKEN; TIMOTHY FARRELL; JOHN DOE NO. 1;
JOHN DOE NO. 2; JOHN DOE NO. 3; JOHN DOE NO. 4; AND JOHN DOE NO. 5, DEFENDANTS.



The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge

DECISION and ORDER

Currently before the Court in this civil rights action, filed by Fahs Construction Group, Inc. ("Plaintiff"), is a motion to dismiss for failure to state a claim filed by Michael Gray, John Van Auken, and Timothy Farrell ("Defendants"). (Dkt. No. 13.) For the reasons set forth below, Defendants' motion is granted in part and denied in part; and certain of Plaintiff's claims are dismissed without prejudice.

I. RELEVANT BACKGROUND

A. Plaintiff's Claims

Generally, liberally construed, Plaintiff's Complaint alleges that, between mid-August 2003 and September 2009, Defendants--eight current or former employees of the New York State Department of Transportation ("NYSDOT")--violated its civil rights under 42 U.S.C. § 1983 and the United States Constitution. (See generally Dkt. No. 1 [Plf.'s Compl.].) More specifically, Plaintiff, a general construction contractor that provides roadway paving and related services, alleges that, sometime in 2003, while successfully pursuing a claim for $900,000 from the NYSDOT based on work performed for the NYSDOT in Owego, New York (the "Owego Project"), Plaintiff caused great embarrassment to John Grady, a NYSDOT official. (Id.) Plaintiff further alleges that, as a result, Defendants, at least one of whom worked for John Grady at the NYSDOT, subjected Plaintiff and its employees to a discriminatory work environment at another Thruway construction site, pursuant to a different contract, the "Fahs Contract," and further discrimination during the Fahs Contract "closeout period" (i.e., the period of time after Plaintiff's road repair work at the construction site was complete but before the contract was "finalized"). (Id.) Plaintiff also alleges that another contractor, Lancaster Development, Inc. ("Lancaster"), which was performing similar work at an adjoining site on the Thruway, was treated more favorably than was Plaintiff by Defendants before Plaintiff completed its onsite work in September 2005. (Id.)

Based on these allegations, Plaintiff's Complaint asserts the following three claims: (1) violation of its right to equal protection under the Fourteenth Amendment against all Defendants; (2) violation of its right to freedom from retaliation under the First Amendment against Defendant Gray; and (3) conspiracy to violate its rights to equal protection and freedom from retaliation under the First and Fourteenth Amendments against all Defendants. (Id.) Plaintiff also asserts a claim for entitlement to punitive damages based on Defendants acting "outrageously, with malice, and with specific intent to deprive [Plaintiff] of its constitutional rights." (Id.)*fn1 Familiarity with the remaining factual allegations supporting these claims in Plaintiff's Complaint is assumed in this Decision and Order, which is intended primarily for review by the parties. (Id.)

B. Defendants' Motion

Generally, in support of their motion dismiss, Defendants argue that Plaintiff's claims, which were filed on February 3, 2010, are barred by the three-year statute of limitations governing claims arising under 42 U.S.C. § 1983. (See generally Dkt. No. 13, Attach. 1 [Defs.' Memo. of Law].) More specifically, Defendants argue that (1) the conduct that occurred during the onsite performance of the Fahs Contract is outside of the limitations period, and (2) the conduct that occurred after the onsite work was completed (some of which falls within the limitations period) is not actionable. (Id.)

In response, Plaintiff argues as follows: (1) because Defendants' actionable behavior was continuous, the events that occurred outside of the limitations period are actionable pursuant to continuing-violation doctrine; (2) Defendants cannot assert the affirmative defense that the action is barred by the statute of limitations in a pre-answer motion to dismiss; (3) Plaintiff is entitled to discovery in connection with the statute-of-limitations issue; and (4) in the event that the Court concludes that the allegations in the Complaint "are insufficiently detailed," Plaintiff should be given leave to amend its Complaint. (See generally Dkt. No. 15 [Plf.'s Reply Memo. of Law].)

In their reply, Defendants argue, inter alia, as follows: (1) the continuing-violation doctrine should not be applied to Plaintiff's claims; (2) Plaintiff fails to allege facts plausibly suggesting a constitutional violation within the statute of limitations; and (3) resolution of the statute-of-limitations question does not require discovery. (See generally Dkt. No. 17 [Defs.' Reply Memo. of Law].)

II. RELEVANT LEGAL STANDARDS

A. Legal Standard Governing Motions to Dismiss for Failure to State a Claim "A motion to dismiss on the basis that an action is barred by the statute of limitations is analyzed under Federal Rule of Civil Procedure 12(b)(6), not 12(b)(1)." Garner v. DII Indus., LLC, 08-CV-6191, 2010 WL 456801, at *1 (W.D.N.Y. Feb. 4, 2010) (citing Ghartey v. St John's Queens Hosp., 869 F.2d 160, 162 [2d Cir.1989]). Because the parties to this action have demonstrated, in their memoranda of law, an accurate understanding of the legal standard governing motions to dismiss for failure to state a claim, the Court will not recite that well-known legal standard in this Decision and Order, but will direct the reader to the Court's recent decision in Wade v. Tiffin Motorhomes, Inc., 05-CV-1458, 2009 WL 3629674, at *3 (N.D.N.Y. Oct. 27, 2009) (Suddaby, J.), which accurately recites that legal standard.

B. Legal Standard Governing Defendants' Challenge to Plaintiff's Claims

Because the parties to this action have demonstrated, in their memoranda of law, an accurate understanding of the relevant points of law contained in the legal standards governing Defendants' challenge to Plaintiff's claims in this action, the Court will not recite, in their entirety, that legal standard in this Decision and Order, which (again) is intended primarily for review by the parties. (See Dkt. No. 13, Attach. 1 [Defs.' Memo. of Law]; Dkt. No. 15 [Plf.'s Reply Memo. of Law]; Dkt. No. 17 [Defs.' Reply Memo. of Law].)

III. ANALYSIS

As stated above in Part I.B. of this Decision and Order, Defendants seek the dismissal of Plaintiff's claims on the grounds that the claims are time barred. In response, Plaintiff argues that (1) because Defendants' actionable behavior was continuous, the events that occurred outside of the limitations period are actionable pursuant to the continuing-violation doctrine, (2) Defendants cannot assert the affirmative defense that the action is barred by the statute of limitations in a pre-answer motion to dismiss, (3) Plaintiff is entitled to discovery in connection with the statute-of-limitations issue, and (4) in ...


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