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James Richard Germalic v. the Commissioners State Board

April 1, 2011

JAMES RICHARD GERMALIC, PLAINTIFF,
v.
THE COMMISSIONERS STATE BOARD
OF ELECTIONS, NEW YORK, DEFENDANTS.



The opinion of the court was delivered by: David N. Hurd United States District Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff James Richard Germalic ("plaintiff" or "Germalic"), proceeding pro se, brings this action against defendants pursuant to 42 U.S.C. § 1983 alleging violation of his civil rights. Specifically, plaintiff claims that New York election law deprived him of his First and Fourteenth Amendment rights by prohibiting out-of-state persons from collecting signatures to support his independent candidacy for the office of United States Senator from New York. Plaintiff seeks declaratory relief. Defendants have filed a motion to dismiss the complaint in its entirety pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing, inter alia, that plaintiff lacks standing and his claims are moot. Plaintiff opposes the motion, which was taken on submit.

II. FACTUAL BACKGROUND

The following facts, taken from the complaint, are accepted as true for purposes of this motion to dismiss.

Between July 6 and August 17, 2010, Germalic gathered approximately 7800 signatures throughout the state of New York to support his petition to get his name on the November 2010 ballot as the "Black/White Party" candidate for the office of United States Senator from New York. Plaintiff mailed his petition and these signatures to the Board of Elections of New York (the "Board") on August 17, 2010. On September 18, 2010, plaintiff received a letter from the Board advising that only 1336 of the signatures would be accepted. Therefore, his petition was deemed "invalid" as 15,000 signatures are required to be included on the ballot as an independent candidate. Complaint, Dkt. No. 1, Ex. A.

Despite numerous requests, plaintiff was never provided with an explanation as to why the vast majority of the signatures were unacceptable. As a result of the Board's determination, Germalic's name did not appear on the November 2010 ballot.

III. DISCUSSION

A. Motion to Dismiss-Legal Standard

To survive a 12(b)(6) motion to dismiss, the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1965 (2007). Although a complaint need only contain "a short and plain statement of the claim showing the pleader is entitled to relief" (Fed. R. Civ. P. 8(a)(2)), more than mere conclusions are required. Indeed, "[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Ashcroft v. Iqbal, U.S. , 129 S. Ct. 1937, 1950 (2009).

Dismissal is appropriate only where plaintiffs fail to provide some basis for the allegations that support the elements of their claims. See Twombly, 550 U.S. at 570, 127 S. Ct. at 1974 (requiring "only enough facts to state a claim to relief that is plausible on its face"). When considering a motion to dismiss, the complaint is to be construed liberally, and all reasonable inferences must be drawn in the plaintiffs' favor. Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). Additionally, particular deference should be given to a pro selitigant's complaint when applying the above standard. Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200 (2007).

B. Defendants' Motion to Dismiss

Plaintiff challenges the constitutionality of New York's requirement that witnesses to nominating petitions for independent candidates be residents of New York. Plaintiff asserts that this violates his freedom speech as well as the freedom of speech of such witnesses. In his complaint and memorandum of law in opposition to defendants' motion, Germalic also rails against the "privileged position" the two major political parties hold over third party and independent candidates in this country. Although he indicates a desire "to challenge this constitutionally," plaintiff fails to identify what specific laws or practices he is challenging. Nor does he articulate how these particular defendants are ...


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