The opinion of the court was delivered by: David G. Larimer United States District Judge
While the maxim, "If at first you don't succeed, try, try again," may be sound advice for everyday living, it is not always a good rule to follow where litigation is concerned. One week after this Court dismissed a civil rights lawsuit ("Casciani I") against the Town of Webster, New York ("Town") and Town Supervisor Ronald Nesbitt, the plaintiff, John Casciani, filed another suit against the Town, Nesbitt, and another town official, Donald Hauza, alleging many of the same facts and claims. That new action also followed this Court's denial of plaintiff's motion to amend his complaint in Casciani I on the ground that allowing the amendment would be futile, since the additional claims in the proposed amended complaint--some of which also appear in the present action--would be subject to dismissal for failure to state a claim.*fn1
Defendants in the present, i.e. second, action have moved for judgment on the pleadings dismissing the complaint under Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons that follow, the motion is granted, and the complaint is dismissed.
Much of the factual background of this case is set forth in this Court's October 6, 2009 Decision and Order granting summary judgment for the defendants in Casciani I. See Casciani v. Nesbitt, 659 F.Supp.2d 427, 430-33 (W.D.N.Y. 2009).*fn2 Familiarity with that decision, which was affirmed by the Second Circuit the following year, see 392 Fed.Appx. 887 (2d Cir. 2010), cert. denied, ___ U.S. ___, 131 S.Ct. 2096 (2011), is assumed. In general, however, plaintiff alleged in that action that the defendants had violated his rights under the First and Fourteenth Amendments to the United States Constitution in connection with the defendants' enactment and enforcement of an ordinance ("the ordinance") prohibiting any private aircraft from taking off or landing anywhere within Webster. Plaintiff, a Webster resident, alleged that he owned a helicopter, for which he had constructed a landing pad on his property, and that defendants prohibited him from flying his helicopter. He alleged that they did so in violation of plaintiff's right to equal protection, and in retaliation for plaintiff's previous exercise of his First Amendment rights.
The Court found all of those claims to be meritless. In my decision, I held that the ordinance was facially valid, that plaintiff had failed to present evidence supporting an equal protection claim under any of the several theories upon which he had relied, and that plaintiff had likewise failed to demonstrate the existence of any genuine issues of material fact in regard to his First Amendment retaliation claim.
Undeterred by this Court's rulings, plaintiff, represented by the same counsel, filed the complaint in the instant action on October 13, 2009. Plaintiff filed an amended complaint as of right on October 21, 2009.
The sixty-five-page amended complaint sets forth lengthy allegations, many of which are virtual duplicates of the allegations that plaintiff made in Casciani I. Plaintiff asserts that those allegations are simply "background evidence ... pursuant to Jute v. Sunstrand." Dkt. #2 ¶ 21. That is a reference to a case decided by the Second Circuit in 2005, in which the court held that "evidence of an earlier alleged [discriminatory or] retaliatory act [that occurred before the commencement of the limitations period] may constitute relevant background evidence in support of [a] timely claim ... [and] may be considered to assess liability on the timely alleged act." Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 176--77 (2d Cir. 2005) (internal quotation marks and citation omitted).*fn3
In his amended complaint here, plaintiff has alleged some additional acts that occurred after the complaint in Casciani I was filed, and which were not alleged in either the pleadings or in plaintiff's other papers in that action.*fn4 He alleges that defendant Nesbitt made certain disparaging comments about plaintiff in a local newspaper. Amended Complaint ¶¶ 144-49, 166-81. Plaintiff also alleges that the Town increased the assessment on several properties that he owned, in retaliation for his filing and prosecution of the Casciani I action. Id. ¶¶ 155-57, 184.
In addition, plaintiff alleges here that defendant Hauza, the Town's assistant public works commissioner, "threatened" two elderly neighbors of plaintiff to coerce them into attending a Town meeting to "complain" about plaintiff, and that Hauza "even induced them to write an editorial about the Plaintiff in the newspaper disparaging the Plaintiff." Id. ¶ 159. Plaintiff further alleges that Hauza "unduly delayed a routine approval" of a permit application that plaintiff had filed, "for no other reason that [sic] to harass and retaliate against the plaintiff ... ." Id. ¶ 161.
Based on these allegations, the amended complaint asserts three causes of action. The first is asserted against the Town, Nesbitt, and Hauza, and alleges that they retaliated against plaintiff for having exercised his First Amendment rights by filing his prior lawsuit challenging the ordinance.
Oddly, this cause of action as set forth in the complaint repeats plaintiff's allegation from his prior lawsuit that defendants also were motivated "by the fact that [plaintiff] is an Italian American resident of the Town of Webster," Dkt. #2 ¶ 184, although this claim as pleaded is limited to a First Amendment claim and does not assert a claim for national-origin discrimination.
The second cause of action asserts a claim against the Town and Nesbitt for a violation of plaintiff's equal protection rights. The precise theory behind this claim is not apparent from the face of the complaint, as it alleges a hodgepodge of "improper considerations" motivating the alleged disparate treatment of plaintiff, including "his prior federal lawsuit, ... sheer malice, ... [and] the fact that he is an Italian American ... ." Dkt. #2 ¶ 191. Plaintiff alleges that defendants' acts "constitute selective and arbitrary treatment" in violation of the Fourteenth Amendment. Dkt. #2 ¶ 192.
Plaintiffs' third cause of action asserts a claim against the Town and Nesbitt for defamation under New York law. This claim is based on certain statements that Nesbitt allegedly made in the Webster Post newspaper.*fn5 On June 4, 2008, the Post ran a piece authored by Nesbitt, in which he denied Casciani's accusations of discrimination against Italian-Americans, and opined that Casciani "owes the residents of the town of Webster an apology for his allegations that this community is a haven for discrimination against Italian Americans." Dkt. #2 ¶ 194. Plaintiff alleges that Nesbitt's statements were libelous per se and that they have caused plaintiff to suffer mental anguish ...