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Robert I. Toussie, et al. v. Town Board of East Hampton

June 18, 2012


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


Pending before the Court is plaintiffs' motion, made pursuant to Rule 15 of the Federal Rules of Civil Procedure, for an order permitting service of a Second Amended Complaint. For the reasons provided infra, that motion is denied with prejudice on the ground of futility.


This is the third Memorandum and Order addressing the adequacy of plaintiffs' pleadings, and the second time I have focused on the sufficiency of their proffered Second Amended Complaint. As a result of the Court's prior rulings, the sole remaining cause of action is the one asserting a denial of equal protection based on malice. As to that claim, plaintiffs allege that defendant Town of East Hampton, and its Town Board, violated their equal protection rights via the enactment of Local Law 16 of 2005 which upzoned approximately 15.1 acres of an undeveloped parcel of property owned by plaintiffs located on Manor Lane, East Hampton from two-acre to five-acre zoning, while granting "a similarly situated adjacent parcel," the Briar Croft Property, "a more favorable three acre minimum lot size." (Amended Compl., ¶¶ 2, 16; see also Proposed Second Amended Complaint (hereinafter for citing purposes only, "SAC") ¶¶ 16, 17.) In addition, plaintiffs maintain that defendants vindictively mandated trail easements and reserved areas for their proposed subdivision of the Manor Lane property, but not for a proposed subdivision on the adjourning Briar Croft parcel.*fn1

Given that the background information giving rise to plaintiffs' claims was detailed in my earlier memoranda and orders, dated February 17, 2010 ("2010 Decision" or "2010 M. & O.") and March 31, 2011 ("2011 Decision" or "2011 M.& O."), it will not be reiterated here but rather is incorporated by reference.

2010 Decision

In the 2010 Decision, defendants' motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) was granted in toto. However, one of the dismissed causes of action, to wit, the malice-based equal protection claim was dismissed without prejudice, with leave to move to amend the complaint. In dismissing that claim as then pled, the Court concluded that even if its factual allegations -- once trimmed of the purely conclusory assertions -- were true, plaintiffs had "failed to set forth a plausible claim that the differing treatment was motivated by malice or ill-will." (2010 M. & O. at 16.) That determination was largely based upon my interpretation of the holding in Bizzarro v. Miranda, 394 F.3d 82 (2d Cir. 2005), in which the Second Circuit explained, that "[i]f the motivation to punish is to secure compliance with agency objectives, then by definition the motivation is not spite, or malice, or a desire to get someone for reasons wholly unrelated to any legitimate state objective."*fn2 Id. at 87 (internal quotation marks, and cite, deleted).

The evidence appropriately considered in determining the Rule 12(b)(6) motion (see 2010 M. &. O. at 5-9) - construed, as it must be, most favorably to the non-movant plaintiffs - demonstrates that the targeted upzoning was intended, at least in part, if not wholly to advance legitimate municipal goals. ( 11-14.) Such being the case, I concluded in the 2010 Decision that plaintiffs' malice-based equal protection claim was not sustainable as a matter of law.

2011 Decision

Following receipt of the 2010 Decision, plaintiffs moved to amend their pleading via the submission of a second amended complaint, which added the Prand Corporation ("Prand") as a plaintiff, named the members of the Town Board as defendants, provided additional reasons underlying the ill-will purportedly harbored by the defendants against plaintiffs, and set forth additional causes of action.

The 2011 Decision resulted in plaintiffs' Rule 15 motion to amend being denied as to (1) the claims asserted on behalf of Prand, (2) the newly asserted causes of action, and (3) the restated original causes of action other than the denial of equal protection claim based on malice. As to that later claim, I asked, sua sponte, for counsel to submit supplemental briefs as to the portion of the 2010 Decision based on Bizzarro. The relevant portion the 2011 Decision reads:

In the prior pleadings in this case, plaintiffs' equal protection with malice claim alleged that defendants upzoned plaintiffs' property because "the Town had targeted plaintiffs' property for acquisition and made numerous offers to purchase it, and plaintiffs had repeatedly refused to sell to the Town." (M&O*fn3 at 16 (quoting plaintiffs' brief).) The Court dismissed this claim, concluding that even if the factual allegations were true, defendants' actions were motivated not by spite or malice, but by a desire to secure compliance with a "legitimate governmental objective" -- namely, to purchase plaintiffs' land, preserve it from development, and ultimately protect the Town's natural resources. (M&O at 16-19 (citing Bizzarro, 394 F.3d 82 at 87).)

It could be argued, however, although plaintiffs have not done so, that this Court's reliance in its February 17, 2010 Memorandum and Order on Bizzarro was misplaced. The investigation in Bizzarro, in which the Department of Corrections sought to stem the flow of contraband from correction officers to inmates, involved a "legitimate governmental objective." Id. at 87-89. Thus, as explained by the Second Circuit, the plaintiff's equal protection with malice claim based on the discipline to which he was subjected for refusing to assist in the investigation was precluded by the legitimate objective sought to be advanced by the Department. The Town's actions here, however, as alleged in the second amended complaint presently under consideration, were not to advance a legitimate government goal perse, but rather to punish plaintiffs for purportedly frustrating the Town's efforts to purchase property, and to drive down the market value of the subject properties. Is this a significant distinction in counsels' view? . . . . . . In that the Court, sua sponte, has raised the Bizzarro issue anew without prior notice to counsel, fairness dictates that counsel be afforded an opportunity to provide their input. Accordingly, decision is reserved on plaintiffs' motion to assert an amended equal protection with malice claim as to the allegations that defendants (1) enacted the 2005 Law with its supposed unconstitutional disparate impact on the Manor Lane property and (2) "mandated trail easements and reserve areas on the [] Manor Lane parcel but not on the adjoining site" (SAC ¶ 30) to, inter alia, punish plaintiffs for not selling their property to the town and to devalue their property in order to effectuate a lower purchase price. The parties are instructed to submit supplemental briefing on whether this limited claim alone may proceed under a cause of action for equal protection with malice, or whether it should be dismissed under Bizzarro, as previously articulated by this Court in the February 17, 2010 Memorandum and Order.

Plaintiffs' motion to amend the complaint to allege all other claims pled in the SAC is denied with prejudice for the reasons stated [earlier]. (2011 M. & O. at 23-25.)

The question currently before the Court, then, is twofold: (1) whether the Court's reliance on Bizzarro was misplaced, and (2) if so, should the Court's decision vis-a-vis the denial of equal protection with malice claim, as articulated in the 2010 Memorandum and Order, be set aside and defendants' Rule 12(b)(6) motion be denied as that cause of action?


1. My Reliance in the 2010 Decision on Bizzarro

The facts in Bizzarro, briefly alluded to previously, requires some amplification. The plaintiff-appellees in that case, viz. Bizzarro and Klivans were officers in the Westchester County Department of Corrections. Each was asked by a higher-ranking officer to assist in an undercover operation addressing the problem of contraband suspected of being delivered to inmates by correction officers. Each, for various reasons, declined to do so. As a result, both were disciplined. Bizzarro and Klivans then commenced an action against the County of Westchester and the higher ranking officers involved under 42 U.S.C. § 1983, alleging violations of their equal protection rights based on malice. Defendants moved unsuccessfully for summary judgment. In rejecting that application, the district judge said "there was no legitimate basis for the order . . . issued to the Plaintiffs, and for refusal of which they were subjected to disciplinary charges . . . . Clearly there is a Fourteenth Amendment violation in this case on Plaintiffs view of the disputed facts . . . ." Bizzarro, 394 F.3d at 85. The Circuit disagreed, explaining:

The pertinent question in a constitutional claim is not whether the defendants correctly understood the rules they were enforcing . . . . [A]n Olech*fn4 -type equal protection claim focuses on whether the official's conduct was rationally related to the accomplishment of the work of their agency. If a jury could reasonably find that there was no rational basis for the defendants to believe that ...

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