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

July 12, 2012

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: Glenn T. Suddaby, United States District Judge

MEMORANDUM-DECISION and ORDER

Currently before the Court, in this civil rights action filed by Fahs Construction Group, Inc., ("Plaintiff") against 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"), in their individual and official capacities, is Defendants' motion to dismiss Plaintiff's first claim for relief in its Amended Complaint for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) and to dismiss all claims against Defendants in their official capacities for lack of subject-matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). (Dkt. No. 31.) For the reasons set forth below, Defendants' motion is granted.

I. RELEVANT BACKGROUND

A. Plaintiff's Claims

Generally, liberally construed, Plaintiff's Amended Complaint alleges that, between approximately June of 2003 and April of 2010, Defendants, in their individual and official capacities, violated Plaintiff's following rights: (1) its right of equal protection under the Fourteenth Amendment by engaging in disparate, discriminatory conduct toward Plaintiff during a highway project for which Plaintiff was the contractor, causing Plaintiff to suffer significant financial loss; and (2) its right to free speech under the First and Fourteenth Amendments by engaging in the discriminatory conduct against Plaintiff in unlawful retaliation for a previous dispute with an employee from the New York State Department of Transportation ("NYSDOT"). (See generally Dkt. No. 29 [Plf.'s Amend. Compl.].) Familiarity with the factual allegations supporting these claims in Plaintiff's Amended Complaint is assumed in this Memorandum-Decision and Order, which is intended primarily for the review of the parties. (Id.)

B. Defendants' Motion

Generally, in support of their motion to dismiss, Defendants argue as follows: (1) Plaintiff's first claim for relief for violation of Plaintiff's rights of equal protection fails to state a claim upon which relief can be granted because it fails allege facts plausibly suggesting the occurrence of any conduct within the applicable three-year limitations period; and (2) based on Plaintiff's own factual allegations, Defendants are protected from liability in their official capacities as a matter of law by the doctrine of sovereign immunity. (See generally Dkt. No. 31 Attach. 1 [Defs.' Memo. of Law].) Defendants do not argue, nor does their motion request, that Plaintiff's claims be dismissed against them in their individual capacities. (Id.)

Generally, in its response to Defendants' motion to dismiss the first claim for relief, Plaintiff makes three alternative arguments. First, Plaintiff argues that, subsequent to Defendant's motion being filed, Plaintiff received from the NYSDOT, by means of a New York Freedom of Information Law ("FOIL") request, documentation that supports its assertion that NYDOT treated another, similarly situated contractor more favorably. (Dkt. No. 33 [Plf.'s Opp'n Memo. of Law].) Plaintiff argues that this document supports its equal protection claim by showing disparate treatment within the three-year limitations period. (Id.) Plaintiff requests that the Court take judicial notice of this document and thus deny Defendants' motion, because Plaintiff will have met its burden under Fed. R. Civ. P. 8(a) by plausibly suggesting a timely claim. (Id.) In the alternative, Plaintiff argues that the Court should sua sponte convert the motion to dismiss into a motion for summary judgment pursuant to Fed. R. Civ. P. 12(d). (Id.) Plaintiff argues that the document received from the FOIL request demonstrates a genuine issue of material fact, which would prevent the granting of a motion for summary judgment. (Id.) Finally, Plaintiff alternatively argues that, if the Court decides to grant the motion to dismiss, the Court should do so without prejudice and give Plaintiff another opportunity to amend the Complaint to reflect this information newly obtained from the FOIL request. (Id.) Plaintiff does not oppose Defendants' motion to dismiss Plaintiff's claims against them in their official capacities because of sovereign immunity. (Id.)

II. RELEVANT LEGAL STANDARDS

A. Legal Standard Governing Motions to Dismiss for Failure to State Claim

Because the parties to this action have demonstrated, in their memoranda of law, an accurate understanding of the legal standard governing dismissals for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6), the Court will not recite that well-known legal standard in this Decision and Order, but will direct the reader to the Court's decision in Wade v. Tiffin Motorhomes, Inc., 05-CV-1458, 2009 WL 3629674, at *3-5 (N.D.N.Y. Oct. 27, 2009) (Suddaby, J.), which accurately recites that legal standard.

The Court would add only a few words regarding what documents are considered when a dismissal for failure to state a claim is contemplated. Generally, when a dismissal pursuant to Fed. R. Civ. P. 12(b)(6) or Fed. R. Civ. P. 12(c) is contemplated, the following matters outside the four corners of the complaint may be considered without triggering the standard governing a motion for summary judgment: (1) documents attached as an exhibit to the complaint or answer, (2) documents incorporated by reference in the complaint (and provided by the parties), (3) documents that, although not incorporated by reference, are "integral" to the complaint, or (4) any matter of which the court can take judicial notice for the factual background of the case.*fn1

B. Legal Standard Governing Motions to Dismiss for Lack of Subject-Matter Jurisdiction

"It is a fundamental precept that federal courts are courts of limited jurisdiction." Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). Generally, a claim may be properly dismissed for lack of subject-matter jurisdiction where a district court lacks constitutional or statutory power to adjudicate it. Makarova v. U.S., 201 F.3d 110, 113 (2d Cir. 2000). When resolving a motion to dismiss for lack of subject-matter jurisdiction, a district court may look to evidence outside of the pleadings. Makarova, 201 F.3d at 113. The plaintiff bears the burden of proving subject-matter jurisdiction by a preponderance of the evidence. Makarova, 201 F.3d at 113 (citing Malik v. Meissner, 82 F.3d 560, 562 [2d Cir. 1996]). When a court evaluates a motion to dismiss for lack of subject-matter ...


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