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Fahs Construction Group, Inc v. Michael Gray

December 7, 2012


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


Currently before the court, in this civil rights action filed by plaintiff Fahs Construction Group, Inc., ("Plaintiff") against defendant Michael Gray ("Defendant"), is a motion by Defendant to dismiss the Second Amended Complaint or, in the alternative, to stay this action pending resolution of a related case and to stay discovery pending consideration of the current motion. (Dkt. No. 53.) For the reasons set forth below, Defendant's motion to dismiss is granted; Defendant's motions for a stay of this action and a stay of discovery are denied as moot; and the Second Amended Complaint is dismissed with prejudice.


A. Procedural History

Familiarity with the procedural history of this case is assumed in this Memorandum-Decision and Order, which is intended primarily for the review of the parties. See Fahs Const. Group, Inc. v. Gray, No. 3:10-CV-0129, 2011 WL 2873532 (N.D.N.Y. Jul. 12, 2012) (motion to dismiss equal protection claim and First Amendment claim against all defendants in their official capacities, as set forth in the amended complaint, is granted); Fahs Const. Group, Inc. v. Gray, No. 3:10-CV-0129, 2011 WL 294269 (N.D.N.Y. Jan. 27, 2011) (motion to dismiss complaint granted in part and denied in part and certain claims are dismissed without prejudice). However, the Court will briefly touch on two relevant points regarding the procedural history.

First, it is clear that as a result of the motion practice that has occurred to date, the sole remaining cause of action set forth in the Second Amended Complaint is a claim against Defendant for retaliation under the First Amendment. While that claim was pleaded in both the initial Complaint and First Amended Complaint, it was not until the current motion was filed, over two and a half years after this case was commenced, that Defendant raised the issue of whether Plaintiff's speech is protected by the First Amendment.*fn1

Second, although Defendant seeks a stay of discovery pending resolution of his current motions, he has since sought that same relief before Magistrate Judge David E. Peebles. (See Dkt. No. 57.) Magistrate Judge Peebles denied Defendant's motion in that regard, which decision was later affirmed by this Court. (See Dkt. No. 63.) For this reason, Defendant's motion for a stay of discovery is denied as moot.

B. Plaintiff's Claim

Generally, Plaintiff's Second Amended Complaint asserts a claim of retaliation under the First Amendment against Defendant in his individual capacity. (See Dkt. No. 51.) The Court accepts as true the following allegations of fact from the Second Amended Complaint. Plaintiff contends that Defendant's outrageous, discriminatory, and oppressive treatment of [Plaintiff] . . . was in retaliation for [Plaintiff's] claims in connection with [three separate NYSDOT] projects, as well as [Plaintiff's] outspoken resistance to NYSDOT's positions with respect to the claims, and also in retaliation for the use of [a NYSDOT employee's] email in connection with [one of the three named] project[s], which [Plaintiff] used to great advantage in the ultimate settlement of its claims in connection with that project. (Id., at ¶ 126.) The three referenced NYSDOT projects are identified by Plaintiff as the Lark Dove, Owego and Albany projects.

Regarding the Lark Dove project, Plaintiff makes reference to a claim that was filed, ostensibly to avoid an increase in "quantities for the repair of unsound concrete in the bridge piers[,]" which had been advocated by an unnamed "Construction Supervisor[,]" and which "would have cost [Plaintiff] a significant amount of money." (Id., at ¶ 15.) Plaintiff implies that it was successful on this claim, but that as a result the unnamed "Construction Supervisor harbored a grudge" against it. (Id.) Plaintiff undertook phases two and four of the four-phase Lark Dove project in the late 1990s.

The Owego project, which involved the reconstruction of a bridge, was awarded to Plaintiff "[p]rior to 2003." (Id., at ¶ 16.) Plaintiff asserts that the project "received significant pubic attention and interest." (Id., at ¶ 17.) The project involved the construction of a causeway so that Plaintiff could access the bridge. Plaintiff asserts that it "was very concerned about the [causeway's] design and criticized it [but] its requests for a modification of the design . . . were denied." (Id., at ¶ 23.) In December 2001 and again in January 2002, the causeway flooded, and subsequently Plaintiff and NYSDOT argued about which party was at fault. Plaintiff filed a claim, "pursuant to the contract Plans and Specifications, seeking additional compensation in connection with the causeway failure." (Id., at ¶ 30.) The following month, John Grady, head of Claims for NYSDOT, investigated the matter and drafted "an internal email to other NYSDOT personnel largely exonerating [Plaintiff] for the causeway failure." (Id., at ¶ 31.)

Throughout 2002 and 2003, Plaintiff filed multiple claims with NYSDOT regarding the causeway failure, seeking additional compensation as well as extensions of time to complete the project. "[B]y December 2002, NYSDOT began to publicly announce that it would be seeking fines from [Plaintiff,]" and shortly thereafter a local newspaper "made a Freedom of Information Law request to NYSDOT seeking [] correspondence between NYSDOT and [Plaintiff]" regarding the project. (Id., at ¶ 34.) Around the same time, public officials began to inquire whether Plaintiff would be penalized for the delay in the project. According to Plaintiff, "the delay and the prospect of a fine was of great interest to Owego residents and officials, as well as State officials, and the project was the subject matter of multiple newspaper articles relating to the delays." (Id., at ¶ 35.)

Eventually, Plaintiff "presented its claims to the highest levels at NYSDOT." (Id., at ¶ 40.) Plaintiff included a copy of Mr. Grady's email from two years prior, which had been provided to Plaintiff by an unnamed "NYSDOT Inspector." (Id., at ¶¶ 39-40.) Several months later, "[t]he State paid [Plaintiff] approximately $950,000 in resolution of the claims [] to the substantial advantage of [Plaintiff]." (Id., at ¶ 42.)

Shortly before the completion of the Owego project, Plaintiff submitted a bid, which it was ultimately awarded, on the Albany project. The Albany project involved the reconstruction of approximately ten kilometers of the New York State Thruway in the Albany, New York, area. Early on, Plaintiff perceived that the NYSDOT plan for management of the traffic in the project location was unsafe. Plaintiff "engaged a highway safety consultant, at significant expense, to review [the] plan." (Id., at ΒΆ 67.) The consultant concluded that the plan was unsafe and recommended certain changes to Defendant and the Engineer-in-Charge, Timothy Farrell ("Farrell"), but they refused to consider any revisions on the project. Defendant and Farrell also indicated that, "if they were to agree to lane closures, NYSDOT would be seeking significant rebates from [Plaintiff] because of the anticipated savings . . . [and that,] if there were significant changes to the [maintenance and protection of traffic] Plan and resulting savings, [NYSDOT] might have to re-bid the project." (Id.) "As a result . . ., [Plaintiff] did not pursue the matter further." (Id.) Plaintiff alleges that throughout the course of the Albany ...

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