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Shelly Vieira, Individually and As Parent and Guardian of v. Honeoye Central School District

May 8, 2013

SHELLY VIEIRA, INDIVIDUALLY AND AS PARENT AND GUARDIAN OF J.V., A MINOR, PLAINTIFFS,
v.
HONEOYE CENTRAL SCHOOL DISTRICT, MONROE #1 BOARD OF COOPERATIVE EDUCATIONAL SERVICES (BOCES), AND DAVID G. LASPESA, WILLIAM SCHOFIELD, BETSY WALKER, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES AND OTHER KNOWN OR UNKNOWN EMPLOYEES OF THE HONEOYE CENTRAL SCHOOL DISTRICT, DEFENDANTS.



The opinion of the court was delivered by: Siragusa, J.

DECISION AND ORDER

INTRODUCTION

This matter is before the Court on Plaintiffs= motion, pursuant to Federal Rule of Civil Procedure 54, for reconsideration of the Court's prior Decision and Order, docketed on November 17, 2010, ECF No. 57, which partially dismissed the amended complaint. It is also before the Court on defendants BOCES= and Betsy Walker=s (AWalker@) cross-motion for reconsideration, pursuant to Federal Rule of Civil Procedure 54, and upon reconsideration, dismissal of the Fifth and Sixth causes of action and entry of judgment. For the reasons stated below, Plaintiffs= motion for reconsideration is granted in part, denied in part, and BOCES and Walker=s cross-motion is granted in its entirety.

BACKGROUND

The amended complaint filed on August 5, 2009, makes the following claims against BOCES and Walker:*fn1

4. Intentional infliction of emotional distress;

5. Negligent infliction of emotional distress;

6. Negligent hiring, training, supervision and retention; and

7. Violation of 42 U.S.C. ' 1983.*fn2

In its prior Decision and Order, the Court dismissed the fourth cause of action against BOCES and Walker as time-barred; dismissed the seventh cause of action against BOCES for lack of plausibility; dismissed the seventh cause of action against Walker on qualified immunity grounds; and denied dismissal of the fifth and sixth claims as to both BOCES and Walker.

Plaintiffs now ask the Court to reconsider and reverse its ruling dismissing the Seventh cause of action as to both BOCES and Walker. Defendants now seek dismissal of the amended complaint in its entirety.

STANDARDS OF LAW

Fed. R. Civ. P. 54

Fed. R. Civ. P. 54(b). As the Southern District observed in Green v. Beer, No. 06 Civ. 4156 (KMW) (JCF), 2009 WL 3401256 (S.D.N.Y. Oct. 22, 2009): Rule 54(b) revisions should be limited to instances in which Athere is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent a manifest injustice.@ Official Comm. of the Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147, 167 (2d Cir. 2003). Where there is an arguable Aintervening change of controlling law,@ Id., at *2. Reconsideration is determined within the discretion of the district court. See Cobalt Multifamily Investors I, LLC v. Shapiro, No. Civ. 6468 (KMW) (MHD), 2009 WL 4408207, 1 (S.D.N.Y. Dec. 1, 2009). Motion to Dismiss Standard*fn3

The pertinent portion of Federal Rule of Civil Procedure 54 states as follows: any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties= rights and liabilities.

The U.S. Supreme Court, in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), clarified the standard to be applied to a 12(b)(6) motion:

Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests. While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a Plaintiff=s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).

Id. at 1964-65 (citations and internal quotations omitted). See also, ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (ATo survive dismissal, the plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient >to raise a right to relief above the speculative level.=@) (quoting Bell Atl. Corp. v. Twombly) (footnote omitted); Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007) (Indicating that Bell Atl. Corp. v. Twombly adopted Aa flexible >plausibility standard,= which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible[,]@ as opposed to merely conceivable.)

When applying this standard, a district court must accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the nonmoving party. Burnette v. Carothers, 192 F.3d 52, 56 (1999), cert. denied, 531 U.S. 1052 (2000). On the other hand, A[c]onclusory allegations of the legal status of the defendants= acts need not be accepted as true for the purposes of ruling on a motion to dismiss.@ Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1092 (2d Cir. 1995) (citing In re American Express Co. Shareholder Lithog., 39 F.3d 395, 400-01 n. 3 (2d Cir.1994)). As the Supreme Court clarified in Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173

L. Ed. 2d 868 (2009):

Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id., at 555, (Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we Aare not bound to accept as true a legal conclusion couched as a factual allegation@ (internal quotation marks omitted)). Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id., at 556. Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. 490 F.3d at ...


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