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Theodore "Ted" Hommel v. The City of Long Beach

United States District Court, E.D. New York

March 14, 2014


Law Offices of Francis McQuade Francis X. McQuade, Esq., Of Counsel Long Beach, NY, Attorneys for the Plaintiff.

Bond, Schoeneck & King, PLLC Richard S. Finkel, Esq. Howard M. Miller, Esq., Of Counsel. Garden City, New York, Attorneys for the Defendants.


ARTHUR D. SPATT, District Judge.

On June 7, 2013, the Plaintiff Theodore "Ted" Hommel (the "Plaintiff") commenced this action under 42 U.S.C. § 1983; the First and Fourteenth Amendments to the United States Constitution; and New York State Labor Law § 201(d). Presently pending before the Court is a motion by the Defendants City of Long Beach (the "City") and Jack Schnirman ("Schnirman")(collectively the "Defendants") pursuant to Federal Rule of Civil Procedure ("Fed. R. Civ. P.") 12(b)(6) to dismiss the complaint for failure to state a claim upon which relief can be granted. For the following reasons, the motion is granted.


The following facts are drawn from the complaint and construed in a light most favorable to the non-moving party, the Plaintiff.

The Plaintiff, an attorney, served as an Assistant Corporation Counsel for the City since January 2011 until May 2013.

The City is a municipal city located in Nassau County. The City is governed by a City Manager, who is appointed by an elected City Council. Schnirman has served as the City Manager since January 1, 2012. The role of the City Manager includes the hiring and firing of City personnel.

On May 6, 2013, the Plaintiff, a Republican, announced his candidacy for Long Beach City Court Judge. On May 8, 2013, in a two sentence letter from the City Manager, the Plaintiff was fired, effective immediately. There were no reasons cited for the dismissal.

The Plaintiff contends that his discharge resulted from political motives and retribution. According to the Plaintiff, the incumbent City Court Judge is a Democrat; the City Council majority is Democratic; and the City Manager is a Democrat.

The Plaintiff further asserts that he never received a complaint about his work. The Plaintiff insists that his candidacy would not have interfered with his duties as Assistant Corporation Counsel.

On June 7, 2013, the Plaintiff brought the instant action against the City and Schnirman, in his official and individual capacities. On August 9, 2013, the Defendants moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6).


A. The Motion to Dismiss Standard Under Fed.R.Civ.P. 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint for a plaintiff's failure "to state a claim upon which relief can be granted." In order "[t]o survive a motion to dismiss under [Rule 12(b)(6) ], a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In assessing plausibility on a motion to dismiss pursuant to Rule 12(b)(6), the court must "assume [the] veracity" of all wellpleaded factual allegations contained in the complaint, Iqbal, 556 U.S. at 664, and afford the plaintiff every reasonable inference. Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009). However, allegations must consist of more than mere labels, legal conclusions, or a "formulaic recitation of the elements of a cause of action, " and bare legal conclusions are "not entitled to the assumption of truth." Iqbal, 556 U.S. at 681 (internal quotation marks and citations omitted).

According to Iqbal/Twombly, the complaint survives a motion to dismiss, as long as its allegations of "factual matter, accepted as true" sufficiently "raise a right to relief above the speculative level." Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555-56. At the same time, the Complaint cannot conclusorily recite the elements of a claim. Ibid. The factual allegations are sufficient when they allow this Court, at a minimum, to infer that a claim is plausible - an inference which is more than possible, but less than probable - and thereby warrants proceeding with discovery. Ibid.

B. The Official Capacity Claims Against Schnirman

Official-capacity suits "generally represent only another way of pleading an action against an entity of which an officer is an agent, '" Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (quoting Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 n. 55, 98 S.Ct., 56 L.Ed.2d 611 (1978)), and courts routinely dismiss official capacity claims where the plaintiff also sues the municipality, see e.g., Thomas v. Venditto, 925 F.Supp.2d 352, 365 (E.D.N.Y. 2013); Volpe v. Nassau Cnty., 915 F.Supp.2d 284, ...

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