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Biro v. Cuomo

United States District Court, E.D. New York

March 27, 2014

STEVEN G. B. BIRO, pro se, Plaintiff,
v.
ANDREW CUOMO, THE NEW YORK STATE DIVISION OF MILITARY AND NAVAL AFFAIRS, PATRICK A. MURPHY, the Adjutant General of New York State, FERGAL I. FOLEY, Major General NYG, Commander of the NYC, Defendants.

MEMORANDUM AND ORDER

DORA L. IRIZARRY, District Judge.

Plaintiff Steven G. B. Biro ("Biro" or "Plaintiff"), proceeding pro se, [1] brings this purported class action[2] against Andrew Cuomo, the New York State Division of Military and Naval Affairs ("DMNA"), Patrick A. Murphy, and Fergal I. Foley (collectively, "Defendants"). Plaintiff seeks relief pursuant to the Age Discrimination in Employment Act of 1967 ("ADEA") and the New York State Human Rights Law ("HRL"), challenging Defendants' policy of mandating retirement from military service at 68 years of age. (Compl., Doc. Entry No. 1.) Defendants move to dismiss all of the claims asserted against them pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. (Notice of Motion to Dismiss, Doc. Entry No. 9.) After Plaintiff missed the deadline to respond, Defendants' motion was deemed unopposed on November 26, 2013.[3] For the reasons set forth below, Defendants' motion is granted due to lack of subject matter jurisdiction and failure to state a claim.

BACKGROUND

The following facts are taken from the Plaintiffs' complaint, as well as matters of which judicial notice may be taken, and are assumed true solely for purposes of this motion.

Plaintiff is a member of the New York Guard ("NYG"), one of four state forces in the DMNA. (Compl. ¶ 5.) While other state forces, namely the New York Army National Guard ("NYARNG") and the New York Air National Guard ("NYANG"), are federally recognized and subject to federal active duty, the NYG is purely a state force. (Compl. ¶ 7.) Members of the NYG typically serve on a voluntary basis. (Compl. ¶ 7.) Those members on the NYG's "Active List" may be called into state active duty, in which case they are paid for their service. ( Id. ) Members on the NYG's "Retired List" may not be called into active duty and, therefore, do not serve in paid positions. ( Id. ) Moreover, NYG members on the Retired List are not issued NYG identification cards. ( Id. )

Plaintiff served in the NYG as a Judge Advocate with the rank of Lieutenant Colonel. (Compl. ¶ 5.) On August 17, 2011, Plaintiff turned 68 years of age. (Compl. ¶ 5.) At that time, he was removed from the NYG's Active List and placed on the Retired List, pursuant to New York Military Law § 21(1). (Compl. ¶ 23.) After exhausting his administrative remedies, Plaintiff filed the instant action. Plaintiff alleges that Defendants' policy requiring that NYG members be placed on the Retired List upon reaching age 68 constitutes age discrimination. (Compl. ¶ 26.) Plaintiff seeks declaratory judgment, injunctive relief, damages, and attorneys' fees. Defendants move to dismiss Plaintiff's claims against them pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, claiming that: 1) Plaintiff's claims are nonjusticiable; 2) Plaintiff's claims against the state are barred by the eleventh amendment; and

3) the complaint fails to state a claim upon which relief may be granted. (Memorandum of Law in Support of the Defendants' Motion to Dismiss the Complaint ("Mem."), Doc. Entry No. 9-1.)

For the reasons set forth below, Defendants' motion is granted on the ground that the Court lacks jurisdiction over Plaintiff's claims against the State, and Plaintiff's complaint fails to state a claim against the individual defendants.

DISCUSSION

I. Legal Standard

Subject matter jurisdiction is a threshold issue. Thus, where a party moves to dismiss under both Rules 12(b)(1) and 12(b)(6), the court must address the 12(b)(1) motion first. Sherman v. Black, 510 F.Supp.2d 193, 197 (E.D.N.Y. 2007) (citing Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir. 1990)). It is axiomatic "that federal courts are courts of limited jurisdiction and lack the power to disregard such limits as have been imposed by the Constitution or Congress." Durant, Nichols, Houston, Hodgson & Cortese-Costa P.C. v. Dupont, 565 F.3d 56, 62 (2d Cir. 2009) (quotation marks omitted). "If subject matter jurisdiction is lacking and no party has called the matter to the court's attention, the court has the duty to dismiss the action sua sponte. " Id.

Federal subject matter jurisdiction exists only where the action presents a federal question pursuant to 28 U.S.C. § 1331 or where there is diversity jurisdiction pursuant to 28 U.S.C. § 1332. See Petway v. N.Y.C. Transit Auth., 2010 WL 1438774, at *2 (E.D.N.Y. Apr. 7, 2010), aff'd, 450 F.Appx. 66 (2d Cir. 2011). Federal question jurisdiction is invoked where the plaintiff's claim arises "under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. A case arises under federal law within the meaning of the general federal question statute only if the federal question appears from the facts of the plaintiff's well pleaded complaint. See Louisville & Nashville R.R. v. Mottley, 211 U.S. 149 (1908).

Under Rule 8(a) of the Federal Rules of Civil Procedure, pleadings must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Pleadings are to give the defendant "fair notice of what the claim is and the grounds upon which it rests." Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 346 (2005) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957), overruled in part on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). "The pleading standard Rule 8 announces does not require detailed factual allegations, ' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). "A pleading that offers labels and conclusions' or a formulaic recitation of the elements of a cause of action will not do.'" Id. (quoting Twombly, 550 U.S. at 555).

Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a defendant may move, in lieu of an answer, for dismissal of a complaint for "failure to state a claim upon which relief can be granted." To resolve such a motion, courts "must accept as true all [factual] allegations contained in a complaint, " but need not accept "legal conclusions." Iqbal, 556 U.S. at 678. For this reason, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice" to insulate a claim against dismissal. Id. "[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). Notably, courts may only consider the complaint itself, documents that are attached to or referenced in the complaint, documents that the plaintiff relied on ...


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