United States District Court, S.D. New York
MEMORANDUM OPINION & ORDER
PAUL G. GARDEPHE, District Judge.
Plaintiff Robert Lederman brings this Section 1983 action against the City of New York and former New York City Parks and Recreation Commissioner Adrian Benepe (together, the "City Defendants"), and Dr. Sarah Henry and the Museum of the City of New York, Inc. ("MCNY, " and together with Dr. Henry, the "Museum Defendants"). Lederman alleges that Defendants violated his First, Fourth, and Fourteenth Amendment rights by threatening and causing his arrest during an August 9, 2011 MCNY panel discussion. Lederman also asserts that Defendants' actions constitute retaliation for his protest activities and past political activism.
All defendants have moved to dismiss the Amended Complaint for failure to state a claim. The Museum Defendants have also moved to dismiss for insufficient service of process. For the reasons stated below, the motions will be granted in part, and denied in part.
For purposes of deciding Defendants' motions to dismiss, the Court assumes the following factual allegations in the Amended Complaint to be true. Plaintiff is a visual artist and well-known political activist, and is the president and founder of A.R.T.I.S.T. (Artists' Resistance to Illegal State Tactics). (Amended Complaint ("Am. Cmplt.") ¶ 8) Plaintiff has previously filed lawsuits challenging government regulations on First Amendment grounds, including a suit against, inter alia, the City and Benepe. (Id. at ¶¶ 1, 8) In connection with his protest activities, Plaintiff has been arrested forty-four times. (Id. ¶ 8)
On August 9, 2011, Plaintiff attended a panel discussion at the MCNY entitled "Whose Park Is It? Financing and Administering New York's New Parks." (Id. ¶ 13) Benepe, who was Parks Commissioner at the time, appeared as a panelist. (Id. ¶ 11) The MCNY is a private, non-profit organization that operates on City property and receives funding from the City. (Id. ¶ 11) Plaintiff purchased a ticket for the event that entitled him to admission and a reserved seat. (Id. ¶ 15)
Soon after the panel discussion began, Plaintiff stood up, displayed a sign, and stated that he was making a "public service announcement." (Id. ¶ 16) Plaintiff's sign read: "Park privatization is a real estate scam. It's all about raising property values for the Mayor's wealthiest friends." (Id. ¶ 16 n.4) While displaying his sign, Plaintiff interrupted the panel discussion to tell "the audience that Benepe had long prosecuted street artists[, ]" that he was "lying, " and that Benepe was a "criminal who steals our park land to sell to the highest bidder." (Id. ¶ 17)
Several of those present stood up to confront Plaintiff, including other audience members and an MCNY security guard and "administrator, " who asked Plaintiff to put down his sign. (Id. ¶¶ 20, 27, 28) Other audience members holding signs had not been asked to put down their signs. (Id. ¶ 28) A New York City Police Department ("NYPD") officer who was called to the scene invited Plaintiff to leave, but Plaintiff declined. (Id. ¶ 21) Plaintiff was permitted to remain and to display his sign, so long as he did so quietly and to the side of the stage. (Id. ¶ 22) Plaintiff continued to interrupt the event, however, by making "comments" in response to Benepe's remarks. (Id.)
Approximately thirty minutes later, during a question and answer session, Plaintiff again interrupted the program by interjecting his own "comment" while an audience member was attempting to ask a question about Brooklyn Bridge Park. (Id. ¶ 23) Benepe told Plaintiff to "shut up, " and asked Plaintiff whether he wanted to be arrested. Plaintiff replied, "You've done it many times before." (Id. ¶¶ 23-24) About five minutes later, police returned to the scene and took Plaintiff into custody. (Id. ¶ 24) As he was being taken away, Plaintiff yelled, "Arrest Adrian Benepe!" and "Bloomberg Sucks!" (Id. ¶ 29) No other audience members - including individuals who allegedly "physically accosted" Plaintiff - were arrested. (Id. ¶¶ 27, 60)
The police charged Plaintiff with trespassing and disorderly conduct. (Id. ¶ 26) According to Plaintiff, the "accusing instrument" demonstrates that Defendant Henry, a museum supervisor, made several false statements to police, including that (1) she "observed the defendant scream and yell in sum and substance: Bloomberg is a Liar, Bloomberg Sucks, Fuck Bloomberg;" (2) Plaintiff was not authorized to be at the event, (3) Henry had asked Plaintiff to leave and he refused; and (4) Plaintiff did not have permission or authority to remain at the MCNY. (Id. ¶ 29) On November 3, 2011, the charges against Plaintiff were dismissed on speedy trial grounds. (Anthony M. Disenso Declaration ("Disenso Decl."), Ex. C ("Certificate of Disposition"); Lambrina Mathews Declaration ("Mathews Decl."), Ex. A ("People v. Lederman, Criminal Case File")
II. PLAINTIFF'S CLAIMS
Plaintiff accuses Defendants of acting under color of state law to deprive him of his constitutional rights. The Amended Complaint asserts seven causes of action: (1) a First Amendment retaliation claim against Benepe for "threaten[ing] to have Plaintiff" arrested; (2) a First Amendment retaliation claim against the City for engaging in a practice, policy and custom of "harassing artists and others engaged in First Amendment activity" and "targeting Plaintiff... as the outspoken leader of their group"; (3) a First Amendment retaliation claim against Dr. Henry for "endorsing Benepe's threat to have [Plaintiff] arrested" and for providing "false statements" to police; (4) a Fourth Amendment claim for false arrest against Benepe, the City, and the Museum Defendants; (5) a Fourteenth Amendment Equal Protection claim against the City Defendants; (6) a state law false arrest claim against Dr. Henry; and (7) a "respondeat superior" claim against the MCNY. (Am. Cmplt. ¶¶ 48-81)
I. THE MUSEUM DEFENDANTS' MOTION TO DISMISS FOR IMPROPER SERVICE
The Museum Defendants have moved to dismiss this action for improper service under Fed.R.Civ.P. 12(b)(5). This issue must be addressed before considering the Museum Defendants' motion to dismiss for failure to state a claim. See Mende v. Milestone Tech., Inc., 269 F.Supp.2d 246, 251 (S.D.N.Y. 2003) ("Before addressing Defendants' Rule 12(b)(6) motion to dismiss, the Court must first address the preliminary questions of service and personal jurisdiction.") (citing Arrowsmith v. United Press Int'l, 320 F.2d 219, 221 (2d Cir. 1963) ("[L]ogic compel[s] initial consideration of the issue of jurisdiction over the defendant - a court without such jurisdiction lacks power to dismiss a complaint for failure to state a claim.").
A. Legal Standard
Under Fed.R.Civ.P. 4(c)(1), a "plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m), " which is no later than 120 days after the filing of the Complaint. Rule 4(m) provides, in pertinent part:
If a defendant is not served within 120 days after the complaint is filed, the court - on motion or on its own after notice to the plaintiff - must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.
Fed. R. Civ. P. 4(m).
Fed. R. Civ. P. 4(e) provides that an individual may be served by
(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the individual personally;
(B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.
Fed. R. Civ. P. 4(e).
Under New York law, personal service on an individual may be accomplished by "delivering the summons within the state to the person to be served, " or "by delivering the summons within the state to a person of suitable age and discretion at the... usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the [person's] actual place of business...." N.Y. C.P.L.R. § 308(1)-(2).
Under New York law, personal service on a not-for-profit corporation such as the Museum is governed by N.Y.C.P.L.R. § 311, which provides that service must be made on "an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service." N.Y.C.P.L.R. § 311(a)(1).
"[I]n considering a motion to dismiss pursuant to [Rule] 12(b)(5) for insufficiency [of service] of process, a Court must look to matters outside the complaint to determine whether it has jurisdiction.'" Koulkina v. City of New York, 559 F.Supp.2d 300, 311 (S.D.N.Y. 2008) (quoting Darden v. DaimlerChrysler N. Am. Holding Corp., 191 F.Supp.2d 382, 387 (S.D.N.Y. 2002)). "When a defendant raises a Rule 12(b)(5) challenge to the sufficiency of service of process, the plaintiff bears the burden of proving its adequacy.'" Id . (quoting Mende, 269 F.Supp.2d at 251). "Conclusory statements that a defendant was properly served are insufficient to overcome a defendant's sworn affidavit that he was never served with process." Howard v. Klynveld Peat Marwick Goerdeler, 977 F.Supp. 654, 658 (S.D.N.Y.1997), aff'd, 173 F.3d 844 (2d Cir. 1999). A ...