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Neroni v. Zayas

United States District Court, N.D. New York

June 4, 2015

STEVEN D. ZAYAS, et al., Defendants.


LAWRENCE E. KAHN, District Judge.


This matter returns before the Court on Defendants' Motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c).[1] Dkt. Nos. 66 ("Motion"); 66-2 ("Memorandum").[2] Defendants seek to dismiss the remainder of Plaintiff Frederick J. Neroni's ("Plaintiff") Amended Complaint. Mem. at 1; Dkt. No. 4 ("Amended Complaint"). For the following reasons, Defendants' Motion for judgment on the pleadings is granted.


The Court briefly recounts the facts of the case necessary to the resolution of the present Motion. For a more complete statement of the facts, reference is made the Court's March 31, 2014, Memorandum-Decision and Order. Dkt. No. 46 ("Order").

Plaintiff commenced this action under 42 U.S.C. § 1983 and the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, on February 3, 2013, alleging various constitutional violations related to his disbarment. Dkt. No. 1; Am. Compl. Plaintiff seeks monetary, declaratory, and injunctive relief. See generally Am. Compl.

Defendants moved to dismiss the Amended Complaint for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim under Rule 12(b)(6). Dkt. Nos. 18; 20. On March 31, 2014, the Court granted in part Defendants' Motion, dismissing various defendants and claims. See generally Order. The following claims survived the Court's Order: (1) a claim for injunctive and declaratory relief against Zayas, Duffy, Peters, Northrup, and Schneiderman, and for monetary relief against Zayas, based on post-disbarment investigations and possible prosecution for the unauthorized practice of law related to Plaintiff's spouse's law practice; and (2) a claim for declaratory and injunctive relief against Zayas and Duffy, and for monetary relief against Zayas, based on access to the disciplinary file on which Plaintiff's disbarment was based. Order at 22.

Plaintiff's claim for relief based on post-disbarment investigations relates to two investigations for unauthorized practice of law initiated by the Committee since Plaintiff's disbarment on July 7, 2011, by the New York State Supreme Court Appellate Division, Third Department. Am. Compl. ¶¶ 17, 34. The first investigation occurred in November 2011, when a non-attorney local criminal court justice attempted to serve legal papers on Plaintiff's spouse at their residence in Delhi, New York. Id. ¶¶ 2, 37. Plaintiff's spouse is an attorney and maintains a home office at their residence. Id. ¶ 37. Plaintiff accepted service at the justice's insistence.[4] Id. ¶ 38. The justice then reported Plaintiff to the Committee for unauthorized practice of law, alleging that Plaintiff had accepted service on an attorney's behalf and had been sitting at his computer and talking to a man, while another man was walking through the door. Id. ¶ 39. Plaintiff claims the men were contractors who were remodeling his kitchen. Id. ¶ 42. The Committee investigated the complaint and sent Plaintiff a questionnaire, asking Plaintiff to identify the men in his house and what Plaintiff had been doing with them. Id. ¶ 44. Plaintiff answered the questionnaire and the Committee subsequently informed Plaintiff that the complaint was unfounded. Id. ¶ 48. The Committee initiated a second investigation against Plaintiff based on charges that Plaintiff had served documents for proceedings in which his spouse was involved.[5] Id. ¶ 49. Plaintiff only became aware of the second investigation when the Committee notified him that the charges were unfounded. Id. ¶ 50.


In considering a Rule 12(c) motion, courts "employ[] the same standard applicable to dismissals pursuant to Federal Rule of Civil Procedure 12(b)(6)." In re Thelen LLP, 736 F.3d 213, 218 (2d Cir. 2013) (quoting Johnson v. Rowley, 569 F.3d 40, 43 (2d Cir. 2009) (internal quotation marks and alteration omitted)). Thus, a court must "accept all factual allegations in the complaint as true and draw all reasonable inferences in [the plaintiff's] favor." Hayden, 594 F.3d at 160. "[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, 663 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint may be dismissed only where it appears that there are not "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. Plausibility requires "enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of [the alleged misconduct]." Id. at 556. The plausibility standard "asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).


A. Federal Rule of Civil Procedure 12(g)(2)

Before addressing the merits of Defendants' Motion, the Court must first consider whether the Motion is barred under Federal Rule of Civil Procedure 12(g)(2). Rule 12(g)(2) states that "[e]xcept as provided in Rule 12(h)(2) or (3), a party that makes a motion under [Rule 12] must not make another motion under [Rule 12] raising a defense or objection that was available to the party but omitted from its earlier motion." FED. R. CIV. P. 12(g)(2). Defendants have already made a Motion under 12(b)(6) to dismiss Plaintiff's Complaint, Dkt. No. 18, but now purport to raise different issues, Dkt. No. 73 ("Reply") at 1. Plaintiff argues that Defendants should be barred from making a second Motion to dismiss Plaintiff's Amended Complaint. Dkt. No. 70 ("Response") at 1.

Under Rule 12(h)(2), a party may raise a 12(b)(6) failure-to-state a claim defense that it omitted from an earlier motion, (1) in any pleading allowed or ordered under Rule 7(a); (2) by a motion under Rule 12(c); or (3) at trial. FED. R. CIV. P. 12(h)(2); see also Albers v. Bd. of Cnty. Comm'rs, 771 F.3d 697, 701 (10th Cir. 2014) ("[A]lthough Rule 12(g)(2) precludes successive motions under Rule 12, it is expressly subject to Rule 12(h)(2)."); Ennenga v. Starns, 677 F.3d 766, 773 (7th Cir. 2012) ("Rule 12(h)(2) specifically expects failure-to-state a claim defenses from the Rule 12(g) consolidation requirement."); Clark St. Wine & Spirits v. Emporos Sys. Corp., 754 F.Supp.2d 474, 480 (E.D.N.Y. 2010) (allowing successive 12(b)(6) motion ...

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