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Mercano v. City of New York

United States District Court, S.D. New York

May 12, 2017

JOSEPH MERCANO, et al., Plaintiffs,
THE CITY OF NEW YORK, et al., Defendants.


          LORNA G. SCHOFIELD, District Judge.

         Plaintiffs Josepher Mercano and Gretchen Miranda “individually, and on behalf of Derek Vasquez, Jaeliz Fuentes and Chris Sierra” (collectively, “Plaintiffs”), filed this action against the City of New York and five Doe Defendant police officers (the “Doe Defendants”) under federal and New York law.[1] The Complaint asserts claims for malicious prosecution and intentional and negligent infliction of emotional distress under New York law, and false arrest, malicious prosecution, unreasonable force, failure to intervene and municipal liability under federal law. Defendant City of New York (the “City”) moves for judgment on the pleadings under Federal Rule of Civil Procedure 12(c). The City's motion is granted for the reasons discussed below.

         I. BACKGROUND

         The summary below is taken from the allegations in the Complaint and a document of which the Court is entitled to take judicial notice. They are construed in the Plaintiff's favor, as the non-moving party. See Doe v. Columbia Univ., 831 F.3d 46, 48 (2d Cir. 2016).

         On May 10, 2013, Plaintiff Miranda called the police to her home because her son had been threatened in front of their building. Unnamed police officers, Doe Defendants, arrived and arrested Plaintiffs Mercano and Vasquez “even though neither had committed any crime.” Mercano was handcuffed, detained and assaulted by Doe Defendants, and later charged with resisting arrest. The charges against Mercano were dismissed on November 8, 2013, according to the Certificate of Disposition filed in Mercano's criminal proceedings. Vasquez, a minor, was taken to a hospital psychiatric ward against his parents' will.


         The standard for adjudicating a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss for failure to state a claim applies to a Rule 12(c) motion for judgment on the pleadings. Mantena v. Johnson, 809 F.3d 721, 727-28 (2d Cir. 2015). “To survive a motion to dismiss, 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 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.

         Ordinarily, “the only facts to be considered are those alleged in the complaint, and the court must accept them, drawing all reasonable inferences in the plaintiff's favor, in deciding whether the complaint alleges sufficient facts to survive.” Doe, 831 F.3d at 46. In this case, the Certificate of Disposition filed in Mercano's criminal proceedings is also considered for the critical date of when the charges against him were dismissed. See Exhibit A to the Declaration of Kavin Thadani in support of Defendant's motion. The Court is entitled to take judicial notice of the Certificate of Disposition and consider it on this motion. See Fed. R. Evid. 201(b) (a court may judicially notice a fact “that is not subject to reasonable dispute because it . . . (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned”); United States v. Alexander, 123 F. App'x 444, 445 (2d Cir. 2005) (taking judicial notice of a certificate of disposition); Forbes v. City of New York, No. 15 Civ. 3458, 2016 WL 6269602, at *4 (S.D.N.Y. Oct. 26, 2016) (same and collecting cases).


         A. Miscellaneous Deficiencies

         The Complaint suffers from a number of deficiencies. First, Fuentes, Sierra and Vasquez are not proper parties. With regard to Fuentes and Sierra, the Complaint fails to identify who they are and what, if anything, they have to do with the allegations and claims in the Complaint. Other than identifying Fuentes and Sierra as Plaintiffs, neither Fuentes nor Sierra are even mentioned in the Complaint. Further, Mercano and Miranda purport to sue on behalf of Fuentes, Sierra and Vasquez; but a layperson may not represent another individual, except where provided by statute. See U.S. ex rel. Mergent Servs. v. Flaherty, 540 F.3d 89, 92 (2d Cir. 2008) (noting that “an individual who is not licensed as an attorney may not appear on another person's behalf in the other's cause” (internal quotation marks omitted)); Boone v. Codispoti & Assoc. P.C., No. 15 Civ. 1391, 2015 WL 5853843, at *1 n.1 (S.D.N.Y. Oct. 7, 2015). Therefore, their claims are dismissed.

         Second, as all of Miranda's claims arise out of alleged injuries to her son, not to her, Miranda lacks standing to sue under Article III. See Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1548 (2016) (reaffirming that Article III requires the plaintiff to have suffered an injury in fact that is “concrete and particularized”). Accordingly, all of Miranda's claims are dismissed.

         Lastly, Plaintiffs failed to address nearly all of the deficiencies the City raised as to their claims for malicious prosecution, failure to intervene and intentional and negligent infliction of emotional distress. Claims that are not defended may be deemed abandoned, and therefore, these claims are dismissed on that ground. See Estate of M.D. by DeCosmo v. New York, No. 15 Civ. 6602, 2017 WL 971808, at *5 (S.D.N.Y. Mar. 10, 2017) (“Federal courts have the discretion to deem a claim abandoned when a defendant moves to dismiss that claim and the plaintiff fails to address in their opposition papers defendants' arguments for dismissing such a claim.”).

         In the alternative, all of the claims on behalf of all Plaintiffs are dismissed on the ...

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