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Dixie v. Antonacci

United States District Court, N.D. New York

May 24, 2017

DINO DIXIE, ELI SMITH, and CHEYENNE TALBERT, Plaintiffs,
v.
ROBERT E. ANTONACCI, III, and THE COUNTY OF ONONDAGA, Defendants.

          WOLF, HALDENSTEIN, ADLER, FREEMAN & HERZ LLP., Attorneys for Plaintiffs.

          DEVAPRASAD PLLC, Attorneys for Plaintiffs.

          SUGARMAN LAW FIRM LLP, Attorneys for Defendant Antonacci.

          ONONDAGA COUNTY DEPARTMENT OF LAW John H. Mulroy Civic Center, Attorneys for Defendant County of Onondaga.

          GREGORY M. NESPOLE, ESQ., KEVIN COOPER, ESQ., MALCOLM T. BROWN, ESQ., S. DAVID DEVAPRASAD, ESQ, PAUL V. MULLIN, ESQ., JOHN E. HEISLER, JR., ESQ., KATHLEEN M. DOUGHERTY, ESQ.

          MEMORANDUM-DECISION AND ORDER

          FREDERICK J. SCULLIN, JR. Senior United States District Judge.

         I. INTRODUCTION

         Pending before the Court are Defendant Antonacci's and Defendant County of Onondaga's motions to dismiss Plaintiffs' complaint for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Dkt. Nos. 11, 12.

         II. BACKGROUND

         A. General information

         Plaintiff Dixie owns and operates 1st Point LLC ("1st Point"), a full service construction management company. See Dkt. No. 1 at ¶ 7. Plaintiff Smith owns and operates So Gone Trash Removal LLC ("SGTR") and E. Smith Contractors LLC ("E. Smith") (collectively the "Smith Companies"). See Id. at ¶ 8. Plaintiff Talbert owns and operates Cheyenne Realty Corp. ("CRC"). See Id. at ¶ 9. Defendant Antonacci has been the elected Comptroller for Defendant Onondaga County ("Defendant County") since January 2008. See Id. at ¶¶ 10, 12.

         When Defendant County "requires the provision of goods and/or services, it can turn to the County's external workforce, i.e., those in the Onondaga County community outside of County Government services." See Id. at ¶ 25. "Through its procurement process the County can award contracts in two ways: 1) it can award a contract to a vendor if the contract is below a certain threshold or 2) develop a request for proposal ("RFP") that lists the scope of work the County is seeking and the bidding requirements." See id.

         According to Plaintiffs, the current County Executive of Defendant County "has put in place a program to encourage minority-owned businesses to bid for County work both to increase such participation and to encourage minority-owned businesses in Onondaga County." See id. at ¶ 13. However, Plaintiffs contend that Defendant Antonacci, as Comptroller, has contradicted the County Executive's program and, instead, has instituted his own policy aimed at "continu[ing] the historic discrimination in government contracting." See id. at ¶ 14.

         Plaintiffs allege that Defendant Antonacci's policy discourages minority-owned business enterprises ("MBEs") from serving as vendors to Defendant County and protects and favors non-MBE vendors. See id at ¶ 15. Thus, Plaintiffs assert that Defendant Antonacci's illicit policy has caused Defendant County to discriminate against MBEs in violation of the law. See Id. Specifically, Plaintiffs allege that Defendant Antonacci has "targeted minority businesses by creating a custom and practice of intimidation and harassment through oppressive tactics." See Id. at ¶ 16. Plaintiffs contend that Defendant Antonacci has treated similarly situated non-MBEs differently and has participated in

public and private degradation, humiliation, and personal intimidation of the minority-owned contractor's principals and their employees, as well as the purposeful delay of payments through either unnecessarily dissecting aspects of minority-owned contractor deliverables even after the work has been approved by the County and segregating out payments to minority-owned contractors, which have resulted in financial damage.

See id.

         B. Specific allegations with respect to each Plaintiff

         1. Plaintiff Dixie

         Plaintiff Dixie's business, 1st Point, received contracts for various projects through the Construction Management RFP program, [1] including working on the Onondaga County Library, Everson Parking Garage, Van Dyne Hospital, Upstate Hospital, and the Village of Solvay. See Dkt. No. 1 at ¶ 28. As a contractor in the Construction Management RFP, Plaintiff Dixie was instructed to report directly to the County Facilities Department. See id. However, in early 2015, Plaintiff Dixie learned that the Onondaga County Comptroller, Defendant Antonacci, had a file on his desktop labeled "Dino Dixie." See id. at ¶ 29. Plaintiff Dixie discovered, through an unrelated Freedom of Information Law ("FOIL") request, that Defendant Antonacci was monitoring his payments. See Id. According to Plaintiffs, shortly after receiving the FOIL request, Defendant Antonacci "announced via press release that he would respond to FOIL requests within forty-eight hours and that he would post the FOIL requests and his responses to them for public viewing on his website." See id. at ¶ 31. The timing of the announcement and the sudden change in his policy gave Plaintiff Dixie "the alarming impression that the FOIL request was . . . prompted . . . by Defendant Antonacci in order to develop a County custom of intimidating minority businesses through his powers as a County policymaker" by making Plaintiff Dixie's financial information publicly available. See id. at ¶ 32.

         Moreover, before February 12, 2016, every payment from Defendant County to Plaintiff Dixie was sent in a so-called "All-In-One" check where the check was mailed without an additional envelope and with metered postage. However, beginning February 12, 2016, and until the filing of this lawsuit, every payment that Plaintiff Dixie has received for work related to County contracts has come in an official envelope from Defendant Antonacci's office with a computer printed label and a United States Flag stamp. See id. at ¶ 38. According to Plaintiffs, "the absence from the All-In-One Checks of the Metered Postage Mark meant that the Defendant Antonacci never forwarded it to the County operated mailroom [but, i]nstead, purposely held back each of [Plaintiff] Dixie's payments, so that he or his employees could personally mail out the checks in line with his intimidating New Custom." See Id. at ¶ 39.

         2. Plaintiff Smith

         Defendant County awarded Plaintiff Smith's companies three contracts to be completed between late 2015 and early 2016. See Id. at ¶ 42. Defendant Antonacci refused to make payments to Plaintiff Smith ostensibly for procedural errors with respect to two of those projects. First, Defendant Antonacci refused to pay invoices related to the Hutchings project because Plaintiff Smith had not yet installed a door, although the contract allegedly allowed for payment prior to the door's installation. See Id. at ¶¶ 44, 47. Second, Plaintiff Smith was informed that Defendant Antonacci refused to pay invoices related to the Civic Center project because those invoices were not on company letterhead. See id. at ¶ 47. After Plaintiff Smith corrected these issues, he alleges that Defendant Antonacci purposely delayed processing the payment even further, causing financial and emotional distress. See id. at ¶ 50. In short, Plaintiff Smith contends that Defendant Antonacci exceeded his authority in controlling how Plaintiff Smith was paid.

         Furthermore, Plaintiff Smith allegedly received payments for his contractual work on the War Memorial Arena in a similar fashion as Plaintiff Dixie, i.e., All-In-One checks that were placed in an envelope with a stamp.[2] See id. at ¶ 54. Moreover, Plaintiffs assert that Defendant Antonacci personally showed up at the War Memorial job wearing a "County Comptroller jacket" and asked a junior painter questions about who each of the workers were at the site. See id. at ¶ 55. According to Plaintiffs, Defendant Antonacci's conduct exceeded his authority as Comptroller and was harassment. See id.

         In March 2016, Plaintiff Smith emailed Defendant Antonacci to inquire about late payments and how to improve their relationship. See id. at ¶ 56. The two met in person and Defendant Antonacci allegedly explained that he had received complaints of fraud for the work Plaintiff Smith was completing at the War Memorial. See Id. at ¶ 57. Thereafter, in April 2016, Plaintiff Smith decided that he would no longer bid for County projects. See Id. at ¶ 58.

         3. Plaintiff Talbert

         Defendant County selected Plaintiff Talbert to manage three County parking lots. See id. at ¶ 61. A few months after Defendant County awarded Plaintiff Talbert the contracts, Defendant Antonacci conducted an audit of his company. See Id. at ¶ 62. According to Plaintiffs, "[o]f the over fifty audits published on the Comptroller's website from January 1, 2014 to present the audit of CRC appears to be the only one against a vendor of the County." See id. Furthermore, Plaintiffs assert that Defendant Antonacci attempted to lobby the Onondaga County Legislature to revoke CRC's contract because there was a competing bid that would have paid Defendant County $8, 500 more. See Id. at ¶¶ 63. However, Plaintiffs contend that the competing bid was from a vendor who had previously defaulted on its responsibility to Defendant County; and, further, the competing bid was unrealistic when considering the actual revenue to be expected from managing the parking lots. See id. at ¶¶ 61-64. Defendant Antonacci's tactics, according to Plaintiffs, were meant to humiliate Plaintiff Talbert by publishing press releases degrading his company without acknowledging that the competing offer was impracticable. See Id. at ¶ 65.

         Moreover, Plaintiffs allege that Defendant Antonacci sent an individual from the County Comptroller's office to count the cars in all three of the parking lots that Plaintiff Talbert managed. See Id. at ¶ 66. However, this inspection was unannounced, and the contract with Defendant County unambiguously requires "reasonable notice" to audit CRC's "books, records and accounts in connection with said operations." See id. at ¶ 67. According to Plaintiffs, "[t]his unannounced visit exceeded Defendant Antonacci's authority and was engineered to harass and intimidate another African-American male business owner doing business with the County." See id. at ¶ 68. Finally, Plaintiffs allege that Defendant Antonacci's actions led Plaintiff Talbert to refuse to bid on another parking lot project. See id. at ¶ 70.

         C. Plaintiffs' claims

         Based on the above-cited allegations, Plaintiffs bring two causes of action. First, pursuant to 42 U.S.C. § 1983, Plaintiffs allege that "Defendant Antonacci through his actions and instructions directly caused and continues to cause the violation of the Plaintiffs' Constitutional rights granted under the 14th Amendment of the United States Constitution and its guarantee of equal protection under the laws for all citizens." See Dkt. No. 1 at ¶ 74. "These actions include, but are not limited to, creating a hostile environment for minority owned businesses in Onondaga County through the targeted and improper use of audits; the withholding, delay, and differential treatment of County payments to minority owned businesses; and other disparate treatment towards minority owned businesses." See Id. at ¶ 75. "These actions were deliberately designed to disadvantage, harass, and intimidate minority-owned businesses and deter them from pursuing contracts with Onondaga County and deny them equal protection of the law." See id. at ¶ 76. Plaintiffs seek damages as well as an injunction. See id. at ¶¶ 77, 78.

         Second, pursuant to 42 U.S.C. § 1983, Plaintiffs allege that Defendant County "through the actions of Defendant Antonacci caused and continues to cause the violation of the Plaintiffs' Constitutional rights guaranteed under the 14th Amendment of the United States Constitution and its guarantee of equal protection under the laws for all citizens." See Id. at ¶ 80. Specifically, "Defendant County of Onondaga through the actions of Defendant Antonacci maintained a policy and practice of discrimination against minority owned business[es] by and pursuant to the acts of Defendant Antonacci, a policymaker of the County." See Id. at ¶ 81. "These actions include, but are not limited to, creating a hostile environment for minority owned businesses in Onondaga County through the targeted and improper use of audits; the withholding, delay, and differential treatment of County payments to minority owned businesses; and other disparate treatment towards minority owned businesses." See Id. at ¶ 82.

         III. DISCUSSION

         A. Standard of review

         Courts use a two-step inquiry when addressing a Rule 12(b)(6) motion. First, "they isolate the moving party's legal conclusions from its factual allegations." Hyman v. Cornell Univ., 834 F.Supp.2d 77, 81 (N.D.N.Y. 2011). Second, courts must accept factual allegations as true and "determine whether they plausibly give rise to an entitlement to relief." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). A pleading must contain more than a "blanket assertion[ ] of entitlement to relief." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 n.3 (2007). Thus, to withstand a motion to dismiss, a pleading must be "plausible on its face" such that it contains "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citation omitted).

         Furthermore, when addressing a Rule 12(b)(6) motion, a court may "consider documents attached to or incorporated by reference in [a] complaint[.]" Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir.1998) (citation omitted). Even where "'a plaintiff chooses not to attach to the complaint or incorporate by reference a [document] upon which it solely relies and which is integral to the complaint, ' the court may . . . take the document into consideration in deciding the defendant's motion to dismiss, without converting the proceeding to one for ...


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