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Johnson v. City of New York

United States District Court, E.D. New York

March 31, 2018

MICHAEL JOHNSON, Plaintiff,
v.
THE CITY OF NEW YORK, DANIEL A. NIGRO, MICHAEL GALA, MICHAEL CURNEEN, JAKE LAMONDA, AND JOHN JOE OR JANE DOE, Defendants.

          MEMORANDUM & ORDER

          HON. KIYO A. MATSUMOTO UNITED STATES DISTRICT JUDGE

         In an amended complaint, (“Compl.” or the “complaint” ECF No. 23), plaintiff Michael Johnson (“plaintiff”) alleges violations of his constitutional and civil rights, as well as contempt of a federal court order, by defendants City of New York (the “City”), Commissioner Daniel A. Nigro, (“Nigro”) Michael Gala (“Gala”), Michael Curneen (“Curneen”) (the “City Defendants”), and James Lemonda[1] (“Lemonda, ” and together with the City Defendants, “defendants”) in connection with alleged workplace retaliation and alleged involvement in the disclosure of protected personal information, which resulted in derogatory media articles about plaintiff.

         Presently before the court are two motions, one by the City Defendants and one by Lemonda, to dismiss certain of the causes of action asserted in the complaint under Federal Rule of Civil Procedure (“Rule”) 12(b)(6) for failure to state a claim upon which relief can be granted. The City Defendants' motion seeks dismissal of Nigro from the instant action, and of all but two of plaintiff's claims against the City Defendants. Specifically, the City Defendants do not seek dismissal of plaintiff's claim alleging retaliation in violation Title VII of the Civil Rights Act of 1964, codified at 42 U.S.C. §§ 2000e et seq. (“Title VII”), as it relates to conduct occurring on or after April 9, 2015. Nor do the City Defendants seek dismissal of plaintiff's claims alleging retaliation in violation of the New York State and New York City Human Rights Laws. Lemonda seeks dismissal of all of plaintiff's claims against him.

         In support of their motion to dismiss, the City Defendants have submitted, among other documents, a memorandum of law, (“City Mem., ” ECF No. 48-3), and a reply memorandum. (“City Repl., ” ECF No. 48-5.) Lemonda has also submitted, among other documents, a memorandum of law, (“Lemonda Mem., ” ECF No. 47-5), and a reply memorandum. (ECF No. 47-6.) Plaintiff opposes both motions and has submitted a memorandum in opposition. (“Opp., ” ECF No. 50.)

         For the reasons set forth below, both the City Defendants' and Lemonda's motions are granted in part and denied in part.

         BACKGROUND

         I. Background

         A. Parties

         The court assumes as true the following factual allegations from the complaint. See Pension Ben. Guar. Corp. ex rel. St. Vincent Catholic Med. Centers Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705, 717 (2d Cir. 2013) (“[W]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” (citation omitted)). As alleged in plaintiff's complaint, plaintiff is of “Black-American heritage” and, prior to 2014, worked for 15 years as an emergency medical technician (“EMT”) with the Fire Department of the City of New York (“FDNY”). (Compl. ¶ 2.) In 2014, pursuant to a court order entered by the Honorable Nicholas G. Garaufis in the case captioned United States, et. al v. City of New York, No. 07-CV-2067(NGG) (E.D.N.Y.) (the “Class Action”), FDNY appointed plaintiff as a “priority hire” firefighter. (Id. ¶¶ 2, 19.)

         Nigro, Gala, Curneen and Lemonda are all City employees and are affiliated with the FDNY. Specifically, Nigro is the Commissioner of the FDNY, and, according to the complaint, “is sued solely in his official capacity.” (Id. ¶ 12.) Gala is a senior supervisor within the FDNY. (Id. ¶ 13.) In 2012, he received a promotion from chief of uniformed personnel, which position he held “at all times relevant to th[e] [c]omplaint, ” to deputy assistant borough commander for Manhattan. (Id.) Curneen also holds a supervisory position within the FDNY, and on January 2, 2016, he “was promoted from Captain of Engine Company 257 to Battalion Chief.” (Id. ¶ 14.) Lemonda also holds the rank of Batallion Chief within the FDNY, although on September 1, 2009, he was “granted leave with full pay and benefits” to work at the Uniformed Fire Officers Association (“UFOA”).[2] (Id. at ¶ 15.)

         B. The Class Action

         In the 1940s, Black firefighters within the FDNY formed the Vulcan Society, Inc. (the “Vulcan Society”), a fraternal organization that, in relevant part, has advocated for racial diversity within the FDNY. (Id. ¶ 24.) In 2002, the Vulcan Society filed a discrimination charge against the FDNY with the United States Equal Employment Opportunity Commission (“EEOC”) alleging that the City's civil service exam for firefighters had an adverse impact on minority candidates in violation of Title VII. (Id. ¶ 25.) In 2005, three individual Black firefighter candidates filed a separate EEOC charge, which made substantially similar assertions regarding the City's civil service exam for firefighters. (Id.) The EEOC determined that there was probable cause to believe that the civil service exam violated Title VII and, in May 2007, the United States Department of Justice filed the Class Action, which alleged that City's civil service exams for firefighters discriminated against minority candidates. (Id. ¶ 26.) The Vulcan Society and the aforementioned three individual Black firefighter candidates intervened as co-plaintiffs in September 2007. (Id. ¶ 27.)

         In July 2009, the court granted summary judgment motions by United States, the Vulcan Society, and the three individual plaintiffs in the Class Action. (Id. ¶ 28.) In relevant part, the court concluded that plaintiffs had “established disparate impact liability” arising from the City's use of certain firefighter examinations, and wrote that it would proceed to consider an “appropriate remedy, ” and to address other pending aspects of the Class Action. United States v. City of New York, 637 F.Supp.2d 77, 131-32 (E.D.N.Y. 2009).

         In January 2010, the court presiding over the Class Action entered an order directing the City to develop a new, non-discriminatory firefighter exam and to provide monetary and other relief to firefighter candidates who had been denied appointment as firefighters, or had their appointments delayed, as a result of the discriminatory exams. (Compl. ¶ 29.) Additionally, in December 2011, the court entered an order[3]

         providing, in relevant part, that

[t]he City of New York shall not retaliate against or in any way adversely affect the terms or conditions of employment of any person because he or she has complained of discrimination against blacks or Hispanics on the basis of their race or national origin in the selection and hiring of entry-level firefighters, or has participated in the investigation or litigation of any claim or allegation of such discrimination, or has sought or obtained relief from the court in this case.

United States v. City of New York, No. 07-CV-2067(NGG)(RLM), 2011 WL 6131136, at *4 (E.D.N.Y. Dec. 8, 2011), aff'd as modified, 717 F.3d 72 (2d Cir. 2013).[4]

         The complaint in this case asserts that the Class Action was met with “[s]trong and vocal hostility . . . within large segments of the FDNY workforce, including Commissioner Nigro's executive staff.” (Compl. ¶ 31.) In 2007 and 2008, defendant Gala allegedly wrote “a series of letters” to the editor of the Chief-Leader, a publication that “focuses on labor and employment issues of concern to City employees.” (Id. ¶ 32.) These letters are not presently before the court. The complaint, however, asserts that in the letters, Gala wrote that he was “‘tired' of black and female FDNY firefighters claiming that the FDNY's hiring practices were unfair, ” and “criticized the Vulcan Society's approach to diversifying the FDNY as ‘shallow.'” (Id. ¶ 32.)

         Additionally, the complaint asserts that in 2010, non-party Paul Mannix, an FDNY Deputy Chief, formed “‘Merit Matters, ' an informal organization of hundreds of FDNY firefighters [with] the purpose of opposing integration of the FDNY.” (Id. ¶ 33.) According to the complaint, “Merit Matters posted written materials sharply critical of the Vulcan Society, the[] [Class Action], the District Court Judge [presiding over the Class Action], and the Court Monitor on union bulletin boards throughout the FDNY['s] firehouses.” (Id.)

         The complaint further alleges that Merit Matters published “at least a dozen press releases that were distributed to firehouses over the FDNY's fax system, and placed on union bulletin boards and in other locations within numerous FDNY firehouses” between August 2011 and September 2012. (Id. ¶ 34.) These press releases allegedly claimed that the judge overseeing the Class Action was “biased and guilty of nepotism, ” that the Vulcan Society “helped minority firefighter candidates get an unfair advantage on the City firefighter entrance exam, ” that the Vulcan Society's “efforts to reform . . . hiring practices put the lives of current firefighters at risk, ” and that “many of the Court-ordered injunctive remedies discriminated against whites.” (Id.) The press releases (which the complaint also refers to as “bulletins”) also allegedly “pointedly discouraged Black and Hispanic firefighters from filing claims for compensatory relief, warning that such claims would cause resentment within the FDNY rank-and-file.” (Id.)

         The complaint also notes that the court presiding over the Class Action held a fairness hearing in October 2012 regarding a proposed compensatory relief order, and asserts that “several hundred FDNY firefighters and senior fire officers voiced criticism [of] the District Court's liability ruling against the City” in connection with the hearing. (Id. ¶ 35.) According to the complaint, “[m]any” of these firefighters and officials “expressed outrage that the Court was interfering with the culture and traditions of the FDNY, claim[ed] that the proposed compensatory relief discriminated against whites, and predict[ed] that awarding compensatory relief to Black and Hispanic victims of discrimination would breed severe resentment within the FDNY rank-and-file.” (Id.)

         The court in the Class Action addressed these objections in its final relief order, and wrote:

The objections process was held so that nonparties potentially affected by the Proposed Relief Order could voice their concerns about the proposed relief. Unfortunately, the overwhelming majority of the objectors used the process to express displeasure with the court's liability rulings, malign the court for daring to interfere with the culture of the FDNY, and make the utterly baseless suggestion that those individuals who receive priority hiring relief will be unqualified to be firefighters. Most disturbingly, several FDNY supervisors brazenly informed the court that they will not welcome priority hires into their ranks, and will lack respect for priority hires because they do not believe they deserve to be firefighters. These comments reinforce the court's concern that some personnel within the FDNY will resist or refuse to comply with the specific terms and spirit of the relief orders. The court will not hesitate to exercise its equitable authority to enforce all of its orders.

         (Memorandum & Order Regarding Final Relief Order, United States v. City of New York, No. 07-CV-2067(NGG)(RLM) (E.D.N.Y.), ECF No. 1011, at 2; see also Compl. ¶ 36 (referring to order).)

         C. Plaintiff's Allegations

         As noted above, plaintiff is currently an FDNY firefighter and, prior to his appointment as a firefighter, had worked for fifteen years as an FDNY EMT. Plaintiff began working for the FDNY as an EMT in 1999. (Compl. ¶ 17.) The complaint states that both as an EMT and as a firefighter, plaintiff “ably and satisfactorily performed his duties.” (Id. ¶ 21.) With respect to the Class Action, plaintiff was a member of the “Delayed-Hire” subclass, (id. ¶ 18), and on June 7, 2014, the FDNY appointed him as a “‘priority hire' firefighter in compliance with the orders of [the] Court.” (Id. ¶ 19.) After graduating from the Fire Academy, plaintiff was assigned to Engine Company 257, which is located in the borough of Brooklyn. (Id. ¶ 20.)

         1. Plaintiff's Appointment

         The complaint alleges that, upon plaintiff's appointment as a firefighter and arrival at Engine Company 257, defendant Curneen, who at the time held the rank of Captain and was Engine Company 257's commanding officer, “ordered humiliating and needless special one-on-one ‘training sessions' for [plaintiff] at the outset of each shift.” (Id. ¶ 38.) Specifically, “Curneen repeatedly ordered [plaintiff] to ‘practice' putting his pants and jacket on and [taking them] off at the beginning of each tour in the presence of the entire company, ” based on the premise that plaintiff “did not know how to put his pants on.” (Id.) The complaint alleges that this “special training” was “completely unnecessary” and “served to humiliate [plaintiff] in the presence of his fellow firefighters.” (Id.)

         The complaint further alleges that Curneen retaliated against plaintiff with “abusive performance evaluations.” (Id. ¶ 39.) According to the complaint, within “a few weeks” of plaintiff's arrival at the firehouse, Curneen gave plaintiff a “failing evaluation based on his spurious and subjective assessments, ” and “over the next few months, Curneen presented [plaintiff] with a series of failing performance evaluations based on the same bogus subjective assessments.” (Id.) Plaintiff further asserts that other firefighters “joined in Curneen's abuse, ” including by “regularly” placing pork and bacon on the firehouse menu after it “became known that [plaintiff] did not eat pork, ” thereby “forcing [plaintiff] to eat his meals separately.” (Id. ¶ 40.) Additionally, firefighters “denied [plaintiff] the courtesy and consideration typically shown” to colleagues, including by failing to “check on [plaintiff] at the hospital” and “belittl[ing] his injury” when he suffered a dislocated shoulder, for which plaintiff ultimately required surgery, during a four-alarm fire on July 3, 2014. (Id. ¶ 41.)

         2. The April 2015 Fire and New York Post Article

         The complaint alleges that on April 2, 2015, plaintiff's company responded to a major fire and, while plaintiff was inside a burning building, his “oxygen gauge alerted him that his air was dangerously low and needed immediate attention.” (Id. ¶ 42.) Consequently, plaintiff returned to the fire truck to refill his oxygen tank. (Id.) When Curneen learned that plaintiff had done so, he berated plaintiff for abandoning his post and “expressed no concern [regarding] the possible malfunction of, or tampering with” plaintiff's oxygen tank. (Id.)

         The “next day [plaintiff] reported for duty, ”[5] Curneen and others “berat[ed] [plaintiff' falsely for ‘leaving his position' at the fire.” (Id. ¶ 43.) Curneen continued “abus[ing]” plaintiff throughout the day until plaintiff left the station due to stomach pain, which Curneen characterized as “stress.” (Id. ¶¶ 44-45.) Because of plaintiff's purported “stress, ” Curneen ordered plaintiff to undergo a psychiatric evaluation and to undertake re-training at the FDNY Academy. (Id. ¶ 45.) Under FDNY regulations, because Curneen had directed that plaintiff undergo a psychiatric evaluation, plaintiff was barred from duty until he received a psychiatric clearance from an FDNY psychiatrist. (Id.) Plaintiff's re- training resulted in a finding of “no deficiencies in [plaintiff's] abilities to perform as a firefighter, ” and the psychiatric evaluation similarly found “no issues” with plaintiff, and he was cleared to return to duty. (Id. ¶ 46.)

         On the night of May 16, 2015, approximately three weeks after plaintiff returned to duty at Engine Company 257, Curneen placed a phone call to plaintiff and informed him that an article involving plaintiff would appear the following day in the New York Post. (Id. ¶ 47.) On May 17, 2015, the New York Post published an article under the headline “Firefighters Fear Colleague Who Routinely Flees Fires” (the “Article”) in its print and online editions. (Id. ¶ 48.) The Article, which is attached as Exhibit A to the complaint, (ECF No. 23-1), features a picture of plaintiff enlarged from an informal group photograph of Engine Company 257. (Article at 3; see also Compl. ¶ 48 (noting photograph).)

         The Article also features a photograph purportedly showing plaintiff outside of a burning building, (Article at 3; see also Compl. ¶ 48 (noting photograph).), which the Article characterizes as “show[ing] [plaintiff] at the curb next to an FDNY vehicle while fellow firefighters march up steps into a house engulfed in black smoke.” (Article at 2.) Additionally, the Article states that at the April 2, 2015 fire, plaintiff's “irked captain radioed a ‘mayday' after discovering [plaintiff] was AWOL” from his assigned post as the “‘backup' to the nozzle man carrying the hose into the burning two-story building, ” leaving “just two firefighters . . . to haul the heavy hose up a long staircase and spray water on the flames.” (Id.)

         The Article, which cites “FDNY insiders” as its sources, identifies plaintiff by name, states that he is a priority hire, and asserts that according to sources, plaintiff had “managed to evade the smoke and flames” several times since his hiring. (Article at 1-4; see also Compl. ¶ 49.) The Article further states that “department members are afraid to openly complain or criticize [plaintiff], who is [B]lack, ” because of his status as a priority hire. (Article at 3-4; see also Compl. ¶ 49.) Further, the Article quotes FDNY “sources” who portray plaintiff as a safety risk, (Article at 2), and, based on disclosures about plaintiff's medical and personnel file, reports that plaintiff “took several days of medical leave for stress following the April 2[, 2015] fire and several months' medical leave after a fire in a six story apartment building” in July of 2014. (Article at 5; Compl. ¶ 51.)

         The complaint alleges, “[u]pon information and belief, ” that Curneen, Lemonda, and Gala were among the Article's FDNY sources. (Compl. ¶¶ 52-54.) More specifically, the complaint alleges that a “blog post” identified Curneen as a source of “private information” about plaintiff, (id. ¶ 52), that Lemonda provided plaintiff's “personal and confidential information” for the Article, (id. ¶ 53), and that Gala also provided “personal and confidential information, ” as well as the photograph purporting to show plaintiff standing on the curb at the April 2, 2015 fire. (Id. ¶ 54.)

         The complaint also alleges that the John Doe defendants named in the complaint were sources for the Article, (id. ¶ 55), that Curneen, Lemonda, Gala, and/or the John Doe defendants were the sources of information provided to the New York Post about plaintiff's “post-fire medical leave for stress, ” (id. ¶ 56), and that all information that was provided to the Post was provided “maliciously” and in violation of federal and state laws and regulations. (Id. ¶¶ 55-56.)

         According to the complaint, the Article “spawned” what plaintiff alleges was a “full-throated media lynching” of plaintiff as an “Affirmative Action Firefighter, ” including by, among other outlets, The Daily Mail, frontpagemag.com, scallywagandvagabond.com, and breitbart.com. (Id. ¶¶ 58-59.) The scallywagvagabond.com article “feature[s] a full page photo[graph] of [plaintiff]'s face, ” and [is] headlined “Should Michael D. Johnson, FDNY firefighter be fired?” [sic]. (Id. ¶ 59 (quoting Compl. Ex. D, ECF No. 23-4, at 1-2.).) It also states that “[a]ccording to the Canarsie captain, ” i.e., the captain of Engine Company 257, “Tragic Johnson came to irk fellow fire fighters [sic] after noted to be AWOL during an April 2 three alarm fire.” (Compl. Ex. D, at 3; see also Compl. ¶ 59.)

         Additionally, certain internet postings based on the New York Post Article were met with “blatantly racist” comments and threats, including a statement that plaintiff “should be gotten rid of one way or [an]other, ” and a warning that if plaintiff turned his back in another fire, “[h]e may be missing in the inferno.” (Compl ¶ 59 and Ex. G, ECF No. 23-7 at 6 of 7.) The complaint alleges that the “false reports” of plaintiff's conduct as a firefighter and resulting media coverage “stoking racial animus against [plaintiff] as a priority hire . . . caused [plaintiff] and his family shame, embarrassment, humiliation, and emotional distress, ” and injured plaintiff's reputation. (Id. ¶ 61.)

         Additionally, the complaint alleges that after the Article's publication, Nigro “became aware of [it] and the fact that it was evidence of retaliation against priority hires.” (Id. ¶ 66.) In response to the Article, Nigro allegedly “directed a perfunctory investigation.” (Id.) The complaint alleges that plaintiff told investigators that Curneen had prior knowledge of the Article. (Id.) The complaint also alleges that plaintiff told investigators that Gala had been observing the April 2, 2015 fire from the vantage point from which the photograph purporting to show plaintiff standing on the curb had been taken. (Id.) The investigation nevertheless was purportedly “‘unable' to determine the FDNY source of the leaks to the media, ” and those officials plaintiff identified as involved in the story's production subsequently received promotions within the FDNY. (Id.)

         3. EEOC Charge and “Ongoing Retaliation”

         On February 3, 2016, plaintiff filed a charge of discrimination with the EEOC alleging that the “planting of false and vicious reports . . . about his conduct at fires and disclos[ure] [of] his personnel and medical records” in connection with the Article constituted retaliation against him for having been hired as a firefighter. (Id. ¶ 63.)

         On September 24, 2016, several months after plaintiff filed the EEOC charge, plaintiff attended a rally in Harlem with other FDNY members on his regular day off, to “discuss discrimination against minorities within FDNY.” (Id. ¶ 64.) A few days after that, [6] “FDNY Associate Disciplinary Counsel” summoned plaintiff to the office of the Bureau of Investigations and Trials, purportedly to inform him of the “status of their investigation, which had been closed six months prior.” (Id. ¶ 64.) According to the complaint, the true purpose of summoning plaintiff was to “inform [him] that the FDNY was watching him and that further retaliation should be expected.” (Id.)

         II. Procedural History

         As noted above, on February 3, 2016, plaintiff filed an EEOC charge alleging, in relevant part, retaliation against plaintiff for engaging in protected conduct. (Id. ¶¶ 8, 63.) On September 2, 2016, plaintiff received a Notice of Right to Sue from EEOC. (Id. ¶ 8.) Plaintiff commenced the instant action by filing an initial complaint, (ECF No. 1), on November 18, 2016. (Compl. ¶ 8.) Plaintiff subsequently filed the amended complaint on March 1, 2017.

         The complaint asserts various claims under federal, New York State, and New York City law. Plaintiff's first through fifth claims for relief assert claims seeking damages under federal, state, and local employment law. More specifically, the complaint's first cause of action is asserted against the City and alleges retaliation in violation of Title VII. (Id. ¶¶ 68-71.) The complaint's third and fifth causes of action are also asserted against the City and allege retaliation in violation of the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. L. § 296, and in violation of the New York City Human Rights Law (“NYCHRL”), N.Y. City Admin. Code § 8-107, respectively. (Compl. ¶¶ 75-77, 82-84.) The second and fourth causes of action allege retaliation in violation of the NYSHRL and NYCHRL, respectively, by Nigro, Gala, Curneen, Lemonda, and the John Doe defendants. (Id. ¶¶ 72-74, 78-81.)

         The complaint's sixth and seventh causes of action allege retaliation in violation of plaintiff's First Amendment rights under 42 U.S.C. § 1983 (“section 1983”). (Id. ¶¶ 85-93.) The sixth cause of action is asserted against Nigro, Gala, Curneen, Lemonda, and the John Doe defendants, while the seventh is asserted against the City. (Id.) The eighth cause of action alleges a violation of plaintiff's rights under 42 U.S.C. § 1981 (“section 1981”), and is asserted against all defendants. (Id. ¶¶ 94-98.) The ninth cause of action is styled as one for “Common Law Intentional or Negligent Infliction of Emotional Distress, ” and is asserted against Nigro, Gala, Curneen, Lemonda, and the John Doe defendants. (Id. ¶¶ 99-102.) Finally, the tenth cause of action asserts that all defendants are in contempt of two orders entered in the Class Action: the remedial order entered December 8, 2011 and the final relief order entered October 26, 2012 prohibiting retaliation against Johnson as a priority hire. (Id. ¶¶ 103-10.)

         After obtaining leave of court, the City Defendants and Lemonda moved to dismiss the complaint as set forth in their respective moving papers. The motions were fully briefed and submitted to the court as of June 26, 2017. The City Defendants' motion to dismiss seeks to have Nigro, who is sued in his official capacity, dismissed from this action. The City Defendants also seek dismissal of each of plaintiff's causes of action as against them, with the exception of his Title VII claims arising on and after April 9, 2015 and his New York State and New York City Human Rights Law claims. Lemonda seeks dismissal of each of plaintiff's causes of action as against him. Plaintiff opposes both motions in their entirety.

         Legal Standard

         “To survive a motion to dismiss pursuant to Rule 12(b)(6), a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face when it contains sufficient factual content to “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).

         In applying Rule 12(b)(6), courts must generally accept as true all allegations stated in the complaint and draw all reasonable inferences in favor of the plaintiff. Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 237 (2d Cir. 2007) (citations omitted). Importantly, however, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions, ” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555), as well as to any “legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986) (citations omitted). It is also inapplicable to “[t]hreadbare recitals of a cause of action's elements, supported by mere conclusory statements.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).

         Of particular importance in light of the allegations in the complaint here, “[t]he Twombly plausibility standard . . . does not prevent a plaintiff from pleading facts alleged upon information and belief where the facts are peculiarly within the possession and control of the defendant, or where the belief is based on factual information that makes the inference of culpability plausible.” Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) (internal quotations and citations omitted); accord Boykin v. KeyCorp, 521 F.3d 202, 215 (2d Cir. 2008). Additionally, although “[t]he plausibility standard is not akin to a ‘probability requirement, '” pleading “facts that are ‘merely consistent with' a defendant's liability” does not suffice to establish plausibility. Iqbal, 556 U.S. at 678 (citing and quoting Twombly, 550 U.S. at 556-57). “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do, '” nor will a complaint that merely “tenders ‘naked assertions' devoid of ‘further factual enhancement.'” Id. (citing and quoting Twombly, 550 U.S. at 555, 557.

         In adjudicating a Rule 12 motion to dismiss, a court may generally “look only to the allegations on the face of the complaint.” Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007). However, “[d]ocuments that are attached to the complaint or incorporated in it by reference are deemed part of the pleading and may be considered, ” and “a document upon which the complaint solely relies and which is integral to the complaint may [also] be considered.” Id. (internal quotations, citations, and emphasis omitted). Here, the court may properly consider the Article and all other attachments to the complaint. As noted above, the court may also ...


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