Case 1:12-cv-00236-RJA Document 7

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK _________________________________ JEFFREY MALKAN Plaintiff, vs. 12CV0236(A) MAKAU W. MUTUA and CHARLES EWING, Defendants. __________________________________

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS PARTIAL MOTION TO DISMISS AND FOR A STAY

ERIC T. SCHNEIDERMAN New York State Attorney General BY: S/David J. Sleight DAVID J. SLEIGHT Assistant Attorney General Of Counsel Main Place Towers 350 Main Street-Suite 300A Buffalo, New York 14202 (716) 852-6274 david.sleight@ag.ny.gov

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Preliminary Statement This is an action brought pursuant 42 U.S.C. 1983. Plaintiff was an instructor at the State University of New York at Buffalo Law School (the "Law School"). Plaintiff was terminated from his position at the Law School effective August 31, 2009. Plaintiff's complaint contains a single cause of action and alleges that Defendants' denied him due process of law in connection with his termination. This memorandum of law is submitted in support of Defendants motion seeking: 1.) Dismissal of Plaintiff's complaint pursuant to Fed. R. Civ. P. 12(b)(1) to the

extent that he seeks recovery of compensatory and punitive damages against Defendants in their official capacities on the ground that the Court lacks subject matter jurisdiction based on Eleventh Amendment sovereign immunity; 2.) Dismissal of Plaintiff's claim for punitive damages against Defendants in their

individual capacities pursuant to Fed. R. Civ. P. 12(b)(6) on the grounds that the complaint fails to plead facts supporting an award of punitive damages; and, 3.) A stay of this action pending the outcome of a breach of contract claim Plaintiff is

pursuing in the New York State Court of Claims arising out of the same operative facts. Argument POINT I PLAINTIFF'S OFFICIAL CAPACITY CLAIM AGAINST DEFENDANTS MUST BE DISMISSED It is well-settled that States and their agencies are immune from suit in federal court based on the post-Civil War civil rights acts. Quern v. Jordan, 440 U.S. 332 (1979); Alabama v. Pugh, 438 U.S. 731 (1978); Edelman v. Jordan, 415 U.S. 651 (1974). This immunity extends to SUNY. Dube v. State Univ. of New York, 900 F.2d 587, 594 (2d Cir. 1990), cert. den. sub

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nom., Wharton v. Dube, 501 U.S. 1211 (1991); Blanton v. State Univ. of New York, 489 F.2d 377, 382 (2d Cir. 1973), and to the constituent campuses of SUNY. Cassells v. University Hosp. at Stony Brook, 740 F. Supp. 143, 147 (E.D.N.Y. 1990). Thus, the Law School cannot be sued in this Court. Additionally, Eleventh Amendment immunity extends to suits based on constitutional violations for monetary damages against individuals acting in their official state capacities. Edelman, 415 U.S. at 677 (when a plaintiff sues a state official alleging violation of federal law, court may award an injunction directed to future conduct but not retroactive monetary relief). Since Aneither a State nor its officials acting in their official capacities are >persons= under ' 1983", Will v. Michigan Dep=t of State Police, 491 U.S. 58, 71 (1989), this Court lacks subject matter jurisdiction over Defendants to the extent that Plaintiff's complaint can be read as asserting a 1983 claim for money damages against them in their official capacities. Yoonessi v. State Univ. of New York, 862 F. Supp. 1005, 1012 (W.D.N.Y. 1994). POINT II PLAINTIFF'S COMPLAINT DOES NOT PLEAD FACTS SUFFICIENT TO SUPPORT A CLAIM FOR PUNITIVE DAMAGES Punitive damages may be awarded a plaintiff in a 1983 action when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others. Smith v. Wade, 461 U.S. 30, 56 (1983). To be entitled to punitive damages, a claimant must show a positive element of conscious wrongdoing. Frank Sloup Crabs Unlimited, LLC v. Loeffler, 745 F.Supp.2d 115, 147 (E.D.N.Y.2011) (citing New Windsor Volunteer Ambulance Corps., Inc. v. Meyers, 442 F.3d 101, 211 (2d Cir.2006)).

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In the instant case, Plaintiff's complaint does not plead any facts that would support the award of punitive damages. Nowhere is it alleged that Defendant Mutua acted with evil motive or intent when he declined to renew Plaintiff's appointment as an instructor at the Law School. Similarly, there are no allegations that Defendant Ewing acted with evil motive or intent when he allegedly denied Plaintiff the ability to grieve his termination. Accordingly, the Court should dismiss Plaintiff's claim for punitive damages. POINT III THE COURT SHOULD STAY THIS ACTION PENDING THE OUTCOME OF PLAINTIFF'S CLAIM IN THE COURT OF CLAIMS District court's have the inherent power to stay further proceedings in a civil action. See Landis v. North American Co., 299 U.S. 248 (1936) (The power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its own docket with economy of time and effort for itself, for counsel, and for litigants.); see also LaSala v. Needham & Co., Inc., 399 F.Supp.2d 421, 427 (S.D.N.Y.2005). Whether a court should do so is based on several factors including: (1) the private interests of the plaintiffs in proceeding expeditiously with the civil litigation as balanced against the prejudice to the plaintiffs if delayed; (2) the private interests of and burden on the defendants; (3) the interests of the courts; (4) the interests of persons not parties to the civil litigation; and (5) the public interest. See Kappel v. Comfort, 914 F.Supp. 1056, 1058 (S.D.N.Y.1996). In balancing these factors on a case-by-case basis, the central focus is to avoid prejudice. See LaSala, 399 F.Supp.2d at 427. Plaintiff filed a claim against the State of New York (State University of New York at Buffalo) in the New York Court of Claims on or about January 27, 2009. See Declaration of David J. Sleight dated May 8, 2012, submitted in support of the instant motion. That claim arises

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out of the same operative facts as the instant action. In his claim, plaintiff alleges that the Law School breached a written contract of employment when it declined to extend his appointment. Plaintiff seeks as damages on his breach of contract claim past and future lost pay; the same damages he seeks in this action. This Court should stay this action because resolution of Plaintiff's Court of Claims action will resolve issues necessarily bearing on the issues in this case. One of the issues Defendants foresee in this case is whether Plaintiff had a property interest in continued employment by the Law School. When an individual claims to have a property interest related to employment, courts look to the relevant contract of employment-either explicit or implicit-or its functional equivalent to determine whether the individual has such a property interest. See Board of Regents v. Roth, 408 U.S. 564, 578 (1072); Perry v. Sinderman, 408 U.S. 593, 601-02; Ciambriello v. County of Nassau, 292 F.3d 307, 314 (2d Cir.2002). In the context of public employment, this Court has said "that employees have a property interest in continuing public employment where, by statute or contract, the state is barred from terminating the employment relationship without cause." American Federation of State, County and Municipal Employees v. Tobe, 2011 WL 6329908, *6 (W.D.N.Y.). Thus, whether Plaintiff had a valid employment contract that barred his termination except for cause will be determinative of whether Plaintiff can maintain this action. That issue is at the heart of Plaintiff's pending claim in the Court of Claims. If Plaintiff loses on that issue in the Court of Claims it will be preclusive of the issue in this action, and vise versa. Accordingly, in order to conserve judicial resources, this Court should stay this action pending the outcome of Plaintiff's Court of Claims claim.

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Conclusion For all of the foregoing reasons, the Court should grant Defendant's motion in its entirety.

Dated: Buffalo, New York August 30, 2010 ERIC T. SCHNEIDERMAN New York State Attorney General BY: S/David J. Sleight DAVID J. SLEIGHT Assistant Attorney General Of Counsel Main Place Towers 350 Main Street-Suite 300A Buffalo, New York 14202 (716) 852-6274 david.sleight@ag.ny.gov

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CERTIFICATE OF SERVICE I hereby certify that on May 8, 2012, I electronically filed the foregoing with the Clerk of the District Court using its CM/ECF system, which would then electronically notify the following CM/ECF participants on this case: FREDERIC D. OSTROVE, ESQ Attorney for Plaintiff Leeds, Morelli & Brown One Old Country Road Suite 347 Carle Place, New York 11514 (516) 873-9550 rostrove@lmblaw.com

DATED:

Buffalo, New York May 8, 2012

ERIC T. SCHNEIDERMAN New York State Attorney General BY: S/David J. Sleight DAVID J. SLEIGHT Assistant Attorney General Of Counsel Main Place Towers 350 Main Street-Suite 300A Buffalo, New York 14202 (716) 852-6274 david.sleight@ag.ny.gov