Cummings v. City of N.Y.
| Decision Date | 26 March 2021 |
| Docket Number | No. 19-cv-7723 (CM)(OTW),19-cv-7723 (CM)(OTW) |
| Parties | PATRICIA CUMMINGS, Plaintiff, v. THE CITY OF NEW YORK; NEW YORK CITY DEPARTMENT OF EDUCATION; GIULIA COX; COURTNEY WARE; BEN CHAPMAN; NEW YORK DAILY NEWS; DR. ANDRE PERRY; THE HECHINGER REPORT a/k/a HECHINGER INSTITUTE ON EDUCATION AND THE MEDIA; LENARD LARRY McKELVEY a/k/a CHARLAMAGNE THA GOD; WWPR-FM (105.1 MHZ); iHEARTMEDIA; CLEAR CHANNEL COMMUNICATIONS, INC.; NEW YORK STATE SENATOR KEVIN S. PARKER; COALITION OF EDUCATIONAL JUSTICE; ANGEL MARTINEZ; NATASHA CAPERS; PHILIP SCOTT; ADVISE MEDIA NETWORK n/k/a AFRICAN DIASPORA NEWS CHANNEL; and "JOHN DOE AND JANE DOE #1-100" said names being fictitious, it being the intent of Plaintiff to designate any and all individuals, officers, members, agents, servants, and/or employees of the aforementioned agencies owing a duty of care to Plaintiff, individually and jointly and severally, Defendants. |
| Court | U.S. District Court — Southern District of New York |
On March 16, 2020, after the court entered an order dismissing Plaintiff Patricia Cummings's May 17, 2019 Complaint, but granting leave to amend (Dkt. No. 13, "Complaint"), Plaintiff filed her Amended Verified Complaint (Dkt. No. 95, "Amended Complaint") against the City of New York, the New York Department of Education ("DOE"), Giulia Cox, Courtney Ware (together with the City of New York, DOE and Defendant Cox the "City Defendants"), BenChapman, Daily News, L.P. ("Daily News," together with Defendant Chapman the "Daily News Defendants"), Dr. Andre Perry, the Hechinger Institute on Education and the Media, Lenard Larry McKelvey a/k/a Charlamagne tha God ("Charlamagne"), (together with Perry and the Hechinger Institute, the "Media Defendants"), WWPR-FM, iHeartMedia, Clear Channel Communications, New York State Senator Kevin S. Parker, Coalition of Educational Justice, Angel Martinez, Natasha Capers, Philip Scott, and Advise Media Network, a/k/a African Diaspora News Channel. On May 15, 2020, Plaintiff filed a Second Amended Verified Complaint, after the March 16 document was rejected by the Clerk's office because it misnamed a defendant. (Dkt. No. 100, "Second Amended Complaint.")
The Amended Complaint asserts claims for defamation - including both libel and slander - and false light against the Daily News Defendants, the Media Defendants, Senator Parker, Scott, the African Diaspora News Channel, Martinez, Capers, and the Coalition of Educational Justice. The Amended Complaint also asserts claims against the City Defendants under the United States Constitution for discrimination and violation of Plaintiff's due process rights, as well as state law claims for fraud, negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress.
The City Defendants, the Daily News Defendants, the Media Defendants, and Senator Parker now move to dismiss the Amended Complaint. (Dkt. Nos. 104, 105, 108, 110, 113.) The remaining defendants have not appeared.
For the reasons below, the motions are GRANTED; Plaintiff's Amended Complaint is DISMISSED.
The Court presumes the parties' familiarity with the facts of this case, which this Court set forth in great detail in its Memorandum Decision and Order dismissing the original Complaint. (Dkt. No. 94.) In short, Plaintiff - a probationary teacher at the William W. Niles School - Middle School 118 ("X118") in the Bronx - alleges that she was fired in violation of her right to due process after students and a parent complained to the school about a lesson that Plaintiff taught her seventh-grade social studies class on the Middle Passage and slavery. Students reported that, after showing a clip from the movie Freedom, Plaintiff, who is white, directed several students to sit or lay on the classroom floor and pushed them closer together to demonstrate the cramped conditions on a slave ship. (AC ¶ 55.) The school referred her conduct to the DOE's Office of Special Investigations ("OSI"), which found that Plaintiff had not engaged in corporal punishment, but nonetheless concluded that Plaintiff's lesson exhibited poor judgment. (AC ¶ 92.)
The New York Daily News reported on the allegations against Plaintiff and the OSI investigation into her conduct in an article first published on February 1, 2018 ("February 1 article"). (AC ¶ 106.) The story was eventually picked up by other media outlets and sparked public controversy.
On February 1, Plaintiff was "reassigned" (i.e., removed from classroom teaching) for the remainder of the school year. (AC ¶ 74.) In August 2018, after being cleared of any allegations of corporal punishment by OSI, she was told to report back to X118 for the fall semester, only to be reassigned for a second time on September 4, 2018. (AC ¶ 90.) The DOE terminated Plaintiff's probationary employment on October 18, 2018. (AC ¶ 93.) Throughout this time, the Daily News continued to report on Plaintiff and the investigation, including in an October 20, 2018 article published two days after she as fired. (AC ¶ 95.)
The Complaint asserted claims against the City of New York, the New York City Department of Education, The New York Office of Special Investigations, Giulia Cox, and Courtney Ware for violations of the Fourteenth, First, Second, Fourth, Fifth, Sixth, Seventh, and Eighth Amendments to the Constitution. It asserted state law defamation claims against the Daily News, Chapman, Dr. Perry, the Hechinger Report, Charlamagne, WWPR-FM, iHeartMedia, Clear Channel Communications Senator Parker, City Council Member Williams, Mayor de Blasio, Dromm, Capers, Martinez, and the Coalition of Educational Justice. And it asserted claims for negligence, negligent inflection of emotional distress, and intentional infliction of emotional distress against all defendants.
On February 24, 2020, I dismissed Plaintiff's Complaint in its entirety. I gave Plaintiff leave to file an amended pleading to correct the deficiencies that could be corrected. (Dkt. No. 94.)
On March 16, 2020, Plaintiff filed an Amended Complaint. It no longer included any allegations against Mayor Bill de Blasio, Jumaane Williams, or Daniel Dromm, but it added two new media defendants: multi-media journalist Philip Scott and Advise Media Network.
The Clerk's Office rejected the Amended Complaint as deficient because it misidentified one of the defendants as NYC Coalition for Educational Justice rather than the Coalition of Educational Justice.1 (Dkt. No. 95.) Two months later, on May 20, Plaintiff's counsel soughtleave to re-file the Amended Complaint for the sole purpose of correcting name; he identified no other amendment that he wished to make. I granted leave to amend for the sole purpose of allowing Plaintiff to remedy this error. (Dkt. No. 99.)
On May 28, Plaintiff filed a Second Amended Complaint. (Dkt. No. 100.) However, Plaintiff did more than simply correct the name of a single defendant in the ECF system. She added a number of allegations that were not pleaded in the Amended Complaint, without moving for leave to so amend or obtaining the permission of the Court to file yet another amended pleading.
No defendant has moved to strike the supplementary allegations pursuant to Federal Rule 12(f). The Daily News Defendants explicitly chose not to pursue that remedy, arguing instead that the new allegations "are largely Plaintiff's own argumentative characterizations [that] are either not factual and not entitled to any presumption of truth on this motion to dismiss, or are contradicted by documents incorporated into the Amended Complaint." (Dkt. No. 114 at 1 n.1.)
The Court, however, will strike the newly asserted allegations to the extent they are beyond the scope of the leave to amend I granted. Rule 12(f) provides, "The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter" - and it may do so on its own, without a motion made by any party. Fed. R. Civ. P. 12(f). While motions to strike are generally disfavored, "District courts in this Circuit have routinely dismissed claims in amended complaints where the court granted leave to amend for a limited purpose and the plaintiff filed an amended complaint exceeding the scope of the permission granted." Miles v. City of New York, 2018 WL 3708657, at *5 (S.D.N.Y. Aug. 3, 2018) (quoting Palm Beach Strategic Income, LP v. Salzman, 457 Fed. App'x 40, 43 (2d Cir. 2012)). I allowed Plaintiff to re-file her Amended Complaint for the specific purpose of correcting the name of a party, not tosupplement her already amended pleadings with new claims or factual allegations - or with legal arguments that have no place in a pleading in any event.
Accordingly, this court considers the Amended Complaint filed on March 16, 2020 to be the operative pleading for purposes of these motions to dismiss. Any "allegations" that were added to the version filed on May 28 will not be considered.
The additions to the Amended Complaint fall into four buckets: (1) new factual allegations, (2) conclusory allegations not supported by well-pleaded facts, (3) background information about Plaintiff and several defendants, and (4) legal arguments that Plaintiff seems to have inserted in anticipation of a second round of motions to dismiss the complaint (and that read much like a motion for reconsideration of the Court's order dismissing the Complaint).
The new factual allegations are summarized as follows:
A. New Allegations Against the City Defendants
Plaintiff identifies several ways in which she believes that the DOE's investigation into her conduct and her ensuing termination were procedurally deficient, thereby violating her right to due process:
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