Leise v. Vt. Human Rights Comm'n
| Docket Number | 2:22-cv-00009 |
| Decision Date | 24 March 2023 |
| Parties | ANDREW LEISE, Plaintiff, v. VERMONT HUMAN RIGHTS COMMISSION, KEVIN CHRISTIE, BOR YANG, DA CAPO PUBLISHING, INC., and JOHN AND JANE DOE I-X, Defendants. |
| Court | U.S. District Court — District of Vermont |
Plaintiff Andrew Leise, a Vermont State Police (“VSP”) trooper, brings this action against Defendants the Vermont Human Rights Commission (“VHRC”); Bor Yang Executive Director of VHRC, in her official and personal capacities; Kevin Christie, Chairman of VHRC, in his official and personal capacities (collectively with VHRC and Ms. Yang the “VHRC Defendants”); Da Capo Publishing, Inc. (“Seven Days”), a Vermont corporation that publishes the newspaper Seven Days; and John and Jane Does I-X, the “individual actor(s) [who] carried out the actions of [V]HRC and Seven Days[.]” (Doc. 58-4 at 7 ¶ 18.).
Plaintiffs claims arise out of a November 2020 determination by VHRC that there were reasonable grounds to find that VSP discriminated against Lydia Clemmons, PhD, based on her race and gender. Plaintiff claims VHRC's determination (the “Final Determination”), its wrongful release of a confidential investigative report (the “Investigative Report”), and Seven Days's subsequent reporting about the same falsely portrayed him as racist and sexist. In his First Amended Complaint (“FAC”), he asserts six causes of action against Defendants: (1) a procedural due process claim (liberty interest/stigma plus) under 42 U.S.C. § 1983 (Count I); (2) a procedural due process claim (property interest/constructive termination) under § 1983 (Count II); (3) a substantive due process claim for arbitrary and oppressive government action under § 1983 (Count III); (4) an invasion of privacy claim under Vermont law (Count IV); (5) a defamation claim under Vermont law (Count V); and (6) a tortious interference with contract claim under Vermont law (Count VI).
Five motions are pending before the court. On February 14, 2022, Seven Days filed a motion to dismiss for failure to state a claim (Doc. 12) and a special motion to strike pursuant to Vermont's anti-SLAPP statute, 12 V.S.A. § 1041. (Doc. 13.) On April 1, 2022, VHRC Defendants filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b) (Doc. 34) and a special motion to strike pursuant to 12 V.S.A. § 1041. (Doc. 33.) On May 13, 2022, Plaintiff moved for leave to file a Supplemental First Amended Complaint (“SFAC”). (Doc. 48.)
Plaintiff is represented by Kaveh S. Shahi, Esq. VHRC Defendants are represented by Justin G. Sherman, Esq. and Lisa B. Sheikrot, Esq. Seven Days is represented by Matthew B. Byrne, Esq.
Plaintiff filed his initial Complaint on January 18, 2022. On May 13, 2022, after Defendants moved to dismiss, Plaintiff moved for leave to amend his Complaint (Doc. 48), which Seven Days opposed. The court held a hearing on June 17, 2022 at which it conditionally granted Plaintiffs motion for leave to amend, ruling that it would consider Defendants' motions in light of Plaintiff s FAC. The court granted in part and denied in part Seven Days's motion for judicial notice. (Doc. 15.) It agreed to take judicial notice of the Investigative Report and Seven Days article which are the basis of Plaintiff s claims, but not Seven Days's remaining requests.[1] At the conclusion of the hearing, the court took Defendants' special motions to strike (Docs. 13, 33) and motions to dismiss (Docs. 12, 34) under advisement.
On July 14, 2022, Plaintiff moved for leave to file his SFAC (Doc. 58), which Seven Days and VHRC Defendants oppose. Plaintiff replied on August 5, 2022, at which time the court took Plaintiffs motion for leave under advisement.
On August 9, 2022, Seven Days filed a notice of supplemental authority, alerting the court to an unpublished August 8, 2022 order of the Vermont Superior Court, Rutland Unit, dismissing a defamation claim because it found the reporting “on official police reports and criminal proceedings related to those reports” was “protected by Vermont statute, the Vermont Constitution, and the United States Constitution.” (Doc. 63-1 at 3.)
On November 16, 2022, VHRC Defendants filed a notice of supplemental authority, alerting the court to an unpublished October 14, 2022 decision of the Vermont Supreme Court, which affirmed the trial court's dismissal of a lawsuit against the VHRC commissioners. (Doc. 64 at 1.) VHRC Defendants also cited an August 16, 2022 decision by the Supreme Court of Delaware, in which the court held that “shockingly racist and tone deaf' comments a plaintiff made to protect his “white, Christian heritage” did not “state or imply provably false and defamatory facts” about the plaintiff. Id. at 2 (internal quotation marks omitted).
One month later, on December 13, 2022, Seven Days filed a second notice of supplemental authority (Doc. 65), alerting the court to a December 13, 2022 decision of the Vermont Superior Court, Chittenden Unit, which adopted the reasoning of the August 8, 2022 order of the Vermont Superior Court, Rutland Unit, cited by Seven Days in its first notice of supplemental authority.
Plaintiff moves to supplement his FAC pursuant to Fed.R.Civ.P. 15(d) to include allegations pertaining to: (1) a July 1, 2022 email from an employee of the University of Vermont Medical Center (“UVMMC”) purporting to rescind a job offer previously extended to Plaintiff because of “the VHRC findings” (Doc. 58-1 at 1), and (2) a July 11, 2022 affidavit of Laura Clemmons, Dr. Clemmons' sister (the “Laura Clemmons Affidavit”). (Doc. 58-2.) Defendants assert that Plaintiffs proposed amendments are procedurally improper and have no impact on the analysis of their motions to dismiss.
Rule 15(d) provides: “On motion and reasonable notice, the court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented.” Courts analyze Rule 15(d) motions using the “same standards used to evaluate motions to amend pleadings under [Rule 15(a),]” Bemben v. Fuji Photo Film U.S.A., Inc., 2003 WL 21146709, at *1 , and have broad discretion in determining whether to allow a party to file supplemental pleadings under Rule 15(d). See Kahn v. Gen. Motors Corp., 865 F.Supp. 210, 215 (S.D.N.Y. 1994) (“This [c]ourt has broad discretion to allow supplemental pleadings.”).
“Absent undue delay, bad faith, dilatory tactics, undue prejudice to the party to be served with the proposed pleading, or futility, the motion [to supplement] should be freely granted.” Quaratino v. Tiffany & Co., 71 F.3d 58, 66 (2d Cir. 1995). The party opposing a Rule 15(d) motion “bears the burden of establishing that amendment would be futile[,]” Destine v. Joseph, 2021 WL 5827652, at *1 (S.D.N.Y. Dec. 8, 2021), by demonstrating that “the proposed claim could not withstand a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6).” Lucente v. Int'l Bus. Machs. Corp., 310 F.3d 243, 258 (2d Cir. 2002).
Defendants contend the Laura Clemmons Affidavit sets forth facts which predate the FAC and is thus not a supplemental pleading under Rule 15(d). In addition, they complain that Plaintiff s successive amendments have needlessly delayed this litigation and increased its expense. Plaintiff counters that Defendants fail to allege bad faith, undue delay, or prejudice and asserts that his supplementation remains appropriate under the liberal standards of Rule 15(d).
The UVMMC July 1, 2022 email “serve[s] both to add information about events that have occurred subsequent to the date of the original complaint, and to clarify Plaintiffs prior allegations.” Bemben, 2003 WL 21146709, at * 1. UVMMC's purported rationale for not hiring Plaintiff is relevant to whether Plaintiff has plausibly alleged he suffered actual harm as a result of Defendants' conduct. The court thus considers the document in evaluating the pending motions to dismiss.
The Laura Clemmons Affidavit is dated July 11, 2022 and contains assertions by Ms. Clemmons that she “believe[s] [Dr. Clemmons] can weaponize race to give her an advantage in situations of conflict or when she wishes to maintain power” and that Dr. Clemmons made false statements to Seven Days. (Doc. 58-2 at 1.) She avers: “If anyone had contacted me about the accusation of racism by [Dr. Clemmons] against the [VSP], I would have given the same information as outlined here with any additional details if requested.” Id. at 2.
The Laura Clemmons Affidavit is “closely related to [the allegations] raised in the [FAC] and throughout the litigation thus far[,]” because it pertains to whether Defendants' alleged failure to adequately investigate Dr Clemmons' claims was evidence of actual malice. See Witkowich v. Gonzales, 541 F.Supp.2d 572, 590 (S.D.N.Y. 2008) (granting leave to supplement where the plaintiffs new allegations “involvefd] the same subject matter ..., many of the same peoplef,] and the same employer” and “took place shortly after the [event] that [was] the subject of this litigation”). Although Plaintiff claims he was only able to obtain the Laura Clemmons Affidavit after the FAC was filed, the affidavit itself refers to events that predate the FAC. To the extent that the SFAC incorporates new allegations based on the Laura Clemmons Affidavit, it does not “set[] out any transaction, occurrence, or event that...
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