Ortiz v. the City of N.Y.

• Decision Date: 13 December 2010
• Docket Number: No. 10 Civ. 3576(BMC).,10 Civ. 3576(BMC).
• Citation: 755 F.Supp.2d 399
• Parties: William ORTIZ, Plaintiff,v.THE CITY OF NEW YORK, Defendant.
• Court: U.S. District Court — Eastern District of New York

755 F.Supp.2d 399

William ORTIZ, Plaintiff,

v.THE CITY OF NEW YORK, Defendant.

No. 10 Civ. 3576(BMC).

United States District Court, E.D. New York.

Dec. 13, 2010.

Eric Sanders, Jeffrey L. Goldberg, Jeffrey L. Goldberg, P.C., Lake Success, NY, Susan P. Bernstein, Jeffrey L. Goldberg P.C., New Hyde Park, NY, for Plaintiff.Maxwell Douglas Leighton, New York City Law Department, New York, NY, for Defendant.

MEMORANDUM DECISION AND ORDER

COGAN, District Judge.

This case is before me on defendant's motion to dismiss. The City of New York argues that this 42 U.S.C. § 1981 civil rights action must be dismissed because the complaint fails to state a plausible claim and because a re-pled 42 U.S.C. § 1983 action would not be timely. I conclude that § 1983 provides the exclusive cause of action for § 1981 claims against state actors. However, because the claim is plausible and the action would be timely if properly pled under § 1983, I deny the City's motion to dismiss.

BACKGROUND

Plaintiff William is a former police officer with the NYPD. He retired in 2004, but ten months later, applied for reinstatement. Ortiz was reinstated on August 28, 2006, more than a year after he applied, without retaining his seniority, and consequently, with a lower salary. Ortiz alleges that this loss of seniority was caused by the NYPD's pattern and practice of discriminating in the reinstatement process. Specifically, he claims that “similarly situated Caucasian officers were reinstated with their seniority and salary intact.”

More importantly for this motion, Ortiz filed his one-count complaint on August 4, 2010, claiming a violation of 42 U.S.C. § 1981. The City moved to dismiss, arguing that 42 U.S.C. § 1983 provides the sole remedy against state actors for rights asserted under § 1981, and that amending the complaint would be futile because a § 1983 action would be untimely and would still fail to state a claim.

DISCUSSION

The City's motion to dismiss raises two legal issues that remain unsettled in this Circuit. I address them under the more general questions of whether the complaint states a plausible claim for relief under § 1981 and, if it does not, whether amending the complaint to bring a § 1983 action would be futile because it would fail to state a claim and would not be timely.

I. Standard of Review

In deciding a motion to dismiss under Rule 12(b)(6), this Court “accepts all well-pleaded allegations in the complaint as true, drawing all reasonable inferences in the plaintiff's favor.” Operating Local 649 Annuity Trust Fund v. Smith Barney Fund Management LLC, 595 F.3d 86, 91 (2d Cir.2010). “In order to survive a motion to dismiss under Rule 12(b)(6), a complaint must allege a plausible set of facts sufficient ‘to raise a right to relief above the speculative level.’ ” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); accord Ashcroft v. Iqbal, ––– U.S. ––––, 129 S.Ct. 1937, 1949–50, 173 L.Ed.2d 868 (2009)). In other words, a complaint must contain factual allegations to support the legal conclusions and the factual allegations must “plausibly give rise to an entitlement to relief.” Iqbal, 129 S.Ct. at 1950.

A motion to dismiss is often not the appropriate stage to raise affirmative defenses like the statute of limitations. See e.g., Allen v. Dairy Farmers of Am., Inc., No. 09–230, 748 F.Supp.2d 323, 353–54, 2010 WL 3430833, at *24, 2010 U.S. Dist. LEXIS 90309, at *74–75 (D.Vt. Aug. 30, 2010) (“A statute of limitations analysis is generally riddled with questions of fact which the Defendants must establish in order to bar Plaintiffs' claims.... Accordingly, unless the complaint alleges facts that create an ironclad defense, a limitations argument must await factual development.”) (quotation marks and citation omitted). Nonetheless, the Second Circuit has held that as long as the affirmative defense is based on the facts alleged in the complaint, it may be raised on a motion to dismiss. See McKenna v. Wright, 386 F.3d 432, 436 (2d Cir.2004); Ghartey v. St. John's Queens Hosp., 869 F.2d 160, 162 (2d Cir.1989). District courts, however, have not dismissed actions as untimely on Rule 12(b)(6) motions unless the “complaint shows clearly that a claim is not timely.” Robert Smalls Inc. v. Hamilton, No. 09–7171, 2010 WL 3238955, at *9, 2010 U.S. Dist. LEXIS 83643, at *32 (S.D.N.Y. July 19, 2010) (internal quotation marks and citation omitted, emphasis added).

II. Whether the complaint can be maintained as a § 1981 action against the City?

The City argues that the complaint fails to state a claim because the exclusive federal remedy against state actors for violating rights guaranteed by § 1981 is § 1983.¹ This is the holding of Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989). Shortly after Jett, Congress passed the Civil Rights Act of 1991, which, inter alia, added two subsections to § 1981. Subsection (c) states that the “[t]he rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.” Several courts—most notably the Ninth Circuit in Fed'n of African Am. Contractors v. City of Oakland, 96 F.3d 1204 (9th Cir.1996)—have held that this provision abrogated Jett by adding to § 1981 an implied private right of action against state actors.

The weight of authority, however, rejects the proposition that Jett has been statutorily abrogated. All six other appellate courts to consider the issue have disagreed with City of Oakland. See McGovern v. City of Philadelphia, 554 F.3d 114, 117 (3d Cir.2009); Arendale v. City of Memphis, 519 F.3d 587 (6th Cir.2008); Bolden v. City of Topeka, 441 F.3d 1129 (10th Cir.2006); Oden v. Oktibbeha County, 246 F.3d 458 (5th Cir.2001); Butts v. County of Volusia, 222 F.3d 891 (11th Cir.2000); Dennis v. County of Fairfax, 55 F.3d 151 (4th Cir.1995). The Second Circuit has not weighed in, see Anderson v. Conboy, 156 F.3d 167, 178 n. 19 (2d Cir.1998), but the vast majority of district courts in the Circuit—albeit with little or no analysis—have held that § 1981(c) did not overrule Jett. See Gladwin v. Pozzi, No. 06–cv–0650, 2010 WL 245575, at *7, 2010 U.S. Dist. LEXIS 5091, at *17–18 (S.D.N.Y. Jan. 21, 2010) (collecting cases); but see Robinson v. Town of Colonie, 878 F.Supp. 387, 405 n. 13 (N.D.N.Y.1995).

In this Circuit, the analysis for determining whether a private cause of action is implied, turns on Congressional intent, even if all the factors set out in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), continue to inform the analysis.² See Lindsay v. Ass'n of Prof'l Flight Attendants, 581 F.3d 47, 53 n. 3 (2d Cir.2009); Hallwood Realty Partners, L.P. v. Gotham Partners, L.P., 286 F.3d 613, 619 n. 7 (2d Cir.2002) ( “the remaining Cort factors (other than congressional intent) now enter into the analysis only as possible indicia for legislative intent.”); Lopez v. JetBlue Airways, No. 10–CV–1552, 2010 WL 3311428, at *2, 2010 U.S. Dist. LEXIS 85457, at *5–6 (E.D.N.Y. Aug. 19, 2010) (“Without a showing of congressional intent, ‘a cause of action does not exist and courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute.’ ”) (quoting Alexander v. Sandoval, 532 U.S. 275, 286–87, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001)). Thus, even if City of Oakland's reliance on Cort was not entirely misplaced (as the Third Circuit suggested in McGovern v. City of Philadelphia, 554 F.3d 114, 118–19 (3d Cir.2009)), the analysis may still be at its end if the text of the statute, which evidences Congressional intent, is unambiguous. See Sandoval, 532 U.S. at 288, 121 S.Ct. 1511.

Section 1981(c) is explicit about rights but silent on remedies; it “places an individual's rights on equal footing against discrimination by private and public actors,” but fails do the same for remedies. McGovern, 554 F.3d at 119. The Ninth Circuit overcomes this omission by observing that subsection (c) codified Runyon v. McCrary, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976), which held that § 1981 prohibits discrimination in both private and public contracting. The Court leaps from this otherwise uncontroversial assertion, see e.g., McGovern, 554 F.3d at 120; Butts v. County of Volusia, 222 F.3d 891, 894 (11th Cir.2000), to conclude that Congress's approval of equating rights against private and public defendants necessarily manifests the intention to create a remedy against the latter because an earlier Supreme Court decision had already held that it existed against the former.

I respectfully disagree. It is difficult to accept that Congress intended to overturn a Supreme Court decision handed down less than two years earlier, bestow § 1981 with its own cause of action against state actors—when one had already existed in § 1983—all without a mention in the statute. Moreover, as the Court in City of Oakland appears to concede, the legislative history reveals no intention to overturn Jett. 96 F.3d at 1213; see also McGovern, 554 F.3d at 120 (observing that nothing in the legislative history “even mentioned” Jett ); Bolden, 441 F.3d 1129, 1137 (10th Cir.2006) (“[O]nly one who never relies on committee reports would fail to be impressed by the total absence in the committee reports of any mention of Jett ....”). Like the Circuit Courts that have found Jett still intact, I expect a lot more from a statute that is purported to overturn Supreme Court precedent and create a cause of action. See Bolden, 441 F.3d at 1137 (“Congress does not overrule recent Supreme Court precedent so subtly.”); cf. Bellikoff v. Eaton Vance Corp., 481 F.3d 110, 116 (2d Cir.2007) (per curiam) (holding that when the statute makes no explicit provision for a private cause of action, a presumption attaches that Congress did not intend one).

Thus, Ortiz' § 1981 claim fails. To maintain his action, Ortiz would have to...