Reich v. City of New York

• Decision Date: 05 October 2021
• Docket Number: 19-CV-6491 (EK) (RER)
• Parties: Jonathan Reich, Plaintiff, v. City of New York, and Detective John Fogelman in his individual and official capacity as a police officer employed by the City of New York, John Does #1-8, George Deluca-Farrugia in his individual and official capacity as an Assistant District Attorney employed by the City of New York, Kathy Hochul in Her Official capacity as Governor of the State of New York, and Andrew M. Cuomo in his individual Capacity, Defendants.
• Court: U.S. District Court — Eastern District of New York

Jonathan Reich, Plaintiff, v. City of New York, and Detective John Fogelman in his individual and official capacity as a police officer employed by the City of New York, John Does #1-8, George Deluca-Farrugia in his individual and official capacity as an Assistant District Attorney employed by the City of New York, Kathy Hochul in Her Official capacity as Governor of the State of New York, and Andrew M. Cuomo in his individual Capacity, Defendants.

No. 19-CV-6491 (EK) (RER)

United States District Court, E.D. New York

October 5, 2021

REPORT & RECOMMENDATION

RAMON E. REYES, JR. UNITED STATES MAGISTRATE JUDGE

On October 5, 2020, Plaintiff Jonathan Reich (“Plaintiff”), pro se, filed an Amended Complaint pursuant to 42 U.S.C. §§ 1983 and 1988 alleging: that (1) Defendants^[1] conspired^[2] with unnamed officials in Connecticut to violate his civil rights; (2) the Governor of New York^[3] failed to conduct a “proper investigation, ” as required by N.Y.C.P.L.R. § 570, before signing the Governor's Warrant that permitted Plaintiff's extradition to Connecticut; and (3) the New York Governor's office failed to produce information that he requested pursuant to New York's Freedom of Information Law, N.Y. Pub. Off. L. § 86. (See generally Dkt. No. 19 (“Am. Compl.”)). On April 23, 2021, former Governor Cuomo filed a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), 12(b)(5) and 12(b)(6). (Dkt. No. 38). For the reasons set forth herein, I respectfully recommend that the motion be granted, and that the claims against the Governor of New York and Cuomo be dismissed with prejudice.

BACKGROUND

I. Factual History As Your Honor is familiar with the factual background and procedural history of this case, I will dispense with a protracted discussion of each. Reich v. City of New York et al., No. 19-CV-6491 (EK) (RER), 2021 U.S. Dist. LEXIS 137948, at *2-7 (E.D.N.Y. July 23, 2021). The following is provided only to aid in understanding the motion at issue.

In 2013, Plaintiff was arrested in Avon, Connecticut for allegedly harassing the Chief Medical Examiner who performed the autopsies on the victims of the Sandy Hook Elementary School shooting. (Am. Comp. ¶¶ 21; 23). Plaintiff was charged with harassment in the second degree, a misdemeanor. (Id. ¶¶ 23, 37). Plaintiff claims that his arrest was in error and that officials conspired to frame him for the harassment charge. (See id. ¶ 28). Sometime after his arrest in Connecticut, Plaintiff returned to New York. (See Id. ¶¶ 28; 57). He was required to return to Connecticut for a court appearance related to the harassment charge. On November 25, 2015, an arrest warrant was issued for Plaintiff after he allegedly failed to appear at the scheduled court appearance. (Dkt. No. 22-3 (“Arrest Warrant”)).

On November 21, 2016, Plaintiff was arrested at his residence in Queens County, New York, pursuant to the Arrest Warrant. (Am Compl. ¶¶ 57, 60-61; Arrest Warrant). Plaintiff was not arrested for any crime in New York other than being a fugitive from Connecticut.

Plaintiff appeared in the Queens County Criminal Court, refused to waive extradition proceedings, and was held without bail at Riker's Island. (Id. ¶¶ 60-61; ¶ 95). On February 2, 2017, the Governor of Connecticut submitted an extradition request to the Governor of New York. (Dkt. No. 40-1). Attached to the request was the requisition request from the Connecticut State Attorney's Office (Dkt. No. 40-3) and the Connecticut Arrest Warrant (Dkt. No 40-4). On February 15, 2017, after receiving and reviewing these materials (Dkt. No. 39 at 13), former Governor Cuomo signed the Governor's Warrant authorizing Plaintiff's extradition to Connecticut. (Dkt. No. 22-6). On February 23, 2017, Plaintiff was extradited pursuant to the Governor's Warrant. (Am. Compl. ¶ 65). Plaintiff, however, claims that former Governor Cuomo failed to do a “proper investigation” before signing the Governor's Warrant (Id. ¶ 93) and that former Governor Cuomo signed “falsified paperwork.” (Id.; see also id. ¶ 92).

Allegedly, on September 14, 2017, Plaintiff “requested several public records from Governor [Cuomo's] extradition office pursuant to New York's Freedom of Information Law.” (Id. ¶ 66). Plaintiff claims that he requested information pertaining to the “statistics of how many people were extradited by the New York Governor's Office over the past 5 years[, ]” “how many people were extradited for misdemeanors and how many for felony accusations[, ]” and “an accounting of the taxpayer cost” of his extradition. (Id. ¶ 67). According to Plaintiff, the Governor's office did not produce records related to these requests. (Id.).

II. Procedural History

Plaintiff filed the Complaint on November 17, 2019. (Dkt. No. 1) On October 5, 2020, Plaintiff filed the Amended Complaint and named for the first time as a defendant former Governor Cuomo, in his individual capacity and official capacity as the Governor of New York. (Dkt. No. 19). On October 21, 2020, the Amended Complaint and Summons were served on Cristal Gazelone, a “Legal Records Supervisor” at the office of the New York State Attorney General in Albany, New York. (Dkt. No. 25 at 1). The Affidavit of Service states that the Legal Records Supervisor “stated they are authorized to accept service for Andrew Cuomo.” (Id.) There is no indication that Plaintiff also sent a copy via certified mail to the Governor's office, as required by N.Y.C.P.L.R. § 307(2). (See id.; (Dkt. No. 39 (“Def.'s Mem.”) at 8-9). Nor is there any indication that service was made personally upon Cuomo, as required by N.Y.C.P.L.R. § 308(2). (See Dkt. No. 25 at 1; Def.'s Mem. at 8-9).

LEGAL STANDARDS

The New York Governor and Cuomo bring this motion to dismiss the Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), 12(b)(5), and 12(b)(6). (Def.'s Mem. at 1).

I. Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6)

“Rule 12(b)(1) of the Federal Rules of Civil Procedure provides for dismissal of a claim when there is a ‘lack of subject matter jurisdiction' by the federal court and Rule 12(b)(6) provides for dismissal of a claim for a plaintiff's ‘failure to state a claim upon which relief can be granted.'” Lajoie v. N.Y. State Dep't of Civ. Serv., No.09-CV-3525 (SLT) (MDG), 2010 U.S. Dist. LEXIS 158939, at *3 (E.D.N.Y. May 26, 2010) (quoting Fed.R.Civ.P. 12(b)(1) and 12(b)(6)). Thus, “when the district court lacks the statutory or constitutional power to adjudicate' a case, it is dismissed pursuant to Rule 12(b)(1)” and if the complaint “does not ‘contain sufficient factual matter, accepted as true, to state a claim of relief that it plausible on its face' it will be dismissed pursuant to Rule 12(b)(6).” Davis v. Yeroushalmi, 985 F.Supp.2d 349, 356-57 (E.D.N.Y. 2013) (citations omitted). The standard to dismiss under each Rule is “substantially identical” see e.g., Lerner v. Flee Bank, N.A., 318 F.3d 113, 128 (2d Cir. 2003); the “only ‘substantive difference'” being “that under Rule 12(b)(1), ‘the party invoking the Court's jurisdiction bears the burden of proof to demonstrate that subject matter jurisdiction exists, whereas' under Rule 12(b)(6), ‘the movant bears the burden of proof on a motion to dismiss[.]'” Baskerville v. Admin. for Children's Servs., No. 19-CV-602 (AMD) (LB), 2020 U.S. Dist. LEXIS 1605, at *3 (E.D.N.Y. Jan. 3, 2020) (quoting Seemann v. U.S. Postal Serv., No. 11-CV-206, 2012 U.S. Dist. LEXIS 77092, at *1 (D. Vt. June 4, 2012)). Where, as here, the motion is made pursuant to both Rules, the jurisdiction challenge is considered first, since if the court “must dismiss the complaint for lack of subject matter jurisdiction, the [defendant's] defenses and objections become moot and do not need to be determined.” Daly v. Citigroup Inc., 939 F.3d 415, 426 (2d Cir. 2019) (quoting Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir. 1990)).

II. Federal Rule 12(b)(2) and 12(b)(5)

Rule 12(b)(2) permits the court to dismiss a case for lack of personal jurisdiction over the defendant. Sidik v. Royal Sovereign Int'l Inc., No. 17-CV-7020 (JS) (ARL), 2020 U.S. Dist. LEXIS 165906, at *5 (E.D.N.Y. Sept. 10, 2020). “In order to obtain personal jurisdiction over a party, that party must be properly served.” Ingram Micro, Inc. v. Airoute Caro Express, Inc., 2001 U.S. Dist. LEXIS 2912, at *7 (S.D.N.Y. Mar. 21, 2001) (citing Fed.R.Civ.P. 4(k)). When, as here, “the presence or absence of personal jurisdiction [] is solely dependent on the allegation of failure of service” it is appropriate to analyze the issue under Rule 12(b)(5). Muhammad v. Annucci, No. 19 Civ. 3258 (GBD) (OTW), 2020 U.S. Dist. LEXIS 9175, at *14 (S.D.N.Y. Jan. 17, 2020), adopted by 2020 U.S. Dist. LEXIS 47843 (S.D.N.Y. Mar. 19, 2020).

“When considering a Rule 12(b)(5) motion to dismiss for insufficient service of process, a court must look[] to matters outside the complaint to determine whether it has jurisdiction.” George v. Prof'l Disposables Int'l, Inc., 221 F.Supp.3d 428, 432 (S.D.N.Y. 2016) (quoting Cassano v. Altshuler, 186 F.Supp.3d 318 320 (S.D.N.Y. 2016)). Once a defendant moves to dismiss under Rule 12(b)(5), the plaintiff bears the burden of proving adequate service.” Dickerson v. Napolitano, 604 F.3d 732, 758 (2d Cir. 2010). Accordingly, if the court determines that the defendant was not properly served, a court may “dismiss the action unless it appears that proper service may still be obtained.” Jaiyeola v. Carrier Corp., 73 Fed.Appx. 492, 494 (2d Cir. 2003) (quoting Romandette v. Weetabix Co., 807 F.2d 309, 311 (2d Cir. 1986)); see also Bugliotti v. Republic of Arg., No. 17 Civ. 9934 (LAP), 2021 U.S. Dist. LEXIS 62770, at *8 (S.D.N.Y. Mar. 31, 2021) (“the Court is required to...