Opinion
No. 02 CV 9758 (KMW).
March 17, 2005
OPINION AND ORDER
Plaintiff David Douek ("Douek" or "Plaintiff"), proceedingpro se, brought this action against numerous Defendants, alleging violations of his rights pursuant to the First, Fifth and Fourteenth Amendments, Title IX of the Educational Amendments of 1972, 20 U.S.C. § 1681 ("Title IX"), and New York State common law. The alleged violations stem from how his college, Hunter College, handled a sexual harassment complaint filed against him by a fellow classmate. The case was referred to Magistrate Judge Freeman for general pretrial purposes, on December 18, 2002, and to deal with dispositive motions, on April 30, 2003.
The City University of New York ("CUNY") Defendants, as well as those defendants that are either federal agencies or employees thereof (collectively, the "Federal Defendants") and Defendant New Media Learning, LLC ("New Media"), have moved to dismiss Douek's claims against them under Rule 8(a) of the Federal Rules of Civil Procedure, for failure to meet minimum pleading requirements, under Rule 12(b)(1), for lack of subject matter jurisdiction, and/or under Rule 12(b)(6), for failure to state a claim upon which relief can be granted.
The CUNY Defendants include CUNY, employees of CUNY (including Roberta Nord and Matthew Goldstein), Hunter, and employees of Hunter (including Robert O. Swain, Rafael Ferrer, Michael Escott, Laura Schachter-Stealthier, Sandra Clarkson, Robert McGarry, Martin Fenton, Sylvia Fishman, Ruth Brooks, Janet Robertson, Dawn Klimowitch, Linda Chin (misnamed "Chen" in the Complaint), Eija Ayravanien, Mark Weinstock, Sanford Wurmfeld, Susan Crile, Andrea Blum, Nari Ward, Natalie Reitano, John Lango, and Jennifer Raab).
Megan Canning, a former Hunter student, is not included in this group because she has not been served in this action and has not filed a responsive pleading. (See Summons Returned Unexecuted, dated June 17, 2004 (Dkt. 31); see also discussions infra Part IV). Likewise, the John and Jane Does identified as "members of the Grade Appeals Committees at both the Department and Senate Levels" and the Board of Directors of CUNY (see Second Amended Complaint, dated Sept. 17, 2003 ["Second Am. Compl."] [Dkt. 17], ¶¶ 20, 22) are not included in this group because they have not been named, have not appeared, and are not represented here by the Attorney General of the State of New York.
The Federal Defendants include the United States Department of Education (the "DOE"), employees of the DOE (including Charles Masterson, Anna Castaldo, Linda C. Colon, Helen N. Whitney, John Bilinski, Brenda E. Johnson, and Wendella P. Fox), and the United States Department of Labor.
On January 18, 2005, Magistrate Judge Freeman issued a Report and Recommendation (the "Report") recommending that the Court
(1) grant the following motions to dismiss: the motion by New Media to dismiss for lack of subject matter jurisdiction; the Fed.R.Civ.P. Rule 12(b)(1) motion filed by the United States Department of Labor (the "DOL"); the Fed.R.Civ.P. Rule 12(b)(6) motion filed by the DOE re. Plaintiff's Title IX claim; the Fed.R.Civ.P. Rule 12(b)(6) motion filed by the DOE re. Plaintiff's breach of contract claims; the Fed.R.Civ.P. Rule 12(b)(6) motion filed by the CUNY Defendants re. Plaintiff's claims pursuant to the United States Constitution (an Establishment Clause claim; a Free Speech claim; and Due Process claims);
(2) deny the Fed.R.Civ.P. Rule 8(a) motion to dismiss the Second Amended Complaint filed by those Defendants that are either federal agencies or employees thereof, and Defendant New Media;
(3) order Plaintiff to show cause why his Title IX claim against any of the CUNY Defendants should not be dismissed for failure to state a claim;
(4) order Plaintiff to show cause why the claim against Janet Robertson and/or CUNY pursuant to the Privacy Act of 1974, 5 U.S.C. § 552(a) (the "Privacy Act") should not be dismissed for failure to state a claim;
(5) order Plaintiff to show cause why the action against Megan Canning should not be dismissed with prejudice, for failure to state a claim;
(6) if all of Plaintiff's federal claims in this action are dismissed, decline to exercise supplemental jurisdiction over Plaintiff's state law claims.
Only Plaintiff objected to the Report. His objections are as follows:
1. "perhaps more evidence is required" with respect to the court's denial of Defendants' motion(s) to dismiss pursuant to Fed.R.Civ.P. Rule 8(a). Pl. Obj. to Report at 3;
2. the alleged failure of the CUNY Defendants to follow their own policy and procedures violates the United States Constitution (the First, Fifth and Fourteenth Amendments, and perhaps the Fourth, Sixth, Eighth and Tenth Amendments), and Title IX, id. at 6;
3. "the CUNY defendants haven't even been willing to provide their initial disclosures as demanded by the court," id. at 7;
4. not all of the Defendants "have been served or have responded properly"; the New York State Attorney General has "refused" to provide the address for Megan Canning (allegedly a teacher's assistant) and the names and addresses of "some of the John and Jane Does," id. at 8;
5. some of Defendants' motions were made without a premotion conference having been held;
6. the Report states, incorrectly, that Plaintiff failed to complete the "Online Program"; Plaintiff states that he did complete the program, id. at 10;
7. the Report did not address Plaintiff's claim for "product liability and internet fraud," id. at 10;
8. the Report incorrectly assumed that Plaintiff had not alleged that New Media is a government actor, whereas Plaintiff had attached as an exhibit to the Second Amended Complaint that showed that New Media came into existence to act as agent for the government, which meets "the Laingian definition of a nexus existence," id. at 11;
9. Plaintiff seeks leave to amend his Complaint to add unspecified tort claims, id. at 10;
10. the Report fails to address certain of Plaintiff's tort claims, id. at 13;
11. the Report "doesn't address the product liability and disclosure claims," id. at 13;
12. dismissal of pendent state claims would place an "undue hardship" on Plaintiff, who is receiving public assistance, id. at 13.
The Court has reviewed the Report de novo, and Plaintiff's objections to the Report. The Court adopts the Report's recommended conclusions as to all facts (except that the Court will accept, arguendo, Plaintiff's representation that the Report wrongly concludes that Plaintiff did not complete the "Online Program"). Because the remaining facts are set forth in the Report cogently and in detail, the Court will not repeat them here. The Court also adopts the excellent legal analysis, and the legal conclusions, in the Report. The Court notes that the Report meticulously recasts Plaintiff's claims into their proper legal categories, and analyzes them in the light most favorable to Plaintiff.
The Court sets forth below its resolutions of Plaintiff's objections to the Report, addressing each objection in the order in which they are listed at p. 3-4, supra:
1. The legal deficiencies in Plaintiff's complaint cannot be cured by additional evidence, because the gravamen of Plaintiff's complaints cannot be redressed by the laws cited by Plaintiff, and/or the laws cited in the Report.
2. The Report correctly analyzes Plaintiff's claims against the CUNY Defendants brought pursuant to the First, Fifth and Fourteenth Amendments. Plaintiff's post-Report assertions that "perhaps" the CUNY Defendants have violated the Fourth, Sixth, Eighth and Tenth Amendments, have no legal merit, even if they were timely and more specific.
3. The Court may consider motions to dismiss without discovery having taken place. The Magistrate Judge's decision to consider the motions to dismiss on the existing record was correct, in light of the fact that discovery would not assist in curing the complaint's legal deficiencies.
4. Given that the claims asserted against the Defendants who were not identified by and/or whose addresses were not provided, by Defendant(s), cannot be redressed by the laws cited by Plaintiff, and/or the laws cited in the Report, identification and addresses of additional Defendants would not assist Plaintiff.
5. Judges and Magistrate Judges may waive their own requirements for premotion conferences; Magistrate Judge Freeman's alleged failure to hold a premotion conference is not a ground for denying a motion.
6. As stated above, the Court accepts, arguendo, Plaintiff's contention that he completed the "Online Program." Acceptance of that contention does not affect the Court's legal conclusions.
7. To the extent that Plaintiff asserted a claim for "product liability," and "internet fraud" under state law, the Court will decide later whether those claims should be adjudicated in federal court, after the Court decides which, if any, federal claims survive the motions to dismiss.
8. The exhibit referenced by Plaintiff is not evidence that New Media is or was a government actor.
9. The Court denies Plaintiff's motion to amend his complaint, to add unspecified tort claims, without prejudice to Plaintiff's ability to move to amend the complaint to add claims that are specified.
10. To the extent that the Report does not discuss the merits of Plaintiff's tort claims, it is proper for it not to do so, in light of the Report's recommendation that the Court consider whether to retain jurisdiction over the tort claims after the Court decides which, if any, federal claims survive the motions to dismiss.
11. The Report correctly did not address "product liability" claims and any "disclosure" claims, given that they are unspecified. To the extent that they are based on state law, and to the extent that they are later specified, the Court will decide whether to exercise jurisdiction over the claims after the Court decides which, if any, federal claims survive the motions to dismiss.
12. The Court will consider all arguments concerning dismissal of pendent state claims after the Court decides which, if any, federal claims survive the motions to dismiss.
Accordingly, the Court:
(1) denies the motion of the federal Defendants and New Media to dismiss the Second Amended Complaint as against them under Fed.R.Civ.P. 8(a);
(2) grants the motions of New Media and the DOL to dismiss the Second Amended Complaint as against them under Fed.R.Civ.P. 12(b)(1);
(3) grants the motion of the DOE and its employees to dismiss the Second Amended Complaint as against them under Fed.R.Civ.P. 12(b) (6);
(4) grants the motion of the CUNY Defendants to dismiss claims in the Second Amended Complaint as against them under Fed.R.Civ.P 12(b) (6).
The Court understands that Plaintiff firmly believes that Defendants have harmed him. It is not enough, however, that a Plaintiff feel aggrieved: he must be able to state his allegations in such a way as to meet the pleading requirements of the Federal Rules of Civil Procedure. Because Plaintiff has been unable to do so, the above-listed claims must be dismissed.
For the reasons stated in the Report, the Court orders Plaintiff to show cause, by April 11, 2005, why the following claims should not be dismissed pursuant to Fed.R.Civ.P 12(b) (6): (1) Plaintiff's Title IX claim against certain CUNY Defendants; (2) his Privacy Act claims against certain CUNY Defendants; and (3) any federal claim against Defendant Canning.
Although New Media states in its memorandum of law in support of its motions to dismiss that it "should" be awarded attorneys' fees, costs and "any other appropriate relief," it has filed no motion in support of these contentions. The docket clerk is instructed to strike from its list of pending motions any purported motion for attorneys' fees and costs.
SO ORDERED.