DECISION AND ORDER

RICHARD BERMAN, District Judge

I. Background

On November 18, 2004, Marzetta Harris ("Plaintiff" or "Harris"), a registered voter residing in the 32d State Senate District located in the Bronx, New York ("District"), filed a Complaint ("Complaint") and Order to Show Cause for Preliminary Injunction and Temporary Restraining Order ("Pl. Mot." or "Order to Show Cause") against Ruben Diaz ("Diaz"), the incumbent State Senator for the District, the New York City Board of Elections ("Board of Elections"), and individual Commissioners of the Board of Elections (collectively, "Defendants"), alleging violation of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983 in that, among other things, Diaz is not a resident of the District; Diaz "knowingly, willfully and fraudulently used a sham residence" in enrolling to vote and running for election in the District; Diaz is "not qualified to hold office;" and the Board of Elections "acquired full knowledge of the fraudulent filing of documents." (Complaint ¶¶ 17-22.) Plaintiff's Order to Show Cause asks the Court to enjoin the Board of Elections from certifying the results of the general election held on November 2, 2004 ("General Election"), which reflected that Diaz received approximately 48,000 votes in the District and Diaz's opponent, Richard Walters, received approximately 1,000 votes. The Complaint further "demands judgment against the Defendants permanently enjoining this certification, that the Court set aside and annul the elections results of the General Election held on November 2, 2004 which purportedly elected respondent Diaz as Senator of the 32nd District, and direct that a new election be held." (Complaint at 6.)

Prior to the General Election, a virtually identical challenge to Diaz's residency was filed in state supreme court by Diaz's opponent in the Democratic Primary Election pursuant to N.Y. Election Law § 16-102 ("State Court Challenge"). (See In re Application of Espada v. Diaz, No. 20414-04, slip. op. at 1 (N.Y.Sup.Ct. Aug. 13, 2004), App. A to Memorandum of Law in Support of Defendant's Cross Motion to Dismiss and in Opposition to Application for Injunctive Relief, dated Nov. 23, 2004 ("Def. Opp'n"); Verified Petition to Invalidate dated July 27, 2004, Attach. to Complaint.) The State Court Challenge was commenced on July 27, 2004, two days before the time period for instituting judicial proceedings regarding objections to nominations and designating petitions of candidates expired under state law. See N.Y. Election Law § 16-102(2) ("A proceeding with respect to a petition shall be instituted within fourteen days after the last day to file the petition . . ."); "Designating Petitions" dated May 12, 2004, Ex. A to Affidavit of Ruben Diaz dated Nov. 22, 2004 ("Diaz Aff.") ("Last day to circulate Designating Petitions . . . July 15, 2004;" "Last day to institute Judicial Proceedings with regard to designating petitions . . . Thursday, July 29. . ."). Plaintiff was not a party to the State Court Challenge; nor did she initiate her own judicial proceeding challenging Diaz's residency pursuant to N.Y. Election Law § 16-102(1) on or before July 29, 2004; nor did she file any objections with the Board of Elections prior to the General Election as provided for in N.Y. Election Law § 6-154(2). See N.Y. Election Law § 6-154(2), which states: "Written objections to any certificate of designation or nomation . . . may be filed by any voter registered to vote for such public office . . ."

The Court held a conference with the parties and set a briefing schedule for Defendant's proposed cross-motion to dismiss on November 19, 2004. (See Transcript of Nov. 19, 2004 Proceedings ("Nov. 19, 2004 Tr.").) No interim relief was granted to Plaintiff at that time or at the time of the filing of the Order to Show Cause. (See Nov. 19, 2004 Tr. at 14; Order dated Nov. 18, 2004, at 2.)

On November 23, 2004, Defendants opposed Plaintiff's Motion for preliminary injunction and temporary restraining order and cross-moved to dismiss the Complaint on the grounds that (i) "Plaintiff has available to her a quo warranto action pursuant to [N.Y.] Executive Law § 63-b, in which post-election challenges can be commenced by the State Attorney General;" and (ii) "Plaintiff's delay is unreasonable and inexcusable when one considers the impact it will have on the voters and the fact that she could have challenged Defendant Diaz's nominating petition pursuant to [N.Y.] Election Law § 6-154." (Def. Opp'n at 5-6.) Plaintiff submitted a Memorandum of Law in Opposition to Defendant[s'] Motion to Dismiss the Complaint ("Pl. Reply") on November 24, 2004, and Defendants filed a Reply Memorandum of Law in Further Support of Defendants' Cross Motion to Dismiss and Opposition to Plaintiff's Application for Injunctive Relief ("Def. Sur-Reply") on November 29, 2004.

For the reasons that follow, Plaintiff's motion for a preliminary injunction and temporary restraining order is denied and Defendants' cross-motion to dismiss the Complaint is granted.

II. Legal Standard

In resolving election disputes, "federalism concerns caution against excessive entanglement of federal courts in state election matters."Bodine v. Elkhart County Election Bd., 788 F.2d 1270, 1272 (7th Cir. 1986); see Ladner v. City of N.Y., No. 94 Civ. 2863, 1995 WL 62687, at *4 (E.D.N.Y. 1995); see also Bush v. Gore, 531 U.S. 98, 153 (2000) (Breyer, J., dissenting) ("road-map of how to resolve disputes about electors . . . foresees resolution of electoral disputes by state courts") (emphasis in original).

A. Motion to Dismiss

In reviewing a motion to dismiss pursuant to Federal Rule of Civil Procedure ("Fed.R.Civ.P.") 12(b)(6), the Court "must accept the factual allegations of the complaint as true and must draw all reasonable inferences in favor of the plaintiff." Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996). However, "conclusory allegations that merely state the general legal conclusions necessary to prevail on the merits and are unsupported by factual averments will not be accepted as true." Hayden v. Pataki, No. 00 Civ. 8586, 2004 WL 1335921, at *2 (S.D.N.Y. June 14, 2004). Dismissal of the complaint is proper when "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002). "The issue is not whether a plaintiff is likely to prevail ultimately, 'but whether the claimant is entitled to offer evidence to support the claims.'" Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995) (quoting Weisman v. LeLandais, 532 F.2d 308, 311 (2d Cir. 1976) (per curiam)). A complaint is deemed to "include . . . documents that the plaintiffs either possessed or knew about and upon which they relied in bringing the suit." Rothman v. Gregor, 220 F.3d 81, 88-89 (2d Cir. 2000).

B. Preliminary Injunction and Temporary Restraining Order

"The standards for a TRO are the same as those governing the granting of preliminary injunctive relief." Roberts v. Atl. Recording Corp., 892 F. Supp. 83, 86 (S.D.N.Y. 1995). "The general standard for issuing a preliminary injunction requires that the movant show '(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.'" Gold v. Feinberg, 101 F.3d 796, 800 (2d Cir. 1996) (citation omitted).

Where, as here, "the moving party seeks a preliminary injunction that will affect government action taken in the public interest pursuant to a statutory or regulatory scheme, the injunction will be granted only if the moving party meets the more rigorous likelihood-of-success standard."Queens County Republican Comm. v. N.Y. State Bd. of Elections, 222 F. Supp. 2d 341, 345-46 (E.D.N.Y. 2002) (citing No Spray Coalition, Inc. v. City of N.Y., 252 F.3d 148, 150 (2d Cir. 2001) (per curiam)). And, when the injunction sought "will alter rather than maintain the status quo the movant must show 'clear' or 'substantial' likelihood of success." No Spray Coalition, 252 F.3d at 150 (internal citation and quotations omitted).

III. Analysis

A. Motion to Dismiss

Defendants argue that "in order to seek relief under § 1983 alleging that state election officials are in violation of the equal protection and due process clauses, a voter must either allege that the state action constituted intentional or purposeful discrimination or that an adequate and fair state remedy does not exist." (Def. Opp'n at 5.) Plaintiff responds that "intentional discrimination is not required" and that "[t]he Board, at the very least, has been negligent [in] allowing [Diaz] to hold an office to which he is not legally qualified to hold." (Pl. Reply at 5-6.) Plaintiff argues that, among other things, "the quo warranto is not an adequate [and] fair state remedy" because it "is a long process whereby many steps are necessary to obt[a]in relief" and "[s]hould the Attorney General decline to commence such an action, the voters would have no further remedy." (Pl. Mot. at 5.)

The United States Court of Appeals for the Second Circuit has held that § 1983 actions based on violations of the equal protection and due process clauses generally require more than mere negligent conduct. See Gold v. Feinberg, 101 F.3d 796, 800-01 (2d Cir. 1996) ("[A] § 1983 action to remedy errors in the election process allegedly violating the equal protection clause does not exist unless the state action constituted 'intentional or purposeful discrimination;'" "[M]ore than negligent conduct by the state actor is needed in order for a cognizable § 1983 claim to exist based on violations of the due process clause.") (citations omitted); see also Powell v. Power, 436 F.2d 84, 86 (2d Cir. 1970) ("Were we to embrace plaintiffs' theory [that willful or knowing conduct is not required], this court would henceforth be thrust into the details of virtually every election. . .").

The Complaint alleges that Diaz "knowingly, willfully and fraudulently used a sham residence . . . with documents duly filed with the New York City Board of Election." (Complaint ¶ 20.) Diaz's alleged actions cannot form the basis of Plaintiff's § 1983 claim against Defendants. See Chan v. City of N.Y., 1 F.3d 96, 106 (2d Cir. 1993) ("An action under § 1983 cannot, of course, be maintained unless the challenged conduct was attributable at least in part to a person acting under color of state law."). The Complaint also alleges that the Board of Elections, through the State Court Challenge, "acquired full knowledge of the fraudulent filing of documents." (Complaint ¶ 22.) Because the State Court Challenge was withdrawn pursuant to stipulation before it was resolved on the merits, see In re Application of Espada v. Diaz, No. 20414-04, slip. op. at 1, and because no other objections to Diaz's residency were raised prior to the General Election under state law, it cannot be concluded that the Board of Elections improperly certified the results of the General Election on November 30, 2004. See Lichtman v. Bd. of Elections of Nassau County, 261 N.E.2d 610, 612 (N.Y. 1970) ("We conclude that the Board of Elections does not have the authority, after the election, to withhold certification of a duly elected candidate."); Fazio v. Meisser, 209 N.Y.S.2d 17, 19 (N.Y.Sup.Ct. 1960) ("The Court . . . has no power at this stage [after the election] to consider the claims of forgery and fraud in the preparation of the petitions, nor did the Board of Elections have such power. Its power at all times was limited to the examination of the petitions for obvious defects appearing on the face thereof; it had no power to pass on questions of invalidity requiring determinations of issues of fact . . ."); Reich v. Bosco, 195 N.Y.S.2d 117, 122 (N.Y.Sup.Ct. 1959) ("After the closing of the polls, nothing remains for election officers to do except to ascertain and put into effect the will of the voters . . . [T]he Board . . . has no judicial or quasi-judicial powers; it serves only in a ministerial capacity.").

In the absence of allegations of intentional state conduct, federal intervention may be appropriate in limited circumstances, i.e. in the absence of an adequate and fair state remedy. See Gold, 101 F.3d at 800-01 ("[L]ocal election irregularities, including even claims of official misconduct, do not usually rise to the level of constitutional violations where adequate state corrective procedures exist.") (citation omitted); Griffin v. Burns, 570 F.2d 1065, 1077 (1st Cir. 1978) ("[T]here is precedent for federal relief where broad-gauged unfairness permeates an election, even if derived from apparently neutral action."); see also Powell v. Power, 436 F.2d 84, 88 (2d Cir. 1970). This is not such a case. That is, even accepting all of the factual allegations in the Complaint as true and drawing all reasonable inferences in favor of Plaintiff, see Bernheim v. Litt, 79 F.3d at 321, the Court does not conclude that Plaintiff's state law remedy of quo warranto is either inadequate or unfair. Plaintiff's conclusory allegations to the contrary, without more, cannot withstand Defendants' motion to dismiss.See Hayden v. Pataki, No. 00 Civ. 8586, 2004 WL 1335921, at *2 (S.D.N.Y. June 14, 2004) ("[C]onclusory allegations that merely state the general legal conclusions necessary to prevail on the merits and are unsupported by factual averments will not be accepted as true.").

Plaintiff relies almost exclusively on Shannon v. Jacobowitz, 301 F. Supp. 2d 249 (N.D.N.Y. 2003), in support of her argument that "quo warranto is not an adequate [or] fair state remedy." (Pl. Mot. at 5; Pl. Reply at 6.) Defendants respond that, "While it is true that [theShannon court] characterized the procedure as unwieldy and cumbersome, this is the remedy chosen by the legislature of the State of New York . . ." (Def. Opp'n at 6.) Shannon is inapposite because, among other reasons, it involved an election for Town Supervisor of Whitestown, New York and a voting machine that (indisputably) failed to record at least 69 votes for the "losing" candidate where the margin of victory was only 25 votes. Shannon, 301 F. Supp. 2d at 253. Under these very exceptional circumstances, theShannon court concluded that "[n]o investigation is needed in this matter, as there is no question that the voting machine malfunctioned" and that "[i]t is not a fair remedy to sit idly and watch the opposing candidate be sworn in, knowing full well that the wrong person is taking public office." Id. at 256-57.

In the instant case, Defendant Diaz vigorously disputes the allegation that he does not reside within the District. (Affidavit of Ruben Diaz dated Nov. 22, 2004 ("Diaz Aff."), ¶ 5 ("[T]here is absolutely no validity to the Plaintiff's claim that I did not live at 860 Leland Avenue, Bronx, New York (Leland Avenue) and currently reside at 1965 Chatterton Avenue, Bronx, New York (Chatterdon Avenue). . .").) Where, as here, "a disputed issue of fact" exists, "the proper vehicle for challenging the results and contesting title to the public office of the purported winner is a quo warranto action . . ." Delgado v. Sunderland, 767 N.E.2d 662, 665 (N.Y. 2002); see also Ellis v. Eaton, 524 N.Y.S.2d 937, 938 (N.Y.App.Div. 1988) ("It is the 'long-prevailing rule that an action in the nature of quo warranto by the Attorney-General, now statutorily embodied in section 63-b of the Executive Law, is the exclusive means of trying title to public office.' . . . Equally well established is the exception to that rule which permits such title to be tested by mandamus in an article 78 proceeding when only an issue of law is presented.") (citations omitted).

Also, Plaintiff's application for relief is late. Plaintiff had ample opportunity before the General Election to contest Diaz's residency, as provided for by N.Y. Election Law §§ 6-154 and 16-102. See N.Y. Election Law §§ 6-154(2) and 16-102(1) (2); see also Scaringe v. Ackerman, 506 N.Y.S.2d 918, 920 (N.Y.App.Div. 1986), aff'd, 501 N.E.2d 593 (N.Y. 1986) (court denied plaintiffs' challenge to candidate's residency as untimely because "[t]he only remedy available to contest Ackerman's designation or nomination on the ground that he did not meet the qualifications necessary to hold office . . . is a judicial proceeding pursuant to Election Law § 16-102(1)" and "petitioners failed to commence this proceeding within the time limits prescribed by Election Law § 16-102(2)"); Olma v. Dale, 761 N.Y.S.2d 572, 572 (N.Y.App.Div. 2003) ("Election Law § 16-102(2) . . . provide[s] strict deadlines for any legal proceeding that challenges designating petitions . . ."); Buechel v. Bosco, 194 N.Y.S.2d 965, 966-67 (N.Y.App.Div. 1959) ("[A]fter the election of a candidate, whose name appeared on the ballot without contest, his right to hold the office to which he was elected cannot be challenged by any person upon the claim that his nomination was invalid.").

Plaintiff's argument that quo warranto is unfair and inadequate because "the process is cumbersome and lengthy" is not compelling. (Pl. Reply at 7.) That is, "[t]he cumbersome nature of the remedy . . . is a question for the Legislature, not the courts." People v. Delgado, 767 N.Y.S.2d 124, 128 (N.Y.App.Div. 2003). Plaintiff also claims that "[t]he Attorney General has publicly supported the respondent Ruben Diaz and his son Ruben Jr. . . ., and has an interest in gaining Mr. Diaz's support . . ." (Pl. Reply at 7.) The accusation that New York State Attorney General Eliot Spitzer would not conduct a fair investigation of Plaintiff's allegations is speculative, at best. "[I]t is quite clear that this court may not review the exercise of discretion of the Attorney-General."People v. Bunge Corp., 282 N.Y.S.2d 576, 583 (N.Y.Sup.Ct. 1967); see also State v. Eaton, 541 N.Y.S.2d 287, 291 (N.Y.Sup.Ct. 1988); People v. Ballard, 32 N.E. 54, 59 (N.Y. 1892) ("We think that the question as to what the public interests require is committed to the absolute discretion of the attorney general, and that it cannot be made the subject of inquiry by the courts. If he abuses the great power intrusted to him, a remedy may be found in his removal from office, or in the election of a successor worthy of the high position.").

B. Preliminary Injunction and Temporary Restraining Order

Because the Board of Elections has already certified the General Election results, and no restraining order was in effect, Plaintiff's motion for a preliminary injunction is denied as moot. See Chapman v. S. Buffalo Ry. Co., 43 F. Supp. 2d 312, 318 (W.D.N.Y. 1999) ("An issue is mooted where the activities the plaintiff seeks to enjoin have already occurred and the court cannot undo what has already been done.") (citingBank of New York Co. v. Northeast Bancorp, Inc., 9 F.3d 1065, 1067 (2d Cir. 1993)). Assuming arguendo that this were not the case, Plaintiff's motion for a preliminary injunction would still be denied because she would have failed to demonstrate a likelihood of success on the merits.See No Spray Coalition, Inc. v. City of N.Y., 252 F.3d 148, 150 (2d Cir. 2001).

IV. Conclusion and Order

For the foregoing reasons, Plaintiff's motion for preliminary injunction and temporary restraining order is denied and Defendants' cross-motion [# 5] to dismiss the Complaint is granted. The Clerk of Court is respectfully requested to close this case.