Opinion
No. 97-CV-0894 (LEK/RFT)
October 17, 2001
WALTER, THAYER MISHLER, P.C., LANNY E. WALTER, ESQ., Attorney for Plaintiff, 756 Madison Avenue, Albany, N Y 12208.
HON. ELIOT SPITZER, Attorney General for the State of New York, KAREN MARCOUX MANKES, ESQ., Assistant Attorney General, Attorney for Defendant, Department of Law, The Capitol, Albany, New York 12224.
MEMORANDUM-DECISION AND ORDER
Presently pending is plaintiff's motion for leave to file a second amended complaint to add a claim under section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 701-797b (1995). Docket nos. 53 54. Defendant opposes the motion. Docket nos. 56 57. For the reasons that follow, plaintiff's motion is denied.
PROCEDURAL HISTORY
On June 26, 1997, plaintiff Thomas P. Crosby ("Crosby") filed this action alleging defendant New York State Department of Labor ("defendant" or "NYSDOL") violated the anti-discrimination provisions of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. See docket no. 1. On December 4, 1998, NYSDOL moved for summary judgment pursuant to Fed.R.Civ.P. 56(b) claiming, inter alia, that it is immune from suit under the ADA pursuant to the Eleventh Amendment. Docket nos. 22-25. Crosby opposed the motion and alternatively moved to amend the complaint to add a claim under the Rehabilitation Act. Docket nos. 26-28. In a decision and order dated April 7, 1999, the Honorable Lawrence E. Kahn granted defendant's motion for summary judgment and denied Crosby's motion to amend the complaint, holding that both the ADA and the Rehabilitation Act failed to validly abrogate Eleventh Amendment immunity. Docket no. 40, pp. 5-6.
Following Judge Kahn's decision, the Second Circuit held in Muller v. Costello that the ADA validly abrogated Eleventh Amendment immunity. 187 F.3d 298 (2d Cir. 1999). Therefore, on December 16, 1999, the parties stipulated to vacating the judgment and remanding this action for further proceedings in light of Muller. Docket no. 55. On February 24, 2000, the Second Circuit held in Kilcullen v. New York State Dep't of Transp., that the Rehabilitation Act also validly abrogated Eleventh Amendment immunity. 205 F.3d 77 (2d Cir. 2000), abrogation rec'd by, Garcia v. S.U.N.Y. Health Sciences Ctr. of Brooklyn, ___ F.3d ___, 2001 WL 1159970 (2d Cir. Sept. 26, 2001) Thus, Crosby renewed his motion to amend the complaint.
DISCUSSION
Fed.R.Civ.P. 15(a) states, in pertinent part, that leave to amend the complaint should be "freely given when justice so requires." Indeed, leave to amend should be denied only in the face of undue delay, bad faith, undue prejudice to the nonmovant, futility of amendment or where the movant has repeatedly failed to cure deficiencies in previous amendments. Foman v. Davis, 371 U.S. 178, 182 (1962); Day v. Morgenthau, 909 F.2d 75, 78 (2d Cir. 1990). Furthermore, district courts are vested with broad discretion to grant a party leave to amend the pleadings. See Local 802, Assoc. Musicians of Greater N.Y. v. Parker Meriden Hotel, 145 F.3d 85, 89 (2d Cir. 1998). Here, Crosby seeks leave to amend his complaint to add a claim under the Rehabilitation Act. Specifically, Crosby contends that since New York State accepts federal funds, it has waived Eleventh Amendment immunity. See Pl. Mem. of Law (docket no. 54), point II. Defendant opposes the proposed amendment on the ground of futility.
A proposed amendment is futile where it fails to cure deficiencies in the original complaint, Acito v. Imcera Group, Inc., 47 F.3d 47, 54-55 (2d Cir. 1995), or where it would not survive a motion to dismiss. Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001). Therefore, to determine whether a proposed amendment is futile, it must be analyzed under the same standard as a Fed.R.Civ.P. 12(b)(6) motion to dismiss. See id. Here, NYSDOL contends that the proposed amendment is futile because New York State did not waive Eleventh Amendment immunity by accepting federal funds.
NYSDOL concedes that it accepts federal funds. See Def. Mem. of Law (docket no. 57), p. 5 n. 2.
On February 21, 2001, the Supreme Court held that Title I of the ADA did not validly abrogate Eleventh Amendment immunity, thus calling the Second Circuit's decisions in Muller and Kilcullen into question. See Board of Trustees of the Univ. of Alabama v. Garrett, 531 U.S. 356 (2001). Since the decision in Garrett, the Second Circuit abrogated Kilcullen. See Garcia, ___ F.3d ___, 2001 WL 1159970. In Garcia, the Second Circuit held that in enacting Title II of the ADA, Congress exceeded its power under section 5 of the Fourteenth Amendment and therefore, failed to validly abrogate Eleventh Amendment immunity. Id. at *9. The Second Circuit further held that since "[section] 504 of the Rehabilitation Act and Title II of the ADA offer essentially the same protections for people with disabilities, [the] conclusion that Title II of the ADA as a whole exceeds Congress's authority under [section] 5 of the Fourteenth Amendment applies with equal force to [section] 504 of the Rehabilitation Act." Id. at 10.
As noted in Garcia, however, the Rehabilitation Act was also enacted pursuant to Congress' Article I Spending Clause authority. Id. (citing U.S. Const. art. I, § 8, cl. 1). Thus, Congress may condition federal funds on a waiver of Eleventh Amendment immunity. Indeed, the Rehabilitation Act specifically contains such a condition. See 42 U.S.C. § 2000d-7; see also Garcia, 2001 WL 1159970, at *10. Nonetheless, a waiver of Eleventh Amendment immunity must be an "intentional relinquishment or abandonment of a known right or privilege." College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 682 (1999) (citation omitted); see also Garcia, 2001 WL 1159970, at *11. In Garcia, the Second Circuit held that at the time New York State accepted federal funds, "Title II of the ADA was reasonably understood to abrogate New York's [ Eleventh Amendment] immunity under Congress's Commerce Clause authority." 2001 WL 1159970, at *11. Furthermore, since Title II of the ADA and section 504 of the Rehabilitation Act are "virtually identical," New York State reasonably believed it did not knowingly waive immunity by accepting federal funds. Id.
Garcia is controlling here. An argument may be made that New York State knowing waives Eleventh Amendment immunity for claims brought under the Rehabilitation Act if it continues to accept federal funds. See Garcia, 2001 WL 1159970, at *11 n. 4. Garcia, however, involved essentially the same time period alleged in Crosby's complaint. Therefore, Crosby is barred by the Eleventh Amendment from asserting a claim for damages under the Rehabilitation Act.
WHEREFORE, it is hereby
ORDERED that Crosby's motion for leave to amend the complaint is DENIED.
IT IS SO ORDERED.