KENNETH M. KARAS, District Judge:
Plaintiffs Mosdos Chofetz Chaim, Inc. ("Mosdos"), Yeshiva Chofetz Chaim, Inc.
Wesley Hills Defendants, New Hempstead Defendants, Chestnut Ridge Defendants, and Montebello Defendants move to dismiss this action pursuant to Federal
I. Background
A. Factual Background
For the purpose of resolving the instant Motions, the Court accepts as true all facts alleged in Plaintiffs' Complaint.
1. The Parties
Plaintiffs are religious corporations and individuals affiliated with the Chofetz Chaim sect of the Orthodox Jewish community, all of whom allege an interest in the operation of Kiryas Radin, "a religious educational institution and center for religious activity and prayer," at a location known as the Nike Site.
2. The Village Incorporation Movement
Beginning in the 1970s, Orthodox and Hasidic Jewish families "began to reside in [Ramapo] in increasing numbers." (Id. ¶ 45.) According to Plaintiffs, the influx of Orthodox and Hasidic Jews to Ramapo and its surrounding areas prompted a "village incorporation movement," in which residents of Ramapo "began to establish villages for the purpose of controlling who resided within each village." (Id. ¶¶ 45-46 (internal quotation marks omitted).) Defendant Villages Montebello, Chestnut Ridge, Wesley Hills, and New Hempstead were allegedly formed as part of this movement. (Id. ¶ 46.) Specifically, Plaintiffs contend that "[t]he purpose of the village formation movement was to exercise control over zoning and planning and not provide for or otherwise accommodate" the increasing Orthodox and Hasidic Jewish population. (Id. ¶ 47.) While Plaintiffs do not allege that Defendant Pomona was incorporated as part of this movement, Plaintiffs allege that Pomona also was "incorporated to ... provide local zoning regulations inconsistent with the religious practices of the Orthodox and Hasidic Jewish communities." (Id. ¶ 100.)
3. Defendant Villages' Allegedly Discriminatory Zoning
Plaintiffs allege that Defendants have enacted discriminatory zoning provisions with the purpose of excluding members of the Orthodox Jewish community. (Id. ¶¶ 98, 101-03, 117, 119, 122.) New Hempstead's zoning code is allegedly "designed to create enormous difficulty for ultra religious
4. The Prior New Hempstead Litigation
YCC purchased the Nike Site from the federal government around May 30, 1997. (Def. Vills. of Chestnut Ridge, Montebello, Wesley Hills, and New Hempstead's ("Def. Vills.'") Ex. C, Stipulation and Order of Dismissal, Yeshiva Choeftz Chaim Radin, Inc. v. Vill. of New Hempstead, No. 97-CV-4021 (S.D.N.Y. Dec. 14, 2000) 2). At the time, the Nike Site was under the jurisdiction of New Hempstead. (Id. at 1.)
Around the time YCC purchased the Nike Site, New Hempstead officials allegedly "informed various government agencies," including the Occupational Safety & Health Administration, the United States Army Corps of Engineers, and the Environmental Protection Agency, that the Nike Site was contaminated with lead and friable asbestos. (Compl. ¶ 81.) During the same time period, New Hempstead officials also allegedly notified the East Ramapo Local School Board "that the work involved in renovating the property would endanger the young lives attending the Colton School," which is located near the Nike Site. (Id. ¶ 84.) Further, New Hempstead officials allegedly notified the New York State Department of Environmental Conservation ("DEC") that the Nike Site was unsafe due to the presence of asbestos. (Id. ¶ 88.) Plaintiffs allege that the New Hempstead officials' representations to these government bodies were false and that they "were made to thwart [YCC's] development and religious use" of the Nike Site. (Id. ¶¶ 82-90.) Indeed, the "DEC [allegedly] evaluated the property and found no merit behind" the claims. (Id. ¶ 91.) Nonetheless, Plaintiffs allege that the representations by New Hempstead officials "had the effect of chilling community relations and creating an environment of fear and hatred towards [YCC] and the local Hasidic community." (Id. ¶ 92.)
On June 2, 1997, YCC filed suit ("the Prior New Hempstead Litigation") against New Hempstead, its Mayor, its Board of Trustees, and its Deputy Building inspector, alleging, inter alia, that New Hempstead had incorporated as a village in 1984 in order to "exercise control over zoning and planning and not accommodate the housing needs or religious practices of ultra-Orthodox Jews." (Def. Vills.' Ex. B, Compl., Yeshiva Choeftz Chaim Radin, Inc. v. Vill. of New Hempstead, No. 97-CV-4021 (S.D.N.Y. June 2, 1997) ¶¶ 24-25.) YCC's complaint in the Prior New Hempstead Litigation further alleged that New Hempstead had adopted exclusionary zoning provisions that excluded multi-family homes from its boundaries. (Id. ¶¶ 25-26.) The complaint did not include any claims regarding New Hempstead's aforementioned false representations, which Plaintiffs assert in the instant action.
On December 14, 2000, Magistrate Judge Lisa Margaret Smith so ordered a stipulation of settlement between all parties to the Prior New Hempstead Litigation (the "New Hempstead Stipulation"). (Def. Vills.' Ex. C.) In the New Hempstead Stipulation, the Parties agreed that the Nike Site would be transferred from the
5. Revisions to Ramapo's Zoning Code
In 2001, Ramapo initiated a review of its Comprehensive Zoning Law ("CZL"), and, according to Plaintiffs, determined that the Orthodox and Hasidic Jewish population in the jurisdiction were in need of adequate housing. (Compl. ¶¶ 49-53.) To address this issue, Ramapo proposed to revise its CZL to re-zone for multi-family use certain areas previously zoned for single-family use. (Id. ¶ 54.) In addition, in spring 2004, Ramapo proposed a local law, the Adult Student Housing Law ("ASHL"), "to permit, as a conditional use, the construction and operation of `adult student living facilities' in certain residential zones." Vill. of Chestnut Ridge v. Town of Ramapo, 45 A.D.3d 74, 841 N.Y.S.2d 321, 326 (2007) ("Chestnut Ridge I").
Plaintiffs allege that during the "period of review and comment on" the revised CZL, Defendants "started an organized campaign to defeat and block the [revised CZL] and the [ASHL] from adoption." (Compl. ¶¶ 64-67.) Defendants "complained about the [] [p]lan based upon issues of density," despite "approv[ing] the development of over one thousand multifamily, high-density units in their own respective [V]illages" and "over eight senior units" located in Ramapo, neither of which was related to the Orthodox or Hasidic Jewish community. (Id. ¶ 56.) Wesley Hills Defendants allegedly advocated, through an organization called "Preserve Ramapo," to prevent Plaintiffs from using the Nike Site for its religious purpose. (Id. ¶¶ 108-116.) Further, New Hempstead Defendants allegedly made false representations regarding environmental problems at the Nike Site to federal, state, and local agencies. (Id. ¶¶ 76, 81-97.) They also allegedly "used racist remarks and racial stereotyping to install fear and misinformation" about the revised CZL. (Id. ¶ 66.) In particular, Plaintiffs allege that Rhodes, a former Trustee of Wesley Hills, made discriminatory public statements about the Orthodox Jewish community on more than one occasion. (Id. ¶¶ 108-09, 115.)
Defendants' actions notwithstanding, Ramapo enacted the ASHL, Local Law No. 9-2004, on June 15, 2004. See Chestnut Ridge I, 841 N.Y.S.2d at 327; see also Chestnut Ridge II, 2008 WL 4525753, at *1. Sometime after passage of the ASHL, YCC—then the owner of the Nike Site—applied for site plan approval for construction of an adult student housing facility on the Nike Site.
6. The Chestnut Ridge Action
On October 13, 2004, four of the Defendants in this action—the Villages of Chestnut Ridge, Montebello, Pomona, and Wesley Hills (the "Four Village Plaintiffs")— along with two individual residents of Ramapo (the "Individual Chestnut Ridge Plaintiffs") (collectively, the "Chestnut Ridge Plaintiffs"), commenced a proceeding in New York Supreme Court, Westchester County (the "Chestnut Ridge Action") challenging the enactment of the ASHL, pursuant to Article 78 of the New York Civil Practice Law and Rules ("N.Y. C.P.L.R."). See Chestnut Ridge I, 841 N.Y.S.2d at 327. The defendants named in the Chestnut Ridge Action were Ramapo, the Ramapo Town Board, the Ramapo Planning Board, the Ramapo Board of Appeals, YCC, and Scenic Development, LLC, a developer involved with the Nike Site (the "Chestnut Ridge Defendants"). See id. The Chestnut Ridge Plaintiffs later filed an amended petition, adding claims challenging the enactment of the revised CZL and the approval of YCC's Nike Site plan. See id. at 327.
On June 13, 2005, the New York Supreme Court granted an injunction to the two Individual Chestnut Ridge Plaintiffs, but dismissed the Four Village Plaintiffs' claims, holding, inter alia, that they lacked standing to raise their claims. See Chestnut Ridge II, 2008 WL 4525753, at *5. On August 14, 2007, the Second Department reversed, holding that (1) the Four Village Plaintiffs had standing to raise their challenges to the ASHL and the CZL under SEQRA and New York General Municipal Law Section 239-m, and that (2) the Village of Wesley Hills had standing to challenge the issuance of the negative declaration regarding YCC's site plan under SEQRA. See Chestnut Ridge I, 841 N.Y.S.2d at 333. The Second Department then remanded the case back to the Supreme Court. See id. at 341.
On December 8, 2009, the New York Supreme Court issued an unpublished decision resolving many of issues raised in the hybrid Article 78 proceeding. See Vill. of Chestnut Ridge v. Town of Ramapo [hereinafter Chestnut Ridge III], No. 16876-2004, at 20 (N.Y.Sup.Ct. Dec. 10, 2009). For example, the Court rejected the challenges to the ASHL based on alleged SEQRA violations. Id. at 3-8. Specifically, the Supreme Court held that Ramapo's "determination to issue a negative declaration was neither arbitrary and capricious nor irrational, and that [Ramapo] identified the relevant areas of environmental concern, took the required `hard look' and provided a reasoned elaboration for its [negative] determination." Id. at 6. The Supreme Court similarly rejected SEQRA-based objections to the CZL adopted by Ramapo. Id. at 8-10. Also rejected were the claims that the ASHL amounted to impermissible spot zoning, id. at 10-12, that the ASHL violated the Municipal Home Rule Law, id. at 13, that the ASHL violated the General Municipal Law, id. at 14, and that the Ramapo Town Board's actions in adopting the ASHL and the CZL were ultra vires, id. at 14-15. However, the Supreme Court held that the Ramapo Town Board had violated SEQRA when it issued the negative declaration as to the Nike Site, specifically noting that the Board had failed to take the required "hard look" at several areas of environmental concern, including the increased density on the character of the surrounding (Wesley Hills) community, the traffic impact of the planned use of the Nike Site, as well as the public sewer and water impacts. Id. at 15-19.
In the instant action, Plaintiffs allege that the filing of the Chestnut Ridge Action was motivated by Defendants' discriminatory animus against Orthodox Jews. (Compl. ¶¶ 71, 104-05.) According to Plaintiffs, "[a]lthough the pretext of the lawsuit is environmental concerns, the goal.. . is to prevent the spread of the Orthodox and Hasidic communities through intimidation." (Id. ¶ 71.) Plaintiffs allege
B. Procedural History
Plaintiffs filed their Complaint in this action on January 8, 2008. (Dkt. No. 1.) On July 7, 2008, Wesley Hills Defendants, New Hempstead Defendants, Chestnut Ridge Defendants, and Montebello Defendants filed a Motion to Dismiss this action pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), and 13(a). (Dkt. No. 31.) On July 8, 2008, Pomona Defendants filed a separate Motion to Dismiss this action pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) (respectively, "Rule 12(b)(1)" and "Rule 12(b)(6)"). (Dkt. No. 35.)
B. Discussion
A. Standard of Review
1. Rule 12(b)(1)
Where, as here, "[a] court [is] presented with a motion to dismiss under both [Federal Rule of Civil Procedure] 12(b)(1) and 12(b)(6)[, it] must decide the jurisdictional question first because a disposition of a Rule 12(b)(6) motion is a decision on the merits, and therefore, an exercise of jurisdiction." Homefront Org., Inc. v. Motz, 570 F.Supp.2d 398, 404 (E.D.N.Y.2008) (internal quotation marks omitted); see also Pettus v. Morgenthau, 554 F.3d 293, 298 (2d Cir.2009) ("[S]tanding . . . is intended to be a threshold issue at least tentatively decided at the outset of the litigation."); Licensing by Paolo, Inc. v. Sinatra (In re Gucci), 126 F.3d 380, 387-88 (2d Cir.1997) ("Whether a claimant has standing is `the threshold question in every federal case, determining the power of the court to entertain the suit.'") (quoting Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)).
Pursuant to Federal Rule of Civil Procedure 12(b)(1), a court must dismiss a claim if it "lacks the statutory or constitutional power to adjudicate it." Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir.2008) (internal quotation marks omitted), cert. granted, ___ U.S. ____, 130 S.Ct. 783, ___ L.Ed.2d ____ (2009). "The plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence." Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir.2005). In deciding a Rule 12(b)(1) motion to dismiss, the Court "`must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff,'" Morrison, 547 F.3d at 170 (quoting Natural Res. Def. Council v. Johnson, 461 F.3d 164, 171 (2d Cir.2006)) (citation and internal quotation marks omitted), but "`jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it,'" id. (quoting APWU v. Potter, 343 F.3d 619, 623 (2d Cir.2003)). In deciding the motion, the court "may consider affidavits and other materials beyond the pleadings to resolve the jurisdictional issue, but [it] may
2. Rule 12(b)(6)
The Supreme Court has held that "[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the `grounds' of his `entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal citations omitted) (second alteration in original). Instead, the Supreme Court has emphasized that "[f]actual allegations must be enough to raise a right to relief above the speculative level," id., and that "once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint," id. at 563, 127 S.Ct. 1955. A plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Id. at 570, 127 S.Ct. 1955. If a plaintiff "ha[s] not nudged [his] claims across the line from conceivable to plausible, [his] complaint must be dismissed." Id.; see also Ashcroft v. Iqbal, ___ U.S. ____, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009) ("Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged— but it has not `show[n]'—'that the pleader is entitled to relief.'" (internal citation omitted) (quoting Fed.R.Civ.P. 8(a)(2)) (alteration in original)).
B. Standing
To satisfy Article III's standing requirements, Plaintiffs must show that (1) they have "suffered an injury in fact that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Pac. Capital Bank, N.A. v. Connecticut, 542 F.3d 341, 350 (2d Cir.2008) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); W.R. Huff Asset Mgmt. Co. v. Deloitte & Touche LLP, 549 F.3d 100, 106-07 (2d Cir.2008), cert. denied, ___ U.S. ____, 129 S.Ct. 2011, 173 L.Ed.2d 1088 (2009). It is the burden of the party invoking federal jurisdiction to establish these three elements. See Lujan, 504 U.S. at 561, 112 S.Ct. 2130. However, "at the pleading stage, standing allegations need not be crafted with precise detail." Baur v. Veneman, 352 F.3d 625, 631 (2d Cir.2003) (citing Lujan, 504 U.S. at 561, 112 S.Ct. 2130).
1. Injury in Fact
To demonstrate an injury in fact, Plaintiffs must allege an "invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent." Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (internal quotation marks and citations omitted); see also Pac. Capital
Mosdos and YCC argue that they have suffered "clear[ ], . . . demonstrable harm" from the delay in their ability to operate Kiryas Radin. (Mem. of Law in Opp. to Defs.' Mot. to Dismiss ("Pls.' Mem.") 11.) The Court agrees. Specifically, Plaintiffs Mosdos and YCC have sufficiently alleged that they personally and actually suffered injury, as they jointly claim an interest in operating Kiryas Radin on the Nike Site, and they have been barred from doing so, despite spending money and undertaking other efforts to complete construction on the Site. (Pls.' Mem. 11.) See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 261-63, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977) (holding that developer had sufficiently alleged an injury in fact where it had contracted to purchase land subject to allegedly exclusionary zoning laws, and "expended thousands of dollars" on its plans and the studies submitted in support of its plans, and where the zoning laws would prevent its plans from moving forward); see also Conn. Zebra Club LLC v. City of Norwalk, No. 99-CV-1624, 1999 WL 1427311, at *3 (D.Conn. Dec. 15, 1999) (holding that plaintiff properly established an "injury in fact sufficient to meet the requirements of standing" where the challenged government action would prohibit the use for which plaintiff had leased property and where plaintiff had already received health, zoning, and building permits and had expended funds to renovate the property for its use). Moreover, Plaintiffs Mosdos and YCC, as parties to the Chestnut Ridge action, have expended (and continue to expend) resources to litigate that case.
Plaintiffs Bernstein and Ambers also have sufficiently alleged an injury in fact, as they allege that they plan to study and live at Kiryas Radin, but are barred from doing so. (Compl. ¶¶ 12-13.) Specifically, based on these allegations and those of Mosdos and YCC, the Court finds that there is a substantial probability that Bernstein and Ambers will be able to live and study at Kiryas Radin if they get the relief they seek. See Vill. of Arlington Heights, 429 U.S. at 264, 97 S.Ct. 555 (concluding that individual who sought to live in planned housing community had sufficiently alleged an injury in fact where he claimed that his efforts to obtain housing in the defendant-village was "thwarted
In contrast, Plaintiffs Aryeh Zaks and Meyer Zaks have failed to allege that they have personally suffered any injury from the delay in Plaintiffs Mosdos's and YCC's ability to operate Kiryas Radin, as required to show an injury in fact. For example, they do not allege that they intend to work, teach, or study at Kiryas Radin. Nor do they allege any other basis for finding that they themselves have been injured personally by the delay in the operation of Kiryas Radin. While both these Plaintiffs generally allege that they are "religious leaders of the [YCC]" (Compl. ¶¶ 10-11), the Court is aware of no authority, and the Plaintiffs have cited none, that confers standing on the leaders of a religious corporation based on the religious corporation's injury. See Alternate Fuels, Inc. v. Cabanas, 538 F.3d 969, 973 (8th Cir.2008) ("[A] corporate officer cannot maintain a personal action against a third party for harm caused to the corporation, unless the officer alleges a direct injury not derivative of the company's injury."); Dore v. Wormley, 690 F.Supp.2d 176, 185-87 (S.D.N.Y.2010) (finding that leader of a religious congregation lacked standing to sue in her personal capacity for misrepresentation and misuse of the congregation's funds because the alleged injuries were suffered by the congregation and not by the plaintiff); see also Yonkers Comm'n on Human Rights v. City of Yonkers, 654 F.Supp. 544, 553-54 (S.D.N.Y.1987) (noting that the chairman of a political commission lacked standing to sue regarding the revocation of the commission's funds when the chairman did not allege any deprivation of his own personal property rights). As Plaintiffs Aryeh Zaks and Meyer Zaks have failed to allege a sufficiently particularized injury in fact, they lack standing to pursue this action, and, accordingly, their claims are dismissed.
2. Causation and Redressability
A plaintiff "satisf[ies] the causation requirement [of Article III] if the complaint `avers the existence of an intermediate link between the . . . [challenged government action] and the injury.'" Pac. Capital Bank, 542 F.3d at 350 (quoting Heldman v. Sobol, 962 F.2d 148, 156 (2d Cir.1992)) (internal brackets omitted). However, a plaintiff need not allege that a defendant's challenged actions were the very last step in a chain of events leading to an alleged injury. See Bennett v. Spear, 520 U.S. 154, 169, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (noting that the "`fairly traceable'" requirement does not demand that "the defendant's actions [be] the very last step in the chain of causation"); Ctr. for Reprod. Law & Policy v. Bush, 304 F.3d 183, 192 (2d Cir.2002) (same). Nevertheless, to show causation, a plaintiff must at least plead facts indicating that a defendant's actions had a "determinative or coercive effect upon the action of someone else" who directly caused the alleged injury. Bennett, 520 U.S. at 169, 117 S.Ct. 1154; see also Ctr. for Reprod.
The redressability requirement demands that there is a "`non-speculative likelihood that the injury can be remedied by the requested relief.'" Coal. of Watershed Towns v. EPA, 552 F.3d 216, 218 (2d Cir.2008) (quoting W.R. Huff, 549 F.3d at 106-07), cert. denied, ___ U.S. ___, 129 S.Ct. 2879, 174 L.Ed.2d 580 (2009). To meet this standard, a plaintiff must allege facts that show that it is "`likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.'" Id. at 218 (quoting Lujan, 504 U.S. at 561, 112 S.Ct. 2130); see also Sprint Commc'ns Co. v. APCC Servs., Inc., 554 U.S. 269, 128 S.Ct. 2531, 2542, 171 L.Ed.2d 424 (2008) ("Th[e] inquiry focuses, as it should, on whether the injury that a plaintiff alleges is likely to be redressed through the litigation . . . ." (emphasis omitted)).
Here, Plaintiffs have sufficiently alleged that their injuries were caused by the pursuit of the Chestnut Ridge Action by Wesley Hills Defendants, Pomona Defendants, Chestnut Ridge Defendants, and Montebello Defendants. For example, Plaintiffs Mosdos and YCC adequately allege that they have been injured by having to expend resources litigating the Chestnut Ridge Action. In addition, the filing of the Chestnut Ridge Action and the resulting issuance of the TRO prevented Kiryas Radin from operating on the Nike Site, thereby causing Plaintiffs' alleged injuries. The redressability requirement of the standing analysis also is met because the injuries allegedly caused by the filing of the Chestnut Ridge Action could be redressed at a minimum through compensatory damages, which Plaintiffs have requested.
To the extent Plaintiffs seek to challenge the Defendant Villages' allegedly discriminatory zoning laws, however, Plaintiffs have not adequately alleged a link between those zoning laws and their claimed injuries. Plaintiffs generally allege that Defendants designed their zoning laws to keep the Orthodox Jewish community out of the Villages. (Compl. ¶¶ 98, 101, 117, 119, 122.) However, Plaintiffs have not alleged that they suffered any injury in fact as a result of Defendants' allegedly discriminatory zoning laws. For example, Plaintiffs have not alleged that they have "a present interest in any . . . property" within the Villages, that they are personally "subject to the [challenged] ordinance[s]," or that they have "been denied a variance or permit by . . . officials" of the Defendant Villages. Warth, 422 U.S. at 504, 95 S.Ct. 2197; see also Regensberger v. City of Waterbury, 04-CV-1900, 2008 WL 3992650, at *7 (D.Conn. Aug. 25, 2008) (holding that plaintiff had not alleged an injury in fact where it had not yet submitted its site plan for review, and, therefore, it had not been "adversely affected" by the law). Nor have Plaintiffs alleged that they have concrete plans to take any action within the Defendant Villages that would subject them to the Villages' zoning laws in the immediate future. Cf. Vill. of Arlington Heights, 429 U.S. at 264, 97 S.Ct. 555 (holding that plaintiffs sufficiently alleged an injury where plaintiff-developer had contracted to purchase land subject to those zoning policies and there was a particular non-speculative project planned); ACORN, 2006 WL 2053732, at *11 (holding that plaintiffs had alleged an injury in fact where plaintiff-developer had concrete plans to build on a site that was subject to allegedly exclusionary zoning laws). Plaintiffs argue that they have standing to challenge the allegedly discriminatory zoning laws of the Defendant Villages because the "claim of standing to interfere in projects outside [the Defendant Villages'] borders was partially accepted by the Appellate Division in Chestnut Ridge." (Pls.' Mem. 12.) Contrary to Plaintiffs' argument, however, the Chestnut Ridge Plaintiffs' standing to pursue the Chestnut Ridge Action under SEQRA and the New York General Municipal Law against Ramapo and the developers of the Nike Site is irrelevant to Plaintiffs' standing to pursue all of their claims in this case. See generally DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006) ("[Parties] must demonstrate standing for each claim [they] seek[ ] to press.").
Also, nothing in Plaintiffs' Complaint suggests that the Villages' zoning
Plaintiffs Mosdos, YCC, Bernstein, and Ambers therefore have standing to pursue their claims against Wesley Hills Defendants,
C. Failure to Allege Compulsory Counterclaims
Defendants argue that Plaintiffs Mosdos and YCC are barred from pursuing their claims against the Village Defendants because those claims should have been filed as compulsory counterclaims in the Chestnut Ridge Action under Federal Rule of Civil Procedure 13 ("Rule 13"). For the following reasons, this Court agrees. Plaintiffs Mosdos and YCC filed their Answer in the Chestnut Ridge Action on October 19, 2007, three days after Mosdos removed the case to federal court. See Answer and Counterclaims, Chestnut Ridge II (S.D.N.Y. Oct. 19, 2007). Because Plaintiffs Mosdos and YCC submitted their answer while the case was pending in federal court, they were "required to set up [their] defenses and compulsory counterclaims, if any, subject to the terms and exceptions of Rule 13." Donnkenny, Inc. v. Nadler, 544 F.Supp. 166, 169 (S.D.N.Y.1982); see also Fed. R.Civ.P. 81(c) (stating that the Federal Rules of Civil Procedure govern after removal); Sage Realty Corp. v. Ins. Co. of N. Am., 34 F.3d 124, 129 (2d Cir.1994) (holding that Rule 13, and not New York law, governed the counterclaims in a case removed to Federal court). Rule 13(a)(1)(A) provides that:
Fed.R.Civ.P. 13(a)(1)(A). "[A]n absolute identity of factual backgrounds" is not required to render a counterclaim compulsory. Jones v. Ford Motor Credit Co., 358 F.3d 205, 209 (2d Cir.2004) (quoting United States v. Aquavella, 615 F.2d 12, 22 (2d Cir.1979)); see also MMZ Assocs., Inc. v. Gelco Corp., No. 06-CV-3414, 2006 WL 3531429, at *3 (S.D.N.Y. Dec. 8, 2006) ("Although this action and the Minnesota Action are not identical, combining the actions will serve the interest of judicial economy by preventing likely duplication of effort."). Rather, "[a] claim is compulsory if a logical relationship exists between the claim and the counterclaim and if the essential facts of the claims are so logically connected that considerations of judicial economy and fairness dictate that all the issues be resolved in one lawsuit." Critical-Vac Filtration Corp. v. Minuteman Int'l, Inc., 233 F.3d 697, 699 (2d Cir.2000) (internal emphasis, brackets, and quotation marks omitted); see also Jones, 358 F.3d at 209 (noting that a claim is compulsory if it "`arises out of the transaction or occurrence that is the subject matter of the opposing party's claim[,]' . . . and [the Second] Circuit has long considered this standard met when there is a logical relationship between the counterclaim and the main claim" (quoting Fed.R.Civ.P. 13(a)(1)(A))); E.E.O.C. v. Amertac Holdings Inc., No. 03-CV-6128, 2007 WL 3165796, at *3 (S.D.N.Y. Oct. 10, 2007) ("[T]his standard [is] met when there is a logical relationship between the counterclaim and the main claim." (internal quotation marks omitted)). "If a party has a compulsory counterclaim and fails to plead it, the claim cannot be raised in a subsequent
Here, the claims asserted by Plaintiffs Mosdos and YCC were compulsory counterclaims that should have been raised (and, indeed, some were raised) as counterclaims in the Chestnut Ridge Action. In the Chestnut Ridge Action, the Defendant Villages claimed that Ramapo's enactment of the ASHL and the CZL violated various statutory and constitutional provisions and that the Ramapo Planning Board failed to comply with SEQRA in connection with YCC's site plan application. In their counterclaims in the Chestnut Ridge Action ("Chestnut Ridge counterclaims"), Plaintiffs Mosdos and YCC alleged the same factual background that forms the basis for this action—namely, in sum, that the operation of Kiryas Radin on the Nike Site is critical to Plaintiffs' religious practice, that the Villages have historically exhibited discriminatory animus against the Orthodox and Hasidic Jewish community, that Defendants mounted a racially-charged campaign to prevent Ramapo's enactment of the ASHL and CZL, and that after the enactment of the ASHL and CZL, the Four Village Plaintiffs filed the Chestnut Ridge Action out of discriminatory animus toward the Orthodox and Hasidic Jewish community. Defs.' Answer and Counterclaims ¶¶ 333-36, Chestnut Ridge II (S.D.N.Y. Oct. 19, 2007) (alleging that construction and operation of a rabbinical college on the Nike Site is critical to the religious practice of the Orthodox Jewish community); id. ¶¶ 337-42 (alleging that the Villages surrounding Ramapo incorporated in order to discriminate against the Orthodox Jewish community); id. ¶¶ 343-62 (explaining the background of Ramapo's adoption of its CZL and ASHL); id. ¶¶ 363-64 (alleging that Defendants had illicit motives in filing the Chestnut Ridge Action). Of particular relevance here, the Chestnut Ridge counterclaims alleged that in "fil[ing] suit to stop the promulgation of the [ASHL]," the Villages'"pretext . . . [was] environmental concerns, [but] the goal of the Village[s] [was] to prevent the spread of the Orthodox and Hasidic communities through intimidation." Id. ¶ 363. The Chestnut Ridge counterclaims also alleged that "[t]he Villages' challenge to [Ramapo's] Recent Enactments, which are set forth in the instant lawsuit, was designed to create a forum to impede the development of Mosdos's Real Property through the use of the judicial process." Id. ¶ 367. Based on these factual allegations, Plaintiffs Mosdos and YCC asserted claims for injunctive relief under § 1983 for violations of the Free Speech and Free Assembly Clauses of the First and Fourteenth Amendments, RLUIPA, and the FHA. See id. ¶¶ 369, 373, 377, 381, 385-86. Based on the same factual allegations, Plaintiffs in this action have alleged claims under §§ 1982, 1983 and 1985 for violations of the Free Exercise and the Free Assembly Clauses of the First and Fourteenth Amendments, the Equal Protection Clause of the Fourteenth Amendment, RLUIPA, the FHA, the New York State Constitution, Article I, §§ 3 & 11, and New York Civil Rights Law Section 40-c, and they seek injunctive and compensatory relief.
The Second Circuit addressed a parallel factual scenario in Critical-Vac. See 233 F.3d at 700. In that case, the defendant, Minuteman, had previously filed suit against the plaintiff, Critical-Vac, for patent infringement. Id. at 698. After successfully defeating that action by showing that Minuteman's re-issue patent was fraudulently obtained, Critical-Vac filed suit against Minuteman, alleging that Minuteman engaged in antitrust violations by, inter alia, engaging in a sham litigation by filing the first action based on the fraudulently-obtained re-issue patent. Id. at 699. The Second Circuit affirmed the dismissal
Here, Plaintiffs allege that the Chestnut Ridge Action was a pretext for illegal actions by the Village Defendants. As in Critical-Vac, the question of whether the Chestnut Ridge Action is a mere pretext for illegal action is one that is logically intertwined with the validity of the Village Defendants' legal claims. Because the validity of these claims will be determined in the Chestnut Ridge Action, the "essential facts of the[se] claims are so logically connected that considerations of judicial economy and fairness dictate that all the issues should be resolved in one lawsuit." Id. at 699 (internal quotation marks and emphasis omitted). Also, as in Critical-Vac, Plaintiffs "ha[ve] not now alleged any facts that arose after the filing of its answer in the [first] litigation." Id. at 700. Indeed, "all these facts were not only known to [Plaintiffs], they were pleaded in the first action." Id. (internal quotation marks and brackets omitted). Thus, Plaintiffs Mosdos and YCC were required to raise their claims against the Village Defendants as compulsory counterclaims in the Chestnut Ridge Action. Accordingly, those claims are hereby dismissed.
A slightly different question arises with regard to Individual Defendants because these Defendants were not parties to the Chestnut Ridge Action. The answer turns on whether Individual Defendants, sued in their personal or official capacities, could be considered "opposing parties" within the meaning of Rule 13(a). The Court recognizes that the plain language of Rule 13(a) applies only to "opposing parties." See Fed.R.Civ.P. 13(a)(1) ("A pleading must state as a counterclaim any claim that . . . the pleader has against an opposing party . . . ." (emphasis added)); see also HID Global Corp. v. Leighton, No. 07-CV-1972, 2007 WL 3566705, at *3 (N.D.Ohio Nov. 15, 2007) (allowing plaintiff to pursue claim against defendant who was "not an `opposing party' within the plain meaning of Rule 13(a)"). The Second Circuit has extended the meaning of "opposing party" to encompass entities that are "one and the same for the purposes of th[e] litigation," such as when the nonparty "acted as one" with the party that appeared in the previous action. Banco Nacional de Cuba v. First Nat'l City Bank of N.Y., 478 F.2d 191, 193 (2d Cir.1973) (finding that the Cuban government and its national bank acted as one entity for purposes of the litigation (internal quotation marks omitted)); accord Transamerica Occidental Life Ins. Co. v. Aviation Office of Am., Inc., 292 F.3d 384, 391 (3d Cir.2002) (noting that an unnamed party could be considered an "opposing party" for purposes of Rule 13 if it was "functionally equivalent" as the named party, controlled the previous litigation, or was "the alter ego of the named party"); Peaktop Techs. (USA), Inc. S'holder Derivative Litig. v. Peaktop Int'l Holdings Ltd., No. 06-CV-8228, 2007 WL 700826, at *2-3 (S.D.N.Y. Mar. 6, 2007) (holding that claims against defendants who were not parties to the previous lawsuit were barred as compulsory counterclaims when, as a wholly-owned subsidiary, the defendant represented the "same interests" as the entity that was a party to the previous lawsuit).
However, Defendants have asserted no argument, and the Court can think of none, supporting the proposition that the Individual Defendants, sued in their individual capacities, would be "functionally equivalent" to or "one and the same" as the Village Defendants. Indeed, the Second Circuit has recently noted that when a plaintiff sues in one capacity, a defendant may not assert a compulsory counterclaim against that plaintiff in a different capacity. DEF v. ABC, No. 08-CV-4908, 366 Fed.Appx. 250, 253, 2010 WL 567336, at *2 (2d Cir. Feb. 18, 2010) (upholding dismissal of counterclaim brought against plaintiff in its "regulatory capacity" because the plaintiff, in this capacity, did not qualify as an opposing party under Rule 13 when plaintiff sued in "its capacity as assignee"); see also Banco National de Cuba v. Chase Manhattan Bank, 658 F.2d 875, 885 (2d Cir.1981) (holding that under the opposing party requirement, "when a plaintiff has brought suit in one capacity, the defendant may not counterclaim against [the plaintiff] in another capacity"). In sum, the Court declines to stretch the meaning of "opposing party" that far. See GIA-GMI, LLC v. Michener, No. 06-CV-7949, 2007 WL 1655614, at *4 (N.D.Cal. June 7, 2007) ("To accept the expansive definition of the term [opposing party] . . . would erode [Rule 13's] clarity to the point that litigants would simply have to guess in each individual case whether a court would determine that a potential defendant to a counterclaim is an `opposing party.'"); Sony Fin. Servs., LLC v. Multi Video Group, Ltd., No. 03-CV-1730, 2003 WL 22928602, at *4-5 (S.D.N.Y. Dec. 12, 2003) ("Unless defendants have clear notice as to what entities constitute an `opposing party' under Rule 13, there is a danger that these defendants will later be unwittingly barred from asserting otherwise valid claims."), adopted by 2004 WL 194027 (S.D.N.Y. Feb. 2, 2004). Because the Individual Defendants, in their personal capacities, were not opposing parties in the Chestnut Ridge Action, Plaintiffs (including Mosdos and YCC) are not barred from bringing their claims against these Defendants. See HID Global, 2007 WL 3566705, at *3 (denying defendant's motion to dismiss on Rule 13(a) grounds when defendant was not an opposing party to the previous litigation); First African Trust Bank, Ltd. v. Bankers Trust Co., No. 94-CV-4995, 1995 WL 422269, at *2 (S.D.N.Y. July 14, 1995) (finding that plaintiff's claim was not barred by the compulsory counterclaim
In sum, Mosdos and YCC are barred by Rule 13 from bringing their claim regarding the filing of the Chestnut Ridge Action against the Village Defendants and the Individual Defendants as sued in their official
D. The First Amendment Right to Petition and the Noerr-Pennington Doctrine
Defendants argue that their pursuit of the Chestnut Ridge Action was protected by the First Amendment right to petition, and therefore, it cannot serve as a basis for liability on any of Plaintiffs' claims. The First Amendment provides that the government cannot abridge the right of the people to "petition the Government for a redress of grievances." U.S. Const. amend 1. The Supreme Court has made clear that the "right to petition [is] one of `the most precious of liberties safeguarded by the Bill of Rights.'" BE & K Constr. Co. v. Nat'l Labor Relations Bd., 536 U.S. 516, 524, 122 S.Ct. 2390, 153 L.Ed.2d 499 (2002) (quoting United Mine Workers of Am. v. Ill. State Bar Ass'n, 389 U.S. 217, 222, 88 S.Ct. 353, 19 L.Ed.2d 426 (1967)).
Among other things, the right to petition protects "[t]he rights to complain to public officials and to seek administrative and judicial relief." Gagliardi v. Vill. of Pawling, 18 F.3d 188, 194 (2d Cir.1994); accord Citizens United v. Fed. Election Comm'n, ___ U.S. ___, 130 S.Ct. 876, 907, ___ L.Ed.2d ____ (2010) (noting that the First Amendment "protects the right . . . to petition legislative and administrative bodies" (internal quotation mark omitted)). "A lawsuit can be a form of constitutionally protected petition for the redress of grievances." Creek v. Vill. of Westhaven, 80 F.3d 186, 192 (7th Cir.1996); see also Cal. Motor Transp. Co. v. Trucking Unlimited., 404 U.S. 508, 510, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972) ("The right of access to the courts is indeed but one aspect of the right to petition."); United States v. Robinson, No. 92-CV-345, 1995 U.S. Dist. LEXIS 22327, at *11-12 (D.Conn. Jan. 26, 1995) ("The filing of a complaint in court is a form of petitioning activity protected by the First Amendment."). As the Supreme Court has emphasized, however, not every lawsuit is entitled to the same degree of First Amendment protection. See, e.g., BE & K Constr. Co., 536 U.S. `at 530-33, 122 S.Ct. 2390 (noting that baseless litigation receives less protection under the First Amendment); Prof'l Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 56, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993) (noting that antitrust liability can be based on the filing of a "sham" lawsuit); Bill Johnson's Rests., Inc. v. Nat'l Labor Relations Bd., 461 U.S. 731, 743, 103 S.Ct. 2161, 76 L.Ed.2d 277 (1983) (holding that "baseless litigation is not immunized by the First Amendment right to petition.").
To determine whether the Chestnut Ridge Action constitutes protected activity, the Court also has considered the applicability of the Noerr-Pennington doctrine. The Noerr-Pennington doctrine derives from two antitrust cases decided by the Supreme Court, and is rooted in First Amendment principles. See E. R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 136, 81 S.Ct. 523,
The Second Circuit has yet to decide whether "the Noerr-Pennington doctrine.. . must be applied mechanically in cases outside the antitrust area." Robinson, 1995 U.S. Dist. LEXIS 22327, at *21; see also T.F.T.F. Capital Corp., 312 F.3d at 94 (considering whether Noerr-Pennington immunity barred suit for tortious interference, but deciding that plaintiff failed to state a claim for tortious interference); Primetime 24 Joint Venture v. Nat'l Broad. Co., 219 F.3d 92, 100 (2d Cir.2000) (noting that courts have "extended Noerr-Pennington to encompass concerted efforts incident to litigation," including "threat letters," and that Noerr-Pennington applies to "good faith litigation to protect a valid copyright"); Hirschfeld v. Spanakos, 104 F.3d 16, 19 (2d Cir.1997) (declining to decide whether "the Noerr-Pennington] immunity doctrine extends to non-commercial litigation" in a case alleging violations of § 1983); Suburban Restoration Co. v. ACMAT Corp., 700 F.2d 98, 100-102 (2d Cir.1983) (noting that "whether the Noerr-Pennington doctrine is mandated by the United States Constitution" has not been "definitively resolved by the Supreme Court" or squarely addressed by the Second Circuit). However, the Second Circuit has acknowledged that the doctrine is "an application of the [F]irst [A]mendment," Suburban Restoration Co., 700 F.2d at 101, and courts within the Second Circuit have held that it is therefore "relevant outside the context of antitrust actions," Friends of Rockland Shelter Animals, Inc. v. Mullen, 313 F.Supp.2d 339, 343 (S.D.N.Y.2004) (applying Noerr-Pennington doctrine where plaintiff claimed that "the defendant tortiously interfered with a prospective business advantage by lobbying a governmental entity"); see also In re DDAVP Direct Purchaser Antitrust Litig., 585 F.3d 677, 685-86 (2d Cir.2009) (noting that under Noerr-Pennington, "citizen petitions are immune from antitrust liability in light of the First Amendment"); Miracle Mile Assocs. v. City of Rochester, 617 F.2d 18, 21 (2d Cir.1980) (noting "the First Amendment protections which underlie the Noerr-Pennington doctrine"); Jackson Hill Road Sharon CT, LLC v. Town of Sharon, 561 F.Supp.2d 240, 245 (D.Conn. 2008) ("Despite its antitrust origins, the [Noerr-Pennington] doctrine has been held to protect the exercise of a defendant's First Amendment rights even when such action would normally constitute tortious interference."); Tuosto v. Philip Morris USA Inc., No. 05-CV-9384, 2007 WL 2398507, at *5 (S.D.N.Y. Aug. 21, 2007) ("Noerr-Pennington has also been applied to bar liability in state common law tort claims, including negligence and products liability claims, for statements
The Second Circuit also has yet to address whether the Noerr-Pennington analysis applies to claims alleging civil rights violations, and courts within this Circuit have not reached consensus on this issue. Compare Weiss v. Willow Tree Civic Ass'n, 467 F.Supp. 803, 818-19 (S.D.N.Y.1979) (applying the reasoning of Noerr-Pennington to claims under §§ 1982, 1983, and 1985, and holding that state lawsuit filed by individual defendants was protected by the right to petition), with LeBlanc-Sternberg v. Fletcher, 781 F.Supp. 261, 267 (S.D.N.Y.1991) ("To allow individuals to avail themselves of [F]irst [A]mendment protections when it is alleged that their conduct will lead to official misconduct in violation of the United States Constitution would defeat the purpose of the civil rights laws.").
However, outside the Second Circuit, the majority of circuit courts have embraced the view that the Noerr-Pennington doctrine and related First Amendment protections bar liability for alleged violations of the civil rights laws. See, e.g., Kearney v. Foley & Lardner, LLP, 590 F.3d 638, 644-45 (9th Cir.2009) (holding that government entity's lawsuit was protected by Noerr-Pennington doctrine in § 1983 action); New W., L.P. v. City of Joliet, 491 F.3d 717, 722 (7th Cir.2007) (noting that "Noerr-Pennington has been extended beyond the antitrust laws, where it originated, and is today understood as an application of the [F]irst [A]mendment's speech and petitioning clauses" and applying the doctrine to a § 1983 claim); Sanghvi v. City of Claremont, 328 F.3d 532, 543 (9th Cir.2003) (applying Noerr-Pennington immunity to bar retaliation claims under § 1983 and the FHA); Herr v. Pequea Twp., 274 F.3d 109, 119 (3d Cir.2001) (holding that Noerr-Pennington doctrine applies to municipality and affirming dismissal of § 1983 claim), abrogated on other grounds by United Artists Theatre Circuit, Inc. v. Twp. of Warrington, 316 F.3d 392 (3d Cir.2003); Bayou Fleet, Inc. v. Alexander, 234 F.3d 852, 860 (5th Cir.2000) (noting that Noerr-Pennington is a valid defense to § 1983 claims); Manistee Town Ctr. v. City of Glendale, 227 F.3d 1090, 1093 (9th Cir.2000) (holding that Noerr-Pennington immunity barred a suit under § 1983, noting that the "principle that led the Supreme Court to adopt the immunity principle in Noerr is equally applicable to the petitioning" at issue in that case); Tarpley v. Keistler, 188 F.3d 788, 796 (7th Cir.1999) (applying rationale of Noerr-Pennington to claims under § 1983, and noting that "Section 1983 claims, as much as the antitrust laws, are not appropriate vehicles for proscribing traditional political activity . . . ."); Eaton v. Newport Bd. of Educ., 975 F.2d 292, 298 (6th Cir.1992) ("Under the Noerr-Pennington doctrine, liability may not be assessed under § 1983 or the anti-trust laws except in very limited circumstances, for actions taken when petitioning authorities to take official action, regardless of the motives of the petitioners . . . ."); Video Int'l Prod., Inc. v. Warner-Amex Cable Commc'ns, Inc., 858 F.2d 1075, 1084 (5th Cir.1988) ("[W]e hold that any behavior by a private party that is protected from antitrust liability by the Noerr-Pennington doctrine is also outside the scope of section 1983 liability."); Gorman Towers, Inc. v. Bogoslavsky, 626 F.2d 607, 615 (8th Cir. 1980) (holding that Noerr-Pennington immunizes "defendants from section 1983 liability for their conduct . . ., which consisted
The Court concurs with the view of the majority of circuit courts that the framework of the Noerr-Pennington doctrine can be applied in the context of civil rights actions. In developing the Noerr-Pennington doctrine, the Supreme Court sought to protect conduct that falls within the ambit of the First Amendment right to petition, "regardless of intent or purpose" behind that conduct, so long as that conduct does not constitute sham activity. Pennington, 381 U.S. at 670, 85 S.Ct. 1585; see also Prof'l Real Estate Investors, 508 U.S. at 58, 113 S.Ct. 1920 ("Our decisions [] establish that the legality of objectively reasonable petitioning directed toward obtaining governmental action is not at all affected by any [ ] purpose [behind the petitioning.]" (internal quotation marks omitted)); Cal. Motor Transp. Co., 404 U.S. at 512, 92 S.Ct. 609 ("The nature of the views pressed does not, of course, determine whether First Amendment rights may be invoked . . . ."); accord Eaton, 975 F.2d at 298 ("A citizen's right to petition is not limited to goals that are deemed worthy . . . ."). Put differently, the First Amendment interest in protecting legitimate petitioning activity is no less important just because of the subject matter, content, or viewpoint of the petition. See Cal. Motor Transp. Co., 404 U.S. at 511, 92 S.Ct. 609 ("`The right of petition is one of the freedoms protected by the Bill of Rights, and we cannot, of course, lightly impute to Congress an intent to invade these freedoms.'" (quoting Noerr, 365 U.S. at 138, 81 S.Ct. 523)); N.A.A.C.P. v. Button, 371 U.S. 415, 444-45, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963) ("[T]he Constitution protects expression and association without regard to the race, creed, or political or religious affiliation of the members of the group which invokes its shield, or to the truth, popularity, or social utility of the ideas and beliefs which are offered."); Weiss, 467 F.Supp. at 817 (holding that the First Amendment right to petition protected defendants' petitioning activities, noting "[t]he protection of the First Amendment does not depend on `motivation'"). Of course, claims filed in the civil rights context also seek to protect important constitutional and statutory rights—in this case, the right to be free from racial and religious discrimination and the right to the free exercise of religion and association. However, a plaintiff's assertion, for example, of a violation of his or her constitutional right to be free from discrimination does not by itself strip a defendant of its First Amendment right to petition. See Creek, 80 F.3d at 192 ("[O]dd as it may seem, a racial motivation, to the extent that it lent an ideological hue to the lawsuit, could actually strengthen the case for regarding it as a form of petition for redress of grievances or as an exercise of freedom of speech."); Video Int'l Prod., Inc., 858 F.2d at 1084 (noting that allowing liability under § 1983 for legitimate petitioning activity "`would effectively cast a cloud over a
Of course, even the Noerr-Pennington doctrine does not grant unlimited license to those who wish, for allegedly discriminatory reasons, to exercise their right to petition. Indeed at its origin, Noerr-Pennington immunity extends only to activities (including litigation) that are not "`a mere sham to cover . . . an attempt to interfere directly with the business relationships of a competitor.'" Prof'l Real Estate Investors, 508 U.S. at 56, 113 S.Ct. 1920 (alteration in original) (internal quotation mark omitted); see also T.F.T.F. Capital Corp., 312 F.3d at 93 ("There exists, however, an exception to the Noerr[-]Pennington doctrine for `sham' litigation."). As the Supreme Court emphasized in Bill Johnson's Restaurants, "sham litigation by definition does not involve a bona fide grievance, [and] it does not come with the [F]irst [A]mendment right to petition. Just as false statements are not immunized by the First Amendment right to freedom of speech, baseless litigation is not immunized by the First Amendment right to petition." 461 U.S. at 743, 103 S.Ct. 2161 (internal citations and footnotes omitted). A lawsuit falls within the "sham exception" to the Noerr-Pennington immunity doctrine where "the litigation is (1) `objectively baseless' and (2) intended to cause harm to the defendant `through the use of governmental process—as opposed to the outcome of that process.'" T.F.T.F. Capital Corp., 312 F.3d at 93 (quoting Prof'l Real Estate Investors, 508 U.S. at 60-61, 113 S.Ct. 1920) (brackets and emphasis omitted).
While the framework prescribed by Noerr-Pennington mirrors the First Amendment right to bring a viable lawsuit regardless of the underlying motivation, it also preserves the ability of those injured by such conduct to protect their constitutional or statutory rights when an objectively baseless lawsuit is brought, particularly when the lawsuit involves unlawful or discriminatory motivation. In contrast, denying such protection to any viable lawsuit, initiated even for allegedly improper reasons, would unnecessarily undermine First Amendment principles. See Video Int'l Prod., Inc., 858 F.2d at 1084 ("[If] [F]irst [A]mendment petitioning could be challenged in the section 1983 context as a denial of equal protection, . . . [or] a [F]irst [A]mendment violation, or other constitutional claim, [it would] vitiat[e] Noerr-Pennington protection."); David K. Godschalk, Protected Petitioning or Unlawful Retaliation? The Limits of First Amendment Immunity for Lawsuits Under the Fair Housing Act, 27 Pepp. L.Rev. 477, 516 (2000) (discussing the appropriate standard in determining whether to impose liability under the FHA for constitutionally protected petitioning activity, noting "[a] purely intent-based standard could prove unsupportable because it would fail to give sufficient deference to the state interest in hearing legitimate grievances concerning the application of its laws"); see generally BE & K Constr. Co., 536 U.S. at 531-32, 122 S.Ct. 2390 (noting that the protections of the First Amendment right to petition do not hinge on whether
While Noerr-Pennington immunity can restrict civil rights claims based on a defendant's petitioning activity, the applicability of the Noerr-Pennington doctrine to the instant case is further complicated because Plaintiffs challenge the conduct of municipal actors (in addition to the Individual Defendants sued in their individual capacities). The Supreme Court has yet to decide whether or to what degree government actors are protected by the First Amendment, let alone whether such a right includes petitioning the courts. See United States v. Am. Library Ass'n, 539 U.S. 194, 212, 123 S.Ct. 2297, 156 L.Ed.2d 221 (2003) (declining to decide the question of whether government entities have First Amendment rights). The Second Circuit, however, has conferred some degree of protection to government petitioning activity under the Noerr-Pennington doctrine. In Miracle Mile, the Second Circuit held that the Noerr-Pennington doctrine immunized the City of Rochester and certain of its officials from liability for antitrust violations for their use of administrative proceedings under SEQRA to block use of certain property, noting that these defendants' motivation in such petitioning "does not eradicate the First Amendment protections which underlie the Noerr-Pennington doctrine." 617 F.2d at 20-21. Because Miracle Mile was decided in the traditional Noerr-Pennington context, however, it is unclear whether, in the Second Circuit, Noerr-Pennington protection for municipalities applies outside the antitrust context and to what degree the First Amendment right to petition extends to government actors.
However, a more explicit recognition of a municipality's First Amendment right to
In concluding that Noerr-Pennington and the First Amendment right to petition protect government actors, the Ninth Circuit has emphasized the representative
Manistee Town Ctr., 227 F.3d at 1093; see also Mariana, 338 F.3d at 200 (noting that "[g]overnmental petitioning is as crucial to the modern democracy as is that of private parties"); Herr, 274 F.3d at 120 (noting that when petitioning, "a township and its supervisors represent their constituents and facilitate their participation in the government process," and that a contrary rule would leave a townships' citizens "without a voice in important matters"). A similar view was expressed by Judge Weinstein in LILCO:
LILCO, 710 F.Supp. at 1390. These considerations are relevant to the instant case given the Village Defendants' pursuit of claims under General Municipal Law § 239-m and SEQRA, as these provisions of state law confer municipalities with the ability to petition in this manner. Indeed, as the Second Department emphasized in affirming Village Defendants' standing to pursue the Chestnut Ridge Action, General Municipal Law § 239-m exists to "`bring pertinent inter-community and countywide planning, zoning, site plan and subdivision considerations to the attention of neighboring municipalities and agencies having jurisdiction' [and] . . . to facilitate regional review of land use proposals that may be of regional concern." Chestnut Ridge I, 841 N.Y.S.2d at 334 (quoting N.Y. Gen. Mun. Law § 239-m) (internal citation omitted). Likewise, SEQRA "specifically protect[s]" community character, and therefore the Second Department held that municipalities may sue "to protect their unique governmental authority to define their community character." Id. at 338-39. Thus, by pursuing litigation under these statutes, a municipality acts in its representative capacity to protect the interests of its local community. See Chestnut Ridge I, 841 N.Y.S.2d at 338 ("[A] municipality is more than the collection of pavement, pipes, and other improvements that make up its infrastructure[;].. . through the exercise of [its] powers . . . [it] define[s] the character of the community for the benefit of its residents.").
As explained, the fact that speech is allegedly motivated by or may have overtones of discriminatory animus does not generally strip away the speaker's First Amendment rights. See Creek, 80 F.3d at 192 (noting that a racially motivated lawsuit may still be protected as an exercise of free speech).
For example, a government actor may not be entitled to the full measure of First Amendment protection in the face of claims that it engaged in "selective" petitioning in violation of the Equal Protection Clause. Such a claim is akin to a selective enforcement claim, in which a plaintiff alleges that an otherwise valid law has been selectively enforced against him, but not against others similarly situated, based on impermissible factors. See Zahra v. Town of Southold, 48 F.3d 674, 683-84 (2d Cir. 1995) (explaining that the Equal Protection Clause bars government actors from singling out individuals or groups for selective treatment based on discriminatory motives, even when government actors are enforcing otherwise valid laws); LeClair, 627 F.2d at 609-10 (same); cf. United States v. Al Jibori, 90 F.3d 22, 25 (2d Cir.1996) (noting that while prosecutors retain "broad discretion" to enforce criminal laws, the Constitution prohibits a prosecutor from bringing charges based on" `an unjustifiable standard such as race, religion, or other arbitrary classification' "(quoting Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962)) (internal quotation marks omitted)).
However, in light of the Second Circuit's willingness to extend Noerr-Pennington protection to government actors in Miracle Mile, and given the other decisions within and outside the Second Circuit described above, the Court is persuaded that government actors are afforded some measure of protection under the Noerr-Pennington doctrine and the First Amendment to petition when they
None of this is changed by the subsequent decision by the New York Supreme Court to dismiss some of the Villages' claims regarding the ASHL and the CZL. See Hartford Life Ins. Co. v. Variable Annuity Life Ins. Co., 964 F.Supp. 624, 627 (D.Conn.1997) ("A losing lawsuit ... must not lead the reviewing court to `engage in post hoc reasoning by concluding that an ultimately unsuccessful action must have been unreasonable or without foundation.' "(quoting Prof. Real Estate Investors, 508 U.S. at 60 n. 5, 113 S.Ct. 1920) (internal quotation marks omitted)). Nothing about the New York Supreme Court's recent decision suggested that the Villages' claims that were dismissed were,
As noted above, however, the actions of municipalities in undertaking litigation must also be consistent with the Constitution. Thus, as relevant here, municipal officials may not pursue even potentially meritorious claims if they do so in a discriminatory fashion. One way that discrimination could be established, as discussed, is for Plaintiffs to demonstrate that the Village Defendants were improperly selective in litigating to protect their interests. To establish such a claim, Plaintiffs must allege that "(1) ... compared with others similarly situated, [they were] selectively treated, and (2) the selective treatment was motivated by an intention to discriminate on the basis of impermissible considerations, such as race or religion, to punish or inhibit the exercise of constitutional rights, or by a malicious or bad faith intent to injure the person." Zahra, 48 F.3d at 683 (internal quotation marks omitted); see also Miner v. Clinton County, 541 F.3d 464, 474 (2d Cir.2008), cert. denied, ___ U.S. ___, 129 S.Ct. 1625, 173 L.Ed.2d 996 (2009). "`A plaintiff generally must satisfy both elements to establish a claim of selective enforcement.' "Washpon v. Parr, 561 F.Supp.2d 394, 409 (S.D.N.Y.2008) (quoting LaTrieste Rest. v. Vill. of Port Chester, 188 F.3d 65, 70 (2d Cir.1999)). While Plaintiffs have alleged that Defendants had improper motives in pursuing the Chestnut Ridge Action, Plaintiffs have not sufficiently alleged that they were treated differently than others similarly situated. See Deegan v. City of Ithaca, 444 F.3d 135, 146 (2d Cir.2006) (explaining that to prove a selective enforcement claim, plaintiff must show that others similarly situated were treated differently); LaTrieste Rest., 188 F.3d at 70 (noting that a plaintiff "ordinarily cannot establish an equal protection violation unless it shows that the Village consciously applied a different standard of enforcement to similarly situated establishments"); Prasad v. City of New York, No. 08-CV-3818, 2009 WL 1119412, at *4 (S.D.N.Y. Apr. 24, 2009) ("Where `a plaintiff seeks to prove selective prosecution on the basis of race, he must show that similarly situated individuals of a different race were not prosecuted.'") (quoting Brown v. City of Oneonta, 221 F.3d 329, 337 (2d Cir.2000)).
Here, Plaintiffs only allege that
Thus, as currently alleged, the Court finds that Plaintiffs have not made out a claim that defeats Defendants' qualified immunity, as defined here, under the Noerr-Pennington doctrine and the First Amendment, to prosecute the Chestnut Ridge Action. Accordingly, the Noerr-Pennington doctrine and the First Amendment right to petition bar Plaintiffs from pursuing claims against Defendants for their filing of the Chestnut Ridge Action.
III. Conclusion
For the reasons discussed above, Defendants' Motions to Dismiss are granted without prejudice. The Clerk of Court is respectfully directed to terminate the pending Motions (Dkt. Nos. 31 and 35).
SO ORDERED.
FootNotes
Likewise, Plaintiffs Mosdos, Bernstein, Ambers are barred from pursuing these claims, as these Plaintiffs constitute persons in privity with YCC. "Res judicata [] bar[s] non-parties to earlier litigation . . . when the interests involved in the prior litigation are virtually identical to those in later litigation." Chase Manhattan Bank, N.A. v. Celotex Corp., 56 F.3d 343, 345 (2d Cir.1995). "Under New York and federal law, concepts summarized by the term privity are looked to as a means of determining whether the interests of the party against whom claim preclusion is asserted were represented in prior litigation." Id. "Under New York State law, the term `privity' includes `those who are successors to a property interest, those who control an action although not formal parties to it, those whose interests are represented by a party to the action, and possibly coparties to a prior action.'" Kesten v. E. Sav. Bank, No. 07-CV-2071, 2009 WL 303327, at *5 (E.D.N.Y. Feb. 9, 2009) (quoting Ferris v. Cuevas, 118 F.3d 122, 126 (2d Cir.1997) (internal quotation marks omitted)). These categories of relationships are not exhaustive, however, as "`[t]here is no bright line rule' as to whether privity exists for res judicata purposes." Akhenaten v. Najee, LLC, 544 F.Supp.2d 320, 328 (S.D.N.Y.2008) (quoting Amalgamated Sugar Co. v. NL Indus., Inc., 825 F.2d 634, 640 (2d Cir.1987)). The core question is whether the parties'"incentives to pursue [the] lawsuit were substantially similar." Chase Manhattan Bank, 56 F.3d at 346. Here, privity exists between Mosdos and YCC because YCC deeded the Nike Site to Mosdos in December 2005, see Chestnut Ridge II, 2008 WL 4525753, at *5, thereby making Mosdos a successor to YCC's property interest in the Nike Site. See Yeiser v. GMAC Mortgage Corp., 535 F.Supp.2d 413, 423 (S.D.N.Y.2008) (holding that successor in interest to a mortgage was in privity with original mortgage holder). As Mosdos and YCC both seek to build and operate Kiryas Radin on the Nike Site, they share substantially similar incentives in bringing suit against Defendants that allegedly have acted to prevent the construction and operation of Kiryas Radin. Likewise, privity exists between YCC and Plaintiffs Bernstein and Ambers because Bernstein's and Ambers's interest in the operation of Kiryas Radin on the Nike Site was adequately represented in the New Hempstead Litigation by YCC. See Ellentuck v. Klein, 570 F.2d 414, 425-26 (2d Cir.1978) (finding that property owners were in privity with homeowner association when the association represented homeowners in the previous litigation).
On a related but distinct note, the Individual Plaintiffs (Bernstein and Ambers) were also not Parties to the Chestnut Ridge Action, and they are therefore not barred by Rule 13(a). The plain language of Rule 13(a) applies only to the "pleader" in the previous lawsuit. See Fed.R.Civ.P. 13(a)(1). Even applying the "functional equivalent" test sometimes used to determine the meaning of "opposing party," the Individual Plaintiffs are not "one and the same" as or alter egos of Mosdos or YCC, nor did they control the previous litigation. See Sony Fin. Servs., 2003 WL 22928602, at *4 (noting that distinct entities or parties should not be considered "identical for purposes of Rule 13"); cf. Banco Nacional, 478 F.2d at 193 (non-party government was "one and the same" as the national bank for purposes of Rule 13). Even though the Individual Plaintiffs' interests regarding the New Hempstead Defendants were adequately represented by YCC for purposes of res judicata, the privity is not so strong as to make Individual Plaintiffs "pleaders" for purposes of Rule 13(a). See HID Global, 2007 WL 3566705, at *3 (noting that privity relationship was "insufficient" to render a claim compulsory under Rule 13); McDowell v. Sec. Chimneys Ltd., No. 93-CV-1121, 1993 WL 498208, at *8 (N.D.N.Y. Nov. 29, 1993) (finding that plaintiff was not barred by Rule 13(a) from bringing claim because that particular plaintiff was not a party in the prior litigation).
The Second Circuit's decision in City of New York v. Beretta U.S.A. Corp., 524 F.3d 384 (2d Cir.2008), cert. denied, ___ U.S. ____, 129 S.Ct. 1579, 173 L.Ed.2d 675 (2009), however, supports the proposition that municipalities receive some degree of protection under the First Amendment right to petition the courts. In Beretta, the City of New York ("the City") and city officials filed a lawsuit against a group of firearms suppliers, seeking injunctive relief and abatement of the public nuisance allegedly caused by the defendants' distribution practices. See id. at 390-91. The defendants filed a motion to dismiss the City's Amended Complaint pursuant to the federal Protection of Lawful Commerce in Arms Act ("PLCAA"), 15 U.S.C. §§ 7901-03, which directed the immediate dismissal of certain civil actions (pending as of October 26, 2005) filed against manufacturers or sellers of firearms distributed in interstate or foreign commerce, see Beretta, 524 F.3d at 389; see generally 15 U.S.C. § 7903(5)(A). In opposition to the defendants' motion to dismiss, the City argued that the PLCAA violates its First Amendment right to petition. See Beretta U.S.A. Corp., 524 F.3d at 392-93. Although the Second Circuit rejected the City's argument that the PLCAA violated the right to petition, the court's analysis implicitly assumed that the City had such a right. See id. at 398. Specifically, in rejecting the City's First Amendment claim, the Second Circuit held that the PLCAA was constitutional because it merely immunized a "specific type of defendant from a specific type of suit." Id. The PLCAA, however, "[did] not impede, let alone entirely foreclose, general use of the courts by would-be plaintiffs such as the City." Id. Thus, the Second Circuit concluded, "the PLCAA cannot be said to deprive the City of its First Amendment right of access to the courts." Id.
Comment
User Comments