The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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Lori S. Maslow, in her capacity as
Democratic State Committee Female
Member, etc., et al. MEMORANDUM & ORDER
Plaintiffs, 20-cv-5934 (KAM)
- against –
Andrew M. Cuomo, in his capacity as
Governor of the State of New York;
and Letitia James, in her capacity as
Attorney General of the State of New
York; New York State Board of
Elections,
Defendants.
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KIYO A. MATSUMOTO, United States District Judge:
On December 7, 2020, Lori S. Maslow, Benjamin C.
Steinberg, Marjorie Cohen, Willa M. Willis Johnson, the Kings
County Democratic County Committee (“KCDCC”), and the Executive
Committee of the KCDCC (collectively “plaintiffs” or “KCDCC”),
commenced this action by filing a complaint against Governor
Andrew M. Cuomo and Attorney General Leticia James (collectively
“defendants”). (ECF No. 1, Complaint.) Plaintiffs
simultaneously filed a motion seeking a temporary restraining
order and a preliminary injunction pursuant to Federal Rule of
Civil Procedure 65, enjoining defendants from “the imposition of
the State Court’s application of New York Election Law § 2-112 .
. . which resulted in the issuance of an Order requiring
Plaintiffs to hold an organizational meeting on December 17,
2020.” (ECF No. 2, First Motion for Temporary Restraining
Order.) Plaintiffs also sought to enjoin defendants from
enforcement of New York Election Law §§ 2-112 and 2-118 as
applied to Plaintiffs. Id.
On December 11, 2020, defendants moved under Federal
Rule of Civil Procedure 12(b)(1) and 12(b)(6) to dismiss
plaintiffs’ complaint, respectively, for lack of subject matter
jurisdiction and for failure to state a claim upon which relief
can be granted. (ECF No. 13, Motion to Dismiss.) On that same
day, plaintiffs’ counsel in the two related State Court cases,
Ellington, et al. v. Kings County Democratic County Committee
and Stein, et al. v. Kings County Democratic County Committee
wrote to this court asking whether his clients should intervene
in the federal court action. (ECF No. 16, Letter from David
Stein.) Plaintiffs in this federal action filed their reply and
an amended complaint1 on December 14, 2020. (ECF No. 18, Reply;
ECF No. 19, First Amended Complaint.) This court held a show
cause hearing on December 15, 2020. For the reasons set forth
below plaintiff’s motion for injunctive relief is denied and
1 In their amended complaint, plaintiffs added the New York State Board of
Elections as a defendant. (ECF No. 19, First Amended Complaint.) This Order
does not apply to the New York State Board of Elections as this court has not
yet been informed as to whether this party has obtained representation. The
amended complaint also references the State Court’s December 10th Order in
Stein, et al. v. Kings County Democratic County Committee. Id.
defendants’ motion to dismiss Governor Cuomo and Ms. James is
granted.
BACKGROUND
Due to the COVID-19 pandemic, Governor Cuomo has
issued several Executive Orders limiting in-person gatherings.2
Specifically, on June 3, 2020, Governor Cuomo issued Executive
Order 202.47:
Notwithstanding any provision of law or a party's
rules to the contrary, any party caucus, party
meeting or party convention held pursuant to the
Election Law in the year two thousand twenty may
be held by telephonic or video conferencing means
in whole or in part at the discretion of the
chairperson calling such meeting; provided,
however, that any required notice shall include
instructions to participants as to how to access
such video teleconference.
On September 29, 2020, the Executive Committee of the
KCDCC amended Article III of the Rules for the Government of
Kings County Democratic County Committee (“the Rules”) by adding
§7 which discussed the protocols for organizational meetings as
a result of the COVID-19 pandemic:
The Chair of the Executive Committee shall
arrange for meetings of the County Committee to
be held in physical settings located in Kings
County, as then permitted by law, so that duly
filed original proxies and withdrawals of voting
2 On March 12, 2020, Governor Cuomo issued Executive Order 202.1 which
mandated that “any gathering or event for which attendance is anticipated to
be fewer than five hundred people, shall operate at no greater than fifty
percent occupancy.” This Order was modified on March 16, 2020 with Executive
Order 202.3 which stated that “any large gathering or event . . . shall be
cancelled or postponed if more than fifty persons are expected in
attendance.”
authorizations, as provided herein, may be
examined prior to or during the deliberations
attendant to those meeting in addition to
engaging in deliberative discourse and voting in
an accountable and verifiable manner. The Chair
shall not convene any meeting of the County
Committee, in which the voting may occur, via
teleconference or video teleconference to prevent
the disenfranchisement of members of limited
economic means and/or without access to the
internet or smart phone technology.
KCDCC Rules, Art. 3, §7(D). The amendment clarified
that the amendment itself “shall supercede the provisions of
each and every rule set forth within these Rules and the
corollary provisions of the Election Law . . ..” Id. Lastly,
§7(H) provided that “the members of the County Committee elected
or deemed elected at the primary election held on June 23, 2020.
. . be deemed seated and authorized to act as of the date of
such organization or at midnight, October 7, 2020, whichever
occurs first.” Id at §7(H).
In response to the Executive Committee’s amendment to
the Rules, a group of elected members of the KCDCC, who had been
elected on June 23, 2020, brought action in the Supreme Court of
the State of New York, Kings County. Ellington, et al. v. Kings
County Democratic County Committee, -N.Y.S.3d-, 2020 Slip Op.
20281 (Sup. Ct. Kings Cty. Oct. 27, 2020). The State Court
Ellington plaintiffs sought injunctive and declaratory relief
claiming that §7 conflicted with Election Law §2-112(1)(b)3 and
was therefore null and void. Id.
On October 27, 2020, the Honorable Edgar G. Walker
ordered that the KCDCC and its Executive Committee hold a
virtual organizational meeting on or before December 17, 2020,
stating that the “amendment conflicts with Election Law § 2-
112(1)(b) in that its prohibition against holding meetings via
video and teleconference effectively prevents KCDCCC from
holding any committee meeting given the current COVID-19 related
restrictions on large in-person gatherings.” Ellington, et al.
v. Kings County Democratic County Committee, -N.Y.S.3d-, 2020
Slip Op. 20281 (Sup. Ct. Kings Cty. Oct. 27, 2020) at 12. The
Ellington defendants (plaintiffs in this action) appealed the
October 27 Order and moved the Appellate Division to stay the
enforcement of the Ellington order pending appeal. Ellington,
et al. v. Kings County Democratic County Committee, Index No.
518630/2020 (N.Y. App. Div. 2d Dep’t.) On November 25, 2020,
the Second Department denied the motion to stay the enforcement
of the order. Id.
On November 29, 2020, the Executive Committee amended
Article II of the Rules by adding § 3a and § 5. “The proposed §
5 provision sought to create at large positions (four per
3 N.Y. Elec. Law § 2-112(1)(b) requires party committees to hold an
organizational meeting no earlier than September 17 and no later than October
1 following the June primary.
Assembly District) to be filled as vacancies by individuals
without regard to how they identify on the gender spectrum and
who are not required to declare a male or female sex designation
(nonbinary).” Stein, et al. v. Kings County Democratic County
Committee, Index No. 524201/2020 (Sup. Ct. Kings Cty. Dec. 11,
2020) at 3. Section 3a “authorized KCDCC’s Executive Committee
to directly appoint and fill all vacancies in the membership of
the County Committee existing prior to the time at which an
organizational meeting is held”:
§3 a. (a) Notwithstanding anything herein to the
contrary in these Rules or in the Election Law,
vacancies in the membership of the County
Committee existing prior to the time of the
organizational meeting of the County Committee
shall be filled for the unexpired term by the
Executive Committee. Nominations to fill such
vacancies shall be made in writing by either of
the following methods: (i) upon a majority vote
of the Assembly District Committee in and for the
Assembly District wherein such vacancy occurs,
upon certification by the Chairperson and
Secretary of the said Assembly District
Committee, (ii) upon the written nomination of
five members of the County Committee elected from
Election Districts within the Assembly District
wherein such vacancy occurs, or (iii) upon the
written nomination of a State Committee member
elected from the Assembly District wherein such
vacancy occurs. Said written nominations shall be
submitted to a person at a location and address,
by a date and time certain, designated by the
Chair of the Executive Committee.
In light of these amendments, the KCDCC Executive
Committee elected 2,400 non-binary Democrats to fill vacancies
in the KCDCC. (Compl. at 4.) On December 3, 2020, a group of
members of the KCDCC who were elected at the June 23, 2020
election, brought action in the Supreme Court of the State of
New York, King County, claiming that the new amendments were in
violation of Election Law §§ 2-112 and 2-1184. Stein, et al. v.
Kings County Democratic County Committee, Index No. 524201/2020
(Sup. Ct. Kings Cty. Dec. 11, 2020). On December 10, 2020,
Justice Walker granted the Stein plaintiffs declaratory relief
stating that “any appointments made prior to the required
virtual organizational County Committee meeting were null and
void under the Election Law.” Stein, et al. v. Kings County
Democratic County Committee, Index No. 524201/2020 (Sup. Ct.
Kings Cty. Dec. 11, 2020). Justice Walker found that the Rules
of the Kings County Democratic Committee were in violation of
the Election Law in that the Election Law required vacancies to
4 Election Law §2-118(1) provides: “In the case of the death, declination,
enrollment in another party, removal from the unit or removal from office of
a member of a committee, or the failure to nominate or elect a member, the
vacancy created thereby shall be filled by the remaining members of the
committee by the selection of an enrolled voter of the party qualified for
election from the unit of representation in which such vacancy shall have
occurred. When a state committee fills a vacancy pursuant to this
subdivision, the chairman or secretary of such committee shall, within ten
days after such vacancy is filled, file a certificate with the state board of
elections setting forth the name, address, and unit of representation of the
person so selected.” Section 2-118 (3) provides: “The county committee, upon
its organization after the election of its members, or at any time
thereafter, may determine that a vacancy or vacancies in such committee
exists by reason of an increase in the number of election districts within
the county occasioned by a change of the boundaries of one or more election
districts, taking effect after such election, and may determine the districts
that the elected members shall represent until the next election at which
members of such committee are elected. A vacancy so determined to exist shall
be filled as provided in subdivision one.”
be filled by the members of the County Committee, not the
Executive Committee. Id.
With the filing of their complaint, plaintiffs in this
action moved for a preliminary injunction and temporary
restraining order (“TRO”) enjoining the Ellington and Stein
State Court decisions. (See generally Compl.) The original
complaint alleged that “the irreparable harm attendant with the
State trial court’s Order mandating an organization meeting to
be held along with the enforcement of Election Law § 2-104 and §
2-118, as applied by the State and as the aforesaid Stein
plaintiffs are looking to apply the state law, warrant the
imposition of a Temporary Restraining Order to prevent
irreparable harm.” Id. at ¶74.
In their amended complaint and at the show-cause
hearing, plaintiffs recast the language from the original
complaint by withdrawing their request for a TRO and preliminary
injunction enjoining the State Court orders in Ellington and
Stein. See generally Transcript and ECF No. 19, Amended
Complaint. The amended complaint focuses on the alleged
unconstitutionality of the New York State Election Law.
Specifically, the amended complaint alleges that “New York State
Election Law § 2-112 as applied . . . violates KCDCC’s rights to
make its own rules with regard to the holding of it[‘s]
organizational meeting” and that “New York State Election Law §
2-118 as applied prohibits KCDCC[] from making rules for its own
governance.” (ECF No. 19, Amended Complaint at ¶¶31-32.) In
their amended complaint, plaintiffs no longer seek a TRO and
preliminary injunction enjoining the State Court orders, but
request declaratory relief and a permanent injunction enjoining
the State from applying the New York Election Law, § 2-112
regarding the holding of KCDCC’s organizational meeting, and §
2-118 regarding the filling of vacancies by the Executive
Committee of the KCDCC. Id. at ¶¶31-46.
DISCUSSION
A. Rules 12(b)(6) and 12(b)(1)
Defendants contend that “all claims against Governor
Cuomo and Attorney General James should be dismissed as they are
not proper parties to this action.” (ECF No. 15, Memorandum in
Support of Motion to Dismiss at 8.) When considering a motion
to dismiss under Rule 12(b)(6), a district court must “accept as
true all factual statements alleged in the complaint and draw
all reasonable inferences in favor of the non-moving party.”
McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.
2007) (citation omitted). In considering a 12(b)(6) motion, the
court may refer to “documents attached to the complaint as an
exhibit or incorporated in it by reference, to matters of which
judicial notice may be taken, or to documents either in
plaintiffs’ possession or of which plaintiffs had knowledge and
relied on in bringing suit.” Brass v. Am. Film Tech., Inc., 987
F.2d 142, 150 (2d Cir. 1993) (internal citations omitted); see
also Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.
1993) (clarifying that “reliance on the terms and effect of a
document in drafting the complaint is a necessary prerequisite
to the court’s consideration of a document on a dismissal
motion; mere notice of possession is not enough.”) (emphasis in
original).
To survive a motion to dismiss pursuant to Rule
12(b)(6), a complaint must contain sufficient factual matter,
accepted as true, to “‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
conduct alleged.” Id.
Defendants also contend that plaintiffs’ complaint
should be dismissed for lack of subject matter jurisdiction
pursuant to Rule 12(b)(1). “A case is properly dismissed for
lack of subject matter jurisdiction under Rule 12(b)(1) when the
district court lacks the statutory or constitutional power to
adjudicate it.” Makarova v. United States, 201 F.3d 110, 113
(2d Cir. 2000). It is well-settled that 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) (citing
Luckett v. Bure, 290 F.3d 493, 497 (2d Cir. 2002)). For
purposes of Rule 12(b)(1), the court must construe all
ambiguities and draw all inferences in the plaintiff’s favor.
Id. “The presence or absence of federal-question jurisdiction
is governed by the ‘well-pleaded complaint rule,’ which provides
that federal jurisdiction exists only when a federal question is
presented on the face of the plaintiff's properly pleaded
complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392
(1987). Here, as explained below, plaintiffs have failed to
allege facts implicating defendants in the alleged harms and,
therefore, the complaint must be dismissed.
B. Application
Plaintiffs assert that Governor Cuomo and Attorney
General James are proper parties to this action. They
erroneously contend that because a violation of the State Court
order “would subject the Executive Committee to criminal
contempt by the Attorney General,” the Attorney General has been
appropriately named. (ECF No. 18, Reply at 9.) Additionally,
plaintiffs again erroneously argue that the Governor is a proper
party because he issued an Executive Order allowing for virtual
meetings, which “result[ed] in the violation of
committeepersons’ constitutional rights of association.” (ECF
No. 18, Reply at 10.)
Defendants argued, both in their Motion to Dismiss and
at the show-cause hearing, that plaintiffs have “made no showing
whatsoever that either the Governor or the Attorney General are
engaged in any conduct that could be the subject of a proper
injunction under Rule 65 of the Federal Rules of Civil
Procedure.” (ECF No. 15, Memorandum in Support of Motion to
Dismiss at 8). At the show-cause hearing, defendants reiterated
that the Governor and the Attorney General “have no authority to
nullify a state court order” and “neither one of them under
separation of powers would have the authority to say . . . these
orders are nullified . . . .” (Transcript at 19.) In response,
plaintiffs contend that “the Attorney General would have
enforcement authority and that’s the predicate for [the]
contention that the Attorney General is involved.” Id. at 18.
Defendants further clarified, however, that the Attorney General
“has criminal enforcement [powers], not civil enforcement
[powers].” Id. at 19. Defendants also argued that plaintiffs
are not challenging the Governor’s executive order. Rather,
plaintiffs are challenging the elections laws, which makes both
Governor Cuomo and Attorney General James improper parties. Id.
at 44.
The court agrees with defendants. Plaintiffs have not
convinced this court that defendants, Cuomo and James, are the
proper parties. Wade v. New York City Dep't of Educ, No. 11
Civ. 05278(LGS), 2014 WL 941754, at *5 (S.D.N.Y. Mar. 10, 2014)
(citing Linder, 263 F. Supp. 2d at 590) (dismissing claims
because plaintiff failed to “include allegations against agents
of the City of New York,” as distinct from the BOE). The
Plaintiffs’ amended complaint clearly alleges that New York
State Election Law §§ 2-112 and 2-118 are unconstitutional “as
applied” to plaintiffs. (ECF No. 19, Amended Complaint at ¶¶
31-32,35-36, 43.) Though plaintiffs argue that they are no
longer asking the court to enjoin the State Court orders, the
amended complaint essentially pleads in the prayer for relief
that the court permanently enjoin the state from “imposing and
applying New York State’s Election Law to interfere with the
associational rights of plaintiffs.” (ECF No. 19, Amended
Complaint, Prayer for Relief ¶ c.) Plaintiffs are not arguing
that §§ 2-112 and 2-118 are facially unconstitutional. Rather,
by arguing that the State should be enjoined from imposing and
applying these sections, the plaintiffs are contending that the
State Court has applied these statutes in such a way that
infringes on plaintiffs’ rights. As a remedy for this alleged
harm, plaintiffs ask this court to enjoin the defendants from
“imposing and applying” the State Court orders. Defendants are
not parties to the state court litigation and do not have the
power to impose or apply said orders, nor reverse the State
Court decisions. Therefore, the claims against Cuomo and James
must be dismissed.
Defendants also contend that plaintiffs’ claims should
be dismissed due to lack of subject matter jurisdiction, citing
to the Rooker-Feldman doctrine and Pullman abstention doctrine.
(ECF No. 15, Memorandum in Support of Motion to Dismiss.) This
court need not address those arguments, as defendants Cuomo and
James are not the proper parties in this action. For the same
reasons, the court will only briefly address plaintiffs’ motion
for a preliminary injunction against the improperly named
defendants.
Although plaintiffs withdrew their motion to enjoin
the State Court orders, they did not withdraw their motion to
enjoin the Governor and the Attorney General from imposing and
applying the Election Laws at issue in the State Court orders.
“A party seeking a preliminary injunction must 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.’” Cacchillo v. Insmed, Inc., 638 F.3d 401,
405-06 (2d Cir. 2011) (quoting Citigroup Global Mkts., Inc. v.
VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 35 (2d
Cir. 2010)); Fed. R. Civ. P. 65(b)(1)(A).
Plaintiffs fail to demonstrate irreparable harm as
required for preliminary injunctive relief. The Second Circuit
has defined “irreparable harm” as “certain and imminent harm for
which a monetary award does not adequately compensate,” noting
that “only harm shown to be non-compensable in terms of money
damages provides the basis for awarding injunctive relief.”
Wisdom Import Sales Co., L.L.C. v. Labatt Brewing Co., Ltd., 339
F.3d 101, 113-14 (2d Cir. 2003); see also Kamerling, 295 F.3d at
214 (“To establish irreparable harm, a party seeking preliminary
injunctive relief must show that there is a continuing harm
which cannot be adequately redressed by final relief on the
merits and for which money damages cannot provide adequate
compensation.” (internal quotation omitted)). Because neither
Cuomo nor James is a proper party in this litigation, issuing an
injunction against them will do nothing to prevent the alleged
harms. Neither the Governor nor the Attorney General has the
authority to enforce or apply the State Court’s orders, nor do
they have the authority to invalidate the orders.
Accordingly, the defendants’ motion to dismiss
defendants Cuomo and James is granted and the plaintiffs’ motion
for a temporary restraining order and preliminary injunction
against defendants, Cuomo and James, is denied. The plaintiffs’
counsel is respectfully ordered to serve a copy of this order on
the New York State Board of Elections and note service on the
docket within two business days of the date of this Memorandum
and Order. SO ORDERED.
Dated: Brooklyn, New York
January 11, 2021
/s/
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York