Agostisi v. Bendo

UNITED STATES DISTRICT COURT 3:52 pm, Aug  18, 2023

EASTERN DISTRICT OF NEW YORK U.S. DISTRICT COURT

-------------------------------------------------------------X EASTERN DISTRICT OF NEW YORK

LONG ISLAND OFFICE

ROBERT AGOSTISI,

MEMORANDUM

Plaintiff, AND ORDER

- against - Civil Action

No. 21-7182 (GRB)(LGD)

JOHN BENDO, SCOTT MENDEL, JOHN

MCNALLY, MICHAEL DELURY, KAREN

MCINNIS, and ELIZABETH TRESTON

(in their official and individual capacities), and

the CITY OF LONG BEACH

Defendants.

-------------------------------------------------------------X

GARY R. BROWN, United States District Judge:

In this case alleging violations of First Amendment rights, political retribution, and

litigation over separation pay agreements, the Court is presented with defendants’ motion to

dismiss and motion to strike. For the following reasons, defendants’ motions are DENIED.

Brief Factual and Procedural Background

The following allegations are presumed to be true for the purpose of the present motions.

Plaintiff Robert Agostisi (“Plaintiff’) was hired by defendant City of Long Beach (“Defendant” or

the “City”) in late 2006 as assistant corporation counsel, and through 2019, received several

promotions. Docket Entry (“DE”) 7 ¶¶ 4, 12. Plaintiff represented the City in labor, employment,

and civil right cases. Id. ¶ 13. Pursuant to the City of Long Beach City Charter (the “City

Charter”), exempt employees (the “exempts”) are appointed by the City Manager, who is selected

by the City Council. Id. ¶ 23. The exempts include employees hired by the current or past political

administrations. Id. As an appointed official, Plaintiff was an “exempt” employee of the City. Id.

¶¶ 21-22. In December 2016, Plaintiff advised the City Manager, Jack Schnirman, that he intended

to resign. Id. ¶¶ 18, 85. Schnirman convinced Plaintiff to remain employed at least through the

completion of an upcoming trial for which Plaintiff was preparing. Id. ¶¶ 84, 86. Plaintiff agreed,

and the two executed a separation pay agreement whereby Plaintiff would receive payment for his

unpaid, accrued time within 10 days of his termination (the “Separation Agreement”). Id. ¶ 89.

In October 2017, Plaintiff again planned to leave the City’s employment. Id. ¶ 112.

Knowing that the City was preparing to issue separation pay to employees who were leaving City

service by the end of the year, Plaintiff and Schnirman agreed to modify Plaintiff’s Separation

Agreement such that Plaintiff would receive 80% of his separation pay by November 16, 2017,

amounting to $119,854.61. Id. ¶¶ 113–15; DE 23 at 4. Though Plaintiff timely received his

separation pay check, he waited to cash it while weighing employment options. DE 7 ¶ 117. And

after negotiating with City officials, Plaintiff accepted a $25,000 raise and decided to remain

employed with the City. Id. ¶¶ 117–21. Soon thereafter, Plaintiff attempted to return his separation

check to the City but the City refused to accept it, claiming that the wages had already been

reported for tax purposes. Id. ¶¶ 123–25. Plaintiff then deposited the check into his bank account.

Id. ¶ 126.1

Throughout 2018 and 2019, the City’s policy concerning separation pay agreements with

exempt employees, such as Plaintiff, became one of growing political concern. See, e.g., id. ¶¶

139, 187, 258. In sum and substance,2 a new emerging political faction, the New Wave Democrats,

began to criticize the City’s separation pay agreement practices. See, e.g., id. ¶¶ 163, 187. As

such, the New Wave Democrats criticized Plaintiff for his Separation Agreement as well as his

association with Schnirman, the perceived leader of opposition to New Wave. Id. ¶¶ 133, 184,

1 It is stunning that, by Plaintiff’s own allegations, which the Court deems to be true, when confronted with the

situation where he has received a check for nearly $120,000, which he may have not been entitled to as he did not

leave the City’s employment for some years after, Plaintiff—an attorney—deposited the check into his personal

checking account.

2 Though potentially relevant to the ultimate issues of the case, the myriad of allegations as to the political environment

and animosity towards Plaintiff set forth in his 64-page Amended Complaint need not be discussed in depth to resolve

the present motions.

384.

Eventually, the City Council adopted a resolution authorizing a state court action against

Plaintiff to claw back monies paid to him pursuant to the Separation Agreement. Id. ¶ 356. On

July 17, 2020, the City brought suit against Plaintiff in the Nassau County Supreme Court, entitled

City of Long Beach v. Agostisi, Index No. 607238/2020 (the “State Action”). Id. ¶ 363.

Specifically, the City alleged: (1) breach of fiduciary duty, (2) fraud, (3) conspiracy to commit

fraud, (4) constructive fraud, (5) conversion of property and misappropriation of funds, (6) unjust

enrichment, (7) money had and received, (8) constructive trust, and (9) an accounting. See

generally DE 22-4. With consent of all parties, the State Action was transferred to Suffolk County

Supreme Court, Index No. 002684/2020, to avoid the perceived appearance of impropriety based

on Defendant Scott Mandel’s employment with the Nassau County Supreme Court. See DE 7 ¶

364; DE 27 at 2. After Plaintiff’s motion to dismiss in the State Action was denied, Plaintiff filed

an answer, raising several affirmative defenses relating to the Separation Agreement though he did

not allege a breach of contract counterclaim. See generally DE 22-6.

Plaintiff commenced this action against Defendants on December 30, 2021, alleging (1)

unlawful retaliation under 42 U.S.C § 1983, (2) violation of due process, (3) breach of contract,

and (4) defamation and unlawful retaliation. DE 1. Plaintiff filed an Amended Complaint on

February 18, 2022, adding a violation of Article 2 Section 14 of the City Charter. DE 7 at 62. On

June 8, 2022, the Court held a pre-motion conference to discuss Defendants’ anticipated motion

to dismiss. The Court granted Defendants’ motion as to the due process claim but denied the

motion as to the unlawful retaliation and defamation claims and set a briefing schedule as to

Plaintiff’s breach of contract and City Charter claims, along with Defendants’ motion to strike

certain paragraphs of the Amended Complaint.

This opinion follows.

Discussion

Standard of Review

Motions to dismiss are decided under the well-established standard of review for such

matters, as discussed in Burris v. Nassau County District Attorney, No. 14-5540 (JFB) (GRB),

2017 WL 9485714, at *3-4 (E.D.N.Y. Jan. 12, 2017), adopted by 2017 WL 1187709 (E.D.N.Y.

Mar. 29, 2017), and incorporated by reference herein. The gravamen of that standard, of course,

is the question of whether, assuming the allegations of the complaint to be true solely for the

purposes of the motion, the complaint sets forth factual material to render the claims plausible.

See id.

Breach of Contract Claim

Defendants argue that this Court should abstain from reviewing Plaintiff’s breach of

contract cause of action because the State Action represents a more appropriate forum.

Specifically, Defendants contend that since the State Action addresses the same issues surrounding

Plaintiff’s breach of contract claim, this Court should dismiss this cause of action to avoid

duplicative litigation.

Before a court may consider whether it should abstain from exercising jurisdiction over a

matter, it must first determine that the federal and state court cases are “parallel.” Dittmer v.

County of Suffolk, 146 F.3d 113, 118 (2d Cir. 1998). “Federal and state proceedings are

‘concurrent’ or ‘parallel’ for purposes of abstention when the two proceedings are essentially the

same; that is, there is an identity of parties, and the issues and relief sought are the same.”

Abercrombie v. College, 438 F.Supp.2d 243, 258 (S.D.N.Y. 2006) (quoting Nat'l Union Fire Ins.

Co. of Pittsburgh v. Karp, 108 F.3d 17, 22 (2d Cir. 1997)). “Perfect symmetry of parties and issues

is not required. Rather, parallelism is achieved where there is a substantial likelihood that the state

litigation will dispose of all claims presented in the federal case.” Shields v. Murdoch, 891 F.

Supp. 2d 567, 577 (S.D.N.Y. 2012) (citations omitted). “Any doubt regarding the parallel nature

of a federal and state action should be resolved in favor of the exercise of federal jurisdiction.” Id.

at 577–78 (citations omitted).

Here, the concurrent proceedings are not parallel since the parties, issues, and relief sought

are sufficiently distinct. As to the parties, the only defendant here also named in the State Action

is the City. The instant action includes additional defendants not named in the State Action, to

wit: John Bendo, Scott Mandel, John McNally, Michael Delury, Karen McInnis, and Elizabeth

Treston. See DE 7 at 1. And Plaintiff raises separate and distinct issues compared to the State

Action as the instant action presents nuanced First Amendment questions. Finally, as to the relief,

monetary damages are sought in both actions but the City also seeks equitable relief only in the

State Action. See generally DE 22-4; DE 7. To be sure, there is a near certainty—let alone a

“substantial likelihood”—that the State Action would not “dispose of all claims presented [here].”

See Shields, 891 F. Supp. 2d at 577. As such, this Court will retain jurisdiction over the breach of

contract claim.

Even assuming, arguendo, that the concurrent proceedings are parallel, the principles of

abstention favor exercising jurisdiction. The Supreme Court in Colorado River and its progeny

have established guiding principles for a federal court to consider in determining whether or not

to exercise jurisdiction over a claim. Id. at 521; Colorado River Water Conservation District v.

United States, 424 U.S. 800 (1976) (“Colorado River”). The abstention doctrine comprises a few

“extraordinary and narrow exception[s]” to a federal court's duty to exercise its jurisdiction, where

the resolution of existing concurrent state-court litigation could result in “comprehensive

disposition of litigation.” Woodford v. Cmty. Action Agency of Greene Cnty., Inc., 239 F.3d 517,

522 (2d Cir. 2001) (citing Colorado River, 424 U.S. at 813).

To determine whether the a court should abstain from exercising jurisdiction, courts

consider the following six Colorado River factors:

(1) whether the controversy involves a res over which one of the courts has

assumed jurisdiction;

(2) whether the federal forum is less inconvenient than the other for the parties;

(3) whether staying or dismissing the federal action will avoid piecemeal litigation;

(4) the order in which the actions were filed and whether proceedings have

advanced more in one forum than in the other;

(5) whether federal law provides the rule of decision; and

(6) whether the state procedures are adequate to protect the plaintiff's federal rights.

Id. (citations omitted). “No one factor is necessarily determinative” but “the balance [is] heavily

weighted in favor of the exercise of jurisdiction.” Id. (citing Moses H. Cone Mem'l Hosp. v.

Mercury Constr. Corp., 460 U.S. 1, 15-16 (1983) (“Moses Cone”)). “Thus, a facial neutrality of

a factor is a basis for retaining jurisdiction, not for yielding it.” Id. “Only the clearest of

justifications will warrant dismissal.” Moses Cone, 460 U.S. at 15. Indeed, federal courts have a

“virtually unflagging obligation” to exercise the jurisdiction given to them. Colorado River, 424

U.S. at 817–18 (citations omitted). The burden of persuasion rests on the party opposing the

exercise of federal jurisdiction. Arkwright-Bos. Mfrs. Mut. Ins. Co. v. City of New York, 762 F.2d

205, 210 (2d Cir. 1985).

Here, only one factor merits discussion as the remaining five factors either outright favor

exercising jurisdiction, or are neutral, and thus, still favor abstention. See Woodford, 239 F.3d at

522. The issue of piecemeal litigation must be considered. See Niagara Mohawk Power Corp. v.

Hudson River-Black River Regulating Dist., 673 F.3d 84, 102 (2d Cir. 2012) (citation omitted).

Plaintiff’s contract theory appears to be before both courts, though not raised as a counterclaim in

the State Action.3 This presents a risk of inconsistent outcomes. This factor alone, however, will

not carry the day. See Niagara Mohawk Power Corp., 673 F.3d at 101 (“[T]he court erred in

concluding that this factor outweighed the other Colorado River factors that militated against

abstention.”).

Furthermore, allowing the federal action to proceed will not necessarily create piecemeal

litigation that might be avoided by dismissal. See Bethlehem Contracting Co. v.

Lehrer/McGovern, Inc., 800 F.2d 325, 328 (2d Cir. 1986). This is not a case in which Plaintiff has

filed both a state and federal action. Rather, the City is the prosecuting party in the State Action

and Plaintiff’s breach of contract claim is only relevant there as a potential counterclaim. This

case would move forward on other counts even if this Court were to dismiss Plaintiff’s breach of

contract claim. Thus, “resolution of existing concurrent state-court litigation” would not “result

in ‘comprehensive disposition of litigation [here].’” See Woodford, 239 F.3d at 522 (purgandum).4

Therefore, Defendants have failed to satisfy their burden in persuading this Court that it

should depart from its “virtually unflagging obligation” to exercise jurisdiction over Plaintiff’s

breach of contract claim.5

City Charter Claim

Defendants argue that Plaintiff’s City Charter claim should be dismissed because Article

II, Section 14 of the City Charter does not provide a private right of action. Defendants rely

3 Notably, in moving to dismiss the State Action, Plaintiff’s contract theory was deemed void ab initio. DE 25 at 3-

4.

4 See Farmers Property and Casualty Insur. Co. v. Fallon, et al., No. 21-CV-6022 (GRB)(ARL), 2023 WL 4975977,

at *3 n.6 (E.D.N.Y. Aug. 3, 2023) (discussing use of “purgandum” to indicate the removal of superfluous marks for

the ease of reading).

5 Defendants’ argument that dismissal is warranted under the prior pending action doctrine similarly fails as that

doctrine only applies “where the two overlapping lawsuits are both pending in federal court.” See Wenegieme v.

Bayview Loan Servicing, No. 14-CV-9137 (RWS), 2015 WL 2151822, at *3 (S.D.N.Y. May 7, 2015) (citing Curtis

v. Citibank, N.A., 226 F.3d 133, 138 (2d Cir. 2000)).

primarily on the proposition that other sections of the City Charter contain penalty provisions

whereas the operative section here is silent on enforcement. And so, defendants argue, the

legislature intentionally chose not to provide a particular enforcement mechanism for Section 14.

But Defendants, as the movants seeking dismissal, have failed to provide the Court with any

authority supporting its position or even direct the Court to a related City Charter provision

providing an alternative enforcement mechanism, merely arguing that “there are [other] sections

expressly providing for penalties of such sections.”6 See DE 23 at 11; Cf. Ortiz, 37 N.Y.3d at 364

(holding that the creation of a private right was not consistent with the statute’s legislative scheme

where the Court identified several alternative enforcement mechanisms in other related

provisions).

To be sure, this Court’s own research identified several courts in which claims brought

under Section 14 of the City Charter were allowed to proceed. See, e.g., Canner v. City of Long

Beach, No. 12-CV-2611 (DRH)(GRB), 2015 WL 4926014, at *9 (E.D.N.Y. Aug. 18, 2015)

(denying defendants’ motion to dismiss with respect to plaintiff’s Article II, Section 14 City

Charter claim); Charleson v. City of Long Beach, 297 A.D.2d 775, 776 (2d Dep’t 2002) (affirming

denial of defendants’ motion for summary judgment with respect to plaintiff’s Article II, Section

14 City Charter claim).

Therefore, in light of this authority and Defendants’ failure to provide sufficient authority

to the contrary, Defendants’ motion must be denied.

Motion to Strike

Defendants argue that certain paragraphs of Plaintiff’s Amended Complaint should be

6 The Court also finds it curious to be tasked with determining whether a statutory scheme provides for a private right

of action when no party has bothered to provide the Court with the complete document. See DE 24-1 (Plaintiff

providing only part of the City Charter).

stricken.7 Under Rule 12(f), the court may “strike from a pleading an insufficient defense or any

redundant, immaterial, impertinent, or scandalous matter.” FED. R. CIV. P. 12(f). “Motions to

strike are not favored and will not be granted unless it is clear that the allegations in question can

have no possible bearing on the subject matter of the litigation.” Brady v. Basic Research, L.L.C.,

101 F. Supp. 3d 217, 225 (E.D.N.Y. 2015) (citations omitted). Indeed, “[c]ourts should not tamper

with the pleadings unless there is a strong reason for doing so.” Villalba v. Houslanger & Assocs.,

PLLC, No. 19-CV-4270 (PKC)(RLM), 2022 WL 900538, at *23 (E.D.N.Y. Mar. 28, 2022)

(quoting Lipsky v. Commonwealth United Corp., 551 F.2d 887, 893 (2d Cir. 1976)). To prevail

on a motion under Rule 12(f), the movant must show that: (1) no evidence in support of the

allegations would be admissible; (2) the allegations have no bearing on the issues in the case; and

(3) to permit the allegations to stand would result in prejudice to the movant. Id. (citations

omitted).

Here, Defendants have failed to establish that the challenged allegations would result in

prejudice—a necessary showing. See Gssime v. Nassau Cnty., No. 09-CV-5581 (JS)(ARL), 2014

WL 810876, at *2 (E.D.N.Y. Feb. 28, 2014) (denying motion to strike in part where the defendant

had “not indicated that any prejudice would result absent striking the reply”). Indeed, Defendants’

moving submission is entirely silent on this issue. See DE 23 12-13. And even after Plaintiff

raised the point in his opposition, see DE 25 7-11, Defendants offer only the conclusory statement

7 In their brief, Defendants summarily cite to 169 paragraph numbers of the Amended Complaint, bucketing these

paragraphs in a conclusory fashion, without explanation or argument, as “impertinent,” “unnecessary,” “reflecting on

the individual Defendants’ moral character,” or “legal conclusions,” as the sole basis to strike the allegations contained

therein. See DE 23 at 12-13. Such shorthand application is inconsistent with the spirit and letter of the rules of this

Court. This alone provides a basis to deny the motion. While the Court declines Defense counsel’s implicit invitation

to decode this intriguing list, such shoddy work produces the expected results. For example, counsel would be hard

pressed to explain how paragraph 29, which offers a dictionary definition of “entitled,” could be deemed impertinent.

See id. at 12; DE 7 ¶ 29. Counsel is cautioned that additional submissions of this nature will result in sanctions.

that “the allegations are unduly prejudicial to defendants.” See DE 27 at 4.8 Such conclusory

arguments, however, are insufficient. See Chen v. Gonzales, 163 F. App'x 82, 83 (2d Cir. 2006);

United States Sec. & Exch. Comm'n v. Collector's Coffee Inc., No. 19-CV-4355 (VM)(GWG),

2021 WL 1956369, at *9 n. 4 (S.D.N.Y. May 17, 2021), report and recommendation adopted, No.

19-CV-4355 (VM), 2021 WL 3082209 (S.D.N.Y. July 21, 2021) (rejecting conclusory statement

that certain allegations are “scandalous matters under Rule 12(f)” for failing to provide “any actual

argument” in support).

Therefore, Defendants have had ample opportunity to sufficiently address this issue but

have wholly failed to satisfy the exacting standards of Rule 12(f).

Conclusion

Based on the foregoing, Defendants’ motion to dismiss and motion to strike are DENIED.

The parties are directed to proceed with discovery with the assigned Magistrate Judge.

SO ORDERED.

Dated: Central Islip, New York

August 18, 2023

/s/ Gary R. Brown

GARY R. BROWN

United States District Judge

8 Defendants carp that “spatial limitations prevented us from addressing each and every paragraph individually.” Id.

This argument might be valid if (1) Defendants’ moving submission had not come under the Court’s twenty-page

limit, or (2) Defense counsel, who appears before this Court regularly and is well-aware of this Court’s Individual

Rules, sought an increased page limit pursuant to Individual Rule II(b). Most tellingly, Defendants utilize a single

page to address this issue in its reply memorandum but expend an astonishing seven pages—of a ten-page limit—

addressing arguments, which, by Defendants own account, are entirely irrelevant to the present motion. See DE 27 at

4-10.