OPINION AND ORDER
Plaintiff Salvatore Gizzo (“Plaintiff’) brings this Action against Defendants Sor-aya Ben-Habib (“Ms. Ben-Habib”), Clinton I. Young (“Mr. Young”), and the City of Mount Vernon (“the City”) (collectively, “Defendants”), alleging that Defendants deprived him of his constitutional rights to procedural and substantive due process under the Fourteenth Amendment and his contractual rights under a licensing agreement. Defendants move to dismiss Plaintiffs Complaint in its entirety. For the following reasons, Defendants’ Motion is granted.
A. Factual Background
As alleged in Plaintiffs Complaint, the facts underlying the instant Action are fairly straightforward. In 2008, Plaintiff was the owner of Samba Na Brasa, a Brazilian steakhouse located in the Fleet-wood section of Mount Vernon (“Fleet-wood”) at 42 Broad Street. (Compl. ¶ 11 (Dkt. No. 1).) In or around November 2008, Mr. Young, who was at the time the mayor of the City, visited Plaintiff at Samba Na Brasa, and informed him that the residents of Fleetwood were unhappy because the only local supermarket was closing down. (Id. ¶¶ 12-13.) Mr. Young then stated to Plaintiff, “Do me a favor. I need to give [the residents of Fleetwood] a supermarket-we’ll give you whatever you need.” (Id. ¶ 14 (internal quotation marks omitted).)
After this conversation, Plaintiff and others acting on Plaintiffs behalf “begаn negotiating with [Mr. Young] and other City employees in an effort to transform the 42 Broad Street location into a supermarket,” during which negotiations Plaintiff “indicated to [Mr. Young] and his employees that it was vital to the success of the supermarket that the patrons of the potential supermarket have an adequate supply of safe and inviting parking spaces available.” (Id. ¶¶ 15-16.) Because Mr. Young agreed with Plaintiff, “the two sides began to discuss meaningful parking improvements which could be made by the City to further a potential supermarket.” (Id. ¶ 17.) Soon thereafter, Mr. Young and Plaintiff “came to an agreement that the best option for parking for the contemplated supermarket would be the Fleet-wood Municipal Parking Garage.” (Id. ¶ 18.)-
Following this agreement, in June 2009, Plaintiff, acting on behalf of Fleetwood Food Corporation (“FFC”), a New York corporation, and Mr. Young, acting on behalf of the City, entered into a Licensing Agreement, pursuant to which FFC was granted “the exclusive right, license and privilege to use forty-five (45) designated parking spaces on the ground floor of the Fleetwood Municiрal Parking Garage and fifteen (15) merchant use only parking spaces, all for the use of the contemplated supermarket,” “[i]n exchange for [which] FFC became obligated pursuant to the License Agreement to pay [a monthly fee] with the right to prepay for any time period.” (Id. ¶¶ 20-21 (internal quotation marks omitted).) FFC was granted “the exclusive right, license, and privilege to use” the parking spaces until March 31, 2014, with “the option to renew ... upon ... [the] same terms and conditions for consecutive terms of five (5) years” through 2044, provided that Plaintiff was not in default. (Compl. Ex. A(2), at 2-3.) Additionally, the Licensing Agreement “provided that FFC was granted permission to install an electric parking arm and any other necessary equipment for the purpose of entering and exiting the area containing the ... [p]arking [s]paces,” and required the City, at its sole cost and expense, to “make numerous improvements, alterations, installation and/or repairs” to the Fleetwood Municipal Parking Garage by September 1, 2009. (Id. ¶¶ 24-25 (internal quotation marks omitted).) The Licensing Agreement also stated that it would “be effective only to the extent that [FFC] and/or its successors and/or assigns operates and/or maintains a grocery store/supermarket at 42 Broad Street.” (Id. ¶ 22 (internal quotation marks omitted).) By entering into the Licensing Agreement, the City “aeknowl-edge[d] that [FFC] [was] relying on the ... representations [contained therein] for the purpose of constructing and operating a grocery store/supermarket ..., and that
“Subsequent to the execution Of the Licensing Agreement, [Plaintiff] closed Samba Na Brasa and began renovating 42 Broad Street in order to transform it into a supermarket/’ “retaining] the services of Nima Badaly [ (“Mr. Badaly”) ] as architect for the renovations.” (Id. ¶¶ 26-27.) Mr. Badaly is the former husband of Ms. Ben-Habib, who was the City’s First Deputy Building Commissioner, and who Plaintiff claims was also “the de facto Building Commissioner and ... the decision maker for [the City’s] Building Department.” (Id. ¶¶ 8, 36.) According to Plaintiff, Mr. Badaly and Ms. Ben-Habib “have children together and thus maintain a close relationship.” (Id. ¶ 37.) Plaintiff also entered into negоtiations with Key Food Cooperative, Inc. (“Key Food”) “to allow FFC to operate the contemplated supermarket as a Key Food.” (Id. ¶ 28.)
Plaintiff claims that “the City never completed its’ [sic] responsibilities under the Licensing Agreement.” (Id. ¶ 30.) Specifically, “[although the Licensing Agreement required the allocation of forty-five spaces for supermarket parking, the City never designated the requisite number.” (Id. ¶31.) Additionally, “[although the City permitted the installation of a parking arm in the garage which was necessary to safeguard the parking spaces, the City refused to provide power for the parking arm, after the device was agreed to and then constructed by FCC at its sole expense.” (Id. ¶ 32.) Further, “[although the Licensing Agreement required the repair and maintenance of the elevator in the garage, the City never repaired the elevator to working condition.” (Id. ¶ 33.)
Notwithstanding these issues, FCC pressed onwards with the renovation, spending over $3 million in the process. (Id. ¶ 34.) In or around April 2010, FCC terminated the services of Mr. Badaly. (Id. ¶ 35.) Plaintiff claims that, following Mr. Badaly’s termination, “the City’s Building Department began to harass FFC by delaying the determination of permits and inspections on multiple occasions and requiring FFC to wade through numerous levels of red tape which had [previously] not existed.” (Id. ¶ 38.) The City Building Department even “invented problems” on the date that FFC was to open the Key Food “in order to delay the scheduled opening of the supermarket.” (Id. ¶ 39.) And, “[although the City Building Department was stonewalling progress on FFC’s supermarket, it streamlined the application process for [a] competing supermarket” “which sought to open in close proximity.” (Id. ¶¶ 40-41.)
By the time FFC opened the supermarket in July 2010, “the City had still not completed the work required under the Licensing Agreement.” (Id. ¶¶ 42-43.) In fact, “[n]otwithstanding FFC’s constant complaints to the City about the City’s failure to abide by the Licensing Agreement, the work required [thereunder] was never completed.” (Id. ¶ 44.) The consequent “lack of adequate parking for the Key Food immediately began to impact on FFC’s profits,” causing “patrons [to] stop[ ] shopping” there. (Id. ¶ 45.) Eventually, FFC filed for Chapter 7 Bankruptcy. (Id. ¶47.) After FFC’s bankruptcy trustee assigned certain of FFC’s claims against the City to Plaintiff, Plaintiff initiated this Action. (Id. ¶ 48.)
B. Procedural Background
Plaintiff filed his Complaint on April 1, 2013. (See Dkt. No. 1.) Plaintiff asserts five causes of аction against Defendants therein. First, Plaintiff claims that, “[a]s a result of the actions and inactions of [Mr.
On November 6, 2013, Defendants filed their Motion To Dismiss. (See Dkt. Nos. 12-14.) Plaintiff filed his Opposition thereto on December 6, 2013, (see Dkt. No. 15), to which Defendants replied on December 20, 2013, (see Dkt. No. 16), at which point Defendants’ Motion was fully submitted.
II. DISCUSSION
A. Standard of Review
Defendants move to dismiss Plaintiffs Complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the grounds of his entitlement 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,
“[W]hen ruling on a defendant’s motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus,
B. Analysis
1. Procedural Due Process
Plaintiffs first two causes of action allege a violation of his procedural-due-process rights. In his first cause of action, Plaintiff asserts that his procedural-due-process rights were violated by Mr. Young’s and the City’s “actions and inac-tions” in failing to “perform the actions which [the City] was obligated to take under the Licensing Agreement.” (Compl. ¶¶ 52, 56.) In his second cause of action, Plaintiff asserts that his procedural-due-process rights were violated by Ms. Ben-Habib’s “campaign to obstruct the progress in opening the Key Food supermarket.” (Id. ¶ 64.)
The Fourteenth Amendment to the United States Constitution provides in part that “[n]o State shall ... deprive any person of life, liberty, or property, without due process of law.” U.S. Cоnst. amend. XIV, § 2; see also Marino v. City Univ. of N.Y.,
“The Second Circuit instructs” that “[t]he threshold issue is always whether the plaintiff has a property ... interest protected by the Constitution.” Morales v. New York,
However, “[a] ‘unilateral expectation’ is not sufficient to establish a constitutionally protected property right.” Looney,
Here, Plaintiff claims that “[t]he Licensing Agreement executed with the City gave FFC and [Plaintiff] a property right in the parking spaces and improvements contemplated by both parties under the Licensing Agreement.” (Compl. ¶ 50.) In other words, Plaintiffs “claim is premised on a contract right,” (Pl.’s Mem. of Law in Opp’n to Defs.’ Mot. To Dismiss (“PL’s Mem.”) 13)—his position is that he and FFC “maintained a property interest in the [Licensing [A]greement with the City,” (id. at 18), which is a property interest that the Due Process Clause protects. For their part, Defendants claim that Plaintiffs argument “that the Licensing Agreement between the parties created a constitutionally protected property interest” is “without merit.” (Defs.’ Mem. of Law in Supp. of Defs.’ Mot. To Dismiss PL’s Compl. (“Defs.’ Mem.”) 13-14.) The Court agrees with Defеndants.
The Second Circuit has noted that, “although a public contract can confer a protectible benefit, not every contract does so.” Martz,
In answering this question, the starting point within the Second Circuit is, S & D Maintenance Co. v. Goldin,
The present case requires that we determine whether S & D has a contractual right giving rise to a “legitimate claim of entitlement” and thus , a constitutionally protected property interest under [Board of Regents n] Roth[,408 U.S. 564 ,92 S.Ct. 2701 ,33 L.Ed.2d 548 (1972) ]. In one sense, of course, every enforceable contract right can be said to be an entitlement. As long as a state provides judicial remedies for the enforcement of contracts, either specific performance or damages for breach, every person holds a legitimate expectation that his contractually conferred rights are secure. And whenever a person contracts with a state, breach by the state can be considered a denial of his entitlement to performance of the contract. If the concept of “entitlement” were this expansive, federal courts could be asked to examinе the procedural fairness of every action by a state alleged to be in breach of its contracts. Yet, as the Seventh Circuit has observed, “[w]e must bear in mind that the Fourteenth Amendment was not intended to shift the whole of the public law of the states into the federal courts”....
... [T]he doctrinal implications of con-stitutionalizing all public contract rights would raise substantial concerns, and we seriously doubt that Roth and its progeny portend such a result.... An interest in enforcement of an ordinary commercial contract with a state is qualitatively different from the interests the Supreme*383 Court has thus fair viewed as “property” entitled to procedural due process protection. Goldberg v. Kelly, [397 U.S. 254 ,90 S.Ct. 1011 ,25 L.Ed.2d 287 (1970),] involved entitlement to welfare benefits conferred by statute upon our poorest citizens to provide for their immediate well-being, if not survival.... Roth ... and Perry v. Sindermann, [408 U.S. 593 ,92 S.Ct. 2694 ,33 L.Ed.2d 570 (1972),] concerned claims to tenured status in public employment. In these contexts, the Due Process Clause is invoked to protect something more than an ordinary contractual right. Rather, procedural protection is sought in connection with a state’s revocation of a status, an estate within the public sphere characterized by a quality of either extreme dependence in the case of welfare benefits, or permanence in the case of tenure, or sometimes both, as frequently occurs in the case of social security benefits. Without doubt, Goldberg, Roth, and subsequent cases have accorded procedural due process protection to interests that extend well beyond actual ownership of real estate, chattels, or money. But we hesitate to extend the doctrine further to constitutionalize contractual interests that are not associated with any cognizable status of the claimant beyond its temporary role as a governmental contractor.
Thus far, the course of the law in this Circuit has not moved beyond according procedural due process protection to interests other than those well within the contexts illustrated by Goldberg and Roth.
Id. at 966-67 (citations, footnotes, and some internal quotation marks omitted) (citing, inter alia, Brown v. Brienen,
However, although the Second Circuit strongly suggested in the above-described passage that a governmеnt contract like that at issue in. S & D Maintenance is not “property” protected by the Due Process Clause, it ultimately grounded its holding in a different rationale, and thus did not reach that question. S & D claimed that it had a “right to continuation of [one of the] contracts] during its term, ie., a right to continue rendering service and to receive future payment,” as well as a “right to prompt payment for services already rendered.” Id. at 967. As to S & D’s first asserted right, the court found that it “would not be a protected right, even if [the court] were to analogize S & D’s service contract to an employment contract,” because “[i]n the employment context, a property interest arises only where the state is barred, whether by statute or contract, from terminating (or not renewing) the employment relationship without cause.” Id. But S & D’s contract with the City did not contain “a for-cause provision sufficient to create a cognizable property interest.” Id. at 968. In fact, the contract stated that the City could “at any time terminate [the] [contract by written notice to [S & D].” Id. (internal quotation marks omitted). And as to S & D’s second asserted right, the court found that “[a] close analysis of the sources of the alleged property right in prompt payment,” including the contracts and certain New York statutes, also “reveal[ed] the absence of a clear entitlement.” Id. at 969.
Given that the Second Circuit thus essentially decided S & D Maintenance on its facts, “one could read the court’s ruling ... narrowly to preclude only those [procedural-due-process] claims resting on contracts terminable at will,” but subsequent decisions have not taken this approach, focusing instead on that portion of the court’s ruling that emphasized “dependence and permanence as indicia of protected status.” Zachary D. Krug, Note, Due Process and the Problem of Public
Particularly informative is Martz v. Inc. Village of Valley Stream,
The Second Circuit found that Martz lacked a protectible property interest. Id. In reaching that conclusion, the court discussed various New York statutes that Martz cited, but found that those laws did not “provide[ ] her with a clear entitlement to payment for the services described in her vouchers.” Id. at 30. In distinguishing a case that Martz cited in support of her argument, which case had “involved a claim for reimbursement of overpayments made to a Medicaid provider pursuant to a statutorily prescribed reimbursement rate,” the court stated that, “[u]nlike the case of a Medicaid provider, the only right to payment in this case is predicated upon an alleged breach of contract.” Id. at 30. The court also distinguished “other cases cited by Martz [as] inapposite because they address[ed] situations in which an entitlement to benefits clearly was recognized in state law.” Id. In conclusion, before reproducing language from S & D
In light of the foregoing analysis, it is apparent that New York [statutory law] does not provide Martz with a legitimate claim of entitlement to the benefits of her contract with the Village. Rather, Martz simply is alleging the breach of an ordinary contract. The right to payment on such a contract does not rise to the level of a constitutionally protected property interest.
Id. at 31.
Notably absent from the court’s analysis was any discussion of whether Martz could have had a protectible interest in payment under the contract by virtue of the contract itsеlf. The clear implication of this omission is that the court assumed that she could not. This implication is reinforced by the penultimate sentence of the court’s discussion of the issue, in which it stated that, “where a breach of contract does not give rise to a deprivation of a protectible property interest, plaintiffs exclusive remedy lies in state court for breach of contract,” id. (internal quotation marks omitted)—a statement that, if run-of-the-mill government contracts gave rise to protectible property interests through their own operation, would be entirely circular.
Several broad principles can be derived from this line of cases. The first principle is that “ordinary” or “routine” government contracts do not, by themselves, give rise to such an interest. See Martz,
The second principle is that one characteristic that distinguishes an “ordinary” or “routine” government contract from the type of government contract that gives rise to a protectible property interest is that' the latter protects its holder from the “state’s revocation of a status, an estate within the public sphere characterized by a quality of either extreme dependence in the case of welfare benefits, or permanence in the case of tenure, or sometimes both.” S & D Maintenance,
The third and final principle is that employment contracts receive special treatment. One court within the Second Circuit has even gone so far as to suggest that “the Second Circuit has found cognizable property interests in contracts only in the employment context.” Malapanis v. Regan,
The prime protected category, which has supplied nearly all of the successful contract-based section 1983 actions, is that of employment contracts. The seminal cases of Roth and Perry dealt with employment. ... What renders an employment contract protectible by the Four*387 teenth Amendment is often not clearly articulated; we are willing to accept the view that crucial factors are the security with which the interest is held under state law and its importance to the holder. We also believe that the focus of the latter factor is upon the importance of the interest to the holder as an individual. The right of an individual not to be deprived of employment that he or she has been guaranteed is more easily characterized as a civil right, meant to be protected by section 1983, than are many other contractual rights.
San Bernardino Physicians’ Servs. Med. Grp., Inc. v. San Bernardino Cnty.,
In Hotel Syracuse, Inc. v. Young,
Unlike a tenured employment situation, the contracts upon which plaintiffs in this case rely do not provide an interest as fundamental as an individual’s employment. The importance to plaintiffs of their interest in owning and operating hotels is principally financial, whereas the importance to an individual of retaining his/her tenured employment can be much more substantial than that. Losing one’s job may impair one’s self-worth; one may find it difficult, if not impossible, without protracted and costly search to find an equivаlent job, and may in the end have to settle for an inferior job at lower pay. Further, the individual may be forced to seek public assistance to pay for such necessities as food and shelter. In short, while the interest of plaintiffs in the benefits of owning and operating the [hjotels is not insubstantial, it is considerably less weighty than an individual’s interest in the termination of social security benefits or tenured employment, and therefore does not come under due process protection.
Id. at 1084-85 (citations omitted).
Applying these three principles to the case at bar, the Court concludes that Plaintiffs “property interest in the [Licensing Agreement with the City,” (PL’s Mem. 18), is not a property interest that the Due Process Clause reaches. Whatever interest Plaintiff had in the City’s performance of that contract, it was categorically different from the interests at play in Goldberg and Roth. The Licensing Agreement did not protect Plaintiff from the City’s “revocation of a status, an estate within the public sphere characterized by a quality of either extreme dependence in the case of welfare benefits, or permanence in the case of tenure, or sometimes both.” S & D Maintenance,
Like the plaintiffs in Young, Plaintiffs interest in the Licensing Agreement was “principally financial”—and while that interest “is not insubstantial, it is considerably less weighty than an individual’s interest in the termination of social security benefits or tenured employment.”
Plaintiff places great emphasis on the fact that “the City has not contended, nor is there any language which can be found in the [Licensing [A]greement, which would allow the City to terminate the agreement without cause, or to refrain from completing the parking improvements which it was required to perform under the [Licensing [A]greement.” (Pl.’s Mem. 17-18.) Plaintiff is correct that, “[t]o have a property interest in a benefit, a person clearly must have more than an abstract need or desire and more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Harrington,
Plaintiff also claims that “[a] written contract such as one in the case at bar has been found to be strong evidence of entitlement and demonstrates that Plaintiffs have a protectible property interest.” (Pl.’s Mem. 16.) In support of this contention, Plaintiff cites three cases: Terminate Control Corp. v. Horowitz,
For one, unlike the instant Action, all three of those cases involved employment contracts, which, as noted, receive special treatment.
More importantly, this language from Christ Gatzonis, which Plaintiff quotes in his Memorandum of Law, (see PL’s Mem. 16), is actually a direct quote from General Electric Co. v. New York State Department of Labor,
Similarly, Plaintiff cites to Horowitz for the following statement: “[The plaintiff] does have a property right, however, in ultimately being paid for work properly performed under the ... contracts.” (PL’s
In regard to Ezekwo, a court within the Second Circuit previously distinguished that case on grounds directly applicable here, in a case in which the plaintiff attempted to argue that a contract, “which provided that medical benefits could not be reduced during its term, in combination with [the plaintiffs] reliance on [a third-party health-benefits provider’s] representation that [a] surgery would be covered, created a constitutionally protected property interest under the Fourteenth Amendment”:
[I]n Ezekwo, the Court did not find a property interest arising solely from a contract provision, but rather, it recognized a property interest in the plaintiffs alleged right to a certain important status—that of “Chief Resident.” Moreover, a property interest arising out of an entitlement to such status was contemplated in S & D Maintenance: “[i]n these contexts the Due Process Clause is invoked to protect something more than an ordinary contract right. Rather, procedural protection is sought in connection with a state’s revocation of a status .... ” Also, the Ezekwo Court again cautioned against simply equating contractual rights with property interests: “[N]ot every contractual benefit rises to the level of a constitutionally protected property interest. It is neither workable nor within the intent of section 1983 to convert every breach of contract claim against a [state actor] into a federal claim.”
Even in Ezekwo, in finding a property interest in the plaintiffs appointment to Chief Resident, the Second Circuit emphasized there that the “interest in the position of Chief Resident was more than simply financial____ [I]t denotes the culmination of years of study ... it is necessary [sic] a position that an individual can occupy only once in his or her career.”
Tucker v. Darien Bd. of Educ.,
In short, nothing in Plaintiffs Complaint or Memorandum of Law demonstrates that the Licensing Agreement is anything but the type of “ordinary,” “routine,” “one-off commercial interaction” that the Second Circuit and other courts have repeatedly found does not give rise to a property interest protected by the Due Process Clause. Plaintiff has not cited, nor has the Court been able to locate, any case from within the Second Circuit in which a court found that a plaintiff had a protectible property interest in the type of contract at issue here. Cf. Eng v. Cash, No. 10-CV-3117,
2. Substantive Due Process
In his third cause of action, Plaintiff asserts a substantive-due-process claim. Specifically, Plaintiff asserts that Ms. Ben-Habib’s “campaign to punish [Plaintiff] and FFC for firing” Mr. Badaly deprived Plaintiff of his substantive-due-process rights. (Compl. ¶¶ 67, 69, 72.)
“To state a claim for substantive due process [a] [p]laintiff must allege that: (1)[ ]he had a valid property interest and (2) [the] defendant] infringed on that property right in an arbitrary or irrational manner.” DePrima v. City of N.Y. Dep’t of Educ., No. 12-CV-3626,
As to the first prong, Defendants argue that, “[t]hough it is difficult to discern exactly what ‘fundamental’ right ... [P]laintiff claims to possess, to the extent that he is asserting a ‘property and liberty right,’ his claim fails.” (Defs.’ Mem. 18.) In response, Plaintiff appears to refer the Court to a different section of his Memorandum of Law, writing that, “As discussed above, the Plaintiffs possessed a legitimate property interest in operating a
However, the Court has already rejected Plaintiffs argument that the Licensing Agreement gave rise to a constitutionally cognizable property interest in the procedural-due-process context. See Safepath Sys. LLC v. N.Y.C. Dep’t of Educ.,
8. Monell
In Plaintiffs fourth cause of action, he alleges that the deprivations of his constitutional rights were in part caused by the City’s failure “to adequately provide for a system of checking for conflicts of interest in relation to projects submitted by [Mr. Badaly] for approval by the City’s Building Department,” as well as its failure “to adequately supervise the employees of the City’s Building Department to prevent special treatment being given to projects involving plans drawn by [Mr. Badaly].”
“Monell does not provide a separate cause of action for the failure by the government to train its employees; it extends liability to a municipal organization where that organization’s failure to train, or the policies or customs that is has sanctioned, led to an independent constitutional violation.” Okin v. Vill. of Cornwall-On-Hudson Police Dep’t,
U. Breach of Contract
Lastly, in his fifth cause of action, Plaintiff alleges a state-law breach-of-contract claim. (See Compl. ¶¶ 81-86.) Because this claim does not present a federal question, see 28 U.S.C. § 1331, and because Plaintiff does not allege that his citizenship is diverse with respect to that of Defendants, see id. § 1332, “the Court may entertain [Plaintiffs breaeh-of-contract claim] only pursuant to a theory of supplemental jurisdiction, see id. § 1367.” Weslowski v. Zugibe,
“[A] district eourt[ ] may decline to exercise supplemental jurisdiction over” related state-law claims that form part of the same case or controversy under Article III of the United States Constitution “if ... the district court has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). “Once a district court’s discretion is triggered under § 1367(c)(3), it balances the traditional values of judicial economy, convenience, fairness, and comity in deciding whether to exercise jurisdiction.” Kolari v. N.Y. Presbyterian Hosp.,
III. CONCLUSION
For the foregoing reasons, the Court grants Defendants’ Motion To Dismiss. Plaintiffs first cause of action is dismissed with prejudice. Plaintiffs second, third, fourth, and fifth causes of action are dismissed without prejudice. Plaintiff is granted leave to file an Amended Complaint within 30 days of the issuance оf this
The Clerk is respectfully requested to terminate the pending Motion. (See Dkt. No. 12.)
SO ORDERED.
Notes
. "[H]owever, as in S & D Maintenance,” the Walentas court held that it did not need to "definitively resolve the question whether the contractual rights asserted” were “of the kind protectible under section 1983, because they had not in any event achieved that concreteness of entitlement required by Roth and its progeny.”
. The accuracy of the Malapanis court’s characterization of Second Circuit case law may have been called into question by Manza v. Newhard,
. In S & D Maintenance, the Second Circuit cited San Bernardino after its-observаtion that "[o]ther courts of appeals have also been reluctant to surround the entire body of public contract rights with due process protection.”
. While a contract between a state entity and a contractor may not be an "employment contract” in the purest sense, such a contract implicates the same values discussed in San Bernardino and Young. Cf. Arledge v. Stratmar Sys., Inc.,
. As Plaintiff observes, "[a]lthough not specifically addressed by Defendants in their [M]otion, the [C]omplaint actually contains two causes of action which allege violations of [procedural] due process,” the first of which "alleges violation ... based on the Defendants [sic] failure to comply with their obligations under the [L]icensing [Agreement to provide certain parking improvements for the benefit of the supermarket,” and the second of which "alleges that [Ms. Ben-Habib] as policymaker for the City, orchestrated a campaign to delay the opening of the supermarket, while at the same time streamlining the application process for a competitor, all in an effort to punish Plaintiffs for termination [Mr. Badaly].” (PL's Mem. 14-15.) However, the only property interest related to either of these causes of action that Plaintiff identifies in his Complaint or Memorandum of Law is his alleged "property interest in the [L]icens-ing [Agreement with the City.” (Id. at 18.) As a result, the Court has considered only whether this alleged interest is protected by the Due Process Clause. However, Plaintiff will be provided with an opportunity to amend his Complaint to specify whether his second cause of action is premised on the existence of a different property interest. See infra note 6.
. In his Memorandum of Law, Plaintiff makes a second passing mention of his "legitimate interest in opening [his] supermarket business,” which interest he describes as a "property right.” (Pl.'s Mem. 20.) But unlike his first mention of such an interest, this second mention is divorced from any reference to the alleged property right underlying his procedural-due-process claim. (Id.) Thus, although the best reading of Plaintiff's Complaint and Memorandum of Law suggests that he is attempting to base his procedural-due-process and substantive-due-process claims on the same alleged interest—his “property interest in the [Licensing [Agreement with the City,” (id. at 18)—the two references to Plaintiff’s supposed "legitimate interest in opening [his] supermarket business” give the Court pause, as they indicate that Plaintiff may in fact be attemрting to distinguish between the property interest underlying his first cause of action, one the one hand, and the property interest underlying his second, third, and fourth causes of action, on the other. Therefore, as is the case in regard to Plaintiff's second cause of action, Plaintiff will be provided with an opportunity to amend his Complaint to clarify precisely what "property right” underlies his third. However, Plaintiff should be aware that he must specifically identify the interest at issue in any Amended Complaint that he files. Vague and highly generalized allegations that Defendants “began a campaign to punish” Plaintiff, “frustrate[d]” or "obstruct[ed] the progress” in "completing” or "opening the Key Food supermarket,” or “streamlin[ed] ... the application process for FCC competitors,” (Compl. ¶¶ 59-61, 64, 67-69, 72), leave unclear what protectible property interest is implicated, and will therefore be unlikely to survive any subsequent Motion To Dismiss that Defendants may file.
. The Court’s dismissal of Plaintiff's Monell claim will be without prejudice, as amending his Complaint in regard to his second and third causes of action has the potential to cure the deficiencies the Court has identified in regard to his fourth. See supra notes 5-6.