SERVIDIO LANDSCAPING, LLC, et al. v. CITY OF STAMFORD, et al.
3:19-CV-01473 (KAD)
UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT
December 9, 2020
Kari A. Dooley, United States District Judge
Kari A. Dooley, United States District Judge
This action appears to be the latest chapter in a long-running dispute between the Plaintiffs and the Defendants. Plaintiffs Servidio Landscaping, LLC (“Servidio Landscaping“), John Servidio (“Mr. Servidio“) and Rosanna Servidio (“Mrs. Servidio” and, collectively, “Plaintiffs“) bring this action pursuant to
The following is alleged in Plaintiffs’ complaint. At all relevant times, Servidio Landscaping was a company that provided construction, demolition and excavating services in Connecticut and Stamford in particular. Mr. Servidio was the principal member of Servidio Landscaping and managed its day-to-day operations. Mr. and Mrs. Servidio jointly owned an empty parcel of property located at 796-800 Cove Road in Stamford (hereinafter, the “Cove Road Property“) located in a Commercial Neighborhood Business Zone (i.e., a “C-N Zone“).
At various times, Stamford, through Defendant Lunney, issued cease and desist notices to the Servidios alleging that their use of the Cove Road Property was not permitted in a C-N Zone. Accordingly, on October 10, 2017, Stamford commenced an action in Connecticut Superior Court against the Servidios (the “State Court Action“) seeking a permanent injunction requiring the Servidios to comply with the cease and desist orders and for monetary compensation. Thereafter, on March 21, 2018, the State Court Action resolved through a jointly filed Stipulation for Judgment. However, on May 31, 2018, Defendants Stamford and Lunney filed a motion for contempt against the Servidios in the State Court Action for their alleged impermissible use of the Cove Road Property as a “contractor‘s yard” rather than as a permissible garden supplies center as was contemplated under the Stipulated Judgment. Plaintiffs assert however that their use of the Cove Road Property did not change between March 21, 2018, when the Stipulation for Judgment was filed, and May 31, 2018, when Defendants Stamford and Lunney moved for contempt. Connecticut Superior Court Judge Kevin Tierney conducted a two-day evidentiary hearing on December 4, 2018 and January 6, 2019 on the motion for contempt. And, on May 7, 2019, Judge Tierney found that the Servidios were not in contempt of the Stipulation for Judgment on the specific dates alleged.
Additionally, Plaintiffs assert that Defendant Stamford intentionally treated municipal permits and/or licenses submitted by Plaintiff Servidio Landscaping, or others who expressed a desire to utilize its services, less favorably than those submitted by other similarly situated contractors within Stamford. Plaintiffs allege that Defendants’ actions in this regard were “arbitrary, capricious, willful, baseless, meritless, pretextual, in bad faith, improperly motivated, intended to harass, and as a result of the personal animus” Defendants have toward the Servidios. (Id. ¶ 31). As with the cease and desist orders, Plaintiffs allege that Defendant Stamford‘s denial of permits and licenses “substantively deprived and interfered” with Plaintiff Servidio Landscaping‘s general economic activities and well-being. (Id. ¶ 32).
Based on the foregoing allegations, Plaintiffs first allege that Defendants violated the Equal Protection Clause of the Fourteenth Amendment insofar as the Defendants have “enforced the City‘s zoning and building ordinances, regulations and requirements against the Plaintiffs in a selective manner that is wholly arbitrary, irrational, and capricious such that the Plaintiffs were treated differently, without a legitimate government purpose, from other similarly situated individuals and property owners.” (Id. ¶ 40). Second, Plaintiffs allege that Defendants violated the Due Process Clause of the Fourteenth Amendment insofar as “[t]he arbitrary, irrational, and discriminatory actions of the Defendants . . . have denied the Plaintiffs their right to due process of law by wrongfully depriving Plaintiffs of their protected property interest in the ownership and development of their property and business.” (Id. ¶ 47). Lastly, Plaintiffs bring a third cause of action pursuant to state law for tortious interference with their business expectations.
On November 18, 2019, Defendants moved to dismiss Plaintiffs’ complaint in its entirety asserting that (1) “Plaintiffs have failed to state a plausible equal-protection claim because they have not identified any similarly situated comparators who were treated differently from them.“;
Standard of Review
To survive a motion to dismiss filed 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 Atl. 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 misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). Legal conclusions and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” are not entitled to a presumption of truth. Iqbal, 556 U.S. at 678. Nevertheless, when reviewing a motion to dismiss, the court must accept well-pleaded
Discussion
Equal Protection
Plaintiffs allege that Defendants violated the Equal Protection Clause through selective enforcement of zoning regulations and unfavorable permitting decisions, which Plaintiffs allege were motivated by malice and personal animus towards the Plaintiffs. There are two “distinct pathways for proving a non-class-based Equal Protection violation.” Hu v. City of New York, 927 F.3d 81, 93. (2d Cir. 2019). First, under a selective treatment theory, Plaintiffs must show that “(1) the [Plaintiffs], compared with others similarly situated, [were] selectively treated; and (2) that such selective treatment was based on impermissible considerations such as . . . malicious or bad faith intent to injure a person.” LeClair v. Saunders, 627 F.2d 606, 609–10 (2d Cir. 1980) (hereinafter, a ”LeClair claim“). “Impermissible considerations” include “discrimination on the basis of a defendant‘s personal malice or ill will towards a plaintiff.” Hu, 927 F.3d at 91. The Supreme Court has also “recognized successful equal protection claims brought by a ‘class of one,’ where the plaintiff alleges [(1)] that she has been intentionally treated differently from others similarly situated and [(2)] that there is no rational basis for the difference in treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam) (hereinafter, an ”Olech claim“).
Here, Plaintiffs bring a LeClair claim against Defendants.1 Unlike an Olech claim, a malice-based LeClair claim requires “proof of a defendant‘s subjective ill will towards a plaintiff.” Hu, 927 F.3d at 93. And “[w]hile Olech [claims] require[] an ‘extremely high’ degree of similarity
In Hu, plaintiffs, who were Asian-owned companies and an Asian construction worker, alleged that defendant-Assistant Chief Inspector of the New York City Department of Buildings, among others, “selectively enforced the City‘s building codes on the basis of racial animus against Asians and personal animus against [the individual plaintiff].” 927 F.3d at 86. On the issue of selective treatment compared to others, the plaintiffs alleged, in part, that the defendant “issued them a violation for having a pool of water on the 34th Avenue Jobsite,” while he did not issue a
Here, Plaintiffs do not identify a single specific comparator, individual or corporation that is allegedly similarly situated to the Plaintiffs. They offer only broad stroke, wholly conclusory assertions.2 In this vein then, Plaintiffs’ complaint is bereft of factual allegations which would establish that they are entitled to relief under the Equal Protection Clause. See Iqbal, 556 U.S. at 678 (Legal conclusions and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” are not entitled to a presumption of truth.).
Plaintiffs’ reliance on Karout v. McBride is misplaced. No. 3:11CV1148 JBA, 2012 WL 4344314, (D. Conn. Sept. 21, 2012). There, the plaintiff, a hookah lounge operator, sued the City
In contrast, as discussed above, Plaintiffs simply allege that other unnamed property owners within Stamford were treated more favorably. Plaintiffs point to no allegations in the complaint from which an actual comparator might be gleaned, even if by inference. Plaintiffs do not identify any specific location within the city in which this alleged disparity is apparent. Nor do Plaintiffs identify any property owners located in a C-N Zone who used their property for similar purposes but did not receive cease and desist orders.
Defendants’ motion to dismiss Plaintiffs’ Equal Protection claim is GRANTED.3
However, at oral argument, Plaintiffs asserted that they have uncovered evidence that employees of Defendant Stamford have discouraged Plaintiffs’ customers from doing business with the Plaintiffs and in so doing are treating Plaintiffs differently than other (and perhaps all) contractors operating in Stamford. These similarly bare allegations, even if permitted by amendment, do not save the Plaintiffs’ Equal Protection claim. They most assuredly bolster the claims brought under state law, i.e., the tortious interference with business expectations, and they would be probative of the issue of malice, had an Equal Protection claim otherwise been adequately pled. But these allegations do not identify these other contractors, let alone, in a fashion that would establish that they are similarly situated to the Plaintiffs in all material respects save for the litigation history. See Albert v. Carovano, 851 F.2d 561, 573 (2d Cir. 1988) (noting that, to support a selective enforcement claim, plaintiffs must specify instances “in which they were singled out for unlawful oppression in contrast to others similarly situated” (internal quotation marks, emphasis, and ellipses omitted)); see, e.g., Ruston, 610 F.3d at 59 (dismissing Olech claim where plaintiffs merely alleged, without providing specific examples, that the town-defendants refused to consider the plaintiffs’ subdivision application while they considered applications submitted by those similarly situated). Accordingly, Plaintiffs’ request to replead their Equal Protection claim is DENIED.
Substantive Due Process
Plaintiffs allege that the Defendants’ actions “denied the Plaintiffs their right to due process of law by wrongfully depriving Plaintiffs of their protected property interest in the ownership and
As a preliminary matter, Defendants argue that Plaintiffs’ Substantive Due Process claim is subsumed by their Equal Protection claim. Indeed, “[i]t is now well established that, where another provision of the Constitution provides an explicit textual source of constitutional protection, a court must assess a plaintiff‘s claims under that explicit provision and not the more generalized notion of substantive due process.” Hu, 927 F.3d at 104 (internal quotation marks omitted). And, as was the case in Hu, the Plaintiffs’ Substantive Due Process “claim and Equal Protection claim both rest on the same set of factual allegations, namely:” that the Defendants selectively enforced the zoning regulations and made unfavorable permitting decisions due to personal animus towards the Plaintiffs. Id. However, because the Court finds below that Plaintiffs’ Substantive Due Process claim must, in any event, be dismissed, the Court does not address the parties’ arguments on this issue and does not decide whether Plaintiffs’ Substantive Due Process claim is subsumed by their Equal Protection claim.
To establish a violation of their Substantive Due Process rights, Plaintiffs must show that (1) “a constitutionally cognizable property interest is at stake” and (2) that the Defendants “alleged acts against their land were arbitrary, conscience-shocking, or oppressive in the constitutional sense, not merely incorrect or ill-advised.” Ferran v. Town of Nassau, 471 F.3d 363, 369–70 (2d Cir. 2006) (internal quotation marks omitted). Importantly, “[s]ubstantive due process is an outer limit on the legitimacy of governmental action.” Natale v. Town of Ridgefield, 170 F.3d 258, 263 (2d Cir. 1999). “It does not forbid governmental actions that might fairly be deemed arbitrary or
This is not that case. The Court does not minimize the significance of the issues to the parties themselves. But at the end of the day, although protracted, the dispute between these parties is a straight-forward, garden variety, zoning dispute between a landowner and a municipality. The issues raised can be, have been and should be brought to the state court for adjudication.
Musco Propane, LLP v. Town of Wolcott is instructive. No. 3:10-CV-1400 JCH, 2011 WL 3267756 (D. Conn. July 28, 2011). There, plaintiff-Musco Propane alleged that defendants-Town of Wolcott, its mayor, and its zoning authorities violated plaintiff‘s constitutional rights when plaintiff‘s zoning applications to expand its propane storage capacity were denied and it was ordered to cease and desist from any non-retail sale of propane on its property. Id. at *1. The court dismissed the substantive due process claims concluding that the allegations did “not support a plausible claim of outrageously arbitrary conduct or a gross abuse of authority.” Id. at *7. In so holding, the court noted that plaintiff‘s allegations that the defendants’ actions were “illegal, arbitrary, and capricious” were simply conclusory, and that plaintiff‘s more specific allegations, for example, that the defendants made decisions that were unsupported by the law, were “insufficient to distinguish the defendants’ actions from the normal sort of erroneous decisions that are ‘correctable in a state court lawsuit seeking review of administrative action.‘” Id. (citing Natale, 170 F.3d at 263). In fact, the plaintiff had filed state court actions, which the court noted is “the appropriate forum for review of these allegedly erroneous zoning decisions.” Id.
Similarly, Defendants’ issuance of cease and desist orders, even in the context of a protracted litigation history, does not rise to the level of “arbitrary, conscience-shocking, or
Defendants’ motion to dismiss the Substantive Due Process claim is therefore GRANTED.
Personal Involvement of Individual Defendants
Although the constitutional claims are subject to dismissal for the reasons discussed above, the Court also takes up the Defendants’ additional argument that the claims against Defendants Blessing, Martin, Patterson, Figueroa, and Zelinsky (hereinafter, “individual defendants“) should be dismissed. The Court does so in the event that an appellate tribunal returns either the Equal Protection claim or the Due Process claim to this Court for further proceedings. It is axiomatic that personal involvement in the alleged constitutional deprivation is a prerequisite to recovery under Section 1983. See Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986); Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996) (“[A] defendant in a §1983 action may not be held liable for damages for constitutional violations merely because he held a high position of authority.“). Here, Plaintiffs make no allegations implicating the personal involvement of any of the individual defendants other
At all relevant times during the last several years prior to and through the filing of this complaint, including after the denial of the City‘s motion for contempt in the State Court Action, each of the named Defendants herein have acted in concert with one another, and each such Defendants have individually and actively aided, abetted, assisted, directed, supervised, controlled and participated in the City‘s issuance of various violation letters and cease and desists orders concerning the Servidios’ use of the Cove Road Property, as well as the filing of the motion for contempt in the State Court Action.
(ECF No. 1 ¶ 33 (bold emphasis added)). In contrast, with respect to Defendant Lunney, Plaintiff alleges, for example, “the City and/or Lunney have continually issued various violation letters and cease and desist orders concerning the Servidios’ use of the Cove Road Property.” (Id. ¶ 25). Plaintiffs do not make any similar allegations against the other individual defendants or identify any specific conduct by any of the individual defendants which might give rise to liability to the Plaintiffs. Accordingly, Plaintiffs’ Section 1983 claims against Defendants Blessing, Martin, Patterson, Figueroa, and Zelinsky are dismissed. See Polur v. Raffe, 912 F.2d 52, 56 (2d Cir. 1990) (“It is incumbent on a plaintiff to state more than conclusory allegations to avoid dismissal of a claim predicated on a conspiracy to deprive him of his constitutional rights.“); Aho v. Anthony, 782 F. Supp. 2d 4, 7 (D. Conn. 2011) (dismissing Section 1983 claim against individual defendants where the only allegation against the individual defendants was that they were “acting in concert” with another person who was allegedly involved with the deprivation of plaintiff‘s constitutional rights).
State Law Claims
Because the Court dismisses Plaintiffs’ federal law claims, the Court declines to exercise supplemental jurisdiction over Plaintiffs’ state law claim.
Conclusion
For the foregoing reasons, Defendants’ motion to dismiss Plaintiffs’ Equal Protection claim and Substantive Due Process claim is GRANTED with prejudice. The Court declines to exercise supplemental jurisdiction over Plaintiffs’ state law claim.
The Clerk of the Court is directed to enter judgment in favor of the Defendants as to the First and Second Causes of Action and close this case.
SO ORDERED at Bridgeport, Connecticut, this 9th day of December 2020.
/s/ Kari A. Dooley
KARI A. DOOLEY
UNITED STATES DISTRICT JUDGE