Burke v. Verizon Communications, Inc.

Background

Brian Burke, proceeding without a lawyer, alleged numerous federal and state claims against multiple defendants. His claims concerned the loss of his job as a New York City Transit Authority train operator, alleged efforts to evict him from his apartment, alleged defamatory medical evaluations, and the denial of pension benefits. The claims included claims under Section 1983, the Racketeer Influenced and Corrupt Organizations Act, the Americans with Disabilities Act, the False Claims Act, and various constitutional provisions, as well as state-law claims including defamation, medical malpractice, fraud, breach of contract, retaliation, and breach of the duty of fair representation.

Verizon Communications, Inc.; the New York City Transit Authority; the New York City Health and Hospitals Corporation, identified in the opinion as Bellevue; Ryan Camire; Transport Workers Union Local 100; Derick Echevarria; the City of New York; the New York City Police Department; the New York City Fire Department; and Johnson Controls, Inc. moved to dismiss. On March 29, 2019, the court granted those defendants’ motions. Burke then moved for reconsideration and sought permission to file a second amended complaint.

Legal standard

The court explained that reconsideration under Local Rule 6.3 is an extraordinary remedy. It may be justified by an intervening change in controlling law, newly available evidence, or the need to correct a clear error or prevent serious unfairness. A reconsideration motion may not be used to present new facts or arguments that were available earlier, repeat issues already decided, or substitute for an appeal.

Analysis of the reconsideration request

The court separately considered Burke’s arguments concerning different groups of defendants:

- Bellevue defendants: The court rejected Burke’s arguments that the claims arising from the 2014 evaluation were timely under a continuing-violation theory. It had already determined that the 2014 and 2016 events were separate acts. The court also found that Burke’s allegations concerning an inaccurate reference to hernia treatment or surgery did not support tolling the limitations period, a Section 1983 municipal-liability claim, or his medical-malpractice claim. The court further rejected his argument that the defamation claim was timely based on later receipt of the information because the amended complaint alleged that the information had been published earlier.

- City of New York, the New York City Police Department, and the New York City Fire Department: The court had previously ruled that the police and fire departments were not entities that could be sued. It rejected Burke’s argument that the right to a jury trial prevented dismissal. The court also found that Burke had not supplied facts supporting his due-process and equal-protection allegations or showing a citywide policy or practice that could support municipal liability. Allegations about additional police incidents were treated as new allegations that could have been presented earlier.

- Johnson Controls, Inc.: The court rejected Burke’s argument that Johnson Controls acted under government authority because it allegedly received substantial assistance from state officials. Burke had not provided factual support for that assertion. The court left in place its prior conclusion that Johnson Controls was a private entity that could not be held liable for constitutional violations under Section 1983. The court also stated that any effort to add Fire Response Inc. would appear futile for the same reason.

- New York City Transit Authority: The court rejected Burke’s new allegations concerning alleged false affidavits and obstruction of justice. It also explained that his Racketeer Influenced and Corrupt Organizations Act claim remained deficient because he had not adequately alleged that the alleged racketeering person and enterprise were distinct; the allegations appeared to concern an employee or agent acting for the Transit Authority. The court further found that Burke had not provided facts supporting his retaliation claims under state and city laws. It stated that it lacked subject-matter jurisdiction, meaning authority to hear the case, over his breach-of-contract claim because the Transit Authority was not diverse from Burke and no federal-question claim remained against it.

- Verizon Communications, Inc.: The court rejected Burke’s argument that Verizon became a government actor through alleged benefits from or connections with New York State. The court also relied on its prior conclusion that the allegations against Verizon were confusing and factually frivolous. Burke had not identified overlooked facts or law that justified reconsideration.

- Union defendants: The court found no basis for supplemental jurisdiction, which allows a federal court to hear related state-law claims, because Burke’s fair-representation claim did not arise under federal law and the court lacked jurisdiction over the related contract claim. The court also found that Burke’s general conspiracy allegations did not provide a basis for reconsideration.

Leave to amend

The court considered Burke’s request to file a second amended complaint. Although a self-represented plaintiff ordinarily should receive at least one opportunity to amend when the complaint might state a valid claim, leave may be denied when amendment would be futile. The court concluded that Burke had already amended once, that his papers repeated arguments previously rejected, and that nothing in the reconsideration motion showed he could plead valid claims against the defendants who had moved to dismiss.

Disposition

Judge Paul G. Gardephe denied Burke’s motion for reconsideration and denied leave to amend. The court directed the Clerk of Court to terminate the reconsideration motion.