Burke v. Verizon Communications, Inc.

Background

Brian Burke, proceeding without a lawyer, asserted numerous claims against more than a dozen defendants. The claims included allegations concerning his former civil-service job with the New York City Transit Authority and efforts to evict him from his apartment. The amended complaint listed claims under several federal and New York laws, including 42 U.S.C. § 1983, the federal Racketeer Influenced and Corrupt Organizations Act, defamation, medical malpractice, fraud, employment laws, the Americans with Disabilities Act, and others.

The defendants addressed in this order were the Attorney General of New York and the City University of New York (CUNY). They moved to dismiss the amended complaint under Federal Rule of Civil Procedure 12(b)(1), which concerns the court’s subject-matter jurisdiction, and Rule 12(b)(6), which concerns whether a complaint states a legally sufficient claim. Magistrate Judge Gabriel W. Gorenstein recommended granting the motion and denying Burke’s request to file a second amended complaint. Burke objected only to the recommendation denying further amendment.

Claims Against the Attorney General of New York

The amended complaint referred to the Attorney General only as a party Burke believed was required for his constitutional challenge to Section 190 of the New York Labor Law. The court adopted the magistrate judge’s conclusion that this passing and conclusory reference did not state a claim.

The court explained that Section 190 is a definitional provision and that the Labor Law gives enforcement authority to the New York State Commissioner of Labor, not the Attorney General. The court also concluded that neither the cited law nor the cited cases required the Attorney General to be a party to Burke’s constitutional challenge. Because the amended complaint contained no factual allegations against the Attorney General, the court dismissed Burke’s claims against her for failure to state a claim.

Claims Against CUNY

The amended complaint referred to CUNY in connection with an allegation that Mr. Camire, whom Burke identified as a CUNY employee, committed medical malpractice and defamation against CUNY students. The court found that Burke alleged harm to students rather than an injury to himself.

A plaintiff generally must assert his own legal rights and interests. Because Burke did not allege that CUNY caused him an injury, the court held that he lacked standing. Standing is the required connection between a plaintiff and an injury that allows a federal court to decide the dispute. The court therefore concluded that it lacked subject-matter jurisdiction over Burke’s claims against CUNY and dismissed those claims under Rule 12(b)(1).

Request to Amend

Burke sought permission to file a second amended complaint, including to add counsel for the New York City Transit Authority and an investigator for the MTA Inspector General as defendants. He also sought to add allegations that the Attorney General had enforced wage-theft laws.

Because Burke had already amended his complaint once, he could no longer amend it as of right. Further amendment required consent from the opposing parties or permission from the court. The court adopted the magistrate judge’s conclusion that amendment would be futile. The proposed new defendants were not alleged to be employed by or associated with the Attorney General or CUNY, and the proposed allegations about the Attorney General’s enforcement of wage laws would not show that she was a proper or required party in this case. Burke also had not supplied factual allegations that would state a claim against CUNY. The court further relied on the pattern of prior unsuccessful lawsuits and earlier findings that Burke repeated arguments already rejected by the court.

Ruling

Judge Gardephe adopted the report and recommendation in its entirety. The motion to dismiss filed by the Attorney General of New York and CUNY was granted. Burke’s request for leave to file a second amended complaint was denied. The court also certified that any appeal from the order would not be taken in good faith and denied permission to proceed without paying court fees for purposes of an appeal.