United States District Court, D. Vermont
MELVIN B. NEISNER, JR., individually and on behalf of all other taxpayers in the Town of Killington, Plaintiff,
TOWN OF KILLINGTON, Defendant.
RULING ON DEFENDANT'S MOTION TO DISMISS (DOC.
Honorable J. Garvan Murtha United States District Judge.
Melvin B. Neisner, Jr. (“Neisner”), a licensed
attorney acting pro se, sues the Town of Killington
(“Killington” or the “Town”) alleging
a violation of the Freedom of Information Act and multiple
state law claims. (Doc. 19 (“Am. Compl.”).)
Purporting to sue both individually and on behalf of all
other taxpayers in the Town of Killington, Neisner seeks a
declaratory judgment, a permanent injunction, and
compensatory and punitive damages. Killington moves to
dismiss the amended complaint for failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6). (Doc. 22.)
Neisner opposes the motion (Doc. 23) and Killington filed a
reply (Doc. 24). For the reasons discussed below,
Killington's motion to dismiss is granted in part and
denied in part.
case originated in state court in December 2015. (Doc. 9
(“Compl.”).) In early January 2016, the Town
removed the case to this Court because the original complaint
alleged violations of Neisner's due process rights under
the United States Constitution. (Doc. 1.) Following the
Town's January motion to dismiss (Doc. 7), Neisner moved
to amend his complaint and to remand the case to state court
(Docs. 12, 14). The proposed amended complaint dropped the
due process claim but added a claim under the Freedom of
Information Act. In April, the Court granted the motion to
amend, denied the motion to remand because of the federal
claim asserted in the amended complaint, and denied without
prejudice Killington's motion to dismiss in light of the
filing of the amended complaint. See Dkt. Entries
16-18 (Apr. 5, 2016). Accordingly, the amended complaint was
filed April 5, 2016.
following facts are assumed to be true for purposes of the
pending motions and are gleaned from the amended complaint.
Neisner is a resident, voter and taxpayer in the Town of
Killington. Killington is a chartered and organized town in
Vermont with a Selectboard authorized with the general
supervision of the affairs of the town.
Count IV, Neisner alleges a violation of the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552.
(Am. Compl. ¶¶ 31-33.) He alleges the Town is
subject to the provisions of FOIA with respect to public
records information requests. Id. ¶ 4. He
asserts the Town Selectboard and Town Manager failed to
provide requested documents and willfully destroyed documents
in violation of FOIA. (Am. Compl. ¶¶ 32-33.)
Counts I-III and V-VII, Neisner alleges various state law
claims including: breach of fiduciary duty concerning the
hiring and retention of a Town Manager (Am. Compl.
¶¶ 5-14); a “Complaint for permanent
injunction and declaratory judgment” regarding a sewer
bond and park and ride lease (Am. Compl. ¶¶ 15-22);
a claim under Vermont's Public Records Act, Vt. Stat.
Ann. tit. 1, § 317, and an “Appeal of
Decision” under Vt. Stat. Ann. tit. 1, § 319 (Am.
Compl. ¶¶ 23-30); a fraud claim regarding missing
and misleading information in Town Annual Reports (Am. Compl.
¶¶ 34-37; a damage to real property claim (Am.
Compl. ¶¶ 38-42); and a defamation and libel claim
(Am. Compl. ¶¶ 43-50).
Court is normally required to read a pro se plaintiff's
complaint liberally and to construe it to raise the strongest
arguments it suggests. See, e.g., McEachin v.
McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004). Here, given
that Plaintiff Neisner is an attorney currently practicing in
Vermont, his pleading is not entitled the special
consideration ordinarily given to pro se plaintiffs. See
Maloney v. Cuomo, 470 F.Supp.2d 205 (E.D.N.Y. 2007),
aff'd, 554 F.3d 56 (2d Cir. 2009), vacated
on other grounds, 561 U.S. 1040 (2010); Kuriakose v.
City of Mount Vernon, 41 F.Supp.2d 460, 465 (S.D.N.Y.
motion to dismiss tests the legal rather than the factual
sufficiency of a complaint. See, e.g., Sims v.
Ortiz, 230 F.3d 14, 20 (2d Cir. 2000). The Court will
grant a motion to dismiss only if the pleader fails to show a
“plausible entitlement to relief.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). The Court
must accept all facts alleged in the pleading as true and
draw all reasonable inferences in favor of the pleader.
Natural Res. Def. Council v. Johnson, 461 F.3d 164,
171 (2d Cir. 2006). Though the court must accept as true all
factual allegations, this requirement “is inapplicable
to legal conclusions.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). “[T]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id.; see also
Turkmen v. Hasty, 789 F.3d 218, 233 (2d Cir. 2015).
of whether they are drafted pro se, all complaints must
contain at least “some minimum level of factual support
for their claims.” Alfaro Motors, Inc. v.
Ward, 814 F.2d 883, 887 (2d Cir. 1987).
“Plaintiffs cannot amend their complaint by asserting
new facts or theories for the first time in opposition to
Defendants' motion to dismiss.” K.D. ex rel.
Duncan v. White Plains Sch. Dist., 921 F.Supp.2d 197,
209 n.8 (S.D.N.Y. 2013).
Freedom of Information Act Claim
alleges a violation of the Freedom of Information Act, 5
U.S.C. § 552, stemming from the Town Selectboard and
Town Manager's failure to provide requested documents and
alleged willful destruction of documents. (Am. Compl.
¶¶ 32-33.) He baldly asserts the Town is subject to
the provisions of FOIA with respect to public records