Opinion
23 Civ.7458 (JPC)
07-26-2024
UCHENNA UGO-ALUM and ASHER BERKOVIC, individually and on behalf of all others similarly situated, Plaintiffs, v. NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES, MARK J.F. SCHROEDER, Commissioner (in his official capacity), JOSHUA VINCIGUERRA, Deputy Commissioner and General Counsel (in his official and personal capacities), SARYA CRAFT, Deputy Commissioner and Chief Information Officer (in her official and personal capacities), and CHRISTINE M. LEGORIUS, First Assistant Counsel (in her official and personal capacities), Defendants.
OPINION AND ORDER
JOHN P. CRONAN, United States District Judge
In this putative class action, Plaintiffs Uchenna Ugo-Alum and Asher Berkovic challenge the mechanism by which the New York State Department of Motor Vehicles (“DMV”) notifies drivers of a monetary assessment upon the accumulation of a certain number of driving infractions and the subsequent suspension of their driving privileges in the state if that assessment is not paid. They assert a host of claims against the DMV; Mark J.F. Schroeder, the Commissioner of the DMV, in his official capacity; Joshua Vinciguerra, the Deputy Commissioner and General Counsel of the DMV, in his official and personal capacities; Sarya Craft, the Deputy Commissioner and Chief Information Officer of the DMV, in her official and personal capacities; and Christine M. Legorius, an attorney with the DMV, in her official and personal capacities (collectively with Schroeder, Vinciguerra, and Craft, the “Individual Defendants”). Plaintiffs allege violations of the Fourteenth Amendment and the Eighth Amendment of the United States Constitution, Article I of the New York State Constitution, and 42 U.S.C. § 1983, and seek injunctive relief, declaratory relief, and damages.
Defendants have moved to dismiss the Complaint for failure to state a claim and for lack of subject matter jurisdiction. As explained below, subject matter jurisdiction is lacking over Plaintiffs' causes of action seeking injunctive and declaratory relief, and the causes of action that survive Defendants' jurisdictional challenges are time-barred. Defendants' motion to dismiss therefore is granted.
I. Background
The following facts, which are assumed true for purposes of this Opinion and Order, are taken from the Complaint, Dkt. 1 (“Complaint”), as well as documents incorporated by reference in the Complaint and other documents susceptible to judicial notice. See Interpharm, Inc. v. Wells Fargo Bank, Nat'l Ass'n, 655 F.3d 136, 141 (2d Cir. 2011) (explaining that on a motion to dismiss pursuant to Rule 12(b)(6), the court must “assum[e] all facts alleged within the four corners of the complaint to be true, and draw[] all reasonable inferences in plaintiff's favor”); ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (noting that, on a motion to dismiss, courts “may consider any written instrument attached to the complaint, statements or documents incorporated into the complaint by reference, . . . and documents possessed by or known to the plaintiff and upon which it relied in bringing the suit”).
1. The Driver Responsibility Assessment
New York's Driver Responsibility Assessment (“DRA”) is a fine levied under New York law on “[a]ny person who accumulates six or more points on his or her driving record for acts committed within an eighteen month period.” N.Y. Vehicle & Traffic Law (“N.Y. V.T.L.”) § 503(4)(a). The amount of the fine is “one hundred dollars per year for a three-year period for the first six points on a driver's record and an additional twenty-five dollars per year for each additional point on such driver's record.” Id. § 503(4)(b). Under New York law, the DMV must send notice that the DRA is being imposed upon the accumulation of the requisite number of points on an individual's driving record. Specifically, when the DMV receives “evidence that a person is liable for the [DRA],” the DMV commissioner must
notify such person by first class mail to the address of such person on file with the department or at the current address provided by the United States postal service of the amount of such assessment, [of] the time and manner of making required payments, and that failure to make payment shall result in the suspension of his or her driver's license or privilege of obtaining a driver's license.Id. § 503(4)(c). If a person fails to pay the DRA, the DMV “commissioner shall suspend such person's driver's license or privilege of obtaining a license. Such suspension shall remain in effect until any and all outstanding [DRAs] have been paid in full.” Id. § 503(4)(d).
Consistent with Section 503(4)(c), the DMV's website states, “[i]f you must pay a driver's responsibility assessment, DMV will send you a statement with the amount you owe.” How to Pay the Driver Responsibility Assessment, N.Y. Dep't of Motor Vehicles, available at https://dmv.ny.gov/how-pay-driver-responsibility-assessment#footnoteref20r7iadt (last visited July 27, 2024).
Particularly relevant to Plaintiffs' claims is how authorities in New York, New Jersey, and Quebec, Canada, police the issuance and surrender of driver's licenses. As to New York and New Jersey, the monitoring is accomplished through the Driver License Compact (the “Compact”). See id. § 516.1 (“Compact”); N.J. Stat. Ann. §§ 39:5D-1 et seq. Under the Compact, “[t]he licensing authority” for any state that is a party to the Compact “shall not issue a license to drive to [an] applicant if . . . [t]he applicant is the holder of a license to drive issued by another party state and currently in force unless the applicant surrenders such license.” Compact Art. V(3). New York law further provides:
Upon receipt of a license which has been surrendered to the licensing authority of any other jurisdiction as a prerequisite to the issuance of a license by such other jurisdiction in accordance with the provisions of the Driver License Compact or any other laws of such jurisdiction, the [DMV] commissioner shall cancel such license.N.Y. V.T.L. § 510(8). So, if a former New York resident surrenders his or her New York driver's license to New Jersey to receive a New Jersey license, New York cancels the New York license. Quebec and New York, meanwhile, have adopted a “Reciprocal Agreement . . . concerning Drivers' Licenses and Traffic Offenses.” Que. Ministry of Travel Regs. C-24.2, r. 16, available at https://www.legisquebec.gouv.qc.ca/en/document/cr/C-24.2,%20r.%2016%20/ (last visited July 27, 2024). Under this agreement, a resident of New York with a qualifying driver's license can exchange their license for a Quebec license, and the “exchanged license shall be returned to the jurisdiction of origin.” Id. Art. 2.1, 2.3.
Plaintiffs additionally allege that upon “notification by the new state that a New York resident has moved and surrendered his New York driver's license, DMV immediately cancels the old New York driver's license and updates the motorist's information with the new address.” Complaint ¶ 28; see N.Y. V.T.L. § 510(8) (“Upon receipt of a license which has been surrendered to the licensing authority of any other jurisdiction as a prerequisite to the issuance of a license by such other jurisdiction in accordance with the provisions of the Driver License Compact or any other laws of such jurisdiction, the commissioner shall cancel such license. Provided, however, that such license shall not be cancelled if the licensee is a resident of this state.”); see also Complaint ¶ 31 (“The DMV receives notice of all motorists' change of residence and new out-of state address through the Driver License Compact instantaneously when the motorist surrenders his New York driver's license.”). New York law further requires every person with a New York driver's license “to notify the [DMV] commissioner in writing of any change of residence . . . within ten days.” N.Y. V.T.L. § 505(5).
2. Relevant Events
The events that give rise to this suit involve the DMV's imposition of DRAs on Ugo-Alum and Berkovic, and the subsequent suspension of their driving privileges in New York after they failed to timely pay the assessments.
i. Uchenna Ugo-Alum
Ugo-Alum, a resident of New Jersey who previously lived in Queens County, New York, has held a New Jersey driver's license “since at least March 16, 2009.” Complaint ¶ 9. Following his move from New York to New Jersey, “Ugo-Alum went to a New Jersey Motor Vehicle Commission office, obtained a New Jersey driver's license, and surrendered his New York driver's license.” Id. ¶ 45; see id. ¶ 47 (alleging that Ugo-Alum's “driving record states: ‘DOCUMENT SURRENDERED ON: 3/16/2009 TO NJ'”). Plaintiffs allege that, upon Ugo-Alum's surrender of his New York license, “[t]he [New York] DMV was immediately notified” of Ugo-Alum's new New Jersey license and address by virtue of the Compact and his New York license was cancelled. Id. ¶¶ 46-47.
On December 9, 2015, Ugo-Alum received a six-point speeding ticket while driving in Queens. Id. ¶ 48. He “pleaded guilty and paid that ticket on January 6, 2016 to the Traffic Violations Bureau (‘TVB'), an adjudication branch of the DMV.” Id. The speeding ticket reflected “Ugo-Alum's New Jersey address, which the officer obtained from . . . Ugo-Alum's New Jersey driver's license.” Id. ¶ 49. The ticket also included “a place for notifying the TVB of any changes in the motorist's address.” Id. As alleged, “[w]hen a motorist attempts to pay [a ticket] online the TVB online payment system requires him to update or confirm his address, which . . . Ugo-Alum did.” Id. As the speeding ticket was a six-point ticket, “[t]he DMV assessed a DRA upon . . . Ugo-Alum.” Id. ¶ 50. Notice of the DRA was mailed to Ugo-Alum's old address in Queens, however, so he did not receive the notice. Id. ¶¶ 51-52.
The TVB handles tickets for non-criminal moving traffic violations in the five boroughs of New York City, adjudicating such violations through administrative law judges. Traffic Violations Bureau, N.Y. Dep't of Motor Vehicles, available at https://dmv.ny.gov/brochure/traffic-violations-bureau (last visited July 27, 2024).
Then, on November 9, 2018, Ugo-Alum was stopped by a police officer while driving in Staten Island for allegedly crossing a hazard line. Id. ¶ 53. After running Ugo-Alum's name “through the system,” the officer informed Ugo-Alum that “his New York driving privileges had been suspended, and that she had the authority to immediately impound his vehicle but was declining to do so at that time. Instead, she issued two traffic tickets: one for crossing over a hazard line, and the other for driving without a license.” Id.
Over the next year, Ugo-Alum investigated why his New York driving privileges had been suspended, ultimately retaining counsel specializing in New York traffic law in late 2019. Id. ¶¶ 54-55. Ugo-Alum eventually learned that the suspension “had occurred on March 22, 2016, for failure to pay a DRA fee in 2016.” Id. ¶ 55. Ugo-Alum “promptly paid the $300 DRA on November 12, 2019, as soon as his traffic attorney informed him of the suspension's cause.” Id. ¶ 58. Soon thereafter, on November 22, 2019, his ticket for crossing a hazard line was dismissed. Id. ¶ 59. The second ticket, for driving without a license, was dismissed roughly two-and-a-half years later on or around May 6, 2022. Id.
Ugo-Alum alleges that due to these events, he has “been unable to drive in New York State without fear of further wrongful penalty by DMV and does so only when necessary.” Id. ¶ 60. He further alleges that “[t]his limitation has caused him to incur loss of potential work income, as well as . . . emotional harm from his inability to easily travel to visit family in New York.” Id. And Ugo-Alum's “driving abstract still lists the” allegedly “unlawful suspension,” which he contends “has caused him injuries including increased cost of insurance.” Id. ¶ 61.
ii. Asher Berkovic
Berkovic resides in New York, but “[f]rom approximately November 13, 2014 to June 1, 2023,” he lived in Quebec and “held a Quebec driver's license.” Id. ¶ 10. Before November 13, 2014, Berkovic resided in Kings County, New York. Id. After moving to Quebec, Berkovic surrendered his New York driver's license to Quebec's Ministry of Transportation “and received a Quebec driver's license. The personnel at the Quebec agency informed him that the [New York] DMV would be notified immediately of the surrender of his New York driver's license.” Id. ¶ 63; see id. ¶ 65 (alleging that Berkovic's “DMV driver record states: ‘DOCUMENT SURRENDERED ON: 11/13/2014 TO QUEBEC'”). Plaintiffs allege that the “DMV was immediately notified” of Berkovic's new Quebec license and Quebec address upon his surrender of his New York license, at which point his New York license was cancelled. Id. ¶¶ 64-65.
On August 6, 2018, Berkovic received a three-point speeding ticket, and on May 23, 2019, he received a three-point ticket for failing to comply with a stop sign, both issued while he was driving in New York. Id. ¶ 66. Because these tickets amounted to six points within eighteen months, Berkovic owed the DRA. The first ticket listed Berkovic's Quebec address, “which the law enforcement personnel who made the stop obtained from his Quebec driver's license.” Id. ¶ 67. Berkovic paid that ticket via mail, and, as alleged, the envelope containing payment listed Berkovic's Quebec address. Id. ¶ 68. Plaintiffs do not allege how Berkovic paid the second ticket.
Although Plaintiffs do not allege that Berkovic paid either ticket online, they do allege that the website for online payment “asks for the payee's current billing address.” Complaint ¶ 68. They additionally allege that the TVB's “online payment system requires all motorists to update or confirm their address.” Id.
Next, “[i]n approximately mid-October 2019, . . . Berkovic's parents informed him that a letter from the DMV had arrived in the mail at their Brooklyn address.” Id. ¶ 70. That letter notified Berkovic that the DMV was imposing a DRA against him. Id. As alleged, “[n]o such notification had ever been sent to . . . Berkovic's correct address in Quebec.” Id. After Berkovic failed to timely pay the DRA, “[a] suspension on . . . Berkovic's driver's license was in place from November 19, 2019 until December 17, 2019.” Id. Although the Complaint does not specifically allege that Berkovic ultimately paid the DRA, he presumably did since the suspension was lifted on December 17, 2019. Berkovic alleges that his “driving abstract still lists . . . the suspension,” which has led to increased insurance costs. Id. ¶ 71.
3. Plaintiffs' Prior New York State Court Case
On May 25, 2020, Ugo-Alum and Berkovic commenced a putative class action against the DMV in the New York Supreme Court, New York County, alleging that “the DMV's policy of suspending the driving privileges of former New York State (NYS) residents and imposing related fees and prosecutions for driving in NYS with a suspended license due to their failure to respond to certain notices is unconstitutional.” Ugo-Alum v. N.Y. Dep't of Motor Vehicles (“Ugo-Alum I”), 164 N.Y.S.3d 794, 2022 WL 1098918, at *2 (N.Y. Sup. Ct. 2022). Plaintiffs “allege[d] that the DMV's knowing use of incorrect mailing addresses constitutes a violation of the due process clause of the Fourteenth Amendment and the Eighth Amendment of the U.S. Constitution and Article I of the NYS Constitution.” Id. Plaintiffs additionally contended “that the DMV's actions in failing to effectuate adequate notice” were “arbitrary and capricious.” Id. The sole defendant in that lawsuit, the DMV, moved to dismiss the case on a number of procedural and jurisdictional grounds. See id. at *3.
On February 18, 2022, the New York Supreme Court denied the DMV's motion. Id. at *7. Of relevance here, the court cited an October 14, 2010 decision from the New York Court of Claims in Nuzzolo v. State of New York, where the Court of Claims described the DMV's use, at the time, of two different address systems: one maintained by the Traffic Violations Division (“TVD”) and another utilized to generate the mailing addresses for DRAs. Dkt. 34-1 (copy of decision in Nuzzolo) (“Nuzzolo”) at 3. The judge in Nuzzolo additionally noted that the TVD database catalogued addresses listed on traffic tickets whereas the database used to mail DRAs relied on the address “first established in the system unless DMV [was] notified otherwise.” Id. The judge further explained that “while the TVD database may reflect a current address for an out-of-state licensee and input from that unit may trigger the imposition of a DRA, DRA notices and suspension orders based thereon utilize a different database which is not automatically updated to reflect the current address of the out-of-state licensee.” Id.
The Court takes judicial notice of the Court of Claims decision in Nuzzolo for purposes of what was stated in that decision, not for the truth of the matters asserted in those statements. See Great Am. Ins. Co. v. Houlihan Lawrence, Inc., 449 F.Supp.3d 354, 360 n.3 (S.D.N.Y. 2020). When referencing page numbers in that decision, the Court uses the pagination generated by the Electronic Case Filing system.
The DMV appealed the denial of its motion to dismiss in Ugo-Alum I, and while the appeal was pending, the DMV moved “for a discretionary stay pursuant to CPLR 2201 of all proceedings until resolution of” the appeal. See Dkt. 33-1 (“Legorius Affirmation”) ¶ 2 (submitted to the New York Supreme Court on May 25, 2022). In support of its stay motion, the DMV submitted the Legorius Affirmation, an affirmation sworn under penalty of perjury by Legorius who, as noted above, is an attorney for the DMV. See id. ¶ 1 (Legorius describing her position at the time as “the First Assistant Counsel in Counsel's Office at the New York State Department of Motor Vehicles”). While the ultimate resolution of the DMV's stay motion is not relevant to the instant dispute, the content of the Legorius Affirmation is. In the Legorius Affirmation-which presumably was intended to demonstrate the burden on the DMV in responding to discovery geared at identifying potential class members-Legorius made statements concerning the databases used by the DMV. Legorius attested that the DMV uses “at least four different major database systems,” Id. ¶ 6, and that “[t]hese multiple database systems do not collect and store the exact same information, nor are they all interconnected,” Id. ¶ 7. She further stated that “[n]o one system would have all the information comprising the definition of a ‘Class Member', even if DMV did collect and store all of the information Plaintiffs seek.” Id. Although the other Individual Defendants are not mentioned in the Legorius Affirmation, see generally id., Plaintiffs allege that the Affirmation was “executed at the direction, express or implied, of Defendant Vinciguerra” and “drafted based on information provided by Defendant Craft and/or supervisees of Defendant Craft who provided information to Defendant Legorius at Defendant Craft's express or implied direction,” Complaint ¶¶ 80-81. And they further allege, citing the Legorius Affirmation and the Nuzzolo decision as support, that the “DMV knows it has been mailing notices of the DRA to the wrong address and continues to do so” and that the agency has “known of this problem since at least 2010, yet still has not fixed it.” Id. ¶ 3 (citations omitted); see also Id. ¶¶ 78-79.
Because the Complaint relies heavily on the Legorius Affirmation, see Complaint ¶¶ 3 n.2 (citing to the Legorius Affirmation), 78-81 (allegations related to the Legorius Affirmation), 108 (mentioning database flaws alleged to have been revealed by the Legorius Affirmation), 109 (same), 119 (same), 122 (same), the Court considers it in resolving Defendants' motion to dismiss. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d. Cir. 2002) (holding that a court may consider a document as integral to a complaint “where the complaint relies heavily upon its terms and effect” (internal quotation marks omitted)).
On December 8, 2022, the New York Supreme Court's Appellate Division, First Department, reversed the lower court's denial of the DMV's motion to dismiss. Ugo-Alum v. N.Y. Dep't of Motor Vehicles, 177 N.Y.S.3d 890 (1st Dep't 2022). The First Department held that because “the gravamen of the complaint [sought] to challenge [the DMV's] suspension of plaintiffs' New York State driving privileges as arbitrary and capricious on the grounds” of improper notification of the DRAs, Plaintiffs' claims were “cognizable under CPLR article 78 [and were] time-barred by the four-month statute of limitations.” Id. (citing N.Y. C.P.L.R. § 217(1)). The New York Court of Appeals denied Plaintiffs' motion for leave to appeal the First Department's decision. Ugo-Alum v. N.Y. Dep't of Motor Vehicles, 209 N.E.3d 90 (N.Y. 2023).
B. Procedural History
After their litigation in state court was unsuccessful, Plaintiffs filed the Complaint in this action on August 23, 2023, asserting eight causes of action: (1) a request for injunctive relief against all Defendants arising from violations of the Fourteenth Amendment of the United States Constitution, Complaint ¶¶ 97-100, Prayer for Relief (b) (“Count One”); (2) a request for injunctive relief against all Defendants arising from violations of the Eighth Amendment of the United States Constitution and Article I of the New York State Constitution, Id. ¶¶ 101-102, Prayer for Relief (b) (“Count Two”); (3) a request for an injunction requiring all Defendants to “remedy” the alleged “database flaws” and to “segregate and hold in escrow any future monies collected in connection with the DRA that are attributable to the database flaw,” Id. ¶¶ 103-112 (“Count Three”); (4) a request for a declaratory judgment “that Defendants will continue to violate federal law by not addressing the [alleged] database flaw . . . and that some of the funds being collected by the DMV on a continuing basis in connection with the DRA are derived from violation of the law,” Id. ¶¶ 113-115 (“Count Four”); (5) a request for an injunction enjoining the Individual Defendants in their official capacities “from continuing to maintain, and refusing to remedy, the database flaw,” citing 42 U.S.C. § 1983 and the Fourteenth Amendment, Id. ¶¶ 116-119 (“Count Five”); (6) a request for an injunction enjoining the Individual Defendants in their official capacities “from continuing to maintain, and refusing to remedy, the database flaw,” citing 42 U.S.C. § 1983 and the Eighth Amendment, Id. ¶¶ 120-122 (“Count Six”); (7) a cause of action under 42 U.S.C. § 1983 for Fourteenth Amendment violations against Vinciguerra, Craft, and Legorius in their personal capacities, seeking damages, Id. ¶¶ 123-129 (“Count Seven”); and (8) a cause of action under 42 U.S.C. § 1983 for Eighth Amendment violations against Vinciguerra, Craft, and Legorius in their personal capacities, seeking damages, Id. ¶¶ 130-135 (“Count Eight”).
On December 8, 2023, Defendants moved to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) and for lack of subject matter jurisdiction under Rule 12(b)(1). Dkts. 31, 32 (“Motion”), 33. As a threshold matter, Defendants contend that all of Plaintiffs' claims are untimely. Motion at 6-10. They next argue that Plaintiffs' claims against the DMV and Plaintiffs' “[d]amages claims against the” Individual Defendants in their official capacities are barred by sovereign immunity, Id. 10-11, that Plaintiffs lack standing to seek injunctive relief, Id. 11-13, that Plaintiffs have failed to state a claim for a violation of the Fourteenth Amendment, the Eighth Amendment, or Article I of the New York State Constitution, Id. at 14-19, that all claims against the Individual Defendants in their individual capacities fail because Plaintiffs have not alleged sufficient facts showing personal involvement of such Defendants in the alleged wrongs, Id. at 19-21, that all claims against the Individual Defendants in their personal capacities must be dismissed on qualified immunity grounds, Id. at 21-24, and that Plaintiffs lack standing to assert their claim for declaratory relief, Id. at 24-25. On January 16, 2024, Plaintiffs filed their opposition to Defendants' motion, Dkt. 34 (“Opposition”), and requested oral argument, Dkt. 35. On February 6, 2024, Defendants filed their reply. Dkt. 36 (“Reply”). The Court then ordered the parties to submit supplemental briefing on the question of “whether Defendants' time-bar argument would, if successful, apply to and dispose of all the causes of action asserted in the Complaint,” Dkt. 37 at 2, and the parties filed their supplemental briefing on July 3, 2024, Dkts. 38 (Defendants' brief), 39 (Plaintiffs' brief).
II. Legal Standard
A. Federal Rule of Civil Procedure 12(b)(1)
Defendants move to dismiss certain of Plaintiffs' claims under Federal Rule of Civil Procedure 12(b)(1). “A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). Courts take the uncontroverted facts of the complaint as true, but “[w]here jurisdictional facts are placed in dispute, the court has the power and obligation to decide issues of fact by reference to evidence outside the pleadings.” Tandon v. Captain's Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014) (alteration in original) (internal quotation marks omitted).
B. Federal Rule of Civil Procedure 12(b)(6)
Defendants also move to dismiss certain of Plaintiffs' claims under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. To survive such a motion, “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 is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. These “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. Although the Court must “accept[] as true the factual allegations in the complaint and draw[] all inferences in the plaintiff's favor,” Biro v. Conde Nast, 807 F.3d 541, 544 (2d Cir. 2015), it need not “accept as true legal conclusions couched as factual allegations,” LaFaro v. N.Y. Cardiothoracic Grp., PLLC, 570 F.3d 471, 475-76 (2d Cir. 2009).
III. Discussion
Three of Defendants' arguments for dismissal implicate the Court's subject matter jurisdiction: their sovereign immunity argument, see Sulehria v. New York, No. 13 Civ. 6990 (AJN), 2014 WL 4716084, at *4 (S.D.N.Y. Sept. 19, 2014) (“Eleventh Amendment immunity is a jurisdictional bar.” (citing Edelman v. Jordan, 415 U.S. 651, 677-78 (1974))), and their two standing arguments, see SM Kids, LLC v. Google LLC, 963 F.3d 206, 210 (2d Cir. 2020) (“A motion to dismiss for lack of Article III standing challenges the subject-matter jurisdiction of a federal court.”). The Court first addresses these jurisdictional arguments before turning to any appropriate non-jurisdictional arguments. United States v. Bond, 762 F.3d 255, 263 (2d Cir. 2014) (“Subject matter jurisdiction is a ‘threshold question that must be resolved . . . before proceeding to the merits.'” (quoting Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 88-89 (1998))).
A. Defendants' Jurisdictional Challenges
1. Sovereign Immunity
Defendants argue that Plaintiffs' claims against the DMV are barred by sovereign immunity. Motion at 10-11. In response, Plaintiffs assert only that their claims against the Individual Defendants in their official capacities are not barred by sovereign immunity under the Ex Parte Young exception to sovereign immunity. Opposition at 21. As such, Plaintiffs appear to concede that their claims against the DMV are barred by sovereign immunity. See In re UBS AG Sec. Litig., No. 07 Civ. 11225 (RJS), 2012 WL 4471265, at *21 n.19 (S.D.N.Y. Sept. 28, 2012) (“Although the [defendants] addressed this argument in their opening brief, Lead Plaintiff did not respond to it in its opposition brief. Therefore, it appears that Lead Plaintiff has conceded the point by silence.” (citations omitted)). Plaintiffs' concession makes sense, as their claims against the DMV are “clearly barred by the Eleventh Amendment because the DMV is a state agency.” Feingold v. New York, 366 F.3d 138, 149 (2d Cir. 2004). The only causes of action asserted against the DMV are Counts One through Four, which are asserted against “all Defendants.” Complaint ¶¶ 97-115. Accordingly, Counts One through Four are dismissed without prejudice to the extent asserted against the DMV.
Defendants also argue that sovereign immunity bars any claims for damages against the Individual Defendants in their official capacities, Motion at 11, but Plaintiffs seek only injunctive relief against those Defendants in their official capacities, see Complaint ¶¶ 97-122.
The dismissals of Counts One through Four as to the DMV-like the dismissals that follow for lack of standing, see infra III.A.2, III.A.3-are without prejudice because they are based on the Court's lack of subject matter jurisdiction. Green v. Dep't of Educ. of City of New York, 16 F.4th 1070, 1074 (2d Cir. 2021) (per curiam) (“When subject matter jurisdiction is lacking, the district court lacks the power to adjudicate the merits of the case, and accordingly Article III deprives federal courts of the power to dismiss the case with prejudice.” (internal quotation marks and alteration omitted)); John v. Whole Foods Mkt. Grp., Inc., 858 F.3d 732, 735 (2d Cir. 2017) (“[W]here a complaint is dismissed for lack of Article III standing, the dismissal must be without prejudice, rather than with prejudice.”).
2. Standing for Injunctive Relief
Defendants' second jurisdictional argument is that Plaintiffs lack standing to seek injunctive relief-which they seek in Counts One, Two, Three, Five, and Six-because they allege only past injuries, namely the prior suspensions of their driving privileges and the appearance of those suspensions on their driving records. Motion at 11-13. Plaintiffs maintain that they “allege that the appearance of suspensions on their driving record[s] today causes them present harm,” Opposition at 23, pointing to their allegations that the continued listing of those suspensions “has caused [Plaintiffs] injuries including increased cost of insurance,” Complaint ¶¶ 61, 71. See Opposition at 23-25.
Article III of the U.S. Constitution “confines the federal judicial power to the resolution of ‘Cases' and ‘Controversies.'” TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021) (quoting U.S. Const. art. III, § 2). “For there to be a case or controversy under Article III, the plaintiff must have a personal stake in the case-in other words, standing.” Id. (internal quotation marks omitted). “For each form of relief sought, a plaintiff must demonstrate standing separately.” Nicosia v. Amazon.com, Inc., 834 F.3d 220, 239 (2d Cir. 2016) (internal quotation marks omitted). And in the class action context, at least “one named plaintiff [must] have standing with respect to each claim.” Hyland v. Navient Corp., 48 F.4th 110, 118 (2d Cir. 2022).
To satisfy the “irreducible constitutional minimum of standing,” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016) (internal quotation marks omitted), “a plaintiff must show (i) that he suffered an injury in fact that is concrete, particularized, and actual or imminent; (ii) that the injury was likely caused by the defendant; and (iii) that the injury would likely be redressed by judicial relief,” TransUnion, 594 U.S. at 423. As the party invoking federal jurisdiction, Plaintiffs “bear[] the burden of establishing these elements,” and “each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). At the pleading stage, the Court must determine whether the allegations “affirmatively and plausibly suggest that [the plaintiff] has standing to sue.” Carter v. HealthPort Techs., LLC, 822 F.3d 47, 56 (2d Cir. 2016) (citation omitted).
Where, as here, injunctive relief is sought, a plaintiff cannot meet the injury-in-fact requirement merely by relying on past injury. Dorce v. City of New York, 2 F.4th 82, 95 (2d Cir. 2021); cf. O'Shea v. Littleton, 414 U.S. 488, 495 (1974) (“Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief ....”). Rather, a plaintiff “must show a likelihood that he or she will be injured in the future.” Deshawn E. by Charlotte E. v. Safir, 156 F.3d 340, 344 (2d Cir. 1998). “Such an allegation of future injury will be sufficient only if ‘the threatened injury is certainly impending, or there is a substantial risk that the harm will occur.'” Dorce, 2 F.4th at 95 (quoting Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014)). Allegations of possible future injury will not do. Clapper v. Amnesty Int'l., 568 U.S. 398, 409 (2013).
Plaintiffs' speculation that their past suspensions may trigger increased insurance costs going forward does not show a likelihood of future injury. That is because Plaintiffs' 2019 driving suspensions, even if they continue to appear on their driving records, are unlikely to lead to increased insurance costs for Plaintiffs. Under New York law, upon request, the DMV commissioner must provide an insurance carrier
an abstract of the operating record of any person subject to the provisions of this article, which abstract shall include enumeration of any convictions of such person of a violation of any provision of any statute relating to the operation of a motor vehicle or any accidents in which a motor vehicle driven by such person has been involved during the current calendar year and the three calendar years preceding that in which the request for the operating record is received.N.Y. V.T.L. § 354. The suspension of each Plaintiff's driving privileges was lifted nearly five years ago in late 2019. See Complaint ¶¶ 58 (alleging that Ugo-Alum paid the outstanding DRA fine on November 12, 2019), 70 (“A suspension on Plaintiff Berkovic's driver's license was in place from November 19, 2019 until December 17, 2019.”). Under Section 354, were the DMV to receive today a request from an insurance carrier for either Plaintiff's driving record, the agency would be required to respond with only violations for 2024 and the three preceding calendar years of 2021, 2022, and 2023. Thus, the 2019 suspensions would not be included in such a response. Notably, Plaintiffs do not allege or even argue that the DMV is providing insurance carriers with more information or records than what is required under Section 354. See generally Complaint; Opposition at 23-24. It follows, then, that even assuming that the presence of those suspensions on Plaintiffs' records previously “has caused [Plaintiffs] injuries including increased cost of insurance,” Complaint ¶¶ 61, 71, Plaintiffs no longer face a likelihood of increased insurance costs arising from those suspensions. Plaintiffs' suspension records thus are analogous to an inaccuracy in an internal credit file that is not disclosed to a third party, which the Supreme Court has held is not a concrete harm for standing purposes. TransUnion, 594 U.S. at 434 (“The mere presence of an inaccuracy in an internal credit file, if it is not disclosed to a third party, causes no concrete harm.”).
Given this conclusion, there is no need to reach the parties' arguments regarding whether insurers can increase their rates based on resolved suspensions under New York Insurance Law Section 2335(c). See Motion at 13 n.15; Opposition at 24-25.
This case therefore does not present, as Plaintiffs argue, “unconstitutional agency policies that have hurt these Plaintiffs before and will continue to harm them and the Class of similarly situated motorists in the future.” Opposition at 23 (emphasis added). Indeed, two of the three cases cited by Plaintiffs on this front involved an alleged clear and ongoing policy that forbade the plaintiffs from wearing beards of a certain length. See Sughrim v. New York, 690 F.Supp.3d 355, 391-95 (S.D.N.Y. 2023) (certifying a class for officers who had their requests for reasonable accommodations to wear their beard past the policy-permitted length denied and any officers who in the future would have to submit such requests to get an exemption from the policy); Sughrim v. New York, 503 F.Supp.3d 68, 91 (S.D.N.Y. 2020) (stating that the “beard policy remains in place”). In contrast to an ongoing policy that remains in place, Plaintiffs allege injuries that resulted from the discrete acts of the driving privilege suspensions and subsequent notation on Plaintiffs' driving records. And to the extent Plaintiffs experienced increased insurance costs in the past, see Complaint ¶¶ 61, 71, such past injuries are insufficient to establish standing for prospective injunctive relief.
Plaintiffs additionally cite Talukder v. New York, No. 22 Civ. 1452 (RA), 2023 WL 2752863 (S.D.N.Y. Mar. 31, 2023), to argue that it would be premature for the Court to dismiss the Complaint because the Individual Defendants have the authority to change the policies. Opposition at 23 (citing Talukder, 2023 WL 2752863, at *6). But in Talukder, the defendants argued for dismissal on the grounds that the individual officials named as defendants lacked the authority to provide the requested injunctive relief. 2023 WL 2752863, at *6. The court found it premature to dismiss on that basis given allegations that at least one defendant had final decisionmaking authority at the relevant agency and another had denied the plaintiff's request for an accommodation. Id. Here, Defendants have not argued that the Individual Defendants lack the authority to provide the injunctive relief Plaintiffs seek.
Accordingly, the Court dismisses without prejudice Plaintiffs' causes of action that seek injunctive relief-Counts One, Two, Three, Five, and Six-for lack of standing and therefore lack of subject matter jurisdiction pursuant to Rule 12(b)(1).
3. Standing for Declaratory Relief
Defendants' third jurisdictional argument seeks dismissal of Count Four on the grounds that there is no case or controversy of “sufficient immediacy and reality” to justify a declaratory judgment. Motion at 24 (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 104 (1983)). In their Opposition, Plaintiffs jointly present their arguments defending standing to seek injunctive relief and a declaratory judgment. Opposition at 23-25; see supra III.A.2.
For a court to enter a declaratory judgment, there must be an actual controversy of “sufficient immediacy and reality.” Lyons, 461 U.S. at 104. This requires a “real and immediate threat” that the plaintiff will sustain his injury again. Id. at 110. As with injunctive relief, “past wrongs do not in themselves amount to that real and immediate threat of injury necessary to make out a case or controversy.” Id. at 103. Indeed, the Second Circuit has assessed whether a plaintiff has standing to obtain declaratory relief using the same rubric it employs to assess whether a plaintiff has standing to obtain injunctive relief. See Marcavage v. City of New York, 689 F.3d 98, 103 (2d Cir. 2012) (dismissing both injunctive and declaratory relief claims because the plaintiffs had “not demonstrated a certainly impending future injury”).
Given the overlapping standing analysis, Plaintiffs lack standing to seek declaratory relief for the same reasons that standing is lacking for injunctive relief. See supra III.A.2. They have not sufficiently alleged facts indicating that they face a real and immediate threat that they will sustain their injuries again in the future. Thus, Plaintiffs are ultimately “saying no more than that a wrong has been done in the past and [they] want[] a declaration that these past acts constitute a wrong. This is not the function of an action for declaratory judgment.” Am. Dietaids Co. v. Celebrezze, 215 F.Supp. 252, 254 (S.D.N.Y. 1963), aff'd, 317 F.2d 658 (2d Cir. 1963). With standing lacking, the Court dismisses without prejudice Count Four for lack of subject matter jurisdiction under Rule 12(b)(1).
* * *
Accordingly, the Court dismisses without prejudice for lack of subject matter jurisdiction Counts One through Six.
B. Statute of Limitations
Turning to Defendants' arguments under Rule 12(b)(6) for the remaining two Counts, the Court begins and ends with Defendants' argument that these claims are time barred under the three-year statute of limitations for Section 1983 claims. Defendants argue that Plaintiffs knew of their injuries by, at the latest, November 12, 2019, for Ugo-Alum, and December 17, 2019, for Berkovic, when each Plaintiff paid his outstanding DRA, and that these dates are more than three years before this case was initiated. Motion at 6-10. Plaintiffs respond that new evidence-i.e., the Legorius Affirmation-emerged during Ugo-Alum I “that illuminated the specific cause of [Plaintiffs'] damages, the specific individuals responsible, and the ongoing nature of the harm,” and therefore their claims did not accrue until that Affirmation was filed in May 2022. Opposition at 14. In particular, they argue that the Legorius Affirmation revealed flaws with the DMV's database systems that, they contend, caused the DRA notices to be sent to incorrect addresses and additionally revealed “the specific identities of those who caused or refused to fix” the database flaws. Id. at 13. Plaintiffs additionally argue that their claims are timely under the continuing violation doctrine. Id. at 16-17.
Notwithstanding Plaintiffs' suggestion otherwise, Defendants do not argue that the fourmonth statute of limitations for proceedings under Article 78 of the New York Civil Practice Law & Rules applies. Compare Opposition at 12-13 with Motion at 6-10.
Plaintiffs also argue that the Court should equitably toll the statute of limitations because they diligently investigated the facts underlying their claims. Opposition at 15 n.16. This argument, which is not developed and relies solely on a reference to their state court litigation, is only raised in a footnote, so the Court does not consider it. See Lowinger v. Rocket One Cap., LLC, No. 23 Civ. 9243 (JPC), 2024 WL 2882622, at *5 n.7 (S.D.N.Y. June 5, 2024) (citing Tolbert v. Queens Coll., 242 F.3d 58, 75 (2d Cir. 2001)); City of Philadelphia v. Bank of Am. Corp., 498 F.Supp.3d 516, 537 (S.D.N.Y. 2020) (stating that a “party may not raise an argument in a footnote alone” and collecting cases).
1. Plaintiffs' Discovery of Their Injuries in 2019
“[I]n New York, the statute of limitations for Section 1983 claims is New York's general statute of limitations for personal injury actions . . . which is three years.” Kane v. Mt. Pleasant Cent. Sch. Dist., 80 F.4th 101, 108 (2d Cir. 2023) (citation omitted). For purposes of applying that statute of limitations, “[f]ederal law determines when a section 1983 cause of action accrues.” Pearl v. City of Long Beach, 296 F.3d 76, 80 (2d Cir. 2002) (citations omitted). In this Circuit, “accrual occurs when the plaintiff knows or has reason to know of the injury which is the basis of his action.” Id. (internal quotation marks omitted); accord Hogan v. Fischer, 738 F.3d 509, 518 (2d Cir. 2013). This is sometimes called the “discovery rule.” Pearl, 296 F.3d at 80; see Gonzalez v. Hasty, 802 F.3d 212, 221 (2d Cir. 2015) (noting that Section 1983 claims “typically are subject to a ‘discovery-based trigger'”).
In their moving brief, Defendants address the possible argument that the statute of limitations was tolled by former New York Governor Andrew Cuomo's COVID-19 Executive Orders that tolled deadlines by 228 days for commencing civil actions. Motion at 7 n.8. Those state Executive Orders, however, had no effect on federal statutes of limitation. Verne v. New York City Dep't of Educ., No. 21 Civ. 5427 (JPC), 2022 WL 4626533, at *6 (S.D.N.Y. Sept. 30, 2022). But even if the Executive Orders did toll the statute of limitations here, Plaintiffs' claims would be time barred unless the accrual date for their claims is measured from the date of the Legorius Affirmation or the continuing violation doctrine applies.
“[I]n applying a discovery accrual rule . . . discovery of the injury, not discovery of the other elements of a claim, is what starts the clock.” Rotella v. Wood, 528 U.S. 549, 555 (2000). This means that “[u]nder the discovery rule, a claim accrues when a plaintiff comes into possession of the critical facts that he has been hurt and who inflicted the injury.” Twersky v. Yeshiva Univ., 993 F.Supp.2d 429, 439 (S.D.N.Y. 2014), aff'd, 579 Fed.Appx. 7 (2d Cir. 2014). “Put somewhat differently, a claim has accrued ‘when the plaintiff knows, or should know, enough to protect himself by seeking legal advice.'” Id. (quoting A.Q.C. ex rel. Castillo v. United States, 656 F.3d 135, 142 (2d Cir. 2011)). A plaintiff “cannot ‘postpone the accrual' of [their] claims by arguing that each new injury resulting from the defendants' [pre-statute of limitations actions] extends the statute of limitations.” Mahany v. City of Buffalo Police Dep't, 777 Fed.Appx. 547, 549 (2d Cir. 2019) (citing Singleton v. City of New York, 632 F.2d 185, 192-93 (2d Cir. 1980)).
Both Ugo-Alum and Berkovic discovered their injuries, at the latest, in late 2019. Ugo-Alum learned on November 9, 2018, that his New York driving privileges had been suspended when he was stopped for an alleged traffic violation in Staten Island. Complaint ¶ 53. After investigating the basis for that suspension, Ugo-Alum discovered in late 2019 that his license was suspended in March 2016 because he had failed to pay the DRA. Id. ¶¶ 54-55. He then paid the assessment on November 12, 2019. Id. ¶ 58. Even generously giving Ugo-Alum the benefit of the date he paid that assessment as the start date for Section 1983's statute of limitations, he was required to commence this lawsuit by November 12, 2022. Berkovic meanwhile alleges that he received notice of the DRA in mid-October 2019 when his parents told him that the notification letter from the DMV had arrived in the mail, that his driving suspension for non-payment began on November 19, 2019, and that the suspension was lifted on December 17, 2019, presumably when he paid the assessment. Id. ¶ 70. And even generously giving Berkovic the benefit of December 17, 2019, for the start of the three-year statute of limitations, he had until December 17, 2022, to commence this action. Plaintiffs, however, initiated this action on August 23, 2023, Dkt. 1, well past the deadlines for them to bring suit under Section 1983. And to be sure, their state court litigation did not toll the statute of limitations for their Section 1983 claims. See Abbas v. Dixon, 480 F.3d 636, 641 (2d Cir. 2007) (“We have held, however, that a plaintiff's pursuit of a state remedy, such as an Article 78 proceeding, does not toll the statute of limitations for filing a claim pursuant to section 1983.” (citation omitted)); Williams v. Walsh, 558 F.2d 667 (2d Cir. 1977) (rejecting the argument that the statute of limitations for Section 1983 should be tolled based on the filing of a state court action in Connecticut).
2. The Legorius Affirmation
Plaintiffs' attempt to extend their claims accrual dates to the filing of the Legorius Affirmation fails because that Affirmation did not reveal their injuries. At most, the Legorius Affirmation contained information relevant to the cause of their injuries and, perhaps, some of the individuals responsible. The Legorius Affirmation revealed that, as of May 2022, the DMV was using multiple database systems to store information on individuals who would have been potential class members in Plaintiffs' state court case. See generally Legorius Affirmation. But this information has no bearing on existence vel non of each Plaintiff's injury: the suspensions of their New York driving privileges because of their failure to pay the DRA and the appearance of those suspensions on their driving records. Those suspensions, along with the associated reflection of the suspensions of Plaintiffs' driving records, are the only property or liberty interests at issue. Details concerning the multiple database systems used, and the apparent difficulty in retrieving information from them, may explain why the DRA notices were mailed to particular addresses, and thus perhaps why Plaintiffs allegedly suffered a deprivation of their property or liberty interests without due process. The information is not, however, necessary to plead either element of a Fourteenth Amendment claim. See Bryant v. N.Y. State Educ. Dep't, 692 F.3d 202, 218 (2d Cir. 2012) (“A procedural due process claim is composed of two elements: (1) the existence of a property or liberty interest that was deprived and (2) deprivation of that interest without due process.”). Plaintiffs were able to plead a deprivation of a liberty interest and an accompanying lack of process without knowing the DMV uses multiple database systems. Likewise, Plaintiffs could have pleaded the fundamental factual tenets of their Eighth Amendment claim without the information contained in the Legorius Affirmation. See United States v. Viloski, 814 F.3d 104, 109-13 (2d Cir. 2016) (explaining the two-part test for establishing a constitutionally excessive fine: the forfeiture at issue must constitute a “fine” within the meaning of the Excessive Fines Clause and it must be “grossly disproportional to the gravity of a[n] [individual's] offense”).
The Legorius Affirmation arguably did not even reveal information that was not already publicly available to Plaintiffs, as the Nuzzolo decision from 2010 spelled out that the DMV was using different database systems for sending DRA notices and for traffic tickets. Nuzzolo at 3.
Allegations of a violation of Article I of the New York Constitution “requires the same analysis as” allegations of a violation of the Eighth Amendment, and the New York Constitution “provides no greater protection” than the United States Constitution. Wirth v. City of Rochester, No. 17 Civ. 6347 (FPG), 2021 WL 3270512, at *2 (W.D.N.Y. July 30, 2021) (quoting Grinberg v. Safir, 694 N.Y.S.2d 316, 327 (N.Y. Sup. Ct. 1999)).
Tellingly, back in May 2020, Plaintiffs brought both Fourteenth Amendment and Eighth Amendment claims based on the same alleged injuries in the New York Supreme Court. See Ugo-Alum I, 2022 WL 1098918, at *4, 6 (analyzing Fourteenth Amendment and Eighth Amendment claims). Clearly, Plaintiffs had enough information at that time-two years before the filing of the Legorius Affirmation-to bring a lawsuit alleging constitutional violations arising from the very same injuries.
To be sure, Plaintiffs named multiple individuals as Defendants in this case who were not named in Ugo-Alum I. See 2022 WL 1098918, at *2-3 (naming only the DMV as a defendant). Yet “[t]he relevant inquiry . . . is not whether [a plaintiff has] discovered the identity of the defendants” but rather when a plaintiff discovers the injury. Levy v. BASF Metals Ltd., 917 F.3d 106, 108 (2d Cir. 2019); see also Roeder v. J.P. Morgan Chase & Co., No. 21-552, 2022 WL 211702, at *1 (2d Cir. Jan. 25, 2022) (holding that the discovery rule meant that the plaintiffs' claims accrued when they were released from captivity for tortious claims related to such captivity, despite only learning of the alleged defendants' potential role in the imprisonment at a later date). And this is not a case where Plaintiffs' injuries were in any manner concealed and then revealed by the Legorius Affirmation, in contrast to Emerson Electric Co. v. Asset Management Associates of New York, Inc., No. 16 Civ. 1390 (PKC), 2023 WL 4850528 (E.D.N.Y. July 28, 2023). See Opposition at 16 (citing Emerson Electric, 2023 WL 4850528, at *8 & n.15). In Emerson Electric, the alleged injury was a fraudulent conveyance, and the plaintiff did not know the conveyance even occurred until the production of certain records. 2023 WL 4850528, at *8. Plaintiffs of course knew of the suspension of their driving privileges well before the filing of the Legorius Affirmation.
The Second Circuit's decision in Levy is instructive. Having suffered losses in her 2008 investment in the platinum futures market, the plaintiff brought suit in 2012 against certain defendants alleging manipulation of that market through a “pump and dump” scheme and settled that case. Levy, 917 F.3d at 107-08. After a separate class action complaint identified other individuals as allegedly involved in the manipulation of the platinum futures market, but by orchestrating a different scheme, the plaintiff brought a new suit against those individuals in 2015. Id. at 108. The Second Circuit found the plaintiff's claims in that second suit to be time-barred, reasoning that the plaintiff's original injury of the loss of her investment in 2008 started the clock for the statute of limitations “irrespective of when she discovered the additional information necessary for her to bring her suit.” Id. at 109. Applying that reasoning here, and even accepting Plaintiffs' premise that the Legorius Affirmation revealed the involvement of the Individual Defendants and the cause of their injuries (which is hardly apparent from the face of the Affirmation and which Defendants contest, see Motion at 19-21), the Legorius Affirmation is analogous to the class action complaint in Levy. Plaintiffs try to distinguish Levy by contending that the involvement of the additional defendants there was public knowledge, whereas here the involvement of the Individual Defendants and the database flaws were not known to Plaintiffs until May 2022. Opposition at 15. But the Second Circuit rested its holding in Levy on the fact that the plaintiff learned of her injury in late 2008 when the platinum market crashed, and that was what started the clock. Here, Plaintiffs learned of their injuries-the suspensions of their driving privileges-more than three years before they commenced this action. See supra III.B.1.
In sum, Plaintiffs have offered no basis for the Court to conclude that their claims accrued upon the filing of the Legorius Affirmation rather than upon their discovery of the suspension of their driving privileges. The Court therefore turns next to Plaintiffs' argument that the continuing violation doctrine resuscitates their otherwise time-barred claims.
3. The Continuing Violation Doctrine
Plaintiffs argue that they have suffered continuing violations of their constitutional rights in four ways: (1) Ugo-Alum's prosecution in 2022 for driving without a license, Opposition at 16; (2) Plaintiffs' payment of fees to traffic court attorneys, Id. at 17; (3) Defendants' failure to remove the suspensions from Plaintiffs' driving records, Id. at 16; and (4) Plaintiffs' allegedly higher insurance rates because of the continued presence of the suspension on their driving records, Id. at 17. Defendants argue that none of these grounds establishes a continuing violation that allows Plaintiffs to evade Section 1983's statute of limitations. Reply at 4-5.
“The continuing violation doctrine, where applicable, provides an exception to the normal knew-or-should-have-known accrual date,” Gonzalez, 802 F.3d at 220 (internal quotation marks omitted), and “[i]t applies to claims composed of a series of separate acts that collectively constitute one unlawful practice,” Id. (cleaned up). “When the continuing violation doctrine is applicable, the statute of limitations period does not begin until the time of the last act among the series of acts alleged by the plaintiff.” Anekwe v. Bernstein, No. 21 Civ. 11108 (LAP), 2023 WL 4533659, at *3 (S.D.N.Y. July 13, 2023) (citing Shomo, 579 F.3d at 181). “However, the courts of this Circuit have generally been loath to invoke the continuing violation doctrine and will apply it only upon a showing of compelling circumstances.” Liboy v. Russ, No. 22 Civ. 10334 (VM), 2023 WL 6386889, at *7 (S.D.N.Y. Sept. 29, 2023) (alteration and internal quotation marks omitted); see also Rankel v. Town of Somers, 999 F.Supp.2d 527, 540 (S.D.N.Y. 2014) (“Courts of this circuit consistently have looked unfavorably on continuing violation arguments and have applied the theory only under compelling circumstances.” (cleaned up)); cf. Liboy, 2023 WL 6386889, at *7 (“The continuing violation doctrine ordinarily applies in the employment context, usually to hostile work environment claims which require a showing of repeated or ongoing conduct that is adequately severe or pervasive to constitute a violation.” (internal quotation marks omitted)). The Second Circuit has held that the continuing violation doctrine can apply to Section 1983 claims. Shomo v. City of New York, 579 F.3d 176, 182 (2d Cir. 2009); see Lucente v. Cnty. of Suffolk, 980 F.3d 284, 309 (2d Cir. 2020) (noting that the Second Circuit “has applied the [continuing violation] doctrine to various constitutional claims under § 1983” and collecting cases).
In the context of a First Amendment retaliation claim, the Second Circuit has explained that “the mere fact that the effects of retaliation are continuing does not make the retaliatory act itself a continuing one.” Gonzalez, 802 F.3d at 222 (alteration in original omitted) (quoting Deters v. City of Poughkeepsie, 150 Fed.Appx. 10, 12 (2d Cir. 2005)). And the Supreme Court has articulated in the discrimination context that the “[t]he proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful.” Delaware State Coll. v. Ricks, 449 U.S. 250, 258 (1980). This approach has been applied in the Section 1983 context as well. See Smith v. City of New York, 664 Fed.Appx. 45, 47 (2d Cir. 2016) (refusing to apply the continuing violation doctrine because the alleged later act was “simply a downstream effect”); Brevot v. New York City Dep't of Educ., 299 Fed.Appx. 19, 20 (2d Cir. 2008) (holding that the plaintiff could not rely on the continuing violation doctrine “to maintain a § 1983 claim based on events that were completed in 1998 but still harm her now”); Mussington v. St. Luke's-Roosevelt Hosp. Ctr., 824 F.Supp. 427, 433 (S.D.N.Y. 1993) (“[A] continuing violation may not be based on a plaintiff's having suffered from the effects of an earlier discriminatory act.” (internal quotation marks and brackets omitted) (quoting Miller v. Int'l Tel. & Tel. Corp., 755 F.2d 20, 25 (2d Cir. 1985))), aff'd, 18 F.3d 1033 (2d Cir. 1994). “Furthermore, the law is clear that a claim accrues when an injury becomes known, regardless of when its effects are ultimately felt.” Pepin v. New York City Dep't of Educ., No. 14 Civ. 9657 (ER), 2016 WL 915298, at *4 (S.D.N.Y. Mar. 4, 2016), aff'd, 671 Fed.Appx. 18 (2d Cir. 2016); see also Harris v. City of New York, 186 F.3d 243, 250 (2d Cir. 1999) (“We have made it clear that a continuing violation cannot be established merely because the claimant continues to feel the effects of a time-barred discriminatory act.” (citation omitted)); Lewis v. Clark, No. 14 Civ. 1592 (RNC), 2015 WL 3905315, at *2 n.4 (D. Conn. June 25, 2015) (holding that the plaintiff's claim accrued when he was banned from campus despite the ban continuing to be in effect at the time of the suit); Kinlock v. Yourth, No. 11 Civ. 8696 (JGK), 2012 WL 4460760, at *2 n.2 (S.D.N.Y. Sept. 27, 2012) (finding no continuing violation where the plaintiff alleged that he had been placed on the New York sex offender registry four years earlier and remained on the registry).
Here, each of the four supposed continuing violations on which Plaintiffs rely are merely the effects of the original claimed injury-the allegedly improper suspension of their driving privileges. Those suspensions were discrete acts that occurred outside the statute of limitations. Under Gonzalez and the other authorities discussed above, such conduct does not trigger the continuing violation doctrine. Nor have Plaintiffs identified any authority for extending the continuing violation doctrine to their allegations; indeed, the lone case Plaintiffs cite merely establishes that doctrine applies to Section 1983 claims in general. See Anekwe, 2023 WL 4533659, at *3 (reciting the standard for the continuing violation doctrine for a Section 1983 claim and then holding that the doctrine was inapplicable); Opposition at 16.
Accordingly, Plaintiffs' only two surviving counts-Counts Seven and Eight-are dismissed without prejudice as time-barred.
Given this holding, the Court does not reach Defendants' alternative arguments that Plaintiffs have failed to plead violations of the Fourteenth and Eighth Amendments on the merits, that the Individual Defendants are protected by qualified immunity, and that Plaintiffs have insufficiently alleged the personal involvement of the Individual Defendants. See Motion at 14-23.
C. Leave to Amend
Under Rule 15(a) of the Federal Rules of Civil Procedure, a court “should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2). Plaintiffs have asked the Court for leave to amend their Complaint should the Court rule in Defendants' favor. Opposition at 25. Because the Complaint is the first complaint filed by Plaintiffs in this action, the Court grants them leave to amend. The Court emphasizes that Plaintiffs should only file an amended complaint if they are able to remedy the pleading deficiencies identified herein.
IV. Conclusion
For the stated reasons, Defendants' motion is granted and the Complaint is dismissed without prejudice. In the event Plaintiffs decide to file an amended complaint, they must do so within thirty days of this Opinion and Order. If Plaintiffs fail to file an amended complaint within this time frame, the Court will direct the Clerk of Court to enter judgment in Defendants' favor and close this case. Plaintiffs' request for oral argument is denied as moot. The Clerk of Court is respectfully directed to close the motions pending at Docket Numbers 31 and 35.
SO ORDERED.