DECISION & ORDERI. INTRODUCTION Plaintiff the National Rifle Association of America (“Plaintiff” or “the NRA”) commenced this action against defendants New York Governor Andrew Cuomo, both individually and in his official capacity (“Gov. Cuomo”), Superintendent of the New York State Department of Financial Services Maria T. Vullo, both individually and in her official capacity (“Supt. Vullo”), and the New York State Department of Financial Services (“DFS”) (collectively, “Defendants”), asserting several federal and New York State constitutional claims, and a New York common law tort claim. See Am. Compl., Dkt. No. 37. After a decision on Defendants’ Fed. R. Civ. P. 12(b)(6) motion, see 11/06/18 Dec. & Ord., Dkt. No. 56, only Plaintiff’s First Amendment claims (Counts 1 and 2) and that portion of its selective enforcement claims (Count 4) seeking money damages for past acts remain to be litigated. See Dkt. No. 56. Defendants now move pursuant to Fed. R. Civ. P. 12(c) to dismiss any 42 U.S.C. §1983 (“Section 1983″) claims against DFS because DFS is not a “person” subject to liability under Section 1983; to dismiss all money damage claims against DFS, and against Gov. Cuomo and Supt. Vullo in their official capacities, as barred by the Eleventh Amendment; to dismiss Count 4 for failing to state a legally cognizable selective enforcement claim; to dismiss any remaining selective enforcement claims against Gov. Cuomo for lack of personal involvement; to dismiss any remaining selective enforcement claims against Supt. Vullo on the grounds that she is shielded from liability by the doctrine of absolute immunity; and to grant Gov. Cuomo and Supt. Vullo qualified immunity on any remaining selective enforcement claims. Dkt. No. 63. The NRA opposes some of Defendants’ contentions, see Dkt. No. 69, and Defendants have filed a reply. Dkt. No. 71. The Court has elected to decide the motion without oral argument. For the reasons that follow, Defendants’ motion in granted in part and denied in part.II. STANDARD OF REVIEWThe standard of review under to Rule 12(c) is identical to that under Rule 12(b)(6). See Altman v. J.C. Christensen & Assocs., Inc., 786 F.3d 191, 193 (2d Cir. 2015); Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001). The Court applies the Rule 12(b)(6) standard of review set forth in the November 6, 2018 Decision and Order, see Dkt. No. 56, at 2-3, and need not repeat it here.III. BACKGROUNDThe Court presumes familiarity with the allegations in the Amended Complaint, see Am. Compl., Dkt. No. 37, which the Court discussed in detail in the November 6, 2018 Decision and Order. See Dkt. No. 56, passim. The Court will set forth below only those factual allegations relevant to the decisions made here.IV. DISCUSSIONa. Section 1983 claims against DFSDefendants seek to dismiss all Section 1983 claims against DFS on the grounds that DFS is not a “person” under §1983. Def. Mem. L. at 4 (citing Will v. Michigan Dep’t. of the State Police, 491 U.S. 58, 71 (1989) (the state is not a “person” under 42 U.S.C. §1983); Cunningham v. DOCS, 2009 U.S. Dist. LEXIS 42778, *5 (S.D.N.Y. May 20, 2009) (an agency of New York State is not a “person” under 42 U.S.C. §1983)). In response, Plaintif f indicates that it agrees to withdraw its Section 1983 claims against DFS. Pl. Mem. L., at 24.1 Accordingly, all Section 1983 claims against DFS are dismissed as withdrawn.b. Money Damage Claims & the Eleventh AmendmentNext, Defendants move to dismiss all money damage claims against DFS, and against Gov. Cuomo and Supt. Vullo in their official capacities, as barred by the Eleventh Amendment. Def. Mem. L. at 4-5. Plaintiff offers no opposition to this portion of Defendants’ motion. These claims for money damages against these defendants are deemed abandoned and, therefore, subject to dismissal on this basis. See Thurmand v. Univ. of Connecticut, No. 3:18-CV-1140 (JCH), 2019 WL 369279, at *3 (D. Conn. Jan. 30, 2019)(“Courts in this Circuit have presumed that plaintiffs have abandoned their claims when they do not oppose a motion to dismiss them.”)(collecting cases); Russell v. N.Y. Univ., No. 1:15-cv-2185, 2017 U.S. Dist. LEXIS 111209, at *99 (S.D.N.Y. July 17, 2017)(failure to address defendant’s arguments for dismissal of claims deems those claims abandoned).Moreover, the Eleventh Amendment bars claims for money damages against DFS, and against Gov. Cuomo and Supt. Vullo in their official capacities. See Edelman v. Jordan, 415 U.S. 651, 662-63 (1974); Will, 491 U.S. at 64; Cory v. White, 457 U.S. 85, 90-91 (1982); Kentucky v. Graham, 473 U.S. 159, 167-68 (1985); Hafer v. Melo, 502 U.S. 21, 25 (1991); Dube v. State Univ. of N.Y., 900 F.2d 587, 594 95 (2d Cir. 1990), cert. denied, 501 U.S. 1211 (1991); Hurst v. Mollnow, No. 9:16-CV-1062 (DNH/TWD), 2018 WL 4178226, at *10 (N.D.N.Y. July 20, 2018), report and recommendation adopted, 2018 WL 4153926 (N.D.N.Y. Aug. 30, 2018); Newman v. Hoyt, No. 3:17-CV-0808 (TJM/DEP), 2017 WL 4797844, at *3 (N.D.N.Y. Sept. 19, 2017), report and recommendation adopted, 2017 WL 4803914 (N.D.N.Y. Oct. 23, 2017). Accordingly, Defendants’ motion in this regard is granted and all money damage claims against DFS, and against Gov. Cuomo and Supt. Vullo in their official capacities, are dismissed.c. Selective Enforcement ClaimsDefendants argue that Plaintiff fails to plead facts plausibly supporting actionable selective enforcement claims under federal and New York equal protection law. Plaintiff alleges in Count 4 that Defendants engaged in selective enforcement of the New York insurance laws (“Insurance Law”) in violation of the NRA’s rights to equal protection of law as secured by the Fourteenth Amendment to the United States Constitution, and by Article 1, Section 11 of the New York Constitution. Am. Compl.
107-113. In this regard, the NRA alleges that Defendants “knowingly and willfully violated the NRA’s equal protection rights by seeking to selectively enforce certain provisions of the Insurance Law against Lockton’s affinity-insurance programs for the NRA. Meanwhile, other affinity-insurance programs that were identically (or at least similarly) marketed by Lockton, but not endorsed by ‘gun promotion’ organizations, have not been targeted by DFS’s investigation.” Id. at 108. Plaintiff further contends that “Defendants’ selective enforcement of the Insurance Law against the NRA and its business partners has been knowing, willful, arbitrary, capricious, unreasonable, discriminatory, and undertaken in bad faith and without a rational basis,” id. at 109, and that this selective enforcement “is based on the NRA’s political views and speech relating to the Second Amendment.” Id. 110.A plaintiff alleging a selective enforcement claim under either federal or New York equal protection must show that (1) “‘[it] was treated differently from other similarly situated businesses’” and (2) “‘such differential treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.’” Wandering Dago, Inc. v. Destito, 879 F.3d 20, 40 (2d Cir. 2018) (quoting Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 790 (2d Cir. 2007)); see Selevan v. New York Thruway Auth., 584 F.3d 82, 88 (2d Cir. 2009)(equal protection claims (including claims for selective enforcement) under the New York State Constitution are analyzed using the same framework as claims under the federal Equal Protection Clause). Defendants argue that the selective enforcement claims must be dismissed because the Amended Complaint lacks plausible factual allegations that similarly situated organizations exist. See Def. Mem. L., at 11.2In a selective enforcement claim, “plaintiffs ‘must identify comparators whom a prudent person would think were roughly equivalent[, but] [p]laintiff[s] need not show an exact correlation between [themselves] and the comparators.’” Mosdos Chofetz Chaim, Inc. v. Village of Wesley Hills, 815 F. Supp. 2d 679, 696 (S.D.N.Y. 2011) (quotation omitted). “Put another way: ‘The test is whether a prudent person, looking objectively at the incidents, would think them roughly equivalent and the protagonists similarly situated…. Exact correlation is neither likely or necessary, but the cases must be fair congeners.’” Id. (quoting T.S. Haulers, Inc. v. Town of Riverhead, 190 F. Supp. 2d 455, 463 (E.D.N.Y. 2002)). At the motion to dismiss stage, “a court must determine whether, based on a plaintiff’s allegations in the complaint, it is plausible that a jury could ultimately determine that the comparators are similarly situated. Thus, ‘[w]ell-pled facts showing that the plaintiff has been treated differently from others similarly situated remains an essential component of such a claim [and] [c]onclusory allegations of selective treatment are insufficient to state an equal protection claim.’” Id. at 698 (quotation omitted).Lanning v. City of Glens Falls, No. 116-CV-00132 (MAD/DJS), 2017 WL 922058, at *8 (N.D.N.Y. Mar. 8, 2017), aff’d, 908 F.3d 19 (2d Cir. 2018)The Amended Complaint details several affinity groups operating in New York whose insurance programs allegedly resemble those of the NRA, in some instances containing language identical to the allegedly-violative language associated with the NRA programs, that were not targeted by the DFS. See Am. Compl. at
