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EDMONSTON v. MGM GRAND AIR

December 11, 1992

ANTHONY EDMONSTON, Plaintiff,
v.
MGM GRAND AIR, INC., NICOLE LUBNIEWSKI, WILLIAM MILLER, CARLOS GRANADO, and RICHARD CORDERO, Defendants.



The opinion of the court was delivered by: I. LEO GLASSER

MEMORANDUM AND ORDER

 GLASSER, United States District Judge:

 This action, which seeks reinstatement, compensatory and punitive damages, and an injunction, arises out of plaintiff's employment with defendant MGM Grand Air ("MGM"). Before describing and evaluating the three motions currently at issue this court will set forth the case's procedural posture and the various factual allegations that lie at the action's source.

 Plaintiff alleges that beginning in August of 1990, his newly-appointed supervisor, defendant Nicole Lubniewski, along with his coworkers at MGM, defendants William Miller, Carlos Granado, and Richard Cordero, subjected plaintiff to a series of "racial slurs, jokes, epithets, [and] demeaning and degrading comments" which caused him physical pain in the form of a gastric ulcer. (Complaint PP 23-28) On September 18, 1990, the individual defendants allegedly exacerbated plaintiff's suffering by insisting that he help move heavy equipment -- a file cabinet -- immediately upon his return from treatment; the plaintiff claims, as well, that defendants accompanied their insistence with racial epithets. (Complaint PP 28-33) Plaintiff also charges that defendants pushed the cabinet on top of him and subsequently sat on the cabinet under which he was pinned. (Complaint PP 34-35)

 Plaintiff pursued a criminal action against his coworkers in New York State criminal court, Queens County, in September of 1991. Cordero, Granado and Miller were each charged with three class A misdemeanors. *fn1" On October 8, 1992, the criminal charges were adjourned in contemplation of dismissal ("ACD"). As part of the ACD, Miller, Cordero, and Granado provided brief written statements to the criminal court and agreed to participate in a sensitivity program.

 On October 9, 1990, prior to filing the criminal charges, plaintiff brought a complaint before the Equal Employment Opportunity Commission (EEOC). (Defendants' 3(g) Statement, Exh. C) His specific EEOC claim complained that MGM unlawfully denied him a promotion on July 27, 1990, an allegation that does not appear in the original federal complaint in this action but which plaintiff now seeks to include through an amended complaint. The EEOC dismissed plaintiff's failure-to-promote charge on August 5, 1991, at which time the Commission issued a "right-to-sue" letter requiring plaintiff to bring suit within 90 days. (Defendants' 3(g) Statement, Exh. D) He did not do so.

 Plaintiff's present action states Title VII claims against MGM arising out of the airline's responsibility for the actions of its employees. He recites the corporate employer's failure to take action against the offenses of which it was or should have been aware and its failure to establish a policy regarding harassment. Plaintiff also asserts claims under 42 U.S.C. § 1981 arising from the corporate defendant's failure to provide a work environment free of racially hostile behavior which thereby caused plaintiff emotional harm and constituted constructive discharge. Finally, plaintiff asserts various pendent state claims against both the corporate and individual defendants, including breach of employment contract, tortious interference with contract, and assault.

 There are several motions currently at issue. First, defendants have moved for summary judgment, claiming (in brief): (1) that plaintiff never met the statutory pre-requisites of Title VII because he failed to apply to the EEOC before bringing the claims now before this court; (2) that the 1991 Civil Rights Act does not apply retroactively to this case and therefore the governing construction of Section 1981 bars recovery because plaintiff alleges that he was racially harassed only after he was hired; and (3) that since all the federal claims must be dismissed, the court lacks jurisdiction over the remaining state tort claims.

 The second motion in essence responds to the first. Plaintiff moves for leave to amend his complaint, pursuant to Rule 15(a), to allege diversity jurisdiction over the state law claims. In addition, plaintiff seeks leave to plead an additional claim under Section 1981 -- namely denial of promotion as a result of racial discrimination. Presumably, the reason for the latter allegation is two-fold: (1) since plaintiff did apply to the EEOC on this Title VII claim, he satisfies the prerequisite about which the defendants complain; and (2) even if the 1991 Civil Rights Act does not apply retroactively, failure to promote in certain circumstances is covered by the former civil rights act.

 The third and final motion related to this action is plaintiff's motion to disqualify defendants lawyers -- Jones Day Reavis and Pogue. Plaintiff asserts that the representation of both the individual and corporate defendants in this case would lead the firm to violate Canon 5 of the Code of Professional Responsibility.

 I. Plaintiff's Motion to Amend the Complaint

 Plaintiff moves to amend his complaint in two specific ways: to allege diversity of citizenship as the basis for jurisdiction over claims asserted in the original complaint as pendent state claims; and to allege a second incident of discrimination for which plaintiff filed a claim with the EEOC and received a right-to-sue letter.

 The denial or grant of a motion to amend is within the discretion of the district court, Evans v. Syracuse City School Dist., 704 F.2d 44, 46 (2d Cir. 1983) (citing Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962)), and leave to amend "shall be freely given when justice so requires." Fed. R. Civ. P. 15(a). In Foman, the Supreme Court instructed that leave to amend should be liberally granted absent "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment." Foman, 371 U.S. at 182. This court turns now to each of the Proposed amendments.

 A. Diversity

 Plaintiff wishes to amend his complaint to assert a separate jurisdictional basis -- diversity pursuant to 28 U.S.C. § 1332 -- over the now-pendent state law claims. He points out that the original complaint provided the groundwork for such a claim because it stated: that plaintiff is a citizen of New York; that MGM is incorporated in Delaware; and that the amount in controversy is satisfied. All of these assertions are true. Plaintiff, however, overlooks the absence of an essential allegation: the citizenships of the individual co-defendants that are necessary for complete diversity. See Cushing v. Moore, 970 F.2d 1103, 1106 (2d Cir. 1992) (" 28 U.S.C. § 1332 requires complete diversity between all plaintiffs and all defendants"). *fn2" Accordingly, unless plaintiff means to dismiss his claims against ...


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