The opinion of the court was delivered by: LEONARD D. WEXLER
Plaintiff alleges that he commenced employment with defendant company in or about April 1990, in the position of Credit and Collection Manager. He was then 55 years old. In or about January 1991, defendant's management changed as a result of a leveraged buy-out of the defendant. A new president and vice-president began running the company. Plaintiff contends that thereafter defendant commenced actively terminating older employees and replacing them with younger employees.
Plaintiff alleges that he was discharged from employment by defendant on February 26, 1993, when he was 58 years old, and was replaced by a female in her early thirties. He alleges he was told that the reason he was terminated was due to poor performance. He claims, however, that he had never been advised that his work for defendant was deficient or that he risked being terminated for poor performance Rather, he alleges that his work performance was always good to excellent.
In his complaint, plaintiff demands, among other things, reinstatement, "pay" and benefits, compensatory damages of $ 2 million, punitive damages of $ 2 million, and attorney's fees under 42 U.S.C. § 1988. Plaintiff does not identify which relief is sought under which claim.
In response to the complaint, defendant moves: (1) to strike the demand for compensatory and punitive damages on the ADEA Claim; (2) to dismiss the HRL Claim as not proper for the exercise of supplemental jurisdiction or, in the alternative, to strike the demand for punitive damages on the HRL Claim; (3) to strike plaintiff's request for attorney's fees under 42 U.S.C. § 1988; and (4) to strike certain allegations in the complaint as legally irrelevant and unduly prejudicial pursuant to Fed. R. Civ. P. 12(f).
In opposition to the motion, plaintiff concedes that compensatory and punitive damages are not available on his ADEA Claim, see Johnson v. Al Tech Specialties Steel Corp., 731 F.2d 143, 147-48 (2d Cir. 1984); Realmuto v. Yellow Freight System, Inc., 712 F. Supp. 287, 288 (E.D.N.Y. 1989), and that punitive damages are not available on his HRL Claim, see Thoreson v. Penthouse Int'l Ltd., 80 N.Y.2d 490, 591 N.Y.S.2d 978, 606 N.E.2d 1369 (N.Y. 1992). Plaintiff also concedes that attorney's fees may not be awarded on his claims under 42 U.S.C. § 1988, but notes, as defendant concedes, that "reasonable attorney's fees" may be awarded to a prevailing party under the ADEA pursuant to 29 U.S.C. § 216(b) and § 626(b). Thus, plaintiff cross-moves for permission to file an amended complaint to cure these defects in the complaint, and has submitted a copy of a proposed amended complaint. However, plaintiff argues that exercise of this Court's jurisdiction over the HRL Claim is appropriate, and opposes defendant's request that certain language be stricken from the complaint. Thus, this Court must decide whether the exercise of jurisdiction over plaintiff's HRL Claim is appropriate and whether certain allegations in the complaint must be stricken as legally irrelevant and unduly prejudicial.
A. Supplemental Jurisdiction
This Court has the power to exercise supplemental jurisdiction over a state law claim where the state claim and federal claim "derive from 'a common nucleus of operative fact' and commonly will exercise it if 'considerations of judicial economy, convenience and fairness to litigants' weigh in favor of hearing the claims at the same time." Promisel v. First American Artificial Flowers, 943 F.2d 251, 254-58 (2d Cir. 1991) (quoting United Mine Workers v. Gibbs, 383 U.S. 715, 725-26, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966)), cert. denied, 112 S. Ct. 939 (1992). As the Second Circuit stated in Promisel, in upholding a district court's exercise of pendent jurisdiction of a Human Rights Law claim tried with an ADEA claim, "pendent jurisdiction over plaintiff's state law claims, while not automatic, is a favored and normal course of action." Id. at 254; see also Sajnani v. American Int'l Cos., No. 91 CV 0650, 1993 U.S. Dist. LEXIS 9849, 1993 WL 276973 (E.D.N.Y. July 15, 1993) (Nickerson, J.) ("The court found in Promisel that both discrimination claims were based on the same facts and that the difference in federal and state discrimination were insufficient to require dismissal of the state claim.").
Although this Court, in Realmuto, supra, declined to exercise pendent jurisdiction over a Human Rights Law claim prior to the Second Circuit's decision in Promisel, in light of Promisel this Court finds that the exercise of supplemental jurisdiction over plaintiff's HRL Claim is appropriate under 28 U.S.C. § 1367(a). Based on the allegations of the complaint, the ADEA Claim and the HRL Claim arise out of the same facts and the evidence of discrimination will be virtually the same for both claims. This Court believes that the possibility of jury confusion or prejudice to the defendant from the introduction of compensatory damages evidence is not sufficient to prevent the appropriate exercise of pendent jurisdiction. The possibility of jury confusion and prejudice do not justify the duplication and waste which would result from separate proceedings. Accordingly, defendant's request to dismiss the HRL Claim is denied.
In its challenge to particular allegations in the complaint, defendant moves to strike from the ADEA Claim the language "in addition to suffering great pain and mental anguish," Complaint P 20, on the ground that this allegation relates only to a claim for compensatory damages and plaintiff concedes that compensatory damages are not available on the ADEA Claim. In addition, defendant moves to strike from the ADEA Claim the allegation of malice, Complaint P 21, on the ground that this allegation is applicable only to a claim for punitive damages and plaintiff concedes that punitive ...