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April 19, 1999


The opinion of the court was delivered by: McAVOY, Chief Judge.


Plaintiff Robert Dollinger ("plaintiff") commenced the instant action on January 12, 1998 pursuant to 42 U.S.C. § 12101 et seq. and 42 U.S.C. § 2000e et seq. against defendants The State Insurance Fund ("SIF"), New York State Office of the State Comptroller and The New York State Department of Civil Service (collectively "defendants") alleging, inter alia, that defendants discriminated and retaliated against him on the bases of his association with persons living with HIV/AIDS and as a person who is himself living with HIV/AIDS. See Compl. at ¶ 20. This matter is presently before the Court upon defendants' motion to dismiss the Complaint pursuant to FED.R.CIV.P. 12(b)(6).


In considering a motion to dismiss, the Court accepts as true the factual allegations in the Complaint. See Dwyer v. Regan, 777 F.2d 825, 828-29 (2d Cir. 1985). Those allegations follow.

Plaintiff filed his Complaint on January 12, 1998 in the Southern District of New York. The Complaint asserts claims under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., alleging plaintiff was subjected to unequal terms, conditions and privileges of employment, harassment and a hostile retaliatory work environment because of his association with persons with HIV/AIDS and being regarded as a person with HIV/AIDS. Plaintiff further alleges that defendants retaliated against him for reporting those discriminatory practices. See Compl. at ¶¶ 16, 20, 38, 42, 52-53. All of plaintiff's claims arise out of the same factual setting.

Defendant SIF hired plaintiff as an Insurance Premium Auditor Trainee in 1986. Plaintiff received promotions in 1987 and 1988, and was asked to train new auditors from 1988 through 1990. Since 1990, however, plaintiff alleges he has applied for, but been denied, provisional or permanent promotions based on defendants' regarding him as a person living with HIV/AIDS and as a person associated with persons living with HIV/AIDS. Plaintiff further alleges that defendants denied him these promotions in response to plaintiff's efforts to report defendants' alleged discriminatory practices. Plaintiff is currently employed as a Senior Auditor with SIF.

In Complaints filed with the New York State Division of Human Rights ("DHR") on May 11, 1993 ("1993 DHR Complaint") and February 12, 1997 ("1997 DHR Complaint"), plaintiff claimed that he was denied promotions at SIF and discriminated against because of defendants' perception that he belonged to a group associated with the high risk behaviors for HIV/AIDS. See Defts. Notice of Motion to Dismiss, Ex. A, at ¶¶ 1, 8 (1993 DHR Complaint); Ex. D, at ¶¶ 1, 14, 31 (1997 DHR Complaint). Plaintiff subsequently amended his 1993 and 1997 DHR Complaints to include violations of the ADA. See Defts. Notice of Motion to Dismiss, Ex. E ("Amended 1997 DHR Complaint"); Ex. F ("Amended 1993 DHR Complaint").

On April 25, 1997, the DHR issued a no probable cause determination with respect to plaintiff's 1993 DHR Complaint.*fn1 Significantly, plaintiff does not allege, nor does the record reflect, that plaintiff received or requested a right to sue letter with respect to his 1993 DHR Complaint.

While the 1997 DHR Complaint alleged acts of discrimination and retaliation similar to those alleged in the 1993 DHR Complaint, it also included new acts of discrimination occurring after the filing of the 1993 DHR Complaint. The DHR determined that any allegations in the second complaint that were duplicative of the first complaint be removed, and it only investigate "those acts of discrimination which occurred subsequent to the date of filing of the first complaint." See DHR Legal Memorandum, at 4. On October 10, 1997, the EEOC issued plaintiff a right to sue letter with respect to his Amended 1997 DHR Complaint. See Compl. at Ex. 1. Significantly, the federal Complaint did not incorporate or reference a copy of a right to sue letter for the 1993 DHR Complaint, or that plaintiff had requested, but not yet received, such a letter. On April 22, 1998, the DHR dismissed plaintiff's 1997 DHR Complaint for administrative convenience. See Defts. Notice of Motion to Dismiss, Ex. H.

Plaintiff filed his federal Complaint on January 8, 1998 in the Southern District of New York. Upon motion by defendants pursuant to 28 U.S.C. § 1404(a), the matter was transferred to the Northern District of New York. See Dollinger v. The State Insurance Fund, 98-CV-0173 (Opinion and Order of Hon. Allen G. Schwartz, dated June 17, 1998).

On November 13, 1998, defendants filed a motion to dismiss the complaint pursuant to FED.R.CIV.P. 12(b)(6). On November 20, 1998, plaintiff requested a postponement of this action to secure new counsel to replace plaintiff's prior counsel who had passed away. On December 1, 1998, plaintiff, proceeding pro se, filed opposition papers to defendants' motion to dismiss and requested additional time to retain new counsel. In response to that request, the Court granted plaintiff ninety days from December 7, 1998, the date of its Decision and Order, to retain new counsel in the present matter. During that time, the Court ordered that defendants' motion to dismiss and plaintiff's opposition papers be held in abeyance. If, however, plaintiff was unable to retain new counsel by March 7, 1999, the Court ordered that it would decide defendants' motion to dismiss on submit.

On March 8, 1999, plaintiff filed a "Memorandum of Law in Opposition to Motion to Dismiss for Failure to State a Cause of Action"*fn2 and a three-page untitled addendum which appears to be a "supplemental" Memorandum of Law. Because plaintiff's opposition papers filed on December 1, 1998 and March 8, 1999 failed to contain an affidavit or certificate of service as required by N.D.N.Y. Local Rule 5.1(a), the Court rejected those papers and ordered that opposition papers with the requisite certificate of service be re-filed by March 17, 1999. On March 17, 1999, plaintiff re-filed his opposition papers with a certificate of service, and requested an entry of appearance for his new counsel, Law Offices of Ronald R. Benjamin, and an extension of time to file supplemental opposition papers. Once again, the Court granted plaintiff's request, and ordered plaintiff to file his opposition papers to defendants' motion to dismiss by Friday, March 26, 1999. The Court also permitted defendants to file reply papers, if they so choose, by Friday, April 2, 1999. Despite plaintiff's request and the Court's grant of an extension of time, plaintiff failed to file any new or supplemental opposition papers, or otherwise correspond with the Court. Accordingly, the Court will only consider plaintiff's opposition papers filed on December 1, 1997 and March 17, 1999.


A. Treatment of Exhibits

It is beyond peradventure that when "matters outside the pleadings are presented and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." FED.R.CIV.P. 12(b). However, because a complaint includes "any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference," FED.R.CIV.P. 10(c); see, e.g., Cosmas v. Hassett, 886 F.2d 8 (2d Cir. 1989), courts have held that a "defendant may introduce pertinent [documents] as part of his motion attacking the pleadings" if plaintiff has failed to either attach to the complaint or incorporate by reference documents upon which it relies on in the complaint. 5 CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE § 1327, at 762-63 (1990); see also Cortec Ind., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991), cert. denied, 503 U.S. 960, 112 S.Ct. 1561, 118 L.Ed.2d 208 (1992). As explained by the Second Circuit, "when a plaintiff chooses not to attach to the complaint or incorporate by reference a [document] upon which it solely relies and which is integral to the complaint, the defendant may produce the [document] when attacking the complaint for its failure to state a claim, because plaintiff should not so easily be allowed to escape the consequences of its own failure." Cortec 949 F.2d at 47; Roucchio v. Coughlin, 923 F. Supp. 360, 366 (E.D.N.Y. 1996).

Applying these principles, the Court finds that it may properly consider, as part of the pleadings, the various administrative complaints and determinations of the DHR and EEOC submitted by defendants. See Jadoo v. City of New York, 1997 WL 614508, at *2 (E.D.N.Y. Sept.29, 1997) (concluding EEOC charge attached as exhibit to defendants 12(b)(6) motion did not convert it to one for summary judgment); Greene v. Term City, Inc., 828 F. Supp. 584, 587 n. 1 (N.D.Ill. 1993) (finding EEOC charge part of pleadings in connection with 12(b)(6) motion, even though it was not attached to the complaint). Although plaintiff's Complaint fails to incorporate these documents by reference or attach them to it, defendants may introduce these documents because the federal Complaint relies upon them on numerous occasions to support plaintiff's claims. See Cortec, 949 F.2d at 48. Moreover, to consider these documents would not surprise plaintiff, given his reliance on these items in both his federal Complaint and opposition to defendants' motion to dismiss. See id. Most likely, it was an oversight that plaintiff did not attach these items as exhibits.

In any event, judicial notice of the DHR and EEOC documents is proper on this motion to dismiss. The administrative complaints and findings are matters of public record, and their authenticity is not disputed by either party. See Roucchio, 923 F. Supp. at 366.

The Court, by contrast, will exclude from consideration the affidavit submitted by plaintiff in opposition to defendants' motion to dismiss. This item may not be considered part of the pleadings under Cortec, nor will the Court convert defendants' motion to dismiss into a premature motion for summary judgment. See Kopec v. Coughlin, 922 F.2d 152, 154 (2d Cir. 1991) (stating that when materials outside pleadings are submitted on 12(b)(6) motion, courts have option of excluding material or converting motion to one for summary judgment); Fonte v. Board of Managers of Continental Towers Condominium, 848 F.2d 24, 25 (2d Cir. 1988) (same).

B. Standard Under Rule 12(b)(6)

A district court should grant a motion to dismiss under FED.R.CIV.P. 12(b)(6) for failure to state a claim only if "`it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249-50, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)); Annis v. County of Westchester, 36 F.3d 251, 253 (2d Cir. 1994). In applying this standard, a district court must "read the facts alleged in the complaint in the light most favorable" to the plaintiff, and accept these allegations as true, id. at 249, 109 S.Ct. 2893; see also Christ Gatzonis Elec. Contractor, Inc. v. New York City Sch. Constr. Auth., 23 F.3d 636, 639 (2d Cir. 1994); LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991); Cosmas, 886 F.2d at 11, and to consider documents attached to or incorporated by reference in the complaint. See Romea v. Heiberger & Assocs., 163 F.3d 111, 114 (2d Cir. 1998) (citing Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998)). The Court's duty is "to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980); accord Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). The appropriate inquiry, therefore, is not "whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); see also Ricciuti v. New York City Transit Auth., 941 F.2d 119, 124 (2d Cir. 1991) (plaintiff is not compelled to prove his case at the pleading stage). Therefore, the court should not dismiss on a Rule 12(b)(6) motion unless it appears clear that the plaintiff cannot in any way establish a set of facts to sustain his claim which would permit relief. See Hughes v. Rowe, 449 U.S. 5, 10, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980); Cooper, 140 F.3d at 440 ("Although bald assertions and conclusions of law are insufficient, the pleading standard is nonetheless a liberal one."); Boddie v. Schnieder, 105 F.3d 857, 860 (2d Cir. 1997); Bernheim v. Litt, 79 F.3d 318, 321 (1996); Bass v. Jackson, 790 F.2d 260, 262 (2d Cir. 1986).

Additionally, the Rules do not require the claimant to set out in detail the facts upon which the claim is based, but only that a defendant be given "fair notice of what the claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Individual allegations, however, that are so baldly conclusory that they fail to give notice of the basic events and circumstances of which the plaintiff complains are meaningless as a ...

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