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Velez v. Ses Operating Corp.

July 3, 2008


The opinion of the court was delivered by: Gerard E. Lynch, District Judge


Defendants in this employment dispute move for leave to amend their answer, and for judgment on the pleadings with respect to a number of causes of action. Separately, the parties have put before the Court a discovery dispute. This Opinion and Order disposes of all applications currently pending before the Court.

At the initial conference, the Court agreed with defendants' suggestion that several of the causes of action appeared to be unsupported by the facts alleged. However, the Court discouraged defendants from bringing a motion simply to clean up the complaint, and suggested that defendants defer such issues to the summary judgment stage, to avoid the parties' and the Court's having to address two rounds of motions. Instead, the Court urged plaintiff to reconsider certain claims, and to decide whether they should be withdrawn. Plaintiff acted on this advice, at least to the extent of stipulating to the dismissal of claims based on New York Labor Law § 740, the New York Workers' Compensation Law, and the "Civil Rights Act of 1966." (D. Mem.1 n.1) Defendants nevertheless now move to address deficiencies in the plaintiff's pleading. While the Court discouraged such a motion at the initial conference, parties have the right to make whatever motions are permitted by the Federal Rules of Civil Procedure, and the Court must address such motions on the merits. Defendants additionally seek to compel plaintiff to comply with her discovery obligations.


I. Motion to Amend the Answer

Defendants seek leave to amend their answer to assert a statute of limitations defense to certain causes of action, and a further defense that plaintiff's negligence claims are precluded by the New York Workers' Compensation Law. Under Rule 15(a)(2) of the Federal Rules of Civil Procedure, "[t]he court should freely give leave [to amend] when justice so requires." Fed. R. Civ. P. 15(a)(2). In deciding whether to grant such applications, courts consider whether the party seeking the amendment has not unduly delayed, whether that party is acting in good faith, whether the opposing party will be prejudiced, and whether the amendment will be futile. See Foman v. Davis, 371 U.S. 178, 182 (1962). All of these considerations favor granting defendants' motion. The case is still in its early stages, the amendment sought is clearly a good faith effort to raise legitimate defenses, plaintiff is not unfairly prejudiced by the assertion of meritorious defenses, and far from being futile, the defenses raised appear dispositive of certain claims. Accordingly, defendants' motion to amend their answer will be granted.

II. Motion for Judgment on the Pleadings

A defense motion for judgment on the pleadings under Rule 12(c) is assessed by the same standard as a motion to dismiss under Rule 12(b)(6): does the complaint state a cause of action, taking all allegations in the complaint as true and drawing all reasonable inferences in favor of the plaintiff? Several of the claims asserted by plaintiff fail to meet even this lenient standard.

A. 42 U.S.C. § 1983

Plaintiff purports to assert claims based on § 1983, which prohibits the deprivation of federal rights "under color of any statute, ordinance, regulation, custom, or usage[] of any State."

42 U.S.C. § 1983. Accordingly, to state a claim under § 1983, a plaintiff must allege that "the conduct complained of is fairly attributable to a state actor." Huszar v. Zeleny, 269 F. Supp. 2d 98, 104 (E.D.N.Y. 2003). The complaint alleges that "[d]efendant(s) is/are corporation(s) duly formed and existing under and by virtue of the laws of the State of New York." (Compl. ¶ 8.) Nowhere in the complaint is there the slightest allegation of fact whatsoever suggesting that the actions of these private corporations constitute state action. Neither the fact that defendants operate a "drug and alcohol rehabilitation facility treating many parties who as a condition of their parole and/or criminal guilty plea undergo some drug and alcohol treatment" (P. Mem. ¶ 13) - an allegation not made in the complaint - nor the fact that defendants' initial disclosure "references no insurance coverage" (id.), is suggestive of state action. Accordingly, all claims based on § 1983 must be dismissed.

B. 42 U.S.C. §§ 1985, 1986

Defendants urge that plaintiff's claims based on 42 U.S.C. § 1985 must be dismissed, among other reasons, because plaintiff fails to allege a conspiracy. Specifically, defendants point out that "[t]he agents and employees of a single corporate entity, . . . acting within the scope of their employment, are legally incapable of conspiring with each other for purposes of Section 1985." Perkins v. Kamco Supply Corp., No. 06 Civ. 5054, 2007 WL 4207193, at *4 (S.D.N.Y. Nov. 26, 2007). Indeed, the complaint, beyond a bare reference to the statute, gives no indication of who is asserted to have conspired with whom to do what. Defendants further argue that plaintiff's claims under 42 U.S.C. § 1986 must be dismissed because liability under § 1985 is a necessary predicate to a claim under § 1986. Plaintiff does not respond to these arguments, and so ...

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