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White v. Verizon


October 15, 2009


The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge


Currently pending before the Court in this pro se employment civil rights action, filed by Saundra V. White ("Plaintiff") against Verizon f/k/a Bell Atlantic North ("Defendant"), are the following three motions: (1) Plaintiff's motion to amend her Amended Complaint; (2) Defendant's motion for summary judgment; and (3) Plaintiff's cross-motion for summary judgment. (Dkt. Nos. 43, 56, 62.) For the following reasons, Plaintiff's motion to amend her Amended Complaint is denied; Defendant's motion for summary judgment is granted; and Plaintiff's cross-motion for summary judgment is denied.


Familiarity with the claims asserted in Plaintiff's Amended Complaint, the factual background giving rise to those claims, her proposed amendment to those claims, and the record evidence and legal arguments presented in Defendant's motion for summary judgment, is assumed in this Decision and Order.


A. Motion to Amend

Plaintiffs' motion to amend is made pursuant to Fed. R. Civ. P. 15(a), which provides that "leave [to amend] shall be freely given when justice so requires." Fed. R. Civ. Proc. 15(a); Foman v. Davis, 371 U.S. 178, 182 (1962); Manson v. Stacescu, 11 F.3d 1127, 1133 (2d Cir. 1993). Elaborating on this standard, the Supreme Court has explained:

In the absence of any apparent or declared reason--such as 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, etc.--the leave sought should . . . be 'freely given.'

Foman, 371 U.S. at 182, accord, Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001) ("[Leave to amend] should not be denied unless there is evidence of undue delay, bad faith, undue prejudice to the non-movant, or futility.").

With regard to the undue-delay ground for denying such a motion, the Second Circuit has held that "despite the lenient standard of Rule 15(a), a district court does not abuse its discretion in denying leave to amend the pleadings after the deadline set in the scheduling order where the moving party has failed to establish good cause." Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir. 2000).

With regard to the undue-prejudice ground for denying such a motion, while as a general rule permission to amend a complaint should be freely given, "'the trial court [is] required to take into account any prejudice' that might result to the party opposing the amendment." Ansam Assocs., Inc. v. Cola Petroleum, Ltd., 760 F.2d 442, 446 (2d Cir. 1985) (leave to amend denied where new claim concerned different period of time and different theory of recovery from original claim) (quoting Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330-31 [1971]). For example, in Ansam Associates, the Second Circuit held that permitting Plaintiff to allege a "new set of operative facts" would have been "especially prejudicial [to the defendant] given the fact that discovery had already been completed and [defendant] had already filed a motion for summary judgment." Ansam Associates, 760 F.2d at 446.

With regard to the futility ground for denying such a motion, a court measures futility under the same standard as a motion to dismiss under Fed. R. Civ. P. 12(b)(6). Nettis v. Levitt, 241 F.2d 186, 194 n.4 (2d Cir 2001); Ricciuti v. New York City Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991). In considering such a motion to dismiss, the Court accepts as true the plaintiff's factual allegations and draws all reasonable inferences in favor of him. Board of Educ. of Pawling Cent. Sch. Dist. v. Schultz, 290 F.3d 476, 479 (2d Cir. 2002). A defendant may base the dismissal on either or both of two grounds: (1) a challenge to the "sufficiency of the pleading" under Fed. R. Civ. P. 8(a)(2),*fn1 or (2) a challenge to the legal cognizability of the claim.*fn2

Finally, it should be noted that, while Fed. R. Civ. P. 15(a) generally governs the amendment of complaints, in the case of proposed amendments that seek to add new defendants the Court must look also to Fed. R. Civ. P. 21. U.S. v. Chilstead Building Co., 96-CV-0641, 1997 U.S. Dist. LEXIS 18134, at *2 (N.D.N.Y. Nov. 7, 1997) (McAvoy, C.J.) (citations omitted). Rule 21 states that a party may be added to an action "at any stage of the action and on such terms as are just." Fed. R. Civ. P. 21; Chilstead, 1997 U.S. Dist. LEXIS 18134, at *2.Rule 21 is "intended to permit the bringing in of a person, who through inadvertence, mistake or for some other reason, had not been made a party and whose presence as a party is later found necessary or desirable." U.S. v. Commercial Bank of N. Am., 31 F.R.D. 133, 135 (S.D.N.Y. 1962) (internal quotations omitted). Addition of parties under Fed. R. Civ. P. 21 is guided by the same standard as a motion to amend under Fed. R. Civ. P. 15. Chilstead, 1997 U.S. Dist. LEXIS 18134, at *2; Fair Hous. Dev. Fund Corp. v. Burke, 55 F.R.D. 414, 419 (E.D.N.Y. 1972).

B. Motion for Summary Judgment

Under Fed. R. Civ. P. 56, summary judgment is warranted if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In determining whether a genuine issue of material fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the moving party. However, when the moving party has met its initial burden of establishing the absence of any genuine issue of material fact, the nonmoving party must come forward with "specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e).

What this burden-shifting standard means when a non-movant has failed to respond to a movant's motion for summary judgment is that "[t]he fact that there has been no [such] response . . . does not . . . [by itself] mean that the motion is to be granted automatically." Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). Rather, practically speaking, the Court must (1) determine what material facts, if any, are disputed in the record presented on the movant's motion, and (2) assure itself that, based on those undisputed material facts, the law indeed warrants judgment for the movant. Champion, 76 F.3d at 486; Allen v. Comprehensive Analytical Group, Inc., 140 F. Supp.2d 229, 232 (N.D.N.Y. 2001) (Scullin, C.J.); N.D.N.Y. L.R. 7.1(b)(3). However, the non-movant's failure to respond to the movant's motion for summary judgment lightens the movant's burden on the motion.

More specifically, where a non-movant has willfully failed to properly respond to a movant's factual assertions contained in its Statement of Material Facts (a/k/a its "Rule 7.1 Statement"), the factual assertions contained in that Rule 7.1 Statement will be accepted as true to the extent that those facts are supported by the evidence in the record. Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 243 (2d Cir. 2004); Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996); N.D.N.Y. L.R. 7.1(a)(3); N.D.N.Y. L.R. 56.2.*fn3

Similarly, where a non-movant has willfully failed to respond to a movant's properly filed and facially meritorious memorandum of law (submitted in support of its motion for summary judgment), the non-movant is deemed to have "consented" to the legal arguments contained in that memorandum of law under Local Rule 7.1(b)(3).*fn4 Stated another way, where a movant has properly filed a memorandum of law (in support of a properly filed motion for summary judgment), and the non-movant has failed to respond to that memorandum of law, the only remaining issue is whether the legal arguments advanced in the movant's memorandum of law are facially meritorious.*fn5 A movant's burden in making legal arguments that are facially meritorious has appropriately been characterized as "modest."*fn6

Implied in the above-stated burden-shifting standard is the fact that, where a nonmoving party fails to adequately respond to a motion for summary judgment, a district court has no duty to perform an independent review of the record to find proof of a factual dispute--even if that nonmoving party is proceeding pro se.*fn7 (This is because the Court extends special solicitude to the pro se litigant, in part by ensuring that he or she has received notice of the consequences of failing to properly respond to the motion for summary judgment.)*fn8 As has often been recognized by both the Supreme Court and Second Circuit, even pro se litigants must obey a district court's procedural rules.*fn9 For this reason, this Court has often enforced Local Rule 7.1(a)(3) by deeming facts set forth in a moving party's statement to have been admitted where the nonmoving party has willfully failed to properly respond to that statement*fn10 --even where the nonmoving party was proceeding pro se in a civil rights case.*fn11


A. Plaintiff's Motion to Amend Her Amended Complaint

Plaintiff's motion to amend (Dkt. No. 43) is denied on four alternative grounds. First, the motion is procedurally improper in that it fails to include a copy of the proposed Second Amended Complaint, and an affidavit. See N.D.N.Y. L.R. 7.1(a)(2),(4). Second, Plaintiff's motion to amend, filed on January 24, 2008, is untimely in that the deadline for filing motions expired on September 20, 2006, and Plaintiff did not request, or show grounds for, an extension of that motion-filing deadline. (Dkt. No. 10.) As a result, Plaintiff's motion to amend is denied on the grounds of undue delay. Third, permitting Plaintiff to bring a new defendant into this action at this late stage of the litigation, after discovery of this action has been completed and Defendant has filed a motion for summary judgment (and Plaintiff has filed a cross-motion for summary judgment), would result in undue prejudice to the proposed new defendant. Fourth, and finally, Plaintiff's motion to amend is unsupported by a showing of cause in that the proposed amended claim--a claim against the United States of America arising out of the New York Workers' Compensation Board's alleged "obstruction of governmental provisions"--is futile.

B. Defendant's Motion for Summary Judgment

After carefully reviewing the entire file in this action (including the parties' motion papers and the record evidence), the Court finds that Plaintiff's Amended Complaint should be dismissed for each of the alternative reasons stated by Defendant in its memorandum of law: (1) the statute of limitations bars each of Plaintiff's claims; and (2) in any event, even if the statute of limitations does not bar Plaintiff's claims arising out of the denial of her application for disability pension benefits, those claims are barred because the denial of Plaintiff's application for disability pension benefits was not arbitrary or capricious. (See Dkt. No. 56, Part 2, at 6-17.) The Court would add only five points regarding Defendant's first asserted ground for dismissal (i.e., their statute-of-limitations argument).

First, Plaintiff has willfully failed to admit or deny each of Defendant's factual assertions (in their Rule 7.1 Statement of Material Facts) in matching numbered paragraphs supported by a specific citation to the record where the factual issue arises, as is required by Local Rule 7.1(a)(3).*fn12 (Compare Dkt. No. 56, Part 23 with Dkt. No. 60, Part 1.) As a result, each of Defendant's factual assertions in their Rule 7.1 Statement is deemed admitted by Plaintiff, pursuant to Local Rule 7.1(a)(3). The Court notes that, even if such facts have not been deemed admitted, the Court has been unable to find in the record any evidence controverting any of the facts asserted in Defendant's Rule 7.1 Statement.

Second, the relevant limitations periods are correctly recited by Defendants. (Dkt. No. 56, Part 2, at 9-11.) More specifically, the applicable limitations periods are follows: (1) 90 days after receipt of "right to sue" notice for claims arising under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, and the Americans with Disabilities Act; (2) one year for intentional tort and conspiracy claims; (3) three years for claims sounding in negligence, or arising under 42 U.S.C. § 1983, New York State Human Rights Law, and the Fair Labor Standards Act (for willful acts); (4) four years for claims arising under Section 1981; and (5) six years for claims sounding in fraud and breach-of-contract, or arising under the Employee Retirement Income Security Act.

Third, the applicable limitations periods began running on October 1, 1999. This is because Plaintiff's short-term disability benefits were expressly and unequivocally denied, and the appeals process was expressly and unequivocally finalized, on the same date: October 1, 1999. (See Dkt. No. 58, Part 1, at 31,-32, 50-51 [Ex. 10 to Miklave Affirm., attaching copies of letter of October 1, 1999, from Bell Atlantic to Plaintiff, which concludes by stating, "The Bell Atlantic Benefit Appeals Committee is the Final Review Committee"], accord, Dkt. No. 58, Part 2, at 44-45; Dkt. No. 58, Part 3, at 10-11, 27-29.) Furthermore, Plaintiff did not subsequently file, nor did Defendant subsequently consider, either another appeal or a request for reconsideration regarding Defendant's clear repudiation of her application for short-term disability benefits on October 1, 1999.

Fourth, even when construed with the utmost of special leniency, Plaintiff's claims against Defendant in this action--even her claims purporting to arise from the March 21, 2006, appellate denial of her application for adisability pension--hinge on the correctness of the October 1, 1999, appellate denial of her application for short-term disability benefits.*fn13 This is because the appellate denial of March 21, 2006, was based on the express language of the Plan, which requires Plaintiff to have received 52 weeks of Short Term Disability Benefits, in order for her to receive Disability Pension Benefits. Specifically, the relevant portion of the Plan clearly provides that, "Disability Pension [benefits] shall be payable . . . only after the Participant has received sickness benefits under the Participating Company's Sickness and Accident Disability Benefit Plan for 52 weeks . . . ." (Dkt. No. 56, Part 15, at 37 [Ex. 9 to Miklave Affirm., attaching page "29" from relevant plan document].)

Fifth, the cases cited by Defendant support their argument that Plaintiff should not be, and is not, allowed to evade the applicable limitations period by casting her claims as new when in fact they are stale. (See Dkt. No. 56, Part 2, at 7-8 & n.13.) See, e.g., Wesley v. NMU Pension and Welfare Plan, 01-CV-2628, 2002 WL 10486, at *5 (S.D.N.Y. Jan. 3, 2002); Union Pacific Railroad Co. v. Beckham, 138 F.3d 325, 332 (8th Cir. 1998); Martin Construction Laborer's Pension Trust, 947 F.2d 1381, 1385 (9th Cir. 1991).

C. Plaintiff's Cross-Motion for Summary Judgment

Plaintiff's cross-motion for summary judgment (Dkt. No. 62) is denied on three alternative grounds. First, Plaintiff's cross-motion is moot in that the Court already granted Defendant's motion for summary judgment. Second, it is procedurally improper in that it is unsupported by a Rule 7.1 Statement. See N.D.N.Y. L.R. 7.1(a)(3). Third, it is without cause, for the reasons referenced above in Part III.B. of this Decision and Order.


ORDERED that Plaintiff's motion to amend (Dkt. No. 43) is DENIED; and it is further ORDERED that Defendant's motion for summary judgment (Dkt. No. 56) is GRANTED in its entirety, and Plaintiff's Amended Complaint (Dkt. No. 11) is DISMISSED in its entirety; and it is further

ORDERED that Plaintiff's cross-motion for summary judgment (Dkt. No. 62) is DENIED.

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