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Green v. National Grid

August 24, 2010

VERSEL GREEN, PLAINTIFF,
v.
NATIONAL GRID, NATIONAL GRID USA SERVICE COMPANY, INC., NIAGARA MOHAWK POWER CORPORATION, NIAGARA MOHAWK, A NATIONAL GRID COMPANY, LOCAL 97, COLOGNE SERVICES CORPORATION, AND HAMBERGER & WEISS DEFENDANTS.



The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court

DECISION AND ORDER

I. INTRODUCTION

Presently before this Court are: (1) Defendant Local 97's Motion to Dismiss Plaintiff's Amended Complaint pursuant to Rules 12(b)(6) and 12(e) of the Federal Rules of Civil Procedure (Docket No. 23); (2) a Motion to Strike and/or Dismiss the Original or Amended Complaint pursuant Rules 12(b), (c), (e), (f), 15(a), 21, and 41(b) of the Federal Rules of Civil Procedure filed by National Grid, National Grid USA Service Company, Inc., Niagara Mohawk Power Corporation, and Niagara Mohawk, a National Grid Company ("National Grid and Niagara Mohawk") (Docket No. 24)*fn1 ; (3) Cologne Services Corporation's ("Cologne") Motion to Strike and/or Dismiss the Amended Complaint pursuant to Rules 8(a)(2), 9(b), 12(b)(6), and 41(b) of the Federal Rules of Civil Procedure (Docket No. 29); and (4) Plaintiff's Motion to Appoint Counsel (Docket No. 56).

For the following reasons, the Motions to Strike are denied, but all Motions to Dismiss the Amended Complaint are granted, and Plaintiff's Motion to Appoint Counsel is denied.

II. DISCUSSION

A. The Nondispositive Motions

The Court's determinations on the Motions to Strike and Motion to Appoint Counsel are informed by this action's lengthy and rather tortuous procedural background.

1. Procedural Background

On September 15, 2006, Plaintiff Versel Green commenced this action through his attorney, Ruth M. Pollack, Esq., by filing a three-page Complaint in New York State Supreme Court, Erie County, alleging that his former employers, Niagara Mohawk and National Grid took various actions against him and ultimately terminated his employment in violation of "New York State Human Rights Law, Disability Law, Worker's Compensation Law, Family Medical Leave Act of New York, ERISA, and other laws to be determined," and that his union, Local 97, breached its duty of fair representation. (Docket No. 1, Pl's Compl., ¶¶ 9, 11.)

On February 1, 2007, the action was removed on the ground of federal question jurisdiction, and assigned to the Honorable John T. Curtin, United States District Judge. On February 26, 2007, the case was transferred to the Honorable John T. Elfvin, United States District Judge, and on October 17, 2007, was assigned to this Court.

a. Defendants' Motions Addressing Plaintiff's Original Complaint

On February 7, 2007, Local 97 moved to dismiss Plaintiff's Complaint. (Docket No. 6.) Although the Court found that the Complaint failed to comply with Rule 8(a) of the Federal Rules of Civil Procedure (Docket No. 10 ¶¶ 6-7), it gave Plaintiff 30 days "to file and serve an Amended Complaint setting forth his claims against Local 97 in greater detail" (Docket No. 10 ¶ 9).

Plaintiff, however, failed to meet both the 30-day deadline and a further deadline for amendment. (Docket No. 13.) Thereafter, on July 29, 2008, Local 97 renewed its motion to dismiss the Complaint. (Docket No. 14.) The Court directed Plaintiff to submit a response to Local 97's renewed motion by August 29, 2008. (Id.) Plaintiff failed to do so. Thereafter, on October 20, 2008, Niagara Mohawk and National Grid moved for judgment on the pleadings, or dismissal. (Docket No. 17.)

On November 26, 2008, this Court issued a sua sponte Order, directing Plaintiff to file an Amended Complaint setting forth its claims against Local 97 in compliance with Rule 8(a) within fifteen (15) days. (Docket No. 21.) Plaintiff was also advised that this was his third and final warning, and that there would be no further extensions of time. (Id.) The Court did not issue scheduling orders on the pending motions at that time, but stated its intent to do so should Plaintiff fail to file an amended complaint per the Court's instructions. (Id. ¶ 7.)

b. Plaintiff's Amended Complaint

On December 15, 2008, Plaintiff, through his attorney, Ruth M. Pollack, Esq., filed an Amended Complaint. (Am. Compl., Docket No. 22.) The Amended Complaint has increased in length from 3 to 19 pages, adds new facts, contains new and expanded claims, and names two additional defendants -- Cologne (an insurance carrier) and Hamberger & Weiss (a law firm).

Plaintiffs Amended Complaint does not set forth separate, identifiable claims for relief. The following "claims" are gleaned from the jurisdictional statements and fact allegations: (1) National Grid, Niagara Mohawk, Cologne, and Hamberger & Weiss denied Plaintiff disability and other benefits under the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. §§ 1001, et seq. (Am. Compl. ¶¶ 1, 113); (2) National Grid, Niagara Mohawk, and Local 97 retaliated against him for "whistle blower" activity in violation of, (a) "Section 510 of ERISA, codified at 29 U.S.C. § 1140," (b) "42 U.S.C. § 12101, et seq." and (c) the "state law counterpart of [42 U.S.C. § 12101 et seq.]" (Am. Compl. ¶¶ 2, 5); (3) defendants made false statements or concealed facts relating to ERISA documents in violation of 18 U.S.C. § 1027 (Am. Compl. ¶¶ 3, 100), (4) Niagara Mohawk and National Grid violated the Americans with Disabilities Act ("ADA") and the ADA's "New York State law counterpart" (Am. Compl. ¶¶ 4, 111); (5) Local 97 breached its duty of fair representation (Am. Compl. ¶ 35); (6) Niagara Mohawk and National Gridviolated the "Disability Law, Worker's Compensation Law, Family Medical Leave Act of New York, . . . and other laws to be determined" (Am. Compl. ¶ 85); and (7) Niagara Mohawk and National Grid defrauded him by misappropriating millions of dollars contained in a "Superfund" (Am. Compl. ¶¶ 102-107).

Plaintiff seeks $50,000,000.00 on each cause of action in addition to reinstatement, back pay, "front" pay, all retroactive fringe benefits, attorneys fees and costs, statutory interest, pain and suffering, punitive damages, and other relief this Court deems proper.

(Am. Compl. ¶ 115.)

c. Defendants' Motions as to Plaintiff's Amended Complaint

On December 23, 2008, Local 97 moved to dismiss the Amended Complaint pursuant to Rules 12(b)(6) and (e), arguing that Plaintiff fails to state a claim and the amended pleading fails to comply with this Court's Order granting him leave to amend. (Docket No. 23.) Thereafter, Niagara Mohawk and National Grid filed a motion to strike the Amended Complaint or, alternatively, to dismiss whichever pleading survives as the operative document pursuant to Rules 12(b), (c), (e), (f), 41(b) of the Federal Rules of Civil Procedure, and Local Rule 41.2. (Docket Nos. 24.) Lastly, Cologne filed a motion to strike the Amended Complaint or, alternatively to dismiss the Amended Complaint pursuant to Rules 8(a)(2), 9(b), 12(b)(6) and 41(b). (Docket No. 29.) At a status conference before this Court, Hamberger & Weiss indicated, through counsel, that Plaintiff has not served it with the Amended Complaint.

By Decision and Order filed February 10, 2009, this Court directed Plaintiff to submit a response to all motions by March 2, 2009. (Docket No. 31.) Plaintiff timely submitted his response (Docket No. 35), and all moving Defendants submitted replies in further support of their motions. (Docket Nos. 36-38.) Thereafter, Plaintiff moved for an extension of time to file a sur-reply. (Docket No. 40.)*fn2

d. Pollack's Suspension From Practicing Law

At some point after Plaintiff filed his response to the motions to dismiss, this Court discovered that Ruth M. Pollack, Esq., Plaintiff's counsel, had been suspended from practicing law in the Western District of New York. As a result, this Court issued a Text Order on June 24, 2009, directing all parties to appear for a status conference on July 8, 2009. (Docket No. 43.)

Pollack did not appear. (Docket No. 44.) This Court then informed the parties about Pollack's suspension, and terminated her from the case. This Court gave Plaintiff 30 days to obtain new counsel, and scheduled another status conference for September 2, 2009.

At the status conference on September 2, 2009, Plaintiff informed the Court that he had retained new counsel, Fred J. Berg, Esq. (Docket No. 45.) Berg, however, did not appear. As a result, this Court scheduled another status conference for September 16, 2009, and directed Plaintiff to inform Berg that he must file a notice of appearance by September 11, 2009.

Berg filed his notice of appearance on September 10, 2009. (Docket No. 46.) However, he did not appear at the September 16, 2009 status conference. This Court then scheduled an additional status conference for October 30, 2009, and directed Plaintiff to inform Berg that, in the event he would like to supplement Pollack's response to Defendants' motions to dismiss, he must do so by October 16, 2009. Berg did not file a supplemental response.

At the status conference held before this Court on October 30, 2009, Berg did not appear in person. Plaintiff stated that Berg was awaiting a phone call from the Court. The Court placed a call to Berg at a phone number provided by Plaintiff, and allowed Berg to participate in the conference telephonically. Berg sought leave to file an Amended Complaint in order to add another Defendant. This Court set November 30, 2009, as the date by which Berg must make a motion seeking leave to amend the complaint.*fn3 Lastly, this Court scheduled another status conference for February 3, 2010.

On November 30, 2009, Berg filed a Motion for Leave to File a Second Amended Complaint. (Docket No. 49.) However, the Clerk's office notified Berg that the motion was terminated due to filing errors, and directed him to re-file. After more than a month passed, this Court issued a Text Order directing Berg to re-file his motion on or before January 19, 2010. (Docket No. 51.) Berg did not do so. On February 2, 2010, the Court noted Berg's failure to file, and deemed all pending motions submitted. (Docket No. 52.) Later that same day, Berg filed Plaintiff's Motion for Leave to File a Second Amended Complaint. (Docket No. 53.) His filing was again deemed insufficient for failure to file a ...


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