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Deeksha K. Singh v. New York State Department of Taxation and Finance

October 21, 2011

DEEKSHA K. SINGH, PLAINTIFF,
v.
NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, INTERNAL
REVENUE SERVICE, ERIE COMMUNITY COLLEGE, MR. LOUIS J. CERCONE, JR.,
BRISBANE CONSULTING GROUP, LLC, MS. EVELYNE O'SULLIVAN, MR. AJIT SINGH, COUNTY OF ERIE, MR. WILLIAM D. REUTER, MS. CONSTANCE MARCUS, MS. JACQUELINE BOGDAN, AND LARRY S. STOLZENBURG, DEFENDANTS.



The opinion of the court was delivered by: John T. Curtin United States District Judge

Plaintiff Deeksha K. Singh, proceeding pro se,*fn1 commenced this action on May 9, 2006, against defendants New York State Department of Taxation & Finance ("NYSDOTF"), New York State Department of Civil Service, and New York State Office of State Comptroller, alleging employment discrimination based on sex (female) and national origin (India) in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq., and requesting that the case be treated as a class action. Item 1. Prior to filing an answer, defendants moved to dismiss the action as against the Department of Civil Service and the Comptroller's Office pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted, and to deny class certification for failure to meet the requirements of Fed. R. Civ. P. 23. Items 10 & 11. By order entered September 20, 2007 (Item 14), this court granted defendants' motion, and NYSDOTF filed its answer on October 1, 2007. Item 15.

Following referral of the case to United States Magistrate Judge H. Kenneth Schroeder, Jr. for pretrial matters pursuant to 28 U.S.C. § 636(b)(1)(A),*fn2 plaintiff moved for leave to file an amended complaint, seeking to add new parties and new causes of action. Item 40. Having received no response from defendant, Judge Schroeder granted the motion by text order entered September 28, 2010. Item 48. Accordingly, on October 25, 2010, plaintiff filed the amended complaint (Item 49) consisting of 30 single-spaced pages, setting forth a myriad of additional claims seeking various forms of injunctive, declaratory, and monetary relief based on violations of:

Civil rights, personal injury, tort, property rights, privacy rights, rights under the constitution of the United States of America, rights under the Family and Medical Leave Act, rights under the Americans with Disabilities Act, discrimination based on gender, marital status, parental status, religion, national origin, disability, and race, retaliation due to plaintiff's exercise of legal rights, denial of rights, slander, injurious falsehood, and fraud among many others.

Item 49, ¶ 4. Named as defendants, along with NYSDOTF, are NYSDOTF employee Constance Marcus (together, the "State Defendants"); the Internal Revenue Service ("IRS"); Erie Community College ("ECC") and ECC Financial Officer William D. Reuter (together, the "ECC Defendants"); the County of Erie; Brisbane Consulting Group, LLC, and Louis J. Cercone, Jr. (an accountant affiliated with Brisbane Consulting; together, the "Brisbane Defendants"); and individual defendants Evelyne O'Sullivan, Esq. (the attorney who represented plaintiff in her divorce), Ajit Singh (plaintiff's former husband), Jacqueline Bogdan (an employee of the accounting firm Ernst & Young, where plaintiff worked during 1999-2000), and Larry S. Stolzenburg (an accountant allegedly hired by plaintiff to perform an earnings capacity valuation in connection with her divorce).

On March 2, 2011, upon being informed of Magistrate Judge Schroeder's recusal, this court referred the case to United States Magistrate Judge Leslie G. Foschio, pursuant to 28 U.S.C. § 636(b)(1)(A) and (B),*fn3 for all pretrial matters and to hear and report on dispositive motions. Item 78. The following motions were pending for consideration at the time of referral, or were filed soon thereafter:

1. Motion by the State Defendants to dismiss the Title VII claim against Constance Marcus, pursuant to Rule 12(b)(6); for a more definite statement, pursuant to Rule 12(e); and to sever claims unrelated to plaintiff's employment with NYSDOTF (Item 52);

2. Motion by the Brisbane Defendants to dismiss the amended complaint as against them, pursuant to Rule 12(b)(6) (Item 53);

3. Motion by Jacqueline Bogdan to dismiss the amended complaint as against her, pursuant to Rule 12(b)(6); and for attorneys fees and costs as sanctions for filing a frivolous lawsuit, pursuant to Rule 11 (Item 59);

4. Motion by the IRS to dismiss the amended complaint as against it, pursuant to Rules 12(b)(1) and 12(b)(6) (Item 74);

5. Motion by Ajit Singh to dismiss the amended complaint as against him, pursuant to Rule 12(b)(6) (Item 82); and

6. Plaintiff's motion to file a second amended complaint (Item 73).

On July 28, 2011, in accordance with the authority granted in the court's referral order, Judge Foschio entered a Decision and Order/Report and Recommendation (Item 96), in which he recommended that this court grant the motions to dismiss filed by the State Defendants, the Brisbane Defendants, the IRS, Ajit Singh, and Jacqueline Bogdan, with the exception that it was recommended defendant Bogdan's motion be denied to the extent it seeks Rule 11 sanctions. Judge Foschio also recommended that the court, in the exercise of its inherent authority to manage its docket, dismiss the amended complaint to the extent it asserts state law claims against Erie County and the ECC Defendants, and in its entirety as against individual defendants O'Sullivan and Stolzenburg, notwithstanding the fact that no dispositive motions had been filed on behalf of those defendants. Judge Foschio also dismissed as moot (or, alternatively, denied) the State Defendants' non- dispositive requests for severance and for a more definite statement. Finally, Judge Foschio denied plaintiff's motion for leave to file a second amended complaint, but granted the motion to the extent it could be construed as seeking leave to supplement the complaint in order to allege additional facts regarding events that have occurred since the filing of the first amended complaint regarding plaintiff's employment at ECC which, if true, would establish "that the unlawful conduct of which Plaintiff has already complained continues." Item 96, p. 73.

On August 8, 2011, plaintiff filed a document entitled, "Objection to Magistrate's 'Decision and Order Report and Recommendation.'" Item 99. Responses to plaintiff's objections have now been filed by the Brisbane Defendants (Item 101), the State Defendants (Item 102), the IRS (Item 103), Jacqueline Bogdan (Item 105), and the ECC Defendants (Item 106).

Pursuant to Rule 72 of the Federal Rules of Civil Procedure and its enabling statute, the Federal Magistrates Act, 28 U.S.C. ยงยง 631-39, the standard for district court review of a magistrate judge's pretrial order turns on whether the matters ruled upon are dispositive of the claims addressed. See Sokol Holdings, Inc. v. BMB Munai, Inc., 2009 WL 3467756, at *3 (S.D.N.Y. Oct. 28, 2009). For nondispositive matters, such as plaintiff's motion to file a second amended complaint, the district court's review is limited to consideration of timely objections and modification or setting aside "any part of the order that is clearly erroneous or contrary to law." Fed. R. Civ. P. 72(a); see Fielding v. Tollaksen, 510 F.3d 175, 178 (2d Cir. 2007) ("As a matter of case management, a district judge may refer nondispositive motions, such as a motion to amend the complaint, to a magistrate ...


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