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Andrei Klein, Md v. City of New York et al

February 21, 2012

ANDREI KLEIN, MD,
PLAINTIFF,
v.
CITY OF NEW YORK ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Paul A. Engelmayer, District Judge

OPINION & ORDER

In July 2011, defendants the City of New York and various of its officers (the "municipal defendants") and the United Federation of Teachers ("UFT") filed motions to dismiss the Second Amended Complaint of pro se plaintiff Dr. Andrei Klein ("Klein"). That Complaint asserts violations of the following federal laws: 42 U.S.C. § 1983 for deprivation of rights under the First, Fifth, and Fourteenth Amendments; 42 U.S.C. § 1985 for conspiracy to interfere with civil rights; the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.; the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.; Title VI of the Civil Rights Act, 42 U.S.C. § 2000d et seq.; Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq.; Title IX of the Education Amendment of 1972, 20 U.S.C. § 1681 et seq.; the Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111--2, § 2(3), 123 Stat. 5 (amending 42 U.S.C. § 2000e-5(e)); the Fair Labor Standards Act, 29 U.S.C. § 201 et seq.; the False Claims Act ("FCA"), 31 U.S.C. § 3729 et seq.; the Racketeer Influenced and Corrupt Organizations ("RICO") Act, 18 U.S.C. § 1961 et seq.; and the Equal Pay Act, 29 U.S.C. § 206(d).

As for state law claims, Klein alleged violations of the New York State Human Rights Law, N.Y. Exec. Law § 290, et seq.; the New York City Human Rights Law, N.Y.C. Admin. Code, § 8-101 et seq.; the New York State Whistleblower Law, N.Y. Labor Law § 740 et seq.; the New York City Whistleblower Law, N.Y.C. Admin. Code § 12-113; the New York City False Claims Act, N.Y.C. Admin. Code § 7--801 et seq.; as well as breach of contract; breach of the implied covenant of good faith and fair dealing; conversion; unjust enrichment; quantum meruit; fraud; and intentional misrepresentation. Klein also alleges breach of fiduciary duty, which the Honorable James L. Cott, United States Magistrate Judge, correctly construed as a cause of action for breach of the duty of fair representation under New York Civil Service Law § 209--a(2)(c).

Shortly after the defendants filed motions to dismiss, Klein filed a cross-motion for a declaratory judgment and preliminary injunction against the defendants. On October 28, 2011, Judge Cott, issued a Report and Recommendation that the defendants' motion to dismiss should be granted, that Klein's cross-motion for a declaratory judgment and preliminary injunction should be denied, and that Klein's application for pro bono counsel should similarly be denied. See Dkt. 48; Klein v. City of New York, No. 10-cv-9568, 2011 U.S. Dist. LEXIS 125375, at *2-- 13 (S.D.N.Y. Oct. 28, 2011) (Report and Recommendation).

On November 14, 2011, plaintiff filed partial objections to Judge Cott's Report and Recommendation, and also submitted what, in substance, appeared to be an amended complaint. See Dkt. 49. Klein's submission further requested an extension of time to respond in full to Judge Cott's Report and Recommendation because the defendants had not yet provided him with copies of unreported cases cited therein. By Order dated November 21, 2011 (Dkt. 50), the Court construed Klein's submission as a motion to further amend the Second Amended Complaint, directed the defendants to respond to it as such, and granted Klein's request for an extension insofar as he wished to respond to issues raised by the unreported cases he had not previously been able to access. Additionally, because Klein's motion to amend contained qui tam claims under the False Claims Act, the Court received the submission under seal pursuant to 31 U.S.C. § 3730(b)(2). Id. However, because Klein's submission represented that he had already served that document on the defendants, the Court ordered the defendants not to copy it or disseminate it beyond counsel of record in this case, to file their oppositions to the motion to amend under seal, and to include all originals of Klein's submission in the sealed envelope with their opposition papers. Id. The Court also invited the defendants' views on whether these documents should remain sealed pending the resolution of this case. Id.

Briefing is now complete on both the parties' objections to Judge Cott's Report and Recommendation, and Klein's new motion to amend the complaint.*fn1 Additionally, the municipal defendants have requested that all documents relating to this case be unsealed. The Court addresses all of these issues in this Opinion and Order. For the following reasons, Judge Cott's Report and Recommendation is adopted in its entirety, Klein's motion to further amend his complaint is denied, and all documents relating to this case are ordered unsealed.

I.Judge Cott's Report and Recommendation

The Court first addresses Judge Cott's Report and Recommendation on the defendants' motion to dismiss, plaintiff's cross-motion for a declaratory judgment and preliminary injunction, and plaintiff's pending application for pro bono counsel. The Court assumes familiarity with the factual background and procedural history of this case, set forth at length in Judge Cott's Report and Recommendation. See Klein, 2011 U.S. Dist. LEXIS 125375, at *2--13.

A.Applicable Legal Standard

In reviewing a Report and Recommendation, a district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). To accept those portions of the report to which no timely objection has been made, "a district court need only satisfy itself that there is no clear error on the face of the record." King v. Greiner, No. 02-cv-5810, 2009 U.S. Dist. LEXIS 58771, at *10 (S.D.N.Y. July 8, 2009) (citation omitted); see also Wilds v. United Parcel Serv., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003). But where specific objections are made, "[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Fed. R. Civ. P. 72(b)(3); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). To the extent, however, that the party makes only conclusory or general objections, or simply reiterates the original arguments, the Court will review the Report and Recommendation strictly for clear error. See Kozlowski v. Hulihan, Nos. 09-cv-7583, 10-cv-0812, 2012 U.S. Dist. LEXIS 15124, at *10 (S.D.N.Y. Feb. 7, 2012) (Holwell, J.); Brown v. Time Warner Cable, No. 10-cv-8469, 2011 U.S. Dist. LEXIS 113624, at *7 (S.D.N.Y. Oct. 3, 2011) (Crotty, J.); Soley v. Wasserman, No. 08-cv-9262, 2011 U.S. Dist. LEXIS 111522, at *11 (S.D.N.Y. Sept. 29, 2011) (Wood, J.); Pinkney v. Progressive Home Health Servs., No. 06-cv-5023, 2008 U.S. Dist. LEXIS 55034, at *2 (S.D.N.Y. July 21, 2008) (Swain, J.). The Court is mindful that pro se parties are generally accorded leniency when making objections. Pinkney, 2008 U.S. Dist. LEXIS 55034, at *2--3 (citing Walker v. Vaughan, 216 F. Supp. 2d 290, 292 (S.D.N.Y. 2002)); see also Vasquez v. Reynolds, No. 00-cv-0862, 2002 U.S. Dist. LEXIS 4395 (S.D.N.Y. Mar. 18, 2002). Nonetheless, to trigger de novo review, even a pro se party's objections to a Report and Recommendation must be specific and clearly aimed at particular findings in the magistrate judge's report. Molefe v. KLM Royal Dutch Airlines, 602 F. Supp. 2d 485, 487 (S.D.N.Y. 2009) (citing Camardo v. Gen. Motors Hourly-Rate Emps. Pension Plan, 806 F. Supp. 380, 381--82 (W.D.N.Y. 2002)).

B.Discussion

Klein largely makes only conclusory and general objections which merit only clear error review. The Court finds no error on the face of the Report and Recommendation. As to the points Klein objects to only conclusorily and generally, the Court adopts the Report and Recommendation in its entirety. However, Klein makes two objections sufficiently aimed at particular findings in the Report and Recommendation as to merit de novo review.

1.Klein's contention that he was not "terminated" on June 6, 2003

Klein contends that, contrary to the account in Judge Cott's report, he was not terminated on June 6, 2003, and has never been formally "terminated." See Dkt. 54 at 2. On that date, Klein received a letter from his superior directing him to collect his belongings and vacate his workspace; there is no allegation that he was ever invited or permitted to return. Klein asserts that this and other factual errors "markedly affected the outcome of the judicial inquiry." Id. However, the Report and Recommendation did not rely on the characterization of the personnel action at issue as a ...


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