United States District Court, S.D. New York
Decided: July 29, 2013.
[Copyrighted Material Omitted]
Okey Azuike, Plaintiff, Pro se, Hillside, NJ.
For Plaintiff: Michael J.P. Schewe, Esq., ScheweLaw, LLC, Newark, NJ.
For Defendants: Kenneth Kirschner, Esq., Vi T. Vu, Esq., Hogan Lovells U.S. LLP, New York, NY.
MEMORANDUM AND ORDER
NAOMI REICE BUCHWALD, UNITED STATES DISTRICT JUDGE.
Plaintiff Okey Azuike commenced this action against defendants BNY Mellon, Bank of New York Mellon Corp., Bank of New York Corp., and John Doe Corporations 1-10, asserting discrimination, harassment, and retaliation in employment on the basis of his color, race, and national origin. He also asserted claims for intentional and negligent infliction of emotional distress. Presently before the Court are defendants' motion to dismiss plaintiff's complaint and defendants' motion to impose sanctions against plaintiff and his former counsel. For the reasons stated below, defendants' motion to dismiss is granted and their motion for sanctions is denied.
In 1998, plaintiff " was hired by The Bank of New York Corporation as a Night Shift Console Operator." Compl. ¶ 7. In July 2008, he was allegedly promoted to a Software Systems Specialist III. Id. ¶ 10. Throughout his tenure working for defendants, plaintiff allegedly " never once received a disciplinary report or warning" and " never received a negative performance evaluation." Id. ¶ 11. Nonetheless, plaintiff was allegedly compensated less than similarly situated coworkers, see id. ¶ ¶ 16-18, passed over for a promotion that many allegedly less-qualified colleagues received, see id. ¶ ¶ 21-24, and subjected to a hostile work environment, see id. ¶ ¶ 42-44. When plaintiff filed complaints with defendants, the discriminatory treatment allegedly not only continued, see id. ¶ ¶ 25-31, 44, but also intensified in retaliation for plaintiff's complaints, see id. ¶ ¶ 45-47. On September 21, 2009, plaintiff's employment was terminated. See id. ¶ 33.
On January 6, 2010, plaintiff filed a Charge of Discrimination against defendants with the Equal Employment Opportunity Commission (the " EEOC" ), claiming that defendants discriminated against him based on race and national origin and that he was subject to retaliation. See EEOC Charge of Discrimination, Ex. A. Kirschner Aff. in Supp. of Rule 11 Mot. [hereinafter Kirschner Aff.]. Plaintiff's allegations of discrimination and retaliation in his EEOC Charge were substantially similar to his allegations in the present Complaint. See id.
On July 23, 2010, plaintiff filed a Voluntary Bankruptcy Petition pursuant to Chapter 7 in the United States Bankruptcy Court for the District of New Jersey. See Voluntary Petition, Ex. B, Kirschner Aff. Plaintiff was represented by counsel in the filing of this petition. See id. In response to the instruction, " List all suits and administrative proceedings to which the debtor is or was a party within one year immediately preceding the filing of this bankruptcy case," plaintiff failed to disclose his pending EEOC claim. Id. at 27. Further, in the schedule for personal property, plaintiff did not disclose his EEOC claim, and placed a checkmark for " None" next to " Other contingent and unliquidated claims of every nature, including tax refunds, counterclaims of the debtor, and rights to setoff claims." Id. at 10. The bankruptcy court issued a discharge order on October 29, 2010, and the case was closed on November 5, 2010. See Bankruptcy Docket, Ex. C, Kirschner Aff.
On April 6, 2012, the EEOC sent plaintiff a " right to sue letter," stating: " Based
upon its investigation, the EEOC is unable to conclude that the information obtained establishes violations of the statutes." EEOC Dismissal and Notice of Rights, Ex. D, Kirschner Aff. Plaintiff then commenced the present action on July 3, 2012. At that time, plaintiff's counsel, Mr. Michael J.P. Schewe, was unaware of plaintiff's prior bankruptcy. See Certification of Counsel in Opp'n to Defs.' Mot. for Rule 11 Sanctions Against ScheweLaw, LLC Only ¶ ¶ 4, 12(a) [hereinafter Schewe Aff.]; Defs.' Reply Mem. of Law in Further Supp. of Their Mots. to Dismiss and for Rule 11 Sanctions 7 [hereinafter Defs.' Reply].
On August 21, 2012, defendants' counsel, Kenneth Kirschner, sent a letter to Mr. Schewe informing him of plaintiff's failure to disclose his EEOC claim in his prior bankruptcy proceeding. See Letter from Kenneth Kirschner to Michael J.P. Schewe (Aug. 21, 2012), Ex. E, Kirschner Aff. The letter explained why that omission deprived plaintiff of standing to pursue the present action and stated that if plaintiff's complaint was not withdrawn within fourteen days -- by September 4, 2012 -- defendants would seek sanctions against plaintiff and his counsel. See id.
On August 31, 2012, Mr. Schewe sent an email to Mr. Kirschner stating that he was looking into the issue of standing and requesting an additional two weeks to respond. Letter from Michael J.P. Schewe to Kenneth Kirschner (Aug. 31, 2012), Ex. F, Kirschner Aff. On September 5, 2012, Mr. Kirschner sent Mr. Schewe an email stating that, unless plaintiff's complaint was withdrawn with prejudice by September 7, 2012, defendants would oppose any stipulation of dismissal " unless some provision for [their] costs and fees [was] made." Letter from Kenneth Kirschner to Michael J.P. Schewe (Sept. 5, 2012), Ex. H, Kirschner Aff. On September 6, 2012, Mr. Schewe wrote to Mr. Kirschner that he would have a response by the following morning. Letter from Michael J.P. Schewe to Kenneth Kirschner (Sept. 6, 2012), Ex. I, Kirschner Aff.
On the afternoon of September 7, 2012, not having received a response from Mr. Schewe, see Kirschner Aff. ¶ 11, Mr. Kirschner sent him an email stating that, if he did not receive a response that day, he would " proceed with drafting an appropriate motion to dismiss and/or for sanctions." Letter from Kenneth Kirschner to Michael J.P. Schewe (Sept. 7, 2012), Ex. I, Kirschner Aff. On September 10, 2012, Mr. Schewe sent Mr. Kirschner an email stating that he was waiting to hear back from plaintiff's bankruptcy attorney and would respond to Mr. Kirschner once he had. Letter from Michael J.P. Schewe to Kenneth Kirschner (Sept. 10, 2012), Ex. J, Kirschner Aff. Later that day, Mr. Kirschner sent Mr. Schewe a letter stating that, if plaintiff did not withdraw his complaint with prejudice by 5:00 p.m., defendants would move for Rule 11 sanctions. Letter from Kenneth Kirschner to Michael J.P. Schewe (Sept. 10, 2012), Ex. K, Kirschner Aff. That evening, not having heard from Mr. Schewe, see ...