August 7, 2013
MATTHEW McCASKILL, Plaintiff,
SHOPRITE SUPERMARKET, et al., Defendants.
MATTHEW McCASKILL, Plaintiff, pro se
MARK DIANA, ESQ., Attorney for Defendants ShopRite and Ausiano
DECISION and ORDER
ANDREW T. BAXTER, Magistrate Judge.
Presently before the court is an amended complaint, filed by plaintiff in accordance with the order of the Honorable Lawrence E. Kahn, Senior U.S. District Court Judge, dated July 24, 2013. (Dkt. Nos. 47, 48). On July 24, 2013, Senior Judge Kahn granted defendants ShopRite's and Ausiano's motion to dismiss portions of plaintiff's original complaint and denied plaintiff's six motions to amend. (Dkt. No. 47). The order further allowed plaintiff one more opportunity to move to amend his complaint in accordance with the legal principles discussed in Senior Judge Kahn's order. (Dkt. No. 47 at 28). For the following reasons, this court finds that plaintiff has failed to comply with Senior Judge Kahn's order. Therefore, I will order denial of plaintiff's "motion" to amend, and in accordance with Judge Kahn's direction, will order dismissal of the amended complaint with prejudice.
I. Facts and Procedural History
Plaintiff filed his original complaint on March 4, 2013. (Dkt. No. 1). Plaintiff filed the original complaint pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"),  loosely alleging that defendant ShopRite Supermarket discriminated against him because of his race, sex, and "insubordination." (Compl. at ¶¶ 4, 6). Plaintiff alleges that he was terminated from his job as a result.
After noting various deficiencies in the complaint, I granted plaintiff's motion to proceed in forma pauperis ("IFP") and ordered service of the complaint due to the liberality with which pro se complaints must be treated. Bertin v. United States, 478 F.3d 489, 491 (2d Cir. 2007) (citing inter alia Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). Only defendants ShopRite and Ausino appear to have been served in this case, and they have appeared through counsel.
On May 6, 2013, defendants ShopRite and Ausiano filed a motion to dismiss plaintiff's common law claims of Intentional Infliction of Emotional Distress ("IIED") and Defamation. (Dkt. No. 22). After the motion to dismiss was filed, plaintiff began a barrage of motions to amend. (Dkt. No. 24, 25, 34, 35, 36, 43). In his lengthy July 24, 2013 order, Senior Judge Kahn denied all of plaintiff's motions to amend and granted the defendants' motion to dismiss the plaintiff's common law claims with prejudice. At the end of Senior Judge Kahn's order, he gave plaintiff one more chance to file a proper motion to amend his complaint, which would include a proposed amended complaint for the court's review. Judge Kahn also reviewed each of plaintiff's prior proposed amended complaints and found that all but one claim were subject to dismissal "with prejudice." (Dkt. No. 47 at 28-29).
In the order, Judge Kahn stated that if plaintiff made a motion to amend, he could not seek to join UFCW Local ("the Union") or Melissa Stiles as defendants. (Dkt. No. 47 at 28). The order further stated that plaintiff could not bring a Title VII hostile environment claim or an IIED claim against "Defendants." ( Id. ) Judge Kahn stated that the "motion" must comply with Fed.R.Civ.P. 15 and Local Rule 7.1(a)(4) in that a motion to amend must be accompanied by a complete proposed amended complaint which includes all the claims plaintiff wishes to bring and any facts that he wishes to allege. ( Id. )
II. Legal Standards
Fed. R. Civ. P. 15(a) provides that the court should grant leave to amend "freely... when justice so requires." While a pro se plaintiff's submissions are to be afforded the greatest liberality,  a motion to amend may be denied where it appears that granting leave to amend is unlikely to be productive or the amendment is futile. Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993) (citations omitted).
III. Amended Complaint
Judge Kahn has already reviewed several of plaintiff's proposed amended complaints and has found most of the claims meritless and futile. He afforded plaintiff one more opportunity to move to amend to cure the deficiencies in the claims that were dismissed "without prejudice." Unfortunately, plaintiff has not heeded Judge Kahn's order. His latest document is not a "motion" to amend, it is simply an "amended complaint." (Dkt. No. 48). Even if the court were to excuse the fact that plaintiff did not make a proper "motion" to amend, the document that he filed as the amended complaint did not cure any of the defects cited by Judge Kahn, and in fact, has simply repeated prior claims that Judge Kahn dismissed "with prejudice."
Although plaintiff has filed his amended complaint on a form for Title VII discrimination claims, he has now left blank the boxes that he must check, stating the discriminatory conduct. (Dkt. No. 48, ¶ 6). There is absolutely no indication what discrimination plaintiff is claiming. Judge Kahn stressed that the new amended complaint must be a "complete" pleading. (Dkt. No. 47 at 28). A complete pleading may not incorporate any facts or claims that plaintiff brought in his previous complaints. Thus, plaintiff's failure to include the basis for his alleged "discrimination" makes the new amended complaint deficient on its face.
1. Attempt to Revive Claims Dismissed With Prejudice
Judge Kahn denied with prejudice plaintiff's motion to add any claims of a hostile work environment against ShopRite. (Dkt. No. 47 at 29). The "Second Cause of Action" in plaintiff's new amended complaint is labeled "hostile environment." (Dkt. No. 48 at CM/ECF p.3). The claim reads as follows:
I felt singled out [.] I was never offered any help with any of my job titles. They said I was slow and insufficient which caused my other peers and co-workers to distance them [sic] from me because of the lable [sic] that I was given.
( Id. ) Plaintiff now seems to be claiming that he was "singled out" because he was slow and "insufficient." Although he may mean "inefficient, " either way, singling an employee out because he is inefficient or slow is not a basis for employment discrimination under Title VII.
Judge Kahn also held that plaintiff could not bring a defamation claim against Melissa Stiles. (Dkt. No. 47 at 28). Plaintiff has done just that. In third cause of action, he writes, "defamation" and alleges that he was falsely accused of sexual harassment by Melissa Stiles. This claim cannot proceed in light of Judge Kahn's order.
2. Attempt to Amend Claim Dismissed Without Prejudice
Judge Kahn found that the only potentially viable claim was pursuant to section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185 against plaintiff's employer, ShopRite. In his amended complaint, plaintiff's first cause of action states that the Union did not help him when he was terminated. He states that the Union "took out union dues. They also [sic] breach of contract. Because I was terminated on allegation without a hearing and I was done with my probationary period. I had 77 days." (Dkt. No. 48 ¶ 9 at CM/ECF p.5). It appears that plaintiff is only referring to the Union as a defendant in this cause of action.
However, Judge Kahn found that plaintiff could not allege a claim against the Union under section 301 because plaintiff could not prove that the Union violated its duty of fair representation, an element of a "hybrid" section 301 claim. (Dkt. No. 47 at 18). Thus, in order to state a valid claim under section 301, plaintiff would have to make a claim against ShopRite for breach of the collective bargaining agreement ("CBA") that it had with the Union.
In this new complaint, plaintiff merely states that the Union breached its contract because plaintiff was terminated "on allegation" without a hearing. The CBA as cited by Judge Kahn in his decision states that "there shall be no suspension because of work performance, absenteeism and/or tardiness, without prior written notice having been given to the Union and the employee involved. " (Dkt. No. 47 at 19). Plaintiff states that he was fired because he sexually harassed a female employee, "on allegation without a hearing." The CBA does not provide for a "hearing, " only "notice" to the Union and the employee, and none of the reasons for termination or suspension listed in the agreement include "sexual harassment." Plaintiff has not stated a claim under section 301 against ShopRite by simply alleging "breach of contract" apparently against the Union on a Title VII form.
In any event, plaintiff seems to be claiming that the violation was that he did not get a hearing. The excerpt from the CBA does not require a hearing (only notice) and is not related to the reason for plaintiff's termination. Plaintiff has not succeeded in stating a viable cause of action against ShopRite. Judge Kahn's order was quite clear that plaintiff would only have one more chance to submit a viable complaint. Thus, in accordance with that order, plaintiff's motion to amend is denied, and plaintiff's action is dismissed with prejudice.
WHEREFORE, based on the findings above, it is
ORDERED, that plaintiff's "motion" to amend (Dkt. No. 48) is DENIED, and it is further
ORDERED, that in accordance with Judge Kahn's Order of July 24, 2013 order, this action is DISMISSED WITH PREJUDICE.