United States District Court, S.D. New York
OPINION & ORDER
PAUL A. ENGELMAYER, District Judge.
Pro se plaintiff Kyle Jiggetts ("Jiggetts") brings this action against AlliedBarton Security Services, LLC ("AlliedBarton") and the Service Employees International Union, Local 32BJ ("Local 32BJ"). Jiggetts was previously employed as a security guard for AlliedBarton. On June 30, 2010, he was laid off from that job. On or about August 15, 2010, Jiggetts learned that security guards with less seniority than he had, unlike him, been recalled by AlliedBarton. Jiggetts viewed this as violating the collective bargaining agreement ("CBA") between AlliedBarton and Jiggetts' union, Local 32BJ. On or about August 26, 2010, Jiggetts filed a grievance with Local 32BJ as to this alleged violation, but Local 32BJ decided not to use the CBA's arbitration remedy to pursue this claim on his behalf. In his Amended Complaint, Jiggetts brings two claims: that (1) AlliedBarton breached the CBA by recalling security guards with less seniority than he, and (2) Local 32BJ violated its duty of fair representation, under Section 301 of the Labor Management Relations Act, 29 U.S.C. § 159 (the "LMRA"), by refusing to arbitrate his grievance. Dkt. 28.
The defendants now each move to dismiss the Amended Complaint on the ground that Jiggetts' claims are barred by res judicata. For the reasons that follow, the motions are granted.
This is the fifth lawsuit that Jiggetts has filed based, at least in part, on his June 30, 2010 termination by AlliedBarton and the grievance he later filed with Local 32BJ.
On November 4, 2010, Jiggetts filed a complaint in New York State Supreme Court, New York County, against AlliedBarton, Local 32BJ, and the City of New York. See Jiggetts v. Local 32BJ, SEIU, et al., No. 10 Civ. 9082 (" Jiggetts I "), Dkt. 1. On December 3, 2010, the case was removed to federal court. Id. In his complaint, Jiggetts alleged, as he does here, that AlliedBarton breached the CBA with Local 32BJ by recalling guards with less seniority. Jiggetts also brought a claim under the LMRA, alleging that Local 32BJ had breached its duty of fair representation by not pursuing in arbitration his claim against AlliedBarton. On September 13, 2011, Judge Batts adopted a Report and Recommendation dismissing the complaint, as relevant here, on the grounds that (1) AlliedBarton did not breach the CBA by recalling employees with less seniority; and (2) Local 32BJ was not obliged to submit Jiggetts' meritless complaint for arbitration. Jiggetts I, No. 10 Civ. 9082 (DAB) (JCF), 2011 WL 4056312 (S.D.N.Y. Aug. 10, 2011) report and recommendation adopted, 2011 WL 4072033 (S.D.N.Y. Sept. 13, 2011). Judge Batts also adopted Judge Francis's recommendation that Jiggetts be enjoined from filing, in federal court, further claims against AlliedBarton arising out of the same facts. See 2011 WL 4072033, at *1 n.2. However, for reasons of comity, Judge Batts did not enjoin Jiggetts from further litigation in New York State court. Id.
On January 19, 2011, Jiggetts filed another complaint, in New York State Supreme Court, New York County, against AlliedBarton and DCAS. See Jiggetts v. New York City Dep't of Citywide Adminstrative Servs., et al., No. 11 Civ. 1245 (" Jiggetts II "), Dkt. 1. On February 23, 2011, the case was removed to federal court. Id. In his complaint, Jiggetts alleged that: (1) he was discriminated against based on his race and a perceived disability; (2) he was retaliated against based on his union activities, EEOC complaints, and prior suits; and (3) AlliedBarton breached its CBA with Local 32BJ. Id. On February 27, 2012, Judge Crotty adopted a Report and Recommendation dismissing the complaint on the grounds that: (1) the claims against AlliedBarton were barred by res judicata, as a result of Judge Batts' decision in Jiggetts I; and (2) Jiggetts had failed to state federal or state claims against DCAS. Jiggetts II, No. 11 Civ. 1245 (PAC) (FM), 2012 WL 231566 (S.D.N.Y. Jan. 6, 2012) report and recommendation adopted, 2012 WL 614310 (S.D.N.Y. Feb. 27, 2012). Like Judge Batts, Judge Maas (in his Report and Recommendation) and Judge Crotty declined to extend the injunction against filings from Jiggetts to cover New York State courts. Judge Maas noted, however, that, should Jiggetts elect to file anew in state court:
[T]he lengthy record in this forum will hopefully enable the state court to dismiss [Jiggetts'] claims without extended discussion. The proceedings to date should also enable the state court to grant AlliedBarton's request for an injunction against any further vexatious litigation in state court.
2012 WL 231566, at *11.
On June 21, 2011, Jiggetts filed another action in New York State Supreme Court, New York County, against Local 32BJ and AlliedBarton. See Jiggetts v. Local 32BJ, SEIU, et al., No. 11 Civ. 4667 (" Jiggetts III "), Dkt. 1. On July 6, 2011, the case was removed to federal court. Id. On August 2, 2011, Jiggetts amended his complaint, alleging, inter alia, that AlliedBarton violated the CBA by recalling security guards with less seniority. Id. Dkt. 9. On July 17, 2012, Judge Swain granted defendants' motion to dismiss for two reasons: (1) the same claims were raised in Jiggetts I, and thus barred by res judicata; and (2) even if Jiggetts now raised claims not raised in Jiggetts I, they still arose "out of the same operative facts, " and should have been raised in the earlier action. Jiggetts III, No. 11 Civ. 4667 (LTS), 2012 WL 2921857 (S.D.N.Y. July 17, 2012). On August 3, 2012, Jiggetts filed a notice of appeal. Jiggetts III, Dkt. 35. On November 20, 2012, the Second Circuit Court of Appeals dismissed the appeal because "it lack[ed] an arguable basis in law or fact." Id. Dkt. 39.
On September 8, 2011, the New York State Supreme Court, New York County, sua sponte dismissed Jiggetts' ex parte application to file another suit against DCAS. Cheverko Decl. Ex. H (" Jiggetts IV "). Justice Alice Schlesinger "decline[d] to allow Mr. Jiggetts to commence this proceeding, as it appear[ed] that he has already commenced several other cases in this Courthouse regarding the same or related issues." Id.
Finally, on June 21, 2013, Jiggetts filed, in New York State Supreme Court, New York County, the original Complaint in this case. Dkt. 1. On July 31, 2013, the case was removed to federal court. Id. On August 6, 2013, AlliedBarton and Local 32BJ filed motions to dismiss and accompanying memoranda of law. Dkt. 12-16. On October 8, 2013, Jiggetts filed an Amended Complaint. Dkt. 28. On October 16, 2013, Jiggetts filed an affirmation opposing the motions to dismiss. Dkt. 30. Between October 24 and October 28, 2013, AlliedBarton and Local 32BJ submitted letters to the Court, stating that they would rely on their earlier motions to dismiss. Dkt. 32-34. On November 13, 2013, Jiggetts requested more time to respond to defendants' motions to dismiss. Dkt. 36. On November 18, 2013, the Court gave Jiggetts until December 10, 2013 to submit his opposition. Dkt. 37. No opposition was filed. II. Applicable Legal Standards
The Court must accept all factual allegations in the Amended Complaint as true, and draw all reasonable inferences in favor of the nonmoving party. ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007); Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999). Further, pro se pleadings must be read liberally and should be interpreted "to raise the strongest arguments that they suggest." Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (citing Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996)).
To survive a motion to dismiss under Rule 12(b)(6), a Complaint must allege facts that, accepted as true, "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. "Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line ...