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Whitehurst v. 230 Fifth, Inc.

United States District Court, S.D. New York

February 21, 2014

CHRISTINA WHITEHURST, et al., Plaintiffs,
230 FIFTH, INC., et al., Defendants

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For Rainell Owens, Plaintiff, Counter Defendant: John J. Nonnenmacher, Bader, Yakaitis & Nonnenmacher, LLP, New York, NY.

For 230 Fifth, Inc., Defendant: Carolyn Diane Richmond, LEAD ATTORNEY, Glenn Sklaire Grindlinger, Fox Rothschild, LLP (NYC), New York, NY; James M. Lemonedes, LEAD ATTORNEY, Ernest Edward Badway, Fox Rothschild, Attorneys at Law (NYC), New York, NY.

For John Does 1-5, Defendant: James M. Lemonedes, LEAD ATTORNEY, Fox Rothschild, Attorneys at Law (NYC), New York, NY.

For 230 Fifth, Inc., Counter Claimant, Counter Defendant: Carolyn Diane Richmond, LEAD ATTORNEY, Glenn Sklaire Grindlinger, Fox Rothschild, LLP (NYC), New York, NY; Ernest Edward Badway, Fox Rothschild, Attorneys at Law (NYC), New York, NY.

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KATHERINE POLK FAILLA, United States District Judge.

This case involves allegations by 13 plaintiffs (" Plaintiffs" ), all African-American persons,[1] that Defendant 230FA LLC, doing business as 230 Fifth Avenue, pled herein as 230 Fifth, Inc. (" 230 Fifth" ), accompanied by certain unidentified individual employees thereof (collectively " Defendants" ), discriminated against them on the basis of their race in violation of federal, state, and city law, and further committed state-law breach of contract. Defendants have pled counterclaims against Plaintiffs, alleging tortious interference with prospective economic advantage and tortious interference with contract. Pending before the Court are competing motions for summary judgment. Defendants move for summary judgment as to all of Plaintiffs' claims for relief, including as to two particular plaintiffs on the grounds of judicial estoppel. Plaintiffs move for summary judgment as to all of Defendants' counterclaims. For the reasons set forth in the remainder of this Opinion, Defendants' motion is denied in part as to Plaintiffs' discrimination claims, granted in part as to Plaintiffs' breach of contract claims, denied as to the claims of Plaintiff Cletus Hyacinth, and granted as to the claims of Rainell Owens. Plaintiffs' cross-motion for summary judgment is denied in part as to Defendants' tortious interference with prospective economic advantage counterclaim and granted in part as to Defendants' tortious interference with contract counterclaim.

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A. The Events of October 10, 2009

This litigation arises from events taking place on October 10, 2009, when Plaintiff Rainell Owens held a birthday party at 230 Fifth. (Def. 56.1(a) ¶ 38; Pl. 56.1(b) ¶ 38). 230 Fifth is a rooftop lounge at the top of an office building in Manhattan. (Def. 56.1(a) ¶ 1; Pl. 56.1(b) ¶ 1).

The events leading up to October 10 are in dispute. Owens avers that she reached 230 Fifth on the telephone two weeks before the night in question and spoke to an employee of 230 Fifth, known only as " Ruby," to make a reservation for her party. (Pl. 56.1(b) ¶ 53; Owens Dep. 61:20-23, 62:17-24). Owens maintains she made a reservation for 25 people. (Owens Dep. 68:15-18). During this conversation, as Owens recounts it, she confirmed that there would be no cover charge for a party for whom a reservation had been made ( id. at 66:7-12); that the party attendees would be able to pay cash at the bar ( id. at 71:2-5); and that her guests could bring cupcakes, though not a cake, into the venue for the event ( id. at 71:25-72:9).

Defendants, though not rebutting the specifics of Owens' account, provide undisputed evidence regarding 230 Fifth's general practice when making a reservation for a group.[3] Individuals making such a reservation are directed to an event coordinator, who would recommend that the host either arrange an open bar or purchase bottle service with one bottle for every six invited guests. (Def. 56.1(a) ¶ ¶ 25-31). Bottle service charges run between $250 and $500 per bottle. ( Id. at ¶ 30). 230 Fifth's practice also requires the event coordinator to enter the details of the reservation into a computerized spreadsheet guest list, e-mail the host a confirmation, and provide the host with a credit card authorization form to fill out and return. ( Id. at ¶ ¶ 32-36). No record of Owens' reservation exists, and Owens never filled out a credit card authorization form; indeed, Owens claims that she was never told any of the information customary in 230 Fifth's reservation practice. (Owens Dep. 62:17-91:22).

The events of October 10 at 230 Fifth are, unsurprisingly, disputed, though the balance of Defendants' Statement of Undisputed Facts goes unrebutted by Plaintiffs.

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It is undisputed that certain Plaintiffs arrived at 230 Fifth before Owens and ordered drinks, mingling with the crowd. (Def. 56.1(a) ¶ ¶ 42-43; Pl. 56.1(b) ¶ ¶ 42-43). Owens arrived shortly before 8:00 p.m. and was admitted to 230 Fifth accompanied by a group of Plaintiffs. (Def. 56.1(a) ¶ ¶ 48-50; Pl. 56.1(b) ¶ ¶ 48-50). Owens approached the hostess and inquired about her reservation, to which the hostess responded that no such reservation was recorded. (Def. 56.1(a) ¶ ¶ 52-55; Pl. 56.1(b) ¶ ¶ 52-55).[4] Owens claims that she then called the Ruby with whom she alleges she made her reservation. (Def. 56.1(a) ¶ 56); Pl. 56.1(b) ¶ 56). Defendants insist there was no employee of 230 Fifth named Ruby (Def. 56.1(a) ¶ 57), a fact Plaintiffs controvert by relying on Owens' testimony regarding her conversation with an individual identifying herself as Ruby, and the existence of a 230 Fifth employee named " Yuttie." (Pl. 56.1(b) ¶ 57).[5]

After a delay of several minutes, Plaintiffs were then seated at a table in the front of the lounge area at 230 Fifth. (Def. 56.1(a) ¶ ¶ 59-61; Pl. 56.1(b) ¶ ¶ 59-61).[6] Plaintiffs were then informed that they would have to purchase bottle service to remain in the area where they were seated. (Def. 56.1(a) ¶ 62; Pl. 56.1(b) ¶ 62).[7] Owens purchased four bottles at $250 each, while several other Plaintiffs purchased drinks and food directly. (Def. 56.1(a) ¶ ¶ 64-65; Pl. 56.1(b) ¶ ¶ 64-65).

Defendants claim, and Plaintiffs contest, that some Plaintiffs were blocking or obstructing a passageway adjacent to their table. (Def. 56.1(a) ¶ 66; Pl. 56.1(b) ¶ 66). It is undisputed that 230 Fifth received complaints from patrons and employees regarding difficulty passing Plaintiffs' table. (Def. 56.1(a) ¶ 67; Pl. 56.1(b) ¶ 67).[8] A staff member asked the group to sit down. (Def. 56.1(a) ¶ 68; Pl. 56.1(b) ¶ 68). One of Owens' guests was stopped at the door while bringing baked goods into 230 Fifth, but was eventually admitted. (Def. 56.1(a) ¶ ¶ 69-70; Pl. 56.1(b) ¶ ¶ 69-70). The presence of these baked goods proved highly controversial, as 230 Fifth grew concerned the baked goods would damage the couch on which certain Plaintiffs were seated. (Owens Dep. 164:22-171:18).

After receiving more complaints from other patrons regarding Plaintiffs, a 230 Fifth manager instructed Plaintiffs to leave the lounge, though the conduct and content of this interaction -- and its legal significance -- are hotly disputed between the parties. (Def. 56.1(a) ¶ 73; Pl. 56.1(b) ¶ 73). Shortly thereafter, the group left 230 Fifth; Owens was not charged for the bottle service she ordered. (Def. 56.1(a) ¶ ¶ 74-75; Pl. 56.1(b) ¶ ¶ 74-75).

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Defendants contend that after Plaintiffs left the club, certain members of their party remained outside on the sidewalk. (Answer ¶ 185). It is undisputed that a line of people stood waiting to enter 230 Fifth. (Def. 56.1(b) ¶ 5).[9] There, Defendants allege, a " minimum [of] three or five" members of Plaintiffs' party (Rozenberg Dep. 49:2-3) blocked the entrance to the lounge by standing in the small area in front of the door ( id. at 46:24-49:9) for more than five or ten minutes ( id. at 50:10-21). Another group of Plaintiffs, Defendants insists, told people in line not to enter 230 Fifth ( id. at 51:21-52:5, 70:8-13), singling out African-American individuals in the line and urging them not to give 230 Fifth their business ( id. at 52:6-12). Salmon Rozenberg, a 230 Fifth employee, testified that he saw " several groups" ( id. at 80:21) of people step out of line during this alleged incident, though he could not state " the exact number," nor whether " any of those people" came back later ( id. at 80:23-81:4).

B. Procedural History

On January 13, 2011, Plaintiffs notified Defendants, in accordance with New York Civil Rights Law § § 40-41, that they intended to file a complaint alleging discriminatory treatment; they included with that notice copies of a summons and a verified complaint. (Dkt. #1 ¶ ¶ 1-2). Defendants timely removed the action to this Court on February 3, 2011. (Dkt. #1). The Complaint alleged violations of federal civil rights law, specifically, 42 U.S.C. § § 1981, 1983, 1985, 1986, 1988, and 2000a; as well as the New York State Human Rights Law, N.Y. Exec. Law § § 290 to 297 (" NYSHRL" ); the New York Civil Rights Law, N.Y. Civ. Rights Law § § 1 to 91 (" NYCRL" ); the New York City Human Rights Law, N.Y. City Admin. Code § § 8-101 to 8-131 (" NYCHRL" ), and common-law breach of contract. (Dkt. #1, Ex. A ¶ ¶ 72-115).

On March 11, 2011, Defendants moved to dismiss all claims in the Complaint except for Plaintiffs' breach of contract claim (Dkt. #6-8), and simultaneously entered counterclaims against Plaintiffs for tortious interference with prospective economic advantage and tortious interference with contract (Dkt. #10 ¶ ¶ 69-84). Plaintiffs did not timely respond to Defendants' counterclaims against them, and accordingly Defendants moved for default judgment as to their counterclaims on April 14, 2011. (Dkt. #14-16). Plaintiffs opposed Defendants' motion to dismiss on April 18, 2011 (Dkt. #18), and Defendants made a reply in further support of their motion to dismiss on April 25, 2011 (Dkt. #9). Plaintiffs then opposed Defendants' motion for default judgment on April 27, 2011 (Dkt. #20), and Defendants replied in further support of that motion on May 4, 2011 (Dkt. #22). By Opinion and Order of July 26, 2011, the Court granted in part and denied in part Defendants' motion to dismiss, dismissing Plaintiff's claims for relief pursuant to 42 U.S.C. § § 1983, 1985, 1986, 1988, 2000a, and a duplicative claim under § 1981, but permitting Plaintiffs' claims under § 1981 and the NYSHRL, the NYCRL, and the NYCHRL. (Dkt. #23).[10]

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On August 9, 2011, Defendants answered the Complaint, once again making counterclaims against Plaintiffs. (Dkt. #24). Plaintiffs did not respond to these counterclaims and Defendants obtained a certificate of default from the Clerk of Court and moved for default judgment on the counterclaims on September 12, 2011. (Dkt. #27-29). Plaintiffs then answered the counterclaims on September 19, 2011. (Dkt. #32). By memorandum endorsement on September 26, 2011, the Court vacated the Clerk's certificate of default and terminated Defendants' motion for default judgment. (Dkt. #33).

On February 28, 2013, the parties entered a stipulation of partial dismissal with respect to two Plaintiffs in the original action, Dina Gardner and Takita Mason, dismissing both their claims against Defendants and Defendants' counterclaims against them. (Dkt. #40).

Defendants requested leave to file a motion for summary judgment with respect to all Plaintiffs' surviving claims by letter dated August 1, 2013. (Dkt. #47). Plaintiffs requested leave to file a cross-motion for summary judgment with respect to Defendants' counterclaims by letter dated August 5, 2013. (Dkt. #51). The Court held a pre-motion conference on August 8, 2013, and Defendants filed their motion for summary judgment, with a memorandum of law, an attorney declaration, and a Local Rule 56.1 statement in its support, on September 11, 2013. (Dkt. #52-55). Plaintiffs made their own motion for summary judgment against Defendants' counterclaims, accompanied by a memorandum of law, attorney declaration, and Local Rule 56.1 statement, on September 20, 2011. (Dkt. #60-63). Defendants opposed Plaintiffs' motion for summary judgment on October 15, 2011. (Dkt. #64-66). Plaintiffs opposed Defendants' motion for summary judgment on October 16, 2011. (Dkt. #67-68). Defendants made a reply in further support of their motion for summary judgment on November 15, 2013. (Dkt. #74).


A. Applicable Law

1. Summary Judgment Generally

Under Fed.R.Civ.P. 56(a), summary judgment may be granted only if all the submissions taken together " show[] that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party bears the initial burden of demonstrating " the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. A fact is " material" if it " might affect the outcome of the suit under the governing law," and is genuinely in dispute " if the evidence is such that a reasonable [factfinder] could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248; see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005) (citing Anderson, 477 U.S. at 248). The movant may discharge this burden by showing that the nonmoving party has " fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322; see also Selevan v. N.Y. Thruway

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Auth., 711 F.3d 253, 256 (2d Cir. 2013) (finding summary judgment appropriate where the non-moving party fails to " come forth with evidence sufficient to permit a reasonable juror to return a verdict in his or her favor on an essential element of a claim" (internal quotation marks omitted)).

If the moving party meets this burden, the nonmoving party must " set out specific facts showing a genuine issue for trial" using affidavits or otherwise, and cannot rely on the " mere allegations or denials" contained in the pleadings. Anderson, 477 U.S. at 248, 250; see also Celotex, 477 U.S. at 323-24; Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). The nonmoving party " must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (internal quotation marks omitted), and cannot rely on " mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment," Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986) (quoting Quarles v. General Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985)). Furthermore, " [m]ere conclusory allegations or denials cannot by themselves create a genuine issue of material fact where none would otherwise exist." Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (quoting Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995) (internal quotation marks and citations omitted)).

2. Discrimination Claims

" To establish a claim under § 1981, a plaintiff must allege facts to support the following elements: [i] the plaintiff is a member of a racial minority; [ii] defendant intended to discriminate against plaintiff on the basis of race; and [iii] the discrimination concerned one or more of the activities enumerated in the statute...." Harris v. Allstate Ins. Co., 83 F.Supp.2d 423, 431 (S.D.N.Y. 2000) (citing Weiss v. La Suisse, 69 F.Supp.2d 449, 460 (S.D.N.Y. 1999)). The same analysis applies to Plaintiffs' pendent state-law claims. Id. at 431 n.3 (" Because New York courts require the same standard of proof for discrimination claims brought pursuant to state law as that required for federal discrimination claims, we will analyze these claims in tandem." (citing Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d Cir. 1998); Farrell v. Child Welfare Admin., 77 F.Supp.2d 329, 332 (E.D.N.Y. 1999); Rivera v. Hertz Corp., 990 F.Supp. 234, 236 (S.D.N.Y. 1997))).

" A plaintiff's efforts to establish the second element of a § 1981 claim are subject to the same burden-shifting analysis as intentional discrimination claims brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq ." Broich v. Inc. Vill. of Southampton, 462 F.Appx. 39, 42 (2d Cir. 2012) (summary order) (citing Gant ex rel. Gant v. Wallingford Bd. of Educ., 195 F.3d 134, 146 (2d Cir. 1999)), cert. denied, 133 S.Ct. 527, 184 L.Ed.2d 339 (2012). " A plaintiff can prove intentional discrimination through either direct or circumstantial evidence." Bary v. Delta Airlines, Inc., No. 02 Civ. 5202 (DGT), 2009 WL 3260499, at *8 (E.D.N.Y. Oct. 9, 2009).

" In general, an inference of discrimination may be drawn from various circumstances, including direct evidence of 'the [defendant's] criticism of the plaintiff[] ... in ethnically degrading terms; or its invidious comments about others in the [plaintiff's] protected group.'" Anyanwu v. City of New York, No. 10 Civ. 8498 (AJN) (THK), 2013 WL 5193990, at *10 (quoting Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994)). The Second

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Circuit has observed that direct " smoking-gun evidence" of discrimination is often lacking. Id. at *10 n.4. " A victim of discrimination is ... seldom able to prove his or her claim by direct evidence and is usually constrained to rely on the cumulative weight of circumstantial evidence." Id. at *10 (quoting Rosen v. Thornburgh, 928 F.2d 528, 533 (2d Cir. 1991) (alteration in original)).

When relying on indirect evidence, plaintiffs' claims of discrimination are assessed under the framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, ...

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