United States District Court, W.D. New York
September 8, 2014
KELLY M. PATRICK, LINZY PATRICK, Plaintiffs,
STEVE GARLICK, Defendant.
DECISION AND ORDER
DAVID G. LARIMER, District Judge.
Plaintiffs, employees of Seneca Lake State Park (the "Park"), owned and operated by the New York State Office of Parks, Recreation and Historic Preservation ("OPRHP"), an arm of the State of New York, bring this action against Steve Garlick ("Garlick"), who was the Park's Branch Manager and the plaintiffs' supervisor, alleging claims for sexual harassment, hostile work environment and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§2000e et seq., and the New York Human Rights Law, N.Y. Exec. Law §§290 et seq.
Garlick now moves for dismissal of the action pursuant to Fed. R. Civ. Proc. 12(b)(6), on the grounds that he was never the plaintiffs' employer for purposes of Title VII or the NYHRL. (Dkt. #3). Plaintiffs oppose that motion, and have in the alternative cross-moved to amend the complaint to add OPRHP as a defendant. (Dkt. #7). The State of New York has also appeared in this action for the purpose of opposing the plaintiffs' cross motion to amend.
As the parties are aware, plaintiffs' cross motion to amend requests application of the relation back principles of Fed. R. Civ. Proc. 15(c)(1)(C), which provides:
An amendment to a pleading relates back to the date of the original pleading when: [...] (C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1) (B) [requiring that the claim arise out of the same conduct, transaction or occurrence described in the original pleading] is satisfied and if, within the [120 day] period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment:
(I) received such notice of the action that it will not be prejudiced in defending on the merits; and
(ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity.
Fed. R. Civ. Proc. 15(c)(1)(C) (emphasis added).
As such, the timing and extent of OPRHP's knowledge of this action is a critical component of the Rule 15 analysis. On August 25, 2014, the Court heard oral argument on both motions by counsel for plaintiffs and defendant. Richard Benitez ("Benitez"), Assistant Attorney General for the State of New York, also appeared on behalf of proposed additional defendant OPRHP. Although the Court asked Mr. Benitez three times precisely when OPRHP in particular (and/or the State in general) became aware of the instant lawsuit, counsel did not, or could not, provide an answer. At the same time, counsel for Garlick related that he had contacted the State concerning the case immediately after Garlick received notice of the matter - contact which he believed had been memorialized in an e-mail or telephone call - and counsel for the State did not contradict the statements of plaintiffs' counsel that OPRHP had been timely notified of the pendency of the action via the communications that Garlick's counsel described.
On September 3, 2014, the Court received a letter from Mr. Benitez, attached hereto as Exh. A, supplementing his arguments in opposition to plaintiffs' motion to amend and emphasizing for the first time that OPRHP unequivocally did not have "notice of the original complaint in this case within 120 days of its filing on July 15, 2013." (Exh. A at 2-3).
Given this latest representation, it appears that the issue of when OPRHP (and/or the State) became aware of this action is disputed, and as such, the Court requires additional information in order to resolve that factual question, before it can proceed to determine the legal question of whether the relation back doctrine applies here.
Accordingly, to the extent that any of the parties possesses, or has access to, personal knowledge or evidence in admissible form that would shed light on the issue of when OPRHP (and/or the State) became aware of this action (including but not limited to telephone records, e-mails, or billing records [redacted to remove privileged information] reflecting communications between defendant's counsel and OPRHP and/or the State), the Court requests that it be submitted forthwith in the form of an affidavit, which provides any relevant testimony and attaches any relevant documentary proof. (For purposes of ensuring the completeness of the record, if a party lacks any personal knowledge and/or evidence on the issue, the Court directs that party to file a very brief affidavit to that effect.) Such affidavits and documents will be considered as supplements to the parties' prior filings supporting or opposing the plaintiffs' cross motion to amend, and are to be filed within 20 days of entry of this Order.
IT IS SO ORDERED.
Dear Judge Larimer:
On Monday afternoon this Court held oral argument regarding defendant Garlick's motion to dismiss and plaintiffs Patrick and Patrick's motion to amend to include the New York State Office of Parks, Recreation and Historic Preservation ("OPRHP") as a party defendant. On behalf of the interested party, the New York State Office of Parks, Recreation and Historic Preservation ("OPRHP"), I respectfully submit this supplement to Your Honor's inquiry about the impact of a 2010 Supreme Court decision in Krupski, infra , on this case.
Specifically, the application of Krupski v. Costa Crociere S.p.A. , 560 U.S. 538, 130 S.Ct. 2485, 177 L.Ed.2d 48 (2010) to the plaintiffs' motion to amend requires denial of the motion because no qualified mistake of fact and law exists, and it is time barred. Here, the plaintiffs' not only knew the identity of the OPRHP, but fully understood OPRHP's relationship to them from the inception of their EEOC Charge of Discrimination (April 17, 2013: EEOC issued "Dismissal and Notice of Rights") and elected not to sue OPHRP in their complaint filed on July 15, 2013 based on colorable legal claims.
Factually, based on the underlying EEOC investigation, there simply cannot be a factual mistake regarding the identity of OPHRP, as it was the respondent in the administrative forum. Legally, no mistake exists regarding cognizable Title VII and New York State Human Rights Law claims against an individual supervisory defendant. See Barbezat v. Arnell Group, Ltd., No. 96 Civ. 9790, 1997 U.S. Dist. LEXIS 12253, 1997 WL 473484, *1 (S.D.N.Y. Aug. 19, 1997); Leykis v. NYP Holdings, Inc. , 899 F.Supp. 986, 991 (E.D.N.Y. 1995); cf. Lane v. Maryhaven Center of Hope , 944 F.Supp. 158, 163 (E.D.N.Y. 1996) (applying alter ego theory to Americans with Disabilities Act claim) (An individual may be held liable for a violation of Title VII based on a theory of alter ego). Also, there are no facts alleged by plaintiffs that they knew of OPRHP's existence, but nonetheless, harbored a misunderstanding about OPRHP's status or role in the events giving rise to their claims and mistakenly chose to sue a different defendant, Garlick, based upon that misunderstanding, as was included as an example of "mistaken identity" in Krupski. Id . at 2497-98.
The plaintiffs' did not make a mistake in naming Garlick, but not OPRHP, as a defendant in this case. The Supreme Court made clear that: "[M]aking a deliberate choice to sue one party instead of another while fully understanding the factual and legal differences between the two parties is the antithesis of making a mistake concerning the proper party's identity." Krupski, supra at 2494. The Court further noted, "When the original complaint and the plaintiff's conduct compel the conclusion that the failure to name the prospective defendant in the original complaint was the result of a fully informed decision as opposed to a mistake concerning the proper defendant's identity, the requirements of Rule 15(c)(1)(C)(ii) are not met." Krupski, supra at 2496.
The factors considered by the Supreme Court in Krupski are distinguishable from this case. First, the Court noted the similarity in the parties' names-that is Costa Cruise and Costa Crociere's names constituted an "interrelationship and similarity" that should have heightened Costa Crociere's suspicion of a mistake when Krupski named Costa Cruise in a complaint describing Costa Crociere's activities. Second, Costa Crociere contributed to the confusion over the proper party for a lawsuit: the ticket advertised that "Costa Cruises" had achieved a quality certification but did not clarify whether "Costa Cruises" was Costa Cruise Lines, Costa Crociere, or another related Costa company. Finally, prior litigation had made Costa Crociere aware that the difference between Costa Cruise and Costa Crociere confused passengers. Id . at 2498. These facts weighed heavily in the Court's decision to apply the relation back doctrine and do not exist in the present case.
The plaintiffs also fail to meet the timeliness requirement of Rule 15(c)(1)(C) that the new party "knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity" within 120 days of serving the summons and complaint. This factor requires proof that the defendant was aware that it would have been named a party but for a mistake and that a qualifying mistake was made. Krupski, supra at 2493-94. Specifically, the plaintiffs must show that (1) OPRHP had notice of the original complaint within 120 days of its filing; (2) OPRHP had notice that it would be named as a defendant within that same time period, but for a mistake; and (3) the plaintiffs made a qualifying mistake when they consciously chose to sue Garlick but not OPRHP, in the original complaint. Here, the plaintiffs fail to satisfy any one of these requirements as a matter of fact and law. The EEOC dismissed the plaintiffs' Charge of Discrimination against N.Y.S. OPRHP on April 17, 2013 and plaintiffs neither allege, nor did OPRHP have notice of the original complaint within 120 days of its filing on July 15, 2013.
Thank you for your consideration.