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Garnett-Bishop v. New York Community Bancorp, Inc.

United States District Court, E.D. New York

November 6, 2014

NATALIE GARNETT-BISHOP, et al., Plaintiffs,
v.
NEW YORK COMMUNITY BANCORP, INC., et. al, Defendants.

ANN WILLOUGHBY, ESQ., Williston Park, NY, Attorney for the Plaintiffs Natalie Garnett-Bishop, Kathleen Warshun, and Lynette Tiger.

PATRICK W. JOHNSON, ESQ., P.C., Brooklyn, NY, Attorney for the Plaintiffs Donna Cappello, Donna Berchiolli, Shannon Byrnes, Theresa Falco, Leslie Morency, Marie Alexander, Marie Alexander, Katia Page, Celeste McCormack, Audrey Zuckerman, Monica Ortega, Gelsomina Tierno, Jaqueline Ramos, Nansi Ghobrial, Mary Ellen Cassidy, Candice Petrancosta, Addolorata Quiles,

Andrew G. Sfouggatakis, Esq., Theodore Pavlounis, Esq., Of Counsel, THEODORE PAVLOUNIS, ESQ., P.C., Brooklyn, NY. Attorneys for the Plaintiffs Dee Cooper Jones, Claire Byrnes, Ilene Branfman, Geraldine Collins, Helen Arniotes, Gina Decrescenzo, Samantha Zielinski, Diann Titus,

Amy Ventry-Kagan Esq., Robert M. Wolff, Esq., James P. Smith, Esq., Of Counsel, LITTLER MENDELSON, P.C., Cleveland, Ohio, Attorneys for the Defendants.

MEMORANDUM OF DECISION AND ORDER

ARTHUR D. SPATT, District Judge.

Five separate actions were brought against the Defendants New York Community Bancorp, Inc., New York Community Bank Corp., Inc., and New York Community Bank ("NYCB") (collectively, the "Corporate Defendants"), as well as the Defendants Joseph Ficalora ("Ficalora"), Robert Wann ("Wann"), William Disalvatore ("Disalvatore") and Cynthia Flynn ("Flynn") (collectively, the "Individual Defendants.") These actions arose from NYCB's decision to reduce its workforce on October 13, 2011 by terminating approximately 265 employees. In this decision, all the Corporate Defendants and the Individual Defendants shall be referred to collectively as the "Defendants."

On January 8, 2014, the Court granted the Defendants' unopposed motion pursuant to Federal Rule of Civil Procedure ("Fed. R. Civ. P.") 42 to consolidate the five separate actions. The Court also directed the Plaintiffs in those five actions to file a consolidated complaint combining these claims and stated that the "[c]onsolidated [c]omplaint shall not assert new allegations against the Defendants." The cases were consolidated as one action under Case Number 12-CV-2285, which was the first of the five lawsuits to be filed, and the other four cases were closed. In addition, the Court dismissed without prejudice all pending motions with leave to renew after the Plaintiffs filed a Consolidated Complaint.

On February 7, 2014, thirty-one Plaintiffs, all of whom were employees of the Defendants whose employment was terminated, filed a consolidated complaint. The consolidated complaint alleges, among other matters, that their terminations were the result of employment discrimination based on age, race, national origin, gender and/or disability and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"); the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. (the "ADEA"); and the American With Disabilities Act, 42 U.S.C. § 12101, et seq. (the "ADA"). The Plaintiffs also assert a claim pursuant to the Worker Adjustment and Retraining Notification Act, 42 USC § 2101, et seq. (the "WARN Act") and its New York state equivalent, New York Labor Law § 860, et seq. (the "state WARN Act"). The Plaintiffs further assert state law causes of action against the Defendants for violation of the New York State Human Rights Law, N.Y. Exec. Law § 296 (the "NYSHRL"), intentional infliction of emotional distress, and negligent infliction of emotional distress.

Presently before the Court are two motions. First, the Defendants move to dismiss certain of the Plaintiffs' claims pursuant to Fed.R.Civ.P. 12(b)(5) and (6), including: (1) claims against the Individual Defendants; (2) the Title VII retaliation claims against the Corporate Defendants; (3) the intentional infliction of emotional distress and negligent infliction of emotional distress claims against the Corporate Defendants; (4) the Plaintiffs' NYSHRL claims against the Corporate Defendants; (5) and various federal and state law claims by some of the individual Plaintiffs against the Corporate Defendants. Second, the Defendants move to strike certain documents, which were appended to the Plaintiffs' opposition brief. For the reasons set forth below, the Court grants in part and denies in part the Defendants' partial motion to dismiss. The Court denies the Defendants' motion to strike certain documents.

I. BACKGROUND

A. Underlying Facts

At the outset, the Court notes that the organization of the consolidated complaint makes it somewhat difficult to understand the precise nature of many of the Plaintiffs' claims. The consolidated complaint consists of ninety-two pages of factual allegations organized into the following sections: (1) facts "common to all causes of action, " (2) facts common to the Plaintiff Natalie Garnett-Bishop's ("Garnett-Bishop") causes of action; (3) facts common to the Plaintiff Kathleen Warshun's ("Warshun") causes of action; (4) facts related to the Plaintiff Lynette Tiger's ("Tiger") causes of action; (5) facts relating to a group of seventeen plaintiffs; and (6) facts related to a group of eleven plaintiffs. Despite this somewhat haphazard organization, the Court draws the following facts from the Plaintiffs' consolidated complaint and construes them in a light most favorable to the Plaintiffs. The Defendants' opening brief does not address Garnett-Bishop's or Tiger's claims, and therefore, the Court does not address facts relevant to their causes of action at this time.

1. Facts Common to All Causes of Action

NYCB is a banking institution incorporated under the laws of the State of New York and governed by the federal banking laws of the United States (Consolidated Compl. at ¶ 8.). NYCB is a subsidiary of New York Community Bancorp, Inc. ("Bancorp"), also referred to as New York Community Bank Corp., Inc. ( Id. at ¶ 6.) NYCB has different commercial banking branches in New York State that, during all the relevant times, employed more than 1, 000 employees. ( Id. at ¶ 97). The Plaintiffs are a group of thirty-one females formerly employed by NYCB who are of varying ages and races. ( Id. at ¶ 95.)

To evaluate its employees' job performance, NYCB branch management allegedly used transactional surveys, which counted the number of transactions that each employee consummated while working at an NYCB branch, as well as performance ratings. ( Id. at ¶¶ 103-104, 108-110.) These evaluations, together with an employee's disciplinary history, were used by the NYCB's human resources department to make personnel decisions. ( Id. at ¶ 108.)

On October 13, 2011, NYCB terminated more than 400 employees. Following the termination, the Plaintiffs were told by NYCB management that their terminations were a result of poor past performance reviews. ( Id. at ¶ 102.)

Although the Plaintiffs' terminations were purportedly based on objective factors, the Plaintiffs allege that "members of management" were "instructed to lower the performance ratings of their staff which was primarily female." ( Id. at ¶ 104.) The Plaintiffs further allege that these efforts reflected an "intentional" and "deliberate" attempt to replace the Plaintiffs with "younger, less experienced individuals whose compensation would be significantly less than those employees who had been terminated." ( Id. at ¶ 107.)

Finally, the Plaintiffs allege that following their terminations, the Defendants "have offered and continue to offer current employees incentives to actively recruit new hires for various positions which were previously held by employees terminated on October 13, 2011." ( Id. at ¶ 111.)

2. Facts Related to Warshun's Causes of Action

Warshun was hired by Roslyn Saving Bank on September 13, 1995 where she remained employed until her termination on October 13, 2011. ( Id. ¶ 155.) Roslyn Savings Bank was acquired by Bancorp in 2003 and became a division of NYCB. ( Id. at ¶ 156.)

Warshun alleges that she was "unlawfully terminated due to her gender, age and disability." ( Id. ¶ 155.) In particular, Warshun alleges that "in or about 2007, " she "sustained an injury" during the course of her employment at NYCB. ( Id. at ¶¶ 158-159.) As a result of the injury, Warshun alleges that she had "spinal fusion surgery." (Id.) Following the surgery, she alleges that she "was restricted in her ability to climb stairs and lift objects." (Id.) She further alleges that in "2010, [Warshun] was, at her request, exclusively assigned to the drive-up banking facility located at 14 Conklin Street in Farmingdale, NY." ( Id. at ¶ 162.)

Warshun further alleges that she was fifty-three years old when terminated and received a letter from the Defendant Flynn "stating that the terminations were objectively based upon factors including recent disciplinary history, scores received in recent performance evaluations, branch audits and special skills." ( Id. at ¶ 178.). However, Warshun alleges that her "performance was never deemed to be poor or below acceptable levels." ( Id. at ¶ 163.)

3. Facts Related to the Cappello Plaintiffs

The Plaintiffs condense the allegations of seventeen of the Plaintiffs into one section of the consolidated complaint. These Plaintiffs include the Plaintiffs Donna Cappello ("Cappello"), Donna Berchiolli ("Berchiolli"), Shannon Byrnes ("Byrnes"), Theresa Falco ("Falco"), Leslie Morency ("Morency"), Marie Alexander ("Alexander"), Katia Page ("Page"), Celeste McCormack ("McCormack"), Audrey Zuckerman ("Zuckerman"), Monica Ortega ("Ortega"), Gelsomina Tierno ("Tierno"), Jaqueline Ramos ("Ramos"), Nansi Ghobrial ("Ghobrial"), Mary Ellen Cassidy ("Cassidy"), Candice Petrancosta ("Petrancosta"), Addolorata Quiles ("Quiles"), and Samantha Zielinski ("Zielinski") (collectively, the "Cappello Plaintiffs").

The Cappello Plaintiffs were all females employed by NYCB, whose employment was terminated on October 13, 2011. (See id. at ¶¶ 201-37.) The consolidated complaint makes clear the nature of some of the Cappello Plaintiffs' positions and corporate titles and omits this information with respect to others. In particular, of the Cappello Plaintiffs, the Plaintiffs Cappello, Berchiolli, Byrnes, Falco, and Quiles were employed at NYCB's Howard Beach branch prior to their terminations. Cappello was the Assistant Branch Manager at the Howard Beach branch from 2005 until her termination. ( Id. at ¶ 246.) However, the complaint does not make clear what roles or titles Berchiolli, Byrnes, Falco, or Quiles had while working at the Howard Beach branch. The consolidated complaint also does not make clear at what branch the remaining Cappello Plaintiffs worked at or what their titles were while employed by NYCB.

The Cappello Plaintiffs make certain collective allegations of discrimination, including that: (i) they "were paid less than their male counterparts with equal seniority;" (ii) they had "at least one warning in their file with [NYCB]" prior to their terminations, but they all disputed those warnings with their "superiors" or "[NYCB's] Human Resources Division"; and (iii) "there existed prior to the October 2011 layoffs a bias and prejudice against the female employees of the Howard Beach Branch." ( Id. at ¶¶ 242, 244-45, 257.)

In addition, the Cappello Plaintiffs make individual allegations of discrimination. For example, the Plaintiffs Berchiolli, Byrnes, Quiles, and Morency allege that while they were terminated, their "younger, male counterpart[s] retained [their] position[s] at the branch." ( Id. at ¶ 280-283.)

Similarly, Morency alleges, among other things, that she was terminated for "refusing to lower performance scores of deserving staff who were all female." ( Id. at ¶ 297.) Morency also alleges that she was told that she was ineligible for a promotion because she had been promoted in the previous year. ( Id. at ¶ 303.) According to Morency, this same policy was not applied to male employees at NYCB. ( Id. at ¶ 304.)

Finally, the consolidated complaint alleges that Said Salah, a male employee who was a member of management staff at the Howard Beach Branch, received a disciplinary warning, along with the Plaintiffs Cappello and Berchiolli, in connection with a March 2010 incident of "employee theft." ( Id. at ¶ 341.) However, unlike Cappello and Berchiolli, Said was not terminated; rather, he received a promotion to assistant branch manager prior to the Plaintiffs' termination on October 13, 2011. ( Id. at ¶ 352.)

4. Facts Related to the Cooper Jones Plaintiffs

The consolidated complaint also condenses the allegations of eleven Plaintiffs into one section. These Plaintiffs include: Dee Cooper Jones ("Cooper Jones"); (ii) Diann Titus ("Titus"); (iii) Claire Byrnes; (iv) Ilene Branfman ("Branfman"); Geraldine Collins ("Collins"); Hellen Arniotes ("Arniotes"); Gina Decrescenzo ("Decrescenzo"); Linda Smith ("Smith"); Ann Abbruzzese ("Abbruzzese"); Maryann Golinello ("Golinello"); and Jillian Triano ("Triano") (collectively, the "Cooper Jones Plaintiffs").

In addition to alleging their titles and when they were hired by NYCB, the Cooper Jones Plaintiffs allege facts that are largely derivative of the allegations common to all causes of action. Therefore, the Court does not recount them here.

II. DISCUSSION

A. As to Whether the Claims and Parties Omitted From the Consolidated Complaint Should be Dismissed

As an initial matter, the Defendants argue that several of the Plaintiffs and some of their claims are not properly before the Court as the Plaintiffs either failed to include them in their consolidated complaint or they were included in the consolidated complaint in violation of a previous court order. These claims include: (1) the Plaintiffs' Title VII retaliation claims against the Corporate Defendants; (2) the claims of the Plaintiffs Abbruzzese, Golinello, Smith, and Triano; (3) twenty-three new claims asserted in the consolidated complaint, which were not asserted in the Plaintiffs' original complaints prior to consolidation; (4) claims against the Individual Defendant Flynn; and (5) Diann Titus's claims. The Court agrees.

1. The Plaintiffs' Title VII Retaliation Claims Against the Corporate Defendants

The Plaintiffs' Sixth Cause of Action alleges that the "Defendants Joseph Ficalora, Robert Wann, William Disalvatore and Cynthia Flynn, by their course of conduct violated and continue to violate 42 U.S.C. Section 2000e et seq., by discriminatorily and systematically retaliating against plaintiffs in their termination and in their seeking new employment elsewhere." (Consolidated Compl. at ¶¶ 425-28.) The cause of action does not refer to or make any allegations regarding the Corporate Defendants.

In their memorandum of law, the Plaintiffs concede this "oversight" and asks the Court for leave to amend their consolidated complaint pursuant to Fed.R.Civ.P. 15. (The Pls.' Opp'n Memo of Law, at 16.) Fed.R.Civ.P. 15 provides that a party may "amend it pleading once as a matter of course within... 21 days after serving it." Where the 21 day period has passed, "a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." Id.

The Plaintiff did not previously seek leave of the Court to amend their consolidated complaint to add a claim against the Corporate Defendants for Title VII retaliation. Moreover, numerous courts have held that a "bare request to amend a pleading" contained in a brief, which does not also attach the proposed amended pleading, is improper under Fed.R.Civ.P. 15. See, e.g., Curry v. Campbell, No. 06-CV-2841 (DRH), 2012 WL 1004894, at *7 (E.D.N.Y. Mar. 23, 2012) ("To satisfy the requirement of particularly in a motion to amend a pleading, the proposed amended pleading must accompany the motion so that both the Court and opposing parties can understand the exact changes sought.") (quoting AT & T Corp. v. Am. Cash Card Corp., 184 F.R.D. 515, 521 (S.D.N.Y. 1999)); see also Evans v. Pearson Enterprises, Inc., 434 F.3d 839, 853 (6th Cir. 2006) ("We agree with several of our sister circuits that a bare request in an opposition to a motion to dismiss - without any indication of the particular grounds on which amendment is sought... - does not constitute a motion within the contemplation of Rule 15(a)") (quoting Confederate Mem'l Ass'n, Inc. v. Hines, 995 F.2d 295, 299 (D.C. Cir. 1993)).

Under these circumstances, courts generally hold the motion to dismiss in abeyance pending the filing of the proposed pleading or deny the motion to amend without prejudice. AT & T Corp. v. Am. Cash Card Corp., 184 F.R.D. 515, 521 (S.D.N.Y. 1999) ("Where the proposed amended [pleading] does not accompany the motion to amend, the Court may hold the motion in abeyance pending the filing of that proposed [pleading], or the Court may deny the motion without prejudice." (quoting Smith v. Planas, 151 F.R.D. 547, 550 (S.D.N.Y. 1993) (alteration in original).

However, the decision as to whether to grant leave to amend is within the sound discretion of the courts, and courts can deny leave to replead where the proposed amendment would be "futile." Herbert v. Delta Airlines, No. 12-CV-01250 (SLT), 2014 WL 4923100, at *5 (E.D.N.Y. Sept. 30, 2014). Here, the Court finds that any amendment would be futile because the Plaintiffs have failed to state a claim for retaliation upon which relief can be granted.

To state a claim for retaliation under Title VII or the NYSHRL, a plaintiff must allege facts that would tend to show that: "(1) she participated in a protected activity known to the defendant; (2) the defendant took an employment action disadvantaging her; and (3) there exists a causal connection between the protected activity and the adverse action." Id. (citing Patane v. Clark, 508 F.3d 106, 115 (2d Cir. 2007)) Protected activities include "oppos[ing] an act or practice of discrimination based upon race, color, religion, sex, national origin, age or disability" or "participat[ing] in any manner in an investigation, proceeding or hearing under [Title VII]." Id. (citing Troccoli v. Target Store No. 1108, No. 13-CV-00627 (SJF), 2013 WL 2023983, at *3 (E.D.N.Y. May 13, 2013)).

Most of the Plaintiffs fail to make any allegation that their terminations were the result of retaliation. See id. ("[The plaintiff's] amended complaint does not even suggest he engaged in a protected activity. [The plaintiff] therefore fails to state a claim for retaliation under Title VII.")

The Plaintiffs that do refer to retaliation in the consolidated complaint do so in a wholly conclusory fashion. For example, the Plaintiff Morency suggests that she was terminated because she "complain[ed] that Regional Management failed to recognize and/or acknowledge her efforts in branch performance while those of her male counterparts were acknowledged." (Consolidated Compl. at ¶¶ 298, 305.) Similarly, the Plaintiff Alexander alleges that she was terminated in retaliation for making "complaints to Human Resources questioning her salary which was not in line with younger, less experienced males." ( Id. at ¶ 306.) The Plaintiff McCormack also alleges that she was terminated for failing to discipline an employee who "had disability issues." ( Id. at 315.) Alexander, McCormack, and Morency do not provide any facts, such as who they complained to and when they made the alleged complaints, which could plausibly give rise to an inference that their terminations were a result of a retaliatory action by NYCB. Troccoli v. Target Store No. 1108, No. 13-CV-00627 (SJF), 2013 WL 2023983, at *3 (E.D.N.Y. May 13, 2013) ("There are no factual allegations in plaintiff's complaint from which it may be inferred... that a protected characteristic played any role, no less a substantial role, in the conduct of which plaintiff complains.")

Moreover, several of the Plaintiffs fail to plead facts that could plausibly suggest that they were engaging in a "protected activity." For example, the Plaintiff Alexander alleges that she was terminated in "retaliation for contacting a lawyer for unfair termination." (Consolidated Compl. at ¶ 308.) Similarly, the Plaintiffs Cappello and Zielinski allege that they were terminated for "disputing a disciplinary warning[s]" related to an employee theft. ( Id. at ¶¶ 338, 360.) Similarly, the Plaintiff Cassidy alleges that she was terminated in retaliation for complaining to human resources about certain Spanish speaking employees due to "absenteeism, " which led to accusations that she was "prejudiced." ( Id. at ¶ 319.) As these complaints refer to non-discriminatory actions, as opposed to practices made unlawful under the employment discrimination statutes, they do not plausibly suggest that these plaintiffs were engaging in "protected activities." See Troccoli, 2013 WL 2023983 at *3 ("Absent any allegation that plaintiff engaged in a protected activity, i.e., opposed any discriminatory act or practice made unlawful under the employment discrimination statutes, the complaint fails to state a claim for retaliation under any of the employment discrimination statutes.")

Since the Plaintiffs fail to state a claim for retaliation under any of the employment discrimination statutes, the Court finds that it would be "futile" to grant the Plaintiffs leave to file an amended complaint asserting claims against the Corporate Defendants. Accordingly, the Court denies the Plaintiffs' motion to amend its complaint to add Title VII retaliation claims against the Corporate Defendants. Therefore, the only remaining Title VII retaliation claims are those made against the Individual Defendants, which, as set forth below, fail as a matter of law.

2. The Claims of the Plaintiffs Abbruzzese, Golinello, Smith and Triano

The Defendants also argue that the Plaintiffs Abbruzzese, Golinello, Smith and Triano claims should be dismissed because the Plaintiffs have added them to their consolidated complaint in clear contravention of a court order and without properly seeking leave to amend.

Prior to the case being consolidated, on June 24, 2013, the Cooper Jones Plaintiffs in Case No. 13-CV-1161 (the "Cooper Jones Action") - without leave of Court - filed an Amended Complaint (Dkt. No. 22) attempting to add Plaintiffs Abbruzzese, Golinello, Smith and Triano. In response, on July 3, 2013, the Defendants filed a motion to strike the Cooper Jones Plaintiffs' amended complaint. (Dkt. No. 27). On August 16, 2013, the Plaintiffs Abbruzzese, Golinello, Smith and Triano filed a motion seeking leave of the court to amend their complaint to, among other things, add the Plaintiffs Abbruzzese, Golinello, Smith and Triano. (Dkt. No. 32).

On January 8, 2014, the Court closed the Cooper Jones action, granted the Defendants' motion to consolidate it under Case Number 12-CV-2285, and dismissed the Cooper Jones Plaintiffs' motion seeking leave to amend their Complaint without prejudice and with leave to renew after the Plaintiffs filed the consolidated complaint. (Dkt. No. 43.) The Plaintiffs did not renew their motion to amend the consolidated complaint to add the Plaintiffs Abbruzzese, Golinello, Smith and Triano. Instead, without leave of the Court, the Plaintiffs added Abbruzzese, Golinello, Smith and Triano to their consolidated complaint.

The Plaintiffs offer no counterargument in response to the Defendants' assertion that Abbruzzese, Golinello, Smith and Triano are not proper parties to the consolidated complaint. See e.g., Moccio v. Cornell Univ., No. 09 CIV. 3601 (GEL), 2009 WL 2176626, at *4 (S.D.N.Y. July 21, 2009) ("Whatever the merit of this argument, plaintiff has abandoned the false light' claim, as her motion papers fail to contest or otherwise respond to defendants' contention."); Thomas v. Atl. Express Corp., No. 07 CIV. 1978 (SCR), 2009 WL 856993, at *2 (S.D.N.Y. Mar. 31, 2009) (Dismissing a plaintiff's claims with prejudice where "[i]n his opposition, [the plaintiff] failed to respond to Atlantic's argument that his due process claim should be dismissed, and therefore that claim is deemed abandoned").

Even if the Plaintiffs had properly requested leave to amend the consolidated complaint to add Abbruzzese, Golinello, Smith and Triano, the Court denies their request as "futile." Herbert, 2014 WL 4923100, at *5 ("Nonetheless, courts may deny leave to replead where amendment qualifies as futile.") The only allegations in the complaint relating to Abbruzzese, Golinello, Smith and Triano are their dates of hire, ethnicities, race, and conclusory allegations that they were "wrongfully terminated by Defendant NYCB." These allegations, without more, do not state a claim for discrimination under any of the employment statutes under which the Plaintiffs make their claims. See infra Section II.E (2).

Accordingly, the Court dismisses the claims of the Plaintiffs Abbruzzese, Golinello, Smith and Triano with prejudice.

3. Twenty-three New Claims Added to the Plaintiffs' Consolidated Complaint Without Leave of the Court

In the Court's January 8, 2014 consolidation order, the Court ordered the Plaintiffs to file "a Consolidated Complaint incorporating the claims of the remaining twenty-six Plaintiffs. The Consolidated Complaint shall not assert new allegations against the Defendants." (Dkt. No. 43) (emphasis added). Despite the Court's order, the Plaintiffs filed, without leave of the Court, a consolidated complaint in which twenty three Plaintiffs assert claims that they did not assert in their original complaints.

These newly-asserted claims, include:

• the Cappello Plaintiffs' claims for (1) age discrimination under the ADEA; (2) Title VII gender discrimination; (3) Title VII race discrimination; and (4) disability discrimination under the ADA;
• the Plaintiffs Arniotis, Branfman, Claire Byrnes, Collins and Decrescenzo's claims for (1) Title VII race and national origin discrimination and (2) disability discrimination under the ADA; and
• the individual Plaintiff Cooper Jones's ADA discrimination claim.

The Plaintiffs concede that these claims were not asserted in their original complaints but maintain that the Court should grant leave to amend. To support this argument, the Plaintiffs do not cite to legal authority but rather state that the court should excuse their "errors" because "[i]n consolidating multiple lengthy complaints containing the aggregate claims of more than 30 individuals, spanning more than 90 pages, certain oversight is nearly unavoidable." (The Pls.' Memo of Law in Opp'n, at 20.)

To the extent the Plaintiffs requests the court for leave to amend their consolidated complaint, the Court denies the request for two reasons. First, as discussed above, a plaintiff cannot amend his complaint by making "a bare request in an opposition to dismiss." Confederate Mem'l Ass'n, Inc. v. Hines, 995 F.2d 295, 299 (D.C. Cir. 1993) ("We agree with several of our sister circuits that a bare request in an opposition to a motion to dismiss - without any indication of the particular grounds on which amendment is sought..., does not constitute a motion within the contemplation of Rule 15(a)."); see also Curry v. Campbell, No. 06-CV-2841 (DRH), 2012 WL 1004894, at *7 (E.D.N.Y. Mar. 23, 2012) ("To satisfy the requirement of [particularity] in a motion to amend a pleading, the proposed amended pleading must accompany the motion so that both the Court and opposing parties can understand the exact changes sought.").

Second, the Court's January 8, 2014 consolidation order clearly stated that the Plaintiffs'" [consolidated] [c]omplaint shall not assert new allegations against the Defendants." (emphasis added). Therefore, the Plaintiffs new claims are in direct contravention of that order. Accordingly, the Court dismisses with prejudice the Plaintiffs' newly-added claims. See Tasini v. AOL, Inc., 505 Fed App'x 45, 48 (2d Cir. 2012) ("In light of this deferential standard of review, and the fact that plaintiffs already had an opportunity to amend their original Complaint in response to a motion to dismiss, we cannot say that the District Court abused its discretion in dismissing the Amended Complaint with prejudice.").

4. Diann Titus's Claims

The Plaintiffs consolidated complaint lists Diann Titus as a Plaintiff. However, on January 15, 2014, Titus filed a stipulation of voluntary dismissal. (Dkt. No. 47). ...


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