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Torres v. Cortland ENT, P.C.

United States District Court, N.D. New York

June 16, 2017

SHARON M. TORRES, Plaintiff,
v.
CORTLAND ENT, P.C., Defendant.

          DECISION & ORDER

          THOMAS J. McAVOY, Senior United States District Judge.

         I. INTRODUCTION

         Plaintiff Sharon M. Torres alleges race and national origin employment discrimination in violation of Title VII, 42 U.S.C. § 2000e, et seq. (“Title VII”). See Third Am. Compl. Dkt. # 32. Defendant Cortland ENT, P.C. moves pursuant to Rule 12(b)(6) to dismiss the Third Amended Complaint. Dkt. # 33. Plaintiff opposes the motion, Dkt. # 34, but fails to file a memorandum of law as required by N.D.N.Y. L.R. 7.1(a)(1).

         The Court decides the motion on the basis of the parties' submissions without oral argument. For the reasons that follow, the motion is granted.

         II. BACKGROUND

         This is the fourth Rule 12(b)(6) motion brought in this case. The operative pleading on the instant motion is the Third Amended Complaint [dkt. # 32], which was filed following the Court's February 7, 2017 Decision and Order. Dkt. #31. That decision dismissed the Second Amended Complaint but granted leave to replead. Id. The basis for dismissal was Plaintiff's repeated failure to allege that Defendant had a sufficient number of employees to be deemed an employer under 42 U.S.C. § 2000e(b). Id.

         As addressed below, the Third Amended Complaint suffers from the same deficiency as existed in the Second Amended Complaint and the proposed Third Amended Complaint (both of which were addressed in the February 7, 2017 Decision and Order). Plaintiff's failure to rectify the employee numerosity pleading requirement despite several admonitions impacts the Court's decision whether to grant leave to amend a fourth time. The relevant portions of the February 7, 2017 Decision and Order are set forth here to provide context to the Court's present decision:

In the June 1, 2016 Decision and Order, the Court addressed Defendant's argument regarding the Amended Complaint's lack of allegations concerning Defendant's number of employees. The Court wrote:
Defendant's argument that the Amended Complaint should be dismissed because Plaintiff has failed to plead that Cortland has a sufficient number of employees to qualify as an employer under 42 U.S.C. § 2000e(b) will not be addressed here. This is because the argument is raised for the first time in a reply memorandum of law, and because the issue is rendered moot by the dismissal of the Amended Complaint. Nonetheless, if Plaintiff elects to replead any of the Title VII claims, she must do so in accordance with the dictates of Fed.R.Civ.P. 11(b). This would necessarily require a good faith pleading that Cortland ENT, P. C. had, at relevant times, sufficient employees to satisfy 42 U.S.C. § 2000e(b).
Dkt. # 26, pp. 15-16 (footnote omitted).
Despite this clear admonition, the Second Amended Complaint contains no allegation relative to whether Cortland has a sufficient number of employees to qualify as an employer under 42 U.S.C. § 2000e(b).[1] Plaintiff acknowledges that “[t]he Second Amended Complaint did not contain a paragraph stating that Defendant is subject to a Title VII action based upon employing ‘15 or more employees for each working day in each of twenty or more weeks in the current or preceding year…, '” but contends that the oversight “was caused by Plaintiff's attorney electronically filing the wrong paperwork with the Court.” Pl. Mem. L., p. 3; see also Williams Decl., ¶ 14.[2] In order to rectify this deficiency, Plaintiff asks the Court to grant her leave to file a Third Amended Complaint which she attaches as an exhibit to her attorney's declaration. See Williams Decl. Ex. 3. This proposed amended pleading alleges at paragraph 4: “Upon information, belief and conversations with Plaintiff, Defendant is an employer within the meaning of Title VII, 42 U.S.C. §2000e(b).” There are no other allegations regarding the number of defendant's employees “for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, ” as required by 42 U.S.C. § 2000e(b).
“The threshold number of employees for application of Title VII is an element of a plaintiff's claim for relief, not a jurisdictional issue.” Arbaugh v. Y & H Corp., 546 U.S. 500, 516 (2006). Some courts have held that in the absence of allegations that defendant employed fifteen or more employees, “it cannot be said that Plaintiff has pleaded sufficient facts to state a facially plausible claim to relief under Title VII, ” Eyeghe v. Thierry, 2014 U.S. Dist. LEXIS 147071 *2-3 (S.D.N.Y. 2014) (citing Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 570); see also Quitoriano v. Raff & Bocker, LLP, 675 F.Supp.2d 444 (SDNY 2009), [3] while others have held that the issue is more appropriately addressed on summary judgment. See Powers v. Avondale Baptist Church, 2007 WL 2310782, at *2-3 (M.D.Fla. Aug. 9, 2007);[4] Berry v. Lee, 428 F.Supp.2d 546, (N.D. Tex. 2006).[5] Inasmuch as leave to amend is freely given under Rule 15, and despite that Plaintiff has already been given two opportunities to replead her deficient complaints, the Court will grant leave to amend a third time.
However, two reasons compel against the Court accepting for filing the proposed Third Amended Complaint. First, merely attaching a proposed pleading to an attorney declaration without first receiving leave from the Court or filing a formal motion to amend violates both the Local Rules and the Federal Rules of Civil Procedure. Second, the proposed Third Amended Complaint merely alleges that “[u]pon information, belief and conversations with Plaintiff, Defendant is an employer within the meaning of Title VII, 42 U.S.C. §2000e(b).” This is not a factual allegation, but rather a legal conclusion “masquerading as [a] factual conclusion[].” Luna, 11 F.Supp.3d at 401. Simply stated, Plaintiff fails to plead sufficient facts in the proposed Third Amended Complaint to state a facially plausible claim under Title VII.
Both the Second Amended Complaint and the proposed Third Amended Complaint fall short of the pleading requirement that Defendant employs a sufficient number of employees to qualify as an employer within the meaning of Title VII, 42 U.S.C. ยง2000e(b). ...

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