United States District Court, N.D. New York
SHARON M. TORRES, Plaintiff,
CORTLAND ENT, P.C., Defendant.
DECISION & ORDER
J. McAVOY, Senior United States District Judge.
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).
Court decides the motion on the basis of the parties'
submissions without oral argument. For the reasons that
follow, the motion is granted.
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.
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.
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). 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. 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),  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); Berry v. Lee, 428
F.Supp.2d 546, (N.D. Tex. 2006). 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
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.