United States District Court, S.D. New York
MEMORANDUM DECISION AND ORDER
B. DANIELS, United States District Judge:
se plaintiff Gertrude Jean Pierre ("Plaintiff)
filed this action on July 7, 2016, against Chase Investment
Services, Corporation, now known as J.P. Morgan Securities
LLC, and its in-house counsel, Frederick Lieberman,
(collectively "Defendants"), alleging, inter
alia, employment discrimination, fraud, and violation of
various criminal statutes. (See Complaint,
("Compl.") ECF No. 1.)
this Court is Magistrate Judge Pitman's June 14, 2017
Report and Recommendation (the "Report, " ECF No.
32), recommending that Defendants' motion to dismiss be
granted. (Report at 30.) This Court adopts the Report in its
Court may accept, reject, or modify, in whole or in part, the
findings set forth in the Report. 28 U.S.C. §
636(b)(1)(C). When no party files objections to a Report, the
Court may adopt the Report if "there is no clear error
on the face of the record." Adee Motor Cars, LLC v.
Amato, 388 F.Supp.2d 250, 253 (S.D.N.Y. 2005) (quoting
Nelson v. Smith, 618 F.Supp. 1186, 1189 (S.D.N.Y.
1985)); Wilds v. United Parcel Service, Inc., 262
F.Supp.2d 163, 169 (S.D.N.Y. 2003) (To accept the report and
recommendation of a magistrate, to which no timely objection
has been made, a district court need only satisfy itself that
there is no clear error on the face of the record).
Judge Pitman advised the parties that failure to file timely
objections to the Report would constitute a waiver of those
objections on appeal. (Report at 31-32); see also 28
U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b). No objections
to the Report have been filed.
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to 'state a
claim to relief that is plausible on its face.' A claim
has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)).
se complaints are held to less stringent standards than
those drafted by lawyers, even following Twombly and
Iqbal." Thomas v. Westchester Cty., No.
12-CV-6718, 2013 WL 3357171, at *2 (S.D.N.Y. July 3, 2013);
see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir.
2009). While courts read pro se complaints "to
raise the strongest arguments that they suggest, "
Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006)
(internal citation and quotation marks omitted), pro
se plaintiffs "cannot withstand a motion to
dismiss unless their pleadings contain factual allegations
sufficient to raise a right to relief above the speculative
level." Jackson v. NYS Dep 't of Labor, 709
F.Supp.2d 218, 224 (S.D.N.Y. 2010) (internal quotation marks
omitted). "A court may dismiss a claim as 'factually
frivolous' if the sufficiently well-pleaded facts are
'clearly baseless'-that is, if they are
'fanciful, ' 'fantastic' or
'delusional.'" Gallop v. Cheney, 642
F.3d 364, 368 (2d Cir. 2011), quoting Denton v.
Hernandez, 504 U.S. 25, 32-33 (1992).
principle applies to pleadings submitted by pro se
litigants. See Rishar v. United Slates, 632
F.App'x 50, 51 (2d Cir. 2016).
is justified where "the complaint lacks an allegation
regarding an element necessary to obtain relief, " and
the "duty to liberally construe a plaintiffs complaint
[is not] the equivalent of a duty to re-write it."
Geldzahler v. N.Y. Med. Coll., 663 F.Supp.2d 379,
387 (S.D.N.Y. 2009) (internal citations and alterations
omitted); see also Sharma v. D'Silva, No.
14-CV-6146, 2016 WL 319863, at *3 (S.D.N.Y. Jan. 25, 2016).
PLAINTIFF'S CLAIMS FAIL
previously filed a complaint against J.P. Morgan for
employment discrimination on March 4, 2010, in the Southern
District of New York, in which Defendant Lieberman appeared
as counsel for J.P. Morgan. (Report at 3.) The Prior Action
was resolved by an oral settlement that was put on the record
in open court during a settlement conference. (Id.)
After the settlement conference, Plaintiff attempted to
change the terms of the settlement and J.P. Morgan moved to
enforce the settlement. (Id. at 4.) Judge Scheindlin
granted J.P. Morgan's motion and the Second Circuit
affirmed that decision. (Id. at 6.) Plaintiffs
Complaint in this action seeks to revive her employment
discrimination claims and alleges that the settlement was the
product of fraud and duress perpetrated by J.P. Morgan,
Lieberman, and Judges Cott and Scheindlin, among others.
(Compl. at 7.)
based on res judicata or collateral estoppel is appropriate
where it is clear from the face of the complaint and from
matters of which the Court takes judicial notice that
plaintiffs claims are barred." Bd. of Managers of
195 Hudson St. Condo v. Jeffrey M. Brown Associates,
Inc.,652 F.Supp.2d 463, 472 (S.D.N.Y. 2009). The Report
properly concluded that the doctrine of res judicata
bars Plaintiffs employment discrimination claims because
Plaintiff litigated and settled those claims in the Prior
Action. (Report at 20.) The Report also properly found that
Plaintiffs claim that the settlement should be set aside
because she was fraudulently induced to enter into the
settlement is barred by collateral estoppel because it was
fully and fairly litigated in the Prior Action. (Report at
22-23.) Finally, the Report properly found that Plaintiffs