United States District Court, S.D. New York
OPINION AND ORDER
ABRAMS, United States District Judge.
action, Gregory Decastro, proceeding pro se, sued
Norrell Corporation, asserting that the company discriminated
against him on the basis of his disability and race.
See Dkt. 2 at 3. When Norrell failed to appear,
Decastro moved for default judgment against it. See
Dkt. 25. The Court denied Plaintiffs motion for default
because he had failed to "establish the defendant's
liability as a matter of law." City of New York v.
Mickalis Pawn Shop, LLC, 645 F.3d 114, 137 (2d Cir.
2011) (citation and alterations omitted). Decastro now moves
to amend his complaint. See Dkt. 30. For the reasons
below, that motion is denied without prejudice.
original complaint, Plaintiff alleged that Norrell had
unlawfully failed to hire him and to accommodate his
disability. Decastro alleged that he suffered from several
injuries to his legs, knees, back, and neck that limited his
employability. He further alleged that Norrell had hired him
on a temporary basis but, after he participated in a class
action settlement against the company, Norrell
"refuse[d] to make any attempt to place" him. Dkt.
2 at 3. According to Decastro, this refusal "made
matters worse medically speaking." Id. Decastro
also checked a box indicating that he believed Norrell had
discriminated against him on the basis of his race, but
provided no details in support of that claim.
failed to respond to the complaint, and Decastro moved for a
default judgment. The Court denied Decastro's request for
a default because he had not established Norrell's
liability as a matter of law. The Court allowed Decastro,
however, to file a motion for leave to amend his complaint.
He now moves for leave to amend, seeking primarily to name
and serve the correct defendant. According to Decastro,
Norrell-which was a Georgia corporation-has merged with a
different company and is now a Florida corporation under a
Decastro's motion for leave to amend, he alleges the
following facts: his various injuries were caused by vehicle
accidents in 2001 and 2010; those injuries were documented
through MRIs and impact his abilities to walk, stand, and
lift; in the time since he became injured, he has received
social security payments for his disability; and he has
"continued to seek employment with no success, "
including employment from Norrell. See Dkt. 31 at 6.
Decastro also attached an eight-paragraph "printed fact
sheet on circumstances of [his] case." See Dkt.
30, 31 at 15-16. In it, he alleges that Norrell failed to
hire him "in retaliation for his participation in the
class action settlement, " and he asserts that he made
"efforts to be hired for temporary work by Norrell Corp.
. . . after he had become disabled." Dkt. 31 at 15-16.
At some point, Norrell purportedly told Decastro that he was
not placed because "there was no suitable work
available." Id. at 15. According to Decastro,
that statement "was a pretext" because
"Norrell Corp. had available placements for which he was
qualified but the company did not even consider placing him
in retaliation for his efforts to participate in the class
action settlement." Id.
further asserts that, "[e]ven though [he] was disabled
but otherwise qualified to work as a temporary paralegal,
Norrell Corp. failed to even consider placing him, " and
"Norrell Corp[.] knew plaintiff was disabled because in
2015 Defendant was contacted by the EEOC after Plaintiff
filed a complaint." Id. at 16. Finally,
Decastro alleges that he "believes that Norrell Corp[.]
does not want to be bothered with him" and that Norrell
"did not want to give Plaintiff an adequate answer . . .
regarding why he was not considered for employment."
should "freely give leave [to amend] when justice so
requires." Fed.R.Civ.P. 15(a)(2); see also
Passlogix, Inc. v. 2FA Tech., LLC, 708 F.Supp.2d 378,
407 (S.D.N.Y. 2010). Courts need not grant leave to amend,
however, when the proposed amendment would be futile. See
Passlogix, Inc., 708 F.Supp.2d at 407 (citing
Advanced Magnetics, Inc. v. Bayfront Partners, Inc.,
106 F.3d 11, 18 (2d Cir. 1997)). "An amendment to a
pleading is futile if the proposed claim could not withstand
a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6)."
Lucente v. Int'l Bus. Machines Corp., 310 F.3d
243, 258 (2d Cir. 2002). "Thus, a proposed amendment
must plead sufficient 'factual content' to allow a
court 'to draw the reasonable inference that the
defendant is liable for the misconduct alleged.'"
Long v. Parry, 679 Fed.Appx. 60, 63 (2d Cir. 2017),
cert. denied, No. 17-373, 2017 WL 4037822 (U.S. Nov.
27, 2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662,
may not enter default judgment against a defendant unless,
taking the complaint's factual allegations as true, the
plaintiff establishes the defendant's liability as a
matter of law. See Bricklayers & Allied Craftworkers
Local 2, Albany, N.Y.Pension Fund v. Moulton Masonry &
Const, LLC, 779 F.3d 182, 187 (2d Cir. 2015). This
standard is "identical" to the standard for
assessing whether a claim should be dismissed under Rule
12(b)(6) and, thus, to the standard for determining whether
an amendment is futile. See Steginsky v. Xcelera
Inc., 741 F.3d 365, 368 (2d Cir. 2014) (noting that
"[t]he district court properly applied an identical
standard in assessing" a motion for default judgment and
motion to dismiss); see also Young-Flynn v. Wright,
No. 05-CV-1488 (LAK), 2007 WL 241332, at *24 (S.D.N.Y. Jan.
26, 2007) ("A default judgment is inappropriate where a
plaintiff has failed to state a cause of action against the
allegedly defaulting defendant, regardless of whether the
defendant filed a prompt response, or any response at
Court must liberally construe Plaintiff spro se
complaint. See Harris v. Mills, 572 F.3d 66, 72 (2d
Cir. 2009). Even when a plaintiff is pro se,
however, a complaint can be dismissed with prejudice where
the complaint's defects are "substantive" and
cannot be cured through "better pleading." See
Heicklen v. U.S. Dep 't of Homeland Sec, No.
10-CV-2239 (RJH) (JLC), 2011 WL 3841543, at *17 (S.D.N.Y.
Aug. 30, 2011), report and recommendation adopted,
2011 WL 4442669 (S.D.N.Y. Sept. 23, 2011) (quoting Cuoco
v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)).
initial matter, Decastro spends a substantial portion of his
motion arguing that he should be allowed to amend the
complaint to identify (and serve) the correct corporate
defendant. Plaintiff alleges that Norrell Corporation merged
with another company and became "SPN Group, " which
(unlike Norrell) is incorporated in Florida. According to
Decastro, "serving process on 'SPN Group' would
involve only a change of name and address, with Plaintiffs
complaint on the merits and prayer for relief remaining the
same, in that 'Norrell' 'Corporation' has
merged with another entity to form another entity known as
'SPN Group.'" Dkt. 31 at 10. Before the Court
will allow Decastro to amend his complaint and substitute SPN
Group for Norrell, however, Plaintiff must establish that his
motion to amend would not be futile. Here, that means
Decastro must propose amendments curing the substantive
defects in his original complaint-defects that this Court
identified when it denied Plaintiffs motion for default
judgment. In short, both then and now Decastro has failed to
allege a sufficient basis for his allegations that he was
discriminated against based on his disability or race.
establish Defendant's liability for discrimination under
the ADA, Plaintiff must show that "(1) the employer is
subject to the ADA; (2) the plaintiff is disabled within the
meaning of the ADA or perceived to be so by her employer; (3)
[the plaintiff] was otherwise qualified to perform the
essential functions of the job with or without reasonable
accommodation; (4) [the plaintiff] suffered an adverse
employment action; and (5) the adverse action was imposed
because of [the plaintiffs] disability." Davis v.
New York City Dep 't of Educ,804 F.3d 231, 235 (2d
Cir. 2015). As to the last element specifically, "a
plaintiff must ...