Amaya v. Ballyshear LLC

• Decision Date: 20 November 2018
• Docket Number: 2:17-cv-01596 (ADS)(GRB)
• Parties: Nelly AMAYA, Plaintiff, v. BALLYSHEAR LLC, Geller & Company LLC, Diane Gubelli, Marika Sygman, and Steve Kaczynski, Individually, Defendants.
• Court: U.S. District Court — Eastern District of New York

340 F.Supp.3d 215

Nelly AMAYA, Plaintiff,

v.BALLYSHEAR LLC, Geller & Company LLC, Diane Gubelli, Marika Sygman, and Steve Kaczynski, Individually, Defendants.

2:17-cv-01596 (ADS)(GRB)

United States District Court, E.D. New York.

Signed November 20, 2018

Derek Smith Law Group PLLC, Counsel for the Plaintiff, 30 Broad Street, 35^th Floor, New York, NY 10004, By: Derek T. Smith, Esq., Kelly L. O'Connell, Esq., Of Counsel

Willkie Farr & Gallagher LLP, Counsel for the Defendants, 787 Seventh Avenue, New York, NY 10019, By: Joseph T. Baio, Esq., Andrew Spital, Esq., Elizabeth Dunn, Esq., Of Counsel

MEMORANDUM OF DECISION & ORDER

SPATT, District Judge:

On March 21, 2017, Nelly Amaya ("Amaya" or the "Plaintiff") commenced this employment discrimination action against her former employers Ballyshear LLC ("Ballyshear") and Geller & Company LLC ("Geller") (together, the "Corporate Defendants"), as well as various individuals employed by the Corporate Defendants, specifically, Diane Gubelli ("Gubelli"), Janine Wheaton ("Wheaton"), Marika Sygman ("Sygman"), and Steve Kaczynski ("Kaczynski") (together, the "Individual Defendants" and collectively with the Corporate Defendants, the "Defendants"). The Plaintiff alleged gender, race and national origin-based employment discrimination and retaliation, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"), 42 U.S.C. § 1981 (" § 1981"), and New York Executive Law § 296 ("NYSHRL"). In her opposition brief, Amaya asserted causes of action arising under the New York City Human Rights Law ("NYCHRL").

On March 14, 2018, the Court granted the Defendants' motion to dismiss the complaint, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (" FED. R. CIV. P. " or "Rule"), in part (the "MTD Order"). Specifically, the Court dismissed the Plaintiff's causes of action that stemmed from Title VII and precluded the Plaintiff from advancing a wrongful termination, retaliatory discharge or constructive discharge theory pursuant to § 1981 or the NYSHRL. The Plaintiff's attempt to assert NYCHRL claims through her motion papers was also denied. Amaya was allowed to proceed with a hostile work environment theory pursuant to NYSHRL and § 1981 as well as a retaliatory workplace theory pursuant to § 1981 and the NYSHRL.

On April 20, 2018, the Court issued an order (the "April Order") which (1) dismissed Janine Wheaton from the case; (2) amended the caption to correct a name misspelling; (3) directed the Plaintiff to file her Second Amended Complaint ("SAC") on or before April 24, 2018; and (4) ordered the Defendants to answer or otherwise respond to the Second Amended Complaint on or before June 15, 2018. The April Order also noted that the parties agreed that the Plaintiff's SAC would (1) strike sections that were dismissed by the MTD Order; (2) add causes of action under the NYCHRL; and (3) add factual allegations only insofar as they were relevant to the issue of whether she was an employee covered by the NYCHRL.

The Plaintiff filed her proposed SAC on April 24, 2018.

Presently before the Court is a motion by the Defendants, pursuant to Rules 12(b)(1), 12(b)(6) and 12(f), seeking to partially dismiss the SAC and to strike certain factual allegations in the SAC. The background of this case is set forth in the MTD Order and familiarity with that decision is assumed.

For the reasons set forth below, the Defendants' motion is granted.

I. DISCUSSION

A. STANDARD OF REVIEW: FED. R. CIV. P. 12(B)(1)

"A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States , 201 F.3d 110, 113 (2d Cir. 2000) ; see also Aurecchione v. Schoolman Transp. Sys., Inc. , 426 F.3d 635, 638 (2d Cir. 2005) ("After construing all ambiguities and drawing all inferences in a plaintiff's favor, a district court may properly dismiss a case for lack of subject matter jurisdiction under Rule 12(b)(1) if it lacks the statutory or constitutional power to adjudicate it." (internal citations and quotation marks omitted) ). See, e.g. , Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). "Under FED R. CIV. P. 12(b)(1), ‘[even] a facially sufficient complaint may be dismissed for lack of subject matter jurisdiction if the asserted basis for jurisdiction is not sufficient.’ "

Frisone v. Pepsico Inc. , 369 F.Supp.2d 464, 469 (S.D.N.Y. 2005) (quoting Peterson v. Cont'l Airlines Inc. , 970 F.Supp. 246, 249 (S.D.N.Y. 1997) ).

In its assessment of whether it has subject matter jurisdiction, the Court "need not accept as true contested jurisdictional allegations and may resolve disputed jurisdictional facts by reference to affidavits and other matters outside the pleadings." Williams v. Runyon , No. 97-Civ.-4029, 1999 WL 77207, at *1 (S.D.N.Y. Feb. 17, 1999) (quoting Societe Nationale d'Exploitation Industrielle des Tabacs et Allumettes v. Salomon Bros. Int'l Ltd. , 928 F.Supp. 398, 402 (S.D.N.Y. 1996) ); accord New York State Catholic Health Plan, Inc. v. Acad. O & P Assocs. , 312 F.R.D. 278, 294 (E.D.N.Y. 2015) (citing Phifer v. City of New York , 289 F.3d 49, 55 (2d Cir. 2002) ); Makarova , 201 F.3d at 113 (citing Kamen v. Am. Tel. & Tel. Co. , 791 F.2d 1006, 1011 (2d Cir. 1986) ). All uncontroverted factual allegations contained in the complaint are accepted as true and the Court draws all reasonable inferences in favor of the party asserting jurisdiction. See Tandon v. Captain's Cove Marina of Bridgeport, Inc. , 752 F.3d 239, 243 (2d Cir. 2014) ; accord Morrison v. Nat'l Australia Bank Ltd. , 547 F.3d 167, 170 (2d Cir. 2008).

There are two types of procedural challenges to subject matter jurisdiction under Rule 12(b)(1) : (1) facial; or (2) fact-based.

A facial challenge is based exclusively on the complaint's factual allegations or exhibits attached to the complaint. There, the plaintiff does not have an evidentiary burden, see Amidax Trading Grp. v. S.W.I.F.T. SCRL , 671 F.3d 140, 145 (2d Cir. 2011), and the district court must evaluate whether the complaint and its exhibits "allege facts that affirmatively and plausibly suggest that [the plaintiff] has standing to sue." Id. ; see, e.g. , Selevan v. New York Thruway Auth. , 584 F.3d 82, 88 (2d Cir. 2009). See also Warth v. Seldin , 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) ("For purposes of ruling on a motion to dismiss for want of standing, both the trial and reviewing courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.").

In a fact-based challenge, a defendant must proffer evidence beyond what is alleged in or attached to the complaint. See, e.g. , Robinson v. Gov't of Malaysia , 269 F.3d 133, 140 n.6 (2d Cir. 2001). "[I]f the affidavits submitted on a [fact-based] 12(b)(1) motion ... reveal the existence of factual problems" related to jurisdiction, the plaintiff must present evidence of his own to counter the defendant's evidence. Exch. Nat'l Bank of Chicago v. Touche Ross & Co. , 544 F.2d 1126, 1131 (2d Cir. 1976). There, "the party asserting subject matter jurisdiction ‘has the burden of proving by a preponderance of the evidence that it exists.’ " Tandon , 752 F.3d at 243 (quoting Makarova , 201 F.3d at 113 ). If the plaintiff's allegations and exhibits are sufficiently plausible and the evidence presented by the defendant does not contradict such allegations, the plaintiff does not have to present additional evidence and can rely on the pleadings.

B. STANDARD OF REVIEW: FED. R. CIV. P. 12(B)(6)

In considering a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the Plaintiff. See, e.g. , Trs. of Upstate N.Y. Eng'rs Pension Fund v. Ivy Asset Mgmt. , 843 F.3d 561, 566 (2d Cir. 2016) ; Walker v. Schult , 717 F.3d 119, 124 (2d Cir. 2013) ; Cleveland v. Caplaw Enters. , 448 F.3d 518, 521 (2d Cir. 2006) ; Bolt Elec., Inc. v. City of N.Y. , 53 F.3d 465, 469 (2d Cir. 1995) ; Reed v. Garden City Union Free Sch. Dist. , 987 F.Supp.2d 260, 263 (E.D.N.Y. 2013).

Under the Twombly standard, the Court may only dismiss a complaint if it does not contain enough allegations of fact to state a claim for relief that is "plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). The Second Circuit has expounded that, after Twombly , the Court's inquiry under Rule 12(b)(6) is guided by two principles:

First, although a court must accept as true all of the allegations contained in a complaint, that tenet is inapplicable to legal conclusions, and [t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss and [d]etermining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.

Harris v. Mills , 572 F.3d 66, 72 (2d Cir. 2009) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 664, 129 S.Ct. 1937, 1940, 173 L.Ed.2d 868 (2009) ).

A complaint must include "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to survive a motion to dismiss. FED. R. CIV. P. 8(a)(2). Under Rule 8, a complaint is not required to allege "detailed factual allegations." Kendall v. Caliber Home Loans, Inc. , 198 F.Supp.3d 168, 170 (E.D.N.Y. 2016) (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). "In ruling on a motion pursuant to FED. R. CIV. P. 12(b)(6), the duty of a court ‘is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support...