Cho v. Caf, No. 10 Civ. 3785(HBP).

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Writing for the CourtPITMAN
Citation42 F.Supp.3d 495
Decision Date09 September 2013
Docket NumberNo. 10 Civ. 3785(HBP).
PartiesMI–KYUNG CHO, Plaintiff, v. YOUNG BIN CAFÉ, et al., Defendants.

42 F.Supp.3d 495

MI–KYUNG CHO, Plaintiff,
YOUNG BIN CAFÉ, et al., Defendants.

No. 10 Civ. 3785(HBP).

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

Sept. 9, 2013

Plaintiff's motion denied; defendant's motion denied.

[42 F.Supp.3d 498]

Mi-Kyung Cho, pro se.

Richard Thomas Sules, Stockschlaeder, Mcdonald & Sules, P.C., New York, NY, Sidney A. Weisberg, Weisberg & Weisberg, Great Neck, NY, for Defendants.


PITMAN, United States Magistrate Judge.
I. Introduction

This action arises out of the physical assault of plaintiff while she working as a hostess at defendant Young Bin Café, a Korean-themed café located in Flushing, New York. Plaintiff has brought claims for negligence, retaliation, intentional infliction of emotional distress and tortious interference with business relations and contract. In Docket Items 60 and 61, defendants have moved for summary judgment dismissing plaintiff's complaint in its entirety. In Docket Item 63, plaintiff cross moves for an order vacating, in part, an Order that I entered on August 6, 2012 and dismissing the action for lack of subject matter jurisdiction.

The parties have consented to my exercising plenary jurisdiction over this matter pursuant to 28 U.S.C. § 636(c). For the reasons that follow, defendants' motion for summary judgment is granted, and plaintiff's complaint is dismissed. In addition, plaintiff's cross motion (Docket Item 63) is denied.

II. Background A. Facts 1

Prior to the events giving rise to this action, in or around 2004 or 2005, plaintiff worked at Gabin Café for approximately one year. Gabin Café is located in New Jersey and is owned by former defendant

[42 F.Supp.3d 499]

Eun M. Sin (Mi–Kyung Cho Deposition Transcript (“Cho Dep. Tr.”) at 8:3–8, attached as Ex. 1 to Declaration of Michael S. Kimm, Esq. (“Kimm Decl.”) (Docket Item 66); Eun M. Sin Deposition Transcript (“Sin Dep. Tr. at 29:15–30:2”), attached as Ex. 2 to Kimm Decl.). After working at Gabin Café, plaintiff returned to Korea, but came back to the United States in or around April 2008 (Cho Dep. Tr. at 9:20–22).

On or about July 1, 2008, plaintiff was working as a hostess at Young Bin Café in Flushing, New York (Cho Dep. Tr. at 13:10–25, 73:8–17; Sin Dep. Tr. at 44:8–11). Like the Gabin Café, Yong Bin Café is owned by Sin (Sin Dep. Tr. at 14:15–22). At some point in the early morning of July 1, 2008, Kwang Kyu Kim, a customer at Young Bin Café, kicked plaintiff in the stomach without provocation, causing her to fall on her side on the marble floor (Cho Dep. Tr. 24:20–24, 29:3–24). Plaintiff reported this incident to the police and filed a police report (Cho Dep. Tr. at 103:24–104:2). Prior to this incident, plaintiff had never complained to Sin or anyone else at Young Bin Café about Kim, who had previously been a customer at Young Bin Café (Cho Dep. Tr. at 88:7–14).

Sin was not at Young Bin Café on the night that the incident occurred; afterwards, an employee told her that Kim had either kicked or pushed plaintiff (Sin Dep. Tr. at 64:6–10). Sin claims that she tried to call plaintiff after the incident to “ask her if she was okay” (Sin Dep. Tr. at 55:13–18), but that she never ultimately spoke with plaintiff about Kim's alleged assault (Sin Dep. Tr. at 56:6–12).

Plaintiff's recollection of her interactions with Sin after Kim's assault is different. Plaintiff claims that she spoke with Sin by telephone after the incident and that Sin called her “an American bitch” (Cho Dep. Tr. at 91:17–22). Plaintiff claims that she took a week off before returning to work at Young Bin Café (Cho Dep. Tr. at 92:18–21). Plaintiff claims that when she returned, Sin was “very angry” that plaintiff had filed a police report (Cho Dep. Tr. at 92:6–10) and Sin said that she would not “leave [plaintiff] alone” unless plaintiff dropped the police report (Cho Dep. Tr. at 93:18–94:2). Plaintiff further claims that Sin demanded that plaintiff apologize to Kim (Cho Dep. Tr. at 94:9–21, 97:4–7, 101:4–20). As a result of these conversations, plaintiff felt “saddened” and “cornered” (Cho Dep. Tr. at 100:8–24). She further explained, “From what I hear there is an association of people who run room salons and president Sin, she told them that, you know, that I made problems, I caused noise, so she made sure, she made it so that I couldn't work” (Cho Dep. Tr. at 40:8–12).

Sin maintains that she did not threaten plaintiff or require her to apologize to Kim (Sin Dep. Tr. at 57:20–58:4). The police also investigated Sin's conduct, and she was charged with witness tampering (Sin Dep. Tr. at 56:17–19).

Plaintiff sought various medical treatments for the injuries resulting from the assault, including acupuncture, xrays, and chiropractic (Cho Dep. Tr. at 104–111). She claims that she “applied for the employee insurance” but that Sin denied this application (Cho Dep. Tr. at 111:10–14). Sin testified that she did not know whether she had workers' compensation insurance for employees at Yong Bin Café (Sin Dep. Tr. at 58:14–18).

Plaintiff claims that she was fired approximately one week after she returned to work at Young Bin Café (Cho Dep. Tr. at 96:21–23, 102:25–103:3). Sin claims that plaintiff left Young Bin Café voluntarily because plaintiff was going on a vacation (Sin Dep. Tr. at 60:18–20).

[42 F.Supp.3d 500]

B. Procedural History

Plaintiff commenced this action on May 7, 2010 against Young Bin Café, Gabin, Sin and Kim. She asserted the following claims: (1) negligence against Kim; (2) retaliatory discharge in violation of the New York State Human Rights Act, Executive Law § 292 et seq. , against Young Bin Café and Gabin (collectively, the “Café Defendants”) and Sin; (3) retaliatory discharge in violation of the New York City Administrative Code, Section 8–101 et seq. , against the Café Defendants and Sin; (4) intentional infliction of emotional distress against all defendants; (5) retaliatory discharge in violation of the New Jersey Law Against Discrimination against Gabin and Sin and (6) tortious interference with business relationships against all defendants.

On July 23, 2012, the Café Defendants and Sin moved to dismiss the action for lack of subject matter jurisdiction because plaintiff, Sin and Kim are all citizens of Korea, and, therefore, complete diversity was lacking (Docket Item 52). I conducted a conference call on July 30, 2012 to discuss the issue, and plaintiff made an oral application at that time to withdraw her claims against Sin and Kim. By an order dated August 6, 2012, I granted plaintiff's application and concluded that neither Sin nor Kim was an indispensable party under Fed.R.Civ.P. 19 (“August 6 Order” (Docket Item 59)). I concluded, therefore, that the more appropriate course was to dismiss plaintiff's claims against Sin and Kim without prejudice, and to permit the action to continue against only Young Bin Café and Gabin (Docket Item 59). In addition, I granted plaintiff's motion to amend the complaint to add GBNY, Inc. and Gabin, Inc.2 as defendants and directed that she serve and file an amended complaint no later than August 10, 2012. As of today, however, plaintiff has failed to file an amended complaint.

Thus, the only defendants remaining in this action are Young Bin Café and Gabin, and the remaining claims asserted against them are retaliatory discharge in violation of New York's and New Jersey's anti-discrimination statutes, tortious interference with business relationships and contract and intentional infliction of emotional distress. Pursuant to Fed.R.Civ.P. 56, the defendants timely filed their motion for summary judgment seeking the dismissal of plaintiff's complaint in its entirety. Plaintiff filed an opposition and cross-moved pursuant to Fed.R.Civ.P. 60(b)(6) for an order vacating my August 6 Order to the extent that it dismissed her claims against Sin and Kim.

III. Analysis A. Plaintiff's Cross–Motion to Vacate the August 6 Order

By motion dated September 28, 2012, plaintiff seeks an order pursuant to Fed.R.Civ.P. 60 vacating my August 6 Order to the extent that it dismissed her claims against Sin and Kim (Docket Item 63). Notwithstanding that it was plaintiff who initially sought to withdraw her claims against Sin and Kim, she now argues, somewhat inexplicably, that Sin and Kim are indispensable parties who should have never been dismissed. In view of the fact that the Court's subject matter jurisdiction is predicated on diversity of citizenship, she further contends that this action should dismissed for lack of subject matter jurisdiction because the inclusion of Kim and Sin, who, like plaintiff, are citizens of Korea, would destroy diversity jurisdiction. Plaintiff's application is entirely

[42 F.Supp.3d 501]

without merit, and is, therefore, denied.3

Rule 60(b) of the Federal Rules of Civil Procedure provides:

On motion and just terms, the court may relieve a party or its legal representative from a ... order ... for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief.

Fed.R.Civ.P. 60(b). “A motion seeking relief pursuant to Rule 60(b) is addressed to the sound discretion of the district court.” In re Dubrowsky, 268 B.R. 6, 7 (E.D.N.Y.2001), citing Nemaizer v. Baker, 793 F.2d 58, 61–62 (2d Cir.1986); see also Paddington Partners v. Bouchard, 34 F.3d 1132, 1140 (2d Cir.1994) (“A district court's decision on a Rule 60 motion is reviewed for abuse of discretion.”). The moving party bears the burden of demonstrating ...

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