Ello v. Singh
| Decision Date | 19 October 2007 |
| Docket Number | No. 05-CV-9625 (KMK).,05-CV-9625 (KMK). |
| Citation | 531 F.Supp.2d 552 |
| Parties | Richard ELLO, Plaintiff, v. Ishri SINGH, in his individual and official capacities; Raymond Pocino, Vice President and Eastern Regional Manager of Laborers International Union of North America, in his individual and official capacities; Laborers International Union of North America; Laborers-Employers Cooperation and Educational Trust Fund; Raymond Pocino, Trustee, in his individual and official capacities; Mason Tenders District Council Trust Funds; John Virga, Funds Director, in his individual capacities; John and Jane Does A through D, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Ruth M. Pollack, Esq., Mineola, NY, for Plaintiff.
Kathleen M. McKenna, Esq., Deidre A. Grossman, Esq., Proskauer Rose LLP, New York, NY, for. Defendants Ishry Singh, Laborers-Employers Cooperation and Education Trust Fund, Mason Tenders District Council Trust Funds, Raymond Pocino, as a Trustee of the Mason Tenders District Council Trust Funds, and John Virga.
Samuel Rosenthal, Esq., Curtis, Mallet-Prevost, Colt & Mosle, LLP, New York, NY, for Defendants Laborers International Union of North America and Raymond Pocino.
Terrence G. Reed, Esq, Lankford, Coffield & Reed, PLLC, Alexandria, VA, for
Defendants Laborers International Union of North America and Raymond Pocino.
Before the Court is Plaintiffs Motion to File a Proposed Second Amended' Complaint ("PSAC") against Defendants Proskauer Rose LLP ("Proskauer"), Ishry Singh, Raymond Pocino, John Virga, the Greater New York Laborers-Employers Cooperation and Education Trust Fund ("GNYLECET"), Mason Tenders District Council Trust Funds ("MTDCTF"), Laborers International Union of North America ("LIUNA"), Paul O'Brien, Charles Carron, Merrick Rossein, and Chris Columbia, (collectively "Defendants").1 Plaintiff alleges that several Defendants have breached fiduciary duties to the MTDCTF2; that Plaintiff was discharged from his employment in violation of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq.; that several Defendants violated the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq.; and that some defamed Plaintiff. Defendants oppose Plaintiffs. Motion on futility grounds, arguing that Plaintiff has failed to state a claim upon which relief can be granted, pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons stated below, Plaintiffs Motion is GRANTED in part and DENIED in part.
A background of the facts leading up to this point in the litigation of this case is discussed in a prior Opinion & Order from this Court. See Ello v. Singh, No. 05 Civ. 9625, 2006 WL 2270871 (S.D.N.Y. Aug. 7, 2006) (). Rather than repeat those familiar facts here, the Court will refer to the relevant facts only when necessary.
There is a need, however, to lay out the procedural history of this case. This case began on November 15, 2005 when Plaintiff filed a Complaint. (Dkt. No. 1.) Then, on February 9, 2006, Plaintiff filed an Amended Complaint. (Dkt. No. 33.) Five months later, on July 13, 2006 — the same day the Court scheduled oral argument on Plaintiffs motion to disqualify Defendants' counsel (Dkt. No. 36) — Plaintiff again attempted to amend his Complaint, this time without prior permission of the Court.3 The Court denied Plaintiffs disqualification motion, see Ello, 2006 WL 2270871, at *1, and denied Plaintiffs attempt to file the July 13th Complaint for failure to comply with the Court's Individual Practices (Did. No. 38).4 Less than a week later, Plaintiff sought the Court's permission to file an Amended Complaint. (Dkt. No. 40.) However, before the Court could schedule a conference to hear the Parties on what Complaint Plaintiff would seek leave to file, Plaintiff asked the Court to refrain from scheduling a conference, because he intended to file yet another Amended Complaint. Before Plaintiff submitted his next Amended Complaint and accompanying motion, the Court explained that any additional amendments to the Complaint would have to be based on new evidence that was not previously available to Plaintiff, (Ct.Conf. Tr. 5-7, Sept. 12, 2006.) After an exchange of letters between the Parties, Plaintiff filed a Motion to Amend the Complaint with a PSAC on September 15, 2006.
But there is more. On November 6, 2006, this litigation took another step backward before moving forward. On that date, Plaintiff filed his Reply Memorandum of Law in Support of its Motion to File the PSAC ("Plaintiffs Reply Memorandum"). Plaintiffs Reply Memorandum, which unjustifiably exceeded the permitted page limit by thirty-nine pages,5 was also accompanied by what amounts to a Second Proposed Second Amended Complaint ("SPSAC"). Plaintiffs SPSAC, which he did not seek permission to file — the second time that has happened in this case — seeks to expand Plaintiffs defamation claims and to add a malicious prosecution claim against Singh and Proskauer.
To summarize: After filing his Complaint in this case, Plaintiff amended his Complaint, and after doing, so, he filed a different, proposed Amended Complaint which was subsequently rejected for failure to comply with the Court's Individual practices. Plaintiff next withdrew a different proposed Complaint (a third version of the Complaint, in effect), then submitted a PSAC. Finally, in the midst of briefing on the PSAC, without permission, Plaintiff attempted to file a SPSAC. Tallying the score, Plaintiff has filed five versions of the Complaint. At the pre-motion conference on the PSAC, after an inquiry by the Court as to what Complaint Plaintiff Was seeking leave to file, Plaintiff indicated that he is pursuing all of the causes of action in the PSAC and the defamation claim raised in the SPSAC.6 (Pre-motion Conf. Tr. 26, Dec. 12, 2006.) However, Plaintiff confirmed that he does not intend to go to trial on the malicious prosecution claim raised in the SPSAC. (Id.)
Plaintiffs allegations (which are assumed to be true for the purposes of this Motion) are as follows: (1) Defendants Proskauer, Virga, Pocino, O'Brien, and Carron breached fiduciary duties owed to the Mason Tenders District Council Pension Plan and Welfare Plan (PSAC ¶¶ 24-135); (2) Defendants Pocino, Proskauer, and Virga violated Section 510 of ERISA by discharging Plaintiff from his positions with LIUNA and GNYLECET (id. ¶¶ 136-96); (3) Defendants Proskauer, Pocino, O'Brien, and Carron, operated MTDCTF in violation of RICO (id. ¶¶ 197-286); and (4) Defendants Proskauer, Pocino, Rossein, Singh, and Columbia defamed Plaintiff (SPSAC ¶¶ 287-418).
This case initially arose out of an allegation by Singh, an accounts payable employee of the MTDCTF, that Plaintiff sexually assaulted Singh on February 4, 2005. At the time, Plaintiff was an employee of the LIUNA and the MTDC, where he held numerous positions within both organizations. See Ello, 2006 WL 2270871, at *1 (describing Plaintiffs prior positions). Plaintiff claims that Singh, an employee of MTDCTF,7 approached Plaintiff on a number of occasions between December 2004 and February 2005 to solicit Plaintiff's assistance in securing a position with the MTDC. Plaintiff allegedly rebuffed Singh's requests, due to what Plaintiff says were budgetary constraints and policies which favor LECET and Local # 279 employees for available positions. Despite Plaintiffs refusal to offer Singh employment, Singh allegedly continued to remind Plaintiff that he was interested in employment. On February 4, 2005, Plaintiff and Singh had a conversation at a local restaurant and bar. During this conversation, Singh allegedly attempted to make his prospective employment more attractive by claiming that he had family in law enforcement. Plaintiff allegedly told Singh that LIUNA maintained an active Inspector General's Office and that there was no need for the assistance of outside law enforcement. Plaintiff claims that this was the end of their interactions that night — once the conversation ended, the two men headed towards the offices of the MTDCTF and eventually parted ways.
Plaintiff claims that Singh retaliated against Plaintiff for his refusal to hire him by filing false allegations that Plaintiff sexually assaulted Singh on February 4, 2005. Plaintiff alleges that he learned of Singh's allegation on February 9, 2005, from New York City Detective Whelan. (PSAC ¶ 167.) That same day, Plaintiff believes that a meeting of Trustees was held to discuss Singh's allegations against Plaintiff. (Id. ¶ 166.) This alleged meeting was held in Plaintiffs absence and the minutes were subsequently withheld from Plaintiff. (Id.) That same day, Pocino told Plaintiff to stay away from the MTDCTF's employees and staff, allegedly pursuant to Proskauer's advice. (Id. ¶ 172.) Pocino refused to discuss Singh's harassment report with Plaintiff, also allegedly pursuant to Proskauer's advice. (Id.) Singh's allegation caused the MTDCTF to subsequently investigate the claim. Proskauer, serving as counsel, retained Merrick T. Rossein, Esq., to conduct an investigation. Plaintiff, apparently on the advice of his counsel, never met with Rossein. In mid-March 2005, Pocino requested Plaintiffs resignation, which Plaintiff submitted under "duress." (Id. ¶¶ 188-89.)
Rule 15(a) of the Federal Rules of Civil Procedure states that leave to amend a complaint should be "freely given when justice so requires." Fed.R.Civ.P. 15(a). However, "[a] district court has discretion to deny leave for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party." McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir.200...
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