Kalola v. Int'l Bus. Machs. Corp.
| Decision Date | 16 December 2019 |
| Docket Number | 19 CV 9900 (VB) |
| Parties | PURUSHOTTAM C. KALOLA, Plaintiff, v. INTERNATIONAL BUSINESS MACHINES CORPORATION ("IBM"), VIRGINIA ROMETTY, MICHELLE H. BROWDY, JACKSON LEWIS P.C., KEVIN G. LAURI, DANA GLICK WEISBROD, and MINA WOOD, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Plaintiff Purushottam C. Kalola, proceeding pro se, brings this action against his previous employer, International Business Machines Corporation ("IBM"), two current IBM employees, and the law firm and three attorneys who represented IBM in plaintiff's prior lawsuit, Kalola v. Int'l Bus. Machs. Corp. (13 VB 7339) (VB) (the "Original Action"). Plaintiff's complaint includes various federal and state law claims relating to both the adjudication of the Original Action and termination of his employment from IBM.
Now pending is defendants' motion to dismiss the complaint pursuant to Rule 12(b)(6). (Doc. #10).
For the reasons set forth below, the motion is GRANTED.
The Court has subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1367.
In deciding the pending motion, the Court accepts as true all well-pleaded factual allegations in the complaint, and draws all reasonable inferences in plaintiff's favor, as summarized below.
Plaintiff worked for IBM from 1999 until his termination in October 2011. In 2013, plaintiff commenced the Original Action against IBM and several IBM employees, alleging violations of Title VII of the Civil Rights of 1964, 42 U.S.C. §§ 2000e et seq., the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq., the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12112 et seq., and the New York Human Rights Law (the "Human Rights Law"), N.Y. Exec. Law §§ 290 et seq. In sum, plaintiff alleged both federal and state law discrimination, retaliation, hostile work environment, and failure to accommodate claims.
Jackson Lewis P.C. represented the defendants—IBM and some of its employees—in the Original Action.
On February 3, 2015, the Court granted in part and denied in part defendants' motion to dismiss the complaint in the Original Action, thus allowing several of plaintiff's claims to proceed. Kalola v. Int'l Bus. Machs. Corp., 2015 WL 861718 (S.D.N.Y. Feb. 3, 2015).2 Those claims, however, did not survive summary judgment. Indeed, on August 4, 2017, the Court adopted Magistrate Judge Lisa Margaret Smith's February 28, 2017, Report and Recommendation, and granted defendants' motion for summary judgment. Kalola v. Int'l Bus.Machs. Corp., 2017 WL 3381896 (S.D.N.Y. Aug. 4, 2017). The Clerk entered judgment for IBM and its employees on August 7, 2017.
Plaintiff appealed the Court's decision to the Second Circuit. On January 24, 2018, the Second Circuit denied plaintiff's appeal as lacking "an arguable basis either in law or fact." Kalola v. Int'l Bus. Machs. Corp., 2018 WL 894064, at *1 (2d Cir. Jan. 24, 2018).
Plaintiff commenced the instant action on June 24, 2019, by filing a complaint in Supreme Court, Westchester County, against IBM, IBM's current Chief Executive Officer Virginia Rometty ("Rometty"), IBM's current Senior Vice President and General Counsel Michelle H. Browdy ("Browdy"), as well as Jackson Lewis P.C. and three of its attorneys, Kevin G. Lauri, Dana Glick Weisbrod, and Mina Wood (together, the "JL defendants").
Defendants removed the instant action to this Court on October 25, 2019. (Doc. #1).
Plaintiff's complaint spans thirty-six pages, contains various links to insignificant Internet postings, videos, and other materials, and is hardly a model of clarity. Construed liberally, the complaint contains a host of federal and state law claims against the defendants, discussed herein.
In deciding a Rule 12(b)(6) motion, the Court evaluates the sufficiency of the operative complaint under the "two-pronged approach" articulated by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).3 First, a plaintiff's legal conclusions and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements," are not entitledto the assumption of truth and thus are not sufficient to withstand a motion to dismiss. Id. at 678; Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). Second, "[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Ashcroft v. Iqbal, 556 U.S. at 679.
To survive a Rule 12(b)(6) motion, the allegations in the complaint must meet a standard of "plausibility." Ashcroft v. Iqbal, 556 U.S. at 678; Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). A claim is facially plausible "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. at 678. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 556).
A court assessing a Rule 12(b)(6) motion may "consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint." DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). Courts also may consider documents deemed "integral" to the complaint, id., and any matters subject to judicial notice, Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
The Court must liberally construe a pro se litigant's submissions and interpret them "to raise the strongest arguments that they suggest." Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam). Applying the pleading rules permissively is particularly appropriate when, as here, a pro se plaintiff alleges a civil rights violation. See Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). "Even in a pro se case, however, . . . threadbare recitals of the elements of a cause of action, supported by mere conclusorystatements, do not suffice." Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010). Nor may the Court "invent factual allegations" a plaintiff has not pleaded. Id.
Plaintiff alleges the JL defendants violated multiple federal and state criminal statutes in their defense of IBM and its employees in the Original Action. Liberally construed, the complaint contains allegations that the JL defendants violated 18 U.S.C. §§ 241 and 242 (), 371 (conspiracy to commit offense against or to defraud the United States), 666(a)(1) (), 1001 (false statements), 1343 (wire fraud), 1349 (attempt and conspiracy), 1519 (destruction, alteration, or falsification of records in federal investigations and bankruptcy), 1621 (perjury), and 1623 (false declarations before a grand jury or court), and Article 175 of New York's Penal Law ().
Defendants argue plaintiff cannot maintain claims for violations of the above criminal statutes.
The Court agrees.
"[N]o private right of action exists under criminal statutes absent an indication that Congress intended to create such a private right of action." Nath v. Select Portfolio Serv., Inc., 732 F. App'x 85, 87 (2d Cir. 2018) (summary order). Similarly, absent any indication to the contrary, "criminal charges under New York law cannot be prosecuted by a private person." Patterson v. Patterson, 2019 WL 1284346, at *7 (W.D.N.Y. Mar. 20, 2019) (collecting cases).
Here, no private right of action exists under the criminal statutes enumerated above. See, e.g., Nath v. Select Portfolio Serv., Inc., 732 F. App'x at 87 (); Bruin v. White, 2019 WL 4889270, at *4 (W.D. Ky. Oct. 3, 2019) (); El v. O'Brien, 2012 WL 2367096, at *2 (E.D.N.Y. June 20, 2012) (); Piorkowski v. Parziale, 2003 WL 21037353, at *8 (D. Conn. May 7, 2003) (); Dugar v. Coughlin, 613 F. Supp. 849, 852 n.1 (S.D.N.Y. 1985) (); see also Zahl v. Kosovsky, 2011 WL 779784, at *10 (S.D.N.Y. Mar. 3, 2011) ().
Accordingly, plaintiff's criminal claims against the JL defendants must be dismissed.
Defendants argue plaintiff's claim under 28 U.S.C. § 4101, to the extent one is pleaded, must be dismissed.
The Court agrees.
Section 4101 of Chapter 181 of the U.S. Code concerns foreign judgments. Specifically, it provides definitions for terms in Chapter 181, including "defamation." 28 U.S.C. § 4101. Plaintiff alleges defendants defamed him in connection with the Original Action.
However, plaintiff fails to state a claim under Section 4101, as there are no foreign defamation judgments at issue in this case. Moreover, the claim is entirely conclusory. Accordingly, the claim must be dismissed.
Defendants argue plaintiff's state law defamation claims must be dismissed as untimely.
The Court agrees.
Notwithstanding plaintiff's failure to meet threshold pleading requirements to maintain valid defamation claims, Dillon v. City of New York, 261 A.D.2d 34, 38 (1st Dep't 1999), theclaims are governed by a one-year statute of limitations. N.Y. C.P.L.R. § 215 ().
To the extent plaintiff asserts claims of defamatory conduct respecting the termination of his employment with IBM in 2011, such claims are...
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