Long v. Marubeni America Corp., No. 05 Civ. 0639(GEL).

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Writing for the CourtLynch
Citation406 F.Supp.2d 285
Docket NumberNo. 05 Civ. 0639(GEL).
Decision Date12 October 2005
PartiesKevin LONG and Ludvic Presto, Plaintiffs, v. MARUBENI AMERICA CORP., et al., Defendants.
406 F.Supp.2d 285
Kevin LONG and Ludvic Presto, Plaintiffs,
v.
MARUBENI AMERICA CORP., et al., Defendants.
No. 05 Civ. 0639(GEL).
United States District Court, S.D. New York.
October 12, 2005.

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Kenneth P. Thompson, Scott Browning Gilly, and Douglas H. Wigdor, Thompson Wigdor & Gilly LLP, New York City, for plaintiffs Long and Presto.

Kenneth Taber, Pillsbury Winthrop Shaw Pittman LLP, New York City, for defendant Marubeni America Corporation.

Gregory I. Rasin, Steven D. Hurd, Elizabeth Cowitt, Jackson Lewis LLP, New York City, for defendants Sakamoto, Saito, Van Dorn, and Sonobe.

OPINION AND ORDER

LYNCH, District Judge.


Plaintiffs Kevin Long and Ludvic Presto, executives of defendant Marubeni America Corporation, bring this action against their employer and various present and former supervisors, charging that they were discriminated against on the basis of race in violation of 42 U.S.C. § 1981, and alleging various pendant state causes of action. Defendants move to dismiss on various grounds, or in the alternative, to strike various portions of the complaint. Plaintiffs cross-move for sanctions pursuant to Fed.R.Civ.P. 11. Although the parties have deluged the Court with voluminous submissions, once the posturing and invective filling the papers are ignored, the substantive issues presented by the motions can be disposed of relatively easily. The Court declines to indulge the parties' efforts to waste their own and the Court's resources with satellite motions designed more to tar their adversaries than to reach the merits of the case. The defendants' motion to dismiss will be granted in part and denied in part; defendants' motion to strike and plaintiffs' motion for sanctions will be denied.

I. Race Discrimination

In Count I of their complaint, plaintiffs claim that they were discriminated against on the basis of their race, alleging that Marubeni disfavored them as Caucasians and gave preferential treatment to Asian employees. Defendants argue that the complaint fails to state a claim, because the allegations (as construed by defendants) state a claim only for national origin discrimination, which is not prohibited by § 1981. The argument is without merit.

Defendants may well be correct that plaintiffs' claims will ultimately prove more persuasive if stated as claims for national origin discrimination, in violation of Title VII of the Civil Rights Act of 1965, and that the charges of racial discrimination are essentially tactical and designed to begin a lawsuit before plaintiffs have exhausted their administrative remedies on a national origin claim, as is required in order to bring an action under Title VII. However, it is not the function of the Court to assess the parties' strategies or decide whether plaintiffs may ultimately bring other, stronger claims. Regardless

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of plaintiffs' reasons for filing this lawsuit in this form at this time, the complaint must be sustained if it states a valid claim for relief. There is no question that Count I of this complaint states a claim under § 1981.

This Court faced precisely this issue in Rigodon v. Deutsche Bank Sec., Inc., No. 04 Civ. 2548(GEL), 2004 WL 2471859 (S.D.N.Y. Nov. 1, 2004). As the Court pointed out in Rigodon, it is indeed well-established that § 1981 prohibits discrimination on the basis of race, not national origin, See Rigodon, 2004 WL 2471859 at *4, citing Runyon v. McCrary, 427 U.S. 160, 168, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976). However, in Saint Francis College v. Al-Khazraji, 481 U.S. 604, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987), the Supreme Court made clear that construing "race" must be interpreted according to "[t]he understanding of `race' in the 19th century," when § 1981 was adopted. Id. at 610, 107 S.Ct. 2022. In Al-Khazraji, while dealing with a claim of discrimination by a plaintiff of Iraqi origin and Arab ancestry, the Court concluded that when Congress enacted § 1981, it "intended to protect from discrimination identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics." Id. at 613, 107 S.Ct. 2022. While the Court emphasized that this was not the same thing as "national origin," and insisted that to succeed on his claim plaintiff would have to "prove that he was subjected to intentional discrimination based on the fact that he was born an Arab, rather than solely on the place or nation of his origin," plaintiff's claim was permitted to go forward. Id.

In Rigodon, the plaintiff, who was of Haitian origin, alleged that he was subject to discrimination based not on his place of origin, but on his "Haitian ethnicity and ancestry." 2004 WL 2471859, at *1. This Court noted Justice Brennan's observation in his concurrence in Al-Khazraji that "the line between discrimination based on `ancestry or ethnic characteristics,' and discrimination based on `place or nation of ... origin,' is not a bright one." 481 U.S. at 614, 107 S.Ct. 2022, quoting id. at 613, 107 S.Ct. 2022. The Court then concluded that "assuming for these purposes that plaintiff can prove he was subjected to discrimination of some kind, the question of the nature of the discrimination is a factual one." 2004 WL 2471859 at *4. Other courts have reached similar conclusions. See MacDissi v. Valmont Indus., 856 F.2d 1054, 1060 (8th Cir.1988) (finding that § 1981 can apply to persons of Lebanese descent); Aggarwal v. N.Y. City Health & Hosps. Corp., No. 98 Civ. 5063(DLC), 2000 WL 172787, at *5 (S.D.N.Y. Feb. 10, 2000) (applying § 1981 to plaintiff of Indian ancestry); Adames v. Mitsubishi Bank, 751 F.Supp. 1548, 1560 (E.D.N.Y.1990) (holding that § 1981 was appropriate as a basis of a claim by non-Japanese employees of a Japanese corporation).

The same is true here. Defendants do not contest that plaintiffs have adequately alleged facts that, if proved, would demonstrate that they have been subjected to discrimination. Instead, they argue only that it should be inferred that the allegations of discrimination were based on their non-Japanese national origins, and not on race. It is up to the fact-finder, however, to decide what inferences should be drawn regarding the motives of those who engaged in discrimination. As defendants point out, the complaint makes no reference to preferential treatment being given to other Asian employees of Korean, Chinese or other non-Japanese Asian background, but neither does it contain any allegation suggesting that such non-Japanese Asian employees (if, indeed, there are any) are subjected to the same discriminatory

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treatment as non-Asian employees. If non-Asian employees are disfavored vis-à-vis Japanese/Asian employees, a reasonable fact-finder could conclude that the basis of the discrimination was racial or ethnic rather than simply based on place of origin. Plaintiffs, indeed, allege that such was the case. This allegation relating to the motivations of their employer's agents concerns a matter of fact. It must be taken as true for purposes of this motion, at least where the claim is not merely conclusory, but is backed by specific factual allegations that would permit a reasonable fact-finder to draw such an inference.1 Perhaps a jury will conclude that any discrimination suffered by plaintiffs was because they were American and Canadian, rather than Japanese, and not because of their white "race," but that is a matter for trial. The complaint clearly claims that the discrimination was based on race, and therefore states a claim under § 1981.

II. Retaliation

In Count II, plaintiffs claim that defendants retaliated against them for filing complaints about the discrimination they suffered. Defendants argue that plaintiffs fail to state a claim under § 1981. Once again, defendants do not argue that plaintiffs have failed to allege facts warranting a conclusion that they suffered adverse treatment and that such treatment was based on their complaints of discrimination. Rather, by parsing the complaint closely, defendants argue that plaintiffs allege only that they were targeted for complaining of unlawful conduct in general, and not specifically of racial discrimination. This motion will also be denied.

Defendants correctly state the governing legal principle. Because § 1981 is concerned only with discrimination on the basis of race, its implicit prohibition of retaliation against those who complain of discrimination is similarly limited to complaints of racial discrimination. "[T]o be actionable under § 1981, the retaliation must have been in response to the claimant's assertion of rights that were protected by § 1981." Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684, 693 (2d Cir.1998). A fortiori, retaliation for complaints of illegal conduct having nothing to do with employment discrimination does not violate § 1981.

It is true, moreover, that plaintiffs' complaint, which appears to have been drafted with a press release in mind, is filled with allegations of illegality and misfeasance of all sorts by Marubeni, and portrays the plaintiffs as whistle-blowers who were targeted

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for mistreatment because of their "repeated complaints of discrimination, financial fraud and malfeasance, criminal misconduct, violations [of] immigration laws, and other wrongdoing" at Marubeni. (Compl. ¶ 125.) Nevertheless, all that plaintiffs must do to state a claim under § 1981 is to allege that they were retaliated against for complaining of racial discrimination. Though the complaint here, in its eagerness to tar defendants with all sorts of accusations, recites a plethora of reasons why adverse actions were taken against plaintiffs, one of those reasons is clearly their charges of "discrimination." While the complaint could certainly be clearer on the point, the complaint is reasonably read to mean that the discrimination in question consisted of, or...

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32 practice notes
  • Conte v. Newsday Inc, 06-CV-4859 (JFB)(ETB).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • March 25, 2010
    ...statements is considerably broader than that for out-of-court reports relating to the proceeding.” Long v. Marubeni America Corp., 406 F.Supp.2d 285, 294 (S.D.N.Y.2005). Out-of-court statements reporting on judicial proceedings are governed by Section 74 of the New York Civil Rights Law, wh......
  • Aguirre v. Best Care Agency, Inc., 10–CV–5914 (MKB).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • August 16, 2013
    ...is considerably broader in scope than that for out-of-court reports relating to the proceedings.” Long v. Marubeni Am. Corp., 406 F.Supp.2d 285, 294 (S.D.N.Y.2005). The common law litigants' privilege does not cover out of court statements, such as those made in a press release or press con......
  • Thorsen ex rel. Sons of Norway, Inc. v. Sons Norway, 13–CV–2572 (PKC).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • May 14, 2014
    ...statement, causing a bond claim to be paid clearly is not the same as republishing a statement. See Long v. Marubeni Am. Corp., 406 F.Supp.2d 285 (S.D.N.Y.2005) (“[O]ne who republishes a defamatory statement [originally made by another] ‘adopts' it as his own and is liable in equal measure.......
  • Daytree at Cortland Square, Inc. v. Walsh, 15-CV-2298 (JFB) (AYS)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • August 15, 2018
    ...it could be reasonably understood as being based upon undisclosed facts justifying the opinion. See, e.g., Long v. Marubeni Am. Corp. , 406 F.Supp.2d 285, 296 (S.D.N.Y. 2005) ("The essential task is to decide whether the words complained of, considered in the context of the entire communica......
  • Request a trial to view additional results
29 cases
  • Thorsen ex rel. Sons of Norway, Inc. v. Sons Norway, No. 13–CV–2572 (PKC).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • May 14, 2014
    ...statement, causing a bond claim to be paid clearly is not the same as republishing a statement. See Long v. Marubeni Am. Corp., 406 F.Supp.2d 285 (S.D.N.Y.2005) (“[O]ne who republishes a defamatory statement [originally made by another] ‘adopts' it as his own and is liable in equal measure.......
  • Daytree at Cortland Square, Inc. v. Walsh, No. 15-CV-2298 (JFB) (AYS)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • August 15, 2018
    ...it could be reasonably understood as being based upon undisclosed facts justifying the opinion. See, e.g., Long v. Marubeni Am. Corp. , 406 F.Supp.2d 285, 296 (S.D.N.Y. 2005) ("The essential task is to decide whether the words complained of, considered in the context of the entire communica......
  • Aguirre v. Best Care Agency, Inc., No. 10–CV–5914 (MKB).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • August 16, 2013
    ...is considerably broader in scope than that for out-of-court reports relating to the proceedings.” Long v. Marubeni Am. Corp., 406 F.Supp.2d 285, 294 (S.D.N.Y.2005). The common law litigants' privilege does not cover out of court statements, such as those made in a press release or press con......
  • Conte v. Newsday Inc, No. 06-CV-4859 (JFB)(ETB).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • March 25, 2010
    ...statements is considerably broader than that for out-of-court reports relating to the proceeding.” Long v. Marubeni America Corp., 406 F.Supp.2d 285, 294 (S.D.N.Y.2005). Out-of-court statements reporting on judicial proceedings are governed by Section 74 of the New York Civil Rights Law, wh......
  • Request a trial to view additional results

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