Regis-Dumeus v. Great Lakes Kraut Co.
| Decision Date | 26 May 2020 |
| Docket Number | 19-CV-6352L |
| Parties | Jocelyne REGIS-DUMEUS and Paul Exantus, Adminsitrators of the Estate of Jonathan Michael Dumeus, and Jocelyne Regis-Dumeus, Personally, Plaintiffs, v. GREAT LAKES KRAUT COMPANY, LLC, GLK Foods LLC, and GLK, LLC, Defendants. |
| Court | U.S. District Court — Western District of New York |
Marjory Cajoux, The Law Offices of Marjory Cajoux, Attorney at Law, Brooklyn, NY, Annick Tchokonte Kamga Koloko, Buffalo, NY, for Plaintiffs.
Betsy F. Visco, Law Offices of John Wallace, Buffalo, NY, for Defendants.
DECISION AND ORDER
Plaintiffs, administrators of the estate of Jonathan Michel Dumeus ("Dumeus"), and Dumeus's widow Jocelyne Regis-Dumeus, in her personal capacity, bring this action for wrongful death and personal injury against Great Lakes Kraut Company, LLC, GLK Foods, LLC ("GLK Foods"), and GLK, LLC (collectively "defendants"). Defendants now move (Dkt. #13) to dismiss the Complaint pursuant to Fed. R. Civ. Proc. 12(b)(6), and for an award of sanctions and fees pursuant to Fed. R. Civ. Proc. 11 and 28 U.S.C. § 1927. For the reasons that follow, that motion is denied.
This matter arises out of Dumeus's death on December 16, 2011 at a sauerkraut production plant owned and operated by GLK Foods in Shortsville, NY. During an operation to move a vacuum hose into an open vat of sauerkraut in a packaging area, Dumeus jumped into the vat. A supervisor told Dumeus to exit the vat, but before he could do so, Dumeus collapsed and fell unconscious. Coworkers pulled him from the vat and a manager performed CPR, but Dumeus was unable to be resuscitated, and was later pronounced dead. An autopsy identified the cause of death as cardio-respiratory failure secondary to coronary artery disease
and hemorrhagic pneumonia.
Plaintiffs thereafter commenced an action in Ontario County Supreme Court against the defendants ("Ontario County action"), asserting causes of action including negligence, premises liability, wrongful death and conscious pain and suffering, breach of warranty, and violation of New York Labor Law. (Dkt. #13-9). The Ontario County action proceeded through the discovery phase.
Defendants ultimately filed motions to dismiss the Ontario County action, on the grounds of failure to prosecute and lack of standing, based on plaintiffs’ failure to secure Letters of Administration authorizing them to act on behalf of the Dumeus estate. Those motions were granted by the Ontario County Supreme Court by Decision and Order dated October 30, 2018 and entered November 8, 2018, dismissing the action with prejudice. (Dkt. #13-20). Plaintiffs filed a Notice of Appeal with the New York State Appellate Division, Fourth Department. The Appeal was dismissed for failure to perfect on June 6, 2019, without prejudice to the filing of a motion to vacate. (Dkt. #13-23). Plaintiffs took no subsequent action to vacate the dismissal of the appeal.
In the meantime, plaintiffs commenced the instant action on May 13, 2019. (Dkt. #1). As defendants note, the instant Complaint is virtually identical to the plaintiff's original complaint, except that it more specifically alleges violations of Occupational Safety and Health Administration ("OSHA") regulations. Given the substantial similarity between the two actions, defendants wrote to plaintiffs’ counsel on July 24, 2019, requesting that the federal action be discontinued, as it was barred by lack of standing, res judicata and collateral estoppel and was therefore "improper, frivolous and without merit." Defendants warned that if plaintiffs continued the action, defendants would pursue an award of sanctions. (Dkt. #13-25). Plaintiffs did not respond. The instant motion followed.
In deciding a motion to dismiss under Fed. R. Civ. Proc. 12(b)(6) for failure to state a cause of action, a court should "draw all reasonable inferences in [plaintiff's] favor, assume all well-pleaded factual allegations to be true, and determine whether they plausibly give rise to an entitlement to relief." Faber v. Metro. Life Ins. Co. , 648 F.3d 98, 104 (2d Cir. 2011) (internal quotation marks omitted). In evaluating a motion to dismiss, the Court's consideration is generally limited to the pleadings, and to any documents attached or incorporated therein by reference. See Baird v. Kingsboro Psychiatric Ctr. , 2013 WL 5774288 at *7-8, 2013 U.S. Dist. LEXIS 153701 at *6-*7 (E.D.N.Y. 2013).
For reasons that are not entirely clear, defendants have supported their motion to dismiss under Fed. R. Civ. Proc. 12(b)(6) with a Statement of Undisputed Facts pursuant to Fed. R. Civ. Proc. 56 (Dkt. #13-1). While the consideration of matters outside the pleadings is inappropriate on a motion to dismiss under Fed. R. Civ. Proc. 12(b)(6), to the extent that the Statement of Undisputed Facts attaches filings and decisions from the prior state adjudication, the Court may appropriately take judicial notice of those documents without converting the instant motion to one for summary judgment. See Blue Tree Hotels Inv. (Canada), Ltd. v. Starwood Hotels & Resorts Worldwide, Inc. , 369 F.3d 212, 217 (2d Cir. 2004) ; Rountree v. US Bank NA , 2017 WL 31405 at *1, 2017 U.S. Dist. LEXIS 307 at *3 (S.D.N.Y. 2017) ; Johnson v. Pugh , 2013 WL 3013661 at *2, 2013 U.S. Dist. LEXIS 85699 at *5 (E.D.N.Y. 2013) ; Vandever v. Murphy , 2012 U.S. Dist. LEXIS 126076 at *12 n.2 (D. Conn. 2012).
The decedent, Dumeus, died December 16, 2011. This action alleging wrongful death, negligence, violations of New York State Labor and breach of warranty, was commenced May 15, 2019 – seven years and five months later. The relevant statutes of limitations in New York range from two years (e.g., for wrongful death claims) to six years (e.g., for New York State Labor Law claims). Defendants argue that plaintiffs’ claims are thus untimely, and must be dismissed.
Plaintiffs, however, contend that their claims are timely under the equitable tolling provisions of N.Y. CPLR § 205(a), which provides that where an action:
is terminated in any other manner than by ... dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff ... may commence a new action upon the same transaction or occurrence ... within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period.
In diversity cases such as this one, "state statutes of limitations govern the timeliness of state law claims, and state law determines the related questions of what events serve to commence an action and to toll the statutes of limitations." Diffley v. Allied-Signal, Inc. , 921 F.2d 421, 423 (2d Cir. 1990) (internal quotation marks and citation omitted). Thus, "if New York's courts would apply [ CPLR 205(a) ] to [a] case, then [the federal court] also [is] bound to apply it." Id. at 424.
CPLR § 205(a) permits commencement of a new action within six months after termination of the original action, only where the prior action was not dismissed for, inter alia, "neglect to prosecute." N.Y. CPLR § 205(a). Here, as defendants point out, the Ontario County action was dismissed with prejudice for failure to prosecute, by Decision and Order entered October 30, 2018. (Dkt. #13-20).
Unfortunately for defendants, neither CPLR § 205(a) nor the Court's analysis ends there concerning dismissals for failure to prosecute. In 2008, CPLR § 205 was amended, to "take effect immediately," to further require that where, as here, "a dismissal is one for neglect to prosecute the action made pursuant to rule thirty-two hundred sixteen of this chapter or otherwise, the judge shall set forth on the record the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation." N.Y. CPLR § 205(a). See Marrero v. Nails , 114 A.D.3d 101, 111, 978 N.Y.S.2d 257 (N.Y. App. Div. 2d Dep't 2013) (). Failure to make the requisite record by setting forth the specific conduct that demonstrates a general pattern of delay, "allows a plaintiff to re-commence the action utilizing CPLR § 205(a) ’s tolling provision even if the prior dismissal was based upon neglect to prosecute. " 21st Mtge. Corp. v. Rodriguez-Cardona , 15 N.Y. Misc. LEXIS 571 at *3 (N.Y. Sup. Ct. 2015) (emphasis added). See also Webb v. Greater NY Automobile Dealers Assn. , 123 A.D.3d 1111, 1 N.Y.S.3d 212 (N.Y. App. Div. 2d Dep't 2014).
The Ontario County Court made no such record here. Its Decision and Order stated only that upon review of the parties’ submissions, "[d]efendants’ Motion to Dismiss the action pursuant to CPLR 3216 for failure to prosecute and comply with a Demand to File a Note of Issue is granted with prejudice." (Dkt. #13-20 at 5). The court made no recitation of facts, and made no findings, that would demonstrate a "general pattern of delay" in proceeding with the litigation. Indeed, the plaintiffs had vigorously opposed the motion to dismiss the Ontario County action, contending that they had not been dilatory in pursuing the action or working to attain Letters of Administration to establish their standing, that discovery had been ongoing throughout the case, and that their time to file a Note of Issue had been tolled by the timely filing of a motion for an extension of time to do so. (Dkt. #13-19).
The Ontario County Supreme Court's analysis of these arguments, its factual findings concerning alleged delays, and its ultimate basis for granting the motion to dismiss for matter for failure to prosecute, were not set forth in its decision or otherwise made a part of the record. "Absent such record indicating a general pattern of delay, this court...
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