Singh v. N.Y. State Dep't of Taxation & Fin.
| Decision Date | 28 July 2011 |
| Docket Number | 06-CV-00299C(F) |
| Parties | DEEKSHA K. SINGH, Plaintiff, v. NEW YORK STATE DEPARTMENT OF TAXATION & FINANCE, INTERNAL REVENUE SERVICE, ERIE COMMUNITY COLLEGE, MR. LOUIS J. CERCONE, JR., BRISBANE CONSULTING GROUP, LLC, MS. EVELYNE O'SULLIVAN, MR. AJIT SINGH, COUNTY OF ERIE, MR. WILLIAM D. REUTER, MS. CONSTANCE MARCUS, MS. JACQUELINE BOGDAN, and LARRY S. STOLZENBURG, Defendants. |
| Court | U.S. District Court — Western District of New York |
DECISION and ORDER
REPORT and RECOMMENDATION1
APPEARANCES:
DEEKSHA K. SINGH, Pro Se
Erie County, and Reuter
ADAM W. PERRY, and
JOSHUA FEINSTEIN, of Counsel
JEREMY A. COLBY
ERIE COUNTY ATTORNEY
Attorney for Defendants Erie Community College and
County of Erie
DAVID J. SLEIGHT
Assistant Erie County Attorney, of Counsel
Erie County Department of Law
JAECKLE FLEISCHMANN & MUGEL LLP
Attorneys for Defendants Erie Community College
and Reuter
MARISSA A. COHELEY, of Counsel
DAMON MOREY LLP
Attorneys for Defendants Cercone and
Brisbane Consulting Group, LLC
BERNARD SCHENKLER, of Counsel
WATSON BENNETT COLLIGAN JOHNSON &
SCHECHTER LLP
Attorneys for Defendant Singh
MELISSA ANN DAY, of Counsel
Buffalo, New York 14202
CONNORS & VILARDO, LLP
Attorneys for Defendant Bogdan
MEGHAN A. BROWN, of Counsel
AMIGONE, SANCHEZ, MATTREY & MARSHALL, LLP
Attorneys for Defendant Stolzenburg
B.P. OLIVERIO, of Counsel
This action was referred to the undersigned by Honorable John T. Curtin on March 2, 2011 for all pre-trial matters. The matter is presently before the court on motions to dismiss filed by Defendants New York State Department of Taxation & Finance and Marcus on December 7, 2010 (Doc. No. 52), Defendants Brisbane Consulting Group, LLC and Cercone on December 9, 2010 (Doc. No. 53), Defendant Bogdan2 on December 30, 2010 (Doc. No. 59), Defendant Internal Revenue Service on February 28, 2011 (Doc. No. 74), and Defendant Singh on March 9, 2011 (Doc. No. 82), and on Plaintiff's motion to file a second amended complain, filed on February 18,2011 (Doc. No. 73).
Plaintiff Deeksha K. Singh ("Plaintiff"), filed a complaint (Doc. No. 1) ("Complaint"), commencing this civil rights action on May 9, 2006, alleging employment discrimination Defendants New York State Department of Taxation & Finance ("NYSDOTF"), New York State Department of Civil Service ("NYSDCS"), and New York State Office of State Comptroller ("NYS Comptroller's Office"), discriminated against Plaintiff in connection with Plaintiff's employment with NYSDOTF, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e etseq. In particular, Plaintiff, on six unnumbered pages of factual allegations, not separately enumerated, alleged discrimination based on her sex (female), and national origin (India), resulting in harassment, unequal terms and conditions of employment, retaliation for complaining about such discrimination and harassment, and constructive termination of Plaintiff's employment with the NYSDOTF. Complaint ¶¶ 13 and 14. Alleging that other NYSDOTF employees suffered similar employment discrimination, Plaintiff requested the case be considered a class action. Id. ¶ 19.
By order filed September 20, 2007 (Doc. No. 14), District Judge Curtin, pursuant to Fed.R.Civ.P. 12(b)(6), dismissed the action as against the NYSDCS and NYS Comptroller's Office, and denied Plaintiff's request to have the case considered as a class action. On September 4, 2008, Judge Curtin referred the matter to United States Magistrate Judge H. Kenneth Schroeder for all pretrial matters. (Doc. No. 31). On October 15, 2007, Anna Marie Richmond, Esq. ("Richmond"), was appointed asPlaintiff's counsel in this action. On December 18, 2007, Richmond moved to withdraw as Plaintiff's counsel. By Order filed February 7, 2008 (Doc. No. 22), Judge Curtin granted Richmond's motion. Plaintiff has since proceeded in this action pro se and has not requested assignment of counsel.
A Case Management Order signed by Judge Schroeder on February 22, 2010 (Doc. No. 38), established, inter alia, March 26, 2010, as the deadline for motions to amend the pleadings. On March 26, 2010, Plaintiff moved to file an amended complaint adding new parties and causes of action. (Doc. No. 40). Because no objections to Plaintiff's motion to file an amended complaint were filed, Judge Schroeder, by Text Order entered September 28, 2010 (Doc. No. 48), granted Plaintiff's motion to file an amended complaint. Accordingly, on October 25, 2010, Plaintiff filed the amended complaint (Doc. No. 49) ("Amended Complaint"), as well as a motion for a court order directing the U.S. Marshal to serve the Amended Complaint. (Doc. No. 50), and the motion was granted on November 4, 2010 (Doc. No. 51). All Defendants have since appeared in this action.
The Amended Complaint consists of 30 unnumbered single-space pages, with the factual allegations set forth in unnumbered paragraphs on pages 5 through 30, incorporates by reference the original complaint, Amended Complaint at 11, names several new defendants, including the Internal Revenue Service ("IRS"), Erie Community College ("ECC"), Louis J. Cercone, Jr. ("Cercone"), Brisbane Consulting Group, LLC ("Brisbane Consulting"), Evelyne O'Sullivan ("O'Sullivan"), Plaintiff's former husband Ajit Singh ("Defendant Singh"), the County of Erie ("Erie County"), William D. Reuter ("Reuter"), Constance Marcus ("Marcus"), and Jacqueline Bogdan ("Bogdan"),against whom a myriad of new claims are asserted, including violations of Plaintiff's federal civil rights, employment discrimination based on gender, marital status, parental status, religion, national origin, disability, and race, retaliation based on Plaintiff's exercise of legal rights, interference with Plaintiff's right to vote, the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. ("FMLA"), the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"), and numerous causes of action sounding in New York common law tort including personal injury, deprivation and interference with property rights, slander, injurious falsehood, and fraud. With few exceptions, the Amended Complaint largely fails to specify against which Defendant each claim is asserted.
On December 7, 2010, Defendants NYSDOTF and Marcus (together, "State Defendants"), filed a Notice of Motion to Dismiss; to Sever Claims and for a More Definite Statement (Doc. No. 52) ("State Defendants' Motion"), supported by the attached Memorandum of Law in Support of Motion to Dismiss for a More Definite Statement and to Sever Claims ("State Defendants' Memorandum"). On December 9, 2010, Defendants Brisbane Consulting and Cercone (together, "Brisbane Defendants"), filed a Notice of Motion to Dismiss Amended Complaint (Doc. No. 53) ("Brisbane Defendants' Motion"), supported by the attached Memorandum of Law in Support of Motion to Dismiss Amended Complaint (Doc. No. 53-1) ("Brisbane Defendants' Memorandum"), the Declaration of William F. Savino, Esq., in Support of Motion to Dismiss the Amended Complaint (Doc. No. 53-2) ("Savino Declaration"), and exhibits A through K (Doc. Nos. 53-3 - 53-20) ("Brisbane Defendants' Exhibits"). On December 30, 2010, Defendant Bogdan filed a motion to dismiss (Doc. No. 59) ("Bogdan's Motion"), supported by the attached Affidavit of Meghan M. Brown, Esq. ("BrownAffidavit").
On January 5, 2011, Defendants Erie County, ECC and Reuter (together, "County Defendants"), filed an answer to the Amended Complaint (Doc. No. 60). On January 25, 2011, County Defendants filed an amended answer to the Amended Complaint (Doc. No. 68). On February 8, 2011, Defendant Stolzenburg filed an answer to the Amended Complaint (Doc. No. 70).
On February 18, 2011, Plaintiff filed a motion seeking leave to file a second amended complaint (Doc. No. 73) ("Plaintiff's Motion"), supported by the attached Affidavit/Affirmation in Support of Motion ("Plaintiff's Affidavit").3 Also attached to Plaintiff's Motion is Plaintiff's Reply to Defendants' Motion to Dismiss, Cross-Motion for Leave to File Second Amended Complaint Joining Additional Defendants and Memorandum in Support (Doc. No. 73-1) ("Plaintiff's Memorandum").4
On February 28, 2011, the IRS filed a motion to dismiss the Amended Complaint (Doc. No. 74) ("IRS's Motion"), supported by the attached Affidavit of Assistant United States Attorney Jane B. Wolfe (Doc. No. 74-1) ("Wolfe Affidavit"), and exhibits A and B (Doc. Nos. 74-2 and 74-3) ("IRS Exh(s). __"). The IRS also filed on February 28, 2011, a Memorandum of Law in Support of the Defendant Internal Revenue Service's Motion to Dismiss Plaintiff's Amended Complaint (Doc. No. 75) ("IRS Memorandum").
On March 1, 2011, State Defendants filed a Memorandum of Law in Reply to Plaintiff's Response and in Further Support of the Defendants [sic] Motion to Dismiss for a More Definite Statement and to Sever Claims (Doc. No. 76) ("State Defendants' Reply"). On March 2, 2011, Brisbane Defendants filed a Reply Memorandum of Law on Behalf of Defendants Louis J. Cercone, Jr. and Brisbane Consulting Group, LLC (Doc. No. 77) ("Brisbane Defendants' Reply"). Bogdan filed on March 4, 2011 the Reply Affidavit of Meghan A. Brown in Support of Motion to Dismiss (Doc. No. 79) ("Brown Reply Affidavit").
On March 9, 2011, Defendant Singh filed a motion to dismiss (Doc. No. 82) ("Defendant Singh's Motion"), supported by the attached Affirmation of Melissa A. Day, Esq. in Support of Motion to Dismiss Plaintiff's Amended Complaint Pursuant to FRCP 12(b) ("Day Affirmation"), with attached exhibits A and B ("...
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