Dipinto v. Westchester Cnty.

PHILLIP DIPINTO, Plaintiff, v. WESTCHESTER COUNTY, et al., Defendants.

18-CV-00793 (PMH)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

October 19, 2020

MEMORANDUM OPINION AND ORDER

PHILIP M. HALPERN, United States District Judge:

Plaintiff Phillip Dipinto ("Plaintiff") brings this action against Westchester County ("County"), Thomas Lauro ("Lauro"), and Jeffrey Bryant ("Bryant" and collectively "Defendants") alleging generally that he was discriminated against—and his constitutional rights were violated—while serving as a County employee in 2016.

Plaintiff filed his Complaint on January 29, 2018. (Doc. 1). Plaintiff filed his First Amended Complaint ("FAC") with leave of the Court on July 7, 2018. (Doc. 21, "FAC"). The FAC pressed the following five (5) claims for relief: (1) discrimination, in violation of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101 et seq., against the County (id. ¶¶ 116-21); (2) retaliation, in violation of the ADA, against the County (id. ¶¶ 122-25); (3) discrimination, in violation of the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law §§ 296 et seq., against all Defendants (id. ¶¶ 126-29); (4) retaliation, in violation of the NYSHRL, against all Defendants (id. ¶¶ 130-32); and (5) aiding and abetting, in violation of the NYSHRL, against all Defendants (id. ¶¶ 133-35). On February 19, 2019, Defendants moved to dismiss the FAC for failure to state a claim upon which relief could be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). (See Docs. 52-54). That motion was fully briefed on March 25, 2019. (See Docs. 55-56).

On August 30, 2019, Judge Karas issued an Opinion & Order dated August 29, 2019 ("Prior Order") granting without prejudice Defendants' motion to dismiss with respect to the second and fourth claims alleged in the FAC (those alleging retaliation in violation of the ADA and NYSHRL). (Doc. 60, "Prior Ord.").¹ Judge Karas instructed that: (1) Plaintiff could "file a second amended complaint with the Court within 30 days of the date of this Opinion;" and (2) "Plaintiff shall complete service on Lauro within 30 days of the date of this Opinion, or he will be dismissed from this case." (Id. at 23). Plaintiff filed his Second Amended Complaint ("SAC") on September 17, 2019. (Doc. 61, "SAC").

The SAC presents nine (9) separate claims for relief: (1) ADA discrimination against the County (id. ¶¶ 133-38); (2) ADA retaliation against the County (id. ¶¶ 139-42); (3) ADA hostile work environment against the County² (id. ¶¶ 143-48); (4) NYSHRL discrimination against all Defendants (id. ¶¶ 149-52); (5) NYSHRL retaliation against all Defendants (id. ¶¶ 153-55); (6) NYSHRL hostile work environment against all Defendants (id. ¶¶ 156-61); (7) NYSHRL aiding and abetting against all Defendants (id. ¶¶ 162-64); (8) discrimination and due process under 42 U.S.C. § 1983 against all Defendants (id. ¶¶ 165-78); and (9) hostile work environment under 42 U.S.C. § 1983 against all Defendants (id. ¶¶ 179-92). Approximately three months later, on December 4, 2019, Defendants moved to dismiss the SAC under Federal Rule of Civil Procedure12(b)(6). (Doc. 75; Doc. 77, "Def. Br.").³ Plaintiff opposed Defendants' motion on February 12, 2020 (Doc. 80, "Opp'n. Br.") and the motion was fully briefed with the filing of Defendants' reply on March 16, 2020 (Doc. 83, "Reply Br."). On April 16, 2020, this matter was reassigned to me.

For the reasons set forth below, Defendants' motion to dismiss is GRANTED in part.

BACKGROUND

While the FAC consisted of one hundred thirty-five (135) paragraphs and pressed five (5) claims for relief over twenty-one (21) pages, the SAC presents one hundred ninety-two (192) paragraphs and asserts nine (9) claims for relief over twenty-nine (29) pages. (Compare FAC, with SAC). The Court assumes the parties' familiarity with the principal allegations as laid out in the Prior Order (see Prior Ord. at 2-5), addresses the County's arguments seriatim, infra, and incorporates the SAC's new factual allegations where appropriate.

STANDARD OF REVIEW

A Rule 12(b)(6) motion enables a court to dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that isplausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). "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. (citing Twombly, 550 U.S. at 556). The factual allegations pled "must be enough to raise a right to relief above the speculative level . . . ." Twombly, 550 U.S. at 555.

"When there are well-ple[d] factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Iqbal, 556 U.S. at 679. Thus, the Court must "take all well-ple[d] factual allegations as true, and all reasonable inferences are drawn and viewed in a light most favorable to the plaintiff[]." Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996). However, the presumption of truth "'is inapplicable to legal conclusions,' and '[t]hreadbare recitals of the elements of the cause of action, supported by mere conclusory statements, do not suffice.'" Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting Iqbal, 556 U.S. at 678 (alteration in original)). Therefore, a plaintiff must provide "more than labels and conclusions" to show entitlement to relief. Twombly, 550 U.S. at 555.

ANALYSIS

I. Plaintiff's Failure to Serve Lauro in Compliance with the Prior Order

The Court turns first to Plaintiff's compliance with the Court's direction that he "complete service on Lauro within 30 days of the date of this Opinion, or he will be dismissed from the case." (Prior Ord. at 2 n.1 (citing Rutherford v. Fla. Union Free Sch. Dist., No. 16-CV-9778, 2019 WL 1437823, at *20 (S.D.N.Y. Mar. 29, 2019)), 23). Based upon the information set forth in the docket sheet, as Plaintiff has not complied with this directive, Lauro is dismissed from this case.

"The lawful exercise of personal jurisdiction by a federal court requires" among other things, that "the plaintiff's service of process upon the defendant must have been procedurally proper." Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 673 F.3d 50, 59 (2d Cir. 2012). The Federal Rules of Civil Procedure instruct in pertinent part:

If a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.

Fed. R. Civ. P. 4(m). This action was filed in January 2018 and Plaintiff's time to serve Lauro was extended into September 2019, over a year and a half later. (Prior Ord. at 2 n.1, 23). Yet, while an amended summons was issued on September 18, 2019 (Doc. 63), Plaintiff has not filed proof of service, has not requested an extension of time to serve Lauro, and Defendants suggest—in passing and in reply—that service was never effectuated (see Reply Br. at 8 ("Plaintiff's continued failure to serve Lauro . . . .")). Despite the Court's direction and the fundamental principle that "[t]he burden of proving jurisdiction is on the party asserting it," Robinson v. Overseas Mil. Sales Corp., 21 F.3d 502, 507 (2d Cir. 1994), Plaintiff provides no reason to believe that Lauro was served in accordance with the Prior Order's directive. As such, Lauro is dismissed from this proceeding.⁴

II. The NYSHRL Claims (Claims 4-7) Are Not Barred by Collateral Estoppel

Defendants' first argument concerning the SAC is that Plaintiff's state law claims are barred by collateral estoppel. (Def. Br. at 4-6). The Prior Order observed that "Plaintiff's claims brought pursuant to New York law are subject to application of traditional collateral estoppel principles." (Prior Ord. at 11). Noting that Defendants' argument on this point ran "less than a single paragraph" and did "not meaningfully apply the collateral estoppel case law to the facts of this case," Judge Karas "decline[d], at this stage, to consider whether Plaintiff's claims brought pursuant to New York law are precluded by collateral estoppel." (Id.). While Defendants' argument on this point is more robust in the present briefing, the crux of the argument remains unchanged: collateral estoppel precludes Plaintiff's claims because "Plaintiff has raised the same issues of discrimination and retaliation that were already necessarily decided by the" Workers' Compensation Board. (Def. Br. at 5; see also Doc. 54 at 4-5; Doc. 56 at 4-5). As the Prior Order noted, "[U]nder New York Law, even in cases where all of the elements of collateral estoppel have been satisfied, it lies within the discretion of the trial court whether to apply the doctrine of collateral estoppel, and the doctrine need not be applied even if all of the prerequisites to the doctrine have been met." (Prior Ord. at 11 (quoting Sloth v. Constellation Brands, Inc., 924 F. Supp. 2d 461, 471 (W.D.N.Y. 2013) (alteration in original)). As Defendants offer no reason to disturb the previous ruling on this argument, the Court will exercise the discretion permitted under New York law and deny the motion to dismiss based on a theory of collateral estoppel.⁵ Defendants may raise this argument again at a later stage on a more fulsome record. (Id. at 11-12).

III. A...