Burton v. White Glove Placement, Inc. et al

Filing 10

MEMORANDUM AND ORDER, Since pltff has not opposed the pre-motion conference request, White Glove's request for permission to move to dismiss is granted. Accordingly, it is hereby ORDERED: That, although this Court construes pltff's complain t as naming six defts - namely, White Glove, Friedman, and four defts - the employment discrimination claims against deft Friedman were already dismissed with prejudice in Burton v. White Glove Placement Inc., #11-cv-1649 (SLT)(LB), slip op. at 5 (ED NY Apr. 27, 2011), and cannot be re-litigated in this action. That pltff's complaint does not identify the Doe defts with the particularity necessary to enable the Marshals to serve them. That on or before 12/1/11, White Glove's counsel sha ll advise this Court in writing if counsel is 1) able to identify one or more of the Doe defts based on the allegation in pltff's complaint, 2) has been authorized to represent those individuals and to waive service on their behalf, and 3) wishe s to appear on their behalf in this action. That on or before 12/2/11, White Glove's counsel shall serve the motion to dismiss on pltff by mailing a copy of the motion papers, along with the Notice to Pro Se Litigant required by Local Civil Rule 12.1, to pltff on or before 12/2/11. While White Glove's counsel can elect to raise any of the grounds identified in the pre-motion conference request, the motion can only seek relief on behalf of those parties for which counsel has filed a Not ice of Appearance or otherwise appeared. That on or before 1/6/12, pltff shall serve her response to the motion to dismiss on White Glove's counsel by mailing a copy to Nicole Q. Saldana at Jackson Lewis's Manhattan Office, 666 Third Avenue , New York, New York, 10017. That White Glove's counsel shall have until 1/20/12, in which to serve a reply, if any, on pltff and to electronically file all motion papers with this Court. (Ordered by Judge Sandra L. Townes on 11/4/2011) c/m (Galeano, Sonia)

FILED

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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ANN BURTON,

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BROOKLvtJ cr:: -

Plaintiff,
-against-

MEMORANDUM AND ORDER
11-CV-4072 (SLT) (LB)

WHITE GLOVE PLACEMENT, INC.,
Defendant.

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TOWNES, United States District Judge:
On April I, 2011, plaintiff Ann Burton, proceeding prose, commenced a Title VII action

-Burton v. White Glove Placement Inc., E.D.N.Y. Docket No. 11-CV-1649 (SLT)(LB)- against
her former employer, defendant White Glove Placement, Inc. ("White Glove"), and Faigy
Friedman, an individual affiliated with White Glove, principally alleging that defendants
discriminated against her on the basis of her race, color, age and national origin. In a
Memorandum and Order dated April27, 2011, this Court dismissed plaintiff's Title VII claims
against defendant Friedman, advising plaintiff- for the second time- that "Title VII claims can
only be brought against the plaintiff's employer." Burton v. White Glove Placement Inc., No. 11CV-1649 (SLD(LB), slip op. at 5 (E.D.N.Y. Apr. 27, 2011). 1 However, the Court granted
plaintiff leave to amend her Title VII claim against defendant White Glove so that plaintiff could,
among other things, demonstrate that she had exhausted her administrative remedies by filing a
charge of discrimination with the EEOC against White Glove. When plaintiff responded to the
Court's Memorandum and Order by conceding that she had not filed a charge of discrimination
with the Equal Employment Opportunity Commission ("EEOC") until May 5, 20 II, and had not

1

This Court had previously apprised plaintiff of this fact less than four months earlier in a
Memorandum and Order issued in another case filed by plaintiff. See Burton v. Shinseld, No. 10CV-5318 (SLT)(LB), slip op. at 7 (E.D.N.Y. Jan. 24, 2011).

yet received a right-to-sue letter, this Court dismissed the action without prejudice for failure to
exhaust administrative remedies. See Burton v. White Glove Placement Inc., No. 11-CV -1649
(SLT)(LB), slip op. at 4 (E.D.N.Y. June 17, 2011).
In early August 2010, plaintiff commenced this action against White Glove, alleging
violations of Title VII, the Americans with Disabilities Act ("ADA"), and the Age
Discrimination in Employment Act ("ADEA"). In an order dated August 30, 2011, Magistrate
Judge Lois Bloom, noting that plaintiff had received a right-to-sue letter dated July 15, 2011,
granted plaintiffs application to proceed in forma pauperis and directed the United States
Marshals Service to serve a summons and complaint on White Glove. Although the body of
plaintiffs complaint named Friedman and four "Doe" defendants as defendants, Judge Bloom
did not direct service on these individuals. Rather, she construed the complaint as naming White
Glove as "the defendant" and stated in a footnote:
Although not mentioned in the caption, plaintiff names five
individuals employed by White Glove, Faigy Friedman (named and
dismissed in Burton v. White Glove Placement, Inc., 11-CV -1649
(SLD(LB)) aod four "Doe" defendaots in the text of her complaint.
Plaintiff is reminded that Title VII does not provide for individual
liability, Tomka v. Seiler Corp., 66 F. 3d 1295, 1313 (2d Cir.
1995), and therefore the individual defendants she has named are
not proper defendants in this action.

Burton v. White Glove Placement, Inc., No. 11-CV -4072 (SLT)(LB), slip op. at I, n. 1 (E.D.N. Y.
Aug. 30, 2011).
On September 28,2011, this Court received a document dated September 26,2011, and
entitled, "Objection to MJ Orders, Dismissals, and Precedence." This submission did not relate
solely to this case, but to all of the actions which plaintiff had filed with this Court. The
submission did not object to any particular ruling. Rather, it noted that plaintiff"did not consent

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to proceed before a MJ for all purposes" and purported to "object to any and all dismissals,
orders and precedence by a MJ, especially unsubstantiated by law."
On September 28, 2011, an attorney appeared as counsel for White Glove in this action.
The very next day, the attorney filed a pre-motion conference request, seeking permission to
move to dismiss on behalfof"Defendants." The pre-motion conference request did not
specifically identify the "Defendants" whom the attorney purports to represent, but characterized
this action as alleging "that White Glove, as well as five individually named Defendants (Faigy
Friedman and four "Does") discriminated against [plaintiff] .... " Letter to Hon. Sandra L.
Townes from Nicole Q. Saldana, Esq., dated Sept. 29,2011, at 1. The pre-motion conference
request then listed several grounds for the proposed motion to dismiss, the second of which read:
[l]t is well settled that individuals are not subject to liability under
Title VII, the ADA or the ADEA and Plaintiffs claims against the
individual defendants should be dismissed.

!d. (citing Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995)). Plaintiff has not
responded to the pre-motion conference request.

DISCUSSION
As a preliminary matter, this Court must determine how to characterize plaintiffs
submission dated September 26, 2011, Rule 72(a) of the Federal Rules of Civil Procedure
provides a procedure by which parties can object to a magistrate judge's orders. However, that
procedure requires the objection be filed within 14 days of service of the order, and that the
objection identify specific defects in the order. "A party may not assign as error a defect in the
order not timely objected to." Fed. R. Civ. P. 72(a).
Although plaintiffs submission dated September 26, 2011, is entitled, "Objection to MJ

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Orders, Dismissals, and Precedence," it does not identify any particular order, much less a
specific defect in an order. Moreover, the submission was not drafted until 26 days after Judge
Bloom's August 30,2011, order was mailed to plaintiff. Accordingly, this Court does not
construe plaintiffs submission dated September26, 2011, as constituting an objection to Judge
Bloom's August 30,2011, order.
Even if this Court were to construe plaintiffs submission as an objection, it would not
find that Judge Bloom erred in directing that the Marshals serve only White Glove. First,
although this Court finds that plaintiffs complaint, liberally construed, seeks to name six
defendants- White Glove, Friedman, and the four "Does"- it also finds that Judge Bloom was
entirely correct in noting that the employment discrimination claims against Friedman had been
dismissed with prejudice in the prior action. See Burton v. White Glove Placement Inc., No. 11CV -1649 (SLT)(LB), slip op. at 5 (E.D.N.Y. Apr. 27, 2011). Accordingly, plaintiff cannot renew
the employment discrimination claims against Friedman in this action.
Second, although plaintiffs complaint implies that the Doe defendants are affiliated with
White Glove, these individuals are not identified with the particularity necessary to enable the
Marshals to serve them. However, this Court notes that the pre-motion conference requestfiled by an attorney who has appeared solely on behalf of White Glove- seeks permission to
move to dismiss on behalf of multiple "Defendants," and to dismiss the claims against
unspecified individuals. If White Glove's attorney is able to identify one or more of the Doe
defendants based on the allegation in plaintiffs complaint, has been authorized to represent those
individuals and to waive service on their behalf. and wishes to appear on their behalf in this
action, the attorney shall make all these facts apparent in filings with this Court on or before
December 1, 2011. Otherwise, this Court will assume that White Glove's attorney does not

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represent any of the individual defendants, and that the pre-motion conference request seeks
permission to move to dismiss only the claims against White Glove.
Since plaintiff has not opposed the pre-motion conference request, White Glove's request
for permission to move to dismiss is granted. Accordingly, it is hereby ORDERED:

I.

That, although this Court construes plaintiffs complaint as naming six defendants
-namely, White Glove, Friedman, and four Doe defendants~ the employment
discrimination claims against defendant Friedman were already dismissed with
prejudice in Burton v. White Glove Placement Inc., No. 11-CV -1649 (SLT)(LB),
slip op. at 5 (E.D.N.Y. Apr. 27, 2011), and cannot be re-litigated in this action;

2.

That plaintiffs complaint does not identify the Doe defendants with the
particularity necessary to enable the Marshals to serve them;

3.

That on or before December 1, 2011, White Glove's counsel shall advise this
Court in writing if counsel is 1) able to identify one or more of the Doe defendants
based on the allegation in plaintiffs complaint, 2) has been authorized to
represent those individuals and to waive service on their behalf, and 3) wishes to
appear on their behalf in this action;

4.

That on or before December 2, 2011, White Glove's counsel shall serve the
motion to dismiss on plaintiff by mailing a copy of the motion papers, along with
the Notice to Pro Se Litigant required by Local Civil Rule 12.1, to plaintiff on or
before December 2, 2011. While White Glove's counsel can elect to raise any of
the grounds identified in the pre-motion conference request, the motion can only
seek relief on behalf of those parties for which counsel has filed a Notice of
Appearance or otherwise appeared;

5.

That on or before January 6, 2012, plaintiff shall serve her response to the motion
to dismiss on White Glove's counsel by mailing a copy to Nicole Q. Saldana at
Jackson Lewis's Manhattan office, 666Third Avenue, New York, New York
10017;and

6.

That White Glove's counsel shall have until January 20, 2012, in which to serve a
reply, if any, on plaintiff and to electronically file all motion papers with this
Court.
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SO ORDERED.

SANDRA L. TOWNES
United States District Judge
Dated: November 4, 2011
Brooklyn, New York

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