Azkour v. Haouzi et al
Filing
112
ORDER ADOPTING REPORT AND RECOMMENDATION adopting 105 Report and Recommendations; granting in part and denying in part 95 Motion to Dismiss filed by Frank Maucourt, Jessica Comperiati, Franck Macourt, Jean-Yves Haouzi, Little Rest Twelve, Inc. F or the foregoing reasons, the Court adopts the Report's recommendation that it grant in part and deny in part Defendants' motion to dismiss. Specifically, Defendants' motion is GRANTED as to Plaintiffs claims of discrimination under th e ADA and retaliation under the ADA and § 1981, but DENIED as to Plaintiffs claim of discrimination under § 1981. The Court, however, holds that it was error to disregard Plaintiffs notice of voluntarily dismissal. Accordingly, the Court fi nds that the following claims are dismissed without prejudice: all claims against the Taylor Defendants, as well as the claims against the LRT Defendants for violations of Title VII of the Civil Rights Act and the Age Discrimination in Employment Act ; conspiracy to violate Plaintiffs civil rights; defamation; intentional infliction of emotional distress; and violations of the New York State Human Rights Law. The Clerk of the Court is respectfully directed to close the motion pending at Doc. No. 95 and to terminate the Taylor Defendants as parties to this action. With respect to Plaintiffs surviving claim of discrimination under 42 U.S.C. § 1981, IT IS HEREBY ORDERED THAT the parties shall contact Judge Fox by August 21, 2013 for the purpose of setting a schedule for discovery. (Signed by Judge Richard J. Sullivan on 8/1/2013) Copies Sent By Chambers. (mro)
USDSSDNY
DOCUMENT
ELECTRONICALLY FILED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DOC#: ____------~DATE FILED:
HICHAM AZKOUR,
1>-'- C?
Plaintiff,
No. 11 Civ. 5780 (RJS) (KNF)
ORDER ADOPTING REPORT AND
RECOMMENDATION
-vJEAN-YVES HAOUZI, etal.,
Defendants.
RICHARD J. SULLIVAN, District Judge:
Hicharn Azkour ("Plaintiff"), proceeding pro se, brings this action against Jean-Yves
Haouzi, Jessica Comperiati, Frank Maucourt, and Little Rest Twelve, Inc. (the "LRT
Defendants"); and Sheldon Skip Taylor and the Law Offices of Sheldon Skip Taylor (the "Taylor
Defendants" and, with the LRT Defendants, "Defendants"), alleging, inter alia, violations of 42
U.S.C. § 1981 and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12111, et seq.
Now before the Court is the Report and Recommendation (the "Report") of the Honorable Kevin
Nathaniel Fox, Magistrate Judge, recommending that the Court grant in part and deny in part
Defendants' motion to dismiss Plaintiffs ADA and § 1981 claims. For the reasons set forth
below, the Court adopts the Report but gives effect to the notice of voluntary partial dismissal
filed by Plaintiff on November 5,2012.
I.
BACKGROUND
After initiating this action on August 8, 2011 (Doc. No.2), Plaintiff filed his Third
Amended Complaint ("TAC") on February 2, 2012 (Doc. No. 40).1 The TAC alleges fourteen
causes of action against Defendants for discrimination on the basis of race, national origin,
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In the intervening time. the Court referred this action to Judge Fox. (Doc. No.9.)
disability, and age; retaliation; conspiring to violate Plaintiffs civil rights; negligent failure to
prevent such a conspiracy; defamation; and intentional infliction of emotional distress.
On
November 5, 2012, Plaintiff filed a notice of voluntary dismissal pursuant to Federal Rule of
Ci vii Procedure 41 (a)( 1), dismissing all claims against the Taylor Defendants and purporting to
dismiss some but not all claims against the LRT Defendants. (Doc. No. 92.) On December 3,
2012, Defendants moved to dismiss the TAC. (Doc. No. 95.) On December 7, 2012, Plaintiff
filed a document styled as an "Opposition to Defendants' Motion to Dismiss & Plaintiffs
Memorandum of Law in Support of His Motion for Judgment on the Pleadings as to Defendants'
Liability & Monetary Damages.,,2 (Doc. No. 98.) Defendants did not file a reply.
Judge Fox issued the Report on June 28, 2013. (Doc. No. 105.) In the Report, Judge Fox
recommends that the Court (1) grant Defendants' motion to dismiss Plaintiffs claims of
discrimination under the ADA and retaliation under both the ADA and § 1981, and (2) deny
Defendants' motion with respect to Plaintiffs claim for race and national origin discrimination
under § 1981. In addition, Judge Fox made clear that he refused to give effect to Plaintiffs Rule
41(a) notice of voluntary dismissal because that filing violated his prior order barring the parties
from filing any motions without first making a written request for pennission to do so.
Acknowledging that Defendants evidently relied upon Plaintiffs Rule 41(a) notice in drafting
their motion, which addressed only those claims that Plaintiff did not purport to voluntarily
dismiss, Judge Fox observed that Defendants' motion was only a partial motion to dismiss.
On July 2, 2013, Defendants filed objections to Judge Fox's Report. (Doc. No. 106.)
They argue that because Rule 41 (a)(1) pennits a plaintiff to "dismiss an action without a court
order," Fed. R. Civ. P. 41(a)(1)(A) (emphasis added), Judge Fox should not have treated
2 Plaintiff has not in fact filed a motion for judgment on the pleadings, which would in any event be improper given
that the pleadings are not yet closed in this matter, see Fed. R. Civ. P. l2(c), and that Plaintiff did not secure Judge
Fox's permission to file such a motion, as Judge Fox had ordered (see Report at 4 n.2). Accordingly, the Court will
consider Plaintitrs filing only as an opposition to Defendants' motion to dismiss.
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Plaintiffs voluntary dismissal pursuant to Rule 41(a)(l) as a motion for which he had to obtain
permission prior to filing. In addition, Defendants contend that it was incorrect of Judge Fox to
find that Plaintiff had adequately stated a § 1981 discrimination claim because, at the time the
alleged discrimination occurred, Plaintiff had no active employment relationship with
Defendants.
On July 19, 2013, Plaintiff filed his objections to the Report. (Doc. No. 111.) Although
the bulk of Plaintiff s submission is actually dedicated to defending the Report against
Defendants' objections, Plaintiff takes issue with the Report's recommendation that the Court
dismiss his retaliation claims. Plaintiff argues, in conclusory fashion, that inasmuch as Judge
Fox found that Defendants' refusal to provide Plaintiff with a letter of reference supported a
claim of discrimination, he should have found that it supported claims of retaliation as well.
II.
LEGAL STANDARD
A court may accept, reject, or modify, in whole or in part, the findings or
recommendations made by a magistrate judge. Fed. R. Civ. P. 72(b); Grassia v. Scully, 892 F.2d
16, 19 (2d Cir. 1989). A court may accept those portions of a magistrate's report to which no
specific, written objection is made, as long as the factual and legal bases supporting the findings
are not clearly erroneous. See Greene v. WCI Holdings Corp., 956 F. Supp. 509, 513 (S.D.N.Y.
1997) (citing Fed. R. Civ. P. 72(b) and Thomas v. Arn, 474 U.S. 140, 149 (1985)). To the extent
that a party makes specific objections to a magistrate's findings, the court must undertake a de
novo review of the plaintiffs objections. See 28 U.S.C. § 636(b)(1); United States v. Male
Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). Pro se filings are read liberally and interpreted "to
raise the strongest arguments that they suggest." Pabon v. Wright, 459 F.3d 241, 248 (2d Cir.
2006) (internal quotation marks omitted).
However, where objections are "conclusory or
general," or where the plaintiff "simply reiterates his original arguments," the report should be
reviewed only for clear error. Walker v. Vaughan, 216 F. Supp. 2d 290, 292 (S.D.N.Y. 2002)
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(quoting Barratt v. Joie, No. 96 Civ. 0324 (LTS) (THK), 2002 WL 335014, at ... 1 (S.D.N.Y.
Mar. 4, 2002) (citations omitted)); accord Cartagena v. Connelly, No. 06 Civ. 2047 (LTS)
(GWG), 2008 WL 2169659, at ... 1 (S.D.N.Y. May 23, 2008).
III. DISCUSSION
A. § 1981 Discrimination
Defendants argue that Plaintiff cannot bring a claim for discrimination pursuant to 42
U.S.C. § 1981 because, at the time of the alleged discrimination, he no longer worked for
Defendants. It is well-established, however, that anti-discrimination statutes protect former as
well as current employees from "discrimination related to or arising out of an employment
relationship." Pantchenko v. C. B. Dolge Co., 581 F.2d 1052, 1055 (2d Cir. 1978) (interpreting
Title VII of the Civil Rights Act of 1964); see also Wanamaker v. Columbian Rope Co., 108
FJd 462, 466 (2d Cir. 1997) (holding that because terminated employees "have tangible future
employment objectives, they may state a claim for retaliation under the Age Discrimination in
Employment Act, "even though they are no longer employed by the defendant company, if, for
example, the company . . . wrongfully refuses to write a recommendation to prospective
employers"). Nothing about 42 U .S.C. § 1981 suggests its protections apply any differently.
The statute protects the equal right "to make and enforce contracts." 42 U.S.C. § 1981 (emphasis
added). Defendants would have the Court read the term "make" out of the statute by holding that
§ 1981 applies only to existing employment relationships - where the issue is not making a
contract but rather enforcing it.
The Court declines to do so.
Plaintiffs allegations that
Defendants interfered with his right to make a new employment contract by unlawfully denying
him a reference letter and by giving prospective employers negative reports therefore are
sufficient to state a claim for discrimination under § 1981. 3 Cf Wanamaker, 108 F.3d 462, 466
In any event, the Court also notes that allegations in the TAC support a plausible inference that Defendants
interfered with Plaintiffs efforts to enforce his prior employment contract by unlawfully denying his request for full
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(recognizing that a terminated employee "may have tangible future employment objectives" that
are entitled to protection against discrimination). Accordingly, having reviewed Defendants'
objection under the de novo standard, the Court finds that Judge Fox was correct to recommend
that Defendants' motion to dismiss this claim be denied.
B. Retaliation
Plaintiff objects to the Report's recommendation that the Court dismiss his claims for
retaliation under both § 1981 and the ADA. To establish a prima facie case of retaliation under
either statute, a plaintiff must show (1) that he participated in protected activity; (2) that the
defendant knew of the protected activity; (3) that defendant undertook an adverse employment
action against the plaintiff; and (4) a causal connection between the protected activity and the
adverse employment action. See Weixel v. Bd of Educ., 287 F.3d 138, 148 (2d Cir. 2002);
Callahan v. Consolo Edison Co. N.Y, Inc., 187 F. Supp. 2d 132, 138 (S.D.N.Y. 2002). In this
case, Judge Fox found that, although Plaintiff clearly engaged in protected activity by filing a
charge with the U.S. Equal Employment Opportunity Commission ("EEOC"), the TAC
contained no allegation "that would support a finding that the defendants in the instant action of
knew of the EEOC charge(s)." (Report at 14.)
Plaintiff's objections fail to identify any allegations or legal arguments that undermine
Judge Fox's analysis. Plaintiff simply asserts that Defendants' refusal to give him a reference
letter constitutes an act of retaliation. That is a legal conclusion and does not demonstrate, in any
way, how Plaintiff's claims of retaliation were sufficiently pled. Accordingly, the Court reviews
the Report for clear error and, finding none, adopts the Report's recommendation that Plaintiff's
claims of retaliation under § 1981 and the ADA must be dismissed.
backpay on the basis of his race. (See TAC ~~ 48-53.)
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C. Voluntary Dismissal
The parties devote considerable space in their respective objections to arguing over Judge
Fox's handling of the notice of voluntary dismissal Plaintiff filed on November 5, 2012. In brief,
Defendants argue that, given the posture of the case, the notice was effective and Judge Fox
should not have disregarded it. Plaintiff counters that since Federal Rule of Civil Procedure
41(a)(1)(A) only permits a plaintiff to voluntarily dismiss an "action" without a court order, his
notice, which dismissed certain claims but not the entire action, was ineffective. The Court
reviews these objections under the de novo standard.
Rule 41(a)(1)(A) states that "a plaintiff may dismiss an action without a court order by
filing ... a notice of dismissal before the opposing party serves either an answer or a motion for
summary judgment." Fed. R. Civ. P. 41(a)(I)(A).
In Harvey Aluminum, Inc. v. American
Cyanamid Co., the Second Circuit observed that Rule 41 "provides for the voluntary dismissal of
an 'action' not a 'claim,'" and interpreted the word "action" to "denote[] the entire controversy,
whereas 'claim' refers to what has traditionally been termed 'cause of action.'" 203 F.2d 105,
108 (2d Cir. 1953). In the decades since Harvey Aluminum, however, the weight of authority has
shifted away from that decision. See Wright & Miller, Fed. Practice & Proc. Civ. § 2362 (3d
ed.). Indeed, the Second Circuit has acknowledged that Harvey Aluminum "has been criticized
and is now against the weight of authority" and has suggested that courts may treat Harvey
Aluminum as mere dicta. Wakefield v. N Telecom, Inc., 769 F.2d 109, 114 n.4 (2d Cir. 1985)
(observing that "[i]t is not clear that the rule laid down in Harvey Aluminum was necessary to the
reSUlt"); see also Thorp v. Scarne, 599 F.2d 1169, 1175 (2d Cir. 1979) (noting that Harvey
Aluminum "has not been well received" and that "subsequent cases have almost uniformly either
distinguished Harvey Aluminum, limiting the case to its particular factual setting, or forthrightly
rejected it as poorly reasoned"). Thus, in keeping with the Second Circuit's exhortation that
Harvey Aluminum be "limited to its 'extreme' facts," Johnson Chem. Co., Inc. v. Home Care
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Prods., Inc., 823 F.2d 28, 30 (2d Cir. 1987), abrogated on other grounds by Cooter & Gel! v.
Hartmarx Corp., 496 U.S. 384 (1990), the Court joins other courts in this Circuit in interpreting
Rule 41(a)(l)(A) as permitting the withdrawal of individual claims. See, e.g., Frank v. Trilegiant
Corp., No. 10 Civ. 5211 (DRH), 2012 WL 214lO0, at *3 (E.D.N.Y. Jan. 24, 2012); Blaize
Sampeur v. McDowell, No. 05 Civ. 4275 (JFB), 2007 WL 1958909, at *2-3 (E.D.N.Y. June 29,
2007) (collecting cases); Mut. Benefit Life Ins. Co. in Rehabilitation v. Carol Mgmt. Corp., No.
93 Civ. 7991 (LAP), 1994 WL 570154, at *1 (S.D.N.Y. Oct. 13, 1994) (noting that Harvey
Aluminum "is no longer persuasive authority" as to the meaning of Rule 41). Accordingly, the
Court finds that Plaintiffs notice of partial voluntary dismissal is consistent with Rule
41 (a)(1 )(A).
Judge Fox nevertheless refused to give effect to Plaintiffs notice for a reason entirely
unrelated to any purported distinction between actions and claims: he found that Plaintiff had
failed to comply with his order "direct[ing] the parties not to file any motions, without first
making a written request to the Court for permission to do so." (Report at 4 n.2.) The clear
implication of Judge Fox's ruling is that a Rule 41 (a)(1 )(A) notice of voluntary dismissal is a
type of motion. Courts have considerable discretion over how to manage the process of filing
motions; the same is not true, however, with respect to Rule 41(a)(l)(A) notices of voluntary
dismissal. The rule's plain language specifically authorizes a plaintiff to voluntarily dismiss the
action "without a court order" where, as here, the defendant has not answered or moved for
summary judgment. Fed. R. Civ. P. 41(a)(1)(A) (emphasis added); see also Thorp, 599 F.2d at
1171 n.1 ("The law is settled that the filing of a notice of dismissal under Rule 41 (a)(l )(A)
automatically terminates the lawsuit. No action by the court is necessary to effectuate the
dismissaL"). Judge Fox's ruling effectively circumvents Rule 41(a)(l)(A) by requiring Plaintiff
to obtain a court order to voluntarily dismiss the action. Because a court cannot forbid what the
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law allows, Plaintiffs notice of voluntary dismissal was valid and was effective as soon as it was
filed.
IV. CONCLUSION
For the foregoing reasons, the Court adopts the Report's recommendation that it grant in
part and deny in part Defendants' motion to dismiss.
Specifically, Defendants' motion is
GRANTED as to Plaintiffs claims of discrimination under the ADA and retaliation under the
ADA and § 1981, but DENIED as to Plaintiffs claim of discrimination under § 1981. The
Court, however, holds that it was error to disregard Plaintiffs notice of voluntarily dismissal.
Accordingly, the Court finds that the following claims are dismissed without prejudice: all
claims against the Taylor Defendants, as well as the claims against the LRT Defendants for
violations of Title VII of the Civil Rights Act and the Age Discrimination in Employment Act;
conspiracy to violate Plaintiffs civil rights; defamation; intentional infliction of emotional
distress; and violations of the New York State Human Rights Law. The Clerk of the Court is
respectfully directed to close the motion pending at Doc. No. 95 and to terminate the Taylor
Defendants as parties to this action.
With respect to Plaintiffs surviving claim of discrimination under 42 U.S.C. § 1981, IT
IS HEREBY ORDERED THAT the parties shall contact Judge Fox by August 21,2013 for the
purpose of setting a schedule for discovery.
SO ORDERED.
DATED:
August 1, 2013
New York, New York
FJC~~
UNITED STATES DISTRICT JUDGE
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Plaintiff is proceeding pro se.
hicham.azkour@gmail.com.
A copy of this Order has been sent bye-mail to him at:
Defendants are represented by Andrew Sal Hoffman, Wiseman & Hoffman, 450 Seventh
Avenue, Suite 1400, New York, NY 10123.
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