Gutman et al v. Yeshiva University et al
Filing
23
OPINION & ORDER re: 13 MOTION to Dismiss Plaintiffs' Complaint pursuant to F.R.C.P. 12(b)(6);. filed by Yeshiva University, Marsha Stern Talmudical Academy-Yeshiva University High School for Boys, Norman Lamm, Robert Hirt.The Court has considered all of the arguments raised by the parties. To the extent not specifically addressed above, they are either moot or without merit. For the foregoing reasons, the defendants' motion to dismiss is granted. The Clerk is directed to close all pending motions and to close this case. (As further set forth in this Opinion.) (Signed by Judge John G. Koeltl on 7/8/2015) (kgo)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
MORDECHAI TWERSKY ET AL.,
Plaintiffs,
15 Cv. 2594 (JGK)
- against -
OPINION & ORDER
YESHIVA UNIVERSITY ET AL.,
Defendants.
────────────────────────────────────
JOHN G. KOELTL, District Judge:
The plaintiffs, thirty-four former students of Yeshiva
University High School for Boys (“YUHS”), originally filed this
Complaint in the New York State Supreme Court, New York County.
The defendants are YUHS, Yeshiva University, former
administrators of Yeshiva University, and several unnamed
members of the Board of Trustees of YUHS and Yeshiva University.
The Complaint alleges claims for violations of the New York
General Business Law, Title IX of the Education Amendments Act
of 1972 (“Title IX”), the New York Executive Law section 296
(the “New York State Human Rights Law”), and the New York Social
Services Law.
The plaintiffs also request that this Court (a)
declare a Second Circuit Court of Appeals decision invalid and
(b) issue a writ of mandamus compelling one of the defendants to
produce a document.
The defendants removed the case to this
Court and then moved to dismiss the Complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6).
1
In a suit involving the same plaintiffs and defendants,
this Court previously dismissed as untimely the plaintiffs’
Title IX and New York General Business Law claims, as well as
other state law claims. 1
See Twersky v. Yeshiva Univ., 993 F.
Supp. 2d 429 (S.D.N.Y.), aff'd, 579 F. App'x 7 (2d Cir. 2014),
cert. denied, 135 S. Ct. 1702 (2015).
The remaining claims in
this Complaint arise from the same events as the prior action.
All of the plaintiffs’ claims therefore are precluded by the
principle of res judicata, and the defendants’ motion to dismiss
is granted.
I.
A.
In 2013, the plaintiffs filed a suit in this Court against
the defendants, roughly twenty-one years after the last
plaintiff had left YUHS.
The complaint asserted causes of
action for fraud, negligence, violation of the New York General
Business Law, and violation of Title IX.
The plaintiffs alleged
that they were sexually abused by one or more of three
individuals: George Finkelstein, Macy Gordon, and Richard
Andron.
The plaintiffs also alleged that the YUHS and YU
administrators knew of the sexual abuse and failed to intervene.
1
In a separate opinion issued together with this opinion,
the Court is denying a motion for reconsideration filed in that
case.
2
After the plaintiffs amended their complaint, the defendants
moved to dismiss the claims as time-barred.
The Court granted the motion.
This Court assumed arguendo
that Title IX includes a discovery rule, but concluded that the
plaintiffs’ claims were nonetheless time-barred.
Specifically,
this Court held that the “plaintiffs were aware of their abuse
at the time it occurred, and of the identity of their abusers
and those who employed them—thus, had the plaintiffs approached
an attorney prior to their turning twenty-one, they could have
brought their claims under Title IX.”
at 440.
Twersky, 993 F. Supp. 2d
Because the action was filed over three years after
“each plaintiff should have become aware of the alleged Title IX
violation, even taking account of tolling for infancy, the
federal discovery rule would not save the Title IX claim from
the applicable time bar.”
Id. at 441.
The Court also dismissed the remaining state law claims as
untimely.
The Court concluded that those claims were prima
facie time-barred and that the plaintiffs had failed to plead a
basis for equitable estoppel.
49.
Twersky, 993 F. Supp. 2d at 441–
The Court further held that the plaintiffs’ fraud claim was
incidental to the other claims, and thus the claim did not sound
in fraud for purposes of taking advantage of the longer
limitations period.
Id. at 449–51.
3
The Court finally denied the plaintiffs’ motion for leave
to file a Second Amended Complaint.
The plaintiffs insisted
that a report commissioned by Yeshiva University (the “YU
Report”), which was released after the plaintiffs had filed the
First Amended Complaint, included new and relevant facts.
The
Court, however, held that because “the new information that has
come to light has no bearing on the fact that all claims in the
First Amended Complaint are untimely as a matter of law,
repleading in this action would be futile.”
Id. at 452.
In September 2014, the Court of Appeals for the Second
Circuit affirmed this Court’s judgment.
As to the timeliness of
the plaintiffs’ Title IX claim, the Court of Appeals held: “When
plaintiffs left YUHS, more than 20 years before filing this suit
on July 8, 2013, they were unquestionably aware of (1) their
injuries, (2) their abusers’ identities, and (3) their abusers'
prior and continued employment at YUHS.
This information was
sufficient to put them on at least inquiry notice as to the
school's awareness of and indifference to the abusive conduct by
its teachers.”
Twersky, 579 F. App’x at 9–10.
The Court of
Appeals also affirmed the dismissal of the state law claims.
Id. at 10–11.
As to the motion to amend, the Court of Appeals held that
“the proposed amendments included only further allegations of
defendants’ knowledge of prior abuse, which, for reasons already
4
explained, would not have rendered plaintiffs' claims timely.”
Id. at 12.
The plaintiffs filed a petition for a panel rehearing or
rehearing en banc, which was denied in October 2014.
The
plaintiffs then filed a petition for a writ of certiorari to the
Supreme Court, which was denied in March 2015.
Twersky v.
Yeshiva Univ., 135 S. Ct. 1702 (2015).
B.
In February 2015, the plaintiffs’ filed the Complaint in
this action in the New York State Supreme Court, New York
County.
The defendants timely removed the case.
The Complaint is based on the same set of facts as the
prior action.
And the parties in both cases are identical. 2
The
plaintiffs allege that they were sexually abused by George
Finkelstein, Macy Gordon, and Richard Andron.
¶¶ 11–14, 16, 31.
See, e.g., Compl.
The plaintiffs also allege that the YUHS and
Yeshiva University administrators knew of the sexual abuse and
failed to intervene.
See, e.g., Compl. ¶¶ 15, 17, 20–21, 26.
The Complaint includes four counts.
Count One alleges that
the defendants violated Title IX, 20 U.S.C. § 1681(a), because
they were deliberately indifferent to the sexual assaults.
Compl. ¶¶ 811–14.
See
Count Two alleges that the defendants
2
Two additional plaintiffs, Israel Gutman and Chaya Gutman,
have withdrawn voluntarily from this case.
5
violated section 349 of the New York General Business Law,
because they failed to disclose the danger of sexual assault at
YUHS.
See Compl. ¶¶ 862–63. For these two claims, the Complaint
in this action is nearly identical to the plaintiffs’ prior
complaint.
Counts Three and Four are unique to this action.
Count
Three alleges that the defendants violated the New York State
Human Rights Law, because the defendants permitted the abuse of
the plaintiffs on the basis of their sex and religion.
903.
Compl. ¶
Count Four alleges that the defendants violated New York
Social Services Law section 413, because they failed to report
the abuse of the plaintiffs.
Compl. ¶¶ 920–30.
In the Prayer for Relief, the plaintiffs request a
declaratory judgment that the Court of Appeals erred in
Twersky v. Yeshiva University, 579 F. App'x 7 (2d Cir. 2014).
Compl. at 315.
They also petition for a writ of mandamus
“requiring Yeshiva University to make public its entire
investigative report on sexual abuse at YUHS.”
Compl. at 316.
II.
In deciding a motion to dismiss pursuant to Rule 12(b)(6),
the allegations in the complaint are accepted as true, and all
reasonable inferences must be drawn in the plaintiff's favor.
McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.
2007).
The Court's function on a motion to dismiss is “not to
6
weigh the evidence that might be presented at a trial but merely
to determine whether the complaint itself is legally
sufficient.”
1985).
Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.
The Court should not dismiss the complaint if the
plaintiff has stated “enough facts to state a claim to relief
that is plausible on its face.”
U.S. 544, 570 (2007).
Bell Atl. Corp. v. Twombly, 550
“A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.”
(2009).
Ashcroft v. Iqbal, 556 U.S. 662, 678
While the Court should construe the factual allegations
in the light most favorable to the plaintiff, “the tenet that a
court must accept as true all of the allegations contained in
the complaint is inapplicable to legal conclusions.”
Id.
When presented with a motion to dismiss pursuant to Rule
12(b)(6), the Court may consider documents that are referenced
in the complaint, documents that the plaintiffs relied on in
bringing suit and that are either in the plaintiffs’ possession
or that the plaintiffs knew of when bringing suit, and matters
of which judicial notice may be taken.
See Chambers v. Time
Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002).
Dismissal at the pleading stage is “appropriate when a
defendant raises claim preclusion . . . and it is clear from the
face of the complaint, and matters of which the court may take
7
judicial notice, that the plaintiff’s claims are barred as a
matter of law.”
Conopco, Inc. v. Roll Int’l, 231 F.3d 82, 86
(2d Cir. 2000).
III.
The defendants move to dismiss the claims as barred under
the doctrine of res judicata or claim preclusion.
A.
The parties did not discuss whether federal or state
preclusion principles apply.
The previous suit arose in federal
court, and thus federal common law governs.
Sturgell, 553 U.S. 880, 891 (2008).
See Taylor v.
One of the plaintiffs’
prior claims arose under federal law—Title IX—and thus federal
res judicata law determines the preclusive effect of the prior
dismissal of that claim.
140 (2d Cir. 2012).
See id.; Wyly v. Weiss, 697 F.3d 131,
In the earlier suit, the Court also
dismissed the plaintiffs’ state law claims, which the Court had
jurisdiction over pursuant to 28 U.S.C. § 1367(a).
After Semtek International Inc. v. Lockheed Martin Corp.,
531 U.S. 497, 507-09 (2001), it is unclear whether state law
principles—incorporated as federal common law—determine the
preclusive effect of the dismissal of pendent state law claims.
Compare Robinson v. City of Phx., No. 10cv1044, 2010 WL 4054167,
at *2 & n.1 (D. Ariz. Oct. 15, 2010) (“Although a federal court
sitting in diversity must apply the res judicata doctrine of the
8
state in which it sits, this is not a diversity case—it is a
case involving federal-question and supplemental jurisdiction.”
(internal citation omitted)), and 18B Charles Alan Wright,
Arthur R. Miller & Edward H. Cooper, Federal Practice and
Procedure § 4472 (2d ed. 2002) (“[I]f state questions are
decided as an incident of federal-question litigation, the clear
right of federal courts to insist on their own preclusion rules
as to the federal question may carry over to include all
questions in a uniform body of doctrine.”), with Access 4 All
Inc. v. Trump Int'l Hotel & Tower Condo., No. 04cv7497, 2007 WL
633951, at *3 (S.D.N.Y. Feb. 26, 2007) (applying state
collateral estoppel principles when the first suit arose under
§§ 1331 and 1367(a)).
But the Court need not resolve this issue.
There is no
material difference between federal and New York State
preclusion principles.
Pike v. Freeman, 266 F.3d 78, 90 n.14
(2d Cir. 2001) (Sotomayor, J.); Rullan v. N.Y.C. Sanitation
Dep't, No. 13cv5154, 2014 WL 2011771, at *4 (S.D.N.Y. May 16,
2014).
Accordingly, the Court will apply federal res judicata
law.
The doctrine of res judicata, or claim preclusion, provides
that “a final judgment on the merits of an action precludes the
parties or their privies from relitigating issues that were or
could have been raised in that action.”
9
Allen v. McCurry, 449
U.S. 90, 94 (1980).
“To prove the affirmative defense a party
must show that (1) the previous action involved an adjudication
on the merits; (2) the previous action involved the plaintiffs
or those in privity with them; (3) the claims asserted in the
subsequent action were, or could have been, raised in the prior
action.”
Monahan v. N.Y.C. Dep't of Corr., 214 F.3d 275, 285
(2d Cir. 2000) (citing Allen, 449 U.S. at 94).
The application of these principles is not subject to
serious debate.
The Court dismissed the previous action with
prejudice as untimely, which is a final judgement on the merits.
See, e.g., PRC Harris, Inc. v. Boeing Co., 700 F.2d 894, 896 (2d
Cir. 1983).
The previous action involved the same defendants
and the same plaintiffs.
And two of the claims alleged here—the
Title IX and the New York General Business Law claims—were
raised in the prior suit.
Moreover, the plaintiffs’ remaining claims could have been
raised in the prior action.
“Whether or not the first judgment
will have preclusive effect depends in part on whether the same
transaction or connected series of transactions is at issue,
whether the same evidence is needed to support both claims, and
whether the facts essential to the second were present in the
first.”
Monahan, 214 F.3d at 289 (quoting NLRB v. United Techs.
Corp., 706 F.2d 1254, 1260 (2d Cir.1983)).
10
The New York State Human Rights Law claim and the New York
Social Services Law claim involve the same transaction, rely on
the same evidence, and turn on the same facts as the prior
action.
The New York Social Services Law claim asserts that the
defendants failed to report and prevent the abuse of the
plaintiffs.
Those same allegations were raised in the
plaintiffs’ prior complaint.
See, e.g., Am. Compl. ¶¶ 13, 288–
89, Twersky v. Yeshiva Univ., No. 13cv04679 (S.D.N.Y. Aug. 15,
2013), ECF No. 11.
And the New York State Human Rights Law
claim is, in substance, the same as the prior action’s Title IX
claim.
Compare id. ¶¶ 793–94, with Compl. ¶¶ 902–03; see also
Esposito v. Hofstra Univ., No. 11cv2364, 2012 WL 607671, at *5
(E.D.N.Y. Feb. 24, 2012) (“Courts evaluate claims brought under
Title IX, as well as parallel claims under New York State law,
pursuant to the same standards . . . .”).
None of the exceptions to res judicata apply.
The
plaintiffs contend that “formal barriers” prevented them from
litigating their claims.
But that exception applies when “the
initial forum did not have the power to award the full measure
of relief sought in the later litigation.”
14 F.3d 787, 790 (2d Cir. 1994).
Burgos v. Hopkins,
For example, those barriers
exist when a suit is brought in a state proceeding with limited
jurisdiction, Antonsen v. Ward, 943 F.2d 198, 201, 203–04 (2d
Cir. 1991), or when a court system separates legal and equitable
11
actions.
Restatement (Second) of Judgments § 26 cmt.c (1982).
The plaintiffs faced no such barriers in the prior action.
They
could have recovered the full scope of relief sought in the
present action, and the plaintiffs identified no case in which a
plenary federal court proceeding was found to be an ineffective
forum.
The plaintiffs also assert that they lacked a “full and
fair opportunity” to litigate their claims.
merit.
This argument lacks
That res judicata exception arises when there is reason
“to doubt the quality, extensiveness, or fairness of procedures
followed in prior litigation.”
Kremer v. Chem. Const. Corp.,
456 U.S. 461, 481 & n.22 (1982) (quoting Montana v. United
States, 440 U.S. 147, 164 n.11 (1979)).
The plaintiffs had
every opportunity to litigate their claims in full in federal
court.
At bottom, the plaintiffs criticize the decisions of
this Court and of the Second Circuit Court of Appeals.
But that
does not justify a collateral attack on a final judgment.
See
Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 398–401
(1981). 3
3
The plaintiffs do not attempt to defend the request for a
declaratory judgment that the Secord Circuit Court of Appeals’
opinion was incorrect. And that claim is clearly precluded. As
to the plaintiffs’ request for mandamus relief to receive
document, that application is denied. The plaintiffs have not
argued that mandamus relief is appropriate here, and discovery
is not appropriate when a plaintiff fails to plead a cognizable
claim. See Iqbal, 566 U.S. at 684–85.
12
B.
The plaintiffs finally insist that section 205 of the New
York Civil Procedure Law and Rules saves their claims. 4
This
argument is frivolous.
Section 205 provides that “[i]f an action is timely
commenced and is terminated in any other manner than by . . . a
final judgment upon the merits, the plaintiff . . . may commence
a new action upon the same transaction or occurrence or series
of transactions or occurrences 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.”
The plaintiffs’ argument founders for two reasons.
First, the prior action was not “timely commenced” because
it was dismissed on statute of limitation grounds.
Further,
this action would not “have been timely commenced at the time of
commencement of the prior action” because it is time-barred for
4
Title IX does not contain a statute of limitations, and
courts therefore apply the most appropriate state statute of
limitations. That application “carries with it the borrowing of
the state's coordinate tolling rules, at least where such rules
are not inconsistent with the letter and purpose of relevant
provisions of federal law.” Twersky, 993 F. Supp. 2d at 437.
The defendants do not dispute that section 205(a) applies to the
Title IX claim. Cf. Ortiz v. City of New York, No. 12cv3118,
2012 WL 6200397, at *4 (S.D.N.Y. Dec. 12, 2012) (applying
section 205(a) in a 42 U.S.C. § 1983 action).
13
the same reasons that the prior action was dismissed.
Therefore, section 205(a) is by definition inapplicable.
Lake
v. N.Y. Hosp. Med. Ctr., 989 N.Y.S.2d 365, 366 (App. Div. 2014);
Kramer v. Herrera, 592 N.Y.S.2d 196, 197 (App. Div. 1992). 5
Second, the Court issued “a final judgment upon the merits”
in the prior case, and section 205(a) by definition does not
apply to cases terminated in that manner.
The Court dismissed
the initial action with prejudice and denied leave to replead,
which is a final judgment on the merits.
See Yonkers
Contracting Co. v. Port Auth. Trans-Hudson Corp., 712 N.E.2d
678, 681–82 (N.Y. 1999) (holding that a dismissal with prejudice
is a final adjudication upon the merits for section 205(a)
purposes); see also Nemaizer v. Baker, 793 F.2d 58, 60–61 (2d
Cir. 1986) (holding the same for res judicata purposes).
Therefore, section 205(a) does not save the plaintiffs’
claims.
5
The Complaint here does not fix a pleading defect in the
prior complaint. See Carrick v. Cent. Gen. Hosp., 414 N.E.2d
632, 637–38 (N.Y. 1980). The only “new” information identified
in this Complaint is the YU Report, which this Court and the
Second Circuit Court of Appeals already explained would not
render the plaintiffs’ claims timely. And those findings have
preclusive effect. See Blythe Indus., Inc. v. P.R. Aqueduct &
Sewer Auth., 607 F. Supp. 1386, 1388, 1390 (S.D.N.Y. 1985).
14
CONCLUSION
The Court has considered all of the arguments raised by the
parties.
To the extent not specifically addressed above, they
are either moot or without merit.
For the foregoing reasons,
the defendants’ motion to dismiss is granted.
The Clerk is
directed to close all pending motions and to close this case.
SO ORDERED.
Dated:
New York, New York
July 8, 2015
___________/s/_________________
John G. Koeltl
United States District Judge
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