Negron v. Bank Of America Corporation et al

Filing 93

OPINION & ORDER.....Negrons February 20, 2017 motion to voluntarily dismiss this action will be granted subject to the three aforementioned conditions and following the close of fact discovery in federal court so long as Negron informs the Court by April 10, 2017, that he consents to these conditions. (Signed by Judge Denise L. Cote on 4/3/2017) (gr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------- X
LARRY NEGRON,
:
:
Plaintiff,
:
:
-v:
:
BANK OF AMERICA CORPORATION, BANK OF
:
AMERICA MERRILL LYNCH, BANC OF AMERICA :
SECURITIES, LLC, NICK PINARLIGIL, JAMES :
HOLLOWAY, STEVE CURTIS, THOMAS HOLZ,
:
and JEFF LOVVORN,
:
Defendants.
:
--------------------------------------- X

15cv8296 (DLC)
OPINION & ORDER

APPEARANCES:
For
Ian
Law
501
New

the plaintiff Larry Negron:
Francis Wallace
Offices of Ian Wallace, PLLC
Fifth Avenue, 19th Floor
York, NY 10017

For the defendants:
Alice Kokodis
Laura Mae Raisty
Littler Mendelson P.C.
One International Place
Boston, MA 02110
DENISE COTE, District Judge:
Plaintiff Larry Negron (“Negron”) brought this action in
2015, alleging race discrimination and retaliation in violation
of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981,
the New York State Human Rights Law (“NYSHRL”), and the New York
City Human Rights Law (“NYCHRL”).

With the completion of

discovery near at hand, Negron has moved to voluntarily dismiss
his amended complaint pursuant to Federal Rule of Civil

Procedure 41(a)(2).

For the following reasons, Negron’s motion

will be granted following the close of discovery subject to his
consent to the conditions described below.
Background
Negron filed this action on October 21, 2015, and an
amended complaint on May 12, 2016.

On July 22, the defendants

moved to dismiss the action, and on November 22, the case was
reassigned to this Court.
At a conference on December 7, the Court granted the
defendants’ motion in part, dismissing all claims against
defendants Steve Curtis (“Curtis”) and Jeff Lovvorn (“Lovvorn”)
as well as ruling on the statute of limitations applicable to
each of the remaining claims.

In particular, the Court found

that the continuing-violations doctrine did not apply to
Negron’s claims, even when construed broadly as required by the
NYCHRL.

The Court also set a January 27, 2017 deadline for the

parties to respond to their initial document demands and an
April 28, 2017 deadline for all fact discovery.

An Opinion

setting out the Court’s reasoning for its rulings was filed on
December 13, 2016.

Negron v. Bank of Am. Corp., No. 15 Civ.

8296, 2016 WL 7238959 (DLC) (S.D.N.Y. Dec. 13, 2016).
By letters dated December 12, the parties identified two
discovery disputes, namely, the appropriate comparators for
Negron’s discrimination claims and the scope of searches for
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relevant emails in the defendants’ systems.

At a conference on

December 15, the Court limited certain discovery to comparators
in Negron’s business subgroup and imposed limits on e-discovery.
On December 16, Negron sought and was granted an extension
of time to move for reconsideration of the decision on the
motion to dismiss.
such a motion.

Despite the extension, Negron never made

By letter dated December 20, Negron provided

additional information concerning his request for comparator
information, and the Court adhered to its previous ruling in a
memo endorsement of December 21.
On January 20, Negron filed a complaint in the New York
Supreme Court in Bronx County, alleging the same conduct
underlying his federal claims but seeking relief under state and
city law only.

Negron did not serve the defendants but sought

their consent on January 9 to the voluntary dismissal of his
federal claims with a “remand” of the remainder of the action to
state court. 1

The defendants replied that they would only

consider such a stipulation if Negron agreed not to relitigate
“the scope of discovery.”

Negron did not agree.

On February

15, Negron notified the defendants that he had filed the state
court action and requested that the defendants stipulate to
dismissal of the federal lawsuit with the conditions that Negron
Since the federal action had not been removed from state court,
a remand is not available.
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would not relitigate the scope of the defendants’ responses to
the plaintiff’s document requests and would not renew his claims
against Curtis and Lovvorn.

The defendants rejected Negron’s

request the following day.
On February 20, Negron moved to voluntarily dismiss his
federal claims with prejudice.

The defendants oppose Negron’s

motion, which became fully submitted on March 13.
Discussion
Because the defendants have answered the amended complaint
and have not agreed to a stipulation of dismissal, this “action
may be dismissed at the plaintiff’s request only by court order,
on terms that the court considers proper.”
P. 41(a)(2).

Fed. R. Civ.

A motion to dismiss under this provision should

not be granted “if the defendant would suffer some plain legal
prejudice other than the mere prospect of a second lawsuit.”
Kwan v. Schlein, 634 F.3d 224, 230 (2d Cir. 2011) (citation
omitted).

Moreover, courts in this circuit consider the Zagano

factors, which include:
(1) the plaintiff’s diligence in bringing the motion,
(2) any undue vexatiousness on the plaintiff’s part,
(3) the extent to which the suit has progressed,
including the defendant’s efforts and expense in
preparation for trial, (4) the duplicative expense of
relitigation, and (5) the adequacy of the plaintiff’s
explanation for the need to dismiss.
Id. (citation omitted); see Zagano v. Fordham Univ., 900 F.2d
12, 14 (2d Cir. 1990).
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All five Zagano factors favor the defendants.
plaintiff has not shown diligence. 2

The

This litigation began some

16 months ago, and Negron filed his motion with only weeks
remaining in the discovery period.

Having failed to move for

reconsideration before this Court, Negron concedes that his
motion is motivated by the desire to relitigate discovery and
statute of limitations rulings he considers too restrictive.
The defendants have expended time, expense, and effort
litigating the plaintiff’s claims and would be prejudiced by
having to revisit these discovery disputes and legal rulings in
a new forum.

See D’Alto v. Dahon Cal., Inc., 100 F.3d 281, 284

(2d Cir. 1996).
Negron argues in his reply that he seeks dismissal because
he grew up and presently resides in the Bronx.
does not offset the Zagano analysis.

This argument

Both the state and federal

courts in question maintain jurisdiction over the Bronx, and
both courts would hold any trial in New York City.

Cf. Iragorri

v. United Techs. Corp., 274 F.3d 65, 70-73 (2d Cir. 2001) (en
banc) (holding that, in the forum non conveniens context,
deference is generally owed to a plaintiff’s choice of forum,

Despite being reminded that the discovery schedule remains in
effect while this motion is pending, Negron has yet to respond
to the defendants’ November 2016 discovery requests.
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but not where motivated by forum-shopping or desire to impose a
tactical disadvantage).
In sum, the bottom-line inquiry -- whether the defendants
would suffer prejudice -- weighs strongly against dismissal.
Rule 41(a)(2), however, permits a dismissal to be conditioned on
terms that a court considers proper.
Univ., 845 F.2d 54, 55 (2d Cir. 1988).

See Gravatt v. Columbia
The potential prejudice

to the defendants stems from the need to relitigate issues
already resolved in their favor in this action.

The following

conditions are designed to avoid such prejudice.
1. Negron shall not reassert his federal claims or any
claims against Curtis and Lovvorn;
2. The parties shall complete discovery in federal court,
and Negron will not seek to reopen discovery in state
court;
3. Negron shall agree to be bound by this Court’s decision
on the applicable statutes of limitations and the
continuing-violations doctrine in his state-court action.
These three conditions will afford Negron the opportunity to
pursue his state-law claims in his forum of choice while also
protecting the defendants from onerous relitigation.
Conclusion
Negron’s February 20, 2017 motion to voluntarily dismiss
this action will be granted subject to the three aforementioned
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conditions and following the close of fact discovery in federal
court so long as Negron informs the Court by April 10, 2017,
that he consents to these conditions.
Dated:

New York, New York
April 3, 2017
________________________________
DENISE COTE
United States District Judge

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