Garrido v. New York City Department Of Education et al
Filing
67
MEMORANDUM OPINION & ORDER re: 58 MOTION for Default Judgment as to Rachelle Klainberg filed by Isabel Garrido, 61 CROSS MOTION to Set Aside Default and Dismiss filed by Rachelle Klainberg. For the reasons set forth above, Plaintiff's motion for default judgment is denied and Defendant's motion to set aside the default is granted. Defendant's motion to dismiss is also granted. Plaintiff's claims against Klainberg are dismissed with prejudice. The Clerk of Court is respectfully directed to terminate the motions pending at Dkts. 58 and 61, and close this case. (Signed by Judge Ronnie Abrams on 3/6/2020) (mro) Transmission to Orders and Judgments Clerk for processing.
USDC-SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:
DATE FILED: '?J/ 4, )-0
UNITED STA TES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
I
ISABEL GARRIDO,
Plaintiff,
No. 16-CV-9464 (RA)
v.
MEMORANDUM OPINION & ORDER
RACHELLE KLAINBERG,
Defendant.
RONNIE ABRAMS, United States District Judge:
Plaintiff Isabel Garrido filed this action against Defendants New York City Department of
Education (the "DOE") and Rachelle Klainberg, alleging claims for discrimination under 42
U.S.C. §§ 1981 and 1983 and the New York City Human Rights Law ("NYCHRL"). Plaintiff's
claims were dismissed with prejudice as to the DOE on March 20, 2019. See Dkt. 44. Now before
the Court is Plaintiffs motion for default judgment against Defendant Klainberg, and Defendant
Klainberg's cross-motion to set aside the default and to dismiss the amended complaint. For the
reasons that follow, Plaintiffs motion is denied and Defendant's motion is granted.
BACKGROUND
I.
Facts
The Court assumes familiarity with the underlying facts of this case, which have been
detailed in two prior Court opinions. See March 20, 2019 Memorandum and Order, Dkt. 44("2019
Opinion"); March 15, 2018 Memorandum and Order, Dkt. 22 ("2018 Opinion"). The Court
therefore includes only those facts necessary to resolve the instant motions. 1
1
These facts are drawn from Plaintiffs Amended Complaint, 0kt. 32 ("Comp!."), the exhibits attached thereto, and
the present motions and supporting papers, and are assumed to be true for the purpose of the pending motions. See
Stadnick v. Vivint Solar, Inc., 861 F.3d 31, 35 (2d Cir. 2017).
Plaintiff is a black Hispanic female who was employed by the DOE as a "regular
Educational Paraprofessional" assigned to "P226M," a school located in Manhattan, New York.
Compl. 11,i 6, 8. Defendant Klainberg was the Principal of P226M at all relevant times, id. ,i 11,
and is now a Deputy Superintendent for the DOE, see Klainberg Deel., Dkt. 62 Ex. A, ,i 4. 2
Plaintiff asserts that on October 28, 2014, Jennifer Johnson, a white female teacher at P226M,
"falsely reported" to Klainberg that Plaintiff had "used corporal punishment on a student at P226M
during Ms. Johnson's Math class on October 28, 2014." Compl. ,i,i 13, 26. According to Plaintiff,
Klainberg conducted an investigation into the allegation, and during the pendency of that
investigation, suspended Plaintiff without pay, effective October 29, 2014, thereby cancelling her
health insurance coverage. Id. ,i,: 38-39, 54. On December 3, 2014, following the investigation,
Klainberg found that Plaintiff had "in fact used corporate punishment on the alleged student
victim," and converted Plaintiff's suspension without pay into a termination. Id. ,i 42. Plaintiff
asserts that Klainberg cited the "egregiousness" of Plaintiff's conduct in doing so. Id. Plaintiff
also claims that Klainberg, as the principal, had the authority to "terminate the employment of a
paraprofessional within DOE if she decide[d] that termination [was] warranted." Id. ,i 55.
Plaintiff alleges that Klainberg "has a reputation at P226M of treating staff who are persons
of color (minorities) with less respect and more harshly than she treated the Caucasian staff under
her." Id. ,i 56. She asserts that, while the investigation into her alleged use of corporal punishment
was ongoing, another teacher at P226M-Igor Kocherov, a white male "substitute Educational
Paraprofessional"-was also accused of using corporal punishment on a student. Id. ,i,i 60-61.
Plaintiff contends that Klainberg was aware of Kocherov' s alleged use of corporal punishment, id.
,i 62, but that Klainberg did not suspend Kocherov without pay pending an investigation, id. ,i 60,
2
Klainberg became a Deputy Superintendent for the DOE in October 2016. Klainberg Deel.~ 4.
2
conduct "any serious investigation" into the allegation against Kocherov, id.
1 73, or ultimately
terminate him, id. 174. Plaintiff states that Klainberg's "different treatment of the allegation of
corporal punishment against Mr. Kocherov and the allegation of corporal punishment against
[Plaintiff] is at least racially motivated in part." Id.
1 63.
According to Plaintiff, "the reason
Klainberg handled Mr. Kocherov's corporal punishment allegation differently and treated Mr.
Kocherov better than [she] was treated is because, unlike Mr. Kocherov, [Plaintiff] is a Black
Hispanic." Id. 177.
II.
Procedural History
Plaintiff initially filed this action on December 8, 2016. Dkt. 1. On March 15, 2018, Judge
Batts granted the DOE's motion to dismiss the complaint under Fed. R. Civ. P. 12(b)(6), and
granted Plaintiff leave to amend. Dkt. 22. In that opinion, Judge Batts noted that Klainberg had
not yet appeared in the action or responded to the complaint. Id. at 1 n.1. Plaintiff filed the
operative amended complaint in this action on May 12, 2018. Dkt. 32. 3 On March 20, 2019, Judge
Batts granted the DOE's motion to dismiss the amended complaint, and dismissed Plaintiffs
claims as to the DOE with prejudice. Dkt. 44. Judge Batts again noted that Klainberg had not yet
appeared in the action or responded to the amended complaint, id. at 1 n. l, and ordered Plaintiff
to move for a default judgment against Klainberg within 15 days of that order, id. at 12. Plaintiff
was cautioned that if she did not move for a default judgment \\-ithin 15 days, her claims against
Klainberg would be dismissed in their entirety with prejudice. Id.
Plaintiff filed a motion for default judgment on March 30, 2019, Dkt. 45, but because she
did not first obtain a Certificate of Default from the Clerk of Court or file her motion in accordance
with the Court's Electronic Filing Rules, Judge Batts terminated that motion on April 16, 2019,
3
Plaintiff filed several versions of the amended complaint between March 29, 2018 and May 2, 2018, which were
technically deficient and therefore repeatedly rejected from ECF. See Dkts. 25, 27, 29.
3
Dkt. 49. On July 12, 2019, the Clerk of Court issued a Certificate of Default as to Klainberg. Dkt.
57. Plaintiff then filed her pending motion for default judgment that same day. Dkt. 58. On July
25, 2019, Corporation Counsel of the City of New York, representing Klainberg for the limited
purpose of challenging Plaintiffs motion, filed a cross-motion to set aside the default and to
dismiss the claims against Klainberg. Dkt. 61. Plaintiff filed her opposition to Klainberg' s crossmotion and in further support of her motion for default judgment on August 19, 2019. Dkt. 64.
Klainberg filed her reply in support of her cross-motion on August 22, 2019. Dkt. 65.
III.
Service of Process as to Defendant Klainberg
On February 28, 2017, Plaintiff filed certificates of service, indicating that the DOE was
served with the summons and complaint on January
2017, Dkt. 16, and that Klainberg was
served with the summons and complaint on January 13, 2017, Dkt. 15.4 Although the certificate
of service filed at Dkt. 15 indicates that Klainberg was personally served at the DOE's office at
400 First Avenue, New York, New York 10010, the additional information included at the bottom
of that document states that Klainberg was purportedly served by delivering the summons and
complaint to Helen Kaufman, a "Supervisor," who apparently advised the process server that she
was "authorized to accept[] legal papers for and on behalf of Rachelle Klainberg." Dkt. 15.
Klainberg asserts that she never authorized Kaufman, or any other colleague, to accept service of
process on her behalf, and that she never received a copy of the complaint from Kaufman.
Klainberg Deel. 1, 7-8.
On July 11, 2019, Plaintiffs counsel filed another certificate of service stating that, on
March 29, 2018, he served the amended complaint on Klainberg "by depositing a copy of [the
amended complaint] enclosed in a post-paid, properly addressed wrapper, in a post officer under
4
Dkt. 15 and Dkt. 17 appear to be identical certificates of service, and the Court therefore only refers to Dkt. 15.
4
the exclusive care and custody of the U.S. Postal Service within the State of New York." Dkt. 52.
Plaintiffs counsel stated that the amended complaint was sent to Klainberg at "New York City
Department of Education, Tweed Courthouse, 52 Chambers Street, New York, New York 10007."
Id. Klainberg asserts that she does not have an office or a mailbox at the Tweed Courthouse, and
that she has "never been assigned to work at that building." Klainberg Deel. 116, 10. Klainberg
asserts further that she never received a copy of the complaint or the amended complaint in the
mail, and that no one from the DOE ever gave her a copy of either the complaint or the amended
complaint. Id.
11 11-12.
DISCUSSION
I.
Plaintiff's Motion for Default Judgment and Klainberg's Cross-Motion to Set
Aside the Default
Under Federal Rule of Civil Procedure 55, a court may, on a plaintiff's motion, enter a
default judgment against a defendant that has failed to plead or otherwise defend the action brought
against it. Fed. R. Civ. P. 55(a)-(b ). In particular, "the court may ... enter a default judgment if
liability is established as a matter oflaw when the factual allegations of the complaint are taken as
true." Bricklayers & Allied Craftworkers Local 2, Albany, NY. Pension Fund v. Moulton Masonry
& Constr., LLC, 779 F.3d 182, 187 (2d Cir. 2015). Under Federal Rule of Civil Procedure 55(c),
however, the court may set aside an entry of default for good cause. To determine whether there
is "good cause" to set aside a default, courts consider: "( 1) the willfulness of default, (2) the
existence of any meritorious defenses, and (3) prejudice to the non-defaulting party." Id. at 186
(quoting Guggenheim Capital, LLC v. Birnbaum, 722 F.3d 444,455 (2d Cir. 2013)). A motion to
set aside a default is "addressed to the sound discretion of the district court." SEC v. McNulty, 137
F.3d 732, 738 (2d Cir. 1998).
5
Moreover, the Second Circuit has "expressed a strong preference for resolving disputes on
the merits." New York v. Green, 420 F.3d 99, 104 (2d Cir. 2005) (internal quotation marks and
citation omitted); see also Cody v. Mello, 59 F .3d 13, 15 (2d Cir. 1995) ("This Court has expressed
on numerous occasions its preference that litigation disputes be resolved on the merits, not by
default.") (collecting cases). It is well established in the Second Circuit that "good cause" should
be "construed generously" since "defaults are generally disfavored and are reserved for rare
occasions." Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993). "Accordingly, in ruling
on a motion to vacate a default judgment, all doubts must be resolved in favor of the party seeking
relief from the judgment in order to ensure that to the extent possible, disputes are resolved on
their merits." Green, 420 F.3d at 104.
Klainberg argues that Plaintiff's motion for default judgment should be denied because
Plaintiff failed to properly effect service on Klainberg, and this Court therefore lacks jurisdiction
over her. See Klainberg Mot., Dkt. 63, at 8-16. The Court agrees. It is axiomatic that"[ a] default
judgment may not be granted ... if the defendant has not been effectively served with process."
Doe v. Alsaud, 12 F. Supp. 3d 684,687 (S.D.N.Y. 2014) (quoting O 'Callaghan v. Sifre, 242 F.R.D.
69, 72 (S.D.N.Y. 2007)); see also RCC Ventures, LLC v. Brandtone Holdings Ltd., No. 17-CV1585 (GHW), 2017 WL 3242331, at *2 (S.D.N.Y. July 28, 2017) ("A court may not properly enter
a default judgment unless it has jurisdiction over the person o[r] the party against whom the
judgment is sought, which also means that he must have been effectively served with process.")
(citation omitted); Aspex Eyewear, Inc. v. Cheuk Ho Optical Int'! Ltd., Nos. 00-cv-2389, 01-cv1315 (RMB), 2005 WL 3501900, at *1 (S.D.N.Y. Dec. 21, 2005) ("A defaultjudgment obtained
by way of defective service is void ab initio and must be set aside as a matter of law.") (internal
6
quotation marks and citation omitted). Plaintiff has the burden of proving that service was
adequate. Alsaud, 12 F. Supp. 3d at 687; Aspex Eyewear, 2005 WL 3501900, at * 1.
Plaintiff has failed to satisfy her burden here. She asserts merely that Klainberg was "duly
served" with the summons and complaint on January 13, 201 7, citing the certificates of service at
Dkt. 15 and Dkt. 17. See Pl. Mot., Dkt. 60, at 2; see also Pl. Reply, Dkt. 64, at 2; Okoli Deel., Dkt.
59, ,r 6. She does not, however, identify which Federal Rules of Civil Procedure or sections of the
New York CPLR she relies on to support her assertion. Nor does she explain how, under either
federal or state law, service was proper. Although the box for personal service is checked on Dkt.
15, it appears that this is an error, as Klainberg was not actually "personally served." Klainberg
has declared as much, under penalty of perjury, see Klainberg Deel. ,r,r 7, 11, and indeed, the very
face of the document confirms that service was made on one of Klainberg's colleagues, and not
Klainberg herself. The certificate of service also does not indicate that Kaufman, the colleague
who apparently accepted service for Klainberg, was authorized to do so, or that the summons and
complaint was mailed to Klainberg, as required under state law. See N.Y. CPLR § 308(2); see
also Phillip v. City of New York, No. 09 Civ. 442, 2012 WL 1598082, at *2 (E.D.N.Y. May 7,
2012) ("The federal rules do not permit non-personal service at an individual's place of
business."). In light of the Second Circuit's "strong preference for resolving disputes on the
merits," Green, 420 F.3d at 104, and Plaintiffs failure to establish that Klainberg was properly
served in this action, Plaintiffs motion for default judgment is denied. 5 For this same reason,
Klainberg's motion to set aside the default is granted. See Crawfordv. US. Sec. Assocs., No. 19
5
Plaintiff also contends that Klainberg was served with the amended complaint even though Plaintiff was "not required
by the rules" to serve the amended complaint on Klainberg because, according to Plaintiff, Klainberg had already
defaulted. See PL Mot. at 2; Okoli Dec!.~ IO. The Court disagrees. While it is true that, pursuant to Fed. R. Civ. P.
5(a)(2), no service is required on a party found to be in default, at the time the amended complaint in this action was
filed, there was no finding of default as to Klainberg. For this reason, among others, Plaintiff was required to served
Klainberg with the amended complaint.
7
Civ. 105 (PGG) (RWL), 2020 WL 61171, at *4 (S.D.N.Y. Jan. 6, 2020) ("Numerous courts have
ruled that ineffective service of process, standing alone, satisfies the 'good cause' requirement of
Rule 55(c), warranting vacatur of an entry of default.") (internal quotation marks and citations
omitted). 6
II.
Klainberg's Motion to Dismiss
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint
must plead "enough facts to state a claim to relief that is plausible on its face." Bell At/. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). "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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). On a motion to dismiss,
the Court must "accept[] all factual allegations as true, but 'giv[e] no effect to legal conclusions
couched as factual allegations."' Stadnick v. Vivint Solar, Inc., 861 F.3d 31, 3 5 (2d Cir. 2017)
(quoting Starr v. Sony BMG Music Entm 't, 592 F.Jd 314,321 (2d Cir. 2010)).
6
While Klainberg sets forth several arguments as to Plaintiffs failure to properly serve her, see Klainberg Mot. at 816, on reply, Plaintiff merely requests-for the first time-that the Court hold a traverse hearing. As an initial matter,
a court generally "should not consider arguments that are raised for the first time in a reply brief." Mateo v. Bristow,
No. 12 Civ. 5052 (RJS), 2013 WL 3863865, at *8 (S.D.N.Y. July 16, 2013) (internal quotation marks omitted) (quoting
Clubside, Inc. v. Valentin, 468 F.3d 144, 159 n.5 (2d Cir. 2006)). Based on numerous filings by the DOE in this
action, Plaintiff was well aware that service as to Klainberg may be contested. See, e.g., Dkts. 10 at 2, 12 at 1 n. l, 13
at 1 n.1, 14 at I n. l, 33 at 1, 38 at 1 n.1, 40 at 1 n. l. Plaintiff nonetheless failed to put forth any argument or evidence
as to the issue of service, either in her motion for default judgment or on reply. Rather than address any of the
arguments asserted in Klainberg's cross-motion, Plaintiff makes only a belated request for a hearing. In any event, a
traverse hearing is not required here "since the manner in which service was effectuated is undisputed." Wilson v.
WalMart Store, Inc., No. 15-CV-4283 (JS) (GRB), 2016 WL 11481723, at *2 n.l (E.D.N.Y. Aug. 22, 2016), report
and recommendation adopted sub nom. Wilson v. Walmart Stores, Inc., No. 15-CV-4283 (JS) (GRB), 2016 WL
5338543 (E.D.N.Y. Sept. 23, 2016); see also Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981)
(explaining that courts have "considerable procedural leeway" in deciding how to address allegations of improper
service and "may determine the motion on the basis of affidavits alone or "may conduct an evidentiary hearing on the
merits of the motion") (emphasis added). Klainberg does not dispute that the complaint was delivered to Kaufman or
that the amended complaint was mailed to the Tweed Courthouse. Klainberg instead rightly asserts that neither action
constitutes proper service under the applicable rules. A traverse hearing is therefore not necessary. And, as discussed
further below, because the Court has previously concluded that Plaintiffs amended complaint fails to plausibly allege
claims for discrimination, see 2019 Opinion at l 0, a traverse hearing would be futile under the circumstances present
here.
8
In dismissing the amended complaint as to the DOE, the Court specifically concluded that
"Plaintiff has failed to allege facts providing even minimal support for the proposition that
Klainberg suspended and terminated Plaintiff due to her race or national origin." See 2019 Opinion
at 10; see also id. at 7 ("The [Amended Complaint], like the Complaint, does not provide even
minimal support for the proposition that Plaintiff was suspended and terminated due to her race or
national origin."). The Court also found that Plaintiff and Kocherov are not "similarly situated"
for purposes of her discrimination claims, see 2019 Opinion at 8-9, and that Plaintiff has not
alleged "any other examples where Klainberg has suspended or terminated a comparable employee
due to his or her race or national-origin," id. at 10. The Court determined that "even if Klainberg
was the final policymaker, Plaintiff has not adequately alleged that Klainberg routinely suspends
and terminated employees based on their race or national-origin," and Plaintiff therefore failed to
allege "a discriminatory municipal policy based on Klainberg's actions." Id. at 10. This Court
agrees with the 2019 Opinion, and concludes that the amended complaint fails to plausibly allege
that Plaintiff was suspended or terminated due to her race or national origin. 7 Indeed, Plaintiff's
own subjective belief as to why she was suspended or terminated is insufficient to state a claim for
discrimination. See ldlisan v. NY.C. Health & Hasps. Corp., No. 12 Civ. 9163 (PAE), 2013 WL
6049076, at *5 (S.D.N.Y. Nov. 15, 2013) (dismissing discrimination claim where complaint
merely "expresses [plaintiff's] own personal belief, in a conclusory manner, that [the adverse
employment action] was based on his [protected characteristic]"). Klainberg's motion to dismiss
Plaintiff's claims is therefore granted.
7
The Court also notes that the law of the case doctrine, which generally requires courts to adhere to their prior
decisions "in subsequent stages in the same case," see Johnson v. Holder, 564 F.3d 95, 99 (2d Cir. 2009) (citation
omitted), further bolsters this conclusion.
9
CONCLUSION
For the reasons set forth above, Plaintiffs motion for default judgment is denied and
Defendant's motion to set aside the default is granted. Defendant's motion to dismiss is also
granted. Plaintiffs claims against Klainberg are dismissed with prejudice.
The Clerk of Court is respectfully directed to terminate the motions pending at Dkts. 58
and 61, and close this case.
SO ORDERED.
Dated:
March 6, 2020
New York, New York
Ronnie Abrams
United States District Judge
10
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