Aljarah v. Citigroup Global Market Inc.

Filing 81

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTTORDER granting in part and denying in part 68 Motion to Amend or Correct; finding as moot 76 MotionGiven the in camera inspection of the documen ts at issue, plaintiff's Motion, No. 76, is moot. Separately, this Court will file those documents under seal.Plaintiff's motion for leave to amend (Docket No. 68) is granted in part, denied in part as stated in the Order. Plaintiff ha s until 2/1/2019 to file and serve her Amended Complaint pursuant to the terms of this Order.Plaintiff may renew her motion to compel production of the unredacted version of the in camera document by 2/15/2019.Discovery dea dline extended to 3/15/2019.Copy of Order mailed to plaintiff at her address of record by Chambers. Court Clerk to send a courtesy copy of this Order to the United States Department of Justice, Civil Division, in care of the trial attorney who signed the Notice of Potential Participation filed by that department, Docket No. 78.So Ordered. Signed by Hon. Hugh B. Scott on 12/14/2018. (DRH)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

NOOR ALJARAH,
Plaintiff,
Hon. Hugh B. Scott
16CV812G
v.
Order

CITIGROUP GLOBAL MARKET INC., et al.,
Defendants.

Before the Court are two series of motions by a litigant proceeding pro se. First is
plaintiff’s motion for leave to amend (again) her Complaint (Docket No. 68). Second, plaintiff
moved for in camera inspection of an unredacted Federal Bureau of Investigation (“FBI”)
background check conducted on her (Docket Nos. 74, 76). Production of this background check
has led to the motions considered in this Order. Pending when this motion was filed was
plaintiff’s initial motions to compel (Docket Nos. 54, 66); on October 4, 2018, this Court entered
an Order on those motions (Docket No. 70), familiarity with that decision is presumed. What
remains for action on the motions to compel is resetting deadlines for the Scheduling Order
(Docket No. 54; see Docket Nos. 35, 70-71).
After briefing of both motions1, this Court decided (A) that both sets of motions needed
to be considered together since they involve the common issue of the unredacted background

Responses to Docket No. 68 were due by November 6, 2018, and plaintiff’s reply due November 13, 2018,
Docket No. 69. Defendants duly responded, Docket No. 72, and plaintiff replied, Docket No. 73.
1

check documents, and (B) that the in camera review motions would be considered first, then
plaintiff’s motion for leave to amend the Complaint.
BACKGROUND
According to the October 4th Order (Docket No. 70, at 3-6), plaintiff initially sued
defendant Citigroup Global Market Inc. (Docket No. 1) alleging its violation of Title VII,
42 U.S.C. §§ 2000e to 2000e-17. Plaintiff alleged that defendant failed to hire her due to her
religion (Muslim) and national origin (Iraqi) (id.). Citigroup Global Market then moved to
dismiss, in part arguing that it was not a proper party (Docket No. 5; see generally Docket No. 6,
Def. Memo. at 4-5; Docket No. 8, Decl. of Louis Santangelo, director and associate general
counsel of Citigroup, Inc.). In support of this motion, defense counsel included the redacted
version of plaintiff’s background check conducted by the FBI (Docket No. 7, Def. Citigroup
Global Market Atty. Decl. ¶ 3, Ex. 1). The deletions, apparently by the FBI2, were either to
preserve law enforcement privilege, with the United States Department of Justice and the FBI
claiming that disclosure of such information would impede or impair the effectiveness of
investigation techniques, methods, or procedures of the agency; or to prevent the unwarranted
invasion of personal privacy (id., Ex. 1, at 2), such as disclosure of plaintiff’s Social Security
number, see also Fed. R. Civ. P. 5.2(a)(1). The law enforcement redactions appear to eliminate
the names of sources that identified plaintiff as a “person of interest” for the fingerprints the
agency received on May 31, 2013, and November 22, 2013 (id., Ex. 1). Also redacted was the

Responses to Docket Nos. 74 and 76 (including in camera production of the background check) were due
by December 7, 2018, with reply by December 14, 2018, Docket Nos. 75, 77. Defendants responded and stated
their intention to submit to Chambers for in camera inspection the unredacted background check documents, Docket
No. 79. The United States of America then filed a Notice of Potential Participation, Docket No. 78, discussed
below. Plaintiff replied, Docket No. 80.
2

Initially it was not clear who redacted.

2

second charge against the person fingerprinted (id.)3. The FBI report concludes that “all arrest
entries contained in this FBI record are based on fingerprint comparisons and pertain to the same
individual,” with the disclaimer that “the use of this record is regulated by law. It is provided for
official use only and may be used only for the purpose requested” (id., Ex. 1 at 10). This
redacted report was at issue in plaintiff’s motions to compel (see Docket No. 70, Order at 3-4,
13-16).
On January 6, 2017, the parties stipulated to add two defendants, Citigroup Technology,
Inc., and Citicorp North America, Inc. (Docket No. 11; see also Docket No. 21). On
February 26, 2018, plaintiff again moved to amend the Complaint to add Citigroup Inc. as a
fourth defendant (Docket No. 43). That motion was granted (Docket No. 46). Plaintiff served
and filed the Amended Complaint (Docket No. 49, filed Mar. 28, 2018) and defendants
(hereinafter to identify all four Citigroup defendants named) answered (Docket No. 50).
Amended Complaint (Docket No. 49) and Current Scheduling Order (Docket No. 35)
In her Amended Complaint (Docket No. 49), plaintiff alleges intentional discrimination
in hiring that defendants refused to hire her because of her religion and national origin (id. at 1).
She further alleges that defendants discriminated against plaintiff based on her nationality and
religion inferred by defendants’ security personnel from her presence, photographs, and
identification which all showed her wearing traditional Muslim headscarf or hijab (id. at 2). In
October 2015, plaintiff applied for and was interviewed for the position of data entry clerk with
defendants through Randstad Staffing Agency (“Randstad”) (id.). Part of the application

3
For example, in the FBI background check read “Charge 1—this subject has been identified by [redacted]
as a person of interest, for additional information contact [redacted] at com [redacted] or [redacted]
“Charge 2—[redacted].” Docket No. 7, Def. Atty. Decl. Ex. 1, at 4.

3

process, plaintiff submitted to a background check and, despite coming back clear, security
personnel insisted plaintiff undergo a second international background check (id. at 3, Ex. B
(credit check)). While waiting for this application to be considered, plaintiff applied for
permanent positions with defendants and was offered a temporary position with them but needed
to wait for defendants’ security office to clear her to start (id. at 3). After interviews and one
email notifying her of interest in the Citigroup Lockbox Management group, on December 16,
2015, plaintiff received a second email from Randstad stating that it received word from
defendants that plaintiff had not passed a background check and therefore could not be hired (id.
at 4). On December 21, 2015, plaintiff wrote to defendants requesting an official reason for
denying her employment but defendants never responded (id.). In January 2016, plaintiff filed
charges with the Equal Employment Opportunity Commission (“EEOC”) and that agency issued
a Right to Sue Letter (id. at 2, Ex. A).
Under the current Scheduling Order (Docket No. 35, Order of Nov. 8, 2017) and prior to
the October 4 Order, amendment of pleadings was due by March 1, 2018, plaintiff’s expert
identification was due by June 4, 2018, with discovery to be completed by July 18, 2018.
Plaintiff in her motions to compel (Docket Nos. 54, 66) also sought extension of time to provide
her expert disclosure (Docket Nos. 54, 66). This Court held in abeyance the deadlines in the
current Scheduling Order while the motions to compel were pending (Docket Nos. 55, 62). On
October 4, 2018, in deciding those motions, this Court also established a provisional discovery
deadline for January 31, 2019, with a definitive deadline to be set upon disposition of the present
motion for leave to amend (Docket No. 70, Order of Oct. 4, 2018, at 24-25; see also Docket
No. 71).
4

Plaintiff’s Present Motion for Leave (Again) to Amend the Complaint (Docket No. 68)
On September 21, 2018, plaintiff filed her present motion for leave to again amend the
Complaint (Docket No. 68). From this Court’s comparison of the proposed amendment (id., Ex.)
to the existing Amended Complaint (Docket No. 49; see also Docket No. 72, Defs. Memo. at 4),
cf. W.D.N.Y. Loc. Civ. R. 15(b) (except for pro se litigants, parties seeking leave to amend are to
file a redline version of the amended pleading, showing proposed changes), plaintiff seeks to add
allegations about the redactions from her FBI background check report that was eventually
produced by defendants (first to the EEOC and then to plaintiff in discovery and to this Court in
defendant Citigroup Global Market’s motion to dismiss, Docket No. 6). First, plaintiff newly
alleges jurisdiction under this Court’s supplemental jurisdiction, 28 U.S.C. § 1367, for her claims
under New York State Human Rights Law, N.Y. Exec. Law §§ 290-97 (Docket No. 68, Pl.
proposed 2d Am. Compl. at 1), although plaintiff does not allege distinct claims under New York
law. Her next additional allegation claims that defendants “disrespected her legal rights” by
using her fingerprints and identification without her consent or permission by submitting them
for an unnecessary background check (id. ¶ 5). She further would allege that defendants
“unlawfully and intentionally concealed documents and falsely redacted Plaintiff’s FBI report
upon Law Enforcement Privilege to deprive Plaintiff of her rights under Title VII” (id. ¶ 6; see
also id. ¶¶ 15-16, 23). She plans to add discussion of the EEOC proceedings on her complaint to
that agency (id. ¶¶ 21-23). Plaintiff also would eliminate her earlier allegations that defendants
failed to comply with the Fair Credit Reporting Act and that defendants’ security office
discriminated against her by delaying processing her employment application (cf. Docket No. 49,
Am. Compl. at 4-5). The proposed amendment also has stylistic changes (in part recognizing
5

that she is suing multiple defendants or to restructure the jurisdictional allegations) and some
fleshing out of her damages allegations.
Plaintiff bases her new allegations from information she learned from receipt of the
EEOC investigation documents from her claim (Docket No. 68, Pl. Aff./Affirm. at 1). Plaintiff
explains that she briefly had pro bono counsel but that counsel withdrew “leaving the Plaintiff
with no discovery or information regarding the Court Scheduling Order” (id. ¶ 2). Once she
obtained that Scheduling Order, plaintiff moved quickly to comply with discovery deadlines (id.
¶ 3), although the deadline for motions to amend pleadings has passed. Despite what plaintiff
terms defense obstruction (see id. ¶¶ 4-5), plaintiff conducted her own investigation, collecting
documents from the EEOC and the FBI (id. ¶ 5). She argues that the proposed amendments do
not change the nature of relief requested and was filed in good faith “as soon as reasonably
possible after the facts became available to the plaintiff as a result of [her] discovery” (id. ¶ 6).
The amendments relate back to the earlier pleading and “adds newly uncovered facts that would
cure the defects in the” earlier pleading (id. ¶ 7). Plaintiff denies any surprise or other prejudice
to the defense and that the amendment would not delay eventual trial of this action (id. ¶¶ 8-9).
She concludes that, “in the interests of justice and the absence of undue prejudice to Defendants”
plaintiff seeks leave again to amend (id. at 3).
After noting defense production to plaintiff (Docket No. 72, Defs. Atty. Decl. ¶¶ 3-5) and
that plaintiff did not state her intention to amend her Complaint (id. ¶ 5), defendants argue that
plaintiff’s present motion is untimely under the Scheduling Order (Docket No. 72, Defs. Memo.
at 5-7). As for the proposed new claim that defendants mislead the EEOC, defendants counter
that raising this claim would be futile and noted that the EEOC nevertheless entered a Right to
6

Sue letter (id. at 12). Defendants next argue that, if Rule 15 still applies to this untimely motion,
plaintiff unduly delayed asserting her New York State Human Rights Law claim, despite her pro
se status (id. at 8-9, see Galet v. Carolace Embroidery Prods. Co., No. 91 Civ. 7991, 1994 U.S.
Dist. LEXIS 14060, at *17 (S.D.N.Y. Oct. 5, 1994) (Sotomayor, J.)), and such claims would be
futile because plaintiff cannot establish an inference of discrimination in the decision not to hire
her (id. at 11-12). Plaintiff had the redacted FBI background check report since June 2018, yet
she waited until September 21, 2018, to move to amend (id. at 9). Defendants claim that they
would be prejudiced if the amendment is granted because of the amount of time expended in
discovery to date and that the amendment is in fact a fishing expedition (id. at 9-10). Finally, as
for plaintiff’s new claims that defendants abused access to her personal data, defendants
conclude that these claims are also futile because plaintiff was being disingenuous in claiming
that she did not consent to being fingerprinted (id. at 12-13).
In reply, plaintiff argues that her motion was not made in bad faith and relief will not
unduly prejudice defendants (Docket No. 73, Pl. Reply at 2-10), arguing defendants’ refusal to
produce discovery has caused delay in this action (id. at 5-10). Plaintiff contends that defendants
made false or misleading statements to the EEOC (id. at 11-12), including the redactions of the
FBI background check report submitted to the EEOC (id. at 13-14). Plaintiff filed a Freedom of
Information Act request with the FBI, which belies the allegation that plaintiff was a “person of
interest” as identified in the background check (id. at 14, Ex. K). She concludes that the new
claims would not necessitate additional discovery and plaintiff has no more discovery demands
beyond what was ordered in the October 4th Order (id. at 14).

7

Plaintiff’s in camera Motion (Docket Nos. 74, 76)
Plaintiff then filed two motions for in camera relief (Docket Nos. 74, 76). As noted in the
second briefing Order (Docket No. 77), the only changes in these two motions appear to reorder
and add exhibits to the original motion (id.), thus the first motion was administratively
terminated (id.). This Court will consider the second motion (Docket No. 76).
There, plaintiff moves for defendants to produce in camera the unredacted background
check documents (id.). She notes that in 2017 she sought a copy of her FBI fingerprint check
and that report cleared her of any criminal investigations (id. at 3; Docket No. 61, Pl. Reply,
Ex. G, Oct. 13, 2017, letter FBI Criminal Justice Information Services Division to plaintiff). She
argues that the FBI and Department of Justice did not instruct defendants to redact the
background check report (Docket No. 76, at 5). Despite the October 4 Order setting the
discovery deadline of January 31, 2019, plaintiff contends that defendants have not complied
with the discovery Order, causing further delay in this case (id. at 6).
The briefing Orders (Docket Nos. 75, 77) gave defendants an alternative of opposing the
motion or submitting the documents for in camera review. Defendants stated that they would
separately submit to Chambers the documents for in camera review (Docket No. 79), which were
received in Chambers on December 10, 2018. Defendants did that after consultation with the
FBI and that agency stating that it had no objection to in camera review (id.).
Meanwhile, the United States Department of Justice (also referred to herein as the
“Government”) filed a Notice of Potential Participation in this action (Docket No. 78). There,
the Government does not oppose in camera review but, if this Court considers a wider
dissemination of the unredacted materials, the Government intends to intervene in this action,
8

under 28 U.S.C. § 517 (id. at 2). Since the decision to intervene requires input from different
agencies and internal approval within the Civil Division of the Justice Department, the
Government sought several weeks for such approval and requested to advise this Court at least
two weeks of the notice of the status of the approval process (id.).
Plaintiff replied on December 8, 2018, that defendants completely failed to respond to her
motion, consistent with past evasion in discovery in this case (Docket No. 80, Pl. Reply at 1-2).
Defense did not state who authorized the redactions at issue (id. at 2). Plaintiff appears to
welcome the Government’s participation in this case (id.).
Unredacted FBI Background Check
This Court received in Chambers the unredacted background check. The report expressly
states the entity that identified plaintiff as a person of interest in the finger printing she had in
2013 and the contact information for that entity. Although recorded by the FBI, an investigative
agency, the report does not appear to arise from criminal investigations, despite the FBI form use
of “arrest” and “charges”.
Since this Court cannot yet describe in more detail the report, some background is in
order. In her employment application to defendants, plaintiff noted that she worked for the
United States Military Command in Iraq from March 2007, requiring her to have successful
background clearance to obtain and retain her position (see Docket No. 54, Pl. Motion, Ex. B,
PL. Interrog., Interrog. Attachment 12). The original Complaint attached several letters of
recommendation from military and World Bank officials from 2007-13 attesting to plaintiff’s
skills and professionalism at work (Docket No. 1, Compl., Ex. 5, attachments to Dec. 21, 2015,
letter to Human Resources, Citigroup Global Markets).
9

According to the letter the FBI’s Criminal Justice Information Services Division sent to
plaintiff on October 13, 2017 (Docket No. 61, Pl. Reply, Ex. G), that Division
“serves as the nation’s central repository and custodian for fingerprint identification and related
[FBI Identity History Summary, or “IdHS”] information submitted by duly authorized local,
state, tribal, federal, foreign and international criminal justice agencies. FBI fingerprint
background checks for employment screening are effected through the comparison of an
applicant’s fingerprints with those maintained in the FBI Criminal File. The FBI’s role in the
matter is to perform the fingerprint search and return any resulting IdHS to the contributing
agency without comment or interpretation,”
(id.; see also Docket No. 73, Pl. Reply, Ex. K).
DISCUSSION
I.

Applicable Standards
A.

Discovery and Motions for In Camera Review

As previously noted (Docket No. 70, Order at 9-10), discovery under the Federal Rules is
intended to reveal relevant documents and testimony, but this process is supposed to occur with a
minimum of judicial intervention. See 8A Charles A. Wright, Arthur R. Miller & Richard L.
Marcus, Federal Practice and Procedure § 2288, at 655-65 (Civil 2d ed. 1994). “Parties may
obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or
defense–including the existence, description, nature, custody, condition, and location of any
documents or other tangible things and the identity and location of persons having knowledge of
any discoverable matter.” Fed. R. Civ. P. 26(b)(1) (effective Dec. 1, 2007).
Federal Rule 26(b)(2)(i) allows this Court to limit the scope and means for discovery if
“the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some
other source that is more convenient, less burdensome, or less expensive.” Under Rule 26(c),
this Court may issue a protective Order to protect a party “from annoyance, embarrassment,
10

oppression, or undue burden or expense” by not having a proposed disclosure or discovery
device, or conditioning the time and manner of that discovery. Fed. R. Civ. P. 26(c)(1), (1)(B)(C); see id. R. 26(c)(1)(D) (limit the scope or the matters inquired into).
Federal Rule of Civil Procedure 37(a) allows a party to apply to the Court for an Order
compelling discovery, with that motion including a certification that the movant in good faith
conferred or attempted to confer with the party not making the disclosure to secure that
disclosure without court intervention. Fed. R. Civ. P. 37(a)(2)(A). Similarly, under Rule 26(c),
prior to obtaining a protective order the movants must certify that they have in good faith
conferred or attempted to confer with the other affected parties in an effort to resolve the dispute
without court intervention, Fed. R. Civ. P. 26(c). Under Rule 26(c), the Court has power to
protect against abuses in discovery. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 34 (1984).
The appropriateness of a protective Order is a balance of the litigation needs of the requesting
party and the protectable interests of the party from whom discovery is sought. Mitchell v.
Fishbein, 227 F.R.D. 239, 245 (S.D.N.Y. 2005). This Court has broad discretion in issuing such
a protective Order. Seattle Times, supra, 467 U.S. at 36.
Rule 34(a)(1) governs production of documents and other tangible items. A requesting
party may serve a request, within the scope of Rule 26(b) to produce and permit inspection,
copying items “in the responding party’s possession, custody, or control,” Fed. R. Civ.
P. 34(a)(1) (emphasis added), such as documents, id. R. 34(a)(1)(A). “Control” under this rule is
“construed broadly to encompass documents that the respondent has ‘the legal right, authority, or
practical ability to obtain . . . upon demand,’” Chevron Corp. v. Salazar, 275 F.R.D. 437, 447
(S.D.N.Y. 2011) (quoting Dietrich v. Bauer, No. 95 Civ. 7051, 2000 U.S. Dist. LEXIS 11729
11

(S.D.N.Y. Aug. 16, 2000)). Where the respondent contests its ability to produce the document,
the requesting parties bear the burden of demonstrating the respondent’s control, In re Flag
Telecom Holdings, Ltd. Sec. Litig., 236 F.R.D. 177, 180 (S.D.N.Y. 2006); Chevron Corp., supra,
275 F.R.D. at 447, since the issue of the degree of respondent’s control is a question of fact,
Gross v. Lunduski, 304 F.R.D. 136, 142 (W.D.N.Y. 2014) (Foschio, Mag. J.).
B.

Motion for Leave to Amend
1.

Rule 15

Under Federal Rule of Civil Procedure 15(a) amendment of pleadings after the time to do
so as of right requires either consent of all parties (apparently not present here) or by leave of the
Court. Under Rule 15(a) motions for leave to amend the complaint are to be freely given when
justice requires. Granting such leave is within the sound discretion of the Court. Foman v.
Davis, 371 U.S. 178, 182 (1962); Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321,
330 (1971). “In the absence of any apparent or declared reason–such as undue delay, bad faith
or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue of allowance of the
amendment, futility of amendment, etc.–the leave sought should, as the rules require, be ‘freely
given.’” Foman, supra, 371 U.S. at 182 (quoting Fed. R. Civ. P. 15(a)).
If a plaintiff is proceeding pro se, as here, leave to amend should be freely granted,
Frazier v. Coughlin, 850 F.2d 129, 130 (2d Cir. 1988) (pro se should be freely afforded
opportunity to amend).

12

2.

Rule 16

Under Rule 15(a), amendment of pleading after the time to do so as of right requires
either consent of all parties (not present here) or by leave of the Court. Although Rule 15 has
leave to amend freely granted, the timing of such motions for that leave is set when this Court
issues a Scheduling Order setting the deadline for such motions, see Fed. R. Civ. P. 16(b)(3)(A);
W.D.N.Y. Loc. Civ. R. 16(b)(4)(A); see also Parker v. Columbia Pictures Indus., 204 F.3d 326,
339-40 (2d Cir. 2000) (Docket No. 72, Defs. Memo. at 5). Scheduling Orders set a deadline for
amendment of pleading and limit the time for amendments because “the rule is designed to offer
a measure of certainty in pretrial proceedings, ensuring that ‘at some point both the parties and
the pleadings will be fixed,’” id. at 340 (quoting Fed. R. Civ. P. 16 advisory comm. Note, 1983
amend., discussion of subsection (b)).
Modification of a Scheduling Order is done only by this Court’s Order, W.D.N.Y. Loc.
Civ. R. 16(b), and upon a showing of good cause, Fed. R. Civ. P. 16(b)(4); see 6A Charles A.
Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1522.1, at 23031(Civil 2d ed. 1990); Carnite v. Granada Hosp. Group, 175 F.R.D. 439, 446 (W.D.N.Y. 1997)
(Foschio, Mag. J.) (Report & Recommendation), adopted, 175 F.R.D. at 441 (Arcara, J.). “In the
absence of some showing of why an extension is warranted, the scheduling order shall control.”
6A Federal Practice and Procedure § 1522.1, at 231. This Court has broad discretion in
preserving the integrity of its Scheduling Orders, see Barrett v. Atlantic Richfield Co., 95 F.3d
375, 380 (5th Cir. 1996), including the discretion to extend its deadlines when good cause is
shown. Carnite addressed a represented plaintiff’s failure to move to amend the Court’s
scheduling order to allow for the motion for leave to amend the Complaint and his failure to raise
13

“even [a] facially persuasive reason” to grant relief. Carnite, supra, 175 F.R.D. at 448 (Foschio,
Mag. J.).
II.

In Camera Review
Plaintiff’s motion (Docket No. 76; cf. Docket No. 74) for in camera production of the

background check documents is deemed moot given this Court’s review of the in camera
documents submitted by defendants. Despite plaintiff’s reply (cf. Docket No. 80), defendants
did not respond contesting her motion but furnished for Court inspection the disputed document.
The redactions at issue covered the entity that obtained plaintiff’s fingerprints in 2013
that the so-called charges, including contact information for that entity and unknown codes.
From the redacted version of the report (Docket No. 7, Ex.1), the report refers to “arrested or
received” for instances when fingerprints were collected and “charges” describing why the prints
were collected. Looking at the unredacted version (without revealing more), these criminal
investigative terms may not be apt. These instances of fingerprinting may not have arisen from a
criminal investigation but may have been for a security clearance. Note, plaintiff worked as an
interpreter for the United States Military Command in Iraq and the World Bank.
The Department of Justice notice of potential participation in this case and defendants’
filing indicating that they would supply the documents for this Court’s review (Docket Nos. 78,
79) clearly show that defendants lack control over the background check documents plaintiff
now seeks. Rule 34(a)(1) only requires responding parties to produce what they have in their
possession, custody, or control. While defendants received and possessed the background check
report, the redaction (the heart of the present motion practice) was dictated by a non-party, the
FBI. That agency conditioned the distribution of that report. While disputing whether the FBI or
14

defendants redacted, plaintiff has not shown that defendants had “the legal right, authority, or
practical ability to obtain . . . upon demand,” Dietrich, supra, 2000 U.S. Dist. LEXIS 11729
(S.D.N.Y. Aug. 16, 2000), to produce this background check report without alteration. Ultimate
production of this report hinges on the degree of control defendants have on the document and
plaintiff’s ability to establish defendants’ legal right, authority, or practical ability to obtain the
entirety of that document for production. With the Government’s looming participation (see
Docket No. 78) in this action on the disclosure question indicates the degree of control
defendants have on that report.
Plaintiff’s motion for in camera review is mooted by this Court’s review. The in
camera submission by defendants will be filed under seal. Plaintiff thus will need to move to
compel its disclosure.
This next issue (implicit in plaintiff’s present motion) is ultimate production of the report
without redaction to plaintiff. This was the crux of plaintiff’s initial motion to compel (e.g.,
Docket No. 54) and this Court held for that motion that defendants had produced the redacted
version and that such production was adequate. This decision assumed that defendants only
produced what they had “in their possession, custody, and control” (Docket No. 70, Order of
Oct. 4, 2018, at 16, emphasis in original removed). With defendants in camera production, it is
clear that they received the unredacted document but were instructed by the FBI how to
distribute it. Plaintiff, if she still wants that unredacted version of the background check report,
needs to renew her motion to compel its production. Prior to granting that relief, the
Government may need to weigh in on whether this report should be produced to plaintiff without
redaction (Docket No. 78). The Government indicated that its decision to intervene in this case
15

will take weeks because of its internal decision-making processes (id.). Therefore, plaintiff’s
renewal motion is due by February 15, 2019 (allowing enough time for the Government to act),
and plaintiff needs to send a copy of her motion papers to the United States Department of
Justice to the trial attorney from the Civil Division who filed the Notice of Potential Participation
(Docket No. 78), as a courtesy. That way, the Government will be aware of the proceedings and
can decide whether to intervene based upon a more complete record.
III.

Leave to Amend Complaint
There are two issues to be considered with plaintiff’s motion for leave to amend. First,

whether plaintiff moved in a timely fashion or has good cause otherwise to act outside of the
Scheduling Order deadline. Second, whether leave to amend should nevertheless be granted
because justice requires; this inquiry reaches the issues of whether the proposed amendment is
futile, whether it is dilatory or made in bad faith, or other grounds for denial of that leave.
A.

Timing of the Motion and Rule 16

Under the Scheduling Order, the motion is untimely without plaintiff seeking extension
of that deadline. Motions for leave to amend were due on March 1, 2018 (Docket No. 35).
Plaintiff had not moved to extend this deadline; given that she proceeded pro se since the entry
of that Scheduling Order and the filing of this motion, this Court presumes that plaintiff intends
to extend the deadline (nunc pro tunc) for her motion, see Frazier, supra, 850 F.2d at 130; see
also Haines v. Kerner, 404 U.S. 519 (1972) (per curiam) (pleading of a pro se plaintiff is to be
liberally construed).
Since the discovery of the unredacted background check documents is central to at least
two other series of motions (as just discussed), this Court next considers whether plaintiff can
16

amend her complaint (despite the timeliness of the motion) to allege claims surrounding that
production.
B. Should Leave to Amend Be Granted Under Rule 15?
Plaintiff seeks to add essentially a discovery dispute—the failure to produce the
unredacted background check report—as a new cause of action. Her motion for that relief
(Docket No. 68) is denied as futile.
Plaintiff’s prior motions for leave to amend either addressed Citigroup Global Market’s
objections raised in its motion to dismiss (Docket Nos. 11, 14, 15) or to add defendants (Docket
No. 11). Plaintiff moved to amend the Complaint again to add another defendant (Docket
No. 43). The latest proposed amendment would add claims surrounding the redaction of the FBI
background check report, the same report that led to her denial of employment. Plaintiff has not
been posed with objections to her claims that repeated amendments attempt to correct.
Her amendment, however, is futile. Plaintiff seeks an otherwise discovery sanction (cf.
Fed. R. Civ. P. 37) by amending her Complaint. As for plaintiff’s new allegations surrounding
the redaction to the background check, adding such claims would be futile and fail to state a
claim. Plaintiff has through the EEOC and motion to dismiss in this action the redacted
background check. The failure to produce the original background check report is not actionable
as a cause of action. Because defendants abided by a third party’s conditions for distribution or
dissemination of a document does not create a cause of action for the party seeking unfettered
access to that document. Plaintiff failed to establish defendants’ liability or damages to her
arising from production of only the redacted version of the background check report. Plaintiff
also has not shown that she is entitled to the unredacted document. Under the Federal Rules of
17

Civil Procedure, some redaction would have been required, Fed. R. Civ. P. 5.2(a) (redaction of
Social Security numbers). Under that Rule’s 5.2(e), this Court for good cause may order further
redaction of information, Fed. R. Civ. P. 5.2(e).
As for plaintiff’s other proposed amendments to allege claims under the New York
Human Rights Law, this Court enjoys supplemental jurisdiction over state law claims such as
these. The New York law parallels (and in some cases goes beyond) Title VII and other federal
civil rights laws. Plaintiff has not explained why she failed to raise these parallel state claims
prior to this cycle of motions. Plaintiff has proceeded pro se and with pro bono representation,
and has amended this Complaint a couple of times on her own (see Docket Nos. 14, 43). Leave
to add this supplemental claim is denied.
Leave for plaintiff’s amendments to have the Amended Complaint reflect that multiple
defendants are charges and similar cosmetic changes is granted.
Given the above determination that plaintiff’s new claims are futile, this Court does not
need to reach arguments that their filing was either dilatory or prejudicial to defendants. Thus,
plaintiff’s motion for leave to amend again this Complaint (Docket No. 76) is granted in part,
denied in part as discussed above. Plaintiff has until February 1, 2019, to file and serve her
Amended Complaint consistent with this Order.
IV.

First Amended Scheduling Order
As noted in the Order on plaintiff’s motions to compel (Docket No. 70; see also Docket

Nos. 71, 54, 66 (plaintiff’s motions for extension of the Scheduling Order deadlines)), the
schedule for remaining pretrial activities in this case was dependent upon the resolution of the
leave to amend motion. If plaintiff were granted leave to amend, defendants would need time to
18

answer the new charges and both sides would need time to conduct additional discovery on the
new claims plaintiff raised. If leave were denied, then parties would need time to complete
remaining discovery and subsequent deadlines needed to be reset. The Orders setting the
discovery deadline for January 31, 2019 (Docket Nos. 70, 71), were contingent upon resolution
of what claims are pending.
If this leave to amend motion were the only outstanding matter, this Court would set an
amended Schedule for further pretrial activities in this case, amending the existing Scheduling
Order (Docket No. 35; see also Docket Nos. 70, 71). The lingering issue of the FBI background
check report now prevents the setting a new schedule. Plaintiff filing a formal motion to compel
production of the unredacted (addressing defendants’ control in the face of FBI restrictions),
defendants’ response, and the Government’s participation over the question of ultimate
disclosure of the unredacted background check to plaintiff delay setting an Amended Scheduling
Order. One key unknown is how long it will take for the Government to decide to intervene.
Once that disclosure issue is resolved, an amended schedule can be entered. That
schedule would set (or reset) deadlines for:
•

Leave to further amend pleadings;

•

Discovery completion;

•

Dispositive motions before Chief Judge Geraci;

•

The end of referral to Mediation.

Until there is that resolution (which relates to whether the Government intervenes or not),
the discovery deadline is extended to March 15, 2019. This will afford plaintiff and defendants
sufficient time for plaintiff to serve her Amended Complaint (by February 1, 2019), for
19

defendants to answer, and for the parties to complete the rest of the discovery. It also gives the
parties (and the Government) sufficient time to resolve the Government intervention question
and the ultimate production issue for the unredacted background check report. Again, this
discovery deadline (and subsequent procedural deadlines) will change once the unredacted report
issue is resolved and time is given to complete discovery.
Plaintiff’s motions for extension of the former Scheduling Order deadlines (Docket
Nos. 54, 66) remains pending until the Government decides on intervening in this matter.
CONCLUSION
For the reasons stated above, plaintiff’s motions (Docket Nos. 74, 76) for in camera
inspection of the unredacted FBI background check documents are terminated (as for Docket
No. 74, see Docket No. 77) and denied as moot (given this Court’s in camera review and
plaintiff’s motion (Docket No. 68) for leave to amend the Amended Complaint is granted in
part, denied in part as discussed above. So much of plaintiff’s motions (Docket No. 54, 66) for
extension of discovery deadlines in the former Scheduling Order (Docket No. 54, 66; see Docket
No. 35) are granted and the new deadlines are set forth above. Plaintiff has until February 1,
2019, to file and serve an Amended Complaint. If plaintiff intends to renew her motion to
compel production of the unredacted FBI documents, that motion is due by February 15, 2019,
with a courtesy copy sent to the United States Department of Justice, Civil Division, to the
attention of the attorney who signed the Notice of Potential Participation (Docket No. 78). As
discussed in detail, discovery in this action provisionally shall conclude by March 15, 2019.
Defendants’ in camera submission will be filed under seal.

20

A copy of this Order will be mailed by Chambers to the pro se plaintiff’s address of
record. Court Clerk is instructed to forward a copy of this Order to counsel at the Civil Division
of the United States Department of Justice who filed the Government’s Notice of Potential
Participation (see Docket No. 78).
So Ordered.

/s/ Hugh B. Scott
Hon. Hugh B. Scott
United States Magistrate Judge

Dated: Buffalo, New York
December 14, 2018

21