Malcolm v. Honeoye Falls-Lima Education Association ("HFLEA") et al

Filing 70

ORDER denying 64 Motion to Dismiss; denying 66 Motion to Stay; denying 66 Motion for Leave to File; denying 66 Motion for Extension of Time to File. Signed by Hon. Jonathan W. Feldman on 9/28/2012. (RJO)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
BERNICE MALCOLM,
DECISION AND ORDER
08-CV-6551

Plaintiff(s),
v.
HONEOYE FALLS-LIMA EDUCATION
ASSOCIATION
Defendant(s).

Preliminary Statement
The

instant

action

stems

from

pro

se

plaintiff

Bernice

Malcolm’s employment with the Honeoye Falls-Lima Central School
District. See Complaint (Docket # 1). In her Complaint, plaintiff
alleges, inter alia, that in 2006 defendants began engaging “in a
pattern of unlawful discrimination directed at Plaintiff” on the
basis of her race, color and gender.

Id. Currently pending before

the Court is defendant Honeoye Falls-Lima Education Association’s
(hereinafter

“HFLEA”)

motion

to

dismiss1

(Docket

#

64)

and

plaintiff’s cross-motions to stay, for leave to file an amended
complaint, and for an extension of time (Docket # 66).

Relevant Factual Background
Plaintiff is a former employee of the Honeoye Falls-Lima
Central School District who has filed multiple lawsuits in federal

1

This dispositive motion is being heard by the undersigned by
consent of the parties pursuant to 28 U.S.C. Section 636(c). See
Docket # 33.

and

state

court

alleging,

inter

alia,

discrimination

retaliation against her former employer and former union.

and

In this

particular action, on January 11, 2010, Judge Larimer granted in
part defendants’ motion to dismiss (Docket # 5), dismissing all of
plaintiff’s claims with prejudice except for her Title VII/New York
Human

Rights

Law

claims

against

HFLEA

for

its

alleged

discriminatory failure to file grievances on her behalf and/or to
provide her with representation during disciplinary proceedings.
See Decision and Order dated January 11, 2010 (Docket # 27).

As a

result, those are the only remaining claims in the instant action
and HFLEA is the only remaining defendant.
On February 10, 2011, exactly one month after Judge Larimer’s
January 10, 2011 Decision and Order, plaintiff filed a Complaint in
New York State Supreme Court, Monroe County.

Like the pending

federal claim, plaintiff’s state court lawsuit alleged that HFLEA
improperly failed to file and pursue grievances on her behalf. See
Exhibit “A" attached to Docket # 56.

On July 7, 2011, New York

State Supreme Court Justice William P. Polito dismissed all of the
plaintiff’s

claims

filed

in

Supreme

Court,

including

her

allegations that the HFLEA failed to prosecute grievances on her
behalf

and

failed

to

disciplinary hearings.

provide

representation

to

her

in

the

See Exhibit “A” attached to Docket # 62.

On August 3, 2011, the undersigned directed defense counsel “to
file a motion and Memorandum of Law setting forth the defendants’

2

position

as

to

the

impact

Judge

Polito’s

decision

has

on

plaintiff’s ability to further prosecute this action in federal
court.”

See Decision and Order (Docket # 63) at p. 3.

Thereafter,

on September 12, 2011, the HFLEA filed the instant motion to
dismiss.

(Docket # 64).

Discussion
Defendant’s Motion to Dismiss: The HFLEA moves to dismiss
plaintiff’s remaining federal claim pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure (“FRCP”) on grounds that
plaintiff’s surviving claim is barred by the doctrines of res
judicata and collateral estoppel. (Docket # 64).

Counsel for the

HFLEA requests that the Court “give preclusive effect to the issues
decided by the New York Supreme Court and dismiss plaintiff’s
remaining claims.”

See Defendant’s Memorandum of Law (hereinafter

“Def. Memo”) annexed to Docket # 64 at p. 2.
The Supreme Court has recognized that “federal courts have
traditionally adhered to the related doctrines of res judicata and
collateral estoppel.”

Allen v. McCurry, 449 U.S. 90, 94 (1980).

Under the doctrine of res judicata, “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.” Id. In Allen, the Supreme Court recognized that “federal
courts generally have also consistently accorded preclusive effect

3

to issues decided by state courts” and remarked that, as a result,
these doctrines “not only reduce unnecessary litigation and foster
reliance on adjudication, but also promote the comity between state
and federal courts that has been recognized as a bulwark of the
federal system.”

Id. at 95-96; see also Kremer v. Chem. Const.

Corp., 456 U.S. 461, 466-67 (1982)(holding that New York State
Supreme

Court’s

decision

dismissing

plaintiff’s

Title

VII

employment discrimination claims as “meritless” was to be given
“preclusive effect”). However, there is an important limitation on
the applicability of the res judicata doctrine. To have preclusive
effect, the judgment must have been rendered on the merits.

“The

requirement that a judgment, to be res judicata, must be rendered
‘on the merits' guarantees to every plaintiff the right once to be
heard on the substance of his claim.”

Saylor v. Lindsey, 391 F.2d

965, 968 (2d Cir. 1968).
In dismissing plaintiff’s state court action, Judge Polito
ruled as follows: “The claims against the Union defendants are
dismissed pursuant to CPLR 3211(4) based on the currently pending
Federal Court action, in which all but plaintiff’s ‘Title VII NYHRL
discrimination claim against HFLEA for alleged failure to file
grievances [were] dismissed with prejudice.’”
attached to Docket # 62 at p. 6.

See Exhibit “A”

CPLR § 3211(a)(4) provides that

a party may move for judgment dismissing a claim on the ground that
“there is another action pending between the same parties for the

4

same cause of action in a court of any state or the United States.”
Thus, the stated basis for Judge Polito’s Order dismissing the
state court action was not a determination on the merits of
plaintiff’s claim, but rather was because plaintiff was already
pursuing the same cause of action in the pending federal court
lawsuit.

Accordingly, res judicata is inapplicable.

Counsel

for

HFLEA

argues

that

Judge

Polito’s

decision

contained a basis for his holding that should be given preclusive
effect by this Court.

After dismissing the action based on CPLR §

3211(a)(4), Judge Polito stated: “However, even assuming that this
Court did not dismiss the action pursuant to CPLR 3211(4) based
upon the pending Federal action in which only one claim continues,
this Court would grant dismissal of all claims.”
attached to Docket # 62 at p. 6.

See Exhibit “A”

Judge Polito goes on to explain

that plaintiff “has pled no facts to show that she requested the
Union act on her behalf, but rather, that she had retained private
counsel and discharged the Union.”

Id.

While the quoted language

does address the merits of plaintiff’s claims against the HFLEA, it
seems to this Court such language to be dicta, as it “assumes” that
the Court did not grant the motion based on CPLR § 3211(a)(4), an
assumption that is clearly not true.

In other words, Judge

Polito’s discussion of the substantive merits of the claim against
the HFLEA was not necessary to his primary holding that the action
was

subject

to

dismissal

pursuant

5

to

CPLR

§

3211(a)(4)

and

accordingly can not be given preclusive effect.

To hold otherwise

would be to create a "Catch 22" paradox in which plaintiff can not
proceed in state court because she has a pending federal court
action and can not proceed in the federal court action because a
dismissal pursuant to CPLR § 3211(a)(4) should be given preclusive
effect.

See

Simpkins

v.

City

of

Belleville,

Ill.,

No.

09–cv–912–JPG, 2010 WL 1849348, at *5 (S.D. Ill. May 7, 2010)(“A
particular finding is not ‘necessary’ to a judgment and will not
have preclusive effect in a subsequent case if the judgment did not
depend on the finding.”).
The foregoing notwithstanding, after review of Judge Larimer’s
2010 Decision and Order and Judge Polito’s 2011 Decision, serious
doubts have been raised as to the substantive merits of plaintiff’s
claims against the HFLEA.
between

Indeed, courts draw a distinction

“obiter dicta,” which is uttered as an aside and not

considered precedential and “judicial dicta” which, while not
binding, is often given considerable weight.

Simpkins v. City of

Belleville, Ill., 2010 WL 1849348, at *5; see United States v.
Bell, 524 F.2d 202, 206 (2d Cir. 1975)(distinguishing between
“obiter dictum” and “judicial dictum”).

Judge Larimer and Judge

Polito’s comments about the merits of plaintiff’s claims against
the HFLEA seem to fall squarely on the side of “judicial dictum.”
For this reason, and because ample time has been given for the

6

focused discovery2 allowed in Judge Larimer’s Decision and Order,
this

Court

finds

that

the

substantive

merits

of

plaintiff’s

remaining federal court claim should now be tested against a motion
for summary judgment. Accordingly, defendant shall have sixty (60)
days from the date of this Decision and Order to file a motion for
summary judgment.
Plaintiff’s Motions: Plaintiff’s motion to amend her Complaint
is denied.

The proposed amended complaint is 73 pages long and

contains at least 424 separately numbered allegations.

It is

unwieldily and unnecessarily complex. The gist of plaintiff’s lone
surviving claim – that the HFLEA discriminated against her by
failing to file grievances and refusing to pursue her complaints –
can be fairly considered and measured in the existing Complaint.
See Singh v. N.Y. Dep't of Taxation & Fin., No. 06–CV–00299C(F),
2011

WL

3273465,

at

*36

(W.D.N.Y.

July

28,

2011)(denying

plaintiff's application "to add numerous allegations" because the
allegations "do not assert new claims; rather, they are additional
factual allegations" and "these allegations need not be pleaded"),
adopted by 2011 WL 5069393 (W.D.N.Y Oct. 25, 2011); see also Fei v.
WestLB AG, No. 07CV8785(HB)(FM), 2008 WL 594768, at *2 (S.D.N.Y.
Mar. 5, 2008)(noting that courts may deny leave to amend where the

2

The Docket reveals that plaintiff served discovery demands
(see Dockets ## 45, 46, 47), but no responses were filed by
defendant. Defendant is reminded that pursuant to Western District
Local Rule 5.2(f) “all discovery materials in pro se cases shall be
filed with the Court.”
7

amendments would “not improve the position of a party”)(citing
Foman v. Davis, 371 U.S. 178 (1962)).
Plaintiff’s motion for a stay of these proceedings is denied.
Plaintiff sought the stay because she is appealing Judge Polito’s
decision dismissing her state court case. Since this Court has now
determined that Judge Polito’s Decision does not preclude her from
pursuing her federal claim against the HFLEA, it is not necessary
to stay this case so she can prove that Judge Polito’s decision was
erroneous.
Finally, plaintiff’s motion for an extension of time to file
a response to the defendant’s motion to dismiss is denied as moot
since the Court has not dismissed plaintiff’s remaining federal
claim.
Conclusion
Defendant’s
Plaintiff’s

motion

to

cross-motions

dismiss
for

a

(Docket

stay,

to

#

64)

amend,

is
and

denied.
for

extension (Docket # 66) are denied.
SO ORDERED.

______________________________
JONATHAN W. FELDMAN
United States Magistrate Judge
Dated: September 28, 2012
Rochester, New York
8

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