Opinion
21-CV-7090 (LTS)
01-18-2022
LAURA DAVIS, Plaintiff, v. SEDGWICK CLAIMS MANAGEMENT SERVICES, Defendant.
ORDER OF DISMISSAL WITH LEAVE TO REPLEAD
LAURA TAYLOR SWAIN, Chief United States District Judge.
Plaintiff Laura Davis, who is proceeding pro se and in forma pauperis (IFP), filed a seven-page complaint against Sedgwick Claims Management Services (Sedgwick), claiming that Sedgwick failed to provide benefits to which she was entitled as an employee of Delta Airlines (Delta). By order dated September 17, 2021, the Court directed Plaintiff to amend her complaint to address deficiencies in the original pleading. On November 18, 2021, Plaintiff filed a 330-page, single-spaced amended complaint that added two new plaintiffs (Venus Stinnett and Aasir Azzarmi), ten new defendants, and multiple new and different claims. The Court dismisses the amended complaint for the reasons set forth below.
STANDARD OF REVIEW
The Court must dismiss an IFP complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 USC § 1915[e][2][B]; see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction. See Fed.R.Civ.P. 12(h)(3).
While the law mandates dismissal on any of these grounds, the court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest [claims] that they suggest, ” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). But the “special solicitude” in pro se cases, id. at 475 (citation omitted), has its limits -to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil Procedure, which requires a complaint to make a short and plain statement showing that the pleader is entitled to relief.
The Supreme Court has held that, under Rule 8, a complaint must include enough facts to state a claim for relief “that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the court to draw the inference that the defendant is liable for the alleged misconduct. In reviewing the complaint, the court must accept all well-pleaded factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). But it does not have to accept as true “[t]hreadbare recitals of the elements of a cause of action, ” which are essentially just legal conclusions. Twombly, 550 U.S. at 555. After separating legal conclusions from well-pleaded factual allegations, the court must determine whether those facts make it plausible - not merely possible - that the pleader is entitled to relief. Id.
BACKGROUND
Plaintiff Laura Davis, a resident of California, filed her original complaint against Sedgwick, which she identifies as a Delaware corporation with a principal place of business in Tennessee and a “service address” in Albany, New York. She alleged that her claims arose from events occurring in California and New York, from 2017 to the present. (ECF 1 at 4.) The allegations were as follows:
Citations are to the Electronic Case Filing (ECF) system's pagination.
1981 claim: I am black, I had an employment contract with Delta Airlines, Inc. Because of my race, Defendant Sedgwick impaired my employment contract with Delta Airlines.
ERISA [Employee Retirement Income Security Act of 1974] claim: Defendant Sedgwick CMS refused and denied and failed to pay my short term and long term and retirement benefits under Delta's plan.
Defamation: Defendant Sedgwick CMS told third parties, in California and New York, including my employer, Delta Airlines, Inc. that I am a “pole dancer” and a “stripper” who gives “naked lap dances” and does “peep shows” and that I'm a “pimp” who sells females for sex and that I committed “workers compensation fraud” and that I was involved in a “Fraudulent scam” where I was selling travel benefits to unknown third parties to “steal” money from Delta Airlines, Inc.(Id. at 5.)
Plaintiff sought $50 million in “restitution” for money she “paid into Delta's long and short term disability plans and retirement plans, emotional damages, punitive damages, injunctive relief, loss of income, back pay, loss of health insurance, any relief under ERISA and [42 U.S.C. §] 1981 for impairment of my employment contract.” (Id. at 6.)
In addition, Plaintiff asked that her case be related to Azzarmi v. Neubauer, No. 7:20-CV-9155 (KMK) (Azzarmi I), a pro se complaint filed in this District by Azzarmi and Stinnett against Sedgwick and QBE, among other defendants. (Id. at 7.) In Azzarmi I, Azzarmi and Stinnett asserted defamation and other state law claims, and discrimination claims under Section 1981, arising from workers compensation matters.
Motions to dismiss are pending in Azzarmi I.
In the September 17, 2021 order, the Court: (1) set forth the elements of the claims Plaintiff sought to assert (ERISA, Section 1981, and defamation); (2) directed Plaintiff to amend her complaint to provide facts showing that she could state a viable claim; (3) denied Plaintiff's request to relate the matter to Azzarmi I; and (4)informed Plaintiff that if she failed to comply within the time allowed, and could not show good cause to excuse such failure, the complaint would be dismissed for failure to state a claim upon which relief may be granted. (ECF 1:21-CV-7090, 5.)
The Court also noted in its order that Plaintiff had previously filed a joint amended complaint with Azzarmi and Stinnett against Delta in the United States District Court for the Central District of California. Azzarmi v. Delta Airlines, No. 20-CV-1529 (C.D. Cal. Mar. 16, 2021) (Azzarmi II) (dismissing 500-page amended complaint because it did “not cure the res judicata issue, ” and violated Rule 8 [of the Federal Rules of Civil Procedure], which requires “a short and plain statement of the claim.”), appeal dismissed, 21-55265 (9th Cir. Aug. 16, 2021) (granting Davis's motion to voluntarily dismiss appeal, and dismissing as frivolous the appeal of Azzarmi and Stinnett).
Azzarmi, who also uses the name Nicholas Pimental, has brought approximately 20 pro se actions arising out of his prior employment with Delta, none of which has succeeded. In Azzarmi v. Catania, ECF 1:20-CV-4712, 59 (KMK) (S.D.N.Y. Oct. 28, 2021) (Azzarmi III), he was ordered to show cause why a filing injunction should not be imposed, but that case ended on other grounds without such an injunction having been entered. On October 29, 2021, Azzarmi moved for reconsideration of the dismissal; that motion remains pending. In light of Azzarmi's extensive litigation history, another court deemed him a vexatious litigant. See Azzarmi v. Wurtz, No. 20-CV-607 (C.D. Cal. May 21, 2020) (Azzarmi IV.)
On November 18, 2021, the Court received an amended complaint signed by Plaintiff, Azzarmi, and Stinnett, and IFP applications from Azzarmi and Stinnett (ECF 1:21-CV-7090, 68.) The amended complaint again names Sedgwick, and adds the following defendants: Delta, Delta Family Care Disability and Survivorship Plan, William Ittounas, QBE North America Operations, Kirsten Coursette, Metlife, Indemnity Insurance Company of North America, Chubb Indemnity Insurance Company, Ace American Insurance Company, and ESIS. (Id. No. 6.)
At more than 300 pages long, the amended complaint consists of boilerplate, repetitive allegations regarding events spanning a number of years, and attachments from other Delta employees and their lawsuits. The gist of the amended complaint is that Defendants discriminated against Davis, Azzarmi, Stinnett, and other Delta employees, defamed them, and conspired under the federal Racketeer Influenced and Corrupt Organizations Act (RICO) to deprive them of benefits to which they were entitled. According to the amended complaint, Defendants “defrauded Plaintiffs and/or other former and current” Delta employees “out of thousands of dollars.” The following is an example of the allegations in the amended complaint:
Defendants engaged in a bait and switch. First, Defendants falsely represented to Plaintiffs that Plaintiffs were insured for “work related injuries by Defendants MetLife, and/or indemnity and/or QBE for ten years and/or 7 years or more, when in fact no workers compensation insurance policy/plan exists and/or existed at any time. Then, after inducing Plaintiff to pay Defendants in order to purchase this non-existent workers compensation insurance plan, Defendants refused to ever honor and/or provide Plaintiffs with the insurance coverage for their “work related injuries” and/or “non work related injuries” after they filed claims with Def. Sedgwick, Def. Delta's TPA. By misrepresenting to Plaintiffs that the wages that Def. Delta fraudulently obtained from Plaintiffs paychecks were never for any third party insurance “disability coverage” policy while failing to disclose that Def. Delta was “self-insured” and never purchased a third party workers compensation insurance policy and/or “non work related injury” insurance policy, Plaintiffs were unable to receive substantial medical treatment, and/or their state entitled weekly workers compensation wages, While Defendants fraudulently and illegally obtained thousands of dollars from Plaintiffs by stealing Plaintiffs wages for non-existent insurance policies that Plaintiffs were NEVER REQUIRED to PURCHASE under state law, as it is/was Delta's legal responsibility, under State Law, to purchase a third party workers compensation policy, unless each individual state approved Def. Delta to be a “self-insured” employer, which never happened. ((ECF 6 at 14-15.) Plaintiff also accuse Defendants of embezzlement, tax fraud, tax evasion, health care fraud, RICO, money laundering, and racially discrimination under 42 U.SC. § 1981, because Defendants' “scheme” was to “obtain money from vulnerable low-income, minority (racial) employees.”(ECF 6 at 16.)
Although no summonses have issued in this case, ten “Proof[s] of Service” have been docketed. (ECF 9-19.)
DISCUSSION
By order dated September 17, 2021, the Court granted Plaintiff leave to amend her complaint to provide facts suggesting any viable claims against Sedgwick arising under ERISA, Section 1981, and state law. The amended complaint fails to do so and instead is a lengthy discourse that does not cure the deficiencies of the original complaint. “When a complaint does not comply with the requirement that it be short and plain, the court has the power, on its own initiative or in response to a motion by the defendant, to strike any portions that are redundant or immaterial . . . or to dismiss the complaint.” Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988) (citing Fed.R.Civ.P. 12(f)); see also Shomo v. State of N.Y., 374 Fed.Appx. 180, 182 (2d Cir. 2010) (unpublished opinion) (holding that where a complaint “contain[ed] a surfeit of detail . . . the district court was within bounds of discretion to strike or dismiss the complaint for noncompliance with Rule 8”); Prezzi v. Schelter, 469 F.2d 691, 692 (2d Cir. 1972) (per curium) (affirming dismissal of pro se plaintiff's 88-page, legal size, single spaced complaint that “contained a labyrinthian prolixity of unrelated and vituperative charges that defied comprehension[, ] fail[ing] to comply with the requirement of Rule 8”); Lafurno v. Walters, No. 18-CV-1935 (JS) (ARL), 2018 WL 2766144, at *3 (E.D.N.Y. June 8, 2018) (dismissing pro se plaintiff's 61-page complaint that included a 66-page “memorandum of law” and 157-page “affidavit”).
The Court is authorized to dismiss claims going beyond the scope of the original lawsuit and the permitted amendment. See, e.g. Palm Beach Strategic Income, LP v. Salzman, 457 Fed.Appx. 40, 43 (2d Cir. 2012) (“District courts in this Circuit have routinely dismissed claims in amended complaints where the court granted leave to amend for a limited purpose and the plaintiff filed an amended complaint exceeding the scope of the permission granted.”); Grimes v. Fremont General Corp., 933 F.Supp.2d 584, 597 (S.D.N.Y. 2013) (citing cases); Sullivan v. Stein, 487 F.Supp.2d 52 (D. Conn. 2007) (dismissing claims as “beyond the scope” of the Court's order).
The amended complaint does not comply with Rule 8. It does not contain a short and plain statement showing that Plaintiff is entitled to relief; it fails to provide fair notice to the defendants of the nature of Plaintiff's claims so that they may answer and prepare for trial; and it in no way clarifies Plaintiff's claims. Instead, it adds multiple new parties and presents a barrage of new allegations in an unclear manner. The amended complaint is therefore dismissed for failure to comply with the Court's September 17, 2021 order.
LEAVE TO AMEND
Under Federal Rule of Civil Procedure 15(a), leave to amend shall be freely given when justice so requires.'” Littlejohn v. Artuz, 271 F.3d 360, 362 (2d Cir. 2001). It is appropriate to deny leave to amend, however, for reasons such as undue delay, bad faith, futility of the amendment or prejudice to the other party. See Foman v. Davis, 371 U.S. 178, 182 (1962); Aetna Casualty and Surety Co. v. Aniero Concrete Co., Inc., 404 F.3d 566 (2d Cir. 2005).
Moreover, the exact degree of solicitude that should be afforded to a pro se litigant in any given case depends upon a variety of factors, including the procedural context and relevant characteristics of the particular litigant. Tracy v. Freshwater, 623 F.3d 90 (2d Cir. 2010). A pro se litigant who has previously brought a similar case may be charged with knowledge of particular legal requirements. See Sledge v. Kooi, 564 F.3d 105, 109-110 (2d Cir. 2009) (discussing circumstances where frequent pro se litigant may be charged with knowledge of particular legal requirements).
In Azzarmi II, another court dismissed a joint complaint Plaintiff filed with Azzarmi and Stinnett for failing to comply with Rule 8. In light of Azzarmi II, Plaintiff should have been aware that the amended complaint submitted in this case suffered from the same deficiencies. In an abundance of caution, the Court grants Plaintiff one final opportunity to file, in good faith, an amended complaint that complies with the September 17, 2021 order.
The Court declines to grant leave to amend to Azzarmi and Stinnett. Nonparties may not file documents in a case unless they have been granted permission to intervene under Rule 24 of the Federal Rules of Civil Procedure. Azzarmi and Stinnett are nonparties, and they have not been granted permission to file documents in this case. To the extent the submissions of Azzarmi and Stinnett could be construed as a motion to intervene, the application is denied. See High Farms, LLC v. King, No. 16-CV-736, 2021 WL 1137995, at *10 (E.D.N.Y. Mar. 25, 2021) (noting that district courts have “broad discretion in considering motions to intervene.”) (citing Wash. Elec. Coop., Inc. v. Mass. Mun. Wholesale Elec. Co., 922 F.2d 92, 98 (2d Cir. 1990)). The amended complaint filed in this case is similar in form and substance to other deficient pleadings that Azzarmi has filed in other courts, and is not a departure from his history of abusive litigation. See, e.g., Rueb v. Zavaras, No. 09-CV-00072, 2009 WL 1579518, at *1 (D. Colo. Feb. 2, 2009) (finding “that the joinder of parties and of claims in this case is being used as an abusive litigation tactic.”)
LITIGATION HISTORY AND WARNING
Public Access to Court Electronic Records (PACER) shows Azzarmi's extensive litigation history in various courts arising from his Delta employment. A number of those lawsuits were filed against the same defendants named in the amended complaint filed in this case, including Sedgwick, Delta, QBE, and William Ittounas. Courts have dismissed Azzarmi's prior complaints on res judicata grounds, for failing to comply with Federal Rule of Civil Procedure 8, for failing to comply with court orders, and for failing to state a claim under Section 1981 and the RICO statute. See Azzarmi v. Sedgwick Claims Management Systems, Inc. No. 21-CV-10074 (E.D. Mich. Jan 11, 2021) (dismissing for failure to state a claim RICO complaint against Sedgwick and QBE, among others), 21-1185 (6th Cir. Nov. 9, 2021) (affirming dismissal of “inadequately pleaded complaint” and denial of reconsideration and leave to amend); Azzarmi v. Donnelly, No. 21-CV-00012 (E.D.N.Y. Jan. 4, 2021) (dismissing for failure to state a claim and on immunity grounds complaint against Eastern District judge arising from her rulings in Azzarmi's cases), 21-803 (2d Cir. Oct. 26, 2021) (dismissing appeal as frivolous); Azzarmi III, ECF 1:20-CV-4712, 59 (KMK) (S.D.N.Y. Oct. 28, 2021) (dismissing with prejudice defamation complaint for improper venue and failure to comply with court orders, and noting that while “the Court has afforded Plaintiff significant leeway in view of his pro se status, his practice of serially filing untimely, meritless motions ends now.”); Azzarmi v. USDC CALA, 20-71583 (9th Cir. June 25, 2020) (denying Azzarmi's application because he had “not demonstrated that this case warrants the intervention of the court by means of the extraordinary remedy of mandamus.”); Pimental v. Delta Air Lines, Inc., No. 17-CV-5317 (E.D.N.Y, July 16, 2019) (dismissing employment discrimination complaint with prejudice under Fed.R.Civ.P. 41(b) for failure to comply with court orders and for using abusive language toward judges); Pimental v. Delta Airlines, No. 18-CV-2999 (E.D.N.Y. July 31, 2019) (dismissing with prejudice removal action against, inter alia, Delta, Sedgwick, and Ittounas, in light of Azzarmi's “egregious” behavior”), aff'd, 19-2343, 19-2376, 19-2499, 19-2510 (2d Cir. Oct. 27, 2020); Azzarmi v. Ricotta & Marks, ECF 1:19-CV-4437, 5 (CM) (S.D.N.Y. Oct. 28, 2021) (dismissing for lack of subject matter jurisdiction complaint asserting state law claims against attorneys who represented Azzarmi in litigation against Delta), 19-2343 (2d Cir. May 5, 2020) (dismissing appeal as frivolous).
See also Azzarmi v. Key Food, ECF 1:20-CV-6835, 34 (GBD) (BCM) (S.D.N.Y. Aug. 21, 2020) (pending defamation complaint alleging that Defendant falsely accused Azzarmi of theft.)
In light of this litigation history, it is unsurprising that Azzarmi has been previously warned against engaging in frivolous litigation in this District, Azzarmi III, ECF 1:20-CV-4712, 59 (S.D.N.Y. Oct. 28, 2021); and that a court in another district labeled him vexatious, Azzarmi IV, No. 20-CV-607 (C.D. Cal. May 21, 2020).
Courts are authorized to enjoin vexatious litigation, and a court's special solicitude towards pro se litigants “does not extend to the willful, obstinate refusal to play by the basic rules of the system upon whose very power the plaintiff[s] [are] calling to vindicate their rights.” Lipin v Hunt, 573 F.Supp.2d 836, 845 (S.D.N.Y. 2008) (internal quotation marks and citation omitted); see also Galanova v. Portnoy, 432 F.Supp.3d 433, 447 (S.D.N.Y. 2020) (“In determining whether to restrict a litigant's future ability to sue, a court must consider “whether a litigant who has a history of vexatious litigation is likely to continue to abuse the judicial process and harass other parties.”) (citing Safir v. United States Lines, Inc., 792 F.2d 19, 24 (2d Cir. 1986)).
Azzarmi is warned that further duplicative, abusive, or frivolous litigation in this Court will result in an order directing him to show cause why he should not be barred from filing new actions IFP without prior permission. See 28 U.S.C. § 1651. Plaintiff and Stinnett are warned that if they engage in duplicative, abusive, or frivolous litigation, either on their own or jointly with Azzarmi, they may be ordered to show cause why a filing injunction should not be imposed.
CONCLUSION
The amended complaint is dismissed for failure to comply with the Court's September 17, 2021 order.
The Court grants Plaintiff Laura Davis leave to file a second amended complaint that complies with the September 17, 2021 order. Plaintiff must submit the second amended complaint to this Court's Pro Se Intake Unit within thirty days of the date of this order, caption the document as a “Second Amended Complaint, ” and label the document with docket number 21-CV-7090 (LTS). A Second Amended Complaint form is attached to this order. No summons will issue at this time. If Plaintiff fails to comply within the time allowed, and she cannot show good cause to excuse such failure, the complaint will be dismissed for failure to state a claim upon which relief may be granted. The grant of leave applies only to Plaintiff.
To the extent Azzarmi and Stinnett seek leave to intervene in this matter, their application is denied. The Clerk of Court is directed to strike their IFP applications from the docket. (ECF 78.) No further documents will be accepted from either Azzarmi or Stinnett in connection with this case, with the exception of those directed to the Second Circuit.
Because the amended complaint has been dismissed, and summonses have not yet issued, no defendant is required to file an answer, notwithstanding the docketing of proofs of service.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
Plaintiff Davis has consented to electronic service. (ECF 3.) As a courtesy, the Clerk of Court is directed to mail a copy of this order to Azzarmi and Stinnett.
SO ORDERED.
(Exhibit Omitted)