Summary
dismissing FLSA retaliation claim where employee only complained to employer in light of Lambert and Kasten
Summary of this case from Eschmann v. White Plains Crane Serv., Inc.Opinion
No 11-CV-4292 (JFB)(ARL)
06-19-2012
CHRIS RYDER, Plaintiff, v. JOCELYN PLATON AND ANNE HEARST, Defendants.
Plaintiff is proceeding pro se. Defendants are being represented by Stephen A. Grossman, Esq. of Stephen Grossman & Associates. 17 Main Street, P.O. Box 1949, Sag Harbor, NY 11963
MEMORANDUM AND ORDER
:
Plaintiff Chris Ryder ("Ryder" or "plaintiff"), proceeding pro se, brought the above-captioned action against the defendants Jocelyn Platon ("Platon") and Anne Hearst ("Hearst") (collectively the "defendants"), alleging violations of the New York State Domestic Workers' Bill of Rights ("DWBOR"), the New York State Human Rights Law, the New York Labor Law, Title VII of the Civil Rights Act ("Title VII"), the Occupational Safety and Health Act ("OSHA"), the Fair Labor Standards Act ("FLSA"), and the New York Agriculture and Markets Law. Plaintiff also alleges that defendants are liable for breach of contract, breach of the covenant of good faith and fair dealing, and defamation of character.
Defendants have moved to dismiss the amended complaint, claiming that this Court does not have jurisdiction to hear this case. In the alternative, the defendants argue that plaintiff's federal claims lack merit and that this Court should not exercise jurisdiction over plaintiff's remaining state law claims. For the reasons set forth below, the Court dismisses plaintiff's federal claims and refrains from exercising supplemental jurisdiction over plaintiff's state law claims. Specifically, the Court finds that all of plaintiff's federal claims fail as a matter of law and the Court declines to exercise supplemental jurisdiction over plaintiff's state law claims. Moreover, because plaintiff has not properly alleged diversity of citizenship, the Court does not have jurisdiction over plaintiff's state law claims.
I. BACKGROUND
A. Factual Background
The following facts are taken from the amended complaint and are not findings of fact by the Court. Instead, the Court assumes these facts to be true for purposes of deciding the pending motion to dismiss and will construe them in a light most favorable to plaintiff, the non-moving party.
In April 2011, Hearst hired plaintiff as a property overseer and as an animal technician to begin in May 2011. (AC ¶ 10.) Plaintiff's duties included overseeing the "25 acre house and contiguous 'gentleman's farm,'" and caring for the "large collection of animals and livestock both domestic and exotic." (Id.) Plaintiff "contractually bound himself with the Defendant Hearst in that the Plaintiff made assertions and promises that he would remain in this position for a long term." (Id. ¶ 11.) Plaintiff's work shift was Monday through Friday from 7:00 a.m. to 6:00 p.m. (Id.)
"AC" refers to the amended complaint.
Platon lived on the property along with a housekeeper, Margarita, and plaintiff's predecessor, Marielo, who is referred to throughout the amended complaint as "Boyet." (Id. ¶ 12.) Plaintiff alleges that Boyet, Platon and Margarita are of Filipino ancestry and that all three entered the United States illegally. (Id. ¶ 13.) Plaintiff also alleges that Platon has since obtained legal status. (Id.) Plaintiff claims that Platon and Margarita "[m]ade on many occasions highly disparaging remarks to the Plaintiff about his race, specifically that he was 'not Filipino.'" (Id. ¶ 14.) Plaintiff sent an email complaint to Hearst's husband, Jay, and in response, Hearst emailed that "[i]t is unfortunate that you find yourself in a hostile work environment." (Id.) Plaintiff claims that Platon's comments, gestures, and discussions with Margartia in the Tagalog language, caused plaintiff stress and anxiety. (Id. ¶ 15.)
Plaintiff alleges that, on the first weekend of plaintiff's employment, he went to his place of employment on his day off and discovered that the animals were not being properly cared for in his absence. (Id. ¶17.) Platon was to service all of the animals when plaintiff was absent. (Id. ¶ 18.) Plaintiff approached Platon about the neglectful animal care. (Id. ¶ 19.) According to plaintiff, "[t]his confrontation began a trophic cascade in the employee/employer relationship. It also fermented a deep resentment of the Plaintiff by Platon." (Id.) Platon began a "systematic 'screaming and yelling' scenario" accompanied by derogatory comments about plaintiff. (Id.)
Plaintiff went to his place of employment the following weekend on his days off and found that the animals had not been cared for. (Id. ¶ 20.) Plaintiff lodged a complaint with Platon. (Id. ¶ 21.) Platon referenced Boyet and how he "handled things much better than the Plaintiff" and "made reference that Filipinos make better workers and that Plaintiff was 'causing trouble.'" (Id.) This led to a "unilateral text message 'war' from defendant Platon" and plaintiff's messages "were laced with angry and volatile invective." (Id.)
Defendant sent a written complaint to Hearst, but no action was taken. (Id. ¶ 22.) In response, Platon continued berating plaintiff. (Id. ¶ 23.) The following weekend plaintiff again stopped by in the evening on his time off and found the animals unfed. (Id. ¶ 25.) When plaintiff complained to Platon, Platon again referenced Boyet and that "these problems never occurred when he was there." (Id.) Platon continued to find problems with plaintiff's work. (Id. ¶ 26.)
Defendant also claims that Platon attempted to bar the plaintiff from taking meal breaks during the course of his eleven-hour work day. (Id. ¶ 27.) The justification offered by Platon was that "if you do not leave the property then perhaps so many animals would not be killed." (Id.) Plaintiff also alleges that Platon and Hearst directed plaintiff to travel to a property owned by Hearst in Turks & Caicos with a suitcase and forced plaintiff to mislead local tax collection authorities as to the valuation of the contents. (Id. ¶ 28.)
After continued disagreements between Platon and plaintiff, plaintiff sent two letters to Hearst. (Id. ¶ 30.) Plaintiff sent one final letter to Hearst seeking "mediation, clarity and diplomacy." (Id. ¶ 32.) Hearst did not respond and Platon tried to terminate plaintiff's employment. (Id.) Plaintiff then received an email from Hearst that stated, in part, that "'your inability to get along with Platon' was a deciding factor in the termination." (Id. ¶ 33.)
B. Procedural History
Plaintiff filed this action on September 7, 2011. On October 4, 2011, defendants requested a pre-motion conference in anticipation of their motion to dismiss the complaint. On October 11, 2011, plaintiff filed a motion to electronically file document, and on October 12, 2011, he filed a response to defendants' October 4, 2011 letter. On October 25, 2011, plaintiff filed a motion for default judgment as to Platon and Hearst. A pre-motion conference took place on October 28, 2011. The Court denied the plaintiff's motion for default and granted plaintiff's motion to electronically file. Plaintiff was instructed to file an amended complaint by November 18, 2011, and the Court set a briefing schedule for defendants' motion to dismiss the amended complaint.
Although the Court granted plaintiff's motion to electronically file documents, plaintiff has failed to file any of his documents electronically.
Plaintiff then filed a motion to amend the complaint to add a new defendant and a motion for an extension of time to file his amended complaint. Defendants responded on November 29, 2011, and sought sanctions against plaintiff. At a telephone conference on December 8, 2011, plaintiff withdrew his motion to add an additional party. Plaintiff's motion for an extension of time to file an amended complaint, with an attorney or pro se, was granted. The plaintiff was instructed to file an amended complaint by January 20, 2012. Defendants' motion for sanctions was denied.
Plaintiff failed to file an amended complaint by January 20, 2012. Defendants filed a motion to dismiss the original complaint on January 26, 2012. The Court issued an order directing the plaintiff to submit a letter to the Court by February 20, 2012, explaining why this case should not be dismissed sua sponte and warned the plaintiff that failure to respond to the Order would result in the complaint being dismissed without prejudice for failure to prosecute. The plaintiff responded by letter, dated February 12, 2012, explaining why the case should not be dismissed and enclosing his amended complaint. Defendants submitted a letter in opposition, dated February 22, 2012, and requested that the Court dismiss plaintiff's case based on plaintiff's failure to comply with Court orders. By Order dated February 24, 2012, the Court accepted the plaintiff's first amended complaint and set forth a briefing schedule on defendant's motion to dismiss the first amended complaint.
Defendants filed their motion to dismiss the amended complaint on March 26, 2012. Plaintiff did not file any opposition. By letter dated May 15, 2012, defendants requested that the Court treat defendants' motion to dismiss as unopposed.
Although plaintiff failed to file any opposition to the defendants' motion, the Court declines to grant the motion solely on the ground that it is unopposed and, instead, has analyzed the merits of plaintiff's claims. For the reasons set forth herein, the Court finds that plaintiff has not sufficiently alleged diversity of jurisdiction and, in connection with his federal claims, plaintiff fails to state a claim upon which relief may be granted.
II. STANDARD OF REVIEW
When a court reviews a motion to dismiss for lack of subject-matter jurisdiction, it "must accept as true all material factual allegations in the complaint, but [it is] not to draw inferences from the complaint favorable to plaintiffs." J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir. 2004). Moreover, the court "may consider affidavits and other materials beyond the pleadings to resolve the jurisdictional issue, but [it] may not rely on conclusory or hearsay statements contained in the affidavits." Id. "The plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence." Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005).
When a Court reviews a motion to dismiss for failure to state a claim for which relief can be granted, it must accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006); Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005). "In order to survive a motion to dismiss under Rule 12(b)(6), a complaint must allege a plausible set of facts sufficient 'to raise a right to relief above the speculative level.'" Operating Local 649 Annuity Trust Fund v. Smith Barney Fund Mgmt. LLC, 595 F.3d 86, 91 (2d Cir. 2010) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). This standard does not require "heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570.
The Supreme Court clarified the appropriate pleading standard in Ashcroft v. Iqbal, setting forth a two-pronged approach for courts deciding a motion to dismiss. 556 U.S. 662, 129 S. Ct. 1937 (2009). The Court instructed district courts to first "identify[ ] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 1950. Although "legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. Second, if a complaint contains "well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. "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. The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. at 1949 (internal citations omitted) (quoting and citing Twombly, 550 U.S. at 556-57).
Where, as here, the plaintiff is proceeding pro se, "[c]ourts are obliged to construe the [plaintiff's] pleadings . . . liberally." McCluskey v. N.Y. State Unified Court Sys., No. 10-CV-2144 (JFB)(ETB), 2010 U.S. Dist. LEXIS 69835, 2010 WL 2558624, at *8 (E.D.N.Y. June 17, 2010) (citing Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) and McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004)). Nonetheless, even though the Court construes a pro se complaint liberally, the complaint must still "state a claim to relief that is plausible on its face" to survive a motion to dismiss. Mancuso v. Hynes, 379 F. App'x 60, 61 (2d Cir. 2010) (quoting Iqbal, 129 S. Ct. at 1949); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (applying Twombly and Iqbal to pro se complaint).
The Court notes that in adjudicating this motion, it is entitled to consider: "(1) facts alleged in the complaint and documents attached to it or incorporated in it by reference, (2) documents 'integral' to the complaint and relied upon in it, even if not attached or incorporated by reference, (3) documents or information contained in defendant's motion papers if plaintiff has knowledge or possession of the material and relied on it in framing the complaint, (4) public disclosure documents required by law to be, and that have been, filed with the Securities and Exchange Commission, and (5) facts of which judicial notice may properly be taken under Rule 201 of the Federal Rules of Evidence." In re Merrill Lynch & Co., 273 F. Supp. 2d 351, 356-57 (S.D.N.Y. 2003) (internal citations omitted), aff'd in part and reversed in part on other grounds sub nom., Lentell v. Merrill Lynch & Co., 396 F.3d 161 (2d Cir. 2005), cert. denied, 546 U.S. 935 (2005); see also Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991)("[T]he district court . . . could have viewed [the documents] on the motion to dismiss because there was undisputed notice to plaintiffs of their contents and they were integral to plaintiffs' claim."); Brodeur v. City of New York, No. 04 Civ. 1859 (JG), 2005 U.S. Dist. LEXIS 10865, at *9-10 (E.D.N.Y. May 13, 2005) (court could consider documents within the public domain on a Rule 12(b)(6) motion to dismiss)
III. DISCUSSION
A. Subject Matter Jurisdiction
It is axiomatic that federal courts only have diversity jurisdiction when there is complete diversity between the parties - that is, when all plaintiffs are citizens of different states from all defendants. See 28 U.S.C. § 1332; Lincoln Prop. Co. v. Roche, 546 U.S. 81, 84, 88, 126 S.Ct. 606, 163 L.Ed.2d 415 (2005); Advani Enters., Inc. v. Underwriters at Lloyds, 140 F.3d 157, 160 (2d Cir. 1998). "An individual's citizenship, within the meaning of the diversity statute, is determined by his domicile . . . Domicile is the place where a person has his true fixed home and principal establishment, and to which, whenever he is absent, he has the intention of returning. . . . At any given time, a person has but one domicile." Palazzo ex rel. Delmage v. Corio, 232 F.3d 38, 42 (2d Cir. 2000) (internal citations and quotation marks omitted). In addition, in order for there to be diversity jurisdiction, the amount in controversy must exceed $75,000, exclusive of interest and costs. See 28 U.S.C. § 1332(a).
In this case, plaintiff claims that "complete diversity exists between plaintiff and defendants under 28 U.S.C. § 1332." (AC ¶ 8.) Plaintiff alleges that he "[i]s an individual citizen of the United States and a lawful resident of the Territory of Puerto Rico." (Id. ¶ 4.) Plaintiff alternatively asserts diversity of citizenship based upon residences in Commonwealth of Massachusetts and other states aside from New York State." (Id.) Plaintiff has failed to plead where he is domiciled. Moreover, not only has plaintiff failed to meet his burden to properly plead diversity of citizenship, defendants have provided an affidavit from Harry J. Wils, Jr., who attests that he is the manager of a residence in New York where plaintiff has been a month-to-month tenant since 2009. (Defs.' Br. Ex. D.) Accordingly, because plaintiff has failed to set forth his domicile, the plaintiff has not met his burden of establishing diversity of citizenship.
However, plaintiff has invoked federal question jurisdiction for his federal claims. (See AC ¶ 6-7.) Thus, the Court will address each of plaintiff's alleged federal claims in turn.
B. Title VII
Plaintiff's second count alleges that defendants violated Title VII. Defendants argue that plaintiff's claim must be dismissed because plaintiff has failed to exhaust his administrative remedies. This Court agrees and finds that plaintiff has not exhausted his administrative remedies prior to bringing the Title VII claim.
It is well-settled that before a plaintiff is entitled to institute a lawsuit under Title VII, the plaintiff must (1) file a timely charge of employment discrimination with the EEOC, and (2) receive and act upon the statutory right to sue notice from the EEOC. See 42 U.S.C. §§ 2000e-5(b), (e) and (f); see also Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001) (holding that, under Title VII, a claimant may bring suit in federal court "only if she has filed a timely complaint with the EEOC and obtained a right-to-sue letter") (citations omitted); Donnelly v. Yellow Freight Sys., Inc., 874 F.2d 402, 410 (7th Cir. 1989) ("This is not to say that a state could not impose an exhaustion requirement for claims based entirely on state law but here, of course, the foundation was Title VII"), aff'd, 494 U.S. 820, 110 S.Ct. 1566, 108 L.Ed.2d 834 (1990).
Here, plaintiff has not provided a right-to-sue letter or alleged that he filed a complaint with either the EEOC or the New York State Division of Human Rights. Accordingly, plaintiff's Title VII claim must be dismissed.
This issue was already addressed by the parties. In plaintiff's letter dated October 7, 2011, plaintiff stated that "Title VII would require a 'right to sue' letter under federal statute. Plaintiff will file an amended complaint withholding the Title VII claim and immediately engage the EEOC and its local counterpart to investigate the Title VII claims." (Pl.'s Letter, October 7, 2011, ECF No. 7.) At the telephone conference on October 28, 2011, plaintiff confirmed that he would file an amended complaint without the Title VII claim and would take the necessary steps to obtain a right to sue letter. However, plaintiff's amended complaint includes a Title VII claim and does not indicate that plaintiff took any steps to obtain a right to sue letter.
C. OSHA
Plaintiff also alleges that defendants violated OSHA. Defendants argue that "the statute gives employees the right to file a complaint and request an OSHA inspection of their workplace if they believe there is a serious hazard or that their employer is not following OSHA standards. Plaintiff has chosen not to follow this procedure and instead, go directly to Federal Court to enforce alleged OSHA violations which are conclusory in nature without reference to any of the standards in effect for workplace health and safety." (Defs.' Br. at 7.)
As the Second Circuit stated in Donovan v. Occupational Safety and Health Review Commission, 713 F.2d 918, 926-27 (2d Cir. 1083),
Under OSHA, employees do not have a private right of action. . . . Thus, it is apparent from the detailed statutory scheme that the public rights created by the Act are to be protected by the Secretary . . . and that enforcement of the Act is the sole responsibility of the Secretary, . . . Only he has the authority to determine if a citation should be issued to an employer for hazardous or unsafe working conditions, 29 U.S.C. § 658, and only he may prosecute a citation before the Commission . . . .(internal citations omitted); see also Rompalli v. Portnova, No. 09 Civ. 3083 (RMB)(FM), 2010 WL 2034362, at *2 (S.D.N.Y. May 21, 2010) (adopting report and recommendation), Vinson v. New York City Dept. of Corr., No. CV 016900DGT, 2006 WL 140553, at *8 (E.D.N.Y. Jan. 17, 2006). Thus, plaintiff's complaint that the defendants violated OSHA must be dismissed.
D. FLSA
Plaintiff alleges that defendants violated the FLSA by failing to pay him overtime wages and that plaintiff was fired as a direct result of his complaint made to Hearst about Platon. Defendants claim that the failure to pay overtime wages claim must be dismissed because plaintiff's allegations are conclusory. Defendants also claim that plaintiff's additional claim must be dismissed because plaintiff did not put the defendants on notice that he was asserting a statutory right under the Act. (Defs.' Br. at 8 (citing Kasten v. Saint Gobain Performance Plastics Corp., --- U.S. ----, 131 S.Ct. 1325, 179 L.Ed. 2d 379 (2011)).) For the reasons set forth below, the Court dismisses plaintiff's claims under the FLSA.
1. Overtime
Under the FLSA, "no employer shall employ any of his employees . . . for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed." 29 U.S.C. § 207(a)(1). The regular, minimum rates at which employees must be paid are established by section 206 of the FLSA. 29 U.S.C. § 206(a). In addition, the FLSA sets forth a broad civil enforcement scheme, pursuant to which "[a]ny employer who violates the provisions of section 206 or section 207 of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages." 29 U.S.C. § 216(b). In an action to recover unpaid overtime wages under FLSA, a plaintiff must show that: "(1) he was an employee who was eligible for overtime ([ i.e.,] not exempt from the Act's overtime pay requirements); and (2) that he actually worked overtime hours for which he was not compensated." Hosking v. New World Mortg., Inc., 602 F. Supp. 2d 441, 447 (E.D.N.Y. 2009).
In plaintiff's complaint, he alleges that, "plaintiff took meal breaks when time allowed him to take them based upon consideration that animal care was successfully done at that point in any given day." (AC ¶ 27.) Plaintiff further states that, "[t]he defendants failed to pay overtime wages that are afforded to workers under the FLSA." (Id. ¶ 60.) However, these allegations are insufficient to state a claim for relief under the FLSA. First, plaintiff has not addressed whether or not he is an employee who is eligible for overtime under the Act. Moreover, plaintiff's allegation that the defendant failed to pay overtime wages is conclusory. Although plaintiff alleges that Platon "attempted" to bar plaintiff from taking meal breaks during the course of his day, plaintiff does state that he did take breaks in between caring for the animals. (Id. ¶ 27) Thus, it is unclear if plaintiff actually worked overtime hours for which he was not compensated. Accordingly, plaintiff's claim that the defendants violated the FLSA by failing to pay him overtime wages is dismissed.
2. Retaliation
Plaintiff also claims that defendants violated the FLSA because "[u]pon receipt of written complaint(s) about Platon to Hearst, the Plaintiff was terminated, thus violating the Fair Labor Standards Act" and that "[b]oth Defendants did violate the Fair Labor Standards Act by retaliating against the Plaintiff, by termination, for the oral and written complaints." (AC ¶¶ 61, 62.) Defendants appear to be arguing that plaintiff's claim of retaliation pursuant to the FLSA must be dismissed because a reasonable objective person would not have understood that Ryder was putting his employer on notice that he was asserting statutory rights under the FLSA. (See Defs.' Br. at 8.) The Court finds that plaintiff's FLSA retaliation claim must be dismissed.
The anti-retaliation provision of the FLSA provides that it shall be unlawful for any person:
(3) to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee;29 U.S.C.A. § 215(a)(3). The Supreme Court has held that:
To fall within the scope of the antiretaliation provision, a complaint must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection. This standard can be met, however, by oral complaints, as well as by written ones.Kasten, 131 S. Ct. at 1335. Moreover, according to the Second Circuit, "The plain language of [the FLSA provision] limits the cause of action to retaliation for filing formal complaints . . . but does not encompass complaints made to a supervisor." Lambert v. Genesee Hosp., 10 F.3d 46, 55 (2d Cir.1993), abrogated on other grounds by Kasten, 131 S. Ct. at 1335; see also Hyunmi Son v. Reina Bijoux, Inc. 823 F. Supp. 2d 238, 244 (S.D.N.Y. 2011) (holding that Lambert's holding that internal complaints to employers, as opposed to government authorities, are not protected by the anti-retaliation provision of the FLSA was not altered by the Supreme Court's ruling in Kasten); Graves v. Deutsche Bank Secs. Inc., No. 07 Civ. 5471, 2010 WL 997178, at *4 (S.D.N.Y. Mar. 18, 2010) ("[T]he FLSA bars discrimination only when the retaliation is in response to a formal complaint lodged with the Department of Labor.").
Here, plaintiff only alleges that he complained to his employer. Accordingly, because there is no allegation in the amended complaint that plaintiff lodged a complaint, oral or written, to a proper government authority, the retaliation claim under the FLSA must be dismissed.
E. Immigration and Nationality Act
Plaintiff also alleges that "Hearst violated Sec. 8 U.S.C. 1324 (a)(1)(a)(IV)(b)(iii) for hiring and harboring illegal immigrants on her property and in her employ." (AC ¶ 87.) Defendants argue that plaintiff does not have standing to make this claim. (Defs.' Br. at 8.) This Court agrees.
Section 1324 of the Immigration and Nationality Act does not provide for a private right of action by citizens. See Flores v. George Braun Packing Co. Div. of Leonard & Harral Packing Co., 482 F.2d 279 (5th Cir. 1973) (per curiam) (holding that there is no private remedy under 8 U.S.C. § 1324); Chavez v. Freshpict Foods, Inc., 456 F.2d 890 (10th Cir. 1972), cert. denied, 409 U.S. 1042 (1972) ("8 U.S.C. §§ 1324 and 1325 are penal sanctions to be applied against employers who harbor illegal aliens. . . . No intent to confer civil liabilities for their violation is expressed."); see also U.S. v. Dattner Architects, 972 F. Supp. 738, 746 (S.D.N.Y. 1997) ("I find that no private right of action exists under the INA for a domestic worker against an employer based on submission of a fraudulent application for labor certification or on employment of an alien under such a fraudulently obtained certification."). Accordingly, plaintiff's cause of action is without merit and is dismissed.
In Garrison v. OCK Cost. Ltd, 864 F. Supp. 134 (D. Guam 1993), the District of Guam disagreed with the Fifth and Tenth Circuits and found that a private right of action did exist in the Immigration and Nationality Act. However, this Court agrees with the reasoning in U.S. v. Dattner Architects, in which the Court declined to follow the Garrison court because "[t]he Garrison court based its decision on the provisions of the INA applicable solely to Guam, and because the case law on which it relied is inapposite to this case. . . ." 972 F. Supp. 738, 746 (S.D.N.Y. 1997).
Plaintiff's remaining federal claim is pursuant to 26 U.S.C. § 702. Plaintiff alleges that "Defendant Hearst violated 26 U.S.C. § 702 for failing to collect and pay employment taxes." (AC ¶ 86.) However, 26 U.S.C. § 702 is a section of the Internal Revenue Code that addresses determination of tax liability in partnerships. 26 U.S.C. § 702. Accordingly, 26 U.S.C. § 702 is not applicable to the situation at bar. Thus, plaintiff's claim against Hearst pursuant to 26 U.S.C. § 702 must be dismissed. --------
F. Supplemental Jurisdiction
In addition to the federal claims addressed supra, plaintiff also alleges that defendants violated New York State Labor Law (AC ¶ 85), New York's Agriculture and Market Law (AC ¶ 84), New York's Domestic Worker's Bill of Rights (AC ¶ 35), and New York State Human Rights Law (AC ¶ 46). Plaintiff also claims that defendants are liable for breach of employment contract (AC ¶¶ 64-72), breach of the covenant of good faith and fair dealing (AC ¶¶ 74-77), and defamation (AC ¶¶ 79-82). Defendants argue that this Court should decline to exercise supplemental jurisdiction over plaintiff's state law claims because plaintiff has failed to properly allege diversity of citizenship and because plaintiff's federal claims are without merit.
Having determined that plaintiff's federal claims against the defendants do not survive the defendants' motion to dismiss, and given the absence of properly plead diversity of citizenship, the Court concludes that retaining jurisdiction over any state law claim is unwarranted. 28 U.S.C. § 1367(c)(3); United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). "In the interest of comity, the Second Circuit instructs that 'absent exceptional circumstances,' where federal claims can be disposed of pursuant to Rule 12(b)(6) or summary judgment grounds, courts should 'abstain from exercising pendent jurisdiction.'" Birch v. Pioneer Credit Recovery, Inc., No. 06-CV-6497T, 2007 WL 1703914, at *5 (W.D.N.Y. June 8, 2007) (quoting Walker v. Time Life Films, Inc., 784 F.2d 44, 53 (2d Cir. 1986)). Therefore, in the instant case, the Court, in its discretion, "'decline[s] to exercise supplemental jurisdiction'" over plaintiff's state law claim because "it 'has dismissed all claims over which it has original jurisdiction.'" Kolari v. N.Y.-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (quoting 28 U.S.C. § 1367(c)(3)); see also Cave v. E. Meadow Union Free Sch. Dist., 514 F.3d 240, 250 (2d Cir. 2008) ("We have already found that the district court lacks subject matter jurisdiction over appellants' federal claims. It would thus be clearly inappropriate for the district court to retain jurisdiction over the state law claims when there is no basis for supplemental jurisdiction."); Karmel v. Claiborne, Inc., No. 99 Civ. 3608 (WK), 2002 WL 1561126, at *4 (S.D.N.Y. July 15, 2002) ("Where a court is reluctant to exercise supplemental jurisdiction because of one of the reasons put forth by § 1367(c), or when the interests of judicial economy, convenience, comity and fairness to litigants are not violated by refusing to entertain matters of state law, it should decline supplemental jurisdiction and allow the plaintiff to decide whether or not to pursue the matter in state court."). Accordingly, pursuant to 28 U.S.C. § 1367(c)(3), the Court declines to retain jurisdiction over plaintiff's remaining state law claims given the absence of any federal claim that survives the motion to dismiss.
IV. LEAVE TO REPLEAD
Although plaintiff has not requested leave replead his amended complaint, the Court has considered whether plaintiff should be given an opportunity to replead. The Second Circuit has emphasized that
A pro se complaint is to be read liberally. Certainly the court should not dismiss without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (quotations and citations omitted). Under Rule 15(a) of the Federal Rules of Civil Procedure, the "court should freely give leave [to amend] when justice so requires." Fed. R. Civ. P. 15(a).
First, plaintiff has not requested an opportunity to replead, and failed to explain how any amendment could possibly state a plausible legal claim. In fact, plaintiff failed to file any opposition to the defendants' motion to dismiss the amended complaint. Thus, the Court declines to grant leave to replead. See, e.g., Ackermann v. Doyle, 43 F. Supp. 2d 265, 275 (E.D.N.Y. 1999) ("[T]he Court is unable to discern a viable cause of action from the complaint, and the plaintiff did not request leave to replead. The Court declines to sua sponte afford the plaintiff leave to amend on the ground of futility. In the Court's view, granting leave to amend would be unproductive and dismissal with prejudice is appropriate.")
Second, plaintiff has been given ample opportunity to allege a claim and has failed to do so. In response to the defendants' pre-motion letter requesting leave to file a motion to dismiss, plaintiff identified defects in his own pleading and requested leave to amend. After failing to file his amended complaint in accordance with the Court's Order, the plaintiff was given another opportunity to file his amended complaint. However, plaintiff's amended complaint is still defective. Under these circumstances, the Court declines to grant plaintiff yet another opportunity to replead. See De Jesus v. Sears, Roebuck & Co., 87 F.3d 65, 72 (2d Cir. 1996) (noting that the Second Circuit has "upheld decisions to dismiss a complaint without leave to replead when a party has been given ample prior opportunity to allege a claim" (citing Armstrong v. McAlpin, 699 F.2d 79, 93-94 (2d Cir. 1983) ("Because the complaint whose allegations were being considered by the district court was plaintiffs' second amended complaint, the district court did not abuse its discretion in refusing to give plaintiffs a fourth attempt to plead."))).
Accordingly, plaintiff is not granted leave to replead.
V. CONCLUSION
For the foregoing reasons, the defendants' motion to dismiss the amended complaint, pursuant to Rule 12(b)(1) and (6) of the Federal Rules of Civil Procedure, is granted and plaintiff's federal claims are dismissed. The Court declines to exercise jurisdiction over plaintiff's state law claims and dismisses those claims without prejudice. Thus, the amended complaint is dismissed in its entirety. The Clerk of the Court shall enter judgment accordingly and close the case. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this order would not be taken in good faith; therefore, in forma pauperis status is denied for purposes of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.
/s/_________
JOSEPH F. BIANCO
United States District Judge Dated: June 19, 2012
Central Islip, NY
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Plaintiff is proceeding pro se. Defendants are being represented by Stephen A. Grossman, Esq. of Stephen Grossman & Associates. 17 Main Street, P.O. Box 1949, Sag Harbor, NY 11963