KENNETH M. KARAS, District Judge
On April 1, 2013, pro se Plaintiff Chuan Wang ("Plaintiff") filed a Complaint against Samuel J. Palmisano ("Palmisano"), Martin Schroeter ("Schroeter"), Mark Loughridge ("Loughridge"), and J. Randall MacDonald ("MacDonald") (collectively "Defendants"), who at the relevant times were, respectively, the President, Chief Executive Officer, and Chairman; the Treasurer; the Chief Financial Officer and a Senior Vice President; and another Senior Vice President of International Business Machines Corp. ("IBM"). (See Compl. ¶¶ 2-5 (Dkt No. 1); Am. Compl. ¶¶ 2-5 (Dkt. No. 28).)
The following facts come from Plaintiff's Amended Complaint and, for purposes of resolving Defendants' Motion, will be accepted as true. Plaintiff, who is Chinese American, is a 56-year-old American citizen. (See Am. Compl. ¶ 12.) Plaintiff was educated in China through his undergraduate degree and also holds a PhD degree. (Id. ¶¶ 13, 100.) In addition, Plaintiff holds two U.S. patents that are relevant to "storage-area-networked computer storage technology." (Id. ¶ 100.)
On February 1, 2008, Plaintiff received an email from Vishwadeep Sharma on behalf of Defendants soliciting Plaintiff for work. (See id. ¶ 14.) Artech Information Systems ("Artech") arranged for Plaintiff to be interviewed by a team from IBM, and that interview occurred on February 22, 2008. (See id. ¶ 15.) Artech informed Plaintiff that he had the IBM job offer, and, "as requested [by] the employer," Plaintiff provided a copy of his passport, which shows his birthdate of March 7, 1956, thereby indicating Plaintiff's age. (Id. ¶¶ 16-17.) Artech told Plaintiff that his position would be full time, exclusively for IBM, and would last for at least one year. (See id. ¶ 18.) In addition, Artech forwarded Plaintiff a proposed employment agreement, under which Plaintiff would be required to "surrender his `rights to civil litigation' and agree [to a] proposed Arbitration provision [under which] Plaintiff must agree to resolve employment disputes in New Jersey by the pr[o]visions of New Jersey Permanent Statutes Section 2A:24-1." (Id. ¶¶ 16-17.) In addition, the employment agreement provided that:
(Id. ¶ 17.)
Plaintiff refused to enter into the agreement, contending that it would violate his rights under various employment laws, including the Massachusetts Wage Act ("Wage Act") and the Fair Labor Standards Act ("FLSA"). (Id.) With regard to overtime, Plaintiff was told that any overtime work would be deemed as voluntary work without pay, unless it were approved in advance by his IBM supervisor. (Id. ¶ 18.) Artech told Plaintiff that he was an "exempt employee" because his work was "computer related" and that, as a result, he was not entitled to overtime pay for any overtime work performed. (Id. ¶ 19.)
Between February and April 2008, Plaintiff provided more than 158 hours of service to Artech. (Id. ¶ 20.) From March 11 to March 28, 2008, Plaintiff worked full-time and exclusively for IBM under its direction and control, reviewing and evaluating more than a thousand of Novartis
On March 28, 2008, Plaintiff alleges that his work was terminated by Defendants because he refused to give up his rights under the Wage Act and FLSA. (Id. ¶¶ 23-24.) On April 4, 2008, Plaintiff submitted an unpaid wages request to Artech via e-mail for the 112 regular-hour services that he performed. (Id. ¶ 23.) Plaintiff's request did not seek pay for the overtime hours that he worked "[b]ecause he relied on Artech's representations and the fact that his overtime works [sic] were not approved in advance." (See id.). Plaintiff alleges that Defendants, Artech, and/or IBM repeatedly refused to pay Plaintiff the wages that he earned, despite Plaintiff filing complaints against Defendants with government agencies and writing a demand letter to Defendants for unpaid wages. (See id. ¶¶ 27-29.)
Plaintiff has been unemployed and has received no unemployment compensation since April 2008 because Defendants made no contribution to unemployment insurance for Plaintiff. (See id. ¶¶ 25-26.) Between sometime thereafter and 2012, Plaintiff submitted applications for "about a hundred" jobs with IBM. (See, e.g., id. ¶¶ 30, 40.)
Plaintiff maintains that, of the job applications he submitted, "IBM repeatedly rejected each and every [one] ... for more than [four] years until 2012." (Id. ¶ 34.) For instance, on January 21, 2009, Alonna Ferris of CDI told Plaintiff via e-mail that IBM did not ask CDI to extend a job offer to Plaintiff. (Id.) On another occasion, on November 29, 2011, after receiving Plaintiff's job applications, Kelli Jordan, on behalf of Defendants, sent Plaintiff an e-mail with a subject line that read "[y]our correspondence to Sam Palmisano of IBM" which did not include a job offer and which effectively rejected Plaintiff's applications. (Id. ¶ 31.) On yet another occasion, Plaintiff — presumably unsuccessfully — interviewed for five separate positions with IBM managers Stephen Wheatley, Gina Koppel, Ramakrishna Talkad, Janet Hamilton, and Linda Foster, all of which had similar job requirements as the work that Plaintiff had performed for IBM in March 2008 and for which Plaintiff consequently believed he was well qualified. (See id. ¶¶ 32-33.) Decisions to reject Plaintiff's work applications were made by IBM, rather than CDI. (Id. ¶ 34.)
Plaintiff has filed a number of claims against Defendants in both state and federal court as well as with various state agencies. First, on April 14, 2008, Plaintiff filed a wage complaint with the Office of
Plaintiff brought his first lawsuit in connection with his work for IBM the following month, when, on February 12, 2009, he filed a complaint against IBM and Artech for unpaid wages and retaliatory termination against Defendants in Massachusetts state court. (See Am. Compl. ¶ 36; Defs.' Mem. 6; Defs.' Mem. Ex. 9 (Mar. 18, 2009 State Court Am. Compl.).)
On November 25, 2009, Plaintiff returned to the courts to file another complaint, which he amended on January 10, 2010, against IBM, Palmisano, Loughridge, as well as Artech and its president, Ranjini Poddar ("Poddar"), in Massachusetts Superior Court. (See Am. Compl. ¶ 42; Am. Compl. Attach. 2 (State Court Docket); Defs.' Mem. 7; Defs.' Mem. Ex. 10 (Jan. 21, 2010 Am. Compl.) ¶¶ 1-6.) That complaint alleged 11 causes of action arising out of the same events that form the basis for Plaintiff's current Complaint. (See Defs.' Mem. Ex. 10 (Jan. 21, 2010 Am. Compl.) ¶¶ 50-126.) On September 30, 2010, the court granted defendants' motion to dismiss for lack of personal jurisdiction with respect to all claims against the individual defendants but denied the motion with respect to IBM and Artech. (See Am. Compl. ¶ 43; Defs.' Mem. 7; Defs.' Mem. Ex. 11 (Superior Court Docket), at unnumbered 7-8 (indicating that the defendants' motion to dismiss was granted as to Palmisano, Loughridge, and Poddar).) On October 19, 2010, Plaintiff filed a notice of his intent to file a motion to request a separate and final judgment with respect to the individual defendants. (See Am. Compl. ¶ 43; Am. Compl. Attach. 1 (Suppl. to Mem. in Opp'n to Defs.' Mot. To Dismiss Compl. ("Pl.'s Suppl. Mem.")) 5.)
After the remand, the defendants proposed a settlement of $17,500 to Plaintiff, in exchange for which Plaintiff would dismiss the action with prejudice. (See Defs.' Mem. Ex. 14 (Oct. 1, 2014 Appeals Court Decision), at 2.)
On January 4, 2011, after the Massachusetts state court dismissed Plaintiff's claims against Palmisano, Loughridge, and Poddar, but before it granted summary judgment to IBM and Artech, Plaintiff filed yet another lawsuit — this one, in the United States District Court for the District of Massachusetts — asserting 19 causes of action arising out of his employment relationship with IBM, Artech, and CDI. (See Am. Compl. ¶ 44; Defs.' Mem. 8; Defs.' Mem. Ex. 15 (Pl.'s District of Massachusetts Second Am. Compl.) ¶¶ 45-193.) In addition to Palmisano, Loughridge, and Poddar, Plaintiff's amended complaint in the District of Massachusetts action named Schroeter, MacDonald, Robert C. Weber, Jesse J. Greene, Jr., and CDI as defendants. (See Defs.' Mem. Ex. 15 (Pl.'s District of Massachusetts Second Am. Compl.) ¶¶ 2-9.) On December 9, 2011, the District Court dismissed all claims against the defendants and denied Plaintiff's motion to file a fourth amended complaint naming IBM and Artech as defendants. (See Defs.' Mem. 9; Defs.' Mem. Ex. 16 (Dec. 9, 2011 D. Mass. Order), at 4, 13.) Plaintiff appealed, and, on December 10, 2012, the United States Court of Appeals for the First Circuit affirmed. (See Am. Compl. ¶ 46; Defs.' Mem. 9; Defs.' Mem. Ex. 17 (Judgment of First Circuit).)
Next, on January 9, 2013, Plaintiff filed a second complaint in the District of Massachusetts, this time, against IBM, Artech, and CDI. (Defs.' Mem. 9; see also Defs.' Mem. Ex. 18 (Plaintiff's second District of Massachusetts complaint).) Plaintiff brought seven causes of action, all relating to Plaintiff's relationship with IBM, Artech, and CDI. (See Defs.' Mem. Ex. 18 (Plaintiff's second District of Massachusetts complaint) ¶¶ 46-115.) The District Court granted IBM's and Artech's motion to dismiss. (Defs.' Mem. 9; see also Defs.' Mem. Ex. 19 (Docket from Second District of Massachusetts action) at no. 26). The First Circuit affirmed, and the United States Supreme Court denied Plaintiff's petition for a writ of certiorari. (Defs.' Mem. 9; see also Defs.' Mem. Exs. 20-21.)
Defendants move to dismiss Plaintiff's Amended Complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (alterations, citations, and internal quotation marks omitted). Indeed, Rule 8 of the Federal Rules of Civil Procedure "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement." Id. (alterations and internal quotation marks omitted). Instead, a complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level...." Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Although "once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint," id. at 563, 127 S.Ct. 1955, and, although a plaintiff need only allege "enough facts to state a claim to relief that is plausible on its face," id. at 570, 127 S.Ct. 1955, if a plaintiff has not "nudged [his] claim[] across the line from conceivable to plausible, the[] complaint must be dismissed," id.; see also Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 ("Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw
"[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007); see also Graham v. Macy's Inc., No. 14-CV-3192, 2015 WL 1413643, at *1 n. 1 (S.D.N.Y. Mar. 23, 2015) ("For the purpose of resolving the motion to dismiss, the [c]ourt assumes all well-pled facts to be true...."). Further, "[f]or the purpose of resolving [a] motion to dismiss, the [c]ourt ... draw[s] all reasonable inferences in favor of the plaintiff." Daniel v. T&M Prot. Res., Inc., 992 F.Supp.2d 302, 304 n. 1 (S.D.N.Y.2014) (citing Koch v. Christie's Int'l PLC, 699 F.3d 141, 145 (2d Cir.2012)). Additionally, "[i]n adjudicating a Rule 12(b)(6) motion, a district court must confine its consideration to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken." Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir.1999) (internal quotation marks omitted); see also Hendrix v. City of N.Y., No. 12-CV-5011, 2013 WL 6835168, at *2 (E.D.N.Y. Dec. 20, 2013) (same).
Lastly, because Plaintiff is proceeding pro se, the Court must construe his pleadings liberally and "interpret them to raise the strongest arguments that they suggest." Maisonet v. Metro. Hosp. & Health Hosp. Corp., 640 F.Supp.2d 345, 347 (S.D.N.Y.2009) (internal quotation marks omitted); see also Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir.2006). However, the liberal treatment afforded to pro se litigants does not excuse a pro se party "from compliance with relevant rules of procedural and substantive law." Maisonet, 640 F.Supp.2d at 348 (internal quotation marks omitted).
As with its predecessor, Defendants move to dismiss Plaintiff's Amended Complaint on several grounds, including that some of Plaintiff's claims are time barred and that the remaining causes of action fail to state claims upon which relief can be granted. (See Defs.' Mem. 12-20.) Defendants also argue that Plaintiff's claims are barred by the doctrines of claim and issue preclusion. (See id. at 21-23.)
As with Plaintiff's original Complaint, most of the claims in the Amended Complaint relate to the work that Plaintiff performed for IBM and his subsequent termination, all of which occurred in or before March 2008. (See Amended Compl. ¶¶ 20-23.)
Plaintiff's claims brought under the FLSA are subject to, at most, a three-year statute of limitations. See Parada v. Banco Indus. De Venez., C.A., 753 F.3d 62, 70 (2d Cir.2014) ("The FLSA provides a two-year statute of limitations on actions to enforce its provisions, `except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued.'" (quoting 29 U.S.C. § 255(a))). This two-year — or, in the case of willful violations, three-year — statute of limitations applies to Plaintiff's FLSA wage-payment claim, see D'Arpa v. Runway Towing Corp., No. 12-CV-1120, 2013 WL 3010810, at *3-4 (E.D.N.Y. June 18, 2013), his FLSA overtime-wage claim, see Kuebel v. Black & Decker Inc., 643 F.3d 352, 366 (2d Cir.2011), and his FLSA retaliatory-discharge claim, see Goodman v. Port Auth., No. 10-CV-8352, 2013 WL 5313427, at *5 (S.D.N.Y. Sept. 20, 2013); Gonzalez v. El Acajutla Rest., Inc., No. 04-CV-1513, 2007 WL 869583, at *4 (E.D.N.Y. Mar. 20, 2007).
For the reasons that follow, as before, a three-year statute of limitations applies to Plaintiff's state-law wage-payment and retaliatory-discharge claims and a two-year statute of limitations to Plaintiff's state overtime-wage claims. Where, as here, a federal court exercises diversity jurisdiction over a claim, that court "applies the forum state's statute of limitations provisions, as well as any provisions that govern the tolling of the statute of limitations." See Vincent v. Money Store, 915 F.Supp.2d 553, 562 (S.D.N.Y.2013); see also Schermerhorn v. Metro. Transp. Auth., 156 F.3d 351, 354 (2d Cir.1998) ("[The plaintiffs'] claim ... is governed by state law. We therefore look to state-law tolling rules to determine whether the statute of limitations was tolled...."). Under New York law, "when a nonresident plaintiff sues upon a cause of action that arose outside of New York, the court must apply the shorter limitations period, including all relevant tolling provisions, of either: (1) New York; or (2) the state where the cause of action accrued." Stuart v. Am. Cyanamid Co., 158 F.3d 622, 627 (2d Cir.1998) (citing N.Y. C.P.L.R. 202); see also Muto v. CBS Corp., 668 F.3d 53, 57 (2d Cir.2012) (same); Landow v. Wachovia Sec., LLC, 966 F.Supp.2d 106, 125 (E.D.N.Y.2013) (same); In re Coudert Bros. LLP, 673 F.3d 180, 190 (2d Cir.2012) ("To mitigate against abusive statute-oflimitations shopping, some states have created mechanisms — binding on the local federal courts via [Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941)] — that discriminate against claims accruing out of state. New York's borrowing statute ... guards against forum shopping by out-of-state plaintiffs by mandating use of the shortest statute of limitations available." (emphasis omitted)). Therefore, under New York's borrowing statute, the Court will apply the shorter of New York's statute of limitations and that of the state where Plaintiff's claim accrued.
As in its last Opinion and Order, the Court finds that, under New York law, Plaintiff's claim accrued in Massachusetts because Massachusetts was where Plaintiff resided at the time his injuries, which were economic, occurred. See Landesbank Baden-Württemberg v. RBS Holdings USA Inc., 14 F.Supp.3d 488, 501 (S.D.N.Y.2014) ("New York law dictates that `a cause of action accrues at the time and in the place of the injury. When an alleged injury is purely economic, the place of injury usually is where the plaintiff resides and sustains
Finally, for purposes of calculating the timeliness of Plaintiff's Complaint, the Court notes that Plaintiff's wage claims accrued each time Defendants allegedly failed to pay him at the end of a pay period. See Nakahata v. N.Y.-Presbyterian Healthcare Sys., Inc., 723 F.3d 192, 198
"The lapse of a limitations period is an affirmative defense that a defendant must plead and prove," but "a defendant may raise an affirmative defense in a pre-answer Rule 12(b)(6) motion if the defense appears on the face of the complaint." Staehr v. Hartford Fin. Servs. Grp., Inc., 547 F.3d 406, 425 (2d Cir.2008); see also Mosdos Chofetz Chaim, Inc. v. RBS Citizens, N.A., 14 F.Supp.3d 191, 209 (S.D.N.Y.2014) ("Because the defendants bear the burden of establishing the expiration of the statute of limitations as an affirmative defense, a pre-answer motion to dismiss on this ground may be granted only if it is clear on the face of the complaint that the statute of limitations has run." (alterations and internal quotation marks omitted)). In his Amended Complaint, Plaintiff alleges that he worked for IBM from March 11, 2008 to March 28, 2008. (See Am. Compl. ¶ 21.) His claims, thus, accrued on approximately March 28, 2008, and, because Plaintiff filed the Complaint on April 1, 2013, his claims are untimely, unless the statute of limitations has, for some reason, been tolled.
Plaintiff argues that his claim is, in fact, tolled under the doctrine of equitable tolling. (See Pl.'s Mem. 3-5; Pl.'s Suppl. Mem. 3-8.) Equitable tolling "allows a district court to toll the statute of limitations where, inter alia, a plaintiff initially asserted his rights in the wrong forum." Polanco v. U.S. Drug Enf't Admin., 158 F.3d 647, 655 (2d Cir.1998) (internal quotation marks and italics omitted); see also Danecker v. Bd. of Trs. of Serv. Emps. 32BJ N. Pension Fund, 882 F.Supp.2d 606, 612 (S.D.N.Y.2012) (noting that courts apply equitable tolling "as a matter of fairness where a plaintiff ... has asserted his rights in the wrong forum" (alteration and internal quotation marks omitted)). It is, however, an "exceedingly narrow" exception to the FLSA's limitations regime. See Barrett v. Forest Labs., Inc., No. 12-CV-5224, 2015 WL 4111827, at *2 (S.D.N.Y. July 8, 2015). Indeed, "[t]o qualify for equitable tolling" on an FLSA claim, Plaintiff "must establish that extraordinary circumstances prevented [him] from filing [his] claim on time, and that [he] acted with reasonable diligence throughout the period [he] seeks to toll." Parada, 753 F.3d at 71 (internal quotation marks omitted). Establishing both of these requirements is a "high burden" for a plaintiff. See Barrett, 2015 WL 4111827, at *3; see also Asp v. Milardo Photography, Inc., 573 F.Supp.2d 677, 697 (D.Conn.2008) (noting that "[a]n extraordinary circumstance might exist if the employee shows that it would have been impossible for a reasonably prudent person to learn of the cause of action or if the defendant concealed from the plaintiff the existence of the cause of action...." (citation omitted)); Patraker v. Council on Env't, No. 02-CV-7382, 2003 WL 22703522, at *2 (S.D.N.Y. Nov. 17, 2003) (declining to apply doctrine
Here, Plaintiff asserts a number of supposedly extraordinary circumstances that allegedly prevented him from asserting his complaint in the correct forum. To begin, Plaintiff stresses that he is a "pro se" plaintiff with "no legal training [or] relevant knowledge." (See Pl.'s Mem. 4; Pl.'s Suppl. Mem. 4 ("[A]s a pro se [p]laintiff, [Plaintiff] has no legal knowledge and training in laws.").) Additionally, Plaintiff argues that "Defendants intentionally and purposefully opposed Plaintiff's Motion for Separate and Final Judgment as to dismiss the Defendants on ground of lack of personal jurisdiction that prevented him from filing his appeal on time." (See Pl.'s Mem. 4 (brackets and internal quotation marks omitted).) Next, Plaintiff argues that the fact that "Plaintiff asserted his rights in the `wrong' forums was an `extraordinary circumstance'...." (See Pl.'s Suppl. Mem. 3.) Plaintiff also argues that he had to "to commence his complaint with the Massachusetts Attorney General office, rather [than] the court," and that he "had to file his complaint 90 days after the filing of a complaint with the attorney general." (See id. (internal quotation marks omitted).) In addition, Plaintiff argues that the costs of asserting his claims in New York were "unaffordable" and that his limited financial resources constitute an extraordinary circumstance. (See id. at 4.) Relatedly, Plaintiff argues that Defendants took advantage of their greater financial resources to delay the proceedings in court as long as possible, for instance, by forcing Plaintiff to serve them twice in the Massachusetts state court proceedings. (See id.) Finally, Plaintiff argues that he could not assert his rights in a New York court given that "Plaintiff's home is over 200 miles away from the New York" and that "[t]here is no direct public transportation from his home to the court." (See id.)
Although Plaintiff identifies a number of obstacles which may well render pursuing his claim in New York more challenging than in Massachusetts, none is sufficiently "extraordinary" to justify invoking the doctrine of equitable tolling. First, by itself, a plaintiff's "pro se status ... does not merit equitable tolling." See Smith v. McGinnis, 208 F.3d 13, 18 (2d Cir.2000) (italics omitted). Second, even if Defendants' dilatory tactics prevented Plaintiff from filing a prompt appeal in the Massachusetts state court proceedings (which is far from obvious), it is not clear how this actually prevented Plaintiff from timely filing his claims in a court with personal jurisdiction over Defendants. Cf. Hizbullahankhamon v. Walker, 255 F.3d 65, 76 (2d Cir.2001) (remarking in the context of habeas action that, "even assuming that the alleged deprivation of access to [the petitioner's] legal materials and the law library constituted an `extraordinary circumstance' warranting equitable tolling, petitioner cannot show that this extraordinary circumstance prevented him from filing a timely habeas petition"). Indeed, Plaintiff filed his Motion for Separate and Final Judgment nearly a month after the superior court granted the defendants' motion to dismiss for lack of personal jurisdiction. (See Am. Compl. ¶ 43.) If anything, Defendants' approach to the Massachusetts state court litigation underscored rather than obscured the need for Plaintiff to bring his claims in a forum outside of Massachusetts. Cf. Patraker, 2003 WL 22703522, at *2 (finding "nothing extraordinary" about the defendants' failure to
Next, Plaintiff's suggestion that asserting claims in the wrong forum can, itself, amount to sufficiently extraordinary circumstances to warrant equitable tolling fails; otherwise, equitable tolling would be a "cure-all for an entirely common state of affairs" rather than "a rare remedy to be applied in unusual circumstances." See Amendola v. Bristol-Myers Squibb Co., 558 F.Supp.2d 459, 479 (S.D.N.Y.2008) (internal quotation marks omitted) (quoting Wallace v. Kato, 549 U.S. 384, 396, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007)). By that same logic, Plaintiff's claims about his limited financial resources and the distance between Massachusetts and New York also fail. The case law makes clear that "a plaintiff[']s limited financial means and inability to afford a lawyer are not `extraordinary circumstances' that support equitably tolling the limitations period." See Wen Liu v. Mount Sinai Sch. of Med., No. 09-CV-9663, 2012 WL 4561003, at *5 (S.D.N.Y. Sept. 24, 2012), aff'd sub nom. Wen Liu v. Mount Sinai Sch. of Med. & Agents, 559 Fed.Appx. 106 (2d Cir.2014); see also Apionishev v. Columbia Univ., No. 09-CV-6471, 2011 WL 1197637, at *6 (S.D.N.Y. Mar. 25, 2011) ("Homelessness and depression or illness alone are not sufficient to justify equitable tolling...."). Similarly, if equitable tolling were appropriate whenever distance impeded a plaintiff's ability to bring claims in a forum with personal jurisdiction over the defendants, the "exceedingly narrow," see Barrett, 2015 WL 4111827, at *2, equitable tolling doctrine would essentially swallow the statute of limitations rule. Finally, Plaintiff's protestations that he had to assert his claims under the Wage Act with the Massachusetts attorney general and file his complaint 90 days afterwards are likewise insufficient because neither requirement prevented Plaintiff from timely filing his Complaint in a forum capable of exercising jurisdiction over Defendants. See Parada, 753 F.3d at 71 (noting that equitable tolling did not apply where the plaintiff submitted a claim with the Department of Labor because the Plaintiff still could have filed her FLSA claim, which has no administrative exhaustion requirement).
Even if Plaintiff could establish that extraordinary circumstances militate in favor of equitable tolling, Plaintiff still did not "pass with reasonable diligence through the period [he] seeks to have tolled." See Patraker, 2003 WL 22703522, at *2 (internal quotation marks omitted). Plaintiff argues that the "Massachusetts Superior Court's Dismissal Order on ground of lack of personal jurisdiction [was] subject to appeal" and that the "Massachusetts Appeals Court affirmed the dismissal on 3/7/2013," meaning that "Plaintiff was placed on notice that he could not obtain personal jurisdiction over the Defendants on 3/7/2013, [and] not September 30, 2010." (Pl.'s Mem. 4.) Similarly, Plaintiff discusses his various court filings in an effort to demonstrate that he acted with reasonable diligence. (See Pl.'s Suppl. Mem. 4-5.)
Plaintiff's argument misses the mark on both factual and legal grounds. First, Plaintiff had notice that he filed his claims in the wrong court when the superior court dismissed his claims for lack of personal jurisdiction on September 30, 2010. See DeGrate v. Broad. Music, Inc., No. 12-CV-1700, 2013 WL 639146, at *1, *3 (S.D.N.Y. Feb. 20, 2013) (noting "that Plaintiff received notice that he had filed in the wrong court on [the date when the court rejected the plaintiff's petition for lack of jurisdiction], at which time equitable tolling would have ceased"). Even if Plaintiff felt that he need not file a complaint in a different court because the Massachusetts Appeals Court had not
Moreover, even if the Court applied equitable tolling to exclude from the limitations period the time during which Plaintiff's state and federal actions in Massachusetts were pending, the Complaint would still be untimely. As discussed, Plaintiff filed the instant Complaint approximately five years after his claims accrued. Within that period, approximately 10 months elapsed between
Plaintiff, for his part, submits a few alternative calculations which purport to show that his claims would be timely if equitable tolling did apply to this case. (See Pl.'s Suppl. Mem. 7-8.)
In addition to his argument that he is entitled to equitable tolling, Plaintiff seems to suggest his Complaint is timely because he filed suit earlier in Massachusetts' state and federal courts. (See Pl.'s Mem. 3-4 (arguing that Defendants' argument that Plaintiff's claims are time barred "has no merit" and that "the complaint against the Defendants has essentially not stopped in the `wrong' forum until this case was filed on April 1, 2013").) To the extent Plaintiff intends to
With regard to Plaintiff's state-law claims, "New York's `savings' statute allows a plaintiff to refile claims within six months of a timely prior action's termination for reasons other than the merits or a plaintiff's unwillingness to prosecute the claims in a diligent manner." Norex Petroleum Ltd. v. Blavatnik, 23 N.Y.3d 665, 992 N.Y.S.2d 503, 16 N.E.3d 561, 563 (2014) (citation omitted) (citing N.Y. C.P.L.R. 205(a)); see also Dorchester Fin. Sec., Inc. v. Banco BRJ, S.A., No. 11-CV-1529, 2014 WL 684831, at *4 (S.D.N.Y. Feb. 21, 2014) (same), reconsideration denied, 2014 WL 5364102 (S.D.N.Y. Oct. 22, 2014); Peters v. UBS AG, No. 13-CV-3098, 2014 WL 148631, at *5 (S.D.N.Y. Jan. 15, 2014) (same), aff'd, 588 Fed.Appx. 57 (2d Cir. 2014). However, the savings statute does not apply to claims that were dismissed for lack of personal jurisdiction. See N.Y. C.P.L.R. 205(a) (providing that this section applies to "an action [that] is timely commenced and is terminated in any other manner than ... a failure to obtain personal jurisdiction over [a] defendant"); Midwest Mem'l Grp., LLC v. Int'l Fund Servs. (Ir.) Ltd., No. 10-CV-8660, 2011 WL 4916407, at *6 (S.D.N.Y. Oct. 17, 2011) (noting that § 205(a)'s "tolling provisions are not applicable where a prior action against the same defendant ha[d] been terminated for lack of personal jurisdiction"); Jacquez v. Campouerde, 309 A.D.2d 903, 766 N.Y.S.2d 89, 89 (2003) (holding that, because a court previously dismissed an action against the defendant for lack of personal jurisdiction, "the plaintiff was not entitled to invoke the six-month extension contained in [205(a)] to recommence his terminated action"). Accordingly, the savings statute applies neither to Plaintiff's
In addition to the six previously discussed counts, Plaintiff brings two claims — one under FLSA (Count Five), the other under Massachusetts' Wage Act (Count Six) — alleging that Defendants refused to hire Plaintiff in retaliation for exercising his rights under those laws. (See Am. Compl. ¶¶ 71-93.) Defendants argue that these counts fail to state claims upon which relief can be granted for two reasons: First, because they are not Plaintiff's "employer" within the meaning of the relevant statutes; and, second, because no well-pleaded factual allegations plausibly suggest retaliation. (See Defs.' Mem. 15-20.) Because the Court agrees with the latter proposition, there is no need to reach the question of whether Defendants are Plaintiff's employer.
Under the FLSA's anti-retaliation provision, "it [is] unlawful for any person... 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 [the FLSA]." See 29 U.S.C. § 215(a)(3). Similarly, Massachusetts' Wage Act provides that "[n]o employee shall be penalized by an employer in any way as a result of any action on the part of an employee to seek his or her rights under [the Wage Act]." See Mass. Gen. Laws ch. 149, § 148A. To allege a claim under the FLSA, "a plaintiff must plead facts showing a prima facie case of retaliation, namely: (1) participation in protected activity known to the defendant[s]; (2) an employment action disadvantaging the plaintiff; and (3) a causal connection between the protected activity and the adverse employment action." Salazar v. Bowne Realty Assocs., L.L.C., 796 F.Supp.2d 378, 384 (E.D.N.Y.2011); see also Tongring v. Bronx Cmty. Coll. of City Univ. of N.Y. Sys., No. 12-CV-6854, 2014 WL 463616, at *4 (S.D.N.Y. Feb. 4, 2014) (same). A plaintiff must allege similar facts to state a claim under Massachusetts state law. See Mass. Gen. Laws ch. 149, § 148A (making liable "[a]ny employer who ... in any ... manner discriminates against any employee because such employee has" sought to vindicate his or her rights under the Wage Act (emphasis added)); Mole v. Univ. of Mass., 442 Mass. 582, 814 N.E.2d 329, 338-39 (2004) ("To make out his prima facie case [of retaliation], [the plaintiff] had to show that he engaged in protected conduct, that he suffered some adverse action, and that a causal connection existed between the protected conduct and the adverse action." (footnotes and internal quotation marks omitted)); Karatihy v. Commonwealth Flats Dev. Corp., 84 Mass.App.Ct. 253, 995 N.E.2d 819, 821-22 (2013) (noting in context of summary judgment that "[t]he elements [the plaintiff] must establish to prove a retaliation claim are that: (1) he engaged in protected activity; (2) he suffered an adverse employment action; and (3) the adverse employment action was causally related to the protected activity"); see also Joyce v. Upper Crust, LLC., No. 10-CV-12204, 2015 WL 4480751, at *6 (D.Mass. July 21, 2015) (noting in context of motion for summary judgment on § 148A claim that "[the plaintiff] [bore] the burden of showing that [the defendant's] justification for the adverse action is pretextual and that there [was] a causal connection between [the plaintiff's] action and [the defendant's] adverse action" (internal quotation marks omitted)); Belghiti v. Select Rests., Inc., No. 10-CV-12049, 2014 WL 1281476, at *4 (D.Mass. Mar. 31, 2014) (noting in considering motion for summary judgment on § 148A claim that "[t]he plaintiff has the burden
With respect to the causal connection requirement, Plaintiff may specifically allege such a connection either "directly, by alleging facts of a retaliatory animus against him," or "indirectly, either by showing a temporal relationship in which the protected activity was followed closely in time by discriminatory treatment, or by other circumstantial evidence." McManamon v. Shinseki, No. 11-CV-7610, 2013 WL 3466863, at *12 (S.D.N.Y. July 10, 2013); see also Herling v. N.Y.C. Dep't of Educ., No. 13-CV-5287, 2014 WL 1621966, at *10 (E.D.N.Y. Apr. 23, 2014) (same); McNair v. N.Y.C. Health & Hosp. Co., 160 F.Supp.2d 601, 604 (S.D.N.Y.2001) ("In order to establish [a] causal connection, a plaintiff must allege (1) direct proof of retaliatory animus directed against the plaintiff; (2) disparate treatment of similarly situated employees; or (3) that the retaliatory action occurred close in time to the protected activities."). "At the prima facie stage, a plaintiff can rely solely on temporal proximity to establish the requisite causal connection between her protected activity and the materially adverse action that she allegedly suffered in retaliation for engaging in that activity," Risco v. McHugh, 868 F.Supp.2d 75, 114 (S.D.N.Y. 2012) (italics omitted); however, "[t]he cases that accept mere temporal proximity... as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be very close," Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (internal quotation marks omitted); see also Abrams v. Dep't of Pub. Safety, 764 F.3d 244, 254 (2d Cir.2014) (noting that "temporal proximity must be very close" for purposes of retaliation claim (internal quotation marks omitted)). "[T]here is no `bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship between the exercise of a federal constitutional right and an allegedly retaliatory action'...." Abrams, 764 F.3d at 254 (quoting Gorman-Bakos v. Cornell Coop. Extension of Schenectady Cty., 252 F.3d 545, 554 (2d Cir.2001)). Consistent with this logic, the courts have found that where even very close temporal proximity exists, the requisite causal connection will falter if the employer's complained-of conduct began before the employee's corresponding protected activity. See Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir.2001) ("Where timing is the only basis for a claim of retaliation, and gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise."); Dabney v. Christmas Tree Shops, 958 F.Supp.2d 439, 456 (S.D.N.Y.2013) ("Although temporal proximity can sometimes demonstrate a causal nexus, where ... the termination was ultimately the product of an extensive period of progressive discipline that began when [the] [p]laintiff received her first written warning ... months before [employer learned of the allegedly protected activity], a claim for retaliation cannot be maintained." (internal quotation marks omitted)), aff'd sub nom. Dabney v. Bed Bath & Beyond, 588 Fed. Appx. 15 (2d Cir.2014); White v. Eastman Kodak, No. 06-CV-6493, 2009 WL 1514659, at *10 (W.D.N.Y. May 29, 2009) ("[W]here ... discipline was already underway prior to the protected activity ..., the Second Circuit has held that temporal proximity alone is insufficient to make out a prima facie case."), aff'd, 368 Fed.Appx. 200 (2d Cir.2010). By extension, in the
"FLSA retaliation claims are subject to the three-step burden-shifting framework established by [McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)]." Mullins v. City of N.Y., 626 F.3d 47, 53 (2d Cir.2010). Under that framework, "[o]nce [a plaintiff] makes a prima facie case of... retaliation, the burden shifts to the employer to give a legitimate ... reason for its actions," and, "[i]f the employer does so, the burden then shifts back to the plaintiff to show that the employer's explanation is a pretext for ... retaliation." Kirkland v. Cablevision Sys., 760 F.3d 223, 225 (2d Cir.2014). At this stage in the litigation, as courts have recognized in similar contexts, Plaintiff "is not required to specifically plead every element of a prima facie case to survive a motion to dismiss;" however, he "[s]till ... must plead facts sufficient to render his ... retaliation claim facially plausible under Twombly and Iqbal." Ayazi, 2012 WL 4503257, at *7; see also Herling, 2014 WL 1621966, at *8 (setting out the elements of a prima facie case for a retaliation claim while noting that "a plaintiff need not plead facts sufficient to establish a prima facie case of retaliation to survive a motion to dismiss[,]" but rather that "the ordinary rules for assessing the sufficiency of a complaint apply" (internal quotation marks omitted)); Brundidge v. Xerox Corp., No. 12-CV-6157, 2014 WL 1323020, at *3 (W.D.N.Y. Mar. 31, 2014) ("Retaliation claims are ultimately analyzed under the [McDonnell Douglas] burden-shifting rules.... However, at the pleading stage ... the [c]ourt does not specifically apply the McDonnell Douglas burden-shifting test to determine whether [a] [p]laintiff has stated a retaliation claim, but rather generally assesses the plausibility of [a] [p]laintiff's claim based on the facts alleged in the [c]omplaint."); McManamon, 2013 WL 3466863, at *4 (noting that, while a plaintiff "need not specifically plead every element of a prima facie case" to survive a motion to
In this sense, and in the context of the causation element of the prima facie case, Plaintiff specifically "must allege facts that could establish a causal connection between [his] protected activity and Defendant[s'] refusal to interview or to hire [him]." Ayazi, 2012 WL 4503257, at *7; see also McManamon, 2013 WL 3466863, at *12 ("A plaintiff must allege facts that could establish a causal connection or link between his or her protected activity and the adverse action. At [the motion-to-dismiss] stage, [a plaintiff] is not required to provide evidence of such a connection, but he must plead facts that indicate an ability to do so." (citations omitted)); cf. Patane v. Clark, 508 F.3d 106, 112 & n. 3 (2d Cir. 2007) (per curiam) (noting, in the context of a gender-discrimination claim, that a plaintiff need not plead a prima facie case under McDonnell Douglas, but affirming a district court's dismissal of the claim because the complaint "failed to plead any facts that would create an inference that any adverse action taken by any defendant was based upon [the plaintiff's] gender" (alterations and internal quotation marks omitted)).
Here, it appears that Plaintiff rests his entire argument concerning causal connection on the basis of temporal proximity. (Pl.'s Mem. 6-8 (arguing that, because "Plaintiff's job applications were made continuously without ... stop between 2008 and 2011" but "were rejected each and every [time] by ... Defendants," "`protected activity' and `adverse actions' quali[f]y [as] `temporally proximate' as to causal connection"); Pl.'s Suppl. Mem. 11 (arguing that Defendants' rejections of his job applications "show, at least indirectly, a temporal relationship between ... Defendants['] refus[al] to hire Plaintiff and... Plaintiff['s] complain[ts] [that] his rights were violated under the Massachusetts Wage Act and the FLSA in the state courts"). Such an argument, if made at the summary judgment stage, might prove unavailing. See, e.g., El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 932-33 (2d Cir.2010) (per curiam) (noting that the plaintiff "arguably" established a prima facie Title VII retaliation claim by demonstrating temporal proximity but concluding that such temporal proximity — without more — was insufficient to show that the defendant's proffered reason for discharging the plaintiff was pretextual); see also Padob v. Entex Info. Serv., 960 F.Supp. 806, 814 (S.D.N.Y.1997) (granting summary judgment for the defendant on the plaintiff's retaliatory discharge claim where, "other than temporal proximity, [the] [p]laintiff herself offer[ed] no other evidence of such a causal connection," instead hinging her retaliatory discharge claim on the grounds that she was at the company for nine years); Philippeaux v. Fashion Institute of Tech., No. 93-CV-4438, 1996 WL 164462, at *9 (S.D.N.Y. Apr. 9, 1996) ("[T]emporal proximity alone is not necessarily dispositive of a causal connection evidencing a retaliatory motive."), aff'd, 104 F.3d 356 (2d Cir.1996). Although the question is, of course, much closer at the motion to dismiss stage, where temporal proximity alone may be enough, see, e.g., Purdie v. City Univ. of N.Y., No. 13-CV-6423, 2015 WL 129552, at *11 (S.D.N.Y. Jan. 8, 2015), in this case, the Court nonetheless finds that Plaintiff has failed to plausibly plead the requisite causal connection.
Rather than specifying which protected activities are supposed to be temporally proximate to which adverse employment actions, Plaintiff instead reasons that, because (1) his "protected activities ... were continued without stop since 2008" and (2)
Unfortunately, it is not particularly clear when Plaintiff set out on his multi-year quest to supposedly secure a job with IBM. Apparently, however, he began at least as early as May 2008. (See Am. Compl. ¶ 34 ("IBM repeatedly rejected each and every work application made by [P]laintiff ... for more than 4 years until 2012."); id. ¶ 40 ("Plaintiff made many job applications to IBM and Defendants for about a hundred works sought by IBM, repeatedly for more than 4 years until 2012."); Pl.'s Suppl. Mem. 11 ("A few examples of the dates of said job applications
With regard to the first proposition, there is a strong case to be made that Plaintiff has, in essence, claimed to have applied for jobs earlier than April 14. First, Plaintiff says that he applied to "over a dozen [jobs] a year[] from 2008 to 2012." (Pl.'s Suppl. Mem. 11.) Among the examples of job applications he submitted, Plaintiff lists just one for 2012, which he says he submitted on January 11, 2012. (Pl.'s Suppl. Mem. 11; Pl.'s Mem. 7.) Assuming, therefore, as seems implicit in Plaintiff's statements, that he concluded his job search in early 2012, and crediting his assertion that he applied for jobs "repeatedly for more than 4 years until 2012," it is reasonable to infer that Plaintiff began his job search promptly after his March 28, 2008 termination. (See Am. Compl. ¶ 30.)
But even if Plaintiff's very first re-application were his May 6, 2008 submission, the April 14 complaint still could not adequately ground Plaintiff's retaliatory failure-to-hire claims. That is so because Plaintiff must establish "participation in protected activity known to the defendant[s]," Salazar, 796 F.Supp.2d at 384 (emphasis added), in order to make out a prima facie case of retaliation, see Belizaire v. RAV Investigative & Sec. Servs. Ltd., 61 F.Supp.3d 336, 355 (S.D.N.Y.2014) (concluding that the plaintiff failed to "establish[] that he engaged in a protected activity known to the defendant as required to state a retaliatory discharge claim under the FLSA," because he did not "allege[] that [the] [d]efendant had any knowledge of this complaint, nor has he pleaded facts from which this [c]ourt could infer such knowledge" (citations, emphasis, and internal quotation marks omitted)); Doria v. Cramer Rosenthal McGlynn, Inc., 942 F.Supp. 937, 944 (S.D.N.Y.1996) ("The case law makes clear that the employer's knowledge of the protected activity is necessary to establish a prima facie retaliation claim" (italics omitted)); see also McManamon, 2013 WL 3466863, at *10 ("A complaint that makes only general statements that the defendant retaliated against the plaintiff but does not supply factual detail describing ... which employees were aware of any protected activity or were actually involved in retaliatory conduct[] is insufficient to withstand
Id. (internal quotation marks omitted) (quoting Tuper v. N. Adams Ambulance Serv., Inc., 428 Mass. 132, 697 N.E.2d 983, 985 (1998)); see also Comm'r of Dep't of Emp't & Training v. Dugan, 428 Mass. 138,697 N.E.2d 533, 536 (1998) (same).
With all that in mind, the Court must ask whether "there was a final judgment on the merits in the prior adjudication," Kobrin, 832 N.E.2d at 634 (internal quotation marks omitted), despite Plaintiff's subsequent appeals and the eventual settlement. In general, as is unsurprising, "disposition by summary judgment constitutes a final judgment on the merits" for issue preclusion purposes. Boyle v. Barnstable Police Dep't, No. 09-CV-11435, 2012 WL 2126868, at *10 (D.Mass. June 11, 2012). Although Plaintiff does not press the point, the Court notes that the Massachusetts Supreme Judicial Court has stated that "determinations made on a partial summary judgment in an earlier action between the parties are not entitled to collateral estoppel or issue preclusion effect." Tausevich v. Bd. of Appeals of Stoughton, 402 Mass. 146, 521 N.E.2d 385, 386 (1988). However, the Court nevertheless believes Massachusetts law calls for such effect in this case. First, it is essential to note that the Supreme Judicial Court stressed that "[in] the earlier action [at issue in Tausevich], ... an apparently substantial issue remained undecided [and] was terminated by a stipulation of dismissal without prejudice," such that "the partial summary judgment never was expressed in an appealable judgment or order." Id. In stark contrast, here, Plaintiff not only could appeal the decision; he did. (See Defs.' Mem. Ex. 13 (July 25, 2012 Appeals Court Opinion).) This distinction matters. Indeed, the pertinent question is not whether there was a final judgment in the traditional sense. See Tausevich, 521 N.E.2d at 387 ("[A] final judgment in the traditional sense is not essential to the applicability of issue preclusion."); Jarosz v. Palmer, 436 Mass. 526, 766 N.E.2d 482, 489 (2002) ("[F]or the purposes of issue preclusion, [the doctrine] does not require a final judgment in the strict sense.").
Turning to the issue of privity, Massachusetts law provides some support for the idea that privity between a company and an officer could arise in a closely-held corporation. See Eight Arlington St., LLC v. Arlington Land Acquisition-99, LLC, No. 061928BLS1, 2007 WL 2367753, at *5 (Mass.Super.Ct. Aug. 3, 2007) (noting that some cases "may have held that a closely-held corporation is in privity with its shareholders and officers"); Fromm v. Bos. Redevelopment Auth., No. 032951F, 2005 WL 1812498, at *10 (Mass.Super.Ct. May 13, 2005) (citing In re Belmont Realty Corp., 11 F.3d 1092, 1097 (1st Cir.1993)), for the proposition that, "in a res judicata action, privity existed between a closely-held corporation and its officer/shareholder who participated extensively in the prior action proceedings"). This, of course, at least obliquely supports the eminently logical conclusion that a high-level officer of a large, publicly-traded corporation is not in privity with that company. However, Massachusetts law also is clear that there is privity between parties if the party in the second matter exercised "substantial control" over the party in the first. See O'Connell v. White, 28 N.E.3d 12, at *3 (Mass. App.Ct.2015) (unpublished table opinion); Bourque v. Cape Southport Assocs., LLC, 60 Mass.App.Ct. 271, 800 N.E.2d 1077, 1081 (2004) (citing Restatement (Second) of Judgments § 39 (Am. Law Inst. 1982))); see also Restatement (Second) of Judgments § 39 (Am. Law Inst. 1982) ("A person who is not a party to an action but who controls or substantially participates in the control of the presentation on behalf of a party is bound by the determination of issues decided as though he were a party."). Thus, if Plaintiff had plausibly pled that Defendants really did control IBM in its past litigation and personnel decisions, his victory would be pyrrhic at best and would lead the Court to believe that a finding of privity would be appropriate under Massachusetts law. See Bourque, 800 N.E.2d at 1081.
Lastly, with respect to the issue of the identity of the issues, intuition perhaps
With respect to the former, it simply defies logic that, if a court determined one failure to hire was not retaliatory, a subsequent failure to reverse course and hire the former plaintiff would be retaliatory, not just in spite of but indeed because of the court's decision, which did not — and, of course, could not — adjudicate future personnel decisions. The bar for finding identical issues may be high, but it is not impossibly so. Cf. Dugan, 697 N.E.2d at 537 (finding preclusive effect given to issue of the defendant's state of mind where the issue was determined, although it need not have been, in an earlier action); Tuper, 697 N.E.2d at 986 (finding issues not identical where corresponding issues in two cases differed because one involved subjective inquiry and the other an objective inquiry).
Turning to the second point, the fact that Plaintiff now sues under a second statute does not make the issue different. Indeed, Massachusetts case law suggests that this distinction does not compel the conclusion even that claims are different, much less that the issues are different. See McDonough v. City of Quincy, 452 F.3d 8, 16 (1st Cir.2006) ("Causes of action are identical if they `derive from the same transaction or series of connected transactions.'" (alteration omitted) (quoting TLT Constr. Corp. v. A. Anthony Tappe & Assocs., Inc., 48 Mass.App.Ct. 1, 716 N.E.2d 1044, 1051 (1999))); Isaac v. Schwartz, 706 F.2d 15, 17 (1st Cir.1983) ("A `statement of a different form of liability' cannot overcome res judicata's bar if `it grows out of the same transaction, act, or agreement, and seeks redress for the same wrong.'" (quoting Mackintosh v. Chambers, 285 Mass. 594, 190 N.E. 38, 39 (1934))); Heacock, 520 N.E.2d at 152-53 (noting that "[t]he doctrine of claim preclusion makes a valid, final judgment conclusive on the parties and their privies, and bars further litigation of all matters that were or should have been adjudicated in the action," and that "[t]his is so even though the claimant is prepared in a second action to present different evidence or legal theories to support his claim, or seeks different remedies").
All of this, however, is perhaps a detour, although one, which, hopefully, assures a pro se plaintiff that his claims have been thoroughly heard and considered, even if ultimately found legally lacking. However, at its core, the fundamental problem with Plaintiff's retaliatory failure-to-hire claim is that, as pled, it simply is not plausible. To be sure, at this stage, Plaintiff's claim need not establish the full elements of a prima facie claim. See McManamon, 2013 WL 3466863, at *4. And, perhaps, it may not even be entirely "beyond doubt that the plaintiff can prove no set of facts," Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), overruled by Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955,
In addition to the foregoing claims, Plaintiff brings two claims for age discrimination — one under the ADEA and one under Massachusetts state law. With regard to the former, as discussed in the last Opinion, courts in the Second Circuit have consistently held that the ADEA does not impose liability on individuals. See Palumbo v. Carefusion 2200, Inc., No. 12-CV-6282, 2014 WL 3921233, at *6 (W.D.N.Y. Aug. 11, 2014) ("It is well-established that there is no individual liability under ... the ADEA." (internal quotation marks omitted)); Fitzgerald v. Signature Flight Support Corp., No. 13-CV-4026, 2014 WL 3887217, at *3 (S.D.N.Y. Aug. 5, 2014) ("[I]ndividuals are not subject to ADEA liability."); Almontaser v. N.Y.C. Dep't of Educ., No. 13-CV-5621, 2014 WL 3110019, at *3 n. 2 (E.D.N.Y. July 8, 2014) (noting that "individuals are not subject to liability under ... the ADEA"); Stankovic v. Newman, No. 12-CV-399, 2013 WL 6842530, at *2 (D.Conn. Dec. 27, 2013) ("There is no individual liability under ... the ADEA...."); Thorpe v. Piedmont Airlines, Inc., 926 F.Supp.2d 453, 462 (N.D.N.Y.2013) ("[T]here is no basis for imposing individual liability on agents of an employer under the ADEA's definition."). The Court therefore dismisses Plaintiff's ADEA claim.
With respect to Plaintiff's state age-discrimination claims, the Massachusetts statute Plaintiff invokes imposes civil liability on a private-sector employer who "refuse[s] to hire or employ ... [an] individual" "because of the age of [that] individual." Mass. Gen. Laws ch. 151B, § 4(1B). This language is, in all relevant respects, nearly identical to the ADEA's language making it "unlawful for an employer ... to
In this context, "[t]o survive a motion to dismiss" Plaintiff "must plausibly plead that the circumstances surrounding an adverse employment action give rise to an inference of age discrimination." Kirkweg v. N.Y.C. Dep't of Educ., No. 12-CV-2635, 2013 WL 1651710, at *4 (S.D.N.Y. Apr. 4, 2013) (alteration and internal quotation marks omitted); see also Deylii v. Novartis Pharm. Corp., No. 13-CV-6669, 2014 WL 2757470, at *7 (S.D.N.Y. June 16, 2014) ("[A]n ADEA complaint must contain sufficient facts to make plausible the conclusion that but for his age, Plaintiff would still be employed." (alterations and internal quotation marks omitted)); Lawtone-Bowles v. City of N.Y., Dep't of Sanitation, 22 F.Supp.3d 341, 350 (S.D.N.Y. 2014) ("To plead a claim of age discrimination under the ADEA, the plaintiff must allege sufficient facts to support a plausible inference that she suffered an adverse employment action because of her age."); cf. Sassine v. Fid. Mgmt. & Research Co., No. SUCV2012-04085-E, 2013 WL 7121296, at *3 (Mass.Super.Ct. Oct. 22, 2013) (dismissing a claim under Mass. Gen. Laws ch. 151B, § 4(1B) "for failure to state a claim" because it "fail[ed] to include any facts giving rise to a reasonable inference that age was a factor in [the plaintiff's] termination," and therefore it "[did] not plausibly suggest an entitlement to relief for age discrimination").
As with Plaintiff's original complaint, the Amended Complaint offers only barebones and conclusory allegations. The Amended Complaint merely alleges that Plaintiff submitted "applications for ... more than a hundred [jobs]" with IBM. (See Am. Compl. ¶ 109.) Despite Plaintiff's qualifications, "IBM and Defendants rejected each and every [one of] Plaintiff's applications...." (Id.) The Amended
With regard to Plaintiff's assertion that "[a] determining factor in the rejection of Plaintiff for each and every of more than a hundred jobs sought by IBM was his age," (Am. Compl. ¶¶ 101, 111), this assertion is essentially the same as his assertion in the original complaint that "[a] determining factor in the rejection of Plaintiff's applications was his age," (see Compl. ¶ 111), which this Court found was insufficient, see Wang v. Palmisano, 51 F.Supp.3d 521, 542 (S.D.N.Y.2014). For the same reason, this conclusory allegation also fails to give rise to a plausible inference of age discrimination in connection with Defendants' refusal to hire Plaintiff. See Wang, 51 F.Supp.3d at 542.
With respect to Plaintiff's claim that IBM offered these positions to "persons significantly younger and/or significantly less qualified tha[n] Plaintiff," (see Am. Compl. ¶¶ 101, 111), the Court notes that Plaintiff's claim is utterly conclusory, "naked," and "devoid of further factual enhancement." See Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (internal quotation marks omitted). Such conclusory assertions "without supporting factual allegations, ... are not entitled to a presumption of truth." Thayil v. Fox Corp., No. 11-CV-4791, 2012 WL 364034, at *5 (S.D.N.Y. Feb. 2, 2012). Indeed, Plaintiff provides no details about these putative hires, such as their hire dates, ages, qualifications, work experience, or whether Defendants knew their age. These general and unsubstantiated assertions thus require dismissal. See Ndremizara v. Swiss Re Am. Holding Corp., 93 F.Supp.3d 301, 316 (S.D.N.Y. 2015) (granting the defendant's motion to dismiss on age discrimination claim where "[the] [p]laintiff provide[d] no details about... [the defendant's] supposed [younger, less experienced] employees, including when they were hired, by which office they were hired ..., what their experience, age, or qualifications were, or whether [the] [d]efendant knew their ages." (alterations and internal quotation marks omitted)); Payne v. Malemathew, No. 09-CV-1634, 2011 WL 3043920, at *2 & n. 3 (S.D.N.Y. July 22, 2011) (finding pro se plaintiff failed to plausibly plead ADEA claim where plaintiff merely alleged that he was replaced by two younger employees); Nance v. City of N.Y., No. 09-CV-2786, 2011 WL 2837491, at *4 (E.D.N.Y. July 14, 2011) ("[A]n allegation that [the] plaintiff was replaced by a younger employee is not sufficient, without more, to survive a motion to dismiss."); Maysonet v. Citi Group, Inc., No. 10-CV-4616, 2011 WL 476610, at *5 (S.D.N.Y. Feb. 9, 2011) (dismissing ADEA claim where the plaintiff merely alleged that she was in her mid-40s and that the defendant hired others in their mid-20s, without alleging any facts about the employee who replaced plaintiff); Adams v. N.Y. State Educ. Dep't, 752 F.Supp.2d 420, 465 (S.D.N.Y.2010) (dismissing ADEA claim where the plaintiffs "merely allege[d] that [they were] over 40 years of age and were replaced by younger teachers," and noting that the complaint "does not allege any ageist remarks by" the defendants and that the plaintiffs "do not state who the teachers are that replaced them or their age"), aff'd sub nom. Ebewo v. Fairman, 460 Fed.Appx. 67 (2d Cir.2012); Zucker v. Five Towns Coll., No. 09-CV-4884, 2010 WL 3310698, at *2 (E.D.N.Y. Aug. 18, 2010) (holding that "allegations
For the above reasons, the Court grants Defendant's Motion To Dismiss. This dismissal is with prejudice. While "[a] pro se complaint should not be dismissed without the Court granting leave to amend at least once," here the Court has already granted Plaintiff leave to amend. Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir.2014) (italics omitted). With regard to Plaintiff's claims that accrued in March of 2008, "dismissal without prejudice would not produce a more just result as [Plaintiff] would be time-barred from re-filing...." See Maersk Line v. Phoenix Agro-Indus. Corp., No. 07-CV-3169, 2009 WL 1505281, at *5 (E.D.N.Y. May 27, 2009); see also Dluhos v. Floating & Abandoned Vessel, Known as New York, 162 F.3d 63, 69 (2d Cir.1998) ("Nonetheless, a motion to amend should be denied if there is an apparent or declared reason — such as ... futility of amendment" (internal quotation marks omitted)). With respect to Plaintiff's claims dismissed for failure to state a claim, Plaintiff has had ample opportunity to press his claims against Defendants, IBM, Artech, CDI, and others before this and other courts. At this point, dismissing Plaintiff's claim with prejudice is appropriate. See Morale v. Yates, No. 07-CV-1460, 2008 WL 5220995, at *1 (E.D.Cal. Dec. 15, 2008) (noting that "[t]he court found that the original complaint did not state a claim," that "the court gave [the p]laintiff notice of the complaint's pleading deficiencies and an opportunity to amend," and that "[the p]laintiff failed to comply with the court's order to file an amended complaint," and therefore dismissing the pro se plaintiff's complaint with prejudice); Slangal v. Getzin, 148 F.R.D. 691, 700 & n. 14 (D.Neb.1993) (dismissing a pro se plaintiff's complaint with prejudice pursuant to Rule 12(b)(6) because the "plaintiff ha[d] received full notice of the insufficiency of his original complaint and received a meaningful opportunity to respond through an invitation to file an amended complaint in order to remedy the noted failings" and the amended complaint failed to remedy the identified deficiencies). For these reasons, Defendants' Motion to Dismiss is granted with prejudice. The Clerk of the Court is respectfully directed to terminate the pending Motion, (see Dkt. No. 33) and to close the case.
SO ORDERED.
Although not currently the law of the Second Circuit and not necessary to resolve the instant Motion, there is much to recommend a rule of law providing that causation inferred from temporal proximity alone is insufficient to render a claim of retaliatory failure-to-hire plausible at the motion-to-dismiss stage. See Riddle v. Citigroup, No. 13-CV-6833, 2014 WL 2767180, at *4 (S.D.N.Y. May 29, 2014) (noting that "the notion that temporal proximity alone will raise an inference of retaliation in failure to hire cases" would make it "easy to manufacture discrimination law suits by applying to an employer whom the job applicant sued"); Carr v. Health Ins. Plan of Greater N.Y., Inc., No. 99-CV-3706, 2001 WL 563722, at *3 (S.D.N.Y. May 24, 2001) (noting that a rule "extending the scope of an adverse employment action to include a failure to rehire an individual in litigation with his former employer" "creates a worrisome opportunity for the manufacture of frivolous claims," because the "plaintiff may bootstrap additional and unmeritorious claims to a discrimination lawsuit merely by reapplying for his former job, and subsequently being rejected from it" (internal quotation marks omitted)).
Additionally, Plaintiff's assertions that Defendants became "involved" in or "aware" of, (see, e.g., Am. Compl. ¶¶ 72, 83, 95, 105), litigation growing out of his April 14, 2008 complaint cannot substitute for facts alleging that Plaintiff's complaint was "known" to them at the time that he filed it, cf. Turley v. ISG Lackawanna, Inc., 803 F.Supp.2d 217, 253 (W.D.N.Y.2011) (noting there was no question that the "[d]efendants were aware of [the plaintiff's] complaints at the time of the alleged instances of retaliation" (emphasis added)); Fosen v. N.Y. Times, No. 03-CV-3785, 2006 WL 2927611, at *10 (S.D.N.Y. Oct. 11, 2006) (noting "no evidence that would permit a rational trier of fact to conclude that [the] [p]laintiff's claimed protected activity was known to [the] [d]efendant at the time of ... [the] [p]laintiff's termination or transfer" (emphasis added)). As is hopefully clear, the Court truly endeavors to liberally construe Plaintiff's Amended Complaint to raise the strongest arguments that it suggests, Maisonet, 640 F.Supp.2d at 347; however, there still exists a line between liberal construction and gratuitous revision. Here, saying that Defendants were involved in litigation beginning on April 14, 2008 is simply not enough to allege contemporary knowledge when Plaintiff offers absolutely no explanation as to how or why four very senior executives of a company that in 2014 had over 379,000 employees — a number that exceeds the entire population of Iceland — would have learned about Plaintiff's April 14, 2008 letter less than a month after it was filed when it did not refer to even one of them by name and when it explicitly said that Plaintiff "decide[d] not to file a complaint against IBM at this time." (See Defs.' Mem. Ex. 4 (April 14, 2008 Letter to Attorney General).) See also Int'l Bus. Machs. Corp. & Subsidiaries Cos., Annual Report (Form 10-K) (Feb. 24, 2015); Central Intelligence Agency, The World Fact-book-Iceland, https://www.cia.gov/library/publications/the-world-factbook/geos/ic.html (last visited Jan. 13, 2016). In any event, had Plaintiff made the bare assertion without further factual enhancement that these executives did know about his April 14, 2008 letter, there still would be little to distinguish it from Javaid Iqbal's claim that Attorney General John Ashcroft, among other things, "knew of... [his] harsh conditions of confinement," which the Supreme Court rejected as "disentitle[d]... to the presumption of truth," not because it was "extravagantly fanciful," but rather on account of its conclusory nature. See Iqbal, 556 U.S. at 680-81, 129 S.Ct. 1937.
Also, although Plaintiff indicates that his second complaint with the Office of the Massachusetts Attorney General was filed on September 18, 2008, (see Am. Compl. ¶ 11,) Defendants suggest that he actually filed on August 18, 2008, (see Defs.' Mem. 6 n.3; see also Defs.' Mem. Ex 5 (Non-Payment of Wage and Workplace Complaint Form).) Nevertheless, the discrepancy does not make a difference.
