Amaya v. Ballyshear LLC

340 F. Supp. 3d 215
District Court, E.D. New York·Decided November 20, 2018·No. 2:17-cv-01596 (ADS)(GRB)·Published·Cited by 10 cases

Opinion

SPATT, District Judge:

On March 21, 2017, Nelly Amaya ("Amaya" or the "Plaintiff") commenced this employment discrimination action against her former employers Ballyshear LLC ("Ballyshear") and Geller & Company LLC ("Geller") (together, the "Corporate Defendants"), as well as various individuals employed by the Corporate Defendants, specifically, Diane Gubelli *218("Gubelli"), Janine Wheaton ("Wheaton"), Marika Sygman ("Sygman"), and Steve Kaczynski ("Kaczynski") (together, the "Individual Defendants" and collectively with the Corporate Defendants, the "Defendants"). The Plaintiff alleged gender, race and national origin-based employment discrimination and retaliation, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"), 42 U.S.C. § 1981 (" § 1981"), and New York Executive Law § 296 ("NYSHRL"). In her opposition brief, Amaya asserted causes of action arising under the New York City Human Rights Law ("NYCHRL").

On March 14, 2018, the Court granted the Defendants' motion to dismiss the complaint, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (" FED. R. CIV. P. " or "Rule"), in part (the "MTD Order"). Specifically, the Court dismissed the Plaintiff's causes of action that stemmed from Title VII and precluded the Plaintiff from advancing a wrongful termination, retaliatory discharge or constructive discharge theory pursuant to § 1981 or the NYSHRL. The Plaintiff's attempt to assert NYCHRL claims through her motion papers was also denied. Amaya was allowed to proceed with a hostile work environment theory pursuant to NYSHRL and § 1981 as well as a retaliatory workplace theory pursuant to § 1981 and the NYSHRL.

On April 20, 2018, the Court issued an order (the "April Order") which (1) dismissed Janine Wheaton from the case; (2) amended the caption to correct a name misspelling; (3) directed the Plaintiff to file her Second Amended Complaint ("SAC") on or before April 24, 2018; and (4) ordered the Defendants to answer or otherwise respond to the Second Amended Complaint on or before June 15, 2018. The April Order also noted that the parties agreed that the Plaintiff's SAC would (1) strike sections that were dismissed by the MTD Order; (2) add causes of action under the NYCHRL; and (3) add factual allegations only insofar as they were relevant to the issue of whether she was an employee covered by the NYCHRL.

The Plaintiff filed her proposed SAC on April 24, 2018.

Presently before the Court is a motion by the Defendants, pursuant to Rules 12(b)(1), 12(b)(6) and 12(f), seeking to partially dismiss the SAC and to strike certain factual allegations in the SAC. The background of this case is set forth in the MTD Order and familiarity with that decision is assumed.

For the reasons set forth below, the Defendants' motion is granted.

I. DISCUSSION

A. STANDARD OF REVIEW: FED. R. CIV. P. 12(B)(1)

"A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States , 201 F.3d 110, 113 (2d Cir. 2000) ; see also Aurecchione v. Schoolman Transp. Sys., Inc. , 426 F.3d 635, 638 (2d Cir. 2005) ("After construing all ambiguities and drawing all inferences in a plaintiff's favor, a district court may properly dismiss a case for lack of subject matter jurisdiction under Rule 12(b)(1) if it lacks the statutory or constitutional power to adjudicate it." (internal citations and quotation marks omitted) ). See, e.g. , Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). "Under FED R. CIV. P. 12(b)(1), '[even] a facially sufficient complaint may be dismissed for lack of subject matter jurisdiction if the asserted basis for jurisdiction is not sufficient.' "

*219Frisone v. Pepsico Inc. , 369 F.Supp.2d 464, 469 (S.D.N.Y. 2005) (quoting Peterson v. Cont'l Airlines Inc. , 970 F.Supp. 246, 249 (S.D.N.Y. 1997) ).

In its assessment of whether it has subject matter jurisdiction, the Court "need not accept as true contested jurisdictional allegations and may resolve disputed jurisdictional facts by reference to affidavits and other matters outside the pleadings." Williams v. Runyon , No. 97-Civ.-4029, 1999 WL 77207, at *1 (S.D.N.Y. Feb. 17, 1999) (quoting Societe Nationale d'Exploitation Industrielle des Tabacs et Allumettes v. Salomon Bros. Int'l Ltd. , 928 F.Supp. 398, 402 (S.D.N.Y. 1996) ); accord New York State Catholic Health Plan, Inc. v. Acad. O & P Assocs. , 312 F.R.D. 278, 294 (E.D.N.Y. 2015) (citing Phifer v. City of New York , 289 F.3d 49, 55 (2d Cir. 2002) ); Makarova , 201 F.3d at 113 (citing Kamen v. Am. Tel. & Tel. Co. , 791 F.2d 1006, 1011 (2d Cir. 1986) ). All uncontroverted factual allegations contained in the complaint are accepted as true and the Court draws all reasonable inferences in favor of the party asserting jurisdiction. See Tandon v. Captain's Cove Marina of Bridgeport, Inc.

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Amaya v. Ballyshear LLC, 340 F. Supp. 3d 215 (E.D.N.Y. 2018).

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