Opinion
1:19-cv-10004 (JPO) (SDA)
11-24-2021
Jeriel Alexander, Plaintiff, v. Private Protective Services, Inc., Defendant.
TO THE HONORABLE J. PAUL OETKEN, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
STEWART D. AARON, UNITED STATES MAGISTRATE JUDGE.
Pending before the Court are a motion by Defendant Private Protective Services, Inc. (“Defendant” or “PPS”) to dismiss the Amended Complaint of Plaintiff Jeriel Alexander (“Plaintiff” or “Alexander”) and for attorneys' fees (Def.'s 9/13/21 Mot., ECF No. 55), and a motion by Plaintiff to amend his Complaint. (Pl.'s 10/13/21 Mot., ECF No. 61.) For the reasons set forth below, I respectfully recommend that Defendant's motion be GRANTED and that Plaintiff's motion be GRANTED IN PART and DENIED IN PART.
BACKGROUND
On October 25, 2019, Plaintiff Jeriel Alexander (“Plaintiff” or “Alexander”), a New York citizen proceeding pro se, commenced this action against PPS by filing a Complaint. (Compl., ECF No. 2.) On November 27, 2019, he filed an Amended Complaint. (Am. Compl., ECF No. 6.) The Amended Complaint asserts a single claim against PPS, pursuant to Title II of the Civil Rights Act of 1964 (“Title II”), 42 U.S.C. § 2000a, based upon Alexander's allegation that PPS discriminated against him by denying him access to a “shoot” at Pier 132 in the Bronx. (See Am. Compl. at 2, 56.) Plaintiff seeks monetary damages in the amount of $1.2 million. (See id. at 6.)
PPS is a California corporation with its principal place of business in Woodland Hills, California. (See Luster Decl., ECF No. 46-1.)
On May 3, 2021, after PPS's failure to respond to the Amended Complaint, the Clerk of Court entered a certificate of default against PPS. (Cert. of Default, ECF No. 33.) On July 29, 2021, PPS filed a motion to set aside the default. (See Def.'s 7/29/21 Mot., ECF No. 44.) In an Opinion and Order, dated August 30, 2021, the Court granted PPS's motion to set aside the default. See Alexander v. Priv. Protective Servs., Inc., No. 19-CV-10004 (JPO) (SDA), 2021 WL 3862057, at *3 (S.D.N.Y. Aug. 30, 2021).
On September 13, 2021, PPS filed its motion to dismiss the Amended Complaint. (See Def.'s 9/13/21 Mot.) On October 13, 2021, Plaintiff filed his motion to amend. (See Pl.'s 10/13/21 Mot., ECF No. 61.) In his proposed Second Amended Complaint, Plaintiff alleges that he was excluded from the Pier 132 event based on his race in violation of 42 U.S.C. § 1981 (“Section 1981”), the New York State Human Rights Law (“NYSHRL”), the New York City Human Rights Laws (“NYCHRL”) and the New York Civil Rights Law (“Civil Rights Law”). (See Proposed SAC, ECF No. 61-1.)
Prior to filing its motion to dismiss, PPS sent an email to Plaintiff requesting that he voluntarily dismiss his Title II claim, because he “cannot recover the monetary damages [he sought] in [his] amended complaint under 42 USC 2000a , ” but Plaintiff refused. (See Bressler Decl., Ex. A, ECF No. 57-1.)
LEGAL STANDARDS
I. Motion To Dismiss
When ruling on a motion to dismiss, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, district courts are required to accept as true all factual allegations in the complaint and to draw all reasonable inferences in plaintiff's favor. See Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013). However, this requirement does not apply to legal conclusions, bare assertions or conclusory allegations. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 681, 686 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A plaintiff is required to support his claims with sufficient factual allegations to show “more than a sheer possibility that a defendant has acted unlawfully.” Id. If the plaintiff has not “nudged [its] claims across the line from conceivable to plausible, [the] complaint must be dismissed.” In re Express Scripts Holding Co. Secs. Litig., No. 16-CV-03338 (ER), 2018 WL 2324065, *6 (S.D.N.Y. May 22, 2018) (quoting Twombly, 550 U.S. at 570).
A court is “obligated to afford a special solicitude to pro se litigants.” Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010); accord Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). Thus, when considering Plaintiff's submissions, the Court must interpret them “to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks omitted). Nevertheless, “to survive a motion to dismiss, a pro se plaintiff must still plead sufficient facts to state a claim that is plausible on its face.” Chukwueze v. NYCERS, 891 F.Supp.2d 443, 450 (S.D.N.Y. 2012) (citation omitted); see also Green v. McLaughlin, 480 Fed.Appx. 44, 46 (2d Cir. 2012) (“[P]ro se complaints must contain sufficient factual allegations to meet the plausibility standard.”).
II. Motion To Amend
Rule 15(a) provides that a court should “freely” grant leave to amend “when justice so requires.” Fed.R.Civ.P. 15(a)(2). The decision to grant or deny leave to amend is within the trial court's discretion. See, e.g., Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330 (1971) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). The court may deny leave to amend for “good reason, ” including the factors articulated in Foman: undue delay, bad faith, futility of amendment, or undue prejudice to the opposing party. See McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007) (citing Foman, 371 U.S. at 182).
“The futility of an amendment is determined by whether it could survive a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), construing the amendment in the light most favorable to the plaintiff[].” R & M Jewelry, LLC v. Michael Anthony Jewelers, Inc., 221 F.R.D. 398, 399 (S.D.N.Y. 2004).
III. Title II
Title II provides as follows:
All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.42 U.S.C. § 2000a(a). Places of public accommodation fall into four broad categories: (1) establishments that provide lodging to transient guests; (2) facilities selling food for consumption on the premises; (3) places of exhibition or entertainment; and (4) facilities that include a place of public accommodation, or are on the premises of a public accommodation, which hold themselves out as serving the patrons of such public accommodation. See 42 U.S.C. § 2000a(b).
Money damages are not recoverable under Title II. See Alexander v. JP Morgan Chase Bank, N.A., No. 19-CV-10811 (OTW), 2021 WL 1061833, at *3 (S.D.N.Y. Mar. 18, 2021) (“When a plaintiff brings a Title II action, ‘he cannot recover damages,' but rather is limited to injunctive relief ”); see also Yuan v. Tops Mkt., LLC, No. 10-CV-01251 (NAM) (ATB), 2016 WL 164314, at *1 (N.D.N.Y. Jan. 12, 2016) (“the Court finds that plaintiff cannot pursue a Title II claim because he seeks only monetary damages, which are not available under that title”).
In an action brought under Title II, “the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs.” 42 U.S.C. § 2000a-3.
IV. Section 1981
Section 1981(a) provides that:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.42 U.S.C. § 1981(a). Under § 1981(b), the term “make and enforce contracts” includes “the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” 42 U.S.C. § 1981(b).
“In order to establish a claim under § 1981, a plaintiff must allege facts, which if proven to be true, would establish the following three elements: (1) that the plaintiff is a member of a racial minority; (2) that the defendant intended to discriminate against the plaintiff on the basis of his or her race; and (3) that the defendant discriminated in connection with one of the statute's enumerated activities.” Evans-Gadsden v. Bernstein Litowitz Berger & Grossman, LLP, 332 F.Supp.2d 592, 595-96 (S.D.N.Y. 2004). “To survive a motion to dismiss, a plaintiff must specifically allege the circumstances giving rise to a plausible inference of racially discriminatory intent.” Bentley, Jr. v. Mobil Gas Station, 599 Fed.Appx. 395, 396 (2d Cir. 2015) (internal citation omitted).
V. NYSHRL
The NYSHRL provides in relevant part:
It shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation, resort or amusement, because of the race, creed, color,
national origin, . . . of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof, including the extension of credit . . .N.Y. Exec. L. § 296(2)(a). The term “place of public accommodation, resort or amusement” is broadly defined to “include, regardless of whether the owner or operator of such place is a state or local government entity or a private individual or entity”:
all places included in the meaning of such terms as: inns, taverns, road houses, hotels, motels, whether conducted for the entertainment of transient guests or for the accommodation of those seeking health, recreation or rest, or restaurants, or eating houses, or any place where food is sold for consumption on the premises; buffets, saloons, barrooms, or any store, park or enclosure where spirituous or malt liquors are sold; ice cream parlors, confectionaries, soda fountains, and all stores where ice cream, ice and fruit preparations or their derivatives, or where beverages of any kind are retailed for consumption on the premises; wholesale and retail stores and establishments dealing with goods or services of any kind, dispensaries, clinics, hospitals, bath-houses, swimming pools, laundries and all other cleaning establishments, barber shops, beauty parlors, theatres, motion picture houses, airdromes, roof gardens, music halls, race courses, skating rinks, amusement and recreation parks, trailer camps, resort camps, fairs, bowling alleys, golf courses, gymnasiums, shooting galleries, billiard and pool parlors; garages, all public conveyances operated on land or water or in the air, as well as the stations and terminals thereof; travel or tour advisory services, agencies or bureaus; public halls, public rooms, public elevators, and any public areas of any building or structure.Id. § 292.
The NYSHRL “does not embrace a theory of respondeat superior or strict liability.” Johnston v. Apple Inc., No. 11-CV-03321 JSR, 2011 WL 4916305, at *3 (S.D.N.Y. Oct. 14, 2011). “The New York Court of Appeals has made clear that section 296 unambiguously separates the liability of an employee who discriminates from the liability of his employer; an employer ‘cannot be held liable for an employee's discriminatory act unless the employer became a party to it by encouraging, condoning, or approving it.'” Id. (citing Totem Taxi v. N.Y. State Human Rights Appeal Bd., 65 N.Y.2d 300, 304-05 (1985)).
VI. NYCHRL
The NYCHRL provides in relevant part:
It shall be an unlawful discriminatory practice for any person who is the owner, franchisor, franchisee, lessor, lessee, proprietor, manager, superintendent, agent or employee of any place or provider of public accommodation: 1. Because of any person's actual or perceived race, creed, color, national origin, age, gender, disability, marital status, partnership status, sexual orientation, uniformed service or immigration or citizenship status, directly or indirectly: (a) To refuse, withhold from or deny to such person the full and equal enjoyment, on equal terms and conditions, of any of the accommodations, advantages, services, facilities or privileges of the place or provider of public accommodation.N.Y. Admin. Code § 8-107(4)(a)(1)(a). The term “place or provider of public accommodation” is defined to include: “providers, whether licensed or unlicensed, of goods, services, facilities, accommodations, advantages or privileges of any kind, and places, whether licensed or unlicensed, where goods, services, facilities, accommodations, advantages or privileges of any kind are extended, offered, sold or otherwise made available.” N.Y.C. Admin. Code § 8-102(9).
The NYCHRL “makes an employer liable for the discriminatory conduct of its employee without regard to the knowledge or conduct of the employer.” Johnston, 2011 WL 4916305, at *5. Under the NYCHRL, “[a]n employer shall be liable for an unlawful discriminatory practice based upon the conduct of an employee or agent which is in violation of any provision of this section other than subdivisions one [employment discrimination] and two [apprentice training programs].” N.Y.C. Admin. Code § 8-107(13)(a). Thus, unlike the NYSHRL, the NYCHRL “is a strict liability statute.” Johnston, 2011 WL 4916305, at *5.
New York courts have made clear that the NYCHRL's provisions are to be construed broadly. See, e.g., Bennett v. Health Mgmt. Sys., Inc., 92 A.D.3d 29, 34 (1st Dep't 2011) (observing that courts must liberally construe all NYCHRL provisions due to the statute's “uniquely broad and remedial purposes”); see also Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013) (“courts must analyze NYCHRL claims separately and independently from any federal and state law claims . . . construing the NYCHRL's provisions broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible”) (cleaned up).
VII. Civil Rights Law
New York Civil Rights Law § 40 prohibits denial of access to places of public accommodation on the basis of race. See N.Y. Civil Rights Law § 40. “New York Civil Rights Law § 41 ‘establishes a private cause of action to recover a statutory penalty against those who violate these rights or who aid or incite such a violation.'” Feacher v. Intercontinental Hotels Grp., 563 F.Supp.2d 389, 407 (N.D.N.Y. 2008) (citation omitted). Section 41 requires that “[a]t or before the commencement of any action under this section, notice thereof shall be served upon the attorney general.” N.Y. Civil Rights Law § 41. “The failure to comply with the notice provisions of New York Civil Rights Law Article 4 is fatal to a private action under that Article.” Feacher, 563 F.Supp.2d at 407 (citation omitted).
ANALYSIS
I. Defendant's Motion To Dismiss The Amended Complaint Should Be Granted And PPS Should Be Awarded Attorneys' Fees
Plaintiff brings the single claim in the Amended Complaint under Title II for money damages. (See Am. Compl. at 5-6.) However, as set forth above, and as previously found by me in this case, and by Magistrate Judge Wang in a prior case in this Court brought by Plaintiff against a different defendant, “money damages are not recoverable under Title II.” Alexander, 2021 WL 3862057, at *3; Alexander, 2021 WL 1061833, at *3 (“When a plaintiff brings a Title II action, ‘he cannot recover damages,' but rather is limited to injunctive relief ....”). Thus, Plaintiff's Amended Complaint under Title II for money damages should be dismissed.
In addition, the Court finds that PPS should be awarded its attorneys' fees in connection with its filing of the motion to dismiss since Plaintiff's Title II claim for damages is frivolous. Under Title II, “the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs.” 42 U.S.C. § 2000a-3. The fee-shifting provision under Title II is analogous to the fee shifting provisions of other federal civil rights statutes. For example, Section 1988 of Title 42 provides that in any action to enforce certain enumerated federal civil rights laws, “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.” 42 U.S.C. § 1988. “[T]he governing principles and procedures [for the various statutes] are essentially the same.” DeMarco v. Ben Krupinski Gen. Contractor, Inc., No. 12-CV-00573 (SJF) (ARL), 2014 WL 3696020, at *1 (E.D.N.Y. July 22, 2014). Thus, a district court may award attorneys' fees to a defendant “upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation.” Fox v. Vice, 563 U.S. 826, 833 (2011) (applying Section 1988). A defendant may “receive only the portion of his fees that he would not have paid but for the frivolous claim.” Id. at 836.
The term of art “prevailing party” includes a defendant that has obtained dismissal on the merits. See D.C. v. Jeppsen ex rel. Jeppsen, 514 F.3d 1287, 1291 (D.C. Cir. 2008).
In the present case, Plaintiff's Title II claim plainly is frivolous. As set forth above, Plaintiff knew that he was not entitled to recover damages under Title II from two prior decision in cases in which he was a party, including this one. However, he refused to withdraw his Title II claim after being given an opportunity to do so. (See Bressler Decl., Ex. A.) Because Plaintiff refused to voluntarily withdraw his Title II claim, Defendant was required to expend attorneys' fees in connection with its motion to dismiss. Underscoring the frivolity of Plaintiff's Title II claim is the fact that in his memorandum in opposition to Defendant's motion to dismiss, Plaintiff made no attempt to argue why his Title II claim was valid. (See Pl.'s 10/14/21 Opp. Mem., ECF No. 60.) Thus, Defendant should recover its reasonable attorneys' fees incurred in connection with its motion to dismiss.
To be clear, Defendant is not entitled to recover its fees for opposing the motion to amend since the Court finds that such motion is not frivolous. Indeed, as set forth below, the Court recommends that Plaintiff be granted leave to amend to assert one of his proposed claims.
II. Plaintiff Should Not Be Granted Leave To Amend To Assert A Section 1981 Claim
Plaintiff has not pled a plausible claim under Section 1981. Based upon his court submissions, it appears that Plaintiff is contending that Defendant discriminated against him in connection with Plaintiff's making and enforcing contracts. (See Pl.'s 10/14/21 Opp. Mem. at 8 (invoking § 1981(a), defining “make and enforce contracts”).) However, Plaintiff fails to allege in any of his submissions either the existence of a contract on which his Section 1981 claim could be based or that he was prevented from making one. Indeed, Plaintiff takes pains to argue that he has no contract with Defendant. (See id. at 10.) Thus, Plaintiff's proposed Section 1981 claim is futile and he should not be granted leave to assert it.
III. Plaintiff Should Not Be Granted Leave To Amend To Assert A NYSHRL Claim
Construing the allegations of the proposed SAC and Plaintiff's other submissions in the light most favorable him, Plaintiff plausibly has alleged, under the NYSHRL, that he was denied access to a place of public accommodation (i.e., Pier 132) by Defendant's employee (i.e., Christian Nguyen) based upon Plaintiff's race. (See proposed SAC at 5-6; Alexander Decl., ECF No. 61, ¶¶ 5-8; Pl.'s 10/14/21 Opp. Mem. at 4.) However, under the NYSHRL, Defendant cannot be liable to the acts of Nguyen since there are no allegations that Defendant encouraged, condoned or approved Nguyen's acts or conduct. See Johnston, 2011 WL 4916305, at *3. Thus, Plaintiff's NYSHRL claim is futile and he should not be granted leave to assert it.
IV. Plaintiff Should Be Granted Leave To Amend To Assert A NYCHRL Claim
Similar to the analysis above with respect to Plaintiff's NYSHRL claim, Plaintiff plausibly has alleged a claim under the NYCHRL, as he was denied access to Pier 132, a place of public accommodation, by Defendant's employee. (See proposed SAC at 5-6; Alexander Decl., ECF No. 61, ¶¶ 5-8; Pl.'s 10/14/21 Opp. Mem. at 4.) In contrast to the NYSHRL, the NYCHRL does make Defendant liable for the discriminatory conduct of its employee, Nguyen, without regard to the knowledge or conduct of Defendant. See Johnston, 2011 WL 4916305, at *5. Thus, Plaintiff in his proposed SAC has pled a plausible claim under the NYCHRL and he should be granted leave to assert such a claim.
Defendant argues that it is not subject to NYCHRL liability because it is not an “owner, franchisor, franchisee, lessor, lessee, proprietor, manager, superintendent, agent or employee” of Pier 132. (See Def.'s 10/28/21 Opp., ECF No. 63, at 8-10 (quoting N.Y. Admin. Code § 8-107(4)(a)(1)(a)).) However, “liberally constru[ing] all NYCHRL provisions due to the statute's ‘uniquely broad and remedial purposes, '” Benzinger v. NYSARC, Inc. New York City Chapter, 385 F.Supp.3d 224, 238 (S.D.N.Y. 2019) (quoting Bennett, 92 A.D.3d at 34), and given that Defendant concedes it was acting, through a chain of agency relationships, on behalf of a Pier 132 lessee (see Def.'s 10/28/21 Opp. at 9 (asserting that “PPS contracted with the event producers associated with VH1 . . . to provide security services at the VH1 event in question”)), the Court does not recommend rejecting Plaintiff's NYCHRL claim on this basis.
V. Plaintiff Should Not Be Granted Leave To Assert A New York Civil Rights Law Claim
Finally, Plaintiff's claim under Section 40 of the New York Civil Rights Law is futile, as Plaintiff has failed to plead that he served notice upon the New York Attorney General, as required. See N.Y. Civil Rights Law § 41. Thus, Plaintiff should not be granted leave to assert such a claim.
CONCLUSION
For the foregoing reasons, I respectfully recommend that Defendant's motion to dismiss the Amended Complaint and for attorneys' fees be GRANTED and that Plaintiff's motion to amend be GRANTED IN PART and DENIED IN PART. Plaintiff should be granted leave to amend to assert a claim under the NYCHRL. Defendant should be awarded as part of costs its attorneys' fees in connection with its motion to dismiss.
At the appropriate time, Defendants should be required to submit contemporaneous time records and proof regarding its hourly rates, including biographical information regarding the timekeepers who billed time in connection with the motion to dismiss.
SO ORDERED.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Oetken.
THE FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).