Opinion
21-CV-6368 (PAE) (RWL)
05-13-2022
ANDREIA ROSA DOS SANTOS, Plaintiff, v. ASSURANT, INC., et al., Defendants.
REPORT AND RECOMMENDATION TO HON. PAUL A. ENGELMAYER: MOTION TO DISMISS
ROBERT W. LEHRBURGER UNITED STATES MAGISTRATE JUDGE
Following the disposal of her original watercolor paintings from a storage unit, Andreia Rosa Dos Santos, preceding pro se, filed this action on July 26, 2021, against Assurant, Inc. (“Assurant”), Falcon Shield Property Preservation LLC (“Falcon Shield”), and five Doe defendants, asserting claims under the Visual Artists' Rights Act (“VARA”), 17 U.S.C. § 106A; claims for copyright infringement pursuant to the Copyright Act, 17 U.S.C. § 106; and tort claims under New York law. The Court previously dismissed Plaintiff's copyright and VARA claims and ordered her to show cause why her state-law claims should not be dismissed. Defendant Assurant now moves to dismiss the state-law claims. For the reasons set forth below, I recommend that Assurant's motion be GRANTED and the state-law claims be dismissed without prejudice.
FACTUAL BACKGROUND
The facts set forth are those relevant to the instant motion and are based on the allegations in the Complaint (Dkt. 2), read in light of Ms. Dos Santos's subsequent Declaration (Dkt. 9 (“Dos Santos Decl.”).) and her brief in opposition to Defendant Assurant's Motion to Dismiss (Dkt. 23 (“Pl. Opp.”).) For purposes of this motion, the Court accepts the well-pled allegations as true and draws all reasonable inferences in favor of Ms. Dos Santos.
Ms. Dos Santos is a visual artist, born in Brazil, who has exhibited her works locally and internationally. (Compl. ¶¶ 43-44, Ex. 7.) She painted 171 watercolor paintings from 2009 to 2017. (See Compl. Exs. 8, 9.)
On March 20, 2017, Ms. Dos Santos was evicted from her residence in Union, New Jersey as a “last step” related to a residential reverse mortgage foreclosure. (Compl. ¶ 29 and Ex. 3.) That same day, Defendant Falcon Shield, allegedly at the direction of Defendant Assurant, packed and moved to a storage unit a number of Ms. Dos Santos's original artworks from her former residence. (Compl. ¶¶ 27-30.) On April 19, 2017, while Ms. Dos Santos was in the process of applying for financial assistance from the New York City Human Resources Administration to pay for the storage unit, her artworks were “trashed out” of the storage unit. (Compl. ¶¶ 31-32 and Ex. 1.) Ms. Dos Santos attempted to contact Falcon Shield on April 19, 2017 to receive the bill for the next month of the storage unit; however, she did not speak to any of Falcon Shield's employees until the following day, when the “trashing out” was confirmed. (Compl. ¶ 33 and Ex. 2.)
In the months that followed, Ms. Dos Santos and her husband communicated with Assurant to attempt to locate her paintings and “rescue” them from being lost forever. (Compl. ¶¶ 35-40, Exs. 1, 2.) On May 11, 2017, they filed a police report with the Township of Union Police Department. (Compl. ¶ 42 and Ex. 4.) After several months of “back and forth” with Assurant, employees in Assurant's Claims Department stated that “all work” regarding disposal of the storage unit's contents was “performed properly and legally” and denied Ms. Dos Santos's claim for compensation. (Compl. ¶¶ 40-41 and Ex. 3.)
On October 23, 2017, Ms. Dos Santos received a final email from the manager of Assurant's Claims and Litigation Department, stating that Dos Santos had been informed on the day of her eviction that although the first 30 days of storage would be paid for, she was responsible for transferring the storage unit to her name and paying for any ongoing cost of storage. (Compl. Ex. 3.) The email further stated that Assurant's contractor “followed proper protocol as directed by the bank[,]” that Assurant's claim denial was finalized, and that “there is nothing more that [Assurant] can do regarding this matter.” (Id.) Ms. Dos Santos denies having received instructions that she would be responsible for taking over and paying for the storage unit within 30 days. (Compl. ¶ 41.)
Ms. Dos Santos was devastated by the loss of her paintings but initially did not pursue litigation in part because she believed, based on Assurant's communications, that there was nothing she could do. (Compl. ¶¶ 47-50; see also Dos Santos Decl. at 2-3.) She also experienced profound grief at the loss of her life's work, exacerbated by the subsequent deaths of both her parents. (Dos Santos Decl. at 2-3; see also Pl. Opp. at 9.) More recent research, however, led Ms. Dos Santos to believe that she could seek redress in the courts for the destruction of her paintings, leading her to file the Complaint. (Compl. ¶¶ 52-55.)
PROCEDURAL HISTORY
Ms. Dos Santos commenced this action on July 26, 2017. On August 17, 2021, the Court ordered Ms. Dos Santos to show cause. (Dkt. 4 (“OSC”).) The OSC sua sponte dismissed the claims under the Copyright Act and VARA, because Ms. Dos Santos “does not show that Defendants infringed on a copyright by engaging in unauthorized copying of Plaintiff's work. And the facts alleged do not suggest that Defendants violated Plaintiff's right of attribution or improperly claimed authorship of her work.” (OSC at 5.) With respect to the state law claims, the OSC stated that the Court will not exercise supplemental jurisdiction given dismissal of the federal law claims, and expressed doubt at the prospect of diversity jurisdiction. (OSC at 5-7.) The OSC further noted that the state-law claims appeared barred by New York's three-year statute of limitations for negligence actions, and that Ms. Dos Santos's argument to equitably toll the statute of limitations because she was “scared” and in “shock” was not viable. (OSC at 7-8.)
The OSC directed Ms. Dos Santos to “file a written declaration within 30 days ... showing cause (1) why the Court should not decline to exercise supplemental jurisdiction of Plaintiff's remaining state-law claims because she fails to plead facts showing complete diversity of citizenship; and, if she demonstrates that there is diversity of citizenship, (2) why the state-law claims should not be dismissed as time-barred.” (OSC at 8-9.) The Court concluded that “if Plaintiff's declaration does not show that her citizenship is different from that of all Defendants, the Court will dismiss Plaintiff's state-law negligence claim without prejudice.” (OSC at 9.)
On December 3, 2021, Ms. Dos Santos filed her Declaration in response to the OSC. Ms. Dos Santos urged the Court to exercise supplemental jurisdiction over her state-law claims. (Dos Santos Decl. at 1.) She argued that the state-law claim is not time-barred because: the injury caused by the destruction of artwork is ongoing; she did not discover that she had any remedy for her loss until sometime in 2020 after experiencing deep grief and mourning of her loss and subsequent deaths of her parents; and Defendant Assurant “engaged in misleading deceptive conduct ... to prevent [her] from recognizing a possible cause of action.” (Dos Santos Decl. at 2-3.) Finally, she requested that the Court reconsider its dismissal of her VARA claim because she stated a claim under 17 U.S.C. § 106A(a)(3)(B), which provides that “[t]he author of a work of visual art” shall have the right “to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.” (Dos Santos Decl. at 4.); 17 U.S.C. § 106A(a)(3)(B). Ms. Dos Santos did not provide any evidence of diversity of citizenship.
On December 15, 2021, a Summons issued for Assurant and Falcon Shield. (Dkt. 13.) Assurant responded with the instant Motion to Dismiss on January 12, 2022. (Dkt. 16.)
ASSURANT'S MOTION TO DISMISS
In its Memorandum of Law, Assurant argues that: 1) the Court lacks subject matter jurisdiction because the federal claims have been dismissed and there is not complete diversity of citizenship of the parties; 2) even if the Court had jurisdiction, all of Ms. Dos Santos's claims are time-barred; and 3) even if the claims were not time-barred, there is no basis to hold Assurant liable for Falcon Shield's alleged conduct. (See Dkt. 17 (“Def. Mem.”).) Assurant seeks dismissal with prejudice.
In opposition, Ms. Dos Santos requests that the Court deny the Motion to Dismiss or, in the alternative, give leave to amend her Complaint “to address any deficiencies identified by the Court.” (Pl. Opp. at 1.) After correcting alleged misstatements of fact in Assurant's Memorandum (Pl. Opp. 2-6), Ms. Dos Santos argues: (1) that the Court should reinstate her VARA claim because the OSC did not cite the destruction provision of VARA and was issued by a judge who is no longer presiding over the case; (2) that, once reinstating the VARA claim, the Court should exercise supplemental jurisdiction over the state-law claims; (3) the claims are not time-barred because the statute of limitations is equitably tolled and additionally extended by Executive Order; and (4) that she sufficiently pled facts from which an agency relationship between Assurant and Falcon Shield can be inferred. (Pl. Opp. 7-12.) Regarding the timeliness of her Complaint, Ms. Dos Santos suggests for the first time that, because Defendants never told her where her paintings were disposed, that “it is entirely plausible that Defendants destroyed Plaintiff's art over a period of time extending into 2018 and within three years of the filing of this suit.” (Pl. Opp. at 9.) Ms. Dos Santos also suggests that the six-year statute of limitations under NY CPLR § 213 may apply to her state-law claims, rather than the three-year statute of limitations under NY CPLR § 214(5). (Pl. Opp. at 13.) Ms. Dos Santos contends that the Court should construe her pleadings liberally as she is pro se.
In reply, Assurant argues that dismissal of the VARA claim should not be reconsidered, that all of the claims are time-barred, and that there is no basis for vicarious liability for Falcon's conduct. (Dkt. 28 (“Def. Reply”) at 1-7.) Assurant further argues that Ms. Dos Santos should not be granted leave to amend her Complaint because it is “procedurally defective” and amendment would be futile. (Id. at 7-8.) Assurant also argues that Ms. Dos Santos should not be given the “special solicitude” customary for pro se litigants because she received assistance from the New York Legal Assistance Group's Legal Clinic for Pro Se Litigants (NYLAG) in drafting several of her filings. (Def. Reply at 8-9.)
LEGAL STANDARDS
A. Motion To Dismiss For Lack Of Subject Matter Jurisdiction
Under Rule 12(b)(1), a pleading may be dismissed for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). A court must dismiss a claim if it “lacks the statutory or constitutional power to adjudicate it.” Morrison v. National Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (internal quotation marks omitted), aff'd, 561 U.S. 247, 130 S.Ct. 2869 (2010). “The plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence.” Aurecchione v. Schoolman Transportation System, Inc., 426 F.3d 635, 638 (2d Cir. 2005). In deciding a Rule 12(b)(1) motion to dismiss, the Court “must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff.” Morrison, 547 F.3d at 170 (quoting Natural Resources Defense Council v. Johnson, 461 F.3d 164, 171 (2d Cir. 2006) (internal quotation omitted)). Additionally, the court “may consider affidavits and other materials beyond the pleadings to resolve the jurisdictional issue ....” J.S. ex rel. N.S. v. Attica Central Schools, 386 F.3d 107, 110 (2d Cir. 2004); see also Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) (“In resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a district court ... may refer to evidence outside the pleadings”).
B. Motion To Dismiss For Failure To State A Claim
Under Rule 12(b)(6), a pleading may be dismissed for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To survive a Rule 12(b)(6) motion, a complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974 (2007). A claim is facially plausible when the factual content pleaded allows a court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009).
“Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.'” Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. at 1966). In considering a motion to dismiss, a district court “accept[s] all factual claims in the complaint as true, and draw[s] all reasonable inferences in the plaintiff's favor.” Lotes Co. v. Hon Hai Precision Industry Co., 753 F.3d 395, 403 (2d Cir. 2014). However, this tenet is “inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949. “[R]ather, the complaint's factual allegations must be enough to raise a right to relief above the speculative level ... i.e., enough to make the claim plausible.” Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) (internal quotation marks and brackets omitted). A complaint is properly dismissed where, as a matter of law, “the allegations in [the] complaint, however true, could not raise a claim of entitlement to relief.” Twombly, 550 U.S. at 558, 127 S.Ct at 1966.
For the purposes of considering a motion to dismiss pursuant to Rule 12(b)(6), a court generally is confined to the facts alleged in the complaint. See Cortec Industries v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991). A court may, however, consider additional materials, including documents attached to the complaint, documents incorporated into the complaint by reference, public records, and documents that the plaintiff either possessed or knew about, and relied upon, in bringing the suit. See Kleinman v. Elan Corp., 706 F.3d 145, 152 (2d Cir. 2013) (quoting ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007)). In that regard, if “a document relied on in the complaint contradicts allegations in the complaint, the document, not the allegations, control, and the court need not accept the allegations in the complaint as true.” Poindexter v. EMI Record Group Inc., No. 11-CV-559, 2012 WL 1027639, at *2 (S.D.N.Y. March 27, 2012) (quoting Barnum v. Millbrook Care Ltd. Partnership, 850 F.Supp. 1227, 1232-33 (S.D.N.Y.1994)).
C. Review Of Pro Se Pleadings
“Pro se complaints ‘must be construed liberally and interpreted to raise the strongest arguments that they suggest.'” Sykes v. Bank Of America, 723 F.3d 399, 403 (2d Cir. 2013) (quoting Triestman v. Federal Bureau Of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)). “[T]he Second Circuit, as a general matter, is solicitous of pro se litigants, enforcing standards of procedural leniency rather than holding them to the rigidities of federal practice.” Massie v. Metropolitan Museum Of Art, 651 F.Supp.2d 88, 93 (S.D.N.Y. 2009); see also Weixel v. Board Of Education, 287 F.3d 138, 141 (2d Cir. 2002) (reversing dismissal where district court failed to construe pro se plaintiff's complaint liberally); Ortiz v. Cornetta, 867 F.2d 146, 148 (2d Cir. 1989) (“Once a pro se litigant has done everything possible to bring his action, he should not be penalized by strict rules which might otherwise apply if he were represented by counsel.”).
That said, “pro se status does not exempt a party from compliance with relevant rules of procedural and substantive law.” Triestman, 470 F.3d at 477 (internal quotation marks omitted). “Notwithstanding the liberal pleading standards afforded pro se litigants, federal courts are courts of limited jurisdiction and may not preside over cases if they lack subject matter jurisdiction.” Torres v. Blackstone Group, No. 18-CV-6434, 2019 WL 4194496, at *2 (S.D.N.Y. Sept. 3, 2019), aff'd, 836 Fed.Appx. 49 (2d Cir. 2020).
Further, where pro se litigants are assisted by counsel, some courts choose not to extend “special solicitude,” at least in their consideration of the portions of the pro se litigants' papers that were clearly prepared with the assistance of counsel. See, e.g., Askins v. Metropolitan Transit Authority, No. 19-CV-4927, 2020 WL 1082423, at *4 (S.D.N.Y. Mar. 5, 2020) (not affording special solicitude to sections of pro se litigant's complaint and opposition brief which were “drafted with the substantial assistance of an attorney” but construing portions of the complaint “which were not clearly drafted with the substantial assistance from an attorney ... liberally”); Littlejohn v. Consolidated Edison Co. Of New York, Inc., No. 18-CV-6336, 2019 WL 3219454, at *1 n.1 (S.D.N.Y. July 17, 2019) (not affording documents “prepared with the assistance of the New York Legal Assistance Group Legal Clinic for Pro Se Litigants in the SDNY . the solicitude normally afforded to pro se submissions”); Knox v. County Of Ulster, No. 11-CV-0112, 2013 WL 286282, at *1 n.1 (N.D.N.Y. Jan. 24, 2013) (where “the Court strongly suspect[ed] that Plaintiff ha[d] also been aided by an attorney in the drafting of his papers opposing the current motion, which [were] organized, typewritten, and contain[ed] citations to dozens of instructive legal authorities in proper BlueBook format,” liberal constriction of such “ghostwritten” papers was not appropriate). Nonetheless, the Second Circuit has acknowledged “the wide range of circumstances confronting district courts” and instructed “district courts [to] exercise their discretion . to determine based on the totality of the relevant circumstances when the ordinary approach is not appropriate and what degree of solicitude, if any, should be afforded.” Tracy v. Freshwater, 623 F.3d 90, 102-03 (2d Cir. 2010).
DISCUSSION
This case must be dismissed for lack of subject matter jurisdiction. The Court previously dismissed the federal claims, and Ms. Dos Santos has not provided a sufficient basis to find otherwise. Ms. Dos Santos also has not provided any information to demonstrate diversity of citizenship. The Court thus has neither federal subject matter jurisdiction nor diversity jurisdiction.
A. The Federal Claims Were Properly Dismissed
Judge Swain dismissed Ms. Dos Santos's copyright infringement and VARA claims sua sponte in her August 17, 2021 OSC. (Dkt. 4.) Ms. Dos Santos nonetheless urges the Court to reinstate her claim under VARA. The proper vehicle to seek such relief would have been through filing a motion for reconsideration or relief from an order. Ms. Santos did not file such a motion. But even if she had, there is no basis for a different outcome.
1. Standards For Reconsideration
Motions for reconsideration typically are sought pursuant to Federal Rule of Civil Procedure 54(b). Absent entry of final judgment, an order or decision adjudicating fewer than all claims “may be revised at any time” before entry of judgment on all claims. Fed.R.Civ.P. 54(b). The standard for granting a motion for reconsideration, however, “is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked - matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.” Shrader v. CSX Transportation, 70 F.3d 255, 257 (2d Cir. 1995). “A motion for reconsideration should be granted only when the defendant identifies ‘an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.'” Kolel Bell Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Trust, 729 F.3d 99, 104 (2d Cir. 2013) (quoting Virgin Atlantic Airways, Ltd. v. National Mediation Board, 956 F.2d 1245, 1255 (2d Cir. 1992).
Rule 60(b) allows a party to seek relief from an order but similarly sets a high bar. The rule authorizes the court to relieve a party from an order in the event of mistake, inadvertence, excusable neglect, newly discovered evidence, fraud, or “any other reason that justifies relief.” Fed.R.Civ.P. 60(b)(6). The Second Circuit has cautioned, however, that Rule 60(b) is “extraordinary judicial relief” and can be granted “only upon a showing of exceptional circumstances.” Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986); accord United States v. Bank of New York, 14 F.3d 756, 759 (2d Cir. 1994).
2. Plaintiff Identifies A Possible Legal Oversight
In dismissing the VARA claim, the OSC reasoned that “the facts alleged do not suggest that Defendants violated Plaintiff's right of attribution or improperly claimed authorship of her work.” (OSC at 5.) But as Ms. Dos Santos correctly points out, VARA also protects against the “intentional or grossly negligent destruction” of a work of “recognized stature.” 17 U.S.C. § 106A(3)(B); see also Castillo v. G&M Realty L.P., 950 F.3d 155, 163 (2d Cir. 2020) (explaining enduring nature of artists' rights to prevent destruction of their works that have achieved recognized stature).
The Complaint's allegations are addressed to that very wrong. “[A] work is of recognized stature when it is one of high quality, status, or caliber that has been acknowledged as such by a relevant community .... The relevant community will typically be the artistic community, comprising art historians, art critics, museum curators, gallerists, prominent artists, and other experts.” Castillo, 950 F.3d at 166. The Complaint sets forth allegations and proffered evidence of the exhibition of Ms. Dos Santos's works and some acclaim. (See, e.g., Compl. Exs. 5, 6, 7). And at least one court has allowed recovery under VARA when works were destroyed during the clearing out of a storage unit for alleged nonpayment. See Narkiewicz-Laine v. Doyle, 930 F.3d 897 (7th Cir. 2019).
3. The VARA Claim Is Barred By The Statute Of Limitations
Notwithstanding the plausibility of Ms. Dos Santos's VARA claim, her claim is time-barred. Claims under VARA are subject to the same three-year statute of limitations as other Copyright Act claims. 17 U.S.C. § 507(b); see also Trombetta v. Novocin, No. 18-CV-993, 2021 WL 6052198, at *13 (S.D.N.Y. Dec. 21, 2021) (applying statute of limitations at 17 U.S.C. § 507(b) to VARA misattribution claim). “A [copyright] cause of action accrues when the plaintiff knows or has reason to know of the injury upon which the claim is premised.” Parks v. ABC, Inc., 341 Fed.Appx. 737, 738 (2d Cir. 2009) (citing Merchant v. Levy, 92 F.3d 51, 56 (2d Cir. 1996)); see also Sohm v. Scholastic Inc., 959 F.3d 39, 50 (2d Cir. 2020) (confirming continued application of this “discovery rule” for the accrual of copyright claims in the Second Circuit).
While the expiration of the limitations period is an affirmative defense, “district courts may dismiss an action sua sponte on limitations grounds in certain circumstances where the facts supporting the statute of limitations defense are set forth in the papers plaintiff [herself] submitted.” Walters v. Industrial and Commercial Bank of China, Ltd., 651 F.3d 280, 293 (2d Cir. 2011) (internal quotations omitted). Here, Ms. Dos Santos admitted in her Complaint that she knew of the destruction of her paintings on or about April 19, 2017. (Compl. ¶¶ 31-33.) Her suit, filed over four years later on July 26, 2021, was therefore properly dismissed because it was brought outside of the limitations period. See Khalil v. Pratt Institute, 818 Fed.Appx. 115, 115-17 (2d Cir. 2020) (dismissing civil rights claim sua sponte where alleged acts of discrimination pled in the complaint occurred outside of the limitations period and tolling arguments were clearly “meritless”); Carell v. Shubert Organization, Inc., 104 F.Supp.2d 236 (S.D.N.Y. 2000) (dismissing claims for copyright ownership and accounting as time-barred because it was “clear from the facts alleged in the Complaint that plaintiff's ... claims ... accrued more than three years prior to the commencement of the action”); Hunter v. Squirrel Hill Associates, L.P., 413 F.Supp.2d 517, 521 (E.D. Pa. 2005) (holding that plaintiff's VARA claim accrued when she first observed damage to her mural by defendant's alleged negligence, and so was untimely when brought more than three years later).
Ms. Dos Santos argues that her VARA claims should not be barred because “art destruction has timeless implications.” (Dos Santos Decl. at 2.) The Court agrees with the premise, but not the consequence. Ms. Dos Santos's argument is essentially that the statute of limitations does not bar her claims because the wrong is a continuing one. The Second Circuit, however, has rejected the “continuous wrong” theory. See Stone v. Williams, 970 F.2d 1043, 1050 (2d Cir. 1992) (“Application of the continuous wrong doctrine generally has been rejected in the infringement context”); see also Hunter, 413 F.Supp.2d at 521 (applying Stone and other cases to reject a continuous wrong argument in the context of a VARA claim).
Ms. Dos Santos also suggests, for the first time in opposition to the Motion to Dismiss, that Defendants could have destroyed the paintings over the course of months or years, which would bring her claims for at least some of the paintings within the limitations period. (Pl. Opp. 9-10.) That assertion, however, is speculative, and therefore does not suffice as a well-accepted allegation. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1965 (“Factual allegations must be enough to raise a right to relief above the speculative level”); see also Spinelli v. National Football League, 903 F.3d 185, 205, 212 (2d Cir. 2018) (affirming dismissal where Plaintiffs' allegations were “conclusory” and “too speculative”).
Moreover, other portions of Ms. Dos Santos's opposition brief, as well as the Complaint and her previously filed Declaration, contradict her assertion of destruction over time. For example, the Complaint alleges that the “trashing-out-operation” was “confirmed” on April 20, 2017. (Compl. ¶ 33.) In her Declaration, Ms. Dos Santos states that “Defendant Assurant asserted, clarifying in their last email on October 23rd of 2017, that they had voluntarily, and not by mistake, accident or good faith, followed their proper protocol by trashing out and destroying the integrity of all of my Artworks.” (Dos Santos Decl. at 3.) And, in her opposition brief, Ms. Dos Santos corrects an alleged misstatement by Assurant that “Plaintiff was aware of the artworks' destruction the very same month it occurred” with the statement that: “Rather than ‘the very same month it occurred,' Plaintiff ‘knew' about the destruction from the first business hours of the day after, 15 hours after that [alleged] destruction happened.” (Pl. Opp. at 4.)
In short, based on the face of the Complaint and Ms. Dos Santos's subsequent filings, the VARA claim is indisputably time-barred. See Walters, 651 F.3d at 293.
4. There Is No Basis For Tolling The Limitations Period
Despite expiration of the limitations period, Ms. Dos Santos argues that the period should be extended based on multiple grounds: belated discovery of legal redress and equitable tolling or estoppel. None of those arguments stand up to scrutiny.
Ms. Dos Santos asserts that she only recently “discovered” that the harm she suffered could have a legal remedy, and so the statute of limitations should be tolled. (See, e.g., Compl. ¶¶ 47, 54-55; Dos Santos Decl. at 2-3.) That argument misapprehends the “discovery rule” for the accrual of copyright claims, including VARA. “To trigger the statute of limitations,” the plaintiff only needs to know or have reason to know of the facts giving rise to her cause of action, and not “that those facts are sufficient to entitle her to relief.” Stone, 970 F.2d at 1049. Therefore, even though Ms. Dos Santos only realized in 2020 or 2021 that there might be a remedy for the loss of her paintings, the action accrued in 2017 when she learned of their destruction.
Ms. Dos Santos also argues that the statute of limitations should be deemed to have been tolled due to Assurant's bad conduct. In particular, Ms. Dos Santos asserts that “defendants fraudulently concealed their unlawful actions for over six months by trapping [her] in a bureaucratic question-and-answer loop” which prevented her “from learning the fate of her property and the facts giving rise to her cause of action.” (Pl. Opp.. at 8-9; see also id. at 4-5 (correcting Assurant's alleged misstatements of facts and alleging concealment of vital information); Compl. ¶¶ 35-41 (describing how Assurant would not disclose the location of the paintings following the clearing out of the storage unit); Dos Santos Decl. at 3-4 (describing Assurant's allegedly fraudulent concealment which caused her to be unaware of her rights and afraid to take action).) Ms. Dos Santos also suggests that she was emotionally unable to function due to the destruction of her art and the loss of her parents. (Pl. Opp. at 9; see also Compl. ¶¶ 48-49.)
The doctrine Ms. Dos Santos seeks to invoke is known as equitable tolling. The doctrine of equitable tolling allows a court to toll a statute of limitations when a claimant can demonstrate that they have pursued their rights diligently and that some extraordinary circumstance stood in the way of timely asserting their rights. Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 1814 (2005). As relevant here, “[a] defendant may be equitably estopped to assert the statute of limitations as a defense in cases where the plaintiff knew of the existence of [her] cause of action but the defendant's conduct caused [the plaintiff] to delay in bringing [her] lawsuit.” Tomas v. Gillespie, 385 F.Supp.2d 240, 247 (S.D.N.Y. 2005) (internal quotation marks omitted). “In order to invoke equitable tolling based on fraudulent concealment the plaintiff must plead with particularity: (1) wrongful concealment by the defendant; (2) which prevented the plaintiffs' discovery of the nature of the claim within the limitations period; and (3) the plaintiffs' due diligence in pursuing discovery of the claim.” C.A. Inc. v. Rocket Software, Inc., 579 F.Supp.2d 355, 361 (E.D.N.Y. 2008) (citing Roberts v. Keith, No. 04-CV-10079, 2006 WL 547252, at *4 (S.D.N.Y. March 7, 2006)).
Ms. Dos Santos does not satisfy the requirements for equitable tolling. While Defendants did not disclose where they disposed of the contents of the storage unit, the Complaint and Ms. Dos Santos's other filings demonstrate that Assurant did not “conceal” the fact that Ms. Dos Santos's paintings were destroyed. Ms. Dos Santos alleged several times that she knew of the destruction of her paintings almost immediately after it happened. (See, e.g., Compl. ¶¶ 31-33; Dos Santos Decl. at 3; Pl. Opp. at 4). Even if emails with Assurant gave her false hope of being able to rescue her work from a disposal location, that hope could not have reasonably survived after Assurant's final emails in September and October 2017, in which employees reiterated that the contents of the storage unit had been disposed of and that they would take no further action on the matter. (Compl. Ex. 3.) Even if the facts were sufficient to argue fraudulent concealment while Ms. Dos Santos was within the “bureaucratic loop” of Assurant's claim processes, the tolling period would only be for six months, and the action would still be over nine months too late. See Parks, 341 Fed.Appx. at 738-39 (affirming dismissal of a copyright action as untimely because alleged fraud tolled the statute of limitations only until plaintiff knew of the alleged fraud).
Neither do Assurant's communications rise to the level of “definite misrepresentation[s] of fact” that “caused [her] to delay in bringing [her] lawsuit.” Tomas, 385 F.Supp. at 247. Ms. Dos Santos alleges that Assurant's statements concluding that it and Falcon Shield had “done the right thing” and that “the decision of trashing out was a correct decision” was “calculated to induce [her] to refrain from or postpone the commencement of a legal action.” (Compl. ¶ 41.) Assurant's averments of the propriety of its actions fall well short of the types of misrepresentations that warrant equitable estoppel. See Barksdale v. Robinson, 211 F.R.D. 240, 245 (S.D.N.Y. 2002) (“Ordinarily, [equitable estoppel] only applies when the defendant has taken active steps to prevent the plaintiff from suing in time ... as for example, where the defendant promises not to plead the statute of limitations ..., misrepresents the length of the limitations period, or lulls the plaintiff into believing it was not necessary to commence the litigation”) (cleaned up). Assurant clearly and firmly stated that it would do nothing to remedy the loss of Ms. Dos Santos's paintings. But the company made no attempt to induce Ms. Dos Santos to refrain from pursuing other avenues of redress, and the Complaint does not allege otherwise. (See Compl. Ex. 3 (“At this point, the claim denial is finalized and there is nothing more that [Assurant Field Services] can do regarding this matter”.)
Mental illness may also warrant equitable tolling. Canales v. Sullivan, 936 F.2d 755, 758 (2d. Cir. 1991). The plaintiff bears the burden in demonstrating that equitable tolling is justified on mental illness grounds. Boos v. Runyon, 201 F.3d 178,185 (2d Cir. 2000). “When determining whether equitable tolling is applicable, a district court must consider whether the person seeking application of the equitable tolling doctrine (1) has acted with reasonable diligence during the time period she seeks to have tolled, and (2) has proved that the circumstances are so extraordinary that the doctrine should apply.” Zerilli-Edelglass v. New York City Transit Authority, 333 F.3d 74, 80-81 (2d Cir. 2003), as amended (July 29, 2003) (internal quotation marks omitted). A plaintiff must provide a “particularized description of how her condition adversely affected her capacity to function generally or in relationship to the pursuit of her rights,” Boos, 201 F.3d at 185; and a plaintiff who fails to show a “causal connection between her mental state and the lateness of her complaint” will not meet her burden. Guinyard v. Apfel, No. 99-CV-4242, 2000 WL 297165, at *4 (S.D.N.Y. March 22, 2000).
Here, Ms. Dos Santos's generalized descriptions of grief and mental difficulty are insufficient to equitably toll the statute of limitations. First, her description of alleged mental illness and its impact on her ability to file a claim is “conclusory and vague” and so does not provide the “particularized description” necessary to meet her burden. Boos, 201 F.3d at 185. Ms. Dos Santos's most specific statements of her mental impairment are that she was “sick” and “emotionally unstable to the point of a hospital emergency room” which “was compounded by the loss, in succession, of Plaintiff's father and mother,” rendering her incapacitated until January 2020. (Pl. Opp. at 9 (internal quotations and citations omitted)). She also states that she felt that “she did not have what it takes” to file a lawsuit, and felt “afraid, threatened, and intimidated” based on alleged race and disability-based mistreatment by Defendants. (Compl. ¶¶ 48-49.) Ms. Dos Santos's assertions fail to describe her impairment with particularity and also fail to demonstrate a causal connection between how she felt and her ability to pursue her rights.
Further, other allegations in Ms. Dos Santos's filings suggest that she “could function generally and pursue [her] rights.” Ganley v. City Of New York, 734 Fed.Appx. 784, 786 (2d Cir. 2018). Ms. Dos Santos describes seeking redress through Assurant's claims process, discussions with Falcon Shield employees, exchanging email, and filing a police report. (See Compl. ¶¶ 32-42.) Those facts indicate that her impairment was not so extraordinary as to toll the statute of limitations. Ganley, 734 Fed.Appx. at 786 (declining to equitably toll statute of limitations for mental illness where plaintiff “reported his alleged mistreatment to his doctor, his insurance company, and his employer; obtained an order of protection and a divorce; and became a successful member of the community”); see also Zerilli-Edelglass, 333 F.3d at 79 (plaintiff who was “capable of writing coherent letters on her own behalf as well as making numerous phone calls to [EEOC investigator] during the time period in question” was not entitled to equitable tolling).
Ms. Dos Santos also advances arguments specific to tolling of the statute of limitations of her state-law claims. First, Ms. Dos Santos claims that her grief and mental illness meet the requirements for tolling pursuant to NY CPLR § 208. (Pl. Opp. at 9.) Second, she argues that “the statute of limitations was tolled for all New York state-law causes of action between March 20, 2020 and November 03, 2020, due to the COVID-19 pandemic” which, when combined with the equitable tolling warranted by Defendants' fraudulent concealment and mental instability, further “bolster[s] the timeliness” of her claims. (Pl. Opp. at 10.) Ms. Does Santos additionally suggests that her claims could be subject to a six-year statute of limitations under NY CPLR § 213. (Pl. Opp. at 13.) Because those arguments only apply to the state-law claims over which the Court should decline to take jurisdiction, the Court need not resolve them.
B. There Is No Support For Diversity Jurisdiction
In the OSC, the Court cautioned that it would not exercise jurisdiction over the state-law claims unless Ms. Dos Santos provided proof of the parties' complete diversity of citizenship and demonstrated why the state-law claims were not time-barred. (OSC at 6-7); see also 28 U.S.C. § 1367(c)(3) (“The district courts may decline to exercise supplemental jurisdiction over a claim ... if ... the district court has dismissed all claims over which it has original jurisdiction”). No such proof of diversity has been provided.
Under 28 U.S.C. § 1332, federal courts have original jurisdiction over actions between citizens of different states only where “no plaintiff and no defendant ... are citizens of the same State.” Wisconsin Department of Corrections v. Schacht, 524 U.S. 381, 388,118 S.Ct. 2047, 2052 (1998). A person is a citizen of the state where she is domiciled, which is “the place where a person has [her] true fixed home and principal establishment, and to which, whenever [she] is absent, [she] has the intention of returning.” Linardos v. Fortuna, 157 F.3d 945, 948 (2d Cir. 1998) (internal quotation marks omitted). A corporation is a citizen “of every State and foreign state by which it has been incorporated and of the State where it has its principal place of business,” 28 U.S.C. § 1332(c)(1), while a limited liability company “takes the citizenship of each of its members.” Bayerische Landesbank, New York Branch v. Aladdin Capital Management LLC, 692 F.3d 42, 49 (2d Cir. 2012).
Ms. Dos Santos previously resided in New Jersey, but “for all material times” to the Complaint resided and continues to reside in New York. (Compl. ¶ 17.) Ms. Dos Santos alleges that Assurant is headquartered in New York City, while Falcon is a “New Jersey limited liability company with active address and mailing address” and “principal place of business” in New York. (Compl. ¶¶ 11-12, 22-23.) The OSC noted that Ms. Dos Santos's domicile and the citizenship of each Defendant is ambiguous from the Complaint, but that it appears diversity is not complete because Ms. Dos Santos likely is a citizen of the same state as at least one defendant. (OSC at 6-7.) The Court directed that “if Plaintiff's declaration does not show that her citizenship is different from that of all Defendants, the Court will dismiss Plaintiff's state law negligence claim without prejudice.” (OSC at 9.)
Ms. Dos Santos has failed to make the requisite showing. Indeed, Ms. Dos Santos does not address diversity in either her Declaration or her opposing brief, instead urging the Court to reinstate her VARA claim and exercise supplemental jurisdiction over her state-law claims and elaborating on her arguments for tolling the statutes of limitations. In her Declaration, Ms. Dos Santos confirmed that she has been residing in New York since August 2018 through the present. (Dos Santos Decl. at 5.) Assurant claims to be headquartered in New York, which Ms. Dos Santos does not dispute. (Def. Mem. at 5.) Ms. Dos Santos therefore has not demonstrated the requisite complete diversity of citizenship for the Court to exercise original jurisdiction.
Accordingly, because the federal claims were properly dismissed, and Ms. Dos Santos has not offered any evidence to support diversity jurisdiction, the state law claims should be dismissed.
C. Amending The Complaint Would Be Futile
Ms. Dos Santos asks in the alternative for her Declaration and opposition brief to be treated as amendments to her Complaint, and/or for leave to amend her Complaint to “address any deficiencies identified by the Court.” (Pl. Opp. at 1.) Pro se plaintiffs are typically given at least one opportunity to amend their complaint, unless amending the complaint would be futile. See Nielsen v. Rabin, 746 F.3d 58, 63 (2d Cir. 2014); see also Tocker v. Philip Morris Companies, Inc., 470 F.3d 481, 491 (2d Cir. 2006).
While Nielsen instructs courts to read pro se complaints and opposing briefs together to determine whether amending the complaint would be futile, it does not instruct district courts to treat allegations in declarations or briefs as amendments to the operative complaint. See 746 F.3d at 63. Even so, considering together the Complaint, Ms. Dos Santos's Declaration, and her opposition brief, amending the Complaint would be futile.
First, the VARA claim is barred by the statute of limitations and, in accordance with the OSC and federal law, the Court need not, and should not, exercise supplemental jurisdiction over state-law claims between non-diverse parties at this early juncture in the litigation. (OSC at 8-9); see also 28 U.S.C. § 1367(c)(3) (allowing a district court to decline to exercise supplemental jurisdiction over state-law claims after it “has dismissed all claims over which it has original jurisdiction”); Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350 n. 7, 108 S.Ct. 614, 619 n. 7 (1988) (“in the usual case in which all federal- law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine - judicial economy, convenience, fairness, and comity - will point toward declining to exercise jurisdiction over the remaining state-law claims”).
Second, Ms. Dos Santos has had two opportunities to put forth facts that would support diversity jurisdiction but has failed to do so - first through her declaration responding to the OSC, and then through her opposition to the motion to dismiss. Given her silence on the issue and the facts presented in her Complaint, there is no reason to believe that she could prove complete diversity if granted a third chance to do so. Leave to amend should be denied, and the state law claims dismissed without prejudice to their being filed in state court.
CONCLUSION
For the foregoing reasons, I recommend that Assurant's motion be GRANTED insofar as judgment be entered dismissing Ms. Dos Santos's state-law claims without prejudice. I further recommend that Ms. Dos Santos's request to “reinstate” her VARA claim be DENIED. To the extent not discussed herein, the Court has considered all of Plaintiff's arguments and determined them to be without merit. Because the Court recommends dismissal for lack of subject matter jurisdiction, it does not reach the merits of the parties' agency and vicarious liability arguments.
DEADLINE FOR FILING OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the Chambers of the Honorable Paul A. Engelmayer, United States Courthouse, 40 Foley Square, New York, New York 10007, and to the Chambers of the undersigned, at United States Courthouse, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will result in a waiver of the right to object and will preclude appellate review.
RESPECTFULLY SUBMITTED,