Opinion
Civil Action 21 Civ. 8549 (AT) (SLC)
05-13-2022
DAWN M. JOYNER, Sui Juris, Plaintiff, v. ALSTON & BIRD LLP, RICHARD HAYS, in his official and individual capacities, CATHY BENTON, in her official and individual capacities, and MICHAEL STEVENS, in his official and individual capacities, Defendants.
HONORABLE ANALISA TORRES, United States District Judge:
REPORT AND RECOMMENDATION
SARAH L. CAVE, United States Magistrate Judge.
I.INTRODUCTION
Pro se Plaintiff Dawn M. Joyner (“Ms. Joyner”) filed this action asserting claims under 42 U.S.C. §§ 1983 and 1985(3) and 5 U.S.C. § 552a and seeking injunctive relief, declaratory judgment, and money damages against the following Defendants: (1) Alston & Bird LLP (the “Firm”); (2) Richard Hays, the Firm's Chairman and Managing Partner; (3) Cathy Benton, Chief Human Resources Officer; and (4) Michael Stephens, Director of Human Resources and Diversity (Hays, Benton, and Stephens, together, the “Individual Defendants,” the Firm and the Individual Defendants together, “Defendants”). (ECF No. 1 (the “Complaint”)). Ms. Joyner's claims are predicated on her allegations that, inter alia, during her employment at the Firm, Defendants prohibited her from terminating her Forms W-4, violated her privacy, and deprived her of part of her salary. (Id. ¶¶ 46-48, 86-91, 204-207).
Defendants have moved to dismiss the Complaint as barred by res judicata and for failure to state claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 17 (the “Motion”)). Ms. Joyner opposed the Motion. (ECF No. 20 (the “Opposition”)). In addition, Ms. Joyner has asked the Court to take judicial notice of certain legal authorities in connection with the Motion. (ECF Nos. 36-37 (the “Judicial Notice Motion”)).
For the reasons set forth below, I respectfully recommend that the Motion be GRANTED, and that the Judicial Notice Motion be DENIED.
II.BACKGROUND
A. Factual Background
The Court summarizes the factual background of Ms. Joyner's claims based on the allegations in her Complaint (ECF No. 1), which the Court accepts as true for purposes of the Motion. See N.J. Carpenters Health Fund v. Royal Bank of Scot. Grp., PLC, 709 F.3d 109, 119-20 (2d Cir. 2013); Adeniji v. N.Y. State Office of State Comptroller, No. 18 Civ. 0761 (PAE) (BCM), 2019 WL 4171033, at *2 (S.D.N.Y. Sept. 3, 2019). In addition, because Ms. Joyner is pro se, the Court may consider and include in this summary “factual allegations contained in [her] opposition papers and other court filings.” Rodriguez v. Rodriguez, No. 10 Civ. 891 (LGS), 2013 WL 4779639, at *1 (S.D.N.Y. July 8, 2013).
1. Ms. Joyner's Employment
Ms. Joyner worked as a Legal Secretary and Legal Administrative Assistant at the Firm for approximately twelve years. (ECF No. 1 ¶¶ 14, 43). At the beginning of her employment, Ms. Joyner completed a Form W-4 at the Firm's request. (ECF No. 1 ¶¶ 25, 69-71). In April 2019, Ms. Joyner asked the Firm's Human Resources Department to remove her Social Security number from her Forms W-4. (ECF No. 1 ¶¶ 114-15). Ms. Joyner made this request, in part, to enable her to process her compensation through an Employer Identification Number assigned to a trust. (ECF No. 1 ¶¶ 120-22). Lynn Nabors (“Ms. Nabors,” a non-party), the Firm's Payroll Manager, informed Ms. Joyner that there would be complications with routing her compensation to a trust. (Id. ¶¶ 123-24). Ms. Nabors, having consulted a representative from the Internal Revenue Service (“IRS”) and several tax and employee benefit attorneys, informed Ms. Joyner that, “we are an employer that employs you as an employee. We do not employ the trust.” (Id.) Ms. Nabors added that, “if we employ you as the trust, we will need you to complete an I-9 with the new information.” (Id. ¶ 120). Ms. Joyner chose not to complete any new forms. (Id. ¶¶ 121, 205-06).
A Form W-4 is “an employee's federal and state tax-withholding forms.” Kansas v. Garcia, 140 S.Ct. 791, 794 (2020). “Employees have an obligation to file W-4 forms with their employers[.]” El Bey v. Dialysis Clinic, Inc., No. 99 Civ. 12156 (DLC), 2001 WL 228119, at *2 (S.D.N.Y. Mar. 8, 2001).
On April 30, 2019, Ms. Joyner sent to the Firm's Payroll Department an email entitled, “Termination of Voluntary Withholding Agreement.” (ECF No. 1 ¶ 27 & Ex. B (the “April 30 Email”)). Ms. Joyner stated that the April 30 Email was her “formal written notice to you desire [sic] that I wish to formally terminate between us any and all W-4 agreements on file with you, as per 26 CFR Sec. 31.3402 (p)-1(b)(2), effective[] immediately.” (ECF No. 1 ¶ 27 & Ex. B).
On May 13, 2019, Ms. Joyner spoke by telephone with Defendant Stephens and Elena Hegel, the Firm's Human Resources and Attorney Hiring Coordinator. (ECF No. 1 ¶ 183). During the call, Stephens informed Ms. Joyner that the Firm would not honor her requests to terminate her Forms W-4. (Id. ¶ 184). The next day, Defendant Benton re-affirmed that decision, stating that, “we are not going to engage back and forth about the Firm's tax withholding obligations. If the Firm's response on this issue is unsatisfactory to you, then you should pursue other employment options.” (Id. ¶ 51). On June 24, 2019, Ms. Joyner voluntarily resigned from the Firm. (Id. ¶ 30).
2. Ms. Joyner's Claims
Ms. Joyner asserts three causes of action against all Defendants: (1) violation of the First and Thirteenth Amendments to the United States Constitution, brought under 42 U.S.C. § 1983 (ECF No. 1 ¶¶ 34-138 (the “Section 1983 Claim”)); (2) conspiracy to violate the Fourteenth Amendment to the United States Constitution under 42 U.S.C. § 1985(3) (id. ¶¶ 139-99 (the “Section 1985(3) Claim”)); and (3) privacy infringement under 5 U.S.C. § 552a (“Section 552a”). (Id. ¶¶ 200-11 (the “Privacy Claim”)).
Ms. Joyner seeks compensatory and punitive damages, declaratory and permanent injunctive relief to prevent Defendants from making future privacy violations and false misrepresentations about the Forms W-4, and costs. (ECF No. 1 at 32-33 ¶¶ 1-7).
Page numbers refer to the ECF page number, unless otherwise noted.
B. Procedural Background
On December 20, 2020, Ms. Joyner commenced an action by filing a complaint that alleged privacy violations under Section 552a against the Defendants and Ms. Nabors. (Joyner v. Alston & Bird LLP et al., No. 20 Civ. 10093 (AT) (GWG) (“Joyner I”), ECF No. 1 ¶¶ 54-81). The Firm, the Individual Defendants, and Ms. Nabors moved to dismiss on the ground that Section 552a did not apply to private entities or individual employees. (Joyner I, ECF Nos. 9; 10 at 4-8). On January 7, 2021, Ms. Joyner filed an amended complaint. (Joyner I, ECF No. 14 (the “Joyner I FAC”)). In the Joyner I FAC, Ms. Joyner voluntarily dismissed her Section 552a claim, and all claims against the Individual Defendants and Ms. Nabors. (Joyner I, ECF No. 14 ¶¶ 1-5). Instead, Ms. Joyner asserted a breach of contract claim against the Firm only. (Joyner I, ECF No. 14 ¶ 6).
Citations to “ECF” refer to docket entries filed in this civil action, and citations to “Joyner I ECF No.” refer to docket entries filed in Case No. 20 Civ. 10093 (AT)(GWG).
On January 27, 2021, the Firm moved to dismiss the Joyner I FAC. (Joyner I, ECF No. 20). On May 27, 2021, the Honorable Gabriel W. Gorenstein issued a Report and Recommendation recommending that the Joyner I FAC be dismissed for lack of subject matter jurisdiction. (Joyner I, ECF No. 30 at 9). Joyner v. Alston & Bird LLP et al., No. 20 Civ. 10093 (AT) (GWG), 2021 WL 2149316 (S.D.N.Y. May 27, 2021) (the “Joyner I R&R”). On June 4, 2021, Ms. Joyner requested permission to file a second amended complaint, seeking to rename Stephens and Benton as Defendants, and assert claims against them under Sections 1983 and 1985(3), 42 U.S.C. § 2000e et seq. (“Title VII”), and state law. (Joyner I, ECF No. 35-1 (the “Proposed SAC”)).
On September 21, 2021, the Honorable Analisa Torres rejected Ms. Joyner's objections, adopted the Joyner I R&R, and denied leave to file the Proposed SAC. (Joyner I, ECF No. 41 at 910). Joyner v. Alston & Bird LLP et al., No. 20 Civ. 10093 (AT) (GWG), 2021 WL 4296433, at *5 (the “Joyner I Dismissal”)). Judge Torres analyzed the Proposed SAC under the standard that “a motion for leave to amend should be denied only if the . . . proposed amendment is futile.” Joyner I Dismissal, 2021 WL 4296433, at *3. Judge Torres concluded that Ms. Joyner had not remedied the absence of federal subject matter jurisdiction that Judge Gorenstein had identified in the Joyner I R&R, nor had Ms. Joyner alleged facts sufficient to support the Section 1983, 1985(3), and Title VII claims that she sought to assert in the Proposed SAC. See Joyner I Dismissal, 2021 WL 4296433, at *3. Judge Torres held that the Section 1983 claim was futile because the Firm was not a state actor, as were the Section 1985(3) and Title VII claims because Ms. Joyner had not plausibly alleged that she was a member of a protected class. Id. at *4. “[W]ith all federal claims deemed futile,” Judge Torres declined to exercise supplemental jurisdiction over Ms. Joyner's state law claims. Id. at *5.
On October 18, 2021, Ms. Joyner filed her Complaint in this action, alleging the same factual background and asserting claims against the same Defendants under Sections 1983 and 1985(3), and Section 552a. (Compare ECF No. 1 ¶¶ 23-210, with Joyner I ECF No. 1 ¶¶ 22-81). Specifically, the Joyner I FAC, Proposed SAC, and Complaint all allege that Defendants engaged in a wrongful taking for twelve years by refusing to modify her Forms W-4, resulting in her resignation from the Firm. (ECF No. 1 ¶¶ 23-210; Joyner I ECF No. 1 ¶¶ 22-81; Joyner I ECF No. 35-1 ¶¶ 26-130).
In the Complaint, Ms. Joyner advances the new allegation that Defendants' failure to accommodate her tax elections deprived her of “her federally protected right to free exercise of religion.” (ECF No. 1 ¶¶ 33-34). By “unknowingly, unwillingly, unintentionally and involuntarily” permitting the Firm to withdraw a portion of her income “for payment of a public debt, including but not limited to, the social security system,” Ms. Joyner argues that these withdrawals were violative of her faith as a “born-again, Spirit-filled Believer[.]” (Id. ¶¶ 36, 43, 44). Ms. Joyner is concerned that by having permitted the Firm to engage in the alleged wrongful taking, she has unintentionally allowed a “ruler” to be over her and has “committed idolatry and terminated the Most High as her Sovereign Protector and Source.” (Id. ¶¶ 39-43).
On November 15, 2021, Defendants filed the Motion. (ECF No. 17). On November 17, 2021, Judge Torres referred the Motion to the undersigned for a Report and Recommendation. (ECF No. 19). On December 2, 2021, Ms. Joyner filed her Opposition (ECF No. 20), and on December 9, 2021, Defendants filed their Reply. (ECF No. 21).
III. LEGAL STANDARDS
A. Motion to Dismiss
In reviewing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court accepts as true all factual allegations in the complaint and draws all reasonable inferences in favor of the plaintiff. See N.J. Carpenters, 709 F.3d at 119-20; Rich v. New York, No. 21 Civ. 3835 (AT), 2022 WL 992885, at *3 (S.D.N.Y. Mar. 31, 2022). To survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Bah v. City of New York, No. 20 Civ. 263 (AT), 2022 WL 955924, at *2 (S.D.N.Y. Mar. 30, 2022) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citation omitted)). A claim has “facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678; see Stone Fam. Tr. v. Credit Suisse AG, No. 19 Civ. 5192 (AT), 2022 WL 954743, at *5 (S.D.N.Y. Mar. 30, 2022)
Under Rule 8(a), a plaintiff must set forth a “short and plain statement of the claim,” Fed.R.Civ.P. 8(a), “with sufficient factual ‘heft to sho[w] that the pleader is intitled to relief.'” Trujillo v. City of New York, No. 14 Civ. 8501 (PGG), 2016 WL 10703308, at *4 (S.D.N.Y. Mar. 29, 2016), aff'd, 696 Fed.Appx. 560 (2d Cir. 2017) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (internal citation omitted)). A complaint “cannot withstand a motion to dismiss unless it contains factual allegations sufficient to raise a ‘right to relief above the speculative level.'” Blackson v. City of New York, No. 14 Civ. 452 (VEC), 2014 WL 6772256, at *2 (S.D.N.Y. Dec. 2, 2014) (quoting Twombly, 550 U.S. at 555), and “present claims that are ‘plausible on [their] face.'” Id. (quoting Twombly, 550 U.S. at 570). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. A complaint that pleads facts “merely consistent with” a defendant's liability “stops short of the line between possibility and plausibility of entitlement to relief.” Twombly, 550 U.S. at 557 (internal citation omitted). If “the allegations in a complaint, however true, could not raise a claim of entitlement to relief,” id. at 558, or if the plaintiff has “not nudged [his] claims across the line from conceivable to plausible, the[] complaint must be dismissed.” Id. at 570. The Second Circuit has explained that, where a complaint “consist[s] of nothing more than naked assertions, and set[s] forth no facts upon which a Court could find a violation of the Civil Rights Act, fails to state a claim under Rule 12(b)(6).” Martin v. N.Y. State. Dep't of Mental Hygiene, 588 F.2d 371, 372 (2d Cir. 1978).
In reviewing the Motion, the Court considers “the allegations contained within the four corners of” the Complaint, Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 71 (2d Cir. 1998), and may consider “documents attached . . . as exhibits, and documents incorporated by reference[.]” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). The Court may also consider a document that, although not incorporated by reference, the Complaint relies on for its terms such that the document is “‘integral' to the complaint.” Id. (quoting Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006)). Finally, the Court may take judicial notice of the fact, but not the content or truth, of testimony in another judicial proceeding. See Nestle Waters N. Am., Inc. v. City of New York, No. 15 Civ. 05189 (ALC), 2016 WL 3080722, at *4 (S.D.N.Y. May 25, 2016), aff'd, 689 Fed.Appx. 87 (2d Cir. 2017) (“[A] court may take judicial notice of a document filed in another court not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related filings”) (internal citations omitted); see Lia v. Saporito, 909 F.Supp.2d 149, 178 (E.D.N.Y. 2012).
B. The Plaintiff's Pro Se Status
The Court is mindful that Ms. Joyner has proceeded pro se in this case and in Joyner I. Pro se plaintiffs are generally entitled to a liberal construction of their pleadings, and “a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); see Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001). Ms. Joyner, however, is “not exempt from the ‘rules of procedural and substantive law.'” DiPilato v. 7-Eleven, Inc., 662 F.Supp.2d 333, 343 (S.D.N.Y. 2009) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). In addition, “the doctrine of res judicata is equally applicable to pro se plaintiffs.” Fogel v. Sec'y of Air Force, 351 F.Supp.2d 47, 49 (E.D.N.Y. 2005).
C. Res Judicata
The doctrine of res judicata, or claim preclusion, dictates that “a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.” Mahmood v. Rsch. in Motion Ltd., 905 F.Supp.2d 498, 501 (S.D.N.Y. 2012); see also Fogel, 351 F.Supp.2d at 49 (“The doctrine of res judicata or claim preclusion simply means that when a judgment is rendered on the merits, it bars a second suit between the same parties or their privies based on the same cause of action or claims.”). Regardless of the legal theories offered, “when the factual predicate upon which claims are based are substantially identical, the claims are deemed to be duplicative for purposes of res judicata.” Cantore v. City of New York, No. 16 Civ. 2748 (PGG), 2017 WL 11501442, at *7 (S.D.N.Y. Sept. 15, 2017) (quoting Berlitz Sch. of Languages of Am., Inc. v. Everest House, 619 F.2d 211, 215 (2d Cir. 1980)). Courts enforce res judicata to “relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication.” Allen v. McCurry, 449 U.S. 90, 94 (1980).
For res judicata to preclude a subsequent litigation, a court must find that: “(1) the previous action involved an adjudication on the merits; (2) the previous action involved the parties or those in privity with them; and (3) the claims asserted in the subsequent action were, or could have been, raised in the prior action.” Limtung v. Thomas, No. 19 Civ. 3646 (RPK) (MMH), 2021 WL 4443710, at *6 (E.D.N.Y. Sept. 28, 2021) (quoting Pike v. Freeman, 266 F.3d 78, 91 (2d Cir. 2001)). “The burden is on the party seeking to invoke res judicata to prove that the doctrine bars the second action.” Computer Assocs. Int'l, Inc. v. Altai, Inc., 126 F.3d 365, 369 (2d Cir. 1997). A res judicata defense may be raised on a Rule 12(b)(6) motion if the court's records can reflect all relevant facts. See Patrowicz v. Transamerica HomeFirst, Inc., 359 F.Supp.2d 140, 144 (D. Conn. 2005) (citing AmBase Corp. v. City Investing Co. Liquidating Tr., 326 F.3d 63, 72 (2d Cir. 2003)).
D. Section 1983
To state a claim under Section 1983 for a constitutional violation, “a complaint must allege that the defendant (1) deprived the plaintiff of rights secured by the Constitution and laws of the United States, (2) while acting under color of state law.” Chamberlain v. City of White Plains, 986 F.Supp.2d 363, 381 (S.D.N.Y. 2013); see Lurch v. Chaput, No. 16 Civ. 2517 (AT), 2022 WL 889259, at *5 (S.D.N.Y. Mar. 25, 2022). “To act under color of state law or authority for purposes of Section 1983, the defendant must ‘have exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'” Savarese v. City of New York, 547 F.Supp.3d 305, 337 (S.D.N.Y. 2021) (quoting Monsky v. Moraghan, 127 F.3d 243, 245 (2d Cir. 1997)). Accordingly, a central inquiry to Section 1983 claims is whether the alleged constitutional violations “have been committed by a person acting under color of state law[.]” Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010) (quoting Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994)). The burden is on the plaintiff to “indicate that the challenged action was ‘fairly attributable to the State.” Vasquez v. Garcia, 432 F.Supp.3d 92, 97 (D. Conn. 2019) (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)).
The Deprivation Clause of Section 1985(3) prohibits two or more persons from conspiring “for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws.” Zhang Jingrong v. Chinese Anti-Cult World All., 287 F.Supp.3d 290, 297 (E.D.N.Y. 2018) (quoting 42 U.S.C. § 1985(3)). “To state a civil rights conspiracy under § 1985(3), a plaintiff must allege: 1) a conspiracy; 2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and 3) an act in furtherance of the conspiracy; 4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States.” Gray v. Town of Darien, 927 F.2d 69, 73 (2d Cir. 1991).
Because Section 1985(3) provides no substantive rights but merely provides a remedy for a violation of the rights it so designates, “to state a claim under § 1985(3) a complaint must allege, inter alia, that the defendants who allegedly conspired sought, with discriminatory intent, to deprive the plaintiff of a right covered by the Constitution or other laws[.]” Spencer v. Casavilla, 903 F.2d 171, 174 (2d Cir. 1990); see also Great Am. Fed. Sav. & Loan Ass'n v. Novotny, 442 U.S. 366, 372 (1979). Also, because discriminatory intent is necessary for a Section 1985(3) claim, “the Deprivation Clause requires that a plaintiff belong to a protected class.” Zhang, 287 F.Supp.3d at 297.
A plaintiff must offer evidence of “some factual basis supporting a meeting of the minds, such that defendants entered into an agreement, express or tacit, to achieve the unlawful end.” Webb v. Goord, 340 F.3d 105, 110 (2d Cir. 2003) (quoting Romer v. Morgenthau, 119 F.Supp.2d 346, 363 (S.D.N.Y. 2000)). “A plaintiff must also show ‘with at least some degree of particularity, overt acts which the defendants engaged in which were reasonably related to the promotion of the claimed conspiracy.'” Simpson ex rel. Simpson v. Uniondale Union Free Sch. Dist., 702 F.Supp.2d 122, 133 (E.D.N.Y. 2010). Accordingly, “the conspiracy claim must contain more than conclusory, vague or general allegations of conspiracy to deprive a person of constitutional rights.” Romer, 119 F.Supp.2d at 363.
Finally, “section 1985(3) itself has no state action requirement and thus reaches private conspiracies, despite language in the statute that appears to suggest otherwise.” Emanuel v. Barry, 724 F.Supp. 1096, 1099 (E.D.N.Y. 1989).
F. The Privacy Act
Section 552a of the Privacy Act provides that it is “unlawful for any Federal, State or local government agency to deny to any individual any right, benefit, or privilege provided by law because of such individual's refusal to disclose his social security account number.” Lowman v. NVI LLC, 821 Fed.Appx. 29, 31 (2d Cir. 2020); see Stoianoff v. Comm'r of Motor Vehicles, 208 F.3d 204 (2d Cir. 2000). A “government agency” is meant to include an “agency as defined in the Freedom of Information Act.” Lowman, 821 Fed.Appx. 29, 31 (2d Cir. 2020). Accordingly, a government agency includes: “any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency[.]” 5 U.S.C. § 552(f); see Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 124 (2d Cir. 2008) (“This Court, joining many of its sister Circuits, has accordingly held that the private right of civil action created by the Privacy Act is specifically limited to actions against agencies of the United States government.”).
IV.DISCUSSION
A. Res Judicata
Defendants argue that Ms. Joyner's claims “fail outright on the basis of res judicata.” (ECF No. 18 at 7). Specifically, Defendants argue that Ms. Joyner's Section 1983 and 1985(3) claims are barred as they were previously rejected as futile in the Joyner I Dismissal, and her Privacy Claim “is based on the same set of underlying facts.” (Id.) Ms. Joyner does not explicitly address the elements of res judicata, but argues that the Joyner I Dismissal was improper and that she should have had another opportunity to seek relief. (See ECF No. 20 at 11-14).
The Court analyzes each of the three prongs of res judicata (see § III.C, supra) in turn.
1. Adjudication on the Merits
To satisfy the first prong of res judicata, “the prior litigation must have resulted in a final judgment on the merits.” Powers v. City of New York, No. 4 Civ. 2246 (NGG), 2007 WL 1026407, at *4 (E.D.N.Y. Mar. 30, 2007). “The denial of a motion to amend is a final judgment on the merits for the purposes of res judicata.” Yaba v. Roosevelt, 961 F.Supp. 611, 621 (S.D.N.Y. 1997); see United States v. McGann, 951 F.Supp. 372, 383 (E.D.N.Y. 1997) (“It is well settled that denial of leave to amend constitutes res judicata on the merits of the claims which were the subject of the proposed amended pleading.”).
In the Joyner I Dismissal, Judge Torres denied Ms. Joyner's request to file the Proposed SAC, which sought to assert claims under Sections 1983 and 1985(3) and Title VII. 2021 WL 4296433, at *5. While liberally construing the Proposed SAC, Judge Torres nevertheless held that Ms. Joyner failed to plausibly allege a Section 1983 claim against the Firm. Id. at *3-4. Judge Torres explained that an employer's statutory withholding of taxes from an employee's wages did not violate Section 1983 because “the employer is not a state actor when complying with its federally mandated duty to withhold taxes-an essential element of a § 1983 claim.” Id. at *4. Because the Firm was not a state actor, any attempt to assert a Section 1983 claim against the Firm (or the Individual Defendants) was futile. Id.
As to the proposed Section 1985(3) claim, Judge Torres rejected Ms. Joyner's theory that Defendants conspired to prevent her from modifying her Forms W-4 based on “the perception of Plaintiff's lack of credibility or ability as a non-lawyer-someone not in [the Firm's] social class[.]” Joyner I Dismissal, 2021 WL 4296433, at *4. Judge Torres observed that courts in this Circuit have not extended 1985(3) protections to economic classes such as the one Ms. Joyner described in the Proposed SAC. Id. Accordingly, Ms. Joyner's failure to allege that she was in a protected class also rendered Ms. Joyner's Section 1985(3) claim futile. Id. at *3-4.
As to the Title VII claim, Judge Torres evaluated whether Ms. Joyner had plausibly alleged: “‘(1) membership in a protected class; (2) satisfactory job performance;' (3) adverse employment action; and (4) that the adverse employment action ‘occurred under circumstances giving rise to an inference of discrimination on the basis of the plaintiff's membership in that class.'” Joyner I Dismissal, 2021 WL 4296433, at *4 (quoting Farias v. Instructional Sys., Inc., 259 F.3d 91, 98 (2d Cir. 2001)). As with her Section 1985(3) claims, Judge Torres determined that Ms. Joyner's failure to allege membership in a protected class rendered her Title VII claim futile. Id. at *4. Judge Torres also noted that, “to the extent [Ms. Joyner was] claiming racial or gender discrimination, she ha[d] not pleaded the necessary discriminatory intent.” Id.
Because Judge Torres analyzed and found legally insufficient the claims Ms. Joyner sought to assert in the Proposed SAC, the Joyner I Dismissal was a final prior adjudication on the merits for res judicata purposes. See Yaba, 961 F.Supp. at 621 (collecting cases).
2. Same Parties
The second prong of res judicata analyzes whether “the same parties or their privies [were] involved in both actions in order to preclude the later litigation.” Martell v. Cohen Clair Lans Greifer Thorpe & Rottenstreich, LLP, No. 18 Civ. 9692 (ER), 2019 WL 4572196, at *3 (S.D.N.Y. Sept. 20, 2019). Privity between the parties for purposes of a res judicata analysis exists when: “(1) there is substantial identity of the incentives of the earlier party with those of the party against whom res judicata is asserted[;] (2) the party in the second action was adequately represented in the first action by another vested with the authority of representation; (3) there are successors to a property interest; (4) the party to the second action controls the first action although not a formal party to it; or (5) the party was a co-party to a prior action.” In re Worldcom, Inc., 401 B.R. 637, 649 (Bankr. S.D.N.Y. 2009) (internal citations omitted).
Here, Ms. Joyner has named the same Defendants in this action as she named in Joyner I - the Firm (compare ECF No. 1 ¶¶ 1-7, with Joyner I ECF No. 35-1 ¶¶ 8, 23, 28), Hays (compare ECF No. 1 ¶¶ 1-3, with Joyner I ECF No. 35-1 ¶ 28), Benton (compare ECF No. 1 ¶¶ 1-3, with Joyner I ECF No. 35-1 ¶¶ 9-14, 24), and Stephens (compare ECF No. 1 ¶¶ 1-3, with Joyner I ECF No. 35-1 ¶¶ 9-14, 25).
Accordingly, the second prong of res judicata is satisfied.
3. Comparison of Claims
Whether the claims asserted in a prior action are similar enough to warrant preclusion in a subsequent matter, the third prong of res judicata, turns in part on “whether the same transaction or connected series of transactions is at issue, whether the same evidence is needed to support both claims, and whether the facts essential to the second were present in the first.” N.L.R.B. v. United Techs. Corp., 706 F.2d 1254, 1260 (2d Cir. 1983). The Court must determine that “the second suit involves the same claim-or nucleus of operative fact-as the first suit.” Waldman v. Vill. of Kiryas Joel, 207 F.3d 105, 108 (2d Cir. 2000) (internal quotations omitted). “Even claims based upon different legal theories are barred provided they arise from the same transaction or occurrence.” Cieszkowska v. Gray Line New York, 295 F.3d 204, 205 (2d Cir. 2002) (quoting L-Tec Elecs. Corp. v. Cougar Elec. Org., Inc., 198 F.3d 85, 88 (2d Cir. 1999)).
Ms. Joyner's Complaint challenges the Firm's failure to accommodate her request to terminate her Forms W-4 as a violation of her First Amendment rights under Sections 1983 and 1985(3) and a violation of privacy under Section 552a. (ECF No. 1 at 6-31 ¶¶ 34-211). In Joyner I, Ms. Joyner also alleged that the Firm's failure to accommodate her request to terminate her Forms W-4 was a violation of her constitutional rights under Section 1983, 1985(3), and Title VII, a violation of privacy under Section 552a, and state law. (See Joyner I ECF Nos. 1 ¶¶ 54-81; 14 ¶¶ 5-6, 24-45; 35-1 ¶¶ 36-130).
There can be no dispute that both causes of action arise from the same transaction or occurrence. Both causes of action arise from Ms. Joyner's allegation that she unintentionally, involuntarily, and unknowingly was “fraudulently induced [] into an extrinsic contractual agreement” with the IRS. (Compare Joyner I ECF No. 35-1 ¶¶ 41-45, 93-45, with ECF No. 1 ¶¶ 43, 75, 205-06). Both causes of action discuss the same employees of the Firm as involved in denying Ms. Joyner's request to terminate her Forms W-4. (Compare Joyner I ECF No. 35-1 ¶¶ 60, 65-67 (discussing how Ms. Nabors consulted with four attorneys and the IRS to determine that she would not accommodate Ms. Joyner's request), with ECF No. 1 ¶ 116, 118-20 (discussing the same); compare Joyner I ECF No. 35-1 ¶ 81-83 (discussing a May 13, 2019 telephone conference with Stephens where Ms. Joyner was told if she did not like the Firm's “final decision,” she “should find someplace else to work”), with ECF No. 1 at ¶¶ 49-50 (discussing the same); compare Joyner I ECF No. 35-1 ¶ 85-86 (discussing a May 14, 2019 conversation with Benton, who told Ms. Joyner, “if the firm's response on this issue is unsatisfactory to you, then you should pursue other employment options”), with ECF No. 1 at ¶¶ 51 (discussing the same)). Both causes of action discuss Ms. Joyner's sending the April 30 Email and later resigning after the Firm declined to accommodate her request. (Compare Joyner I ECF No. 35-1 ¶¶ 36-40, Ex. B (discussing how Ms. Joyner sent the April 30 email and attached a “memo requesting termination of the employer-employee voluntary withholding agreement”), with ECF No. 1 at ¶¶ 46-47, Ex. B (discussing the same); compare Joyner I ECF No. 35-1 ¶ 133 (discussing how Ms. Joyner was forced to resign on June 24, 2019 due to the Firm's failure to accommodate her request), with ECF No. 1 at ¶ 192 (discussing the same)).
Aside from the fact that Ms. Joyner does not, in this action, assert the Title VII and state law claims that she asserted in the Proposed SAC, the only material difference the Court perceives between the Proposed SAC in Joyner I and the Complaint in this action is the predicate constitutional violation for the Section 1983 Claim: in the Proposed SAC, Ms. Joyner alleged that the predicate constitutional violation was her “right to privacy,” whereas in the Complaint, she alleges that Defendants violated her religious freedoms under the First and Thirteenth Amendments. (Compare Joyner I ECF No. 35-1 ¶ 131, with ECF No. 1 ¶¶ 42-43, 53-54). The fatal flaw in her Section 1983 claim is the same in both cases, however: Ms. Joyner's inability to demonstrate that the Firm was a state actor. See Joyner I Dismissal, 2021 WL 4296433, at *4. Thus, that she characterizes the predicate constitutional violation differently does not preclude the application of res judicata as a bar to her Section 1983 Claim. (See § IV.B.1, infra). See Sullivan v. Hyland, 647 F.Supp.2d 143, 176 (D. Conn. 2009) (dismissing plaintiffs' novel federal constitutional claims as barred by res judicata where federal constitutional claims were thoroughly analyzed and completely disposed of in a previous proceeding). In short, Ms. Joyner's present Complaint attempts to re-assert claims that Judge Torres rejected as futile (her Section 1983 and 1985(3) claims), or otherwise raise theories of liability that she voluntarily dismissed from Joyner I (her Section 552(a) claim), which are also based on the same nucleus of operative fact. Accordingly, the third and final prong of res judicata is satisfied.
Because, as set forth above, Ms. Joyner's previous claims arising from the Firm's failure to accommodate her Form W-4 request were properly adjudicated on the merits, involved the same parties, and asserted claims that were dismissed or withdrawn from the prior action, all three prongs of res judicata are met. The Court therefore respectfully recommends that Defendants' Motion be GRANTED and the Complaint be dismissed as barred by res judicata.
B. Failure to State a Claim
In the alternative, Defendants argue that Ms. Joyner has failed to plausibly allege claims under Sections 1983, 1985(3), and 552a. (ECF No. 18 at 7). Ms. Joyner argues that: (i) her Section 1983 Claim survives because the Firm is a quasi-private employer that enslaved her; (ii) her Section 1985(3) Claim survives because the Firm conspired to prevent Ms. Joyner from terminating her Forms W-4; and (iii) her Privacy Claim survives because the Firm shared Ms. Joyner's financial records with the federal government without proper consent. (ECF No. 20 at 14-19). The Court analyzes the sufficiency of Ms. Joyner's allegations as to each claim.
1. Section 1983
Defendants argue that Ms. Joyner must, but has failed to, plausibly allege that the Firm was a private entity acting under color of state law, and therefore, she has failed to state a Section 1983 claim. (ECF No. 18 at 15). Ms. Joyner includes with her Opposition a document showing her 2018 base compensation to support her allegations that the Firm: (i) forced her into slavery for approximately twelve years; (ii) engaged in a wrongful taking that deprived Ms. Joyner of more than $250,000; and (iii) compelled her to engage in uncompensated labor for approximately four months per annum. (ECF Nos. 20 at 14; 1 ¶¶ 34-138 & Ex. D-F). Ms. Joyner argues that these exhibits “make it crystal clear that [the Firm] was acting under color of state law when it withheld [Ms. Joyner]'s payroll taxes.” (ECF No. 20 at 14.) The Court disagrees with Ms. Joyner.
The Court has reviewed Ms. Joyner's Exhibit D (i.e., 5.14.10.3. Preparation and Distribution of Form 2159, Payroll Deduction Agreement, 4 I.R.M. Abr. & Ann. § 5.14.10.3), Exhibit E (i.e., a document entitled “Withholding Tax Requirements”), and Exhibit F (i.e., several scanned pages of (Circular E), Employer's Tax Guide). (ECF No. 1 at 47-56).
A private entity acts under color of state law when “[it] exercises power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'” Bektic-Marrero v. Goldberg, 850 F.Supp.2d 418, 426 (S.D.N.Y. 2012) (quoting Polk Cnty v. Dodson, 454 U.S. 312, 317-18 (1981)). Here, Ms. Joyner contends that the Firm acted under color of law by denying her request to withdraw her Forms W-4. (ECF Nos. 1 ¶¶ 114-15; 18 at 15). “Courts have consistently held,” however, “that an employer's ‘conduct in withholding taxes from plaintiff's wages pursuant to its statutory duties' does not violate § 1983, because the employer is not a state actor when complying with its federally mandated duty to withhold taxes-an essential element of a § 1983 claim.” Joyner I Dismissal, 2021 WL 4296433, at *4. Accordingly, the Complaint does not plausibly allege that the Firm was acting under color of law.
This conclusion also extends to the Individual Defendants, who are private actors employed by a private entity. Ms. Joyner has made no colorable showing that these private parties “acted in concert with [a] state actor to commit an unconstitutional act.” Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 324 (2d Cir. 2002).
Accordingly, because Ms. Joyner has failed to allege that the Defendants were “acting under color of state law,” she has failed to state a claim under Section 1983.
Defendants argue that Ms. Joyner's Section 1985(3) claim fails as a matter of law because she has not: (i) plausibly alleged that Defendants' actions were motivated by a discriminatory animus; or (ii) specifically identified the constitutional rights that Defendants allegedly conspired to deny her. (ECF No. 18 at 17-19). Ms. Joyner responds that “the Firm went to extraordinary lengths to prevent [her] from breaking free from her enslavement on the [Firm] plantation.” (ECF No. 1 ¶ 113). To allege a conspiracy, Ms. Joyner discusses the Firm's internal communications to determine the feasibility of her request to terminate her Forms W-4, the denial of that request, her independent research indicating that the Firm reached incorrect legal conclusions, and her voluntary resignation from the Firm. (Id. ¶¶ 112-99). Ms. Joyner argues that she is entitled to relief pursuant to Section 1985(3) for violation of the Fourteenth Amendment, as “systematic racism and classism is [sic] alive and living in the culture of the [Firm] plantation.” (Id. ¶ 148)
“To state a civil rights conspiracy under § 1985(3), a plaintiff must allege: 1) a conspiracy; 2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and 3) an act in furtherance of the conspiracy; 4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States.” Gray, 927 F.2d at 73. Further, “there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action.” Mass v. McClenahan, 893 F.Supp. 225, 231 (S.D.N.Y. 1995) (quoting Griffin v. Breckenridge, 403 U.S. 88, 102 (1971)).
“Unsubstantiated, conclusory, vague or general allegations of a conspiracy to deprive constitutional rights are not enough to survive a motion to dismiss.” Williams v. Reilly, 743 F.Supp. 168, 173 (S.D.N.Y. 1990); see Studifin v. Firearms Control Section, 728 F.Supp. 990, 993 (S.D.N.Y. 1990) (“Even a pro se plaintiff must allege some factual basis to substantiate his conclusion that defendants conspired together to deprive him of his constitutionally protected interests.”). Here, Ms. Joyner asserts a loose collection of incidents which she claims illustrate a deliberate conspiracy by the Firm to deny her the opportunity to terminate her Forms W-4. Ms. Joyner argues that when she “initiated a conversation in an attempt to remedy the Firm's egregious misconduct[,]” Defendants began to conspire to deprive her of her federally protected rights and “went to extraordinary lengths to prevent [Ms. Joyner] from breaking free from enslavement on the [Firm] plantation.” (ECF No. 1 ¶¶ 44, 112-13). Ms. Joyner further argues that “[i]f a white colleague had made the same request, Defendants would have considered said request.” (ECF No. 20 at 16).
As mentioned above, “[i]t is well-settled that in order to maintain an action under Section 1985, a plaintiff must provide some factual basis supporting a meeting of the minds, such that defendants entered into an agreement, express or tacit, to achieve the unlawful end.” Morpurgo v. Inc. Vill. of Sag Harbor, 697 F.Supp.2d 309, 340 (E.D.N.Y. 2010) (internal citations omitted); see Wood v. Mut. Redevelopment Houses, Inc., No. 14 Civ. 7535 (AT), 2017 WL 11589600, at *6 (S.D.N.Y. Mar. 1, 2017). Here, Ms. Joyner offers no evidence of a meeting of the minds, overt action, or discriminatory animus aimed at depriving her of a federal constitutional right. The Court therefore finds Ms. Joyner has not alleged the existence of a conspiracy among the Defendants to deprive her of her federally protected rights.
Accordingly, the Court finds that Ms. Joyner has failed to state a claim under Section 1985(3).
3. Section 552a
Defendants argue that Ms. Joyner cannot state a Privacy Claim because Section 552a does not apply to private entities. (ECF No. 18 at 19-23). Ms. Joyner responds that the Firm violated her right to privacy when: “the Firm fraudulently filed information returns and published, divulged, and disclosed [Ms. Joyner's] private information and confidential statistical data, including amount and source of income[.]” (ECF No. 20 at 18). Ms. Joyner argues that this violation was exacerbated because she had not completed a Form 2678 (“Employer Appointment of Agent”) and Form 8655 (“Reporting Agent Authorization for Magnetic Tape/Electronic Filers”) and did not authorize the Firm to file those documents with the IRS. (Id.; see ECF No. 1 ¶¶ 20506).
According to the Privacy Act of 1974, “[i]t shall be unlawful for any federal, state, or local government agency to deny any individual any right, benefit, or privilege provided by law because of such individual's refusal to disclose his social security account number.” Logan v. Matveevskii, 57 F.Supp.3d 234, 276 n.15 (S.D.N.Y. 2014); see 5 U.S.C. § 552a. The private right of action in Section 552a is exclusively enforceable against agencies of the United States government. See Burch, 551 F.3d 122, 124 (2d Cir. 2008); Stoianoff, 107 F.Supp.2d at 444 (S.D.N.Y. 2000); Privacy Act of 1974, Pub. L. No. 93-579, 88 Stat. 1896 (1974). Accordingly, private individuals and private entities are not subject to suit under Section 552a. See Pennyfeather v. Tessler, 431 F.3d 54, 56 (2d Cir. 2005); see also Biton v. Cuomo, No. 9 Civ. 2831 (CBA), 2009 WL 3052650, at *2 (E.D.N.Y. Sept. 23, 2009).
Here, Ms. Joyner has only named a private entity (the Firm) and three private individuals (the Individual Defendants) as Defendants in this case. Because the Privacy Act does not apply to private individuals and private entities, Ms. Joyner has failed to state a claim under Section 552a.
Having considered Ms. Joyner's Complaint, the Court finds that she has failed to plausibly allege a Section 1983 Claim, Section 1985(3) Claim, or a Privacy Claim, and therefore respectfully recommends that Defendants' Motion be GRANTED on the alternative ground of failure to state a claim.
C. Judicial Notice Motion
Ms. Joyner asks the Court to take judicial notice of excerpts from the Internal Revenue Manual, defined terms, case law, statutes, and maxims of law. (ECF No. 36 at 1).
Ms. Joyner asks the Court to take judicial notice of the following excerpts from the Internal Revenue Manual: 4.10.7.2.8. IRS Publications, 1 I.R.M. Abr. & Ann. § 4.10.7.2.8 and 5.14.10.2. Payroll Deduction Agreements, 4 I.R.M. Abr. & Ann. § 5.14.10.2. (ECF No. 36 at 3).
Ms. Joyner asks the Court to take judicial notice of the following defined terms: COMPETENT WITNESS, Black's Law Dictionary (6th ed. 1990); EVIDENCE, Black's Law Dictionary (6th ed. 1990). (ECF No. 36 at 3).
Ms. Joyner asks the Court to take judicial notice of the following cases: Taylor v. Howard, 111 R.I. 527 (1973); People v. Leonard, 207 Cal.App. 2d 409 (Ct. App. 1962); Trinsey v. Pagliaro, 229 F.Supp. 647 (E.D. Pa. 1964); United States v. Lovasco, 431 U.S. 783 (1977); Holt v. United States, 218 U.S. 245 (1910); Gonzales v. Buist, 224 U.S. 126 (1912); Rabinowitz v. Kennedy, 376 U.S. 605 (1964); Bailey v. United States, 516 U.S. 137, (1995); Staples v. United States, 511 U.S. 600 (1994); Richardson v. United States, 526 U.S. 813 (1999); Hughes Aircraft Co. v. Jacobson, 525 U.S. 432 (1999); Bates v. United States, 522 U.S. 23 (1997); Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998); Gould v. Gould, 245 U.S. 151 (1917); United States v. Gonzales, 520 U.S. 1 (1997); United States v. Wiltberger, 18 U.S. 76, 95 (1820); Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991); Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999); Blum v. Yaretsky, 457 U.S. 991 (1982); Salinas v. United States, 522 U.S. 52, 64 (1997); Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990); Carlisle v. United States, 517 U.S. 416 (1996); Hale v. Henkel, 201 U.S. 43 (1906). (ECF No. 36 at 3-5).
Ms. Joyner asks the Court to take judicial notice of the following statutes: Privacy Act of 1974, Pub. L. No. 93-579, 88 Stat. 1896 (1974); 42 U.S.C. § 408(a)(8); 31 C.F.R. § 1.32(c); 26 U.S.C.A. § 3401; 26 C.F.R. § 31.3402(p)-1. (ECF No. 36 at 2-3).
Ms. Joyner asks the Court to take judicial notice of the following maxims of law: “A verbis legis non est recedendum” (i.e. From the words of the law there must be no departure); “Allegans Contraria Non Est Audiendus” (i.e. One making contradictory statements is not to be heard); “Expressio Unius Est Exclusio Alterius” (i.e. The expression of one thing is the exclusion of another); “Falsus in Uno Falsus in Omnibus” (i.e. False in one thing, false in everything); Fictio cedit veritati; fictio juris non est, ubi veritas (i.e. Fiction yields to truth. Where truth is, fiction of law does not exist); “Melius est recurrere quam malo currere” (i.e. It is better to recede than to proceed wrongly.); “Ubi Jus, Ibi Remedium” (i.e. Where there is a right there is a remedy). (ECF No. 36 at 6).
Federal Rule of Evidence 201 grants a court discretion to take judicial notice of a fact that is not subject to reasonable dispute because it: “(1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Braun v. United Recovery Sys., LP, 14 F.Supp.3d 159, 164 (S.D.N.Y. 2014) (citing Fed.R.Evid. 201(b)). Courts also have discretion to take judicial notice of legal authorities. See Panton v. United States, No. 89 Cr. 346 (SWK), 2008 WL 1720620, at *2 (S.D.N.Y. Apr. 9, 2008) (“Judicial Notices typically ask only that a Court take judicial notice of certain case law pursuant to Federal Rule of Evidence 201(d).”).
The Court has reviewed the citations in the Judicial Notice Motion, but none of them demonstrate that res judicata is inapplicable, or remedy the pleading defects in her claims. (See §§ IV.A-B, supra). Accordingly, the Court respectfully recommends that the Judicial Notice Motion be DENIED.
D. Leave to Amend
Ms. Joyner does not expressly request, in her Opposition or otherwise, leave to amend her Complaint further. (See ECF No. 20). Given Ms. Joyner's pro se status, the Court has considered whether leave to amend would be appropriate. Although the Complaint is Ms. Joyner's first pleading in this action, it is in fact her third attempt to assert the same claims in federal court against the same Defendants, claims which three federal judges have considered and deemed deficient. Under these circumstances, a further amendment is not warranted. See Binn v. Bernstein, No. 19 Civ. 6122 (GHW) (SLC), 2020 WL 4550312, at *34 (S.D.N.Y. July 13, 2020). Accordingly, the Court recommends that the Motion be granted with prejudice and without leave to amend.
V.CONCLUSION
For the reasons set forth above, the Court respectfully recommends that Defendants' Motion be GRANTED, that the Complaint be DISMISSED WITH PREJUDICE, and that the Judicial Notice Motion be DENIED.
Defendants shall promptly serve a copy of this Report and Recommendation on Ms. Joyner, and file proof of service on the docket.
The Clerk of the Court is respectfully directed to mail a copy of this Report and Recommendation to Ms. Joyner at the address below.
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 (14) 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), (d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Torres.
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), (d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985). If Ms. Joyner does not have access to cases cited in this Report and Recommendation that are reported on Westlaw, she may request copies from Defendants' counsel. See Local Civ. R. 7.2.