Opinion
03 Civ. 3690 (MBM)
May 14, 2004
SAUL D. ZABELL, ESQ., Zabell Associates, LLP, Farrningdale, NY, for Plaintiff
BARBARA M. ROTH, ESQ., LAUREN G. KRASNOW, ESQ., Torys LLP, New York, NY, for Defendant
OPINION AND ORDER
Plaintiff Mercedes Malatesta filed a timely complaint against Credit Lyonnais North America, Inc., which she identified as her former employer, alleging age and race discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (2000) ("Title VII"); the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. ("ADEA"); the New York State Human Rights Law, N.Y. Exec. Law § 296 et seq. (McKinney 2003) ("NYSHRL"); and the New York City Human Rights Law, N.Y.C. Admin. Code. § 8-101 et seq. ("NYCHRL"). Malatesta then discovered that the proper defendant was Credit Lyonnais, not Credit Lyonnais North America, Inc., and she amended her complaint by substituting Credit Lyonnais as the defendant. Credit Lyonnais now seeks to dismiss Malatesta's amended complaint pursuant to Fed.R.Civ.P. 12(b)(6), arguing that her federal claims against Credit Lyonnais are time-barred and that supplemental jurisdiction over her state claims is thus no longer proper. For the reasons set forth below, Credit Lyonnais's Rule 12(b)(6) motion is converted into a motion for summary judgment, and that motion is denied.
The caption in this action is deemed amended to reflect that: the true defendant is Credit Lyonnais, rather than Credit Lyonnais North America, Inc.
I.
The following facts are either undisputed or presented in the light most favorable to Malatesta.Mercedes Malatesta worked for Credit Lyonnais as an Assistant Treasurer and then a Commercial Assistant from November 1998 to July 2002, when her employment was terminated. (Amended Complaint ("Am. Compl.") ¶¶ 13, 16, 33) Malatesta then filed a charge with the United States Equal Employment Opportunity Commission ("EEOC"), alleging unlawful discrimination based on race and age in violation of Title VII and the ADEA. (Affirmation of Lauren G. Krasnow ("Krasnow Aff."), Ex. A) In this charge, Malatesta identified "Credit Lyonnais" as her former employer. (Id.) Credit Lyonnais then submitted a position statement to the EEOC in which it identified itself as "Credit Lyonnais — U.S. Branches ('CLUSB')" and described itself as "a branch of Credit Lyonnais, S.A." (Krasnow Aff., Ex. B, at 1-2) On March 13, 2003, the EEOC dismissed Malatesta's charge and sent Malatesta a notice of her right to file a lawsuit within 90 days of receiving the notice. (Krasnow Aff., Ex. C) In this right-to-sue letter, the EEOC identified "Credit Lyonnais" as the respondent to the charge. (Id.)
Malatesta filed her first complaint with this court on May 22, 2003, within 90 days of her receipt of the EEOC notice. (See Complaint) The sole defendant named in that complaint was Credit Lyonnais North America, Inc., which Malatesta identified as her employer. (Id. ¶ 13) Before filing the complaint, Malatesta's attorneys had searched the database of entities maintained by the Division of Corporations of the New York State Department of State, and discovered that neither "Credit Lyonnais" nor "Credit Lyonnais — U.S. Branches" was listed as a business entity in the database. (Affirmation of Saul D. Zabell ("Zabell Aff.") ¶ 3) The database did list six other names that started with "Credit Lyonnais"; one of these entities was "Credit Lyonnais North America, Inc.", a corporation whose principal executive office is located at 1301 Avenue of the Americas, New York, New York, the same address as Credit Lyonnais's principal place of business. (Zabell Aff., Ex. A; Amended Complaint ("Am. Compl.") ¶ 8) In fact, Credit Lyonnais North America, Inc., is a wholly owned subsidiary of Credit Lyonnais that has no employees and never employed Malatesta. (Affidavit of John J. Quinn ¶ 3)
On May 29, 2003, Malatesta sent by certified mail a notice of lawsuit, request for waiver of service of summons, two waivers of service of summons, and copy of the complaint to Credit Lyonnais North America, Inc., at 1301 Avenue of the Americas. (Zabell Aff. ¶ 4;id., Ex. B) Malatesta's attorneys received a return receipt on June 3, 2003, showing that these documents had been delivered, but Credit Lyonnais North America, Inc., never returned a waiver of service. (Zabell Aff. ¶¶ 5-6; id., Ex. C) On August 13, Malatesta's process server effected personal service upon the New York State Secretary of State by serving two copies of the summons and complaint in this case. (Zabell Aff. ¶ 9; KrasnowAff., Ex. D)
On September 15, 2003, Saul Zabell, Malatesta's attorney, contacted Barbara M. Roth, the attorney who had represented Credit Lyonnais before the EEOC, and told her that an initial conference in this case had been scheduled for September. 19, 2003. (Zabell Aff. ¶ 11; Affirmation of Barbara M. Roth ("Roth Aff.") ¶ 2) Roth informed Zabell that neither she nor Credit Lyonnais was aware of service of a summons and complaint by Malatesta. (Zabell Aff. ¶ 11; Roth Aff. ¶ 2) Zabell then faxed a courtesy copy of the summons and complaint to Roth, who observed that the named defendant was Credit Lyonnais North America, Inc., not Credit Lyonnais. (Roth Aff. ¶ 4) Zabell made a follow-up phone call to Roth two weeks later, and Roth told him that Credit Lyonnais North America, Inc., would be making a motion to dismiss for failure to name the correct defendant. (Zabell Aff. ¶ 13) Malatesta then filed her amended complaint on October 1, 2003, naming Credit Lyonnais, not Credit Lyonnais North America, Inc., as the defendant. (Zabell Aff. ¶ 17) On October 24, 2003, Credit Lyonnais moved to dismiss the amended complaint.
II.
Although Credit Lyonnais brings this motion pursuant to Fed.R.Civ.P. 12(b)(6), it must be treated as a summary judgment motion because I must consider matters outside the original pleadings in order to evaluate the merits of the motion. See Fed.R.Civ.P. 12(b). Whenever a district court seeks to convert a motion to dismiss to one for summary judgment, the essential inquiry is whether the parties should reasonably have recognized the possibility that the motion might be converted or whether they were taken by surprise and deprived of reasonable opportunity to present material pertinent to a summary judgment motion.See Gurary v. Winehouse, 190 F.3d 37, 43 (2d Cir. 1999).Here, Credit Lyonnais submitted two affirmations, one affidavit, and five exhibits with its motion, and Malatesta submitted one affirmation and five exhibits with her response. "In light of these submissions, neither party can claim to have been unaware that this court could consider material outside the pleadings or that it lacked notice that the motion to dismiss might be converted into a motion for summary judgment."Hutnik v. Security Messenger Serv. Inc. 98 Civ. 6481 (MBM), 1999 WL 619592, at *3 (S.D.N.Y. Aug. 16, 1999). See also Gurary, 190 F.3d at 43 (explaining that plaintiff could not have been surprised by conversion of Rule 12(b)(6) motions when he submitted an affidavit in response to the motions). Because both parties presented extrinsic material to the court and had a reasonable opportunity to present all material pertinent to the question of whether the amended complaint relates back to the original complaint, Credit Lyonnais's motion will be treated as a summary judgment motion.See Tewksbury v. Ottowav Newspapers, 192 F.3d 322, 325 n. 1 (2d Cir. 1999).
III.
A claim under Title VII or the ADEA is timely only if it is filed within 90 days of the claimant's receipt of a right-to-sue letter from the EEOC. Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 525 (2d Cir. 1996). Malatesta did not name Credit Lyonnais as a defendant in this case until she filed her amended complaint on October 1, 2003, more than six months after the EEOC sent her a right-to-sue letter and more than three months after her time to sue Credit Lyonnais had expired. According to Credit Lyonnais, Malatesta's amended complaint must be dismissed as time-barred because Malatesta failed to sue Credit Lyonnais within the relevant 90-day period. (Defendant's Memorandum of Law ("Def. Memo.") at 3-4)
Malatesta does not dispute that she should have named Credit Lyonnais in her original complaint instead of Credit Lyonnais North America, Inc., but she argues that her amended complaint should not be dismissed because it "relates back" to her original complaint. (Plaintiff's Memorandum of Law in Opposition ("Pl. Memo.") at 10-13) When a plaintiff amends her complaint to include an additional defendant after the statute of limitations has run, the amended complaint is not time-barred as long as it "relates back" to a timely-filed complaint. VKK Corp. v. Nat'l Football League, 244 F.3d 114, 128 (2d Cir. 2001). "The goal of relation-back principles is 'to prevent parties against whom claims are made from taking unjust advantage of otherwise inconsequential pleading errors to sustain a limitations claim.'" Id. (quoting Advanced Magnetics. Inc. v. Bayfront Partners. Inc., 106 F.3d 11, 19 (2d Cir. 1997)).
Under Fed.R.Civ.P. 15(c), Malatesta's amended complaint can be deemed to relate back to her original complaint if three requirements are met: (1) both complaints arise out of the same conduct, transaction, or occurrence; (2) Credit Lyonnais was omitted from the original complaint because of a mistake about the identity of the proper party; and (3) Credit Lyonnais would not be prejudiced by the delay. Id. Credit Lyonnais does not dispute that the first and third requirements are met in this case, but it argues that Malatesta's amended complaint does not satisfy the second requirement because Malatesta named Credit Lyonnais North America, Inc., in her original complaint by choice, not by mistake. See Cornwell v. Robinson, 23 F.3d 694, 705 (2d Cir. 1994) (no relation-back where plaintiff's amended complaint added individual defendants whose identities she knew at time of original complaint). According to Credit Lyonnais, Malatesta knew that her employer was Credit Lyonnais, not Credit Lyonnais North America, Inc., because she identified Credit Lyonnais as her employer in her EEOC charge and because the EEOC listed "Credit Lyonnais" as the respondent in the right-to-sue letter. (Def. Memo, at 6) Because Credit Lyonnais presents no other evidence to suggest that Malatesta knew that her employer was not Credit Lyonnais North America, Inc., the question is whether Malatesta's correct identification of "Credit Lyonnais" in her EEOC charge is enough to support the inference that she knew the correct name of her employer at the time she filed her original complaint. Based on this record, I cannot conclude that Malatesta actually knew that her employer's full and official name was Credit Lyonnais and not Credit Lyonnais North America, Inc.
As Malatesta points out, the EEOC's identification of Credit Lyonnais as the respondent to Malatesta's EEOC charge is not particularly probative because the EEOC presumably just repeated the employer name that Malatesta used in her charge. (Pl. Memo, at 11-12 n. 6)
First, as Malatesta points out, the position statement Credit Lyonnais submitted to the EEOC in response to her charge creates some confusion about the proper name for Credit Lyonnais. In this position statement, Credit Lyonnais identified itself as "Credit Lyonnais — U.S. Branches ('CLUSB')" and described itself as "a branch of Credit Lyonnais, S.A." (Krasnow Aff., Ex. B, at 1-2) Based on this position statement, it would be reasonable for Malatesta and her attorneys to conclude that identifying her former employer as simply "Credit Lyonnais" would be inaccurate, or at least incomplete. Second, Malatesta's attorneys attempted to ascertain the proper name for Credit Lyonnais by searching the database for the Division of Corporations/ the absence of Credit Lyonnais from that database also suggested that Credit Lyonnais., would not have been the correct name to use in the complaint. Based on their search of the database, Malatesta's attorneys reasonably but incorrectly concluded that Credit Lyonnais North America, Inc., which had the same address as Credit Lyonnais, was the full and proper name of Malatesta's employer. It was reasonable for them so to conclude also because the name "Credit Lyonnais" contains no reference to a corporate or other limited liability entity, even though Credit Lyonnais is a corporation authorized to do business in New York (see Am. Compl. ¶ 7); there was thus every reason to believe that "Credit Lyonnais" was simply a short and informal reference to Credit Lyonnais North America, Inc. Finally, Malatesta's original complaint stated that Credit Lyonnais North America, Inc., was her employer (Compl. ¶ 13), which reveals that she was genuinely confused about the correct name of her employer and believed that she had been employed by Credit Lyonnais North America, Inc. Cf. Corcoran v. N.Y. Power Auth. 935 F. Supp. 376, 393 (S.D.N.Y. 1996) (finding that plaintiff knew identity of her employer at time of original complaint when original complaint properly identified employer).
In New York, the name of a domestic or foreign corporation must contain the word "corporation", "incorporated", "limited", or an abbreviation of one of these words. N.Y. Bus. Corp. § 301(a) (1).
Because it does not appear from the evidence that Malatesta actually knew that her employer's full and proper name was Credit Lyonnais when she filed her original complaint, I reject Credit Lyonnais's characterization of Malatesta's decision to sue Credit Lyonnais North America, Inc., as a choice rather than a mistake. I note also that Credit Lyonnais has not explained why Malatesta would choose to sue Credit Lyonnais North America, Inc., instead of Credit Lyonnais when the result of that "choice" is a suit against a party from whom she could obtain no possible relief. Malatesta made a mistake when she sued Credit Lyonnais North America, Inc., in her initial complaint, but this mistake is relatively inconsequential and does not warrant the dismissal of her lawsuit. Accordingly, Malatesta's amended complaint, naming Credit Lyonnais as the defendant, relates back to the original complaint that named Credit Lyonnais North America, Inc., and thus is not time-barred.
IV.
Credit Lyonnais raises two additional arguments, neither of which need be addressed at length. First, Credit Lyonnais presents in a footnote the following hypothetical scenario: Malatesta correctly named Credit Lyonnais in her original complaint but nonetheless served the original complaint on Credit Lyonnais North America, Inc., instead of Credit Lyonnais. (Def. Memo, at 7 n. 7) In this situation, Credit Lyonnais argues, Malatesta's complaint would have to be dismissed because she did not serve it on Credit Lyonnais within 120 days, as required by Fed.R.Civ.P. 4(m). (Id.) However, Malatesta concedes that she did not identify Credit Lyonnais as the defendant in her original complaint, and I do not find that Malatesta's original complaint properly named Credit Lyonnais. Accordingly, Credit Lyonnais's scenario — an original complaint correctly naming Credit Lyonnais — remains hypothetical, and I need not decide what Malatesta's Fed.R.Civ.P. 4(m) obligations to Credit Lyonnais would have been in that situation.Second, Credit Lyonnais asks this court not to exercise supplemental jurisdiction over Malatesta's state law claims. (Def. Memo, at 7-9) However, Credit Lyonnais's argument presupposes the dismissal of Malatesta's federal claims, which has not occurred. Because Malatesta's federal claims are still before this court, this court will continue to exercise supplemental jurisdiction over her state law claims. See 28 U.S.C. § 1367(a).
* * *
For the reasons stated above, Credit Lyonnais's Rule 12(b)(6) motion is converted into a summary judgment motion, and that motion is denied.
SO ORDERED.