Opinion
6:20-CV-06030 EAW
2022-09-08
Amy Jacquelyn HARKINS, Plaintiff, v. CITIZENS BANK, Defendant.
Amy Jacquelyn Harkins, Rochester, NY, Pro Se. Geoffrey W. Millsom, Adler Pollock & Sheehan PC, Providence, RI, for Defendant.
Amy Jacquelyn Harkins, Rochester, NY, Pro Se. Geoffrey W. Millsom, Adler Pollock & Sheehan PC, Providence, RI, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, Chief Judge
INTRODUCTION
Pro se plaintiff Amy Jacquelyn Harkins ("Plaintiff") filed this action on January 13, 2020, asserting a claim of disability discrimination against defendant Citizens Bank ("Defendant" or "Citizens"). (Dkt. 1). On January 3, 2022, the Court granted Defendant's motion to dismiss Plaintiff's complaint, but granted Plaintiff leave to file an amended complaint within 45 days. (Dkt. 21).
Plaintiff filed her amended complaint on January 24, 2022. (Dkt. 22). Presently before the Court are three motions: (1) Plaintiff's motion for service by the United States Marshal (Dkt. 23); (2) Defendant's motion to dismiss the amended complaint (Dkt. 25); and (3) Plaintiff's motion for a settlement conference (Dkt. 28). For the following reasons, Defendant's motion to dismiss is granted, and Plaintiff's motions for service and for a settlement conference are denied.
BACKGROUND
The following facts are taken from Plaintiff's amended complaint (Dkt. 22), which the Court construes broadly. See Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) ("It is well settled that pro se litigants generally are entitled to a liberal construction of their pleadings, which should be read to 'raise the strongest arguments that they suggest.' " (citation omitted)). As required at this stage of the proceedings, the Court treats Plaintiff's allegations as true.
Plaintiff alleges that Defendant discriminated against her due to a "perceived mental and intellectual disability." (Dkt. 22 at 1, 6). On October 27, 2017, Plaintiff applied for a loan online which, as part of a "verification process," involved her buying iTunes cards from Walmart. (Id. at 8). The loan turned out to be a scam and, as a result, Plaintiff lost approximately $700. (Id. at 8-9, 34).
Plaintiff went to Citizens and spoke with an individual named "TJ" who said she could receive a refund for the lost money, but then Danielle, another individual who was "in the area" at that time, asked Plaintiff if she had proof that she had been scammed. (Id. at 10-11). Plaintiff alleges that Danielle told her that it was her fault and called her "stupid." (Id.). Plaintiff then asked TJ if she would receive a refund, and he told her he could not help her. (Id. at 11). Plaintiff explained that she was on camera at Walmart and they could call security for proof, and also that she would be without rent money for one month if she did not receive a refund. (Id. at 12). Plaintiff called the police, and when the police arrived they explained that they could not force Citizens to provide her a refund. (Id. at 12-13). Plaintiff was so upset that she missed her bus home. (Id. at 13). Plaintiff filed a police report with regard to the stolen money on November 1, 2017. (Id. at 13, 34).
On November 2, 2017, Plaintiff filled out a form, called an "Affidavit for Unauthorized Use" which she received from "someone in the Fraud Department" at Citizens. (Id. at 14, 35-36). Plaintiff alleges that this person "was not aware of [her] mental health diagnosis." (Id. at 14). Plaintiff alleges that Citizens "was going to initially give me a refund before perceiving me as having a mental or 'intellectual disability,' " and that "[b]ecause of this perception they discriminated against me in the Fraud Department." (Id. at 15).
Plaintiff further alleges that, starting in early June 2018, she was falsely accused of fraud. (Id.). Specifically, Plaintiff alleges that "Mary Silver said, on a recorded line, 'you signed those checks didn't you,' " in reference to two bad checks, which Plaintiff claims she did not write. (Id. at 16). Plaintiff alleges that she was told, previous to the call, that Citizens was not going to process her claim, and she feared she would be falsely arrested. (Id.).
Plaintiff wrote a letter to Citizens because she was upset that the Fraud Department did not grant her refund after they sent her the above-mentioned form. (Id. at 16-17). Plaintiff alleges that she informed Citizens of her mental disease in this complaint form, with the expectation that they would be compassionate, but they were not, and the Office of the Chairman wrote her a letter stating that she would not receive a refund because she had given out her personal information, including her PIN number. (Id. at 17-18). Plaintiff alleges that Citizens gave two of her cousins refunds, "with no questions asked," after they gave out their personal information to insurance companies. (Id. at 19-22).
Plaintiff next alleges that in early 2018, Citizens approved her for a $5,000 loan. (Id. at 23). Plaintiff "waited for the Bank to deposit my money," but "they never did" and claimed her loan request had been denied. (Id. at 23-24). Plaintiff alleges that an individual named "Pearce, or something like that" approved her for the loan. (Id. at 24). In support of this allegation, Plaintiff offers a letter, signed by her sister, stating that Plaintiff had informed her that she had been approved for a $5,000 loan, but the bank did not grant her the loan, which Plaintiff thought was unfair. (Id. at 37).
Finally, Plaintiff claims that on October 5, 2018, her case manager from East House, Emily Kurgan, was contacted by a representative from "Lifespan," who "claimed to be advocating for Citizens Bank." (Id. at 25, 38). Plaintiff alleges that she did not give this representative permission to speak with her case manager. (Id. at 25-27). Plaintiff's sister was present for this conversation and can confirm it occurred. (Id. at 25-26). Plaintiff's case manager informed Plaintiff that she received a call from the Lifespan representative, who informed her that Plaintiff had an intellectual disability and could not handle her own finances. (Id. at 27-28). Plaintiff also alleges that in 2018, Defendant was sent a letter from Legal Advocates for Seniors and People with Disabilities, which stated that Plaintiff was disabled. (Id. at 28). Plaintiff alleges that Defendant therefore revealed her account information to Lifespan, who assists people who need financial assistance. (Id. at 32).
Plaintiff alleges that had she received the $5,000 loan, she could have paid off credit card balances. (Id. at 30-31). She seeks $50,000 in damages. (Id. at 31). She further asks that the Court obtain all phone records between her and Defendant. (Id. at 32-33).
DISCUSSION
I. Motion for Service
In connection with her amended complaint, Plaintiff has filed an "Application for Order Directing Service by U.S. Marshal." (Dkt. 23). The docket reflects that Plaintiff served Defendant with her initial complaint on April 16, 2021. (See Dkt. 12). Further, Defendant has appeared in the action and has filed a motion to dismiss, and it has not raised service as a defense to the amended complaint. Accordingly, service of the amended complaint by the electronic docket is sufficient, and Plaintiff's motion for service is denied as moot.
II. Motion to Dismiss
"In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint." DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). A court should consider the motion by "accepting all factual allegations as true and drawing all reasonable inferences in favor of the plaintiff." Trs. of Upstate N.Y. Eng'rs Pension Fund v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016). To withstand dismissal, a plaintiff must set forth "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "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." Turkmen v. Ashcroft, 589 F.3d 542, 546 (2d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)).
"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (internal quotations and citations omitted). "To state a plausible claim, the complaint's '[f]actual allegations must be enough to raise a right to relief above the speculative level.' " Nielsen v. AECOM Tech. Corp., 762 F.3d 214, 218 (2d Cir. 2014) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). While the Court is "obliged to construe [pro se] pleadings liberally, particularly when they allege civil rights violations," McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004), even pleadings submitted pro se must satisfy the plausibility standard set forth in Iqbal and Twombly, see Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) ("Even after Twombly, though, we remain obligated to construe a pro se complaint liberally.").
Defendant argues that Plaintiff's amended complaint must be dismissed for the following reasons: (1) Plaintiff lacks standing to bring a claim under the ADA; (2) Plaintiff has failed to state a claim for discrimination under the ADA; (3) Plaintiff lacks standing and has failed to state a valid claim for discrimination under state law; and (4) Plaintiff has failed to plead the elements of a defamation claim. (Dkt. 25-1).
A. Disability Discrimination Claim
Title III of the Americans with Disabilities Act, 42 U.S.C. § 12182 ("Title III"), prohibits discrimination on the basis of disability in places of public accommodation. A bank is a place of public accommodation within the meaning of the ADA. See 42 U.S.C. § 12182(7)(F). To establish a Title III discrimination claim, a plaintiff must show "(1) that she is disabled within the meaning of the ADA; (2) that defendants own, lease, or operate a place of public accommodation; and (3) that defendants discriminated against her by denying her a full and equal opportunity to enjoy the services defendants provide." Camarillo v. Carrols Corp., 518 F.3d 153, 156 (2d Cir. 2008). "The ADA defines a disability as '(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment (as described in paragraph (3)).' " Alexiadis v. N.Y. Coll. of Health Professions, 891 F. Supp. 2d 418, 428 (E.D.N.Y. 2012) (quoting 42 U.S.C. § 12102(1)). "A claim of disability discrimination under the NYSHRL is governed by the same legal standards as govern federal ADA claims." Brizzi v. Utica Mutual Ins. Co., 529 F. Supp. 3d 44, 56 (E.D.N.Y. 2021) (alteration omitted) (quoting Graves v. Finch Pruyn & Co., 457 F.3d 181, 184 n.3 (2d Cir. 2006)).
Plaintiff's disability discrimination claim suffers from the same deficiencies it did in her original complaint. That is, Plaintiff has failed to plausibly allege that Defendant regarded her as having an impairment that substantially limits one or more of her major life activities. Instead, Plaintiff alleges, in conclusory fashion, that Defendant regarded her as having an unspecified "perceived mental and intellectual disability," and the amended complaint is devoid of facts suggesting that Defendant's refusal to refund the $700, or to provide her a $5,000 loan, were based on a qualifying disability within the meaning of the statute. Plaintiff alleges that she has cousins, who also gave out personal information but received a refund from Defendant; however, she has alleged no facts tying the purported refusal to give her a refund with an alleged disability; to the contrary, like she did in her original complaint, Plaintiff alleges that Defendant's refusal to refund the $700 occurred before she disclosed any mental disability. Accordingly, Plaintiff has failed to state a plausible claim for violation of the ADA, or any claim for disability discrimination sounding in state law, and therefore Plaintiff's disability discrimination claim is dismissed with prejudice.
B. Plaintiff's Defamation Claim
Plaintiff next alleges that Defendant defamed her by falsely accusing her of fraud in early June 2018, including that she wrote and signed "two bad checks." (See, e.g., Dkt. 22 at 15-16; Dkt. 27 at 6). "Defamation, consisting of the twin torts of libel and slander, is the invasion of the interest in a reputation and good name." Albert v. Loksen, 239 F.3d 256, 265 (2d Cir. 2001) (quoting Hogan v. Herald Co., 84 A.D.2d 470, 446 N.Y.S.2d 836, 839 (4th Dep't 1982)). "Generally, spoken defamatory words are slander; written defamatory words are libel." Id. Plaintiff alleges that an individual named Mary Silver "said" on a recorded line the defamatory statement in reference to the bad checks, and therefore her claim is for slander. Having determined, for the reasons set forth above, that Plaintiff has not asserted a viable federal claim, the Court considers whether it should exercise supplemental jurisdiction over her state law slander claim.
Under 28 U.S.C. § 1367(a), "in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." A district court may decline to exercise supplemental jurisdiction over a claim under a number of circumstances, including where "the district court has dismissed all claims over which it has original jurisdiction[.]" Id. § 1367(c)(3). "In general, where the federal claims are dismissed before trial, the state claims should be dismissed as well." Delaney v. Bank of Am. Corp., 766 F.3d 163, 170 (2d Cir. 2014) (internal citations and quotation marks omitted); see also Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 349-50, n.7, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988) ("[I]n 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."). Given the early stage of the proceedings, and the fact that the remaining cause of action—slander—involves a quintessential area of state law, the Court finds it appropriate to decline to exercise supplemental jurisdiction. Accordingly, Plaintiff's slander claim is dismissed without prejudice.
Although Defendant does not raise the issue, Plaintiff's slander claim appears be barred by the one-year statute of limitations for such claims, which begins to accrue "on 'the date of the publication or utterance of the allegedly slanderous statement.' " See Uddoh v. United Healthcare, No. 16-cv-1002 (BMC) (LB), 2017 WL 563973, at *4 (E.D.N.Y. Feb. 10, 2017) (quoting Cullin v. Lynch, 113 A.D.3d 586, 979 N.Y.S.2d 92, 93-94 (2d Dep't 2014)); see also N.Y. C.P.L.R. § 215(3). Plaintiff alleges that the statements at issue occurred in "early June 2018" (see Dkt. 22 at 15-16), and she did not file her complaint until well over one year later, on January 13, 2020 (see Dkt. 1). However, given that Defendant did not raise this argument, and the Court has declined to exercise supplemental jurisdiction over Plaintiff's slander claim, the Court does not reach this issue.
"A dismissal for lack of jurisdiction does not operate on the merits and therefore should not issue with prejudice." Seaweed, Inc. v. DMA Prod. & Design & Mktg. LLC, 219 F. Supp. 2d 551, 554 (S.D.N.Y. 2002).
III. Motion for Settlement Conference
Plaintiff has also filed a motion for a settlement conference (Dkt. 28), requesting that the Court order Defendant to participate in a settlement conference, for the following reasons: so that Plaintiff may obtain an apology from Defendant; to negotiate a fair settlement amount; to close the case; and to obtain justice. (Id. at 1-2; see also Dkt. 30). Defendant opposes Plaintiff's motion, arguing that it is premature given the pending motion to dismiss and because it believes that Plaintiff's claims are baseless. (Dkt. 29).
As explained above, the Court has dismissed Plaintiff's amended complaint. Accordingly, her motion for a settlement conference is denied as moot.
CONCLUSION
For the reasons set forth above, Defendant's motion to dismiss (Dkt. 25) is granted, and Plaintiff's amended complaint is dismissed. Further, Plaintiff's motions for service by the United States Marshal (Dkt. 23) and for a settlement conference (Dkt. 28) are denied.
SO ORDERED.