Opinion
01 CIV. 5928 (DLC)
November 21, 2001
MEMORANDUM OPINION AND ORDER
Plaintiff pro se Murad Sadrudin Mithani ("Mithani") filed this action on June 28, 2001, alleging discrimination based on race and national origin in violation of his rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 (e) et seq. ("Title VII"). Defendant J.P. Morgan Chase Co. ("J.P. Morgan") moves to dismiss the complaint under Rule 12(b)(1), Fed.R.Civ.P., on the grounds that this Court lacks subject matter jurisdiction, and under Rule 12(b)(6), Fed.R.Civ.P., for failure to state a claim. For the following reasons, defendant's motion is granted.
BACKGROUND
The facts as alleged by the plaintiff are as follows. Mithani is a British citizen who resides in England. He identifies himself as Asian of Indian/Pakistani national origin. In January 1998, Mithani began temporary work as an operations clerk at J.P. Morgan's London office. In March 1998, Mithani was promoted to a regular position with J.P. Morgan. Plaintiff resigned his employment on August 29, 1999. Throughout his employment with J.P. Morgan, Mithani worked in London.
On May 14, 2001, Mithani filed a Charge of Discrimination with the Chicago District Office of the Equal Employment Opportunity Commission ("EEOC") against J.P. Morgan. On or about May 31, 2001, Mithani received a right to sue letter from the EEOC.
DISCUSSION
Title VII
Because Mithani is not a United States citizen and is suing regarding foreign employment, he has failed to state a claim under Title VII. "To bring a Title VII claim based on employment in a foreign country, an individual must be a United States citizen." Ghandour v. American Univ. of Beirut, No. 97 Civ. 7741 (DC), 1998 WL 856114, at *1 (S.D.N.Y. Dec. 9, 1998). See also Greenbaum v. Svenka Handelsbanken, NY, 979 F. Supp. 973, 983 (S.D.N.Y. 1997). Specifically, 42 U.S.C. § 2000e(f) provides that "[w]ith respect to employment in a foreign country, such term ("employee"] includes an individual who is a citizen of the United States." 42 U.S.C. § 2000e(f) (emphasis supplied). Further, 42 U.S.C. § 2000e-l(a) states: "This subchapter shall not apply to an employer with respect to the employment of aliens outside any State . . . ." 42 U.S.C. § 2000e-l(a).
Since the complaint fails to state a claim it is unnecessary to pursue whether it is also so demonstrably without substance as to merit dismissal for lack of subject matter jurisdiction. Lyndonville Sav. Bank Trust Co. v. Lussier, 211 F.3d 697, 701 (2d Cir. 2000).
Additional Claims
In his memorandum of law in opposition to the motion to dismiss, Mithani asserts that he is also bringing a claim against J.P. Morgan for intentional infliction of emotional distress under New York State law. Assuming that there is subject matter jurisdiction over this suit, the Court would nonetheless decline to exercise supplemental jurisdiction over his state law claims. See 28 U.S.C. § 1367 (c); Grace v. Rosenstock, 228 F.3d 40, 55 (2d Cir. 2000).
In his opposition papers, Mithani also requests permission, "[i]f necessary," to amend the complaint to include a claim under 42 U.S.C. § 1981 ("Section 1981"). By its terms, however, Section 1981 applies to "[a]ll persons within the jurisdiction of the United States." 42 U.S.C. § 1981 (a) (emphasis supplied). Because Mithani is a citizen and resident of England, and brings these allegations based on his employment in England, he is not "within the jurisdiction of the United States" for purposes of Section 1981. See Gantchar v. United Airlines, Inc., No. 93 C 1457, 1995 WL 798600, at *2 (N.D. Ill. Apr. 21, 1995); Theus v. Pioneer Hi-Bred Int'l. Inc., 738 F. Supp. 1252, 1254 (S.D. Iowa 1990); see generally Ramos v. Flagship Int'l, Inc., 612 F. Supp. 148, 151 (E.D.N.Y. 1985) (language of Section 1981 encompasses "all persons within the United States"). Since Mithani's amendment would be futile, his request to amend the complaint to add a claim under Section 1981 is denied. See Koehler v. Bank of Bermuda (New York) Ltd., 209 F.3d 130, 138 (2d Cir. 2000).
Amended Complaint
On November 1, 2001, after J.P. Morgan had moved to dismiss the complaint, Mithani filed an amended complaint. It must, also be dismissed.
Plaintiff alleges that, if he were still working for J.P. Morgan, he would now be working in New York, and that venue for his Title VII claim is therefore in the Southern District of New York. Title VII's venue provisions do not create a Title VII claim for non-United States citizens working outside of the United States. See 42 U.S.C. § 2000e-5 (f)(3). For the reasons already discussed, Mithani fails to state a claim under Title VII.
The amended complaint also includes a claim for intentionaV infliction of emotional distress under New York State law. As discussed above, even if the Court has subject matter jurisdiction over this case, it declines to exercise supplemental jurisdiction over the state law claim.
CONCLUSION
For the reasons stated, defendant's motion to dismiss the complaint is granted. Plaintiff's amended complaint is also dismissed, and plaintiff's request to further amend the complaint is denied. Defendant's request for costs and attorney's fees is denied. The Clerk of Court shall close the case.
SO ORDERED: