Summary
construing pro se plaintiff's "Poor Person's Petition" as a motion for reconsideration
Summary of this case from Sec. & Exch. Comm'n v. AlyOpinion
01 Civ. 2343 (WK).
July 14, 2003.
Joan Pearson-Fraser, Pro Se.
A. Jonathan Trafimow, Esq., Matthew T. Miklave, Esq., Epstein Becker Green, P.C., New York, NY, Attorneys for Defendant.
ORDER
Plaintiff Joan Pearson-Fraser (hereinafter "Plaintiff"), proceeding pro se, brought this employment discrimination action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., and the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. She alleged that Defendant Bell Atlantic (now Verizon Communications, Inc.) (hereinafter "Defendant" or "Verizon") discriminated against her on the basis of her race, sex, age, national origin, and disability, and further claimed that she was the subject of discriminatory retaliation.
On August 1, 2002, we referred the case to Magistrate Judge Francis for case management purposes. We also asked Judge Francis to issue reports and recommendations with respect to any dispositive motions which might arise over the course of the litigation, such as Verizon's motion to dismiss. Judge Francis issued a Report and Recommendation ("Report") on October 15, 2002, wherein he recommended that the motion to dismiss be granted and that (a) the Plaintiff's race, gender, age, and disability discrimination claims should be dismissed with prejudice and (b) the retaliation claim should be dismissed without prejudice. The Plaintiff filed objections to that Report.
In January 2003, we adopted Judge Francis' initial Report in part and dismissed the Plaintiff's race, gender, age, disability, and national origin discrimination claims with prejudice. See Pearson-Fraser v. Bell Atlantic (S.D.N.Y. Jan. 6, 2003) No. 01 Civ. 2343 (WK), 2003 WL 43367, at *1-*2. However, we remanded the matter to Judge Francis in part for clarification. We asked Judge Francis to clarify "whether he recommends that the Plaintiff's retaliation claim should be dismissed in light of the ordinary rules of notice pleading and, if he does so recommend, whether such a dismissal should be with or without prejudice." See id. at *4.
Thereafter, Judge Francis issued a Supplemental Report and Recommendation ("Supplemental Report"). In that thoughtful Supplemental Report, Judge Francis determined that the Plaintiff s complaint "fails to give the defendant `fair notice of what the plaintiff's [retaliation] claim is and the grounds upon which it rests.'" (Supplemental Report at 2) (quotingSwierkiewicz v. Sorema, N.A. (2002) 534 U.S. 506, 512). As such, he recommended that we should dismiss the Plaintiff's retaliation claim because "[i]t is too vague even to meet the requirements of Rule 8(a) of the Federal Rules of Civil Procedure. . . ." (Supplemental Report at 2.) He further recommended that the dismissal of the retaliation claim should be without prejudice since the Plaintiff "has not previously been directed to remedy any defects in the pleading of her retaliation claim in particular, and it is at least conceivable that she could submit a complaint that is sufficiently specific to provide fair notice to the defendant." (Supplemental Report at 2-3.)
On February 27, 2003, we issued a Memorandum and Order wherein we adopted Judge Francis' Supplemental Report in its entirety.Pearson-Fraser v. Bell Atlantic (S.D.N.Y. Feb. 27, 2003) No. 01 Civ. 2343 (WK), 2003 U.S. Dist. LEXIS 3309, at *4. As such, we dismissed the Plaintiff's remaining claim for retaliation without prejudice. Id. We also held that the Plaintiff could file a Third Amended Complaint within sixty (60) days of the date of that Memorandum and Order. See id. We directed the Clerk of the Court to close the case if the Plaintiff failed to comply with our order within the time allowed. Id. at *5.
The Plaintiff did not file a Third Amended Complaint. Accordingly, the Clerk's office closed the case on June 12, 2003.
On July 10, 2003, Verizon's counsel appropriately forwarded to this Court a document, dated June 26, 2003, which he received from the Plaintiff. (See Letter from A. Jonathan Trafimow to Court of 7/10/03, Ex. A.) The document, entitled "Poor Person's Petition" and "Motion and Discussion," is not a model of clarity. The so-called "Motion," according to its own terms, appears to be a "Resubmission and Rewriting of Prior Submission dated Oct. 27, 2002." (Id.) As the "Motion" acknowledges, the latter October 2002 submission represented the Plaintiff s Objections to Judge Francis' Report. (See Docket No. 17.) Accordingly, her current "Motion" appears to constitute objections to that Report.
Along with her "Motion," the Plaintiff also submitted a form entitled "Consent To Proceed Before United States Magistrate." That form appears to be signed by both the Plaintiff and Verizon's counsel. The Plaintiff also submitted a similar form with the same signatures in October 2002. However, Verizon's counsel has repeatedly informed us that he never signed either of these forms. We thus note that, despite the supposed signatures on these forms, not all the parties have consented to proceed before a Magistrate Judge in all future respects. We caution the Plaintiff that she should not sign the name of Verizon's counsel on any future court documents.
We must read the submissions "of a pro se plaintiff liberally and interpret them to `raise the strongest arguments that they suggest.'" McPherson v. Coombe (2d Cir. 1999) 174 F.3d 276, 280 (quoting Burgos v. Hopkins (2d Cir. 1994) 14 F.3d 787, 790). As such, we construe the Plaintiff's current "Motion" as a motion for reconsideration of our previous orders adopting Judge Francis' Report and Supplemental Report as well as a motion, brought pursuant to Rule 60 of the Federal Rules of Civil Procedure, for relief from those decisions.
Nothing in the Plaintiff's Motion persuades us that we must reconsider those decisions or grant Rule 60 relief from our January 6, 2003, Memorandum and Order adopting Judge Francis' Report in part and our February 27, 2003, Memorandum and Order adopting Judge Francis' Supplemental Report. Accordingly, we deny the Plaintiff's Motion.
The Plaintiff's Motion does, however, raise one serious concern. In our previous order, we granted the Plaintiff sixty (60) days from the date of our February 27, 2003, Memorandum and Order to file a Third Amended Complaint. We then sent that order to the Plaintiff's address in New York. However, the Plaintiff's Motion indicates that she has relocated to Florida and the docket reflects a notice of a change of address for the Plaintiff which was apparently written in March 2003 and filed with this Court in April 2003. (See Docket No. 21.) As a consequence, it is not entirely clear whether the Plaintiff ever received a copy of our February 27, 2003, Memorandum and Order informing her that she could file a Third Amended Complaint within sixty (60) days thereof.
In light of this consideration and the Plaintiff's status as apro se litigant, we reopen this case. We will send a copy of this order as well as our February 27, 2003, Memorandum and Order to the Plaintiff s address in Florida. The Plaintiff may, if she so chooses, file a Third Amended Complaint within sixty (60) days of the date of the order that we issue today. If the Plaintiff chooses to file such an amended complaint, it should be captioned "Third Amended Complaint," bear the same docket number as this order, and set forth the allegations pertinent to her retaliation claim as well as the grounds upon which that retaliation claim rests. A copy of this order must be attached to the Third Amended Complaint. The Plaintiff is advised that her Third Amended Complaint will completely replace all previously submitted complaints in this action.
All further proceedings in this case shall be stayed for sixty (60) days or until the Plaintiff has complied with this order, whichever time period is shorter. If the Plaintiff fails to comply with this order within the time allowed, the Clerk of the Court is directed to close this case. We note that if the Plaintiff does file a Third Amended Complaint, the case will proceed, to an extent, before Judge Francis in compliance with our earlier order of reference (wherein we referred the case to Judge Francis both for pre-trial management purposes as well as for reports and recommendations with respect to any dispositive motions which may arise over the course of this litigation). (See Docket No. 15.)