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In Stoner v. Young Concert Artists, Inc., No 13 Civ. 4168 (LAP), 2014 WL 661424 (S.D.N.Y. Feb. 7, 2014) ("Stoner III"), the district court again granted YCA's motion to dismiss, denied Stoner's request for sanctions and recusal, and ordered Stoner to show cause why he should not be enjoined from filing further complaints against YCA without court approval.
Summary of this case from Stoner v. Young Concert Artists, Inc.Opinion
13 Civ. 4168 (LAP)
02-07-2014
MARTIN STONER, Plaintiff, v. YOUNG CONCERT ARTISTS, INC., Defendant.
MEMORANDUM & ORDER
:
This is the latest reprise in sixty-three-year-old concert violinist Martin Stoner's ("Plaintiff") age-discrimination litigation against Young Concert Artists, Inc. ("Defendant" or "YCA"), a non-profit organization devoted to identifying and promoting young classical musicians. Plaintiff, who is proceeding pro se, has filed his third lawsuit and fifth complaint against Defendant as well as an application for court-appointed pro bono counsel and a motion requesting recusal. Defendant has moved to dismiss Plaintiff's amended complaint. For the reasons stated below, Defendant's motion to dismiss [dkt. no. 18] is GRANTED WITH PREJUDICE. Plaintiff's application for pro bono counsel [dkt. no. 6] and motion for recusal [dkt. no. 10] are DENIED. The Court also orders Plaintiff to show cause within the next ten business days why the Court should not enjoin him from filing further complaints or motions against Defendant without the Court's prior approval. A. BACKGROUND
Plaintiff commenced this action on June 17, 2013 [dkt. no. 1] and filed an amended complaint [dkt. no. 17] ("Amended Complaint" or "Am. Compl.") on July 29, 2013. Plaintiff's two prior lawsuits against Defendant were unsuccessful: Judge Patterson dismissed Plaintiff's 2010 action for failure to exhaust administrative remedies, see Stoner v. Young Concert Artists, Inc. ("Stoner I"), 10 Civ. 8025 (RPP), 2011 WL 781941 (S.D.N.Y. Mar. 7, 2011), and this Court dismissed Plaintiff's 2011 action with prejudice for failure to state a claim. See Stoner v. Young Concert Artists, Inc. ("Stoner II"), No. 11 Civ. 7279 (LAP), 2012 WL 4471602 (S.D.N.Y. Sept. 26, 2012).
Plaintiff filed two amended complaints in his 2011 action. The Court denied his request to file a third amended complaint. (See 11 Civ. 7279, dkt. no. 53.)
The Court presumes familiarity with the facts underlying Plaintiff's prior disputes with Defendant. In the instant action, Plaintiff alleges that Defendant violated his rights under (1) 42 U.S.C. § 1985(3), (2) the equal protection and due process clauses of the Fourteenth Amendment to the Constitution, (3) the Age Discrimination Act of 1975 ("ADA"), (4) the New York State Human Rights Law ("NYSHRL"), and (5) the New York City Human Rights Law ("NYCHRL"). (See Am. Compl. ¶ 1.) Plaintiff also seeks sanctions against Defendant for, among other things, filing "frivolous" motions. (See id. ¶ 2.)
In addition, the Court liberally construes Plaintiff's Amended Complaint as alleging a violation of the Age Discrimination in Employment Act of 1967 ("ADEA").
Plaintiff's allegations arise out of his attempts to participate in the 2012 and 2013 YCA International Auditions. In 2012, Defendant allowed Plaintiff to audition, but Plaintiff declined to participate because Defendant "failed and refused to make [Plaintiff's] audition fair and unbiased." (Am. Compl. ¶ 31.) At this time, Plaintiff alleges that Defendant's employees "acted to conspire and collude" with Defendant's counsel "to violate Plaintiff's civil rights of due process and equal protection to Plaintiff's detriment, forcing him to withdraw from the 2012 audition." (Am. Compl. ¶ 9.) Specifically, Plaintiff alleges that Defendant required Plaintiff "to appear personally before Susan Wadsworth and other YCA employees to audition long after YCA's attorneys had prohibited him from having any direct contact with Ms. Wadsworth and other YCA employees due to his ongoing litigation." (Am. Compl. ¶ 8.) Plaintiff claims that "[s]uch a double standard of conduct creates an inference of discrimination." (Id.)
The Court considers only allegations concerning events that occurred after Plaintiff filed his second amended complaint in the 2011 action on December 22, 2011 [11 Civ. 7279, dkt. no. 31]. See Curtis v. Citibank, N.A., 226 F.3d 133, 139 (2d Cir. 2000) ("While claim preclusion bars relitigation of the events underlying a previous judgment, it does not preclude litigation of events arising after the filing of the complaint that formed the basis of the first lawsuit.").
Prior to 2012, the YCA auditions had an age limit of twenty-six. Defendant removed this age restriction before the 2012 auditions. (See Order, dated May 8, 2012 [11 Civ. 7279, dkt. no. 66] Ex. B (Letter from Defendant to the Court, dated May 4, 2012).)
On June 5, 2013, Plaintiff applied by mail to participate in the 2013 YCA auditions. (Am. Compl. ¶ 33.) Along with his application and eighty-five dollar application fee, Plaintiff sent a letter which proposed "an alternative to my performing a live audition this year, which I contend would be unfair to me because it forces me to play directly in front of Susan Wadsworth and other YCA-affiliated jury members who have previously exhibited a discriminatory animus against me." (Declaration of Marjorie Kaye, Jr. in Support of Defendant's Motion to Dismiss Plaintiff's Amended Complaint, dated Aug. 8, 2013 [dkt. no. 20] ("Kaye Decl.") Ex. C.) In lieu of a live audition, Plaintiff asked to "submit a pre-recorded audition as you allow for the preliminary round to those that live more than 200 miles from New York City." (Id.) Plaintiff wrote that he was "perfectly willing to play a live audition if it can be made fair to me, but I think the recorded preliminary audition might be a reasonable alternative and afford a less hostile environment for me to perform in." (Id.) Plaintiff further stated that "[i]n the event that you do not agree to my submitting a recorded CD for the preliminary round, I shall ask the Second Circuit for preliminary relief that would force you either to accept my CD and/or to take other and further measures to make my live audition fair and non-discriminatory." (Id.)
Defendant acknowledged receipt of Plaintiff's application and letter on June 10, 2013. (Am. Compl. ¶ 34.) On June 11, 2013, Defendant rejected Plaintiff's application and returned his application fee the next day. (Id. at 35.) Plaintiff commenced this action on June 17, 2013. (See Complaint [dkt. no. 1].) B. DISCUSSION
1. Plaintiff's Request for Recusal
Plaintiff contends that the Court must recuse itself because it allegedly has a personal bias against Plaintiff. (See Motion for Recusal of Judge, dated July 8, 2013 [dkt. no. 10].) Plaintiff's argument is entirely without merit. Plaintiff purports to file an affidavit pursuant to 28 U.S.C. § 144 which requires a judge's recusal "[w]henever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party." This affidavit must "be accompanied by a certificate of counsel of record stating that it is made in good faith." Id. Plaintiff is a non-attorney proceeding pro se and therefore "cannot supply a certificate of counsel." Williams v. N. Y. City Hous. Auth., 287 F. Supp. 2d 247, 249 (S.D.N.Y. 2003). Accordingly, Plaintiff's attempt to file an affidavit under 28 U.S.C. § 144 "fails on this threshold matter." Id.
"Since the [C]ourt must accept all facts included in the affidavit as true, the certificate provides a safeguard that counsel of record can attest to the facts alleged by the affiant as being accurate. . . . [P]arties proceeding pro se have other mechanisms available to them to guard against biased or prejudiced judges." Williams, 287 F. Supp. 2d at 249 (citations omitted).
Nonetheless, the Court considers Plaintiff's argument for recusal under 28 U.S.C. § 455 which requires recusal whenever a judge's "impartiality might reasonably be questioned" and where a judge "has a personal bias or prejudice concerning a party." 28 U.S.C. § 455(b)(1); see also In re Reassignment of Cases, 736 F.3d 118, 123 ("The rule [§455] functions as a critical internal check to ensure the just operation of the judiciary."). Plaintiff alleges that the Court is biased because it issued previous rulings unfavorable to Plaintiff, (See Affidavit of Martin Stoner in Support of His 28 U.S.C. § 144 and 145 Motions for Recusal of Judge, dated July 8, 2013 [dkt. no. 12]), and because Plaintiff disagrees with the Court's perceived political and judicial philosophy. (See, e.g., id. ¶ 10.) Recusal is not required where a party alleges bias arising out of the judge's actions or decisions in a prior judicial proceeding. King v. United States, 576 F.2d 432, 437 (2d Cir. 1978) ("Nothing of . . . what the judge has learned from or done in the proceedings before him, is any basis for disqualification; to be sufficient for disqualification the alleged bias or prejudice must be from an extrajudicial source."); Lamborn v. Dittmer, 726 F. Supp. 510, 517 (S.D.N.Y. 1989) ("While it is possible for trial-related events to make out a sufficient case for recusal, courts generally have denied motions for recusal where the facts allegedly showing prejudice are all trial-related.") (citations omitted). Moreover, recusal is not appropriate simply because a party disagrees with a judge's perceived political views or judicial philosophy. See Jaffree v. Wallace, 837 F.2d 1461, 1465 (11th Cir. 1988)("[A]ppellants must show more than a disagreement with the judge's judicial philosophy: they must point out personal, extrajudicial bias."); see also MacDraw, Inc. v. CIT Group Equip. Fin., Inc., 138 F.3d 33, 38 (2d Cir. 1998). Accordingly, Plaintiff's assertions are meritless and his motion for recusal is denied.
2. Plaintiff's Application for Pro Bono Counsel
Plaintiff has filed a request for appointment of pro bono counsel. (See Application for the Court to Request Pro Bono Consel, dated June 20, 2013 [dkt. no. 6].) According to 28 U.S.C. § 1915(e)(1), "[t]he court may request an attorney to represent any person unable to afford counsel." Plaintiff's application contains no documentation of his financial status or an averment that he is unable to afford counsel. Therefore, Plaintiff has not shown that he is entitled to appointment of counsel under the statute. However, even if Plaintiff could demonstrate his inability to pay for counsel, the Court finds that such an appointment would not be appropriate in this case because Plaintiff's complaint lacks merit on its face. Rissman v. City of N.Y., 01 Civ. 6284 (SHS) (DF), 2002 WL 31499003, at *2 (S.D.N.Y. Nov. 8, 2002) ("[T]he Court must decide whether, 'from the face of the pleadings,' the claims asserted by the plaintiff 'may have merit,' or the plaintiff 'appears to have some chance of success.'") (quoting Stewart v. McMikens, 677 F. Supp. 226, 228 (S.D.N.Y. 2001)); Baskerville v. Goord, No. 97 Civ. 6413 (BSJ)(KNF), 2001 WL 527479, at *1 (S.D.N.Y. May 16, 2001)); see also Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 172 (2d Cir. 1989) ("[T]he district judge 'should first determine whether the indigent's position was likely to be of substance.' Only 'if the claim meets this threshold requirement, the court should then consider other criteria.'") (quoting Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986)).
3. Defendant's Motion to Dismiss
a. Motion to Dismiss Standard
"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.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Court must accept "all factual allegations in the complaint as true and draw[] all reasonable inferences in [P]laintiff['s] favor." Freidus v. Barclays Bank PLC, 734 F.3d 132, 137 (2d Cir. 2013). Nonetheless, a complaint must show "more than a sheer possibility that a defendant has acted unlawfully" and must plead enough facts to "allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. "A document filed pro se is 'to be liberally construed' 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) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Yet, "even a pro se complaint, when liberally construed, must satisfy the pleading standards set forth in [Twombly] and [Iqbal]." Parker v. Mack, 460 F. App'x 62, 62 (2d Cir. 2012).
b. Plaintiff's 42 U.S.C. § 1985(3) Claims
Plaintiff alleges that Defendant and its counsel conspired to deprive him of his civil rights in violation of 42 U.S.C. § 1985(3). (See, e.g., Am. Compl. ¶¶ 1, 12.) Specifically, Plaintiff claims that Defendant's employee and Defendant's counsel "conspired to deprive [Plaintiff] of his civil rights by refusing to permit him to participate in the . . . 2013 YCA auditions." (Id. ¶ 12.) Defendant's counsel was allegedly "complicit with" Defendant's employee because counsel mailed Defendant's "letter of rejection to Plaintiff, which [Defendant's employee] could have simply mailed to Plaintiff directly." (Id.)
Under 42 U.S.C. § 1985(3) it is unlawful for "two or more persons . . . [to] conspire . . . for the purpose of depriving, either directly or indirectly, any person . . . of the equal protection of the laws, or of equal privileges and immunities under the laws." Assuming Plaintiff alleges that Defendant conspired to deprive him of his rights under the ADEA, the Court of Appeals has made clear that 42 U.S.C. § 1985(3) does not apply to allegations of a conspiracy to deprive a person of rights under the ADEA. See Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 527 (2d Cir. 1996) ("[A] violation of the ADEA . . . cannot be the basis for a claim under § 1985(3).) (citing Great Am. Fed. Sav. Loan Assoc. v. Novotny, 442 U.S. 366, 372, 378 (1979)). Therefore, Plaintiff fails to state a claim for conspiracy under 42 U.S.C. § 1985(3).
In his opposition memorandum, Plaintiff also appears to allege a conspiracy to deprive him of his Fourteenth Amendment rights to equal protection and due process in violation of 42 U.S.C. § 1983(3). (Memorandum of Law in Opposition to Defendant's Motion to Dismiss the Amended Complaint [dkt. no 21] at 7.) Plaintiff "asserts a claim of discrimination and denial of equal protection and due process due to political affiliations by lawyers and lawyer-judges." (Id. at 7.) He further alleges that "this Court's action invidiously deprived [Plaintiff], a 'class-based' pro se litigant of his constitutional rights and thereby condoned [Defendant's] illegal conduct including the failure of [Defendant] to permit Plaintiff to apply and perform in the 2013 International Auditions, the Court's 'conservative activist' conduct denying equal protection under the laws may also be considered 'state action.'" In other words, Plaintiff contends that Defendant, Defendant's counsel, and the Court have conspired to deprive him of his constitutional rights. Although Plaintiff cites 42 U.S.C. § 1985(3) as a legal basis for his allegations, it appears that Plaintiff is actually relying on 42 U.S.C. § 1983 which states: "Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity or other proper proceeding for redress."
Because Plaintiff is proceeding pro se, the Court considers these allegations even though they were not raised in the Amended Complaint.
Plaintiff cites Dennis v. Sparks, 449 U.S. 24 (1980), in which the Supreme Court held that, despite a state judge's absolute immunity, a party to litigation could be liable under § 1983 for conspiring with a judge to deprive another party of its civil rights. Id. at 28-29. In that case, a party in a state-court case had obtained an injunction against the § 1983 plaintiff by bribing the state-court judge. Id. at 25-26. Here, Plaintiff pleads no facts at all showing a conspiracy between the Court and Defendant, never mind facts rising to the level of corrupt influence. As the Supreme Court noted in Dennis, "merely resorting to the courts and being on the winning side of a suit does not make a party a co-conspirator or a joint actor with the judge." Id. at 28.
c. Plaintiff's Fourteenth Amendment Claims
The Complaint alleges that Defendant "discriminated against [him] . . . by denying him benefits in violation of . . . the equal protection and due process clauses of the Fourteenth Amendment." (Am. Compl. ¶ 44.) As a preliminary matter, the Fourteenth Amendment's equal protection and due process provisions apply only to the acts of states. See Rendell-Baker v. Kohn, 457 U.S. 830, 837 (1982) ("[T]he Fourteenth Amendment, which prohibits the states from denying federal constitutional rights and which guarantees due process, applies to acts of the states, not to acts of private persons or entities."). The Supreme Court has held that the due process and equal protections of the Constitution are also binding on the federal government, but they derive from the Fifth Amendment's due process clause not the Fourteenth Amendment. See, e.g., Hudson Valley Black Press v. Internal Revenue Serv., 307 F. Supp. 2d 543, 546 (S.D.N.Y. 2004) (noting that the equal protection clause of the Fourteenth Amendment "is incorporated into the Fifth Amendment Due Process Clause through the doctrine of reverse incorporation") (citing Davis v. Passman, 442 U.S. 228, 234 (1979)). In any event, Plaintiff's complaint does not indicate why Defendant, a private corporation, is required to comply with the due process and equal protection protections of the Constitution. Nevertheless, the Court must "liberally construe" Plaintiff's Complaint.
One possibility is that Plaintiff's Fourteenth Amendment claim is an allegation under 42 U.S.C. § 1983 based on an alleged relationship between Defendant and the state of New York which would make Defendant a "state actor." The Court rejected this argument in Plaintiff's two previous actions against Defendant, and Plaintiff has pleaded no new facts in support of a § 1983 theory in this case. See Stoner v. Young Concert Artists, Inc., No. 11 Civ. 7279 (RPP), 2012 WL 512660, at * 4 (S.D.N.Y. Feb. 15, 2012) ("Even when liberally construed, the only connection alleged in Plaintiff's [complaint] between the Defendant and the State is that Defendant received state funds and that its Director at some point did consulting work for State agencies. This is insufficient to suggest a close nexus between the State and the challenged action as required to state a claim under § 1983.") (internal quotation marks and citation omitted); Stoner II, 2012 WL 4471602, at * 3 (holding that "Plaintiff's arguments regarding Defendant's role as 'state actor' within the meaning of 42 U.S.C. § 1983" are not persuasive). For the same reasons, the Court once again denies Plaintiff's Fourteenth Amendment claims if construed under a § 1983 theory.
Another possibility is that Plaintiff intends to make a Bivens claim against Defendant. The Supreme Court has held that violations of certain constitutional rights "by a federal agent acting under color of his authority give[] rise to a cause of action for damages consequent upon his unconstitutional conduct." Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 389 (1971). Such causes of actions (known as "Bivens claims") may be brought for violations of the due process and equal protection guarantees of the Fifth Amendment. See Davis, 442 U.S. at 228, 242-44 (1979) (holding that a plaintiff seeking redress for alleged violations of her due process rights by a member of the federal government "has a cause of action under the Fifth Amendment" in federal court and noting that the "Court has already settled that a cause of action may be implied directly under the equal protection component of the Due Process Clause of the Fifth Amendment in favor of those who seek to enforce this constitutional right"). However, a Bivens action may not be brought "against private entities acting under color of federal law." Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001). Therefore, even assuming Plaintiff has adequately alleged that Plaintiff was operating under color of federal law (which is doubtful), Plaintiff has failed to state a Bivens claim.
d. Plaintiff's ADA Claims
Plaintiff alleges that Defendant violated his rights under the Age Discrimination Act of 1975. Plaintiff fails to state a claim under the ADA because he has not exhausted administrative remedies as required by the statute. See 42 U.S.C. § 6104(f) ("With respect to actions brought for relief based on alleged violation of the provisions of this chapter, administrative remedies shall be deemed exhausted upon the expiration of 180 days from the filing of an administrative complaint during which time the Federal department or agency makes no finding with regard to the complaint . . . ."). In the Amended Complaint, Plaintiff states that "[o]n or about June 1, 2010, plaintiff filed a timely charge of age discrimination, retaliation, and violations of plaintiff's civil rights with the Civil Rights Office of the National Endowment for the Arts" and "[m]ore than 180 days have elapsed since plaintiff filed his complaint." (Am. Compl. ¶ 19.) However, Plaintiff's 2010 filing does not exhaust administrative remedies for his new claims of discrimination arising out of occurrences in 2012 and 2013 and therefore the Court must dismiss Plaintiff's ADA claim.
Plaintiff is well aware of the ADA's administrative exhaustion requirement. In the 2010 action, the Court dismissed Plaintiff's claims without prejudice because he had failed to exhaust administrative remedies. See Stoner I, 2011 WL 781941, at *4 ("Based on Mr. Stoner's failure to meet the exhaustion and notice requirements of his claim under federal law, this Court lacks subject matter jurisdiction over the instant action. Thus, YCA's motion to dismiss is granted, without prejudice.").
Although Plaintiff fails to state a claim under the ADA, the Court liberally construes Plaintiff's Amended Complaint as alleging a complaint under the Age Discrimination in Employment Act of 1967 ("ADEA"). Under the ADEA, an employer may not "refuse to hire . . . or otherwise discriminate against any individual . . . because of such individual's age" and an employment agency may not "refuse to refer for employment, or otherwise discriminate against, any individual because of such individual's age." 29 U.S.C. § 623(a)-(b). As the Court of Appeals has noted, "[t]he pleading standard for employment discrimination complaints is somewhat of an open question in our circuit." Hedges v. Town of Madison, 456 Fed. App'x 22, 23 (2d Cir. 2012) (affirming a district court's dismissal of ADEA claims). On the one hand, the Supreme Court has held that "an employment discrimination plaintiff need not plead a prima facie case of discrimination." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002). On the other hand, Swierkiewicz predates Twombly and Iqbal which established more stringent pleading requirements. In any event, as the Court of Appeals has observed, "even if pleading a prima facie case is not required . . . at a minimum, employment discrimination claims must meet the standard of pleading set forth in Twombly and Iqbal." Hedges, 456 Fed. App'x at 23.
"In order to establish a prima facie case of age discrimination, [Plaintiff] must show (1) that [he] was within the protected age group, (2) that [he] was qualified for the position, (3) that [he] experienced adverse employment action, and (4) that such action occurred under circumstances giving rise to an inference of discrimination." Gorzynksi v. Jet Blue Airways Corp., 596 F.3d 93, 107 (2d Cir. 2010).
Plaintiff has failed to plead any facts from which the Court plausibly could infer that Defendant discriminated against him because of his age. Plaintiff's Amended Complaint states that Defendant required Plaintiff to perform his 2012 audition live in front of YCA employees despite Defendant's practice of avoiding direct communication with Plaintiff because of ongoing litigation. (See Am. Compl. ¶¶ 8-9.) Plaintiff contends that this is circumstantial evidence that gives rise to an inference of discrimination. The Court fails to see how this behavior conceivably could suggest a discriminatory motive on the part of Defendant. If anything, Defendant's actions in 2012 demonstrate a willingness to treat Plaintiff the same as all other applicants despite the ongoing legal dispute.
Plaintiff also alleges that Defendant discriminated against him by rejecting his application to participate in the 2013 YCA auditions. Plaintiff acknowledges in his Amended Complaint that he requested special accommodations for the 2013 auditions, (see Am. Compl. ¶ 33), although elsewhere in the complaint he states that he "has not demanded any special treatment or conditions as a prerequisite to his participation in the preliminary rounds of the 2013 YCA International Auditions." (Am. Compl. ¶ 7.) Plaintiff's letter accompanying his 2013 applications, which Plaintiff references multiple times in his pleadings, makes clear that Plaintiff did in fact demand special conditions for the 2013 YCA auditions.
Federal Rule of Civil Procedure 12(d) states that if "matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment." However, "[i]n certain circumstances, the court may permissibly consider documents other than the complaint in ruling on a motion under Rule 12(b)(6). Documents that are attached to the complaint or incorporated in it by reference are deemed part of the pleading and may be considered." Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007).
In the letter, Plaintiff claims that a live audition would be unfair because it would force him "to play directly in front of . . . jury members who have previously exhibited a discriminatory animus against [him]." (Kaye Decl. Ex. B.) As an alternative, Plaintiff requested that Defendant "permit [him] to submit a pre-recorded audition as you allow for the preliminary round to those that live more than 200 miles from New York City." (Id.) Plaintiff's following paragraph is of particular relevance:
I am perfectly willing to play a live audition if it can be made fair to me, but I think the recorded preliminary audition might be a reasonable alternative and afford a less hostile environment for me to perform in. Kindly notify me no later than June 15, 2013 whether you agree to substitute a preliminary recorded CD in lieu of a live audition. In the event that you do not agree to my submitting a recorded CD for the preliminary round, I shall ask the Second Circuit for preliminary relief that would force you either to accept my CD and/ or to take such other and further measures to make my live audition fair and non-discriminatory.(Id.)
Although Plaintiff offered "to play a live audition" he still insisted that he be granted special accommodations in order to make his audition "fair and non-discriminatory." Plaintiff threatened to seek legal relief if Defendant declined to make extraordinary exceptions to their audition rules. In light of Plaintiff's demands for special treatment, there is no plausible inference that Defendant acted discriminately when it refused to permit Plaintiff to audition. Instead, the only plausible inference is that Defendant refused Plaintiff's application because he had made it abundantly clear that he would not comply with YCA's audition procedures.
e. Plaintiff's NYSHRL and NYCHRL Claims
Plaintiff also invokes the New York State Human Rights Law and the New York City Human Rights Law as bases for his age discrimination claims. Plaintiff alleges that Defendant violated these laws because it is an "employment agency" and unlawfully discriminated against Plaintiff because of his age. (Am. Compl. ¶¶ 47-54.) The New York State Human Rights Law makes it unlawful "[f]or an employment agency to discriminate against any individual because of age . . . in receiving, classifying, disposing or otherwise acting upon applications for its services or in referring an applicant or applicants to an employer or employers." N.Y. Exec. Law § 296(1)(b). Similarly, under the NYCHLR it is "an unlawful discriminatory practice . . . [f]or an employment agency . . . to discriminate against any person because of such person's actual or perceived age . . . in receiving, classifying, disposing or otherwise acting upon applications for its services or in referring an applicant or applicants for its services to an employer or employers." N.Y.C. Admin. Code §8-107(1)(b). The Court rejected Plaintiff's NYSHRL and NYCHRL claims in his previous action, finding that Plaintiff had not sufficiently pleaded that Defendant was an "employer" or an "employment agency" covered by the laws. Stoner II, 2012 WL 4471602, at * 7. Because Plaintiff pleads no new facts in this case, the doctrine of collateral estoppel requires the Court to dismiss Plaintiff's NYSHRL and NYCHRL claims. However, even if Defendant is an "employment agency" subject to NYSHRL and NYCHRL, Plaintiff's has failed to plead facts which give rise to an inference that Defendant discriminated against Plaintiff in violation of those laws. See Tomassi v. Insignia Fin. Group, Inc., 478 F.3d 111, 114 n.3 (2d Cir. 2007) ("[A]ge-discrimination claims under the ADEA, NYSHRL, and NYCHRL are analyzed under the same standard.").
4. Dismissal With Prejudice
Under Rule 15(a) of the Federal Rules of Civil Procedure, courts should "freely give leave" to amend the pleadings "when justice so requires." Fed. R. Civ. P. 15(a)(2). The decision to grant leave, however, is "within the sound discretion of the trial court." Bui v. Indus. Enters. of Am., Inc., 594 F. Supp. 2d 364, 373 (S.D.N.Y. 2009) (citations and internal quotation marks omitted). A court may decline to grant leave to amend where an amended complaint would be futile or where "plaintiff [is] on notice of a complaint's deficiencies and the plaintiff fails to correct those deficiencies after amendment." Abu Dhabi Commercial Bank v. Morgan Stanley & Co., No. 08 Civ. 7508(SAS), 2009 WL 3346674, at *2 (S.D.N.Y. Oct. 15, 2009). Thus, dismissal with prejudice is appropriate when a plaintiff has already had an opportunity to amend. See Tasini v. AOL, Inc., 851 F. Supp. 2d 734, 745 n.5 (S.D.N.Y. 2012) ("The plaintiffs filed an amended complaint after the first motion to dismiss was filed. Because the plaintiffs have failed to state a claim after two opportunities to do so, the Complaint is dismissed with prejudice.").
Here, Plaintiff already has had the opportunity to amend his complaint. Moreover, he amended his complaint after Defendant filed its first motion to dismiss, which pointed out the deficiencies in Plaintiff's first complaint. Still, Plaintiff failed to correct those deficiencies. Accordingly, Plaintiff's Amended Complaint is dismissed with prejudice. See Bui, 594 F. Supp. 2d at 373 (dismissing claims with prejudice where "[p]laintiffs . . . already had an opportunity to amend the Initial Complaint in response to the deficiencies pointed out by the first pre-answer motion to dismiss.").
5. Defendant's Request for a Filing Injunction
Defendant's motion to dismiss includes a request that the Court issue an injunction "requiring Plaintiff to obtain permission prior to filing additional lawsuits against" Defendant. (Memorandum of Law in Support of Defendant's Motion to Dismiss Plaintiff's Amended Complaint, dated Aug. 8, 2013 [dkt. no. 19] ("Def.'s Memo.").) The Court of Appeals has held that "[t]he district courts have the power and the obligation to protect the public and the efficient administration of justice from individuals who have a 'history of litigation entailing vexation, harassment and needless expense to other parties' and 'an unnecessary burden on the courts and their supporting personnel.'" Lau v. Meddaugh, 229 F.3d 121, 123 (2d Cir. 2000) (quoting In re Martin-Trigona, 737 F.2d 1254, 1262 (2d Cir. 1984)). Accordingly, a Court may impose a filing injunction on a litigant who has "'abuse[d] the process of the Courts to harass and annoy others with meritless, frivolous, vexatious or repetitive proceedings.'" Lau, 229 F.3d at 123 (quoting In re Hartford Textile Corp., 659 F.2d 299, 305 (2d Cir. 1981). The Court must consider the following factors to determine whether a filing injunction is warranted:
(1) the litigant's history of litigation and in particular whether it entailed vexatious, harassing or duplicative lawsuits; (2) the litigant's motive in pursuing the litigation, e.g., does the litigant have an objective good faith expectation of prevailing?; (3) whether the litigant is represented by counsel; (4) whether the litigant has caused needless expense to the parties or has posed an unnecessary burden on the courts and their personnel; and (5) whether other sanctions would be adequate to protect the courts and other parties.Safir v. U.S. Lines, Inc., 792 F.2d 19, 24 (1986).
With regard to the first factor, this is Plaintiff's third lawsuit and fifth complaint against Defendant. Plaintiff's prior lawsuits were dismissed in their entirety. While Plaintiff's history of unsuccessful lawsuits and multiple complaints might not be enough by itself to require an injunction, Plaintiff has filed numerous frivolous motions and appeals and has sent dozens of abusive letters to Defendant and the Court. As Defendant points out, and the Court can attest, "Plaintiff's missives are frequently punctuated by allegations of nefarious motives where none exist or peppered with insulting invective against counsel and her client and/or this Court." (Def.'s Memo. at 10.) Plaintiff's actions indicate that he is not pursuing this litigation in good faith but instead is using the legal process as a method of harassment. Thus the second factor also counsels in favor of an injunction. Because Plaintiff is proceeding pro se, the third factor would seem to weigh against an injunction. Yet, "'a court's authority to enjoin vexatious litigation extends equally over pro se litigants and those represented by counsel,' and a court's 'special solicitude' towards pro se litigants 'does not extend to the willful, obstinate refusal to play by the basic rules of the system upon whose very power the plaintiff is calling to vindicate his rights.'" Lipin v. Hunt, 573 F. Supp. 2d 836, 845 (S.D.N.Y. 2008) (quoting Pandozy v. Segan, 518 F. Supp. 2d 550, 558 (S.D.N.Y. 2007)). As for the fourth factor, there is no doubt that Plaintiff's relentless meritless litigation has burdened the courts, Defendant, and Defendant's counsel. Finally, there are no alternative sanctions which would adequately protect the courts and the parties, and "an injunction restricting a litigant's access to the courts is not overly broad if it preserves the litigant's ability to assert meritorious claims with approval of the court." Lipin, 573 F. Supp. 2d at 845 (citing Safir, 792 F. 2d at 25). As the Court of Appeals has noted, "[u]ltimately, the question the court must answer is whether a litigant who has a history of vexatious litigation is likely to continue to abuse the judicial process and harass other parties." Safir, 792 F.2d at 24. Here it certainly appears that, unless the Court issues a filing injunction, Plaintiff will continue to engage in frivolous and abusive litigation against Defendant. However, taking into account Plaintiff's pro se status, the Court gives Plaintiff another opportunity to be heard by permitting him to show cause why the Court should not issue an filing injunction against him.
"The unequivocal rule in this circuit is that the district court may not impose a filing injunction on a litigant sua sponte without providing the litigant with notice and an opportunity to be heard." Moates v. Barkley, 147 F.3d 207, 208 (2d Cir. 1998). In this case, the Court did not raise the possibility of a filing injunction sua sponte. Instead, Defendant requested a filing injunction in its motion to dismiss and Plaintiff had an opportunity to respond. However, out of an abundance of caution, the Court allows Plaintiff one more opportunity to be heard.
6. Plaintiff's Request for Sanctions
Plaintiff's Amended Complaint includes a request for sanctions against Defendant and its counsel pursuant to the Court's inherent power over the parties. (Am. Compl. ¶ 2.) Plaintiff contends that sanctions are appropriate because Defendant "abus[ed] the litigation process by filing 4 frivolous motions for dismissal [sic]," Defendant allegedly made misstatements to the Court, and Defendant's lawyers allegedly violated various rules of professional conduct. These allegations defy reality and are completely without merit. Accordingly Plaintiff's request for sanctions is denied. C. CONCLUSION
Every one of Defendant's prior motions to dismiss was either granted or mooted by a subsequent amended complaint. --------
For the reasons stated above, Plaintiff's application for pro bono counsel [dkt. no. 6] and motion for recusal [dkt. no. 10] are DENIED. Defendant's motion to dismiss Plaintiff's Amended Complaint [dkt. no. 18] is GRANTED WITH PREJUDICE.
The Court further orders Plaintiff to show cause no later than ten business days from the date hereof why the Court should not enjoin him from filing any motions or complaints against Defendant without first obtaining the Court's permission.
The Clerk of Court is directed to mark this case closed and all pending motions denied as moot. SO ORDERED. Dated: New York, New York
February 7, 2014
/s/_________
LORETTA A. PRESKA
Chief United States District Judge