Opinion
03 Civ. 10237 ((KNF).
February 9, 2005
MEMORANDUM and ORDER
In this action, Anna Virgona ("Virgona") has alleged that the defendants discriminated against her in the terms and conditions of her employment by, among other things, denying her promotions and failing to pay her at a rate that was equal to the rate received by her male co-workers who performed work comparable to her own work, and by terminating her employment and filling the vacancy with a male employee who was given a higher salary and job title than Virgona had received. Virgona alleges that the defendants engaged in this conduct because of her sex and, thereby, violated her rights under the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000(e), et seq., the Equal Pay Act, 29 U.S.C. §§ 201 through 219, the New York State Executive Law and the New York City Administrative Code. In addition, Virgona alleges that, at the time her employment was terminated by the defendants, they failed to pay her salary and severance benefits to which she was entitled.
Before the Court is a motion made by the defendants, pursuant to Rules 4(m) and 12(b)(6) of the Federal Rules of Civil Procedure. The defendants contend that Virgona failed to serve them with the summons and complaint within the time prescribed by Fed.R.Civ.P. 4(m). In addition, the defendants maintain that Virgona has failed to state a claim upon which relief may be granted through her complaint and, therefore, it should be dismissed.
After the defendants' motion was filed, counsel to the plaintiff made a written application to the Court that the time by which Virgona was required to respond to the defendants' motion be enlarged from July 14, 2004, to July 28, 2004. The Court granted that application. However, Virgona never filed a response to the defendants' motion. Therefore, it is unopposed.
Service of the Summons and Complaint
Rule 4 of the Federal Rules of Civil Procedure, in its most pertinent part, provides:
If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.
"Among Federal courts, there is virtual unanimity that dismissal is mandatory if a defendant is not served [with a summons and complaint] within the time frame [set by Fed.R.Civ.P. 4(m),] unless the plaintiff can show 'good cause' or 'excusable neglect' for the delay." McKibben v. Credit Lyonnais, No. 98 Civ. 3358, 1999 WL 604883, at *2 (S.D.N.Y. Aug. 10, 1999); see also Frasca v. United States, 921 F.2d 450, 453 (2d Cir. 1990); Valentin v. Comm'r of Soc. Servs., No. 99 Civ. 40856, 2000 WL 1727710, at *1-2 (S.D.N.Y. Nov. 21, 2000);Ogbo v. New York State Dep't of Taxation and Fin., No. 99 Civ. 9387, 2000 WL 1273840, at *2 (S.D.N.Y. Sept. 6, 2000).
The defendants claim that the plaintiff failed to comply with Fed.R.Civ.P. 4(m) in that she failed to serve them with the summons and complaint within 120 days of the date on which this action was filed, December 29, 2003. Absent from the submissions made by the defendants in connection with the instant motion, is any competent evidence establishing the date on which the plaintiff served the summons and complaint upon the defendants. The defendants simply assert that service was not effected within 120 days of the date on which the action was commenced. Without any competent evidence that establishes the date on which the defendants were served the summons and complaint, it is not possible for the Court to determine whether the defendants' assertion, that the plaintiff failed to serve them timely, is accurate. Consequently, the relief sought by the defendants through this branch of their motion is denied. Failure to State a Claim
The defendants also suggest that the Court may lack jurisdiction to entertain the plaintiff's federal civil rights claim because she did not commence the action within 90 days of the date on which she received a notice of her right to sue from the United States Equal Employment Opportunity Commission ("EEOC"). The defendants have annexed a copy of that notice as an exhibit to the affirmation submitted by their counsel in support of the defendants' motion to dismiss. That document indicates that it was mailed to the plaintiff on September 23, 2003. The notice contains two informational sheets. Among other things, the informational sheets advised the plaintiff that her lawsuit had to be filed in a United States district court within 90 days of the date she received her right to sue notice. The defendants contend that, since the instant action was not commenced until December 29, 2003, the plaintiff failed to meet the 90-day deadline about which she was advised through the right to sue notice she received from the EEOC. Here, again, the defendants have failed to provide the Court with sufficient information upon which to determine whether their assertion is valid, inasmuch as the defendants have failed to provide any competent evidence to the Court of the date on which the plaintiff received the notice of her right to sue from the EEOC. Without such information, it is impossible for the Court to conclude, as the defendants have, that the plaintiff failed to commence this action within 90 days of the date on which she received notice of her right to sue from the EEOC.
A court may dismiss an action, pursuant to Fed.R.Civ.P. 12(b)(6), for failure to state a claim upon which relief can be granted, only if "it appears beyond doubt, even when the complaint is liberally construed, that the plaintiff can prove no set of facts which would entitle him to relief." Jaghory v. New York State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997). In considering a motion made pursuant to this rule, "the court must accept all factual allegations in the complaint as true and draw inferences from those allegations in the light most favorable to the plaintiff." Id. A court may also consider all papers and exhibits appended to the complaint, as well as any matters of which judicial notice may be taken. See Hirsch v. Arthur Andersen Co., 72 F.3d 1085, 1092 (2d Cir. 1995).
The defendants maintain that the plaintiff has failed to state a claim upon which relief may be granted with respect to any of the claims made in her complaint. Relying upon cases decided prior to Swierkiewicz v. Sorema, 534 U.S. 506, 122 S. Ct. 992 (2002), the defendants contend that, with respect to the claims of discrimination made by Virgona based upon her sex, Virgona's complaint lacks factual allegations of sufficient detail to establish a prima facie case of sex discrimination, under the framework set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). However, given that approximately two years before the defendants made the instant motion, the Supreme Court made clear in Swierkiewicz that "an employment discrimination complaint [such as Virgona filed in the instant action] need not include such [detailed] facts and instead [as provided for in Fed.R.Civ.P. 8(a)(2)] must contain only 'a short and plain statement of the claim showing that the pleader is entitled to relief,'" it is not clear to the Court why the defendants would request the relief they seek through this portion of their motion, by relying upon decisional jurisprudence from inferior courts that has been eclipsed by more recent Supreme Court precedent. The defendants' conduct is particularly curious in light of Fed.R.Civ.P. 11 since, by presenting their motion to the Court, they have certified "that to the best of [their] knowledge, information and belief, formed after an inquiry reasonable under the circumstances . . . [their] legal contentions . . . are warranted by existing law." Fed.R.Civ.P. 11(b).
The Court has reviewed the plaintiff's complaint carefully and finds that the allegations of unlawful discrimination made by the plaintiff comport with Fed.R.Civ.P. 8, in that the plaintiff describes concisely and plainly the bases for her claims that, because of her sex, she was denied promotions, was not paid at a rate comparable to that paid to men performing comparable work and, when her employment relationship with the defendants was terminated, was replaced by a male employee who was given a higher salary and job title than that which had previously been given to the plaintiff. The factual details that the defendants suggest should be in the plaintiff's complaint are matters that may be explored and should be explored during the pretrial discovery phase of the litigation by using the discovery tools provided to the parties through the Federal Rules of Civil Procedure.
With respect to the claim made by Virgona for unpaid salary and severance benefits, the defendants contend that she failed to set forth any factual or legal underpinnings that establish her entitlement to the salary and severance benefits she seeks. However, for the reasons discussed above, Virgona need not include the level of detail in her complaint that the defendants demand. This claim, like Virgona's discrimination claims, comports with the requirement found in Fed.R.Civ.P. 8.
Under the circumstances, the Court finds that no basis exists upon which to find that Virgona failed to state a claim upon which relief might be granted as alleged by the defendants. Therefore, the relief the defendants seek, through this branch of their motion, is denied.
CONCLUSION
For the reasons set forth above, the motion made by the defendants, that the plaintiff's complaint be dismissed for failure to serve the summons and complaint timely, and for failure to state a claim upon which relief may be granted, is denied. However, with respect to the defendants' claim that the plaintiff failed to serve the summons and complaint timely, the defendants may renew their claim for relief, if the date on which service was effected can be shown to the Court through competent evidence.
Inasmuch as it appears to the Court, as described in greater detail above, that the defendants, in presenting the instant motion to the Court, may have violated Fed.R.Civ.P. 11(b), for which a sanction may be imposed, they shall, within ten days of the date of this memorandum and order, show cause to the Court, in writing, why they have not violated Fed.R.Civ.P. 11(b).See Fed.R.Civ.P. 11(c)(1)(B).
SO ORDERED.