Opinion
99 Civ. 3706 (NRB)
August 26, 2000
MEMORANDUM AND ORDER
By motion dated July 15, 2002, plaintiff has moved for an order reconsidering that portion of our decision of August 31, 2000, dismissing plaintiff's 1998 claim of racial discrimination. See Carr v. Health Ins. Plan of Greater New York, 111 F. Supp.2d 403 (S.D.N.Y. 2000). Plaintiff asserts that he can maintain this motion out of time because of the Supreme Court's decision in Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), decided on February 26, 2002. Plaintiff's motion is based on a clear and serious misreading of our August 31, 2000 opinion. Moreover, the Swierkiewicz decision is wholly irrelevant to the dismissal of plaintiff's so-called 1998 claim.
In Swierkiewicz, the Supreme Court held that employment discrimination complaints should not be held to a higher pleading standard in the context of a motion to dismiss. However, the decision which plaintiff seeks to have reconsidered was rendered in the summary judgment context and was primarily based on an affidavit of plaintiff. It was that affidavit that was found to be insufficiently specific to state a claim upon which relief could be granted. In fact, the very matters that were found to be wanting were set out at page 27 of our Opinion and Order. See Carr, 111 F. Supp.2d at 413-14. Further, despite our recitation of the deficiencies in plaintiff's affidavit, at no time prior to the making of this motion did plaintiff submit a supplemental affidavit to cure those deficiencies. Indeed, even now no such affidavit has been submitted.
The primacy of the affidavit as the basis of our decision is reflected not only in the text of the opinion, but in the fact that we sustained a claim for retaliation in 1999, a year that was not even mentioned in plaintiff's complaint.
In sum, as a simple reading of our earlier decision makes abundantly clear, the Supreme Court's decision in Swierkiwicz is not on point. Accordingly, plaintiff's motion is denied. As we did not require defendants to respond to this motion, we will not consider whether sanctions would otherwise be appropriate.