Opinion
1:19-cv-05160 (ALC) (SDA)
2021-11-12
Nefissa KRAIEM, Plaintiff, v. JONESTRADING INSTITUTIONAL SERVICES LLC, et al., Defendants.
Zachary Russell Bergman, Robert B. Stulberg, Stulberg & Walsh, LLP, New York, NY, for Plaintiff. Joan M. Gilbride, Kaufman, Borgeest & Ryan, LLP, New york, NY, Stephanie Lisa Fox, Esther Berkowitz Feuer, Laura Baldwin Juffa, Stephen Paul Illions, Kaufman Borgeest & Ryan LLP, New York, NY, for Defendants JonesTrading Institutional Services LLC, Shlomo Cohen. Laura Baldwin Juffa, Kaufman Borgeest & Ryan, LLP, New York, NY, for Defendant David Mazzullo.
Zachary Russell Bergman, Robert B. Stulberg, Stulberg & Walsh, LLP, New York, NY, for Plaintiff.
Joan M. Gilbride, Kaufman, Borgeest & Ryan, LLP, New york, NY, Stephanie Lisa Fox, Esther Berkowitz Feuer, Laura Baldwin Juffa, Stephen Paul Illions, Kaufman Borgeest & Ryan LLP, New York, NY, for Defendants JonesTrading Institutional Services LLC, Shlomo Cohen.
Laura Baldwin Juffa, Kaufman Borgeest & Ryan, LLP, New York, NY, for Defendant David Mazzullo.
OPINION AND ORDER
STEWART D. AARON, United States Magistrate Judge:
Before the Court is a motion by Plaintiff Nefissa Kraiem ("Plaintiff" or "Kraiem"), pursuant to Rule 15(d) of the Federal Rules of Civil Procedure, to supplement her Second Amended Complaint ("SAC"). (Pl.’s 8/5/21 Mot. to Supp., ECF No. 110) For the following reasons, Plaintiff's motion is DENIED.
BACKGROUND
On May 31, 2019, Kraiem, a French citizen and resident of London, filed her Complaint in this action against Defendants JonesTrading International Limited ("JTIL"), JonesTrading Institutional Service LCC ("JTIS"), Shlomo Cohen ("Cohen"), Gary Cunningham ("Cunningham"), David Mazzullo ("Mazzullo"), Alan Hill ("Hill") and Steven Chmielewski ("Chmielewski") (collectively, "Defendants"), asserting claims for employment discrimination based on gender and retaliation in violation of (1) Title VII of the Civil Rights Act of 1964, as amended ("Title VII"); (2) the New York State Human Rights Law ("NYSHRL"); and (3) the New York City Human Rights Law ("NYCHRL"). (Compl., ECF No. 1.) Much of the purportedly actionable conduct alleged In her Complaint took place outside of New York, but Kraiem also alleged purportedly actionable conduct by Cunningham and Cohen that occurred during a July 2017 business trip to New York City. (See id. ¶¶ 47-57.)
See Kraiem v. JonesTrading Institutional Servs. LLC , 492 F. Supp. 3d 184, 189 (S.D.N.Y. 2020).
On September 23, 2019, Defendants requested a premotion conference before District Judge Andrew L. Carter in connection with an anticipated motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. (Defs.’ 9/23/19 Ltr., ECF No. 33.) In their premotion conference letter, Defendants noted that, in May 2016, Kraiem had entered into an employment agreement solely with JTIL to perform services as a trader in its London office and that such agreement provided that it was governed by the law of England and Wales and that its parties submitted to the exclusive jurisdiction of the English courts. (See Defs.’ 9/23/19 Ltr. at 2.) Defendants’ letter also noted that, after Kraiem's employment with JTIL ended in January 2018, she commenced an action in June 2018 against JTIL and Cunningham in the London Central Employment Tribunal ("LCE"), but that, one week prior to a March 2019 trial before that tribunal, Kraiem voluntarily withdrew her claim from the LCE process. (See id. )
Defendants thus argued in their premotion conference request letter, among other things, that Kraiem had no claim under the NYSHRL and NYCHRL because "[s]he fail[ed] to plausibly plead that the alleged discriminatory conduct had an impact in New York." (See Defs.’ 9/23/19 Ltr. at 4 (footnote omitted).) In opposition to Defendants’ premotion conference letter, Kraiem argued, among other things, that she had "satisfie[d] the ‘impact’ test for NYSHRL and NYCHRL claims" since she alleged that "she was assaulted and harassed while visiting NYC on business." (See Pl.’s 10/2/19 Ltr. Resp., ECF No. 36, at 2.)
On November 14, 2019, a premotion conference was held before Judge Carter. (11/14/19 Tr., ECF No. 39.) During the conference, in response to a question by Judge Carter regarding the connection of the Complaint's allegations to New York, Kraiem's counsel referred to various paragraphs of the Complaint and then requested an opportunity to add certain additional facts "as to the connection to New York" in an amended complaint. (See id. at 5-8.) Thereafter, at Judge Carter's suggestion, Defendants agreed "for the sake of efficiency" to permit Kraiem to file an amended complaint against which Defendants then would file a motion dismiss. (See id. at 8-9.) On November 14, 2019, Judge Carter entered an Order setting deadlines for the filing of Plaintiff's amended pleading and Defendants’ motion to dismiss. (11/14/19 Order, ECF No. 38.)
On December 12, 2019, Kraiem filed her First Amended Complaint ("FAC"), asserting the same claims against the same Defendants, but adding certain allegations regarding New York connections. (See, e.g. , FAC, ECF No. 41, ¶¶ 3-4, 9-10, 33-35, 37, 58, 67.) On January 22, 2020, Defendants filed their motion to dismiss the FAC. (Defs.’ 1/22/20 Mot. to Dismiss, ECF No. 44.)
In an Opinion and Order, dated September 30, 2020, Judge Carter granted in part and denied in part Defendants’ motion. See Kraiem , 492 F. Supp. 3d at 205-06. Of relevance to the motion now before the Court, Judge Carter held that "only those allegations that occurred during Kraiem's July 2017 business trip to New York City" could "properly be considered under [the NYSHRL and NYCHRL]." See id. at 198. Moreover, he dismissed the retaliation claims against Cunningham "because Kraiem fails to allege [he] personally engaged in retaliatory conduct in New York." Id. at 201. Judge Carter also dismissed from the case those Defendants who were "not alleged to have engaged in discrimination or retaliation in New York City," namely, Mazzullo, Hill and Chmielewski. See id. at 200.
With respect to the forum selection clause in Kraiem's employment agreement with JTIL, Judge Carter "concluded that the forum selection clause [did] cover the discrimination and retaliation claims, and that JTIL and its employees may invoke it," but that it did not cover JTIS and its employee, including Cohen. Kraiem , 492 F. Supp. 3d at 196, 205. Thus, Judge Carter found that Kraiem "may seek relief from JTIS and Cohen as to discrimination and retaliation that occurred in New York City." Id.
Finally, in his September 20, 2020 Opinion and Order, Judge Carter granted limited leave to Kraiem "to correct the deficiencies [he had] identified." See id. at 206.
On November 17, 2020, Kraiem filed her SAC. (See SAC, ECF No. 81.) Of relevance to the motion now before the Court, in support of her claims for retaliation, Kraiem added certain factual allegations regarding a dinner that Defendant Cunningham had in May 2020 in New York City with a portfolio manager named James Saltissi ("Saltissi"), whom Kraiem intended to pursue as a potential client, at which Cunningham purportedly "besmirched [Kraiem] because she brought the instant action." (See SAC ¶¶ 115-18.)
In an Order, dated December 2, 2020, Judge Carter stated that "[i]t is not apparent from the [SAC] that [his] limited permission [regarding an amended pleading] was complied with" and granted Kraiem "leave to file a motion to amend in support of making the [SAC] currently on file operative." (12/2/20 Order, ECF No. 83, at 1.) On December 31, 2020, Kraiem filed her motion to amend. (Pl.’s 12/31/20 Mot. to Amend, ECF No. 87.)
In an Opinion and Order, dated May 26, 2021, Judge Carter granted in part and denied in part Kraiem's motion. Kraiem v. JonesTrading Institutional Servs. LLC , No. 19-CV-05160 (ALC), 2021 WL 2134818, at *5 (S.D.N.Y. May 26, 2021). While, "[a]s a preliminary matter," Judge Carter acknowledged that Kraiem's proposed amendments might have "exceed[ed] the limited leave granted to correct the deficiencies in the FAC," he determined, after finding no indication of bad faith on Plaintiff's part or undue prejudice to Defendants, that "the Court w[ould] exercise its discretion and consider the proposed SAC in its entirety." Id. at *2. In a footnote to this paragraph of the May 26 Opinion and Order, Judge Carter further stated that, "[s]hould Plaintiff endeavor to supplement her pleadings with events or occurrences that have taken place after the filing of the FAC, the Court will consider whether Plaintiff may supplement her pleadings upon receipt of a separate motion pursuant to Fed. R. Civ. P. 15(d)." Id. at *2 n.2.
Turning to the merits, Judge Carter then granted Kraiem's motion to amend the FAC as to her allegations related to an aiding and abetting theory of liability against Mazzullo under the NYSHRL and the NYCHRL (based upon his finding that "Mazzullo actively participated in the underlying [statutory] violation"), but denied the motion as to all other allegations. Id. at *3, 5. Of relevance to the motion now before the Court, Judge Carter held as follows with respect to Kraiem's proposed amendments alleging retaliation against JTIL and Cunningham:
The Court is unpersuaded by the proposed amendments alleging that JTIL and Cunningham retaliated against Plaintiff because they ... fail to cure prior pleading deficiencies. This Court dismissed Plaintiff's Title VII claims [against JTIL] as to events occurring in London because Kraiem is not employed in the United States within the meaning of the statute.... With respect to Cunningham, the proposed allegations still fail to adequately allege an impact in New York. Plaintiff adds allegations that Cunningham made negative comments about Kraiem to former clients. SAC ¶¶ 112-113. However, not only has she not sufficiently pled that these clients are based in New York, but also this Court already dismissed claims based on "unspecified future career prospects." ECF No. 74 at 19 [ Kraiem , 492 F. Supp. 3d at 199 ]. The Court therefore concludes that the proposed amendments alleging retaliation against JTIL and Cunningham are futile for failure to cure pleading deficiencies.
Id. at *5. In addition, Judge Carter held that "the proposed SAC is not sufficient to state claims against Hill and Chmielewski under an aider and abettor theory [because it] fail[ed] to plead that they personally engaged in any harassing or retaliatory conduct that had an impact on Plaintiff within New York City leading up to her termination." Id. at *4. Thus, Judge Carter directed that the Clerk of Court terminate Defendants Hill, Chmielewski, JTIL and Cunningham from the case. See id. at *5.
Judge Carter found that he need not reach the question whether Cunningham could invoke the forum selection clause in Kraiem's JTIL employment agreement in connection with allegations arising from his conduct after he was no longer a JTIL employee. See Kraiem , 2021 WL 2134818, at *5.
On August 5, 2021, Kraiem filed the pending motion to supplement, including as an exhibit to a supporting affidavit a Proposed Supplemented Amended Complaint (the "PSAC"). (See Pl.’s 8/5/21 Mot. to Suppl.; PSAC, ECF No. 111-1.) In her motion, Kraiem seeks to supplement the SAC with allegations concerning (1) her post-JTIL employment with a company named StoneX, which began on December 3, 2018 (see PSAC ¶¶ 115-17); and (2) the May 2020 dinner that Cunningham had in New York City with a portfolio manager named James Saltissi ("Saltissi"), whom Kraiem intended to pursue as a potential client (see PSAC ¶¶ 118-24). On the basis of these proposed supplementary allegations, Kraiem seeks to resuscitate the claims and defendants that Judge Carter's May 25, 2021 Opinion and Order had dismissed from the case, i.e. , Title VII retaliation claims against JTIL, and retaliation claims under the NYSHRL and NYCHRL against JTIL, Cunningham, Chmielewski and Hill. (See Pl.’s 8/5/21 Mem., ECF No. 112, at 2-3, 14-19.)
Kraiem previously had filed a motion to supplement on June 25, 2021 (Pl.’s 6/25/21 Mot. to Suppl., ECF No. 98), but that motion later was withdrawn due to an error regarding the date when she began working at StoneX. (See Pl.’s 8/4/21 Ltr., ECF No. 108; see also 8/5/21 Order, ECF No. 109.)
On September 10, 2021, Defendants filed their papers in opposition to Kraiem's motion to amend. (Defs.’ 9/10/21 Opp. Mem., ECF No. 120; Gilbride Decl., ECF No. 121.) On October 16, 2021, Kraiem filed a reply memorandum (Pl.’s 10/16/21 Reply, ECF No. 124), as well as a Declaration from Kraiem. (Kraiem Decl., ECF No. 123.) On October 22, 2021, Defendants filed a letter motion seeking a conference, in which they object to the submission of Kraiem's Declaration. (Defs.’ 10/22/21 Ltr. Mot., ECF No. 126.) On October 27, 2021, Kraiem filed a letter in response. (Pl.’s 10/27/21 Ltr., ECF No. 128.)
In an Order and Amended Order, dated October 28, 2021 and November 4, 2021, respectively, Judge Carter referred the two pending nondispositive motions to me. (Order of Ref., ECF No. 129; Am. Order of Ref., ECF No. 130.)
LEGAL STANDARDS
I. Leave To Supplement
Rule 15(d) of the Federal Rules of Civil Procedure provides: "On motion and reasonable notice, the court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented." Fed. R. Civ. P. 15(d). " Rule 15(d) motions are evaluated by the Court under the same standards used to evaluate motions to amend pleadings under paragraph (a) of the same rule." Bemben v. Fuji Photo Film U.S.A., Inc. , No. 01-CV-08616 (KMW) (DF), 2003 WL 21146709, at *2 (S.D.N.Y. May 19, 2003). Thus, "[t]he Court should freely give leave" to file a supplemental pleading "when justice so requires." Fed. R. Civ. P. 15(a)(2).
In the present case, Judge Carter gave Plaintiff permission to supplement under Rule 15(d) not merely with events postdating "the date of the pleading to be supplemented"—i.e. , the November 17, 2020 SAC—but rather, more broadly, with events postdating the December 12, 2019 FAC. See Kraiem , 2021 WL 2134818, at *2 n.2.
"The decision whether to grant leave to amend a pleading is within the sound discretion of the Court." Thompson v. United States , No. 16-CV-03468 (AJN) (KNF), 2017 WL 2670815, at *3 (S.D.N.Y. Mar. 20, 2017) (internal citations omitted); see also Gurary v. Winehouse , 235 F.3d 792, 801 (2d Cir. 2000) (District courts "ha[ve] broad discretion in determining whether to grant leave to amend."). However, leave to amend may be denied for "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc." Ruotolo v. City of New York , 514 F.3d 184, 191 (2d Cir. 2008) (citation omitted). "An amendment to a pleading is futile if the proposed claim could not withstand a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6)." Lucente v. IBM , 310 F.3d 243, 258 (2d Cir. 2002).
Consistent with Judge Carter's referral Order (see Am. Order of Ref., ECF No. 130 (identifying Plaintiff's motion to supplement as a "Specific Non-Dispositive Motion")), there is authority for me to decide Plaintiff's motion to supplement—which, as noted above, is subject to the motion to amend standards—as a nondispositive motion. See, e.g., Fielding v. Tollaksen , 510 F.3d 175, 178 (2d Cir. 2007) (identifying "a motion to amend the complaint" as an example of a "nondispositive motion[ ]"); Media Glow Digital, LLC v. Panasonic Corp. of N. Am. , No. 16-CV-07907 (PGG), 2020 WL 3483632, at *3 (S.D.N.Y. June 26, 2020) ("A motion to amend is not a dispositive motion."); MPI Tech A/S v. Int'l Bus. Machines Corp. , No. 15-CV-04891 (LGS) (DCF), 2017 WL 481444, at *3 (S.D.N.Y. Feb. 6, 2017) ("Since Fielding , courts in this district appear to have consistently applied the ‘clearly erroneous’ standard [applicable to a magistrate judge's ruling on a nondispositive matter] to evaluate the denial of leave to amend by a magistrate judge, regardless of whether the denial foreclosed potential claims.").
II. Retaliation Claims Under Title VII, The NYCHRL And The NYSHRL
To establish a retaliation claim under Title VII, a plaintiff must show "(1) participation in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment action; and (4) a causal connection between the protected activity and the adverse employment action." Kraiem , 492 F. Supp. 3d at 194 (citing Littlejohn v. City of New York , 795 F.3d 297, 315-16 (2d Cir. 2015) ). "[P]roof of causation can be shown either: (1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by the defendant." Hicks v. Baines , 593 F.3d 159, 170 (2d Cir. 2010) (quoting Gordon v. N.Y. City Bd. of Educ. , 232 F.3d 111, 117 (2d Cir. 2000) ).
Indirect evidence of causation may include a "showing that the protected activity was closely followed in time by the adverse action." Colon v. Fashion Inst. of Tech. , 983 F. Supp. 2d 277, 287 (S.D.N.Y. 2013) (quoting Manoharan v. Columbia Univ. Coll. of Physicians & Surgeons , 842 F.2d 590, 593 (2d Cir. 1988) ). "There is no firm outer limit to the temporal proximity required, but most courts in the Second Circuit have held that a lapse of time beyond two or three months will break the causal inference." De Figueroa v. New York , 403 F. Supp. 3d 133, 157 (E.D.N.Y. 2019) (citing Walder v. White Plains Bd. of Educ. , 738 F. Supp. 2d 483, 503-04 (S.D.N.Y. 2010) (collecting cases)); see also Brown v. City of New York , 622 F. App'x 19, 20 (2d Cir. 2015) ("The time lapses between Brown's protected activities and the alleged retaliatory acts—ranging from two months to several years—were simply too attenuated to establish that the alleged adverse employment actions were the product of a retaliatory motive absent other supporting factual allegations.") (collecting cases).
"The same standards govern retaliation claims under Title VII and the NYSHRL." McHenry v. Fox News Network, LLC , 510 F. Supp. 3d 51, 66 (S.D.N.Y. 2020). Retaliation claims under the NYCHRL, however, "are subject to a broader standard than under the NYSHRL and Title VII." Id. To establish a retaliation claim under the NYCHRL, "the plaintiff must show that she took an action opposing her employer's discrimination ..., and that, as a result, the employer engaged in conduct that was reasonably likely to deter a person from engaging in such action." Mihalik v. Credit Agricole Cheuvreux N. Am., Inc. , 715 F.3d 102, 112 (2d Cir. 2013) (citations omitted).
Effective August 12, 2019, "the NYSHRL was amended to direct courts to construe the NYSHRL, like the NYCHRL, ‘liberally for the accomplishment of the remedial purposes thereof, regardless of whether federal civil rights laws including those laws with provisions worded comparably to the provisions of [the NYSHRL] have been so construed.’ " McHenry , 510 F. Supp. 3d at 68. The Court need not decide whether the more lenient standard of the NYCHRL applies to Plaintiff's claims under the NYSHRL as to acts that occurred after August 12, 2019, however, because Plaintiff's claims fail under either standard, as discussed below.
Under both the NYCHRL and NYSHRL, as under Title VII, a plaintiff also must show "that there was a causal connection between the protected activity and the employer's subsequent action." Adams v. Equinox Holdings, Inc. , No. 19-CV-08461 (AJN), 2020 WL 5768921, at *6 (S.D.N.Y. Sept. 28, 2020) (citing Moccio v. Cornell Univ. , 889 F. Supp. 2d 539, 592 (S.D.N.Y. 2012) ); see also Thomson v. Odyssey House , No. 14-CV-03857 (MKB), 2015 WL 5561209, at *25 (E.D.N.Y. Sept. 21, 2015), aff'd , 652 F. App'x 44 (2d Cir. 2016) (under NYCHRL, "a plaintiff still must allege a causal connection between the employer's action and the plaintiff's conduct"). When considering causation, courts apply the same temporal-proximity analysis to NYCHRL and NYSHRL retaliation claims as they do to Title VII claims. See Moccio , 889 F. Supp. 2d at 588, 592 (explaining that "the above analysis of [the plaintiff]’s retaliation claim under Title VII applies in full" to his retaliation claims under NYSHRL and NYCHRL, and dismissing Title VII, NYCHRL and NYSHRL claims alike on causation grounds where termination occurred six months after protected act).
ANALYSIS
The Court finds that Plaintiff's motion to supplement is futile and thus the motion is denied. As discussed above, Plaintiff seeks to add allegations regarding purported retaliation that occurred at a May 2020 dinner between Cunningham and Saltissi. (See PSAC ¶¶ 119-24.) Plaintiff contends that the addition of these allegations is enough to resuscitate her Title VII retaliation claims against JTIL and the NYSHRL and NYCHRL retaliation claims against JTIL, Cunningham, Chmielewski and Hill. (See Pl.’s 8/5/21 Mem. at 2-3 ("[A]lthough the Court previously dismissed [Plaintiff's] claims against Defendants JTIL, Cunningham, Hill and Chmielewski, her supplemental allegations concerning the May 2020 dinner cure the defects cited to by the Court and make prior conduct complained of concerning those defendants actionable under [Title VII, the NYSHRL and the NYCHRL]."); see also id. at 14-19.) The Court disagrees and finds instead that the addition of these allegations would be futile. See Bell v. Carey , No. 18-CV-02846 (PAE) (OTW), 2020 WL 3578150, at *2 (S.D.N.Y. July 1, 2020) ("[A] proposed claim is futile if, accepting the facts alleged by the party seeking amendment as true and construing them in the light most favorable to that party, it does not ‘plausibly give rise to an entitlement to relief.’ " (citation omitted)).
I. Plaintiff's Proposed Supplementary Allegations Do Not Resuscitate Her Claims Against JTIL
Nothing in Plaintiff's proposed supplemental allegations concerning the May 2020 dinner resuscitate her dismissed claims against JTIL. The only ostensibly retaliatory actor implicated in those allegations is Cunningham. As Plaintiff herself argues in a different context, however, as of May 2020, Cunningham had not been a JTIL employee for more than a year. (See PSAC ¶¶ 20, 94; Pl.’s 8/5/21 Mem. at 23.) The PSAC thus adds no allegation of conduct that may be imputed to JTIL. Moreover, Judge Carter previously held that JTIL could invoke the forum selection clause in Plaintiff's employment agreement to preclude Plaintiff from asserting claims against JTIL in this Court, see Kraiem , 492 F. Supp. 3d at 205, and nothing in Plaintiff's proposed supplemental allegations disturbs this determination. Accordingly, Plaintiff's attempt to use her proposed supplemental allegations to resuscitate her claims against JTIL is futile.
II. Plaintiff's Proposed Supplementary Allegations Do Not Resuscitate Her Claims Against Cunningham
Nor do Plaintiff's proposed supplemental allegations concerning the May 2020 dinner resuscitate her dismissed claims against Cunningham for retaliation under the NYSHRL and the NYCHRL. First, Plaintiff has not plausibly alleged that Cunningham took an adverse action against her or engaged in conduct that was reasonably likely to deter a person from engaging in protected activity. The only non-conclusory allegations regarding what actually occurred at the May 2020 dinner assert that (1) during the dinner, Saltissi sent a drunken text message to Plaintiff's uncle stating that Plaintiff should "stop lying" and that "[a]nyone that ever met her would know its fkn nonsense"; and (2) Saltissi followed up "[s]ometime thereafter" with a second text message, stating as follows: "Sorry for before, I was in a bad place (and drunk listening to ‘poor Gary’)." (PSAC ¶¶ 119-21.) From these facts, one cannot determine what Cunningham actually said to Saltissi, nor whether Saltissi's first text was indicative of anything Cunningham said or merely expressing Saltissi's own opinion of Plaintiff (whom he knew) in reaction to whatever Cunningham had said.
The PSAC's proposed supplemental allegation that "Cunningham derided Ms. Kraiem by calling her, in sum and effect, a liar, and questioning her integrity" (PSAC ¶ 119) is entirely conclusory. This allegation is made "[o]n information and belief" (id. ), but Plaintiff admits that she has not spoken with Cunningham since the dinner at issue (see 10/15/21 Kraiem Decl., ECF No. 123, ¶ 39 ("I have not spoken with Mr. Cunningham since my termination from [JSIL.]")), and her papers imply she has not communicated subsequently with Saltissi either (see id. ¶¶ 35-36 ("Since [the dinner], Mr. Saltissi has not reached out to me"; "I have informed StoneX that I no longer intend to solicit business from Mr. Saltissi")). In other words, the proposed allegation, made "[o]n information and belief," that Cunningham called Plaintiff a liar and questioned her integrity does not have a plausible basis in fact. See Blantz v. Cal. Dep't of Corr. & Rehab., Div. of Corr. Health Care Servs. , 727 F.3d 917, 926-27 (9th Cir. 2013) (holding that allegations on information and belief were "conclusory" and "insufficient to state a claim"); Whiteside v. Hover-Davis, Inc. , No. 19-CV-06026 (CJS), 2020 WL 979785, at *4 (W.D.N.Y. Feb. 28, 2020), aff'd , 995 F.3d 315 (2d Cir. 2021) ("A plaintiff cannot avoid the necessity of pleading a plausible claim supported by factual allegations merely by asserting statements ‘upon information and belief’ without explaining the basis for the belief.").
In any event, even assuming arguendo that Plaintiff adequately pled that Cunningham engaged in conduct reasonably likely to deter a person from engaging in protected activity, Plaintiff's NYSHRL and NYCHRL claims nevertheless fail because she has not pled the requisite causation. First, Plaintiff pleads no direct evidence of Cunningham's retaliatory animus at the May 2020 dinner. Again, there are no allegations of what Cunningham said at the dinner, let alone whether anything he said was motivated by retaliatory animus as opposed to, for example, frustration with the hassles of litigation. Nor is there any indirect evidence that Plaintiff's filing of this action was a cause of Cunningham's statements at the dinner, since there was no temporal proximity between the two events. In the PSAC, Plaintiff alleges that Cunningham's purported conduct at the May 2020 dinner constituted retaliation against her for filing the instant lawsuit in New York City. (See PSAC at 36 (heading iv).) This action was commenced on May 31, 2019. (See Compl.) Thus, the temporal proximity is too remote to support a causal connection. See De Figueroa , 403 F. Supp. 3d at 157 (explaining that, in the Second Circuit, "a lapse of time beyond two or three months will break the causal inference").
The outcome would be no different even if Plaintiff means to allege that Cunningham's May 2020 conduct constitutes retaliation against her filing of the FAC (see PSAC ¶ 118), as opposed to her filing of her original Complaint, as the FAC predated the May 2020 dinner by approximately five months.
Finally, even assuming arguendo that Plaintiff has adequately pled both conduct likely to deter and causation, her claims against Cunningham are barred by the forum selection clause in her employment agreement. Judge Carter's September 20, 2020 Opinion and Order set forth the law of this case on this issue: the forum selection clause bars claims against JTIL and JTIL's employees, because, under United Kingdom law, "courts should presume that jurisdiction clauses encompass all disputes involving the relationship into which the contracting parties entered ‘unless the language makes it clear that certain questions were intended to be excluded.’ " Kraiem , 492 F. Supp. 3d at 202 (quoting Fili Shipping Co. Ltd. v. Premium Nafta Prods. Ltd. , [2007] UKHL 40 [7]). While Plaintiff's subsequent pleadings have clarified that Cunningham was no longer a JTIL employee at the time of the May 2020 dinner (see, e.g. , PSAC ¶ 20), that clarification does not alter the fact that Plaintiff's dispute with Cunningham undeniably "involv[es] the relationship into which the contracting parties entered" via her employment contract. Kraiem , 492 F. Supp. 3d at 202. Indeed, the PSAC itself continues to assert discrimination claims against Cunningham that are based entirely on his conduct as a JTIL employee. (See PSAC ¶¶ 140-70.) Plaintiff cites no case law wherein a plaintiff's discrimination claims against a defendant are adjudicated under one legal regime, and that same plaintiff's retaliation claims against that same defendant are adjudicated under a second. Under the instant circumstances, the Court finds that such an approach would run counter to the "vital interests of the justice system, including judicial economy and efficiency." Kraiem , 492 F. Supp. 3d 184, 202 (quoting Magi XXI, Inc. v. Stato della Citta del Vaticano , 714 F.3d 714, 722 (2d Cir. 2013) ). Cunningham may invoke the clause.
By reason of the foregoing, Plaintiff's PSAC fails to state a retaliation claim against Cunningham under the NYSHRL or the NYCHRL.
Because the PSAC's allegations concerning the May 2020 dinner fail to state a retaliation claim, the PSAC's proposed supplementary allegations concerning Plaintiff's work at StoneX are futile on the merits as well. Those StoneX-related allegations sought to demonstrate that Cunningham's purported May 2020 retaliation had an impact in New York, but this is a moot point given that no May 2020 retaliation has been adequately alleged. Thus, the Court need not reach the issue of whether the StoneX-related allegations, which predate the filing of the FAC, were permitted under Judge Carter's May 26, 2021 Opinion and Order.
III. Plaintiff's Proposed Supplementary Allegations Do Not Resuscitate Her Claims Against Chmielewski and Hill
Similarly futile are Plaintiff's retaliation claims against Chmielewski and Hill. Judge Carter previously held that Plaintiff had failed to plead that Chmielewski and Hill "personally engaged in any harassing or retaliatory conduct that had an impact on Plaintiff within New York City." Kraiem , 2021 WL 2134818, at *4. While Plaintiff's proposed allegations regarding the May 2020 dinner involve Cunningham, none of them involves Chmielewski or Hill. (See PSAC ¶¶ 118-24.) As discussed above, these proposed allegations fail even to support a claim against Cunningham. Moreover, even assuming arguendo that they established Cunningham's liability for retaliation, those added allegations still would not establish that Chmielewski or Hill engaged in any actionable retaliatory conduct.
Plaintiff conclusorily asserts that the May 2020 dinner represents one incident in a "pattern and practice of retaliation to which Ms. Kraiem was subjected and in which defendants Chmielewski and Hill aided, abetted and participated," and appears to argue that, because this "pattern and practice," viewed cumulatively, impacted Plaintiff in New York City—via the May 2020 dinner—Chmielewski and Hill also should be deemed to have impacted Plaintiff in New York. (See Pl.’s 8/5/21 Mem. at 22-23.) But the Court sees no pattern or practice here. The May 2020 dinner post-dated any alleged conduct by Chmielewski or Hill by nearly two years. (See PSAC ¶¶ 109-10 (latest allegations regarding Chmielewski and Hill relate to conduct in May and June 2018).) Further, Plaintiff alleges that Cunningham's May 2020 conduct was retaliating against Plaintiff's filing of the instant lawsuit—an event against which Chmielewski and Hill's alleged conduct could not possibly have been retaliating given that it had not occurred yet. (See Compl.; PSAC ¶¶ 109-10.) In short, the Court finds any linkage between Chmielewski and Hill's alleged conduct in May and June of 2018 and Cunningham's alleged conduct in May 2020 too tenuous to support deeming the former actionable based on any New York impact of the latter. Thus, the Court finds that Plaintiff's attempt to use her proposed supplemental allegations to resuscitate her claims against Chmielewski and Hill is futile.
CONCLUSION
For the foregoing reasons, Plaintiff's motion to supplement (ECF No. 110) is DENIED. The Court has reviewed and considered the Kraiem Declaration and it does not alter the Court's analysis above. Thus, the Court DENIES as moot Defendants’ Letter Motion addressing such Declaration (ECF No. 126).