ORDER Plaintiff, Sherry Grimes-Jenkins, brings this action against Consolidated Edison Company of New York, Inc. (“Con Edison”) and Sean Green, alleging twenty-four federal and state causes of action arising out of her employment by Con Edison. Compl., ECF No. 1. Con Edison moves to dismiss the complaint on several grounds, including that the case is duplicative of another that is pending before the Court, and for insufficient service of process pursuant to Federal Rule of Civil Procedure 12(b)(5). ECF No. 27. Con Edison also moves for attorneys’ fees and costs. Def. Mem. at 23, ECF No. 28. For the reasons stated below, Con Edison’s motion to dismiss is GRANTED and its request for attorneys’ fees and costs is DENIED.BACKGROUNDI. Procedural HistoryOn June 23, 2016, Plaintiff filed an action in this district (the “First Action”) against Con Edison, which was assigned the case number 16 Civ. 4897. First Action ECF No. 1.1 On September 13, 2016, Plaintiff filed an amended complaint. First Action ECF No. 10. The causes of action Plaintiff asserted were not clear, but as described in a May 22, 2017 Report & Recommendation (“R&R”) issued by the Honorable James. C. Francis (and which is discussed infra), Plaintiff brought claims arising out of her employment by Con Edison for:(1) discrimination based on race, national origin, sex, and religion under Title VII; the New York State Human Rights Law, N.Y. Exec. Law §296 et seq. (the “NYSHRL”); and the New York City Human Rights Law, N.Y.C. Admin. Code §8-107 (the “NYCHRL”)…; (2) quid pro quo harassment…; (3) hostile work environment…; (4) retaliation…; [and others].R&R at 3-4, First Action ECF No. 42 (footnotes omitted) (citing First Action ECF No. 10).On November 18, 2016, Con Edison filed a partial motion to dismiss the amended complaint. First Action ECF No. 21. On December 23, 2016, Plaintiff filed a cross-motion to file a second amended complaint. First Action ECF No. 27; see also First Action ECF No. 27-3 (proposed second amended complaint). The differences between the amended complaint and this proposed second amended complaint, as described in the R&R, were as follows:The [p]roposed [s]econd [a]mended [c]omplaint replaces the plaintiff’s religious discrimination claim with a discrimination claim based on her ethnicity. It otherwise alleges the same causes of action as the [a]mended [c]omplaint, though it reorganizes the claims under different headings…and clarifies that the quid pro quo harassment, hostile work environment, and retaliation claims are each brought pursuant to Title VII, the NYSHRL, the NYCHRL, [and other statutes].R&R at 5. Therefore, “[w]ith the exception of the plaintiff’s replacement of her religious discrimination claim with an ethnicity discrimination claim,” the allegations between the amended complaint and the proposed second amended complaint were “substantively identical.” R&R at 9. In both pleadings, Plaintiff alleged “numerous incidents of discrimination, retaliation, and harassment dating back to 1990.” Id.On May 11, 2017, the Court referred Con Edison’s motion for partial dismissal and Plaintiff’s cross-motion to file a second amended complaint to Judge Francis for a report and recommendation, First Action ECF No. 41, and on May 22, 2017, Judge Francis issued the R&R, see R&R. In the R&R, Judge Francis recommended that dismissal be granted and leave to amend be denied with respect to most of plaintiff’s claims. See id. at 46. No objections to the R&R were filed, and on June 22, 2017, after reviewing for clear error, the Court adopted the R&R in its entirety. First Action, ECF No. 43. On July 20, 2017, Plaintiff filed her second amended complaint (the “First Action SAC”). First Action SAC, First Action ECF No. 46. On September 22, 2017, Con Edison filed an answer. First Action ECF No. 53. Litigation in the First Action remains ongoing.On February 20, 2018, Plaintiff filed the complaint in this action (the “Complaint”). See Compl. On February 28, 2018, the Court referred this action to the Honorable Robert W. Lehrburger for general pretrial purposes. ECF No. 6. On June 12, 2018, Plaintiff filed the Complaint again. ECF No. 7. That same day — 112 days after filing the Complaint — Plaintiff requested an issuance of summonses from the Clerk of Court. ECF No. 10. On June 14, 2018 — 114 days after filing the Complaint — Plaintiff served Defendants. ECF Nos. 12-13.On July 30, 2018, Con Edison filed a pre-motion letter seeking leave to file a motion to dismiss. ECF No. 22. Plaintiff did not file a response, in violation of Rule III.A.ii of the Court’s Individual Practices in Civil Cases. On September 28, 2018, the Court set a briefing schedule on Con Edison’s motion to dismiss, and ordered that (a) Con Edison file its motion by October 26, 2018; (b) Plaintiff file her opposition by November 9, 2018; and (c) Con Edison file its reply by November 16, 2018. ECF No. 24. Con Edison timely filed its motion on October 26, 2018. ECF No. 27. Plaintiff did not file her opposition on November 9, 2018. On November 13, 2018, Judge Lehrburger issued an order stating that he had received a request from Plaintiff for an extension of time to file her opposition via email, and directing her to instead make the request to this Court. ECF No. 30. Plaintiff did not do so. Con Edison filed a “reply” on November 16, 2018. Def. Reply, ECF No. 31. In a declaration accompanying the reply, counsel for Con Edison stated that counsel for Plaintiff had called him on November 13, 2018 to ask when his opposition was due, and stated that he had forgotten when it was due and did not have an excuse for missing the deadline. Second Rabe Decl.
3-5, ECF No. 32.On November 28, 2018 — almost three weeks after Plaintiff’s opposition was due, and over two weeks after Judge Lehrburger ordered her to make any request for an extension to this Court — Plaintiff filed a letter addressed to this Court. ECF No. 33. Plaintiff did not, however, seek leave to promptly file her opposition, nor did she explain why she had failed to timely file her opposition. See id. Instead, she requested an extension of several more weeks, on the ground that Judge Lehrburger had scheduled a settlement conference in the First Action for December 12, 2018, which she stated may settle both cases and render Con Edison’s motion moot. Id. at 2.2 Plaintiff claimed that she would suffer “severe” prejudice by responding to Con Edison’s motion before the settlement conference. Id. The Court denied Plaintiff’s request, ECF No. 34, and Con Edison’s motion to dismiss is, therefore, unopposed.Notably, pursuant to Rule III.B.ii of the Court’s Individual Practices in Civil Cases, before seeking leave from the Court to file a motion to dismiss, a defendant must send the plaintiff a letter explaining the bases for the proposed motion. The plaintiff must respond by letter and indicate, inter alia, “the reasons and controlling authority that support the pleadings as filed.” The rule encourages parties to resolve pleading deficiencies without court intervention. Although these initial letters are not ordinarily filed with the Court, Con Edison attached them to its motion papers. First Rabe Decl. Exs. A and B, ECF Nos. 29-1 and 29-2. On July 10, 2018, Con Edison sent Plaintiff a detailed, three-page letter setting forth the bases for its proposed motion to dismiss, including, inter alia, that the action is duplicative of the First Action, and that the complaint was not timely served. Id. Ex A. In its July 23, 2018 letter to Con Edison, Plaintiff sent its response, which was:Initially, the action in 2018 (hereinafter ‘New’ action) deals with events occurring subsequent to the filing of the original 2016 action (hereinafter the ‘Original’ action). The New action also alleges more in depth [sic] with regard to the actions of Sean Green. Thus, while the claims as to ConEd of failing to address, and tolerating if not encouraging — or at least turn in [sic] a blind eye — as to all such acts are, indeed, similar, the balance of the Complaint in the New action is substantially different.Id. Ex. B. Given Plaintiff’s failure to file a response to Con Edison’s July 30, 2018 pre-motion letter to the Court, ECF No. 22, and her refusal to timely file an opposition to Con Edison’s motion to dismiss, these three sentences are the sole basis from which the Court can discern Plaintiff’s argument for filing the Complaint in this action.II. Similarities Between the Two ComplaintsIn the Complaint, Plaintiff repeats the allegations stated in the First Action SAC. Plaintiff appears to acknowledge as much, stating in the Complaint that “[t]he instant action is a further manifestation of the acts complained of in the [First Action] and is a continuation of the harassment, retaliation and unlawful employment practices complained of by Plaintiff therein, coupled with specific and new allegations against Defendant Green specifically, and against Defendant [Con Edison] on the basis of imputed liability.” Compl. 7.The causes of action overlap substantially between the two pleadings. In the Complaint, Plaintiff brings the following claims against Con Edison: sex discrimination, hostile work environment, harassment, and retaliation in violation of Title VII, the NYSHRL, and the NYCHRL, as well as wrongful termination, negligent hiring, training, retention, and supervision, and “prima facie tort.” Complaint at 25-52, 56-57. Plaintiff brings claims against Green for assault, battery, and intentional and negligent infliction of emotional distress. Id. at 53-55, 57-59. As discussed, in the First Action SAC, Plaintiff brings causes of action against Con Edison for hostile work environment and retaliation in violation of Title VII, the NYSHRL, and the NYCHRL, as well as race discrimination and sex discrimination in violation of the NYCHRL. First Action SAC at 27-48.The allegations in the Complaint are also largely identical to those in the First Action SAC. In fact, many paragraphs of the Complaint are verbatim or almost verbatim to those in the First Action SAC. Compare, e.g., First Action SAC
