Lee v. Delta Air Lines Inc.

MEMORANDUM & ORDER On April 6, 2020, Jae Lee (“Plaintiff”), a practicing New York attorney proceeding pro se, filed a complaint against Delta Air Lines, Inc. (“Delta”), John Doe,¹ and Jane Doe (collectively, “Defendants”), alleging Delta employees racially discriminated against her on a Delta flight in violation of federal and New York law. ECF No. 1. On August 29, 2022, following discovery and with Delta’s summary judgment motion pending, Plaintiff filed a motion to amend her Complaint. ECF No. 58.² The Court referred Plaintiff’s motion to amend the Complaint to Magistrate Judge Lee G. Dunst for a Report and Recommendation (“R&R”), which Judge Dunst issued on March 14, 2023. ECF No. 72. Plaintiff timely filed objections to the R&R on March 28, 2023. ECF No. 73. For the following reasons, the Court OVERRULES Plaintiff’s objections, and ADOPTS the R&R. Furthermore, after considering the parties’ fully briefed summary judgment arguments, the Court GRANTS Defendant Delta’s motion for summary judgment, ECF No. 55, as to Plaintiff’s purportedly asserted claim under 42 U.S.C. §1981 against all Defendants. With no remaining causes of action, Plaintiffs Complaint is DISMISSED as moot. The Clerk of Court is respectfully directed to close the case. REPORT & RECOMMENDATION I. BACKGROUND The R&R provides a comprehensive description of the facts of this case and therefore the Court will not recite them at length. See R&R at 2-4. The relevant procedural developments are as follows. On September 8, 2020, previously-assigned Magistrate Judge Steven Tiscione set a discovery schedule in this action.³ ECF No. 12. December 4, 2020 was the “[d]eadline for motions to join new parties or amend pleadings.” Id. By the deadline, Plaintiff made no motions to join new parties or amend the pleadings. Judge Tiscione granted several extensions of discovery, ECF Nos. 21, 31, 37, ultimately setting a final discovery deadline of March 31, 2022. ECF No. 40. After the completion of discovery, Delta requested leave to file summary judgment. ECF No. 50. The Court granted Delta’s request and set a briefing schedule for the parties to file summary judgment submissions by August 26, 2022. ECF No. 51. Delta timely filed its submissions for summary judgment. ECF Nos. 55-57. Plaintiff filed a motion to amend her Complaint on August 29, 2022-three days after the summary judgment submission deadline and over twenty months after the December 4, 2020 deadline to join new parties or amend pleadings. ECF No. 58.⁴ In her motion, Plaintiff sought to substitute two named individuals for the two Doe defendants, add factual allegations and three causes of action under unspecified state law, and withdraw four causes of action. See ECF Nos. 58, 58-1, 70. The Court referred Plaintiffs motion to amend the Complaint to Judge Dunst for a Report and Recommendation. ECF No. 62. On March 14, 2023, following briefing by the parties on Plaintiff’s motion, Judge Dunst issued the R&R, recommending the Court grant in part and deny in part Plaintiff’s motion. R&R at 1. Specifically, Judge Dunst recommends denying Plaintiff’s request to amend the Complaint by adding new defendants and factual allegations and granting Plaintiff’s motion to withdraw the Complaint’s four causes of action. Id. at 24. Judge Dunst further recommends dismissing those four causes of actions with prejudice. Id. On March 28, 2023, Plaintiff timely filed objections and asked this Court to reject the R&R and grant her request to file an amended Complaint. ECF No. 73. II. DISCUSSION A. Standard of Review In reviewing a report and recommendation, a district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. §636(b)(1)(C). Parties must serve and file any written objections to the proposed findings and recommendations within fourteen days of being served with a copy of such proposed findings and recommendations. Id. A district judge “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” Id. Objections to a report and recommendation must be “specific and are to address only those portions of the proposed findings to which the party objects.” Phillips v. Reed Grp., Ltd., 955 F. Supp. 2d 201, 211 (S.D.N.Y. 2013) (Owen, J.) (internal quotation marks and citation omitted). “Where ‘the objecting party makes only conclusory or general objections, or simply reiterates the original arguments, the Court will review the report and recommendation strictly for clear error.’” Norman v. Metro. Transp. Auth., 13-CV-1183, 2014 WL 4628848, at *1 (E.D.N.Y. Sept. 15, 2014) (Matsumoto, J.) (quoting Zaretsky v. Maxi-Aids, Inc., 10-CV-3771, 2012 WL 2345181, at *1 (E.D.N.Y. June 18, 2012) (Feuerstein, J.)). As Judge Dunst noted, a pro se litigant typically receives “special solicitude” because he or she “generally lacks both legal training and experience and, accordingly, is likely to forfeit important rights through inadvertence if he [or she] is not afforded some degree of protection.” Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010); see also R&R at 10. Nonetheless, the Court agrees with Judge Dunst that Plaintiff does not receive special solicitude because she “is an attorney practicing law in New York State and has been authorized to do so for nearly two decades.” R&R at 10. B. Analysis 1. Denial of Plaintiff’s Amended Complaint Plaintiff objects to Judge Dunst’s recommendation that the Court deny Plaintiff leave to file an amended complaint. ECF No. 73 at 4. The Court agrees with Judge Dunst that Plaintiff’s request fails under both the more stringent Federal Rule of Civil Procedure 16 standard and the more lenient Federal Rule of Civil Procedure 15 standard. See Sacerdote v. New York Univ., 9 F.4th 95, 115 (2d Cir. 2021) (“The ability of a plaintiff to amend the complaint is governed by Rules 15 and 16 of the Federal Rules of Civil Procedure which, when read together, set forth three standards for amending pleadings that depend on when the amendment is sought.”). a. Rule 16 As an initial matter, the Court agrees with Judge Dunst’s analysis of Sacerdote that Rule 16 applies where, as here, “motions to amend pleadings or join additional parties [are] filed after a stated deadline for such ‘motions.’” R&R at 8. Under Rule 16, the “period of ‘liberal’ amendment ends if the district court issues a scheduling order setting a date after which no amendment will be permitted.” Sacerdote, 9 F.4th at 115. “It is still possible for the plaintiff to amend the complaint after such a deadline, but the plaintiff may do so only up a showing of the ‘good cause.’” Id. Judge Dunst correctly found that Plaintiff failed to establish good cause for delay in filing an amended complaint, as required by Rule 16. Plaintiff was aware of the proposed additions to her Complaint “nearly two months before the December 4, 2020 amendment deadline and over twenty-two months before Plaintiff first moved to amend.” R&R at 12. Plaintiff’s new factual allegations and state law claims were based on conduct she allegedly experienced firsthand and could have asserted in her initial Complaint. Id. at 13. In her objections, Plaintiff fails to mention Rule 16 or explain why it should not apply in light of Judge Dunst’s analysis of Sacerdote. Plaintiff provides only conclusory statements that Sacerdote “establishe[s]” that “ this lenient standard [under Rule 15] should apply.” ECF No. 73 at 2. Plaintiff attempts to bolster her argument by citing additional purported Second Circuit caselaw, specifically Cablevision Sys. Corp. v. Wisznia Architecture & Dev., LLC, 715 F.3d 175 (2d Cir. 2013) and Marrero Pichardo v. Ashcroft, 374 F.3d 46, 55-56 (2d Cir. 2004). Id. This Court could not find a Second Circuit case under the name of “Cablevision Sys. Corp. v. Wisznia Architecture & Development, LLC.”⁵ Instead, the reporter number and year are similar to a Sixth Circuit case-Flagg v. City of Detroit, 715 F.3d. 165 (6th Cir. 2013). However, Flagg makes no mention of Rule 15, Rule 16, or amending pleadings. Furthermore, Flagg contains none of the facts Plaintiff alleges. Compare Flagg, 715 F.3d 165 with ECF No. 73 at 2. Marrero Pichardo is an existent Second Circuit case; however, it deals with a habeas petition in the immigration context and, as Delta correctly noted, “does not discuss…any of the issues raised in Plaintiffs Objections.” ECF No. 74 at 1. Indeed, Marrero Pichardo makes no mention of either Rule 15 or Rule 16. 374 F.3d 46 (2d Cir. 2004). Plaintiff also cites two district court cases that address Rule 15: Aboah v. Fairfield Healthcare Servs., Inc., 20-CV-00763, 2022 WL 443253, at *3 (D. Conn. Feb. 14, 2022) (Nagala, J.) and Scott v. Chipotle Mexican Grill, Inc., 300 F.R.D. 193, 198 (S.D.N.Y. 2014) (Netburn, M.J.). ECF No. 73 at 2. Plaintiff cites these cases for their recitations of the Rule 15 standard without explaining why that standard, rather than the standard contained in Rule 16, should apply. Id. The Court is unpersuaded by Plaintiff’s conclusory statements that Rule 15 prevails over Rule 16 in this case. Additionally, the Court maintains serious concern that at least one of Plaintiff’s cited cases is non-existent and may have been a hallucinated product of generative artificial intelligence, particularly given Plaintiff’s recent history of similar conduct before the Second Circuit. See Park v. Kim, 91 F.4th 610, 612 (2d Cir. 2024) (“We separately address the conduct of Park’s counsel, Attorney Jae S. Lee. Lee’s reply brief in this case includes a citation to a non-existent case, which she admits she generated using the artificial intelligence tool ChatGPT.”). b. Rule 15 Plaintiff objects to Judge Dunst’s holding that Plaintiffs motion to file an amended complaint “fails to satisfy Rule 15…because it would impose prejudice and cause undue delay.” R&R at 19; see ECF No. 73 at 4-7. Even if Rule 15 applied, Plaintiffs objections to Judge Dunst’s analysis are without merit. Plaintiff begins her objections to Judge Dunst’s Rule 15 analysis by repeating, nearly verbatim, her reasoning from her motion to amend the Complaint. Compare ECF No. 70 at 2 (discussing United States ex rel. Raffington v. Bon Secours Health Sys. Inc., 285 F. Supp. 3d 759, 765 (S.D.N.Y. 2018) (Gorenstein, M.J.)) with ECF No. 73 at 5 (same). In light of the fact that Plaintiff “simply reiterates [her] original arguments,” the Court finds Judge Dunst committed no clear error in dismissing Plaintiff’s Rule 15 arguments in the R&R. Norman v. Metro. Transp. Auth., 13-CV-1183, 2014 WL 4628848, at *1 (E.D.N.Y. Sept. 15, 2014) (Matsumoto, J.) (internal citation omitted). Plaintiff also returns to Marrero Pichardo as a purportedly similar case in which the Second Circuit held that the “district had erred in denying the motion [to amend the complaint] and noting that the new causes of action and joinder of additional defendants were not futile.” ECF No. 73 at 5. Not so. Marrero Pichardo is inapposite because it discusses the filing of amended habeas petitions as opposed to amended complaints pursuant to Rules 15 and 16. 374 F.3d 46 (2d Cir. 2004). Moreover, in that case the district court granted the plaintiffs request to amend his habeas petition because his counsel “had misconstrued the underlying facts” before later denying the plaintiff’s motion for reconsideration of the dismissal of his habeas petition. Id. at 50. Without mention of Rule 15, the Second Circuit in Marrero Pichardo reversed the district court’s denial of reconsideration where the plaintiff sought to submit only one new claim based on recent caselaw, not multiple “new causes of action” or “additional defendants.” Plaintiff points to another Second Circuit case-Ricciuti v. New York City Transit Authority-in attempting to highlight a reversal of a district court’s denial of the plaintiffs motion to amend the complaint after the defendant filed for summary judgment because, according to Plaintiff, the “district court had erred in finding undue delay.” ECF No. 73 at 5; see also Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119 (2d Cir. 1991). Plaintiff again mischaracterizes this case. The district court in Ricciuti did not make an undue delay finding and instead dismissed the complaint “for failure to state a claim.” 941 F.2d at 120. Plaintiff objects to Judge Dunst’s finding of undue delay by noting she and a deponent separately suffered injuries and pandemic-related illnesses. ECF No. 73 at 6. But Plaintiff provided no explanation for how these facts, if true, caused Plaintiff to wait over twenty months from the December 4, 2020 deadline to seek leave to file an amended complaint. These injuries and illnesses do not change the fact that Plaintiff could have asserted her proposed new allegations and state law claims “when she commenced this litigation over two years before seeking to amend.” R&R at 16. Judge Dunst also noted that Delta disclosed the identities of the two employees Plaintiff seeks to add as new defendants “nearly two months before the December 4, 2020 amendment deadline and over twenty-two months before Plaintiff first moved to amend.” Id. at 12. Plaintiff did not inform the Court at or soon after the amendment deadline that she intended to add named defendants, factual allegations, or causes of action but was facing delays due to injury or illness. Plaintiffs objections do not dissuade the Court that Judge Dunst was correct in concluding that “these circumstances reflect undue delay.” Id. at 16. Plaintiff also argues Defendants do not face undue prejudice because, according to Plaintiff, “no additional discovery is necessary for the new causes of action, as they merely clarify and correct errors and inaccuracies.” ECF No. 73 at 7. However, as Judge Dunst wrote, “Plaintiff ignores that discovery ‘is not a one-way street designed to allow plaintiffs to collect evidence in support of their claims. It is also a mechanism for defendants to accumulate evidence to defend themselves and to test the evidence of their opponents.’” R&R at 18 (quoting Fioranelli v. CBS Broad., Inc., 15-CV-952, 2019 WL 1059993, at *5 (S.D.N.Y. Mar. 6, 2019) (Broderick, J.). Although Plaintiff may be finished with discovery, she does not speak for Defendants. Facing new factual allegations, new claims, and newly named defendants, Defendants would likely reopen discovery and commence new motion practice, as noted by Judge Dunst. R&R at 16-18. Accordingly, Plaintiff’s objections do not raise any new issues that disturb Judge Dunst’s finding that “allowing Plaintiff to file the [proposed amended complaint] would clearly prejudice Delta” given that discovery is closed and Delta already moved for summary judgment. Id. at 17. 2. Dismissal With Prejudice of Plaintiff’s Withdrawal Claims Plaintiff objects to Judge Dunst’s recommendation that the Court “dismiss Plaintiffs withdrawal claims in the proposed amended complaint with prejudice.” ECF No. 73 at 7. The Court agrees with Judge Dunst that dismissal with prejudice of the four causes of action Plaintiff seeks to withdraw “is proper and in the interest of judicial economy.” R&R at 19. Plaintiff argues Judge Dunst erred in citing two cases to support dismissing the withdrawn claims. ECF No. 73 at 7. The first case Plaintiff takes issue with is Kilpakis v. JPMorgan Chase Fin. Co., LLC, 229 F. Supp. 3d 133, 140 (E.D.N.Y. 2017) (Spatt, J.). ECF No. 73 at 7. Plaintiff states the district court in that case “actually granted leave to file the proposed amended complaint and granted the withdrawal claims.” Id. Judge Dunst does not deny this, nor is it incongruous with his conclusions. See R&R at 19-20 (describing Kilpakis as “granting motion to amend to the extent plaintiff sought to withdraw her New York Fair Credit Reporting Act claim”) (emphasis added). Judge Dunst cites Kilpakis to highlight an example of a district court granting a motion to amend a complaint for the purpose of withdrawing claims. Next, Plaintiff states Judge Dunst’s citation to Kwan v. Schlein, 634 F.3d 224, 230 (2d Cir. 2011) was erroneous because “the Kwan case did not involve a motion to amend the complaint or withdraw claims.” ECF No. 73 at 7. Plaintiff misconstrues Kwan and Judge Dunst’s reasoning. The defendants in Kwan sought leave from the district court to “dismiss their counterclaims voluntarily.” Kwan, 634 F.3d at 228. Because Plaintiff failed to specify whether she seeks to dismiss her claims with or without prejudice, Judge Dunst properly cited Kwan to outline the “[t]wo lines of authority” and their respective elements for determining when dismissal of claims with or without prejudice is proper. R&R at 20 (citing Kwan, 634 F.3d at 230). While Kilpakis and Kwan do not contain all the same facts as the instant case, these cases are not analyzed in isolation. Taken together with the other citations in section III(C) of the R&R, these cases undermine Plaintiff’s allegation that “there appears to be no proper legal authority or reasoning to dismiss the withdrawal claims with prejudice if the amended complaint is not permitted.” ECF No. 73 at 7; see R&R at 20-24. Accordingly, the Court agrees with Judge Dunst that dismissal with prejudice of the four causes of action Plaintiff seeks to withdraw is warranted. R&R at 20-24 (finding four of the five Zagano factors weighed in favor of dismissal with prejudice); see Zagano v. Fordham Univ., 900 F.2d 12, 14 (2d Cir. 1990). CLAIM UNDER 42 U.S.C. §1981 I. SUMMARY JUDGMENT In adopting the R&R, the Court dismisses all causes of actions explicitly listed in Plaintiff’s Complaint. However, Plaintiff asserts that, because the preliminary statement in her Complaint referenced a violation of 42 U.S.C. §1981, ECF No. 1 at 1, this too should be considered as a cause of action. ECF No. 60 at 10-19. Delta maintains that Plaintiff has not properly pled a claim under §1981, but nonetheless addresses the claim on the merits in its summary judgment papers. While the Court is skeptical that this claim has been properly pled,⁶ it decides the issue on the merits as fully briefed by the parties. See Memorandum of Law in Support of Delta’s Motion for Summary Judgment at 15-21, ECF No. 55-9; Plaintiff’s Memorandum of Law in Opposition to Defendant’s Motion for Summary Judgment at 10-19, ECF No. 60; Reply Memorandum of Law in Further Support of Delta’s Motion for Summary Judgment at 7-21, ECF No. 56-7; Plaintiff’s Sur-Reply Memorandum of Law in Further Opposition to Motion for Summary Judgment, ECF No. 66.⁷ After careful consideration of the issues, the Court holds that, even if Plaintiff listed §1981 as a fifth cause of action with factual allegations properly attributed, Plaintiff’s §1981 claim does not survive summary judgment. A. Background The Court has considered the parties’ Local Rule 56.1 Statements, declarations, deposition testimony, and all other evidence pertaining to Delta’s motion for summary judgment. Where facts in a party’s Rule 56.1 Statement are supported by citations to evidence and denied by conclusory statements without citations to conflicting evidence, the Court finds such facts to be admitted. See E.D.N.Y. Local Civ. Rules 56.1(c)-(d). The Court finds the following facts to be undisputed and construes such facts in the light most favorable to Plaintiff, the non-moving party. On August 28, 2019, Plaintiff traveled on a first-class ticket with Delta from Charlotte, North Carolina to New York City, New York. Rule 56.1 Statement of Material Facts in Support of Delta’s Motion for Summary Judgment

1-2, ECF No. 55-8. At the airport in Charlotte, Plaintiffs flight was delayed. Id. 3. Plaintiff received from Delta an earlier flight with a first-class seat. Id. 6. During the boarding process, a Delta Gate Agent learned there was a seat duplication issue with Plaintiffs seat. Id.