RESAT KELES v. JULIO DAVALOS ANIL AGRAWAL ALISON CONWAY VASIL DIYAMANDOGLU ROBERT PAASWELL VINCENT BOUDREAU CITY COLLEGE OF NEW YORK ELIZABETH WITTIG (2022)

ORDER ADOPTING REPORT AND RECOMMENDATION for 55 Motion to Dismiss:

On August 13, 2021, Defendants Julio Davalos, Anil Agrawal, Alison Conway, Vasil Diyamandoglu, Robert Paaswell, Vincent Boudreau, and Elizabeth Wittig (collectively, “Defendants”) filed a motion to dismiss the Amended Complaint in this action pursuant to Rules 12(b)(1), (2), (5) and (6) of the Federal Rules of Civil Procedure. See Defendants’ Notice of Motion to Dismiss (“Defendants’ Motion”), ECF No. 55; Defendants’ Memorandum of Law in Support of Motion to Dismiss, ECF No. 56; Defendants’ Reply Memorandum of Law, ECF No. 59; Defendants’ First Supplemental Briefing, ECF No. 63; Defendants’ Second Supplemental Briefing, ECF No. 69. Plaintiff opposed Defendants’ Motion. See Plaintiff's Memorandum of Law in Opposition, ECF No. 57; Plaintiff's First Supplemental Briefing, ECF No. 58; Plaintiff's Second Supplemental Briefing, ECF No. 64; Plaintiff's Third Supplemental Briefing, ECF No. 68. On April 26, 2022, I referred Defendants’ Motion to Dismiss to Magistrate Judge Taryn A. Merkl for a report and recommendation (“R&R”). See April 26, 2022 Order.

On August 5, 2022, Judge Merkl issued an R&R recommending that Defendants’ Motion be granted in part and denied in part. See generally R&R, ECF No. 70. Judge Merkl recommended denying Defendants’ Motion as to (1) Plaintiff's 42 U.S.C. § 1983 (“Section 1983”) retaliation claim under the Equal Protection Clause against Defendant Boudreau in his official capacity, but only to the extent Plaintiff is seeking prospective relief; (2) Plaintiff's Section 1983 retaliation claim under the Equal Protection Clause against Defendants Boudreau and Davalos in their individual capacities, as well as the corresponding New York State Human Rights Law (“NYSHRL”) and New York City Human Rights Law (“NYCHRL”) retaliation claims alleging individual liability; (3) Plaintiff's NYSHRL and NYCHRL age-based disparate treatment claims against Defendant Davalos in his individual capacity; and (4) Plaintiff's NYCHRL hostile work environment claim against Defendant Davalos in his individual capacity (collectively, “Surviving Claims”). See R&R at 47-48. Judge Merkl recommended granting Defendants’ Motion as to Plaintiff's other claims, and to the extent Plaintiff seeks money damages and retrospective relief against Defendant Boudreau in his official capacity (collectively, “Non-surviving Claims”). See R&R at 48. Judge Merkl further recommended that Plaintiff not be granted leave to replead at this time, and that to the extent Plaintiff seeks leave to replead in the future, Plaintiff should be required to file an appropriate motion, specifying the nature of any proposed amendments and why leave to amend should be granted. See R&R at 47. On August 19, 2022, Defendants filed objections to the R&R. See Defendants’ Notice of Objections to R&R, ECF Nos. 71; Defendants’ Memorandum of Law in Support of Objections (“Defs.’ Obj. Br.”), ECF No. 71-1. Plaintiff did not file any objections to the R&R, including as to those portions of the R&R recommending that Defendants’ Motion to Dismiss be granted in part and that Plaintiff not be granted leave to replead at this time. On September 14, 2022, Plaintiff filed his opposition to Defendants’ objections to the R&R, in which he requested that the Court adopt the R&R in its entirety. See Plaintiff's Memorandum of Law in Opposition to Defendants’ Objections to R&R (“Pl.’s Obj. Opp. Br.”), ECF No. 73.

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); see also Fed. R. Civ. P. 72(b)(3). A district court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b)(3) (providing that a district court “must determine de novo any part of the magistrate judge's disposition that has been properly objected to”); Arista Recs., LLC v. Doe 3, 604 F.3d 110, 116 (2d Cir. 2010) (“As to a dispositive matter, any part of the magistrate judge's recommendation that has been properly objected to must be reviewed by the district judge de novo.”); Lorick v. Kilpatrick Townsend & Stockton LLP, No. 18-CV-07178, 2022 WL 1104849, at *2 (E.D.N.Y. Apr. 13, 2022). To accept those portions of an R&R to which no timely objection has been made, however, “a district court need only satisfy itself that there is no clear error on the face of the record.” Lorick, 2022 WL 1104849, at *2 (quoting Ruiz v. Citibank, N.A., No. 10-CV-05950, 2014 WL 4635575, at *2 (S.D.N.Y. Aug. 19, 2014)); see also Jarvis v. N. Am. Globex Fund, L.P., 823 F. Supp. 2d 161, 163 (E.D.N.Y. 2011).

Because no party has objected to the R&R's recommendations that Defendants’ Motion be granted as to the Non-surviving Claims and that Plaintiff not be granted leave to replead at this time, the Court's review of the R&R with respect to those recommendations is for clear error. Having reviewed the R&R and finding no clear error with respect to the recommendations as to the Non-surviving Claims and as to repleading, I adopt the R&R as to those recommendations. Accordingly, Defendants’ Motion is granted as to the Non-surviving Claims and those claims are dismissed; Plaintiff is not granted leave to replead at this time; and to the extent Plaintiff seeks leave to replead in the future, Plaintiff must file an appropriate motion, specifying the nature of any proposed amendments and why leave to amend should be granted.

In light of Defendants’ various objections, see generally Defs.’ Obj. Br. -- and notwithstanding Plaintiff's position that review should be for clear error only, see Pl.’s Obj. Opp. Br. at 2 -- the Court reviews de novo the R&R with respect to the recommendation that Defendants’ Motion be denied as to the Surviving Claims. A review of the R&R, the record, and the applicable law reveals that Judge Merkl properly concluded that denying Defendants’ Motion to Dismiss as to the Surviving Claims is appropriate. Accordingly, I adopt the R&R's recommendation that Defendants’ Motion to Dismiss be denied as to the Surviving Claims. The Surviving Claims may proceed at this juncture.

Defendants’ Motion to Dismiss, ECF No. 55, is GRANTED in part and DENIED in part. The parties are directed to Judge Merkl for pretrial discovery in connection with the Surviving Claims. The parties are further directed to Judge Merkl for a settlement conference.

Ordered by Judge Diane Gujarati on 11/23/2022. (SS) (Entered: 11/23/2022)

Judge Diane Gujarati