Ray v. New York State Insurance Fund et al
| Diedre V Ray |
| New York State Insurance Fund, Scott Rachelson, Lorraine Mirabella and Joseph Mullen |
| 1:2016cv02895 |
| April 19, 2016 |
| US District Court for the Southern District of New York |
| Foley Square Office |
| New York |
| Naomi Reice Buchwald |
| Employment |
| 42 U.S.C. ยง 2000 |
| Plaintiff |
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Filing
58
MEMORANDUM AND ORDER: granting 50 Motion to Dismiss. The Fund's motion to dismiss is granted in its entirety. Ray's NYSHRL claims are barred by the Eleventh Amendment, her Title VII hostile work environment claim fails because she failed to exhaust her administrative remedies, and her Title VII retaliation claim fails because she not does not plausibly allege that she experienced an adverse employment action because of her engagement in protected activities. To the extent the FAC ca n be interpreted to assert a discrimination claim based on disparate treatment, that claim also fails because the FAC does not raise a plausible inference of discriminatory motive for the one cognizable adverse employment action that it adequately al leges. Ray has previously been afforded an opportunity to amend her complaint in order to cure the alleged deficiencies identified by the Fund's first pre-motion letter, which sought to dismiss Ray's original complaint and raised many of th e deficiencies forming the basis of our decision here. See Order, June 8, 2017, ECF No. 37; Letter from D. Stan O'Laughlin to the Court, June 1, 2017, ECF No. 35. Having had the opportunity to amend once, and having made only cursory amendments that did not meaningfully address the deficiencies identified by the Fund, Ray is "not entitled to an advisory opinion from the Court informing [her] of the [additional] deficiencies in the complaint and then an opportunity to cure those deficie ncies." Bellikoff v. Eaton Vance Corp., 481 F.3d 110, 118 (2d Cir. 2007). Further leave to amend, the scope of which would be significantly limited by Title VII's exhaustion requirement and the statute of limitations, is simply not warrante d at this junction. See Lopez v. CT Partners Exec. Search Inc., 173 F. Supp. 3d 12, 44 (S.D.N.Y. 2016) (Engelmayer, J.) ("[W]here the problems with a claim are 'substantive' rather than the result of an 'inadequately or in artful ly pleaded' complaint, an opportunity to replead would be 'futile' and 'should be denied.'" (quoting Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). Therefore, Ray's Title VII claims are dismissed with prejudic e. However, because we lack subject matter jurisdiction over Ray's NYSHRL claims, those claims must be dismissed without prejudice. See Hernandez v. Conriv Realty Assocs., 182 F.3d 121, 123 (2d Cir. 199 9) ("[W]here a court lacks subject ma tter jurisdiction, it also lacks the power to dismiss with prejudice."). The Clerk of the Court is respectfully directed to terminate the motion pending at docket entry number 50, to enter judgment in the Fund's favor, and to terminate this case. SO ORDERED. (Signed by Judge Naomi Reice Buchwald on 7/18/2018) (ama) Modified on 7/19/2018 (ama).
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