Opinion
No. 04 Civ. 2374 (TPG).
March 9, 2005
OPINION
This is the second employment discrimination action brought in this court by plaintiff Michael Carryl. Carryl is a former Occupational Therapist employed by Columbia University College of Physicians Surgeons Harlem Hospital Center ("Harlem Hospital Center").
Defendants move to dismiss the action on the ground of res judicata. They contend that essentially the same claims were presented in a prior action in this court, which was dismissed for failure to prosecute, with the result that the present action is barred.
The motion is granted and the action is dismissed.
Facts
The prior action was commenced in October 2002. It was brought against one defendant only, Harlem Hospital Center. The docket number was 02 Civ. 8565, and the case was assigned to Judge Kaplan.
The action was based upon Title VII of the Civil Rights Act of 1964, the New York State and New York City Human Rights Laws, and the Family Medical Leave Act.
The following is a summary of the factual allegations in the complaint filed in that action.
Plaintiff was hired by Columbia University in 1991 to work as an occupational therapist. Plaintiff claims that he was treated differently from the female employees with respect to promotions, assignments, overtime pay, and evaluations. Plaintiff claims that he was later terminated due to his gender, in retaliation for complaining about discrimination, job assignments and compensation, and for asserting his rights under the FMLA. On or about March 2002, plaintiff sought to take a leave of absence. His employer sent him a letter, dated March 28, 2002, stating that he was required to return the leave request form by April 5, 2002. Plaintiff alleges that he did not receive the letter until after the deadline to respond had already passed, thereby making it impossible for him to comply. Plaintiff claims that the short deadline was created so the defendants could avoid compliance with the FMLA. Plaintiffs employment with Columbia University was terminated on April 12, 2002, during the period of time in which Carryl had anticipated being out on leave.
Judge Kaplan directed that a pretrial conference be held on January 13, 2003 and that plaintiff's attorney notify the defendant. No one appeared on the scheduled date, and Judge Kaplan dismissed the action for lack of prosecution. On January 17, 2003 the attorney for plaintiff wrote the judge and asserted that he had never received any notice of the pretrial conference, and asked that the case be restored to the calendar. The judge did so. A conference was held before Judge Kaplan on March 24, 2003. Plaintiff appeared but the defendant did not. Plaintiff requested that the court enter a default judgment against the defendant because of the defendant's failure to serve an answer and for failure to appear at the conference. The judge declined to do so, raising a question about whether the defendant had been properly served. In any event, a new notice was issued calling for a conference on May 12, 2003. Again, plaintiffs attorney was given the responsibility of notifying defense counsel. None of the parties appeared on the scheduled date, and on May 12, 2003 Judge Kaplan entered an order dismissing the case for lack of prosecution. Plaintiff made no application for reconsideration and did not appeal.
Plaintiff filed the instant action on March 26, 2004. The present action is again against Harlem Hospital Center, but two additional defendants are named — New York City Health and Hospitals Corporation and Columbia University Board of Trustees. The factual allegations in the new case are exactly the same as those in the prior action even to the point of carrying the same paragraph numbers. The only qualification to this is that there is a change in paragraph 19 to add an express reference to the FMLA. Also, paragraph 20 adds an introductory phrase of no substance. In the new action, as in the prior action, the claims of wrongdoing are for acts committed by Harlem Hospital Center. No additional wrongful acts are alleged against the two new defendants. In the prior suit there were four causes of action — under Title VII, the New York State Human Rights Law, the New York City Human Rights Law, and the Family Medical Leave Act, respectively. In the new suit there are three causes of action, the difference being the omission of the Title VII claim.
Discussion
It is well established that under the doctrine of res judicata, or claim preclusion, once a claim has been brought to a final conclusion, all subsequent claims arising from the same set of facts or transactions are barred. Federal Dep't Stores, Inc. Moitie, 452 U.S. 394, 398 (1981); Marjaraj v. Bankamerica Corp., 128 F.3d 94, 97 (2d Cir. 1997).
This rule applies to a dismissal for failure to prosecute. Rule 41(b) of the Federal Rules of Civil Procedure states
For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision . . . operates as an adjudication upon the merits.
Although the rule refers to a defendant moving for dismissal, it is well settled that a court may move sua sponte to dismiss an action for failure to prosecute under that rule. See Link v. Wabash R.R. Co., 370 U.S. 626, 630-32 (1962).
The three causes of action in the present case are identical to three of the four causes of action asserted in the prior action. Judge Kaplan dismissed the prior action for failure to prosecute. Plaintiff had the opportunity to make a timely motion for reconsideration or to appeal from the dismissal. Plaintiff did neither. Under Fed.R.Civ.P. 41(b) Judge Kaplan's order operated as a final decision on the merits and bars the present action.
Conclusion
Defendants' motion is granted on the ground of res judicata. The action is dismissed.
SO ORDERED.