Davis v. Sedgwick Claims Mgmt. Servs.

Full title: LAURA DAVIS, Plaintiff, v. SEDGWICK CLAIMS MANAGEMENT SERVICES INC.…

Court: United States District Court, S.D. New York

Date published: Sep 20, 2023

21-CV-7090 (PGG) (BCM) (S.D.N.Y. Sep. 20, 2023)

Opinion

21-CV-7090 (PGG) (BCM)

09-20-2023

LAURA DAVIS, Plaintiff, v. SEDGWICK CLAIMS MANAGEMENT SERVICES INC., Defendant.

BARBARA MOSES, UNITED STATES MAGISTRATE JUDGE.

REPORT AND RECOMMENDATION TO THE HON. PAUL G. GARDEPHE

BARBARA MOSES, UNITED STATES MAGISTRATE JUDGE.

Plaintiff Laura Davis was a flight attendant for Delta Air Lines (Delta) until it terminated her employment in October 2017. In this action, filed pro se, Davis sues Delta's third-party benefits administrator, Sedgwick Claims Management Services Inc. (Sedgwick), alleging that Sedgwick impaired her contractual employment relationship with Delta, due to racial animus, in violation of 48 U.S.C. § 1981. See Second Amended Complaint (SAC) (Dkt. 28) at ECF pp. 24-25, ¶¶ 162167.¹ She also claims that Sedgwick defamed her by telling Delta, falsely, that she was working as a stripper and pole dancer while she was out on disability leave in 2016-17. Id. at ECF pp. 2528, ¶¶ 168-82. Now before me for report and recommendation (see Dkt. 43) are (i) Sedgwick's motion (Dkt. 41) to dismiss the SAC and (ii) plaintiff's motions (see Dkt. 45) for reconsideration of my order dated November 28, 2022, which rejected her claim that she was entitled to amend again as of right, or, in the alternative, for leave to further amend her pleading by filing her proposed Third Amended Complaint (Proposed TAC) (Dkt. 44). For the reasons that follow, Sedgwick's motion should be granted and plaintiff's motions should be denied.

1 Both ECF page numbers and paragraph numbers are provided because the SAC is not internally paginated and contains many partially-handwritten paragraph numbers which are, at times, illegible. Additionally, paragraphs 160-69 repeat. See SAC at ECF pp. 22-25.

I. BACKGROUND

This action is not plaintiff's first attempt to sue Sedgwick. On May 19, 2020, plaintiff and another former Delta employee, Venus Stinnett, joined a California lawsuit that was already in progress against Delta, Sedgwick, and many other defendants. See Am. Compl. (Dkt. 24) (hereafter the C.D. Cal. Am. Compl.), Azzarmi v. Delta Air Lines, Inc., No. 20-CV-1529 (C.D. Cal. May 19, 2020).² In that action, Davis alleged that Delta defamed her by telling others, including Sedgwick, that she was working as a pole dancer in a "tittie bar" during her 2016-17 disability leave, see C.D. Cal. Am. Compl. ¶¶ 2245-52, 2255, 2260-63, 2266, 2272-73, 2354, 2360, 2364, and that Sedgwick used that information to tortiously interfere with her "economic long term relationship" with Delta, i.e., her job. Id. ¶¶ 2041-42, 2259-65. Davis learned about the defamation in June and July 2017, from multiple Sedgwick and Delta sources, all of whom told her that the "tip" about her supposed pole dancing job came from her managers at Delta, who "forwarded that information" to Sedgwick because it was Sedgwick's job "to do surveillance on Delta employees who are using and abusing . . . disability leaves." Id. ¶¶ 2255, 2262. She also learned, from a Sedgwick representative, that Sedgwick had "obtained evidence that several nights a week you were driving to a strip club near your home and working as a stripper dancing on poles while out on a disability leave." Id. ¶¶ 226162. Although plaintiff told Sedgwick that she had never engaged in that type of work, id. ¶ 2247, Delta terminated her employment in October 2017. Id. ¶¶ 2259, 2265.

2 The lead plaintiff in Azzarmi v. Delta was Aasir Azzarmi, a fellow former Delta flight attendant and a prolific pro se litigant in multiple jurisdictions. For a partial listing of Azzarmi's recent litigation history, see Azzarmi v. 55 Fulton Mkt., 2023 WL 4627911, at *2 n.4 (S.D.N.Y. July 18, 2023), report and recommendation rejected, 2023 WL 5148253 (S.D.N.Y. Aug. 10, 2023).

On March 16, 2021, the Central District of California dismissed Azzarmi v. Delta with prejudice, noting that the Amended Complaint was filed without leave of court (after Azzarmi was ordered to show cause why his claims were not barred by res judicata); that it violated Fed.R.Civ.P. 8(a)(2); and that in any event it did not "cure the res judicata issue." Azzarmi v. Delta Air Lines, Inc., 2021 WL 1095329, at *1 (C.D. Cal. Mar. 16, 2021). Davis joined her co-plaintiffs in appealing that decision, but voluntarily withdrew her appeal, pursuant to Fed. R. App. P. 42(b), before the Ninth Circuit dismissed the appeal as to Azzarmi and Stinnett as "frivolous." See Order, Azzarmi v. Delta Air Lines, Inc., No. 21-55265 (9th Cir. July 23, 2021).

A. Procedural Background

On August 22, 2021 (one month after she withdrew her appeal in the Ninth Circuit) plaintiff filed this action. In her original, seven-page Complaint (Compl.) (Dkt. 1), she alleged:

1981 claim - I am black, I had employment contract with Delta Airlines, Inc. Because of my race, Defendant Sedgwick impaired my employment contract with Delta Airlines.

ERISA claim: Defendant Sedgwick CMS refused and denied and failed to pay my short term and long term and retirement benefits under Delta's plan.

DEFAMATION: Defendant Sedgwick CMS told third parties, in California and New York, including my employer, Delta Airlines, Inc. that I am a "pole dancer" and a "stripper" who gives "naked lap dances" and does "peep shows" and that I'm a "pimp" who sells females for sex and that I committed "workers compensation fraud" and that I was involved in a "Fraudulent scam" where I was selling pass travel benefits to unknown third parties to "Steal" money from Delta Airlines, Inc.

Compl. at ECF p. 5. The same day she filed her Complaint, plaintiff consented to receive electronic service (Dkt. 3), and has since received email notification of all documents filed on the docket. On August 24, 2021, the Hon. Laura Taylor Swain, Chief United States District Judge, granted plaintiff's request to proceed in forma pauperis (IFP). (Dkt. 4.)

On September 17, 2021, Chief Judge Swain dismissed plaintiff's Complaint for failure to state a cognizable claim, but granted leave to amend, and provided guidance for curing the deficiencies in each of her causes of action. Davis v. Sedgwick Claims Mgmt. Servs., 2021 WL 4252009, at *2-3. (S.D.N.Y. Sept. 17, 2021).

On November 18, 2021, plaintiff filed a 330-page, single-spaced Amended Complaint that attempted to add two new plaintiffs (Aasir Azzarmi and Venus Stinnett, who were Davis's co-plaintiffs in the Central District of California), ten new defendants, including Delta and numerous individuals, and many new and different claims, including a civil RICO claim. See Am. Compl. (Dkt. 6) ¶¶ 1-969.

On January 3, 2022 - before any summonses were issued - plaintiffs filed eleven unsworn proofs of service. (Dkts. 9-19.) Two of them, signed by Erika L. Lee of Carson, California,³ stated that she served "the summons" on Sedgwick and on defendant Kirsten Corsette, a Sedgwick employee, by serving Peter T. Shapiro, who was "designated by law to accept service of process" on their behalf. (Dkts. 12, 14.) Shapiro is an attorney at Lewis Brisbois Bisgaard & Smith LLP. On January 18, 2022, Shapiro appeared on behalf of Sedgwick and Corsette and filed a letter-motion asking the Court to "rule that service on Sedgwick and Ms. Corsette was a nullity," in that (i) there was no summons, (ii) he was not authorized to accept service of process on their behalf, and (iii) Lee "served" him by emailing him a copy of the Amended Complaint, which is ineffective. See Def. 1/18/22 Ltr.-Mtn. (Dkt. 21) at 1-2.

3 Lee is another former Delta employee. She has sued Delta at least twice, in two different jurisdictions, for employment discrimination. See Lee v. Delta Air Lines Inc., 2022 WL 17078679, at *7 (C.D. Cal. May 13, 2022) (dismissing Lee's Fourth Amended Complaint, without leave to amend, after the Court gave her "multiple opportunities to file an amended complaint which complies with Rule 8," such that further amendment would be futile), reconsideration denied, 2022 WL 17078109 (C.D. Cal. Aug. 3, 2022); Lee v. Delta Air Lines, Inc., 2023 WL 3592153, at *11 (S.D.N.Y. Apr. 26, 2023) (concluding that the dismissal of Lee's case in the Central District of California was not "on the merits" for res judicata purposes and thus did not bar her from pressing the same or similar claims in this District).

That same day, Chief Judge Swain dismissed the Amended Complaint, sua sponte, because it failed to comply with her September 17, 2021 order, failed to comply with Fed.R.Civ.P. 8, failed to "provide facts suggesting any viable claims against Sedgwick arising under ERISA, Section 1981, and state law," failed to "provide fair notice to the defendants of the nature of Plaintiff's claims so that they may answer and prepare for trial," and - instead of clarifying plaintiff's claims, "adds multiple new parties and presents a barrage of new allegations in an unclear manner." Davis v. Sedgwick Claims Mgmt. Servs., 2022 WL 153251, at *3-4 (S.D.N.Y. Jan. 18, 2022). The Chief Judge then gave plaintiff "one final opportunity to file, in good faith, an amended complaint that complies with the September 17, 2021 order." Id. at *4. The grant of leave did not extend to Azzarmi and Stinnett, in part because "[t]he amended complaint filed in this case is similar in form and substance to other deficient pleadings that Azzarmi has filed in other courts," including Azzarmi v. Delta, "and is not a departure from his history of abusive litigation." Id.

On January 25, 2022, plaintiff filed the 29-page SAC, naming only Sedgwick as a defendant and alleging (as in her prior pleadings) that she was domiciled in California. SAC at ECF p. 2, ¶ 2. On February 10, 2022, the Hon. Paul G. Gardephe, United States District Judge, to whom this action had been reassigned, issued an order of service as to Sedgwick (Dkt. 30), and on February 11, 2022, the Clerk of Court issued a summons. (Dkt. 31.) On February 16, 2022, plaintiff filed a Notice of Change of Address providing a new address in Aventura, Florida. (Dkt. 33.)

B. The Pending Motions

On October 17, 2022, attorney Shapiro accepted service of the SAC on behalf of Sedgwick (Dkt. 39), and on November 16, 2022, Sedgwick timely filed its motion to dismiss, supported by a memorandum of law (Def. Mem.) (Dkt. 42). Sedgwick argues that the SAC is "incomprehensible" and "incoherent," and consequently does not comply with Rule 8, see Def. Mem. at 4-5; that plaintiff's defamation claim is time-barred under New York's one-year statute of limitations for defamation, and in any event fails to state a claim, see id. at 6-13; and that her § 1981 claim is also time-barred, under the applicable four-year statute of limitations, and in any event fails to state a cognizable claim. Id. at 13-16. Sedgwick further argues that any claim arising from Sedgwick's handling of her request for workers compensation benefits is barred by the Workers' Compensation Law. Id. at 16-18.

On November 22, 2022 - before her opposition papers were due - plaintiff filed her Proposed TAC. Because she did not first obtain the Court's leave or defendant's consent, as required by Fed.R.Civ.P. 15(a)(2), I construed the filing as a motion to amend, see Order dated Nov. 28, 2022 (11/28/22 Order) (Dkt. 45) at 3, and advised plaintiff that her papers in opposition to defendant's motion to dismiss the SAC "should also address her request for leave to amend." Id. I further directed plaintiff to show cause, in that brief, why this action should not be dismissed as barred by res judicata, given that her claims in this Court "appear to overlap substantially with" and "arise out of the same alleged facts and circumstances as" her claims in the Central District of California. Id. at 2.

On November 29, 2022, plaintiff filed her memorandum in opposition to the motion to dismiss (Pl. Mem.) (Dkt. 46). The document includes a "motion for reconsideration," arguing that she was entitled to file a third amended complaint as of right, which would moot Sedgwick's motion to dismiss the SAC, see Pl. Mem. at 2-5; a "motion to amend," arguing that the Court should exercise its discretion to accept the Proposed TAC, which would also moot Sedgwick's motion, see id. at 5-7; a "response to motion to dismiss," arguing that the SAC complies with Rule 8, see id. at 7-9; and a "response to order to show cause on res judicata," arguing, among other things, that Sedgwick was never "made a party by service of process" in Azzarmi v. Delta, and therefore "can't argue res judicata." Id. at 10. She adds that since her Amended Complaint in Azzarmi v. Delta was dismissed as frivolous pursuant to the IFP statute, 28 U.S.C. § 1915(e)(2)(B)(i), it was "not a dismissal on the merits," and therefore did not trigger res judicata. Id. at 11 (quoting Denton v. Hernandez, 504 U.S. 25, 34 (1992)). Plaintiff does not address any of Sedgwick's substantive arguments regarding the adequacy of her factual allegations to support a claim under § 1981 or for defamation.

On December 6, 2022, Sedgwick filed its reply brief (Def. Reply Mem.) (Dkt. 47), which notes plaintiff's failure to address the substance of its arguments, see Def. Reply Mem. at 1; argues that plaintiff did not have a "free pass" to amend a third time, and that the Court should not grant her leave to do so because the Proposed TAC still fails to state any viable claim, see id. at 2-10; and contends that dismissal is required for the additional reason that the dismissal of her claims in Azzarmi v. Delta is res judicata as to her claims here, as both cases were brought IFP. Id. at 10.

On December 12, 2022, I granted Sedgwick's request for a stay of discovery pending the outcome of the pending motions to dismiss and for leave to amend. (Dkt. 48 at 2.)

C. The Parties

Plaintiff is a former Delta "Purser/flight attendant," SAC at ECF p. 7, ¶ 27, domiciled in California. Id. at ECF p. 2, ¶ 2. She is a "black female." Id. at ECF p. 13, ¶ 79. Delta terminated her employment in October 2017. Id. at ECF p. 13, ¶ 84; id. at ECF p. 15, ¶ 95.

Sedgwick is an Illinois corporation headquartered in Memphis, Tennessee. Id. at ECF p. 2, ¶ 3. Sedgwick has managed Delta's workers' compensation program and its short- and long-term disability benefits programs since at least 2014. Id. at ECF p. 4, ¶¶ 7, 12.

D. The SAC

The SAC is repetitive, discursive, internally inconsistent in numerous respects, and replete with references to claims that are not pleaded,⁴ "plaintiffs" and "defendants" who are not parties herein,⁵ and exhibits that are not attached.⁶ The following summary represents the Court's best effort to marshal the factual allegations upon which plaintiff's claims are based.⁷

4 See, e.g., SAC at ECF p. 3 ¶ 4 (alleging that "part of the events or omissions giving rise to this RICO claim . . . arose in this district"). There is no RICO claim in the SAC.

5 See, e.g., SAC ECF p. 5, ¶ 14 (alleging that "Plaintiff Azzarmi" was made to do the work that a white flight attendant could not do); id. ¶¶ 16-18 (alleging that "Def. Sedgwick and/or Def. Delta Air Lines, Inc." treated a white flight attendant better than they treated Davis). Azzarmi is not a plaintiff in this action, and Delta is not a defendant.

6 See, e.g., SAC at ECF p. 3, ¶ 4 (citing "Exhibits 2-8 and 48, 49, 50, 55, 66, [and] 67"). There are no exhibits attached to the SAC.

7 As required by well-established precedent, I have construed the SAC "liberally, reading it with special solicitude" in light of plaintiff's pro se status, J.S. v. T'Kach, 714 F.3d 99, 103 (2d Cir. 2013) (quoting Harris v. City of New York, 607 F.3d 18, 24 (2d Cir. 2010)), and accept plaintiff's well-pleaded factual allegations as true for purposes of defendant's Rule 12(b)(6) motion. See McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). Where relevant, I have taken judicial notice of plaintiff's pleadings filed in others legal actions, not for the truth of their contents but "to establish the fact of such litigation and related filings." Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991). Because Davis is the only plaintiff in this action, and Sedgwick is the only defendant, I have omitted the SAC's allegations concerning injuries to or misconduct by others, unless they bear on her claims against Sedgwick.

During her employment with Delta, plaintiff suffered an (unspecified) work-related injury in October 2016, which required her to take "workers compensation OJI (STD and/or LTD) disability leave" from late October 2016 through mid-August 2017. SAC at ECF p. 4, ¶ 10.⁸ In total, she was out on leave "for around 10 months." Id. During that period, Sedgwick failed to provide plaintiff with the (unspecified) "medical treatment and/or hospitalization and/or surgery" that she needed to be able to return to work "within 12 months without any restrictions." SAC at ECF p. 15, ¶ 96. Plaintiff's leave ended when a "paid doctor" cleared her to return to work after 10 months, in August 2017. Id. at ECF p. 7, ¶ 27.⁹ However, plaintiff's injuries had not improved. Id. at ECF p. 6, ¶¶ 22-23. Although "Sedgwick's doctors" were aware that her injuries had not improved, see id., Sedgwick did not allow her to "go back out on another workers compensation OJI disability leave (STD and/or LTD and/or OJI)" after the first one. Id. at ECF p. 7, ¶ 36. At the same time, Delta told plaintiff that she "was not allowed to work any rotations as a Purser and/or flight attendant," even though she was cleared to return to work. Id. at ECF p. 6, ¶ 20. Delta terminated plaintiff's employment in October 2017. Id. at ECF p. 13, ¶ 84; id. at ECF p. 15, ¶ 95.

8 The Court understands "OJI" to mean "on the job," while "STD" and "LTD" refer to "short-term disability" and "long-term disability," respectively. The SAC does not specify which type of leave plaintiff was granted.

9 It is not clear whether the "paid doctor" who cleared her worked for Delta or for Sedgwick. Compare SAC at ECF pp. 6-7, ¶¶ 25, 28 (describing Sedgwick's "paid doctor") with id. at ECF p. 7, ¶ 27 (describing Sedgwick's and/or Delta's "paid doctor"). Elsewhere, plaintiff alleges that she was cleared by Sedgwick's "paid doctor" to return to work in August 2014, but was then "immediately suspended and/or terminated for still being disabled after 10 months and/or after 12 months." SAC at ECF p. 7, ¶ 28. This may be a typographical error, as the rest of plaintiff's allegations refer to her being on disability leave in 2016-17.

Plaintiff provides a variety of reasons for her October 2017 termination.

Reason # 1: Pass Travel Violation

Delta told plaintiff in October 2017 that she was terminated because of a "pass travel violation," i.e., a violation of Delta's policies allowing flight attendants and certain of their guests to fly stand-by for free. SAC at ECF p. 17, ¶ 119; id. at ECF p. 18, ¶ 117. According to plaintiff, she was "falsely accused" of breaking the pass travel rules, along with another flight attendant, Young Sook "Susie" Sanchez, "without any evidence." Id. at ECF p. 19, ¶ 132. Both plaintiff and Sanchez "appealed their terminations," id., and in or around December 2017, Delta "realized" that it had wrongfully terminated both plaintiff and Sanchez. Id. at ECF p. 20, ¶ 142. However, although Delta "rehired and/or reinstated" Sanchez in December 2017, id. ¶ 143, it "refused and failed to reinstate Plaintiff's employment because of her race[.]" Id. ¶ 145. Sanchez is "an Asian female." Id. at ECF p. 18, ¶ 125.

Plaintiff first "discovered" that Delta had reinstated Sanchez "[a]round April 2020," when Azzarmi "got in contact with Plaintiff to inform Plaintiff of this." SAC at ECF p. 20, ¶ 137. Plaintiff then filed another appeal, "based on racial discrimination," id. ¶¶ 138, 146, which Delta denied. Id. at ECF p. 22, ¶ 162. Plaintiff also "applied for rehire at Delta Airlines" in 2020, but Delta refused to rehire her. Id. at ECF p. 21, ¶¶ 147-48.

Plaintiff does not allege that Sedgwick had any involvement in Delta's pass travel investigation or its resulting decisions to terminate plaintiff's employment, deny her appeals, and decline to rehire her.

Reason # 2: Reliability Policy

Elsewhere in her pleading, plaintiff alleges that her employment was terminated as a result of Delta's racially discriminatory "reliability" policy, under which "Delta terminated black and Hispanic employees and/or flight attendants . . . when these black and Hispanic employees . . . did not return to work within 12 months of being on disability leave and/or workers compensation leave," SAC at ECF pp. 16-17, ¶ 110; see also id. at ECF p. 21, ¶ 155 (same), but treated nonBlack, non-Hispanic employees more leniently. Plaintiff alleges that she was told by two Delta managers, "in or around August/September 2017," that she "did not have what Def. Delta [sic] considers an acceptable 'reliability' record," because she was out on leave from October 2016 to August 2017. Id. at ECF p. 11, ¶ 64.

Plaintiff was keenly aware of Delta's discriminatory reliability policy while out on leave. "At least once a month from October 2016 through October 2017" plaintiff informed Corsette, a workers' compensation claims adjuster for Sedgwick, that Delta had a "systematically racist" reliability policy that "only applies to blacks and Hispanics[.]" SAC at ECF p. 15, ¶ 100. Through Corsette, plaintiff asked Sedgwick to provide (unspecified) "substantial medical treatment/surgery," so that plaintiff could be fully recovered in one year and avoid termination under Delta's discriminatory reliability policy. Id. at ECF p. 15, ¶ 101. However, Sedgwick refused to provide plaintiff with the necessary treatment. Id. at ECF p. 5, ¶ 17; Id. at ECF p. 16, ¶ 102.

As support for her claim that Delta had a racially discriminatory reliability policy, plaintiff alleges that from October 2016 through October 2017, Delta terminated three other Black and Hispanic employees because they "did not return to work within 12 months of being on a disability leave and/or workers compensation leave." Id. at ECF pp. 16-17, ¶ 110. She further alleges that Delta Human Resources (HR) manager William Ittounas made the following statement to her in "August/September 2017": "[M]y bosses . . . make us terminate blacks and Hispanics who have bad reliability records when they are out over a year on OJI workers compensation leaves or intend to be out over a year on OJI workers compensation leaves[.]" Id. at ECF p. 11, ¶ 65.

Reason # 3: Failure to Recertify

Plaintiff also attributes her termination to Sedgwick's "intentional[] refus[al] to certify [her] workers compensation disability leave allowing her to be out of work more than 12 months and/or 1 year," which was motivated both by racial animus, see SAC at ECF p. 16, ¶ 107; see also id. at ECF p. 7, ¶ 31 (same), and by a desire to increase its profits. See id. at ECF p. 13, ¶ 77 (alleging that "[a]ll Defendants financially profit . . . when Def. Sedgwick denies Delta employees 'STD' and/or 'LTD' 'disability coverage'"). To support her claim of a discriminatory motive, Plaintiff alleges that in August 2017, when she asked Corsette why Sedgwick refused to certify her for additional leave, Corsette responded:

All You NIGGERS and SPICS are all the same. All you NIGGERS and SPICS do is lie and do workers compensation fraud because you are all lazy and just fake these workers compensation injuries to get paid for not working. So this is why Sedgwick only certifies or extends workers comp OJI disability leaves past 12 months for white Delta flight attendants because whites aren't lazy and whites don't do workers compensation fraud.

Id. at ECF pp. 9-10, ¶ 52.

As further support for this aspect of her claim, plaintiff identifies three white Delta employees who, she says, were "similarly situated in all material respects" but were permitted to remain on some form of disability leave for periods longer than 12 months without losing their jobs. See, e.g., SAC at ECF p. 16, ¶ 108-09. Plaintiff therefore alleges that, "[b]ut for Def. Sedgwick's racial[] discrimination against Plaintiff Davis from October 2016 through October 2017, Plaintiff Davis' employment contract with Delta Air lines, Inc. would not have been impaired." SAC at ECF p. 8, ¶ 35.¹⁰

10 Plaintiff does not explain how recertification for additional leave would have saved her job if, as she alleges, "Delta terminated black and Hispanic employees and/or flight attendants . . . when these black and Hispanic employees . . . did not return to work within 12 months of being on a disability leave and/or workers compensation leave." SAC at ECF pp. 16-17, ¶ 110.

Reason # 4: Workers' Compensation Fraud

Lastly, plaintiff alleges that she learned in July 2020, from Delta attorney Sheandra Clark, that she "was not terminated for any pass travel fraud." SAC at ECF p. 14, ¶ 93. Clark revealed to plaintiff that she was actually terminated because Sedgwick reported to Delta that Sedgwick "caught [plaintiff] committing workers compensation fraud [and had] evidence that [plaintiff was] strip-dancing naked on poles and soliciting men to pay [her] for sex in Miami strip clubs in the summer of 2017 while [she was] out of work on workers compensation OJI leave[.]" Id. ¶ 94; id. at ECF p. 22, ¶ 158. That was also the reason, Clark informed plaintiff, why "Sedgwick did not certify your workers compensation disability leave to allow you to be out of work more than 12 months to recover." Id. at ECF p. 14, ¶ 94. Clark promised to provide a copy of Sedgwick's report to plaintiff, Id. at ECF p. 22, ¶ 160, but never did. Id. ¶ 161.

The following year, in March 2021, Delta HR manager Kelly Nabors confirmed that plaintiff's employment had been terminated for workers compensation fraud, explaining:

A few months before you were terminated, Sedgwick reported to us that Sedgwick did surveillance on you and Sedgwick's investigator saw you working as a naked pole dancer in a Miami strip club, where you were twerking naked, doing back flips and handstands on the pole in nothing but heels and performing naked lap dances

for cash tips, while you were out on a workers compensation leave pretending to be disabled[.]

SAC at ECF pp. 22-23, ¶ 142.

Also in 2021, plaintiff had multiple conversations with various current or former Delta employees (including Azzarmi and Lee), all of whom told her that they too had heard - invariably, from other Delta employees - that plaintiff was terminated in 2017 because Sedgwick's surveillance revealed that she was stripping and/or prostituting while out on a disability leave. SAC at ECF p. 20, ¶ 139; Id. at ECF pp. 23-24, ¶¶ 158-61. On this basis, plaintiff alleges that from late 2016 through 2021, Sedgwick "has been continuously publishing" false statements about her to Delta employees. Id. at ECF p. 22, ¶ 157. The gist of Sedgwick's false statements was that plaintiff "filed a fraudulent FMLA claim," which Sedgwick "denied after [it] determined that [she was] a fraud.'" Id. Plaintiff does not allege who at Sedgwick made these statements, whether they were written or oral, when they were made (other than sometime between "late 2016" and "2021"), where they were made, or to whom at Delta they were made.

Plaintiff also learned in 2021, from Lee, that it was HR manager Ittounas who provided the "intel" on Davis to Sedgwick in 2017, causing it to investigate her. According to plaintiff, Lee told her that Ittounas told Lee that plaintiff:

. . . used to be a call girl who worked for an escort agency in New York[.] Laura Davis was pimping these young Delta flight attendants to Delta's business elite passengers when she was working as Purser on all these London trips, where she was using the London hotel rooms as a brothel. This is why she [was] always flying to London every week because she was making money as a pimp . . . So after I provided this intel we collected about Laura Davis to Sedgwick CMS, Sedgwick investigated and caught Laura caught working as a naked pole dancer in a strip club while out on OJI, so then we fired her because she was trying to collect workers compensation pay while working as a naked pole dancer.

SAC at p. 23, ¶ 158 (emphasis added); see also id. at ECF pp. 23-24, ¶ 159 (in March 2021, Lee told plaintiff that two other Delta employees had told Lee that plaintiff was engaging in illicit sex work and that Ittounas reported this to Sedgwick "to investigate [plaintiff] because we suspected she was doing workers compensation fraud").

In fact, Davis "has never worked as a 'naked pole dancer in a strip club,' has never been a 'pimp' or a 'prostitute,' and has never worked in any 'peep shows' and never given 'lap dances' at any time in her entire life." SAC at ECF p. 23, ¶ 165.

E. The Proposed TAC

The Proposed TAC includes both of the claims alleged in the SAC: race discrimination in violation of § 1981, see Prop. TAC ¶¶ 6-17, and defamation. See id. ¶¶ 28-50. It also includes a claim under ERISA, which she was expressly given "one final opportunity" to replead, Davis, 2022 WL 153251, at *4, but instead omitted entirely from the SAC. See id. ¶¶ 55-73.¹¹

11 In the Proposed TAC, plaintiff alleges that Sedgwick was the administrator of Delta's "FamilyCare & Survivorship Plan" (the Plan), Prop. TAC ¶¶ 54-55; that Sedgwick wrongfully denied her claim for LTD benefits under the Plan in 2017, Id. ¶¶ 57, 62; and that all of her appeals were denied "without stating any objective reason." Id. ¶¶ 64-66. On this basis, plaintiff alleges that Sedgwick violated ERISA § 502, and further alleges that Sedgwick denied these benefits with the intent to prevent her from being able to collect all of the pension benefits to which she was entitled, in violation of ERISA § 510. Id. ¶ 73.

1. New Allegations That Contradict Plaintiff's Prior Allegations

In her attempt to amend again, plaintiff does not merely clarify or add supporting factual allegations; she contradicts her prior pleadings as to several very basic facts. For example, although plaintiff clearly alleged, in her first three complaints, that she was domiciled in California and had been so domiciled since 2016, see Compl. at ECF p. 2; Am. Compl. ¶ 1; SAC at ECF p. 2, ¶ 2, the Proposed TAC alleges that she "is and has been" domiciled in Florida since 2017. Prop. TAC ¶ 4. Relatedly, where the SAC invoked California defamation law, see SAC at ECF p. 25, the Proposed TAC expressly pleads plaintiff's defamation claim under the law of Florida, see id. ¶ 28, where the applicable limitations period is twice as long as the limitations period in California (or New York). See Part II.D.4.a., infra.

As another example, although plaintiff clearly alleged, in her first three complaints, that Delta terminated her employment in October 2017, see Compl. at ECF p. 8 (noting on her IFP application that her last date of employment was October 18, 2017); Am. Compl. ¶¶ 562, 754, 765; SAC at ECF p. 13, ¶ 84; Id. at ECF p. 15, ¶ 95, the Proposed TAC she alleges that what happened in 2017 was a "temporary termination," and that she was not "permanent[ly] terminat[ed]" until July 2020. Prop. TAC ¶ 1; see also id. ¶ 31 (In October 2017 Delta told her that she was "temporarily terminated"); ¶ 41 (in July 2020 Clark informed plaintiff that she was "now 'permanently terminated'").

2. Additional Allegations Concerning Plaintiff's § 1981 Claim

The SAC clearly alleges that Delta fired plaintiff. SAC at ECF p. 13, ¶ 84; Id. at ECF p. 21, ¶¶ 152, 155. Without expressly withdrawing that allegation, the Proposed TAC alleges that Sedgwick itself "had the power and/or authority to prevent Plaintiff from contracting with Delta Air Lines Inc. and/or impair Plaintiff's employment contract," Prop. TAC ¶ 12, and that from October 2016 through 2021, it "exercised its first [sic] power or authority to prevent Plaintiff from contracting with Delta Air Lines Inc. and/or by impairing Plaintiff's current employment contract." Id. ¶ 13. According to plaintiff, Sedgwick was behind all of the adverse employment actions she alleges, because it "is/was the decision-maker as to any decision to terminate or not hire and/or rehire Plaintiff, since Delta Air Lines, Inc.'s [sic] exclusively defers to Sedgwick's disability certification decisions, employee productivity evaluations, workers compensation fraud assessments, and surveillance when terminating Delta employees." Id. ¶ 24.

Beyond these conclusory statements, plaintiff does not provide any facts that would show Sedgwick's involvement in Delta's hiring and firing decisions.

3. Additional Allegations Concerning Plaintiff's Defamation Claim

The Proposed TAC does not provide any further facts to support plaintiff's broad-brush allegation that someone at Sedgwick "published" defamatory statements about plaintiff as late as "May 2020-July 2020." Prop. TAC ¶ 34. However, in her newest pleading, plaintiff significantly expands the audience, alleging that the defamatory statements were made to: Clark, Sanchez, Ittounas, Lee, Azzarmi, and four other Delta employees - Andrea Misserian, David Gilmartin, Matthew Sutter, and Kenitra Williams - as well as to employees of "Spirit Airlines (who worked for Union) in Florida," including Stinnett and Antonio Garcia, Id., and to "QBE North America's agent John Buehler." Id. ¶ 35. This is plaintiff's first and only allegation that Sedgwick reported plaintiff's workers compensation fraud to someone not employed by Delta. As in the SAC, plaintiff does not identify who at Sedgwick made the defamatory statements, when or where the statements were made, or what was said specifically to any one of the individuals who allegedly them.¹²

12 Nor does she explain what "QBE" is or how Stinnett and Garcia became employees of Spirit Airlines. Both of these individuals were previously alleged to be "full time Delta employees." See Am. Compl. at ECF p. 17.

The Proposed TAC also alleges, for the first time, that the unidentified Sedgwick employee(s) who made the defamatory statements about her did so "with hate and ill-will towards Plaintiff and the design and intent to injure" her, her good name, her reputation, employment, and employability. Prop. TAC ¶ 46. The only fact offered in support of this allegation is sharply inconsistent with plaintiff's prior pleading. In the SAC, plaintiff alleged that Sedgwick performed "surveillance" on her before reporting that she was engaged in workers compensation fraud. SAC at ECF pp. 22-23, ¶ 143. In the Proposed TAC, however, plaintiff alleges that Sedgwick accused her of fraud while "knowing these statements were false and unsubstantiated by any reasonable investigation." Prop. TAC ¶ 43 (emphasis added).

II. ANALYSIS

A. Res Judicata

"Under the doctrine of res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action." Harriram v. Fera, 2023 WL 4353824, at *3 (S.D.N.Y. June 30, 2023) (quoting New York v. Mountain Tobacco Co., 942 F.3d 536, 543 (2d Cir. 2019)). To prove the affirmative defense of res judicata, a party must show that: "(1) the previous action involved an adjudication on the merits; (2) the previous action involved the plaintiffs or those in privity with them; [and] (3) the claims asserted in the subsequent action were, or could have been, raised in the prior action." TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 499 (2d Cir. 2014) (quoting Monahan v. N.Y.C. Dep't of Corr., 214 F.3d 275, 285 (2d Cir. 2000)) (alteration in original); Pike v. Freeman, 266 F.3d 78, 91 (2d Cir. 2001). The district court may raise the issue of res judicata sua sponte, Deleon v. Nassau Cnty., 2016 WL 3637057, at *3 (E.D.N.Y. June 30, 2016), to "avoid unnecessary judicial waste." Asencio v. Jet Blue Airways, 2012 WL 5430501, at *3 (E.D.N.Y. Nov. 7, 2012).

When a court dismisses an IFP complaint as frivolous pursuant to 28 U.S.C. § 1915(e) (formerly codified at § 1915(d)), it is "not a dismissal on the merits, but rather an exercise of the court's discretion under the in forma pauperis statute." Denton, 504 U.S. at 34. Therefore, a § 1915(e) dismissal "does not prejudice the filing of a paid complaint making the same allegations." Id. (emphasis added). Such a dismissal "could, however, have a res judicata effect on frivolousness determinations for future in forma pauperis petitions." Id. Since Denton, courts in our Circuit have relied on res judicata to dismiss a second or subsequent IFP complaint where the same plaintiff's initial complaint was dismissed pursuant to § 1915(e). See, e.g., Cieszkowska v. Gray Line New York, 295 F.3d 204, 206 (2d Cir. 2002) (affirming dismissal of second case as barred by res judicata where first case was dismissed pursuant to § 1915(e), both cases were filed IFP, and "the factual predicates of plaintiff's allegations in the first and second complaints involve the same events concerning her employment, pay history, and termination"); Deleon, 2016 WL 3637057, at *3 (dismissing plaintiff's second IFP case as barred by res judicata where his first IFP case was dismissed pursuant to § 1915(e) "with prejudice," and the claims in his second case "arise out of the same nucleus of facts").

In this case, it is clear that the previous action involved the same parties - plaintiff Davis and defendant Sedgwick. The fact that Azzarmi v. Delta was dismissed before Sedgwick appeared or answered is irrelevant for res judicata purposes. See, e.g., Weir v. City of New York, 2022 WL 292206, at *1, *4 (E.D.N.Y. Feb. 1, 2022) (IFP complaint dismissed sua sponte was a "final judgment on the merits" for purposes of res judicata even though the defendant did not answer the prior complaint), aff'd, 2023 WL 3001136 (2d Cir. Apr. 19, 2023); Ates v. United States, 2020 WL 6202672, at *2, *4 (E.D.N.Y. Oct. 22, 2020) (dismissing IFP complaint on res judicata grounds based on prior, nearly identical action in which the defendants neither appeared nor responded).

It is equally clear that the claims asserted here "were, or could have been, raised in the prior action." TechnoMarine, 758 F.3d at 499. As Judge Lehrburger noted in Lee v. Delta, "Claims need not be identical to be duplicative for res judicata purposes." 2023 WL 3592153, at *7. Under New York's "transactional" test, the question is "whether the same transaction [or] series of transactions is at issue, whether the same evidence is needed to support both claims, and whether the facts essential to the second were present in the first." Monahan, 214 F.3d at 285 (citation omitted). "This principle prevents a plaintiff from litigating claims that were or could have been raised in a prior action against the same defendant." Cieszkowska, 295 F.3d at 205. Thus, "[i]t is the facts surrounding the occurrence which operate to make up the claim, not the legal theory upon which a plaintiff relies." Mathews v. New York Racing Ass'n, Inc., 193 F.Supp. 293, 294 (S.D.N.Y. 1961).

The transactional test is easily met here. In Azzarmi v. Delta, plaintiff alleged that Delta falsely told Sedgwick that plaintiff was "working as a pole dancer" while out on disability leave, and that Sedgwick then performed "surveillance on [her]" and obtained "evidence" of the illicit work, which it used to tortiously interfere with plaintiff's "long term economic relationship" with Delta, i.e., her job, which Delta terminated in October 2017. C.D. Cal. Am. Compl. ¶¶ 2041, 2248, 2245-52, 2255, 2262, 2265. Substantially the same allegations underlie both of plaintiff's claims in this Court - except that in her New York pleadings, plaintiff omits the fact that she knew about the "pole dancing" accusations, and Sedgwick's surveillance, in the summer of 2017. See Id. ¶¶ 2247-48, 2251-52. It is thus irrelevant, for res judicata purposes, that her current suit advances different legal theories. "[W]hen the factual predicate upon which claims are based are substantially identical," they are given preclusive effect regardless of "whatever legal theory is advanced" in the second suit. Berlitz Schs. of Languages of Am., Inc. v. Everest House, 619 F.2d 211, 215 (2d Cir. 1980).

Whether the dismissal of Azzarmi v. Delta was "on the merits" as to plaintiff's claims against Sedgwick presents a closer question. Plaintiff's argument that it was not on the merits because the California court acted under § 1915(e), see Pl. Mem. at 11, fails because she filed both cases IFP,¹³ and the California court clearly stated that it was dismissing Azzarmi v. Delta "with prejudice," Azzarmi v. Delta, 2021 WL 1095329, at *1, which ordinarily evidences an on-the-merits determination with res judicata effect. See Fann v. Arnold, 2016 WL 2858927, at *5 (W.D.N.Y. May 16, 2016) (a "dismissal with prejudice is res judicata on the merits of a claim in favor of the defendants") (quoting Santiago v. Booker, 2008 WL 850246, at *1 (W.D.N.Y. Mar. 27, 2008)); Deleon, 2016 WL 3637057, at *3 (dismissing second IFP complaint on res judicata grounds where prior case was dismissed pursuant to § 1915(e) "with prejudice").

13 Plaintiff points out that Azzarmi v. Delta was dismissed before plaintiffs IFP application was acted on, and that, because she was awaiting that decision, she never paid any filing fees. Pl. Mem. at 10. Therefore, she asserts, the California court "never had personal jurisdiction over the case, over me, or over Sedgwick because Sedgwick was never served a summons or complaint." Id. These conclusions do not follow from the facts she recites. Davis subjected herself to the jurisdiction of the California court by filing the Amended Complaint. See Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 703-04 (1982) (personal jurisdiction is an individual right that can be waived, and "an individual may submit to the jurisdiction of the court by appearance"). Moreover, the doctrine of res judicata is designed to protect the courts, as well as the parties, from the burden of relitigating claims that have already been resolved. See Arizona v. California, 530 U.S. 392, 412 (2000) (res judicata "is not based solely on the defendant's interest in avoiding the burdens of twice defending a suit, but is also based on the avoidance of unnecessary judicial waste") (citation omitted); Parklane Hoisery Co., Inc. v. Shore, 439 U.S. 322, 326 (1979) (the "dual purpose" of res judicata is "protecting] litigants from the burden of relitigating an identical issue with the same party or his privy and . . . promoting judicial economy by preventing needless litigation"). Thus, as noted above, the operation of res judicata does not depend on whether the defendant appeared and litigated in the prior action. Weir, 2022 WL 292206, at *1, *4; Ates, 2020 WL 6202672, at *2, *4.

On the other hand, the California court explained that the Amended Complaint in that action did not "cure the res judicata issue," which pertained specifically to plaintiff Azzarmi, not plaintiff Davis, and that it violated Rule 8(a), because it did not contain a short and plain statement of the claim. Azzarmi v. Delta, 2021 WL 1095329, at *1. Dismissals for failure to comply with Rule 8(a) are not ordinarily treated as "on the merits" for res judicata purposes. See Johnson v. Wolan, 2010 WL 5076821, at *4 (S.D.N.Y. Dec. 13, 2010) (a dismissal based on Rule 8(a) "is not a merits determination") (collecting cases). Moreover, although Azzarmi had a history of frivolous litigation in the Central District of California, the Amended Complaint in Azzarmi v. Delta appears to have been plaintiff Davis's first attempt to sue Delta or Sedgwick based on the events surrounding her 2016-17 disability leave and termination. Because I am reluctant to conclude that the Central District of California intended its dismissal to be with prejudice as to plaintiff Davis, I do not recommend that the present action be dismissed on res judicata grounds.

However, as discussed in more detail below, plaintiff cannot simply disregard the allegations she made in the Central District of California. It is well-settled that "the court need not accept as true allegations that conflict with a plaintiff's prior allegations." Green v. Niles, 2012 WL 987473, at *5 (S.D.N.Y. Mar. 23, 2012) (quoting Dozier v. Deutsche Bank Trust Co. Ams., 2011 WL 4058100 (S.D.N.Y. Sept. 1, 2011)). To the extent plaintiff made allegations in California that she now finds inconvenient, she cannot escape their effect by omitting the troublesome facts, nor by making inconsistent factual allegations in this forum. See, e.g., Palm Beach Strategic Income, LP v. Stanley P. Salzman, P.C., 2011 WL 1655575, at *8 (E.D.N.Y. May 2, 2011) (declining to accept plaintiff's new allegations, which conflicted with those in three previous versions of his complaint, and granting defendant's motion to dismiss).

B. Amendment as of Right

I decline to reconsider the portion of my 11/28/22 Order construing the Proposed TAC as a motion for leave to amend. Plaintiff argues that because her first two amendments were "based on the Court's orders," she never lost her right under Fed.R.Civ.P. 15(a)(1) to amend "once as a matter of course," as long as she did so within 21 days after defendant filed its motion to dismiss. Pl. Mem. at 2-3.¹⁴ In her view, Rule 15(a)(1)(B) creates a window for an as-of-right amendment that remains open until 21 days after the defendant answers or moves to dismiss, regardless of the number of prior amendments pursuant to court order. Further, in plaintiff's view, that window remained open here notwithstanding that the Court expressly granted her "one final opportunity" to amend, see Davis, 2022 WL 153251, at *4, which she had already exercised.

14 Rule 15(a) provides:

(1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.

(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.

Plaintiff relies primarily on Ramirez v. Cnty. of San Bernardino, 806 F.3d 1002 (9th Cir. 2015), which reasoned that "Rule 15 is organized substantively, not chronologically," Id. at 1007, and therefore that a plaintiff who amended his complaint once with the consent of the opposing party could amend it again, as of right, within 21 days after the defendants moved to dismiss the first amended complaint. Id. at 1007-08. However, the Second Circuit has not addressed the issue, and there is no consensus on the point among the district courts within our Circuit. Compare Adams v. Tops Markets, 2023 WL 4828029, at *2 (W.D.N.Y. July 7, 2023) (concluding that "by filing her first amended complaint with Defendant's consent under Rule 15(a)(2), Plaintiff's right to amend as a matter of course under Rule 15(a)(1) was extinguished"), report and recommendation adopted, 2023 WL 4828112 (W.D.N.Y. July 26, 2023), with Doe #1 v. Syracuse Univ., 335 F.R.D. 356, 360 (N.D.N.Y. 2020) (concluding that after plaintiffs amended their complaint by order of the court or with defendants' consent, they retained the right to file a third amended complaint, as of right, within 21 days after defendants answered the second amended complaint).

Like the court in Tops Market, I reject the notion that Rule 15(a)(1) furnishes a plaintiff with a potentially inexhaustible right to amend "as a matter of course" that, like an ace in the hole, she can keep in reserve during multiple amendment cycles until the Court is unwilling to grant her any more opportunities to plead a cognizable claim. In any event, this case is distinguishable from Ramirez on at least two grounds. First, Sedgwick did not consent to any of plaintiff's amendments. On the contrary: it responded to her Amended Complaint with a letter-motion asking the Court to "rule that service on Sedgwick and Ms. Corsette was a nullity." Def. 1/18/22 Ltr.-Mtn. at 2. Motions asserting "insufficient service of process" are authorized by Fed.R.Civ.P. 12(b)(5), and hence trigger the running of the 21-day period within which a plaintiff may amend under Rule 15(a)(1). That right did not spring into existence anew for plaintiff when Sedgwick moved to dismiss her SAC ten months later. See Fed.R.Civ.P. 15 advisory committee's notes to 1991 amendment ("The 21-day periods to amend once as a matter of course . . . are not cumulative.").

Second, plaintiff filed her SAC in response to the Court's January 18, 2022 order, issued pursuant to its obligation to "dismiss an IFP complaint, or any portion of the complaint, that is frivolous or malicious [or] fails to state a claim on which relief may be granted[.]" Davis, 2022 WL 153251, at *1 (citing 28 U.S.C. § 1915(e)(2)(B)). In that order, the Chief Judge found that plaintiff's Amended Complaint failed to "provide facts suggesting any viable claims against Sedgwick arising under ERISA, Section 1981, [or] state law," and thus failed to comply with the Court's previous order, issued on September 17, 2021, which dismissed plaintiff's original Complaint. Id. at *3. The Amended Complaint also failed to comply with Rule 8(a). Id. at *4. At that point, the Court could have dismissed plaintiff's claims with prejudice, which would have left her no further opportunities to amend. Instead, in an exercise of discretion, the Chief Judge dismissed the Amended Complaint without prejudice (as to Davis), permitting her "one final opportunity to file, in good faith, an amended complaint that complies with the September 17, 2021 order." Davis, 2022 WL 153251, at *4. Plaintiff's proposed reading of Rule 15(a) would render that order toothless, thereby undermining the Court's ability to manage its IFP docket.

Plaintiff was expressly warned that the SAC - her third attempt to sue Sedgwick in this District, and her fourth overall - would be her last chance to state a viable claim against it. That SAC "is therefore the operative pleading" for purposes of defendant's motion to dismiss. Tops Markets, 2023 WL 4828029, at *3.

C. Rule 8(a)(2)

Fed. R. Civ. P. 8(a)(2) requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Both brevity and clarity are required. "[U]nnecessary prolixity in a pleading places an unjustified burden on the court and the party who must respond to it because they are forced to select the relevant material from a mass of verbiage." Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Moreover, "the principal function of pleadings under the Federal Rules is to give the adverse party fair notice of the claim asserted so as to enable him to answer and prepare for trial." Id.; see also Strunk v. U.S. House of Representatives, 68 Fed.Appx. 233, 235 (2d Cir. 2003) (summary order) ("The purpose of this requirement is to provide fair notice of the claims and to enable the adverse party to answer the complaint and prepare for trial."). Regardless of its length, therefore, a complaint fails to comply with Rule 8(a)(2) if it is "confused, ambiguous, vague, or otherwise unintelligible." Strunk, 68 Fed.Appx. at 235 (quoting Salahuddin, 861 F.2d at 42). It is not the Court's job - nor the opposing party's - to decipher a complaint that is "so poorly composed as to be functionally illegible." Avramham v. N.Y., 2020 WL 4001628, at *2 (S.D.N.Y. July 15, 2020) (quoting Schuster v. Oppleman, 1999 WL 9845, at *3 (S.D.N.Y. Jan. 11, 1999)).

A plaintiff's pro se status will not protect her from a Rule 8(a) dismissal. See Owens v. McCall, 5 Fed.Appx. 15, 16 (2d Cir. 2001) (summary order) ("Although a complaint filed by a pro se litigant is to be liberally construed in his favor," dismissal is appropriate where "we are no more able than the district court to determine - even under such a liberal construction - the true substance of the plaintiff's claims."); Coon v. Benson, 2010 WL 769226, at *3 (S.D.N.Y. Mar. 8, 2010) ("[D]espite the liberal construction given to pro se complaints, that policy does not mandate that a Court sustain every pro se complaint even if it is incoherent, rambling, and unreadable.") (cleaned up).

Here, although plaintiff's pleading is repetitive, discursive, internally inconsistent in numerous respects, and replete with references to nonexistent claims, parties, and exhibits, I do not find it is so unintelligible as to leave defendant without fair notice of the claims she is attempting to assert. I therefore proceed to analyze whether the well-pleaded allegations in that SAC state a claim upon which relief can be granted.

D. Rule 12(b)(6)

1. Standards

Even if a complaint meets the "short and plain statement" requirement of Rule 8(a)(2), it is properly dismissed pursuant to Rule 12(b)(6) if it fails to present "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Absolute Activist Value Master Fund Ltd. v. Ficeto, 677 F.3d 60, 65 (2d Cir. 2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. If the plaintiff has not "nudged [her] claims across the line from conceivable to plausible, [the] complaint must be dismissed." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

Although the district court must "accept as true all factual statements alleged in the complaint and draw all reasonable inferences in favor of the non-moving party," McCarthy, 482 F.3d at 191, those factual allegations "must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. A federal court may not credit "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements," Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555), and will not "unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Id. at 678-79.

In addition to the facts alleged in the body of the complaint, the court may consider documents attached to the complaint or incorporated in it by reference, Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002); documents that "although not incorporated by reference, are 'integral' to the complaint," Sierra Club v. Con-Strux, LLC, 911 F.3d 85, 88 (2d Cir. 2018) (quoting L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011)); and documents of which judicial notice may be taken, Chambers, 282 F.3d at 153, including pleadings and other documents filed in related legal proceedings. Kramer, 937 F.2d at 774.

2. Pro Se Parties

Where, as here, the plaintiff is pro se, her pleading must be construed "liberally, reading it with special solicitude and interpreting it to raise the strongest claims that it suggests." T'Kach, 714 F.3d at 103. This mandate "applies with particular force when a plaintiff's civil rights are at issue." Maisonet v. Metro. Hosp. & Health Hosp. Corp., 640 F.Supp.2d 345, 348 (S.D.N.Y. 2009). However, even a pro se plaintiff "must state a plausible claim for relief." Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013). Moreover, the court need not accept allegations that are "contradicted by other matters asserted or relied upon or incorporated by reference by a plaintiff in drafting the complaint." Fisk v. Letterman, 401 F.Supp.2d 362, 368 (S.D.N.Y. 2005).

Thus, for example, if a plaintiff advances allegations that are "directly contradictory" to those made in her prior pleadings, the court may strike the "changed and inconsistent factual allegations as false and sham." Vaughn v. Strickland, 2013 WL 3481413, at *6 (S.D.N.Y. July 11, 2013) (quoting Jean-Laurent v. Lawrence, 2013 WL 1129813, at *7 n.10 (S.D.N.Y. Mar. 19, 2013)); accord Green, 2012 WL 987473, at *4-5 (dismissing pro se plaintiff's claims and declining to credit new allegations that are "utterly irreconcilable" with past allegations). "The liberality with which courts examine pro se pleadings does not require a court to 'accept as true allegations that conflict with a plaintiff's prior allegations.'" Vaughn, 2013 WL 3481413, at *6 (quoting Green, 2012 WL 987473, at *5). More generally, pro se status "does not exempt a party from compliance with relevant rules of procedural and substantive law." Maisonet, 640 F.Supp.2d at 348 (internal quotation marks and citation omitted).

3. Section 1981 Claim

Among the many statutes that combat racial discrimination, 42 U.S.C. § 1981, initially enacted in 1866, has a "specific function: It protects the equal right of '[a]ll persons within the jurisdiction of the United States' to 'make and enforce contracts' without respect to race. The statute currently defines 'make and enforce contracts' to 'includ[e] the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.'" Domino's Pizza, Inc. v. McDonald, 546 U.S. 470, 474-75 (2006) (alteration in original) (citations omitted).¹⁵ Thus, § 1981 "offers relief when racial discrimination blocks the creation of a contractual relationship, as well as when racial discrimination impairs an existing contractual relationship, so long as the plaintiff has or would have rights under the existing or proposed contractual relationship." Ginx, Inc. v. Soho All., 720 F.Supp.2d 342, 357 (S.D.N.Y.), as corrected (Aug. 19, 2010) (quoting Domino's Pizza, 546 U.S. at 476).

15 In Patterson v. McLean Credit Union, 491 U.S. 164, 179 (1989), the Court held that § 1981, as originally enacted, only reached "conduct at the initial formation of the contract and conduct which impairs the right to enforce contract obligations through legal process." Two years later, Congress passed the Civil Rights Act of1991, which among other things added subsection (b), explicitly protecting the "making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." 42 U.S.C. § 1981(b). See Philippeaux v. N. Cent. Bronx Hosp., 871 F.Supp. 640, 655 (S.D.N.Y. 1994) (explaining legislative history of 1991 amendments).

To state a § 1981 claim, a plaintiff must allege that: (1) she is a member of a racial minority; (2) the defendants intended to discriminate on the basis of race; and (3) the discrimination concerns one of the statute's enumerated activities. Davis, 2021 WL 4252009, at *2. Where, as here, the claim is that the defendant's conduct blocked or impaired the plaintiff's contract with a third party - her employer, Delta - the plaintiff must allege that the defendant actually had (and exercised) the "power or authority to prevent the plaintiffs from contracting with the third party." Ginx, 720 F.Supp.2d at 358 (dismissing § 1981 claim against activists who fought the grant of a liquor license to a Black-owned restaurant, because only the State Liquor Authority could grant the license, and only a "court of law" could overturn its decision); see also Annuity, Welfare & Apprenticeship Skill Improvement & Safety Funds of the Int'l Union of Operating Engineers Loc. 15, 15a, 15c & 15d, AFL-CIO v. Tightseal Constr. Inc., 2018 WL 3910827, at *6 (S.D.N.Y. Aug. 14, 2018) (dismissing Dickerson's § 1981 claim against Judlau because he "failed to allege that Judlau had, much less exercised, the ability to interfere directly with Dickerson's contract with Capstone").

Additionally, a § 1981 plaintiff "must initially plead and ultimately prove that, but for race, [she] would not have suffered the loss of a legally protected right." Comcast Corp. v. Nat'l Ass'n of Afr. Am.-Owned Media, 140 S.Ct. 1009, 1019 (2020). The "motivating factor" test, which eases the burden of a plaintiff alleging employment discrimination under Title VII, does not apply to claims under § 1981. Id. at 1018 ("[N]owhere in its amendments to § 1981 did Congress so much as whisper about motivating factors."). Thus, "it is insufficient to merely plead that race was a motivating factor in the discriminatory action." Brown v. Montefiore Med. Ctr., 2021 WL 1163797, at *5 (S.D.N.Y. Mar. 25, 2021).

a) Whether plaintiff's claim is timely.

Where a § 1981 plaintiff alleges that the defendant "impaired" an existing employment contract, as plaintiff does here, see SAC at ECF p. 7, ¶ 35; Id. at ECF p. 9, ¶ 49; Id. at ECF p. 13, ¶ 83, the claim arises under the statute as amended in 1991, and is subject to the four-year statute of limitations set forth in 28 U.S.C. § 1658. Andrews v. Freemantlemedia N.A., Inc., 2014 WL 6686590, at *5 (S.D.N.Y. Nov. 20, 2014), aff'd sub nom. Andrews v. Fremantlemedia, N.A., Inc., 613 Fed.Appx. 67 (Aug. 24, 2015). The claim accrues "when a plaintiff knows or has reason to know of the injury that serves as the basis of the action." Id. at *6 (quoting Singh v. Wells, 445 Fed.Appx. 373, 376 (2d Cir. 2011)). The "injury that serves as the basis of [this] action" is the termination of plaintiff's employment by Delta in October 2017. Prior to that date, although she was aware of Delta's discriminatory reliability policy - and Sedgwick's refusal to recertify her leave - she had not suffered any injury cognizable under § 1981. Plaintiff filed this action on August 22, 2021, less than four years after she lost her job at Delta. Thus, her § 1981 claim is not time-barred.

b) Whether plaintiff has stated a claim.

As noted above, liability under § 1981 for interference with a third-party contract attaches only to defendants that actually "had the power or authority" to block or impair that third-party contract. Johnson v. City of New York, 2019 WL 4468442, at *13 n.17 (E.D.N.Y. Sept. 18, 2019) (although defendant Autar "also had authority over Plaintiff" in the workplace and treated him unfairly out of racial animus, he could not be liable under § 1981 for impairing plaintiff's employment contract because it was Morgan, plaintiff's direct supervisor, who fired him); accord Robledo v. Bond No. 9, 965 F.Supp.2d 470, 477 (S.D.N.Y. 2013); Ginx, 720 F.Supp.2d at 358; Tightseal Constr., 2018 WL 3910827, at *6. Additionally, the plaintiff must plead facts showing that the defendant's racism was the "but-for" cause of the impairment. Comcast, 140 S.Ct. at 1019.

In this case, plaintiff attributes discriminatory statements to Sedgwick employee Corsette, but does not allege any facts showing that she - or anyone else at Sedgwick - had the "power or authority" to terminate plaintiff's employment with Delta. To the contrary: the SAC clearly alleges that it was Delta, not Sedgwick, that (i) implemented a racist reliability policy and (ii) used that policy to terminate Black and Hispanic employees who were out on leave for more than 12 months. See SAC at ECF pp. 16-17, ¶ 110 ("Delta terminated black and Hispanic employees and/or flight attendants . . . when these black and Hispanic employees . . . did not return to work within 12 months of being on disability leave and/or workers compensation leave"); Id. at ECF p. 21, ¶ 155 (Delta had a "systematically racist Reliability policy"). Indeed, according to plaintiff, Delta HR manager Ittounas identified two of his "bosses" by name, in 2017, and told her that these bosses, Jennifer Zappia and Diane Thomas, "make us terminate blacks and Hispanics who have bad reliability records when they are out over a year on OJI workers compensation leaves or intend to be out over a year on OJI workers compensation leaves[.]" Id. at ECF p. 11, ¶ 65 (emphasis added). Zappia and Thomas were senior Delta HR managers. See C.D. Cal. Am. Compl. ¶¶ 42, 2034, 2249 (identifying Thomas as "HR Manager for the 'WEST' region" and Zappia as a "racist young white woman" who was "General Manager of HR"). If they instructed Ittounas to terminate Black and Hispanic employees with poor reliability records, they did so on behalf of Delta, not Sedgwick. Moreover, it was Delta, not Sedgwick, that actually terminated plaintiff's employment. SAC at ECF p. 13, ¶ 84; Id. at ECF p. 14, ¶ 92.¹⁶ To the extent, therefore, that Delta terminated plaintiff's employment pursuant to its "systematically racist Reliability policy," Id. at ECF p. 21, ¶ 155, Sedgwick is not a proper defendant under § 1981.

16 In Azarmi v. Delta, plaintiff was even more specific, alleging repeatedly that she was fired by Delta Base Manager Bernard Rawls, and that Delta employees Zappia, Ittounas, Brian San Souci (an in-house Delta lawyer), and Emily Pardo (another Delta HR manager) were "involved." See C.D. Cal. Am. Compl. ¶¶ 2228, 2259, 2260, 2368, 2382, 3036.

I reach the same conclusion when considering the other reasons that plaintiff offers for her termination. There is no suggestion in the SAC that Sedgwick had any power to fire Delta employees for breaking Delta's pass travel rules, much less to grant or deny reinstatement requests on "appeal." Thus, to the extent plaintiff was fired as a result of being "falsely accused" of pass travel violations, see SAC at ECF p. 19, ¶ 132, Sedgwick cannot be held liable for that decision pursuant to § 1981. Nor was Sedgwick responsible for Delta's alleged decision, in December 2017, to reinstate Sanchez but not plaintiff. See id. at ECF p. 20, ¶ 143; Id. at ECF p. 20, ¶ 145 ("Delta refused and failed to reinstate Plaintiff's employment because of her race[.]") (emphasis added). In this scenario - again - plaintiff's contract was impaired by Delta, not by Sedgwick.

The analysis is no different if (as plaintiff alternatively alleges) she was fired for workers compensation fraud. To be sure, the SAC alleges that Sedgwick investigated the claim that she was engaged in undisclosed employment as a stripper and pole dancer while enjoying disability benefits. But Sedgwick conducted that investigation at the direct request of Delta HR manager Ittounas, see SAC at p. 23, ¶ 168,¹⁷ and the SAC makes it clear that, upon receipt of Sedgwick's report, Delta - not Sedgwick - made the decision to terminate plaintiff's employment. See id. at ECF pp. 22-23, ¶ 113; Id. at ECF p. 14, ¶¶ 93-94; Id. at ECF p. 22, ¶ 158. Consequently, plaintiff cannot state a § 1981 claim against Delta's third-party benefits administrator for impairing her employment contract with Delta.

17 In Azzarmi v. Delta, Davis alleged that four different Delta executives asked Sedgwick to investigate her extracurricular activities: Zappia, San Souci, HR manager Pamela Kelly, and "managing agent" Pamela Alston. See C.D. Cal. Am. Compl. ¶¶ 2248-49, 2251-52, 2261-62.

Even if Sedgwick had the "power or authority" to get plaintiff fired - under one or more of these alternative scenarios - her spaghetti-on-the-wall style of pleading makes it impossible to conclude that Sedgwick's racism was the but-for cause of her injury, as required by Comcast. In plaintiff's telling, both Delta and Sedgwick had it in for her, for a variety of reasons, some of which had nothing to do with racial animus. See, e.g., Am. Compl. ¶ 446 ("Def. Delta, the principal, intentionally directed Def. Sedgwick, it's agent, to summarily deny Plaintiffs['] 'STD' and/or 'LTD' 'disability coverage' insurance claims for a 'work related injury' and/or 'non- work -related injury' for the purpose of Def. Delta and Def. Sedgwick's motive of financial gain.") (emphasis added); SAC at ECF p. 13, ¶ 77 (alleging that "[a]ll Defendants financially profit . . . when Def. Sedgwick denies Delta employees 'STD' and/or 'LTD' 'disability coverage'"). For this reason as well, plaintiff's § 1981 claim should be dismissed.

4. Defamation Claim

"Defamation is the 'making of a false statement which tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of rightthinking persons, and to deprive him of their friendly intercourse in society.'" Kesner v. Dow Jones & Co., Inc., 515 F.Supp.3d 149, 169 (S.D.N.Y. 2021) (quoting Foster v. Churchill, 87 N.Y.2d 744, 751, 642 N.Y.S.2d 583, 587 (1996)). To prevail on such a claim in New York, the plaintiff must plead and prove the following elements:

(i) a defamatory statement of fact, (ii) that is false, (iii) published to a third party, (iv) 'of and concerning' the plaintiff, (v) made with the applicable level of fault on the part of the speaker, (vi) either causing special harm or constituting slander per se, and (vii) not protected by privilege.

Albert v. Loksen, 239 F.3d 256, 265-66 (2d Cir. 2001) (citations omitted). The statute of limitations for defamation in New York is one year. N.Y. C.P.L.R. § 215(3); see also McKenzie v. Dow Jones & Co., 355 Fed.Appx. 533, 537 (2d Cir. 2009) (summary order) (affirming dismissal of untimely claim pursuant to Rule 12(b)(6) and denial of leave to amend where, due to the time-bar, "leave to amend would be futile").¹⁸

18 In the SAC, plaintiff invokes the defamation law of her domicile, California. See SAC at ECF p. 2, ¶ 2, Id. at ECF pp. 25, 28. However, neither her pleading nor her opposition brief identifies any relevant conflict between New York defamation law and California defamation law - which also carries a one-year statute of limitations, see Cal. Civ. Proc. Code § 340(c); Penrose Hill, Ltd. v. Mabray, 479 F.Supp.3d 840, 850 (N.D. Cal. 2020). Moreover, plaintiff expressly alleges that "a substantial part of the events and omissions" giving rise to her claims took place "in this district." SAC at ECF p. 3, ¶ 4. Consequently, under New York's choice of law rules, which I must apply to a pendent state law claim in a federal question case, see Morgan Art Found. Ltd. v. McKenzie, 2019 WL 2725625, at *5 (S.D.N.Y. July 1, 2019), there is no reason for this Court to look beyond the defamation law of New York. See Int'l Bus. Machs. Corp. v. Liberty Mut. Ins. Co., 363 F.3d 137, 143 (2d Cir. 2004) ("In the absence of substantive difference, . . . a New York court will dispense with choice of law analysis; and if New York law is among the relevant choices, New York courts are free to apply it."); Albert, 239 F.3d at 264 (seeing "no reason for us not to apply the law of New York" to a defamation claim brought by a New Jersey resident against a New York-based employer, where plaintiff never advocated any other choice of law).

a) Whether plaintiff's claim is timely

Plaintiff alleges, in extraordinarily broad and vague terms, that an unidentified person or persons at Sedgwick defamed her, at unidentified times over a period of more than four years, by stating to multiple Delta representatives that its investigation showed that plaintiff was committing workers compensation fraud by working as a stripper and pole dancer while out on a disability leave. See SAC at ECF p. 22, ¶ 158. She also alleges that Sedgwick's defamatory "report" kept her from getting her leave recertified in August 2017, and caused her to lose her job in October 2017. Id. at ECF p. 22, ¶ 142; see also id. at ECF p. 14, ¶ 94 ("for that reason Sedgwick did not certify your workers compensation disability leave"). These events took place more than three years before plaintiff filed this action. Consequently, she cannot pursue a defamation claim arising out of Sedgwick's 2017 report - or any other statements made by Sedgwick prior to August 22, 2020.

The one-year statute of limitations "runs from the time the allegedly defamatory statements are made, . . . and not when the plaintiff first learned of the defamatory remarks or of each element of his claim." Gorokhovsky v. Stefantsova, 2022 WL 17487019, at *5 (S.D.N.Y. Dec. 7, 2022); accord Papeskov v. Brown, 1998 WL 299892, at *6 (S.D.N.Y. June 8, 1998) ("Under New York State law, the statute of limitations for defamation . . . runs from the time the allegedly defamatory statements are made, not from when the plaintiff learns of them."). Consequently, plaintiff's suggestion that she did not discover Sedgwick's defamation until 2020, see SAC at ECF p. 22, ¶ 158,¹⁹ could not preserve her otherwise-untimely claim. Moreover, the claim that plaintiff was unaware of the alleged defamation until 2020 is "utterly irreconcilable," Green, 2012 WL 987473, at *5, with her previous acknowledgment - in her verified pleading in Azzarmi v. Delta - that two different Sedgwick employees and two different Delta employees told her in the summer of 2017 - a few months before her employment was terminated - that, at Delta's request, Sedgwick "had surveillance on you and . . . obtained evidence that several nights a week you were driving to a strip club near your home and working as a stripper dancing on poles while out on a disability leave." See C.D. Cal. Am. Compl. ¶¶ 2261-62 (conversation with "Jill from Sedgwick"); see also id. ¶ 2247 (conversation with "Liz from Sedgwick"); Id. ¶ 2248 (conversation with Delta managing agent Alston); Id. ¶¶ 2251-52 (conversation with "Jill from Sedgwick"); Id. ¶¶ 2252, 2255 (conversation with Delta HR manager Kelly).

19 "In July 2020, Delta's attorney, Sheandra Clark admitted" to plaintiff that the reason she was terminated three years earlier was that "Sedgwick told me that Sedgwick's investigator caught you committing workers compensation fraud" by "strip-dancing naked on poles and soliciting men to pay you for sex in Miami strips clubs in the summer of 2017 while you were out of work on a workers compensation OJI leave[.]" SAC at ECF p. 22, ¶ 158.

b) Whether plaintiff has stated a claim

Although plaintiff attempts to allege that Sedgwick "continuously" defamed her, even after her termination, up until and "through 2021," SAC at ECF p. 22, ¶ 157, these allegations do not come close to stating a viable claim.

First, as to any statements made by Sedgwick within the statute of limitations, plaintiff has failed to identify "(1) the allegedly defamatory statements; (2) the person who made the statements; (3) the time when the statements were made; and, (4) the third parties to whom the statements were published," as required to pursue a claim for either libel or slander in New York. Colandrea v. Town of Orangetown, 490 F.Supp.2d 342, 350 (S.D.N.Y. 2007) (quoting Reserve Solutions, Inc. v. Vernaglia, 438 F.Supp.2d 280, 289 (S.D.N.Y. 2006)). Instead, in a single paragraph, plaintiff alleges that over a four-and-a-half-year period, "Sedgwick" published "and/or has been continuously publishing" defamatory statements about her to "Delta Air Lines" "and/or" a list of nine Delta employees, "and/or other Delta employees." SAC at ECF p. 22, ¶ 157. Nowhere in the SAC does plaintiff identify a single actionable statement that was made since August 22, 2020, by any specific Sedgwick employee, to anyone at Delta.²⁰ The absence of detail is fatal to her claim. See Yukos Cap. S.A.R.L. v. Feldman, 2016 WL 183360, at *1 (S.D.N.Y. Jan. 11, 2016) ("The time of the alleged statements is of particular importance in view of New York's one year statute of limitations in defamation actions."); Wellner v. City of New York, 2019 WL 1511022, at *2 (S.D.N.Y. Mar. 22, 2019) ("plaintiff must provide enough context for the defendants to defend themselves - namely, 'an indication' of who made what statements, when, and to whom") (quoting MCM Prod. USA, Inc. v. Botton, 2016 WL 5107044, at *5 (S.D.N.Y. Sept. 19, 2016)); Ben Hur Moving & Storage, Inc. v. Better Bus. Bureau of Metro. New York, Inc., 2008 WL 4702458, at *5 (S.D.N.Y. Oct. 3, 2008) (dismissing defamation claim because "plaintiff does not state with sufficient particularity what these statements were, when they were made, by whom they were made, and to whom they were made").

20 To the contrary: elsewhere in the SAC, plaintiff acknowledges that the Delta employees she lists in ¶ 157 heard about Davis's alleged work as a stripper and a pole dancer from other Delta employees, not from Sedgwick. See SAC at ECF p. 20, ¶ 139 (Sanchez heard it from Gilmartin); Id. at ECF pp. 23, ¶¶ 158-59 (Lee heard it from Ittounas, Gilmartin, and Misserian); Id. at ECF p. 24, ¶ 160 (Delta employee Jonas Germain heard it from Rawls); Id. at ECF p. 24 ¶ 161 (Lee and Delta employee Kenitra Newman heard it from Misserian and Sutter). This is hardly surprising, given that - in plaintiff's telling - it was Delta that "tipped" Sedgwick to her supposed illicit employment in the first place. See C.D. Cal. Am. Compl. ¶ 2262 (Sedgwick investigated in 2017 after Delta attorney San Souci and Delta HR manager Zappia "gave [Sedgwick] these tips about you").

Second, plaintiff does not plead facts sufficient to show that Sedgwick's alleged statements were "not protected by privilege." Albert, 239 F.3d at 266. "New York recognizes a qualified common interest privilege when the allegedly defamatory statement is made between persons who share a common interest in the subject matter." Thai v. Cayre Grp., Ltd., 726 F.Supp.2d 323, 330 (S.D.N.Y. 2010); accord Foster v. Churchill, 87 N.Y.2d 744, 751, 642 N.Y.S.2d 583, 587 (1996); Present v. Avon Prod., Inc., 253 A.D.2d 183, 187, 687 N.Y.S.2d 330, 333 (1st Dep't 1999) (under the common interest privilege, "[a] good faith communication upon any subject matter in which the speaker has an interest, or in reference to which he has a duty, is qualifiedly privileged if made to a person having a corresponding interest or duty."). This privilege "can cover statements made to or by a defendant's employees as well as its outside vendors." Bah v. Apple Inc., 2020 WL 614932, at *11 (S.D.N.Y. Feb. 10, 2020) (citing Present, 253 A.D.2d at 186, 687 N.Y.S.2d at 333), adhered to on denial of reconsideration, 2021 WL 4894677 (S.D.N.Y. July 26, 2021). Thus, in Present, the court agreed that otherwise-defamatory statements made about an Avon employee by fellow employees and vendors, during an internal investigation into the plaintiff's suspected misconduct, were privileged because they "clearly furthered the purpose of the privilege, namely to allow companies to investigate employees' criminal misconduct and to share this information with law enforcement authorities." 253 A.D.2d at 189, 687 N.Y.S.2d at 334.

Delta, like Avon, was engaged in an investigation of an employee's "suspected misconduct" when it called upon Sedgwick, its third-party claims administrator, to perform surveillance on her. SAC at ECF pp. 23-24, ¶ 159 (Delta HR manager Ittounas asked Sedgwick to investigate Davis because "we suspected she was doing workers compensation fraud"); see also C.D. Cal. Am. Compl. ¶ 2255 (it was Sedgwick's job "to do surveillance on Delta employees who are using and abusing . . . disability leaves, because unjustified absences are "a huge burden on our scheduling department"); Id. ¶ 2252 (Kelly and San Souci at Delta "recommended Sedgwick get surveillance on [plaintiff]"). Sedgwick's resulting report, made to its client Delta concerning the precise assignment it had been given, falls squarely within the common interest privilege. See Present, 253 A.D.2d at 187-88, 687 N.Y.S.2d at 334 (privilege covers "statements by an outside vendor or independent contractor" in the course of an investigation into "job-related misconduct"); Bah, 2020 WL 614932, at*11 (communications among employees of Apple and employees of Apple's security contractor concerning the identity of a suspected shoplifter at Apple's stores fell within the common interest privilege).

To overcome the common interest privilege, the plaintiff must allege facts showing that the false statements were made with (i) "actual malice, which requires either knowledge that the statements were false or reckless disregard for the statements' truth," Bah, 2020 WL 614932, at *11, or (ii) common-law malice, which "means spite or ill will," and must be the "one and only cause for the publication." Albert, 239 F.3d at 272 (quoting Liberman v. Gelstein, 80 N.Y.2d 429, 437, 439, 590 N.Y.S.2d 857, 863 (1992)). The SAC pleads neither - only that Sedgwick's report was false, which is insufficient to establish actual malice, see Present, 253 A.D.2d at 188, 687 N.Y.S.2d at 334 ("even a negligent investigation, without more, does not create an inference that a defendant suspected the falsity of the information and purposefully avoided seeking out facts that would confirm its falsity"), and that one of Sedgwick's employees was racist, which is insufficient to establish common-law malice. See id., 253 A.D.2d at 189, 687 N.Y.S.2d at 334

("[t]he fact that defendants may have harbored ill will towards plaintiff is insufficient, without some evidence that this animus was 'the one and only cause for the publication'"). Consequently, plaintiffs defamation claim should be dismissed in its entirety.

E. Leave to Amend

Plaintiff argues that even if she was not entitled to amend for a third time as of right, she should be granted leave to amend pursuant to Fed.R.Civ.P. 15(a)(2). Pl. Mem. at 5-7. "Generally, leave to amend should be freely given, and a pro se litigant in particular should be afforded every reasonable opportunity to demonstrate that he has a valid claim." Matima v. Celli, 228 F.3d 68, 81 (2d Cir. 2000) (quotation marks and citations omitted); see also Guzman v. Bldg. Serv. 32BJ Pension Fund, 2023 WL 2526093, at *4 (S.D.N.Y. Mar. 15, 2023) ("[A]s a general rule, 'a pro se plaintiff should get at least one chance to amend his or her complaint before' his case is dismissed with prejudice.") (quoting Steadman v. Mayo, 2012 WL 1948804, at *5 (S.D.N.Y. Mar. 27, 2012), report and recommendation adopted, 2012 WL 1948862 (S.D.N.Y. May 30, 2012)).

Notwithstanding the generally liberal standard for leave to amend, leave may "properly be denied for: 'undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.'" Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). Bad faith, defined as "[d]ishonesty of belief, purpose, or motive," Bad Faith, Black's Law Dictionary (11th ed. 2019), is sufficient basis for denial of leave to amend. See, e.g., United States ex rel. Nicholson v. MedCom Carolinas, Inc., 42 F.4th 185, 199, 201 (4th Cir. 2022) (affirming district court's finding of bad faith when plaintiff "withheld facts and evidence that he knew before filing the original Complaint," and "changed substantive facts from one filing to the next to avoid dismissal") (cleaned up); Polar Int'l Brokerage Corp. v. Reeve, 108 F.Supp.2d 225, 250 (S.D.N.Y. 2000) ("Where bad faith is apparent, leave to amend may properly be denied."). "A court may also find bad faith when a party 'withhold[s] facts clearly known to it prior to the filing of the complaint,' particularly 'when done for some ulterior purpose, . . . unless satisfactory explanation clearly shows [a lack of bad faith].'" Bank v. Spark Energy, LLC, 2020 WL 6873436, at *2 (E.D.N.Y. Nov. 23, 2020) (alteration in original) (quoting CA-POW! v. Town of Greece, N.Y., 2010 WL 3663409, at *5 (W.D.N.Y. Sept. 14, 2010)), aff'd, 860 Fed.Appx. 205 (2d Cir. 2021) (summary order).

Because plaintiff's Proposed TAC attempts to cure the deficiencies in the SAC by rewriting certain fundamental aspects of her account, her request for permission to amend yet again - for what would effectively be the fourth time - raises the specter of bad faith. To begin with, the allegation in the Proposed TAC that plaintiff is domiciled in Florida, Prop. TAC ¶ 4, contradicts her repeated and consistent allegations that she has been domiciled in California since 2016,²¹ and is transparently designed to allow her to invoke Florida's two-year statute of limitations on defamation claims. See Fla. Stat. § 95.11(4)(h); Prop. TAC ¶ 28 ("Florida's statute of limitations for defamation is two (2) years."). Not only does the newly-minted allegation smack of litigation gamesmanship; it is "directly contradictory" to those made in her prior pleadings, and thus subject to striking "as false and sham." Vaughn, 2013 WL 3481413, at *6 (citation omitted).

21 See C.D. Cal. Am. Compl. at ECF p. 9; Compl. at ECF p. 2; Am. Compl. ¶ 1; SAC at ECF p. 2, ¶ 2.

The same is true for plaintiff's attempt to multiply her actionable injuries by claiming that the termination of her employment in October 2017 - a fact she has alleged in four different pleadings, in two different courts²² - was in fact only a "temporary termination," followed by a "permanent termination" in 2020, and a "refusal to hire" in 2021. Prop. TAC ¶¶ 1, 30-32, 41.

22 See C.D. Cal. Am. Compl. ¶ 2265; Compl. at ECF p. 8; Am. Compl. ¶¶ 562, 754, 765; SAC at ECF p. 13, ¶ 84; Id. at ECF p. 15, ¶ 95.

Similarly, plaintiff's new insistence that Sedgwick "is/was the decision-maker as to any decision to terminate or not hire and/or rehire Plaintiff," Id. ¶ 24, represents a substantial departure from her current allegation that the decision to fire her in 2017 was made by Delta, see SAC at ECF p. 14, ¶¶ 93-94; Id. at ECF p. 22, ¶ 158; Id. at ECF pp. 22-23, ¶ 163, and an even more dramatic departure from her earlier allegation that she was fired by Delta Base Manager Rawls, with the involvement of four other lawyers and HR managers, all of whom worked for Delta. See C.D. Cal. Am. Compl. ¶¶ 2228, 2259, 2260, 2368, 2382, 3036.

"[W]here pleading deficiencies have been identified a number of times and not cured, there comes a point where enough is enough." State St. Global Advisors Tr. Co. v. Visbal, 462 F.Supp.3d 435, 443 (S.D.N.Y. 2020) (quoting In re Initial Pub. Offering Sec. Litig., 241 F.Supp.2d 281, 397 (S.D.N.Y. 2003)). Here, not only has plaintiff exhausted the generous opportunities she was given to replead; her Proposed TAC strongly suggests that, upon realizing that the facts she has pleaded cannot sustain a viable cause of action, she has resorted to manufacturing more convenient facts to take their place. Consequently, no further leave to amend should be granted.

III. CONCLUSION

For the reasons set forth above, I recommend, respectfully, that Sedgwick's motion to dismiss the SAC be GRANTED; that plaintiff's motions for reconsideration and for leave to amend be DENIED; and that plaintiff's claims be DISMISSED WITH PREJUDICE.

NOTICE OF PROCEDURE FOR FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

The parties shall have fourteen days from the service of this report and recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d). A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the Hon. Paul G. Gardephe at 40 Foley Square, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Gardephe. Failure to file timely objections will result in a waiver of such objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Frydman v. Experian Info. Sols., Inc., 743 Fed.Appx. 486, 487 (2d Cir. 2018) (summary order); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).