Opinion
No. 02-CV-7082 (DAB)(DF).
March 19, 2004
REPORT AND RECOMMENDATION
TO THE HONORABLE DEBORAH A. BATTS, U.S.D.J.
INTRODUCTION
In this case, pro se plaintiff Amelie Gladman ("Gladman") alleges that the defendant Mount Vernon Hospital (the "Hospital") violated the Employee Retirement Income Security Act, 29 U.S.C. § 1001, et. seq. ("ERISA"), by failing to pay her certain pension benefits purportedly owed to her under the Mount Vernon Hospital Group Pension Plan ("Hospital Pension Plan"), in which she was a vested participant. The Hospital moves to dismiss Gladman's claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure on the grounds that the allegations in the Complaint are barred by the statute of limitations and by the doctrine of res judicata.For the reasons set forth herein, I respectfully recommend that the Hospital's motion to dismiss be granted because Gladman's ERISA claim is time-barred.
BACKGROUND
A. The ComplaintThe Hospital employed Gladman as a nurse from November 2, 1964 until her retirement in March 1990. (Complaint, filed Sept. 6, 2002 ("Compl.") (Dkt. 1), at 1.) Gladman alleges that, although she was a vested participant in the Hospital Pension Plan, the Hospital refused her request for benefits covering a period of time when she was employed by the Hospital and eligible for such benefits. ( Id.) According to Gladman, the Hospital, upon receiving her request for benefits, told her that it believed that she was not a participant in the Hospital Pension Plan and that she was thus ineligible for the benefits at issue. ( Id. ¶ 2.)
Gladman alleges that the Hospital Pension Plan is a qualified pension plan as defined and covered by ERISA. (Compl. at 1.)
Indeed, it is undisputed that, in a June 10, 1986 letter to Gladman, the Hospital stated that any benefits owed to her should come not from the Hospital Pension Plan, but rather from Gladman's union plan — the New York State Nurses Association ("NYSNA") Pension Plan ("NYSNA Plan"). (Compl. ¶ 3; see also Affidavit in Support of Rejecting the Defendant's Motion to Dismiss, sworn to Oct. 21, 2002 ("Gladman Aff.") (Dkt. 7), Ex. 8.) According to the Hospital, a 1980 Collective Bargaining Agreement ("CBA") between the Hospital and NYSNA established that NYSNA would take over the administration of pension benefits for nurses in the union. ( See Gladman Aff., Ex. 8.)
The exhibits attached to Gladman's affidavit are identified by number, up to "Exhibit 7." There are, however, two unnumbered documents attached after Exhibit 7, which the Court will deem Exhibits 8 and 9.
While Gladman concedes that, in fact, she currently receives benefits from the NYSNA Plan, she alleges that she is nonetheless owed additional benefits for over 16 years of service for the period before NYSNA took over administration of the Hospital Pension Plan. (Compl. ¶ 5.) To support this allegation, Gladman states that both a NYSNA representative and the Director of the Hospital have stated in letters that NYSNA "ha[d] not assumed any obligations" under, or received any assets from, the Hospital Pension Plan. ( Id. ¶ 4.) Gladman asserts that she is vested in the Hospital Pension Plan and that this Plan therefore owes her over 16 years of accrued benefits which she has never received. ( Id. ¶ 5.) According to Gladman, the Hospital's refusal to pay her these benefits constitutes a violation of ERISA. ( Id. at 1.)
B. The Hospital's Motion to Dismiss
The Hospital moved to dismiss Gladman's ERISA claim under Fed.R.Civ.P. 12(b)(6) based on the statute of limitations and the doctrine of res judicata. (Notice of Motion to Dismiss filed Oct. 9, 2002 (Dkt. 5).)
The Hospital maintains that on or about July 27, 1989 (after having been denied benefits by the Hospital), Gladman filed a grievance through the union, alleging that the Hospital violated the CBA when it denied her request for benefits under the Hospital Pension Plan. (Memorandum of Law in Support of Defendant's Motion to Dismiss ("Hosp. Mot. to Dismiss") filed Oct. 9, 2002 (Dkt. 5), at 3.) When that grievance was denied, NYSNA, in accordance with its obligations under the CBA, filed a demand for binding arbitration on Gladman's behalf. ( Id.)
Upon the Hospital's petition, the New York State Supreme Court (Alvin R. Ruskin, J.) stayed the arbitration by Order and Decision dated July 27, 1990, specifically finding that under the terms of the CBA, "NYSNA clearly assumed the responsibilities of the Hospital Pension Plan and its non-retired members waived all benefits under the Hospital Plan." (Hosp. Mot. to Dismiss at 3) (citing In the Matter of the Application of Mount Vernon Hosp., No. 06410-1990, slip op. at 5 (N.Y.Sup.Ct. Westchester Co. July 27, 1990).) The state court held that arbitration would be inappropriate under the circumstances because, in order to grant Gladman rights under the Hospital Pension Plan, the arbitrator would have to amend or modify the CBA itself. Application of Mount Vernon Hosp., at 3, 5. Finding that the request for arbitration thus went beyond the bounds of permissible arbitration under the CBA (which only allowed for interpretation of the CBA, not for its modification or recision), the court granted the stay of arbitration. Id. at 5. That decision was not appealed. (Hosp. Mot. to Dismiss at 3.)
The Hospital argues that Gladman had knowledge of the facts giving rise to the alleged ERISA violation by July 1990, at the latest, when the state court accepted the Hospital's position that Gladman was not entitled to benefits under the Hospital Pension Plan. (Hosp. Mot. to Dismiss at 4-5.) As more than 12 years then passed before Gladman filed her Complaint in this action, the Hospital asserts Gladman's claim is time-barred under the applicable statute of limitations, which the Hospital asserts is three years and which, in any event, cannot be longer than six years from when the claim accrued. ( Id.; see also discussion infra at 6-7.) Furthermore, the Hospital argues that the doctrine of res judicata bars Gladman's claims in the current action because the Complaint in this case is based on the same facts as the earlier-litigated case, which was decided adversely to Gladman, albeit on a different legal theory. ( Id. at 4.)
DISCUSSION
I. APPLICABLE LEGAL STANDARDSIn deciding a motion under Rule 12(b)(6), the Court must accept all factual allegations in the complaint as true and "draw inferences from those allegations in the light most favorable to the plaintiff." Jaghory v. New York State Dep't of Ed., 131 F.3d 326, 329 (2d Cir. 1997) (citing Albright v. Oliver, 510 U.S. 266, 268 (1994)); see Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991); Johnson v. Wright, 234 F. Supp.2d 352, 356 (S.D.N.Y. 2002). The issue is not whether the plaintiff will ultimately prevail, but whether the claim, as pleaded, is sufficient to afford the plaintiff the opportunity to proceed on the evidence. See Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998). A claim may not be dismissed under Rule 12(b)(6) unless "it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir. 1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Further, where, as here, a plaintiff is proceeding pro se, the Court must construe the pleadings liberally, Branham v. Meachum, 77 F.3d 626, 628-29 (2d Cir. 1996), and must "interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994); see Hughes v. Rowe, 449 U.S. 5, 10 (1980) (a pro se party's pleadings must be liberally construed in his favor and are held to a less stringent standard than the pleadings drafted by lawyers); Simmons v. Abruzzo, 49 F.3d 83, 87 (2d Cir. 1995) ("[t]he complaint of a pro se litigant is to be liberally construed in his favor") (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)).
On a motion to dismiss pursuant to Rule 12(b)(6), the Court limits its consideration to: (1) factual allegations in the complaint; (2) documents attached to the complaint as an exhibit or incorporated in it by reference; (3) matters of which judicial notice may be taken; and (4) documents that are "integral" to the complaint. Calcutti v. SBU, Inc., 273 F. Supp.2d 488, 498 (S.D.N.Y. 2003) (citing Brass v. American Films Technologies, 987 F.2d 142, 150 (2d Cir. 1993); Chambers v. Time Warner Inc., 282 F.3d 147, 153 (2d Cir. 2002)). The mandate that a pro se plaintiff's complaint be construed liberally makes it additionally appropriate for the Court to consider the factual allegations in the plaintiff's opposition materials to supplement the allegations in the complaint. See Johnson, 234 F. Supp.2d at 356; Burgess v. Goord, No. 98 Civ. 2077 (SAS), 1999 WL 33458, at *1 n. 1 (S.D.N.Y. Jan. 26, 1999).
The Court takes judicial notice of prior court records and decisions. See Day v. Moscow, 955 F.2d 807, 811 (2d Cir. 1992).
II. STATUTE OF LIMITATIONS
In her Complaint, Gladman does not identify the specific provision of ERISA under which she brings her claim. It appears, however, that her claim arises under Section 502 of ERISA, in that she is seeking to recover benefits allegedly owed to her under a qualified pension plan. See 29 U.S.C. § 1132; (Compl. at 1 ("I am claiming a violation of that Act in the Mount Vernon Hospital[']s refusal of my request for benefits for the period of time for which I was assured of coverage.").) ERISA does not prescribe a limitations period for actions generally brought to recover benefits based on a violation of the Act. See 29 U.S.C. § 1132. The controlling statute of limitations period is that specified in the most analogous state limitations statute, which, in New York, is the six-year period applying to breach of contract actions. Miles v. New York State Teamsters Conference Pension and Ret. Fund, 698 F.2d 593, 598 (2d Cir. 1983).
It is also possible that Gladman is attempting to allege a violation of ERISA based on a breach of the Hospital's fiduciary duty. See 29 U.S.C. § 1109. For a breach of fiduciary duty claim, ERISA does outline its own statute of limitations, which provides that:
No action may be commenced under this subchapter with respect to a fiduciary's breach of any responsibility, duty, or obligation under this part, or with respect to a violation of this part, after the earlier of —
(1) six years after (A) the date of the last action which constituted a part of the breach or violation, or (B) in the case of an omission the later date on which the fiduciary could have cured the breach or violation, or
(2) three years after the earliest date on which the plaintiff had knowledge of the breach or violation; except that in the case of fraud or concealment, such action may be commenced not later than six years after the date of discovery of such breach or violation.See 29 U.S.C. § 1113; Caputo v. Pfizer, Inc., 267 F.3d 181, 184 (2d Cir. 2001). The Hospital has based its statute of limitations argument on this section of ERISA, suggesting that the applicable provision is that which provides for a three-year limitations period, commencing on the date when Gladman had knowledge of the alleged breach or violation. (Hosp. Mot. to Dismiss at 5.)
Construing the Complaint liberally in Gladman's favor, it should be assumed for the purposes of this motion that the longest limitations period available under either potentially relevant section of ERISA — six years — is applicable to this case. See, e.g., Ambrose v. Bank of New York, No. 96 Civ. 0061 (LAP), 1998 WL 702289, at *2 (S.D.N.Y. Oct. 7, 1998) (where it was unclear which statutory period applied in an action brought under ERISA, the court assumed, without deciding, that the longest period available — six years — applied). Such an assumption, however, does not effect the analysis as to when the claim accrued. See id. (citing Carolco v. Cement and Concrete Workers Dist. Council Pension Plan, 964 F. Supp. 677, 686, 688-89 (E.D.N.Y. 1997)).
A general claim for benefits under ERISA accrues where "there has been a repudiation by the fiduciary which is clear and made known to the beneficiar[y]." Miles, 698 F.2d at 598 (citations omitted). A clear repudiation by the plan that is made known to the plaintiff will trigger the statute of limitations, regardless of whether the plaintiff formally filed for benefits. See Carey v. Intel Bhd of Elec. Workers, 201 F.3d 44, 48 (2d Cir. 1999). Where a plaintiff has made a request for benefits, it is generally accepted that the claim accrues when plaintiff is unequivocally notified that his or her request has been denied. Yuhas v. Prudential Life and Cas. Ins. Co., 162 F. Supp.2d 227, 231 (S.D.N.Y. 2001). Similarly, a claim based on a breach of fiduciary duty accrues when the plaintiff has "knowledge of all material facts necessary to understand that an ERISA fiduciary has breached his or her duty or otherwise violated the Act." Caputo, 267 F.3d at 193 (citations omitted). Thus, all that is required is for the plaintiff to "have knowledge of all facts necessary to constitute a claim." Id.
Here, although the chronology of events as laid out in Gladman's pleading is slightly unclear, it appears that, in the early to mid-1980's, Gladman made several applications for Hospital Pension Plan benefits to which she believed she was entitled. It is in any event certain that, on June 10, 1986, the Hospital's Personnel Director responded to Gladman by letter, stating: "It is the Hospital's position that you are not a participant in The Mount Vernon Hospital Employee's Retirement Plan (the "Plan") and therefore your claim for benefits under the Plan is inappropriate. . . . [A]s I have previously written to you, we have concluded that you have no pension entitlement under the Plan." (Gladman Aff. Ex. 8.) This denial constituted an unequivocal notice by the Hospital that, in its view, Gladman was not entitled to benefits under the Hospital Pension Plan, and this notice triggered the statute of limitations. See, e.g., Larsen v. NMU Pension Trust, 902 F.2d 1069, 1074 (2d Cir. 1990) (cause of action accrued when plaintiff received a letter from the plan supervisor that set forth the plan's denial of benefits); Ambrose, 1998 WL 702289, at *6 (where plaintiff knew she was not receiving benefits and knew the purported reason for this fact, the underlying denial of benefits was clear).
Apparently, however, despite receiving the Hospital's June 1986 letter, Gladman continued to apply for benefits under the Hospital Pension Plan, with her subsequent applications being denied as well. See Application of Mount Vernon Hosp., at 3. Then, on July 27, 1989, Gladman filed an official grievance based on the denial of her application for benefits, which the Hospital also denied. Id. ( See Gladman Aff. Ex. 7 (copy of grievance)). On March 8, 1990, after Gladman's grievance was denied, NYSNA filed a demand for arbitration on her behalf, in accordance with the procedures in the CBA. See Application of Mount Vernon Hosp., at 3.
It appears that Gladman's grievance also challenged the denial of her request for access to the Mount Vernon Hospital Summary Plan description. (Gladman Aff. Ex. 7.) That aspect of her grievance does not appear to be the subject of the present action.
As noted above, the arbitration did not proceed because the state court granted a stay of arbitration in July 1990, a decision that was not appealed. ( See supra at 3-4.) At that point, Gladman was effectively at the end of the internal grievance process, and even if she did not consider the Hospital's original letter denying her benefits to have been a "clear repudiation" of her rights under the Hospital Pension Plan, she was certainly made aware of the facts giving rise to her ERISA claim by the time the state court rejected her demand for arbitration. See Yuhas, 162 F. Supp.2d at 231-32 (noting that there is some disagreement within the Circuit as to the exact point at which an ERISA claim for benefits accrues, and citing cases holding that such a claim may accrue either when the benefits are first denied or when the internal appeals process is complete); see also Mitchell v. Shearson Lehman Bros., Inc., No. 97 Civ. 0526 (MBM), 1997 WL 277381, at *3-4 (S.D.N.Y. May 27, 1997) (where a claimant pursues administrative review of the denial of benefits, accrual occurs where a claimant exhausts a plan's internal remedies). Likewise, Gladman cannot deny that, as of 1990 at the latest, she had knowledge of all the facts necessary to raise a claim for a fiduciary breach under ERISA, should such a claim exist. See Caputo, 267 F.3d at 193.
Gladman has not suggested that the CBA provided for any further internal remedies beyond permitting arbitration of a denied grievance.
In sum, even if this Court were to accept that Gladman's claim accrued in July 1990 (the date that ended her grievance process), as opposed to June 1986 (when her request for benefits was first denied), her claim would fall well outside the limitations period. Even applying the more generous six-year limitations period, Gladman would have had to have commenced this action by July 1996, but she failed to do so until September 6, 2002. ( See Dkt. 1.)
Gladman contends that she did not know that her benefits were "absolutely den[ied]" until she received a response from the Metropolitan Life Insurance Company ("MetLife") in July 2002, indicating that MetLife had no record of a pension plan purchased by the Hospital for Gladman. (Gladman Aff. Ex. 5; Memorandum of Law in Support of a Judicial Ruling and the Denial of the Defendant's Motion to Dismiss filed Oct. 22, 2002 (Dkt. 8), at 2.) Yet the fact that, even after the 1990 court decision, Gladman continued her letter-writing campaign to the Hospital, the Department of Labor, the Internal Revenue Service and others ( see Gladman Aff. Exs 1-9), does not serve to toll the statute of limitations. See Yuhas, 162 F. Supp.2d at 233 (finding that plaintiff was unequivocally notified of repudiation of her claim by letter no later than 1993, despite the fact that defendant reviewed plaintiff's continued submissions as a courtesy and continued to reaffirm the denial of the benefits after 1993). In fact, by letter dated October 16, 2001, the Hospital responded to one of Gladman's letters by stating that "Mount Vernon Hospital has not changed its position on this matter and has repeatedly communicated this position to you . . . since 1986." (Gladman Aff. Ex. 4.) Here, the Hospital's denial of benefits to Gladman has been "clear, unequivocal, and continuing" since its initial denial in 1986. See Mitchell, 1997 WL 277381, at *2 (internal quotation marks and citations omitted).
The Court is mindful that Gladman, who is proceeding in this action pro se, may not have understood the statute of limitations requirements, and the Court is sympathetic to her position, especially since she has made so many formal and informal efforts over time to obtain the benefits to which she evidently believes she is entitled. Nonetheless, statutes of limitations serve important policy purposes, and "are not to be disregarded by courts out of vague sympathy for particular litigants." Carey, 201 F.3d at 47 (quoting Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984)). Indeed, the Court's "strict adherence to limitations periods 'is the best guarantee of evenhanded administration of the law.'" Id. (quoting Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980)); Oechsner v. Connell Ltd. P'ship, 283 F. Supp.2d 926, 932 (S.D.N.Y 2003).
In this case, even the most generous reading of the limitations period, and the most generous assessment of when Gladman's ERISA claim accrued, leads to the conclusion that her claim is time-barred by a substantial margin. I therefore recommend that defendant's motion to dismiss the Complaint on statute of limitations grounds be granted.
III. RES JUDICATA
The Hospital alternatively argues that Gladman's claim is precluded under the doctrine of res judicata. (Hosp. Mot. to Dismiss at 3.) Res judicata, and the related concept of collateral estoppel, serve to "prevent parties from contesting matters that they had a full and fair opportunity to litigate, thereby conserving judicial resources and protecting parties from the expense and vexation of multiple lawsuits." Marvel Characters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir. 2002). In this case, the Hospital argues that the state court decision with respect to Gladman's rights under the Hospital Pension Plan serves to bar her from bringing this action. (Hosp. Mot. to Dismiss at 3.)
Generally, res judicata is an affirmative defense pleaded in a defendant's answer. When, however, all the relevant facts are shown by court records, of which the Court may take judicial notice, the defense may be upheld on a Rule 12(b)(6) motion. Day v. Moscow, 955 F.2d 807, 811 (2d Cir. 1992). Federal courts accord state court judgments the same preclusive effect as other courts within that state. Burgos v. Hopkins, 14 F.3d 787, 789 (2d Cir. 1994) (citing Migra v. Warren City Sch. Dist., 465 U.S. 75, 81 (1988)). New York law is applied to determine the preclusive effect of a state court judgment. See id.; Marvel Characters Inc., 310 F.3d at 286.
The doctrine of res judicata, or claim preclusion, provides that "once a final judgment has been entered on the merits of a case, that judgment will bar any subsequent litigation by the same parties or those in privity with them concerning the transaction or series of connected transactions, out of which the first action arose." Maharaj v. Bankamerica Corp., 128 F.3d 94, 97 (2d Cir. 1997) (citing Restatement (Second) of Judgments § 24(1)(1982)). Under New York's transactional approach, a later claim arising out of the same factual grouping as an earlier litigated claim may be precluded "even if the later claim is based on different legal theories or seeks dissimilar or additional relief." Burgos, 14 F.3d at 789. The bar will not apply, however, where "the initial forum did not have the power to award the full measure of relief sought in the later litigation," id. (citation omitted), or where the prior judgment did not constitute a final judgment "on the merits." Neuman v. Harmon, 965 F. Supp. 503, 507 (S.D.N.Y. 1997) (citation omitted); see Jacobson v. Fireman's Fund Ins. Co., 111 F.3d 261, 265 (2d Cir. 1997).
In this case, the Hospital's argument for dismissal on res judicata grounds is based on the fact that, in the state court decision staying arbitration, the court found that, "under the 1980 Agreement, NYSNA clearly assumed the responsibilities of the Hospital Pension Plan and its non-retired members waived all benefits under the Hospital Plan." Application of Mount Vernon Hosp., at 5. Thus, the state court found that Gladman, as a non-retired member at the time of the agreement, had in fact waived her rights under the Hospital Pension Plan. (Hosp. Mot to Dismiss at 3-4 (citing Application of Mount Vernon Hosp., at 5).)
The claim raised in the state court, however, was only a claim to stay arbitration pursuant to the CBA. The court was not asked to rule on whether the Hospital had violated ERISA or any other law by failing to issue benefits to Gladman, but rather on whether arbitration was the appropriate means to determine Gladman's entitlement to those benefits. As there was no claim before it challenging the denial of benefits, the court would not have been in a position to grant Gladman substantive relief on the merits, even if it had found that she may have been eligible for the benefits she sought. See, e.g., Neuman, 965 F. Supp. at 508 (finding that the scope of a prior proceeding to stay arbitration was limited to determining whether the Release in question obligated the parties to arbitrate; the state court judge did not consider, and could not have considered, the merits of the underlying claim); Application of New Jersey Boom and Erectors, Inc., No. 00 Civ. 7812 (RLC), 2001 WL 357087, at *1 (S.D.N.Y. Apr. 9, 2001) (in deciding whether to stay or compel arbitration, the court's role is limited to determining (1) whether there is a valid arbitration agreement, and (2) whether the dispute is one which is covered by that agreement).
Contrary to the Hospital's contention that "Plaintiff's complaint in the instant case is the same as the complaint in the prior New York action" (Hosp. Mot. to Dismiss at 4), neither Gladman nor NYSNA filed a complaint in the state court action. Gladman was merely attempting to appeal the denial of her grievance internally by moving forward to arbitration, and the Hospital petitioned the state court for a stay. Nor did the state court render a decision explicitly for or against Gladman; it only held that arbitration was inappropriate under the circumstances. Application of Mount Vernon Hosp., at 5.
Under these circumstances, the doctrine of res judicata does not apply to bar the instant action, and therefore I do not recommend that the Complaint be dismissed on that basis. See Neuman, 965 F. Supp. at 508 (res judicata did not bar claims where earlier proceeding decided only whether the claims were arbitrable); Gidatex, S.R.I. v. Campaniello Imports, Ltd, 13 F. Supp.2d 420, *424 (S.D.N.Y. 1998) (prior action which only determined the arbitrability of certain claims, and not the underlying merits, did not bar later assertion of claims concerning the same subject matter); see generally Marvel, 310 F.3d at 287 (res judicata does not necessarily bar actions springing from the same set of underlying facts where the claims asserted in the two actions are plainly distinct); cf. Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986) (finding that res judicata precluded a later action in federal court, where the plaintiff's later complaint simply substituted claims of an ERISA violation for earlier state court claims of a labor law violation and was based on the same operative facts and sought the same unpaid benefits).
I do note, however, that, while res judicata does not serve as a bar to Gladman's claim, it is possible that Gladman would be barred from litigating her entitlement to benefits under the related rule of collateral estoppel. See, e.g., Burgos, 14 F.3d at 789 (while res judicata would not bar a claim where the initial forum did not have the power to award the full measure of relief requested, collateral estoppel could still serve as a bar to litigation of several issues previously decided). Collateral estoppel, or issue preclusion, is a distinct preclusion doctrine which provides that once a "court has decided an issue of law or fact necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case." Id. (quoting Allen v. McCurry, 449 U.S. 90, 94 (1980)). There are two requirements for the application of collateral estoppel to an issue: (1) there must be an identity of issue which has necessarily been decided in the prior action and is decisive in the present action, and (2) there must have been a full and fair opportunity to contest the decision now said to be controlling. Id. (citation omitted).
Yet, even if Gladman would be precluded from bringing this suit under the rule of collateral estoppel, the Hospital has not explicitly made that argument, and thus Gladman has not had a fair opportunity to respond to it. Rather than address the question of collateral estoppel sua sponte, where Gladman has not had sufficient notice that her Complaint may be subject to dismissal on that ground, I recommend that the Court decline to reach the question. Indeed, there is no need for the Court to reach the issue, as Gladman's claim is barred in any event by the statute of limitations.
CONCLUSION
For all of the foregoing reasons, I respectfully recommend that defendant's motion to dismiss the Complaint be granted on the ground that the action is barred by the statute of limitations.Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Deborah A. Batts, United States Courthouse, 500 Pearl Street, Room 2510, New York, New York 10007, and to the chambers of the undersigned, United States Courthouse, 40 Centre Street, Room 631, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Batts. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).