DR. KAROLINA MARCINIAK-DOMINGUES GONCALVES AGRA and MR. PEDRO HENRIQUE MARCINIAK-DOMINGUES GONCALVES AGRA v. MASSACHUSETTS INSTITUTE OF TECHNOLOGY, et al.
23 Civ. 10305 (JPC)
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
September 29, 2024
JOHN P. CRONAN, United States District Judge
OPINION AND ORDER
On December 29, 2022, Karolina Marciniak-Domingues Goncalves Agra (“Marciniak“) and her husband Pedro Henrique Marciniak-Domingues Goncalves Agra (“Agra“) filed suit in this District against, among several others, Massachusetts Institute of Technology (“MIT“) and Rockefeller University (“RU“). Marciniak v. Ctr. for Brains, Minds & Machs. at Mass. Inst. of Tech. (”Marciniak I“), No. 22 Civ. 10959 (ALC), (S.D.N.Y. Dec. 29, 2022), Dkt. 1. Marciniak I is pending before the Honorable Andrew L. Carter, Jr. In a sprawling complaint in that case, Marciniak and Agra bring thirteen causes of action, including under Title VII of the Civil Rights Act of 1964,
On November 22, 2023, about two weeks after Judge Carter set a briefing schedule on the defendants’ anticipated motions to dismiss in Marciniak I, Marciniak and Agra filed this suit (”Marciniak II“). At its core, Marciniak II is a repeat of Marciniak I: The Complaint here recounts the same basic factual allegations, sometimes word-for-word; raises many of the same causes of action, including under Title VII, the NYSHRL, and the NYCHRL; and names as Defendants both MIT and RU. Indeed, before both this Court and Judge Carter, Plaintiffs have described the two suits as “involv[ing] common questions of law, the same operative facts, [and] substantially the same parties and witnesses.” Dkt. 33 at 1; accord Marciniak I, No. 22 Civ. 10959, Dkt. 88. The primarily differences are that the Complaint in this case names Freiwald and Azevedo as Defendants and mentions New York‘s Adult Survivors Act (“ASA“),
Defendants argue that these differences are not enough, and that this suit should be dismissed as duplicative of Marciniak I. The Court agrees. For reasons that follow, Defendants’ motions are granted, and the Complaint is dismissed without prejudice. Plaintiffs, however, are granted leave to file an amended complaint.
I. Background
A. Facts1
1. Underlying Conduct
During the latter part of 2014, Marciniak began her protracted journey to become a postdoctoral fellow at RU. Compl. ¶ 29. She interviewed with Freiwald—the head of the
In September 2015, Marciniak visited RU to view the laboratory and discuss her proposal with Freiwald. Id. ¶ 36. Not only was Marciniak unable to see the facilities, as Freiwald had promised, but during that visit Freiwald informed her that her proposed research was already being pursued at the laboratory. Id. Uncertain about the research facilities at RU, and facing the ambiguous future of her research plan, Marciniak withdrew her acceptance of the researcher position under Freiwald around November 2015. Id. ¶ 37. Freiwald nonetheless continued to contact Marciniak, emailing her three times during February 2016. Id. ¶¶ 37-38. In his third email, he assigned Marciniak to a project with CBMM—a multi-institutional research and education center funded by the National Science Foundation (“NSF“). Id. ¶ 38; see Dkt. 52 (“Opp. to MIT“)
Marciniak planned another visit to RU—again intending to tour the laboratory‘s facilities and clarify her project proposal—for March 2016. Id. ¶ 40. At the last minute, however, her trip was frustrated by her lack of a valid visa. Id. She emailed Freiwald to explain her troubles, and Freiwald arranged for them to instead meet via Skype. Id. ¶ 41. On that call, Freiwald offered RU‘s help in securing a visa—an offer which Marciniak understood to be in relation to the visit to RU‘s laboratory that she wanted to make to evaluate the facilities before committing to the job. Id. To her surprise, however, Freiwald immediately began the employment process and had RU‘s Director of Immigration and Academic Appointments sponsor a J-1 Visa for her. Id. Even though she had not wanted to commit to the job before seeing the laboratory, finalizing her research project, and applying for the fellowship, Marciniak accepted employment offer. Id. ¶ 42.
Marciniak began working at the laboratory in September 2017, and immediately realized that Freiwald had misrepresented to her the maturity and capabilities of his laboratory‘s facilities. Id. ¶ 44. Upon her arrival, Freiwald tasked her with establishing a working relationship with CBMM, which included traveling to MIT and later applying for CBMM‘s Summer School in Woods Hole, Massachusetts. Id. ¶¶ 44, 46. In the meantime, under Freiwald‘s supervision, Marciniak was awarded a prestigious two-year Feodor-Lynen postdoctoral research fellowship
In August 2017, Marciniak attended a CBMM course in Woods Hole. Id. ¶ 47. It was there that she met Azevedo, then a teaching assistant at CBMM. Id. ¶¶ 16, 47. They were assigned to reside in the same off-campus cottage, where Azevedo created a “party atmosphere” and spread malicious and false rumors about Marciniak. Id. ¶ 47. On Marciniak‘s last day, Azevedo offered her a room to rest in during a particularly long program. Id. ¶ 48. Marciniak went to sleep but was awoken by Azevedo and another individual. Id. According to Plaintiffs, “Azevedo violated [Marciniak‘s] personal boundaries by sexually assaulting her despite her resistance and the lack of consent to the sex.” Id. Afterwards, Azevedo dismissed his actions, mocked Marciniak‘s emotions, and coerced her silence, insisting on secrecy. Id.
Feeling helpless and ashamed, Marciniak confided in Freiwald on September 1, 2017, after returning from CBMM‘s summer program. Id. ¶¶ 48-50. She told Freiwald of a “bad encounter with somebody from another institution,” but he dismissed the seriousness of her complaints and changed the topic. Id. ¶ 50. He suggested that she should accept the experience “as a daily-life reality” of her summer course at CBMM. Id. Also during that September 1 meeting—which entailed a forty-minute walk outside RU—Freiwald invaded Marciniak‘s personal space by inappropriately touching her lower back and looking at her legs and buttocks. Id. ¶ 49. This made Marciniak extremely uncomfortable. Id.
Marciniak repeatedly confronted Azevedo about his conduct in the weeks that followed. Id. ¶ 51. She told him of the injuries he had caused her, but he dismissed those out of hand. Id. And when she told him that she clearly remembered saying no to any sexual relations, he ridiculed her account and told her that consent did not matter. Id. ¶ 52. During this time, Azevedo also
Marciniak‘s encounters with Azevedo only continued. Between November 2017 and January 2018, Azevedo coerced Marciniak “into participating in ‘three[]some’ sexual encounters with other women.” Id. ¶ 53. In November 2017, for example, he insisted that Marciniak provide accommodations for him and his female friend during a visit to New York, during which “he misused [Marciniak]‘s pictures to create a profile on Tinder which he used to seek further ‘threesome’ sexual encounters.” Id. When Marciniak refused to participate in one such sexual encounter in January 2018, Azevedo immediately became aggressive towards her. Id. In February 2018, Azevedo pressured Marciniak to host him for a conference in New York the following month. Id. ¶ 55. Although she initially declined to host him and expressed her refusal to engage in any further sexual encounters, she succumbed to Azevedo‘s pressures once he threatened to jeopardize her CBMM opportunities if his wishes were not met. Id.
Azevedo sexually assaulted Marciniak again during that March 2018 visit to New York. Id. ¶ 56. Immediately prior to that assault, Marciniak disclosed to Azevedo “her contraction of an HSV infection because of Azevedo‘s assault on another woman in Woods Hole,” expressed her fear of cervical cancer from that infection, and pleaded with Azevedo to stop harassing women. Id. Azevedo just laughed it off. Id. After remarking “welcome to the population of people with STDs,” he forcefully pushed Marciniak onto her bed and engaged in non-consensual intercourse without a condom despite Marciniak‘s repeated protests and attempts to escape. Id. This caused
During a May 2018 CBMM retreat conference at MIT, Azevedo approached Marciniak and initiated a private conversation. Id. ¶ 58. After Marciniak told Azevedo of her current boyfriend and her intention to marry him, Azevedo suggested that she instead end that relationship and join him at the upcoming CBMM Summer School, where she also had been recruited as a teaching assistant, to facilitate his interactions with female students. Id. Additionally, in his role as CBMM retreat organizer, Azevedo attempted to involve Marciniak in social events. Id. ¶ 59. He added her to a WhatsApp group of event “organizers,” in which he repeatedly used Neo-Nazi and white supremacist terms, such as referring to himself as Führer. Id. Azevedo also insulted Marciniak‘s Polish background in front of conference participants when she refused his advances. Id. After the conference, Azevedo continued to harass Marciniak over text message, prompting her to block him on WhatsApp and other social media accounts. Id. ¶ 60.
The next summer, Marciniak requested that her then fiancé (and now husband), Agra, accompany her to Woods Hole while she worked as a teaching assistant for three weeks. Id. ¶ 61. The atmosphere there was unwelcome, to say the least. Id. Upon arrival, Marciniak and Agra faced scrutiny and gossip from the male CBMM members. Id. And Plaintiffs describe the school‘s atmosphere as “akin to a men‘s club“—with sexist jokes, private gatherings, and Azevedo sexually pursuing female students. Id.
Even after the CBMM summer program ended, Marciniak continued to face an uncomfortable environment back at RU. Id. ¶ 63. On September 24, 2018, Freiwald invited Marciniak to a lunch meeting, purportedly to discuss “the planning of forthcoming medical procedures.” Id. Instead of this meeting occurring in Freiwald‘s office, it took place at an upscale
2. Marciniak‘s Complaints and Aftermath
Marciniak was required to travel back to MIT in March 2019 to present her research to CBMM members. Id. ¶ 64. While she did not encounter Azevedo on that trip, she learned that she would have to present again to other CBMM members in two months. Id. Fearing that she would run into Azevedo in the future, Marciniak filed an incident report with MIT‘s Title IX & Bias Response Office against Azevedo in relation to the 2017 sexual assault and subsequent harassment. Id. ¶ 65. The Director, Sarah Rankin, followed up with a phone call on March 28, during which Marciniak expressed her desire to proceed with a formal complaint and requested a no-contact order to protect herself from Azevedo during her future visits to MIT. Id. Unsure whether MIT was the appropriate entity to conduct the investigation, Rankin told Marciniak that she would discuss with the other CBMM institutions. Id. Rankin contacted Marciniak two weeks later, suggesting that Marciniak speak to Rankin‘s counterpart at Harvard. Id. ¶ 66. Describing the complaint process as “complicated,” Rankin also advised Marciniak that there were no restrictions placed on Azevedo. Id. Around this time, Marciniak also filed a police report in Massachusetts alleging the same set of facts concerning Azevedo‘s 2017 sexual assault and subsequent harassment. Id. ¶ 67.
When Marciniak spoke with Harvard‘s Title IX Coordinator, Jose Martinez, he too questioned which institution was primarily responsible for CBMM-related investigations and suggested that Marciniak also contact the Marine Biology Laboratory (“MBL“). Id. ¶ 68. Despite the difficulty, Martinez promised Marciniak that he would find the answer for her. Id. After three weeks without an answer, Marciniak reached back out to Rankin on May 4, 2019, three days before the May CBMM conference at MIT. Id. ¶ 69. Rankin did not respond until May 9. Id. In the
Frustrated at the lack of progress, on May 13, Marciniak again emailed Rankin pleading that Rankin conduct a formal investigation. Id. ¶¶ 72-73. Rankin replied that she was still trying to determine which entity would conduct an investigation, should Marciniak choose to file a formal complaint, and Martinez also reached out to Marciniak that day, expressing the same sentiment. Id. ¶ 74. Meanwhile, Marciniak continued to face harassment. The following day, May 14, Freiwald scheduled a meeting with Marciniak and a colleague at a downtown restaurant, and in the subway on the way back, he intentionally touched her lower back and hand. Id. ¶ 75. Also that day, Marciniak emailed the CBMM Director for assistance, but she received no response. Id. ¶ 76.
One day after that, on May 15, Rankin informed Marciniak that MBL was the most appropriate entity to investigate the matter, and representatives from that entity subsequently reached out to schedule a call. Id. ¶ 78. The MBL representatives outlined the complaint process and referred Marciniak to RU‘s Title IX Coordinator and Human Resources Director, Virginia Huffman, who also scheduled a meeting with Marciniak. Id. ¶ 79. During meetings with Huffman, Marciniak described Azevedo‘s sexual harassment, as well as her frustration with the ongoing complaint process and lack of a formal investigation. Id. ¶ 80. Huffman provided Marciniak with contact details for attorneys and a no-contact order as to Azevedo was issued. Id. ¶¶ 81-84. But Plaintiffs still express frustration with this investigative process. Specifically, the investigators
During all this, Marciniak continued to have problems with Freiwald. In January 2020, Freiwald told her not to spend time on an internal fellowship application. Id. ¶ 91. And the next month—after CBMM denied Marciniak a teaching assistant position for the 2020 Summer School—Freiwald asked to speak with Marciniak about her project‘s future. Id. ¶¶ 92-93. At that meeting, Freiwald‘s behavior took a suggestive turn when he reclined in his chair and displayed a visible erection through his clothing. Id. ¶ 93. Similarly, at another meeting later that month, Freiwald made a sexually suggestive joke about a video featuring a monkey eating a banana. Id. ¶ 94.
In an email, which apparently was sent on or about May 28, 2020,3 Freiwald proposed an in-person meeting with Marciniak to discuss her future career. Id. ¶ 95. Citing the limitation on
Marciniak continued working at RU through the end of 2020 and the beginning of 2021. Id. ¶¶ 101-102. On May 18, 2021, she filed a sexual harassment and retaliation complaint against Freiwald and RU with the New York State Division of Human Rights. Id. ¶ 104. Three months later, and two weeks before she was due for a reappointment, Freiwald emailed Marciniak to inform her that he and RU decided to terminate her employment effective November 30, 2021. Id. ¶ 105. Early the next year, RU withdrew its ongoing H-1B Visa petition for Marciniak and offered her a one-way ticket to Poland. Id. ¶ 108.
B. Procedural History
1. Marciniak I
On December 29, 2022, Marciniak and Agra filed their lawsuit in Marciniak I against MIT, Harvard, RU, Boston Children‘s Hospital, MBL, the University of Chicago, and NSF. Marciniak I, No. 22 Civ. 10959, Dkt. 1. Their original pro se complaint in that case spanned 105 pages, with 839 paragraphs and sixteen causes of action. Id. On April 10, 2023, still proceeding without an attorney, Marciniak filed an amended complaint. Marciniak I, No. 22 Civ. 10959, Dkt. 65. The amended complaint, while substantially trimmed down, still spanned over forty pages and
The Marciniak I defendants sought leave to move to dismiss the amended complaint, and on November 6, 2023, Judge Carter set a briefing schedule. Marciniak I, No. 22 Civ. 10959, Dkt. 68. Marciniak‘s counsel entered an appearance two days later on November 8. Marciniak I, No. 22 Civ. 10959, Dkt. 69. And on December 5, 2023, through their counsel, Marciniak and her husband voluntarily dismissed NSF, MBL, Boston Children‘s Hospital, and the University of Chicago from the action. Marciniak I, No. 22 Civ. 10959, Dkt. 75. Ten days later, Harvard, MIT, and RU all moved to dismiss the amended complaint. Marciniak I, No. 22 Civ. 10959, Dkts. 78, 80, 84, 86. Marciniak has not sought leave to file a second amended complaint in Marciniak I.
On November 22, 2023, just over two weeks after Judge Carter set the motion to dismiss briefing schedule in Marciniak I, Marciniak and Agra—through the same attorney representing them in that case—initiated this action, Marciniak II. Dkt. 1. The Complaint alleges the facts recounted above, see supra I.A, and names as Defendants MIT, RU, NSF, Azevedo, and Freiwald. Id. It asserts nine causes of action, each against all Defendants: (1) sexual harassment under Title VII, id. ¶¶ 113-117; (2) gender discrimination and sexual harassment under the NYSHRL, id. ¶¶ 118-128; (3) those same claims plus hostile work environment under the NYCHRL, id. ¶¶ 129-135; (4) retaliation under Title VII, id. ¶¶ 136-141; (5) retaliation under the NYSHRL, id. ¶¶ 142-148; (6) retaliation under the NYCHRL, id. ¶¶ 149-155; (7) a claim titled “New York Adult Survivors Act,” id. ¶¶ 156-161; (8) intentional infliction of emotional distress, id. ¶¶ 162-166; and (9) loss of consortium, id. ¶¶ 167-172.
On December 26, 2023, RU and Freiwald sought leave to move to dismiss the Complaint in the instant action on various grounds, including that it is improperly duplicative of Marciniak I. Dkt. 21. In response to that pre-motion letter, on January 5, 2024, Marciniak asked this Court for leave to move to consolidate the instant action with Marciniak I, and to stay the briefing schedule on any motion to dismiss. Dkt. 33. On the same day, Marciniak submitted a similar letter to Judge Carter in Marciniak I, requesting permission to consolidate the two cases and to stay the briefing schedule. Marciniak I, No. 22 Civ. 10959, Dkt. 88. In both letters, Marciniak wrote that Marciniak I and Marciniak II “involve[] common questions of law, the same operative facts, [and] substantially the same parties and witnesses.” Id. at 1; Dkt. 33 at 1.
Judge Carter denied the request to consolidate in Marciniak I on January 11, 2024, determining that “Plaintiffs have not shown good cause for filing a new action (Marciniak II) involving common questions of law and fact and substantially the same parties and witnesses and
II. Discussion
All Defendants argue that the Complaint should be dismissed as impermissibly duplicative of the claims asserted in Marciniak I. See MIT MTD at 8-10; RU Defts. MTD at 10-13; Azevedo MTD at 4-7. Because the Complaint asserts claims that could have been raised in Marciniak I and concern the same subject matter as the claims in Marciniak I, and because the parties in the two suits are the same or their privies, the rule against claim splitting applies and the Complaint is dismissed without prejudice. The Court, however, sua sponte grants Plaintiffs leave to amend the Complaint.
A. Claim Splitting
1. Governing Law
Generally, a plaintiff has “no right to maintain two actions on the same subject in the same court, against the same defendant[s] at the same time.” Curtis v. Citibank, N.A., 226 F.3d 133, 139 (2d Cir. 2000). So, “[a]s part of its general power to administer its docket, a district court may stay or dismiss a suit that is duplicative of another federal court suit,” so long as neither suit has reached a final judgment. Id. at 138; accord New Phone Co., Inc. v. City of New York, 498 F.3d 127, 129 (2d Cir. 2007). This general precept has long been recognized by federal
From this general principle flow two different rules that apply in slightly (but importantly) different contexts.4 One is called the “first to file rule,” or the “first filed rule.” First City Nat‘l Bank & Tr. Co. v. Simmons, 878 F.2d 76, 79 (2d Cir. 1989) (former); Emps. Ins. of Wausau v. Fox Ent. Grp., Inc., 522 F.3d 271, 274 (2d Cir. 2008) (latter). This “well-settled” doctrine applies when two competing lawsuits are filed in different federal judicial districts. Emps. Ins. of Wausau, 522 F.3d at 272-75. In that situation, the general rule is that the first suit to be filed has priority over the later-filed suit. Id. at 274-75. But the priority may flip “where the balance of convenience favors the second-filed action” or “where special circumstances warrant giving priority to the second suit.” Id. at 275. By establishing a presumption that the later-filed suit cannot proceed simultaneously with the earlier-filed suit, the first-to-file rule conserves judicial resources and honors the plaintiff‘s choice of forum. Id.; First City Nat‘l Bank & Tr. Co., 878 F.2d at 79-80. Here, both Marciniak I and Marciniak II were filed in this District, so the first-to-file rule does not apply.
The second rule—and the one that applies here—travels under several names. Alternatively known as the “rule against duplicative litigation,” the “rule against claim splitting,”
For two suits to be the same, “there must be the same parties, or, at least, such as represent the same interests; there must be the same rights asserted and the same relief prayed for; the relief must be founded upon the same facts, and the title, or essential basis, of the relief sought must be the same.” Sacerdote, 939 F.3d at 504 (quoting The Haytian Republic, 154 U.S. 118, 124 (1894)). More concretely, two suits are the same for the purposes of the rule against claim splitting when: (1) the parties in the later-filed suit are the same as, or in privity with, the parties in the earlier-filed suit; and (2) the claims asserted in the later-filed suit were, or could have been, raised in the earlier-filed suit. Sacerdote, 939 F.3d at 504-06 & n.25 (explaining that the principles of claim preclusion apply except for the requirement that the prior suit generally be
As to the first requirement, generally, the parties to each suit must be the same. Sacerdote, 939 F.3d at 505. That is because “a plaintiff has as many causes of action as there are defendants to pursue.” Id. There is an exception to the same-party requirement, however, for a party that is in privity with a party in the earlier action. Id. at 506. The Supreme Court has distilled six categories of “recognized exceptions” to the same-party requirement:
(1) agreements by a nonparty to be bound by the determination of issues in an action between others; (2) certain pre-existing substantive legal relationships based in property law between the nonparty and the party, such as preceding and succeeding owners of property, bailee and bailor, and assignee and assignor; (3) representative suits where the nonparty‘s interest was adequately represented by a party with the same interests, such as class actions and suits brought by trustees, guardians, and other fiduciaries; (4) when a nonparty has assumed control over the litigation in which the judgment was rendered; (5) when a nonparty is acting as a proxy, agent, or designated representative of a party bound by a judgment; and (6) when a statutory scheme expressly forecloses successive litigation by nonlitigants, so long as the scheme comports with due process.
Id. at 506 (citing Taylor v. Sturgell, 553 U.S. 880, 893-95 (2008)). But “[t]he doctrine of privity is a functional inquiry, not a formalistic one, and must be applied with flexibility.” Cho v. Blackberry Ltd., 991 F.3d 155, 169-70 (2d Cir. 2021)
With respect to the second requirement, whether a claim could have been raised in the previously filed suit “depends in part on whether the same transaction or connected 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.” TechnoMarine SA, 758 F.3d at 499. The rule against claim splitting “does not require that all aspects of the new and prior suits be identical.” Davis v. Norwalk Econ. Opportunity Now, Inc., 534 F. App‘x 47, 48 (2d Cir. 2013). Rather, this element “focuses on whether the two claims arise from the same ‘nucleus of operative fact,‘” id. (quoting Waldman v. Vill. of Kiryas Joel, 207 F.3d 105, 108 (2d Cir. 2000)); that is, “whether [the] two actions spring from the same ‘transaction’ or ‘claim,‘” Waldman, 207 F.3d at 108. See also Curtis, 226 F.3d at 140 (explaining that the claim-splitting “rule applies only to . . . claims arising out of the same events as those alleged in [the earlier-filed suit]“). The Second Circuit has identified three factors as “crucial” to whether two claims arise from a common nucleus of operative fact: (a) “whether the underlying facts are related in time, space, origin, or motivation“; (b) whether the two claims “form a convenient trial unit“; and (c) “whether their treatment as a unit conforms to the parties’ expectations.” Waldman, 207 F.3d at 108.
2. Analysis
As the analysis of the similarity of facts is the same with respect to all Defendants, the Court starts with the second element of the rule against claim splitting. All relevant considerations show that the claims in Marciniak I and Marciniak II spring from a common nucleus of operative fact. In fact, Plaintiffs have acknowledged before this Court and before Judge Carter that the two
Not only are the underlying facts the same, but the two suits would form a convenient trial unit, and treating the two suits as such would conform to the parties’ expectations. See Waldman, 207 F.3d at 108. In Marciniak I, Plaintiffs bring claims under Title VII, the NYSHRL, the NYCHRL, and state law. Marciniak I, No. 22 Civ. 10959, Dkt. 65 ¶¶ 15-218. And they allege, among other things, harassment, discrimination, hostile work environment, retaliation, emotional distress, and loss of consortium. Id. In the instant action, Plaintiffs also bring claims under Title VII, the NYSHRL, the NYCHRL, and state law. Compl. ¶¶ 113-172. And they also allege harassment, discrimination, hostile work environment, retaliation, emotional distress, and loss of consortium. Id. Thus, again as Plaintiffs themselves note, the two suits raise “common questions of law.” Dkt. 33 at 1; accord Marciniak I, No. 22 Civ. 10959, Dkt. 88 at 1. This unity in causes
The first element of the rule against claim splitting—that the same parties or their privies are in both suits—is similarly met here. In the instant action, Plaintiffs bring claims against MIT, RU, Azevedo, and Freiwald. Dkt. 1. In Marciniak I, they also sued MIT and RU. Marciniak I, No. 22 Civ. 10959, Dkt. 65. So, at least as to MIT and RU, the second requirement is easily met—they are named defendants in both suits. Plaintiffs do not, however, bring claims against Freiwald or Azevedo in Marciniak I—a fact they argue removes Marciniak II from the clutches of the rule against claim splitting. See Opp. to MIT at 8; Opp. to RU Defts. at 10; Opp. to Azevedo at 11. But as discussed, two suits with different defendants can be “nonetheless duplicative” if “the defendants in the second suit are in privity with the defendants in the first suit.” Barclay v. Lowe, 131 F. App‘x 778, 779 (2d Cir. 2005); see also Wang v. Ren, No. 20-4216, 2023 WL 1977233, at *1 (2d Cir. Feb. 14, 2023) (“Like claim preclusion, the rule against duplicative litigation applies not only where there is identity, but also where there is privity, between the parties in the first- and second-filed actions.“). And “[c]ourts in the Second Circuit have previously held that employees are in privity with their employers.” Wang v. Ren, No. 19 Civ. 5310 (JPO), 2020 WL 6825675, at *2 (S.D.N.Y. Nov. 20, 2020), aff‘d, 2023 WL 1977233; see also Araoz v. New Albany Co., LLC, No. 22 Civ. 125 (AMD), 2024 WL 866169, at *3 (E.D.N.Y. Feb. 29, 2024) (“An employer-employee or agent-principal relationship will provide the necessary privity for claim preclusion with respect to matters within the scope of the relationship, no matter which party is first sued.” (alterations adopted and internal quotation marks omitted)). So the instant suit may still be duplicative of Marciniak I as to Freiwald and Azevedo—even though they were not named in that earlier suit—to the extent that Freiwald and Azevedo‘s alleged actions arose out of their employment with Defendants named in Marciniak I. Araoz, 2024 WL 866169, at *3; see Wang, 2023 WL 1977233, at *2 (explaining that “there can be no doubt that [an employee] has a ‘sufficiently close relationship’ with [his employers] to meet the privity requirement” for claim-splitting purposes (quoting Cho, 991 F.3d at 170)); Barclay, 131 F. App‘x at 779 (finding privity in the claim-splitting context when “[a]ll [new] defendants are employees of” a defendant in the first suit and “their interests are adequately represented by those in the first suit who are ‘vested with the authority of representation‘” (quoting Alpert‘s Newspaper Delivery, Inc. v. The N.Y. Times Co., 876 F.2d 266, 270 (2d Cir. 1989))); DiGennaro v. Whitehair, 467 F. App‘x 42, 44 (2d Cir. 2012) (same); cf. Oliver, 2022 WL 2165814, at *2 (explaining that “[e]mployee defendants have a sufficiently close relationship with other employees when their challenged actions in both lawsuits consist of acts in their official capacities on behalf of their employer” and thus “share the ‘same interests‘” (quoting Sacerdote, 939 F.3d at 504; citing Cho, 991 F.3d at 170)).
Freiwald was an employee of RU at the time of his actions alleged by Plaintiffs. Compl. ¶ 18 (“At all times relevant, [Freiwald] was employed by Defendant RU.“). And those actions allegedly were taken in the course of his employment by RU. See id. ¶¶ 29-45, 49-50, 54, 63, 75, 88, 91-108. Indeed, his conduct forms the basis for Plaintiffs’ Title VII, NYSHRL, and NYCHRL claims against RU. Id. ¶¶ 113-135. The same is true for Azevedo. At least as alleged by Plaintiffs,
Plaintiffs also ask that, should the Court conclude that the rule against claim splitting applies, the Court to stay the instant suit instead of dismissing it. See Opp. to MIT at 19-20; Opp. to RU Defts. at 11-12; Opp. to Azevedo at 12-13. A district court may “administer its docket so as to avoid duplicative litigation in any manner it chooses,” Barclay, 131 F. App‘x at 779, and it should “consider the equities of the situation when exercising [that] discretion,” Curtis, 226 F.3d at 138. Here, the balance of the equities strongly favors a dismissal. The only reason Plaintiffs proffer for filing this second action is that she wanted “to preserve certain claims,” as the
Marciniak‘s “duplicative litigation is not the proper procedure for adding additional parties” to Marciniak I; rather, it is “an effort to circumvent the rules pertaining to the amendment of complaints.” Wang, 2020 WL 6825675, at *3 (alterations adopted and internal quotation marks omitted); see McFarlane v. Iron Mountain Info. Mgmt. Servs., Inc., No. 17 Civ. 9739 (DLC), 2018 WL 941748, at *2 (S.D.N.Y. Feb. 16, 2018) (“Plaintiffs may not evade amendment deadlines by filing separate lawsuits that plead claims that were not timely raised in the initial suit.” (citing
Accordingly, the Complaint is dismissed in full without prejudice.
B. Leave to Amend
Lastly, the Court considers whether to grant leave to amend. Under
After considering these factors, the Court grants Plaintiffs leave to file an amended complaint, in the event they believe they can plead facts and claims that are not duplicative of
III. Conclusion
For the foregoing reasons, the Complaint is dismissed without prejudice. The Court grants Plaintiffs leave to amend the Complaint. Any amended complaint must be filed within thirty days of this Opinion and Order. If Plaintiffs fail to file an amended complaint within thirty days or fail to obtain an extension of time to do so by that date, the Court will direct the Clerk of Court to close this case. The Clerk of Court is respectfully directed to terminate the motions pending at Docket Numbers 42, 49, and 63.
SO ORDERED.
Dated: September 29, 2024
New York, New York
JOHN P. CRONAN
United States District Judge
Notes
Compl. ¶ 95. The next paragraph, which refers to “a subsequent email on or about 29, 2020” [i.e., without a month], id. ¶ 96, does not help to clarify when these events took place.Due to the Pandemic, no further in-person meetings occurred until an email exchange on or about May 28, 2020, addressing concerns regarding [Marciniak]‘s funding for a postdoctoral position and project support. Freiwald, in an email on or about February 28, 2019, suggested continuing the conversation about [Marciniak]‘s future career in person.