OPINION AND ORDER
I. Introduction
This action arises out of the physical assault of plaintiff while she working as a hostess at defendant Young Bin Café, a Korean-themed café located in Flushing, New York. Plaintiff has brought claims for negligence, retaliation, intentional infliction of emotional distress and tortious interference with business relations and contract. In Docket Items 60 and 61, defendants have moved for summary judgment dismissing plaintiffs complaint in its entirety. In Docket Item 63, plaintiff cross moves for an order vacating, in part, an Order that I entered on August 6, 2012 and dismissing the action for lack of subject matter jurisdiction.
The parties have consented to my exercising plenary jurisdiction over this matter pursuant to 28 U.S.C. § 636(c). For the reasons that follow, defendants’ motion for summary judgment is granted, and plaintiffs complaint is dismissed. In addition, plaintiffs cross motion (Docket Item 63) is denied.
II. Background
A. Facts
Prior to the events giving rise to this action, in or around 2004 or 2005, plaintiff worked at Gabin Café for approximately one year. Gabin Café is located in New Jersey and is owned by former defendant
On or about July 1, 2008, plaintiff was working as a hostess at Young Bin Café in Flushing, New York (Cho Dep. Tr. at 13:10-25, 73:8-17; Sin Dep. Tr. at 44:8-11). Like the Gabin Café, Yong Bin Café is owned by Sin (Sin Dep. Tr. at 14:15-22). At some point in the early morning of July 1, 2008, Kwang Kyu Kim, a customer at Young Bin Café, kicked plaintiff in the stomach without provocation, causing her to fall on her side on the marble floor (Cho Dep. Tr. 24:20-24, 29:3-24). Plaintiff reported this incident to the police and filed a police report (Cho Dep. Tr. at 103:24-104:2). Prior to this incident, plaintiff had never complained to Sin or anyone else at Young Bin Café about Kim, who had previously been a customer at Young Bin Café (Cho Dep. Tr. at 88:7-14).
Sin was not at Young Bin Café on the night that the incident occurred; after-wards, an employee told her that Kim had either kicked or pushed plaintiff (Sin Dep. Tr. at 64:6-10). Sin claims that she tried to call plaintiff after the incident to “ask her if she was okay” (Sin Dep. Tr. at 55:13-18), but that she never ultimately spoke with plaintiff about Kim’s alleged assault (Sin Dep. Tr. at 56:6-12).
Plaintiffs recollection of her interactions with Sin. after Kim’s assault is different. Plaintiff claims that she spoke with Sin by telephone after the incident and that Sin called her “an American bitch” (Cho Dep. Tr. at 91:17-22). Plaintiff claims that she took a week off before returning to work at Young Bin Café (Cho Dep. Tr. at 92:18-21). Plaintiff claims that when she returned, Sin was “very angry” that plaintiff had filed a police report (Cho Dep. Tr. at 92:6-10) and Sin said that she would not “leave [plaintiff] alone” unless plaintiff dropped the police report (Cho Dep. Tr. at 93:18-94:2). Plaintiff further claims that Sin demanded that plaintiff apologize to Kim (Cho Dep. Tr. at 94:9-21, 97:4-7, 101:4-20). As a result of these conversations, plaintiff felt “saddened” and “cornered” (Cho Dep. Tr. at 100:8-24). She further explained, “From what I hear there is an association of people who run room salons and president Sin, she told them that, you know, that I made problems, I caused noise, so she made sure, she made it so that I couldn’t work” (Cho Dep. Tr. at 40:8-12).
Sin maintains that she did not threaten plaintiff or require her to apologize to Kim (Sin Dep. Tr. at 57:20-58:4). The police also investigated Sin’s conduct, and she was charged with witness tampering (Sin Dep. Tr. at 56:17-19).
Plaintiff sought various medical treatments for the injuries resulting from the assault, including acupuncture, xrays, and chiropractic (Cho Dep. Tr. at 104-111). She claims that she “applied for the employee insurance” but that Sin denied this application (Cho Dep. Tr. at 111:10-14). Sin testified that she did not know whether she had workers’ compensation insurance for employees at Yong Bin Café (Sin Dep. Tr. at 58:14-18).
Plaintiff claims that she was fired approximately one week after she returned to work at Young Bin Café (Cho Dep. Tr. at 96:21-23,102:25-103:3). Sin claims that plaintiff left Young Bin Café voluntarily because plaintiff was going on a vacation (Sin Dep. Tr. at 60:18-20).
Plaintiff commenced this action on May 7, 2010 against Young Bin Café, Gabin, Sin and Kim. She asserted the following claims: (1) negligence against Kim; (2) retaliatory discharge in violation of the New York State Human Rights Act, Executive Law § 292 et seq., against Young Bin Café and Gabin (collectively, the “Café Defendants”) and Sin; (3) retaliatory discharge in violation of the New York City Administrative Code, Section 8-101 et seq., against the Café Defendants and Sin; (4) intentional infliction of emotional distress against all defendants; (5) retaliatory discharge in violation of the New Jersey Law Against Discrimination against Gabin and Sin and (6) tortious interference with business relationships against all defendants.
On July 23, 2012, the Café Defendants and Sin moved to dismiss the action for lack of subject matter jurisdiction because plaintiff, Sin and Earn are all citizens of Korea, and, therefore, complete diversity was lacking (Docket Item 52). I conducted a conference call on July 30, 2012 to discuss the issue, and plaintiff made an oral application at that time to withdraw her claims against Sin and Kim. By an order dated August 6, 2012, I granted plaintiffs application and concluded that neither Sin nor Kim was an indispensable party under Fed.R.Civ.P. 19 (“August 6 Order” (Docket Item 59)). I concluded, therefore, that the more appropriate course was to dismiss plaintiff’s claims against Sin and Kim without prejudice, and to permit the action to continue against only Young Bin Café and Gabin (Docket Item 59). In addition, I granted plaintiffs motion to amend the complaint to add GBNY, Inc. and Gabin, Inc.
Thus, the only defendants remaining in this action are Young Bin Café and Gabin, and the remaining claims asserted against them are retaliatory discharge in violation of New York’s and New Jersey’s anti-discrimination statutes, tortious interference with business relationships and contract and intentional infliction of emotional distress. Pursuant to Fed.R.Civ.P. 56, the defendants timely filed their motion for summary judgment seeking the dismissal of plaintiffs complaint in its entirety. Plaintiff filed an opposition and cross-moved pursuant to Fed.R.Civ.P. 60(b)(6) for an order vacating my August 6 Order to the extent that it dismissed her claims against Sin and Kim.
III. Analysis
A. Plaintiff’s Cross-Motion to Vacate the August 6 Order
By motion dated September 28, 2012, plaintiff seeks an order pursuant to Fed. R.Civ.P. 60 vacating my August 6 Order to the extent that it dismissed her claims against Sin and Kim (Docket Item 63). Notwithstanding that it was plaintiff who initially sought to withdraw her claims against Sin and Kim, she now argues, somewhat inexplicably, that Sin and Kim are indispensable parties who should have never been dismissed. In view of the fact that the Court’s subject matter jurisdiction is predicated on diversity of citizenship, she further contends that this action should dismissed for lack of subject matter jurisdiction because the inclusion of Kim and Sin, who, like plaintiff, are citizens of Korea, would destroy diversity jurisdiction. Plaintiffs application is entirely
Rule 60(b) of the Federal Rules of Civil Procedure provides:
On motion and just terms, the court may relieve a party or its legal representative from a ... order ... for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief.
Fed.R.Civ.P. 60(b). “A motion seeking relief pursuant to Rule 60(b) is addressed to the sound discretion of the district court.” In re Dubrowsky,
Plaintiff has not specified under which subsection of Rule 60(b) she seeks relief. However, subsections 1 through 5 are plainly inapplicable and, therefore, plaintiff is entitled to relief only if Rule 60(b)(6)’s standards are met. As explained by the Court of Appeals for the Second Circuit, Rule 60(b)(6) is a “‘grand reservoir of equitable power to do justice in a particular case,’ ” but it is not “bottomless” and “courts require the party seeking to avail itself of the Rule to demonstrate ‘extraordinary circumstances’ warrant relief.” Stevens v. Miller,
Plaintiff has failed to identify any extraordinary circumstances that would justify vacatur of that portion of my August 6 Order that dismissed her claims against Sin and Kim without prejudice. At base, plaintiffs argument represents nothing •more than a disagreement with my conclusion that neither Sin nor Kim are indispensable parties. This falls far short of the required demonstration of extraordinary circumstances. See United Airlines, Inc. v. Brien,
B. Defendants’ Motion for Summary Judgment
1. Procedural Deficiencies
As an initial matter, plaintiff contends that defendants’ motion for summary judgment should be denied because it is procedurally deficient.
Defendants’ submissions are procedurally deficient in several respects. Defendants failed to file the required statement of material facts as to which they contend there is no genuine issue to be tried that is required by Local Civil Rule 56.1(a). In addition, although defendants seek relief through a document entitled “Memorandum of Law in Support of Motion for Summary Judgment” (Docket Item 61), defendants failed to file the required notice of motion. See Local Civ. R. 7.1(a)(1). In opposition to defendants’ motion, plaintiff submitted a Local Rule 56.1 Statement of Material Facts (Docket Item 68). Defendants responded to this statement, but did so in a summary — and largely unhelpful— manner (Docket Item 69).
Local Civil Rule 56.1 “requires a party moving for summary judgment to submit a statement of the allegedly undisputed facts on which the moving party relies, together with citation to the admissible evidence of record supporting each such fact.” Giannullo v. City of New York,
Nonetheless, “[a] district court has broad discretion to determine whether to overlook a party’s failure to comply with local court rules.” Holtz v. Rockefeller & Co., Inc.,
The relevant material facts are contained in the depositions of plaintiff and former defendant Sin; both parties have submitted copies of these transcripts. Given the small size of the record, defendants’ failure to file the Rule 56.1 statement will not impair my “assiduous review of the record” to identify the disputed material facts, if any. See T.Y. v. New York City Dep’t of Educ.,
2. Summary Judgment Standards The standards applicable to a motion for summary judgment are well-settled and require only brief review.
Summary judgment may be granted only where there is no genuine issue as to any material fact and the moving party ... is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). In ruling on a motion for summary judgment, a court must resolve all ambiguities and draw all factual inferences in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc.,477 U.S. 242 , 255,106 S.Ct. 2505 ,91 L.Ed.2d 202 (1986). To grant the motion, the court must determine that there is no genuine issue of material fact to be tried. Celotex Corp. v. Catrett,477 U.S. 317 , 322-23,106 S.Ct. 2548 ,91 L.Ed.2d 265 (1986). A genuine factual issue derives from the “evidence [being] such that a reasonable jury could return a verdict for the nonmoving party.” Anderson,477 U.S. at 248 ,106 S.Ct. 2505 . The nonmoving party cannot defeat summary judgment by “simply showing] that there is some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,475 U.S. 574 , 586,106 S.Ct. 1348 ,89 L.Ed.2d 538 (1986), or by a factual argument based on “conjecture or surmise,” Bryant v. Maffucci,923 F.2d 979 , 982 (2d Cir.1991). The Supreme Court teaches that “all that is required [from a nonmoving party] is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.” First Nat’l Bank of Ariz. v. Cities Serv. Co.,391 U.S. 253 , 288-89,88 S.Ct. 1575 ,20 L.Ed.2d 569 (1968); see also Hunt v. Cromartie,526 U.S. 541 , 552,119 S.Ct. 1545 ,143 L.Ed.2d 731 (1999). It is a settled rule that “[credibility assessments, choices between conflicting versions of the events, and the weighing of evidence are matters for the jury, not for the court on a motion for summary judgment.” Fischl v. Armitage,128 F.3d 50 , 55 (2d Cir.1997).
McClellan v. Smith,
“Material facts are those which ‘might affect the outcome of the suit under the governing law,’ and a dispute is ‘genuine’ if ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ ” Coppola v. Bear Stearns & Co., Inc.,
Summary judgment is “ordinarily inappropriate” in employment discrimination cases where the employer’s intent and state of mind are in dispute. Carlton v. Mystic Transp., Inc.,
summary judgment may not be granted simply because the court believes that the plaintiff will be unable to meet his or her burden of persuasion at trial.... There must either be a lack of evidence in support of the plaintiffs position, ... or the evidence must be so overwhelmingly tilted in one direction that any contrary finding would constitute clear error.
Danzer v. Norden Sys., Inc.,
When deciding whether summary judgment should be granted in a discrimination case, we must take additional considerations into account. Gallo v. Prudential Residential Services,22 F.3d 1219 , 1224 (2d Cir.1994). “A trial court must be cautious about granting summary judgment to an employer when, as here, its intent is at issue.” Id. “[Affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination.” Id. Summary judgment remains appropriate in discrimination cases, as “the salutary purposes of summary judgment-avoiding protracted, expensive and harassing trials-apply no less to discrimination cases than to ... other aréas of litigation.” Weinstock [v. Columbia Univ.], 224 F.3d [33] at 41 [ (2d Cir.2000) ] (internal quotation marks omitted); see also Abdu-Brisson v. Delta Air Lines, Inc.,239 F.3d 456 , 466 (2d Cir.2001) (“It is now beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases.”).
Desir v. City of New York,
3. Application of the Foregoing Legal Principles
a. Discrimination/Retaliation Claims
Plaintiffs complaint fails to identify the specific statutory provisions under which she seeks relief. Despite this lack of clarity, the parties in their motion papers appear to agree that plaintiffs theory is retaliatory discharge. Accordingly, I shall limit my analysis to this alleged claim of discrimination.
i. New Jersey Anti-Discrimination Law
Plaintiff claims that defendants have violated the New Jersey Law Against Discrimination, N.J. Stat. Ann. §§ 10:5-1 et seq. (“NJLAD”). Plaintiff cannot, however, avail herself of this New Jersey law and, accordingly, this claim must be dismissed.
“New Jersey courts have consistently applied the law of the state of employment to workplace claims, and have therefore only applied the NJLAD if the plaintiff worked in New Jersey.” Satz v. Taipina, CIV.A. 01-5921(JBS),
The NJLAD has no application here. As confirmed by both plaintiff and Sin during their depositions, the events that gave rise to the allegedly discriminatory conduct occurred while plaintiff was working at Young Bin Café in Flushing, New York (Cho Dep. Tr. at 73:8-17; Sin Dep. Tr. at 44:8 — ll).
ii. New York City and New York State Human Rights Laws
Defendants next claim that summary judgment is warranted dismissing plaintiffs claims for retaliatory discharge under the New York State Human Rights Law (“NYSHRL”) and New York City Human Rights Law (“NYCHRL”) because Young Bin Café did not employ enough individuals to fall within the reach of these statutes these^ statutes and because plaintiff has failed to establish a prima facie case for retaliatory discharge. Plaintiff responds that she has engaged in a protected activity by reporting Kim’s assault to the police and requesting workers’ compensation insurance from Sin. Even if all. the facts were as plaintiff claims that they are, I conclude that plaintiff has failed to show that she engaged in a protected activity and, therefore, defendants are entitled to summary judgment dismissing her claims under the NYSHRL and NYCHRL.
Claims of retaliation under the NYSHRL and NYCHRL are analyzed under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green,
Under the McDonnell Douglas framework, plaintiffs claims are assessed through a three-part, burden-shifting analysis:
The burden-shifting framework laid out in McDonnell Douglas,411 U.S. at 802 ,93 S.Ct. 1817 , governs retaliation claims under both Title VII and the NYSHRL. Schiano,445 F.3d at 609 .*506 To make out a prima facie case of retaliation, a plaintiff must make four showings: that “(1) she engaged in a protected activity; (2) her employer was aware of this activity; (3) the employer took adverse employment action against her; and (4) a causal connection exists between the alleged adverse action and the protected activity.” Id. at 608. “Once a prima facie case of retaliation is established, the burden of production shifts to the employer to demonstrate that a legitimate, nondiscriminatory reason' existed for its action.” Raniola v. Brat-ton,243 F.3d 610 , 625 (2d Cir.2001). If the employer demonstrates a legitimate, non-discriminatory reason, then “[t]he burden shifts ... back to the plaintiff to establish, through either direct or circumstantial evidence, that the employer’s action was, in fact, motivated by discriminatory retaliation.” Id. at 625.
Summa v. Hofstra Univ., supra,
To establish a prima facie case of retaliation under the NYSHRL, a plaintiff must demonstrate that: (1) she engaged in a protected activity; (2) the employer was aware of this activity; (3) she suffered a materially adverse action and (4) a causal connection exists between the protected activity and the adverse action. Gallo v. Alitalia-Linee Aeree Italiane-Societa per Azioni,
Although the prima facie cases of retaliation under the NYSHRL and NYCHRL are similar, “[c]laims under the [NYCHRL] must be reviewed independently from and ‘more liberally’ than their federal and state counterparts.” Loeffler v. Staten Island Univ. Hosp.,
Protected activity within the meaning of the NYSHRL and NYCHRL is conduct that “oppos[es] or complaints] about unlawful discrimination.” Forrest v. Jewish Guild for the Blind,
Even accepting plaintiffs version of the events giving rise to this action as true, she cannot make out a prima facie case of retaliation under either the NYSHRL or NYCHRL.
Plaintiff first argues that her filing of a police report concerning Kim’s assault constitutes a protected activity. This complaint, however, did not concern any conduct prohibited under either the NYSHRL or NYCHRL. Kim’s assault of plaintiff, while disturbing, simply did not
Plaintiff next argues that her request for workers’ compensation benefits from Sin constituted a protected activity. Even if I were to assume that plaintiffs vague reference to her application for “employee insurance” (Cho Dep. Tr. at 111:10-14) is meant to refer to workers’ compensation, such a request is simply not a protected activity because it does not constitute an opposition or complaint about unlawful discrimination. E.g. Brook v. Overseas Media, Inc.,
Even considering plaintiffs claim for retaliatory discharge under the NYCHRL “independently and ‘more liberally’” than her claim under the NYSHRL, Loeffler v. Staten Island Univ. Hosp., supra,
Finally, plaintiffs reliance on Borawski v. Abulafia,
Because I conclude that summary judgment is warranted due to plaintiffs failure to establish a prima facie case under either the NYSHRL or the NYCHRL, I need not address defendants’ alternate argument that Young Bin Café did not employ enough individuals to be covered by either the NYSHRL or NYCHRL.
b. Tortious Interference with Business Relations and Contract
Plaintiffs complaint includes a claim for “Interference with Contract/Relations” which appears to be an attempt to state a claim for either tortious interference with business relations or tortious interference with contract. Defendants’ motion for summary judgment analyzes it as tortious interference with contract. Plaintiff did not respond to defendant’s argument concerning this claim.
Under New York law,
Although not articulated with any degree of clarity, plaintiffs claim appears to be based on her testimony that Sin told “an association of people who run room salons” that plaintiff “made problems” and “caused noise,” thus ensuring that plaintiff could not work (Cho Dep. Tr. at 40:8-12). This conclusory testimony is insufficient to withstand a motion for summary judgment. See Major League Baseball Props., Inc. v. Salvino, Inc.,
Under New York law, a claim of tortious interference with a contract requires: “(i) existence of a valid contract; (ii) defendant’s knowledge, of that contract; (iii) defendant’s intentional procurement of the breach of that contract; and (iv) damages caused by the breach.” G.K.A. Beverage Corp. v. Honickman,
Summary judgment is also warranted to the extent that plaintiffs claim is for tortious interference with contract. The record is devoid of any facts that even arguably suggest that plaintiff had a contract with a third party. This absence of a valid and enforceable contract is fatal to plaintiffs tortious interference with contract claim.
Defendants are, therefore, entitled to summary judgment on plaintiffs claim for tortious interference with business relations and contract.
c. Intentional Infliction of Emotional Distress
Finally, defendants argue that summary judgment with respect to plaintiffs intentional infliction of emotional distress claim is warranted because it is barred by the statute of limitations. Plaintiff also failed to respond to this argument.
Under New York law, claims for intentional infliction of emotional distress are governed by a one-year statute of limitations. N.Y. C.P.L.R. § 215; Ross v. Louise Wise Servs., Inc.,
IV. Conclusion
For the reasons set forth above, plaintiffs cross-motion to vacate part of my Order dated August 6, 2012 (Docket Item 63) is denied and defendants’ motion for summary judgment (Docket Items 60 and 61) is granted in its entirety. The Clerk of the Court is directed to mark Docket Item 63 as closed, and to close this case.
SO ORDERED.
. The facts are drawn from the depositions of plaintiff and former defendant Eun M. Sin. Plaintiff submitted a declaration in opposition to defendants’ motion for summary judgment. This declaration, however, is not signed and it does it state that its contents are true and correct as required by 28 U.S.C. § 1746. Accordingly, I do not consider it in connection with the resolution of this motion. See Sterling Fifth Assocs. v. Carpentile Corp., Inc., 03 Civ. 6569(HB),
. GBNY, Inc. and Gabin, Inc. were improperly sued as Young Bin Café and Gabin.
. To the extent that plaintiff’s motion can be construed as a motion for reconsideration, it is similarly without a basis. First, the motion is untimely. See Local Civ. R. 6.3 ("[A] notice of motion for reconsideration or reargument of a court order determining a motion shall be served within fourteen (14) days after entry of the Court’s determination of the original motion.”). Plaintiff’s present motion is dated September 28, 2012, more than a month after my August 6 Order, and was made well beyond the 14-day time limit. Second, plaintiff has failed to identify any controlling precedent or factual matters that I overlooked in considering plaintiff’s initial application to withdraw her claims against Sin and Kim. See Quinn v. Altria Grp., Inc., 07 Civ. 8783(LTS)(RLE),
. Although I need not reach the issue, the application of New Jersey’s anti-discrimination law to conduct occurring in New York would probably be unconstitutional. See generally Healy v. Beer Inst.,
. Indeed, in plaintiff's complaint, she alleges that the incident occurred while she was working at Young Bin Café in Flushing, New York (Docket Item 1 ¶ 8).
. In her opposition, plaintiff vaguely refers to her "exercise of 'first amendment' rights to petition the government for a redress of grievance” (Docket Item 65 at 22-23). To the
. Plaintiff's failure to respond to defendants’ arguments concerning this claim would justify the dismissal of the claim on the ground that it has been abandoned. Roman-Malone v. City of New York, 11 Civ. 8560(PAC),
. With respect to the state-law claims, the defendants rely on New York law and plaintiff, as evidenced by her lack of response to these arguments, does not appear to claim that the law of any other jurisdiction applies; "such 'implied consent ... is sufficient to establish choice of law.’ ” Motorola Credit Corp. v. Uzan,