Sewell v. Molloy University

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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JANICE MINTO,

Plaintiff,

MEMORANDUM & ORDER

-against-

16-CV-276, 16-CV-278,

MOLLOY COLLEGE, et al., 16-CV-279(KAM)(GRB)

Defendants.

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DEBRA BACCHUS,

Plaintiff,

-against-

MOLLOY COLLEGE, et al.,

Defendants.

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DYTRA SEWELL,

Plaintiff,

-against-

MOLLOY COLLEGE, et al.,

Defendants.

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MATSUMOTO, United States District Judge:

Plaintiffs, three African American women formerly

enrolled in defendant Molloy College’s Respiratory Care Program

(“RCP”), each brought separate actions against Molloy College, a

professor, and various administrative employees of defendant

Molloy College. (See ECF No. 1, Compl.1) Each plaintiff

respectively alleged race and gender discrimination under 42

U.S.C. § 2000d, also known as Title VI of the Civil Rights Act

of 1964; 42 U.S.C. § 1981; and New York’s Human Rights Law

(“NYSHRL”), N.Y. Exec. Law § 296. Plaintiffs also alleged

common law breach of contract claims and civil claims under the

Racketeer Influenced and Criminal Organizations (“RICO”) Act, 18

U.S.C. § 1961, et seq. Each plaintiff has withdrawn all claims

against the individual college employees, see Russell v. County

of Nassau, 696 F. Supp. 2d 213, 238 (E.D.N.Y. 2010) (“Title VI

claims cannot be asserted against an individual defendant

because the individual is not the recipient of federal funds.”),

and their claims, if any, brought under 42 U.S.C. § 1986.2 (See

ECF No. 21, Sewell Mem. in Opp. (“Opp.”) 7.) Plaintiffs all

withdrew their RICO claims against Molloy, as well. (ECF No.

28, Stip.)

1 For ease of reference, unless otherwise indicated, record citations are

to Docket No. 16-CV-279, for plaintiff Sewell.

2 Plaintiffs did not bring any numbered causes of action under either 42

U.S.C. §§ 1985 or 1986, though the complaint lists both statutes in its first

paragraph describing the “Nature of the Action.” (Compl. ¶ 1.) Taken

together, the three complaints appear to be form complaints or from other,

unrelated actions and contain inconsistent pronouns and unrelated

allegations. (See, e.g., Compl. ¶ 68 (alleging discrimination on the basis

of religious affiliation).) Though plaintiffs did not apparently withdraw

their claims brought under 42 U.S.C. § 1985, none of their numbered causes of

action indicate they are brought under § 1985. Similarly, the complaints

state they are brought for age discrimination and sexual harassment, but all

of the complaints are completely devoid of facts or allegations related to

either claim.

Before the court are defendant Molloy’s motions to

dismiss each complaint, filed separately in each action. For

the following reasons, defendant’s motions are GRANTED, and

plaintiffs’ respective complaints are dismissed with leave to

replead.

BACKGROUND

I. Factual Allegations

The following facts are taken from plaintiffs’

respective complaints. The complaints are remarkably similar,

and few alleged facts are unique to a particular plaintiff.

Plaintiffs are African American women. (Compl. ¶ 10.)

Each was enrolled in Molloy’s RCP in 2012, (id. ¶ 11), though

Minto was previously enrolled in Molloy’s Nursing Program,

(Minto Compl. ¶ 11). Each plaintiff is also older than a

typical college student: Sewell and Bacchus are in their 50s,

(Compl. ¶ 10), and Minto, is in her 70s, (Minto Compl. ¶ 10).

Plaintiffs were all enrolled in an RCP course taught by Robert

Tralongo, professor and program director for Molloy’s RCP,

during the Fall 2012 term. (Compl. ¶ 21; Bacchus Compl. ¶¶ 14,

18.)

Molloy’s campus is situated in Nassau County on New

York’s Long Island. (Compl. ¶ 5.) In the fall of 2012, Long

Island endured Hurricane Sandy with its attendant and well-known

resulting damage to the region’s infrastructure, and subsequent

disruption to transportation and power systems. (Id. ¶¶ 14,

16.) Molloy issued a notice to its students in the wake of

Hurricane Sandy that “students would be given wide latitude in

demonstrating competence” for that semester’s courses.3 (Id. ¶

16.) Contemporaneously, plaintiff Sewell’s mother died the same

day Hurricane Sandy hit Long Island, (Compl. ¶ 15), plaintiff

Bacchus’s Aunt died at around the same time, (Bacchus Compl. ¶

14), and plaintiff Minto’s mother was or would become seriously

ill during the fall of 2012 and died in February 2013, (Minto

Compl. ¶ 15).

Each plaintiff received a grade of “C” or lower in one

or more RCP courses during the Fall 2012 semester. (Compl. ¶

21.) The complaints allege that Molloy’s course catalog states

that Molloy requires RCP students attain a grade of “C+” or

higher in each RCP course. (Compl. ¶ 22; Minto Compl. ¶ 18.)

Plaintiffs had each previously repeated two RCP courses. (See,

e.g., ECF No. 20-2, McGrath Decl., Ex. 2, Sewell Ac. Tr.) No

plaintiff was informed during the Fall 2012 semester that she

was on academic probation or in danger of being expelled from

RCP for academic deficiencies. (Compl. ¶¶ 19-20.) Plaintiffs’

grades were posted on December 19, 2012, prior to Molloy’s

3 Though all plaintiffs allege that Hurricane Sandy occurred in fall 2012

and was disruptive, a fact the court could take judicial notice of, only

Sewell alleges Molloy offered “wide latitude” to students impacted by the

storm. No plaintiff has alleged how the storm affected her ability to

perform academically.

winter break. (Id. ¶ 23.) Upon receiving their grades,

plaintiffs individually attempted to contact Professor Tralongo

to discuss their respective grades, though he was not available

until the Spring 2013 semester. (Compl. ¶ 25.) While on winter

break, no plaintiff received notification she was being expelled

from RCP. (Id. ¶ 26.)

Plaintiffs attempted to register for classes on

January 17, 2013, the first day classes resumed for the Spring

semester, but first needed approval from former-defendant Donna

Fitzgerald, Chairperson of RCP. (Id. ¶ 27.) Fitzgerald told

plaintiffs, individually, they were expelled from RCP, though

Sewell first paid an outstanding tuition bill of $5,000.

(Compl. ¶27, n.2.) Sewell and Minto then individually met their

advisor, Professor Lasandra Haynes, (id. ¶ 28), and Bacchus

sought to speak with Associate Dean of RCP,4 and former

defendant, Mary Jane Reilly, the same day. (Bacchus Compl. ¶

21-22.) Haynes also suggested Sewell and Minto see Reilly.

(Compl. ¶ 28.) On either January 17 or 18, 2013, each plaintiff

met individually with Reilly, and were told that because they

each had “repeated more than one class,” in accordance with

RCP’s rules, they were “ineligible to continue in the program”

and that their time to appeal their respective grades had

4 Sewell’s and Minto’s complaints both refer to Reilly as an Associate

Dean for “Academic Services and Academic Integrity,” as well. (Compl. ¶ 28.)

expired. (Id. ¶ 29.) Each plaintiff inquired with Reilly of

other degree options at Molloy, but each was informed that she

could not transfer any earned credits from RCP to another

program she was interested in. (Id. ¶ 31.)

All plaintiffs allege certain Caucasian or male

students in RCP were “routinely permitted to repeat courses

beyond the stated limit” in Molloy’s Course Catalog. (Id. ¶

34.) Sewell further alleges she received no latitude in the

wake of Hurricane Sandy from any of her professors, or from

Tralongo, RCP’s Director, though non-African American males did

receive such latitude for difficulties they experienced as a

result of Hurricane Sandy. (Id. ¶ 17-18.)

Plaintiffs also allege that Molloy represented that

each plaintiff “would not be treated in a discriminatory fashion

based upon her race, color, ethnic background or gender” through

its “written college policies, publicized [by] the college

catalog, student conduct manual and other means.” (Id. ¶ 43.)

Similarly, Molloy implemented and publicized “rules and

procedures for maintaining academic standing in the” RCP, upon

which each plaintiff relied. (Id. ¶ 44.) Defendant Molloy,

however, modified these policies to the benefit of certain other

students, allowing them “to retake courses as many times as

necessary in order to pass the course and graduate from” RCP.

(Id. ¶ 45.) Plaintiffs were “denied th[is] opportunity,” by

Tralongo and Molloy. (Id. ¶¶ 45, 54.)

Tralongo carried out this practice, of permitting

“[s]tudents who are not African American or women[,] who did not

pass more than one course” to repeatedly take these and other

courses until they passed and graduated, “with the knowledge,

cooperation, and permission of the other [former] defendants.”

(Id. ¶¶ 54, 61.) Further, all former defendants “knew that

Professor Trolongo (sic) had deliberately absented himself from

access to plaintiff[s]” and other students immediately after

grades posted on December 19, 2012; the former defendants knew

Tralongo did this to prevent plaintiffs from appealing their

grades. (Id. ¶ 62.) Plaintiffs also allege that Molloy and the

former defendants “planned to expel the plaintiff[s] . . . from

the RCP,” and “conspired to withhold” the fact that plaintiffs

would be expelled from the program after the time to appeal had

expired. (Id. ¶¶ 63-64.)

II. Procedural History

It is important to describe the procedural posture of

the three separate cases, and the history of plaintiffs’

representation by counsel, as it bears on some of the court’s

analysis below. Plaintiffs, all represented by the same

attorney, each initiated their respective actions on January 19,

2016, by filing a complaint. (See, e.g., ECF No. 1, Compl.)

Each plaintiff also attached proposed summonses. (ECF No. 1-2.)

These summonses, however, were rejected by the Clerk of Court on

January 20, 2019, and counsel for plaintiffs was “advised to

submit another proposed summons.” (Docket Entry dated Jan. 20,

2016.) Counsel did not file a revised proposed summons in any

of the three cases until May 16, 2016.5 Summons issued as to

each defendant on May 17, 2016, (ECF No. 5), defendants were

served the same day, (ECF No. 10), and defendants appeared on

June 6, 2016, (ECF No. 6).

Defendant Molloy and the former defendants served a

motion to dismiss on plaintiffs on June 7, 2016, (ECF No. 8),

which motion was fully-briefed and filed on September 20, 2016,

(ECF No. 17). The parties then stipulated to the dismissal of

all claims against the individual defendants and of certain

claims against Molloy College. (ECF No. 28.)

Plaintiffs’ counsel was then suspended from practice

for six months, which term commenced on August 4, 2017; the

court administratively closed the matter for nine months and

denied without prejudice remaining defendant Molloy’s motion to

dismiss. (ECF No. 39, Minute Order.) Plaintiffs’ counsel

5 The 2015 Amendments to the Federal Rules of Civil Procedure, effective

December 1, 2015, reduced the time plaintiffs were permitted to serve process

on a defendant from 120 days to 90 days. See Fed. R. Civ. P. 4 advisory

committee’s note to 2015 amendment. Plaintiffs’ complaints, filed January

19, 2016, were due to be served on each defendant by April 18, 2016, one

month before plaintiffs’ counsel obtained summonses for each plaintiff.

informed the court by letter filed April 26, 2018, that,

although his term of suspension had expired, he was the subject

of an additional disciplinary grievance and a client financial

dispute that would not be resolved until later in 2018. (ECF

No. 40, Pls.’ Ltr.) He thus requested the court extend the stay

in the instant cases until August 1, 2018. (Id.) All three

cases were then reassigned to the undersigned on May 1, 2018,

plaintiffs’ counsel’s request was denied, and the cases were

reopened on May 8, 2018. (Docket Order dated May 8, 2018.)

Plaintiffs were permitted leave to retain new counsel by July

31, 2018, or inform the court that they intended to proceed pro

se. (Minute Entry dated June 26, 2018.) On August 2, 2018,

however, defendant informed the court that no new counsel had

contacted its counsel’s office. (ECF No. 47, Def.’s Ltr.) The

parties appeared for a status conference before Magistrate Judge

Brown, during which plaintiffs indicated they continued to look

for counsel. (See Minute Entry dated Oct. 10, 2018.) As the

case was no longer stayed, defendant’s motions to dismiss were

reopened. (Id.) No counsel has appeared for plaintiffs since

the October 10, 2018 status conference, and the court has not

received an update from plaintiffs’ former counsel regarding his

outstanding disciplinary and client disputes.

LEGAL STANDARD

A plaintiff must plead facts that, if accepted as

true, “state a claim to relief that is plausible on its face.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A

complaint 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A

complaint need not contain detailed factual allegations, but

must contain more than mere “labels and conclusions” or a

“formulaic recitation of the elements of a cause of action” or

“naked assertions” devoid of “further factual enhancement.” Id.

For motions under Rule 12(b)(6), the court assumes the truth of

all facts asserted in the operative complaint and draws all

reasonable inferences from those facts in favor of the non-

moving plaintiff. Global Network Commc'ns, Inc. v. City of New

York, 458 F.3d 150, 154 (2d Cir. 2006).

DISCUSSION

I. Timeliness of Service

Defendant first moves to dismiss each of the

complaints on the basis of untimely service of process, pursuant

to Federal Rule of Civil Procedure 4(m). (DM 4.) Plaintiffs

respond that their counsel, and his wife, had become seriously

ill during the service period and could not effect timely

service, thus establishing good cause. (Opp. 3-4.)

Under Rule 4, a plaintiff must serve the summons and

complaint on a defendant within ninety days of filing the

complaint. Fed. R. Civ. P. 4(c)(1). Rule 4(m) provides that

the court, upon a failure to serve a defendant timely, must

either “dismiss the action without prejudice . . . or order that

service be made within a specified time.” Fed. R. Civ. P. 4(m).

If a plaintiff can establish good cause for a failure to serve,

however, “the court must extend the time for service for an

appropriate period.” Id.

The Second Circuit has held that when district courts

consider whether to dismiss a complaint for failure to properly

serve, “pro se plaintiffs should be granted special leniency.”

Thrall v. Cent. N.Y. Reg'l Trans. Auth., 399 F. App’x 663, 666

(2d Cir. 2010) (quoting Lesane v. Hall’s Sec. Analyst, Inc., 239

F.3d 206, 209 (2d Cir. 2001)); see also Jaiyeola v. Carrier

Corp., 73 F. App’x 492, 493–94 (2d Cir. 2003) (reversing a

district court’s decision to dismiss the pro se plaintiff’s

complaint for failure of proper service). Here, however,

plaintiffs were represented by counsel during the relevant

period.

Good cause generally requires “some colorable excuse”

for the failure. Meilleur v. Strong, 682 F.3d 56, 61 (2d Cir.

2012) (quoting Zapata v. City of New York, 502 F.3d 192, 198 (2d

Cir. 2007)). “Good cause is generally found only in exceptional

circumstances where the plaintiff’s failure to serve process in

a timely manner was the result of circumstances beyond [her]

control.” Jordan v. Forfeiture Support Assocs., 928 F. Supp. 2d

588, 597–98 (E.D.N.Y. 2013) (quoting Beauvoir v. U.S. Secret

Serv., 234 F.R.D. 55, 56 (E.D.N.Y. 2006)). It is well-settled

in this Circuit “that an attorney's inadvertence, neglect,

mistake or misplaced reliance does not suffice to establish good

cause for failure to make proper service within 120 days.”

Tevdorachvili v. Chase Manhattan Bank, 103 F. Supp. 2d 632, 639

(E.D.N.Y. 2000); see also McGregor v. United States, 933 F.2d

156, 160 (2d Cir. 1991). Courts frequently hold that delay

caused by the negligence of a party's attorney does not

constitute good cause to excuse the requirement for timely

service. Myers v. Sec'y of the Dept' of the Treasury, 173

F.R.D. 44, 47 (E.D.N.Y. 1997). Courts have also declined to

grant an extension when litigants fail to make even the most

basic efforts to effectuate service on a party during the 90–day

period provided for under Rule 4(m). See Nat'l Union Fire Ins.

Co. v. Sun, No. 93-CV-7170, 1994 WL 463009, at *4 (S.D.N.Y. Aug.

25, 1994).

In the absence of good cause, then, a court is

permitted to grant an extension within its discretion. Fed. R.

Civ. P. 4(m). Though the Rules do not provide criteria for a

discretionary extension, courts have considered the following

four factors: (1) whether any applicable statutes of limitations

would bar the action once refiled; (2) whether the defendant had

actual notice of the claims asserted in the complaint; (3)

whether the defendant attempted to conceal the defect in

service; and (4) whether the defendant would be prejudiced by

extending the plaintiff’s time for service. See Zankel v.

United States, 921 F.2d 432, 437–38 (2d Cir. 1990) (discussing

the discretionary factors in a suit against the United States

government); Jones v. Westchester Cty., 182 F. Supp. 3d 134, 145

(S.D.N.Y. 2016); Fowler v. City of New York, No. 13-CV-2372,

2015 WL 9462097, at *5 (E.D.N.Y. Dec. 23, 2015).

Plaintiffs’ counsel argues in his opposition to the

instant motions that he and his wife contracted pneumonia

sometime in early March 2016, and they required hospitalization.

(Opp. 3-4.) This serious illness left counsel unable to

continue his work for some time and counsel indicates his

recovery was slow. (Id.) As the complaints were all filed on

January 19, 2016, plaintiffs’ time to serve defendants expired

on April 18, 2016. Plaintiffs’ counsel does not indicate that

he did miss, or how or why he missed, the notice that his

proposed summonses were rejected, or what events beyond his

control prevented him from serving defendants from January 19,

2016 until he fell ill in early March. Though the court does

not doubt counsel was seriously ill, he had ample time prior to

becoming ill to procure a proper summons and effect proper

service of the summons and complaint through a process server.

He makes no representation as to his diligent efforts to serve

defendants with process in February 2013. Counsel’s illness is

clearly beyond his control, but his more than five-week delay in

initiating service was not beyond his control. Attorney

negligence does not constitute good cause, and the court must

now consider whether to extend the time for service, nunc pro

tunc, within its discretion, based on the four factors in

Zankel.

First, the fact that a refiled claim would be untimely

weighs against dismissal under Rule 4(m). Hollomon v. City of

New York, No. 04-CV-2964, 2006 WL 2135800, at *4 (E.D.N.Y. July

31, 2006) (“A court should not refuse to extend the time of

service simply so that the defendant can benefit from the time-

bar.”). Plaintiffs have been proceeding pro se since their

counsel’s suspension, and if the action were dismissed, as

discussed below, a re-filed complaint would almost certainly be

untimely. Thus, this factor weighs in favor of granting an

extension.

As to the second and third factors, the court doubts

defendant had actual knowledge of the basis of plaintiffs’

claims, though plaintiffs do allege knowledge of, and

intentional discrimination on the part of defendants. This

factor, then, is a toss-up. In any event, considering the third

factor, there is no evidence defendant attempted to conceal the

defect in service, nor could they as it appears they were

unaware of the lawsuit. This factor, then weighs in favor of

dismissal.

Finally, as to the fourth factor—prejudice to

defendant—there is no per se rule on what constitutes prejudice

within the context of untimely or improper service of process.

See Zapata, 502 F.3d at 198. Here, though, there is no evidence

defendant was or will be prejudiced by the untimely service and

the court finds there is none. This factor weighs in favor of

an extension. In light of plaintiffs’ current status as pro se

litigants, the fact that dismissal would certainly result in

their claims being time-barred, and that the failure of service

clearly appears to be a shortcoming of their former, and now-

suspended, counsel, the court grants an extension of time, nunc

pro tunc, for plaintiffs to serve defendant. Thus, the court

grants an extension to May 17, 2016, the date defendants were

properly served with process. Defendant’s motion to dismiss on

this basis is therefore DENIED.

II. Statute of Limitations

Defendant next moves against the complaint as time-

barred. It argues plaintiffs’ respective claims accrued on or

about December 19, 2012, when they learned of their failing

grade and knew or should have known they would be expelled under

RCP rules. (DM 5-6.) Defendant argues that plaintiffs’

complaints, filed January 17, 2016, are therefore time-barred

under the applicable statutes of limitations.

State statutes of limitations apply to plaintiffs’

discrimination claims and, in New York, each of plaintiffs’

discrimination claims has a three-year statute of limitations.

See Martin v. State Univ. of N.Y., 704 F. Supp. 2d 202, 234

(E.D.N.Y. 2010) (“Although Title VI does not contain an express

statute of limitations, in New York, such claims fall within the

three-year statute of limitations applicable to personal injury

causes of action.” (quoting Al–Haideri v. Trs. of Columbia

Univ., No. 07-CV-106, 2007 WL 2187102, at *2 (S.D.N.Y. July 26,

2007))); Patterson v. County of Oneida, 375 F.3d 206, 225 (2d

Cir. 2004) (“The statute of limitations applicable to claims

brought under § 1981 . . . in New York is three years.”); Paige

v. Police Dep't of Schenectady, 264 F.3d 197, 199 n.2 (2d Cir.

2001) (§ 1985 claims); Edwards v. Jericho Union Free Sch. Dist.,

904 F. Supp. 2d 294, 303 (E.D.N.Y. 2012) (NYSHRL claims).

Though the court applies state statutes of

limitations, federal law governs when a federal claim accrues.

Leonhard v. United States, 633 F.2d 599, 613 (2d Cir. 1980).

Under federal law, the limitations period begins to run “when

the plaintiff knows or has reason to know of the injury that is

the basis of the action.” Nadolecki v. William Floyd Union Free

Sch. Dist., No. 15-CV-2915, 2016 WL 4768823, at *8 (E.D.N.Y.

July 6, 2016) (quoting Eagleston v. Guido, 41 F.3d 865, 871 (2d

Cir. 1994)). Where the alleged injury is discrimination, “the

proper focus is on the time of the discriminatory act.” Chardon

v. Fernandez, 454 U.S. 6, 8 (1981).

Plaintiffs’ complaints were each filed on January 19,

2016, a Tuesday following the Federal holiday, Martin Luther

King, Jr. Day, January 18, 2016. Limitations periods expiring

on January 16, 2016, the preceding Saturday, by operation of the

Federal Rules, would be extended to January 19, 2016. See Fed.

R. Civ. P. 6(a)(1)(C). Thus, plaintiffs’ claims based on acts

occurring January 15, 2013, or earlier are time-barred.

Plaintiffs do not allege any facts, or similarly argue, that the

continuing violation doctrine applies to their case.

Plaintiffs’ claims cannot be said to have accrued when

they received their failing grade. Though they should have

known that failing a third course would violate program

requirements, they allege that so-called “third strikes” had

been overlooked before. Indeed, their allegations that they

each attempted to register for the following semester would

belie the notion that they knew or should have known they were

expelled from RCP upon receiving their respective grades in

December. They do not allege that they received a failing grade

because of their membership in protected categories. They do,

however, each allege that Tralongo was inaccessible to

plaintiffs during their appeals period, but that he was

concurrently accessible for white, male students. Defendant

points out that Tralongo’s selective unavailability would

technically be impossible, that is, that Professor Tralongo

could not both be absent from campus for certain students, and

present for others at the same time. The court agrees with

defendant’s argument in some sense, but notes that the Professor

could very well have ignored plaintiffs’ entreaties while

acknowledging other students’ requests. In any event, this

alleged discriminatory act, would have been complete at the

conclusion of the appeals period, ten days after plaintiffs

received their grades, or approximately December 27, 2012.

(Opp. 5.) Plaintiffs’ claims based on this act, then, would be

time-barred. The same applies to plaintiffs’ claims based on

Tralongo’s alleged discriminatory decision not to afford them

any accommodation for the effects of Hurricane Sandy, assuming

this decision was completed at the moment he submitted

plaintiffs’ final grades.

Based on the foregoing, the court finds that

plaintiffs’ expulsion was not affected until January 17, 2013,

when they were not permitted to repeat the courses in which they

had previously earned a C grade or lower. Plaintiffs allege

that defendant’s refusal to allow them to repeat the courses in

which they earned a grade of C or lower, was discriminatory as

other non-African American or male students were permitted to

repeat the courses. Therefore, plaintiffs’ claims based on at

least this act are not time-barred and may proceed. The court

may nevertheless consider the conduct of Tralongo and the former

defendants to determine if plaintiffs sufficiently plead a claim

for relief, as they may support an inference of discriminatory

intent as discussed below. The court declines, however, to find

that all or part of plaintiffs’ claims are time-barred, as it

ultimately concludes that plaintiffs’ have failed to

sufficiently plead any claim for relief.

III. Plaintiffs’ Discrimination Claims

Plaintiffs bring claims for race discrimination under

42 U.S.C. § 2000d, also known as Title VI, 42 U.S.C. § 1981, and

NYSHRL. Plaintiffs also appear to allege that defendant

discriminated against plaintiffs on the basis of age or

religion, but these appear to be from an earlier draft

complaint, as there is no fact alleging plaintiffs’ respective

religious affiliation, and only a simple statement of each

plaintiff’s age, without factual embellishment as to how their

age serves as a basis for inferring defendant’s age-based

discriminatory intent. (See, e.g., Bacchus Compl. ¶¶ 1, 56.)

Plaintiffs similarly appear to bring claims under 42 U.S.C. §

1985, which prohibits conspiracy to interfere with civil rights,

and list this statute on the face of their complaints. None of

plaintiffs’ numbered causes of action, however, refer to § 1985.

Though plaintiffs’ allegations concerning their now-withdrawn

RICO claims could arguably support a conspiracy claim,

plaintiffs do not argue as much in their opposition to the

instant motion. Indeed, there is not a single mention of

plaintiffs’ causes of action except for the withdrawn claims,

and courts have deemed such claims abandoned when plaintiffs

practically fail to oppose a motion to dismiss. See LoSacco v.

City of Middletown, 71 F.3d 88, 92–93 (2d Cir. 1995). There is

not a single citation to case law or other authority in

plaintiffs’ opposition briefs; only an argument that the claims

are sufficiently alleged, and a request that plaintiffs be

permitted leave to replead. Plaintiffs only appear to oppose

defendant’s motion pertaining to the timeliness of service and

the statute of limitations. Nevertheless, the court analyzes

the sufficiency of plaintiffs’ pleadings

Defendant moves to dismiss each of plaintiffs’ claims

brought under Federal law for failure to allege discriminatory

animus. (DM 9-10.) Defendant argues that plaintiffs’

allegations are insufficient to plausibly infer race-, sex-, or

age-based discriminatory intent, and that plaintiffs failed to

sufficiently allege substantially similar comparators to permit

an inference of discriminatory intent based on disparate

treatment. (Id. at 10.) For these and other reasons, the court

finds the complaints do not state a claim for relief.

Title VI prohibits discrimination based on race,

color, or national origin by entities receiving federal funds.

To establish such a claim, a plaintiff must plead: (1) that the

defendant discriminated against him on the basis of race or

national origin; (2) that the discrimination was intentional;

and (3) that the discrimination was a “substantial” or

“motivating factor” for the defendant's actions. Tolbert v.

Queens Coll., 242 F.3d 58, 69 (2d Cir. 2001).

Section 1981 provides that “[a]ll persons within the

jurisdiction of the United States shall have the same right in

every State and Territory to . . . the full and equal benefit of

all laws and proceedings for the security of persons and

property as is enjoyed by white citizens.” 42 U.S.C. § 1981(a).

This prohibition applies to private as well as state actors,

including independent academic institutions. Tolbert, 242 F.3d

at 69 (citing St. Francis Coll. v. Al–Khazraji, 481 U.S. 604,

609 (1987)). To establish a § 1981 claim, a plaintiff must

show: (1) that she is a member of a racial minority; (2) an

intent to discriminate on the basis of race by the defendant;

and (3) that the discrimination concerned one or more of the

activities enumerated in § 1981. See Mian v. Donaldson, Lufkin

& Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993) (per

curiam). Those activities covered by Section 1981 include

enrollment in a university such as defendant Molloy. See Tripp

v. Long Island Univ., 48 F. Supp. 2d 220, 224 (E.D.N.Y. 1999)

(discussing enumerated activities under § 1981 and finding the

statute provides cause of action against university charged with

discriminatory conduct against student).

Claims under both Title VI and § 1981 are subject to

the burden-shifting framework established in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973). See Littlejohn v. City of

New York, 795 F.3d 297, 312 (2d Cir. 2015) (“[Plaintiff]’s

disparate treatment claim under . . . § 1981 . . . is subject to

the burden-shifting evidentiary framework set forth in McDonnell

Douglas . . . in the initial phase of [this] litigation.”

(citation omitted)); see also Lopez v. Webster Cent. Sch. Dist.,

682 F. Supp. 2d 274, 279 (W.D.N.Y. 2010) (“Courts have applied

the familiar McDonnell Douglas burden-shifting analysis to cases

arising under Title VI.”) (footnote omitted). Courts also

analyze discrimination claims brought under NYSHRL using the

McDonnell Douglas framework. Weinstock v. Columbia Univ., 224

F.3d 33, 42 n.1 (2d Cir. 2000). Thus, the court will apply the

framework to all of plaintiffs’ race-based discrimination claims

under federal and state law, and to plaintiffs’ gender-based

discrimination claims under state law.

The Second Circuit has explained, however, that a

plaintiff is not required to plead a prima facie case under

McDonnell Douglas, at least as the test was originally

formulated, to defeat a motion to dismiss. Vega v. Hempstead

Union Free Sch. Dist., 801 F.3d 72, 84 (2d Cir. 2015) (citing

Littlejohn, 795 F.3d at 306, 311). Rather, a plaintiff “need

only give plausible support to a minimal inference of

discriminatory motivation.” Littlejohn, 795 F.3d at 311; see

also Moore v. City of New York, No. 15-CV-6600, 2017 WL 35450,

at *11 (S.D.N.Y. Jan. 3, 2017), adopted by No. 15-CV-6600, 2017

WL 1064714 (S.D.N.Y. Mar. 20, 2017). Thus, on a motion to

dismiss, the court treats the elements of a prima facie case as

“an outline of what is necessary to render a plaintiff's . . .

discrimination claims for relief plausible.” Sosa v. N.Y.C.

Dep’t of Educ., 368 F. Supp. 3d 489, 495 (E.D.N.Y. 2019)

(quoting Barrett v. Forest Labs., Inc., 39 F. Supp. 3d 407, 429

(S.D.N.Y. 2014)); see also Vega, 801 F.3d at 84 n.7 (“The

elements of a prima facie case may be used as a prism to shed

light upon the plausibility of the claim.”). Plaintiffs must

simply allege facts that allow the court, in substance, to infer

the essential elements of a prima facie case. Id.

“The essential elements of the claim are actions that

were racially motivated and purposefully discriminatory.”

Jenkins v. Arcade Bldg. Maint., 44 F. Supp. 2d 524, 528

(S.D.N.Y. 1999). “Hence, to be cognizable under Title VI,

defendants’ discriminatory intent must ‘actually play a role in’

and have a ‘determinative influence’ on the adverse action.”

J.E. ex rel. Edwards v. Ctr. Moriches Union Free Sch. Dist., 898

F. Supp. 2d 516, 556 (E.D.N.Y. 2012) (quoting Hazen Paper Co. v.

Biggins, 507 U.S. 604, 610 (1993)). “[A]n invidious

discriminatory purpose may often be inferred from the totality

of the relevant facts . . . .” Washington v. Davis, 426 U.S.

229, 242 (1976). But, “fact-specific allegations of a causal

link between the defendant’s actions and the plaintiff's race

are required.” Jenkins, 44 F. Supp. 2d at 528.

An inference of discriminatory intent can be drawn

from “remarks that could be viewed as reflecting discriminatory

animus[,]” or through facts establishing that students outside

of plaintiff's protected class “were given preferential

treatment[.]” Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007)

(discussing lack of inference of discriminatory animus in

dismissing Title VII sex discrimination claim). Courts should

take an expansive approach to identifying evidence of

discriminatory intent, as “plaintiffs in discrimination suits

often must rely on the cumulative weight of circumstantial

evidence,” and a defendant “is unlikely to leave a ‘smoking

gun.’” Wong v. Yoo, 649 F. Supp. 2d 34, 69 (E.D.N.Y. 2009)

(quoting Norton v. Sam's Club, 145 F.3d 114, 119 (2d Cir.

1998)).

Plaintiffs appear to allege they were treated more

harshly than those students not in their protected class.

Although evidence of disparate treatment may suffice to support

an inference of discrimination, “[a] plaintiff relying on

disparate treatment evidence ‘must show she was similarly

situated in all material respects to the individuals with whom

she seeks to compare herself.’” Mandell v. County of Suffolk,

316 F.3d 368, 379 (2d Cir. 2003) (quoting Graham v. Long Island

R.R., 230 F.3d 34, 39 (2d Cir. 2000)). “[T]he standard for

comparing conduct requires a reasonably close resemblance of the

facts and circumstances of plaintiff’s and comparator’s cases,

rather than a showing that both cases are identical.” Graham,

230 F.3d at 40. Though “[i]ssues regarding appropriate

comparators are often addressed in the context of a summary

judgment motion following discovery,” courts have granted

motions to dismiss where the complaint failed to proffer

sufficient facts regarding comparators to support the contention

the comparators were similarly situated to the plaintiffs. De

La Pena v. Metro. Life Ins. Co., 953 F. Supp. 2d 393, 414

(E.D.N.Y. 2013), aff'd, 552 F. App’x 98 (2d Cir. 2014).

Finally, as Molloy College itself is a defendant,

where a plaintiff’s claims do not involve an official policy,

“‘a damages remedy will not lie . . . unless an official who at

a minimum has authority to address the alleged discrimination

and to institute corrective measures on the [defendant’s] behalf

has actual knowledge of discrimination in the [defendant’s]

programs and fails adequately to respond.’” Mathis v. Dominican

Coll., No. 15-CV-7641, 2016 WL 5257198, at *3 (S.D.N.Y. Sept.

22, 2016) (quoting Gebser v. Lago Vista Indep. Sch. Dist., 524

U.S. 274, 290 (1998)).

Given these requirements, conclusory statements of the

elements of a discrimination claim or formulaic allegations that

a plaintiff was treated differently or discriminated against by

defendants due to his race are insufficient to raise a plausible

claim for relief under Title VI. See Kajoshaj v. N.Y.C. Dep’t

of Educ., 543 F. App’x 11, 14 (2d Cir. 2013) (collecting cases).

“A complaint consisting of nothing more than naked assertions,

and setting forth no facts upon which a court could find a

violation of the Civil Rights Act, fails to state a claim under

Rule 12(b)(6).” Id. (citing Martin v. N.Y. State Dep't of

Mental Hygiene, 588 F.2d 371, 372 (2d Cir. 1978)). “Without

factual amplification, the generic allegation of disparate

treatment related to an unspecified class of Caucasian persons

is simply not sufficient to ‘nudge her claims across the line

from conceivable to plausible,’ and thus is insufficient to

support her racial discrimination claim.” Henry v. N.Y.C.

Health & Hosp. Corp., 18 F. Supp. 3d 396, 408 (S.D.N.Y. 2014)

(alteration omitted) (citation omitted).

As an initial matter, though plaintiffs’ complaints

each refer to gender discrimination under both Title VI and

§ 1981, neither statute provides a remedy for such

discrimination. Anderson v. Conboy, 156 F.3d 167, 170 (2d Cir.

1998) (“It is . . . settled that Section 1981 does not prohibit

discrimination on the basis of gender or religion.” (citing

Runyon v. McCrary, 427 U.S. 160, 170–71 (1976))); Bailey v. N.Y.

Law Sch., No. 16-CV-4283, 2017 WL 6611582, at *14 (S.D.N.Y. Dec.

27, 2017) (“[G]ender is not a protected class under Title VI.”).

Plaintiffs allege they are African-American women.

Thus, the court will treat this first element as established.

Left for the court to determine under the McDonnel Douglas

pleading framework is whether the well-pleaded allegations are

sufficient to raise an inference of discriminatory intent based

on plaintiffs’ race. The court finds they do not.6

Plaintiffs’ claims of racial discrimination and a

racially hostile environment stem from disparate treatment they

allegedly received at the hands of defendant and its employees

in denying them accommodations in the wake of Hurricane Sandy,

and in enforcing Molloy’s policy of expelling students from RCP

6 Plaintiffs’ Title VI claims would alternatively fall for failure to

allege in any respect that defendant Molloy College receives federal funds.

who fail more than two courses.7 Though the court has already

determined that only claims based on plaintiffs’ January 17,

2013 expulsion are timely, even the untimely alleged acts by

Tralongo of absenting himself from campus or failing to give

accommodations, as alleged, cannot support an inference of

discriminatory intent required by McDonnell-Douglas.

Plaintiffs’ allegations are entirely conclusory as to each of

their theories of discrimination.

Each of plaintiff’s complaints fails to allege

sufficient facts to state a discriminatory disparate treatment

claim. “Without factual amplification, the generic allegation

of disparate treatment related to an unspecified class of

Caucasian persons is simply not sufficient to ‘nudge her claims

across the line from conceivable to plausible.’” Henry, 18 F.

Supp. 3d at 408 (quoting Twombly, 550 U.S. at 570); see also

Bhanusali v. Orange Reg'l Med. Ctr., No. 10-CV-6694, 2013 WL

4828657, at *5 (S.D.N.Y. Aug. 12, 2013) (dismissing disparate

treatment claim on the ground that “Plaintiffs' general

allegations that misconduct by ‘younger and/or white physicians'

7 Only Sewell alleged former defendant Tralongo made unspecified

disparaging remarks, but plaintiffs do not otherwise allege or argue in

opposing defendant’s motion that their discrimination claims arise from a

racially hostile educational environment. But, even if they did, Sewell’s

allegations that Tralongo made disparaging remarks falls far short of

pleading severe, pervasive, and objectively offensive harassment, and that

defendant Molloy “had actual knowledge of the harassment” and was

subsequently deliberately indifferent. T.C. v. Valley Cent. Sch. Dist., 777

F. Supp. 2d 577, 595 (S.D.N.Y. 2011).

went without peer review or discipline . . . [we]re wholly

conclusory, d[id] not specify the individuals involved or the

nature of their alleged misconduct, and [we]re thus insufficient

to render plausible the inference of discriminatory intent”);

Sosa v. N.Y.C. Dep’t of Educ., 368 F. Supp. 3d 489, 499

(E.D.N.Y. 2019).

The Second Circuit has affirmed dismissals where, as

here, the complaint only “allege[d] facts consistent with a

discrimination claim,” i.e. that members outside the plaintiff’s

protected group were treated differently, because the complaint

“stop[ped] short of the line between possibility and

plausibility of entitlement to relief.” Sanders v. Grenadier

Realty, Inc., 367 F. App’x 173, 175 (2d Cir. 2010) (quotation

marks in second quotation omitted) (quoting Ashcroft, 556 U.S.

at 678); see also Kajoshaj v. City of New York, No. 11-CV-4780,

2013 WL 249408, at *2 (E.D.N.Y. Jan. 23, 2013) (dismissing

complaint that alleged “[u]pon information and belief, non-

Muslim students from families of non-Albanian origin” that

received test scores and grades similar to the plaintiff

advanced in grades though plaintiff was required to repeat),

aff’d sub nom. Kajoshaj v. N.Y.C. Dep’t of Educ., 543 F. App’x

11 (2d Cir. 2013). “[W]ithout specific factual allegations

concerning these allegedly similarly situated individuals,

[plaintiffs’] bare conclusion cannot survive a motion to

dismiss.” Kajoshaj, 2013 WL 249408, at *2 (citing D.F. ex rel.

Finkle v. Bd. of Educ. of Syosset Cent. Sch. Dist., 386 F. Supp.

2d 119, 128 (E.D.N.Y. 2005)).

Given the case law in this Circuit, plaintiffs’ spare

allegation that “[c]ertain Caucasian or male students in the RCP

[we]re routinely permitted to repeat courses” is insufficient

either to establish disparate treatment or to infer

discriminatory intent.8 Plaintiffs fall well short of pleading

these unidentified comparators are “similarly situated ‘in all

material respects.’” Broich v. Inc. Vill. of Southampton, 462

F. App’x 39, 42 (2d Cir. 2012) (quoting Mandell, 316 F.3d at

370). “The naked allegation that [defendant] ‘selectively

enforced the College rules . . . against plaintiffs . . .

because they are black . . .’ is too conclusory to survive a

8 The court is aware of several cases in this Circuit in which a

complaint alleging discrimination survived a motion to dismiss despite

similarly spare allegations. See, e.g., Phillip v. Univ. of Rochester, 316

F.3d 291 (2d Cir. 2003); Peterson v. Long Island R. Co., No. 10-CV-480, 2010

WL 2671717, at *4 (E.D.N.Y. June 30, 2010). These cases are distinguishable

from the instant case for two reasons. First, the respective complaints

alleged specific conduct directed at the plaintiffs (e.g., racial comments

made by defendant and being singled out by campus security among a group

including non-minorities). More importantly, however, both cases appear to

use the outdated “notice” pleading standard. Peterson, 2010 WL 2671717, at

*4 (“The allegations . . . sufficiently provide defendant with notice of

[plaintiff]’s claim that he was punished more severely than white coworkers

in like circumstances.”); Phillip, 316 F.3d at 298-99 (“[T]hese allegations

‘gave respondent fair notice of what petitioner’s claims are and the grounds

upon which they rest.’”(quoting Swierkiewicz v. Sorema, 534 U.S. 506, 514

(2002))). After Twombly and Iqbal, plaintiffs are held to the “plausibility”

standard and, in discrimination cases, must plead circumstances supporting an

inference of discriminatory intent in order to survive a motion to dismiss.

See E.E.O.C. v. Port Auth. of N.Y. & N.J., 768 F.3d 247, 254 (2d Cir. 2014)

(“Since Twombly and Iqbal, Swierkiewicz’s continued vitality has been an open

question in this Circuit.”).

motion to dismiss.” Albert v. Carovano, 851 F.2d 561, 572 (2d

Cir. 1988) (citing Martin, 588 F.2d at 372).

Although “allegations of discriminatory comments

directed at the plaintiff's racial group are a recognized method

of establishing discriminatory intent”, only Sewell made such an

allegation but did so without any factual development. Henry,

18 F. Supp. 3d at 408 (citing Chertkova v. Conn. Gen. Life Ins.

Co., 92 F.3d 81, 91 (2d Cir. 1996)). Moreover, although a

discriminatory purpose may be inferred from the totality of

relevant facts, the conclusory allegations here cannot establish

the required “causal link between the defendant’s actions and

the plaintiff’s race.” Williams v. City Univ. of N.Y., No. 13-

CV-1055, 2014 WL 4207112, at *8 (E.D.N.Y. Feb. 7, 2014) (citing

Jenkins, 44 F. Supp. 2d at 528), adopted by No. 13-CV-1055, 2014

WL 4207115 (E.D.N.Y. Aug. 25, 2014), aff’d, 633 F. App’x 541 (2d

Cir. 2015); see also De La Pena v. Metro. Life Ins. Co., 953 F.

Supp. 2d 393, 413 (E.D.N.Y. 2013) (“Without any further facts,

defendant’s statements, while politically incorrect, do not

raise a plausible inference that his actions towards the

[plaintiffs] were a result of [their] membership in a protected

class.”).

As to plaintiffs’ remaining allegation that they were

denied accommodations from Tralongo on the basis of race or

gender, even if these claims were not time-barred, the

allegations are similarly conclusory and factually insufficient.

All plaintiffs note the general effect of Hurricane Sandy on

life on Long Island, New York in late 2012. Only Sewell alleges

Molloy indicated it would accommodate students impacted by the

storm’s disruptions, but without further amplification.9 No

plaintiff, however, indicates how Hurricane Sandy affected them

personally. No plaintiff identifies accommodations they sought

or which would have positively impacted their course

performance. Although each plaintiff alleges the loss of a

close family member, none alleges the impact that the death of a

family member had on their personal lives or ability to perform

in their RCP courses. These allegations of disparate treatment

are thus speculative. Nowhere in the complaints do plaintiffs

specify what accommodation they were denied but which was

extended to similarly situated, non-African American or male

students.

These and the rest of the allegations in the

complaints are conclusory and devoid of factual content that

permits a plausible inference of any discriminatory conduct.

Plaintiffs’ “bald assertions of discrimination and retaliation,

9 While no plaintiff alleges they received a failing grade because of

their race or gender, they each allege that they would have “met the

requirement for a C+ grade” if given the “special accommodations the college

required to be provided to all students as a result of” Hurricane Sandy, and

that Tralongo withheld these accommodations for improper reasons. (Compl. ¶

67.)

unsupported by any comments, actions, or examples of similarly-

situated individuals outside of [their] protected class being

treated differently” do not permit the court to infer that

defendant Molloy possessed a discriminatory motive. Jackson v.

County of Rockland, 450 F. App’x 15, 19 (2d Cir. 2011). The

allegations in each complaint “are implausible and insufficient

to survive a motion to dismiss.” Id. Thus, plaintiffs fail to

state claim to relief for race-based discrimination under both

federal and state law, and for gender-based discrimination under

state law. Defendant’s motion to dismiss plaintiffs’ race and

gender discrimination claims is GRANTED.

IV. Plaintiffs’ Breach of Contract Claims

Defendant next moves to dismiss plaintiffs’ breach of

contract claims under New York State law. Defendant argues that

plaintiffs have not pleaded the existence of a contract, their

own performance, or specific provisions of the contract

allegedly breached by defendant. (DM 13.) Each plaintiff has

not substantially responded to defendant’s motion to dismiss her

breach of contract claim.

“The elements of a breach of contract claim in New

York are: (1) the existence of a contract, (2) performance by

the party seeking recovery, (3) non-performance by the other

party, and (4) damages attributable to the breach.” Kramer v.

N.Y.C. Bd. of Educ., 715 F. Supp. 2d 335, 356 (E.D.N.Y. 2010)

(quoting RCN Telecom Servs., Inc. v. 202 Centre St. Realty LLC,

156 F. App’x 349, 350–51 (2d Cir. 2005)). Additionally, to

withstand a motion to dismiss, a breach of contract claim must

allege the essential terms of the parties’ purported contract in

nonconclusory language, including the specific provisions of the

contract upon which liability is predicated. Anderson v.

Greene, 774 F. App’x 694, 697 (2d Cir. 2019) (citing Sud v. Sud,

621 N.Y.S.2d 37, 38 (N.Y. App. Div. 1995)); see also Kapsis v.

Am. Home Mortg. Servicing Inc., 923 F. Supp. 2d 430, 450

(E.D.N.Y. 2013).

As with plaintiffs’ discrimination claims, plaintiffs

do not argue in opposition to defendant’s motion to dismiss.

Without deeming these claims abandoned, the court finds

plaintiffs’ complaints do not sufficiently plead the performance

element of a breach of contract claim. Plaintiffs do not allege

or argue the existence of a contract; only that Molloy

promulgates certain policies and procedures. Although

plaintiffs make no argument that the court should infer that a

contract existed on the basis of these policies, New York courts

have found an implied contract arises when a student enrolls at

a university. Tripp, 48 F. Supp. at 224 (citing Carr v. St.

John's Univ., 231 N.Y.S.2d 410, 413 (N.Y. App. Div. 1962)). The

contract’s implicit terms require the university to act in good

faith and the student to satisfy her academic requirements and

comply with the university’s procedures. Gally v. Columbia

Univ., 22 F. Supp. 2d 199, 206 (S.D.N.Y. 1998).

Even if the court found plaintiffs sufficiently

pleaded the existence of an implied contract, their claims for

breach of contract fail because they make no allegations as to

their own performance of the contract. Indeed, the complaints

allege plaintiffs’ own breach by failing to comply with RCP’s

grade requirements. Moreover, and as discussed above,

plaintiffs fail to plead a discriminatory motivation by

defendant; thus, they fail to plead defendant breached the

implied contract. For these reasons, plaintiffs have not

sufficiently pleaded a claim for relief for breach of contract.

Defendant’s motion as to this cause of action is therefore

GRANTED.

V. Plaintiffs’ Remaining Causes of Action

To the extent plaintiffs bring claims under 42 U.S.C.

§ 1985, for an alleged conspiracy to interfere with civil rights

by Molloy and the former-defendants, those claims are similarly

dismissed. The four elements of a § 1985(3) claim are: (1) a

conspiracy; (2) for the purpose of depriving, either directly or

indirectly, any person or class of persons of equal protection

of the laws, or of equal privileges and immunities under the

laws; (3) an act in furtherance of the conspiracy; (4) whereby a

person is either injured in his person or property or deprived

of any right of a citizen of the United States. Mian, 7 F.3d at

1087–88 (citing United Bhd. of Carpenters, Local 610 v. Scott,

463 U.S. 825, 828–29 (1983)). The conspiracy must also be

motivated by “some racial or perhaps otherwise class-based,

invidious discriminatory animus behind the conspirators'

action.” Id.

For the reasons plaintiffs’ substantive discrimination

claims fail, so to do their claims, if any, for a conspiracy to

discriminate. The court finds plaintiffs have not sufficiently

pleaded a substantive claim under Title VI or § 1981; plaintiffs

also have not pleaded sufficient facts to sustain a conspiracy

claim based on any unlawful agreement between the former-

defendants and Molloy. See Streck v. Bd. of Educ. of E.

Greenbush Sch. Dist., 280 F. App’x 66, 67-68 (2d Cir. 2008); see

also Brown v. City of Oneonta, 221 F.3d 329, 341 (2d Cir. 2000)

(affirming district court’s dismissal of § 1985 claim when it

dismissed underlying § 1981 claim for failure to plead

discriminatory animus). Furthermore, the complaints include

entirely conclusory and formulaic allegations concerning the

agreements between and knowledge of the now-dismissed

defendants. Thus, plaintiffs have failed to adequately plead a

claim for relief under 42 U.S.C. § 1985. Defendant’s motion to

dismiss plaintiffs’ § 1985 claims is GRANTED.

Finally, to the extent plaintiffs bring a claim for

sexual harassment or age discrimination under any of the

statutes they invoke, the complaints include not a single

allegation that could support such a claim. Plaintiffs’

opposition to the instant motions is similarly silent. For this

reason, defendant’s motion to dismiss plaintiffs’ claims for

sexual harassment and age discrimination, if any, is GRANTED.

CONCLUSION

For the foregoing reasons, defendant’s motions to

dismiss the complaints in Docket Nos. 16-CV-276, 16-CV-278, and

16-CV-279 are GRANTED. Defendant is directed to serve a copy of

this Order on plaintiffs at their respective addresses of record

and note service on the docket.10

Given plaintiffs’ pro se status, however, the court

will permit them leave to replead, as it does not find that

amendment would be futile. If plaintiffs elect to file an

amended complaint, they each must provide facts pertinent to

their respective claims and cannot rely on generalized

allegations of discrimination. Should plaintiffs file an

amended complaint, it must be filed within 30 days from the date

10 Given that plaintiffs were each represented at the beginning of this

action and are now pro se, their respective addresses may not be in the

court’s record. Defendant shall serve plaintiffs at their last known

addresses, ascertained either from its own records or from an unredacted

version of the complaint filed in the respective actions which appear to

contain the plaintiff’s respective addresses. Defendant’s affirmation of

service shall note where service was made.

of this order, must be captioned “AMENDED COMPLAINT,” and bear

plaintiffs’ respective docket number.

Plaintiffs are advised that an amended complaint does

not simply add to the first complaint and, if filed, will

completely replace their respective original complaints.

Therefore, plaintiffs must include in the amended complaint all

the necessary and relevant information that was contained in the

original complaint. If plaintiffs fail to file an amended

complaint within the time allowed, judgment dismissing this

action shall enter for the reasons set forth herein.

SO ORDERED.

Dated: September 26, 2019

Brooklyn, New York

/s/

Kiyo A. Matsumoto

United States District Judge