Khan v. Brennan

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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JAVED F. KHAN,

Plaintiff, MEMORANDUM & ORDER

20-CV-01446(EK)(SIL)

-against-

LOUIS DEJOY, as Postmaster General

for the United States Postal Service,

Defendant.

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ERIC KOMITEE, United States District Judge:

Before the Court is Magistrate Judge Locke’s report

and recommendation (“R&R”) recommending that I grant in part and

deny in part Defendant Louis DeJoy’s motion to dismiss pro se

Plaintiff Javed Khan’s civil rights complaint and grant Khan

leave to file a third amended complaint. Khan’s complaint

asserts six claims under Title VII of the Civil Rights Act of

1964 and the Rehabilitation Act of 1973.1 DeJoy’s motion argues

principally that the operative complaint has not been timely

served and that it fails to state a civil rights claim. DeJoy

timely objected in part to the R&R, and Khan responded to

1 The six claims are “Count I: Religious Discrimination in Violation of

Title VII”; “Count II: Disparate Treatment in Violation of Title VII”; “Count

III: Disability Discrimination in Violation of Section 501 of the

Rehabilitation Act”; “Count IV: Retaliation in Violation of Title VII and

Sections 501 and 504 of the Rehabilitation Act”; “Count V: Hostile Work

Environment in Violation of Title VII”; and “Count VI: Racial and National

Origin Discrimination in Violation of Title VII.”

DeJoy’s objections. For the reasons set forth below, the R&R is

adopted in part and modified in part.

I. Legal Standard

A district court “may accept, reject, or modify, in

whole or in part, the findings or recommendations made by the

magistrate judge.” 28 U.S.C. § 636(b)(1)(C). Those portions of

the R&R that are unobjected-to are reviewed for clear error.

DiPilato v. 7-Eleven, Inc., 662 F. Supp. 2d 333, 339 (S.D.N.Y.

2009). The district court reviews de novo those portions of an

R&R to which a party has specifically objected. Id.; Fed. R.

Civ. P. 72(b)(3); see also Kruger v. Virgin Atl. Airways, Ltd.,

976 F. Supp. 2d 290, 296 (E.D.N.Y. 2013) (“A proper objection is

one that identifies the specific portions of the R&R that the

objector asserts are erroneous and provides a basis for this

assertion.”), aff’d, 578 F. App’x 51 (2d Cir. 2014).2

“[O]bjections [that] are nonspecific or “merely perfunctory

responses . . . argued in an attempt to engage the district

court in a rehashing of the same arguments set forth in the

original petition,” Miller v. Brightstar Asia, Ltd., 43 F.4th

112, 120 (2d Cir. 2022), “will not suffice to invoke de novo

review of the magistrate’s recommendations.” McDonaugh v.

Astrue, 672 F. Supp. 2d 542, 547 (S.D.N.Y. 2009).

2 Unless otherwise noted, when quoting judicial decisions this order

accepts all alterations and omits all citations, footnotes, and internal

quotation marks.

II. Discussion

A. Motion to Dismiss for Deficient Service

The first leg of DeJoy’s motion seeks dismissal of

Khan’s Second Amended Complaint (“SAC”), which I granted Khan

leave to file, based on a series of purported procedural defects

with the SAC’s predecessors — the original Complaint and the

First Amended Complaint (“FAC”). Specifically, DeJoy asserts

that Khan: (1) missed the deadline to request an extension of

time to serve the original Complaint; (2) improperly received

extensions of time to serve the original Complaint; and (3)

eventually served not the original Complaint but an

unauthorized, untimely, FAC that did not relate back to the

original Complaint under Rule 15.3

The R&R reasons that I have discretion to cure these

purported defects by granting Khan a retroactive extension to

serve his original Complaint. Where a complaint has been filed

within the statute of limitations period, “the limitations

period is tolled” until the deadline for post-filing service,

Hurd v. New York City Health & Hosp. Corp., No. 07–CV–3073, 2008

WL 2127659, at *3 (S.D.N.Y. May 20, 2008) (citing Frasca v.

United States, 921 F.2d 450, 451, 453 (2d Cir. 1990)) — and

3 Though DeJoy initially styled these as vitiating subject-matter

jurisdiction, “the manner and timing of serving process are generally

nonjurisdictional matters of ‘procedure’ controlled by the Federal Rules.”

Henderson v. United States, 517 U.S. 654, 656 (1996).

retroactive extensions of that deadline extend the tolling.

See, e.g., Techtronic Cordless GP v. Maersk A/S, No. 22–CV–9513,

2023 WL 2186412, at *3 (S.D.N.Y. Feb. 23, 2023). The R&R

proposes a retroactive extension until August 13, 2020.

DeJoy objects that a retroactive extension to serve

the original Complaint would be improper. Def.’s Obj. R&R

(“Obj.”) 10. Moreover, it would be ineffectual, as it would not

solve the problem of Khan’s having served the FAC, not the

original Complaint. Id. at 11. Additionally, the FAC would not

relate back to the original Complaint, rendering any tolling of

the limitations period irrelevant. Id. at 13–14. Finally, an

extension until August 13, 2020, would be too short, as the FAC

was first served, improperly, on August 18, 2020, and only

properly served on November 21, 2020. Id. at 11.

These objections are academic: Judge Locke has already

entered orders extending Khan’s time to serve his original

Complaint until August 31, 2020, and then again until December

31, 2020. Orders dated June 29, 2020, and Nov. 11, 2020. Under

those orders, if Khan had served his original Complaint on

November 21, 2020, it would have been timely, and any (Rule 15-

compliant) amendments that relate back to that pleading would

have been timely as well.

However, DeJoy further objects that Judge Locke should

never have extended Khan’s service deadline because Khan

requested an extension too late.4 Obj. 5–6. And (though DeJoy

does not say as much) DeJoy’s objections to my granting Khan a

retroactive service extension challenge the propriety of Judge

Locke’s having previously done so in this case. Id. at 10.

District courts must “extend the time for service for

an appropriate period” if a plaintiff “shows good cause” for not

effecting timely service. Fed. R. Civ. P. 4(m). Additionally,

district courts have discretion to grant such extensions “even

in the absence of good cause.” Zapata v. City of New York, 502

F.3d 192, 196 (2d Cir. 2007). Where, as here, a limitations

period would lapse without the extension, extensions are

permissible “so long as there are sufficient indications on the

record that the district court weighed the impact that a

dismissal or extension would have on the parties.” Id. at 197.

Moreover, when a magistrate judge has entered a nondispositive

order granting such an extension, the district court may set it

aside only if it was “clearly erroneous” or “contrary to law.”

Fed. R. Civ. P. 72(a); see Regan v. Daimler Chrysler Corp., No.

07-CV-1112, 2008 WL 2795470, at *1 (E.D.N.Y. July 18, 2008).

Under this deferential standard of review, district courts may

uphold such orders even if the magistrate judge “failed to

4 To the extent DeJoy needs an extension of time to be able to object to

Judge Locke’s extension orders, that extension is granted. See Fed. R. Civ.

P. 72(a) (calling for objections to a magistrate judge’s extension of time

within fourteen days of a party’s being served with a copy).

consider the prejudice Defendants would suffer,” so long as the

district court independently concludes that any prejudice was

not undue. Cf. Doe v. Columbia Univ. in City of N.Y., 165

F.R.D. 394 (S.D.N.Y. 1996) (upholding magistrate judge’s grant

of leave to amend in such circumstances).

Judge Locke entered the extension orders at issue

without memoranda or other discussion. The record therefore

reflects neither whether Judge Locke found Khan showed “good

cause” for his delay in service, nor whether Judge Locke weighed

the relative prejudice to the parties in accordance with Zapata.

Nevertheless, Judge Locke’s extension orders were neither

clearly erroneous nor contrary to law because these extensions

did not cause DeJoy undue prejudice. DeJoy concedes that he was

not entitled to notice of Khan’s suit until June 16, 2020,

ninety days after Khan initiated this action. Obj. 5. DeJoy

also concedes that he received notice of the suit no later than

August 18, 2020, when he received the FAC instead of the

original Complaint. Any prejudice to DeJoy from being served

the FAC instead of the underlying complaint would have been

miniscule — “there is no reason to apply a statute of

limitations when . . . the [defendant] has had notice from the

beginning that [the plaintiff] was trying to enforce a claim

against it because of [particular] events.” Tiller v. Atl.

Coast Line R. Co., 323 U.S. 574, 581 (1945). Thus, the sole

question is whether DeJoy was unduly prejudiced by a sixty-

three-day delay in notice. He was not. See Hubert v. State of

Connecticut Dep’t of Correction, No. 14-CV-00476, 2016 WL

706166, at *5 (D. Conn. Feb. 22, 2016) (granting discretionary

extension where “if Defendants suffered any prejudice from the

fifty-nine day [service] delay, it [was] slight.”); cf. Carl v.

City of Yonkers, No. 04–CV–7031, 2008 WL 5272722, at *6

(S.D.N.Y. Dec. 18, 2008) (declining to grant discretionary

extension of service on defendants given “no indication in the

record that they had notice of” the action until nearly three

years after suit was filed), aff’d, 348 F. App’x 599 (2d Cir.

2009). DeJoy’s objections to Judge Locke’s extension requests

are overruled.

However, Judge Locke’s extensions of Khan’s service

deadline for the original Complaint do not resolve all of

DeJoy’s objections to his service because Khan served only the

FAC within the extended time limits and has yet to serve the

original Complaint. Notwithstanding that the original Complaint

is a nullity — and that DeJoy admittedly has a copy, see Obj. 14

(characterizing that pleading) — DeJoy stands on his right to

service.

That argument might carry the day, if not for my

discretion to grant Khan another retroactive extension on

serving the original Complaint. That extension would toll the

limitations period and permit Khan to serve an amended pleading

“as a matter of course.” Fed. R. Civ. P. 15(a)(1); see Zapata,

502 F.3d at 196. And I would be well within my discretion to do

so, as DeJoy has suffered no prejudice from Khan’s not serving

the original Complaint between Khan’s previous December 2020

deadline and today — all parties understood that Khan wished to

proceed on amended pleadings, which he served.

That said, federal courts are loath to subject parties

to “the empty formality of pursuing the right procedural device

only to reestablish precisely the same basic problem.” Hickman

v. Taylor, 329 U.S. 495, 505 (1947); cf. United States v. Arthur

Young & Co., 677 F.2d 211, 218 (2d Cir. 1982), aff’d in part,

rev’d in part on other grounds, 465 U.S. 805 (1984) (refusing to

“den[y] enforcement of [IRS] summons” on grounds that would

allow “the IRS [to] simply issue a new summons” and reestablish

the same merits issue). Instead, DeJoy’s objection based on

timeliness of service of the original Complaint is simply

overruled; Khan need not actually serve that pleading.

That leaves DeJoy’s objection that neither the FAC nor

SAC relates back to the original Complaint, so that even if the

original Complaint could be timely, the FAC and SAC could not.

That objection is also meritless. When an amended complaint

does not allege a new cause of action, but merely “make[s]

defective allegations more definite and precise,” the court

“liberally grants relation back under Rule 15(c).” Glint

Factors v. Schnapp, 126 F.2d 207, 209 (2d Cir. 1942). This

“permissive standard” is “consistent with [the Second Circuit’s]

strong preference for resolving disputes on the merits.”

Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 797

F.3d 160, 190 (2d Cir. 2015).

An amended complaint will relate back to a complaint

that included the essential elements of the claim but was

insufficiently pled. For example, in Nielsen v. Flower

Hospital, 639 F. Supp. 738, 743 (S.D.N.Y. 1986), the court

allowed relation back to a complaint that pled only the claim

(Title VII) and the general grounds for dispute (refusal to

hire). Nielsen distinguished Baldwin County Welcome Center v.

Brown, 466 U.S. 147, 149–50 n.3 (1984), which denied relation

back to a “bare [Equal Employment Opportunity Commission] right-

to-sue letter,” Nielsen, 639 F. Supp. at 742, and on which DeJoy

relies. Obj. 16 & n.10. While the Nielsen original complaint

could “legitimately be attacked under Rule 12(b)(6),” that

pleading — unlike the Baldwin right-to-sue letter — “gave [the]

defendant actual notice that a Title VII claim was being brought

against it.” Id. at 742–43.

Here, the original Complaint contained sufficient

factual matter to give DeJoy notice that a suit had been filed,

that he was the named defendant, that it was a Title VII claim,

and that the termination of Khan’s employment gave rise to the

claim. For relation back, Rule 15 requires no more.

The objections based on deficient service are

overruled.

B. Motion to Dismiss for Failure to State a Claim.

In addition to his procedural challenges discussed

above, DeJoy moved under Rule 12(b)(6) to dismiss the SAC in its

entirety, with prejudice, for failure to state a claim.

The R&R recommends denying the Rule 12(b)(6) branch of

DeJoy’s motion except as to Count VI, alleging racial and

national origin discrimination in violation of Title VII, which

the R&R recommends be dismissed without prejudice and with leave

to amend. DeJoy has objected to the recommended denial of his

motion with respect to Counts I through V. DeJoy Obj. 17.

Dejoy also objects to the recommendation that Count VI be

dismissed without prejudice and with leave to amend. Id. In

the alternative, DeJoy has “request[ed] that the Court adopt the

conclusions in the R&R that Defendant sufficiently established

legitimate, non-discriminatory reasons for [certain] actions,”

convert his motion into one for summary judgment, and grant such

motion. Id. 17–18.

For the following reasons, DeJoy’s objections are all

overruled, and his request that his motion be converted into one

for summary judgment is denied.

1. Counts I Through V State a Claim

DeJoy makes only a perfunctory challenge to the

pleading of Counts I through V, choosing instead to skip ahead

to disputed issues of fact that, as discussed below, are not

cognizable on a motion to dismiss. See generally Obj. 17–22

(relying on material from outside the pleadings). As to the

sufficiency of these claims’ allegations, DeJoy writes only:

Defendant objects to the R&R’s conclusions that

Plaintiff’s claims were sufficiently well-plead [sic]

to avoid dismissal. See R&R at 23-41. Instead, as

set forth in Defendant’s Motion and Reply, Plaintiff’s

SAC failed to sufficiently allege that any adverse

employment action occurred under circumstances giving

rise to an inference of discrimination, as required by

Title VII. See Motion at 15-25; Reply at 8-10.

Because “[m]erely referring the court to previously

filed papers or arguments does not constitute an adequate

objection” under Rule 72(b), my review is for clear error only.

Mario v. P & C Food Mkts., 313 F.3d 758, 766 (2d Cir. 2002).

There was no such error in Judge Locke’s determination

that Counts I through V were adequately pled. Judge Locke

applied the correct pleading standard. Compare R&R at 26 (“At

the pleading stage, Plaintiff must plausibly allege that: (1)

his employer took adverse action against him; and (2) his

religion, race, or national origin was a motivating factor in

the employment decision.”), with Buon v. Spindler, 65 F.4th 64,

78 (2d Cir. 2023) (“[T]o properly assert a claim of

discrimination against an employer under Title VII, a plaintiff

must allege two elements: (1) the employer discriminated against

her (2) because of her race, color, religion, sex, or national

origin.”). I therefore adopt the R&R’s recommendation that

these claims are properly pled.

2. The R&R’s Conclusion Regarding Legitimate, Non-

Discriminatory Motives are Not Adopted

I decline to adopt the R&R’s conclusion that defendant

established legitimate, non-discriminatory reasons for the

actions taken with respect to Plaintiff’s religious and

disability discrimination claims. See R&R at 29. The R&R

reached this conclusion by considering evidence outside the

pleadings on a motion to dismiss, without converting the motion

into one for summary judgment. See Fonte v. Bd. of Managers of

Cont’l Towers Condo., 848 F.2d 24, 25 (2d Cir. 1988). This

information included declarations from both the plaintiff and

defendant. ECF No. 29-2; ECF No. 35-1.

Moreover, the R&R took up the burden-shifting

framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). R&R at 24. “Under this framework, a plaintiff has the

initial burden to establish a prima facie case of

discrimination.” Id. “If all elements are satisfied, the

burden shifts to the employer to ‘proffer a legitimate non-

discriminatory reason for its actions . . . .’” Id. (quoting

Chen v. Stony Brook Univ. Advancement, No. 20–CV–4250, 2022 WL

289317, at *1 (2d Cir. Feb. 1, 2022)).

The Second Circuit has counseled district courts not

to reach the second step of McDonnell Douglas at the pleading

stage. See Littlejohn v. City of New York, 795 F.3d 297, 311

(2d Cir. 2015). A Title VII plaintiff “cannot reasonably be

required to allege more facts in the complaint than the

plaintiff would need to defeat a motion for summary judgment

made prior to the defendant’s furnishing of a non-discriminatory

justification.” Id. (emphasis added). Hence, the R&R’s

conclusion on this score — at pages 28 through 29 – is not

adopted.5

3. DeJoy’s Motion will not be Converted into a Summary

Judgment Motion

DeJoy seeks to convert the motion to dismiss into one

for summary judgment. As discussed, DeJoy attached to his

motion to dismiss an affidavit proffering testimony from outside

of the pleadings. As required by Local Rule 12.1, DeJoy

provided Khan with notice that a motion to dismiss supported by

matters outside of the pleadings could be converted into a

motion for summary judgment, and DeJoy provided Khan with a copy

5 DeJoy argues that the R&R’s conclusion regarding legitimate, non-

discriminatory reasons should be extended to additional counts. Obj. 18. As

this conclusion is not adopted, it will not be extended, either.

of Rule 56. Obj. 18 n.12. Khan then provided his own affidavit

with his opposition brief. There has been no discovery.

DeJoy’s request is denied. Instead, consistent with

Fonte, the affidavits shall be “exclude[d]” and DeJoy’s motion

will be decided “on the complaint alone.” 848 F.2d at 25.

Because the R&R’s recommendation that Counts I to V

state a claim is adopted, so, too, is the R&R’s recommendation

that DeJoy’s motion to dismiss those claims under Rule 12(b)(6)

be denied.

4. The R&R is Adopted as to Count VI

Neither party objects to the recommendation that

Khan’s claim for discrimination based upon race or national

origin (Count VI) be dismissed. This conclusion is not clearly

erroneous and is adopted.

However, DeJoy does object to Khan’s being granted

leave to amend Count VI on the grounds that (a) he has had

multiple opportunities to replead and (b) repleading would be

futile. Obj. 17.

DeJoy is correct that courts may dismiss with

prejudice for “repeated failure to cure deficiencies by

amendments previously allowed” and where amendment would be

futile. Foman v. Davis, 371 U.S. 178, 182 (1962). But DeJoy

makes only a conclusory argument that amendment would be futile.

See Obj. 17 (stating, without elaboration, that “repleading

would be futile”). And where a district court “cannot rule out

any possibility, however unlikely it might be, that an amended

complaint would succeed in stating a claim, a pro se complaint

should not be dismissed without granting leave to amend at least

once.” Elder v. McCarthy, 967 F.3d 113, 132 (2d Cir. 2020).

That said, here, Khan is seeking his fourth pleading in this

case. But because Khan is pro se, and because Khan has stated

several meritorious claims that will proceed regardless of

whether Khan amends Count VI, Khan is granted a final

opportunity to state a claim for discrimination based upon race

or national origin.

III. Conclusion

For the foregoing reasons, the R&R is adopted in part

and modified in part. Khan is granted leave to amend to

adequately plead a claim for discrimination based upon race or

national origin. Khan shall not add additional causes of action

to his amended pleading. If Khan chooses to file an amended

pleading, he shall do so by May 17, 2024. DeJoy shall answer

that complaint or move to dismiss the race and national origin

discrimination claim by June 14, 2024.

SO ORDERED.

/s/ Eric Komitee

ERIC KOMITEE

United States District Judge

Dated: April 17, 2024

Brooklyn, New York