# Khan v. Brennan

> District Court, E.D. New York · April 17, 2024

URL: https://www.frixlaw.com/law-library/cases/10311650

## Case

- **Court:** District Court, E.D. New York
- **Decided:** April 17, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------x

JAVED F. KHAN,

Plaintiff, MEMORANDUM & ORDER
20-CV-01446(EK)(SIL)

-against-

LOUIS DEJOY, as Postmaster General

for the United States Postal Service,

Defendant.

------------------------------------x
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10311650. Public record. Not legal advice.