holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue
How later courts described this case
- holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue
- “As long as the [plaintiff proceeding IFP] provides the information necessary to identify the defendant, the Marshals’ failure to effect service automatically constitutes ‘good cause’ for an extension of time within the meaning of Rule 4(m).”
- holding that it is the plaintiff’s responsibility to request an extension of time for service
- “Because an action against a federal agency . . . is essentially a suit against the United States, such suits are . . . barred under the doctrine of sovereign immunity, unless such immunity is waived.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT E DL OE CC #T :R ONICALLY FILED
SOUTHERN DISTRICT OF NEW YORK DATE FILED: 9/3/202 0
K.PAZHANI,
Plaintiff,
20-CV-6406 (VEC)
-against-
ORDER OF SERVICE
INFOSYS AMERICAS, et al.,
Defendant.
VALERIE E. CAPRONI, United States District Judge:
Plaintiff brings this pro seaction principally under Title VII of the Civil Rights Act of
1964 (“Title VII”), 42 U.S.C. §§ 2000e to 2000e-17; the Americans with Disabilities Act of 1990
(“ADA”), 42 U.S.C. §§ 12112-12117; the Age Discrimination in Employment Act of 1967
(“ADEA”), 29 U.S.C. §§ 621-634; the New York State Human Rights Law, N.Y. Exec. Law
§§ 290 to 297; and the New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-101 to 131,
alleging that Defendant Infosys Americas did not hire him based on his national origin, color,
disability, and age. By order dated September 1, 2020, the Court granted Plaintiff’s request to
proceed in forma pauperis.
STANDARD OF REVIEW
The Court must dismiss an in forma pauperis complaint, or portion thereof, that is
frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary
relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see
Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also
dismiss a complaint when the Court lacks subject matter jurisdiction.See Fed. R. Civ. P.
12(h)(3). While the law mandates dismissal on any of these grounds, the Court is obliged to
construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret
them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470
F.3d 471, 474(2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in
original).
DISCUSSION
A. Sovereign immunity
Plaintiff’s claims against the United States Department of Labor (DOL) and the United
States Citizenship and Immigration Services (USCIS) are dismissed under the doctrine of
sovereign immunity. Under the doctrine of sovereign immunity,federal entities areimmune from
suit. The doctrine of sovereign immunity bars federal courts from hearing all suits against the
federal government, including suits against federal agencies, unless sovereign immunity has been
waived. United States v. Mitchell, 445 U.S. 535, 538 (1980); see Robinson v. Overseas Military
Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994) (“Because an action against a federal agency . . . is
essentially a suit against the United States, such suits are . . . barred under the doctrine of
sovereign immunity, unless such immunity is waived.”).Here, Plaintiff does not state any facts
suggesting that sovereign immunity has been waived in this case. Thus, Plaintiff’s claims against
the DOL and USCIS are dismissed. See28 U.S.C. § 1915(e)(2)(B)(iii).
B. Service on Infosys Americas, E. Shawn O’Donnell, Credit Suisse, and Next Level
Service Business (NLB) Services, Inc.
Because Plaintiff has been granted permission to proceed IFP, he is entitled to rely on the
Court and the U.S. Marshals Service to effect service. Walker v. Schult, 717 F.3d. 119, 123 n.6
(2d Cir. 2013); see also 28 U.S.C. §1915(d) (“The officers of the court shall issueand serve all
process ... in [IFP] cases.”); Fed. R. Civ. P. 4(c)(3) (the court must order the Marshals Service to
serve if the plaintiff is authorized to proceed IFP)). Although Rule 4(m) of the Federal Rules of
Civil Procedure generally requires that the summons and complaint be served within 90 days of
the date the complaint is filed, Plaintiff is proceeding IFP and could not have served the
summonses and complaint until the Court reviewed the complaint and ordered that summonses
be issued. The Court therefore extends the time to serve until 90 days after the date the
summonses areissued. If the complaint is not served within that time, Plaintiff should request an
extension of time for service. See Meilleur v. Strong, 682 F.3d 56, 63 (2d Cir. 2012) (holding that
it is the plaintiff’s responsibility to request an extension of time for service); see also Murray v.
Pataki,378 F. App’x 50, 52 (2d Cir. 2010) (“As long as the [plaintiff proceeding IFP] provides
the information necessary to identify the defendant, the Marshals’ failure to effect service
automatically constitutes ‘good cause’ for an extension of time within the meaning of Rule
4(m).”).
To allow Plaintiff to effect service on Defendants Infosys Americas, Credit Suisse, Next
Level Business Service, Inc., and E. Shawn O’Donnell through the U.S. Marshals Service, the
Clerk of Court is instructed to fill out a U.S. Marshals Service Process Receipt and Return form
(“USM-285 form”) for each ofthese defendants. The Clerk of Court is further instructed to issue
summonses and deliver to the Marshals Service all the paperwork necessary for the Marshals
Service to effect service upon these defendants.
Plaintiff must notify the Court in writing if his address changes, and the Court may
dismiss the action if Plaintiff fails to do so.
C. Leave to amend complaint to state discrimination claims againstInfosys BPM,
Infosys Technologies Limited, Thomas Gottstein, N.R. Narayana Murthy, and Salil
Parekh
Plaintiff is granted 30 days’ leave to amend his complaint to detail his discrimination
claims against the above-referenced defendants and to state facts alleging their personal
involvement in discriminating against Plaintiff. In the statement of claim, Plaintiff must provide
a short and plain statement of the relevant facts supporting each claim against each defendant
named in the amended complaint. To the greatest extent possible, Plaintiff’s amended complaint
must:
give the names and titles of all relevant persons;
describe all relevant events, stating the facts that support Plaintiff’s case including
what each defendant did or failed to do;
give the dates and times of each relevant event or, if not known, the approximate date
and time of each relevant event;
give the location where each relevant event occurred;
describe how each defendant’s acts or omissions violated Plaintiff’s rights and
describe the injuries Plaintiff suffered; and
state what relief Plaintiff seeks from the Court, such as money damages, injunctive
relief, or declaratory relief.
Essentially, the body of Plaintiff’s amended complaint must tell the Court: who violated
his federally protected rights; what facts show that his federally protected rights were violated;
when such violationoccurred; where such violationoccurred; and why Plaintiff is entitled to
relief. Because Plaintiff’s amended complaint will completely replace, not supplement, the
original complaint, any facts or claims that Plaintiff wishes to maintain must be included in
the amended complaint.
D. Preliminary injunction
Plaintiff seeks preliminary injunctive relief. Toobtain such relief, Plaintiff must show:
(1)that heis likely to suffer irreparable harm and (2)either (a) a likelihoodof success on the
merits of his case or (b)sufficiently serious questions going to the merits to make them a fair
ground for litigation and a balance of hardships tipping decidedly in his favor. See UBS Fin.
Servs., Inc. v. W.V. Univ. Hosps., Inc., 660 F. 3d 643, 648 (2d Cir. 2011) (citation and internal
quotation marks omitted);Wright v. Giuliani, 230 F.3d 543, 547 (2000). Preliminary injunctive
relief “is an extraordinary and drastic remedy, one that should not be granted unless the movant,
by a clear showing, carries the burden of persuasion.” Moore v. Consol. Edison Co. of N.Y., Inc.,
409 F.3d 506, 510 (2d Cir. 2005) (internal quotation marks and citation omitted).
Plaintiff’s submissions do not demonstrate: (1)a likelihood of success on the merits, or
(2)sufficiently serious questions going to the merits to make them a fair ground for litigation and
a balance of hardships tipping decidedly in his favor. Accordingly, Plaintiff’s request for an order
to show cause (ECF No. 4) is denied.
E. Pro bono counsel
In Plaintiff’s request for preliminary injunctive relief, he also requests the appointment of
pro bono counsel. (SeeECF No. 4.) The factors to be considered in ruling on an indigent
litigant’s request for counsel include the merits of the case, Plaintiff’s efforts to obtain a lawyer,
and Plaintiff’s ability to gather the facts and present the case if unassisted by counsel. See
Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989); Hodge v. Police Officers,802 F.2d
58, 60-62 (2d Cir. 1986). Of these, the merits are “[t]he factor which command[s] the most
attention.” Cooper, 877 F.2d at 172. Because it is too early in the proceedings for the Court to
assess the merits of the action, Plaintiff’s motion for counsel is denied without prejudice to
renewal at a later date.
CONCLUSION
The Clerk of Court is directed to mail a copy of this order to Plaintiff, together with an
information package.An Amended Employment Discrimination Complaint form is attached to
this order. The Court grants Plaintiff 30 days’ leaveto file an amended complaint to set forth his
claims against Infosys BPM, Infosys Technologies Limited, Thomas Gottstein, N.R. Narayana
Murthy, and Salil Parekh.
The Clerk of Court is further instructed to complete the USM-285 forms with the
addresses for Infosys Americas, Shawn O’Donnell, Credit Suisse Group, and Next Level
Business Service, Inc., and and deliver all documents necessary to effect service to the U.S.
Marshals Service.
The Court dismisses Plaintiff’s claims against DOL and USCIS. See 28 U.S.C.
§ 1915(e)(2)(B)Gii).
The Court denies Plaintiff’s request for preliminary injunctive relief and for the
appointment of pro bono counsel. (ECF No. 4.)
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would
not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an
appeal. Cf Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant
demonstrates good faith when he seeks review of a nonfrivolous issue).
SO ORDERED.
Dated: September 3, 2020 .
New York, New York \ (¢
VALERIE E. aa
United States District Judge
DEFENDANTS AND SERVICE ADDRESSES
Infosys Americas
One World Trade Center
285 Fulton Street, 79th Floor, Suite A
New York, NY 10007
E. Shawn O’Donnell
One World Trade Center
285 Fulton Street, 79th Floor, Suite A
New York, NY 10007
Credit Suisse
Eleven Madison Avenue
New York, NY10010-3629
Next Level Business Service, Inc.
221 Roswell Street, #150
Alpharetta, GA 30009
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Write the full name of each plaintiff. CV. _
(Include case number if one has been
assigned)
~against- Do you want a jury trial?
L1Yes LINo
Write the full name of each defendant. The names listed
above must be identical to those contained in Section I.
EMPLOYMENT DISCRIMINATION COMPLAINT
NOTICE
The public can access electronic court files. For privacy and security reasons, papers filed with
the court should therefore not contain: an individual’s full social security number or full birth
date; the full name of a person known to be a minor; or a complete financial account number. A
filing may include only: the last four digits of a social security number; the year of an individual’s
birth; a minor’s initials; and the last four digits of a financial account number. See Federal Rule
of Civil Procedure 5.2.
Rev. 3/24/17
I, PARTIES
A. Plaintiff Information
Provide the following information for each plaintiff named in the complaint. Attach additional
pages if needed.
First Name Middle Initial Last Name
Street Address
County, City State Zip Code
Telephone Number Email Address (if available)
B. Defendant Information
To the best of your ability, provide addresses where each defendant may be served. If the
correct information is not provided, it could delay or prevent service of the complaint on the
defendant. Make sure that the defendants listed below are the same as those listed in the
caption. (Proper defendants under employment discrimination statutes are usually employers,
labor organizations, or employment agencies.) Attach additional pages if needed.
Defendant 1:
Name
Address where defendant may be served
County, City State Zip Code
Defendant 2:
Name
Address where defendant may be served
County, City State Zip Code
Page 2
Defendant 3:
Name
Address where defendant may be served
County, City State Zip Code
II. PLACE OF EMPLOYMENT
The address at which I was employed or sought employment by the defendant(s) is:
Name
Address
County, City State Zip Code
II. CAUSE OF ACTION
A. Federal Claims
This employment discrimination lawsuit is brought under (check only the options below
that apply in your case):
L] Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, for
employment discrimination on the basis of race, color, religion, sex, or national
origin
The defendant discriminated against me because of my (check only those that
apply and explain):
L] race:
CL] color:
L] religion:
L] sex:
L] national origin:
Page 3
L] 42U.S.C. § 1981, for intentional employment discrimination on the basis of race
My race is:
[] Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 to 634, for
employment discrimination on the basis of age (40 or older)
I was born in the year:
L] Rehabilitation Act of 1973, 29 U.S.C. 8§ 701 to 796, for employment
discrimination on the basis of a disability by an employer that constitutes a
program or activity receiving federal financial assistance
My disability or perceived disability is:
[] Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 to 12213, for
employment discrimination on the basis of a disability
My disability or perceived disability is:
Family and Medical Leave Act of 1993, 29 U.S.C. §§ 2601 to 2654, for
employment discrimination on the basis of leave for qualified medical or family
reasons
B. Other Claims
In addition to my federal claims listed above, I assert claims under:
L] New York State Human Rights Law, N.Y. Exec. Law 8§ 290 to 297, for
employment discrimination on the basis of age, race, creed, color, national
origin, sexual orientation, military status, sex, disability, predisposing genetic
characteristics, marital status
L] New York City Human Rights Law, N.Y. City Admin. Code §§ 8-101 to 131, for
employment discrimination on the basis of actual or perceived age, race, creed,
color, national origin, gender, disability, marital status, partnership status,
sexual orientation, alienage, citizenship status
L] Other (may include other relevant federal, state, city, or county law):
Page 4
IV. STATEMENT OF CLAIM
A. Adverse Employment Action
The defendant or defendants in this case took the following adverse employment
actions against me (check only those that apply):
L] did not hire me
[] terminated my employment
L] did not promote me
L] did not accommodate my disability
L] provided me with terms and conditions of employment different from those of
similar employees
L] retaliated against me
□□ harassed me or created a hostile work environment
L] other (specify):
B. Facts
State here the facts that support your claim. Attach additional pages if needed. You should
explain what actions defendants took (or failed to take) because of your protected
characteristic, such as your race, disability, age, or religion. Include times and locations, if
possible. State whether defendants are continuing to commit these acts against you.
As additional support for your claim, you may attach any charge of discrimination that you filed
with the U.S. Equal Employment Opportunity Commission, the New York State Division of
Human Rights, the New York City Commission on Human Rights, or any other government
agency.
Page 5
V. ADMINISTRATIVE PROCEDURES
For most claims under the federal employment discrimination statutes, before filing a lawsuit,
you must first file a charge with the U.S. Equal Employment Opportunity Commission (EEOC)
and receive a Notice of Right to Sue.
Did you file a charge of discrimination against the defendant(s) with the EEOC or any
other government agency?
L] Yes (Please attach a copy of the charge to this complaint.)
When did you file your charge?
[1 No
Have you received a Notice of Right to Sue from the EEOC?
L] Yes (Please attach a copy of the Notice of Right to Sue.)
What is the date on the Notice?
When did you receive the Notice?
[1 No
VI. RELIEF
The relief I want the court to order is (check only those that apply):
L] direct the defendant to hire me
L] direct the defendant to re-employ me
L] direct the defendant to promote me
L] direct the defendant to reasonably accommodate my religion
L] direct the defendant to reasonably accommodate my disability
L] direct the defendant to (specify) (if you believe you are entitled to money
damages, explain that here)
Page 6
VII. PLAINTIFF’S CERTIFICATION
By signing below, I certify to the best of my knowledge, information, and belief that:
(1) the complaint is not being presented for an improper purpose (such as to harass,
cause unnecessary delay, or needlessly increase the cost of litigation); (2) the claims are
supported by existing law or by a nonfrivolous argument to change existing law; (3) the
factual contentions have evidentiary support or, if specifically so identified, will likely
have evidentiary support after a reasonable opportunity for further investigation or
discovery; and (4) the complaint otherwise complies with the requirements of Federal
Rule of Civil Procedure 11.
I agree to notify the Clerk's Office in writing of any changes to my mailing address. I
understand that my failure to keep a current address on file with the Clerk's Office may
result in the dismissal of my case.
Each Plaintiff must sign and date the complaint. Attach additional pages if necessary. If seeking to
proceed without prepayment of fees, each plaintiff must also submit an IFP application.
Dated Plaintiff’s Signature
First Name Middle Initial Last Name
Street Address
County, City State Zip Code
Telephone Number Email Address (if available)
Ihave read the attached Pro Se (Nonprisoner) Consent to Receive Documents Electronically:
LlYes LINo
If you do consent to receive documents electronically, submit the completed form with your
complaint. If you do not consent, please do not attach the form.
Page 7
Gs sre >
E@® . . .
(>) □□ \\ United States District Court
Southern District of New York
□□
Pro Se (Nonprisoner) Consent to Receive Documents Electronically
Parties who are not represented by an attorney and are not currently incarcerated may
choose to receive documents in their cases electronically (by e-mail) instead of by regular
mail. Receiving documents by regular mail is still an option, but if you would rather receive
them only electronically, you must do the following:
1. Sign up fora PACER login and password by contacting PACER! at
www.pacer.uscourts.gov or 1-800-676-6856;
2. Complete and sign this form.
If you consent to receive documents electronically, you will receive a Notice of Electronic
Filing by e-mail each time a document is filed in your case. After receiving the notice, you
are permitted one “free look” at the document by clicking on the hyperlinked document
number in the e-mail. Once you click the hyperlink and access the document, you may not
be able to access the document for free again. After 15 days, the hyperlink will no longer
provide free access. Any time that the hyperlink is accessed after the first “free look” or the
15 days, you will be asked for a PACER login and may be charged to view the document. For
this reason, you should print or save the document during the “free look” to avoid future
charges.
IMPORTANT NOTICE
Under Rule 5 of the Federal Rules of Civil Procedure, Local Civil Rule 5.2, and the Court’s
Electronic Case Filing Rules & Instructions, documents may be served by electronic means.
If you register for electronic service:
1. You will no longer receive documents in the mail;
2. Ifyou do not view and download your documents during your “free look” and
within 15 days of when the court sends the e-mail notice, you will be charged for
looking at the documents;
3. This service does not allow you to electronically file your documents;
4. It will be your duty to regularly review the docket sheet of the case.
1 Public Access to Court Electronic Records (PACER) (www.pacer.uscourts.gov) is an electronic public access service that
allows users to obtain case and docket information from federal appellate, district, and bankruptcy courts, and the PACER
Case Locator over the internet.
2 You must review the Court's actual order, decree, or judgment and not rely on the description in the email notice alone.
See ECF Rule 4.3
3 The docket sheet is the official record of all filings in a case. You can view the docket sheet, including images of
electronically filed documents, using PACER or you can use one of the public access computers available in the Clerk’s
Office at the Court.
500 PEARL STREET | NEW YORK, NY 10007
300 QUARROPAS STREET | WHITE PLAINS, NY 10601
CONSENT TO ELECTRONIC SERVICE
I hereby consent to receive electronic service of notices and documents in my case(s) listed below. I
affirm that:
1. Ihave regular access to my e-mail account and to the internet and will check regularly for
Notices of Electronic Filing;
2. Ihave established a PACER account;
3. understand that electronic service is service under Rule 5 of the Federal Rules of Civil
Procedure and Rule 5.2 of the Local Civil Rules, and that I will no longer receive paper
copies of case filings, including motions, decisions, orders, and other documents;
4. I will promptly notify the Court if there is any change in my personal data, such as name,
address, or e-mail address, or if ] wish to cancel this consent to electronic service;
5. Iunderstand that I must regularly review the docket sheet of my case so that I do not miss a
filing; and
6. I understand that this consent applies only to the cases listed below and that if I file
additional cases in which I would like to receive electronic service of notices of documents, I
must file consent forms for those cases.
Civil case(s) filed in the Southern District of New York:
Note: This consent will apply to all cases that you have filed in this court, so please list all of
your pending and terminated cases. For each case, include the case name and docket number
(for example, John Doe v. New City, 10-CV-01234).
Name (Last, First, MI)
Address City State Zip Code
Telephone Number E-mail Address
Date Signature
Return completed form to:
Pro Se Intake Unit (Room 200)
500 Pearl Street
New York, NY 10007