Mandala v. NTT Data, Inc.

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

__________________________________________

GEORGE MANDALA & CHARLES BARNETT,

individually and on behalf of all others similarly

situated,

Plaintiffs, DECISION AND ORDER

vs.

18-CV-6591 (CJS)

NTT DATA, INC.,

Defendant.

__________________________________________

In July 2019, the Court granted Defendant NTT Data, Inc.’s (“NTT”) motion to

dismiss Plaintiffs George Mandala’s and Charles Barnett’s (“Plaintiffs”) putative class

action Title VII disparate impact claims against NTT for its alleged policy not to hire

individuals with criminal convictions. Mandala v. NTT Data, Inc., No. 18-CV-6591 CJS,

2019 WL 3237361 (W.D.N.Y. July 18, 2019). The judgment was subsequently affirmed

on appeal by the Second Circuit Court of Appeals, and Plaintiffs’ petition for a rehearing

en banc was denied. Mandala v. NTT Data, Inc., 975 F.3d 202 (2d Cir. 2020); Mandala

v. NTT Data, Inc., 988 F.3d 664 (2d Cir. 2021).

The matter is presently before the Court on Plaintiffs’ motion pursuant to Rule

60(b)(6) of the Federal Rules of Civil Procedure to vacate the Court’s judgment so that

Plaintiffs can file a first amended complaint. Mot. to Vacate, Mar. 31, 2021, ECF No. 35.

For the reasons stated below, Plaintiffs’ motion for relief [ECF No. 35] is denied.

BACKGROUND

The Second Circuit has succinctly summarized the background and procedural

history of this case:

In early 2017, George Mandala applied for a position as a Salesforce

Developer at NTT Data, Inc., a global information technology services

provider. Impressed by his work experience and his answers to various

“technical questions” during the interview process, . . . NTT offered Mandala

a job as an “Application Software Development Senior Principal Consultant”

. . . . But upon conducting a routine background check, the company

discovered that Mandala had been convicted of a felony and quickly

withdrew its offer of employment. When a member of NTT’s recruitment

team broke the news to Mandala, she indicated that “NTT had a policy not

to hire persons with felonies on their records . . . .”

Charles Barnett had a similar experience. NTT reached out to him in July

2017 about a “web developer” position on a project for the Kentucky

Department of Education . . . . On paper, Barnett appeared to be a strong

candidate: he had relevant work experience, a “Masters of Science in

Computer Science Technology[,] and an Associate degree in Applied

Science/Computer Programming . . . .” And after a few rounds of interviews,

NTT offered him the job. But the company pulled that offer once it learned

that Barnett had been convicted of several felonies. Though Barnett asked

NTT to consider hiring him for other positions, he was informed that he was

ineligible “because of his felony convictions . . . .”

So, in August 2018, Mandala and Barnett filed a putative class action

complaint against NTT, alleging that the company’s hiring practices violate

Title VII of the Civil Rights Act of 1964, as well as several New York State

anti-discrimination laws. Specifically, they assert that NTT has a policy not

to hire “individuals with certain criminal convictions including felonies (or

similar criminal classifications),” . . . which Plaintiffs say is unlawful because

it invariably disqualifies a disproportionate number of African-American

applicants.

To support this assertion, Plaintiffs point to numerous studies showing that

“African Americans are arrested and incarcerated for crimes at higher rates

than [w]hites, relative to their share of the national population . . . .” This

disparity is compounded, they say, by evidence suggesting that employers

place additional weight on criminal history when an applicant is African

American as opposed to white. Notably, however, the complaint contains

no allegations about racial disparities in NTT’s existing workforce or the

demographics of qualified applicants that NTT has rejected as a result of its

hiring policy . . . .

A little less than a year after it was filed, the district court dismissed the

complaint for failure to state a claim . . . . The court concluded that the

national statistics on which Plaintiffs rely are “inadequate to show a

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relationship between the pool of [NTT] applicants who are Caucasian

versus African Americans and their respective rates of felony convictions .

. . .” And without any remaining federal claims, the district court refused to

exercise supplemental jurisdiction over Plaintiffs’ state law claims and

dismissed their complaint in its entirety . . . .

Mandala, 975 F.3d at 205–06 (internal citations omitted).

A divided panel of the Second Circuit affirmed this Court’s dismissal of Plaintiffs’

complaint. The majority opinion noted that “Plaintiffs have offered no allegations to

suggest that the general population statistics on which they rely ‘might accurately reflect

[NTT's] pool of qualified job applicants.’” Mandala, 975 F.3d at 211 (quoting Malave v.

Potter, 320 F.3d 321, 326 (2d Cir. 2003)). The majority further stated that “if a Title VII

plaintiff intends to rely on national statistics to plead a disparate impact claim, she must

explain why those statistics can plausibly be expected to hold true for the qualified

applicant pool in question.” Mandala, 975 F.3d at 212. The dissent, on the other hand,

argued that in rejecting Plaintiffs’ use of national statistics, the Court was holding Plaintiffs

to an improperly high pleading standard. Mandala, 975 F.3d at 214 (Chin, J., dissenting).

The Second Circuit’s denial of Plaintiffs’ petition for a rehearing en banc also

involved dissenting opinions. The majority concurrence to the denial elaborated on the

majority’s reasoning in the circuit court’s decision affirming this Court’s judgment:

[Our decision] does not mean that national statistics can never be used in

disparate impact cases involving skilled positions. Plaintiffs simply need to

“provide additional allegations to explain why their chosen national statistics

are in fact likely to be representative of [the] qualified applicant pool” in

question. Mandala, 975 F.3d at 212. Here, that could have taken the form

of additional national statistics indicating that, even as education levels

increase, racial disparities between conviction rates remain. But Plaintiffs

failed to provide such allegations. It is for that limited reason that the panel

majority opinion affirmed the district court’s dismissal of Plaintiffs’ complaint

for failure to state a claim.

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Mandala, 988 F.3d at 668. The majority then referenced additional statistics introduced

in an amicus brief, which indicated that black males with some college education are

seven times more likely to be imprisoned than white males with some college education,

and suggested these statistics “might” have rendered Plaintiffs’ claims plausible had they

been included in the original pleadings. Mandala, 988 F.3d at 668. The dissent seized on

the majority’s statement, and “encourage[d] both future litigants to bring such cases and

the Plaintiffs here to move under Rule 60 for relief from the district court’s judgment in

order to file an amended complaint that includes statistics incorporating the continued

racial gaps in conviction rates as education levels rise.” Mandala, 988 F.3d at 671 (Pooler,

J., dissenting).

Accordingly, Plaintiffs now move this Court, pursuant to Rule 60 of the Federal

Rules of Civil Procedure, to vacate its judgment dismissing their complaint, and to “allow

them to file their First Amended Class Action Complaint (‘FAC’) setting forth claims

alleging that [NTT’s] policy of denying employment to applicants with criminal histories

violates Title VII of the Civil Rights Act of 1964 (‘Title VII’) and related state laws.” Mem.

in Support, Mar. 31, 2021, ECF No. 35-1. NTT presents “several reasons” for denying

Plaintiffs’ motion, including that Plaintiffs’ motion is untimely, and that Plaintiffs have not

demonstrated “exceptional circumstances” justifying relief from judgment. Mem. in Opp.,

May 3, 2021, ECF No. 38.

LEGAL STANDARD

Plaintiffs maintain that their Rule 60 motion to vacate should be considered in the

context of their proposed amended complaint, and that the Court should therefore analyze

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their motion using the liberal amendment standard set forth in Rule 15(a) of the Federal

Rules of Civil Procedure. The Supreme Court has established that, under Rule 15, “leave

to amend should be routinely granted ‘[i]n the absence of any . . . reason – such as undue

delay, bad faith, dilatory motive . . ., repeated failure to cure deficiencies by amendments

previously allowed, undue prejudice to the opposing party . . ., futility of amendment, etc.’”

Mem. in Support at 10 (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). Plaintiffs

state that “[t]he ‘liberal spirit of Rule 15’ is at its strongest where, as here, the plaintiffs

have not previously sought to amend the complaint.” Mem. in Support at 12. The Court

disagrees with Plaintiff’s recitation of the standard.

In a recent case, the Second Circuit declined to adopt Rule 15 as the governing

standard for parties seeking leave to amend the complaint in the post-judgment context.

Instead, the circuit court ruled that:

It is well-established that “[a] party seeking to file an amended complaint

post[-]judgment must first have the judgment vacated or set aside pursuant

to Fed. R. Civ. P. 59(e) or 60(b).” Ruotolo v. City of New York, 514 F.3d

184, 191 (2d Cir. 2008). “[I]t would be contradictory to entertain a motion to

amend the complaint” without “a valid basis to vacate the previously entered

judgment.” Nat'l Petrochemical Co. of Iran v. M/T Stolt Sheaf, 930 F.2d 240,

245 (2d Cir. 1991). “To hold otherwise would enable the liberal amendment

policy of Rule 15(a) to be employed in a way that is contrary to the

philosophy favoring finality of judgments and the expeditious termination of

litigation.” [Williams v. Citigroup Inc., 659 F.3d 208, 213 (2d Cir. 2011)]

(brackets and internal quotation marks omitted) (quoting Nat'l

Petrochemical, 930 F.2d at 245).

Metzler Inv. Gmbh v. Chipotle Mexican Grill, Inc., 970 F.3d 133, 142–43 (2d Cir. 2020).

In other words, there is a clear distinction between the pre-trial application of Rule

15, and the post-judgment application of Rule 15 in light of Rules 59(e) and 60. See, e.g.,

State Trading Corp. of India v. Assuranceforeningen Skuld, 921 F.2d 409, 418 (2d Cir.

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1990) (stating that “[w]hen the moving party has had an opportunity to assert the

amendment earlier, but has waited until after judgment before requesting leave, a court

may exercise its discretion more exactingly.”). In the post-judgment context, Plaintiffs

must present adequate grounds for relief under Rule 59(e) or Rule 60, and courts must

give “due regard” – but not “sole regard” – to Rule 15, lest the liberal amendment policy

of Rule 15(a) “swallow the philosophy favoring finality of judgments whole.”1 Metzler Inv.

Gmbh, 970 F.3d at 146 (quoting Nat'l Petrochem., 930 F.2d at 245) (internal quotation

marks omitted).

DISCUSSION

The Court has made a thorough review of the papers in this action, the Court’s

earlier decision to grant NTT’s motion to dismiss, the majority opinion and dissent in the

Second Circuit’s affirmance of this Court’s decision, and the concurrence and dissents in

the Second Circuit’s denial of Plaintiffs’ petition for a rehearing en banc. Having done so,

the Court finds that Plaintiffs have failed to demonstrate adequate grounds for relief from

the Court’s judgment under Rule 60. Specifically, the motion is not timely, and Plaintiffs

have presented no “extraordinary circumstances” that would warrant the provision of the

extraordinary remedy of relief from judgment.

1 In the context of Metzler Inv. Gmbh v. Chipotle Mexican Grill, Inc., the Second Circuit stated that it had

given “due regard” to Rule 15 “by ensuring plaintiffs at least one opportunity to replead.” 970 F.3d at 146

(citing Williams, 659 F.3d at 213-14.”). The Court does not read this statement to establish a rule in the

Second Circuit that all plaintiffs are guaranteed the right to amend their pleadings at least once in the post-

judgment context. Rather, the Court reads this statement as illustrating how the circuit court had given due

consideration to Rule 15 in the specific circumstances of the case before it. The district court in the case

had dismissed the first amended complaint, but “issued a thorough opinion that identified defects that a

second amended complaint should cure,” and the plaintiffs thereafter filed a second amended complaint

prior to appeal. Metzler Inv. Gmbh, 970 F.3d at 145.

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Rule 60(b)

Rule 60(b) provides that, “[o]n motion and just terms,” a court may relieve a party

from a final judgment for several reasons, including:

(1) mistake, inadvertence, surprise, or excusable neglect;

* * *

(6) any other reason that justifies relief.

Fed. R. Civ. P. 60(b). “A motion under Rule 60(b) must be made within a reasonable time

– and for reasons (1), (2), and (3) no more than a year after entry of the judgment . . . .”

Fed. R. Civ. P. 60(c)(1).

“Properly applied Rule 60(b) strikes a balance between serving the ends of justice

and preserving the finality of judgments.” Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir.

1986). Because “[a] motion for relief from judgment is generally not favored and is

properly granted only upon a showing of exceptional circumstances, a party moving under

Rule 60(b) must meet an “onerous standard.” United States v. Int'l Bhd. of Teamsters,

247 F.3d 370, 391–92 (2d Cir. 2001). Further, the Second Circuit has “found that Rule

60(b)(1) and Rule 60(b)(6) are mutually exclusive, such that any conduct which generally

falls under the former cannot stand as a ground for relief under the latter . . . . Where a

party’s Rule 60(b) motion is premised on grounds fairly classified as mistake,

inadvertence, or neglect, relief under Rule 60(b)(6) is foreclosed.” Stevens v. Miller, 676

F.3d 62, 67–68 (2d Cir. 2012) (internal quotation marks and citation omitted).

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Timeliness of Plaintiff’s Rule 60(b) Motion

In the present case, Plaintiffs state that:

In a divided opinion on appeal, the Second Circuit explained what evidence

Plaintiffs were required to plead to state a plausible claim for relief under

Title VII . . . and then further clarified that standard in a concurrence to the

denial of Plaintiffs’ en banc petition. That standard, as applied to the

particular facts of this case, was previously unclear . . . .

Mem. in Supp. at 12–13. In other words, Plaintiffs paint themselves as unwitting victims

of an ambiguous standard that was unpredictably applied to their detriment, the

clarification of which provides an ostensible ground for relief from judgment under Rule

60(b)(6). The Court finds this to be a misinterpretation of the Second Circuit’s rulings in

this case.

To be sure, Judge Pooler’s dissent from the denial of Plaintiffs’ petition for a

rehearing encouraged “Plaintiffs here to move under Rule 60 for relief from the district

court’s judgment in order to file an amended complaint that includes statistics

incorporating the continual racial gaps in conviction rates as education levels rise.”

Mandala, 988 F.3d at 671 (Pooler, J., dissenting). However, Judge Pooler’s dissent is not

controlling, and does not compel the conclusion that this Court in the first instance, and

the majority of the Second Circuit panel on direct appeal, apply a standard that was

heretofore ambiguous. See, e.g., Philadelphia Indem. Ins. Co. v. Cent. Terminal

Restoration Corp., 722 F. App’x 79, 83 (2d Cir. 2018) (“To the extent [the plaintiff] relies

on the dissent . . . the reliance is misplaced.”). In fact, as the majority concurrence points

out, the Second Circuit’s decision to affirm this Court’s dismissal of Plaintiff’s complaint

“reflect[ed] a heartland application of the plausibility pleading standard that has been the

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law of this Circuit for more than a decade.” Mandala, 988 F.3d at 665 (Sullivan, J. and

Nardini, J., concurring).

In the light of the Second Circuit’s stated opinion that the ruling in this case was a

“heartland application of the plausibility pleading standard,” Plaintiffs’ motion to vacate

appears instead to be premised on their own mistake, inadvertence, and neglect rather

than the “extraordinary circumstances” required by Rule 60(b)(6). A review of the Second

Circuit’s affirmance of this Court’s judgment confirms that the circuit court was merely

summarizing rather than clarifying the law on a plaintiff’s use of statistics to show

disparate impact in a Title VII claim. Indeed, arguably its most significant statement

relative to Plaintiffs’ claims – that “[g]eneral population statistics are a reliable surrogate

only when there is reason to think that they ‘accurately reflect the pool of qualified job

applicants’ for the position in question” – is drawn from a Second Circuit case decided in

2003, approximately 15 years before Plaintiffs filed their claim. Mandala, 975 F.3d at 210–

11 (quoting Malave v. Potter, 320 F.3d 321, 326 (2d Cir. 2003)).

Thus, whereas Plaintiffs maintain that vacating the Court’s judgment is justified by

the Second Circuit’s clarification of an ambiguous standard, a more reasonable

interpretation of the Second Circuit’s majority opinion – which is consistent with the

Court’s judgment that Plaintiffs now seek to vacate – is that Plaintiffs simply did not meet

a well-settled standard. See Nemaizer, 793 F.2d at 62 (“we have consistently declined to

relieve a client . . . of the burdens of a final judgment entered against him due to the

mistake or omission of his attorney by reason of the latter’s ignorance of the law . . . .”).

In short, Plaintiffs’ motion to vacate is nothing more than a late Rule 60(b)(1) motion,

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which Plaintiffs were required to make no more than a year after the entry of the judgment.

See Stevens, 676 F.3d at 67–68 (denying the State’s motion to vacate on the grounds

that it was nothing more than “an untimely Rule 60(b)(1) motion masquerading as a Rule

60(b)(6) motion.”). Plaintiffs’ motion to vacate is therefore untimely,2 and should be

denied. Warren v. Garvin, 219 F.3d 111, 114 (2d Cir. 2000) (“The one-year limitation

period for Rule 60(b) motions is ‘absolute.’”).

Rule 60(b)(6) and Extraordinary Circumstances

Moreover, even assuming Plaintiffs’ motion was a timely Rule 60(b)(6) motion,

Plaintiffs fail to demonstrate relief would be warranted. As the “extraordinary

circumstances” justifying relief from the Court’s judgment, Plaintiffs point to the Second

Circuit’s denial of Plaintiffs’ petition for a rehearing, noting that the majority concurrence

“clarified that Plaintiffs needed only to allege claims that would make it plausible that

national statistics might accurately reflect the relevant labor pool . . . . [and] then identified

such statistics in an amicus brief.” Reply, 6, May 17, 2021, ECF No. 39. Plaintiffs liken

this case to the Second Circuit’s decision in Marrerro Pichardo v. Ashcroft, 374 F.3d 46

(2d Cir. 2004), in which the circuit court overturned the district court’s denial of appellant’s

motion under Rule 60(b)(6) because the “claims were ‘virtually certain to succeed’ if the

judgment was reopened.” Reply at 3 (quoting Marrerro Pichardo, 374 F.3d at 54).

Plaintiffs suggest that, given the majority concurrence’s statement, their amended

2 By contrast, Rule 60(c)(1) requires that a motion made under Rule 60(b)(6) be “made within a reasonable

time.” “The Second Circuit has interpreted a ‘reasonable time’ as eighteen months, unless the movant

shows good cause for the delay or mitigating circumstances.” E. End Eruv Ass'n, Inc. v. The Vill. of

Westhampton Beach, No. CV 11-213 AKT, 2015 WL 5774981, at *2 (E.D.N.Y. Sept. 30, 2015) (citing, inter

alia, Maisonet v. Conway, No. 04–CV–2860, 2011 WL 317833, at *3 n. 3 (E.D.N.Y. Jan. 31, 2011) (noting

that “[c]ourts in the Second Circuit have found delays exceeding eighteen months to be unreasonable

absent mitigating circumstances” and collecting cases)).

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complaint – if they are given leave to file it – is virtually certain to make it past any NTT

motions to dismiss.

The Supreme Court has stated that “Rule [60(b)(6)] does not particularize the

factors that justify relief, but we have previously noted that it provides courts with authority

adequate to enable them to vacate judgments whenever such action is appropriate to

accomplish justice . . . while also cautioning that it should only be applied in extraordinary

circumstances . . . .” Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863–64

(1988) (internal citations omitted). One such case of “extraordinary circumstances”

justifying relief under Rule 60(b)(6) was Klapprott v. United States, 335 U.S. 601 (1949).

As described by the Supreme Court, in Klapprott:

[B]efore, at the time, and after the default judgment was entered, petitioner

was held in jail in New York, Michigan, and the District of Columbia by the

United States, his adversary in the denaturalization proceedings. Without

funds to hire a lawyer, petitioner was defended by appointed counsel in the

criminal cases. Thus petitioner’s prayer to set aside the default judgment

did not rest on mere allegations of ‘excusable neglect.’ The foregoing

allegations and others in the petition tend to support petitioner's argument

that he was deprived of any reasonable opportunity to make a defense to

the criminal charges instigated by officers of the very United States agency

which supplied the secondhand information upon which his citizenship was

taken away from him in his absence. The basis of his petition was not that

he had neglected to act in his own defense, but that in jail as he was,

weakened from illness, without a lawyer in the denaturalization proceedings

or funds to hire one, disturbed and fully occupied in efforts to protect himself

against the gravest criminal charges, he was no more able to defend himself

in the New Jersey court than he would have been had he never received

notice of the charges.”

Ackermann v. United States, 340 U.S. 193, 199-200 (1950). “By no stretch of imagination

can the voluntary, deliberate, free, untrammeled choice[s] of” Rule 60(b) movants

compare with such circumstances. Ackermann, 340 U.S. at 200. Thus, a party is not

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entitled to relief under . . . Rule 60 if it is seeking to be relieved from the consequences of

its own “free, calculated, deliberate choices.” Palacios v. Coca-Cola Co., 499 F. App’x 54,

56 (2d Cir. 2012) (citing Ackermann, 340 U.S. at 198; United States v. Bank of N.Y., 14

F.3d 756, 759 (2d Cir. 1994) (holding that a party who “made a conscious and informed

choice of litigation strategy . . . cannot in hindsight seek extraordinary relief” under Rule

60(b)).

In this case, Plaintiffs filed their initial complaint in August 2018. Compl., Aug. 15,

2018, ECF No. 1. In November 2018, NTT responded with a motion to dismiss Plaintiffs’

complaint, which argued in pertinent part that “the purported statistics cited by Plaintiffs

have absolutely nothing to do with the alleged facially neutral policy they challenge – i.e.,

the alleged failure to hire applicants with criminal felony convictions.” Mem. in Supp. of

Mot. to Dismiss, 9, Nov. 13, 2018, ECF No. 11-3. In a cross motion to stay discovery in

May of 2019, NTT further stated that “Plaintiffs proffer no facts that plausibly support that

NTT [policies] caused any disparate impact on any protected group.” Mem. in Supp. of

Cross Mot. to Stay, 5, May 10, 2019, ECF No. 22-2. In the face of NTT’s specific and

repeated allegations regarding the deficiencies of their pleadings, Plaintiffs had the

opportunity to seek leave to amend their complaint, but chose instead to stand by their

original complaint using only general population statistics in support of their claim.

In June 2019, the Court directly addressed the generality of Plaintiffs’ statistics and

NTT’s allegations of their insufficiency during the motion hearing on NTT’s motion to

dismiss. Attempting to put a finer point on the parties’ respective positions, the Court led

the following exchange:

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THE COURT: . . . What would [Plaintiffs] have to plead to go forward? . . . .

Would you have to plead that – if they said that a disproportionate number

of African-Americans with felony convictions were denied – were offered

jobs and the offer was retracted than Caucasians, would that be enough?

MS. PIZZUTELLI: No. That would be a similar conclusory allegation under

Iqbal. . . . You need to look at what the Second Circuit has said you need to

plead. That's [Brown v. Coach Stores, Inc., 163 F.3d 706, 712 (2d Cir.

1998)] which addresses and affirms a district court dismissal on a 12(b)(6)

motion of a disparate impact claim. And what Brown said was you need to

plead facts that show a facially neutral employment policy or practice has a

significant disparate impact.

* * *

THE COURT: . . . . If we came here with that complaint, if the complaint said

. . . that over the last five years, NTT has offered jobs to 100 individuals,

whatever the job was, and then withdrawn those offers after a record check

had revealed that each had felony convictions. Of those 100 individuals, 75

were African-American. If that was the allegation for disparate treatment,

would you be moving to dismiss the complaint?

[DEFENSE COUNSEL]: Your Honor, I think I would be in a more difficult

position to move to dismiss but I would also need to review, again, the

Wards Cove decision and be guided by what the Supreme Court said in

Wards Cove. And what Wards Cove said is you also need to look at who’s

in that applicant pool, who’s making those applications.

* * *

[PLAINTIFFS’ COUNSEL]: . . . . The question here, this is a disparate

impact case so we’re looking at the amount of people who got the job, the

amount of people who didn't get the job because of their criminal records

and the races of those individuals to determine whether NTT’s policy, which

screens out applicants because of their criminal records, screens out more

African-Americans. And so that’s why we're looking at race and that’s also

why, going back to the pleading stage, why the statistics that we pled raise

a plausible inference . . . .

* * *

THE COURT: . . . I think you're indicating that you have to show the group

that was qualified for the position and out of the group that was qualified,

how many were denied the position because of whatever, felony criminal

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records, and did that group, was that group disproportionately unfair to

African-Americans? . . . . And you’re saying you don't have to do that [at the

pleading stage]?

[PLAINTIFFS’ COUNSEL]: Your Honor, I believe what this comes down to

is a question of causation and, as some of the case law we cited analyzing

disparate impact at the motion to dismiss stage has said, you don't have to

establish causation at this stage. What defendants are asking us to do is to

prove our claims at this stage, to prove that there actually was impact but

that is improper at a motion to dismiss stage. At the motion to dismiss stage

we just need to raise a plausible inference.

Tr. of Mot. Hr’g on Mot. to Dismiss, 13:8–20:17. Here too, following an extended

discussion of NTT’s allegations regarding the deficiencies of their pleadings, including

references to relevant Supreme Court and Second Circuit caselaw and the Court’s

specific inquiry into what constitutes an adequate pleading, Plaintiffs had the opportunity

to seek leave to amend their complaint, but chose instead to stand by their original

complaint using only general population statistics in support of their claim.

The following month, July of 2019, the Court issued its decision and order granting

NTT’s motion to dismiss because “Plaintiffs have not alleged facts showing that [NTT]’s

facially-neutral policy of not hiring convicted felons is related to the statistical disparity in

the numbers of African-Americans arrested and convicted of crimes in proportion to their

representative numbers in the pool of qualified applicants for Defendant's positions.”

Mandala, 2019 WL 3237361, at *4. Again, following a dismissal on grounds that had been

raised both in NTT’s motion papers and during oral argument, Plaintiffs had the

opportunity to seek leave to amend their complaint, but chose instead to appeal the

Court’s judgment and test the theory of law that they believed to be proper. The Court’s

reasoning and judgment was affirmed by the Second Circuit in September 2020, and only

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after the Second Circuit denied Plaintiffs’ petition for a rehearing en banc in February

2021 did Plaintiffs return to this Court seeking leave to amend their complaint.

What’s more, the relevant statistics3 that Plaintiffs now seek to add into their first

amended complaint – that “Black men with some college education have imprisonment

risks that are seven (7) times greater than white men with some college education” – are

drawn from a study that was published in 2006. Proposed First Am. Compl., ¶ 57, May 17,

2021, ECF No. 39-3. A second study, from 2009, purportedly found that “even among

people with criminal records, African Americans were particularly disadvantaged in the

job market compared with white people with criminal records.” Proposed First Am. Compl.

at ¶ 59. In sum, both sets of statistics that Plaintiffs seek to add to their complaint to

correct the deficiencies in their pleadings were publicly available for nearly a decade prior

to the filing of the complaint. See Mandala, 988 F.3d at 668 (noting that “. . . the very

figures that might have rendered Plaintiffs’ claims plausible not only exist but also are

publicly available; Plaintiffs simply failed to include them in their pleadings.”)

Giving due regard to Rule 15, the Court notes that Plaintiffs could easily have

protected themselves at several points in both the pre-trial and post-judgment context by

seeking leave to amend their complaint to offer more relevant statistics, but made a

strategic decision not to. Simone v. Prudential Ins. Co. of Am., 164 F. App’x 39, 41 (2d

Cir. 2006). The Court declines to use Rule 60(b) to relieve Plaintiffs from the

consequences of that conscious and informed litigation strategy. Palacios, 499 F. App’x

3 Plaintiffs also introduce a study from 2019 regarding a perception of discriminatory policing on college

campuses, but the Court sees little relevance of the statistics presented in that study to the pool of qualified

applicants for positions with NTT. Proposed First Am. Compl. at ¶ 59.

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at 56 (citing U.S. v. Bank of N.Y., 14 F.3d at 759). “There must be an end to litigation

someday, and free, calculated, deliberate choices are not to be relieved from.”

Ackermann, 340 U.S. at 199.

CONCLUSION

For the foregoing reasons, it is hereby,

ORDERED that Plaintiffs’ motion to vacate judgment [ECF No. 35] is denied, and

the Clerk of Court is respectfully directed to close this case.

Dated: December 6, 2021

Rochester, New York

ENTER:

CO) x (AOD?

CHARLESN. SIRAGUS

United States Distric\ludge

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