Petition for Writ of Certiorari — Swierkiewicz v. Sorema NA

\ \ Supreme Court, U.S.

ay, FILED

001853 JUN 8 2001

Inthe = OFFICE OF THE CLERK

Supreme Court of the United States

AKOS SWIERKIEWICZ,

Petitioner,

versus

SOREMA N.A..,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PETITION FOR WRIT OF CERTIORARI

HAROLD I. GOODMAN

Counsel of Record

Raynes, McCarty, Binder,

Ross & Mundy

1845 Walnut Street

20th Floor

Philadelphia, PA 19103

(215) 568-6190

Attorneys for Petitioner

& Taylor 141 / com

complaint than put his employer on notice of his

ll

TABLE OF CONTENTS

QUESTIONS PRESENTED ..........0:0eceseeceeeeeeeeeeeeeeseeeeeeees i

TABLE OF CONTENTS ...........0csececcecceseeseceeeeeeeeceeeeeees ii

TABLE OF AUTHORITIES.............c0scscesseseeceeeeeeeeeseeeees iv

CIR BURT ....cccccccccccscccvcccscccscccccvccsccsccscccososees 1

DURTIRIBTIGIE ..ccccccsccccescocccesoscsecesecsccvccnscccescccoccocoes |

FEDERAL RULES OF CIVIL PROCEDURE INVOLVED............ |

STATEMENT OF THI CASE .......ccccscccscccccccccccccevcccscseces 2

A. Course of the Proceedings Pelow .............::-csseesee 2

B. Statement Of FAacts........cccccccssccsscorcccccccsovsocccesssssssesees 5

REASONS FOR GRANTING THE WRIT ...........00000seeeeeeeeeees 7

I. The Second Circuit's Decision Conflicts with

Binding Precedent of This Coutt...............::ssssseeees 7

Il. The Second Circuit's Decision Conflicts With

Precedent From Five Other Courts of Appeals...... 10

COPTER occ cecccccccccccccccccccccsesccccccscccvccosccocosesces 12

APPENDIX

CIRCUIT COURT OPINION ...........0cecececseceeeeeeeeeenes la

DISTRICT COURT TRANSCRIPT .........:0000ceeeeeeseeeeeeees Sa

DISTRICT COURT JUDGMENT...........000000ceceeeeeeeeeeees 10a

DISTRICT COURT ORDER .............0ccecceeceeeseeeeeneees lla

TABLE OF AUTHORITIES

Cases

BENNETT V. SCHMIDT, 153 F.3D 516 (7TH Cir. 1998)

sdiabnadactd dentate te le te 10, 11

CONLEY V. GIBSON, 355 U.S. 41 (1957)........... 7, 8,9, 12

DIOGUARDI V. DURNING, 139 F.2D 774 (2p Cir. 1944)... 11

LEATHERMAN V. TARRANT COUNTY NARCOTICS

INTELLIGENCE AND COORDINATION UNIT, 507 U.S. 163

EEE Cer aan e te Cee EET 9

MARTIN V. NEW YORK STATE DEPT. OF MENTAL HYGIENE,

I ee 12

MCDONNELL DOUGLAS Corp. V. GREEN, 411 U.S. 792

EE ELS Sey Se ae ee Oe 4

ORTEZ V. WASHINGTON COUNTY, 88 F.3D 804 (9TH Cir.

I ES ee eT ee ae ll

REEVES V. SANDERSON PLUMBING PRODUCTS, INC., 530

SE HITT anon ndtneeiennnnenneienenemsetccuussienieens il

RING V. FIRST INTERSTATE MORTGAGE, INC., 984 F.2D 924

EE eC e eee 10

SCHEUER V. RHODES, 416 U.S. 232 (1974)............. 7, 8,9

SPARROW V. UNITED AIR LINES, INC., 216 F.3D 1111(D.C.

TENS ee Cone a NE 10

Statutes

I ii arene ree 1

EE en 2,4

TE Ot ccrnccnenenenecsnnsenebeonesencesenqannceses 2

ta ainsi nrenintaeeunteennietias 7

ey SEI ccnsenecnesescnsgsnsnacosnesescescoseoes 2

Rules

i aersand ce rrncrnnaciiemeacareenaes 1, 4, 9, 10

ae 2, 7, 8, 11

Akos Swierkiewicz respectfully requests the Court to

issue a writ of certiorari to review the judgment of the

United States Court of Appeals for the Second Circuit which

affirmed the order of the United States District Court for the

Southern District of New York dismissing his amended

complaint for failure to state a claim upon which relief can

be granted.

The Court of Appeals entered its judgment on March

13, 2001. App. at la. The jurisdiction of this Court is

conferred by 28 U.S.C. § 1254(1).

FEDERAL RULES OF CIVIL PROCEDURE

INVOLVED

Rule 8(aX2) of the Federal Rules of Civil Procedure

provides in relevant part: “A pleading . . . shall contain. . .

a short and plain statement of the claim showing that the

pleader is entitled to relief. . .”

Siscrimination. His national origin claim was based on Title

VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000¢e er

seq.(“Title VII”); his age discrimination claim was based on

the Age Discrimination in Employment Act of 1967, 29

U.S.C. § 621 et seq. (“ADEA”).

A. Course of Proceedings Below

The complaint was originally filed in the United

States District Court for the Eastern District of Pennsylvania

action was transferred to the United States District Court for

the Southern District of New York where Sorema is

headquartered.

After the action was transferred, Mr. Swierkiewicz

amended his complaint as of course to challenge his

dismissal on parallel grounds of national origin and age

discrimination based on Sorema's violations of New York

claims was conferred on the district court by 28 U.S.C.

§ 1367(a). Sorema then moved to dismiss the amended

complaint on the ground that it “failed to state a prima facie

After hearing oral argument, the district court

granted Sorema's motion and dismissed the amended

complaint with prejudice. App. at Sa - 10a.” Analyzing the

‘The affidavit essentially rewrote the amended complaint so that it could

be read in the light most favorable to Sorema. For example, while the

amended complaint alleged that Mr. Swierkiewicz was demoted in 1995

on account of his national origin and age, id. at { 20, the affidavit

I

“Hf

t

+

|

nor can they be reasonably inferred from those allegations.

“In its ruling, the district court stated that it did not rely on the

4

case under the rubric of McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973), it held that Mr. Swierkiewicz

had adequately pled membership in a protected class, was

perform his job and (it assumed arguendo) had

employment action. App. at 6a.

to

an

an nda Gh te a aon aided con

Mr. Swierkiewicz appealed the dismissal of his

action to the Second Circuit. Citing Rule 8(a\2) of the

Federal Rules of Civil Procedure, caselaw from this Court

and from five circuit courts of appeals, he contended that, at

the pleadings stage, his amended complaint should have

been analyzed solely to determine if he had adequately put

Sorema on notice of his discrimination claims -- and not

whether he could make out at trial a prima facie case of

discrimination under McDonnell Douglas v. Green.

Notwithstanding his argument, the Second Circuit affirmed

the district court. It too analyzed the amended complaint

under McDonnell Douglas v. Green and, h. ‘ng done so, it

dismissed Mr. Swierkiewicz's allegations as “conclusory”

and “insufficient as a matter of law to raise an inference of

discrimination.” App. at 3a and 4a.

aa

B. Statement of Facts

The facts as drawn from the mine page amended

1995, Francois Chavel, a French national and Sorema's

national, Nicholas Papadopoulo. Mr. Papadopoulo was 32

6

to perform jobs for which Mr. Swierkiewicz was more

experienced and qualified to perform.

Mr. Swierkiewicz tried to meet with Mr. Chavel to

resolve the unsatisfactory working conditions to which he

was subject, but his efforts were unavailing. Finally, on

April 14, 1997, after two years of ongoing discrimination,

Mr. Swierkiewicz sent Mr. Chavel a memo outlining his

grievances and requesting a severance package from

Sorema. Mr. Chavel did not respond to the memo. Fifteen

days later, on April 29, 1997, Mr. Chavel and Sorema's

General Counsel met with Mr. Swierkiewicz and gave him

an ultimatum: either resign without a severance package or

be fired. Mr. Swierkiewicz refused to resign; whereupon,

Mr. Chavel fired him effective that very day. There was no

valid basis for the termination; it was, rather, motivated by

Mr. Swierkiewicz's national origin and age (he was 50 at

the time). Moreover, unlike other Sorema executives who

were fired for cause and who nonetheless received generous

severance packages from the company, Mr. Swierkiewicz,

who was not fired for cause (his performance had always

been above reproach), was denied severance pay and

benefits by Sorema. This too was motivated by his national

.

REASON FOR GRANTING THE WRIT

I. The Second Circuit's Decision

Conflicts with Binding Precedent of

This Court

The Second Circuit misconceived both its role and

the applicable standard of review in affirming the dismissal

of Mr. Swierkiewicz's amended complaint. Its role was —

“necessarily a limited one.” Scheuer v. Rhodes, 416 U.S.

232, 236 (1974). “The issue is not whether a plaintiff will

ultimately prevail but whether the claimant is entitled to

offer evidence to support the claims.” Id.

To answer that question, the Second Circuit (and the

District Court before it) was required to determine whether

Mr. Swierkiewicz's amended complaint stated “a claim

upon which relief can be granted.” Rule 12(b\6),

F.R.Civ.P. ‘Ever since 1938, that has meant that a plaintiff

has the duty — but no more than this is required -- to put the

defendant on notice of the nature of his action. Conley v.

Gibson, 355 U.S. 41, 47 (1957). Fact pleading, a pre-1938

feature of code practice, has long since been abandoned in

favor of post-complaint “discovery and the other pretrial

procedures established by the Rules to disclose more

precisely the basis of both claim and defense and to define

more narrowly the disputed facts and issues.” Id. at 47-48.

claims are mot exceptions to the notice pleading

requirements of the Federal Rules. Indeed, Conley itself

was a Class action by African-American railroad clerks who

claimed their union had breached its duty of fair

representation and discriminated against them in violation of

the Railway Labor Act, 45 U.S.C. § 15] et seq. In

reversing the Rule 12(b)(6) dismissal of their complaint, this

Court rejected the union's argument that the complaint was

insufficiently fact-specific, stating:

The decisive answer to this is that the Federal

Rules of Civil Procedure do not require a

claimant to set out in detail the facts upon

which he bases his claim. To the contrary,

all the Rules require is “a short and plain

statement of the claim” that will give the

defendant fair notice of what the plaintiff's

claim is and the grounds upon which it rests.

355 U.S. at 47 (footnote omitted).

Seventeen years later, in Scheuer, another civil

against the too hasty dismissal of complaints based on their

preliminary sense that recovery was “very remote.” 416

U.S. at 236. Remoteness of recovery, the Court said, “is

not the test.” Jd. Rather, “the complaint should be

construed favorably to the pleader,” id., and allowed to

proceed through discovery and then through summary

judgment or trial. Jd. at 250. Dismissal for failure to state

a claim should only occur when “it appears beyond doubt

that the plaintiff can prove no set of facts in support of his

claim.” Jd. at 236, quoting Conley, 355 U.S. at 45-46.

Despite the holdings in Conley and Scheuer, a

number of lower federal courts continued to hold civil rights

plaintiffs to a higher pleading standard than otherwise

required by Rule &(aX(2). In 1993, the Court held that any

Leatherman v. Tarrant County Narcotics Intelligence and

Coordination Unit, 507 U.S. 163 (1993). “We think that it

9

is impossible to square the ‘heightened pleading standard’

. . . with the liberal system of ‘notice pleading’ set up by

the Federal Rules.” Jd. at 168.

Here, instead of deferring to the principle of notice

his “conclusory” allegations, App. at 3a, which, it held,

were insufficient to “raise an inference of [national origin

and age] discrimination.” Jd. at 3a-4a. The District Court

Id. at 7a (dismissing the amended complaint for alleging “in

a conclusory fashion that he was terminated as a result of

his age and national origin.”). These rulings were clearly

Five times in his amended complaint, Mr.

Swierkiewicz pled that he was fired by Sorema on account

of his national origin and his age. Id. at qq 37, 43, 45, 47

:

10

i. The Second Circuit's Decision Conflicts

With Precedent From Five Other Courts of

Appeals

has held that an employment discrimination plaintiff must

plead the elements of a McDonnell Douglas prima facie case

to withstand a defense motion to dismiss under Rule 12

(b\(6) of the Federal Rules of Civil Procedure. The five

other courts of appeals that have considered the subject --

the District of Columbia, the Third, Seventh, Eighth and

Ninth Circuits -- have all held that the McDonnell Douglas

regimen is an evidentiary standard to be used at the

summary judgment or trial stage of a discrimination case --

not one to be used at the pleadings stage to assess whether a

discrimination complaint passes muster under the practice of

notice pleading established by Rule &(a)(2) of the Federal

Rules of Civil Procedure. See, e.g., Sparrow v. United Air

Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000)

(“Sparrow did not have to make out a prima facie case of

discrimination in his complaint”); Weston v. Commonwealth

of Pennsylvania, 2001 U.S.App. LEXIS 10514 at *22 (3d

Cir. 2001) (eschewing any requirement of fact pleading and

holding that “[djiscrimination and other civil rights claims

are clearly subject to notice pleading”); Bennett v. Schmidt,

153 F.3d 516, 518 (7th Cir. 1998) (complaint need not set

out the elements of a prima facie case: “I was turned down

for a job because of my race is all a complaint has to

say” internal quotations omitted); Ring v. First Interstate

Mortgage, Inc., 984 F.2d 924, 926 (8th Cir. 1993\(“the

prima facie case . . . analysis is an evidentiary standard -- it

defines the question of proof plaintiff must present to create

a rebuttable presumption of discrimination... . Under the

Federal Rules of Civil Procedure, an evidentiary standard is

not a proper measure of whether a complaint fails to state a

has been that notice pleading is all that is required in a

complaint. The rest is left for discovery, summary

judgment or trial. “Litigants are entitled to discovery

before being put to their proof, and treating the allegations

Bennett v. Schmidt, 153 F.3d at 519 (emphasis in original).

The Second Circuit's contrary view, requiring a

*The Court's decision last term in Reeves v. Sanderson Plumbing

Products, Inc., 530 U.S. 133 (2000) confirms, albeit implicitly, that

McDonnell Douglas was intended as a means (though not the only

means) for assessing whether a plaintiff has enough evidence to take his

case to a verdict at trial — not whether he has pled enough to withstand

his employer's Rule 12(b)(6) motion to dismiss.

Dioguardi v. Durning, 139 F.2d 774 (2d Cir. 1944). There, it stated: —

Under the new rules of civil procedure there is no

pleading requirement of stating “facts sufficient to

constitute a cause of action,” but only that there be “a

12

CONCLUSION

For the reasons stated, the petition for writ of

certiorari should be granted.

Respectfully submitted,

Harold I. Goodman, Esquire

Counsel of Record

Raynes, McCarty, Binder,

Ross & Mundy

1845 Walnut Street

20th Floor

Philadelphia, PA 19103

215-568-6190

Counsel for Petitioner

Akos Swierkiewicz

short and plain statement of the claim showing that the

pleader is entitled to relief.”

Id. at T715. Dioguardi, it should be pointed out, was cited with approval

by this Court in Conley, 355 U.S. at 460.5. However, beginning in the

the kind of fact-pleading that characterized pre- 1938 code practice. See,

¢.g., Martin v. New York State Dept. of Mental Hygiene, 588 F.2d 371,

372 (2d Cir. 1978) (motion to dismiss granted because plaintiff “has

alleged only that he was denied the perquisites of his position because of

his race.”)(emphasis added).

(any footnotes trail end of each document)

No. 00-9010

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

AKOS SWIERKIEWICZ,

March 12, 2001, Decided

COUNSEL:

APPEARING FOR APPELLANT: LAUREN REITER

BRODY, Esq., Rosenman & Colin, LLP, New York, NY.

APPEARING FOR APPELLEE: HAROLD I. GOODMAN,

Esq., Raynes, McCarty, Binder, Ross & Mundy,

Philadelnhia, PA.

JUDGES:

PRESENT: Hon. John M. Walker, Jr., Chief Judge, Hon.

James L. Oakes, Hon. Guido Calabresi, Circuit Judges.

SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY

ORDERED, ADJUDGED AND DECREED that the

2a

judgment of said district court be and it hereby is

AFFIRMED.

Plaintiff-appellant Akos Swierkiewicz appeals from an

August 1, 2000 judgment of the United States District Court

for the Southern District of New York (Preska, J.) granting

Sorema's motion to dismiss appellant's claims of

discrimination based on national origin, pursuant to Title VII

of the Civil Rights Act of 1964, 42 USC. § 2000Q(e); and

age discrimination, pursuant to the Age Discrimination in

Employment Act of 1967, 29 U.S.C. § 626(c\1). On appeal,

Swierkiewicz argues that the district erred in dismissing the

complaint because the district court improperly applied a

heightened pleading requirement and, in the alternative, if he

needed to comply with a heightened pleading requirement, he

has done so and that dismissal was therefore unwarranted.

Swierkiewicz, of Hungarian descent, has been a United

States citizen since 1970. Defendant-appellee Sorema is a

reinsurance company headquartered in New York and

principally owned and controlled by a French parent

company. In April 1989, Swierkiewicz, at the age of 43,

began working for Sorema as a Senior Vice President and

Chief Underwriting Officer. In February 1995, Francois

Chavel, Sorema's President and Chief Executive Officer,

shifted Swierkiewicz's job responsibilities to marketing and

services and transferred the bulk of Swierkiewicz's

underwriting responsibilities to Nicolas Papadopoulo, a 32-

year-old French national. At the time of this transition,

Chavel stated that he wanted to "energize" the underwriting

department. Swierkiewicz states that over the next two years

he was “isolated by Mr. Chaval excluded from business

decisions and meetings and denied the opportunity to reach

his true potential at Sorema.”

In April 1997, Swierkiewicz wrote a memorandum to Mr.

Chaval outlining these grievances and concluding that he had

no choice but to leave the company providing that a suitable

We review the district court's grant of motion to dismiss

de novo. See Tarshis v. Riese Org., 211 F.3d 30, 35 (2d Cir.

2000).

"It is well settled in this Circuit that —

consisting of nothing more than naked assertions, and setting

forth no facts upon which a court could find a violation of the

Civil Rights Acts, fails to state a claim under Rule 12(6)(6)."

Martin v. New York State Dep't of Mental Hygiene, 588 F.2d

371, 372 (2d Cir. 1978); see also, Tarshis, 211 F.3d at 35.

To plead discrimination based on national origin, 4

plaintiff must allege (1) membership, (2) qualification for the

job in question, (3) an adverse employment action and (4)

circumstances that give support to an inference of

discrimination. See McDonnell Douglas Corp. v. Green, 411

U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). With

respect to national origin, the only circumstances

Swierkiewicz pled are that he is Hungarian, others at Sorema

are French, and the conclusory allegation that his termination

was motivated by national origin discrimination. We agree

with the district court that these allegations are insufficient as

a matter of law to raise an inference of discrimination.

To plead discrimination based on age, a plaintiff must

allege that (1) he is in the protected age group, (2) he is

qualified for the job, (3) he was discharged and (4) the

discharge occurred under the circumstances giving rise to an

inference of age discrimination. See Hollander v. American

Cyanamid Co., 172 F.3d 192, 198 (2d Cir.), cert. denied, 528

U.S. 965, 145 L. Ed. 2d 311, 120 S. Ct. 399 (1999). The only

circumstance that Swierkiewicz alleges gives rise to an

inference of age discrimination is Chavel's comment in 1995

4a

that Chavel wanted to “energize” the underwriting

department. We agree with the district court that this

allegation is insufficient as a matter of law to raise an

infi of discriminati

We have considered Swierkiewicz's remaining arguments

and consider them to be without merit. For the foregoing

reasons, we AFFIRM the judgment of the district court.

Sa

No. 99-Civil-12272

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

AKOS SWIERKIEWICZ,

Plaintiff,

Vv.

SOREMA, N.A.,

Defendant

July 6, 2000 Judge Preska

TRANSCRIPT.

(In Open court)

THE COURT: Won’t you be seated, counsel. We're

here today on defendant’s motion to dismiss the amended

First, | will state for the record that I do not rely on

any of the material in the Brody affidavits beyond the

Counsel agree that the only allegedly adverse

i

it

1;

q

6a

periods “may constitute relevant background evidence in a

proceeding... but separately considered... [are] merely

unfortunate event(s] in history, which [have] no present legal

consequences.”

I need not decide today to what extent these earlier

activities are relevant, as plaintiff suggests, for “context,” that

is, to show circumstances from which an inference of

discrimination can be drawn, because on the record before

me they are insufficient in any event.

Plaintiff has, in fact, adequately pled membership in a

protected class, qualification for the job in question, and |

Plaintiff goes on to state that he “found [him]self

systematically excluded, cut off from any further

participation despite [Mr. Papadopoulo's}] lack of

understanding of the U.S. marketing style.”

Plaintiff also states that: “It is evident that I have not

chaos, which is counterproductive to work efforts. In view of

the above, after long and thoughtful considerations, |

have

Plaintiff goes on to state what he considers such

complaint, following receipt of the April 14, 1997

memorandum, plaintiff's superiors gave him the option of

either resigning or being terminated. He opted to be

terminated. Plaintiff also states in the EEOC charge that his

superiors at the company told him that he had committed a

hostile act against the company by clearing out his personal

items from the office. He continues, “This all stemmed from

my untenable relationship with Nicholas Papadopoulo, (a

natural born French citizen of Greek heritage/age 33),

executive vice President and chief underwriting officer.

Finally, both in his EEOC charge and in the amended

complaint, plaintiff alleges in a conclusory fashion that he

was terminated as a result of his age and national origin.

Plaintiff alleges in his complaint at, among other places,

paragraphs 21, 24, 26 that other, in his view, less qualified

individuals were promoted beyond him and alleges at

paragraph 38 that individuals fired with cause were provided

severance packages, and plaintiff was denied a severance

8a

package. All of these are insufficient to raise an inference

that the circumstances under which plaintiff was terminated

With respect to national origin, the only mention of

national origin is that plaintiff was of Hungarian descent, that

other folks that were promoted were of different national

origins, especially Mr. Papadopoulo, who is alleged to he a

French citizen, and that there are no other Hungarians at any

level within the company. These conclusory allegations are

insufficient as a matter of law to raise an inference of

With respect to age, plaintiff makes reference to a

remark attributed to Mr. Papadopoulo—

MR. BRODY: Your Honor, excuse me. Mr. Chavel.

THE COURT:I’m sorry, Chavel. Thank you.

In February of 1995 or 1996, to the extent that Mr.

Chavel wnted to "energize" the underwriting department.

This remark was allegedly made at the time Mr.

Papadopoulo, a younger man, is alleged to have assumed

plaintiff's duties (amended complaint, paragraph 23). This

remark is insufficient to create an inference of

First, the remark is too vague to be considered age

related, even giving all inferences in plaintiff's favor.

Secondly, even if the remark were considered to be an age-

related remark, it is far too remote in time and unrelated to

the job action at issue. As I mentioned, the remark is alleged

to have taken place in February of 1995 or February of 1996.

Plaintiff's termination was in 1997, April of 1997.

Accordingly, the remark was far too remote in time.

Secondly, the remark cannot be said to have been

directed at plaintiff or his work activities in the manner

discussed by Judge Sotomayor in Cartegna v. Ogden

Services, Corp., 995 F. Supp. 459, 463 (S.D.N.Y. 1998).

Accordingly, for both those reasons, the energized remark is

insufficient to raise an inference of age discrimination.

With respect to the allegations that other folks were

and plaintiff did not. In both of these circumstances, that is,

the promotions and the severance, there are no facts alleged

which connect those actions to age or national origin

discrimination with respect to plaintiff.

Indeed, during the course of oral argument, no such

facts have been discussed in response to questions regarding

the severance allegations. Counsel concedes that there were

no facts that add to that allegation. Accordingly, even giving

all inferences to plaintiff, as 1 must, on a motion to dismiss, |

find that plaintiff has not adequately alleged a prima facie

case, in that he has not adequately alleged circumstances that

support an inference of discrimination.

Accordingly, the amended complaint is dismissed.

The federal claims are insufficient, and I decline to exercise

supplemental jurisdiction over the state claims. Because no

deficiencies in the federal claim, the dismissal is with

Counsel, have I forgotten anything?

MS. BRODY: No, your Honor.

THE COURT: Thank you. Good morning, counsel.

MR. GOODMAN: | Thank you, your Honor.

MS. BRODY: Thank you, your Honor.

10a

No. 99-Civil-12272

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

AKOS SWIERKIEWICZ,

Plaintiff,

Filed 7/31/00

Whereas the parties having appeared before this Court

and the matter having come before the Honorable Loretta A.

Preska, United States District Judge, and the Court, on July

26, 2000, having rendered its Memo Endorsed Order

dismissing the amended complaint with prejudice, it is,

ORDERED, ADJUDGED AND DECREED: That for the

reasons stated in the Court’s Memo Endorsed Order dated

July 26, 2000, the amended complaint is dismissed with

DATED: 7/31/2000

Dear Judge Preska:

I write to confirm my understanding that the Court

would have dismissed with prejudice Mr. Swierkiewicz's

amended complaint had he sought leave to amend paragraph

38 to state that the reason defendant Sorema treated him

differently than the referenced employees was on account of

his age and national origin. My understanding is drawn

from the Court’s bench ruling at the argument held on July

6, 2000.

If my understanding is correct, I do not wish to

burden the Court with a futile motion for reconsideration

pursuant to Rule 59, and wish only to ensure that the record

is clear for appeal.

If I am mistaken in my assumption, I respectfully

request that the Court consider this letter as a motion

pursuant to Rule 59 and grant plaintiff additional time to file

a memorandum of law in support of the motion.

Thank you very much.

HIG/vif

Because counsel was unable to state any additional facts to be

included in an amended complaint, any amendment would be

futile.

So ordered,

Loretta A. Preska

USDJ

Dated: 8/11/2000