Solomon v., Inc.

Solomon v., Inc. et al.

                                     UNITED STATES COURT OF APPEALS
                                        FOR THE SECOND CIRCUIT

                                           SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 8th day of March, two thousand twenty-one.

                    JOSÉ A. CABRANES
                    REENA RAGGI,
                                 Circuit Judges.


                              Plaintiff-Appellant,                  20-1948





FOR PLAINTIFF-APPELLANT:                                  NORMAN A. PATTIS (New Haven, CT),
                                                          Wesley R. Mead (Astoria, NY) (on the

FOR DEFENDANTS-APPELLEES:                                 CARMEN A. NICOLAOU, White Plains,

        Appeal from a June 2, 2020 judgment of the United States District Court for the Eastern
District of New York (Edward R. Korman, Judge).

ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is

         Plaintiff-Appellant David Solomon (“Solomon”) appeals a judgment of the District Court
that dismissed with prejudice Solomon’s Amended Complaint (“Complaint”) alleging claims against
Defendants-Appellees, Inc. (“Amazon”), Whole Foods Market, Inc. (“Whole Foods”),
Jay Warren, and Defendant Jane Doe (together, “Defendants”) and that denied Solomon leave to
file a proposed Second Amended Complaint (“SAC”) on the ground of futility. Solomon’s claims
arise out of Whole Foods’s decision to ban Solomon from its stores in response to reports that
Solomon had harassed fellow shoppers and employees. As relevant to this appeal, the Complaint
asserted a claim of discrimination under the New York State Human Rights Law (“NYSHRL”),
N.Y. Exec. Law § 290 et seq and a defamation claim against Jane Doe. In addition to those two
claims, the SAC asserted a claim of religious discrimination under Title II of the Civil Rights Act of
1964 (“Title II”), 42 U.S.C.A. § 2000a et seq., and breach of duty to a business invitee. We assume the
parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on

         In a May 30, 2020 Memorandum and Order (“Memorandum and Order”), the District Court
held that the election of remedies doctrine barred Solomon’s NYSHRL claim, because Solomon had
previously filed the same claim with the New York State Department of Human Rights
(“NYDHR”). The District Court dismissed the defamation claim as time barred because Solomon
had neither named an individual defendant in place of Jane Doe within the one-year statute of
limitations nor used available tools to identify Jane Doe. Having concluded that the SAC did not
cure the defects of the Complaint as to the NYSHRL and defamation claims, the court also denied
Solomon leave to replead them. The court held that the SAC did not state a Title II religious
discrimination claim because the “allegation that [D]efendants discriminated against him because of
his religion is entirely conclusory,” 1 and therefore denied Solomon leave to plead it. Finally, the
District Court denied Solomon leave to plead his putative claim for breach of duty to a business

     Solomon v., Inc., No. 18-CV-5528 (ERK), 

2020 WL 2837007

, at *3 (E.D.N.Y. May
30, 2020).

invitee on the grounds that it was predicated on non-existent legal duties. 2 Judgment entered on June
2, 2020, and Solomon timely appealed.

        We review de novo a district court’s grant of a motion to dismiss a complaint “including its
interpretation and application of statutes of limitations.” 3 When denial of leave to amend is based on
“a determination that amendment would be futile, a reviewing court conducts a de novo review.” 4

        We agree with the District Court that the election of remedies doctrine bars Solomon’s
NYSHRL claim, that Solomon’s defamation claim is untimely, and that it would be futile to grant
Solomon leave to amend to replead those claims. We also agree that the SAC does not state a claim
for discrimination under Title II and that the SAC does not allege the existence of any legally
cognizable duty on which to predicate a claim for breach of duty to a business invitee. It would
therefore be futile to grant Solomon leave to file the SAC. Substantially for the reasons stated by the
District Court in its Memorandum and Order, we affirm the judgment of the District Court.


       We have reviewed the remaining arguments raised by Solomon on appeal and find them to
be without merit. For the foregoing reasons, we AFFIRM the June 2, 2020 judgment of the District

                                                         FOR THE COURT:
                                                         Catherine O’Hagan Wolfe, Clerk

     Principally, the asserted duties to “avoid foreseeable harm [to Solomon] due to . . . failure to
preserve . . . in-store video evidence” and “take fair and equal investigative actions.”

Id. (internal quotation marks

     Lehman XS Tr., Series 2006-GP2 by U.S. Bank Nat’l Ass’n v. GreenPoint Mortg. Funding, Inc., 

916 F.3d 116

, 123–24 (2d Cir. 2019).

4 Smith & H. v

. Hogan, 

794 F.3d 249

, 253 (2d Cir. 2015) (internal quotation marks omitted).


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