By Kevin M. Hogan and Sean C. McPhee, originally published in The Daily Record on 5/5/16.

Western District Case Notes

This article originally appeared in The Bulletin, the official publication of the Bar Association of Erie County. It is reprinted here with permission.

Federal Tort Claims Act

In Zeranti v. United States, et al., No. 15-CV-488EAW (Mar. 7, 2016), plaintiff commenced a Federal Tort Claims Act (FTCA) claim against the United States and a psychotherapist employed at the Veterans Administration Hospital, alleging that the doctor negligently engaged in a sexual relationship with plaintiff and then terminated it in an abrupt manner, causing him permanent emotional harm, and that the United States was vicariously liable for that negligence or liable for negligent supervision.

The Court denied the motion of the United States to dismiss both causes of action, concluding first that, merely because plaintiff alleged the negligent conduct involved sexual relations, the Court could not conclude that the conduct occurred outside the scope of the doctor’s employment, in part because plaintiff alleged the sexual relationship occurred while the doctor was continuing to treat him and at least partially in her office.

The Court also denied the motion to dismiss the negligent supervision claim because plaintiff had sufficiently alleged that the doctor’s supervisors and other VA colleagues knew or should have known of the intimate relationship but took no steps to intervene.

Employment law

In Kennedy v. State of New York, et al., No.  14-CV-990S (March  3, 2016), plaintiff sued the State, the New York State Assembly, the former State Assembly Speaker, a former State Assembly member by whom she was employed in his regional office, and that Assembly member’s Chief of Staff, asserting claims for hostile work environment and sexual harassment under Title VII of the Civil Rights Act, 42 U.S.C. §1983, and the New York State Human Rights Law. The Court granted a motion to dismiss by the State and the Assembly after finding that plaintiff was a member of the former Assemblyman’s personal staff and immediate advisors, and thus was expressly excluded from the definition of employee under Title VII.

The Court, therefore, lacked subject matter jurisdiction over her claims against the State and the Assembly. The Court also granted the former Assembly Speaker’s motion to dismiss, after finding that plaintiff had not alleged that this defendant had any knowledge, actual or constructive, of the alleged harassment toward plaintiff.

Absent any notice of the alleged misconduct and a subsequent failure to act on that knowledge, plaintiff had not plausibly alleged any personal involvement by the former Assembly Speaker and it was objectively reasonable for him to believe that his conduct did not violate the law, thus entitling him to qualified immunity.

That same lack of personal knowledge also meant that plaintiff’s human rights law claim failed on similar grounds. The Court denied the former Assemblyman’s motion to dismiss, holding that plaintiff had pled facts demonstrating more than a few isolated incidents of boorish or offensive use of language, but rather demonstrating a series of actions and incidents sufficiently pervasive to plausibly state a claim for a hostile working environment.

FLSA collective action 

In Robbins v. Blazin Wings, Inc., No. 15-CV-6340CJS (Mar. 18, 2016), dozens of servers and bartenders brought an action against their employer under the Fair Labor Standards Act (FLSA), alleging that defendant required them to perform non-tip-producing work and, as a result, was obligated to pay them at the regular minimum wage rate for that work (rather than the “tip-credit” rate).

Plaintiffs then moved for conditional certification of a nationwide FLSA collective action, contending that defendant’s practices are company-wide and occur at multiple locations throughout the country. Defendant opposed the motion on the grounds that it has official policies that require tipped employees to be paid at the minimum wage rate when performing non-tip-producing tasks, and that those policies are mandatory across all locations.

The Court first observed that the burden on a motion for preliminary certification of FLSA collective actions is less stringent than a motion for class certification under Rule 23, and then found that plaintiffs met the “low threshold” required for conditional certification, citing their submission of “consistent” affidavits from servers and bartenders who worked in eleven of defendants’ restaurants located in five different states.

The Court then rejected defendant’s opposition to the motion, finding it was directed at the merits of plaintiffs’ claims, which the Court could not consider on a motion for conditional certification. The motion therefore was granted, but the Court required plaintiffs to amend their proposed notice to potential opt-in plaintiffs to specifically advise that, if they optin, they could be required to participate in the litigation and could be responsible for a portion of defendants’ costs if plaintiffs are ultimately unsuccessful.


Removal/remand In Gold v. Stryker Corp., No. 15-CV- 470FPG (Mar. 14, 2016), plaintiff commenced an action in New York State Supreme Court to recover damages allegedly resulting from two failed surgeries.

The case was removed to U.S. District Court and two of the three defendants filed motions to dismiss. Plaintiff then moved to remand, arguing that the Court lacked subject matter jurisdiction because both he and the third named defendant are citizens of New York.

While that fact was not disputed, the Court recognized that remand would be inappropriate under the doctrine of “fraudulent joinder” if the defendants could demonstrate, by clear and convincing evidence, that there was “no possibility” plaintiff could state a claim against the non-diverse defendant.

In attempting to meet their burden, defendants argued that the allegations against the non-diverse defendant amounted to nothing more than a claim for spoliation of evidence, which is not an independent tort under New York law.

Although that is true, the Court rejected this argument, finding that plaintiff’s allegations could reasonable be understood as something other than a spoliation claim, and also finding that the non-diverse defendant could potentially be held vicariously liable for the negligence of its employees.

“Even if plaintiff’s allegations regarding causation were insufficient to state a negligence claim” against the non-diverse defendant, the Court could not conclude that there was “no possibility” of a right to relief. As a result, diversity of citizenship did not exist, the case was remanded, and defendants’ motions to dismiss were denied as moot.

Transfer of venue

In WD Encore Software, LLC v. The Software MacKiev Co., No. 6:15-cv-6566 (MAT) (Mar. 17, 2016), plaintiff asserted claims under the Lanham Act for trademark infringement. Defendant moved to dismiss or, in the alternative, for a transfer of venue to the District of Massachusetts. The Court first considered the request to transfer venue, which is governed by a two prong test: “[t]he court must first determine whether the action sought to be transferred is one that might have been brought in the transferee court” and, if so, whether “the convenience of the parties and witnesses” and “the interest of justice” make a transfer appropriate.

Because defendant is subject to personal jurisdiction in the District of Massachusetts, the Court found that the first prong was satisfied. The Court then analyzed the nine factors that are considered in connection with the second prong and found that the convenience of the parties and witnesses “weighs strongly in favor of transfer.” Finally, because the action would be transferred, defendant’s motion to dismiss was denied with leave to renew in the transferee forum.


Kevin M. Hogan is a partner with Phillips Lytle LLP where he concentrates his practice in litigation, intellectual property and environmental law. He can be reached at or (716) 847- 8331.

Sean C. McPhee is a partner with Phillips Lytle LLP where he focuses his practice on civil litigation, primarily in the area of commercial litigation. He can be reached at or (716) 504- 5749.