FIRST AVENUE REALTY v. THE CITY OF ASBURY PARK et al

Filing 48

OPINION filed. Signed by Judge Joel A. Pisano on 10/31/2013. (jjc)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

____________________________________
FIRST AVENUE REALTY, LLC,
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:
:
Plaintiff,
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v.
:
:
THE CITY OF ASBURY PARK, et al.
:
:
:
Defendants.
:
____________________________________:

Civil Action No. 09-6321 (JAP)

OPINION

PISANO, District Judge.
This action brought by plaintiff First Avenue Realty, LLC, (“Plaintiff”) against the City
of Asbury Park (the “City”), Asbury Partners LLC (“Partners”) and iStar Financial Inc. (“iStar”,
collectively with the City and Partners, “Defendants”) arises in connection with Plaintiff’s desire
to repair and/or renovate a multi-family apartment building located in the City’s redevelopment
zone. Presently before the Court are motions by Defendants to dismiss the complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6), and a motion by Plaintiff for leave to file a Second
Amended Complaint. The Court decides the matter without oral argument pursuant to Local
Civil Rule 78.1. For the reasons below, Defendants’ motions to dismiss are granted, and
Plaintiff’s motion to amend is denied.
I. BACKGROUND
A. Procedural History
Plaintiff initiated this action in December 2009 and shortly thereafter filed its Amended
Complaint. The Defendants responded at that time by moving to dismiss the Amended

Complaint. D.I. 14 and 15. The parties then began working together in an attempt to reach an
amicable resolution of the matter, and the Defendants’ motions were denied without prejudice to
being renewed if a settlement could not be reached. D.I. 20 and 21. In April 2011 the matter
was stayed and administratively terminated while the parties continued to work to resolve the
dispute. D.I. 28. Unfortunately, the parties’ settlement efforts were not fruitful, and by letter
dated December 3, 2012 Plaintiff advised the Court that it wished to reopen the case. D.I. 33.
The Court lifted the stay and reopened the matter on January 4, 2013. D.I. 35. Several months
later, the instant motions followed.
B. Facts Alleged 1
Plaintiff is the owner of a multi-family apartment building located at 213-215 First
Avenue in Asbury Park, New Jersey. This property is located within the City’s Waterfront
Redevelopment Zone, which is governed by the City’s Waterfront Redevelopment Plan (the
“Plan”) adopted by the City’s Ordinance No. 2607, as well as the Amended and Restated
Redeveloper and Land Disposition Agreement dated October 28, 2002 between the City and
Partners. According to the Redevelopment Plan, the property is located in the prime renewal
area. Plaintiff’s apartment building consists of 32 units, 19 of which were occupied at the time
relevant to this matter.
In or about April 2008, Plaintiff applied for and received permits to do work on the
building, including replacing plywood and sheetrock in bathrooms, replacing siding and
windows, repairing a wall in the rear of the building, re-energizing the electrical service,

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Unless otherwise noted, the facts recited herein are derived from Plaintiff's Amended Complaint (D.I. 2) and are
presumed to be true for the purposes of this motion. See Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir.
2008) (In deciding a motion to dismiss pursuant to Rule 12(b)(6), courts must “accept all factual allegations as true,
construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable
reading of the complaint, the plaintiff may be entitled to relief.”). They do not represent the factual findings of the
Court.

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installing a new water shutoff valve, and replacing/repairing the roof. On June 4, 2008, while
repairs were underway, a tarp that was placed on the roof of Plaintiff’s building blew off during a
rainstorm, which resulted in significant flooding and damage to the building. The building was
evacuated and the tenants were relocated.
On June 5, 2008, the City held a hearing to determine whether the building was still
habitable, and the property was determined to be unfit for habitation. An order was issued
prohibiting occupancy of the building until a new certificate of occupancy is obtained.
On or about August 4, 2008, a construction official from the City inspected Plaintiff’s
property and found that Plaintiff was performing renovations and repairs that went beyond the
scope of the work authorized by the permits. A stop work order was issued, and Plaintiff was
prohibited from performing any additional work beyond the roofing, plumbing and siding
authorized by the previous permits. The order also required Plaintiff to submit detailed plans and
specifications before continuing.
Plaintiff did not appeal the City’s stop work order and instead sought to file the required
plans and specifications, and also applied for a new zoning permit. The new application sought
to undertake repairs and renovations necessary as a result of the storm damage to the building.
The City denied the application on August 20, 2008. In denying the application, the City
determined that the proposed work constituted “redevelopment” under the New Jersey Local
Redevelopment Housing Act, N.J.S.A. 40A:12A-3, and therefore Plaintiff would be required to
obtain “subsequent developer” status under the Plan.
The denial letter from the City advised Plaintiff of its right to file an appeal to the City’s
zoning board of adjustment. Plaintiff filed such an appeal, but later withdrew it. Subsequently,
on October 6, 2008, Plaintiff initiated an action in the Superior Court of New Jersey captioned

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First Avenue Realty, LLC v. City of Asbury Park, et al., Docket No. MON-L-4635-08. Plaintiff,
however, conceded that it failed to exhaust its administrative remedies, and on July 15, 2009, the
parties entered into a consent order dismissing the complaint without prejudice.
Plaintiff then entered into negotiations with Partners to become a subsequent developer.
The parties were unable to reach an agreement, and Plaintiff accuses Partners of failing to
negotiate in good faith. Plaintiff alleges that in the absence of an agreement with Partners, its
building remains damaged and uninhabitable.
The Amended Complaint contains nine counts. In the first count, Plaintiff alleges that it
has no remedy to resolve the impasse with Partners and, consequently, its property was taken
without just compensation in violation of the Fifth and Fourteenth Amendments. The second
count alleges that the City has unconstitutionally denied Plaintiff any economically viable use of
his property. In the third count, Plaintiff asserts that Defendants, in failing to reach an agreement
permitting Plaintiff to be designated a subsequent developer, have unconstitutionally deprived
Plaintiff of the fair rental value of its property. The fourth count alleges that the alleged taking
of Plaintiff’s property violates 42 U.S.C. § 1983 and § 1985. The fifth count alleges that
Defendants’ actions violated Plaintiff’s right to equal protection under the Fourteenth
Amendment. In the sixth count, Plaintiff alleges that it is a third party beneficiary to the
Agreement between the City and Partners and that Partners has breached that agreement by
failing to “act in good faith and to deal fairly” with Plaintiff. The seventh count alleges that
defendants conspired to restrict the use of Plaintiff’s property, thereby “violating the Fourteenth
Amendment.” In count eight, Plaintiff alleges that the “actions of the Defendants in providing an
appearance that they would enter into subsequent developer’s agreements constitutes a sham as
well as a denial of Plaintiff’s rights under the Fifth and Fourteenth Amendments.” Am. Compl.

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at ¶ 78. In the ninth count is a claim under § § 1983 and 1985 alleging a due process violation
based upon an alleged lack of a provision in the Agreement for relief from the failure of the
parties to reach a subsequent developer agreement. Plaintiff seeks various declaratory, injunctive
and monetary relief.
Plaintiff has moved to file a second amended complaint, seeking to add three new causes
of action. The first new count alleges violation of New Jersey’s Local Redevelopment and
Housing Law, N.J.S.A. 40A:12A-1, et seq. The next alleges violation of New Jersey’s
Municipal Land Use law, N.J.S.A. 40:55D-1, et seq. The last alleges that Defendants’
redevelopment activity has caused a decrease in the fair market value of Plaintiff’s property, and
Plaintiff seeks to recoup that lost value.
II. DISCUSSION
A. Motion to Dismiss Standard
Under Federal Rule of Civil Procedure 12(b)(6), a case may be dismissed for “failure to
state a claim upon which relief can be granted.” “While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual allegations, ... a plaintiff's obligation to provide
the ‘grounds' of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Therefore, in order to
withstand a motion to dismiss pursuant to 12(b)(6), “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v.
Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The plausibility standard is
satisfied “when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. The plausibility standard is

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not a “probability requirement,” but “it asks for more than a sheer possibility that a defendant has
acted unlawfully.” Id.
To decide if a complaint meets this plausibility standard and therefore, survives a motion
to dismiss, the Third Circuit has required a three step analysis: (1) the Court must “outline the
elements a plaintiff must plead to ... state a claim for relief”; (2) the Court must identify “those
allegations that are no more than conclusions and thus not entitled to the assumption of truth”;
and (3) “where there are well-pleaded factual allegations, [the Court] should assume their
veracity and then determine whether they plausibly give rise to an entitlement for relief.”
Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012); Santiago v. Warminster Twp., 629 F.3d 121,
130 (3d Cir. 2010).
In deciding a Rule 12(b)(6) motion, “a court must consider only the complaint, exhibits
attached [thereto], matters of the public record, as well as undisputedly authentic documents if
the complainant's claims are based upon these documents .” Mayer v. Belichick, 605 F.3d 223,
230 (3d Cir. 2011).
B. Jurisdiction and Ripeness
Section 1331 of Title 28 of the United States Code grants district courts “original
jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United
States.” 28 U.S.C. § 1331. Similarly, section 1343 grants
original jurisdiction of any civil action authorized by law to be commenced by
any person ... [t]o redress the deprivation, under color of any State law, statute,
ordinance, regulation, custom or usage, of any right, privilege or immunity
secured by the Constitution of the United States or by any Act of Congress
providing for equal rights of citizens or of all persons within the jurisdiction of the
United States[.]
28 U.S.C. § 1343(a)(3). It is a generally accepted principle that, if a complaint alleges federal
civil rights claims under 42 U.S.C. § 1983, then the Court has original jurisdiction pursuant to 28
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U.S.C. §§ 1331 and 1343. See, e.g., Estate of Smith v. Marasco, 318 F.3d 497, 505 (3d Cir.
2003).
Moreover, in a civil action over which a district court has original jurisdiction, the court
“shall have supplemental jurisdiction over all other claims that are so related to claims in the
action within such original jurisdiction that they form part of the same case or controversy under
Article III of the United States Constitution.” 28 U.S.C. § 1367(a). However, the district courts
retain discretion to
decline to exercise supplemental jurisdiction over a claim under subsection (a) if(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which the
district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original
jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons for declining
jurisdiction.
28 U.S.C. § 1367(c).
Further, because “a case and controversy is a prerequisite to all federal actions,” a cause
of action must meet the ripeness doctrine, which “determines when a proper party may bring an
action .” Philadelphia Fed'n of Teachers v. Ridge, 150 F.3d 319, 322-23 (3d Cir.1998) (internal
quotation marks omitted). The ripeness doctrine “prevent[s] federal courts, through avoidance of
premature adjudication, from entangling themselves in abstract disagreements.” Id. at 323
(internal quotation marks omitted). A presumption arises that “federal courts lack jurisdiction
unless the contrary appears affirmatively from the record[, and i]t is the plaintiffs' responsibility
to clearly allege facts that invoke the court’s jurisdiction.” Id. (internal quotation marks
omitted). Moreover, “‘considerations of ripeness are sufficiently important that [courts] are
required to raise the issue sua sponte even though the parties do not.’ ” County Concrete Corp. v.

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Roxbury, 442 F.3d 159, 163-64 (3d Cir. 2006) (quoting Felmeister v. Office of Attorney Ethics,
856 F.2d 529, 535 (3d Cir. 1988)).
In the context of claims asserted under the Takings Clause of the Fifth Amendment (a
“Just Compensation Takings claim”) “‘if a State provides an adequate procedure for seeking just
compensation,’ the plaintiff must have exhausted this procedure in order for his or her [Just
Compensation] Takings claim to be ripe for federal adjudication.” Id. at 167-68 (quoting
Williamson County Reg'l Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 194-95, 105 S.Ct.
3108, 87 L.Ed.2d 126 (1985)). Although “there is no requirement that a plaintiff exhaust
administrative remedies before bringing a § 1983 action[,]” the requirement that a plaintiff
exhaust state procedures established for seeking just compensation “addresses a unique aspect of
Just Compensation Takings claims.” Id. at 168 (internal quotation marks omitted). That is,
“[b]ecause the Fifth Amendment bars not just the taking of property, but the taking of property
without just compensation, a plaintiff cannot claim a violation of the Just Compensation Clause
until he or she has exhausted a state's procedure for seeking just compensation.” Id. (internal
quotation marks omitted); see also Cowell v. Palmer Twp., 263 F.3d 286, 290 (3d Cir. 2001)
(“The Supreme Court has recognized that just compensation need not be paid in advance of the
taking -- all that is required is that a reasonable, certain and adequate provision for obtaining
compensation exist at the time of the taking.” (internal quotation marks omitted)).
C. Analysis
To determine whether the Court maintains jurisdiction over this cause of action, the Court
must consider whether Plaintiff’s Amended Complaint adequately alleges federal civil rights
claims under 42 U.S.C. §§ 1983. 2 See, e.g., Estate of Smith, 318 F.3d at 505. Section 1983 itself

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Section 1983 states in relevant part: “[e] very person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person

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is not a source of substantive rights, but provides a vehicle for vindicating the violation of rights
created by the United States Constitution or federal law. See Graham v. Connor, 490 U.S. 386,
393-94, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); Morse v. Lower Merion Sch. Dist., 132 F.3d
902, 907 (3d Cir.1997). Moreover, the “under color of state law” element of section 1983 is
similar to the state action requirement of the Fourteenth Amendment in that it excludes merely
private conduct from the parameters of section 1983. See, e.g., Am. Mfrs. Mut. Ins. Co. v.
Sullivan, 526 U.S. 40, 50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999). Ultimately, “[t]o establish a
section 1983 civil rights claim, a plaintiff must demonstrate that the conduct complained of was
committed by a person acting under state law and that the conduct deprived him of rights,
privileges or immunities secured by the Constitution.” Piecknick v. Pennsylvania, 36 F.3d 1250,
1255-56 (3d Cir. 1994) (internal quotation marks omitted).
1. Federal Law Claims
Although Plaintiff’s complaint is not the most artfully drafted, the federal claims that can
be construed in the multi-count complaint are Just Compensation Takings claims, equal
protection claims, and due process claims, both procedural and substantive. Turning first to the
Just Compensation Takings claims, to assert such a claim in a federal district court, a plaintiff
must first exhaust state procedures established for seeking just compensation. As noted above,
under the Williamson ripeness test, “if a State provides an adequate procedure for seeking just
compensation,” the plaintiff must have exhausted this procedure in order for his or her Takings
claim to be ripe for federal adjudication. Williamson, 473 U.S. at 194-95, 105 S.Ct. 3108. The
Third Circuit has recognized that, for example, an inverse condemnation proceeding is a
constitutionally adequate procedure for obtaining just compensation. Brubaker v. East
within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for
redress....” 42 U.S.C. § 1983.

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Hempfield Twp., 234 Fed. Appx. 32, 36 (3d Cir. 2007). Also, in SB Bldg. Associates, L.P. v.
Borough of Milltown, 457 Fed. Appx. 154, 157-158, 2012 WL 104883, *3 (3d Cir. 2012), the
court noted
New Jersey provides an avenue of redress for property owners seeking just
compensation. According to the Appellate Division of the New Jersey Superior
Court, ‘an appropriation of property by a governmental entity or private
corporation having the power of eminent domain without its having undertaken to
condemn or pay compensation for the taking, can be redressed by the owner's
action in the nature of Mandamus to compel institution of condemnation
proceedings.’”) (quoting In re Jersey Cent. Power & Light Co., 166 N.J.Super.
540, 400 A.2d 128, 129 (1979)).
Here, Plaintiff has utterly failed to seek any compensation through any procedures
available from the state. As Plaintiff itself notes in its complaint, although Plaintiff initiated
certain state proceedings, it failed to follow through with them. Plaintiff filed but withdrew its
appeal from the decision by the City’s zoning officer that Plaintiff’s proposed repairs constituted
“redevelopment” under New Jersey’s Local Redevelopment Housing Act, N.J.S.A. 40A:12A-3.
Am. Comp. ¶ 34. Shortly after withdrawing that appeal, Plaintiff filed a Complaint in Lieu of
Prerogative Writs in the Superior Court of New Jersey against Defendants. See First Avenue
Realty LLC v. City of Asbury Park, Docket No. MON-L-4635-08. That action, however, was
dismissed by consent order based upon Plaintiff’s “failure to exhaust administrative remedies.”
Oxman Cert. Ex. A. Plaintiff then attempted to negotiate to become a subsequent developer.
However, when the parties could not reach an agreement, Plaintiff did not attempt to exercise
any of the avenues available to it under state law to obtain compensation for the resulting alleged
taking Plaintiff claims occurred. Having failed to do so, Plaintiff’s Just Compensation Takings
claims are simply not ripe for this Court’s review.
For similar reasons, Plaintiff’s due process claims also fail. The substantive component
of the Due Process Clause of the Fourteenth Amendment bars “arbitrary, wrongful government
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actions ‘regardless of the fairness of the procedures used to implement them.’” Leamer v.
Fauver, 288 F.3d 532, 546 (3d Cir. 2002). To prevail on such a claim, a plaintiff must establish
that he has a protected property interest and that a governmental actor’s behavior in depriving
him of that interest was “so egregious, so outrageous, that it may fairly be said to shock the
contemporary conscience.” Desi's Pizza, Inc. v. City of Wilkes-Barre, 321 F.3d 411, 427 (3d Cir.
2003) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 847 n. 8, 118 S.Ct. 1708, 140
L.Ed.2d 1043 (1998). To state a claim for a violation of procedural due process rights, “a
plaintiff must allege that (1) he was deprived of an individual interest that is encompassed within
the Fourteenth Amendment's protection of ‘life, liberty, or property,’ and (2) the procedures
available to him did not provide ‘due process of law.’ ” Hill v. Borough of Kutztown, 455 F.3d
225, 234 (3d Cir. 2006).
In land-use cases, substantive and procedural due process claims are subject to a “finality
rule.” Taylor Inv., Ltd. v. Upper Darby Twp., 983 F.2d 1285, 1292 (3d Cir. 1993); see also
Williamson, 473 U.S. at 199. The relevant authorities “must fully and finally determine,
whether, and to what extent, a deprivation has occurred before a federal claim is mature.”
Taylor, 983 F.2d at 1293; see also Williamson, 473 U.S. at 200. Consequently, until Plaintiff
undertakes and completes the process for seeking relief under state law, Plaintiff cannot establish
that Defendants’ violated its rights under the Due Process Clause. See Taylor, 983 F.2d at 1292.
Finally, Plaintiff’s equal protection claims also must be dismissed. The Equal Protection
Clause of the Fourteenth Amendment commands that no State shall “deny to any person within
its jurisdiction the equal protection of the laws,” which is essentially a direction that all persons
similarly situated should be treated alike. City of Cleburne, Texas v. Cleburne Living Center,
473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (citing Plyler v. Doe, 457 U.S. 202,

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216, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982); Artway v. Attorney General of New Jersey, 81 F.3d
1235, 1267 (3d Cir.1996). Its purpose “is to secure every person ... against intentional and
arbitrary discrimination, whether occasioned by express terms of a statute or by its improper
execution through duly constituted agents.” Village of Willowbrook v. Olech, 528 U.S. 562, 564,
120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000). Thus, a Plaintiff may assert a “class of one” equal
protection claim “where the plaintiff alleges that she has been intentionally treated differently
from others similarly situated and that there is no rational basis for the difference in treatment.”
Id. With respect to “class of one” claims, the Court of Appeals for the Third Circuit has held:
Our court has not had the opportunity to consider the equal protection “class of
one” theory at any length. From the text of Olech itself, however, it is clear that,
at the very least, to state a claim under that theory, a plaintiff must allege that (1)
the defendant treated him differently from others similarly situated, (2) the
defendant did so intentionally, and (3) there was no rational basis for the
difference in treatment.
Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir. 2006). To survive dismissal, a “class of
one” claim need not “name names” of persons who have been treated differently; however,
“general accusations and the invocation of the Equal Protection Clause are not enough.” See
Phillips v. County of Allegheny, 515 F.3d 224, 243–246 (3d Cir. 2008). Here, with regard to
Plaintiff’s equal protection claims, the Amended Complaint contains little more than “general
accusations” and invokes the Equal Protect Clause. This is not sufficient, and Plaintiff’s claims,
consequently, are dismissed.
2. State Law Claims
“Supplemental jurisdiction allows federal courts to hear and decide state-law claims
along with federal-law claims when they are so related to claims in the action within such
original jurisdiction that they form part of the same case or controversy.” Wisconsin Dept. of
Corrections v. Schacht, 524 U.S. 381, 387, 118 S.Ct. 2047, 141 L.Ed.2d 364 (1998) (citation and
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internal quotation marks omitted). Where a district court has original jurisdiction pursuant to 28
U.S.C. § 1331 over federal claims and supplemental jurisdiction over state claims pursuant to 28
U.S.C. § 1367(a), the district court has discretion to decline to exercise supplemental jurisdiction
if it has dismissed all claims over which it has original jurisdiction. 28 U.S.C. § 1367(c)(3);
Growth Horizons, Inc. v. Delaware County, Pennsylvania, 983 F.2d 1277, 1284–1285 (3d
Cir.1993). In exercising its discretion, “the district court should take into account generally
accepted principles of ‘judicial economy, convenience, and fairness to the litigants.’” Growth
Horizons, Inc., 983 F.2d at 1284 (quoting United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86
S.Ct. 1130, 16 L.Ed.2d 218 (1966)). Where the federal claims are dismissed at an early stage in
the litigation, courts generally decline to exercise supplemental jurisdiction over state claims.
Gibbs, 383 U.S. at 726; Growth Horizons, Inc., 983 F.2d at 1284–1285. In this case, the Court is
dismissing each of Plaintiff’s federal law claims and, therefore, to the extent that Plaintiff’s
Amended Complaint can be construed as asserting claims under state law, the Court declines to
exercise supplemental jurisdiction over Plaintiff's state law claims pursuant to 28 U.S.C. §
1367(c)(3).
D. Motion to Amend
Federal Rule of Civil Procedure 15(a) requires that leave to amend the pleadings be
granted freely “when justice so requires.” Long v. Wilson, 393 F.3d 390, 400 (3d Cir.2004).
Therefore, motions to amend should be liberally granted, absent substantial prejudice, unless
“denial can be grounded in bad faith or dilatory motive, truly undue or unexplained delay,
repeated failure to cure deficiencies by amendments previously allowed or futility of
amendment.” Lundy v. Adamar of New Jersey, Inc., 34 F.3d 1173, 1196 (3d Cir.1994) (internal
citation omitted). In light of the Court’s decision as set forth above, the Court finds that the

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proposed amendments to the complaint (i.e., the addition of three state law claims), would be
futile. Consequently, Plaintiff’s motion to amend is denied.
III. CONCLUSION
For the reasons above, Defendants’ motions to dismiss are granted. Plaintiff’s motion to
amend is denied. An appropriate Order accompanies this Opinion.

/s/ Joel A. Pisano
Joel A. Pisano, U.S.D.J.

Dated: October 31, 2013

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