Uddoh et al v. United Healthcare et al
MEMORANDUM DECISION AND ORDER dated 5/22/17 granting defendants' 56 Motion to Dismiss. ( Ordered by Judge Brian M. Cogan on 5/22/2017 ) *Forwarded for jgm. (Guzzi, Roseann)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
HUMPHREY O. UDDOH, and PLAMEN
: MEMORANDUM DECISION AND
: 16-cv-1002 (BMC) (LB)
- against :
UNITED HEALTHCARE, GINGER
WHISPELL, and JENNIFER JABLONSKI,
COGAN, District Judge.
Plaintiffs pro se are a same sex, male couple who applied for insurance benefits through
their insurance plan in connection with their desire to parent a child using in vitro fertilization
(“IVF”) and with the help of a third-party surrogate. After initially issuing a conditional preapproval of coverage for female harvesting and implantation procedures as to one of the
insureds, the policy administrator reversed its position and denied coverage on the ground that it
had mistakenly assumed that plaintiff Plamen Koev was a woman, and since Plamen turned out
to be a man, harvesting and implantation procedures were not possible. Nor did the policy cover
third-party surrogacy, whether for heterosexual or homosexual insureds. After further
consideration, the policy administrator modified its position and agreed to pay for medical
procedures necessary for the collection of sperm from both plaintiffs, but not for the collection or
implantation of oocytes or surrogacy procedures.
Claiming that the change of position has caused them damages, plaintiffs’ amended
complaint alleges five “causes of action” styled as follows: (1) “Breach of Contract”; (2)
“Discriminatin [sic] and Overbreadth”; (3) “Promissory Estoppel”; (4) a second cause of action
for “Discrimination”; and (5) “Misrepresentation.” Defendants consist of the plan administrator
for plaintiffs’ insurance plan, United Healthcare (“United”), and two United claims
administrators, Ginger W. Whispell and Jennifer Jablonski (together with United, the “United
This is plaintiffs’ second effort to state a claim. I dismissed the initial complaint, which
had also alleged claims against plaintiffs’ insurance plan, “the Empire Plan,” finding that the
Empire Plan was not a suable entity and that plaintiffs had failed to state a claim against the
United Defendants. I granted plaintiffs leave to bring an amended complaint against the United
Defendants. The United Defendants have moved to dismiss the amended complaint under
Federal Rule of Civil Procedure 12(b)(6), and for the reasons set forth below, their motion is
Plaintiff Humphrey O. Uddoh is an attorney for the New York City Transit Authority.
His employer provides health insurance through the New York State Health Insurance Program,
which offers a plan known as the Empire Plan, under which he has been covered for almost a
decade. He added his male partner, plaintiff Plamen Koev, as an additional insured at the same
time he signed up. The application to add Koev disclosed that he was male. United acts as the
policy and/or claims administrator for Empire, and defendants Jablonski and Whispell are
employed by United.
Plaintiffs decided to start a family in early 2014. Plaintiff Uddoh applied for preapproval of certain IVF procedures which, in part, had to do with the fact that both of them had
conditions requiring some fairly serious surgery in order to collect the sperm necessary for IVF.
On May 16, 2014, he received a letter from United “confirming that the following qualified
procedures for you and Plamen Koev are a covered expense under your health benefit plan: IVF,
GIFT, ZIF, ICSI, Assisted Hatching, MESA, TESE, sperm, egg or inseminated egg procurement,
processing, egg or embryo banking determined appropriate by your physician.”1 The letter also
stated: “Please note that payment is subject to patient eligibility and Empire Plan provisions at
the time the health care services are received.”
Shortly thereafter, defendant Whispell called one of Koev’s medical care providers to
inquire whether he was male or female. After finding out that Koev was a male, Whispell
allegedly told the provider to immediately cancel the procedure.
After learning about the exchange, Uddoh contacted defendant Jablonski. At that point,
Jablonski accused Uddoh of insurance fraud, and threatened to seek recoupment of the surgical
costs that it had already paid for Uddoh’s two surgical procedures. In addition, the complaint
alleges that Jablonski and Whispell made similar accusations of fraud to the health care provider.
On November 4, 2014, United sent a letter to Koev disclaiming coverage for his portion
of “infertility services.” The letter stated that
We have completed a request for infertility services for you. Your condition is not
consistent with the Plan benefit for infertility services. You do not qualify for the
benefit because your condition is not the reason a pregnancy cannot be achieved.
In addition the plan does not provide benefits in connection with services for
Under the terms of the Empire Plan, “For the purposes of this benefit, infertility is
defined as a condition of an individual who is unable to achieve a pregnancy
because the individual and/or partner has been diagnosed as infertile by a
physician.” In addition, “Medical expenses or any other charges in connection
with surrogacy” are excluded from coverage under the Plan. Accordingly any
charges or expenses for services related to your infertility or in connection with
surrogacy are not covered.
These are all conception techniques and procedures related to assisting conception outside of the womb and/or
implantation of zygote inside the womb or a fallopian tube.
After these communications, Uddoh demonstrated to United that Koev had always been
identified as a male both in the policy application and in claims that he had previously submitted.
United thereupon agreed to modify its rejection letter. It agreed to cover the surgical procedures
for the harvesting of the sperm from both partners, their storage, and fertilization. However, it
did not agree to “procurement of oocytes” or “services rendered to a surrogate.” The basis for
this denial was that the Empire Plan expressly excludes “[m]edical expenses or any other charges
in connection with surrogacy”; “[a]ny donor compensation or fees charged in facilitating a
pregnancy”; and “[a]ny charges for services provided to a donor in facilitating a pregnancy.”
The complaint alleges that in reliance on the initial pre-procedure approval letter,
plaintiffs spent $150,000 which is not covered under the revised approval letter. Plaintiffs seek
that amount in compensatory damages, plus “$1,000,000 in punitive damages, and $3,000,000 in
Standard of Review
Federal Rule of Civil Procedure 12(b)(6) allows a party to move to dismiss a complaint
for “failure to state a claim upon which relief can be granted.” To survive a motion to dismiss, 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 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “A plaintiff’s obligation . . . requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.”
Twombly, 550 U.S. at 555. To determine if dismissal for failure to state a claim is appropriate,
the Court must “accept as true all facts alleged in the complaint” and “draw all reasonable
inferences in favor of the plaintiff.” Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 237
(2d Cir. 2007). When considering a motion to dismiss, “[t]he appropriate inquiry is not whether
a plaintiff is likely to prevail, but whether he is entitled to offer evidence to support his claims.”
Id. (internal quotation marks omitted). Although the Court must “take all of the factual
allegations in the complaint as true” for the purpose of a motion to dismiss, the Court is “not
bound to accept as true a legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at
In considering whether to dismiss a complaint under Rule 12(b)(6), the Court is
“generally limited to the facts as presented within the four corners of the complaint, to
documents attached to the complaint, or to documents incorporated within the complaint by
reference.” Taylor v. Vt. Dep’t of Educ., 313 F.3d 768, 776 (2d Cir. 2002). The Court may also
consider documents that, although not attached to the complaint as exhibits or incorporated by
reference, are “integral” to the pleading. Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004).
Ordinarily, “a pro se complaint, however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(internal quotation marks and citations omitted); see also Harris v. Mills, 572 F.3d 66, 72 (2d
Cir. 2009). Such pleadings are “to be liberally construed,” Ahlers v. Rabinowitz, 684 F.3d 53,
60 (2d Cir. 2012), and interpreted “to raise the strongest arguments that they suggest.” Graham v.
Henderson, 89 F.3d 75, 79 (2d Cir. 1996). In the instant case, however, the special solicitude to
which a pro se plaintiff is normally entitled is tempered by the fact that plaintiff Uddoh is an
attorney. See Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 86 n.4 (2d Cir. 2001) (“We note,
however, that pro se attorneys such as [the plaintiff] typically ‘cannot claim the special
consideration which the courts customarily grant to pro se parties.’”) (quoting Harbulak v.
County of Suffolk, 654 F.2d 194, 198 (2d Cir. 1981)). In addition, although plaintiff Koev is
technically appearing pro se, plaintiffs’ submissions, in which plaintiff Uddoh references himself
in the first person and the two of them in the third person plural, compel the conclusion that
Koev has de facto representation through Uddoh. The Second Circuit has suggested that these
circumstances may be taken into account in determining how much leeway to afford plaintiffs.
See Tracy v. Freshwater, 623 F.3d 90, 102 (2d Cir. 2010) (“[T]he appropriate degree of special
solicitude is not identical with regard to all pro se litigants.”).
Although plaintiffs have included enough factual detail so that the circumstances giving
rise to their claims are understandable, they are quite vague as to whether and how the various
legal theories they have asserted give rise to liability. I am inclined to allow some deference to
plaintiffs because, even though plaintiff Uddoh is an attorney and plaintiff Koev is virtually
being represented by him, plaintiffs’ submissions are similar in form and comprehensibility to
those typically received from pro se litigants. Even with that indulgence, however, plaintiffs
have failed to present any plausible legal theories.
Breach of Contract
Plaintiffs’ breach of contract claim is not based on the provisions of the Empire Plan.
Rather, in opposing defendants’ motion to dismiss, plaintiffs argue that the May 16, 2014 preapproval letter constituted “an integrated contract” through which United approved surrogacy
services for plaintiffs’ third-party surrogate. Plaintiffs also erroneously contend that the Court
may not even consider the provisions of the Empire Plan. See Sira, 80 F.3d at 67.
Plaintiffs’ theory of what happened here is entirely implausible. All of the circumstances
alleged in plaintiffs’ amended complaint point to a simple mistake of fact – that United
erroneously believed that plaintiff Koev was a woman, and therefore approved female fertility
procedures for him, then withdrew its approval upon discovery of its error because it is
biologically impossible for a male to undergo such procedures. Indeed, plaintiffs’ amended
complaint acknowledged that this is a case of mistaken approval based on United’s
misperception of Koev’s gender – not a knowing agreement to provide benefits otherwise
unavailable under the Empire Plan. Specifically, the amended complaint refers to United’s preapproval letter “as a blunder that was clearly and admittedly defendant United Healthcare's own,
unilateral mistake.” That is exactly what it was.
Plaintiffs changed their theory of the case in response to defendants’ motion to dismiss,
raising new allegations that United knew that both plaintiffs were male and knowingly agreed to
provide surrogacy procedures for plaintiffs’ third-party surrogate. A plaintiff, however, is not
permitted to interpose new factual allegations or a new legal theory in opposing a motion to
dismiss, let alone new allegations that contradict the allegations in their pleading. See Wright v.
Ernst & Young LLP, 152 F.3d 169, 178 (2d Cir. 1998) (complaint cannot be amended to add
new factual allegations in opposition to motion to dismiss); Rogers v. Hines, No. 16-cv-457,
2016 WL 7378988, at *4 (D. Conn. 2016) (“As this distinction was not included in the amended
complaint and the plaintiff cannot amend his complaint through a memorandum, the defendants’
motion to dismiss is granted . . . . ”); Tyus v. Newton, 13-cv-1486, 2015 WL 1471643, at *5 (D.
Conn. 2015) (“The plaintiff may not . . . amend the amended complaint in a memorandum in
opposition to a motion to dismiss”); K.D. ex rel. Duncan v. White Plains Sch. Dist., 921 F. Supp.
2d 197, 209 (S.D.N.Y. 2013) (“Plaintiffs cannot amend their complaint by asserting new facts or
theories for the first time in opposition to Defendants’ motion to dismiss.”); cf. Southwick
Clothing LLC v. GFT (USA) Corp., 99-cv-10452, 2004 WL 2914093, at *6 (S.D.N.Y. 2004)
(“Plaintiffs cannot survive a summary judgment motion by contradicting their own pleadings in
an effort to raise a genuine issue of fact.”).
Even if plaintiffs were permitted to change the allegations in their amended complaint,
they cannot walk away from the other facts that they have alleged. The reason they referred to
United’s pre-approval letter as a “blunder,” rather than an intentional consent to cover surrogacy
services, was that based upon all of the facts they allege and the documents upon which they
expressly rely, the characterization as a blunder is so obviously correct.
First, whatever plaintiffs mean by referring to the May 16, 2014 letter as an “integrated”
contract, the letter contained an express proviso deferring to the terms of the Empire Plan – that
any coverage was “subject to patient eligibility and Empire Plan provisions at the time the health
care services are received.” Plaintiffs cannot rely on the pre-approval letter while simultaneously
excising the proviso. In fact, the proviso is dispositive because it is undisputed that the Empire
Plan expressly excludes coverage for surrogacy services. Plaintiffs cannot plausibly contend that
United was deliberately approving coverage for surrogacy services and then incorporating into
its approval terms of insurance that prohibited such coverage. That is not only implausible, but it
makes no sense at all.
Second, the May 16, 2014 letter nowhere mentions providing surrogacy services. To the
contrary, it authorizes coverage for fertility enhancement procedures for “you [Uddoh] and
Plamen Koev.” The only reasonable reading of the letter, both standing alone and especially in
conjunction with the terms of the Empire Plan, is that United was approving the harvesting of
ovum from Plamen Koev and/or the implantation of a fertilized zygote into Plamen Koev’s
womb – either of which was impossible since Plamen Koev is a male. If United was going to
deliberately approve coverage for surrogacy services in contravention of the Empire Plan
(although even to state the premise shows its implausibility), the least United would have done
was to have referenced such services.
Third, plaintiffs’ description of United’s conduct once it discovered its error is only
consistent with the pre-approval letter having been a mistake. United’s surprise, its employees’
accusations of plaintiffs’ fraudulently attempting to obtain coverage for excluded surrogacy
services, and the ultimate resolution to cover procedures for the male fertility issues that each
plaintiff had, but not third-party surrogacy procedures, are only consistent with United having
made a mistake in issuing the May 16, 2014 letter on the assumption that plaintiff Koev was a
All of these circumstances are described in plaintiffs’ amended complaint and thus may
be considered in determining plausibility. The only potentially contrasting circumstances which
plaintiffs allege to show deliberation on United’s part is that some of plaintiff Koev’s prior
claims over the years demonstrated that he was a male. 2 But it is perfectly plausible that United
issued the pre-approval letter without checking into or appreciating the nature of plaintiff Koev’s
prior claims; it is wholly implausible, for the reasons set forth above, that knowing that plaintiff
Koev is a male, United nevertheless decided for no reason at all to provide coverage for excluded
surrogacy services. Plausibility consists of “more than a sheer possibility that a defendant has
acted unlawfully,” and a complaint that pleads facts “that are ‘merely consistent with’ a
defendant’s liability . . . ‘stops short of the line between possibility and plausibility of
‘entitlement to relief.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).
Once we conclude that United simply made a mistake, plaintiffs’ claim disintegrates.
The core inquiry in contract formation is the parties’ intent, see Klos v. Lotnicze, 133 F.3d 164,
Even though plaintiff Uddoh is an attorney, plaintiffs submitted a bundle of plaintiff Koev’s medical records ex
parte, apparently to demonstrate that United was on notice that plaintiff Koev is a male. Defendants understandably
protest the unauthorized submission, both because it was ex parte, and thus defendants have not had a chance to
review these documents, and also because, as I have advised plaintiffs previously, extraneous documents cannot be
considered on a Rule 12(b)(6) motion. In any event, the submission is immaterial; I am assuming that had United
carefully checked its records to determine plaintiff Koev’s gender (although I see no reason to charge United with
the task of anti-surrogacy policing), it would have found that plaintiff Koev is a male. That is what makes the preapproval letter a blunder, as the amended complaint alleges.
168 (2d Cir. 1997), and nothing in the language of the pre-approval letter indicates an intent to
cover surrogacy. Moreover, if plaintiffs were going to obtain a benefit not provided to anyone
else under the Empire Plan, as plaintiffs claim they did, then plaintiffs would have had to pay for
it. Consideration is an equally fundamental requirement in contract formation, see Greenberg v.
Greenberg, 646 F. App’x 31, 32 (2d Cir. 2016); Murray v. Northrop Grumman Info. Tech., Inc.,
444 F.3d 169, 178 (2d Cir. 2006), and nowhere do plaintiffs’ allegations speak to it. They paid
the same premium as every other couple, homosexual or heterosexual, and none of them received
coverage for third-party surrogacy services.
All that happened here is that United made a mistake as to plaintiff Koev’s gender, and
plaintiffs are trying to get a windfall out of it. That effort does not constitute a plausible claim
for breach of contract. 3
It is an essential element of a claim for promissory estoppel that the plaintiff reasonably
rely on a defendant’s clear and definitive promise. See Bocksel v. DG3 N. Am., Inc., No. 14CV-6015, 2016 WL 873138, at *10 (E.D.N.Y. Feb. 12, 2016). Plaintiffs cannot satisfy this
element, at least, of their promissory estoppel claim for two reasons. First, to read the preapproval letter to include coverage for third-party surrogacy services would be patently
unreasonable for the reasons discussed above. Second, attached to plaintiffs’ amended
complaint, and therefore appropriate for consideration on this motion to dismiss, are invoices,
legal and health care provider bills, and other documents showing the monetary damages that
plaintiffs purport to have sustained in reliance on the preapproval letter. Each bill is dated after
With regard to plaintiffs’ breach of contract claim and promissory estoppel claim, Whispell and Jablonski have to
be dismissed in any event. The amended complaint expressly alleges that they were acting as employees of United,
and nowhere alleges that they were taking on, or plaintiffs understood them to be taking on, personal liability for any
obligations of United.
United realized its error and issued its November 17, 2014 letter. Plaintiffs had no right to rely
on their misconstruction of the pre-approval letter once it had been revoked.
Once again, plaintiffs’ opportunism in attempting to capitalize on defendants’ mistake
does not give rise to a claim for promissory estoppel.
Although it appears in two separate counts of plaintiffs’ amended complaint, plaintiffs’
claim of discrimination may be the vaguest in the amended complaint, which is itself vague. I
assume the claim has something to do with the fact that plaintiffs are a same-sex male couple,
although I do not know for sure as nowhere in the amended complaint have they alleged that
they are members of a protected class or the basis on which they were discriminated against.
Even assuming that plaintiffs’ complaint is based upon their status as a homosexual
couple, it fails. First, there is no dispute that neither homosexual nor heterosexual couples can
obtain reimbursement for third-party surrogacy services under the Empire Plan. All couples are
treated the same. There is thus no discrimination against plaintiffs based on their sexual
More fundamentally, there is nothing illegal under New York law about discriminating
between people as an abstract matter. The New York legislature has prohibited discrimination
based on various protected categories in specified circumstances, including sexual preference,
see N.Y. Exec. L. § 291 (prohibiting employment discrimination based on sexual orientation);
N.Y.C. Admin. Code. § 8-602 (injunction available to prevent interference with legal rights of
protected groups, including sexual orientation), but if the legislature has not addressed protection
for a specific class of persons, it is not up to me to implement what other categories and
situations I personally might think require legal protection. If plaintiffs are going to claim
discrimination based on their sexual preference or orientation (again, I do not see a plausible
claim because they were treated the same as a heterosexual couple), they need to rely on a statute
that affords them such protection.
The only statutes which plaintiffs cite are New York Insurance Law § 2606 and 2607.
Once again, I will put aside the fact that even though plaintiff Uddoh is an attorney, these
statutes are nowhere referenced in the amended complaint, and thus cannot be invoked for the
first time in opposition to this motion to dismiss. See supra, at II. But even if they could, the
statutes are inapposite by their terms. Section 2606 prohibits a regulated insurance company
(which I will assume includes United) from discrimination based on “race, color, creed, national
origin, or disability.” Section 2607 prohibits discrimination based on “sex or marital status,” and
no New York case has held that this includes sexual preference. An expansive reading of the
prohibition against discrimination based on “sex” as including sexual orientation discrimination,
however, has been rejected by the Second Circuit with regard to employment rights under Title
VII. Compare Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000) (Title VII’s prohibition against
harassment based on sex does not encompass harassment based on sexual orientation) with
Christansen v. Omnicom Group, Inc., 852 F.3d 195 (2d Cir. 2017) (gender stereotyping
discrimination is actionable under Title VII).
Before we get any further afield, let us return to the point that the ongoing debate about
whether anti-discrimination statutes prohibiting sex discrimination include gender stereotyping
in the workplace has nothing to do with this case. I reference it merely to show how far removed
from the situation presented here are the only New York statutes cited by plaintiffs. If United
had knowingly approved third-party surrogacy coverage for heterosexual couples and not
homosexual couples, plaintiffs still would not have a claim because the law does not cover that
discrimination. And if § 2607 covered sexual orientation, it is undisputed that homosexual
couples and heterosexual couples are treated the same under the Empire Plan. Thus, plaintiffs
cannot satisfy either step that would be necessary for an illegal discrimination claim.
It is, once again, difficult to decipher what plaintiffs mean by this claim. The facts upon
which it is based are identical to plaintiffs’ claim for slander in their original complaint, which I
dismissed as barred by the statute of limitations. All that plaintiffs have done is change the label
of their claim, but it fares no better as a misrepresentation claim that it did as a slander claim.
First, interpreting the claim as “negligent misrepresentation,” because that is its closest
common law analogue even though plaintiffs do not use that term, it is fundamental that the
misrepresentation must be made to the plaintiff, who then reasonably relies on it. See Anschutz
Corp. v. Merrill Lynch & Co., Inc., 690 F.3d 98, 114 (2d Cir. 2012). The “misrepresentation”
label thus presents an effort by plaintiffs to fit a square peg into a round hole, because what
plaintiffs appear to be complaining about are United’s statements (previously alleged to be
slanderous) to third parties. Nobody is alleged to have relied on those, reasonably or otherwise.
Second, even if plaintiffs are contending that the pre-approval letter was a negligent
misrepresentation, the claim fails for the same reasons set forth above in connection with
plaintiffs’ promissory estoppel claim – any purported reliance on the pre-approval letter as
authorizing coverage for surrogacy services would have been unreasonable, and the invoices and
other documents annexed to the amended complaint show that they did not, in fact, rely on it.
Third, to maintain a claim for negligent misrepresentation, plaintiffs must allege a special
relationship with the speaker, and generally, the relationship between an insured and the insurer
does not amount to a special relationship. See generally Kraatz. V. USAA Casualty Insurance
Co., No. 16-CV-103, 2017 WL 876187, at *7-8 (W.D.N.Y. March 6, 2017) (finding no special
relationship between the plaintiff-insured and the defendant-insurance company necessary for a
negligent misrepresentation claim); Freeman v. MBL Life Assurance Corp., 60 F. Supp. 2d 259,
266 (S.D.N.Y.1999) (“Under New York law the relationship between an insurance company and
a policyholder is a contractual relationship, not a fiduciary one.”); Murphy v. Kuhn, 90 N.Y.2d
266, 270-71, 660 N.Y.S.2d 371 (1997) (noting that no New York court has held that an insurance
agent has a continuing duty to advise the insured); Batas v. Prudential Ins. Co. of Am., 281
A.D.2d 260, 264, 724 N.Y.S.2d 3 (1st Dep’t 2001) (“No special relationship of trust or
confidence arises out of an insurance contract between the insured and the insurer; the
relationship is legal rather than equitable . . . . ”). Indeed, United brought no special expertise to
this issue; all that plaintiffs had to do was read the Empire Plan’s policy and they would have
seen that third-party surrogacy coverage was excluded.
Finally, I note that plaintiffs offered no response in defense of this claim in their
opposition to defendants’ motion to dismiss. See Reid v. Ingerman Smith LLP, 876 F. Supp. 2d
176, 186 (E.D.N.Y. 2012) (“This Court may, and generally will, deem a claim abandoned when a
plaintiff fails to respond to a defendant’s arguments that the claim should be dismissed.”);
Sullivan v. City of New York, 14-CV-1334, 2015 WL 5025296, at *4-5 (S.D.N.Y. Aug. 25,
2015) (holding that plaintiff, an attorney proceeding pro se, abandoned his claims against certain
defendants where he failed to respond to those defendants’ motion to dismiss but continued to
pursue the claims as to other defendants). Here, plaintiffs may well have decided that there
simply was no way to avoid dismissal of their “misrepresentation” claim but in any event, they
are thus deemed to have abandoned it.
Leave to Amend
Although plaintiffs have not requested it, I have considered sua sponte whether to afford
plaintiffs leave to file a second amended complaint in light of plaintiffs’ pro se status. My
conclusion is that leave to amend would be futile. First, plaintiffs were already granted leave to
amend. Second, it is not as if the amended complaint failed because of a dearth of factual
allegations – the whole story is there, but it simply does not amount to an actionable claim.
Finally, as discussed above, plaintiffs have already introduced legal theories that were not
articulated in the amended complaint, and although I have noted that their belated advocacy
would itself constitute sufficient reason to reject those theories, I have also found that the
theories fail as a matter of law. Further leave to amend is therefore not warranted.
Defendants’ motion to dismiss is granted. The Clerk is directed to enter judgment in
favor of defendants, dismissing the amended complaint.
Digitally signed by Brian M.
Dated: Brooklyn, New York
May 22, 2017
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