Balk v. New York Institute of Technology et al

Filing 156

ORDER granting 153 Motion for Hearing; ORDER re 113 Letter MOTION for pre motion conference concerning request for modification of the March 30, 2012 deadline for the joinder of additional parties and amendment of pleadings and for leave to file Plaintiff's proposed Third Amended Complaint add filed by Dennis Balk. Ordered by Magistrate Judge A. Kathleen Tomlinson on 3/24/2014. Plaintiff's motion to amend the Second Amended Complaint is GRANTED, in part, and DENIED, in part. Specifically, Plaintiff may serve a Third Amended Complaint adding Dr. Mohamed Y. Hussein as a named Defendant on an alter ego liability theory for conspiracy to defraud. Plaintiff's motion to add claims against Dr. Hussein under Title VI I and for intentional interference with contractual rights is DENIED. Plaintiff is directed to file a copy of the Third Amended Complaint on ECF within ten (10) days and to serve Dr. Hussein in the manner set forth in the Federal Rules. Plaintiff is required to file on ECF proof of such service upon Dr. Hussein. The parties are directed to appear in Courtroom 910 for a Status Conference on April 28, 2014 at 10:30 a.m. to discuss any remaining discovery issues outlined in Plaintiff's letter of January 10, 2014 [DE 153]. SEE ATTACHED ORDER for additional information. (Rizvi, Asad)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------------X
DENNIS BALK,
MEMORANDUM
AND ORDER
CV 11-509 (JFB) (AKT)
Plaintiff,
- against NEW YORK INSTITUTE OF TECHNOLOGY
and INFOTEC CORPORATION,
Defendants.
--------------------------------------------------------------X
A. KATHLEEN TOMLINSON, Magistrate Judge:
I.

PRELIMINARY STATEMENT
Plaintiff Dennis Balk (“Plaintiff” or “Balk”) seeks leave to amend his Second Amended

Complaint to add Dr. Mohamed Y. Hussein (“Dr. Hussein”) as an individually named defendant,
pursuant to FED. R. CIV. P. 16 (b), 15(a) and 15(c). See Pl.’s Ltr. Mot. to Amend the Second Am.
Compl. (“Pl.’s Mot.”) [DE 113]. Balk brought this employment discrimination and breach of
contract action against Defendants New York Institute of Technology (“NYIT”) and Infotec
Corporation (“Infotec”) (collectively, “Defendants”). He seeks to add Dr. Hussein as a defendant
based upon recently discovered evidence that Dr. Hussein is the “alter ego” of Defendant Infotec.
Id. at 1. The Defendants have not submitted any opposition to the motion. Judge Bianco referred
Plaintiff’s motion to this Court after conducting a pre-motion conference with counsel. See
DE 115. For the reasons set forth below, the Plaintiff’s motion to amend the Second Amended
Complaint is GRANTED, in part, and DENIED, in part.

II.

BACKGROUND
A.

The Allegations

Plaintiff, who was formerly employed as the Director of the Computer Graphics
Department at NYIT’s campus in Bahrain, claims that Defendants NYIT and Infotec discriminated
against him on the basis of his race, religion, and national origin in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. Second Amended Complaint (“SAC”) ¶¶ 5869, 87-101 [DE 83]. Additionally, Plaintiff asserts claims for breach of contract against NYIT,
unlawful interference with contractual rights against Infotec, and conspiracy to defraud against
both Defendants. Id. ¶¶ 70-86, 150-139.
B.

Relevant Procedural History 1

Plaintiff filed his original Complaint against Defendants on February 1, 2011. See Compl.
[DE 1]. On May 23, 2011, NYIT filed a motion to dismiss the Complaint. DE 11. On June 13,
2011, Plaintiff moved for entry of default against Infotec for failing to appear or otherwise move in
response to the Complaint. DE 15. On that same day, Plaintiff filed his First Amended Complaint
(“FAC”) pursuant to FED. R. CIV. P. 15(a)(1)(B). DE 16.
The Clerk of the Court entered a certificate of default against Infotec on June 20, 2011.
DE 17. That notation of default was later vacated by stipulation of the parties, which Judge Bianco
“so-ordered” on August 4, 2011. DE 35. In the August 4, 2011 stipulation, counsel for Infotec
accepted service of Plaintiff’s FAC, among other things. Id. In a separate stipulation “so-ordered”
by Judge Bianco on August 26, 2011, Infotec agreed to respond to the FAC no later than
September 22, 2011. DE 39. Infotec filed its Answer on September 22, 2011. DE 41.
1

The Court notes that this action has a lengthy and complex procedural history. As such, the
Court here discusses only that portion of the procedural history which is relevant to the instant
motion to amend.
2

An Initial Conference was held before this Court on October 26, 2011, at which time NYIT
requested a stay of discovery until the disposition of its motion to dismiss. See DE 45 ¶ 5. In light
of the pending motion, the Court granted the request in part and stayed discovery, except for
limited paper discovery, pending Judge Bianco’s decision on the motion. Id. A Limited Case
Management and Scheduling Order was then entered. DE 46. The parties were advised to contact
this Court within five days of Judge Bianco’s decision if the motion was denied in whole or in part
so that a full scheduling order could be implemented. DE 45 ¶ 5. Notably, the Court explained
that
[u]nder existing Second Circuit case law, any amendments or
modifications to this Order or to the accompanying Case
Management and Scheduling Order must be approved in advance by
the Court. Therefore, the parties are not free to grant each other
extensions of any deadline set forth in these Orders. All requests for
extensions or modifications of any deadlines stated in these Orders
must be made by letter motion to the Court in advance of the
expiration of the deadline. The parties are directed to my Individual
Practice Rules for further information.
Id. ¶ 12.
On January 11, 2012, Judge Bianco heard oral argument on NYIT’s motion to dismiss the
Complaint. DE 59. After consideration of the parties’ respective positions, Judge Bianco denied
NYIT’s motion to dismiss and granted Plaintiff leave to file the FAC within thirty days. Id.
This Court then held a Telephone Status Conference with counsel on January 18, 2012.
DE 65. Of particular significance was the Court’s directive that “[i]f any party wishes to amend its
pleadings after the responses to written discovery have been evaluated, then counsel must file a
letter request for a pre-motion conference to Judge Bianco for purposes of moving to amend no
later than February 29, 2012.” Id. ¶ 3. Again, the parties were reminded that any amendments to
the scheduling order must be approved in advance by the Court. Id. ¶ 9.

3

As a result of the Conference, the Court issued an Amended Case Management and
Scheduling Order (“CMSO”) on January 18, 2012, which also set forth guidelines concerning any
modification of the discovery deadlines as well amendment of the pleadings. DE 66. The Court
advised the parties in its CMSO that these deadlines would “be enforced, and will only be
modified upon a timely showing of good cause.” Id. at VI(a) (emphasis in original). Moreover,
the Court explained that “[a] request for an extension of any deadline submitted less than 30 days
before that deadline will be considered untimely and will not be granted absent extraordinary
circumstances.” Id. at VI(b). The parties were given until February 29, 2012 to seek leave to join
additional parties or amend the pleadings. Id. at I.
On February 10, 2012, NYIT filed its Answer to the FAC. DE 70. Thereafter, by means of
a letter-motion dated February 24, 2012, Plaintiff requested an extension of time until March 30,
2012 to amend the pleadings or join additional parties. DE 71. On February 27, 2012, the Court
granted the extension. See Feb. 27, 2012 Electronic Order.
In accordance with Judge Bianco’s directives, on March 29, 2012, Plaintiff filed a lettermotion, annexing the proposed amended pleading, seeking leave to file the SAC. DE 80. NYIT’s
counsel confirmed that it consented to the filing of the SAC in an April 12, 2012 letter. DE 81.
Judge Bianco granted Plaintiff leave to file its SAC on April 19, 2012. DE 82. Judge Bianco
further directed NYIT to interpose its answer to the SAC by May 9, 2012 and cautioned that if
Infotec failed to file an answer within the time period required in the Federal Rules of Civil

4

Procedure, Plaintiff may move for default judgment against Infotec on the SAC. Id. 2 The next
day, on April 20, 2012, Plaintiff filed the SAC. DE 83. NYIT filed its Answer to the SAC on May
9, 2012. DE 90.
Both Plaintiff and NYIT filed separate letters on July 19, 2012 seeking an extension of time
to complete discovery and for an adjournment of the deadline to initiate the dispositive motion
process. DE 94, 95. Based on the circumstances presented, the Court granted that request,
extending the discovery deadline to October 1, 2012 and the deadline for initiating the dispositive
motion process to October 14, 2012. See July 20, 2012 Electronic Order. The Court advised the
parties that all other deadlines set forth in the CMSO remained in effect. Id. Subsequently, the
parties requested three brief extensions of time to complete discovery - - each of which was
granted by the Court - - and discovery was ultimately closed on October 11, 2012. See DE 99,
103, 104; see also Oct. 9, 2012 Electronic Order.
C.

Plaintiff’s Motion to Amend to Add Dr. Hussein

On November 15, 2012, Plaintiff filed a letter request for a pre-motion conference before
Judge Bianco seeking leave to (1) modify the Court’s March 30, 2012 deadline for the joinder of
additional parties and amendment of pleadings and (2) serve and file the proposed Third Amended
Complaint. See Pl.’s Mot. at 1; See Proposed Third Amended Complaint annexed as Ex. “1”
(“TAC”) to the Pl.’s Mot. [DE 113-1]. Counsel for Plaintiff argues that he has (1) good cause for
modification of the Court’s joinder/amendment deadline, (2) the TAC is a legally sufficient
2

Infotec never appeared and did not retain counsel. See DE 122. The Clerk of the Court
noted Infotec’s default on the record on March 13, 2013, pursuant to FED. R. CIV. P. 55(a) and
Local Civil Rule 55.1. See id. On August 15, 2013, Plaintiff moved for default judgment against
Infotec. See DE 129. In an Order dated November 26, 2013, Judge Bianco denied Plaintiff’s
motion for default judgment, without prejudice, in light of the Court’s finding that “Infotec’s
liability necessarily depends on the liability of NYIT” and, consequently, it would be
“inappropriate to enter a default judgment at this time.” DE 147 at 3.
5

pleading, and (3) the allegations against Dr. Hussein in the TAC “relate back” within the meaning
of FED. R. CIV. P. 15(c)(1)(C)(ii). The Defendants have not submitted any opposition to the
motion. During a November 20, 2012 conference with the parties, Judge Bianco referred
Plaintiff’s motion to amend to this Court for decision. See DE 115. 3
III.

LEGAL STANDARD
Under the Federal Rules of Civil Procedure, where a court has adopted a discovery

scheduling order, as in the instant action, it may only “be modified for good cause and with the
judge’s consent.” FED. R. CIV. P. 16(b)(4). "Where a scheduling order has been entered, the
lenient standard under Rule 15(a), which provides leave to amend 'shall be freely given,' must be
balanced against the requirement under Rule 16(b) that the Court's scheduling order 'shall not be
modified except upon a showing of good cause.'" Gullo v. City of New York, No. 12 Civ. 4523,
2013 WL 5433367, *1 (2d Cir. 2013) (quoting Grochowski v. Phoenix Constr., 318 F.3d 80, 86
(2d Cir. 2003)). Determining whether a party has established “good cause” within the meaning of
Rule 16(b) is dependent upon the party's diligence. Eberle v. Town of Southampton, No. 12 Civ.
4472, 2013 WL 6198298, at *2 (E.D.N.Y. Nov. 27, 2013); Digennaro v. Whitehair, 467 Fed.
Appx. 42, 44 (2d Cir. 2012). The balancing act between Rules 15(a) and 16(b) is necessary to
prevent a scheduling order from being rendered meaningless and undermine a court's ability to
manage its docket. Eberle, 2013 WL 6198298, at *2.
Rule 15(a) of the Federal Rules of Civil Procedure provides that in cases where a party
cannot amend as a matter of course, “a party may amend its pleading only with the opposing
party’s written consent or the court’s leave.” See FED. R. CIV. P. 15(a); see also Lucente v. Int’l
3

Although a review of the minute entry does not expressly state that this motion was
referred to this Court, the ruling referring the instant motion is found in the digital audio recording
of the November 20, 2012 conference before Judge Bianco [FTR: 12:14 – 12:22].
6

Bus. Machs. Corp., 310 F.3d 243, 258 (2d Cir. 2002); Branum v. Clark, 927 F.2d 698, 705 (2d Cir.
1991); Barber v. Hornbeck Offshore Operators, LLC, No. 11 Civ. 5520, 2014 WL 1010993, at *5
(E.D.N.Y. Mar. 17, 2014); M.E.S., Inc. v. Liberty Mut. Sur. Group, No. 10 Civ. 2798, 2014 WL
46622, at *8 (E.D.N.Y. Jan. 6, 2014). Leave to amend is within the court’s discretion. Krupski v.
Costa Crociere S. p. A., 130 S.Ct. 2485, 2489 (2010) (Rule 15(a) “gives a district court discretion
to decide whether to grant a motion to amend a pleading before trial.”); MHANY Mgmt. v. County
of Nassau, 843 F. Supp. 2d 287, 340 (E.D.N.Y. 2012) (noting that “it is ultimately within the
sound discretion of the court whether to grant leave to amend”). A court “should freely give leave
when justice so requires.” FED. R. CIV. P. 15(a); Iqbal v. Ashcroft, 574 F.3d 820, 822 (2d Cir.
2009) (quoting FED. R. CIV. P. 15(a)); Grace v. Rosenstock, 228 F.3d 40, 56 (2d Cir. 2000) (same);
Guideone Specialty Mut. Ins. Co. v. Hapletah, No. 05 Civ. 1401, 2006 WL 1455468, at *1
(E.D.N.Y. May 24, 2004) (Rule 15(a) “provides for a liberal amendment of pleadings.”).
“Amendments are generally favored because they tend to facilitate a proper decision on the
merits.” MHANY Mgmt., 843 F. Supp. 2d at 340; Allstate Ins. Co. v. Elzanaty, 916 F. Supp. 2d
273, 302 (E.D.N.Y. 2013) (same) (citing Sokolski v. Trans Union Corp., 178 F.R.D. 393, 396
(E.D.N.Y. 1998)).
Notwithstanding the foregoing principles, leave to amend may be denied where there is
“undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue
of allowance of the amendment, futility of the amendment, etc.” Williams v. Citigroup Inc., 659
F.3d 208, 213-214 (2d Cir. 2011) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)); SCS
Commc’n, Inc. v. Herrick Co., Inc., 360 F.3d 329, 345 (2d Cir. 2004) (noting that under Rule

7

15(a), “leave to amend a pleading may only be given when factors such as undue delay or undue
prejudice to the opposing party are absent”) (emphasis in original).
“To determine what constitutes prejudice, the Court considers whether the amendment
would: (i) require the opponent to expend significant additional resources to conduct discovery
and prepare for trial; (ii) significantly delay the resolution of the dispute; or (iii) prevent the
plaintiffs from bringing a timely action in another jurisdiction.” Hernandez v. Immortal Rise, Inc.,
No. 11 Civ. 4360, 2013 WL 1703529, at *4 (E.D.N.Y. Apr. 19, 2013) (internal quotations omitted)
(citing Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir.1993)); Themis Capital, LLC v.
Democratic Republic of Congo, No. 09 Civ. 1652, 2013 WL 1687198, at *4 (S.D.N.Y. Apr. 18,
2013) (same).
In assessing a futility, courts must analyze “whether a proposed pleading would be able to
withstand a dispositive pretrial motion.” Themis Capital, 2013 WL 1687198, at *6 (citing Parker
v. Columbia Pictures Indus., 204 F.3d 326, 339 (2d Cir. 2000); Touchtunes Music Corp. v. Rowe
Int’l Corp., 847 F. Supp. 2d 606, 621 (S.D.N.Y. 2012)). With respect to these factors, “[t]he party
opposing the motion for leave to amend has the burden of establishing that an amendment would
be prejudicial or futile.” See Cummings-Fowler v. Suffolk Community Coll., 282 F.R.D. 292, 296
(E.D.N.Y. 2012) (citing Blaskiewicz v. County of Suffolk, 29 F. Supp. 2d 134, 137-38 (E.D.N.Y.
1998)).
Moreover, when an amended pleading changes a party or a party’s name and the statute of
limitations has run, the party seeking the amendment must also comply with Rule 15(c). Krupski
130 S. Ct. at 2489. Rule 15(c)(1) provides in pertinent part that an amendment relates back to the
date of the original pleading when:

8

(B) the amendment asserts a claim or defense that arose out of the
conduct, transaction or occurrence set out – or attempted to be set
out – in the original pleading; or
(C) the amendment changes the party or the naming of the party
against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and
if, within the period provided by Rule 4(m) for serving the summons
and complaint, the party to be brought in by the amendment:
(i) received such notice of the action that it will not be
prejudiced in defending on the merits; and
(ii) knew or should have known that the action would have
been brought against it, but for a mistake concerning the
proper party’s identity.
FED. R. CIV. P. 15(c). Unlike Rule 15(a), which, by its terms, gives discretion to the court in
deciding whether to grant or deny a motion to amend, the language of Rule 15(c) is mandatory.
Krupski, 130 S. Ct. at 2496. Thus, it is improper to consider factors such as “undue delay” or
“dilatory motive” in considering whether an amended pleading relates back. Id.
IV.

DISCUSSION
A.

Good Cause Under Rule 16(b)(4)

Pursuant to Rule 16(b)(4), Plaintiff claims that he has asserted “good cause” to modify the
March 30, 2012 deadline to join and/or amend parties in light of the “newly discovered” evidence
revealed during two September 2012 fact depositions which first alerted Plaintiff to Dr. Hussein’s
alter ego status. See Pl.’s Mot. at 2. On September 18, 2012, Plaintiff deposed Infotec’s “agent”
in New York, Dr. Robert C. Vogt, at which time Dr. Vogt “refused to answer questions concerning
the NYIT/Infotec Litigation.” Id. During the deposition, Dr. Vogt was handed an exhibit, marked
as “Plaintiff’s Exhibit V-5” for identification. See Pl.’s Mot., Ex. “2” at 9:10-19. The transcript

9

identifies Exhibit V-5 as a “Consulting Agreement.” Id. at 9:13-15. When asked whether he had
ever seen the Consulting Agreement, Dr. Vogt responded “No.” Id. at 9:20-22.
Later on, Dr. Vogt was asked by Plaintiff’s counsel about the “other case.” See Pl.’s Mot.,
Ex. “2” at 122:4-14. In response, Dr. Vogt stated that “I don’t think that’s any of your business. It
had nothing to do with Balk.” Id. In follow-up, Plaintiff’s counsel asked whether the “other case”
involved Infotec and Dr. Vogt answered “Yes.” Id. at 122:15-16.
Two days later, on September 20, 2012, Plaintiff took the deposition of Stephen Kloepfer,
Esq., the former general counsel of NYIT. See Pl.’s Mot. at 2. Plaintiff maintains that “Dr.
Hussein’s status as the alter ego of Infotec was first ‘discovered’ at the deposition of Stephen
Kloepfer…when Mr. Kloepfer testified concerning a litigation brought by NYIT against Infotec.”
Id.
[TEXT REDACTED BY THE COURT]
Immediately following the Kloepfer deposition, Plaintiff conducted a “docket search in
New York County and discovered for the first time on September 20 or 21, 2012 that NYIT had
previously alleged, under oath, that Dr. Hussein was the alter ego of Infotec.” See Pl’s Supp. Mot.
at 2. The sworn statement appears in a civil complaint filed against Dr. Hussein, Dr. Vogt and
Infotec in New York State Supreme Court, New York County. See id. (citing NYIT v. Hussein,
Vogt, and Infotech Institute Limited (N.Y. Co. Sup. Ct. Nov. 2, 2009), Index No. 2009-603335,
Ver. Compl. annexed as Ex. “3” to Pl.’s Supp. Mot.). The complaint was verified by Leonard
Aubrey, NYIT Treasurer and Chief Financial Officer (“CFO”). Indeed, under its tenth cause of
action in that state case, NYIT alleged a claim of alter ego liability against Dr. Hussein. See Pl.’s

10

Supp. Mot., Ex. “3” ¶¶ 94-102. The pertinent allegations against Dr. Hussein in that state pleading
are as follows:
95. Hussein has made no secret of the fact that Infotech is a mere
instrumentality of his business interests, is operated for his own
personal benefit, and, for all practical purposes, “does not exist.”
96. Such contract payments as NYIT has received pursuant to the
2005 Agreement have not originated from bank accounts owned by
Infotech, but rather from bank accounts controlled by Hussein,
bearing fictitious names such as “New York Institute of Technology
Jordan” or “New York Institute of Technology-Bahrain,” or from
Hussein’s personal bank accounts.
97. In meetings with senior NYIT representatives held in New York
and in the Middle East, Hussein and Vogt have emphasized their
desire that NYIT’s contract with Infotech not be made known to the
tax and other authorities in Jordan and Bahrain, and that Infotech’s
status as a corporation doing business in Jordan and Bahrain be
actively concealed. Indeed, some of the buildings and land NYIT
occupies at its Amman, Jordan campus, pursuant to the 2005
Agreement, are owned by Hussein not by Infotech. The corporate
form of Infotech has been disregarded and has apparently been used
to perpetrate a fraud.
98. Since at least December 2005, Hussein has dominated and
controlled Infotech; has comingled funds and caused funds to be
transferred between himself and Infotech, without appropriate
documentation; has failed adequately to capitalize Infotech; and has
failed to maintain an arm’s-length relationship with Infotech.
99. As a result, Infotech lacks a corporate identity distinct from
Hussein. Infotech and Hussein operate as a single economic entity
serving only the personal business needs of Hussein.
100. On information and belief, Hussein has siphoned millions of
dollars from Infotech and transferred those funds either to himself, to
other entities under his control, or to members of his family.
101. Infotech has insufficient known assets to satisfy a judgment
against it. It would promote fraud or other injustice for the corporate
form of Infotech to be recognized, thereby shielding Hussein from
Infotech’s just debts.
11

102. Accordingly, Infotech’s corporate veil should be pierced and
Hussein, as the alter ego of Infotech, should be liable to NYIT for all
of Infotech’s obligations and liabilities in this matter.
Id. Upon learning of Dr. Hussein’s alter ego status in relation to Infotec, Plaintiff filed a letter
motion on November 15, 2012 seeking leave to amend to add Dr. Hussein as a named defendant in
this action. See generally Pl.’s Mot.
The Court finds that Plaintiff demonstrated good cause in seeking a modification of the
March 30, 2012 deadline to join parties or amend pleadings. Soon after discovering that Dr.
Hussein was a likely alter ego of Infotec, Plaintiff proceeded diligently with discovery to ascertain
a good faith basis to add Dr. Hussein as a party. First, the record reflects that Plaintiff moved to
compel the deposition of Dr. Hussein himself after his failure to appear for a telephonic deposition
on September 24, 2012. See DE 102 at 1-2. Second, Plaintiff proceeded with the depositions of
numerous NYIT witnesses, including the Rule 30(b)(6) depositions of Director of Network
Services Brian Maroldo on September 21, 2012 and Treasurer/CFO Leonard Aubrey on
September 25, 2012. See DE 103 at 1. On October 4, 2012, the Court granted the parties’ joint
application to extend discovery to continue the depositions of NYIT Rule 30(b)(6) witnesses Dr.
Richard Pizer and Bahrain Campus Dean Damon Revelas. Id at 2. Thereafter, Plaintiff filed a
letter seeking a pre-motion conference before Judge Bianco in order to move for partial summary
judgment. See DE 107.
Moreover, on October 26, 2012, Plaintiff moved to compel the continued deposition of Dr.
Vogt who, as noted above, refused to answer questions concerning the state court action brought
by NYIT against Infotec. See DE 110. Significantly, Plaintiff’s October 26, 2012 motion
contained a footnote referencing his discovery of information pointing to Dr. Hussein’s status as an

12

alter ego of Infotec. See id. at 2 fn. 3. This Court ultimately granted Plaintiff’s motion to compel
Dr. Vogt’s continued deposition in an Order dated November 19, 2012. DE 114. The next day,
the parties appeared for a conference before Judge Bianco to discuss, inter alia, Plaintiff’s motion
to amend which was ultimately referred to this Court. In light of these circumstances, the Court
finds that Plaintiff’s diligence warrants a modification of the Court’s March 30, 2012 deadline to
amend the pleadings. See Eberle, 2013 WL 6198298, at *2.
Although the primary consideration in assessing “good cause” is a party’s diligence, the
Court may also consider prejudice to the non-moving party. Here, neither NYIT nor Infotec has
submitted any opposition to Plaintiff’s motion. See Linares v. Richards, No. 08 Civ. 3243, 2009
WL 2386083, at *9 (E.D.N.Y. Aug. 3, 2009) (“The non-moving party bears the burden of
establishing why leave to amend should not be granted.”) (internal citations omitted). In addition,
Defendants have been on notice throughout the litigation of Plaintiff’s intention to seek discovery
from Dr. Hussein. Indeed, the Court previously granted Plaintiff’s motion to compel the
appearance of Dr. Hussein for a deposition. See DE 133. Further, as seen in the allegations set
forth in the state court litigation, both NYIT and Infotec have been on notice of allegations of Dr.
Hussein’s alter ego status since at least 2009 when that state court action was commenced. See
Pl.’s Supp. Mot., Ex. “3” ¶¶ 94-102. Based on these circumstances, the Court finds no prejudice to
Defendants by granting Plaintiff leave to amend to add Dr. Hussein as a defendant.
B.

Futility Under Rule 15(a)

The Court must next assess whether Plaintiff’s proposed amended pleading is a futility.
See generally TAC. Plaintiff highlighted the new allegations found in his proposed TAC.

13

Specifically, under the section of the pleading discussing the parties in this action, Plaintiff has
included the following paragraph concerning Dr. Hussein:
As verified by NYIT’s officer Leonard Aubrey on October 27, 2009,
and October 29, 2010, as set forth in Exhibit “2”, ¶ 13, Hussein is a
citizen of the United States, and a citizen of Egypt, and is, as
mentioned, President of Infotec and its overwhelming majority
shareholder. Hussein regularly travels to New York in order to attend
meetings relating to Infotec’s contract with NYIT, with NYIT
representatives at NYIT’s campuses in New York City and in Old
Westbury on Long Island, and in May of each year attends NYIT’s
annual graduation ceremonies in Old Westbury. Indeed, in a
document signed by Hussein on June 28, 2005, during Hussein’s
visit to one of NYIT’s New York campuses, it was agreed that “Dr.
Hussein will come to New York for discussion with NYIT
administrators on a regular basis - at least once every quarter,
scheduled well in advance, in addition to when we request his
attendance in New York.” Since 2005, Hussein has kept to that
schedule of quarterly meetings in New York, at one of NYIT’s New
York campuses, and NYIT maintains office space for Hussein for the
express purpose of those meetings.
TAC ¶ 22. As an initial matter, Plaintiff has prefaced the alter ego claims against Dr. Hussein with
the representation that they were previously verified by NYIT Treasurer/CFO Leonard Aubrey in
NYIT’s 2009/2010 state pleadings. Id. ¶ 150. In asserting this new claim, Plaintiff contends that
Dr. Hussein and Infotec have “refused to pay NYIT significant amounts owed to NYIT under the
express terms” of the agreement between the parties. Id. Dr. Hussein has “misappropriated and
converted to his own use” the funds owed to NYIT. Id. According to the TAC, Dr. Hussein has
“carried out a course of action under which he has used the funds paid by the students in Jordan
and Bahrain to fund his own personal and business activities, and otherwise to convert to his own
use both the cash flows and good will of NYIT.” Id. ¶ 151. On behalf of NYIT, Infotec collects
tuition and fees from NYIT students in Jordan and Bahrain and is required to make periodic
payments to NYIT from the proceeds of those tuition and fee collections. Id. ¶ 153. The TAC

14

further asserts that “Infotec and its agents also assumed the obligation to collect, on behalf of itself
and NYIT, tuition payments made by students in connection with the non-credit programs offered
at NYIT’s sites in Jordan and Bahrain; and, having custody and control of those tuition payments,
to remit to NYIT – from the proceeds of those payments – the amounts due NYIT.” Id. ¶ 154.
Further, Plaintiff alleges that in both Bahrain and Jordan, Dr. Hussein “personally directs
and controls” the process by which Infotec collects “all tuition and fees owed by students enrolled
in degree credit programs it manages for NYIT.” Id. ¶ 155. Dr. Hussein and Infotec purportedly
used “NYIT’s name and credit to fraudulently obtain loans and enter into leases without the
authorization or consent of NYIT.” Id. ¶¶ 156-57. In light of these activities, Plaintiff asserts that:
158. As verified by NYIT’s officer Leonard Aubrey on October 27,
2009, and October 29, 2010, as set forth in Exhibit “2”, ¶ 53, from
the inception of NYIT’s contractual relationship with Infotec in
2001, Hussein has dominated and controlled Infotec as his
instrumentality; Infotec’s putative “separate corporate existence” has
been a sham; Infotec’s corporate form has been entirely disregarded
by Hussein, when convenient to him and his personal business
interests; and Infotec and Hussein have acted as a single entity in
pursuing Hussein’s business interests in the Middle East.
159. As verified by NYIT’s officer Leonard Aubrey on October 27,
2009, and October 29, 2010, as set forth in Exhibit “2”, ¶ 54,
notwithstanding that NYIT has entered into various written
agreements with Infotec, Hussein – directly and through his agents –
has told senior NYIT executives, including Leonard Aubrey, NYIT’s
Chief Financial Officer and Treasurer, that “Infotec does not exist.”
160. As verified by NYIT’s officer Leonard Aubrey on October 27,
2009, and October 29, 2010, and as set forth in Exhibit “2, ¶ 55, for
the receipt of tuition and fee payments made by current or
prospective NYIT students in Bahrain and Jordan, Hussein has set up
bank accounts in Bahrain and Jordan – not in the name of Infotec –
but with fictitious account names such as “New York Institute of
Technology-Bahrain,” in Bahrain, and “New York Institute of
Technology-Jordan,” in Jordan. Hussein has also repeatedly stressed
to NYIT executives, on several occasions since 2001, his desire that
the fact that NYIT’s contract is with Infotec not be made known to
15

officials in Jordan and Bahrain because, in his words, Infotec “does
not exist” in those jurisdictions. Regardless of what Hussein may
have told the banks where the tuition funds are deposited, some of
these accounts are in the names of fictitious entities and are
controlled by Hussein, who holds the tuition funds in trust for the
benefit of NYIT.
Id. ¶¶ 158-160. In addition, Plaintiff alleges that Dr. Hussein has, on several occasions since 2001,
told NYIT executives not to disclose NYIT’s contract with Infotec to Jordanian and Bahraini
officials because Infotec does not exist in those jurisdictions. Id. ¶ 160. These actions, according
to Plaintiff, are “consistent with a scheme to evade corporate taxes, corporate registration fees, and
other charges that might be imposed on Infotec (and, derivatively, on its principal shareholder,
Hussein) in Jordan and Bahrain, should the relevant facts be disclosed to the tax and other
authorities in those jurisdictions.” Id. ¶ 161. Likewise, according to the Plaintiff, Infotec assumed
the obligation to provide NYIT with the buildings and physical facilities needed to operate a
campus in Amman. Id. ¶ 162. However, NYIT’s Leonard Aubrey verified that some of the land
and buildings used by NYIT in Amman are owned by Dr. Hussein, or an entity owned by Dr.
Hussein, and not by Infotec. Id.
Plaintiff claims that Infotec has “insufficient known assets to satisfy a judgment against it”
and, as such, any judgment NYIT obtains against Infotec should be made enforceable directly
against Dr. Hussein, as the alter ego of Infotec. TAC ¶ 163. According to the TAC, “since at least
December 2005, Hussein has dominated and controlled Infotec; has comingled funds and caused
funds to be transferred between himself and Infotec, without appropriate documentation; has failed
adequately to capitalize Infotec; and has failed to maintain an arm’s-length relationship with
Infotec.” Id. ¶ 167. In light of the fact that “Infotec lacks a corporate identity distinct from

16

Hussein,” Plaintiff claims that “Infotec and Hussein operate as a single economic entity serving
only the personal business needs of Hussein.” Id. ¶ 168.
Plaintiff asserts, on information and belief, that Dr. Hussein has siphoned millions of
dollars from Infotec and transferred those funds to himself, entities under his control, or to
members of his family. Id. ¶ 169. “It would promote a fraud or other injustice for the corporate
form of Infotec to be recognized, thereby shielding Hussein from Infotec’s just debts.” Id. ¶ 170.
Based on these circumstances, Plaintiff argues that “Infotec’s corporate veil should be pierced and
Hussein, as the alter ego of Infotec, should be held liable to NYIT for all of Infotec’s obligations
and liabilities in this matter.” Id. ¶ 171. Specifically, Plaintiff maintains that the corporate veil
should be pierced and Dr. Hussein should be held liable for all claims asserted against Infotec in
the TAC, including Intentional Interference with Contract Rights Against Infotec (Count V),
Racial Discrimination Under Title VII Against Infotec as a Joint Employer with NYIT (Count VI),
Religious Discrimination Under Title VII Against Infotec as a Joint Employer with NYIT
(Count VII), National Origin Discrimination Under Title VII Against Infotec as a Joint Employer
with NYIT (Count VIII), and Conspiracy to Commit Fraud Against NYIT and Infotec (Count IX).
Id. ¶ 172.
The Court finds that Plaintiff has set forth a plausible claim of alter ego liability against Dr.
Hussein. “To show that piercing is appropriate on an alter ego theory, [a]ctual domination, rather
than the opportunity to exercise control, must be shown.” Wajilam Exps. (Singapore) Pte, Ltd. v.
ATL Shipping Ltd., 475 F. Supp. 2d 275, 282 (S.D.N.Y. 2006) (internal citations and quotations
omitted); Automated Transaction LLC v. New York Community Bank, No. 12 Civ. 3070, 2013 WL
992423, at *4 fn. 6 (E.D.N.Y. Mar. 13, 2013). "In making an alter ego determination, a court is

17

concerned with reality and not form, and with how the corporation operated.” Wajilam, 475 F.
Supp. 2d at 282 (internal citations and quotations omitted). “Unlike the theory of agency, which
interprets a contractual relationship, alter ego examines the actual conduct of the parent vis-a-vis
its subsidiary." Id. (same). “Under New York law, piercing the corporate veil for reasons of alter
ego require plaintiff to prove that: (1) the owner exercised such control that the corporation has
become a mere instrumentality of the owner, who is the real actor; (2) the owner used this control
to commit a fraud or other wrong; and (3) the fraud or wrong results in an unjust loss or injury to
the plaintiff.” Giordano v. Thomson, 438 F. Supp. 2d 35, 48 (E.D.N.Y. 2005) (internal citations
omitted). “For a plaintiff's allegations to be sufficient, plaintiff must establish a causal
relationship -- that the injustice to plaintiff resulted from the misuse of the corporate form.” Id.
(same).
Here, Plaintiff has sufficiently alleged that Infotec and Dr. Hussein operate as a single
economic entity at the service of Dr. Hussein’s personal business interests. TAC ¶ 166. As
asserted by the Plaintiff, Dr. Hussein kept for himself the tuition and fees owed to NYIT in
personal banking accounts with fictitious names. Id. ¶ 163. Further, Dr. Hussein actively
concealed Infotec’s status as a corporate entity in Jordan and Bahrain and stressed to NYIT
executives that they should refrain from discussing Infotec with officials in those jurisdictions to
evade state regulation and oversight. Id. ¶¶ 157-59. In addition, Dr. Hussein purportedly siphoned
millions of dollars from Infotec, transferring the funds to himself, or entities controlled by himself,
or to his family members. Id. ¶ 167. Plaintiff maintains that Dr. Hussein used his control of
Infotec to perpetrate a fraud upon the Plaintiff and cause him significant damages. On these
allegations, Plaintiff has adequately set forth the elements of causes of action sounding in tort,

18

namely, intentional interference with contractual rights and conspiracy to commit fraud against
Infotec. If proven, these claims will allow Plaintiff to hold Dr. Hussein personally liable.
Moreover, an individual may be held personally liable for violations of Title VII predicated on
alter ego status. See Avila-Blum v. Casa de Cambio Delgado, Inc., 510 F. Supp. 2d 423, 429
(S.D.N.Y. 2007); Barbezat v. Arnell Group, Ltd., No. 96 Civ. 9790, 1997 WL 473484, *1
(S.D.N.Y. Aug. 19, 1997); Leykis v. NYP Holdings, Inc., 899 F. Supp. 986, 991 (E.D.N.Y.
1995); cf. Lane v. Maryhaven Center of Hope, 944 F. Supp. 158, 163 (E.D.N.Y. 1996) (applying
alter ego theory to Americans with Disabilities Act claim). Accordingly, the Court finds that the
newly pleaded cause of action against Dr. Hussein alleging alter ego liability is not futile and states
a plausible claim.
C.

Timeliness of the Proposed New Amendments

The Court next considers the timeliness of Plaintiff’s claims against Dr. Hussein. First, a
conspiracy to defraud claim must be brought within six years of the date of the fraud or two years
from the date of discovery, whichever period is longer. See ADL, LLC v. Tirakian, No. 06 Civ.
5076, 2010 WL 3925131, at *5 (E.D.N.Y. Aug. 26, 2010); Asbeka Indus. v. Travelers Indem. Co.,
831 F. Supp. 74, 80 (E.D.N.Y. 1993). Here, in light of Plaintiff’s assertion of this claim against
NYIT and Infotec in Plaintiff’s March 29, 2012 SAC, the Defendants have been on notice of this
claim since at least March 29, 2012. See SAC ¶¶ 105-139. Moreover, although the chain of events
underlying the conspiracy appears to have commenced in February 2008, Plaintiff has set forth
allegations which suggest that the conspiracy continued until at least February 23, 2010:
134. In furtherance of the conspiracy described above, counsel for
NYIT, acting on behalf of Infotec and NYIT, incorrectly stated on
February 23, 2010, that “[o]n March 2, 2008, out of concern for his
own personal safety, the Plaintiff had voluntarily left Bahrain...” and
that “[u]pon information and belief, the Plaintiff’s own conduct
19

prevented himself from securing a residence visa to return to Bahrain
which, in turn, prevented him from completing his teaching duties in
Bahrain.” (the “2010 Incorrect Statements”)(Exhibit “B” to the
Affirmation of Elan Raday in Support of NYIT’s Motion to Dismiss
[the State Court Action] dated February 23, 2010).
135. The 2010 Incorrect Statements are false because the reason
given for Plaintiff leaving Bahrain was the False Accusations
Against Plaintiff Concerning His Website, as stated by Dean
Revelas, acting on behalf of NYIT and Infotec, on March 1, 2008.
Plaintiff had no role whatsoever in the publication of the False
Accusations Against Plaintiff Concerning His Website, as alleged in
paragraph 51 above.
TAC ¶¶ 134-35. Given this timeline, Plaintiff is well within the six-year statute of limitations
governing claims of conspiracy to defraud. As such, the Court finds that Plaintiff should be
granted leave to amend against Dr. Hussein as an alter ego of Infotec on the conspiracy to defraud
claim.
By contrast, the Court notes that the statute of limitations has run on any claim of
intentional interference with contractual rights as to Dr. Hussein. See Cantu v. Flanigan, No. 05
Civ. 3580 , 2006 U.S. Dist. LEXIS 32983, at *11-12 (E.D.N.Y. May 24, 2006) (“New York has a
slightly longer statute of limitations for intentional interference with contract: three years.”) (citing
Spinap Corp. v. Cafagno, 302 A.D.2d 588 (2d Dep't 2003); N.Y. C.P.L.R. § 214[4]). “Under New
York law, a tortious interference with contract claim accrues when the plaintiff sustains damages
(as a result of a third party's breach of the contract that was tortiously interfered with).” Conte v.
County of Nassau, No. 06 Civ. 4746, 2013 WL 3878738, at *20 (E.D.N.Y. Jul. 26, 2013) (internal
citations omitted). In the proposed amended pleading, Plaintiff contends that the injuries resulting
from the actions of Infotec (i.e., Dr. Hussein) in inducing NYIT to breach its contract with Plaintiff

20

occurred in March 2008. TAC ¶¶ 82-88. As such, a cause of action for tortious interference with
contract would ordinarily be time-barred at this juncture.
Similarly, Plaintiff’s proposed Title VII claims against Dr. Hussein would generally be
barred by the statute of limitations. "Exhaustion of administrative remedies through the EEOC is
'an essential element' of [] Title VII . . . and, as such, a precondition to bringing such claims in
federal court." Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001).
Before commencing a Title VII action, a plaintiff must file a timely EEOC charge. See McPherson
v. N.Y.C. Dep't of Educ., 457 F.3d 211, 213 (2d Cir. 2006) ("Under Title VII . . . a plaintiff can sue
in federal court only after filing timely charges with the EEOC."); Legnani, 274 F.3d at 686
(finding that, under Title VII, "a claimant may bring suit in federal court only if she has filed a
timely complaint with the EEOC and obtained a right-to-sue letter."). "A Title VII claim is timebarred if the plaintiff, after filing a charge with an appropriate state or local agency, does not file a
charge with the EEOC within 300 days after 'the alleged unlawful employment practice.'"
Elmenayer v. ABF Freight Sys., Inc., 318 F.3d 130, 133 (2d Cir. 2003) (quoting 42 U.S.C.
§ 2000e-5(e)(1)). "This requirement functions as a statute of limitations . . . in that discriminatory
incidents not timely charged before the EEOC will be time-barred upon the plaintiff's suit
in district court." Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d Cir. 1998). In the
present matter, although Plaintiff timely commenced his Title VII claims against NYIT and
Infotec, he did not do so against Dr. Hussein.
Given the statute of limitations issues presented by Plaintiff’s proposed intentional
interference with contract and Title VII claims, the Court must assess whether these claims “relate

21

back” to the original Complaint within the meaning of Rule 15(c)(1)(C)(i) and (ii). 4 Initially, the
Court acknowledges that these claims arise out of the same “conduct, transaction, or occurrence set
out” in the Complaint and, as such, satisfy Rule 15(c)(1)(B). However, the Court must also
determine whether, under subsection (i), Dr. Hussein “received such notice of the action that [he]
will not be prejudiced in defending on the merits” and whether, under subsection (ii), he “knew or
should have known that the action would have been brought against [him], but for a mistake
concerning the proper party’s identity,” within 120 days of the filing of the Complaint. FED. R.
CIV. P. 15(c)(1)(C)(i) and (ii).
Here, Plaintiff contends that both Infotec and Dr. Hussein received notice of the instant
lawsuit on April 25, 2011, within 120 days of the filing of the original complaint on February 1,
2011. See DE 9. On April 25, 2011, the Clerk of the Court caused the Summons and Complaint to
be served in the care of Infotec’s registered agent, A. Kakofengitis & Co., in the Republic of
Cyprus by international registered mail, return receipt requested, in accordance with Rule
4(f)(2)(C)(ii) of the Federal Rules of Civil Procedure and Article 10(a) of the Hague Convention
on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.
Id. The Plaintiff filed a certified Receipt for Registered Mail which demonstrates that service was
4

Notwithstanding the "relation back" questions, the Court points out that there is a serious
issue whether the Title VII claims would lie against Dr. Hussein in the first instance since there is
no individual liability under Title VII in this Circuit based upon the Second Circuit's seminal
decision in Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995) abrogated on other grounds,
Burlington v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257 (1998) and its progeny. See, e.g., Lore v. City
of Syracuse, 670 F.3d 127, 169 (2d Cir. 2012); Mandell v. County of Suffolk, 316 F.3d 368, 377
(2d Cir. 2003); Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000); Carlus v. Connecticut
Dep’t of Public Health, --- F.Supp.2d ---, 2014 WL 1004104, at *4 (D. Conn. Mar. 14, 2014). As
to this issue, Plaintiff makes an argument that an individual can be held liable for a violation of
Title VII based on a theory of alter ego, relying on Avila-Blum, 519 F. Supp. 2d at 429 (citing
Barbezat, 1997 WL 473484, at *1). Because the Court finds that the Title VII claim as to Dr.
Hussein is time-barred, the Court does not address this argument.
22

made at the Cyprus-based law firm on April 25, 2011. Id. In addition, Plaintiff wrote to Dr.
Hussein at his address in Cairo, Egypt as well as in the care of NYIT-Bahrain in Manama, Bahrain
on May 4 and 5, 2011, respectively, providing additional notice to both Infotec and Dr. Hussein of
the lawsuit. See Pl.’s Mot. at 2. Since these notices came within 120 days of the filing of the
original Complaint, Plaintiff argues that he has satisfied the requirements of Rule 15(c)(1)(C)(i)
and 15(c)(1)(C)(ii).
However, Dr. Hussein disputes receiving notice of the original Complaint within 120 days
of its filing. In order for Dr. Hussein to be brought in as a defendant for these two otherwise timebarred claims, Plaintiff must show that Dr. Hussein was on notice of the February 1, 2011
Complaint within the Rule 4(m) period, or no later than June 1, 2011. See FED. R. CIV. P.
15(c)(1)(C). On June 27, 2011, Dr. Hussein submitted a declaration in support of Infotec’s motion
to vacate a default entered by the Clerk of Court in this matter. See Decl. of Mohamed Yossry
Hussein in Supp. of Mot. to Set Aside Default and to Dismiss (“Hussein Decl.”) [DE 23]. In
pertinent part, Dr. Hussein stated in his declaration that:
14. In its application for an entry of default, plaintiff stated that it
served its original complaint on the law firm of Kakofengitis & Co.
in Cyprus. That law firm was involved in the formation of Infotec,
but we have not had regular contact with them in many years.
15. Infotec did not receive a copy of the original complaint from the
law firm until we inquired about the matter after finding out that
plaintiff was seeking to enter a default against us.
Id. ¶¶ 14-15. There is no indication that Infotec is represented by its “registered agent” in Cyprus
and, hence, neither Dr. Hussein nor Infotec could have been properly served with the Summons

23

and Complaint. 5 In fact, Dr. Hussein denies that the Complaint was properly served on Infotec at
that law firm. Moreover, the law firm which ultimately appeared on behalf of Infotec in its motion
to set aside the default and dismiss the Complaint was Westerman Ball Ederer Miller & Sharfstein
- - not Kakofengitis & Co. See Aff. of Jeffrey A. Miller, Esq. in Supp. of Mot. to Set Aside
Default and to Dismiss (“Miller Aff.”) [DE 22]. In his affirmation in support of the motion,
Attorney Jeffrey A. Miller explained that “[o]n June 17, 2011, NYIT’s counsel informed me that
plaintiff had made an application for an entry of default against Infotec.” Id. ¶ 1. “I was not aware
a claim of service was made prior to that date.” Id. In addition, Attorney Miller annexed to his
affirmation a letter he sent to Plaintiff’s counsel on June 23, 2011, which stated, in relevant part,
that:
According to your motion papers, you served the original complaint
by mail on Kakofengitis & Co., a Cypriot law firm, which you claim
is allegedly Infotec’s “registered agent” in Cyprus. Regardless of
whether or not mail is an authorized form of service, and whether
that law firm is Infotec’s registered agent, the fact is that Infotec (a
company based in Egypt) never received the original complaint from
the law firm. I only learned about your claim of default from New
York Institute of Technology’s counsel.
See 6/23/11 Ltr. from Attorney Miller to Plaintiff’s Counsel annexed as Ex. “B” to the Miller Aff.
[DE 22-3] (emphasis in original). 6
Dr. Hussein’s declaration presents further evidence that neither he nor Infotec received
notice of the Complaint within the time set forth in Rule 15(c). In that declaration, Hussein states:

5

As the Court noted above, counsel for Plaintiff and Infotec ultimately entered into a
stipulation in which the parties agreed, inter alia, to vacate the Clerk’s entry of default against
Infotec and Infotec agreed to accept service of the FAC. DE 39 ¶¶ 1-2.
6

The Court notes that on March 15, 2012, Judge Bianco granted the motion by the law firm
of Westerman Ball Ederer Miller & Sharfstein to withdraw as counsel for Infotec. See DE 77.
24

15. Plaintiff also claims that his counsel sent follow-up letters to me
by international registered mail to my office in Cairo and to a post
office box for NYIT’s campus in Bahrain. See Kornfeld Aff. (Dkt.
No. 15) at ¶¶ 8-9; Exhibits “C” and “D” to Kornfeld Aff.
16. While some individual apparently signed for the letters that were
sent to NYIT’s post office box in Bahrain, those letters were never
forwarded to me. I don’t know who signed for these letters.
17. Curiously, while plaintiff claims that his counsel’s follow-up
letters were also sent to my office in Cairo, plaintiff does not attach
any registered mail certificates or other documentary evidence
reflecting that. See Exhibits “C” and “D” to Kornfeld Aff. I never
received those letters.
Id. ¶¶ 15-17.

First, although Plaintiff has provided a return receipt for the correspondence sent to

Dr. Hussein in Bahrain, Dr. Hussein maintains that he never actually received the correspondence
or Complaint at that location. See 5/4/11 Ltr. from Pl. to Dr. Hussein annexed as Ex “C” to Aff. of
Randy M. Kornfeld in Supp. of Pl.’s App. for a Certificate of Default Pursuant to FED. R. CIV. P.
55(a) and Local Civil Rule 55.1 Concerning Infotec Corporation Ex. “C” [DE 15-4]. Dr. Hussein
concedes in his declaration that someone signed for the letter sent to his post office box in Bahrain
but he argues that the letter was never personally forwarded to him. Hussein Decl. ¶ 16.
Moreover, Plaintiff’s counsel has not provided any proof to the contrary. Id. ¶ 17. Given these
uncontroverted representations, Dr. Hussein was not on notice of the two claims at issue within the
120-day Rule 4(m) period. See FED. R. CIV. P. 15(c). 7 As such, the Court cannot conclude that
the time-barred intentional interference with contract claim and the Title VII claim asserted against
Dr. Hussein in the proposed amended pleading “relate back” for purposes of Rule 15(c).

7

Given the Court’s finding that Plaintiff has not satisfied Rule 15(c)(1)(C)(i), the Court does
not need to analyze the second requirement under this provision, namely, whether Dr. Hussein
“knew or should have known that the action would have been brought against [him], but for a
mistake concerning the proper party's identity.” FED. R. CIV. P. 15(c)(1)(C)(ii).
25

V.

CONCLUSION
For the foregoing reasons, Plaintiff’s motion to amend the Second Amended Complaint is

GRANTED, in part, and DENIED, in part. Specifically, Plaintiff may serve a Third Amended
Complaint adding Dr. Mohamed Y. Hussein as a named Defendant on an alter ego liability theory
for conspiracy to defraud. Plaintiff’s motion to add claims against Dr. Hussein under Title VII and
for intentional interference with contractual rights is DENIED. Plaintiff is directed to file a copy
of the Third Amended Complaint on ECF within ten (10) days and to serve Dr. Hussein in the
manner set forth in the Federal Rules. Plaintiff is required to file on ECF proof of such service
upon Dr. Hussein.
The parties are directed to appear in Courtroom 910 for a Status Conference on
April 28, 2014 at 10:30 a.m. to discuss any remaining discovery issues outlined in Plaintiff’s letter
of January 10, 2014 [DE 153].

SO ORDERED.
Dated: Central Islip, New York
March 24, 2014
/s/ A. Kathleen Tomlinson
A. KATHLEEN TOMLINSON
U.S. Magistrate Judge

26