Cohain et al v. Klimley et al
Filing
59
MEMORANDUM OPINION & ORDER re: 51 AMENDED MOTION for Leave to File Amended Complaint filed by Rosamaria Pagano, Carmelina Pagano, Fred Ronis, Frank Madonna, Allegra Pagano, Niccolo Pagano, Julia C. Hertlein Trust, Samuel Wald, Estelle Wald, Ariella Cohain, Barbara Demuth, Maria Pagano, Helen Singer, John Hayes, Katherine Hayes, Cynthia Cohain, Norman Wald, Yosaif Cohain, Jamie Clark, Andrew Wald, Joanna Wald, Patricia Clark, David Cohain, Laura Herz, 49 MOTION for Leave to File Amended Compl aint filed by Rosamaria Pagano, Carmelina Pagano, Fred Ronis, Frank Madonna, Allegra Pagano, Niccolo Pagano, Julia C. Hertlein Trust, Samuel Wald, Estelle Wald, Ariella Cohain, Barbara Demuth, Maria Pagano, Helen Singer, John Hayes, Katherine Hayes, Cynthia Cohain, Norman Wald, Yosaif Cohain, Andrew Wald, Jamie Clark, Joanna Wald, Patricia Clark, David Cohain, Laura Herz. Plaintiffs' amended motions for leave to amend in the Sissel and Cohain actions (09-cv-4527, Dkt. No. 27; and 08-cv5047, Dkt. No. 51) are DENIED. Plaintiffs' original motions for leave to amend in these actions (09-cv-4527, Dkt. No. 25; and 08-cv5047, Dkt. No. 49) are DENIED as moot. The Clerk of the Court is directed to terminate the motions. (Signed by Judge Paul G. Gardephe on 8/30/2011) (lmb) Modified on 8/31/2011 (lmb). Modified on 8/31/2011 (lmb).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DAVID COHAIN D.D.S., et al.,
ECF CASE
Plaintiffs,
- against -
08 Civ. 5047 (PGG)
MEMORANDUM OPINION &
ORDER
LAURA KLIMLEY, et al.,
Defendants.
D. KENT SISSEL, et al.,
ECF CASE
Plaintiffs,
09 Civ. 4527 (PGG)
- against MEMORANDUM OPINION &
ORDER
LAURA KLIMLEY, et al.,
Defendants.
PAUL G. GARDEPHE, U.S.D.J.:
These cases arise from Plaintiffs’ purchase of debt instruments (“Notes”) from
VWE Group, Inc., a greeting card company, before VWE filed a bankruptcy petition on June 1,
2004. Plaintiffs allege that they have not recovered any money on the Notes, that the Notes were
issued as part of an illegal Ponzi scheme, and that the Defendants were complicit in that scheme.
Defendant Laura Klimley served as Vice President and as a director of VWE, and Defendant
John Palmero served as an officer, director, and controller of VWE.
Plaintiffs in these actions originally brought claims for violations of the federal
securities laws and the RICO statute, as well as for fraud, fraudulent conveyance, waste of
corporate assets, self-dealing and deepening insolvency, civil conspiracy, and breach of fiduciary
duty. (See Cohain Cmplt. ¶¶ 44-81; Sissel Cmplt. ¶¶ 44-81) The Sissel plaintiffs also brought a
claim for violation of Iowa’s Blue Sky Law. (Sissel Cmplt. ¶¶ 82-87) In a Memorandum
Opinion and Order dated September 20, 2010 (“Opinion & Order”), this Court granted
Defendants’ motions to dismiss the Sissel and Cohain plaintiffs’ claims in their entirety. (08-cv5047, Dkt. No. 47; 09-cv-4527, Dkt. No. 24)
Plaintiffs in both actions now seek leave to amend their complaints to add several
new claims arising under state law: aiding and abetting fraud, aiding and abetting larceny,
conversion, aiding and abetting conversion, and money had and received. For the reasons stated
below, Plaintiffs’ motions for leave to amend their complaints will be DENIED.
BACKGROUND
The Notes held by Plaintiffs – which were offered throughout VWE’s existence –
had “terms from 90 days to 5 years, interim maturity periods of between 1 and 3 years, and
interest rates from 10 to 23%.” ( Proposed Amended Complaint (“PAC”) ¶ 13) However,
Plaintiffs allege that VWE never paid the amount owing under the Notes and that “[a]t the time
of the [bankruptcy] filing, the aggregate outstanding principal amount of the Notes [was] more
than $26 million dollars.” (PAC ¶ 13) In October 2007, Alicia Eimicke – Klimley’s sister and
VWE’s former president – was indicted on 35 counts of theft, securities fraud and racketeering in
connection with the Company’s Notes issuance program. (PAC ¶ 43) Eimicke pled guilty to
those charges on March 28, 2008, allegedly admitting that the Notes issued by the Company
were part of an “illegal [P]onzi scheme.” (Id.)
Although the Defendants here were not charged in the criminal proceeding,
Plaintiffs allege that they – in their capacities as director and officer, respectively – promoted the
issuance of the Notes despite their knowledge of VWE’s deepening insolvency. (PAC ¶ 23)
Plaintiffs also claim to have purchased Notes in reliance on the Defendants’ false representations
2
of VWE’s financial health, and allege that VWE “instituted and maintained a policy of not
disseminating” financial information to purchasers of the Notes. (PAC ¶¶ 27, 30, 34-40)
Plaintiffs further allege that “there is little or no possibility that the Company will successfully
emerge from its Chapter 11 bankruptcy filing or generate any meaningful sum from the sale of
its assets for repayment of Plaintiffs.” (PAC ¶¶ 12, 41)
In the Opinion & Order, this Court granted Defendants’ motions to dismiss the
Cohain and Sissel actions in their entirety. 1 The Court found that Plaintiffs’ Securities Exchange
Act claims were time-barred; that their RICO claims were pre-empted by Section 107 of the
Private Securities Litigation Reform Act; that the claims for fraudulent conveyance, breach of
fiduciary duty, waste of corporate assets, self-dealing, and deepening insolvency belonged to the
trustee in bankruptcy rather than to the noteholders; and that the Sissel Plaintiffs’ claim under
Iowa’s Blue Sky Law was improper because New York law governs their action. (See generally
Opinion & Order (08-cv-5047, Dkt. No. 47; 09-cv-4527, Dkt. No. 24)) This Court also found
that the Sissel and Cohain claims for fraud and civil conspiracy were inadequately pled.
The Court’s Opinion & Order gave Plaintiffs leave to amend their complaints
“within ten calendar days,” or by September 30, 2010. (Opinion & Order at 42) Plaintiffs
obtained an extension of this deadline to October 11, 2010. (08-cv-5047, Dkt. No. 48) On
October 12, 2010, Plaintiffs filed their motions for leave to file an amended complaint (08-cv5047, Dkt. No. 49; and 09-cv-4527, Dkt. No. 25), and on October 14, 2010, they filed amended
motions for leave to file an amended complaint. (08-cv-5047, Dkt. No. 51; 09-cv-4527, Dkt. No.
27) A proposed amended complaint is attached as an exhibit to each of Plaintiffs’ motions. (08-
1
The factual background and procedural history of these cases is set forth in greater detail in the
Opinion & Order. (Opinion & Order at 3-7)
3
cv-5047, Dkt. No. 51 (Ex. 1); 09-cv-4527, Dkt. No. 27 (Ex. 1)) The PAC in each case adds
causes of action for aiding and abetting fraud, aiding and abetting larceny, conversion, aiding
and abetting conversion, and money had and received, but contains no new factual allegations. 2
(PAC ¶¶ 89-106)
DISCUSSION
I.
STANDARD FOR GRANTING LEAVE TO AMEND
Under the Federal Rules of Civil Procedure, leave to amend should be “freely
give[n] . . . when justice so requires.” Fed. R. Civ. P. 15(a)(2). District courts “ha[ve] broad
discretion to decide whether to grant leave to amend.” Joblove v. Barr Labs., Inc., 429 F.3d 370,
404 (2d Cir. 2005). Leave to amend may properly be denied in cases of “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 the allowance of the
amendment, futility of amendment, etc.” Ruotolo v. City of New York, 514 F.3d 184, 191 (2d
Cir. 2007). “[W]here the plaintiff is unable to demonstrate that he would be able to amend his
complaint in a manner which would survive dismissal, opportunity to replead is rightfully
denied.” Hayden v. County of Nassau, 180 F.3d 42, 53 (2d Cir. 1999).
II.
AIDING AND ABETTING FRAUD
Plaintiffs’ proposed claim for aiding and abetting fraud (PAC ¶¶ 89-92) suffers
from the same defects as their original fraud claim. “To establish liability for aiding and abetting
fraud, the plaintiffs must show ‘(1) the existence of a fraud; (2) [the] defendant’s knowledge of
the fraud; and (3) that the defendant provided substantial assistance to advance the fraud’s
2
The proposed amended complaints also re-assert all the claims in the original complaints,
despite the Court’s Opinion & Order dismissing those claims.
4
commission.’” Lerner v. Fleet Bank, N.A., 459 F.3d 273, 292 (2d Cir. 2006) (quoting JP
Morgan Chase Bank v. Winnick, 406 F. Supp. 2d 247, 252 (S.D.N.Y. 2005) (internal quotation
marks and citations omitted)).
Here, Plaintiffs’ proposed amended complaints – like their initial complaints – fail
to plead the existence of a fraud. Federal Rule of Civil Procedure 9(b) requires a plaintiff
alleging fraud to “state with particularity the circumstances constituting fraud.” Fed. R. Civ. P.
9(b). In order to plead fraud adequately under this rule, a plaintiff must “‘(1) detail the
statements (or omissions) that the plaintiff contends are fraudulent, (2) identify the speaker, (3)
state where and when the statements (or omissions) were made, and (4) explain why the
statements (or omissions) are fraudulent.’” Eternity Global Master Fund Ltd. v. Morgan
Guaranty Trust Co., 375 F.3d 168, 187 (2d Cir. 2004) (quoting Harsco Corp. v. Segui, 91 F.3d
337, 348 (2d Cir. 1996)).
In the Opinion & Order, this Court found that Plaintiffs’ original fraud claims
failed to meet the Rule 9(b) standard:
The Cohain and Sissel Plaintiffs allege a series of misrepresentations and
omissions in general terms. Their Complaints note that “[t]he Company, at the
direction of [Klimley, Palmero and Maxine Eimicke], consistently explained to
the Plaintiffs and other investors that this practice [of not providing financial
information] was not uncommon among ‘family businesses’ and [was] not
something to be concerned about given the ‘long and profitable’ nature of the
Company.” (Cohain Cmplt. ¶ 29; Sissel Cmplt. ¶ 29)
The Cohain and Sissel Complaints also plead that “the Company actively
withheld financial information from the Plaintiffs,” and “at the direction of
officers and directors of the Company, including Defendants Klimley, Palmero
and Maxine Eimicke, actively encouraged Plaintiffs to invest in the Company . . .
by making false and misleading statements in regards to the financial status of the
Company.” (Cohain Cmplt. ¶ 30; Sissel Cmplt. ¶ 30)
The Complaints further allege that Klimley and Palmero, among others, “took
steps to actively conceal the true financial status of the Company” and “actively
5
assist[ed]” in the dissemination of false and misleading statements. (Cohain
Cmplt. ¶¶ 35, 56; Sissel Cmplt. ¶ 35, 56)
These allegations are not sufficient to satisfy the requirements of Rule 9(b).
Although the Cohain and Sissel Complaints each consume nearly fifty pages
(exclusive of exhibits), they fail to “identify the speaker” of the alleged false
representations, or the person who failed to disclose the required information, and
do not “state where and when the statements (or omissions) were made.” See
Eternity Global Master Fund Ltd., 375 F.3d at 186-87; Odyssey Re Ltd. v. Stirling
Cooke Brown Holdings Ltd., 85 F. Supp. 2d 282, 293 (S.D.N.Y. 2000) (“In cases
where the alleged fraud consists of an omission and the plaintiff is unable to
specify the time and place because no act occurred, the complaint must still
allege: (1) what the omissions were; (2) the person responsible for the failure to
disclose; (3) the context of the omissions and the manner in which they misled the
plaintiff, and (4) what defendant obtained through the fraud.”); see also Lerner v.
Fleet Bank, N.A., 459 F.3d 273, 291 (2d Cir. 2006) (affirming the district court’s
dismissal of fraud claims under New York law where plaintiffs did not point to
specific misrepresentations on which they relied).
(Opinion & Order at 36-37)
The proposed amended complaints suffer from the same defects. They do not – in
any fashion – flesh out the factual allegations that this Court previously found inadequate to state
a claim for fraud. Instead, Plaintiffs once again allege a series of omissions and representations
in general terms. (PAC ¶¶ 29, 30, 35, 36) Because of the inadequacies of Plaintiffs’ factual
allegations concerning their aiding and abetting fraud claims, the amendment they propose
would be futile.
II.
AIDING AND ABETTING LARCENY
The proposed amended complaints set forth a claim for “aiding and abetting
larceny.” (PAC ¶¶ 93-96) Larceny is defined in New York Penal Law § 155.05, and may not be
pled as a separate cause of action in a civil case. See Crandall v. Bernard, Overton & Russell,
133 A.D.2d 878, 876 (2d Dept. 1987), appeal dismissed, 70 N.Y.2d 940 (1988) (“[E]xtortion,
perjury, attempted grand larceny, harassment and coercion constitute[] criminal offenses
specifically defined in the Penal Law and, as such, are improperly pleaded as separate causes of
6
action in . . . [a] civil action.”); see also Montalvo v. J.P. Morgan Chase & Co., 2009 WL
4893939, at *6 (N.Y. Sup. Ct. Dec. 18, 2009) (“[C]riminal offenses such as larceny, which are
specifically defined in the Penal Law, may not be pleaded as separate causes of action in a civil
action”). 3
Assuming arguendo that a private right of action exists for aiding and abetting
larceny, Plaintiffs’ proposed claim is futile, because Plaintiffs fail to plead the elements of an
underlying larceny. Under New York Penal Law § 155.05, a person is guilty of larceny “when,
with intent to deprive another of property or to appropriate the same to himself or to a third
person, he wrongfully takes, obtains or withholds such property from an owner thereof.”
N.Y.P.L. § 155.05(1). Execution of a scheme to defraud can constitute larceny “by false
promise”:
A person obtains property by false promise when, pursuant to a scheme to
defraud, he obtains property of another by means of a representation, express or
implied, that he or a third person will in the future engage in particular conduct,
and when he does not intend to engage in such conduct or, as the case may be,
does not believe that the third person intends to engage in such conduct.
3
“The test, in general, for determining whether [a private] right of action implicitly derives from
a criminal statute depends upon satisfaction of all of the following factors: whether plaintiff is of
a class for whose benefit the statute was enacted, whether recognition of such a right of action
would promote the legislative purpose, and whether creation of such a right would be consistent
with the legislative scheme.” Sardanis v. Sumitomo Corp., 279 A.D.2d 225, 229 (1st Dept.
2001). Plaintiffs do not cite this test, much less demonstrate that their claim meets the test’s
requirements. Plaintiffs have likewise not cited any case recognizing such a right of action, and
this Court is not aware of any such case.
Plaintiffs cite one unpublished 1950 case for the proposition that “a violation of a penal statu[t]e
may also constitute a civil tort.” (Pltfs. Reply Br. at 10 (citing Hillside Realty Corp. v. Norton,
198 Misc. 203 (Cty. Ct. 1950)). This citation does not demonstrate that a civil action may be
premised on a claim for aiding and abetting larceny.
7
N.Y.P.L. § 155.05(2)(d). However, “the defendant’s intention or belief that the promise would
not be performed may not be established by or inferred from the fact alone that such promise was
not performed.” Id. Instead, a showing of larceny by false promise “may be based only upon
evidence establishing that the facts and circumstances of the case are wholly consistent with
guilty intent or belief and wholly inconsistent with innocent intent or belief.” Id.
As with their fraud claim, Plaintiffs have not pled the substance of the false
promises – or of the “representation[s], express or implied” – that form the basis of the alleged
larceny. N.Y.P.L. § 155.05(2)(d). Instead, they have generally alleged that the Company
“explained to the Plaintiffs and other investors that [their allegedly opaque business practices]
[were] not uncommon among ‘family businesses,’” that “the Company actively withheld
financial information from the Plaintiffs,” and that officers of the Company – including
Defendants – “actively encouraged Plaintiffs to invest in the Company . . . by making false and
misleading statements in regards to the financial status of the Company.” (PAC ¶¶ 29-30)
These allegations do not identify with particularity any “representation,
express or implied, that [the Defendants] or a third person will in the future engage in particular
conduct.” N.Y.P.L. § 155.05(2)(d). Nor do they identify the speakers of any alleged
misrepresentations, instead referring in general terms to misrepresentations by “the Company.”
Finally, they do not present a version of the facts that is “wholly inconsistent with innocent intent
or belief.” N.Y.P.L. § 155.05. Accordingly – even assuming that a private right of action exists
for “aiding and abetting larceny” – Plaintiffs have not sufficiently pleaded the elements of an
underlying larceny. As a result, their proposed claim for aiding and abetting larceny is futile.
8
III.
CONVERSION
The proposed amended complaints also add claims for conversion and for aiding
and abetting conversion. 4 (PAC ¶¶ 97-102) Plaintiffs allege that Defendants “unlawfully
converted the amount of Plaintiff’s investments that was stolen from Plaintiffs for their own
purposes and in order to illegally enrich themselves and their family members by way of the
payments and distributions made to the Defendants or for the benefit of the Defendants.” (PAC
¶ 98)
The conversion claims are futile. “[T]o establish a cause of action in conversion,
the plaintiff must show legal ownership or an immediate superior right of possession to a specific
identifiable thing and must show that the defendant exercised an unauthorized dominion over the
thing in question. . . . Tangible personal property or specific money must be involved.”
4
In their reply brief, Plaintiffs ask that the conversion claims in their proposed amended
complaints be treated as claims for equitable disgorgement. See Pltfs. Reply Br. at n. 9
(“Plaintiffs agree that Plaintiffs’ claims for conversion and money had and received should be
more properly captioned as a claim for equitable disgorgement. [If given leave to amend],
Plaintiffs will withdraw their claims for conversion, aiding and abetting conversion and money
had and received and assert in their place a claim for disgorgement.”).
As noted above, Plaintiffs’ original complaints were dismissed on September 20, 2010, and
Plaintiffs filed their motions for leave to file an amended complaint on October 14, 2010.
Plaintiffs’ proposed amended complaints contain no claim for equitable disgorgement. Indeed,
Plaintiffs did not reference equitable disgorgement until their reply brief. Plaintiffs may not
salvage their motions to amend by raising new arguments or claims in a reply brief. See Graham
v. Sabol, 734 F. Supp. 2d 194, 199 n.5 (D. Mass. 2010) (where plaintiff raises a proposed
amendment for the first time in his reply brief, “[i]t is neither fair nor appropriate to construe the
motion for leave to amend as seeking leave to amend to include [the amendment raised for the
first time in the reply brief]”); Sauer v. Xerox Corp., 173 F.R.D. 78, 80 (W.D.N.Y. 1997)
(denying leave to file a “revised third amended complaint,” while motion for leave to file third
amended complaint was still pending, on the ground that “[Plaintiff]’s failure to adequately plead
his claims despite sufficient opportunity to do so is, by itself, a sufficient basis for denying leave
to amend.”)
9
Independence Discount Corp. v. Bressner, 47 A.D.2d 756, 757 (2d Dept. 1975) (dismissing
conversion claim for failure to pay “amounts due” under an agreement); see also In re Harvard
Knitwear, Inc., 153 B.R. 617, 625 (Bankr. E.D.N.Y. 1993) (“[c]onversion arises out of an
unauthorized exercise of dominion over specifically identifiable property of a defendant”).
Because Plaintiffs’ proposed conversion claims are based on the “amount of [their] investments,”
rather than on specifically identifiable property, they would be subject to dismissal.
The Cohain Plaintiffs’ conversion-based claims are also untimely. In New York,
the limitations period applicable to a conversion claim is three years from the time that the cause
of action accrues. Mirvish v. Mott, 75 A.D.3d 269, 269 (1st Dept. 2010). “A conversion cause
of action accrues upon the occurrence of some affirmative act – asportation by respondent or
another person, denial of access to the rightful owner or assertion to the owner of a claim on the
goods, sale or other commercial exploitation of the goods by respondent.” Id. In the PACs,
Plaintiffs plead that the Defendants converted their money “by way of the payments and
distributions made to the Defendants or for the benefit of Defendants.” (PAC ¶ 98) The PACs,
however, assert that the last distributions to Klimley and other members of the Eimicke family
were made in May 2004. (PAC ¶¶ 20-21) The original complaint in the Cohain action was filed
on June 2, 2008. (08-cv-5047, Dkt. No. 1). Accordingly – even assuming that the date of the
proposed amended complaints would relate back to the date of the original complaints – the
conversion claims fall outside the three-year statute of limitations.
V.
CLAIM FOR MONEY HAD AND RECEIVED
The proposed amended complaints also add claims for money had and received.
(PAC ¶¶ 103-06) This claim is also futile because – as with their conversion claim – Plaintiffs
have not established a superior right of possession to the specific monies at issue. “The essential
10
elements of a claim for money had and received are that: ‘(1) defendant received money
belonging to plaintiff; (2) defendant benefited from the receipt of the money; and (3) under the
principles of equity and good conscience, defendant should not be permitted to keep the
money.’” In re Ames Dept. Stores, Inc., 2008 WL 7542200, at *9 (S.D.N.Y. June 4, 2008)
(quoting Boquslavsky v. Kaplan, 159 F.3d 715, 720 (2d Cir. 1998)). Accordingly, a plaintiff
must “establish ownership interest or a superior title to the Proceeds in order to succeed on its
money had and received claim.” Id.; see also Grain Traders, Inc. v. Citibank, N.A., 960 F. Supp.
784, 793 n. 12 (S.D.N.Y. 1997)) (money had and received claim “requires that a plaintiff have an
ownership interest in or immediate superior right to possession of the monies”); Mia Shoes, Inc.
v. Republic Factors Corp., 1997 WL 525401, at *6 (S.D.N.Y. Aug. 21, 1997) (money had and
received claim requires establishment of an “ownership interest” in the funds).
Here, Plaintiffs state in each PAC that “the Company . . . made substantial
advances to Company officers and directors . . . many from the general operating account of the
Company.” (PAC ¶ 20) They do not, however, allege that they had an immediate superior right
of possession to the monies in that account. While Plaintiffs generally allege that VWE
benefited from their purchase of the now-unpaid Notes, this is insufficient to establish that
Plaintiffs had an immediate superior right to possession of the monies that were allegedly
improperly paid to Klimley. See In re Ames, 2008 WL 7542200, at *9 (rejecting plaintiff’s
argument that “[Plaintiff] can pursue a money had and received claim against [defendant] on the
theory that [defendant] received money from [third party] that was due to [plaintiff].”).
Accordingly, Plaintiffs’ proposed claim for money had and received would be futile.
11
*
*
*
*
Each of Plaintiffs’ new claims is futile. “[W]here the plaintiff is unable to
demonstrate that he would be able to amend his complaint in a manner which would survive
dismissal, opportunity to replead is rightfully denied.” Hayden, 180 F.3d at 53.
VI.
BAD FAITH
Denial of Plaintiffs’ motions for leave to amend is also appropriate because of
Plaintiffs’ failure to explain their delay in asserting the new claims. Leave to amend may be
denied based on Plaintiffs’ “undue delay, bad faith or dilatory motive.” Ruotolo v. City of New
York, 514 F.3d 184, 191 (2d Cir. 2007); see also Burch v. Pioneer Credit Recovery, Inc., 551
F.3d 122, 125 (2d Cir. 2008) (leave to amend should not be granted where circumstances
indicate “bad faith or dilatory motive”). “The court plainly has discretion . . . to deny leave to
amend where the motion is made after an inordinate delay, no satisfactory explanation is offered
for the delay, and the amendment would prejudice the defendant.” Cresswell v. Sullivan &
Cromwell, 922 F.2d 60, 72 (2d Cir. 1990). Moreover, “[t]he burden is on the party who wishes
to amend to provide a satisfactory explanation for the delay, and the court is free to conclude that
ignorance of the law is an unsatisfactory excuse.” Id. (internal citations omitted).
Here, the original complaints were filed on June 2, 2008 and May 12, 2009. The
proposed amended complaints were not submitted to this Court until October 14, 2010. Given
that the PACs contain no new factual allegations, it is not clear – and Plaintiffs have made no
attempt to explain – why the new causes of action were not asserted in the original complaints.
Even if the new causes of action – premised on conduct that took place more than seven years
ago – were meritorious (which, as noted above, they are not), this Court would not grant leave to
amend, given Plaintiffs’ unexplained delay in asserting the new claims.
12