The Najjar Group, LLC et al v. West 56th Hotel LLC et al

Filing 80

OPINION AND ORDER re: 51 MOTION to Amend/Correct Second Amended Complaint. filed by The Najjar Group, LLC. Plaintiff moves for leave to file a third amended complaint. For the foregoing reasons, Plaintiff's motion for leave t o file a third amended complaint is denied. Plaintiff's Second Amended Complaint remains its operative pleading in this action. See SAC (ECF No. 22). Consistent with the parties' request at the post-discovery conference, see ECF No. 62, t hey are to jointly propose a briefing schedule for motions for summary judgment and indicate whether they may be amenable to a settlement conference no later than March 7, 2017. The Clerk of Court is respectfully directed to terminate the motion pending at Docket Entry No. 51. (As further set forth in this Order.) (Signed by Judge Ronnie Abrams on 3/1/2017) (cf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

USDC-SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:
DATE FILED: 03/01/2017

THE NAJJAR GROUP, LLC,
Plaintiff,
No. 14-CV-7120 (RA)
v.

OPINION AND ORDER
WEST 56TH HOTEL LLC d/b/a
CHAMBERS HOTEL,
Defendant.

RONNIE ABRAMS, United States District Judge:
Plaintiff Najjar Group, LLC brings this diversity action against Defendant West 56th Street
Hotel, LLC ("West 56th") for breaching the terms of an agreement to operate a New York hotel.
Plaintiff moves for leave to file a third amended complaint. For the reasons set forth below,
Plaintiff's motion is denied.
BACKGROUND 1
A. Factual Background

On December 15, 1997, Plaintiff's predecessor-in-interest, the Najjar Group, Ltd., sold and
conveyed to Defendant its right to purchase a parcel of property located at 15 West 56th Street in

1

These facts are drawn from Plaintiffs' proposed Third Amended Complaint ("TAC")
(ECF No. 60-1) and are assumed to be true for purposes of this motion. See Thea v. Kleinhandler,
807 F.3d 492, 494 (2d Cir. 2015). The Court may also consider the operating agreement between
West 56th Street Hotel LLC and the Najjar Group Ltd., which Plaintiff appended to the Second
Amended Complaint, see SAC Ex. A (ECF No. 22-1), and incorporated by reference into the
proposed Third Amended Complaint, see, e.g., TAC iii! 13--49. See DiFolco v. MSNBC Cable
LLC, 622 F.3d 104, 111 (2d Cir. 2010). Finally, the Court may consider court documents in the
parties' state-court actions, as these documents are proper subjects of judicial notice. See Apotex
Inc. v. Acorda Therapeutics, Inc., 823 F.3d 51, 60 (2d Cir. 2016); Graham v. Select Portfolio
Servicing, Inc., 156 F. Supp. 3d 491, 509 n.1 (S.D.N.Y. 2016).

New York, New York. TAC if 14. In exchange, Defendant granted the Najjar Group, Ltd. a twenty
percent membership interest in BDC 56 LLC ("BDC"), the remaining eighty percent of which was
owned by Defendant. TAC if 14. Najjar Group, Ltd. and Defendant also entered into an operating
agreement (the "Operating Agreement") to own and operate a hotel on the property. TAC if 14;
see SAC Ex. A § 2.6. Defendant thereafter constructed and opened the Chambers Hotel, which

has been operating and open to the public since 2002. TAC

if 15. In or around April 2005,

Defendant amended and restated the Operating Agreement. TAC if 21. 2
The Operating Agreement contains several terms relevant to this dispute. First, additional
members may not be added to BDC without the prior written consent of Najjar Group, Ltd., if their
admission would dilute Najjar Group Ltd.' s interest in BDC or adversely affect its distributions
from BDC. TAC if 19. Second, BDC must deliver financial statements to each of its members as
soon as practicable after the close of each fiscal year. TAC

if 23; Operating Agreement § 4.1.1.

Third, Defendant, as manager ofBDC, is responsible for securing funds necessary to pay for startup expenses, estimated to be four million dollars. TAC

if 29; Operating Agreement§§ 6.1-6.2.

Defendant must arrange third-party financing to cover these expenses to the extent that it is able
to do so, but it may not dilute Najjar's interest in BDC through either third-party financing or any
of its own capital contributions to cover start-up expenses. TAC

if 29; Operating Agreement

§§ 6.1-6.2. Fourth, net cash flow from operations is to be distributed on a monthly basis in the
following order of priority: (1) to each member of BDC in an amount that provides the member a
ten percent rate of return, compounded annually, on its outstanding capital contributions, and (2)

2

The Third Amended Complaint indicates that the April 14, 2005 "First Amended and
Restated Operating Agreement of BDC 56 LLC" is attached as Exhibit C, see TAC if 21, but it
does not attach any such exhibit. The agreement was, however, submitted as an exhibit to the
Declaration of Steven G. Sonet (ECF No. 76).
2

to the members in accordance with their equity interests. See TAC

iii! 27,

31-32; Operating

Agreement§ 7.1.1.
Plaintiff raises several objections to Defendant's management of BDC. Plaintiff primarily
challenges Defendant's decision to contribute fifteen million dollars-far greater than the four
million dollars estimated in the Operating Agreement-as additional capital contributions for startup expenses, rather than borrowing these funds from banks or other lenders at a lower rate of
interest. See TAC

iii! 38-39. Plaintiff also alleges that Defendant misclassified funds as its own

capital contributions or additional capital contributions, when in fact those funds were provided
by non-members. See TAC iJ 45. In effect, Plaintiff claims that Defendant has admitted additional
members to BDC-thus diluting Plaintiffs interest-without Plaintiffs consent. See TAC

iJ 46.

In addition, Plaintiff claims that Defendant violated "the explicit terms" of the Operating
Agreement by misclassifying repayments of capital as returns on capital, failing to deduct
repayments of capital from the applicable capital accounts, and improperly accruing interest on
capital contributions and additional capital contributions. See TAC iJ 48.
B. ProceduralBackground
This action follows Plaintiffs pursuit of two similar actions against Defendant in New
York state court. In 2007, Plaintiff brought an action against Defendant and three of its members
in the Supreme Court of New York. See Aff. of Steven G. Sonet in Opp'n to Pl.'s Mot. ("Sonet
Aff.") iJ 4, Ex. B (ECF No. 64). In 2012, the Supreme Court granted summary judgment in favor
of the defendants and dismissed Plaintiffs amended complaint. See Sonet Aff.

iJ 6,

Ex. D. In

2013, the Appellate Division of the Supreme Court, First Judicial Department, affirmed. See Sonet
Aff.

iJ 7,

Ex. E. In 2011, Plaintiff brought a derivative action against Defendant, its individual

members, and other entities in the Supreme Court of New York. See Sonet Aff.

3

iJ 8, Ex. F.

The

Supreme Court dismissed Plaintiff's complaint in 2012, see Sonet Aff.
Department affirmed the following year, see Sonet Aff.

if 9, Ex. G, and the First

if 10, Ex. H.

On September 4, 2014, Plaintiff filed a complaint in this action against Defendant and three
of its individual members. See Compl. (ECF No. 1). On September 15, 2014, the Court ordered
Plaintiff to amend the complaint to allege the citizenship of each party and to specify whether
Defendant had any members other than the individual defendants. See Order (Sept. 15, 2014)
(ECF No. 3).
On September 29, 2014, Plaintiff filed its First Amended Complaint. See First Am. Compl.
("F AC") (ECF No. 5). The First Amended Complaint added the jurisdictional allegations the
Court requested and asserted eight causes of action: (1) breach of contract, (2) breach of fiduciary
duty, (3) breach of the implied covenant of good faith and fair dealing, (4) common law fraud, (5)
deceptive acts or practices, (6) tortious interference, (7) accounting, and (8) involuntary judicial
dissolution. See FAC

iii! 83-156.

Plaintiff requested damages and equitable relief. See FAC

iii! (a)-(g).
On October 21, 2014, West 56th and the individual defendants moved to dismiss all claims
except Plaintiff's claim for breach of contract. See Mot. to Dismiss (ECF No. 10). On November
5, 2014, Plaintiff voluntarily dismissed, without prejudice, all its claims against the individual
defendants and all but its breach of contract claim against West 56th under Federal Rule of Civil
Procedure 41(a)(l). See ECF No. 16.
On November 9, 2014, Plaintiff filed a Second Amended Complaint ("SAC") against West
56th. See SAC (ECF No. 22). The Second Amended Complaint asserted only a breach of contract
claim. See SAC iii! 79-115. West 56th filed an answer on December 1, 2014. See Answer (ECF

4

No. 23 ). Over the course of the next year, the parties engaged in fact and expert discovery. See
generally Joint Letter of Jan. 22, 2016 (ECF No. 39); Tr. of May 13, 2016 Conf. (ECF No. 62).
On June 21, 2016, Plaintiff moved for leave to file a Third Amended Complaint ("TAC").
ECF No. 51. Plaintiffs proposed Third Amended Complaint adds three claims to the breach of
contact claim asserted in the Second Amended Complaint: (1) accounting, (2) breach of fiduciary
duty, and (3) breach of the implied covenant of good faith and fair dealing. See

TAC~~

50-67,

73-76. 3 The proposed Third Amended Complaint also adds two new factual allegations: (1) an
accounting discrepancy, alleged in support of Plaintiffs claim for accounting, see

TAC~

55, and

(2) the assignment to Plaintiff of all causes of action, claims, or other rights arising from its
membership in BDC from Plaintiffs predecessor, Najjar Group Ltd., see

TAC~

11. On June 27,

2016, the Court issued an order stating that Plaintiffs motion would be deemed timely. See Order
(June 27, 2016) (ECF No. 61). Defendant opposes Plaintiffs motion. See Def.'s Opp'n Mem.
(ECF No. 65).

LEGAL STANDARD
Federal Rule of Civil Procedure 15(a) provides that the "court should freely give leave [to
amend] when justice so requires." Fed. R. Civ. P. 15(a)(2); see also Foman v. Davis, 371 U.S.
178, 182 (1962) ("Rule 15(a) declares that leave to amend 'shall be freely given when justice so
requires'; this mandate is to be heeded."). However, a "district court has discretion to deny leave
for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing
party." McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007). "Assuming the
original complaint was filed within the statute oflimitations, a court must deny as futile any claims

3

The proposed Third Amended Complaint also asserts a claim for minority oppression,
see TAC ~~ 68-72, which Plaintiff withdrew in its reply brief, see Pl.' s Reply Mem. at 1 n.1 (ECF
No. 75).
5

that would be otherwise barred by the statute of limitations, unless the claims 'relate back' to the
date on which the original complaint was filed." Mason Tenders Dist. Council of Greater NY v.
Phase Constr. Servs., Inc., 318 F.R.D. 28, 36 (S.D.N.Y. 2016) (citing Slayton v. Am. Express Co.,

460 F.3d 215, 227-28 (2d Cir. 2006)). "A proposed amendment is also deemed futile if the
proposed claim could not withstand a Rule 12(b)(6) motion to dismiss." Id. (citing Lucente v.
IBM Corp., 310 F.3d 243, 258 (2d Cir. 2002)).

DISCUSSION

Defendant argues that Plaintiffs motion should be denied because its proposed
amendments are futile.

Specifically, Defendant argues that Plaintiffs proposed claims for

accounting, breach of fiduciary duty, and breach of the implied covenant of good faith and fair
dealing fail as a matter of law because they are duplicative of Plaintiffs claim for breach of
contract. The Court agrees. 4
A. Accounting

Plaintiffs first proposed amendment to its complaint is the addition of a claim for
accounting. See TAC iii! 50-59. "To obtain an accounting under New York law, a plaintiff must
show: (1) relations of a mutual and confidential nature; (2) money or property entrusted to the
defendant imposing upon him a burden of accounting; (3) that there is no adequate legal remedy;
and (4) in some cases, a demand for an accounting and a refusal." Ellington Credit Fund, Ltd. v.
Select Portfolio Servicing, Inc., 837 F. Supp. 2d 162, 207 (S.D.N.Y. 2011) (internal quotation

marks omitted). 5 "An equitable accounting claim cannot coexist with a breach of contract claim

4

Consistent with the Court's order dated June 27, 2016, the Court assumes that Plaintiffs
motion is timely. See Order (June 27, 2016) (ECF No. 61). Accordingly, the Court need not
address Defendant's argument that Plaintiffs motion should be denied on the ground that it is
untimely. See Def. 's Opp'n Mem. at 17-18.
5
The parties do not dispute that New York law applies to Plaintiffs claims.
6

covering the same subject matter." Id.; see also, e.g., Herbert H Landy Ins. Agency, Inc. v.

Navigators Mgmt. Co., No. 14-CV-6298 (LGS), 2015 WL 170460, at *2 (S.D.N.Y. Jan. 13, 2015);
Physicians Mut. Ins. Co. v. Greystone Servicing Corp., No. 07-CV-10490 (NRB), 2009 WL
855648, at *11 (S.D.N.Y. Mar. 25, 2009). "That is because a plaintiff would be able to obtain the
information and damages through discovery of his or her breach of contract claim, and thus, he or
she has an adequate remedy at law." Associated Mortg. Bankers, Inc. v. Calcon Mut. Mortg. LLC,
159 F. Supp. 3d 324, 340 (E.D.N.Y. 2016); see also CS! Inv. Partners II, L.P. v. Cendant Corp.,
507 F. Supp. 2d 384, 425-26 (S.D.N.Y. 2007) (granting summary judgment to defendant on
plaintiffs' claim for accounting "[b ]ecause [the plaintiffs] have sought money damages under their
breach of contract claims, and because discovery has already proceeded as to the measure of
damages available to them should they prevail on those claims"), ajf'd, 328 F. App'x 56 (2d Cir.
2009); see generally Leveraged Leasing Admin. Corp. v. PacifiCorp Capital, Inc., 87 F.3d 44, 49
(2d Cir. 1996) (holding that "[b ]ecause the plaintiffs have sought money damages in both their
breach of contract and conversion claims, and because discovery as to the measure of damages
would be available to them if they were to prevail on those claims, they can obtain all the
information they seek in their existing claims at law," and "no useful purpose would be served by
treating the plaintiffs' equitable accounting claim as an additional, and duplicative, action at law").
Here, Plaintiffs proposed claim for accounting fails because Plaintiff has asserted a breach
of contract claim covering the same subject matter.

See TAC iii! 77-82.

Specifically, both

Plaintiffs claims for accounting and for breach of contract stem from Defendant's alleged breach
of the Operating Agreement and restated operating agreement.

Indeed, Plaintiff supports its

proposed claim for accounting by alleging specific breaches of these agreements-including, for
example, that "Defendant has been accruing and causing BDC to pay interest" on certain amounts

7

"notwithstanding BDC's restated operating agreement." TAC i-f 56; see also TAC i-fi-f 48 (alleging
that Defendant "misclassiftied] repayments of capital as returns on capital under section 7 .1.1" of
the Operating Agreement). Moreover, because discovery has already proceeded on the measure
of damages available to Plaintiff should it prevail on its breach of contract claim, Plaintiff can
obtain all the information it seeks through its existing claim at law. 6 See Leveraged Leasing Admin.
Corp, 87 F.3d at 49; CS! Inv. Partners II, 507 F. Supp. 2d at 425-26. Plaintiffs claim for
accounting is thus duplicative of its breach of contract claim and subject to dismissal. 7
The Second Circuit's decision in Scholastic, Inc. v. Harris, 259 F.3d 73 (2d Cir. 2001) is
not to the contrary. In Scholastic, a former partner of a joint venture sought an accounting even
though it had "been given financial reports regarding the condition of the venture since the
collaboration's inception." 259 F.3d at 90. The Second Circuit held that the partner was entitled
to an accounting under New York law, reasoning that "[e]ven if [it] already possesses detailed
financial information regarding the joint venture, there is nevertheless still 'an absolute right to an
accounting."' Id. (quoting Koppel v. Wien, Lane & Malkin, 509 N.Y.S.2d 327 (1st Dep't 1986)).
However, as the Second Circuit recently explained in an unpublished summary order, Scholastic's
interpretation of Koppel merely stands for the proposition "that the voluntary transfer of financial
documents or willingness to provide for an inspection or audit are no substitute for a judicially
supervised accounting." Soley v. Wasserman, 639 F. App'x 670, 674 n.5 (2d Cir. 2016) (summary
order) (emphasis in original). Here, by contrast, Plaintiff did receive the information it sought
through "judicially supervised" discovery in connection with its breach of contract claim, rather

6

Indeed, Plaintiffs opening brief states that "Plaintiff effectively obtained an accounting
from Defendant through the discovery process in this case." Pl. 's Mem. at 3 n.4.
7
Because Plaintiff cannot state a claim for accounting, Plaintiffs new factual allegation
regarding an accounting discrepancy is inconsequential and provides no basis for granting
Plaintiffs motion. See TAC iJ 55.
8

than through a voluntary transfer of records from Defendant. Id. Moreover, Soley noted that the
language in Koppel, including that upon which Scholastic relied, is "admittedly contradictory" to that of
several other New York decisions. Id. And while Soley ultimately declined to "address the precise contours
of Koppel," it nonetheless concluded that Koppel did not disturb the general rule that a plaintiff must
"demonstrate that she has no adequate remedy at law before a court may award an equitable accounting."
Id. Accordingly, under the circumstances of this case, Scholastic does not warrant a finding that

Plaintiff has stated a claim for accounting independent of its claim for breach of contract.
B. Breach of Fiduciary Duty

Plaintiff next proposes amending its complaint to add a claim for breach of fiduciary duty.
See TAC iii! 60-67. This claim would also fail to survive a motion to dismiss, and any amendment
to add it would be futile.
Under New York law, "[t]he elements of a claim for breach of a fiduciary obligation are:
(i) the existence of a fiduciary duty; (ii) a knowing breach of that duty; and (iii) damages resulting
therefrom." Johnson v. Nextel Commc 'ns, Inc., 660 F.3d 131, 138 (2d Cir. 2011) (citing Barrett
v. Freifeld, 883 N.Y.S.2d 305, 308 (2d Dep't 2009)). "Where a fiduciary duty is based upon a

comprehensive written contract between the parties, a claim for breach of fiduciary duty is
duplicative of a claim for breach of contract." Alitalia Linee Aeree Italiane, Sp.A. v. Airline Tariff
Pub. Co., 580 F. Supp. 2d 285, 294 (S.D.N.Y. 2008). "[A] cause of action for breach of fiduciary
duty which is merely duplicative of a breach of contract claim cannot stand." Ellington, 837 F.
Supp. 2d at 196 (alteration omitted) (internal quotation marks omitted).
Here, Plaintiffs claim for breach of fiduciary duty duplicates its breach of contract claim.
To be sure, Plaintiff has adequately alleged that Defendant, as majority owner and manager of
BDC, owed Plaintiff a fiduciary duty. See, e.g., Pokoikv. Pokoik, 982 N.Y.S.2d 67, 70 (1st Dep't
2014). However, Plaintiffs claim for breach of that duty is "based upon the same facts and
9

theories as [its] breach of contract claim." Brooks v. Key Trust Co. Nat. Ass 'n, 809 N.Y.S.2d 270,
272 (3d Dep't 2006).

Indeed, the allegations supporting Plaintiffs fiduciary duty claim-

including Defendant's conflict of interest, concealment of material information, and failure to act
openly, honestly, and fairly-are "either expressly raised in plaintiffs breach of contract claim or
encompassed within the contractual relationship by the requirement implicit in all contracts of fair
dealings and good faith." Id.; see TAC 'i]'i] 60-67. For example, Plaintiff alleges that Defendant's
decision to contribute fifteen million dollars to cover start-up expenses-rather than the four
million dollars provided in the Operating Agreement-was "an act of self-dealing in violation of
its fiduciary duties ... as well as a breach of the 1997 OPERATING AGREEMENT and the 2005
OPERATING AGREEMENT." TAC 'i] 43. In addition, Plaintiff supports both its breach of
fiduciary duty and breach of contract claims by alleging that Defendant opportunistically pursued
its interests as a holder of preferred cash flow rights at the expense of common equity members of
BDC. Compare TAC 'i] 65 (breach of fiduciary duty), with TAC 'i]'i] 79-80 (breach of contract). 8
Thus, because Plaintiffs claim for breach of fiduciary duty is "entirely duplicative of [its] pending
breach of contract claim and subject to dismissal," it does not provide an adequate basis for
granting Plaintiff leave to amend its complaint. Ellington, 837 F. Supp. 2d at 196. 9
C. Implied Covenant of Good Faith and Fair Dealing

Finally, Plaintiffs seek to add a claim for breach of the implied covenant of good faith and
fair dealing to their complaint. See TAC 'i]'i] 73-76. This claim, like Plaintiffs proposed claims

8

See also, e.g., TAC 'i] 47 (characterizing Defendant's "bad faith transactions and
accounting schemes to structure BDC's Capital and financing to benefit the interests of Defendant
to the detriment of Plaintiff' as a "deliberate violation of Defendant's contractual and fiduciary
obligations") (emphasis added).
9
Because the Court concludes that Plaintiffs proposed claim for breach of fiduciary duty
would be dismissed as duplicative of its breach of contract claim, it need not address Defendant's
alternative argument that this claim is untimely.

10

for accounting and for breach of fiduciary duty, fails because it is duplicative of Plaintiffs claim
for breach of contract.
"Under New York law, parties to an express contract are bound by an implied duty of good
faith, but breach of that duty is merely a breach of the underlying contract." Cruz v.
FXDirectDealer, LLC, 720 F.3d 115, 125 (2d Cir. 2013) (quoting Harris v. Provident Life &
Accident Ins. Co., 310 F.3d 73, 80 (2d Cir. 2002)). "New York law does not recognize a separate

cause of action for breach of the implied covenant of good faith and fair dealing when a breach of
contract claim, based upon the same facts, is also pled." Id. (alteration omitted) (quoting Harris,
310 F .3d at 81 ). "Therefore, when a complaint alleges both a breach of contract and a breach of
the implied covenant of good faith and fair dealing based on the same facts, the latter claim should
be dismissed as redundant." Id.; see also, e.g., Alaska Elec. Pension Fund v. Bank ofAm. Corp.,
175 F. Supp. 3d 44, 63 (S.D.N.Y. 2016) ("An implied-covenant claim can survive a motion to
dismiss only if it is based on allegations different than those underlying the accompanying breach
of contract claim and the relief sought is not intrinsically tied to the damages allegedly resulting
from the breach of contract."); Marcus v. W2007 Grace Acquisition L Inc., No. 15-CV-6242
(GBD), 2016 WL 4705154, at *5 (S.D.N.Y. Aug. 24, 2016) ("Typically, raising both claims in a
single complaint is redundant, and courts confronted with such complaints under New York law
regularly dismiss any freestanding claim for breach of the covenant of fair dealing where the claims
derive from the same set of facts." (internal quotation marks omitted)).
Here, Plaintiffs claim for breach of the implied covenant of good faith and fair dealing
relies on the same facts as its claim for breach of contract. Plaintiff supports this claim primarily
by cross-referencing the allegations made in support of its claim for breach of fiduciary duty,

11

which, as discussed above, is duplicative of its claim for breach of contract. See TAC

if 74. 10

Plaintiffs only substantive allegation in support of its implied-covenant claim is that Defendant
has "frustrated and defeated" Plaintiffs expectation of"some return on its investment and equity"
and "prevent[ ed] Plaintiff from receiving any fruits of the parties' agreement and venture." TAC

if 75. This allegation merely repeats Plaintiffs claim that Defendant has breached the Operating
Agreement by, for instance, diluting Plaintiffs interest in BDC and failing to provide requisite
distributions from BDC's net operating cash flow. See TAC iii! 79-80. In light of Plaintiffs claim
for breach of contract, its duplicative claim for breach of the implied covenant of good faith and
fair dealing would be subject to dismissal. See Cruz, 720 F.3d at 125; Alaska Elec. Pension Fund,
17 5 F. Supp. 3d at 63 (dismissing a claim for breach of implied covenant of good faith and fair
dealing under New York law where "Plaintiffs' implied-covenant claim is based on precisely the
same allegations as their breach-of-contract claim"); Negrete v. Citibank, NA., 187 F. Supp. 3d
454, 470 (S.D.N.Y. 2016) (dismissing an implied-covenant claim under New York law, where the
claim "relies on no facts distinct from the breach of contract claims").
In sum, Plaintiffs proposed claims for accounting, breach of fiduciary duty, and breach of
the implied covenant of good faith and fair dealing would not withstand a Rule 12(b)( 6) motion to
dismiss. Accordingly, Plaintiffs proposed amendments are futile, and the Court declines to grant
Plaintiff leave to amend its complaint.

CONCLUSION
For the foregoing reasons, Plaintiffs motion for leave to file a third amended complaint is
denied. Plaintiffs Second Amended Complaint remains its operative pleading in this action. See

10

Plaintiff also cross-references its allegations made in support of its claim for minority
oppression, see TAC if 74, but Plaintiff has since withdrawn this claim, see Pl.'s Reply Mem. at 1
n.1.
12

SAC (ECF No. 22). Consistent with the parties' request at the post-discovery conference, see ECF
No. 62, they are to jointly propose a briefing schedule for motions for summary judgment and
indicate whether they may be amenable to a settlement conference no later than March 7, 2017.
The Clerk of Court is respectfully directed to terminate the motion pending at Docket Entry No.
51.
SO ORDERED.
Dated:

March 1, 2017
New York, New York
Ronn
rams
United States District Judge

13