Shostack v. Diller et al

Filing 47

MEMORANDUM DECISION AND ORDER re: 41 Report and Recommendations for 22 AMENDED MOTION to Dismiss Plaintiff's Amended Verified Complaint. This Court finds no clear error in the Report and adopts it in full. The claims in the Amended Complai nt are hereby DISMISSED, with the exception of Plaintiff's claims under the Telephone Consumer Protection Act. The Clerk of Court is directed to close the motion at ECF No. 22 and dismiss Defendants Diller, Lebda, Zurcher, and Interactive Corporation/IAC from this action. (As further set forth in this Order.) (Signed by Judge George B. Daniels on 3/8/2016) (adc)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------x
DAVE SHOST ACK,

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Plaintiff,
-againstBARRY DILLER CEO, IAC a.k.a INTERACTIVE:
CORP., DOUG LEBDA CEO, LENDING TREE
INC. a.k.a. LT TECHNOLOGIES,
LENDINGTREE.COM a.k.a. LENDING TREE
LLC, MATT ZURCHER CEO, AND HOME
ADVISOR INC.,
Defendants.

/!_i~h

MEMORANDUM DECISION
AND ORDER
15 Civ. 2255 (GBD) (JLC)

------------------------------------x
GEORGE B. DANIELS, United States District Judge:
Pro se plaintiff Dave Shostack ("Plaintiff') brings this action against defendants

IAC/Interactive Corporation, Lending Tree Inc., HomeAdvisor, and individual defendants Barry
Diller, Doug Lebda, Matt Zurcher (collectively "Defendants"). (See Am. Compl., ECF No. 15.)
According to Plaintiff, Defendants violated the Telephone Consumer Protection Act ("TCPA"), 1
the Gramm-Leach-Bliley Act ("GLBA''), New York General Business Law ("N.Y. GLB") § 349,
the Federal Trade Commission Act ("FTCA"), the Fair Credit Reporting Act ("FCRA"), and the
Federal Trade Commission Telemarketing Sales Rule ("Sales Rule").

Specifically, an unknown

third-party stole Plaintiff's personal information, supplied it to Lending Tree and HomeAdvisor,
and as a result, he received unsolicited telemarketing calls from various mortgage brokers and
home improvement contractors despite his number being on the National Do Not Call Registry.
(See Am. Compl, at~~ 12-24.) Additionally, Plaintiff alleges that Lending Tree ran his credit

At this time, Defendants do not move to dismiss Plaintiffs TCPA claim. (Defs.' Mem. of Law in Supp.
of Mot. to Dismiss ("Mem."), ECF No. 20, at l n.2.)
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report without first verifying that the mortgage lead they received from the unknown third party
"was legitimate." (Am. Comp., at ii 19.)
On June 5, 2015, Defendants moved to partially dismiss the operative complaint pursuant
to Federal Rule of Civil Procedure l 2(b )(2) for lack of personal jurisdiction over the individual
defendants and Rule l 2(b)( 6) for failure to state a claim. (Defs.' Mot. to Dismiss, ECF Nos. 19,
22). Plaintiff then attempted to file a second amended complaint on July 31, 2015 without seeking
leave of this Court or obtaining Defendants' consent. Plaintiff also filed an affidavit in opposition
to Defendants' Motion to Dismiss that same day.

(Pl. 's Aff. in Opp'n ("Opp'n"), ECF No. 24.)

The matter was referred to Magistrate Judge James Cott, who rejected the proposed second
amended complaint. He directed Defendants to address in their Reply whether or not they opposed
further amendments to the complaint. (ECF Nos. 25, 26.) Defendants indicated that they opposed
Plaintiffs request for leave to amend. (Defs.' Reply Br. ("Reply"), ECF No. 29, at 8.)
Before this Court is Magistrate Judge Cott's Report and Recommendation ("Report," ECF
No. 41 ), recommending that Defendants' partial motion to dismiss be granted and that Plaintiff be
denied leave to amend his complaint a second time. 2 (Report at 29.)

I. LEGAL ST AND ARD
This Court may accept, reject, or modify, in whole or in part, the findings set forth in the
Report. 28 U.S.C. § 636(b)(l)(C). When no party files objections to a Report, the Court may
adopt the Report if "there is no clear error on the face of the record." Adee Motor Cars, LLC v.

Amato, 388 F. Supp. 2d 250, 253 (S.D.N.Y. 2005) (quoting Nelson v. Smith, 618 F. Supp. 1186,
1189 (S.D.N.Y. 1985)); Wilds v. United Parcel Service, Inc., 262 F. Supp. 2d 163, 169 (S.D.N.Y.

2

The relevant procedural and factual background is set forth in greater detail in the Report and is

incorporated herein.

2

2003) ("To accept the report and recommendation of a magistrate, to which no timely objection
has been made, a district court need only satisfy itself that there is no clear error on the face of the
record.") (internal citations and quotation marks omitted)).
Magistrate Judge Cott advised the parties that failure to file timely objections to the Report
would constitute a waiver of those objections on appeal. (Report at 29); see also 28 U.S.C. §
636(b )(1 )(C); Fed. R. Civ. P. 72(b ). As of the date of this Order, no objection to the Report has
been filed.

"Pro se complaints are held to less stringent standards than those drafted by lawyers, even
following Twombly and Iqbal."

Thomas v. Westchester Cty., No. 12-CV-6718, 2013 WL

3357171, at *2 (S.D.N.Y. July 3, 2013); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009).
While courts read prose complaints "to raise the strongest arguments that they suggest," Pabon v.

Wright, 459 F.3d 241, 248 (2d Cir. 2006) (internal citation and quotation marks omitted), prose
plaintiffs "cannot withstand a motion to dismiss unless their pleadings contain factual allegations
sufficient to raise a right to relief above the speculative level." Jackson v. NYS Dep 't of Labor,
709 F. Supp. 2d 218, 224 (S.D.N.Y. 2010) (internal quotation marks omitted).

Dismissal is

justified where "the complaint lacks an allegation regarding an element necessary to obtain relief,"
and the "duty to liberally construe a plaintiffs complaint [is notl the equivalent of a duty to rewrite it." Geldzahler v. N. Y Med. Coll., 663 F. Supp. 2d 379, 387 (S.D.N.Y. 2009) (internal
citations and alterations omitted); see also Sharma v. D 'Silva, No. 14-CV-6146, 2016 WL 319863,
at *3 (S.D.N.Y. Jan. 25, 2016).
This Court is satisfied that the Report contains no clear error of law and adopts the Report
in full.

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II. INDIVIDUAL DEFENDANTS

The individual Defendants Diller, Lebda, and Zurcher argue that they should be dismissed
from this action on two alternative grounds: lack of personal jurisdiction and failure to state a claim
against them. (Mem. at 9-14.) Plaintiff responds in his affidavit in opposition that this Court has
personal jurisdiction over the individual defendants because they are executive officers of their
respective companies who can be held vicariously liable for the acts of their employees. (See
Opp'n,

at~~

35-45.)

To survive a 12(b)(2) motion to dismiss for lack of personal jurisdiction, a plaintiff must
make "legally sufficient allegations of jurisdiction, including an averment of facts that, if
credited[,] would suffice to establish jurisdiction over the defendant." (Report at 5 (quoting
Penguin Grp. (USA), Inc. v. Am. Buddha, 609 F.3d 30, 35 (2d Cir. 2010) (internal citation

omitted)).) In its analysis, a court "will not draw argumentative inferences in the plaintiffs favor,"
nor must it "accept as true a legal conclusion couched as a factual allegation." Licci ex rel. Licci
v. Lebanese Canadian Bank, SAL, 673 F.3d 50, 59 (2d Cir. 2012) (internal citations and quotation

marks omitted).
The Report properly found that Plaintiff failed to make a prima facie showing establishing
personal jurisdiction, see Licci, 673 F.3d at 59, and, accordingly Magistrate Judge Cott properly
recommended dismissing Plaintiffs claims against the individual defendants, pursuant to Rule
12(b)(2). (Report at 7.)

Because the various federal statutes under which Plaintiff brings his

claims lack jurisdictional provisions, federal courts apply the personal jurisdiction rules of New
York, the forum state, so long as those rules are consistent with the requirements of Due Process.
See Am. Buddha, 609 F.3d at 35 (internal citation omitted).

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Under New York Civil Practice Law and Rules ("N.Y. CPLR") §§ 301 and 302, to obtain
personal jurisdiction, a plaintiff must allege that an individual is doing business in New York in
his personal capacity, "not merely as an officer of a corporation that does business in New York."
(Report at 8 (citing Ontel Products, Inc. v. Project Strategies Corp., 899 F. Supp. 1144, 1148 n.5
(S.D.N.Y. 1995) (internal citation omitted)).) If general jurisdiction cannot be found pursuant to
§ 301, specific jurisdiction may be found under§ 302(a), New York's long-arm statute. (See id.
(citing Karabu Corp. v. Gitner, 16 F. Supp. 2d 319, 322 (S.D.N.Y. 1998) (internal citation
omitted)).) To obtain jurisdiction over corporate officers under the long-arm statute, a plaintiff
must show that those officers were the "primary actors" in a corporation's purposeful activities
giving rise to the Plaintiff's claims. (See Report at 9 (citing Arma v. Buyseasons, Inc., 591 F. Supp.
2d 637, 647 (S.D.N.Y. 2008) (describing "corporation as agent" theory).) Magistrate Judge Cott
found that Plaintiff's conclusory allegations did not include any facts showing that the individual
defendants had any direct involvement in the actions giving rise to this litigation. (See Report at
9-10.)
Magistrate Judge Cott also found that the Complaint failed to state a claim against the
individual defendants. (See Report, at 10.) "To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its
face.' A claim has facial plausibility when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell At!. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

While principals or employers may be vicariously liable for the acts of their agents or
employees acting within the scope of their authority or employment, it is well-established that "the
corporation, not its owner or officer, ... is the principal or employer, and thus subject to vicarious

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liability for torts committed by its employees or agents." (See Report, at 10 (citing Meyer v.
Holley, 537 U.S. 280, 286 (2003) (internal citation omitted)).) Similarly, "absent bad faith or

fraud, corporate officers and directors acting within the scope of their employment cannot be held
personally liable for breaches of contract or tortious acts committed by their corporations." (Id.
(quoting Rella v. N. At!. Marine, Ltd., No. 02-CV-8537, 2004 WL 1418021, at *9 (S.D.N.Y. June
23, 2004) (internal citations and quotation marks omitted)).) Plaintiff has failed to plead any facts
showing that the individual defendants participated, directed, were aware of, or benefitted from,
the actions on which he bases his claims. He instead relies on speculation and legal conclusions.
(See Report, at 11-12.)

Having found that Plaintiff failed to allege facts establishing personal jurisdiction over the
individual defendants, as well as a claim for which relief may be granted, Magistrate Judge Cott
properly recommended that all claims against the individual defendants be dismissed. (Id. at 12.)
This Court accepts that recommendation.
III. CLAIMS AGAINST INTERACTIVE CORPORATION

Magistrate Judge Cott recommended that all claims against Interactive Corporation
("IAC"), the parent company of Lending Tree and HomeAdvisor, also be dismissed. (Report at
12.) It is axiomatic that, absent direct involvement, a parent corporation may only be held liable
for its subsidiary's actions if a plaintiff can show that the subsidiary is an agent or alter ego of the
parent. See N. Y State Elec. & Gas Corp. v. FirstEnergy Corp., 766 F.3d 212, 224 (2d Cir. 2014).
Plaintiff's Amended Complaint alleges no facts that IAC had any direct involvement with running
his credit report or facilitating the allegedly illegal telemarketing calls to his residence. (Report at
14.) Additionally, Plaintiff has not alleged any facts that allow him to "pierce the corporate veil."
That is, Plaintiff has not sufficiently alleged that IAC "dominate[ed] the subsidiary[ies] in such a

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way as to make it a 'mere instrumentality' of the parent." (Report at 13 (citing FirstEnergy, 766
F.3d at 224).) Nor has Plaintiff alleged any facts showing that IAC "exploit[ed] its control to
'commit fraud or other wrong'" or that, as a result, he "suffer[ed] an unjust loss or injury." (Id.)
This Court accepts the Report's recommendation and dismisses the claims against IAC.

IV. GRAMM-LEACH-BLILEY ACT AND FEDERAL TRADE COMMISSION ACT
CLAIMS
The Report recommends that Plaintiffs claims brought under the Gramm-Leach-Bliley
Act ("GLBA''), 15 U.S.C. § 6801, et seq., and the Federal Trade Commission Act ("FTCA"), 15
U.S.C. § 45(a), be dismissed because neither of those statutes provide for a private right of action.
(See Report, at 14, 19.)

Plaintiff alleges that Lending Tree (and vicariously, IAC) violated the Gramm-LeachBliley Act ("GLBA'') by running his credit report without his permission. (See Am. Compl,

at~~

46-47, 53(a).) Magistrate Judge Cott properly found that Plaintiff lacks standing to bring a claim
enforcing the GLBA. (Report, at 15); see 15 U.S.C. § 6805(a) (providing that the Bureau of
Consumer Financial Protection may enforce the GLBA); Huelbig v. Aurora Loan Servs., LLC, No.
10-CV-6215, 2011WL4348281, at *5 (S.D.N.Y. May 18, 2011), adopted 2011WL4348275
(S.D.N.Y. Sept. 16, 2011) (stating that the GLBA does not provide for a private right of action).
Similarly, Magistrate Judge Cott properly found that Plaintiff lacks standing to bring his
allegations that Lending Tree, HomeAdvisor, and IAC participated in "unfair or deceptive acts or
practice in or affecting commerce" in violation of the Federal Trade Commission Act ("FTCA").
(Report, at 20); Alfred Dunhill Ltd. v. Interstate Cigar Co., 499 F.2d 232, 237 (2d Cir. 1974)
("[T]he provisions of the Federal Trade Commission Act may be enforced only by the Federal
Trade Commission. Nowhere does the Act bestow upon either competitors or consumers standing

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to enforce its provisions.")

Accordingly, this Court accepts Magistrate Judge Cott's

recommendation that Plaintiff's GLBA and FTCA claims be dismissed.
V. NEW YORK GENERAL BUSINESS LAW SECTION 349 CLAIM

The Report further recommends that Plaintiff has failed to state a claim under New York
General Business Law ("N.Y. GBL") § 349, entitled "Deceptive acts and practices unlawful." (See
Report, at 16.) To sufficiently plead a claim under N.Y. GBL § 349, a plaintiff must allege (1)
that a defendant has engaged in consumer-oriented conduct; (2) that is materially misleading; and,
3) that the plaintiff has suffered injury as a result of this misconduct. (See Report, at 16 (citing
Koch v. Acker, Merrall, & Condit Co., 18 N.Y.3d 940, 941 (2012) (internal citation omitted)).)

While conduct directed at a single consumer may constitute consumer-oriented conduct, see
Wilson v. Nw. Mut. Ins. Co., 625 F.3d 54, 64 (2d Cir. 2010) (internal citation omitted), courts in

this District have held that non-recurring private transactions do not fall within the statute's
purview. See, e.g., Genesco Entm 't, a Div. of Lymutt Indus., Inc. v. Koch, 593 F. Supp 743, 752
(S.D.N.Y. 1984).
Plaintiff claims that Lending Tree violated this statute when it performed the allegedly
unauthorized credit check, (Am. Compl, at

ii

53(a)), and that HomeAdvisor also violated this

statute by failing to verify with Plaintiff whether the information it received from Lending Tree
was "valid prior to giving [Plaintiffs] personal information to 6 home improvement
contractors .... " (Id. at ii 43.) Defendants contend that these actions do not constitute consumeroriented conduct because they were aimed at Plaintiff, not at the general public. (Mem. at 17.)
However, because Defendants' conduct is not unique to Plaintiff, was part of their ordinary course
of business, and could easily be directed at various other consumers on a daily basis, Magistrate
Judge Cott properly found that Defendants' acts constituted "consumer-oriented conduct" under

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the statute. (See Report, at 17 (citing Oswego Laborers' Local 214 Pension Fund v. Marine
Midland Bank, NA., 85 N.Y.2d 20, 25 (1995) (noting that the statute does not require defendants'

improper conduct to harm more than one individual so long as it can potentially affect similarly
situated consumers).)
However, Magistrate Judge Cott found that Plaintiff failed to allege any facts allowing a
reasonable inference that Defendants' actions were "likely to mislead a reasonable consumer
acting reasonably under the circumstances"-in other words, Defendants' actions were not
fraudulent. See Oswego, 85 N.Y.2d at 26. While dissemination of Plaintiffs personal information
may have affected his privacy, "these acts neither deceived nor misled anyone in the manner
proscribed by the N.Y. GBL." (Report, at 18 (citing Maurizio v. Goldsmith, 230 F.3d 519, 522 (2d
Cir. 2000).)
As to the third element of a deceptive business practice claim, Magistrate Judge Cott found
that Plaintiff similarly failed to allege any actual injury caused by Defendants' conduct. (Report,
at 18.) Plaintiff merely pleaded an "unquantifiable injury to a privacy interest," which is not a
cognizable injury. (Id. (citing Lane v. Fein, Such, & Crane, LLP, 767 F. Supp. 2d 382, 391
(E.D.N.Y. 2011)).)
As Plaintiff failed to plead any facts regarding two of the three elements of a deceptive
business practice claim, Magistrate Judge Cott properly recommended that Plaintiffs N.Y. GBL
claim be dismissed. (See Report, at 19.)
VI. FAIR CREDIT REPORTING ACT CLAIM

Magistrate Judge Cott properly construed Plaintiffs prose pleadings regarding Lending
Tree and IAC, (Am. Compl,

at~~

38, 40, 53(a)), to allege that Lending Tree failed to comply with

§ 1681 b(f) of the Fair Credit Reporting Act ("FCRA") by obtaining his credit report for a purpose

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unauthorized by the statute.

(Report, at 20-21.)

Section 168lb of FCRA enumerates the

permissible purposes of consumer reports and proscribes a person from obtaining or using a report
for any purpose not specifically authorized by the statute. (Id., at 20 (citing 15 U.S.C. § 1681b(f).)
To state a claim for civil liability under§ 168ln of FCRA, a plaintiff must allege (1) that
a defendant used or obtained plaintiffs credit report for an impermissible purpose, and (2) that the
violation was willful. (See Report, at 21 (citing Braun v. Client Servs. Inc., 14 F. Supp. 3d 391,
396 (S.D.N.Y. 2014) (internal citation and quotation marks omitted)).) Courts in this District have
held that "[ m]erely stating that the violation was 'willful" ... is insufficient." Braun v. United
Recovery Sys., LP, 14 F. Supp. 3d 159, 167 (S.D.N.Y. 2014).

Addressing the first element of a FCRA claim, the Report properly concluded that Lending
Tree's actions "were permissible to the extent they related to the receipt of a mortgage application
from a person purporting to be [Plaintiff]." (Report, at 22); see 15 U.S.C. § 1681b(a)(3)(A)
(providing that a party may obtain a credit report if it "intends to use the information in connection
with a credit transaction involving the consumer on whom the information is to be furnished and
involving the extension of credit to ... the consumer"). According to the facts as Plaintiff alleged,
Lending Tree did not know that Plaintiff had not authorized the transaction. (See Report, at 22.)
Furthermore, FCRA does not impose an affirmative duty on Lending Tree to verify the validity of
a report request with Plaintiff prior to running his credit report. (Id. (citing Am. Compl, at~ 38).)3

The Report also addressed the second element of a claim under FCRA § 1681 n -the requisite state of
mind, and correctly found that Plaintiff failed to allege any facts, beyond conclusory statements, that
Defendants' acts were willful. (See Report, at 24.) The only willful acts Plaintiff alleged in his Amended
Complaint were those committed by the third party who stole his identity and fraudulently applied for a
mortgage on his home. (See id.) Magistrate Judge Cott therefore correctly concluded that Plaintiffs
failure to allege sufficient facts as to whether Defendant's actions were willful in violation of the statute
provided an alternative ground for dismissal of Plaintiffs § 1681 n claim. (See id.) Because the test for§
168ln liability is in the conjunctive, this Court only need dismiss Plaintiffs claim on one ground.

3

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Thus, this Court accepts the Report's recommendation that Plaintiffs FCRA claim be dismissed
pursuant to Rule 12(b)(6). 4
VII. FEDERAL TRADE COMMISSION TELEMARKETING SALES RULE

The Telemarketing and Consumer Fraud and Abuse Prevention Act ("TCFAPA")
authorizes the Federal Trade Commission ("FTC") to implement and enforce a national do-notcall registry, as well as promulgate rules and regulations prohibiting abusive telemarketing acts
and practices. (See Report, at 25-26 (citing 15 U.S.C. §§ 6151(a), 6102(a)(3).) One such rule, the
Sales Rule, prohibits telephone solicitations to a person after that person has stated he does not
wish to receive further calls from a company, or ifthat person's telephone number is on the national
do-not-call registry. (Report, at 26 (citing 16 C.F.R. §§ 310.4(b)(l)(iii)(A)-(B).) Furthermore,
TCF APA provides for a private right of action for any person adversely affected by a telemarketing
practice that violates any of the FTC's rules, including the Sales Rule. (Id. (citing 15 U.S.C.§
6104(a).) However, a plaintiff must allege actual damages of $50,000 or more to sustain a Sales
Rule claim. (Id.)
Plaintiff alleges that HomeAdvisor violated the Sales Rule in three ways.

First, a

HomeAdvisor representative called Plaintiff a second time, on November 18, 2013, after Plaintiff
asked a previous HomeAdvisor representative not to call his residence and to add his residential
phone number to the company's "Do Not Call" list. (Am. Comp.,

at~~

25, 52(b), 53(b)-(c).)

4

Magistrate Judge Cott noted that while Plaintiff did not allege a claim under § 168 lo (which creates
liability for negligent violations of FCRA), some of Plaintiffs allegations "as to Lending Tree's
culpability for obtaining his credit report plausibly meet a negligence standard." (Report, at 24.)
However, a § 1681 o claim requires Plaintiff to demonstrate actual damages. See Braun, 14 F. Supp. 3d at

3 87-98. Given that Plaintiff expressed in his affidavit in opposition that "actual damages [are] irrelevant
to his claims," (Opp'n, at~~ 17, 18), the Report found that granting Plaintiff leave to amend and plead a§
1681 o claim would be futile.

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Second, Plaintiff alleges that HomeAdvisor gave his residential phone number, which is part of
the national do-not-call registry, to six home improvement contractors, which resulted in six
"illegal telemarketing calls." (Id.,

at~~

42-43, 53(b ).) Third, Plaintiff alleges that HomeAdvisor

failed to send him a copy of its in-house "Do Not Call" policy after he requested it. (Id., at~~ 29,
53( d).) Plaintiff alleges that Lending Tree also violated the Sale Rule by providing his home phone
number to two mortgage brokers and to HomeAdvisor. (Id., at ii~ 46, 53(e). ) However, as Plaintiff
only claims statutory and punitive damages, which do not count toward the $50,000 requirement,
and fails to allege any actual damages, Magistrate Judge Cott correctly concluded that Plaintiffs
Sales Rule claim should also be dismissed.

This Court therefore accepts the Report's

recommendation dismissing Plaintiffs Sales Rule claim.
VIII. LEAVE TO AMEND

As previously noted, on July 31, 2015, Plaintiff sought to amend his complaint a second
time. (ECF Nos. 31, 32.) As Magistrate Judge Cott noted, Plaintiff already amended his complaint
on May 20, 2015 to address arguments raised in Defendants' Motion to Dismiss the original
complaint. (ECF Nos. 5-6.) Defendants object to a second amendment to the complaint on the
ground that further amendment would be futile. (See Reply, ECF No. 29, at 9.) Having examined
Plaintiffs proposed amendment, Magistrate Judge Cott found that Defendants correctly contend
that Plaintiffs proposed Second Amended Complaint ("SAC") "merely rehashes in different
language the same conclusory allegations contained" in the Amended Complaint. (See Report, at
27-28.) Plaintiffs proposed SAC "adds no factual allegations that cure the deficiencies in his
amended complaint." (Id. at 28.) Accordingly, Magistrate Judge Cott recommended that leave to
amend be denied as futile because the proposed SAC would not survive a Rule 12(b)(6) motion to
dismiss. (Id.); Local Union 20 v. United Bhd. of Carpenters & Joiners of Am., No 97-CV-5538,

12

2001WL1005565, at* 12 (S.D.N.Y. Aug. 6, 2001) ("An amendment is futile if it merely restates
the same facts as the original complaint in different terms, reasserts a claim upon which the court
has previously ruled, fails to state a legal theory, or could not withstand a motion to dismiss.").
This Court accepts the Report's recommendation and denies Plaintiff leave to amend the complaint
a second time.
IX. CONCLUSION

This Court finds no clear error in the Report and adopts it in full. The claims in the
Amended Complaint are hereby DISMISSED, with the exception of Plaintiffs claims under the
Telephone Consumer Protection Act.
The Clerk of Court is directed to close the motion at ECF No. 22 and dismiss Defendants
Diller, Lebda, Zurcher, and Interactive Corporation/IAC from this action.

Dated: New York, New York
March 8, 2016
SO ORDERED.

B ·y()r~
United States District Judge

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