The Mercator Corporation v. Sapinda UK Limited et al
Filing
41
OPINION AND ORDER. The defendants' motion to dismiss the Amended Complaint is granted, and the Amended Complaint is dismissed without prejudice. The plaintiff may file a Second Amended Complaint within 30 days of the issuance of this opinion. Th e Clerk is directed to close ECF Docket No. 17. So ordered. re: 17 MOTION to Dismiss Plaintiff's Amended Complaint Oral Argument Requested filed by Sapinda Holding B.V., Lars Windhorst. (Signed by Judge John G. Koeltl on 2/10/2016) (rjm)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
THE MERCATOR CORPORATION,
15-cv-02970 (JGK)
Plaintiff,
OPINION AND ORDER
- against LARS WINDHORST, ET AL.,
Defendants.
────────────────────────────────────
JOHN G. KOELTL, District Judge:
The plaintiff, the Mercator Corporation (“Mercator”), sued
Lars Windhorst and Sapinda Holding B.V. (“Sapinda Holding”) for
breach of contract.
The defendants now move to dismiss the
Amended Complaint on the grounds that the plaintiff failed to
sue the proper parties, that the claim is barred by the statute
of frauds, and that the Court lacks personal jurisdiction over
the defendants.
For the reasons explained below, the Amended
Complaint is dismissed without prejudice.
I.
The defendants move to dismiss the plaintiff’s Amended
Complaint pursuant to Federal Rules of Civil Procedure 12(b)(2)
(lack of personal jurisdiction) and 12(b)(6) (failure to state a
claim upon which relief can be granted).
On a motion to dismiss for lack of personal jurisdiction,
“‘the plaintiff bears the burden of showing that the court has
jurisdiction over the defendant.’”
Mende v. Milestone Tech.,
Inc., 269 F. Supp. 2d 246, 251 (S.D.N.Y. 2003) (quoting Kernan
v. Kurz–Hastings, Inc., 175 F.3d 236, 240 (2d Cir. 1999).
When
the Court does not hold an evidentiary hearing and “relies
solely on the pleadings and supporting affidavits, the plaintiff
need only make a prima facie showing of jurisdiction.
In
determining whether a plaintiff has met this burden, [the Court]
will not draw argumentative inferences in the plaintiff’s favor”
but will “construe jurisdictional allegations liberally and take
as true uncontroverted factual allegations.”
Robinson v.
Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir. 1994)
(internal citations and footnotes omitted); see also Mende, 269
F. Supp. 2d at 251.
In deciding a motion to dismiss pursuant to Rule 12(b)(6),
the allegations in the complaint are accepted as true, and all
reasonable inferences must be drawn in the plaintiff’s favor.
McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.
2007).
The Court’s function on a motion to dismiss is “not to
weigh the evidence that might be presented at a trial but merely
to determine whether the complaint itself is legally
sufficient.”
1985).
Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.
The Court should not dismiss the complaint if the
plaintiff has stated “enough facts to state a claim to relief
that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550
2
U.S. 544, 570 (2007).
“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).
While the Court should construe the factual allegations in
the light most favorable to the plaintiff, “the tenet that a
court must accept as true all of the allegations contained in
the complaint is inapplicable to legal conclusions.”
Id.; see
also Springer v. U.S. Bank Nat’l Ass’n, No. 15-cv-1107 (JGK),
2015 WL 9462083, at *1 (S.D.N.Y. Dec. 23, 2015).
When presented
with a motion to dismiss pursuant to Rule 12(b)(6), the Court
may consider documents that are referenced in the complaint,
documents that the plaintiff relied on in bringing suit and that
are either in the plaintiff’s possession or that the plaintiff
knew of when bringing suit, or matters of which judicial notice
may be taken. See Chambers v. Time Warner, Inc., 282 F.3d 147,
153 (2d Cir. 2002); see also Faulkner v. Beer, 463 F.3d 130, 134
(2d Cir. 2006) (holding documents outside the record may become
the basis for a dismissal if the document is “integral” to the
complaint and there are no disputes regarding its authenticity
or relevance); Springer, 2015 WL 9462083, at *1.
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II.
The following facts alleged in the Amended Complaint are
accepted as true for the purposes of the defendant’s motion to
dismiss.
Mercator is a New York corporation and merchant bank
headquartered in Manhattan and owned and operated by its founder
and CEO, James H. Giffen, a New York resident.
Amended Compl.
¶¶ 2, 9.
Lars Windhorst, is the co-founder and Chairman of the Board
of Sapinda Holding, a Dutch Company.
Amended Compl. ¶¶ 3, 10.
Windhorst is a German citizen residing in London, and his office
is located at the London office of one of Sapinda’s
subsidiaries, Sapinda UK Limited (“Sapinda UK”). Amended Compl.
¶ 11.
The plaintiff filed an original complaint naming Sapinda
UK Limited, a British company headquartered in London, as a
defendant.
Compl. ¶ 10.
Sapinda UK Limited was dropped as a
named defendant from the Amended Complaint. 1
On or about January 31 and February 1, 2014, Windhorst and
Giffen met aboard Windhorst’s yacht in waters off the Virgin
Islands, after being introduced by a mutual acquaintance.
Amended Compl. ¶¶ 4-5, 20.
The defendants were exploring
investment opportunities across Europe, Africa, the Middle East,
1
According to a declaration submitted by the defendants, Sapinda
UK Limited is now in voluntary liquidation. See Fox Decl. ¶¶ 23 & Ex. A.
4
and Asia, and Giffen came recommended as knowledgeable of and
connected to opportunities in Kazakhstan.
Amended Compl. ¶¶ 3-
4, 18.
The plaintiff alleges that during this meeting at sea, “the
essential terms of a collaboration” were “negotiated and agreed
upon” and Mr. Windhorst, on behalf of Sapinda, agreed to hire
Mercator to “provide consulting and advisory services to Mr.
Windhorst and Sapinda in connection with investment
opportunities.”
Amended Compl. ¶ 5.
After this meeting, Giffen sent an email to Windhorst
suggesting they “open a Sapinda office in New York which could
be a communication point for all of Sapinda Holding activities.”
Amended Compl. ¶ 23. He added that he “look[ed] forward to your
[Windhorst’s] summary of the agreements we reached today.”
Pincus Decl. Ex. 3; see also Amended Compl. 23.
On February 2, 2014, Windhorst sent an email response “on
behalf of Sapinda,” Amended Compl. ¶ 25, upon which the
plaintiff bases its claims for breach of contract.
The email
states:
Dear Jim,
It was a privilege to meet you and I very much
enjoyed
the
time
together
and
our
interesting
discussion
I am happy to confirm our agreed arrangement with
700.000 USD fixed compensation for you, hiring you[r]
current PA and establishing the NY office
5
You also have a 300.000USD budget to hire
additional people and of course this can be adjusted
if needed.
We will discuss [a] potential bonus each year and
for the first time early 2015 after we have worked for
this year together.
Our arrangement is supposed to be for the next 5
year[s]
I am very excited working with you and I look
very much forward [to] seeing you in London soon to
introduce you [to] my core team
We will discuss more details next week on the
phone and start the process on everything
All the best
Lars
Lars Windhorst
Sapinda UK Limited
6th Floor
23 Savile Row
London W1S 2ET
Tel +44-207-6475847
Fax +44-207-6479879
Lars.windhorst@sapinda.com
Pincus Decl., Ex. 3; see also Amended Compl. ¶ 25.
The plaintiff contends that this email established a
binding contract between Mercator and both Sapinda Holding and
Windhorst individually.
See Amended Compl. ¶ 6.
The plaintiff alleges that “[t]he parties commenced
performance under the Contract almost immediately.”
Compl. ¶ 28.
Amended
The plaintiff alleges that Windhorst sent Giffen
emails related to potential investments in Kazakhstan and
Ukraine, Amended Compl. ¶¶ 29-30, and that Giffen traveled to
London for meetings with some of Windhorst’s colleagues on
February 27-28, 2014 and on May 20, 2014.
33-34.
6
Amended Compl. 31,
In May and June 2014, Giffen submitted to Sapinda UK
Limited invoices, which were paid, for reimbursement of expenses
for Giffen’s travel to London.
The invoices referred to “the
agreement reached between Mr. Lars Windhorst and Mr. J.H. Giffen
on February 1, 2014 for Mr. Giffen to assist Mr. Windhorst in
the strategic development of Sapinda UK Limited.”
Pincus Decl.
Exs. 6-7; Amended Compl. ¶ 36.
On May 22, 2014, Giffen emailed Windhorst to express
disappointment “with the reaction of some of your colleagues
with respect to our agreement to work together.”
Ex. 4.
Pincus Decl.
Giffen wrote that he respected Windhorst’s “commitment
to stand personally behind the agreement we made,” and that he
wanted to work with Windhorst “from both a personal and
professional standpoint.”
He added that he “will very shortly
send you a draft document incorporating our agreement” and
expressed a willingness to discuss and incorporate “any
mutual[ly] acceptable concepts in the draft agreement.”
Id.
On May 29, 2014, Giffen sent Windhorst another email.
He
stated that he and Windhorst “reached agreement on February 1,
2014 that we would work together in the strategic development of
Sapinda for a five year period.”
Giffen wrote that he “accepted
[Windhorst’s] offer for our agreement to begin on March 1,
2014.”
See Pincus Decl., Ex. 8; see also Amended Compl. ¶ 38.
Giffen added that, “[o]ver the last four months, I have done
7
everything in my power to begin executing our agreement” but was
“prepared to consider your offer to terminate our agreement to
work together” for “a one-time settlement payment of the net
present value of only the five year compensation we had agreed
upon for me and my staff.”
Pincus Decl. Ex. 8.
On June 23, 2014, the plaintiff sent a third invoice to
Sapinda UK Limited for $250,000 for a “consultant fee” for the
period March 1, 2014 to May 31, 2014.
also Amended Compl. ¶ 39.
Pincus Dec. Ex. 7; see
The invoice referred only to Sapinda
UK, not Sapinda Holding.
On April 16, 2015, the plaintiff filed the original
complaint against Windhorst and Sapinda UK. The original
complaint alleged that Windhorst and Sapinda UK hired Mercator
to provide consulting and advisory services “to assist Mr.
Windhorst in the strategic development of Sapinda UK Limited.”
Compl. ¶ 5.
The plaintiff alleged the agreement was
“memorialized” in Windhorst’s February 2 email, which he sent on
behalf of Sapinda UK with his Sapinda UK signature block.
Compl. ¶¶ 22-23 (reproducing Windhorst’s signature block in
full).
The original complaint also alleged that Giffen invoiced
“Sapinda UK Limited” for Giffen’s travels to London.
Compl.
¶ 29.
On July 1, 2015, the plaintiff filed an Amended Complaint,
which dropped Sapinda UK Limited and added Sapinda Holding B.V.
8
as a party.
The Amended Complaint also removed references to
Sapinda UK and replaced them with references to Sapinda Holding.
Compare, e.g., Compl. ¶ 5, with Amended Compl. ¶ 5; Compl. ¶ 23,
with Amended Compl. ¶ 26; Compl. ¶ 29, with Amended Compl. ¶ 36.
The Amended Complaint alleges a single claim for breach of
contract against Windhorst and Sapinda Holding.
In the Amended Complaint, the plaintiff alleges, without
reference to specific facts, that Sapinda Holding “throughout
its course of dealing with Mr. Giffen and Mercator, assumed the
role of a party to the Contract” and “manifested its intent to
be bound by the Contract.”
Amended Compl. ¶ 44.
The plaintiff
further alleges that Windhorst was “centrally involved in the
negotiation, formation, management and breach of the
Contract, and in his course of dealing with Mr. Giffen and
Mercator, he manifested his intent to be individually bound by
the Contract.”
Amended Compl. ¶ 45.
The plaintiff alleges a breach of contract for the
defendants’ alleged failure “to pay the guaranteed fixed
compensation under the Contract and purporting to cancel
the Contract without cause.”
Amended Compl. ¶¶ 47.
The
plaintiff seeks damages, costs, and fees.
The defendants move to dismiss the Amended Complaint on
three grounds: first, that the plaintiff failed to sue the
proper party; second, that any contract between the plaintiff
9
and the defendants would be barred by the statute of frauds; and
third, that the Court lacks personal jurisdiction over the
defendants.
III.
A.
The parties concede for the purposes of this motion that
New York law applies.
“Under New York law, a breach of contract
claim requires (1) a valid contract; (2) plaintiff’s
performance; (3) defendant’s failure to perform; and (4) damages
resulting from the breach.”
TransformaCon, Inc. v. Vista Equity
Partners, Inc., No. 15cv3371 (SAS), 2015 WL 4461769, at *3
(S.D.N.Y. July 21, 2015) (internal quotation marks and footnote
omitted).
“A breach of contract claim that fails to allege
facts sufficient to show that an enforceable contract existed
between the parties is subject to dismissal,” and a “nonsignatory to a contract cannot be named as a defendant in a
breach of contract action unless it has thereafter assumed or
been assigned the contract.”
Id. (internal quotation marks and
footnotes omitted); Crabtree v. Tristar Automotive Grp., Inc.,
776 F. Supp. 155, 166 (S.D.N.Y. 1991) (“It is hornbook law that
a non-signatory to a contract cannot be named as a defendant in
a breach of contract action unless it has thereafter assumed or
been assigned the contract.”).
10
The defendants argue that the plaintiff has failed to sue
the proper party.
The defendants contend that if any contract
existed, it could only have been formed between Mercator and
Sapinda UK Limited, not Sapinda Holding, which is the only named
corporate defendant in the Amended Complaint and which the
defendants contend is a non-signatory to the contract.
The plaintiff counters that there is a valid and
enforceable contract and that Sapinda Holding is the real party
in interest to the contract and Sapinda UK merely provided local
services to the holding company, Sapinda Holding. The plaintiff
also alleges that Windhorst was a party to the contract and
“manifested his intent to be individually bound by the
Contract.”
Amended Compl. ¶ 45.
The plaintiff has failed to allege sufficient facts to
support the existence of a contract between Mercator and Sapinda
Holding or Windhorst.
With respect to the corporate defendant,
the Amended Complaint and the documents upon which it relies to
establish the contract---including the February 2 email and
Giffen’s travel invoices---show that the contract, if it
existed, was between Mercator and Sapinda UK, not Sapinda
Holding.
Windhorst signed the contract above a Sapinda UK
signature block.
See Pincus Decl., Ex. 3; see also Amended
Compl. ¶ 23; cf. Compl. ¶ 23 (reproducing full Sapinda UK
signature block). The invoices were sent on behalf of Mercator
11
to Sapinda UK Limited and referenced Giffen’s agreement “to
assist Mr. Windhorst in the strategic development of Sapinda UK
Limited.”
See Pincus Decl. Exs. 5 & 6 (emphasis added).
The plaintiff argues that Sapinda UK, as a subsidiary of
Sapinda Holding, was simply the nominal counterparty to the
alleged contract and that Sapinda Holding was the real party in
interest.
But “[g]enerally, ‘a parent corporation and its
subsidiary are regarded as legally distinct entities and a
contract under the corporate name of one is not treated as that
of both.’”
S.M. v. Oxford Health Plans (N.Y.), Inc., 94 F.
Supp. 3d 481, 498 (S.D.N.Y. 2015) (quoting Carte Blanche
(Singapore) Pte., Ltd. v. Diners Club Int’l, Inc., 2 F.3d 24, 26
(2d Cir. 1993); see also Celi v. Canadian Occidental Petroleum
Ltd., 804 F. Supp. 465, 468 (E.D.N.Y. 1992) (“In New York, there
is a ‘presumption of separateness’ to related corporations.”
(citation omitted)).
The plaintiff’s allegation that Sapinda Holding “assumed
the role of a party to the Contract,” Amended Compl. ¶ 44, is
merely conclusory, and “[c]onclusory allegations are
insufficient to survive a motion to dismiss.”
Banco Indus. de
Venezuela, C.A. v. CDW Direct, LLC, 888 F. Supp. 2d 508, 514-15
(S.D.N.Y. 2012) (citing Iqbal, 556 U.S. at 676).
With respect to defendant Windhorst, the plaintiff’s own
allegations undermine its claim that Windhorst was a party to
12
the contract.
See Amended Compl. ¶¶ 35, 45.
The plaintiff
repeatedly alleges that Windhorst acted “on behalf of Sapinda”
when hiring Giffen.
See Amended Compl. ¶¶ 22, 25-27.
Under New
York law, a corporate officer who signs for a corporation is not
personally bound by the contract, “‘unless there is clear and
explicit evidence of the agent’s intention to substitute or
superadd his personal liability for, or to, that of his
principal.’”
Lerner v. Amalgamated Clothing & Textile Workers
Union, 938 F.2d 2, 5 (2d Cir. 1991) (quoting Mencher v. Weiss,
114 N.E.2d 177, 179 (N.Y. 1953)); see also Veera v. Janssen, No.
05cv2145 (SHS), 2005 WL 1606054, at *4 (S.D.N.Y. July 5, 2005).
Giffen’s own comment in a May 21 email that he “respect[ed]
[Windhorst’s] commitment to stand personally behind the
agreement,” Amended Compl. ¶ 35; Pincus Decl. Ex. 4, does not
constitute clear and explicit evidence to establish individual
liability.
Giffen cannot bootstrap his own self-serving comment
into clear and explicit evidence that Windhorst accepted
individual liability.
See Performance Comercial Importadora E
Exportadora Ltda v. Sewa Int’l Fashions Pvt. Ltd., 915 N.Y.S.2d
44, 46 (App. Div. 2010) (holding, in light of the “clear and
explicit evidence” standard, that “the parties’ correspondence
[was] insufficient to raise an issue of fact as to whether Star
of India intended to superadd or substitute its own liability
for, or to, that of Sewa”); see also Lerner, 938 F.2d at 5-6
13
(holding signature of corporation president on certificate of
ratification of collective bargaining agreement did not bind
president individually).
Accordingly, the breach of contract claim against Windhorst
and Sapinda Holding is dismissed without prejudice for failure
to state a claim.
See Yucyco, Ltd. v. Republic of Slovenia, 984
F. Supp. 209, 216 (S.D.N.Y. 1997) (dismissing claim against nonsignatory party despite allegation that party “transformed
itself into an obliger under the [agreement] by playing an
‘integral role’” in restructuring agreement’s debt structure).
B.
The Amended Complaint should also be dismissed because the
contract pleaded fails to satisfy the statute of frauds.
Under the New York Statute of Frauds, “[e]very agreement,
promise or undertaking is void, unless it or some note or
memorandum thereof be in writing, and subscribed by the party to
be charged therewith, or by his lawful agent, if such agreement,
promise or undertaking: . . . By its terms is not to be
performed within one year from the making thereof.”
Oblig. Law § 5-701(a)(1).
N.Y. Gen.
“To be considered a sufficient
memorandum within the ambit of the Statute of Frauds, a writing
‘must designate the parties, identify and describe the subject
matter and state all the essential or material terms of the
contract.’”
Allied Sheet Metal Works, Inc. v. Kerby Saunders,
14
Inc., 619 N.Y.S.2d 260, 262 (App. Div. 1994) (quoting Villano v.
G & C Homes, Inc., 362 N.Y.S.2d 198, 200 (App. Div. 1974)).
As an initial matter, “[t]he affirmative defense of the
Statute of Frauds is appropriately raised on a motion to
dismiss.”
Reives v. Lumpkin, No. 08cv7797 (CM), 2012 WL
2045854, at *8 (S.D.N.Y. June 4, 2012) (citing Rosbach v. Indus.
Trading Co., Inc., 81 F. Supp. 2d 522, 524 (S.D.N.Y. 2000).
The Amended Complaint fails to allege that there was a
writing that satisfies the statute of frauds.
The February 2
email fails to designate the parties to the contract---the email
lists Windhorst’s affiliation as Sapinda UK and not Sapinda
Holding.
the email.
There is in fact no reference to Sapinda Holding in
Furthermore, Windhorst’s alleged commitment to
“stand personally behind” the contract would constitute an oral
guarantee that would be unenforceable under the Statute of
Frauds, which provides that an agreement that is “a special
promise to answer for the debt, default or miscarriage of
another person” is void without a signed writing.
N.Y. Gen.
Oblig. Law § 5-701; see also Netto v. Rastegar, No. 12cv4580
(CM), 2012 WL 4336167, at *9 (S.D.N.Y. Sept. 20, 2012).
The plaintiff contends that part performance of the
contract should defeat a defense of the Statute of Frauds.
However, where, as here, the plaintiff seeks only money damages
without any specific prayer for equitable relief, the plaintiff
15
cannot rely on the doctrine of part performance to defeat a
statute of frauds defense.
See MSL Prods., Inc. v. IMR Grp.,
LLC, 971 N.Y.S.2d 192, 196 (N.Y. Sup. Ct. 2013); see also Am.
Tower Asset Sub, LLC v. Buffalo-Lake Erie Wireless Sys. Co., 961
N.Y.S.2d 667, 668 (App. Div. 2013) (memorandum).
Some courts have granted motions to dismiss with prejudice
where the Statute of Frauds has clearly applied.
See, e.g.,
Intertex Trading Corp. v. Ixtaccihuatl S.A. de CV, 754 F. Supp.
2d 610, 615-16 (S.D.N.Y. 2010); Zeising v. Kelly, 152 F. Supp.
2d 335, 344 (S.D.N.Y. 2001); Belotz v. Jefferies & Co., No.
98cv2587 (LAP), 1999 WL 587916, at *2 (S.D.N.Y. Aug. 4, 1999),
aff’d, 213 F.3d 625 (2d Cir. 2000).
However, the Court has
afforded the plaintiff the opportunity to file another
complaint, and the Court cannot determine at this point that the
plaintiff could not allege a sufficient writing in the next
complaint.
Therefore, the defendants’ motion to dismiss the
Amended Complaint is granted without prejudice to the filing of
a Second Amended Complaint.
See, e.g., Zucker v. Katz, 708 F.
Supp. 525, 531 (S.D.N.Y. 1989).
C.
The defendants also argue that even if the Amended
Complaint pleaded an actionable claim, it should be dismissed
for lack of personal jurisdiction over the defendants.
16
District courts resolving issues of personal jurisdiction
over out-of-state defendants in a diversity action engage in a
two-part analysis.
First, the Court determines whether there is
jurisdiction over the defendant under the applicable long-arm
statute, here New York’s C.P.L.R. § 302(a).
Second, the Court
determines whether an exercise of jurisdiction under that
statute is consistent with federal due process requirements.
Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d
779, 784 (2d Cir. 1999) (Sotomayor, J.) (citing Metro. Life Ins.
Co. v. Robertson-Ceco Corp., 84 F.3d 560, 567 (2d Cir. 1996)).
Here, the only alleged basis for personal jurisdiction is
the transaction of business in New York.
See N.Y. C.P.L.R.
302(a)(1) (“[A] court may exercise personal jurisdiction over
any non-domiciliary [who] . . . transacts any business within
the state or contracts anywhere to supply goods or services in
the state”).
The plaintiff contends, first, that the defendants entered
into a contract with a New York corporation to provide
consulting services, the defendants knew that the company was in
New York and that they were contracting to have services
performed in New York.
Second, part of the contract was to hire
a “PA,” or personal assistant, for Giffen to use in New York.
While these contacts may be sufficient to give rise to personal
jurisdiction, see, e.g., Fischbarg v. Doucet, 880 N.E.2d 22, 26
17
(N.Y. 2007), they turn on the existence of a contract for the
plaintiff to perform services and hire an assistant.
Because
the plaintiff has not sufficiently alleged a contract with these
defendants, there is no personal jurisdiction over these
defendants.
See Lana Mora, Inc. v. S.S. Woermann Ulanga, 672 F.
Supp. 125, 127-28 (S.D.N.Y. 1987) (“Where there is no
contractual relationship, there can be no personal jurisdiction
under CPLR § 302(a)(1) based upon a defendant’s having
contracted to supply goods or services in New York.”)
If the plaintiff files a Second Amended Complaint that
properly alleges a contract, the Court will consider the issue
of personal jurisdiction as it relates to such a complaint.
CONCLUSION
The defendants’ motion to dismiss the Amended Complaint is
granted, and the Amended Complaint is dismissed without
prejudice.
The plaintiff may file a Second Amended Complaint
within 30 days of the issuance of this opinion.
The Clerk is
directed to close ECF Docket No. 17.
SO ORDERED.
Dated:
New York, New York
February 10, 2016
_____________/s/____________
John G. Koeltl
United States District Judge
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