The Mercator Corporation v. Sapinda UK Limited et al
Filing
60
MEMORANDUM OPINION AND ORDER re: 50 MOTION to Dismiss Plaintiff's Second Amended Complaint. filed by Sapinda Holding B.V. The defendant's motion to dismiss the Amended Complaint is granted, and the Amended Complaint is di smissed with prejudice. The Clerk is directed to enter judgment dismissing the Second Amended Complaint and closing the case. The Clerk is also directed to close all pending motions. (As further set forth in this Order.) (Signed by Judge John G. Koeltl on 11/10/2016) (cf)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
THE MERCATOR CORPORATION,
15-cv-2970 (JGK)
Plaintiff,
MEMORANDUM OPINION AND
ORDER
- against SAPINDA HOLDING B.V.,
Defendant.
────────────────────────────────────
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. This Court dismissed the First Amended
Complaint (“Amended Complaint”) without prejudice with leave to
replead. Mercator filed a Second Amended Complaint (“SAC”)
against Sapinda Holding alone. Sapinda Holding moves to dismiss
the SAC on the grounds that Mercator failed to sue the proper
party, that the claim is barred by the statute of frauds, and
that the Court lacks personal jurisdiction over the defendant.
For the reasons explained below, the Second Amended Complaint is
dismissed.
I.
The defendant moves to dismiss the SAC 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
1
relief can be granted). The plaintiff conducted discovery with
respect to personal jurisdiction but the parties did not seek an
evidentiary hearing.
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)).
Following discovery but prior to an evidentiary hearing, “the
plaintiff’s prima facie showing, necessary to defeat” a motion
to dismiss for lack of jurisdiction, “must include an averment
of facts that, if credited by the trier, would suffice to
establish jurisdiction over the defendant” and “must be
factually supported.” Ball v. Metallurgie Hoboken-Overpelt,
S.A., 902 F.2d 194, 197 (2d Cir. 1990).
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.”
Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.
1985). The Court should not dismiss the complaint if the
2
plaintiff has stated “enough facts to state a claim to relief
that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550
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.
3
II.
The SAC alleges that Sapinda Holding breached a contract
between Sapinda Holding and Mercator. The following factual
allegations are taken from the SAC and are accepted as true for
purposes of this 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. (SAC ¶¶ 2, 3.)
Lars Windhorst is the co-founder and Chairman of the Board of
Sapinda Holding, a Dutch Company. (SAC ¶ 8.) Windhorst also
served as a director of Sapinda UK Limited (“Sapinda UK”), a
subsidiary of Sapinda Holding, which allegedly served as an
entity providing services to the holding company, Sapinda
Holding. (SAC ¶¶ 9-10.) Sapinda Holding and Sapinda UK shared an
office in London, where Windhorst maintained his principal
office. (SAC ¶ 10.)
On January 31, 2014, Windhorst and Giffen met aboard
Windhorst’s yacht in waters off the Virgin Islands, after being
introduced by a mutual acquaintance who recommended Giffen as
knowledgeable of and connected to opportunities in Kazakhstan.
(SAC ¶¶ 26, 28.) Sapinda Holding was allegedly looking to expand
its global reach and to establish an office in New York, and
sought to hire Mercator for that purpose, as well as to assist
4
Sapinda Holding with potential investment opportunities. (SAC
¶ 25.)
The plaintiff alleges that during this meeting at sea, “the
essential terms and subject matter” of a collaboration were
“negotiated and agreed upon.” (SAC ¶ 29.) After this meeting,
Giffen sent an email (the “Giffen Email”) to Windhorst
suggesting they “open a Sapinda office in New York which could
be a communication point for all of Sapinda Holding activities.”
(SAC ¶ 35.) He added that he “look[ed] forward to your
[Windhorst’s] summary of the agreements we reached today.”
(SAC
¶ 35; Pincus Decl. Ex. 11, ECF No. 51-11.)
On February 2, 2014, Windhorst sent an email response
(“Windhorst Email”). (SAC ¶ 37.) 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
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
5
We will discuss more details early 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. 11, ECF No. 51-11.; see also SAC ¶
37.)(emphasis added.)
The “core team” referred to in the email allegedly
consisted of executives and key personnel from Sapinda Holding.
(SAC ¶ 38.) This email, as well as several other emails from
Windhorst to Giffen, were allegedly sent from Windhorst’s
Sapinda Holding business email address. (SAC ¶ 38.) These emails
included a Sapinda Holding Confidentiality Disclaimer: “The
information contained in this communication from
lars.windhorst@sapinda.com
. . . is confidential . . . Sapinda
Holding BV, its subsidiaries or any affiliated company, may have
an interest, position, or effect transaction, in any investment
mentioned herein.” (Pincus Decl. Ex. 11, ECF No. 51-11; see also
SAC ¶ 33.)
6
On February 26, 2014, Windhorst sent an e-mail (“Sapinda
Internal Email”) to Sapinda Holding executives S.K. Kim and
Edwin Eichler. (Pincus Decl. Ex. 12, ECF No. 51-12.) The email
states:
[Giffen] is a high profile U.S. deal maker .
. . . I have a hand shake deal with him to
work together and I want you to get to know
him better so that we can potentially agree
details with him . . . . He can help in all
emerging markets for Oil, Agri, mining, etc
. . . . [He] wants to commit to 5 years full
time and hard work and is flying over from
New York only for the meeting with us. I
want [] Tim and Jacob to also meet him.
(Id.; see also SAC ¶ 39.) The email is signed by “Lars
Windhorst[,] Sapinda UK Limited.” (Pincus Decl. Ex. 12, ECF No.
51-12.) The plaintiff contends that the Giffen Email, Windhorst
Email, and Sapinda Internal Email, taken together, memorialized
the material terms of a contract between Mercator and Sapinda
Holding. (SAC ¶ 45.) 1 The plaintiff also contends that the
Windhorst Email and the Sapinda Internal Email represent an
admission by Sapinda Holding as to the existence and essential
terms of the contract. (Id.)
1
While the Complaint plainly alleges that there was an enforceable contract
between Sapinda Holding and Mercator, at oral argument on the motion,
plaintiff’s counsel stated that the contract was between Sapinda UK and
Mercator, and that Sapinda Holding subsequently assumed that contract. Both
descriptions lack merit. As explained below, the documents indicate that any
alleged contract was with Sapinda UK, not Sapinda Holding. The factual
allegations also do not support the contention that Sapinda Holding assumed
the alleged contract between Mercator and Sapinda UK.
7
In February and March, 2014, Windhorst sent Giffen emails
related to business opportunities in Kazakhstan and Ukraine.
(SAC ¶¶ 48-49.) These business opportunities were explored
allegedly for the benefit of Sapinda Holding. (SAC ¶ 46.) Giffen
traveled to London for meetings with some of Windhorst’s Sapinda
Holding colleagues on February 27-28, 2014 and on May 20, 2014.
(SAC ¶¶ 50, 56.)
In May and June 2014, Giffen submitted to Sapinda UK
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. 14-15, ECF Nos. 51-14, 51-15; SAC ¶ 59.)(emphasis added.)
The decision to pay those invoices through Sapinda UK was
allegedly made by Windhorst’s personal assistant at Sapinda
Holding. (SAC ¶ 61.)
On May 20, 2014, Giffen met with Windhorst and Kim, and was
allegedly informed by Windhorst that some of Windhorst’s
colleagues at Sapinda Holding did not wish to work with
Mercator. (SAC ¶¶ 56-57.) Giffen emailed Windhorst on May 21,
2014 to express disappointment “with the reaction of some of
your colleagues with respect to our agreement to work together.”
(SAC ¶ 58.) On May 29, 2014, Giffen sent Windhorst another
8
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. 13, ECF No. 51-13; see
also SAC ¶ 63.) Giffen added that “[o]ver the last four months,
I have done 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. 13, ECF No. 51-13.)
On June 23, 2014, the plaintiff sent a third invoice to
Sapinda UK for $250,000 for a “consultant fee” for the period
March 1, 2014 to May 31, 2014. (Pincus Dec. Ex. 16, ECF No. 5116; see also SAC ¶ 65.) The invoice again referred only to the
“strategic development of Sapinda UK Limited,” not Sapinda
Holding. On the same day, Windhorst forwarded this invoice to
Sapinda Holding executive Kim, who responded: “We should not pay
this! I feel disgusted!” (SAC ¶ 66.) The invoice has not been
paid, and Mercator alleges that Sapinda Holding has purported to
renounce and terminate the alleged contract. (SAC ¶ 67.)
On April 16, 2015, the plaintiff filed the original
complaint against Windhorst and Sapinda UK. The original
9
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.) The original complaint also alleged that
Giffen invoiced “Sapinda UK Limited” for Giffen’s travels to
London. (Compl. ¶ 29.)
Defense counsel advised at argument on the current motion
that Sapinda UK went into liquidation in December 2014. On July
1, 2015, the plaintiff filed an Amended Complaint, which dropped
Sapinda UK and added Sapinda Holding as a party. The Amended
Complaint also removed references to Sapinda UK and replaced
them with references to Sapinda Holding, or simply deleted
references to Sapinda UK. (Compare, e.g., Compl. ¶ 5, with
Amended Compl. ¶ 5; Compl. ¶ 23, with Amended Compl. ¶ 26;
Compl. ¶ 29, with Amended Compl. ¶ 36.) The Amended Complaint
alleged a single claim for breach of contract against Windhorst
and Sapinda Holding.
The defendants moved to dismiss the Amended Complaint. The
Court, by opinion and order dated February 10, 2016, granted the
defendants’ motion and dismissed the Amended Complaint without
prejudice and with leave for the plaintiff to replead. See The
10
Mercator Corp. v. Windhorst, 159 F. Supp. 3d 463 (S.D.N.Y.
2016). The Court found that the breach of contract claim against
Windhorst and Sapinda Holding should be dismissed because the
plaintiff had not alleged a plausible claim of a contract
between Mercator and those parties. Id. at 470-71. The Court
also found that the Amended Complaint should be dismissed
because the contract pleaded failed to satisfy the statute of
frauds. Id. at 471-72. Finally, in the absence of a viable
contract, the Court found that the plaintiff had failed to
allege a basis for personal jurisdiction over the defendants.
Id. at 472.
The plaintiff filed the SAC on March 11, 2016. The SAC
alleges a single claim for breach of contract against Sapinda
Holding for “failing to pay the guaranteed fixed compensation
under the Contract and [for] purporting to cancel the Contract
without cause.” (SAC ¶ 77.) Mercator seeks damages, costs, and
fees. The defendant now moves to dismiss the SAC, again arguing
first, that Mercator failed to sue the proper party; second,
that any alleged contract is barred by the statute of frauds;
and third, that the Court lacks personal jurisdiction over the
defendant.
11
III.
A.
The parties concede for the purposes of this motion that
New York law applies.
The SAC must be dismissed because Sapinda Holding is not a
party to the purported contract. “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. 15-cv-3371 (SAS), 2015 WL 4461769, at *3
(S.D.N.Y. July 21, 2015) (quotation marks 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 “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.”
Id.
(footnotes and quotation marks omitted); see also Crabtree v.
Tristar Auto. 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.”).
The Court dismissed the Amended Complaint by its February
10 Opinion and Order, reasoning that despite the plaintiff’s
contention that Sapinda Holding is the real party in interest to
12
the alleged contract and that Sapinda UK merely provided local
services to the holding company, the Amended Complaint failed to
include any non-conclusory allegations to support such an
inference. The SAC makes the same contention, and includes as
support for this proposition an argumentative analysis of the
text of the same emails relied upon in the Amended Complaint and
additional internal emails of Sapinda Holding.
However, the plaintiff has still failed to allege a
plausible claim of a contract with Sapinda Holding. The
documents signed by Windhorst – including the only email that
was not already referenced in the Amended Complaint – are
plainly signed on behalf of Sapinda UK, not Sapinda Holding.
(See Pincus Decl. Exs. 11-12, ECF Nos. 51-11, 51-12.) Moreover,
the invoices sent on behalf of Mercator were directed to Sapinda
UK and referenced Giffen’s agreement “to assist Mr. Windhorst in
the strategic development of Sapinda UK Limited.” (Pincus Decl.
Exs. 14-15, ECF Nos. 51-14, 51-15).
As discussed above, the fact that Windhorst’s emails
included a disclaimer referencing Sapinda Holding does not make
the communications binding on Sapinda Holding or its
subsidiaries, and thus does not raise a reasonable inference
that Sapinda Holding had “assumed or been assigned the
contract.” Crabtree, 776 F. Supp. at 166. And the fact that
Sapinda Holding may have benefitted from work to be performed by
13
Mercator under the purported contract is irrelevant to the
question whether it assumed the contract’s obligations. See
Int’l Customs Assocs., Inc. v. Ford Motor Co., 893 F. Supp.
1251, 1256 n.3 (S.D.N.Y. 1995) (“The status of an intended
third-party beneficiary gives that person the right to sue; it
does not give others the right to sue that person on the
contract.”). Although the SAC alleges that certain employees of
Sapinda Holding were involved in discussing the purported
contract, it does not allege that the purported contract was
actually assumed by or assigned to Sapinda Holding, and none of
the conduct alleged “manifests an intent to be bound by the
contract.” Bouveng v. NYG Capital LLC, No. 14-cv-5474 (PGG),
2015 WL 3503947, at *17 (S.D.N.Y. June 2, 2015) (quotation marks
omitted). 2 Finally, the plaintiff alleges that Windhorst signed
as agent for Sapinda Holding, but that allegation is a legal
conclusion unsupported by any factual allegations. Indeed,
Windhorst’s signature block plainly establishes that he signed
on behalf of Sapinda UK. Moreover, as the plaintiff recognized
in its original complaint and conceded at argument on the
current motion, the purported contract was originally alleged to
2
By comparison, the complaint at issue in TransformaCon alleged that the
parent company “was intimately involved in” the negotiation of the contract
at issue and that it “participated in the negotiation and controlled the
subsidiary during the contract negotiations for its own benefit.” 2015 WL
4461769, at *5. The SAC, meanwhile, alleges that the contract had already
been formed by the time Windhorst discussed it with Sapinda Holding
executives. (See SAC ¶¶ 35-39.)
14
have been between the plaintiff and Sapinda UK. There are no
plausible factual allegations that such a contract was
thereafter assumed by Sapinda Holding.
B.
The SAC must be also 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.”
N.Y. Gen. Oblig. Law § 5-701(a)(1). “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, 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)).
The Court explained in its February 10 Opinion and Order
that the Amended Complaint failed to allege that there was a
writing that satisfies the statute of frauds because the emails
the Amended Complaint relied upon failed to designate the
parties to the contract. Mercator, 159 F. Supp. 3d at 471-72.
15
The SAC relies on the same set of emails, with the addition of
the Sapinda Internal Email. There is no explicit reference to
Sapinda Holding as a party to the purported contract in any of
these emails. Nor is there any reference to Mercator as the
counterparty. Giffen sent his emails through “ttwwnn@aol.com,”
and Windhorst acknowledged only a “hand shake deal” with Giffen
personally. (See Pincus Decl. Exs. 11, 12, ECF Nos. 51-11, 5112.) Accordingly, the writings relied upon in the SAC to
establish a purported contract still fail to identify the
parties to the purported contract, and therefore cannot satisfy
the statute of frauds.
Moreover, all the emails signed by Windhorst were signed
using a Sapinda UK signature block. (See Pincus Decl. Exs. 11,
12, ECF Nos. 51-11, 51-12.) Not a single email was signed on
behalf of Sapinda Holding, whom the plaintiff seeks to charge,
and which the SAC alleges was the contracting party. That the
emails contained a disclaimer which stated that “Sapinda Holding
BV, its subsidiaries or any affiliated company, may have an
interest” in any investment mentioned in the emails does not, as
the plaintiff seems to contend, transform a signature on behalf
of Sapinda UK into one on behalf of Sapinda Holding. (Pincus
Decl. Ex. 11, ECF. No. 51-11.) The plain language of the
signature block refutes any suggestion that Windhorst signed on
behalf of Sapinda Holding. Because the purported contract was
16
not signed by the party the plaintiff seeks to charge, it does
not satisfy the statute of frauds, and the plaintiff’s contract
claim is dismissed.
The Court has already afforded the plaintiff one
opportunity to replead. The SAC, which was filed after some
discovery, fails to cure the deficiencies in the Amended
Complaint. Because there is no reason to believe that the
plaintiff can further amend the complaint to cure the
deficiency, the SAC is dismissed with prejudice. See, e.g.,
Intertex Trading Corp. v. Ixtaccihuatl S.A. de CV, 754 F. Supp.
2d 610, 615-16 (S.D.N.Y. 2010) (granting motion to dismiss with
prejudice where claim was clearly barred by statute of frauds);
Zeising v. Kelly, 152 F. Supp. 2d 335, 344 (S.D.N.Y. 2001)
(same).
C.
The SAC must also be dismissed for lack of personal
jurisdiction. 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, if the statute is satisfied, the Court must determine
whether an exercise of jurisdiction under that statute is
consistent with federal due process requirements. Bank Brussels
17
Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d 779, 784 (2d
Cir. 1999) (Sotomayor, J.).
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 argues that the defendant entered into a
contract with a New York corporation to perform work in New York
– including anticipated hiring of staff in New York – and thus
purposefully availed itself of the laws of New York. But, as the
Court found with respect to the Amended Complaint, there is no
personal jurisdiction over the defendant because the plaintiff
has not provided a sufficient factual basis to conclude that
Sapinda Holding entered into the alleged contract. 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.”).
CONCLUSION
The defendant’s motion to dismiss the Amended Complaint is
granted, and the Amended Complaint is dismissed with prejudice.
The Clerk is directed to enter judgment dismissing the Second
18
Amended Complaint and closing the case. The Clerk is also
directed to close all pending motions.
SO ORDERED.
Dated:
New York, New York
November 10, 2016
_/s/_________________________
John G. Koeltl
United States District Judge
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