Hayles v. Aspen Properties Group, LLC et al

Filing 42

OPINION AND ORDER. For the reasons stated above, Defendants' motions to dismiss the complaint are GRANTED. In light of the Court's resolution of the motions to dismiss, Hayles' motion for class certification is DENIED as moot. If Hayle s wishes to amend his complaint, he shall move the Court to do so no later than October 1, 2017. In the event that Hayles moves to amend his complaint and includes class allegations in the amended pleading, Defendants are directed to ensure that any responses address all allegations in the amended pleading, including any allegations relating to a potential class action. The Clerk of the Court is respectfully requested to terminate the motions docketed at ECF Nos. 6 and 31. So ordered. re: 31 MOTION to Dismiss Plaintiff's Complaint filed by Aspen Properties Group, LLC, 6 MOTION to Certify Class filed by Gregory Hayles. (Signed by Judge John F. Keenan on 8/21/2017) (rjm)

Case 1:09-md-02013-PAC Document 57

Filed 09/30/10 Page 1 of 45
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: 08/21/2017

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------ X
GREGORY HAYLES,
UNITED STATES DISTRICT COURT:
:
SOUTHERN DISTRICT OF NEW YORK
Plaintiff,
:
-----------------------------------------------------------x
:
In re FANNIE MAE 2008 SECURITIES
:
08 Civ. 7831 (PAC)
-against:
LITIGATION
:
09 MD 2013 (JFK)
No. 16 Civ. 8919 (PAC)
:
:
OPINION & ORDER
ASPEN PROPERTIES GROUP, LLC
:
:
OPINION & ORDER
and WALDMAN, SAGGINARIO &
:
-----------------------------------------------------------x
ASSOCIATES, PLLC,
:
:
Defendants.
:
------------------------------ United States District Judge:
HONORABLE PAUL A. CROTTY, X

APPEARANCES
FOR PLAINTIFF GREGORY HAYLES
BACKGROUND1
Abraham Kleinman
KLEINMAN LLC
The early years of this decade saw a boom in home financing which was fueled, among
Tiffany Nicole Hardy
EDELMAN, COMBS, LATTURNER & GOODWIN, LLC
other things, by low interest rates and lax credit conditions. New lending instruments, such as
FOR DEFENDANTS ASPEN PROPERTIES GROUP, LLC and
subprime mortgages (high credit risk loans) and Alt-A mortgages (low-documentation loans)
WALDMAN, SAGGINARIO & ASSOCIATES, PLLC
George Vergos
kept the boom going. Borrowers played a role too; they took on unmanageable risks on the
JOHN F. KEENAN, United States District Judge:
assumption that the market would continue to rise and that refinancing options would always be
Plaintiff Gregory Hayles (“Hayles”) brings a putative class
available in the future. Lending discipline was lacking in the system. Mortgage originators did
action against defendants Aspen Properties Group, LLC (“Aspen”)
not hold these high-risk mortgage loans. Rather than carry the rising risk on their books, the
and Waldman, Sagginario & Associates, PLLC (“Waldman,” and
originators sold their loans into the secondary mortgage market, often as securitized packages
together, “Defendants”), alleging violations of the Fair Debt
known as mortgage-backed securities (“MBSs”). MBS markets grew almost exponentially.
Collection Practices Act, 15 U.S.C. § 1692 (the “FDCPA”).
But then the housing bubble burst. In 2006, the demand for housing dropped abruptly
Specifically, Hayles claims that Defendants violated provisions
and home prices began to fall. In light of the changing housing market, banks modified their
of the FDCPA through communications he received in 2015 and
lending practices and became unwilling to refinance home mortgages without refinancing.
2016. Defendants now move, pursuant to Federal Rule of Civil
Procedure 12(b)(6), to dismiss the complaint.
1

For the reasons

Unless otherwise indicated, all references cited as “(¶ _)” or to the “Complaint” are to the Amended Complaint,
dated June 22, 2009. For purposes of this Motion, all allegations in the Amended Complaint are taken as true.

1
1

set forth below, the Court grants Defendants’ motions to dismiss
and, consequently, denies Hayles’ motion for class
certification.

If Hayles wishes to move for leave to amend the

complaint, then he shall do so no later than October 1, 2017.
I. Background
Hayles resides in the Bronx, New York. (Compl. ¶ 10, ECF
No. 1 (filed Nov. 16, 2016).)

Aspen is a Maryland limited

liability company principally engaged in “the collection of
defaulted consumer debts.” (Id. ¶¶ 11-12.)

Aspen is purportedly

the managing member of Aspen G, LLC (“Aspen G”), which holds
title to debts. (Id. ¶ 15.)

Waldman is a New York limited

liability company which “collect[s] debts incurred for personal,
family, or household purposes[.]” (Id. ¶¶ 16-17.)

Hayles

alleges that both Aspen and Waldman are “debt collectors” within
the meaning of the FDCPA. (Id. ¶¶ 14, 18.)
According to the complaint and the supporting materials
attached to it, Hayles obtained a mortgage loan for $114,400 in
2006. (See id. ¶ 28; App. A at 9, 15, ECF No. 1-1 (filed Nov.
16, 2016).)

A related note and security agreement, signed by

Hayles and dated February 28, 2006, contained a clause
permitting acceleration of the entire loan balance upon default.
(App. A at 10, 16.)

The note and security agreement also

contained a provision allowing for assessment of a “late charge”
of $16 for past-due monthly payments. (Compl. ¶ 23; App. A at
2

15.)

Subsequently, in 2014, the mortgage was assigned to Aspen

G. (App. A at 51.)
The first communication relevant to this action occurred
when Waldman sent Hayles a letter dated November 23, 2015 (the
“November 2015 Letter”).

The November 2015 Letter explained

that Hayles’ loan was in default because Hayles had “failed to
make the payment due for August 1, 2011 and all subsequent
payments thereafter.” (Id. at 61.)

According to the November

2015 Letter, the amount required to cure and reinstate the loan
was $54,565.92, which included $800 in “Accrued Late Charges.”
(Compl. ¶ 26; App. A at 63.)

The November 2015 Letter also

stated that Hayles’ loan would be accelerated if not reinstated
by December 28, 2015. (Compl. ¶ 24; App. A at 62.)

According to

Hayles, the November 2015 Letter is the first communication he
received from Waldman regarding the debt. (Compl. ¶ 25.)
Subsequently, Waldman sent Hayles another communication
dated June 13, 2016 (the “June 13 Letter”).

The June 13 Letter

stated that Waldman had been retained by Aspen G to initiate a
foreclosure suit against Hayles and to collect on Hayles’
mortgage loan debt. (App. A at 69; see also Compl. ¶ 19.)
According to the June 13 Letter, Hayles was indebted “for the
unpaid principal amount of $110,590.30, in addition to interest,
advances, including, but not limited to reasonable attorney’s
fees and costs.” (App. A at 69.)
3

The June 13 Letter also

provided notice to Hayles that he had thirty days to dispute the
debt pursuant to the FDCPA. (Id. at 69-70.)
Then, Aspen sent Hayles a letter dated June 22, 2016 (the
“June 22 Letter”) and styled as a “2nd Mortgage Modification
Offer.” (Compl. ¶ 30; App. B at 1, ECF No. 1-2 (filed Nov. 16,
2016).)

The June 22 Letter explained that Hayles’ loan was in

default and had been referred to an attorney to proceed with
foreclosure. (App. B. at 1.)

It also provided that the “total

amount due” was $72,830.96, “including all past due fees and
costs as of July 1, 2016.” (Compl. ¶ 35; App. B at 1.)

The June

22 Letter purported to offer “an opportunity to enter into a
Loan Modification with a reduced Good Faith Payment of $500,”
and referred to an enclosed “Loan Modification Worksheet (LMW)
summarizing the proposed terms[.]” (App. B at 1.)
June 22 Letter stated:

Twice, the

“This is a one-time offer, and a great

opportunity to get back on track and modify your loan.” (Id. at
1-2.)

The final page of the June 22 Letter contained a sentence

reading:

“This communication is from a Debt Collector and any

information will be used for that purpose.” (Id. at 3.)

The

June 22 Letter is allegedly the first communication Hayles
received from Aspen. (Compl. ¶¶ 31-32.)
Finally, on August 1, 2016, Waldman sent Hayles a letter,
dated August 1, 2016 (the “August 1 Letter”) and styled as a
“Payoff Statement” with an as-of date of September 29, 2016.
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(Compl. ¶ 38; App. C at 1, ECF No. 1-3 (filed Nov. 16, 2016).)
The August 1 Letter stated that Waldman represented Aspen G and
provided information related to Hayles’ loan, purportedly “[p]er
your request[.]”1 (App. C. at 1.)

According to the August 1

Letter, Hayles owed an unpaid principal balance of $110,590.30,
late fees totaled $1,324.32, and the total amount owed,
including interest and fees, was $181,986.36. (Id. at 1-2;
Compl. ¶¶ 39-40.)
In the instant action, Hayles claims that Defendants
violated various sections of the FDCPA through their respective
communications with Hayles in 2015 and 2016.

With respect to

Waldman, Hayles claims violations of §§ 1692g, 1692e, 1692e(2),
1692e(10), 1692f, and 1692f(1), pointing to the November 2015
Letter and the August 1 Letter.

With respect to Aspen, Hayles

claims that the June 22 Letter violated § 1692g by omitting
required information and misstating the total amount of the
debt.

Hayles also asserts allegations and seeks to certify a

class under Federal Rule of Civil Procedure 23. (See Pl.’s Mot.
for Class Certification, ECF No. 6 (filed Nov. 16, 2016).)
Defendants filed motions to dismiss, pursuant to Rule
12(b)(6), but failed to address or otherwise respond in any way

The August 1 Letter is addressed to, and sent “care of,” an
attorney for Hayles. (App. C. at 1.) The attorney addressed is
a separate individual from Hayles’ counsel in the matter before
this Court.
1

5

to Hayles’ motion for class certification.

The Court heard oral

argument on Defendants’ motions to dismiss on May 23, 2017.
II. Legal Standard
In deciding a motion to dismiss pursuant to Rule 12(b)(6),
the factual allegations in the complaint are accepted as true,
and all reasonable inferences must be drawn in the plaintiff’s
favor. See McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191
(2d Cir. 2007).

A complaint should not be dismissed if the

plaintiff has alleged “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 factual allegations should be construed in the

light most favorable to the plaintiff, “the tenet that a court
must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions.” Id.
When presented with a motion to dismiss pursuant to Rule
12(b)(6), a district court may consider “the complaint,
documents attached to the complaint as exhibits, and documents
incorporated by reference in the complaint.” DiFolco v. MSNBC
Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010).

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III. Discussion
The FDCPA was enacted in 1977 to check “abusive, deceptive,
and unfair” practices employed by debt collectors. Castro v.
Green Tree Servicing LLC, 959 F. Supp. 2d 698, 706 (S.D.N.Y.
2013) (quoting 15 U.S.C. § 1692).

In evaluating claims under

the FDCPA, courts use “an objective standard based on whether
the ‘least sophisticated consumer’ would be deceived by the
collection practice.” Id. at 707 (quoting Maguire v. Citicorp
Retail Servs., Inc., 147 F.3d 232, 236 (2d Cir. 1998)).
“[B]ecause the least sophisticated consumer standard is
objective, the determination of how the least sophisticated
consumer would view language in a defendant’s collection letter
is a question of law.” Id. (collecting cases); see also Miller
v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 309-11 (2d Cir.
2003) (analyzing least sophisticated consumer standard and
holding that initial collection letter at issue did not violate
FDCPA as a matter of law).
A. Defendants’ Alleged Violations of § 1692g
Hayles claims that Waldman and Aspen violated § 1692g by
virtue of their communications with him in 2015 and 2016.

As

relevant here, § 1692(a) requires that, within five days of an
“initial communication with a consumer” made “in connection with
the collection of any debt,” a debt collector must provide the
consumer with written notice of the amount of the debt and the
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procedure and timeline for disputing the validity of the debt,
among other pieces of information. 15 U.S.C. § 1692g(a).
As an initial matter, Hayles alleges that Waldman and Aspen
are “debt collectors” within the statutory definition. (Compl.
¶¶ 14, 18.)

Moreover, the parties agree that the November 2015

Letter constitutes the “initial communication” from Waldman.
(See id. ¶ 25; Mem. in Support of Def. Waldman, Sagginario &
Associates, PLLC’s Mot. to Dismiss at 2, ECF No. 35 (filed Feb.
1, 2017).)
1. The Allegations Do Not Show That Waldman Violated § 1692g
Hayles alleges that Waldman violated § 1692g by
inaccurately calculating the amount of the debt and the amount
of late charges in the November 2015 Letter.2 (Compl. ¶¶ 49-50.)
According to the complaint and attachments, the November 2015
Letter stated that Hayles must pay $54,565.92 to “cure the
default and reinstate [his] loan.” (App. A at 61.)

As a portion

of that sum, the November 2015 Letter itemized $800 in “accrued
late charges.” (Compl. ¶ 26; App. A at 63.)

Hayles’ contention

that the November 2015 Letter contains inaccurate calculations

Although Hayles appears to claim that the August 1 Letter also
violates § 1692g, his own pleadings foreclose that possibility.
Hayles alleges that the November 2015 Letter was the initial
communication he received from Waldman regarding the debt.
(Compl. ¶ 25.) If the November 2015 Letter was Waldman’s
initial communication with Hayles, then it follows that
subsequent communications from Waldman were not the “initial”
communication and § 1692g(a) does not apply.
2

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depends on reading that document in connection with the August 1
Letter.

There, Waldman stated that the unpaid principal balance

was $110,590.30 and the total amount due was $181,986.36. (See
App. C at 1-2.)

The August 1 Letter also stated that late fees

amounted to $1,324.32. (Compl. ¶ 40; App. C at 1.)

Based on a

comparison of the figures in the November 2015 Letter and the
August 1 Letter, Hayles infers that at least one communication,
and possibly both, contained erroneous calculations related to
his debt obligation. (Compl. ¶ 46.)
Taking the allegations as true, as the Court must at this
stage, Hayles nevertheless fails to explain why the amount due
in the November 2015 Letter is inaccurate.

The original

principal value of the loan was $114,400. (See, e.g., App. A at
15.)

According to the November 2015 Letter, Hayles “failed to

make the payment due for August 1, 2011 and all subsequent
payments thereafter.” (Id. at 61.)

Hayles alleges that the loan

“was not reinstated by December 28, 2015 and was accelerated,”
likely on or after that date. (Compl. ¶¶ 24, 29; see also App.
A. at 62.)

These allegations readily lead to the conclusion

that subsequent communications from Waldman—i.e., the June 13
Letter and August 1 Letter—reflect a greater amount due because
the loan was accelerated on or after December 28, 2015, leading
to the entire unpaid principal balance becoming due. (See App. A
at 69 (“[Y]ou are indebted to the aforesaid for the unpaid
9

principal amount of $110,590.30 . . . .”); App. C at 1
(identifying unpaid principal balance as $110,590.30).)

Hayles’

allegations simply identifying an inconsistency between the
amounts due on different dates, therefore, do not demonstrate
that the amount due in the November 2015 Letter is inaccurate.
Hayles’ allegations also fail to establish that the amount
of late charges in the November 2015 Letter—$800—is inaccurate.
According to the complaint, the note and security agreement
provided for a late charge of $16 for any delayed monthly
payment. (Compl. ¶ 23; App. A at 15.)

According to the November

2015 Letter, Hayles failed to make monthly payments beginning on
August 1, 2011. (App. A at 61.)

Fifty months (i.e., the number

of months between August 2011 and November 2015) multiplied by
$16 (i.e., the monthly late charge) equals $800.

Thus, Hayles’

allegations do not establish that the amount of late charges in
the November 2015 Letter was inaccurate.
Accordingly, Hayles fails to state a claim that Waldman
violated § 1692g.
2. The Allegations Do Not Show That Aspen Violated § 1692g By
Sending the June 22 Letter
Hayles also claims that Aspen violated § 1692g by omitting
the required “notice of debt” and by misstating the amount of
the debt in the June 22 Letter. (Compl. ¶ 62.)

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In the Second

Circuit, three determinations are relevant to a claim brought
under § 1692g(a):
(1) whether any of the communications between the
parties were “initial communications” within the
meaning of § 1692g, (2) whether any of the
communications between the parties were “in
connection with the collection of any debt,” and
(3) whether [the debt collector] provided the
amount of the debt within five days of such a
communication.
Carlin v. Davidson Fink LLP, 852 F.3d 207, 212 (2d Cir. 2017).
As an initial matter, the parties dispute whether the June 22
Letter sent by Aspen constitutes an “initial communication,” a
phrase that the FDCPA does not define. See id. (“The FDCPA does
not offer a definition of ‘initial communication.’”).
Nevertheless, § 1692g(a) does not apply—and Hayles fails to
state a claim against Aspen—if the June 22 Letter was not “in
connection with the collection of [a] debt.”

Like “initial

communication,” the statutory phrase “in connection with the
collection of any debt” is not defined in the text of the FDCPA.
See Hart v. FCI Lender Servs., Inc., 797 F.3d 219, 224 (2d Cir.
2015).

However, the Second Circuit helpfully instructs:
[A]t the motion to dismiss stage, our role is to
determine merely whether, when viewed
objectively, the plaintiff “has plausibly alleged
that a consumer receiving the communication could
reasonably interpret it as being sent ‘in
connection with the collection of [a] debt,’
rather than inquiring into the sender’s
subjective purpose.”

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Carlin, 852 F.3d at 215 (alteration in original) (quoting Hart,
797 F.3d at 225).

The Second Circuit has identified several

inquiries relevant to this determination, including whether the
letter at issue:

(1) directs the recipient to mail payments to

a specified address; (2) refers to the FDCPA by name; (3)
informs the recipient that he or she has thirty days to dispute
the debt’s validity; and (4) “emphatically” announces itself as
an attempt at debt collection. Id.

Affirmative answers to these

inquiries counsel in favor of a determination that a plaintiff
has made an objective showing that a given communication occurs
“in connection with the collection of [a] debt.” See Carlin, 852
F.3d at 215 (letter at issue directed recipient to mail payments
to a specific address, referred to the FDCPA by name, and
emphatically announced itself as an attempt at debt collection);
Hart 797 F.3d at 226 (letter at issue directed recipient to mail
payments to a specific address, referred to the FDCPA by name,
informed recipient of thirty-day timeline for disputing the
debt, and emphatically announced itself as an attempt at debt
collection).
Here, the June 22 Letter lacks many of the characteristics
that the Second Circuit emphasized in Carlin and Hart.

It did

not direct Hayles to make payments to a specific address, refer
to the FDCPA by name, or inform Hayles of the timeline for
disputing the debt’s validity.

Instead, viewed objectively, the
12

June 22 Letter featured language directed toward presenting a
“2nd Mortgage Modification Offer” rather than attempting to
undertake debt collection. (App. B at 1.)

For example, it

stated that Aspen G “is now offering . . . an opportunity to
enter into a Loan Modification with a reduced Good Faith Payment
of $500.” (Id.)

The June 22 Letter also referred to an enclosed

“Loan Modification Worksheet” and claimed:

“This is a one-time

offer, and a great opportunity to get back on track and modify
your loan.” (Id. at 1-2.)

These terms present substantial,

objective indicia that a consumer would reasonably interpret the
June 22 Letter as a mortgage modification offer.
In fact, the June 22 Letter shares only one characteristic
with the communications at issue in Carlin and Hart.

Namely,

the final sentence on the last page of the June 22 Letter
states, in bold:

“This Communication is from a Debt Collector

and any information obtained will be used for that purpose.”
(Id. at 4.)

The Second Circuit has identified the presence of

similar statements as an important consideration in determining
whether a communication is connected to the collection of a
debt. See Carlin, 852 F.3d at 215.
Mindful of the “least sophisticated consumer” standard, the
Court also must exercise “care[] not to conflate lack of
sophistication with unreasonableness.” Ellis v. Solomon &
Solomon, P.C., 591 F.3d 130, 135 (2d Cir. 2010).
13

“[E]ven the

least sophisticated consumer can be presumed to possess . . . a
willingness to read” communications with some care. Id.
(internal quotation marks omitted).

Here, the Court concludes

that Hayles has not “plausibly alleged” that a consumer
receiving the June 22 Letter could “reasonably interpret it as
being sent in connection with the collection of [a] debt,” Hart,
797 F.3d at 225 (internal quotation marks omitted), because the
June 22 Letter contains clear language regarding a mortgage
modification offer and lacks three of the four characteristics
that the Second Circuit has identified as relevant to the
inquiry.
Accordingly, Hayles fails to state a claim that Aspen
violated § 1692g through the June 22 Letter.
B. Hayles’ Claims That Waldman Violated §§ 1692e and 1692f Are
Dismissed
Hayles lodges additional claims against Waldman, alleging
violations of §§ 1692e, 1692e(2), 1692e(10), 1692f, and 1692f(1)
on the basis of the same conduct that the Court has analyzed
above with respect to § 1692g.

The Court finds that Hayles’

claims under §§ 1692e and 1692f (and subsections thereof) are
inadequate under Federal Rule of Civil Procedure 8(a)(2), which
requires “a short and plain statement of the claim showing that
the pleader is entitled to relief[.]”

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Section 1692e prohibits a debt collector from using “any
false, deceptive, or misleading representation or means in
connection with the collection of any debt.”

Section 1692e

provides a non-exhaustive list of examples of prohibited
conduct, including the “false representation of . . . the
character, amount, or legal status of any debt[.]” 15 U.S.C. §
1692e(2)(A).

It also prohibits the “use of any false

representation or deceptive means to collect or attempt to
collect any debt or to obtain information concerning a
consumer.” Id. § 1692e(10).

Section 1692f, meanwhile, prohibits

a debt collector from using “unfair or unconscionable means to
collect or attempt to collect any debt.”3

Section 1692f also

provides a non-exhaustive list of examples of “unfair or
unconscionable means” of collection, including:

“The collection

of any amount . . . unless such amount is expressly authorized
by the agreement creating the debt or permitted by law.” Id.
§ 1692f(1).
Hayles advances no independent allegations or arguments in
support of his claims under §§ 1692e or 1692f.

Instead, the

Although the FDCPA does not offer a comprehensive definition of
“unfair or unconscionable,” recently two courts within this
Circuit have analyzed the phrase in detail. See Delfonce v.
Eltman Law, P.C., 16 Civ. 6627(AMD)(LB), 2017 WL 639249, at *5
(E.D.N.Y. Feb. 15, 2017); Sutton v. Fin. Recovery Servs., Inc.,
121 F. Supp. 3d 309, 314-16 (E.D.N.Y. 2015).
3

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first count of the complaint—directed against Waldman—merely
recites the language of the statutory sections and provides no
specific factual allegations supporting “false, deceptive, or
misleading” behavior under § 1692e or “unfair or unconscionable”
behavior under § 1692f.

Such claims lack “facial plausibility”

because they omit “factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678.

If “[t]hreadbare

recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice” to survive a motion to
dismiss under Rule 12(b)(6), id., then neither does simple
quotation of the statute that a defendant has allegedly
violated. See Oliver v. U.S. Bancorp, No. 14-CV-8948 (PKC), 2015
WL 4111908, at *5 (S.D.N.Y. July 8, 2015) (stating that “a
formulaic recitation of acts prohibited by the FDCPA, without
any alleged factual content, cannot survive a motion to dismiss”
and collecting cases).

Accordingly, Hayles fails to state a

claim to relief under §§ 1692e and 1692f with “facial
plausibility” and his claims must be dismissed.
C. Leave to Amend
Defendants seek dismissal of Hayles’ claims with prejudice.
Under Federal Rule of Civil Procedure 15, a court “should freely
give leave” to amend a pleading “when justice so requires.” See
Fed. R. Civ. P. 15(a)(2).

However, amendment “is not warranted
16

absent some indication as to what [a plaintiff] might add to
[its] complaint in order to make it viable[.]” Shemian v.
Research In Motion Ltd., 570 F. App’x 32, 37 (2d Cir. 2014)
(quoting Horoshko v. Citibank, N.A., 373 F.3d 248, 249 (2d Cir.
2004)).

Accordingly, should Hayles wish to amend his complaint,

his motion must demonstrate how he will cure the deficiencies in
his claims and that justice requires granting leave to amend,
and the motion shall be filed no later than October 1, 2017.
Conclusion
For the reasons stated above, Defendants’ motions to
dismiss the complaint are GRANTED.

In light of the Court’s

resolution of the motions to dismiss, Hayles’ motion for class
certification is DENIED as moot.

If Hayles wishes to amend his

complaint, he shall move the Court to do so no later than
October 1, 2017.

In the event that Hayles moves to amend his

complaint and includes class allegations in the amended
pleading, Defendants are directed to ensure that any responses
address all allegations in the amended pleading, including any
allegations relating to a potential class action.

17

The Clerk of the Court is respectfully requested to
terminate the motions docketed at ECF Nos.

6 and 31.

SO ORDERED.
Dated:

New York, New York
August J_ ( , 2017

~}n~

United States District Judge

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