Kairam, M.D. v. West Side GI, LLC

Filing 93

ORDER for 82 Report and Recommendations,, 39 Motion for Preliminary Injunction filed by Indira Kairam, M.D., 34 Motion to Dismiss filed by West Side GI, LLC. The Court has reviewed de novo those portions of the R&R to which Plaintiff pr operly objects and has reviewed the remainder of the R&R for clear error. For the reasons stated above, the Court ADOPTS the R&R in its entirety. Defendant's motion is dismiss is GRANTED as to Plaintiff's federal claims. Because the Cour t declines to exercise supplemental jurisdiction over Plaintiff's state law claims, those claims are DISMISSED without prejudice to renewal in state court. Additionally, Plaintiff's request for leave to amend is DENIED as futile. Having granted Defendant's motion to dismiss, Plaintiff's motion for a preliminary injunction is DENIED as moot. (As further set forth in this Order.) (Signed by Judge Analisa Torres on 1/31/2019) (cf) Transmission to Orders and Judgments Clerk for processing.

specific objections, the court reviews de novo those portions of the report and recommendation to
which objection is made. Id.; Fed. R. Civ. P. 72(b)(3). However, “when a party makes only
conclusory or general objections, or simply reiterates his original arguments,” the court reviews the
report and recommendation strictly for clear error. Wallace v. Superintendent of Clinton Corr.
Facility, No. 13 Civ. 3989, 2014 WL 2854631, at *1 (S.D.N.Y. June 20, 2014); see also Bailey v.
U.S. Citizenship & Immigration Serv., No. 13 Civ. 1064, 2014 WL 2855041, at *1 (S.D.N.Y. June
20, 2014) (“[O]bjections that are not clearly aimed at particular findings in the [report and
recommendation] do not trigger de novo review.”). In addition, “new arguments and factual
assertions cannot properly be raised for the first time in objections to the report and recommendation,
and indeed may not be deemed objections at all.” Razzoli v. Fed. Bureau of Prisons, No. 12 Civ.
3774, 2014 WL 2440771, at *5 (S.D.N.Y. May 30, 2014). The court may adopt those portions of the
report and recommendation to which no objection is made “as long as no clear error is apparent from
the face of the record.” Oquendo v. Colvin, No. 12 Civ. 4527, 2014 WL 4160222, at *2 (S.D.N.Y.
Aug. 19, 2014) (internal quotation marks and citation omitted).
II.

Plaintiff’s Objections
A. EPA Claim
The R&R recommends dismissal of Plaintiff’s claim under the Equal Pay Act (“EPA”)

because (1) Plaintiff fails to allege any disparity in pay and (2) Plaintiff does not “adequately allege[]
that she and [her comparator] performed equal work in a job requiring equal skill, effort and
responsibility.” R&R at 6–9. Plaintiff objects to these findings, arguing first that Judge Aaron
“improperly discredits Plaintiff’s factual allegations” that “the male comparator was paid more than
Plaintiff.” Pl. Objs. at 7. This is not so. Judge Aaron credits the following allegations made by
Plaintiff: (1) Plaintiff “was offered employment with WSGI . . . for which she would be compensated
$100,00 per year,” (2) Plaintiff’s alleged comparator Dr. Distler “was paid a salary of $100,00 per
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year,” and (3) “[Defendant] set the salary for both positions at the same amount.” R&R at 6–7 (citing
SAC ¶¶ 22–26, 28). Based on these allegations, Judge Aaron concluded that “while [Plaintiff] may
have other avenues of legal recourse to recover the money she alleges that she is owed, her
allegations are insufficient to state a claim under the EPA.” Id. at 8. The Court agrees.
The EPA is violated “when an employer pays lower wages to an employee of one gender than
to substantially equivalent employees of the opposite gender in similar circumstances.” Pollis v. New
Sch. for Soc. Research, 132 F.3d 115, 118 (2d Cir. 1997). Plaintiff does not allege that WSGI paid
her lower wages than it paid Distler—only that WSGI offered her “employment . . . at the rate of
$100,000/year” and that she “never received her salary.” SAC ¶¶ 23–24. In essence, Plaintiff alleges
a breach of contract claim—and not a cognizable claim under the EPA—as she claims that she never
received her bargained-for salary.2 See, e.g., Malinowski v. Wall St. Source, Inc., No. 09 Civ. 9592,
2012 WL 279450, at *3 (S.D.N.Y. Jan. 31, 2012) (adjudicating plaintiff’s breach of contract claim
based on defendant’s “failure to pay him bonuses and salary to which he was entitled under his
employment agreement”).
Nor does the Court agree with Plaintiff that Judge Aaron “strains to distinguish the Supreme
Court precedent set in Corning Glass Works v. Brennan, 417 U.S. 188 (1974).” Pl. Objs. at 9.
Plaintiff argues that Corning establishes that a company’s promise to pay the same rate to men and
women, and subsequent failure to pay these wages, is actionable under the EPA. Id. Corning,
however, assessed whether “paying a higher base wage to male night shift inspectors than [] to female
inspectors performing the same tasks on the day shift, where the higher wage was paid in addition to
a separate night shift differential paid to all employees for night work,” violated the EPA. 417 U.S. at

Nor is Plaintiff correct that the R&R “seeks to improperly place [the] burden on Plaintiff” of “an acceptable reason for
the pay differential.” Pl. Objs. at 8. “To establish a prima facie case under the EPA, a plaintiff has the burden of showing
that the employer paid different wages to employees of opposite sexes.” Victory v. Hewlett-Packard Co., 34 F. Supp. 2d
809, 825 (E.D.N.Y. 1999). Here, Plaintiff has not satisfied her burden.
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190. In Corning, a company paid higher wages to employees who previously had worked on the
night shift that had not been open to women, which the Court found “perpetuate[d] the effects of the
company’s prior illegal practice of paying women less than men for equal work.” Id. at 209–10. The
R&R, therefore, correctly distinguished this case, noting that in Corning “the company did not
promise to pay equal wages and then simply not pay its female workers, nor were the wages
nominally equal.” R&R at 7 (citing Corning, 417 U.S. at 209–10).
The Court also rejects Plaintiff’s argument that “the R&R[‘s construal of the EPA]
undermines the purpose Congress sought to achieve.” Pl. Objs. at 10. The EPA is intended to
equalize pay disparity and counteract the “outmoded societal view that a man should be paid more
than a woman for the same work.” Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999); see also
Corning, 417 U.S. at 195 (noting that Congress enacted the EPA to remedy “the wage structure [in
America] that a man, because of his role in society, should be paid more than a woman”). Here,
Plaintiff concedes that she and Distler were paid pursuant to the same contract terms, see SAC ¶¶ 22–
25; Pl. Opp. at 10, ECF No. 46, which forecloses her EPA claim, see Eng v. City of N.Y., 715 F.
App’x 49, 51 (2d Cir. 2017) (summary order) (“To prove a violation of the EPA, a plaintiff must first
establish [that] . . . the employer pays different wages to employees of the opposite sex . . . .”).3
The R&R also determined that “even if [Plaintiff] could establish that she was paid a different
wage, she has not adequately alleged that she and Dr. Distler performed equal work in a job requiring
equal skill, effort and responsibility, and that their two jobs were performed under similar working
conditions.” R&R at 8. Plaintiff appears to object to this finding, arguing generally that “Plaintiff
properly alleged that the male comparator was paid more than Plaintiff for equal work.” Pl. Objs. at
10. This objection is too vague and conclusory to trigger de novo review and the Court finds no clear

Plaintiff contends that “the EPA cause of action arises from the failure to actually pay the wages at the same rate,” but
cites no caselaw for this proposition. Pl. Objs. at 9.
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error with Judge Aaron’s determination. See McDonaugh v. Astrue, 672 F. Supp. 2d 542, 547
(S.D.N.Y. 2009) (“[O]bjections must be specific and clearly aimed at particular findings in the
magistrate judge’s proposal.” (internal citation and quotation marks omitted)).
Accordingly, the Court agrees with Judge Aaron that Plaintiff fails to allege a pay disparity or
that she and Distler performed equal work, and, therefore, Plaintiff’s objection is OVERRULED.
B. ADEA Claim
Next, Plaintiff objects to Judge Aaron’s determination that she does not have a viable claim
under the Age Discrimination in Employment Act (“ADEA”) because (1) WSGI did not implement a
mandatory retirement policy and (2) the claim is not ripe because Plaintiff was sixty-seven years old
when she filed this action and, therefore, “has not been affected by the mandatory retirement policy.”
R&R at 12–13. Plaintiff objects to the second finding, arguing both that plaintiffs who challenge
illegal mandatory retirement have ripe claims before they reach the retirement age and that she is
presently affected by the retirement policy, even though she is not seventy years old. Pl. Objs. at 11–
12.
At the outset, the Court notes that this objection is premised on an erroneous assumption—the
existence of a mandatory retirement policy. Plaintiff’s ADEA claim is based on WSGI’s
implementation of a policy that required mandatory retirement for members at the age of seventy.
SAC ¶¶ 30–32. As Judge Aaron correctly held, however, Plaintiff has not sufficiently alleged that a
mandatory retirement policy was actually implemented. R&R at 12–13. Without a policy in place,
Plaintiff cannot properly allege an ADEA claim.4

In a footnote, Plaintiff contends that “the R&R improperly seeks to argue with Plaintiff’s well-pleaded facts that WSGI
instituted the policy.” Pl. Objs. at 11 n.4. Although a court must “accept the allegations contained in the complaint as
true,” Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994), courts must still determine whether a claim is plausibly
alleged on a Rule 12(b)(6) motion to dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The SAC pleads only that
“the WSGI Board . . . had voted to institute a policy that required mandatory retirement for members . . . at the age of 70,”
SAC ¶ 30 (emphasis added), but not that the policy was made effective. As Judge Aaron noted, under the applicable
Operating Agreement (attached in partial form to the SAC), any amendment requires “an instrument in writing executed
by a Super-majority of the Board.” R&R at 13 (quoting the Operating Agreement § 12.8, ECF No. 48-1). Because the
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Moreover, Plaintiff’s objection is not rooted in caselaw. She claims that “[t]he R&R utterly
fails to look at cases which state the harm to a[n] employee who is faced with an entirely illegal
mandatory retirement plan,” but does not direct the Court to any cases in this Circuit. Pl. Objs. at 12.
Nor can the Court find any. It is well-settled law that “[a] claim is not ripe for adjudication if it rests
upon contingent future events that may not occur as anticipated, or indeed may not occur at all.”
Texas v. United States, 523 U.S. 296, 300 (1998) (internal quotation marks and citation omitted).
Plaintiff was sixty-seven when she filed this action and, therefore, has not been affected by an alleged
mandatory retirement policy for members at the age of seventy. Plaintiff’s speculative “belie[f that]
she would be forced to retire at age 70,” SAC ¶ 32, is insufficient to state a present claim. See ATSI
Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (plaintiff must plead “factual
allegations sufficient to raise a right to relief above the speculative level” (internal quotation marks
and citation omitted)). The Court, therefore, agrees with Judge Aaron that Plaintiff’s claim is not ripe
for review because she has not been affected by an alleged mandatory retirement policy.
Plaintiff’s next argues that her claim is ripe because, even though she is not yet seventy, she
“is affected now by WSGI’s illegal mandatory retirement policy.” Pl. Objs. at 13. This too fails.
Plaintiff offers seven theories of recovery that she claims are not “contingent on any future events”
because her “compensation and the terms and conditions of employment have already changed.” Id.
at 14–15.5 All of these theories, however, are purely speculative because Plaintiff “has not chosen to

SAC does not allege the execution of any written instrument, Judge Aaron correctly determined that Plaintiff failed to
plead that a policy had been implemented. Plaintiff, therefore, does not sufficiently allege the implementation of a
mandatory retirement policy.
Specifically, Plaintiff argues (1) “she can never earn as much under the illegal policy as she could under the previous,
legal policy;” (2) “she had purchased the right to work for as long as she wanted” and that “any diminution in that time
period changed the present value of the shares;” (3) “the shares are devalued when the illegal activity begins, not when the
retirement takes place;” (4) the policy “creates an incentive to not pay any market valuation” for her shares, which have
appreciated; (5) “the employer targeted older employees in an ongoing attempt to force them out of the company and steal
the increase in the value of their shares;” (6) the retirement policy “was enacted without giving the older doctors enough
time to use” the succession option in the Operating Agreement; and (7) she should “not have to leave her employment for
a declaratory judgment that the policy is illegal.” Pl. Objs. at 14–15.
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leave WSGI, nor sold her shares or her practice.” R&R at 14. See, e.g., Bova v. City of Medford, 564
F.3d 1093, 1096–97 (9th Cir. 2009) (no subject matter jurisdiction where “alleged injury—denial of
health insurance coverage—ha[d] not yet occurred” because plaintiffs had not retired, and the city
had not actually denied benefits); cf. Carrier v. Bradley, No. 10 Civ. 5044, 2011 WL 13175961, at *6
(S.D.N.Y. Sept. 30, 2011) (dismissing claim about whether retired employees are covered by a
collective bargaining agreement as not ripe where “it is unclear when Plaintiffs will retire, and what
[agreement] will be in effect at the time of their retirement”). Plaintiff, therefore, has not presented a
“real and substantial controversy admitting of specific relief.” R&R at 13 (citing Auerbach v. Bd. of
Educ. of the Harborfields Cent. Sch. Dist. of Greenlawn, 136 F.3d 104, 108 (2d Cir. 1998)).6
The Court, therefore, agrees with Judge Aaron that Plaintiff has not alleged the
implementation of a mandatory retirement policy, and that in any event, her claims are not ripe.
Accordingly, Plaintiff’s objection is OVERRULED.
C. Title VII Claim
Judge Aaron recommends dismissal of Plaintiff’s Title VII claim because she (1) “failed to
plead any evidence of discriminatory intent” and (2) “does not adequately allege that she has suffered
an adverse employment action.” R&R at 14, 16. As to the first finding, Plaintiff argues that she
properly pleaded discriminatory intent by alleging that Distler refused to assign cases to her because
she “didn’t look like the white male colleague to whom he assigned the cases” and that the WSGI
Board “ratified his action” by failing to take corrective action. Pl. Objs. at 16. In support of this

In attempting to distinguish Auerbach, Plaintiff argues that it “deals with an entirely different part of the ADEA, which
addresses legal incentive plans which entice workers to retire” and, therefore, that “[i]t is not applicable to illegal
mandatory retirement plans.” Pl. Objs. at 12. Although the plaintiffs in Auerbach sued under a different provision of the
ADEA, the Second Circuit’s discussion of ripeness is not cabined to this provision. Indeed, the analysis is directly
applicable here, as the Auerbach Court noted that the injury alleged by plaintiffs “was entirely speculative” because
“[w]hen this action was initiated, these teachers had not retired” and “the factual event forming the basis of the claim, i.e.,
their retirement, had not occurred at the commencement of the action.” Auerbach, 136 F.3d at 109. The same is true
here, as Plaintiff “may decide to leave WSGI for any number of reasons between now and when she turns seventy, or she
may be allowed to remain a member of WSGI despite any retirement plan that may otherwise exist.” R&R at 13–14.
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objection, Plaintiff merely repeats the arguments she presented to Judge Aaron, which do not give
rise to de novo review. See Pl. Opp. at 16, ECF No. 46 (“Dr Distler . . . [commented] that he was not
referring cases to [Plaintiff] because she did not ‘look like’ the white, male doctor whose practice
WSGI had purchased. Plaintiff cannot allege that any other Board Member ever corrected or
contradicted Dr. Distler.”). The Court, therefore, reviews this portion of the R&R for clear error and
finds none. Judge Aaron’s finding that Plaintiff “has not shown even minimal support for the
proposition that WSGI was motivated by discriminatory intent,” R&R at 15–16, is well-reasoned and
grounded in fact and law.
Plaintiff next objects to Judge Aaron’s finding that she failed to allege that she has suffered an
adverse employment action. Pl. Objs. at 16. Plaintiff claims that Distler stated that he did not refer
any cases from the Gould practice to Plaintiff because the male doctor to whom he did refer cases to
was a white male who “looks like” Dr. Gould and that “the patients want to see a doctor that ‘looks
like’ Dr. Gould.” Pl. Objs. at 17–18. This does not allege an adverse employment action. To
constitute an adverse employment action in the context of a discrimination claim, an action must
cause “a materially adverse change in the terms and conditions of employment.” Mathirampuzha v.
Potter, 548 F.3d 70, 78 (2d Cir. 2008) (internal quotation marks and emphasis omitted).
To be materially adverse, a change in working conditions must be more disruptive than
a mere inconvenience or an alteration of job responsibilities. Examples of such a change
include termination of employment, a demotion evidenced by a decrease in wage or
salary, a less distinguished title, a material loss of benefits, significantly diminished
material responsibilities, or other indices unique to a particular situation.
Id. (citation omitted). The Court agrees with Judge Aaron that Plaintiff’s allegations are insufficient
to allege a materially adverse change. Plaintiff does not allege, for example, “how many of Dr.
Gould’s patients were treated by other WSGI doctors, or if the volume of patients that [Plaintiff]
treated overall was lower than the number of patients treated by other WSGI doctors as a result of the
lost referrals,” nor does she allege “that the loss of referrals impacted her compensation.” R&R at 16.
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See also Martin v. Dupont Flooring Sys., Inc., No. 301 Civ. 2189, 2004 WL 1171208, at *3 (D. Conn.
May 25, 2004) (finding no adverse employment action with plaintiff’s supervisor’s effort to obtain all
sales referrals because there was no evidence that “such behavior damaged [plaintiff’s] earning
potential”). Moreover, as Defendant points out, Plaintiff “still works at WSGI, and she admitted that
she was paid in accordance with her membership interest, not the number of cases she received.”
Def. Opp. at 7, ECF No. 92.7 The Court, therefore, agrees with Judge Aaron that Plaintiff has not
plausibly alleged an adverse employment action.
Accordingly, Plaintiff’s objection is OVERRULED.
D. DTSA Claim
Next, Judge Aaron recommends dismissal of Plaintiff’s claim pursuant to the Defend Trade
Secrets Act (“DTSA”) because (1) Plaintiff “has not adequately alleged that her billing template is a
trade secret” and (2) Plaintiff, in any event, “has not alleged that it was misappropriated by WSGI.”
R&R at 17–18. Plaintiff objects only to the second finding, arguing that “Plaintiff has alleged that
WSGI acquired the trade secret by misrepresentation.” Pl. Objs. at 19. The Court disagrees.
Plaintiff claims that she “provided WSGI with a template she had developed with an outside
[Revenue Cycle Management] start-up for her practice to optimize billing.” SAC ¶ 24. This
assertion is insufficient to allege that WSGI acquired Plaintiff’s trade secret by improper means8 or
unconsented disclosure, as required by the DTSA. See Tesla Wall Sys., LLC v. Related Cos., L.P.,

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The Court also agrees with Defendant that, to the extent that Plaintiff now argues that there was an adverse employment
action in the form of lost facility fees as a result of WSGI’s failure to refer cases to her from the Gould practice, see Pl.
Objs. at 17–18, this argument is not in line with her pleadings. The SAC alleges lost facility fees during a “transition
period” that started in September of 2014 and lasted approximately four to six months. SAC ¶ 17–19. WSGI, however,
did not buy the Gould practice until “Autumn 2016,” id. ¶ 25, well beyond the time period for which she is alleging lost
fees.
“Improper means” includes “theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain
secrecy, or espionage through electronic or other means,” but “does not include reverse engineering, independent
derivation, or any other lawful means of acquisition.” 18 U.S.C. § 1839(6).
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No. 17 Civ. 5966, 2017 WL 6507110, at *10 (S.D.N.Y. Dec. 18, 2017) (“‘Misappropriation’ is
defined within DTSA as an unconsented disclosure or use of a trade secret by one who (i) used
improper means to acquire the secret, or, (ii) at the time of disclosure, knew or had reason to know
that the trade secret was acquired through improper means, under circumstances giving rise to a duty
to maintain the secrecy of the trade secret, or derived from or through a person who owed such a
duty.” (citation omitted)); see also 18 U.S.C. § 1839(5). Indeed, Plaintiff admits that she “provided
WSGI with a template.” SAC ¶ 24. See Medicrea USA, Inc. v. K2M Spine, Inc., No. 17 Civ. 8677,
2018 WL 3407702, at *12 (S.D.N.Y. Feb. 7, 2018) (holding that a surgical technique is not a trade
secret where the doctor “shared the surgical technique freely and publicly”). The Court agrees with
Judge Aaron that this admission defeats any claim that WSGI acquired the template by improper
means, as required by the DTSA. R&R at 19. See 18 U.S.C. § 1839(6); Broker Genius, Inc. v. Zalta,
280 F. Supp. 3d 495, 511 n.5 (S.D.N.Y. 2017) (noting that plaintiff cannot establish a likelihood of
success in its DTSA claim without evidence that “defendants improperly acquired the purported trade
secrets” where defendants “were [plaintiff’s] customers when they first acquired the relevant
information”). Plaintiff attempts to circumvent this fact, arguing that she alleges that she “never
received her salary for this work,” SAC ¶ 24, which establishes that “WSGI acquired the trade secret
by misrepresentation,” Pl. Objs. at 19. The Court rejects this argument, however, because the fact
that Plaintiff “never received her salary for this work” establishes a breach of contract claim and not a
trade secrets violation.
In any event, the Court agrees with Judge Aaron that—as a fundamental defect—Plaintiff
does not establish that her “template” is a protectable trade secret. R&R at 17–18. Plaintiff does not
allege any steps she took to protect this “secret;” that the template was, for example, passwordprotected, stored in a secure location, or only accessed by a limited number of users and subject to a
non-disclosure agreement. See 28 U.S.C. § 1839(3)(A) (limiting a trade secret to where “the owner
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thereof has taken reasonable measures to keep such information secret”); see also Medicrea USA,
2018 WL 3407702, at *12 (noting that a surgical technique “fail[ed] to acquire trade secret protection
because it is not a secret”). Plaintiff also does not allege that she told WSGI that her “techniques” or
“template” were confidential. The Court finds, therefore, that Plaintiff did not take reasonable steps
to protect her template. Compare Oneida Grp. Inc. v. Steelite Int’l U.S.A. Inc., No. 17 Civ. 0957,
2017 WL 6459464, at *7 (E.D.N.Y. Dec. 15, 2017) (holding that plaintiff took reasonable steps to
protect its trade secret when third parties were required to execute nondisclosure agreements and
employees were asked to do the same), with R.C. Olmstead, Inc. v. CU Interface, LLC, 606 F.3d 262,
276 (6th Cir. 2010) (finding that a product’s user interface was not a trade secret because plaintiff
failed to take reasonable steps to maintain its secrecy by failing to bind users to effective
confidentiality agreements).
Because Plaintiff has failed to allege that her billing template is a trade secret, and that it was
misappropriated by WSGI, her objection is OVERRULED.
E. Supplemental Jurisdiction
After determining that Plaintiff’s federal claims should be dismissed, Judge Aaron
recommended that the Court decline “supplemental jurisdiction over any state law claims pled by
Plaintiff” because “judicial economy, convenience, fairness or comity would not be served by the
Court’s exercise of supplemental jurisdiction.” R&R at 20. Plaintiff objects, arguing that (1) there is
still a remaining federal retaliation claim which Defendant did not move to dismiss and which is still
before the Court, and (2) Judge Aaron erred in not analyzing certain factors before declining to
exercise supplemental jurisdiction. Pl. Objs. at 19–21. Plaintiff’s objections are without merit.
First, the Court agrees with Defendant that the SAC does not allege a federal retaliation claim.
The SAC makes three references to “retaliatory acts” under its claims pursuant to the ADEA, Title
VII, and the EPA, SAC ¶¶ 44, 47, 50, but these passing references fail to allege an instance of
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retaliation. It does not matter, therefore, that “Defendant never moved to dismiss[]” this claim, or
that it was “not briefed and not considered in the R&R.” Pl. Objs. at 19–20. Defendant could not
have requested dismissal of a claim that was never alleged. Second, although district courts must
“evaluate . . . the familiar factors of judicial economy, convenience, fairness, and comity” when
determining whether to maintain supplemental jurisdiction under 28 U.S.C. § 1367(c), Catzin v.
Thank You & Good Luck Corp., 899 F.3d 77, 81 (2d Cir. 2018), this does not require courts to
extensively analyze these factors in their opinions.9 It is well-settled in this Circuit that once district
courts dismiss all of a plaintiff’s federal claims, they are “entitled to decline to exercise supplemental
jurisdiction over her state-law claims.” Hill v. DLJ Mortg. Capital, Inc., 689 F. App’x 97, 99 (2d Cir.
2017); see also Kolari v. New York–Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006).
As the Second Circuit has directed, “district courts can, and indeed should, decline to
exercise supplemental jurisdiction when the federal claims are eliminated in the early stages of the
litigation.” Smulley v. Fed. Hous. Fin. Agency, No. 17-2666, 2018 WL 4849667, at *4 (2d Cir. Oct.
5, 2018) (summary order) (internal quotation marks and citation omitted) (emphasis added). The
Court does not agree with Plaintiff that supplemental jurisdiction is appropriate here because the
Court “did not stay discovery during the pendency of the motion” and because the case “has already
been in the Court and well into discov[ery] for nearly a year.” Pl. Objs. at 21. This case was filed
less than one year ago and it is still in the pretrial stage. “When federal claims are dismissed early in
the litigation—for example, before trial on a summary judgment motion—dismissal of state law
claim[s] . . . is appropriate.” Cobbs v. CBS Broadcasting Inc., No. 97 Civ. 8284, 1999 WL 244099, at
*8 (S.D.N.Y. April 26, 1999). Judge Aaron recommended that the Court “decline to exercise

Indeed, Judge Aaron did consider these factors, stating that “judicial economy, convenience, fairness or comity would
not be served by the Court’s exercise of supplemental jurisdiction over any state law claims pled by Plaintiff.” R&R at
20.
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supplemental jurisdiction” over any state law claims. R&R at 20. The Court agrees, and Plaintiff’s
objection is OVERRULED.
F. Leave to Amend
Finally, Plaintiff argues that the R&R applied the wrong legal standard to assess futility in
recommending that leave to amend be denied. Pl. Objs. at 21–22. Judge Aaron held that leave to
amend should be denied because he saw no indication “that any of Plaintiff’s federal claims are
viable.” R&R at 20–21 (citing Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)). Plaintiff
contends that this conclusion was “legal error” because the Second Circuit’s more recent holding in
Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 797 F.3d 160, 191 (2d Cir. 2015), controls.
Pl. Objs. at 2. In Loreley, the Second Circuit reversed the lower court’s denial of leave to amend
because the court improperly “presented [the plaintiffs] with a Hobson’s choice: agree to cure
deficiencies not yet fully briefed and decided or forfeit the opportunity to replead.” Id. at 190. The
Second Circuit held that “the procedure by which the district court denied leave to amend was
improper” but expressly “le[ft] unaltered the grounds on which denial of leave to amend has long
been held proper, such as undue delay, bad faith, dilatory motive, and futility.” Id. (emphasis added).
Loreley’s holding, therefore, is not as broad as Plaintiff would have it.
Cases following Loreley have confirmed this, declining to grant leave to amend when
amendment would be futile. See, e.g., Medina v. Tremor Video, Inc., 640 F. App’x 45, 47 (2d Cir.
2016) (affirming district court’s denial of leave to amend and noting that “a court need not grant such
leave if the proposed amendment would still not state a claim, so that the amendment would be
futile”); Lopez v. Ctpartners Exec. Search Inc., 173 F. Supp. 3d 12, 43–44 (S.D.N.Y. 2016) (denying
leave to amend where plaintiff had been “given multiple opportunities to replead” and amendment
would be futile because the deficiencies were “substantive”). Plaintiff has already amended her
complaint twice. See ECF Nos. 4, 22. Loreley does not require the Court to grant leave to file a third
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amended complaint, and Judge Aaron committed no “legal error” in so holding. The Court, therefore,
reviews this portion of the R&R strictly for clear error, and finds none.10 As stated in the R&R and as
discussed above, none of “Plaintiff’s federal claims are viable” and as such, amendment would be
futile.11 R&R at 20–21. Accordingly, Plaintiff’s objection is OVERRULED.
CONCLUSION
The Court has reviewed de novo those portions of the R&R to which Plaintiff properly objects
and has reviewed the remainder of the R&R for clear error.12 For the reasons stated above, the Court
ADOPTS the R&R in its entirety. Defendant’s motion is dismiss is GRANTED as to Plaintiff’s
federal claims. Because the Court declines to exercise supplemental jurisdiction over Plaintiff’s state
law claims, those claims are DISMISSED without prejudice to renewal in state court. Additionally,
Plaintiff’s request for leave to amend is DENIED as futile.
Having granted Defendant’s motion to dismiss, Plaintiff’s motion for a preliminary injunction
is DENIED as moot.

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Although some district courts within this Circuit have suggested that a motion for leave to amend may be dispositive
when denied, see Schiller v. City of New York, No. 04 Civ. 7922, 2009 WL 497580, at *2 (S.D.N.Y. Feb. 27, 2009), the
weight of authority appears to be that such motions are non-dispositive regardless of the outcome. See, e.g., Wilson v.
City of New York, No. 06 Civ. 229, 2008 WL 1909212, at *3 (E.D.N.Y. Apr. 30, 2008) (collecting cases); Am. Stock
Exch., LLC v. Mopex, Inc., 215 F.R.D. 87, 91 (S.D.N.Y. 2002). Indeed, the Second Circuit has described a motion to
amend as non-dispositive more than once. See, e.g., Fielding v. Tollaksen, 510 F.3d 175, 178 (2d Cir. 2007); Kilcullen v.
N.Y. State Dep’t of Transp., 55 F. App’x 583, 584 (2d Cir. 2003). The Court, therefore, reviews for clear error Judge
Aaron’s denial of Plaintiff’s request to amend. See Arista Records, LLC v. Doe 3, 604 F.3d 110, 116 (2d Cir. 2010).
As Judge Aaron explained, “nothing contained in Plaintiff’s Opposition Memorandum or articulated by Plaintiff’s
counsel during the lengthy oral argument indicates to the Court that any of Plaintiff’s federal claims are viable.” R&R at
20–21. Therefore, it does not matter that Plaintiff did not have the benefit of the Court’s ruling when it amended its
complaint twice, because Plaintiff cannot cure the deficiencies noted here and in the R&R. See, e.g., Bartlett v.
Honeywell Int’l Inc., 737 F. App’x 543, 551–52 (2d Cir. May 25, 2018) (summary order) (affirming district court’s denial
of leave to amend where plaintiffs failed to submit a proposed amended pleading or otherwise indicate how they could
cure the pleading’s deficiencies).
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To the extent not discussed above, the Court finds the unchallenged portions of the R&R to be free of clear error.

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The Clerk of Court is directed to terminate the motions at ECF Nos. 34 and 39, and to close
the case.
SO ORDERED.
Dated: January 31, 2019
New York, New York

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