Chinese Americans Civil Rights Coalition, Inc. v. Trump

Filing 40

MEMORANDUM OPINION AND ORDER: The Court has considered all of the arguments of the parties. To the extent not specifically address above, the arguments are either moot or without merit. For the foregoing reasons, the motion to dismiss the claim s brought against the defendant in the defendant's official capacity for lack of subject matter jurisdiction is granted. The motion to dismiss the claims brought against the defendant in the defendant's personal capacity is granted becau se the Court lacks personal jurisdiction over the defendant and because the complaint fails to state a claim upon which relief can be granted. The Clerk is directed to enter judgment dismissing this action. The plaintiff has not sought leave to file an amended complaint and any amendment would be futile. The Clerk is directed to close all pending motions and to close this case. SO ORDERED. (Signed by Judge John G. Koeltl on 5/4/2022) (ks) Transmission to Orders and Judgments Clerk for processing.

Case 1:21-cv-04548-JGK Document 40 Filed 05/06/22 Page 1 of 18

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
CHINESE AMERICANS CIVIL RIGHTS
COALITION, INC.,
Plaintiff,

21-cv-4548 (JGK)
MEMORANDUM OPINION
AND ORDER

- against DONALD J. TRUMP,
Defendant.
JOHN G. KOELTL, District Judge:

The plaintiff, Chinese American Civil Rights Coalition,
Inc., brought this suit against former President Donald J.
Trump, individually and in his former official capacity as
President of the United States. Compl., ECF No. 1, at 1. The
plaintiff brought claims of defamation and intentional and
negligent infliction of emotional distress. Id. at 11 193-216.
The defendant now moves to dismiss the claims brought against
him in both his official and personal capacities. ECF Nos. 26,
28. For the following reasons, the motions to dismiss the claims
against the defendant in both his personal and his official
capacities are granted.
I.

The plaintiff is "a non-profit organization registered in
the state of New York representing numerous individuals and
community organizations." 1 Compl. at 1. The complaint alleges

1

Unless otherwise noted, this Memorandum Opinion and Order
omits all alterations, omissions, emphasis, quotation marks, and
citations in quoted text.

Case 1:21-cv-04548-JGK Document 40 Filed 05/06/22 Page 2 of 18

that, in a number of statements, the defendant dubbed the SARSCoV-2 virus the "Chinese virus" and "kung flu," among other
names. See id.

~~

39-94. The complaint does not allege that any

statement was made in New York, although it alleges that many
statements were made in tweets or press conferences. Id. The
complaint alleges that these statements were factual,
and defamatory, id.

~

id. ~ 3,

194, and that they "exposed .

Chinese/Asian Americans, to public discrimination, hate,
contempt, ridicule, verbal abuse and physical violence as
reported in many incidents across the country," id.

~

195. The

complaint alleges that there has been an "increase in anti-Asian
incidents," including in New York, and identifies certain such
incidents. Id.

~~

95-114.
II. Official Capacity Claims

The plaintiff brought certain claims against the defendant
in the defendant's former official capacity. The defendant,
represented by the Department of Justice, moves to dismiss those
claims for lack of subject matter jurisdiction pursuant to
Federal Rule of Civil Procedure 12(b) (1) as barred by sovereign
immunity. For the following reasons, the motion is granted.
Under the doctrine of sovereign immunity, the United States
may not be sued without its consent. Adeleke v. United States,
355 F.3d 144, 150 (2d Cir. 2004). A suit for damages against a
federal official in the official's official capacity is

2

Case 1:21-cv-04548-JGK Document 40 Filed 05/06/22 Page 3 of 18

considered to be a suit against the United States, from which
that official is immune unless there is an applicable waiver of
sovereign immunity. Robinson v. Overseas Mil. Sales Corp., 21
F.3d 502, 510 (2d Cir. 1994). This includes suits against a
former official. See, e.g., Masing v. Trump, No. 21-cv-8243,
2021 WL 4868560, at *3 (S.D.N.Y. Oct. 18, 2021)

(dismissing

claims against former officials because there was no applicable
waiver of sovereign immunity). Because the sovereign immunity
doctrine is jurisdictional, the plaintiff bears the burden of
establishing that the doctrine does not bar the suit, and the
Court may refer to evidence outside the pleadings in deciding
the motion to dismiss. Makarova v. United States, 201 F.3d 110,
113 (2d Cir. 2000). "A waiver of sovereign immunity by the
United States must be unequivocally expressed in the statutory
text and strictly construed, in terms of its scope, in the
sovereign's favor." Collins v. United States, 996 F.3d 102, 109
(2d Cir. 2021).
In this case, some of the plaintiff's claims were brought
against the defendant in his former official capacity . .In the
absence of an applicable waiver, those claims are therefore
barred by sovereign immunity, and the plaintiff has not
identified an applicable waiver of sovereign immunity. The only
statutory provisions cited in the complaint are 28 U.S.C.
§ 1332(a) (1), which provides diversity of citizenship
3

Case 1:21-cv-04548-JGK Document 40 Filed 05/06/22 Page 4 of 18

jurisdiction, and 28 U.S.C. § 4101(1), which defines defamation
in the context of a statute pertaining to the recognition and
enforcement of foreign defamation judgments. See 28 U.S.C.
§ 4102. Neither provision serves as a waiver of sovereign
immunity, because neither provision unequivocally expresses any
such waiver. See Confessore v. United States, No. 19-cv-627,
2020 WL 5836728, at *2, *5 (E.D. Tex. Sept. 10, 2020)
(dismissing a defamation claim brought under§ 4101 against the
United States as barred by sovereign immunity), report and
recommendation adopted, 2020 WL 5816227

(E.D. Tex. Sept. 30,

2020); Desiderio v. Nat'l Ass'n of Sec. Dealers, Inc., 2 F.
Supp. 2d 516, 521-22 (S.D.N.Y. 1998)

(noting that§ 1332 does

not constitute a waiver of sovereign immunity), aff'd, 191 F.3d
198 (2d Cir. 1999) . 2

2

The plaintiff does not reference the Federal Tort Claims
Act, 28 U.S. C. § 2 671 et seq. (" FTCA") in the complaint, and
appears in its opposition and surreply to disclaim reliance on
that statute. See ECF No. 30 ~~ 54-60; ECF No. 36, ~ 14. In any
event, the FTCA - which is the exclusive remedy for claims
arising out of the acts of United States Government employees
within the scope of their employment, see 28 U.S.C. § 2679(b)
could not serve as a waiver of sovereign immunity in this case.
The FTCA waives sovereign immunity only to the extent that a
plaintiff has exhausted administrative remedies. 28 U.S.C.
§ 2675(a). The plaintiff in this case neither alleges nor argues
that the plaintiff has first pursued its claims
administratively. Moreover, the Government has searched for any
relevant administrative proceeding brought by the plaintiff, and
has found none. Richards Deel., ECF No. 27-1, ~~ 4-5. Therefore
there is no waiver of sovereign immunity under the FTCA in this
case.
4

Case 1:21-cv-04548-JGK Document 40 Filed 05/06/22 Page 5 of 18

Accordingly, the United States has not waived its sovereign
immunity as to the plaintiff's claims in this case, and is
therefore immune from suit. The plaintiff's claims against the
defendant in the defendant's official capacity therefore fail
because those claims are barred by sovereign immunity.
In response, the plaintiff argues that "sovereign immunity
is an anachronistic relic." ECF No. 30 at 14. But the Supreme
Court and the Court of Appeals for the Second Circuit continue
to apply that doctrine and it compels dismissal of the claims
against former President Trump in his former official capacity.
See Alden v. Maine, 527 U.S. 706, 715 (1999); Malone v. Bowdoin,
369 U.S. 643, 648

(1962); Robinson, 21 F.3d at 510. For these

reasons, the defendant's motion to dismiss the claims brought
against the defendant in the defendant's official capacity is
granted.
III. Personal Capacity Claims

The plaintiff also brings certain claims against the
defendant in the defendant's personal capacity. The defendant,
represented by his personal counsel, moves to dismiss those
claims on the grounds of lack of subject matter jurisdiction,
personal jurisdiction, and venue, and on the grounds that the
plaintiff has failed to state a claim upon which relief can be
granted. For the reasons explained below, the defendant's motion

5

Case 1:21-cv-04548-JGK Document 40 Filed 05/06/22 Page 6 of 18

to dismiss the claims brought against him in his personal
capacity is granted.
A.
The defendant moves to dismiss the complaint under Federal
Rule of Civil Procedure 12(b) (1) for lack of subject matter
jurisdiction on the grounds that there is not complete diversity
of citizenship, the amount-in-controversy requirement is not
met, and the plaintiff lacks standing. For the following
reasons, the Court has subject matter jurisdiction.
1.
The defendant argues that the Court lacks diversity of
citizenship subject matter jurisdiction because the plaintiff
has not alleged its principal place of business. Under 28 U.S.C.
§ 1332(a) (1), federal courts have subject matter jurisdiction
over actions that arise between citizens .of different states if
the amount in controversy exceeds $75,000. A corporation is a
citizen of the states in which the corporation is incorporated
and has its principal place of business. 28 U.S.C. § 1332(c) (1)
The parties appear to agree that the defendant is a citizen
of Florida. Compl. at 3; ECF No. 29 at 5, 7. The plaintiff
alleges, and the defendant does not dispute, that the plaintiff
is incorporated in New York. Compl. at 3. The plaintiff filed a
sworn declaration attesting that its principal place of business

6

Case 1:21-cv-04548-JGK Document 40 Filed 05/06/22 Page 7 of 18

was also in New York. See Liu Deel., ECF No. 39, 1 3.
Accordingly, the parties are completely diverse.

2.
The defendant argues that there is no subject matter
jurisdiction because the amount-in-controversy requirement is
not met. Jurisdiction under 28 U.S.C. § 1332(a) exists only
where the amount in controversy exceeds $75,000. In order to
dismiss the complaint on the ground that the amount-incontroversy requirement is not met, it must appear "to a legal
certainty" that the requirement cannot be satisfied. Chase
Manhattan Bank, N.A. v. Am. Nat. Bank & Tr. Co. of Chi., 93 F.3d
1064, 1070 (2d Cir. 1996). "[T]he sum claimed by the plaintiff
controls if the claim is apparently made in good faith." Id.;
see also Suber v. Chrysler Corp., 104 F.3d 578, 583 (3d Cir.
1997), as amended (Feb. 18, 1997)

("The court should not

consider in its jurisdictional inquiry the legal sufficiency of
those claims .

[T]he threshold to withstand a motion to

dismiss under Fed. R. Civ. P. 12(b) (1) is thus lower than that
required to withstand a Rule 12(b) (6) motion.").
In this case, the plaintiff requests damages of millions of
dollars. Compl. 1 219. While this allegation may not survive,
there is no indication that it was made in bad faith. The
defendant's argument speaks to the merits of the case, not the

7

Case 1:21-cv-04548-JGK Document 40 Filed 05/06/22 Page 8 of 18

Court's ability to hear the case. Accordingly, the amount in
controversy exceeds $75,000.
3.

Finally, the defendant argues that the Court lacks subject
matter jurisdiction because the plaintiff lacks standing. "[A]n
association has standing to bring suit on behalf of its members
when its members would have standing to sue in their own right,
the interests at stake are germane to the organization's
purpose, and neither the claim asserted nor the relief requested
requires individual[] members' participation in the lawsuit."
Ala. Legis. Black Caucus v. Alabama, 575 U.S. 254, 269 (2015).
In this case, the plaintiff satisfies each of these requirements
at the pleading stage.
First, the plaintiff has alleged that it has members who
have standing. A plaintiff has standing where there is an injury
in fact, causation, and redressability. TransUnion LLC v.
Ramirez, 141 S. Ct. 2190, 2203 (2021). In this case, the
plaintiff alleges that it has members who have suffered
emotional distress from the defendant's alleged defamatory
remarks. See Compl.

~~

210-16.

The suit is germane to the organization's purpose, which
the plaintiff attests is "to promote civil rights, civic
participation, and voter registration/ turnout." See ECF No.
39. Finally, the suit does not require individual participation,

8

Case 1:21-cv-04548-JGK Document 40 Filed 05/06/22 Page 9 of 18

because the damages the plaintiff seeks are nominal, combined
with punitive damages and other expenses.
The plaintiff has alleged sufficient facts to avoid
dismissal at the pleading stage based on alleged lack of subject
matter jurisdiction.
B.
The defendant argues that the Court lacks personal
jurisdiction over the defendant. The breadth of a federal
court's personal jurisdiction is determined by the law of the
state in which the district court is located. See Spiegel v.
Schulmann, 604 F.3d 72, 76 (2d Cir. 2010)
v. Ashcroft, 470 F.3d 491,

495

(per curiam); Thomas

(2d Cir. 2006). The defendant

argues that there is no general personal jurisdiction over the
defendant because he is a domiciliary of Florida and was not
personally served with process in New York. See Rawstorne v.
Maguire, 192 N.E. 294, 295

(N.Y. 1934). Indeed, the docket sheet

reflects that the plaintiff attempted to serve the defendant by
mail. Therefore there is no general personal jurisdiction over
the defendant under N.Y. C.P.L.R. § 301 and the plaintiff does
not argue otherwise.
Rather, the plaintiff argues that the defendant's remarks
were carried on TV and social media in New York but that does
not provide a basis for personal jurisdiction in New York for
claims of defamation or intentional or negligent infliction of

9

Case 1:21-cv-04548-JGK Document 40 Filed 05/06/22 Page 10 of 18

emotional distress. The defendant points out that there is no
long-arm jurisdiction over the defendant pursuant to N.Y.
C.P.L.R. § 302, the only basis for personal jurisdiction in New
York for non-domiciliaries who are not personally served with
process in New York. The plaintiff ignores the argument. The
provision of N.Y. C.P.L.R. § 302 authorizing long-arm
jurisdiction for lawsuits arising from torts committed within
New York or outside New York causing injury within the state
specifically excludes claims for defamation. See N.Y. C.P.L.R.
§ 302(a) (2)-(3). The same exclusion applies for claims of

intentional or negligent infliction of emotional distress based
on defamation. See, e.g., Cantor Fitzgerald, L.P. v. Peaslee, 88
F.3d 152, 157 (2d Cir. 1996); Bah v. Apple Inc., No. 19-cv-3539,
2020 WL 614932, at *6-7 (S.D.N.Y. Feb. 10, 2020), adhered to on
denial of reconsideration, 2021 WL 4894677

(S.D.N.Y. July 26,

2021); Fischer v. Stiglitz, No. 15-cv-6266, 2016 WL 3223627, at
*4-5 (S.D.N.Y. June 8, 2016).
The plaintiff has therefore failed to assert a prima facie
case that there is personal jurisdiction over the defendant for
the claims asserted in this case. 3

The defendant also argues that venue is improper in this
Court. Because the Court lacks personal jurisdiction over the
defendant and the claims are in any event without merit for the
reasons explained below, it is not necessary to address the
question of venue.
3

10

Case 1:21-cv-04548-JGK Document 40 Filed 05/06/22 Page 11 of 18

C.
The motion to dismiss the claims brought against the
defendant in the defendant's personal capacity is granted for
the additional reason that the plaintiff has failed to state a
claim upon which relief can be granted. In deciding a motion to
dismiss for failure to state a claim pursuant to Federal Rule of
Civil Procedure 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 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) . 4

4

New York's anti-Strategic Lawsuits Against Public
Participation ("anti-SLAFF") law raises the pleading standard
for "action[s] involving public petition and participation"
("SLAFF actions"). N.Y. C.P.L.R. § 3211(g). That heightened
pleading standard does not apply in federal court. See La
11

Case 1:21-cv-04548-JGK Document 40 Filed 05/06/22 Page 12 of 18

1.
First, the plaintiff has failed to state a claim for
defamation. To state a claim for defamation under New York law,
a plaintiff must allege, among other elements, a statement that
is "of and concerning" the plaintiff. Three Amigos SJL Rest.,
Inc. v. CBS News Inc., 65 N.E.3d 35, 37

(N.Y. 2016); Albert v.

Loksen, 239 F.3d 256, 265-66 (2d Cir. 2001). However, "[u]nder
the group libel doctrine, when a reference is made to a large
group of people, no individual within that group can fairly say
that the statement is about him, nor can the 'group' as a whole
state a claim for defamation." Diaz v. NBC Universal, Inc., 536
F. Supp. 2d 337, 343 (S.D.N.Y. 2008). The group libel doctrine
thus defeats the "of and concerning" element of a defamation
claim. See Three Amigos, 65 N.E.3d at 37. The group libel
doctrine can be overcome only by a showing that the "the
circumstances of the publication reasonably give rise to the
conclusion that there is a particular reference to the member."
Diaz, 536 F. Supp. 2d at 343.
In this case, the plaintiff alleges that the defendant
described the SARS-CoV-2 virus as the "Chinese virus," among
other names. On the plaintiff's own allegations, the phrase

Liberte v. Reid, 966 F.3d 79, 88 (2d Cir. 2020) (holding that
Rule 12 applies rather than the pleading standard in
California's anti-SLAPP Act); see also Sweigert v. Goodman, No.
18-cv-8653, 2021 WL 1578097, at *3 (S.D.N.Y. Apr. 22, 2021).
12

Case 1:21-cv-04548-JGK Document 40 Filed 05/06/22 Page 13 of 18

refers to at least 22.9 million individuals. It is thus "a
reference

. to a large group of people,n and the plaintiff

has made no showing that "the circumstances of the publication
reasonably give rise to the conclusion that there is a
particular referencen to any particular member. See Diaz, 536 F.
Supp. 2d at 343. The plaintiff's allegations therefore cannot
support a claim for defamation under the group libel doctrine.
The plaintiff organization also plainly does not allege a
defamation claim on its own behalf, given that the complaint
contains no allegations that the defendant made any statements
about the plaintiff organization, and indeed the plaintiff
organization was founded after all of the statements in the
complaint were allegedly made. Accordingly, the complaint fails
to state a claim for defamation of the plaintiff or of the
plaintiff's members.
2.

Second, the plaintiff has failed to state a claim for
either intentional or negligent infliction of emotional
distress. The elements of intentional infliction of emotional
distress are "(1) extreme and outrageous conduct;
intentional or reckless nature of such conduct;

(2) the

(3) a causal

relationship between the conduct and the resulting injury; and
(4) severe emotional distress.n Mitchell v. Giambruno, 826
N.Y.S.2d 788, 789 (App. Div. 2006). The same test of extreme and
13

Case 1:21-cv-04548-JGK Document 40 Filed 05/06/22 Page 14 of 18

outrageous conduct has also been applied to causes of action for
negligent infliction of emotional distress. Rocco v. Town of
Smithtown, 645 N.Y.S.2d 187, 188 (App. Div. 1996). Negligent
infliction of emotional distress also may be alleged on a
"bystander" theory when a person is "threatened with physical
harm as a result of defendant's negligence[,] and consequently
. suffers emotional injury from witnessing the death or
serious bodily injury of a member of her immediate family"; or
on a "direct duty" theory when a plaintiff "suffers an emotional
injury from defendant's breach of a duty which unreasonably
endangered her own physical safety." Mortise v. United States,
102 F.3d 693,

696 (2d Cir. 1996).

a.
As an initial matter, the plaintiff's claims for
intentional and negligent infliction of emotional distress fail
because they are based on the same alleged statements that give
rise to the claim for defamation. Brancaleone v. Mesagna, 736
N.Y.S.2d 685,

687

(App. Div. 2002); Hirschfeld v. Daily News,

L.P., 703 N.Y.S.2d 123, 124 (App. Div. 2000); Biehner v. City of
New York, No. 19-cv-9646, 2021 WL 878476, at *9 (S.D.N.Y. Mar.
9, 2021). They are therefore duplicative of the claim for
defamation, and should be dismissed on that basis. See, e.g.,
Brancaleone, 736 N.Y.S.2d at 687.

14

Case 1:21-cv-04548-JGK Document 40 Filed 05/06/22 Page 15 of 18

b.

The claim for intentional infliction of emotional distress
fails for the additional reason that the conduct alleged by the
plaintiff is not so extreme or outrageous as to be covered by
the tort of intentional infliction of emotional distress. The
remarks at issue referred to the geographical origin of the
virus rather than the responsibility of the millions of Asian
Americans who had nothing to do with the virus. To fall within
the ambit of the tort, the conduct must be "so outrageous in
character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized community." Trujillo v.
Transperfect Glob., Inc., 84 N.Y.S.3d 446, 447

(App. Div. 2018).

The comments in this case fall well short even of the language
that courts have found insufficiently extreme or offensive to
support an infliction of emotional distress claim. See, e.g.,
Harville v. Lowville Cent. Sch. Dist., 667 N.Y.S.2d 175, 176-77
(App. Div. 1997).
c.
The claim for negligent infliction of emotional distress
fails because the conduct alleged does not rise to the level of
extreme and outrageous conduct that has been found sufficient to
justify liability, and the plaintiff has failed to assert

15

Case 1:21-cv-04548-JGK Document 40 Filed 05/06/22 Page 16 of 18

sufficient allegations to assert a claim under the "bystander'
theory or the "direct duty" theory.
3.

Finally, the plaintiff's claims for intentional or
negligent infliction of emotional distress fail for the
additional reason that imposing liability for the alleged
statements would violate the First Amendment. In Snyder v.
Phelps, 562 U.S. 443 (2011), the Supreme Court held that even
where extreme and outrageous speech on a matter of public
concern causes emotional distress to another, the First
Amendment bars recovery in a civil damages action for the
intentional infliction of emotional distress. Id. at 459. "In
public debate [we] must tolerate insulting, and even outrageous,
speech in order to provide adequate 'breathing space' to the
freedoms protected by the First Amendment." Boos v. Barry, 485
U.S. 312, 322 (1988). No matter how deplorable the plaintiff
finds the defendant's remarks, the First Amendment precludes
civil liability for the remarks in order to protect the right to
free and robust debate on matters of public concern, which the
origin of the SARS-CoV-2 virus plainly is.
For these reasons, the plaintiff has failed to state a
claim. Because the Court lacks personal jurisdiction over the
defendant and because the complaint fails to state a claim on
which relief can be granted, the motion to dismiss the claims
16

Case 1:21-cv-04548-JGK Document 40 Filed 05/06/22 Page 17 of 18

brought against the defendant in the defendant's personal
capacity is granted.
IV. Attorney's Fees

In his motion to dismiss, the defendant also seeks
attorney's fees pursuant to N.Y. Civ. Rights Law§ 70-a(l) (a).
That provision authorizes the defendant in a SLAPP action to
"maintain an action, claim, cross claim or counterclaim to
recover damages, including costs and attorney's fees, from any
person who commenced or continued such [SLAPP] action," if the
SLAPP action lacked "a substantial basis in fact and law and
could not be supported by a substantial argument for the
extension, modification or reversal of existing law."
On its face, this provision requires that an applicant for
attorney's fees "maintain an action, claim, cross claim or
counterclaim," and not simply assert a request as part of a
motion to dismiss. Because the defendant has not brought a
separate action for fees or filed a "claim, cross claim or
counterclaim" in this action, the request for attorney's fees is
denied. See Lindell v. Mail Media Inc., No. 21-cv-667, 2021 WL

5910000, at *7

(S.D.N.Y. Dec. 10, 2021); Ctr. for Med. Progress

v. Planned Parenthood Fed'n of Am., 551 F. Supp. 3d 320, 333
(S.D.N.Y. 2021).

17

Case 1:21-cv-04548-JGK Document 40 Filed 05/06/22 Page 18 of 18

Conclusion

The Court has considered all of the arguments of the
parties. To the extent not specifically address above, the
arguments are either moot or without merit. For the foregoing
reasons, the motion to dismiss the claims brought against the
defendant in the defendant's official capacity for lack of
subject matter jurisdiction is granted. The motion to dismiss
the claims brought against the defendant in the defendant's
personal capacity is granted because the Court lacks personal
jurisdiction over the defendant and because the complaint fails
to state a claim upon which relief can be granted. The Clerk is
directed to enter judgment dismissing this action. The plaintiff
has not sought leave to file an amended complaint and any
amendment would be futile. The Clerk is directed to close all
pending motions and to close this case.
SO ORDERED.
New York, New York
Dated:
May 4, 2022

\
~ohn G . Keel tl
Uni te4"·13tates District Judge

18