Azzarmi v. Neubauer et al

Filing 122

OPINION & ORDER re: 109 MOTION to Dismiss Third Amended Complaint. filed by Sedgwick SIU, Inc., Sedgwick Claims Management Services, Inc., 115 MOTION to Dismiss Third Amended Complaint. filed by Coventbridge Group(USA ), Donald Neubauer, 110 MOTION to Dismiss the Third Amended Complaint and without leave to replead each count thereof for failure to state a claim upon which relief can be granted, with prejudice and. filed by QBE North America., Fo r the foregoing reasons, the Motions are granted in part and denied in part. To summarize, the Court dismisses all of Plaintiffs claims with the exception of the § 1981 discrimination and retaliation claims against Sedgwick. And as noted above, the Court's denial of the Sedgwick Motion as it relates to Plaintiffs § 1981 retaliation claim is without prejudice to renewal. Beyond that, the claims the Court has dismissed are dismissed with prejudice, as Plaintiff is not entitled to yet another go-around to see which of Plaintiff's ever-evolving claims stick. See Denny v. Barber, 576 F.2d 465, 471 (2d Cir. 1978) (holding that the plaintiff was not entitled to "a third go-around"); see also Bryant v. Capra, No. 18 -CV-10198, 2021 WL 323263, at *5 (S.D.N.Y. Feb. 1, 2021) (dismissing the plaintiffs claims with prejudice where it was "the second time adjudicating his claims, and [the p]laintiff ha[d] not fixed the problems identified by the Court in" a prior opinion); Melvin v. County of Westchester, No. 14-CV-2995,2016 WL 1254394, at *24 n.19 (S.D.N.Y. Mar. 29, 2016) (granting a motion to dismiss with prejudice where "[the p]laintiff ha[d] already had two bites at the apple, and they ha[d] proven fruitless" (alteration adopted) (citation omitted)); Bui v. Indus. Enters. of Am., Inc., 594 F. Supp. 2d 364, 373 (S.D.N.Y. 2009) (dismissing an amended complaint with prejudice where the plaintiff failed to cure the deficiencies identi fied in his complaint despite "being given ample opportunity to do so"). Accordingly, all Defendants other than Sedgwick are dismissed from this Action. The Court will hold a telephonic conference in this case on October 24, 2024, at 11:0 0 AM ET. Finally, the Clerk of Court is respectfully directed to terminate the pending Motion. (Dkt. No. 109-10, 115.) SO ORDERED. Donald Neubauer (Individual Capacity), QBE North America, Coventbridge Group(USA) and Delta Family Care Disability & Survivorship Plan("The Plan") terminated., (Telephone Conference set for 10/24/2024 at 11:00 AM before Judge Kenneth M. Karas.) (Signed by Judge Kenneth M. Karas on 9/24/2024) (jca)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
AASIR AZZARMI,
Plaintiff,
No. 20-CV-9155 (KMK)
v.
OPINION & ORDER
DONALD NEUBAUER, et al.,
Defendants.
Appearances:
Aasir Azzarmi
Inglewood, CA
Pro Se Plaintiff
Frank J. Wenick, Esq.
Carmine J. Carolei, Esq.
Deborah A. Del Sordo, Esq.
Ahmuty, Demers & McManus
Albertson, NY; New York, NY
Counsel for Defendants Donald Neubauer and CoventBridge Group (USA)
Glenn A. Kaminska, Esq.
Mauro, Lilling, Naparty
Woodbury, NY
Counsel for Defendants Donald Neubauer and CoventBridge Group (USA)
Peter T. Shapiro, Esq.
Lewis Brisbois Bisgaard & Smith LLP
New York, NY
Counsel for Defendants Sedgwick Claims Management Services, Inc. and Sedgwick SIU, Inc.
Joseph A. Oliva, Esq.
Richard J. Femia, Esq.
Goldberg Segalla LLP
Garden City, NY; New York, NY
Counsel for Defendant QBE North America

KENNETH M. KARAS, United States District Judge:
Aasir Azzarmi (“Plaintiff” or “Azzarmi”) brings this Action pro se against Donald
Neubauer (“Neubauer”), CoventBridge Group (USA) (“CoventBridge”), Sedgwick Claims
Management Services, Inc. (“Sedgwick CMS”), Sedgwick SIU, Inc. (“Sedgwick SIU”; with
Sedgwick CMS, “Sedgwick”), QBE North America (“QBE”), the Delta Family Care Disability
and Survivorship Plan (the “Plan”), and Dane Street LLC (“Dane Street”; collectively,
“Defendants”). (See generally Third Amended Compl. (“TAC”) (Dkt No. 106).) 1 In the TAC,
Plaintiff raises myriad claims against Defendants arising under federal and state law. (See
generally id.)
Before the Court are three Motions To Dismiss the TAC pursuant to Federal Rule of
Civil Procedure (“Rule”) 12(b)(6)—the Motion filed by Sedgwick (the “Sedgwick Motion”),
(see Sedgwick Not. of Mot. (Dkt. No. 109)), the Motion filed by QBE (the “QBE Motion”), (see
QBE Not. of Mot. (Dkt. No. 110)), and the Motion filed by Neubauer and CoventBridge (the
“Neubauer Motion”), (see Neubauer Not. of Mot. (Dkt. No. 115)). For the reasons that follow,
the Motions are granted in part and denied in part.
I. Background
A. Materials Considered
Plaintiff attached a number of exhibits to the TAC. (See TAC 24–58.) In addition,
Plaintiff added additional factual allegations in the Opposition to the instant Motion, and
appended a thirty-page Declaration—which sets forth even more previously unpled facts—to
that document as well. (See generally Pl’s Opp’n to Mots. (“Pl’s Opp’n”) (Dkt. No. 118); see

1

Unless otherwise noted, the Court cites to the ECF-stamped page number in the upperright corner of each page in cites from the record.
Separately, the Court notes that, although the Plan and Dane Street were added to this
Action through the TAC, they do not appear to have been served. (See generally Dkt.)
2

also id. at 134–64 (Plaintiff’s Declaration).) Thus, as a threshold matter, the Court must consider
what documents and allegations it may consider in deciding the instant Motions.
Generally, “[w]hen considering a motion to dismiss, the Court’s review is confined to the
pleadings themselves,” because “[t]o go beyond the allegations in the [c]omplaint would convert
the Rule 12(b)(6) motion into one for summary judgment pursuant to [Federal Rule of Civil
Procedure] 56.” Thomas v. Westchester Cnty. Health Care Corp., 232 F. Supp. 2d 273, 275
(S.D.N.Y. 2002). “Nevertheless, the Court’s consideration of documents attached to, or
incorporated by reference in the [c]omplaint, and matters of which judicial notice may be taken,
would not convert the motion to dismiss into one for summary judgment.” Id.; see also Bellin v.
Zucker, 6 F.4th 463, 473 (2d Cir. 2021) (explaining that “when ruling on Rule 12(b)(6) motions
to dismiss,” courts may “consider the complaint in its entirety . . . , documents incorporated into
the complaint by reference, and matters of which a court may take judicial notice” (quotation
marks omitted)); Hu v. City of New York, 927 F.3d 81, 88 (2d Cir. 2019) (“In deciding a
Rule 12(b)(6) motion, the court may consider ‘only the facts alleged in the pleadings, documents
attached as exhibits or incorporated by reference in the pleadings, and matters of which judicial
notice may be taken.’” (alteration adopted) (quoting Samuels v. Air Transp. Loc. 504, 992 F.2d
12, 15 (2d Cir. 1993))).
Here, because Plaintiff has attached various documents to the TAC itself, the Court will
consider them in deciding the instant Motions. Thomas, 232 F. Supp. 2d at 275; see also Crosby
v. Stew Leonard’s Yonkers LLC, 695 F. Supp. 3d 551, 561 (S.D.N.Y. 2023) (considering three
exhibits that were attached to a complaint in connection with deciding a motion to dismiss).
Beyond the foregoing, when reviewing a complaint submitted by a pro se plaintiff, the
Court generally may consider “materials outside the complaint to the extent that they are

3

consistent with the allegations in the complaint,” Alsaifullah v. Furco, No. 12-CV-2907, 2013
WL 3972514, at *4 n.3 (S.D.N.Y. Aug. 2, 2013) (quotation marks omitted), including “[the
plaintiff’s] opposition memorandum,” Gadson v. Goord, No. 96-CV-7544, 1997 WL 714878, at
*1 n.2 (S.D.N.Y. Nov. 17, 1997), “documents that a pro se litigant attaches to his opposition
papers,” Agu v. Rhea, No. 09-CV-4732, 2010 WL 5186839, at *4 n.6 (E.D.N.Y. Dec. 15,
2010) (italics omitted), statements by the plaintiff “submitted in response to [a defendant’s]
request for a pre-motion conference,” Jones v. Fed. Bureau of Prisons, No. 11-CV-4733, 2013
WL 5300721, at *2 (E.D.N.Y. Sept. 19, 2013), and “documents either in [the plaintiff’s]
possession or of which [the] plaintiff[] had knowledge and relied on in bringing suit,” Chambers
v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (quotation marks omitted).
However—based on their particular circumstances—there are limits to the solicitude to
which pro se litigants are entitled. Specifically, serial pro se litigants may properly be “charge[d]
. . . with the responsibilities accompanying [their] manifest experience with civil litigation.”
Sledge v. Kooi, 564 F.3d 105, 109 (2d Cir. 2009); see also Patel v. Patel, No. 23-CV-8765, 2024
WL 37094, at *4 (S.D.N.Y. Jan. 3, 2024) (finding that the plaintiff, a “frequent litigator” was
“not entitled to the solicitude generally afforded to pro se litigants” (italics omitted)); Uppal v.
W. Express, Inc., No. 15-CV-9976, 2019 WL 2450794, at *10 (S.D.N.Y. Feb. 27, 2019) (noting
that the plaintiff, “[a]s a serial litigator” did “not enjoy the same solicitude as would a pro se
party litigating in good faith and with limited legal experience” (italics omitted)), report and
recommendation adopted, 2019 WL 1434234 (S.D.N.Y. Apr. 1, 2019). As it relates to this case,
there is no question that Plaintiff has a vast amount of civil litigation experience in federal court,
at least at the pleadings stage. (See Order of Dismissal 11 (noting Plaintiff’s “extensive history
of litigating claims across the country, including with exceptionally dense tomes for pleadings

4

and motions” (citation omitted)) (Dkt. No. 89).) Chief Judge Swain’s discussion of Plaintiff’s
litigation history in a remarkably similar case is instructive here:
Public Access to Court Electronic Records (PACER) shows Azzarmi’s extensive
litigation history in various courts arising from [Plaintiff’s] Delta employment. A
number of those lawsuits were filed against the same defendants named in the
amended complaint filed in this case, including Sedgwick, Delta, QBE, and
William Ittounas. Courts have dismissed Azzarmi’s prior complaints on res
judicata grounds, for failing to comply with Federal Rule of Civil Procedure 8, for
failing to comply with court orders, and for failing to state a claim under Section
1981 and the RICO statute. See Azzarmi v. Sedgwick Claims Management Systems,
Inc.[,] No. 21-CV-10074 (E.D. Mich. Jan[.] 11, 2021) (dismissing for failure to
state a claim RICO complaint against Sedgwick and QBE, among others), 21-1185
(6th Cir. Nov. 9, 2021) (affirming dismissal of “inadequately pleaded complaint”
and denial of reconsideration and leave to amend); Azzarmi v. Donnelly, No. 21CV-[]12 (E.D.N.Y. Jan. 4, 2021) (dismissing for failure to state a claim and on
immunity grounds complaint against Eastern District judge arising from her rulings
in Azzarmi’s cases), 21-803 (2d Cir. Oct. 26, 2021) (dismissing appeal as
frivolous); [Azzarmi v. Catania], [No.] []20-CV-4712, 59. . . (S.D.N.Y. Oct. 28,
2021) (dismissing with prejudice defamation complaint for improper venue and
failure to comply with court orders, and noting that while “the Court has afforded
Plaintiff significant leeway in view of [Plaintiff’s] pro se status, [Plaintiff’s]
practice of serially filing untimely, meritless motions ends now.”); Azzarmi v.
USDC CALA, [No.] 20-71583 (9th Cir. June 25, 2020) (denying Azzarmi’s
application because [Azzarmi] had “not demonstrated that this case warrants the
intervention of the court by means of the extraordinary remedy of mandamus[]”);
Pimental v. Delta Air Lines, Inc., No. 17-CV-5317 (E.D.N.Y[.], July 16, 2019)
(dismissing employment discrimination complaint with prejudice under [Federal
Rule of Civil Procedure] 41(b) for failure to comply with court orders and for using
abusive language toward judges); Pimental v. Delta Airlines, No. 18-CV-2999
(E.D.N.Y. July 31, 2019) (dismissing with prejudice removal action against, inter
alia, Delta, Sedgwick, and Ittounas, in light of Azzarmi’s “egregious” behavior”),
aff’d, 19-2343, 19-2376, 19-2499, 19-2510 (2d Cir. Oct. 27, 2020); Azzarmi v.
Ricotta & Marks, [No.] []19-CV-4437, 5 . . . (S.D.N.Y. Oct. 28, 2021) (dismissing
for lack of subject matter jurisdiction complaint asserting state law claims against
attorneys who represented Azzarmi in litigation against Delta), [No.] 19-2343 (2d
Cir. May 5, 2020) (dismissing appeal as frivolous).
Davis v. Sedgwick Claims Mgmt. Servs. (Davis I), No. 21-CV-7090, 2022 WL 153251, at *5
(S.D.N.Y. Jan. 18, 2022). (See also Order of Dismissal 11–12 (setting forth Plaintiff’s extensive
litigation history in district courts throughout the country and noting that Plaintiff was named a
“vexatious litigant” in the Central District of California (citing Azzarmi v. Wurtz, No. 20-CV5

607, 2020 WL 3106343, at *1, 6 (C.D. Cal. May 21, 2020), reconsideration denied, 2020 WL
5440353 (C.D. Cal. July 15, 2020), aff’d, 854 F. App’x 893 (9th Cir. 2021))).) 2 In fact, it bears
noting that, just last year, Chief Judge Swain issued an order barring Plaintiff from filing future
civil actions in forma pauperis in this District without first obtaining court leave. (See Bar Order
Under 28 U.S.C. § 1651 (Dkt. No. 12, 23-CV-3620 Dkt.); see also id. at 1 (noting Plaintiff’s
“history of engaging in vexatious litigation”).)
Importantly, “the exact degree of solicitude that should be afforded to a pro se litigant in
any given case depends upon a variety of factors, including the procedural context and relevant
characteristics of the particular litigant.” Davis I, 2022 WL 153251, at *4 (citing Tracy v.
Freshwater, 623 F.3d 90, 100–03 (2d Cir. 2010)); see also Tracy, 623 F.3d at 102 (“[T]he degree
of solicitude may be lessened where the particular pro se litigant is experienced in litigation and
familiar with the procedural setting presented” (italics omitted)). Indeed, a general withdrawal
of solicitude may be appropriate where there has been “a strong showing that a pro se litigant has
acquired adequate experience more generally, so as to render special solicitude unnecessary and
potentially inappropriate.” Sledge, 564 F.3d at 109; see also Tracy, 623 F.3d at 102–03 (noting
that “district courts should exercise their discretion . . . to determine based on the totality of the
relevant circumstances when the ordinary [solicitous] approach is not appropriate and what
degree of solicitude, if any, should be afforded” to a pro se litigant, “subject to review for . . .
abuse”).
Here the Court has little trouble concluding that—for purposes of resolving the instant
Motions only—Plaintiff merits a withdrawal of the solicitude generally afforded to pro se

2

As the Court has already noted in this Action, Plaintiff has previously gone by the name
“Nicholas Pimentel.” (See Order 3 n.1 (Dkt. No. 10).)
6

litigants. As noted above, Plaintiff has a great deal of experience litigating in federal court,
especially in the context of motions to dismiss. Davis I, 2022 WL 153251, at *5; see generally
Davis v. Sedgwick Claims Mgmt. Servs. Inc. (Davis II), No. 21-CV-7090, 2023 WL 6150009, at
*13–18 (S.D.N.Y. Aug. 30, 2023) (reflecting Plaintiff’s experience at the motion-to-dismiss
stage), report and recommendation adopted, 2023 WL 6141170 (S.D.N.Y. Sept. 20, 2023);
Azzarmi v. Key Food Stores Co-Operative Inc., No. 20-CV-6835, 2021 WL 8013811 (S.D.N.Y.
Dec. 28, 2021) (same), report and recommendation adopted, 2022 WL 884973 (S.D.N.Y. Mar.
25, 2022); Wurtz, 2020 WL 3106343, at *2–4 (same). (See also generally Order of Dismissal
(same).) Further, the Court emphasizes that “a court’s ‘special solicitude’ towards pro se
litigants ‘does not extend to the willful, obstinate refusal to play by the basic rules of the system
upon whose very power the plaintiff[s] [are] calling to vindicate their rights.’” Lipin v Hunt, 573
F. Supp. 2d 836, 845 (S.D.N.Y. 2008) (italics omitted) (quoting Pandozy v. Segan, 518 F. Supp.
2d 550, 558 (S.D.N.Y. 2007)). And here, Plaintiff has already been put on notice—multiple
times—of the generally uncontroversial requirement that litigants must comply with courts’
individual rules. (See Order of Dismissal 3 (noting that the Court had warned Plaintiff that
Plaintiff failed to comply with the Court’s Individual Rules of Practice and that it previously
warned Plaintiff of a similar failure in a prior, related action); see also id. at 12 (stating that
Plaintiff’s non-compliance with applicable procedural rules “ends now” (citation omitted).)
Nevertheless—in plain contravention to this Court’s Individual Rules—Plaintiff’s Opposition to
the instant Motions runs 133 pages long, and, moreover, it is drafted in very small font and is
single-spaced. (See generally Pl’s Opp’n.) See also Indiv. Rule § II.B (“Memoranda of law in
support of and in opposition to motions are limited to [twenty-five] pages[.] All memoranda of
law shall be produced in a 12-point font, be double-spaced, and have one-inch margins on all

7

sides.”). 3 Finally, the Court granted Plaintiff leave to file the TAC with the understanding that it
would be “either [twenty] pages in length or . . . utilize[] the SDNY pro se form for
discrimination.” (Op. & Order 4 (quotation marks omitted) (noting Plaintiff’s representation to
the Court) (Dkt. No. 101).) Although Plaintiff did use the pro se form complaint and the TAC
was technically only twenty-three pages long (not including exhibits), Plaintiff unquestionably
violated the spirit of Plaintiff’s representation to the Court, given that the font size and spacing
used on the TAC’s “attached pages” is so small that, in reality, it is far longer than the total
number of pages suggests. (See TAC 7–22.)
This ends now. While the Court considered the entirety of Plaintiff’s non-compliant
pleadings and submissions in connection with pending motions, in the future, Plaintiff is on
notice that the Court will not tolerate such behavior. Any submission that fails to be in full
compliance with the Court’s Individual Practices will not be considered. That means, for
example, that any submission that does not have the required font will not be read at all. And,
the Court will not read any part of any submission that exceeds any applicable page maximums.
Moreover, Plaintiff is put on notice that any pleadings must contain allegations that are made in
good faith, that is that they have a factual basis and are not frivolous. Failure to do so could
result in sanctions. See, e.g., Papadimitriou v. Mullooly, Jeffrey, Rooney & Flynn, LLP, No. 22-

3

Indeed, it seems Plaintiff was conscious of the fact that the Opposition flouted this
Court’s Individual Rules, and even took the opportunity to question the Court’s ability to be
objective in connection with this case. (See Pl’s Opp’n 3 (“Defendants and Judge Karas can’t
complain that this brief is long because Defendants asked for more specific facts and Plaintiff
has at least 150 pages in total to respond to [six] Defendants, Motions [T]o Dismiss, and number
of claims Plaintiff needs to respond to. Defendants ongoing violations have occurred over
several years and continue occurring. Judge Karas voluntarily and improperly maneuvered
himself onto this case (disturbing Plaintiff’s choice of venue and over Plaintiff’s objective bias
objections), or rather ‘hijacked’ this case, so Judge Karas obviously is quite personally interested
in this case.”).)
8

CV-2065, 2023 WL 6385769, at *5 (E.D.N.Y. Sept. 29, 2023) (explaining that “a court may
order a pro se litigant to pay legal fees,” so long as the court “adequately warn[s] the pro se
litigant”); Ginther v. Provident Life & Cas. Ins. Co., No. 05-CV-248, 2007 WL 925751, at *4
(W.D.N.Y. Mar. 26, 2007) (imposing sanctions on an experienced pro se plaintiff by requiring
him to pay certain of the defendants costs and attorneys’ fees—including those incurred in
connection with their sanctions motion—even after a state court had sanctioned the plaintiff by
imposing a $5,000 fine, where the plaintiff’s filings were “patently frivolous” and a “barely
veiled attempt to reargue, not only the current case, but [a] previous lawsuit as well”), aff’d, 350
F. App’x 494 (2d Cir. 2009) (summary order); Golub v. Univ. of Chicago, No. 87-CV-2891,
1992 WL 333641, at *4 (E.D.N.Y. Oct. 26, 1992) (sanctioning a pro se litigant by imposing a
$3,000 fine upon him after repeatedly warning him of the consequences of frivolous filings).
In sum, in light of Plaintiff’s litigation experience at the motion-to-dismiss stage, as well
as Plaintiff’s behavior before this Court and many other courts across the country, the Court—in
the exercise of its discretion—concludes that Plaintiff is not entitled to solicitude here, and will
therefore treat Plaintiff like any other litigant. See Sledge, 564 F.3d at 109 (recommending that,
“when a court considers whether to withdraw a pro se litigant’s special status, it should consider
not only that litigant’s lifetime participation in all forms of civil litigation, but also his experience
with the particular procedural setting presented” (italics omitted)); see also Tracy, 623 F.3d at
102–03 (explaining that, when considering “what degree of solicitude, if any, should be
afforded” to a pro se litigant, courts should base their decision on “the totality of the relevant
circumstances”). The primary upshot of the Court’s conclusion is that the Court will not
consider the many facts asserted in the Opposition or Plaintiff’s unauthorized declaration, nor
will it interpret the TAC “to raise the strongest arguments that [it] suggest[s,]” as it would for a

9

typical pro se plaintiff. Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013); see also Cortese
v. Skanska Koch, Inc., No. 20-CV-1632, 2021 WL 429971, at *18 n.4 (S.D.N.Y. Feb. 8, 2021)
(explaining that a plaintiff “cannot amend [their] complaint through a brief”); Peffers v. Stop &
Shop Supermarket Co. LLC, No. 14-CV-3747, 2015 WL 5460203, at *1 n.2 (S.D.N.Y. June 9,
2015) (“[I]t is generally improper to consider [a plaintiff’s] affidavits in ruling on a motion to
dismiss.”) (citation omitted)); Trustees of Empire State Carpenters Annuity, Apprenticeship v.
Syracuse Floor Sys., Inc., No. 13-CV-1509, 2013 WL 7390601, at *3 (E.D.N.Y. Dec. 16, 2013)
(Report & Recommendation) (declining to consider a declaration submitted in support of a
motion to dismiss because it was “not incorporated in the complaint by reference, [was] not a
document upon which the plaintiffs solely relied in bringing th[at] action and integral to the
[c]omplaint, and [was] not a matter of public record, but rather concerns matters outside the
pleadings”); see also Wright v. Ernst & Young LLP, 152 F.3d 169, 178 (2d Cir. 1998) (noting
that a plaintiff may not amend their complaint through its opposition brief).
B. Factual Background
The following facts are drawn from the TAC and the exhibits attached thereto. The facts
alleged are assumed true for the purpose of resolving the instant Motions. See Buon v. Spindler,
65 F.4th 64, 69 n.1 (2d Cir. 2023). However, given that the TAC contains numerous legal
conclusions, (see, e.g., TAC ¶ 8 (“All Defendants aided and abetted each other in committing
medical fraud against Plaintiff and/or violating 42 [U.S.C. §§] 1981 & 1983 . . . to violate
Plaintiff[’]s constitutional rights, depriving Plaintiff of money and property, and subjecting
Plaintiff to cruel and unusual punishment for exercise First Amendment rights.”)), the Court
emphasizes at the outset that it need not—and will not—accept such conclusions as true, Cadet
v. All. Nursing Staffing of N.Y., Inc., 632 F. Supp. 3d 202, 219 (S.D.N.Y. 2022) (“Even in the pro
se context, the Court is not bound to accept ‘conclusory allegations or legal conclusions
10

masquerading as factual conclusions.’” (italics omitted) (quoting Rolon v. Henneman, 517 F.3d
140, 149 (2d Cir. 2008))). 4
1. The Parties
Plaintiff—a resident of California 5—is a practicing Muslim who identifies as Hispanic.
(See TAC ¶¶ 16, 29.) During the relevant time period, Plaintiff worked as a flight attendant for
Delta Airlines (“Delta”). (Id. ¶¶ 13, 31.) 6
As alleged, Sedgwick and QBE handled Workers’ Compensation matters involving Delta
employees. (Id. ¶ 11.)
Exhibit 1 to the TAC makes clear that CoventBridge—through its investigator
Neubauer—conducted an investigation in 2018 on behalf of Sedgwick SIU relating to Plaintiff’s
claim, which Sedgwick was assessing. (See TAC Ex. 1.) Although Plaintiff previously asserted
that Neubauer was employed by CoventBridge as an investigator, (see Second Am. Compl.
(“SAC”) ¶ 2(B) (Dkt. No. 34); First Am. Compl. (“FAC”) ¶ 2(B) (Dkt. No. 6)), Plaintiff now—

4

Although the TAC is far from a model of clarity, the Court has closely reviewed it to
present as cohesive a narrative as possible herein.
5

The Court notes that Plaintiff’s address, 10217 S. Inglewood Ave., Inglewood, CA
90304, is associated with the Catholic Charities of Los Angeles St. Margaret’s Center, see
Google Maps, https://maps.google.com (search 10217 S. Inglewood Ave., Inglewood, CA
90304); see also McHale v. Chase Home Fin. LLC, No. 17-CV-6089, 2020 WL 7711826, at *4
(E.D.N.Y. Dec. 29, 2020) (taking judicial notice of a location found via Google Maps).
Although it is unclear whether St. Margaret’s Center provides lodging or shelter services, the
Court notes that—coupled with Plaintiff’s unquestionable chicanery in connection with litigating
this case—Plaintiff’s use of this address raises the specter that Plaintiff is seeking to manufacture
diversity. Cf. Davis II, 2023 WL 6150009, at *2 (noting—in a case brought by a former Delta
flight attendant against Sedgwick CMS that Plaintiff sought to join—that the plaintiff there had
suspiciously changed her address from California to Florida in an effort to take advantage of a
more favorable statute of limitations that “smack[ed] of litigation gamesmanship”).
6

Because Plaintiff does not allege Plaintiff’s gender in the TAC, the Court will simply
refer to Plaintiff as “Plaintiff” herein.
11

for the first time—asserts that Neubauer is “an alleged NYC detective/police officer,” (TAC
¶ 37).
2. Events in 2017 & 2018
In January 2017, Plaintiff was injured on the job. (TAC ¶ 13.) Plaintiff avers that, from
as early as January 2017, Sedgwick was responsible for approving or denying Plaintiff’s
“workers[’] compensation leave of absence.” (Id. ¶ 15.) Plaintiff also asserts that in
approximately April 2017 through June 2017, a Sedgwick employee informed Plaintiff that
because Plaintiff is Hispanic, Sedgwick believed Plaintiff was committing insurance fraud. (Id.
¶ 16; see also id. ¶ 26 (alleging that at least one Sedgwick employee continued using racial slurs
when referring to Plaintiff and suggesting that Plaintiff was engaging in Workers’ Compensation
fraud and was “lazy and [didn’t] want to work” because Plaintiff is Hispanic).) In addition,
Plaintiff alleges that a non-Hispanic Sedgwick employee referred to Hispanic individuals using
racial epithets when speaking with Plaintiff. (Id. ¶ 17.)
In connection with Plaintiff’s Workers’ Compensation claims, the same Sedgwick
employee who used racist language also told Plaintiff in approximately June 2017 that Plaintiff’s
various healthcare-related claims—including Workers’ Compensation—“were all denied
‘because Sedgwick’s surgeon, Dr. Panos (Spyros), who reviewed your claims and medical files,
had determined that you do not have any injuries or disabilities that require any medical
treatment or any time off from work.’” (Id. ¶ 32; see also id. ¶ 16 (referring to Panos as an
“unlicensed doctor”).) 7

7

Plaintiff generally alleges that Sedgwick CMS, Dane Street, and QBE have a practice of
using unlicensed and/or unqualified “doctors” who deny meritorious claims for treatment and
benefits. (See TAC ¶¶ 77, 81.)
12

In August 2017, Plaintiff’s manager at Delta “threatened and/or informed” Plaintiff by
phone that Plaintiff needed to return to work by January 2018, i.e., by one year after Plaintiff’s
workplace injury. (Id. ¶ 18.) Plaintiff asserts that, ultimately, Sedgwick denied Plaintiff’s
Workers’ Compensation “medical treatment and/or . . . leave[s] of absence with pay and/or any
or all disability leaves of absence[,]” and that this continued up until February 2018. (Id. ¶¶ 17,
19.) As alleged, Delta has a “formal and/or official and/or unofficial and/or informal policy”
where employees who do not return to work within a year of suffering a workplace injury or
being on disability leave are subject to termination. (Id. ¶ 14.) Thus, Delta terminated Plaintiff’s
employment in light of Plaintiff’s many “unapproved absences.” (Id. ¶¶ 19–20, 25.)
Notably, Plaintiff asserts that Plaintiff informed the New York State Workers’
Compensation Board (“WCB”) of Sedgwick’s alleged racial discrimination in August 2017. (Id.
¶ 21.) Plaintiff also asserts that Plaintiff filed an employment lawsuit in September 2017 against
Delta. (Id. ¶ 34.) Following these events, Plaintiff avers that the same Sedgwick employee who
used racist language threatened Plaintiff multiple times from September 2017 to May 2018 to
drop the WCB case and the lawsuit in exchange for $10,000 or else Sedgwick would have “its[]
NYC cops do a criminal investigation to prosecute you criminally for fraud.” (Id. ¶ 35.) In
response, Plaintiff explained that such a settlement would violate Plaintiff’s convictions as a
practicing Muslim. (Id. ¶ 36.) Because Plaintiff refused to accept the $10,000 settlement,
Plaintiff asserts that Sedgwick and CoventBridge paid Neubauer an undisclosed sum to launch
an “official criminal fraud investigation against Plaintiff [and] to ‘push for a fraud charge.” (Id.
¶ 37.)
3. Events in 2019
In the TAC, Plaintiff alleges for the first time that, in February 2019—over eighteen
months before Plaintiff initiated this Action, (see Compl. (Dkt. No. 3))—Neubauer, disguised in
13

“a hat and [wearing] sunglasses at night,” told Plaintiff he was an undercover police officer,
displayed a police badge, and “began asking Plaintiff if Plaintiff was Muslim and if Plaintiff’s
religious beliefs were the only reason Plaintiff was refusing to settle these [two] cases with
Sedgwick[,]” (TAC ¶ 38). After Plaintiff confirmed that Plaintiff’s religious convictions were, in
fact, behind Plaintiff’s refusal to settle, Neubauer shoved Plaintiff against a wall while using
racial slurs and attempted to put Plaintiff in handcuffs. (Id.) As alleged, Neubauer kicked
Plaintiff’s “ankle, legs,[]& back of Plaintiff’s knees” repeatedly, tackled Plaintiff to the ground,
put Plaintiff in a chokehold, and threatened Plaintiff with a gun. (Id.) Upon searching Plaintiff,
Neubauer is alleged to have taken $200.00 from Plaintiff. (Id.) During this altercation Plaintiff
asserts that Neubauer told Plaintiff that if Plaintiff did not voluntarily dismiss the employment
lawsuit and settle the WCB case, Plaintiff would be incarcerated and prosecuted for fraud. (Id.)
Plaintiff agreed to comply, so Neubauer released Plaintiff. (Id.)
Plaintiff alleges that Plaintiff sought to voluntarily dismiss the employment lawsuit
against Delta, but the court “completely ignored” the application, so Plaintiff began “violating
several of the judge’s orders and making inappropriate comments to expedite quick dismissal,”
such that, by July 2019, the lawsuit was dismissed. (Id. ¶¶ 39–41.)
On approximately July 25, 2019, Neubauer allegedly approached Plaintiff again, showed
his badge, introduced himself “as a[n] NYC detective/cop” and again threatened Plaintiff to drop
the WCB case and to refrain from testifying at a WCB hearing, or else face arrest. (Id. ¶ 42.)
Given that it was against Plaintiff’s religious beliefs to settle the WCB case, Plaintiff alleges that
Neubauer “took adverse action against Plaintiff on around July 25, 2019” by perjuring himself,
giving “third party hearsay testimony,” and “maliciously prosecut[ing] Plaintiff by testifying to
[a] WCB judge that Plaintiff committed criminal acts of fraud.” (Id. ¶ 43.)

14

Notwithstanding Plaintiff’s many allegations as to various Defendants’ threats, “Plaintiff
was never formally charged, indicted, or convicted . . . for the criminal ‘fraud’ and/or ‘insurance
fraud’ allegations.” (Id. ¶ 45; see also id. ¶ 4 (“Plaintiff was never charged and/or prosecuted
and/or indicted at any time for ‘insurance fraud[.]’”). But see id. ¶ 62 (“In November 2022,
Defendants initiated a criminal arrest, imprisonment, and prosecution against Plaintiff[;] . . . the
arresting officer informed Plaintiff that Plaintiff’s arrest and imprisonment [were] based on . . .
Neubauer and/or Defendants criminal investigation and/or factual allegations that Plaintiff
committed criminal acts of ‘fraud’ and/or ‘insurance fraud.’”).) 8
4. Events in 2022 & 2023
Plaintiff asserts that “[i]n and/or around January 2022,” CoventBridge, Neubauer,
Sedgwick, and the Plan “published unprivileged, false statements” regarding Plaintiff to various
third parties—including Stephanie Acosta, Rose Vlahos, Erika Lee, and others—that Plaintiff
was a “fugitive” and “on the run” from the authorities because Plaintiff committed “fraud and
grand larceny” against Delta. (Id. ¶ 1.)
Additionally, Plaintiff alleges that, on November 7, 2022, CoventBridge, Neubauer,
Sedgwick, and the Plan “published unprivileged, false statements” to one Geoffrey Cruz, as well
as individuals named Luisa, Jen, and Nikki, to the effect that Plaintiff was facing criminal
charges for committing insurance fraud. (Id. ¶ 3.)
Finally, Plaintiff alleges that, “[i]n or around July 2023,” Sedgwick CMS informed third
parties Samuel Lopez, Laura Davis, Erika Lee, and Melissa Mendoza, as well as individuals

8

In connection with Plaintiff’s purported 2022 arrest and imprisonment (see TAC ¶¶ 62,
183), Plaintiff alleges that Plaintiff was “not incarcerated” in light of New York’s “no cash bail
law,” (id. ¶ 65).
15

named Nikki, Jen, Luisa, John, Bruce, Thomas, and Paul, that Plaintiff engaged in the
unauthorized or unlicensed practice of law. (Id. ¶ 6.) 9
C. Procedural History
The Court presumes that the Parties are familiar with the procedural background of this
Action, and will therefore only summarize the proceedings that have taken place since the
Court’s last substantive Order in this case.
On September 26, 2023, the Court granted in part and denied in part Plaintiff’s Motion
for Reconsideration. (See Op. & Order 2 (Dkt. No. 101).) As relevant here, the Court granted
Plaintiff leave to file a TAC. (See id. at 7.) Plaintiff filed the TAC on October 26, 2023. (See
TAC.) Sedgwick, on behalf of all Defendants, filed a letter seeking leave to move to dismiss the
TAC on November 3, 2023. (See Letter from Peter T. Shapiro, Esq. to Court (Nov. 3, 2023)
(Dkt. No. 107).) Plaintiff did not file a response. (See generally Dkt.) The Court held a
conference on December 6, 2023, during which it adopted a briefing schedule. (See Dkt. (minute
entry for Dec. 6, 2023); see also Scheduling Order (Dkt. No. 108).)
Pursuant to that briefing schedule, Defendants filed their respective Motions on
December 22, 2023. (See Sedgwick Not. of Mot.; Decl. of Peter T. Shapiro in Supp. of
Sedgwick Mot. (“Shapiro Decl.”) (Dkt. No. 111); Mem. of Law in Supp. of Sedgwick Mot.
(“Sedgwick Mem.”) (Dkt. No. 112); QBE Not. of Mot.; Decl. of Richard J. Femia, Esq. in Supp.
of QBE Mot. (“Femia Decl.”) (Dkt. No. 113); Mem. of Law in Supp. of QBE Mot. (Dkt. No.
114); Neubauer Not. of Mot.; Decl. of Frank J. Wenick, Esq. in Supp. of Neubauer Mot. (Dkt.
No. 116); Mem. of Law. in Supp. of Neubauer Mot. (“Neubauer Mem.”) (Dkt. No. 117).) On
January 30, 2024, Plaintiff filed an Opposition. (See Pl’s Opp’n.) Defendants filed their
9

Interestingly, Plaintiff attempted to join Laura Davis in another, similar action in this
District against Sedgwick CMS. See Davis II, 2023 WL 6150009, at *2.
16

respective Replies on February 12, 2024. (See Reply Mem. of Law. in Supp. of Neubauer Mot.
(“Neubauer Reply”) (Dkt. No. 119); Reply Mem. of Law. in Supp. of Sedgwick Mot.
(“Sedgwick Reply”) (Dkt. No. 120); Reply Mem. of Law. in Supp. of QBE Mot. (“QBE Reply”)
(Dkt. No. 121).)
II. Discussion
A. Standard of Review
The Supreme Court has held that while a complaint “does not need detailed factual
allegations” to survive a motion to dismiss, “a plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(alteration adopted) (internal quotation marks and citation omitted). Indeed, Rule 8 of the
Federal Rules of Civil Procedure “demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Nor does a complaint
suffice if it tenders naked assertions devoid of further factual enhancement.” Id. (alteration
adopted) (internal quotation marks and citation omitted). Instead, a complaint’s “[f]actual
allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550
U.S. at 555.
“[O]nce a claim has been stated adequately, it may be supported by showing any set of
facts consistent with the allegations in the complaint,” id. at 563, and a plaintiff must allege
“only enough facts to state a claim to relief that is plausible on its face,” id. at 570. However, if
a plaintiff has not “nudged [his] claim[] across the line from conceivable to plausible, the[]
complaint must be dismissed.” Id.; see also Iqbal, 556 U.S. at 679 (“Determining whether a
complaint states a plausible claim for relief will . . . be a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense. But where the well17

pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the
complaint has alleged—but it has not ‘shown’—‘that the pleader is entitled to relief.’” (alteration
adopted) (internal quotation marks and citation omitted) (quoting Fed. R. Civ. P. 8(a)(2))); id. at
678–79 (“Rule 8 marks a notable and generous departure from the hypertechnical, code-pleading
regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with
nothing more than conclusions.”).
“[W]hen ruling on a defendant’s motion to dismiss, a judge must accept as true all of the
factual allegations contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam), and “draw[] all reasonable inferences in favor of the plaintiff,” Daniel v. T&M Prot.
Res., Inc., 992 F. Supp. 2d 302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie’s Int’l PLC,
699 F.3d 141, 145 (2d Cir. 2012)). Additionally, “[i]n adjudicating a Rule 12(b)(6) motion, a
district court must confine its consideration to facts stated on the face of the complaint, in
documents appended to the complaint or incorporated in the complaint by reference, and to
matters of which judicial notice may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d
99, 107 (2d Cir. 1999) (internal quotation marks and citation omitted); see also Dashnau v.
Unilever Mfg. (US), Inc., 529 F. Supp. 3d 235, 240 (S.D.N.Y. 2021) (same).
Fraud claims—including common law fraud claims—are subject to the heightened
pleading standard set forth in Rule 9(b). See Matana v. Merkin, 957 F. Supp. 2d 473, 484
(S.D.N.Y. 2013) (“[A] claim for common law fraud under New York law must satisfy the
requirements of the heightened pleading standard under Federal Rule of Civil Procedure 9(b).”
(collecting cases)). Rule 9(b) provides: “In alleging fraud or mistake, a party must state with
particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and
other conditions of a person’s mind may be alleged generally.” Fed. R. Civ. P. 9(b). However,

18

courts “must not mistake the relaxation of Rule 9(b)’s specificity requirement regarding
condition of mind for a license to base claims of fraud on speculation and conclusory
allegations,” rather “plaintiffs must allege facts that give rise to a strong inference of fraudulent
intent.” Lerner v. Fleet Bank, N.A., 459 F.3d 273, 290 (2d Cir. 2006) (quoting Acito v. IMCERA
Grp., Inc., 47 F.3d 47, 52, (2d Cir. 1995)). “An inference is ‘strong’ if it is cogent and at least as
compelling as any opposing inference one could draw from the facts alleged.” Pilkington N. Am.
Inc. v. Mitsui Sumitomo Ins. Co. of Am., 460 F. Supp. 3d 481, 492 (S.D.N.Y. 2020) (quoting
Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 797 F.3d 160, 176–77 (2d Cir. 2015)).
B. Analysis
The SAC raises no less than eighteen claims arising under federal and state law. 10 Those
claims include the following:
1. Defamation Against CoventBridge, Neubauer, Sedgwick, and the Plan, (see TAC
¶¶ 1–7);
2. Violations of 42 U.S.C. § 1981 (“§ 1981) Against Sedgwick and Dane Street, (see id.
¶¶ 11–28);
3. First Amendment Retaliation Against All Defendants, (see id. ¶¶ 25, 29–53);

10

The Parties appear to agree, with respect to Plaintiff’s claims arising under state law,
that New York law governs here. “When a party assumes in its briefs that a particular
jurisdiction’s law applies, it gives implied consent sufficient to establish choice of law.” Tesla
Wall Sys., LLC v. Related Cos., L.P., No. 17-CV-5966, 2018 WL 4360777, at *2 (S.D.N.Y. Aug.
15, 2018) (alteration adopted) (quotation marks omitted)); see also Travelers Cas. Ins. Co. of
Am. v. Blizzard Busters Snowplowing Corp., No. 21-CV-8220, 2023 WL 2648772, at *4
(S.D.N.Y. Mar. 27, 2023) (same). Thus, the Court finds that New York law governs Plaintiff’s
state law claims. See Santalucia v. Sebright Transp., Inc., 232 F.3d 293, 296 (2d Cir. 2000)
(“The parties’ briefs assume that New York law controls this dispute, and such ‘implied consent
. . . is sufficient to establish choice of law.’” (quoting Tehran–Berkeley Civil & Env’t Eng’rs v.
Tippetts–Abbett–McCarthy–Stratton, 888 F.2d 239, 242 (2d Cir. 1989))).
19

4. Violations of the Religious Freedom Restoration Act of 1993, 42 U.S.C. §§ 2000bb
et seq. (“RFRA”), Against All Defendants, (see id.);
5. Civil Conspiracy Under 42 U.S.C. § 1983 (“§ 1983”) Against All Defendants, (see
id.);
6. False Arrest and Imprisonment, Assault, Battery, Malicious Prosecution, and Denial
of a Fair Trial Under § 1983 Against All Defendants, (see id. ¶¶ 54–76, 116–28);
7. Violation of New York General Business Law (“GBL”) § 349 Against Sedgwick,
Dane Street, and QBE, (see id. ¶¶ 77–108);
8. Fraud, Fraudulent Inducement, and Fraudulent Misrepresentation Against Sedgwick,
Dane Street, and QBE, (see id.);
9. Medical Malpractice Against Sedgwick and Dane Street, (see id. ¶¶ 109–15);
10. Negligence Claims Against All Defendants, (see id. ¶¶ 129–40);
11. Negligent Hiring, Training, Retention, and Supervision Claims Against All
Defendants, (see id. ¶¶ 141–54);
12. Prima Facie Tort Against All Defendants, (see id. ¶¶ 155–69);
13. Intentional Infliction of Emotional Distress (“IIED”) Against All Defendants, (see id.
¶¶ 174–78);
14. Negligent Infliction of Emotional Distress (“NIED”) Against All Defendants, (see id.
¶¶ 170–73);
15. Violations of 42 U.S.C. §§ 1985(2)–(3) and 1986 Against All Defendants, (see id.
¶¶ 179–89);
16. Violation of the Employee Retirement Income Security Act of 1974 (“ERISA”)
Against Sedgwick and the Plan, (see id. ¶¶ 190–98);

20

17. Breach of Fiduciary Duty Against Sedgwick, (see id. ¶¶ 199–203); and
18. Breach of Physician-Patient Confidentiality Against Sedgwick and Dane Street, (see
id. ¶¶ 204–08). 11
Defendants raises a flurry of arguments in response to these many claims. (See generally
Neubauer Mem.; Sedgwick Mem.; QBE Mem.) In the interest of efficiency, the Court will
address each of Defendants’ arguments to the extent necessary to resolve the instant Motion.
1. Rule 8
As in prior motions to dismiss, all Defendants contend that the TAC violates Rule 8 of
the Federal Rule of Civil Procedure. (See Sedgwick Mem. 12–13; QBE Mem. 10–12; Neubauer
Mem. 18–19.)
Rule 8 requires that a complaint set forth “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Moreover, “[e]ach
allegation must be simple, concise, and direct.” Id. 8(d)(1). The “statement should be plain
because the principal function of pleadings under the Federal Rules is to give the adverse party
fair notice of the claim asserted so as to enable him to answer and prepare for trial.” Salahuddin
v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988) (citations omitted). A complaint may be dismissed
under Rule 8 if it “is so confused, ambiguous, vague, or otherwise unintelligible that its true
substance, if any, is well disguised.” Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995). In
other words, “‘[c]omplaints which ramble, which needlessly speculate, accuse and condemn, and
which contain circuitous diatribes far removed from the heart of the claim do not comport with
these goals and this system’ and must be dismissed.” Barsella v. United States, 135 F.R.D. 64,
11

The Court recognizes that in the Opposition to the instant Motions, Plaintiff claims to
have brought no less than ninety-one claims. (See Pl’s Opp’n 117.) However, for the reasons
stated above—and given that Plaintiff knows better—the Court has limited its analysis to the
claims raised in the TAC. See supra Section I.A.
21

66 (S.D.N.Y. 1991) (quoting Prezzi v. Berzak, 57 F.R.D. 149, 151 (S.D.N.Y. 1972) (alteration in
original)); see also Kittay v. Kornstein, 230 F.3d 531, 541 (2d Cir. 2000) (“Dismissal . . . is
usually reserved for those cases in which the complaint is so confused, ambiguous, vague, or
otherwise unintelligible that its true substance, if any, is well disguised.” (alteration in original)
(quoting Salahuddin, 861 F.2d at 42)).
Courts in the Second Circuit have repeatedly dismissed incomprehensible complaints
pursuant to Rule 8. See, e.g., Prezzi v. Schelter, 469 F.2d 691, 692 (2d Cir. 1972) (affirming
dismissal of an “88-page, legal size, single spaced pro se complaint” that “contained a
labyrinthian prolixity of unrelated and vituperative charges that defied comprehension” and thus
“failed to comply with the requirement of Rule 8” (italics omitted)); Washburn v. Kingsborough
Cmty. Coll., No. 20-CV-395, 2022 WL 843733, at *2 (E.D.N.Y. Mar. 22, 2022) (dismissing
complaint where it was “nearly impossible for the [c]ourt to determine which facts are relevant
to [the p]laintiff’s claims”); Anduze v. City of New York, No. 21-CV-519, 2021 WL 795472, at
*2 (S.D.N.Y. Feb. 26, 2021) (dismissing a complaint as incomprehensible because, inter alia, it
was illegible and the legible portions were incomprehensible, such that “the [c]ourt is unable to
properly evaluate the full nature and extent of [the] [p]laintiff’s claims”); Schoolfield v. Dep’t of
Corr., No. 91-CV-1691, 1994 WL 119740, at *3 (S.D.N.Y. Apr. 6, 1994) (dismissing a
complaint because “a court need not sustain a pro se complaint which is incoherent, rambling,
and unreadable” (italics omitted)).
Here, the Court has little trouble concluding that the TAC fails to comply with the
requirements of Rule 8. To be sure, the TAC contains fewer pages than the SAC, however, as
mentioned, Plaintiff appears to have managed that by drafting the TAC in extraordinarily small

22

font and using single spacing. (Compare TAC, with SAC.) 12 Moreover, even a cursory review
of the TAC reveals that it contains a “labyrinthian prolixity of unrelated and vituperative
charges,” Prezzi, 469 F.2d at 692, such the Court has largely been “unable to properly evaluate
the full nature and extent of Plaintiff’s claims,” Anduze, 2021 WL 795472, at *2. In other words,
this case again presents a situation where “the complaint is so confused, ambiguous, vague, or
otherwise unintelligible that its true substance, if any, ‘is well disguised.’” Robinson v. Matos,
No. 97-CV-7144, 1999 WL 225938, at *1 (S.D.N.Y. Apr. 19, 1999) (quoting Simmons, 49 F.3d
at 86). Indeed, the TAC is at times internally inconsistent. (Compare TAC ¶¶ 4, 45 (alleging
that Plaintiff was never charged, indicted, prosecuted, or convicted in connection with the
allegations against Plaintiff raised in the TAC), with id. ¶ 62 (alleging that “[i]n November 2022,
Defendants initiated a criminal arrest, imprisonment, and prosecution against Plaintiff”).) As
with the SAC, then, the TAC is “hopelessly redundant, argumentative, and has much
irrelevancy,” just as “[i]t is excessively long-winded, and its wordiness is unjustified.” Morgens
Waterfall Holdings, L.L.C. v. Donaldson, Lufkin & Jenrette Sec. Corp., 198 F.R.D. 608, 610
(S.D.N.Y. 2001). Accordingly—with one exception noted below, see infra Section II.B.3—the
Court agrees with Defendants that Plaintiff’s TAC warrants dismissal under Rule 8.
Notwithstanding that conclusion, however, and in the interest of comprehensiveness, the
Court proceeds to review each of Plaintiff’s claims in the TAC, as best as they can be
interpreted, on the merits.

12

As noted above, Plaintiff compounded this issue by filing a shockingly long Opposition
alleging additional facts and purporting to raise more than ninety claims in total. (See generally
Pl’s Opp’n.)
23

2. Defamation Claims
The Court begins by addressing Plaintiff’s defamation claims. (See TAC ¶¶ 1–7.) To
state a claim for defamation under New York law, a plaintiff must allege “(1) a false statement
about the plaintiff; (2) published to a third party without authorization or privilege; (3) through
fault amounting to at least negligence on part of the publisher; (4) that either constitutes
defamation per se or caused special damages.” Alvarado v. Mount Pleasant Cottage Sch. Dist.,
404 F. Supp. 3d 763, 790 (S.D.N.Y. 2019) (quotation marks omitted). Under New York law,
“spoken defamatory words are slander; written defamatory words are libel.” Albert v. Loksen,
239 F.3d 256, 265 (2d Cir. 2001); see also Celle v. Filipino Reporter Enters. Inc., 209 F.3d 163,
176 (2d Cir. 2000) (“Libel is a method of defamation expressed in writing or print.”).
A plaintiff must plead the defamatory statements with some particularity. N.Y. C.P.L.R.
3016(a) (“In an action for libel or slander, the particular words complained of shall be set forth in
the complaint, but their application to the plaintiff may be stated generally.”). Under Federal
Rule of Civil Procedure 8’s liberal pleading standards, this requires a plaintiff to “identify the
allegedly defamatory statements, the person who made the statements, the time when the
statements were made, and the third parties to whom the statements were published.” Neal v.
Asta Funding, Inc., 13-CV-2176, 2014 WL 3887760, at *3 (S.D.N.Y. June 17, 2014); see also
Taranto v. Putnam County, No. 21-CV-2455, 2023 WL 6318280, at *23 (S.D.N.Y. Sept. 28,
2023) (same).
Here, Plaintiff asserts that certain alleged defamatory statements—i.e., that Plaintiff was
a “fugitive” and committed “insurance fraud”—were made by CoventBridge, Neubauer,
Sedgwick, and the Plan “and/or Defendants[’] agents and/or . . . Sedgwick CMS[’] agents.”
(TAC ¶¶ 1, 3.) However, those allegations fail to actually identify who made the allegedly
defamatory statements; instead, they provide a list of entities and individuals who may have
24

defamed Plaintiff, and that absence of simple detail is fatal to Plaintiff’s claims. See Wellner v.
City of New York, No. 16-CV-7032, 2019 WL 1511022, at *2 (S.D.N.Y. Mar. 22, 2019) (“[A]
plaintiff must provide enough context for the defendants to defend themselves—namely, ‘an
indication’ of who made what statements, when, and to whom.” (quoting MCM Prod. USA, Inc.
v. Botton, No. 16-CV-1616, 2016 WL 5107044, at *5 (S.D.N.Y. Sept. 19, 2016)); see also Davis
II, 2023 WL 6150009, at *17 (concluding that the allegation that Delta “‘and/or’ a list of nine
Delta employees, ‘and/or other Delta employees’” was insufficient to plausibly plead the third
parties to whom the allegedly defamatory statements were published); Ahmad v. Day, 647 F.
Supp. 3d 272, 280 (S.D.N.Y. 2022) (“A plaintiff fails to satisfy rule 8, where the complaint
lumps all the defendants together and fails to distinguish their conduct because such allegations
fail to give adequate notice to the defendants as to what they did wrong.” (quoting Appalachian
Enters., Inc. v. ePayment Sols., Ltd., No. 01-CV-11502, 2004 WL 2813121, at *7 (S.D.N.Y. Dec.
8, 2004)); Blige v. City Univ. of N.Y., No. 15-CV-8873, 2017 WL 498580, at *11 (S.D.N.Y. Jan.
19, 2017) (recommending dismissal of a defamation claim where the plaintiff “summarily
allege[d] that [certain defendants] slandered him, but he does not state the substance of those
statements, when they were made, or to whom they were made, amongst other missing details”
and separately finding that allegations that a university and “Human Recourses” “falsely reported
to the DOL that he was suspended for sexual harassment” were “too vague and conclusory to
state a claim for defamation”), report and recommendation adopted, 2017 WL 1064716
(S.D.N.Y. Mar. 21, 2017); Yukos Cap. S.A.R.L. v. Feldman, No. 15-CV-4964, 2016 WL 183360,
at *1 (S.D.N.Y. Jan. 11, 2016) (dismissing defamation counterclaims where they alleged
“generally that the defendants and their authorized agents ha[d] made various allegedly false and
defamatory statements about” the third-party plaintiff); Neal, 2014 WL 3887760, at *3

25

(explaining that the plaintiff failed to satisfy the liberal “plausibility” pleading standard where
the complaint did not identify which employee made the alleged defamatory statement); Stevens
v. New York, 691 F. Supp. 2d 392, 399–400 (S.D.N.Y. 2009) (dismissing defamation claims
against individual defendants where the plaintiff failed to assert facts from which it could be
inferred that any specific individual defendants uttered defamatory comments about him); Ben
Hur Moving & Storage, Inc. v. Better Bus. Bureau of Metro. N.Y., Inc., No. 08-CV-6572, 2008
WL 4702458, at *5 (S.D.N.Y. Oct. 3, 2008) (dismissing defamation claims because, among
other reasons, the “plaintiff [did] not state with sufficient particularity . . . by whom [the
statements at issue] were made”).
In addition, Plaintiff has failed to plead facts sufficient to show that Defendants’ alleged
statements were “not protected by privilege.” Albert, 239 F.3d at 266. “New York recognizes a
qualified common interest privilege when the allegedly defamatory statement is made between
persons who share a common interest in the subject matter.” Thai v. Cayre Grp., Ltd., 726 F.
Supp. 2d 323, 330 (S.D.N.Y. 2010); accord Present v. Avon Prod., Inc., 687 N.Y.S.2d 330, 333
(App. Div. 1999) (explaining that, under the common interest privilege, “[a] good faith
communication upon any subject matter in which the speaker has an interest, or in reference to
which he has a duty, is qualifiedly privileged if made to a person having a corresponding interest
or duty”). This privilege “can cover statements made to or by a defendant’s employees as well
as its outside vendors.” Bah v. Apple Inc., No. 19-CV-3539, 2020 WL 614932, at *11 (S.D.N.Y.
Feb. 10, 2020) (citing Present, 687 N.Y.S.2d at 333), adhered to on denial of reconsideration,
2021 WL 4894677 (S.D.N.Y. July 26, 2021). To overcome the common interest privilege, the
plaintiff must allege facts showing that the false statements were made with (i) “actual malice,
which requires either knowledge that the statements were false or reckless disregard for the

26

statements’ truth,” id., or (ii) common-law malice, which “means spite or ill will,” and must be
the “one and only cause for the publication,” Albert, 239 F.3d at 272 (citation omitted)).
Fairly read, the TAC alleges that, at “all relevant times,” Sedgwick, with the support of
CoventBridge, administered Workers’ Compensation claims for Delta’s employees. (See
generally TAC.) See supra Sections I.B.1–2. In that capacity, it would seem appropriate for the
relevant Defendants to identify and discuss any suspected misconduct on the part of Plaintiff.
See Davis II, 2023 WL 6150009, at *18 (noting, in a similar case, that “Delta[] . . . was engaged
in an investigation of an employee’s ‘suspected misconduct’ when it called upon Sedgwick, its
third-party claims administrator, to perform surveillance on her. Sedgwick’s resulting report,
made to its client Delta concerning the precise assignment it had been given, falls squarely
within the common interest privilege.” (citation omitted)); see also Present, 687 N.Y.S.2d at 334
(explaining that the common interest privilege covers “statements by an outside vendor or
independent contractor” in the course of an investigation into “job-related misconduct”); Bah,
2020 WL 614932, at *11 (noting that communications among employees of Apple and
employees of Apple’s security contractor concerning the identity of a suspected shoplifter at
Apple’s stores fell within the common interest privilege). 13 However, the TAC lacks any
allegation suggesting that the relevant Defendants made any false statements with actual malice
or common-law malice. (See TAC ¶¶ 1–7.) Thus, Plaintiff’s defamation claims must be
dismissed for this independent reason. See Davis II, 2023 WL 6150009, at *18 (dismissing

13

To be sure, it is unclear who the alleged third parties to whom the defamatory
statements were published are, as Plaintiff only provides their names and, in many instances,
provides only their first names. (See TAC ¶¶ 1, 3, 6.) But that only serves to highlight the
deficiency of Plaintiff’s TAC. See Yukos Cap. S.A.R.L., 2016 WL 183360, at *1 (dismissing
defamation counterclaims where they “fail[ed] adequately to identify . . . the third parties to
whom the allegedly defamatory statements allegedly were published”).
27

defamation claims where the complaint did not plead actual or common-law malice, but alleged
that “Sedgwick’s report was false” and that “one of Sedgwick’s employees was racist”); see also
Present, 687 N.Y.S.2d at 334 (explaining that “even a negligent investigation, without more,
does not create an inference that a defendant suspected the falsity of the information and
purposefully avoided seeking out facts that would confirm its falsity” and noting that “[t]he fact
that defendants may have harbored ill will towards plaintiff is insufficient, without some
evidence that this animus was the one and only cause for the publication” (quotation marks
omitted)). 14
3. Claims Under § 1981
Next, the Court considers Plaintiff’s claims pursuant to § 1981, which are expressly
brought against Sedgwick and Dane Street. (See TAC ¶¶ 11–28.) 15 Specifically, Plaintiff raises
both discrimination and retaliation claims under that provision. (See id.) However, no
14

The Court recognizes that Plaintiff baldly asserts that the alleged defamatory
statements were “unprivileged,” (see TAC ¶¶ 1, 3, 6), but given that “a complaint [does not]
suffice if it tenders naked assertions devoid of further factual enhancement,” Iqbal, 556 U.S. at
678, those allegations do not change the Court’s analysis.
15

Because Plaintiff pleads no facts relating to Dane Street in connection with Plaintiff’s
§ 1981 claims, (see TAC ¶¶ 11–28), those claims are dismissed as against that Defendant.
In addition, Plaintiff may be seeking to bring these § 1981 claims against QBE as well.
(See id. ¶ 11.) However, as with Dane Street, Plaintiff raises no allegation against QBE. To the
extent Plaintiff relies on the conclusory assertion that “Sedgwick has a joint venture with QBE,”
(TAC ¶ 149), that reliance is unavailing because such an allegation “lacks the requisite
specificity to satisfy the elements of a joint venture[,]” Jobanputra v. Kim, No. 21-CV-7071,
2024 WL 2055061, at *6 (S.D.N.Y. May 8, 2024); see also id. at *5 (explaining that, to establish
the existence of a joint venture, a party must plead that “(1) two or more parties entered an
agreement to create an enterprise for profit, (2) the agreement evidences the parties’ mutual
intent to be joint venturers, (3) each party contributed property, financing, skill, knowledge, or
effort to the venture, (4) each party had some degree of joint management control over the
venture, and (5) there was a provision for the sharing of both losses and profits”); cf. Selective
Beauty SAS v. Liz Claiborne, Inc., No. 09-CV-9764, 2010 WL 11685041, at *7 (S.D.N.Y. May
27, 2010) (dismissing a claim for breach of fiduciary duty because an allegation was “too
conclusory to support a joint venture,” where the plaintiff merely alleged that “[t]he joint venture
contained provisions for sharing profits and losses”).
28

Defendant appears to move to dismiss the § 1981 retaliation claim, as they make no arguments
whatsoever regarding that claim. (See generally Sedgwick Mem.; QBE Mem.; Neubauer Mem.)
Accordingly, the Motions are denied without prejudice to renewal insofar as Defendants—and
particularly Sedgwick—seek dismissal of Plaintiff’s § 1981 retaliation claim. In light of that
holding, the Court will proceed to assess the viability of Plaintiff’s § 1981 discrimination claim
only.
Section 1981 requires that “[a]ll persons within the jurisdiction of the United States shall
have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.” 42
U.S.C. § 1981(a). That provision thus prohibits racial discrimination “with respect to the
enjoyment of benefits, privileges, terms, and conditions of a contractual relationship, such as
employment[.]” Calvelos v. City of New York, No. 19-CV-6629, 2020 WL 3414886, at *9
(S.D.N.Y. June 22, 2020) (emphasis added) (quoting Patterson v. County of Oneida, 375 F.3d
206, 224–25 (2d Cir. 2004)).
“To state a § 1981 claim, ‘a plaintiff must allege facts in support of the following
elements: (1) the plaintiff is a member of a racial minority; (2) an intent to discriminate on the
basis of race by the defendant; and (3) the discrimination concerned one or more of the activities
enumerated in the statute (i.e., make and enforce contracts, sue and be sued, give evidence,
etc.).’” Ahmad v. S.R., No. 18-CV-3416, 2018 WL 11472415, at *3 (S.D.N.Y. July 16, 2018)
(quoting Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993)).
The Supreme Court has made clear that § 1981 “can be violated only by purposeful
discrimination.” Gen. Bldg. Contractors Ass’n v. Pennsylvania, 458 U.S. 375, 391 (1982).
Further, conclusory allegations of racial discrimination are insufficient to survive a motion to
dismiss. See Burgis v. N.Y.C. Dep’t of Sanitation, 798 F.3d 63, 68–69 (2d Cir. 2015) (requiring

29

plaintiffs to “provide meaningful specifics” of the alleged discrimination to state a claim under
§ 1981); Albert v. Carovano, 851 F.2d 561, 572 (2d Cir. 1988) (holding that the “naked
allegation” that the defendants “selectively enforced the College rules against [the] plaintiffs
because they [were B]lack or Latin” failed to state a claim (alterations adopted) (quotation marks
omitted)).
Notably, the Supreme Court has more recently emphasized that a § 1981 plaintiff has the
burden of showing, at every stage of the proceedings, that the plaintiff’s race was a “but for”
cause of any alleged injury. Comcast Corp. v. Nat’l Assoc. of African American-Owned Media,
589 U.S. 327, 333 (2020) (“[Section] 1981 follows the general rule. [A] plaintiff bears the
burden of showing that race was a but-for cause of its injury, [a]nd . . . the burden itself remains
constant.”); see also id. at 341 (“To prevail, a [§ 1981] plaintiff must initially plead and
ultimately prove that, but for race, it would not have suffered the loss of a legally protected
right.”). It is not sufficient for a plaintiff merely to allege that race was a “motivating factor.”
Id. at 338 (“[N]owhere in its amendments to § 1981 did Congress so much as whisper about
motivating factors.”); id. at 341 (holding that in its pleading a § 1981 plaintiff must allege but-for
causation). That said, “[t]here may be more than one but-for cause of a discriminatory action.”
Kosher Ski Tours Inc. v. Okemo Ltd. Liab. Co., No. 20-CV-9815, 2023 WL 8720273, at *7
(S.D.N.Y. Dec. 18, 2023); see also Banks v. Gen. Motors, LLC, 81 F.4th 242, 275 (2d Cir. 2023)
(noting, in the context of a § 1981 claim, that “the but-for causation test is a sweeping standard
and that often, events have multiple but-for causes”).
Here, Plaintiff asserts, in essence, that Sedgwick blocked or impaired Plaintiff’s contract
with a third party—Delta. (See TAC ¶¶ 11–20.) “[L]iability under § 1981 for interference with
a third-party contract attaches only to persons who actually had the power or authority to prevent

30

the plaintiffs from contracting with the third party.” Ginx, Inc. v. Soho All., 720 F. Supp. 2d 342,
358 (S.D.N.Y. 2010) (citing Harris v. Allstate Ins. Co., 300 F.3d 1183, 1197 (10th Cir. 2002)
(requiring a demonstration “that the party both possessed sufficient authority to significantly
interfere with the individual’s ability to obtain contracts with third parties, and that the party
actually exercised that authority to the individual’s detriment”)), as corrected (Aug. 19, 2010);
see also Benzinger v. NYSARC, Inc. N.Y.C. Chapter, 385 F. Supp. 3d 224, 233 (S.D.N.Y. 2019)
(same); Robledo v. Bond No. 9, 965 F. Supp. 2d 470, 477 (S.D.N.Y. 2013) (explaining that
“[§] 1981 protects against the interference with a third-party contract, but liability only attaches
to persons who actually had the power or authority to prevent the plaintiff from entering into a
contract with the third party”).
Having closely reviewed the TAC, the Court concludes that Plaintiff has complied with
Rule 8 in connection with the allegations relating to the § 1981 claims, and that the TAC states a
plausible § 1981 discrimination claim. As an initial matter, Sedgwick does not dispute that
Plaintiff “is a member of a racial minority.” Ahmad, 2018 WL 11472415, at *3 (setting forth the
factors necessary to state a § 1981 claim). (See also TAC ¶ 16 (alleging that Plaintiff is
“Hispanic”).) Moreover, the TAC “contains detailed allegations of specific conduct and
statements which, if proven at trial, could give rise to an inference of discrimination.” Robledo,
965 F. Supp. 2d at 476. Specifically, on several occasions, a Sedgwick employee allegedly told
Plaintiff that “because of Plaintiff’s race[] (Hispanic), Sedgwick believed Plaintiff’s request for
workers comp leave of absence [sic], wages, and/or for workers comp medical treatment [sic]
were criminal acts of ‘fraud’ and/or ‘insurance fraud[.]’” (SAC ¶ 16.) Plaintiff also avers that a
different Sedgwick employee used a racial slur in front of Plaintiff when referring to Hispanic
people and likewise was of the view that, because of Plaintiff’s race, Plaintiff was “committ[ing]

31

‘fraud’” in connection with Plaintiff’s Workers’ Compensation-related requests. (Id. ¶ 17.)
Given that “[o]penly discriminatory oral statements merit similarly straightforward treatment[,]”
Robledo, 965 F. Supp. 2d at 476 (quoting Soules v. U.S. Dept. of Hous. & Urban Dev., 967 F.2d
817, 824 (2d Cir. 1992)), and accepting Plaintiff’s allegations as true, the Court concludes that
Plaintiff has plausibly alleged “an intent to discriminate on the basis of race,” Ahmad, 2018 WL
11472415, at *3; see Robledo, 965 F. Supp. 2d at 476 (concluding that the plaintiffs had
plausibly alleged discriminatory intent where they had alleged that a defendant “frequently
ordered [a plaintiff] to leave the front sales area of the store and go to the back of the store
because she wanted only white employees greeting customers at the front of the store” (alteration
adopted) (citation omitted)); see also Benzinger, 385 F. Supp. 3d at 229–30, 232 (concluding that
the plaintiff had adequately alleged an intent to discriminate where he asserted that employees of
certain defendants laughed at one another’s use of racial epithets); Annuity, Welfare &
Apprenticeship Skill Improvement & Safety Funds of the Int’l Union of Operating Eng’rs Loc.
15, 15a, 15c & 15d, AFL-CIO v. Tightseal Constr. Inc., No. 17-CV-3670, 2018 WL 3910827, at
*7 (S.D.N.Y. Aug. 14, 2018) (holding that a plaintiff had plausibly alleged an intent to
discriminate where it was asserted that a defendant “terminated [certain] agreements due to racial
animus directed principally at” that plaintiff’s CEO as evidenced by various racist statements
allegedly made by the relevant defendant’s employees); Hicks v. IBM, 44 F. Supp. 2d 593, 598
(S.D.N.Y. 1999) (finding that allegations of derogatory comments regarding African-Americans,
including “send them to school, clean them up[,] and they still belong in the cotton field” and
“I'm tired of [B]lack people taking taxes,” were “sufficient to give rise to an inference of
discriminatory intent” and sustain a § 1981 claim); cf. Dickerson v. State Farm Fire & Cas. Co.,
No. 95-CV-10733, 1996 WL 445076, at *4 (S.D.N.Y. Aug. 1, 1996) (“Evidence of bias may

32

appear in various forms. For example, a plaintiff might identify statements reflecting bias
attributable to the decision-makers responsible for the adverse action, or patterns of conduct that
suggest the influence of race in decision-making.”).
Finally, the Court must determine whether the discrimination concerned Plaintiff’s ability
to make and enforce contracts. See Ahmad, 2018 WL 11472415, at *3. As noted, § 1981 covers
employment relationships. See Calvelos, 2020 WL 3414886, at *9. Plaintiff’s allegations
relating to the § 1981 discrimination claim can be summarized as follows: Delta had a policy of
terminating employees who did not return to work within one year of having a workplace injury
unless they had an approved medical leave. (See TAC ¶ 14.) Knowing this, Sedgwick still
engaged in race-based delays relating to, and denials of, Plaintiff’s Workers’ Compensationrelated requests needed for approved medical leave, as evidenced by the above-mentioned
instances of racial animus. (See id. ¶¶ 16–20.) Thus, because Sedgwick did not do what was
necessary for Plaintiff to obtain approved medical leave, Delta terminated Plaintiff’s
employment approximately one year after Plaintiff suffered a workplace injury. (See id. ¶¶ 13,
18–20.) Accepting these allegations as true and drawing all reasonable inferences in Plaintiff’s
favor—as the Court must at this juncture—Plaintiff has plausibly alleged that Sedgwick was
“aware of Plaintiff’s [employment] with [Delta]” and that Sedgwick had the “authority to
interfere with Plaintiff’s” employment with Delta, Benzinger, 385 F. Supp. 3d at 233, insofar as
it could prevent Plaintiff, on the basis of Plaintiff’s race, from getting approved medical leave,
resulting in the termination of Plaintiff’s employment with Delta. In other words, Plaintiff has
adequately alleged that Sedgwick impaired Plaintiff’s employment relationship with Delta. See
Tightseal Constr. Inc., 2018 WL 3910827, at *7 (declining to dismiss a § 1981 discrimination

33

claim, where a plaintiff adequately alleged that the plaintiff “had contractual rights and that [a
corporate defendant] infringed upon those rights” with discriminatory intent).
To be sure, Sedgwick may well be able to disprove Plaintiff’s claim through discovery.
But Plaintiff has alleged just enough to survive the instant Motions. Accordingly, the Court
denies Defendants’ Motions insofar as they seek dismissal of Plaintiff’s § 1981 discrimination
claim.
4. First Amendment Retaliation Claims
Plaintiff also raises First Amendment retaliation claims. (See TAC ¶¶ 25, 29–53.)
Crucially, “claims under the . . . First Amendment . . . require state action,” such that Defendants
“cannot be sued under [that] provision[] unless they qualify as state actors.” Ahmad, 2018 WL
11472415, at *2 (citing, inter alia, Loce v. Time Warner Entm’t Advance/Newhouse P’ship, 191
F.3d 256, 266 (2d Cir. 1999) (“The First Amendment applies only to state actors.”)). To
constitute state action, there must be an alleged deprivation of a federal right “caused by the
exercise of some right or privilege created by the State or by a rule of conduct imposed by the
state or by a person for whom the State is responsible,” and “the party charged with the
deprivation must be a person who may fairly be said to be a state actor.” Lugar v. Edmonson Oil
Co., 457 U.S. 922, 937 (1982). “Conduct that is formally ‘private’ may become so entwined
with governmental policies or so impregnated with a governmental character” that it can be
regarded as governmental action. Evans v. Newton, 382 U.S. 296, 299 (1966); see also
Hollander v. Copacabana Nightclub, 624 F.3d 30, 34 (2d Cir. 2010) (per curiam) (recognizing
that “actions of nominally private entities are attributable to the state” under certain
circumstances). “Action taken by private entities with the mere approval or acquiescence of the
State is not state action.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 52 (1999). Although

34

there is “no single test to identify state actions and state actors,” Cooper v. U.S. Postal Serv., 577
F.3d 479, 491 (2d Cir. 2009) (citation omitted), three main tests have emerged:
[T]he actions of a nominally private entity are attributable to the state . . . (1) [when]
the entity acts pursuant to the coercive power of the state or is controlled by the
state (“the compulsion test”); (2) when the state provides significant encouragement
to the entity, the entity is a willful participant in joint activity with the state, or the
entity’s functions are entwined with state policies (“the joint action test” or “close
nexus test”); or (3) when the entity has been delegated a public function by the
state, (“the public function test”).
Sybalski v. Indep. Grp. Home Living Program, Inc., 546 F.3d 255, 257 (2d Cir. 2008) (per
curiam) (alterations adopted) (quotation marks omitted); see also Hollander, 624 F.3d at 34
(same); Ahmad, 2018 WL 11472415, at *2 (same). The “ultimate issue” in this analysis is
whether the private entity’s actions are “fairly attributable” to the state. Rendell-Baker v. Kohn,
457 U.S. 830, 838 (1982).
As alluded to above, Plaintiff has alleged for the first time in the TAC that Neubauer is
“an alleged NYC detective/police officer.” (TAC ¶ 37; see also id. ¶ 38 (alleging that Neubauer
identified himself to Plaintiff as an “undercover police officer”; id. ¶ 42 (alleging that Neubauer
introduced himself to Plaintiff as an “NYC detective/cop”); id. ¶ 53 (similar).) The Court
emphasizes at this juncture, however, that, “where a plaintiff blatantly changes his statement of
the facts in order to respond to the defendant’s motion to dismiss and directly contradicts the
facts set forth in his original complaint, a court is authorized to accept the facts described in the
original complaint as true.” Vasquez v. Reilly, No. 15-CV-9528, 2017 WL 946306, at *3
(S.D.N.Y. Mar. 9, 2017) (alteration adopted) (quotation marks omitted) (quoting Colliton v.
Cravath, Swaine & Moore LLP, No. 08-CV-400, 2008 WL 4386764, at *6 (S.D.N.Y. Sept. 24,
2008)); see also Davis II, 2023 WL 6150009, at *11 (“It is well-settled that ‘the court need not
accept as true allegations that conflict with a plaintiff’s prior allegations.’” (quoting Green v.
Niles, No. 11-CV-1349, 2012 WL 987473, at *5 (S.D.N.Y. Mar. 23, 2012))); Liverpool v. City of
35

New York, No. 20-CV-4629, 2023 WL 2746124, at *4 (S.D.N.Y. Mar. 31, 2023) (“[T]he
‘liberality with which courts examine pro se pleadings does not require a court to “accept as true
allegations that conflict with a plaintiff's prior allegations.”’” (italics omitted) (quoting Vaughn v.
Strickland, No. 12-CV-2696, 2013 WL 3481413, at *6 (S.D.N.Y. July 11, 2013))); Pichardo v.
Only What You Need, Inc., No. 20-CV-493, 2020 WL 6323775, at *3 (S.D.N.Y. Oct. 27, 2020)
(“When allegations in the original complaint are inconsistent with allegations made in the
amended complaint, courts are authorized to accept the facts described in the original complaint
as true.” (quotations marks omitted)).
In the FAC and SAC, Plaintiff plainly identifies Neubauer as an investigator employed by
CoventBridge. (See SAC ¶ 2B; FAC ¶ 2B; see also SAC ¶ 281 (alleging that, during the time
period at issue here, Neubauer was an employee of CoventBridge and under that entity’s
“control, oversight, and direction”).) These allegations are consistent with Exhibit 1 to the TAC,
which expressly states that Neubauer was a CoventBridge investigator. (See TAC Ex. 1.) And
notably absent from all prior pleadings—which were each filed long after the events at issue—is
any allegation that Neubauer was a police officer, pretended to be a police officer, or threatened,
intimidated, and assaulted Plaintiff in 2019 or at any other time. (Compare TAC ¶¶ 38, 42, with
SAC (filed on Aug. 18, 2021); FAC (filed on Feb. 6, 2021); Compl. (filed on November 2,
2020).) It simply defies credulity that Plaintiff would wait to raise these allegations in the TAC,
which was filed just shy of three years after the initial Complaint. Thus, the Court will not
consider these newly raised (and conveniently self-serving) allegations, which stand in such stark
contrast to the unequivocal allegations raised in Plaintiff’s prior pleadings. See Rivera v. Royce,
No. 19-CV-10425, 2021 WL 2413396, at *7 (S.D.N.Y. June 11, 2021) (noting that the court
“need not and does not credit [the plaintiff’s] fresh allegations because they contradict[ed]” his

36

prior allegations); Palm Beach Strategic Income, LP v. Stanley P. Salzman, P.C., No. 10-CV261, 2011 WL 1655575, at *5–6 (E.D.N.Y. May 2, 2011) (declining to accept the plaintiff’s new
allegations that conflicted with those in three previous iterations of the plaintiff’s complaint and
granting the defendant’s Rule 12(b)(6) motion to dismiss). 16
With regard to all Defendants other than Neubauer, Plaintiff has failed to plausibly allege
that their conduct constituted state action, because the TAC lacks any allegations whatsoever—
apart from the now-disregarded allegations relating to Neubauer—that they acted pursuant to the
coercive power of the state, that they participated in a joint activity with the state, or that they
were delegated a public function by the state. (See generally TAC.) Indeed, the allegations in
the TAC are clear insofar as they allege that Defendants—acting on their own initiative—sought
to mistreat Plaintiff on the basis of Plaintiff’s race and religious affiliation. (See, e.g., id. ¶¶ 11–
76.) 17
Accordingly, because Plaintiff has failed to plausibly allege any state action, Plaintiff’s
First Amendment retaliation claims are dismissed.

16

In light of this holding, the Court will not address the alleged 2019 altercations with
Neubauer any further in this Opinion.
17

Although Plaintiff asserts that Plaintiff was told Sedgwick would “have its[] NYC cops
do a criminal investigation to prosecute him criminally for fraud[,]” (TAC ¶ 35), the Court notes
that it “may dismiss a claim as factually frivolous if the sufficiently well-pleaded facts are clearly
baseless—that is, if they are fanciful, fantastic or delusional,” Campbell v. Columbia Univ.,
No. 22-CV-10164, 2023 WL 6038024, at *4 (S.D.N.Y. Sept. 15, 2023) (quoting Gallop v.
Cheney, 642 F.3d 364, 368 (2d Cir. 2011)). Given that “crimes are prosecuted by the
government, not by private parties[,]” Williams v. Maney, No. 17-CV-5853, 2017 WL 6729363,
at *1 (S.D.N.Y. Oct. 26, 2017), this is precisely the sort of claim that the Court may dismiss as
fanciful.
37

5. RFRA Claims
Turning to Plaintiff’s claims under RFRA, (see TAC ¶¶ 29–53), those claims plainly fail.
RFRA “imposes restrictions on only the government and not private actors[.]” Parks v.
Montefiore Med. Ctr., No. 23-CV-4945, 2024 WL 917330, at *4 (S.D.N.Y. Mar. 4, 2024) (citing
42 U.S.C. § 2000bb-1); see also Patel, 2024 WL 37094, at *2 n.2 (explaining that RFRA
“prohibits the federal government from substantially burdening a person's exercise of religion
unless the government can demonstrate that application of the burden (1) furthers a compelling
governmental interest; and (2) is the least restrictive means of furthering that interest.”). As
explained above, Plaintiff has failed to plausibly plead that any Defendant is a government actor,
let alone a federal government actor. See supra Section II.B.4. And, crucially, even if Plaintiff
could establish that the complained-of acts were carried about by state- or local-government
surrogates—or by “private parties where the government could also exert its power[,]” see In re
Congregation Birchos Yosef, 535 B.R. 629, 637 n.6 (Bankr. S.D.N.Y. 2015) 18—Plaintiff’s
RFRA claims would still fail because “RFRA no longer applies to state governments,” Kravitz v.
Purcell, 87 F.4th 111, 121 (2d Cir. 2023); see also Shamilov v. City of New York, No. 20-CV10224, 2024 WL 708193, at *3 (S.D.N.Y. Feb. 21, 2024) (“In 1997, the Supreme Court struck
down RFRA as applied to state and local governments.” (ultimately citing City of Boerne v.
Flores, 521 U.S. 507 (1997)); Moorish Holey Temple of Sci. of World Free & Sundry v.
Connecticut, No. 21-CV-1564, 2023 WL 5893242, at *2 (D. Conn. Sept. 11, 2023) (“RFRA
remains operative only as to the federal government.”). Put simply, the TAC is devoid of any
allegations of federal government involvement and, therefore, Plaintiff’s RFRA claims must fail.
18

To be clear, the Second Circuit has held that RFRA applies to suits between private
parties if the federal government also could enforce the statute at issue. Hankins v. Lyght, 441
F.3d 96, 103 (2d Cir. 2006). However, the TAC lacks any allegations suggesting that this could
be the case here. (See generally TAC.)
38

See Patel, 2024 WL 37094, at *2 n.2 (“Because the named defendants in this lawsuit are [the
p]laintiff’s brother and sister-in-law, and there are no allegations of government involvement,
RFRA bears no relevance to this matter.”); see also Azzarmi v. Federal Gov’t, No. 23-CV-3620,
2023 WL 7448180, at *2 (S.D.N.Y. Oct. 12, 2023) (noting—in a separate action—that Plaintiff
asserted RFRA claims against “the Federal Government” and that the court had ordered Plaintiff
“to show cause why, in light of [Plaintiff’s] history of engaging in vexatious litigation, [Plaintiff]
should not be barred from filing any further civil actions in this court IFP without first obtaining
permission from the court to file [a] complaint”).
6. Civil Conspiracy Claims Under § 1983
Next, the Court addresses Plaintiff’s claims of civil conspiracy under § 1983. (See TAC
¶¶ 29–53.) “To prove a [§] 1983 conspiracy, a plaintiff must show: (1) an agreement between
two or more state actors or between a state actor and a private entity; (2) to act in concert to
inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing
damages.” Barkai v. Neuendorf, No. 21-CV-4060, 2024 WL 710315, at *8 (S.D.N.Y. Feb. 21,
2024) (citation omitted); see also Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999)
(same). “Although a plaintiff is not required to list the place and date of defendants’ meetings
and the summary of their conversations when he pleads conspiracy, the pleadings must present
facts tending to show agreement and concerted action.” Dubose v. Jimenez, No. 22-CV-2124,
2023 WL 5237639, at *16 (S.D.N.Y. Aug. 15, 2023) (alteration adopted) (quoting Concepcion v.
City of New York, No. 05-CV-8501, 2008 WL 2020363, at *3 (S.D.N.Y. May 7, 2008)).
“Conclusory allegations of a [Section] 1983 conspiracy are insufficient.” Id. (alteration adopted)
(quoting Pangburn, 200 F.3d at 72).

39

As an initial matter, Plaintiff’s § 1983 conspiracy claims cannot survive Defendants’
Motions because, as set above, Plaintiff has not plausibly alleged the involvement of any state
actor. See supra Section II.B.4. Plaintiff has also failed to plausibly allege conspiratorial
conduct for the simple reason that the allegations touching on such conduct in the TAC are
wholly conclusory. For example, Plaintiff baldly asserts that “Sedgwick CMS engaged in a civil
conspiracy with” Sedgwick SIU, CoventBridge, and Neubauer. (TAC ¶ 37; see also id. ¶ 56
(“From around January 2018 through present, Defendants, all of them, were jointly involved in a
common scheme, a conspiracy, to ensure that Plaintiff was detained on false charges.”).) Such
statements are not enough to plausibly suggest participation in an agreement to violate Plaintiff’s
constitutional rights. See Webb v. Goord, 340 F.3d 105, 110 (2d Cir. 2013) (recognizing that a
plaintiff alleging a conspiracy “must provide some factual basis supporting a meeting of the
minds, such that defendants entered into an agreement, express or tacit, to achieve the unlawful
end” (citation omitted)); Ciambriello v. County of Nassau, 292 F.3d 307, 325 (2d Cir. 2002)
(“[C]omplaints containing only conclusory, vague, or general allegations that the defendants
have engaged in a conspiracy to deprive the plaintiff of his constitutional rights are properly
dismissed; diffuse and expansive allegations are insufficient, unless amplified by specific
instances of misconduct.” (citation omitted)); Walker v. Capra, No. 22-CV-7638, 2024 WL
21938, at *11 (S.D.N.Y. Jan. 2, 2024) (holding that pro se plaintiff failed to state a conspiracy
claim, where he “allege[d] all of the defendants conspired in one way or another with someone
else,” but did not provide “further factual supporting allegations of what actions such defendants
took in furtherance of the conspiracy”); Jackson v. Nassau County, 552 F. Supp. 3d 350, 382–83
(E.D.N.Y. 2021) (holding that the plaintiff failed to make out a claim for conspiracy, where
complaint alleged no overt acts which were reasonably related to promotion of alleged

40

conspiracy, such as contact or coordination between village and county defendants, and
complaint failed to allege facts from which meeting of minds could be inferred); Warren v.
Fischl, 33 F. Supp. 2d 171, 177–78 (E.D.N.Y. 1999) (concluding that a pro se plaintiff’s
allegation of conspiracy was insufficient despite his specific claims of conspiracy to alter tapes
and create illegal search warrants, where there was no basis for the assertion that defendants
actually conspired together to bring about these actions); Hickey-McAllister v. Brit. Airways, 978
F. Supp. 133, 139 (E.D.N.Y. 1997) (“Because plaintiff has alleged no facts at all from which a
meeting of the minds between [the defendants] on a course of action intended to deprive plaintiff
of her constitutional rights can be inferred, her allegations are insufficient to survive a motion for
dismissal.”).
Accordingly, Plaintiff’s § 1983 conspiracy claims are dismissed.
7. False Arrest and Imprisonment, Assault, Battery, Malicious Prosecution, and
Denial of a Fair Trial Claims Under § 1983
Beyond the now-dismissed conspiracy claim, Plaintiff brings numerous other claims
under § 1983 as well. (See TAC ¶¶ 54–76, 116–28.) The Supreme Court has explained that
“[t]he purpose of § 1983 is to deter state actors from using the badge of their authority to deprive
individuals of their federally guaranteed rights and to provide relief to victims if such deterrence
fails.” Wyatt v. Cole, 504 U.S. 158, 161 (1992). “A plaintiff pressing a claim of violation of his
constitutional rights under § 1983 is thus required to show state action.” Tancredi v. Metro. Life
Ins. Co., 316 F.3d 308, 312 (2d Cir. 2003). To constitute state action, there must be an alleged
deprivation of a federal right “caused by the exercise of some right or privilege created by the
State or by a rule of conduct imposed by the state or by a person for whom the State is
responsible,” and “the party charged with the deprivation must be a person who may fairly be
said to be a state actor.” Lugar, 457 U.S.at 937 (emphasis added). Given that the Court has
41

already determined that Plaintiff has failed to plausibly plead any state action in the TAC, see
supra Section II.B.4, Plaintiff’s remaining § 1983 claims are dismissed.
8. New York GBL § 349 Claims
The Court next turns to Plaintiff’s claims under New York GBL § 349. (See TAC
¶¶ 77–108.) “Section 349 [of the GBL] prohibits ‘deceptive acts or practices in the conduct of
any business, trade[,] or commerce[.]’” Wynn v. Topco Assocs., LLC, No. 19-CV-11104, 2021
WL 168541, at *2 (S.D.N.Y. Jan. 19, 2021) (alterations omitted) (quoting N.Y. GBL § 349). To
state a claim under New York GBL § 349, “a plaintiff must allege that a defendant has engaged
in (1) consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff suffered
injury as a result of the allegedly deceptive act or practice.” Id. (quoting Orlander v. Staples,
Inc., 802 F.3d 289, 300 (2d Cir. 2015)); see also Newman v. Bayer Corp., 695 F. Supp. 3d 469,
477 (S.D.N.Y. 2023) (applying the same standard); Twohig v. Shop-Rite Supermarkets, Inc., 519
F. Supp. 3d 154, 160 (S.D.N.Y. 2021) (same). With regard to the first element, a plaintiff must
allege that “the allegedly deceptive conduct has a broad impact on consumers at large.” Singh v.
City of New York, 217 N.E.3d 1, 7 (N.Y. 2023) (quotation marks omitted). “Moreover, [§] 349 is
aimed at modest transactions rather than complex or unique arrangements in which each side was
knowledgeable and received expert representation and advice.” Id. (quotation marks omitted).
Finally, “deceptive acts are defined objectively as acts likely to mislead a reasonable consumer
acting reasonably under the circumstances.” Manrique v. State Farm Mut. Auto. Ins. Co., No.
21-CV-224, 2021 WL 5745717, at *7 (S.D.N.Y. Dec. 2, 2021) (alteration adopted) (quoting
Boule v. Hutton, 328 F.3d 84, 94 (2d Cir. 2003)).
Here, Plaintiff seems to allege that Sedgwick CMS, as well as Dane Street and QBE,
engaged in deceptive acts or practices by using unlicensed or otherwise fake doctors to
“purposely deny or refuse to authorize statutory medical treatment to injured workers, such as
42

Plaintiff, without consulting a licensed medical doctor.” (TAC ¶ 77; see also id. ¶ 80 (alleging
that Sedgwick CMS, Dane Street, and QBE had a “standard and regular business practice[] and
pattern[] in using unqualified and unlicensed ‘doctors’ and ‘experts’ (who are usually just data
entry clerks) to analyze and deny medical treatment”.) However, apart from asserting in a
conclusory manner that this alleged practice was “materially misleading,” Plaintiff fails to
plausibly allege that Sedgwick CMS, Dane Street, or QBE misled Plaintiff in any way. See
Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v. Matthew Bender & Co., Inc.,
171 N.E.3d 1192, 1198 (N.Y. 2021) (“A defendant’s actions are materially misleading when they
are likely to mislead a reasonable consumer acting reasonably under the circumstances.”
(quotation marks omitted)). (See also TAC ¶¶ 77–108.) In essence, Plaintiff’s claims are “naked
assertions devoid of [any] factual enhancement.” Iqbal, 556 U.S. at 678. Thus, Plaintiffs have
not stated “[f]actual allegations” that are “enough to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555. Accordingly, although Plaintiff alleges potentially unethical
and unlawful conduct on the part of Sedgwick CMS, Dane Street, or QBE, Plaintiff fails to
plausibly allege a violation of § 349, so Plaintiff’s claims under that statutory provision are
dismissed. See Himmelstein, 171 N.E.3d at 1197 (“[T]o avoid dismissal, plaintiffs must
adequately plead [all three of the] elements” required to establish a claim under § 349.).
9. Fraud, Fraudulent Inducement, and Fraudulent Misrepresentation Claims
The Court next turns to Plaintiff’s various fraud-based claims. (See TAC ¶¶ 77–108.)
“Under New York law, the five elements of fraud are (1) a material misrepresentation or
omission of fact (2) made by [a] defendant with knowledge of its falsity (3) and intent to
defraud; (4) reasonable reliance on the part of the plaintiff; and (5) resulting damage to the
plaintiff.” Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 13 F.4th 247, 259 (2d Cir.
2021) (quotation marks omitted); see also Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775,
43

784 (2d Cir. 2003) (“To succeed on a theory of fraudulent misrepresentation under New York
law, a plaintiff must show that the defendant made a false representation of a material fact to the
plaintiff and that the plaintiff suffered injury as a result of justifiable reliance upon that fact.”).
With regard to fraudulent inducement claims, “a plaintiff must prove ‘(1) a misrepresentation or
omission of material fact; (2) which the defendant knew to be false; (3) which the defendant
made with the intention of inducing reliance; (4) upon which the plaintiff reasonably relied; and
(5) which caused injury to the plaintiff.” Wild Bunch, SA v. Vendian Ent., LLC, No. 17-CV1383, 2018 WL 1365690, at *3 n.1 (S.D.N.Y. Feb. 26, 2018) (quoting Wynn v. AC Rochester,
273 F.3d 153, 156 (2d Cir. 2001) (per curiam)); accord Lama Holding Co. v. Smith Barney, Inc.,
668 N.E.2d 1370, 1373 (N.Y. 1996). And as the Court previously explained, to adequately plead
fraud, plaintiffs must also meet the particularity requirement in Federal Rule of Civil Procedure
9(b), which “requires that the plaintiff (1) detail the statements (or omissions) that the plaintiff
contends are fraudulent, (2) identify the speaker, (3) state where and when the statements (or
omissions) were made, and (4) explain why the statements (or omissions) are fraudulent.” Fin.
Guar. Ins. Co. v. Putnam Advisory Co., 783 F.3d 395, 403 (2d Cir. 2015); see also Reyes v.
Upfield US Inc., 694 F. Supp. 3d 408, 430 (S.D.N.Y. 2023) (same).
The contours of Plaintiff’s fraud claims are far from clear. However, the thrust of those
claims seems to be that Sedgwick CMS, Dane Street, and QBE (and perhaps other Defendants)
fraudulently misrepresented that they employed licensed and credentialed physicians when, in
fact, they used allegedly unlicensed physicians, such as Panos, and individuals who were not
even doctors to impermissibly deny claimants the benefits to which they were entitled. (See
generally TAC ¶¶ 77–108.) Regardless of the specific theory of Plaintiff’s case, however,
Plaintiff’s fraud claims fail for the simple reason that there are no non-conclusory allegations in

44

the TAC with regard to reliance. (See TAC ¶¶ 101–02 (alleging that Plaintiff “relied upon”
Sedgwick, Dane Street, the Plan, “and/or” QBE’s claims that they would reimburse Plaintiff for
certain medical expenses); see also id. ¶ 107 (“From 2016 through present, Plaintiff justifiably
relied on . . . Dane Street, Sedgwick, [the Plan], Neubauer, Covent[B]ridge, . . . & QBE’s
material misrepresentations alleged above to Plaintiff’s detriment.”).) Indeed, it is difficult to
understand how Plaintiff could have relied on any fraudulent misrepresentations on the part of
these Defendants, given that they were alleged to have been engaged by Delta to handle
Workers’ Compensation matters such that Plaintiff—as a Delta employee—had no choice but to
manage Plaintiff’s claims through those entities. (See id. ¶¶ 11, 13.) In any event, “[t]o satisfy
the reliance element of a common-law fraud claim, a plaintiff must show that her reliance was
‘actual,’ that is, that she actually saw, read, or heard—and then acted on the basis of—the
allegedly fraudulent statements.” Suero v. NFL, No. 22-CV-31, 2022 WL 17985657, at *14
(S.D.N.Y. Dec. 16, 2022) (citing Olson v. Major League Baseball, 29 F.4th 59, 76–77 (2d Cir.
2022)); see also In re Bear Stearns Cos., Inc. Sec., Derivative, & ERISA Litig., 995 F. Supp. 2d
291, 312 (S.D.N.Y. 2014) (“To plead common law fraud, a plaintiff must allege with
particularity that it actually relied upon the supposed misstatements.” (emphasis added)), aff’d
sub nom. SRM Glob. Master Fund Ltd. P’ship v. Bear Stearns Cos. L.L.C., 829 F.3d 173 (2d Cir.
2016). And here, Plaintiff has failed to plausibly plead any such allegation at all, much less with
the requisite degree of particularity. See SRM Glob. Master Fund, 829 F.3d at 178 (holding that
the plaintiff’s fraud claims were properly dismissed because the plaintiff failed to allege that it
acted in reliance on the defendants’ misrepresentations); see also Charles Equip. Energy Sys.,
LLC v. INNIO Waukesha Gas Engines, Inc., 636 F. Supp. 3d 476, 482 (S.D.N.Y. 2022)

45

(dismissing a fraud claim where the plaintiff did “not plead any facts that indicate[d] how it
actually relied on the [allegedly fraudulent] statement whatsoever”).
In sum, Plaintiff’s fraud, fraudulent inducement, and fraudulent misrepresentation claims
are dismissed. 19
10. Medical Malpractice Claims
Turning to Plaintiff’s medical malpractice claim, (see TAC ¶¶ 109–15), “[u]nder New
York law, the requisite elements of proof in a medical malpractice action are (1) a deviation or
departure from accepted practice, and (2) evidence that such departure was a proximate cause of
injury or damage[,]” Melvin v. County of Westchester, No. 14-CV-2995, 2016 WL 1254394, at
*19 (S.D.N.Y. Mar. 29, 2016) (quoting Torres v. City of New York, 154 F. Supp. 2d 814, 819
(S.D.N.Y. 2001)); Gale v. Smith & Nephew, Inc., 989 F. Supp. 2d 243, 252 (S.D.N.Y. 2013)
(“Under New York law, the essential elements of a medical malpractice claim are a departure
from good and accepted medical practice and evidence that such departure was a proximate
cause of the plaintiff's injury.” (alteration adopted) (quotation marks omitted)). “‘Medical
malpractice is . . . a form of negligence. . . ,’ and ‘conduct may be deemed malpractice, rather
than negligence, when it constitutes medical treatment or bears a substantial relationship to the
rendition of medical treatment by a licensed physician.’” Radin v. Tun, No. 12-CV-1393, 2015
WL 4645255, at *17 (E.D.N.Y. Aug. 4, 2015) (alterations adopted) (quotation marks omitted)
(quoting Scott v. Uljanov, 541 N.E.2d 398, 399 (N.Y. 1989)); see also Pearce v. Feinstein, 754
F. Supp. 308, 310 (W.D.N.Y. 1990) (“The distinction between ordinary negligence and

19

Although Plaintiff appears to assert separate claims for aiding and abetting “medical
fraud,” (see TAC ¶¶ 8–10), Plaintiff does nothing more than plead “[t]hreadbare recitals of the
elements of a cause of action,” which, the Supreme Court has instructed, “do not suffice[]” to
plead a plausible claim, Iqbal, 556 U.S. at 678. Thus, those claims—such as they are—are
dismissed as well.
46

malpractice turns on whether the acts or omissions complained of involve a matter of medical
science or art requiring special skills not ordinarily possessed by lay persons or whether the
conduct complained of can instead be assessed on the basis of common everyday experience of
the trier of the facts.” (citation omitted)).
“[I]n order to state a claim for medical malpractice, a plaintiff must specify the injuries he
suffered and allege sufficient facts to demonstrate how his injuries were caused by a deviation
from the standard of care.” Isaac v. City of New York, No. 17-CV-1021, 2018 WL 1322196, at
*7 (S.D.N.Y. Mar. 13, 2018) (citations omitted); see also Koulkina v. City of New York, 559 F.
Supp. 2d 300, 329–30 (S.D.N.Y. 2008) (dismissing a medical malpractice claim because the
“plaintiffs [did] not allege how [the defendant’s] alleged conduct deviated from accepted medical
practice and caused them any harm”).
Here, Plaintiff brings medical malpractice claims against Sedgwick and Dane Street.
(See TAC ¶¶ 109–15.) In New York, an employer “may be vicariously liable for the medical
malpractice” of its employees or agents. I.M. v. United States, 362 F. Supp. 3d 161, 198
(S.D.N.Y. 2019) (collecting cases). However, Plaintiff specifically avers that there was no
“formal doctor-patient relationship with . . . Sedgwick and/or Dane Street’s alleged doctors[.]”
(TAC ¶ 110.) Thus, these claims must fail, as it is black-letter law that “[a] physician’s duty of
care is ordinarily one owed to his or her patient.” Purdy v. Pub. Adm’r of Cty. of Westchester,
526 N.E.2d 4, 8 (N.Y. 1988); see also Polardo v. Adelberg, No. 22-CV-2533, 2023 WL
2664612, at *21 (S.D.N.Y. Mar. 28, 2023) (“Under New York law, a physician-patient
relationship is a prerequisite for a medical malpractice action.” (quoting Koltz v. Bezmen, 822 F.
Supp. 114, 118 (E.D.N.Y. 1993))); Davis v. S. Nassau Cmtys. Hosp., 46 N.E.3d 614, 619 (N.Y.
2015) (explaining that New York courts have declined to impose a broad duty of care extending

47

from physicians past their patients “to members of the . . . community individually” (alteration in
individual) (citation omitted)).
Accordingly, the Court dismisses Plaintiff’s medical malpractice claims.
11. Negligence Claims
Plaintiff also brings negligence claims against all Defendants. (See TAC ¶¶ 129–40.) 20
The elements of a negligence claim under New York law are: “(i) a duty owed to the plaintiff by
the defendant; (ii) breach of that duty; and (iii) injury substantially caused by that breach.”
Lombard v. Booz–Allen & Hamilton, Inc., 280 F.3d 209, 215 (2d Cir. 2002) (citing Merino v.
N.Y.C. Transit Auth., 639 N.Y.S.2d 784 (App. Div. 1996)); see also Baisley v. Slade Indus., Inc.,
No. 22-CV-3791, 2024 WL 3012568, at *7 (S.D.N.Y. June 13, 2024) (“[U]nder New York law,
a plaintiff seeking to establish a traditional negligence claim must demonstrate that (1) the
defendant owed a duty to the plaintiff; (2) the defendant breached that duty; (3) the defendant's
breach caused the plaintiff's injuries; and (4) the plaintiff suffered damages.” (quotation marks
omitted) (citing, inter alia, Pasternack v. Lab’y Corp. of Am. Holdings, 59 N.E.3d 485, 490 (N.Y.
2016)). And given that Plaintiff also brings negligence per se claims, the Court notes that, in
New York, the “violation of a State statute that imposes a specific duty constitutes negligence
per se, or may even create absolute liability.” In re Sept. 11 Prop. Damage & Bus. Loss Litig.,
468 F. Supp. 2d 508, 522 (S.D.N.Y. 2006) (quoting Elliott v. City of New York, 747 N.E.2d 760,
762 (N.Y. 2001)). “[T]o state a claim for negligence per se, a plaintiff must allege the violation
of a New York state statute as a prerequisite.” Cardoso v. Wells Fargo Bank, N.A., No. 21-CV8189, 2022 WL 4368109, at *6 (S.D.N.Y. Sept. 20, 2022).

20

Although Plaintiff frames the negligence claims as against all Defendants, Plaintiff
does not appear to make any allegations against Neubauer.
48

Plaintiff’s allegations appear to focus on Sedgwick’s purported violation of a number of
provisions under New York’s Education Law and Workers’ Compensation Law. (See TAC
¶¶ 130–32.) Specifically, Plaintiff avers that Sedgwick violated N.Y. Educ. Law § 6529, which
governs the power of the board of regents “to confer the degree of doctor of medicine (M.D.),”
and N.Y. Educ. Law § 6530, which simply provides a laundry list of definitions of misconduct.
The Court has no trouble concluding that negligence per se claims based on these provisions
should be dismissed, because § 6529 is plainly irrelevant to this Action, and § 6530 is a mere
definitions section that, moreover, applies on its face to licensees—i.e., those alleged to have
committed professional misconduct, such as physicians themselves. See Cardoso, 2022 WL
4368109, at *6 (explaining that “a plaintiff must allege the violation of a New York state statute”
to state a negligence per se claim).
Plaintiff also alleges that Sedgwick violated several sections of the Workers’
Compensation Law. (See TAC ¶¶ 130–32.) In particular, Plaintiff asserts that Sedgwick
violated N.Y. Workers’ Comp. Law: § 2, which provides a long list of definitions applicable to
the Workers’ Compensation Law; § 3, which sets forth, inter alia, the myriad types of
employment to which the Workers’ Compensation Law applies; § 11, which provides that “[t]he
exclusive remedy available to an employee injured in the course of employment is provided by
the Workers’ Compensation law unless the employer intentionally injured the employee or failed
to secure workers' compensation insurance[,]” Reed v. Paramount Wire Co., No. 04-CV-8059,
2005 WL 1476455, at *2 (S.D.N.Y. June 21, 2005) (emphasis added) (quotation marks and
footnotes omitted); and § 52(5), which provides that the WCB chairperson, “upon finding that an
employer has failed for a period of not less than ten consecutive days to make the provision for
payment of compensation . . . , may impose upon such employer, in addition to all other

49

penalties, fines or assessments provided for in this chapter, a penalty of up to two thousand
dollars for each ten day period of non-compliance or a sum not in excess of two times the cost of
compensation for its payroll for the period of such failure,” see N.Y. Workers’ Comp. Law §§ 2–
3, 11, 52(5). As with the provisions of the Education Law that Plaintiff relies upon, these
Workers’ Compensation Law provisions do not carry the day, as they do not apply to Sedgwick
in this context, or to any other Defendant for that matter, because these provisions apply to
employers, and as noted above, during all relevant times Plaintiff worked for Delta. (See, e.g.,
TAC ¶ 11.) Thus, Plaintiff has failed to plausibly plead the predicate violation of a state statute
that is required to state a negligence per se claim. See Cardoso, 2022 WL 4368109, at *6.
Beyond the foregoing, Plaintiff vaguely asserts that Sedgwick “failed to observe” a litany
of state (and federal) statutory provisions. (TAC ¶ 129.) However, such conclusory allegations
are “insufficient to invoke the negligence per se doctrine.” In re Sept. 11 Prop. Damage & Bus.
Loss Litig., 468 F. Supp. 2d at 522 (dismissing a negligence per se claim where the operative
complaint set forth only a “conclusory allegation” that a defendant “failed to abide by [various]
fire and safety codes”); see also Cardoso, 2022 WL 4368109, at *6 (agreeing that the plaintiffs
failed to state a negligence per se claim where they “vaguely alleg[ed]” only that “the aforesaid
was a violation of, inter alia, HAMP, GBL, RESPA, and FTC statutes” (alteration adopted)
(citation omitted)).
Insofar as Plaintiff contends that Defendants may be held vicariously liable for the
negligence actions of their employees or agents, “vicarious liability attaches only where an
employee’s acts were ‘in furtherance of the employer’s business and within the scope of
employment.’” Pentacon BV v. Vanderhaegen, — F. Supp. 3d —, 2024 WL 1255992, at *15
(S.D.N.Y. Mar. 25, 2024) (emphasis added) (quoting Browne v. Lyft, Inc., 194 N.Y.S.3d 85, 87-

50

88 (App. Div. 2023)), reconsideration denied, 2024 WL 3835334 (S.D.N.Y. Aug. 15, 2024).
However, Plaintiff concedes that “[t]he acts committed by Defendants’ agents’,” including
Neubauer and Panos, among others, were “outside the scope” of employment of Defendants’
employees. (TAC ¶ 139 (emphasis added).) Thus, as alleged, any claim relying on vicarious
liability must fail.
In sum, Plaintiff’s negligence claims are dismissed.
12. Negligent Hiring, Training, Retention, and Supervision Claims
In addition to pure negligence and negligence per se claims, Plaintiff brings negligent
hiring, training, retention, and supervision claims against all Defendants as well. (See TAC
¶¶ 141–54.) 21 These claims focus on varying Defendants’ employment of Neubauer on the one
hand, and allegedly “fraudulent unlicensed doctors,” like Panos, on the other. (See id.)
“In instances where an employer cannot be held vicariously liable for its employee’s torts
because they occur outside the scope of his employment, the employer can still be held liable
under theories of negligent hiring, negligent retention, and negligent supervision.” I.M., 362
F. Supp. 3d at 207 (alteration adopted) (quoting Bouchard v. N.Y. Archdiocese, 719 F. Supp. 2d
255, 260–61 (S.D.N.Y. 2010)).
To state a claim for negligent hiring, training, supervision or retention, “in addition to the
standard elements of negligence, a plaintiff must show: (1) that the tort-feasor and the defendant
were in an employee-employer relationship; (2) that the employer knew or should have known of
the employee’s propensity for the conduct which caused the injury prior to the injury’s
occurrence; and (3) that the tort was committed on the employer’s premises or with the
employer’s chattels.” Ehrens v. Lutheran Church, 385 F.3d 232, 235 (2d Cir. 2004) (citations
21

Given that there are no allegations that Neubauer was an employer, (see generally
TAC), the Court will not construe the TAC as asserting this claim against him.
51

and internal quotation marks omitted); Bouchard, 719 F. Supp. 2d at 260–61 (same). To prevail
on such a claim, a plaintiff must establish, among other things, that “the employer knew or
should have known of the employee’s propensity for the conduct which caused the injury prior to
the injury’s occurrence.” Ehrens, 385 F.3d at 235 (internal quotation marks omitted). “A cause
of action for negligent hiring or retention requires allegations that the employer . . . failed to
investigate a prospective employee notwithstanding knowledge of facts that would lead a
reasonably prudent person to investigate that prospective employee.” Bouchard, 719 F. Supp. 2d
at 261 (internal quotation marks omitted).
With regard to Neubauer, the TAC contains nothing more than the wholly conclusory
allegation that a combination of Defendant “had actual or constructive knowledge of . . .
Neubauer’s propensity for the sort of physically abuse behavior [that] caused Plaintiff’s physical
bodily injuries.” (TAC ¶ 142.) Such allegations are simply not enough to survive a motion to
dismiss. See Grimes v. Fremont Gen. Corp., 933 F. Supp. 2d 584, 609 (S.D.N.Y. 2013)
(dismissing a claim for negligent hiring, training, retention, and supervision where the plaintiff’s
allegations as to the defendants “knowledge of their respective employees’ propensity for
fraudulent conduct are wholly conclusory”); see also Papelino v. Albany Coll. of Pharmacy of
Union Univ., 633 F.3d 81, 94 (2d Cir. 2011) (“Under New York law, a plaintiff asserting a claim
for negligent supervision must,” allege that, inter alia, “the employer knew or should have known
of the employee's propensity for the tortious conduct” (emphasis added)).
As to the “fraudulent unlicensed doctors,” Plaintiff only alleges that Defendants have had
“constructive knowledge” that Panos committed “medical fraud” since 2013, and, thus, that he
had “a propensity to engage in . . . medical fraud.” (TAC ¶¶ 150–52.) As an initial matter, then,
Plaintiff’s claims must fail to the extent that they rely on the negligent retention of anyone other

52

than Panos. See Papelino, 633 F.3d at 94. Turning to Panos, Plaintiff’s own exhibits belie the
notion that Defendants had “knowledge of facts that would lead a reasonably prudent person to
investigate that prospective employee,” Bouchard, 719 F. Supp. 2d at 261, because, during the
relevant time period, Panos was allegedly “posing as another orthopedic surgeon to review
medical and workers’ compensation claims,” (TAC 58; see also id. at 54 (noting that Panos had
used an “assumed medical alter ego” during the relevant time period).) Thus, Plaintiff has not
plausibly alleged that Defendants “knew or should have known of [Panos’s] propensity for the
conduct which caused [Plaintiff’s] injury prior to the injury’s occurrence[.]” Ehrens, 385 F.3d at
235 (quotation marks omitted).
Accordingly, Plaintiff’s claims for negligent hiring, training, retention, and supervision
are dismissed.
13. Prima Facie Tort Claims
The Court next turns to Plaintiff’s prima facie tort claims. (See TAC ¶¶ 155–69.) At the
outset, the Court emphasizes that “[p]rima facie tort is a disfavored claim under New York law.”
Bottone v. Roche, No. 22-CV-10349, 2024 WL 869552, at *6 (S.D.N.Y. Feb. 28, 2024) (citation
omitted). To survive a motion to dismiss a prima facie tort claim, a plaintiff must allege: (1) the
defendant’s intentional infliction of harm; (2) special damages resulting from the defendant’s
actions; (3) a lack of “excuse or justification”; and (4) that the defendant’s act or acts would
otherwise be lawful. NE Brands LLC v. Seattle Pac. Indus., Inc., No. 19-CV-7420, 2020 WL
4287989, at *2 (S.D.N.Y. July 27, 2020) (quoting U.S. for Use and Benefit of Evergreen Pipeline
Constr. Co., Inc. v. Merritt Meridian Constr. Corp., 95 F.3d 153, 161 (2d Cir. 1996)). “The first
element requires disinterested malevolence, which means that the plaintiff cannot recover unless
the defendant’s conduct was not only harmful, but done with the sole intent to harm.” Moore v.
United States, No. 18-CV-3679, 2020 WL 2765833, at *8 (S.D.N.Y. May 27, 2020) (emphases
53

added) (quotation marks omitted) (quoting Hall v. City of White Plains, 185 F. Supp. 2d 293,
304–05 (S.D.N.Y. 2002)); see also Pandian v. N.Y. Health & Hosps. Corp., 863 N.Y.S.2d 668,
669–70 (App. Div. 2008) (dismissing the plaintiff’s prima facie tort claim where the plaintiff
failed to allege that malevolence was the defendants’ sole motivation); Curiano v. Suozzi, 480
N.Y.S.2d 466, 469 (App. Div. 1984) (explaining that the “sole” motivation for the defendant’s
actions must be one of malevolence). As to the second element, “[s]pecial damages” refers to an
injury made up of a “specific and measurable loss.” Freihofer v. Hearst Corp., 65 N.Y.2d 135,
143 (1985).
Plaintiff’s prima facie tort claim fails at the first element. In the TAC, Plaintiff asserts,
without more, that “Defendants’ sole motivation in inflicting harm and injuring Plaintiff was
disinterested malevolence.” (TAC ¶ 169.) As an initial matter, this assertion is belied somewhat
by Plaintiff’s allegation that “Sedgwick and Dane Street’s whole business model is based on junk
science and intentional medical fraud,” suggesting that those entities, at least, had a broad and
non-personal financial incentive for their alleged behavior. (Id. ¶ 97.) See also Marcella v. ARP
Films, Inc., 778 F.2d 112, 119 (2d Cir. 1985) (“When there are other motives, such as profit,
self-interest, or business advantage, there is no recovery under the doctrine of prima facie tort.”
(italics omitted)). Moreover, Plaintiff’s allegation as to disinterested malevolence is nothing
more than a “conclusory recital” of the intentional-infliction-of-harm element that, standing
alone, “does not suffice to plead” a prima facie tort claim. Bottone, 2024 WL 869552, at *6
(citing Iqbal, 556 U.S. at 678) (dismissing a prima facie tort claim where the plaintiff alleged
that the defendants “engaged in an extortion effort . . . undertaken with the sole motive to injure”
the plaintiff (citation omitted)); see also Petrone v. Turner Publ’g Co. LLC, No. 22-CV-2698,
2023 WL 7302447, at *2 (S.D.N.Y. Nov. 6, 2023) (explaining that “disinterested malevolence”

54

is “a malicious [motive] unmixed with any other and exclusively directed to injury and damage
of another” (emphasis added)); Cambridge Cap. LLC v. Ruby Has LLC, 565 F. Supp. 3d 420,
477 (S.D.N.Y. 2021) (concluding that the defendant failed to state a prima facie tort
counterclaim where it only alleged “in conclusory terms that [the plaintiff] acted ‘maliciously’
and ‘out of spite and revenge,’” but “allege[d] no facts to support the claim that [the plaintiff]
acted with ‘disinterested malice’” (citation omitted)).
Accordingly, Plaintiff’s prima facie tort claim is dismissed.
14. NIED Claims
The Court turns next to Plaintiff’s NIED claims. (See TAC ¶¶ 170–73.) “To plead [an
NIED] claim under New York law, a plaintiff must allege (1) a breach of duty owed to the
plaintiff; (2) emotional harm; (3) a direct causal connection between the breach and the
emotional harm; and (4) circumstances providing some guarantee of genuineness of the harm.”
Francis v. Kings Park Manor, Inc., 992 F.3d 67, 81 (2d Cir. 2021) (en banc) (collecting cases).
Importantly, however, “deliberate or intentional actions do not create a claim for negligent
infliction of emotional distress.” Semencic v. County of Nassau, No. 18-CV-5244, 2020 WL
435294, at *10 (E.D.N.Y. Jan. 28, 2020).
Here, Plaintiff bases these NIED claims on Defendants’ alleged “fraud and/or medical
fraud” and “conspiracy to violate Plaintiff[’]s constitutional rights,” as well as Neubauer’s
alleged “brutal assault/battery.” (TAC ¶ 172.) However, where alleged actions are “intentional
and deliberate and . . . in their nature offensive, they are outside the ambit of actionable
negligence.” Chai v. N.Y. Univ., No. 23-CV-9192, 2024 WL 4042468, at *11 (S.D.N.Y. Sept. 4,
2024) (quoting Chau v. Donovan, 357 F. Supp. 3d 276, 290 (S.D.N.Y. 2019)); see also
Greenaway v. County of Nassau, 97 F. Supp. 3d 225, 239 (E.D.N.Y. 2015) (“[I]nsofar as [the
p]laintiffs have made claims of negligence, including negligent infliction of emotional distress,
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against the [defendant-]police officers for their confinement and tasing of [one plaintiff], those
claims must fail, as [they] have alleged intentional acts . . . .”). Since one thing the TAC does
make clear is that Defendants’ alleged actions were intentional, Plaintiff’s NIED cannot survive
Defendants’ Motions. Bah v. City of New York, No. 13-CV-6690, 2014 WL 1760063, at *13
(S.D.N.Y. May 1, 2014) (“[W]hen the conduct alleged, if true, may only give rise to liability for
an intentional act, a claim of negligence may be dismissed.”); see also Smith v. City of New York,
No. 14-CV-4982, 2015 WL 4008642, at *2 (E.D.N.Y. June 30, 2015) (dismissing NIED claims
because they were “on the intentional act of alleged assault” because “assault cannot sound in
negligence”).
Accordingly, Plaintiff’s NIED claims are dismissed.
15. IIED Claims
In addition to NIED claims, Plaintiff has also raised IIED claims based on alleged
conduct that took place in 2022. (See TAC ¶¶ 174–78.) “The state-law tort of [IIED] has four
elements: (1) extreme and outrageous conduct, (2) intent to cause severe emotional distress, (3) a
causal connection between the conduct and the injury, and (4) severe emotional distress.”
Ackridge v. Aramark Corr. Food Servs., No. 16-CV-6301, 2018 WL 1626175, at *23 (S.D.N.Y.
Mar. 30, 2018) (quoting Bender v. City of New York, 78 F.3d 787, 790 (2d Cir. 1996)); see also
Panchishak v. County of Rockland, No. 20-CV-10095, 2021 WL 4429840, at *8 (S.D.N.Y. Sept.
27, 2021) (same). “New York courts have imposed a very high threshold for [IIED] claims,
requiring that the conduct must be so outrageous and extreme as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community.” Seward v. Antonini, No. 20-CV-9251, 2023 WL 6387180, at *33 (S.D.N.Y. Sept.
29, 2023) (quoting Druschke v. Banana Republic, Inc., 359 F. Supp. 2d 308, 314 (S.D.N.Y.
2005)); see also Chanko v. Am. Broad Cos., 49 N.E.3d 1171, 1178 (N.Y. 2016) (similar).
56

Alleging sufficiently “outrageous” conduct is a very high bar. See Nungesser v. Columbia Univ.,
169 F. Supp. 3d 353, 375 (S.D.N.Y. 2016) (“[E]ven a false charge of sexual harassment does not
rise to the level of outrage required under New York law.” (citation omitted)); see also Turley v.
ISG Lackawanna, Inc., 774 F.3d 140, 158 (2d Cir. 2014) (explaining that IIED “remains a highly
disfavored tort under New York law” and “is to be invoked only as a last resort” (quotation
marks omitted)).
In connection with the IIED claims in the TAC, Plaintiff asserts that unspecified
“Defendants” engaged in extreme and outrageous conduct by “committing fraud and/or medical
fraud to deny Plaintiff statutory worker comp [sic] medical treatment” and conspiring “to violate
Plaintiff[’]s constitutional rights . . . through brutal assault/battery” and other vague means.
(TAC ¶ 175.) With respect to the conspiracy to violate Plaintiff’s constitutional rights, the TAC
is entirely devoid of any non-conclusory allegations suggesting that Plaintiff was subject to
“brutal assault/battery[ or] police brutality,” or that Plaintiff was subject to false arrest,
imprisonment, or malicious prosecution in 2022. (See generally TAC; see also id. ¶¶ 4, 45
(noting that Plaintiff was never charged, indicted, prosecuted, or convicted in connection with
the allegations against Plaintiff raised in the TAC); id. ¶ 62 (asserting in a conclusory—and selfcontradictory—manner that “[i]n November 2022, Defendants initiated a criminal arrest,
imprisonment, and prosecution against Plaintiff” without providing any meaningful factual
support).) In short, on this record, Plaintiff has not plausibly pled any extreme and outrageous
conduct in 2022 arising from a conspiracy to violate Plaintiff’s constitutional rights. See Seward,
2023 WL 6387180, at *33 (describing the “very high threshold” courts in New York require for
IIED claims); see also Semencic, 2020 WL 435294, at *9 (holding that the plaintiff failed to state
an IIED claim because he did not plead extreme and outrageous conduct even where he alleged

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that the defendants gave false information to the police leading to his arrest and prosecution);
Palmer v. City of New York, 564 F. Supp. 3d 221, 239 (E.D.N.Y. 2001) (finding an IIED claim
insufficiently pled even though “the defendant police officers came to [the] plaintiffs’ home [to
evict the plaintiffs], were shown a copy of the state court’s [order staying the eviction] and
bankruptcy court filings, ignored [the] plaintiffs’ pleas to stay in their home, arrested [the
plaintiff] in front of the neighbors, and ‘coerced’ [one plaintiff] into telling [the other plaintiff] to
leave the home”).
With respect to the allegations relating to the “fraudulent” denial of certain Workers’
Compensation benefits, the Court concludes that Plaintiff has failed to plausibly allege that
Defendants’ conduct was sufficiently outrageous and extreme. “The element of outrageous
conduct is ‘rigorous, and difficult to satisfy,’ and its purpose is to filter out trivial complaints and
assure that the claim of severe emotional distress is genuine.” In re Sears Holdings Corp., No.
20-CV-3712, 2021 WL 1192112 (S.D.N.Y. Mar. 30, 2021) (quoting Medcalf v. Walsh, 938 F.
Supp. 2d 478, 488 (S.D.N.Y. 2013)); see also Howell v. N.Y. Post Co., 612 N.E.2d 699, 702
(N.Y. 1993) (similar). As it relates to Plaintiff’s claims, the decision of the New York Court of
Appeals in Burlew v. American Mutual Insurance Co., 472 N.E.2d 682 (N.Y. 1984) is
instructive. There, the plaintiff—who was receiving Workers’ Compensation benefits through
the defendant, which was her employer’s insurance carrier—alleged she was told during an
interview held in advance of an authorization for a requested surgery, that she was “crazy if [she
thought the defendant was] going to support [her] for the rest of [her] life.” Burlew, 472 N.E.2d
at 415. The plaintiff also asserted that the defendant had sought to undermine her Workers’
Compensation claims by “procur[ing] an affidavit . . . that purported to give an expert opinion
that [the] plaintiff’s condition was due to a pre-existing injury.” Id. In assessing the plaintiff’s

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IIED claim, the court held that “[n]either the . . . statement that [the] plaintiff could not expect to
be supported by the insurer forever[,] nor the carrier’s attempt to disprove [the] plaintiff’s claim
was so extreme and outrageous as to exceed all bounds of decency or to be utterly intolerable in
civilized society.” Id. at 417–18. So it is here. As alleged, Plaintiff’s assertions relating to any
fraudulent attempt to deny Plaintiff Workers’ Compensation benefits simply do not amount to
cognizably extreme and outrageous conduct. See Reyes v. Fairfield Props., 661 F. Supp. 2d 249,
270 (E.D.N.Y. 2009) (“Even construing the facts most favorably to [the] plaintiffs, based upon
[the] defendants’ alleged conduct in failing to provide the requested [housing] accommodations
and bringing retaliatory eviction proceedings, the [c]ourt concludes that the IIED claim must be
dismissed based upon the current complaint for failure to allege any specific conduct so
outrageous in character and so extreme in degree to go beyond all possible bounds of decency.”);
Luethke v. Seagram Co., No. 00-CV-7946, 2000 WL 1880324, at *2 (S.D.N.Y. Dec. 28, 2000)
(“[D]issemination of lies . . . do[es] not, as a matter of law, constitute the ‘extreme and
outrageous conduct’ required to state [an IIED claim] under New York law.” (quotation marks
omitted)).
In sum, Plaintiff’s IIED claims are dismissed.
16. Claims Under §§ 1985(2)–(3) and 1986
Plaintiff also brings claims under 42 U.S.C. §§ 1985(2)–(3) and 1986. (See TAC ¶¶
180–89.) “Section 1985(2) ‘renders actionable (1) a conspiracy, (2) for the purpose of impeding,
hindering, obstructing, or defeating, in any manner, (3) the due course of justice in any State or
Territory, (4) with intent to deny to any citizen the equal protection of the laws, or to injure him
or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class
of persons, to the equal protection of the laws.’” Thomas v. DeCastro, No. 14-CV-6409, 2018
WL 1322207, at *12 (S.D.N.Y. Mar. 13, 2018) (alteration adopted) (quoting Rodriguez v. City of
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New York, No. 05-CV-10682, 2008 WL 4410089, at *15 (S.D.N.Y. Sept. 25, 2008)). And to
state a claim under § 1985(3), “a plaintiff must allege: ‘(1) a conspiracy; (2) for the purpose of
depriving, either directly or indirectly, any person or class of persons of equal protection of the
laws; (3) an act in furtherance of the conspiracy; (4) whereby a person is deprived of any right of
a citizen of the United States.” Ahmad v. White Plains City Sch. Dist., No. 18-CV-3416, 2020
WL 5720753, at *12 (S.D.N.Y. Sept. 24, 2020) (quoting Brown v. City of Oneonta, 221 F.3d
329, 341 (2d Cir. 1999)). Both provisions require “some factual basis supporting a meeting of
the minds, such that the defendants entered into an agreement, express or tacit, to achieve the
unlawful end.” Thomas, 2018 WL 1322207, at *12 (alteration adopted) (quoting Webb, 340 F.3d
at 110). Importantly, “[c]laims of conspiracy that are vague and provide no basis in fact must be
dismissed.” Id. (quoting Germain v. M & T Bank Corp., 111 F. Supp. 3d 506, 540 (S.D.N.Y.
2015)).
As with Plaintiff’s conspiracy claims under § 1983, Plaintiff’s claims under §§ 1985(2)–
(3) and 1986 fail because the TAC is devoid of any non-conclusory allegations of conspiracy.
(See TAC ¶ 180 (asserting that Defendants and others “continuously conspired” with one another
from “2016 through early 2019”); id. ¶ 185 (alleging that Defendants and others “continuously
[met] with and conspired with” one another from 2016 to the present); see also id. ¶ 179
(asserting that various Defendants were “co-conspirators”).) These allegations are plainly
insufficient to plausibly allege a conspiracy. See Ahmad, 2018 WL 11472415, at *4 (dismissing
§ 1985(3) claims where the operative pleading “provide[d] only conclusory allegations that [the
defendants] conspired with each other and other students, without providing any factual detail
regarding who agreed and what they agreed to do” (emphases in original)); see also Ciambriello,
292 F.3d at 325 (“[C]omplaints containing only conclusory, vague, or general allegations that the

60

defendants have engaged in a conspiracy to deprive the plaintiff of his constitutional rights are
properly dismissed; diffuse and expansive allegations are insufficient, unless amplified by
specific instances of misconduct.” (citation omitted)); Williams v. Long Beach Mortg. Co., No.
15-CV-5952, 2016 WL 5720810, at *7 (S.D.N.Y. Sept. 30, 2016) (“Claims of conspiracy that are
vague and provide no basis in fact must be dismissed.” (alteration adopted) (citation omitted)).
Accordingly, Plaintiff’s claims under §§ 1985(2)–(3) and 1986 are dismissed.
17. ERISA Claims
The Court next turns to Plaintiff’s ERISA Claims against Sedgwick and the Plan. (See
TAC ¶¶ 190–98.)
Crediting the allegation—ostensibly drawn from a court decision from the District of
Minnesota—that Sedgwick was a plan administrator and therefore subject to liability under
ERISA, (see id. ¶ 190), the ERISA claims against Sedgwick still fail because Plaintiff has raised
no allegation even remotely suggesting that Plaintiff exhausted available administrative
remedies, (see generally id.). “ERISA requires both that employee benefit plans have reasonable
claims procedures in place, and that plan participants avail themselves of these procedures before
turning to litigation.” Eastman Kodak Co. v. STWB, Inc., 452 F.3d 215, 219 (2d Cir. 2006)
(emphasis added). The administrative exhaustion “requirement was intended to help reduce the
number of frivolous lawsuits under ERISA; to promote the consistent treatment of claims for
benefits; to provide a non[-]adversarial method of claims settlement; and to minimize the costs of
claims settlement for all concerned.” Kennedy v. Empire Blue Cross & Blue Shield, 989 F.2d
588, 594 (2d Cir. 1993). Given these important purposes, “the federal courts—including [the
Second] Circuit—have recognized a firmly established federal policy favoring exhaustion of
administrative remedies in ERISA cases.” Paese v. Hartford Life & Accident Ins. Co., 449 F.3d
435, 443 (2d Cir. 2006). Under that policy, a plaintiff must pursue “those administrative
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[processes] provided for in the relevant plan or policy.” Kennedy, 989 F.2d at 594. While the
failure to exhaust administrative remedies is an affirmative defense, see Paese, 449 F.3d at 446,
courts have nevertheless dismissed claims where plaintiffs fail to plead, or plead only in
conclusory fashion, that they have exhausted their administrative remedies, see Cheeks v.
Montefiore Med. Ctr., No. 23-CV-2170, 2023 WL 8235755, at *2 (S.D.N.Y. Nov. 28, 2023) (“If
a plaintiff fails to allege in her complaint that she exhausted the applicable administrative
remedies, her claims under . . . ERISA are subject to dismissal on a Rule 12(b)(6) motion.”); see
also Neurological Surgery, P.C. v. Aetna Health Inc., 511 F. Supp. 3d 267, 296 (E.D.N.Y. 2021)
(dismissing claims under ERISA for failure to allege exhaustion and collecting cases); Peppiatt v
Aetna Life Ins. Co., No 17-CV-2444, 2017 WL 6034641, at *5 (E.D.N.Y Dec. 4, 2017)
(“[C]ourts routinely dismiss ERISA claims . . . on a [Rule] 12(b)(6) motion to dismiss where the
plaintiff fails to plausibly allege exhaustion of remedies.” (collecting cases)).
In sum, the ERISA claims are dismissed.
18. Breach of Fiduciary Duty Claim
Plaintiff also brings a claim against Sedgwick for breach of fiduciary duty. (See TAC
¶¶ 199–203.) “Under New York Law, in order to succeed on a cause of action for breach of a
fiduciary duty, [a plaintiff] must allege ‘(1) the existence of a fiduciary duty, (2) breach of that
duty by the defendant, and (3) damages.’” Kamdem-Ouaffo v. Balchem Corp., No. 17-CV-2810,
2018 WL 4386092, at *18 (S.D.N.Y. Sept. 14, 2018) (quoting Barton v. Smartstream Techs.,
Inc., No. 16-CV-1718, 2016 WL 2742426, at *7 (S.D.N.Y. May 9, 2016)).
“A fiduciary relationship arises only when one person is under a duty to act for or to give
advice for the benefit of another upon matters within the scope of the relation.” KamdemOuaffo, 2018 WL 4386092, at *18 (alteration adopted) (citation omitted); see also McKenzieMorris v. V.P. Recs. Retail Outlet, Inc., No. 22-CV-1138, 2022 WL 18027555, at *10 (S.D.N.Y.
62

Dec. 30, 2022) (“A fiduciary relationship arises when one has reposed trust or confidence in the
integrity or fidelity of another who thereby gains a resulting superiority of influence over the
first, or when one assumes control and responsibility over another.” (quoting Faulkner v. Arista
Recs., LLC, 602 F. Supp. 2d 470, 482 (S.D.N.Y. 2009))). Importantly, “to plausibly allege a
fiduciary duty, a plaintiff must state facts that—taken together—adequately suggest that the
parties engaged in a long enduring relationship [that led to] a special relationship of trust and
confidence that existed independent of the contractual duties.” McKenzie-Morris, 2022 WL
18027555, at *10 (emphasis in original) (quotation marks omitted). “At the heart of the
fiduciary relationship lies reliance, and de facto control and dominance.” Shamrock Power
Sales, LLC v. Scherer, No. 12-CV-8959, 2015 WL 5730339, at *20 (S.D.N.Y. Sept. 30, 2015)
(citation omitted).
Here, Plaintiff’s breach-of-fiduciary-duty claim fails at the first step. Plaintiff asserts that
Sedgwick—and specifically Sedgwick CMS—“had a fiduciary relationship” with Plaintiff
because it “employed doctors/surgeons to provide Plaintiff . . . with medical treatment/services.”
(TAC ¶ 199.) However, that assertion, standing alone, does not plausibly allege that Sedgwick
was “under a duty to act for or to give advice for the benefit of” Plaintiff, Kamdem-Ouaffo, 2018
WL 4386092, at *18, that Plaintiff had “reposed trust or confidence in the integrity or fidelity of
[Sedgwick such that it] gain[ed] a resulting superiority of influence over [Plaintiff,]” McKenzieMorris, 2022 WL 18027555, at *10, or that Sedgwick had “de facto control and dominance”
over Plaintiff, Shamrock Power Sales, 2015 WL 5730339, at *20. Indeed, as alleged, any duty
on Sedgwick’s part would seem to have run to Delta—i.e., the party with whom it had contracted
to provide claims management services. (See TAC ¶ 11.) At bottom, Plaintiff’s claim against
Sedgwick for breach of fiduciary duty relies upon the conclusory assertion that Sedgwick and

63

Plaintiff had a fiduciary relationship, and that—without more—is not enough to survive a motion
to dismiss. See Clifford v. Janklow, No. 22-CV-1259, 2023 WL 2711353, at *6 (S.D.N.Y. Mar.
30, 2023) (dismissing a claim for breach of fiduciary duty where the plaintiffs had “vaguely”
alleged that “a fiduciary relationship existed” between them and the defendant, and that one
plaintiff “reposed trust and confidence” in the defendant, because “conclusory allegations are
insufficient to plausibly allege a claim”); PetEdge, Inc. v. Garg, 234 F. Supp. 3d 477, 498
(S.D.N.Y. 2017) (concluding that the allegation that “the relationship between [the parties] was
one of trust and confidence as [the defendant] was in a superior position, possessed special
knowledge, [and] was in a position to exercise influence over [the plaintiff]” constituted “nothing
more than bare recitations of the legal elements of a fiduciary duty”); Faulkner, 602 F. Supp. 2d
at 482 (“[C]onclusory allegations that [parties] shared a ‘long and enduring relationship of trust
and confidence’ are insufficient to plead a fiduciary relationship and survive a motion to
dismiss.” (alteration omitted) (quotation marks and citation omitted)); Boley v. Pineloch Assocs,
Ltd., 700 F. Supp. 673, 681 (S.D.N.Y. 1988) (holding that the allegation that the “defendants
entered into a fiduciary relationship of trust and confidence with plaintiffs” was “a conclusory
allegation” that “does not satisfy Rule 8”).
In sum, Plaintiff’s claim for breach of fiduciary duty against Sedgwick is dismissed.
19. Breach of Physician-Patient Confidentiality Claims
Finally, the Court addresses Plaintiff’s breach of physician-patient confidentiality claims.
(See TAC ¶¶ 204–08.) The Court concludes that these claims must be dismissed because
Plaintiff abandoned them. Specifically, Plaintiff failed to respond to Sedgwick’s arguments as to
this claim, (see Sedgwick Mem. 30–31), nor does Plaintiff raise any arguments at all with respect
to these claims in the extraordinarily lengthy Opposition, (see generally Pl’s Opp’n). See
Romain v. State Farm Fire & Cas. Co., 639 F. Supp. 3d 416, 421 n.3 (E.D.N.Y. 2022) (holding
64

that “[p]laintiffs appear to have abandoned their claim . . . as they do not address this claim in
their opposition to [d]efendant’s [d]ismissal [m]otion”) Randall v. Dish Net., LLC, No. 17-CV5428, 2018 WL 3235543, at *5 (E.D.N.Y. July 2, 2018) (granting defendant’s motion to dismiss
because “the [p]laintiff’s failure to address [certain] claims in his opposition papers to [the]
motion [to dismiss],” showed that they were “abandoned” and collecting cases); see also Romeo
& Juliette Laser Hair Removal, Inc. v. Assara I LLC, No. 08-CV-442, 2014 WL 4723299, at *7
(S.D.N.Y. Sept. 23, 2014) (“At the motion to dismiss stage . . . , a plaintiff abandons a claim by
failing to address the defendant’s arguments in support of dismissing that claim.”); Youmans v.
Schiro, No. 12-CV-3690, 2013 WL 6284422, at *5 (S.D.N.Y. Dec. 3, 2013) (“A plaintiff’s
failure to respond to contentions raised in a motion to dismiss claims constitute[s] an
abandonment of those claims.”); Robinson v. Fischer, No. 09-CV-8882, 2010 WL 5376204, at
*10 (S.D.N.Y. Dec. 29, 2010) (report and recommendation) (“Federal courts have the discretion
to deem a claim abandoned when a defendant moves to dismiss that claim and the plaintiff fails
to address in their opposition papers defendants’ arguments for dismissing such a claim.”)
(collecting cases). Indeed, “‘[i]n the Second Circuit, a plaintiff’s failure to respond to
contentions raised in a motion to dismiss constitute[s] an abandonment of those claims’ and
necessitates their dismissal.” Maroney v. Woodstream Corp., 695 F. Supp. 3d 448, 468
(S.D.N.Y. 2023) (emphasis added) (quoting Gordon v. Target Corp., No. 20-CV-9589, 2022 WL
836773, at *17 (S.D.N.Y. Mar. 18, 2022)). Accordingly, Plaintiff’s breach of physician-patient
confidentiality claims are dismissed.

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III. Conclusion
For the foregoing reasons, the Motions are granted in part and denied in part. 22 To
summarize, the Court dismisses all of Plaintiff’s claims with the exception of the § 1981
discrimination and retaliation claims against Sedgwick. And as noted above, the Court’s denial
of the Sedgwick Motion as it relates to Plaintiff’s § 1981 retaliation claim is without prejudice to
renewal. Beyond that, the claims the Court has dismissed are dismissed with prejudice, as
Plaintiff is not entitled to yet another “go-around” to see which of Plaintiff’s ever-evolving
claims stick. See Denny v. Barber, 576 F.2d 465, 471 (2d Cir. 1978) (holding that the plaintiff
was not entitled to “a third go-around”); see also Bryant v. Capra, No. 18-CV-10198, 2021 WL
323263, at *5 (S.D.N.Y. Feb. 1, 2021) (dismissing the plaintiff’s claims with prejudice where it
was “the second time adjudicating his claims, and [the p]laintiff ha[d] not fixed the problems
identified by the Court in” a prior opinion); Melvin v. County of Westchester, No. 14-CV-2995,
2016 WL 1254394, at *24 n.19 (S.D.N.Y. Mar. 29, 2016) (granting a motion to dismiss with
prejudice where “[the p]laintiff ha[d] already had two bites at the apple, and they ha[d] proven
fruitless” (alteration adopted) (citation omitted)); Bui v. Indus. Enters. of Am., Inc., 594 F. Supp.
2d 364, 373 (S.D.N.Y. 2009) (dismissing an amended complaint with prejudice where the
plaintiff failed to cure the deficiencies identified in his complaint despite “being given ample

22

Because the claims against unserved Defendants the Plan and Dane Street suffer from
the same deficiencies as the claims against the served Defendants, the claims against the Plan
and Dane Street are dismissed as well. See Garcia v. City of New York, No. 15-CV-7470, 2017
WL 1169640, at *1 n.1 (S.D.N.Y. Mar. 28, 2017) (“Although [certain defendants] have yet to be
served, because Plaintiffs’ claims against them are the same as the claims against [other, served
defendants] and suffer from the same deficiencies, the Court will treat the instant motion as if it
were brought on behalf of all Defendants.”); Hamilton v. Broomfield, No. 95-CV-3241, 1998
WL 17697, at *1 n.1 (S.D.N.Y. Jan. 20, 1998) (dismissing claims against unserved defendants
because they were identical to claims against defendants who filed the motion to dismiss).
66

opportunity to do so”). Accordingly, all Defendants other than Sedgwick are dismissed from this
Action.
The Court will hold a telephonic conference in this case on October 24, 2024, at 11:00
AM ET.
Finally, the Clerk of Court is respectfully directed to terminate the pending Motion.
(Dkt. No. 109–10, 115.)
SO ORDERED.
Dated:

September 24, 2024
White Plains, New York

KENNETH M. KARAS
United States District Judge

67