CRA Holdings US, Inc. and Subsidiaries v. United States Government
Filing
145
DECISION AND ORDER denying as moot 122 Objections; granting in part and denying in part 131 Motion for Voluntary Partial Dismissal; denying 135 Motion for Leave to File a Second Amended Complaint; denying as moot 136 Motion for Leave to File a Motion for Summary Judgment; granting 140 Motion to Dismiss for Lack of Jurisdiction. Signed by Hon. Elizabeth A. Wolford on 09/19/2019. (CDH)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
SEP 1 9 2019
WESTERN DISTRICT OF NEW YORK
. iQEWENGUTVj
t^/^DISTRl^
CRA HOLDINGS U.S., INC. AND
SUBSIDIARIES,
Plaintiffs,
DECISION AND ORDER
1:15-CV-00239 EAW
V.
UNITED STATES OF AMERICA,
Defendant.
INTRODUCTION
Plaintiffs CRA Holdings U.S., Ine. and Subsidiaries ("Plaintiffs") eommenced the
instant aetion on Mareh 19, 2015, seeking to reeover refunds of taxes paid for the 2002 and
2003 tax years. (Dkt. I). The operative pleading is the First Amended Complaint filed on
Mareh 10, 2017.(Dkt. 51).
Currently pending before the Court are the following: (I) Plaintiffs' objeetions to
United States Magistrate Judge Leslie G. Foschio's Deeision and Order with respeet to
defendant the United States of America's ("Defendant") motion to compel (Dkt. 122);(2)
Plaintiffs' motion for voluntary partial dismissal(Dkt. 131);(3)Plaintiffs' motion for leave
to file a second amended complaint (Dkt. 135); (4) Plaintiffs' motion for leave to file a
motion for summary judgment(Dkt. 136); and (5) Defendant's motion to dismiss for lack
ofjurisdiction (Dkt. 140). For the reasons that follow, the Court denies Plaintiffs' motion
for leave to file a second amended complaint, grants in part and denies in part Plaintiffs'
motion for voluntary partial dismissal, grants Defendant's motion to dismiss for lack of
- 1 -
jurisdiction, and denies Plaintiffs' objections to Judge Foschio's Decision and Order and
Plaintiffs' motion for leave to file a motion for summary judgment as moot.
BACKGROUND
In their original Complaint, filed on March 19, 2015, Plaintiffs sought a refund of
$419,924.00 for the tax year ending September 30, 2002, and a refund of $1,029,402.00
forthetaxyear ending September 30,2003,plus interest. (Dkt. 1 at^15). Plaintiffs alleged
that the Internal Revenue Service("IRS")had improperly rejected their claims for research
and development tax credits. {Id. at
10-12).
On March 10,2017, Plaintiffs filed their First Amended Complaint. (Dkt. 51). The
First Amended Complaint seeks a refund of$245,077.00 for the tax year ending September
30, 2002, and a refund of $413,066.00 for the tax year ending September 30, 2003, again
on the basis that the IRS improperly disallowed Plaintiffs' claimed research and
development tax credits. {Id.dXXi 10-12, 15).
On October 31,2017,Plaintiffs filed a Second Amended Complaint.(Dkt. 71). The
Second Amended Complaint continued to seek a tax refund of$245,077.00 for the tax year
ending September 30, 2002, and a tax refund of $413,066.00 for the tax year ending
September 30, 2003, but also added a claim that Plaintiffs are "entitled to .. . tax credits
carried back of $204,558 from [the] tax year ending September 30, 2004[.]" {Id. at
ITI15-16). Defendant moved to strike the Second Amended Complaint on November 9,
2017, noting that Plaintiffs had not sought or received either leave ofcourt or consent from
Defendant to file an amended pleading, as required by Federal Rule of Civil Procedure
15(a)(2). (Dkt. 73). Plaintiffs opposed Defendant's motion to strike (Dkt. 75), but then,
-2-
on March 22, 2018, filed a motion for leave to withdraw the Second Amended Complaint
without prejudice (Dkt. 97). Defendant did not oppose this motion (Dkt. 101), and it was
granted by Judge Foschio on April 11, 2018 (Dkt. 102), thereby confirming that the
operative pleading is the First Amended Complaint.
On March 13, 2018, Defendant filed a motion to compel. (Dkt. 95). In particular.
Defendant asked the Court to require Plaintiffs to provide more detailed responses to
certain of Defendant's interrogatories related to the work various employees performed on
projects that Plaintiffs claimed entitled them to research and development tax credits. (Dkt.
95-2). Plaintiffs filed opposition papers to the motion to compel on March 27, 2018,
arguing that they had provided reasonable responses to the interrogatories at issue. (Dkt.
99).
On August 22, 2018, Judge Foschio entered a Decision and Order granting
Defendant's motion to compel. (Dkt. 120)(the "Motion to Compel D&O"). Judge Foschio
found that the interrogatories at issue sought relevant information and that greater
specificity was required in Plaintiffs' answers thereto. {Id.).
Plaintiffs filed objections to the Motion to Compel D&O on September 6, 2018.
(Dkt. 122). Defendant filed its response to Plaintiffs' objections on September 21, 2018.
(Dkt. 127).
On September 26, 2018, Plaintiffs filed a motion for voluntary partial dismissal.
(Dkt. 131). In particular. Plaintiffs seek to voluntarily dismiss with prejudice their "claim
for tax credits generated in tax years 2002 and 2003 and thereby vacating all outstanding
orders regar[d]ing the same." (Dkt. 131-1 at 3). However,Plaintiffs'motion for voluntary
-3 -
partial dismissal states that they are not seeking to dismiss their "claim to refund generating
from the 2004 carryback...
{Id.).
Defendant filed a response to Plaintiffs' motion for voluntary partial dismissal on
October 18, 2018. (Dkt. 133). Defendant states that it does not oppose Plaintiffs' motion
"as far as it seeks to dismiss the claims for refund for the 2002 tax year and 2003 tax years
in their entirety," but that it does oppose any request by Plaintiffs to "partially dismiss the
claim for refund for the 2003 tax year and resurrect the previously withdrawn allegation
that they are entitled to a carryback from the 2004 tax year and to vacate the Court's
outstanding orders[.]" {Id. at 1). Plaintiffs filed a reply regarding their motion for
voluntary partial dismissal on October 25, 2018. (Dkt. 134).
On April 9, 2019, Plaintiffs filed a motion for leave to file a second amended
complaint(Dkt. 135) and a motion for leave to file a motion for summary judgment(Dkt.
136). Plaintiffs' proposed second amended complaint contains a single claim for "a refund
ofthe full amount of the $199,365 in research tax credits carried back to the tax year 2002
from the tax year 2003."' (Dkt. 135-1 at 4). Plaintiffs further filed an "Advisory to the
Court"(Dkt. 137), in which they explained that the goal oftheir filings was to "narrow the
scope ofthis case to a single issue, for which CRA believes summary judgment is not only
proper but unassailable. CRA proposes to do this by dismissing all of its claims against
'
Plaintiffs have used varying nomenclature for their claim to a carryback credit. In
their motion for partial voluntary dismissal, they refer to the carryback as being from the
"2004 tax year" {see Dkt. at 2-3), while in the proposed second amended complaint they
refer to it as being from the "tax year 2003"{see Dkt. 135-1 at ^ 12). As the carryback at
issue is from the tax year ending September 31, 2004 {see Dkt. 143 at 1 n.l), the Court
refers to it herein as being from the 2004 tax year.
-4-
Defendant, except for Plaintiffs' claimed entitlement to a refund of $199,365 for the tax
year 2002,the source of which is a carryback ofresearch credits from the tax year 2003[.]"
{Id. at 1).
Defendant filed papers in opposition to Plaintiffs' motion for leave to file a second
amended complaint and Plaintiffs motion for leave to file a motion for summary judgment
on April 23, 2019. (Dkt. 138; Dkt. 139). Defendant further filed a motion to dismiss the
matter for lack ofjurisdiction (Dkt. 140), arguing that Plaintiffs had conceded all claims
currently pending before the Court, rendering the matter moot. Plaintiffs filed their
response to Defendant's motion to dismiss on May 16, 2019 (Dkt. 142), and Defendant
filed a reply on May 21, 2019(Dkt. 143).
DISCUSSION
I.
Motion for Leave to File a Second Amended Complaint
Although the procedural history ofthis matter is somewhat convoluted,the key issue
before the Court at this time is relatively straightforward: can Plaintiffs, at this stage ofthe
proceedings, pursue a claim for a refund based on a carryback tax credit from the 2004 tax
year? Accordingly, the Court considers first Plaintiffs' motion for leave to file a second
amended complaint.
A.
Legal Standard
"A district court has broad discretion in determining whether to grant leave to
amend[.]" Gurary v. Winehouse,235 F.3d 792, 801 (2d Cir. 2000). Two provisions ofthe
Federal Rules of Civil Procedure guide the Court's analysis of a motion for leave to amend
-5-
where the deadline for such motions, as set forth in a scheduling order, has expired. The
first is Rule 15(a)(2), which provides that once the time for leave to amend as of right has
expired, "a party may amend its pleading only with the opposing party's written consent
or the court's leave. The court should freely give leave when justice so requires." Fed. R.
Civ. P. 15(a)(2). The second is Rule 16(b)(4), which provides that a "schedule may be
modified only for good cause and with the judge's consent." Fed. R. Civ. P. 16(b)(4).
"Where, as here, a scheduling order governs amendments to the complaint,... the lenient
standard under Rule 15(a), which provides leave to amend shall be freely given, must be
balanced against the requirement under Rule 16(b) that the Court's scheduling order shall
not be modified except upon a showing of good cause." Holmes v. Grubman, 568 F.3d
329, 334-35(2d Cir. 2009)(quotations and citations omitted).
"In determining whether a movant has satisfied the 'good cause' standard under
Rule 16(b), 'the primary consideration is whether the moving party can demonstrate
diligence.'" Charter Comma'ns, Inc. v. Local Union No. 3, Int'l Bhd. ofElec. Workers,
AFL-CIO, 338 F. Supp. 3d 242, 254 (S.D.N.Y. 2018)(quoting Kassner v. 2nd Avenue
Delicatessen Inc., 496 F.3d 229, 244(2d Cir. 2007)). However, diligence is "not... the
only consideration. The district court, in the exercise of its discretion under Rule 16(b),
also may consider other relevant factors including, in particular, whether allowing the
amendment of the pleading at this stage of the litigation will prejudice defendants."
Kassner,496 F.3d at 244. "[T]he absence ofprejudice alone does not constitute good cause
under Rule 16." Gullo v. City ofN.Y, 540 F. App'x 45,47(2d Cir. 2013); see also Smith
V. Bradt, 329 F.R.D. 500, 505 (W.D.N.Y. 2019)(explaining a court cannot find "good
-6-
cause" pursuant to Rule 16 solely because the non-moving party will not be prejudiced).
B.
The First Amended Complaint Does Not Contain a Claim for a Refund
Based on a Carryback Credit
As a threshold matter, the Court clarifies that, contrary to certain arguments made
in Plaintiffs' various submissions {see, e.g., Dkt. 134 at 5-6), the First Amended
Complaint—^the operative pleading in this matter—does not contain a claim for a carryback
credit from the 2004 tax year(or any other tax year). The First Amended Complaint lists
six specific reasons why Plaintiffs contend the IRS's determinations regarding their
claimed refunds for tax years 2002 and 2003 were erroneous {see Dkt. 51 at Tf 12), none of
which makes any reference to a carryback credit. Regardless of whether such a claim was
contained in the original Complaint, Plaintiffs are "bound by their existing pleading...."
Fixed Income Shares: Series M v. Citibank N.A., 314 F. Supp. 3d 552, 558 (S.D.N.Y.
2018); see also Ping Tou Bian v. Taylor, 23 F. App'x 75, 77 (2d Cir. 2001)(explaining
that "an amended complaint ordinarily supersedes the original and renders it of no legal
effect" (quotation omitted)).
Moreover, while Plaintiffs have sometimes (but not
consistently) indicated in their submissions that they are seeking a carryback credit from
the 2004 tax year, "[i]t is long-standing precedent in this circuit that parties cannot amend
their pleadings through issues raised solely in their briefs." RxUSA Wholesale, Inc. v.
Alcon Labs., Inc., 661 F. Supp. 2d 218, 233 (E.D.N.Y. 2009)(quotation omitted), ajf'd,
391 F. App'x 59(2d Cir. 2010)
Plaintiffs' counsel acknowledged in opposition to Defendant's motion to strike the
now-withdrawn Second Amended Complaint that the First Amended Complaint omitted
the claim for a carryback credit. (See Dkt. 74 at 4("When CRA filed its First Amended
Complaint it reduced the claimed refund based on the reduction ofthe number of projects
claimed but it inadvertently left out the portion of the claimed refund which would have
been due to the tax credit carryback.")). Plaintiffs' counsel confirmed the omission at a
hearing before Judge Foschio on January 10,2018, stating that inclusion ofthe claim for a
carryback credit had been "overlooked" when the First Amended Complaint was filed, and
that this was why the now-withdrawn Second Amended Complaint had been filed. (See
Dkt. 87 at 91-94). Then, in a memorandum dated February 9,2018, submitted in response
to Defendant's request to modify the governing scheduling order(Dkt. 84),Plaintiffs stated
that they intended to "withdraw [the] Second Amended Complaint or file a Third Amended
Complaint to clarify that [Plaintiffs are] not seeking the 2004 carryback in addition to the
pleaded 2002 and 2003 credits as part of the claimed refunds." (Dkt. 84 at 3). Plaintiffs
did subsequently move to withdraw the Second Amended Complaint, and the Court granted
that request. (Dkt. 97; Dkt. 102). In a Decision and Order issued on June 12,2018, Judge
Foschio confirmed that Plaintiffs had "agreed to withdraw Plaintiffs' Second Amended
Complaint thereby removing [the carryback credit] claim from the case." (Dkt. 113 at 12).
On this record, there can be no question that the First Amended Complaint does not assert
a claim for a refund based on a carryback credit from tax year 2004(or any other tax year).
C.
Plaintiffs have Failed to Show Good Cause to Allow Late Amendment
Because the operative pleading does not contain a claim for a refund based on a
carryback credit, the only way Plaintiffs can pursue such a claim at this point is via an
amendment. This is what Plaintiffs seek to do in the proposed second amended complaint.
-8-
(See Dkt. 135-1). However,the deadline for seeking amendment of pleadings in this case
expired on October 31, 2017 (see Dkt. 70), roughly 18 months before Plaintiffs sought
leave to amend. Accordingly, pursuant to Rule 16(b), Plaintiffs are required to show good
cause to warrant allowing late amendment. They have failed to do so.
As noted above, the primary consideration in assessing whether good cause exists
under Rule 16(b) is whether the party seeking to amend can demonstrate diligence. See
Charter Comma'ns, 338 F. Supp. 3d at 254; see also Parker v. Columbia Pictures Indus.,
204 F.3d 326, 340 (2d Cir. 2000)("[A] finding of'good cause' depends on the diligence
ofthe moving party."). "To satisfy the good cause standard the [moving] party must show
that, despite its having exercised diligence, the applicable deadline could not have been
reasonably met." Enzymotec Ltd. v. NBTY,Inc., 754 F. Supp.2d 527,536(E.D.N.Y.2010)
(quotation omitted). Accordingly, "the good cause standard is not satisfied when the
proposed amendment rests on information that the party knew, or should have known, in
advance ofthe deadline." Id. (quotation omitted).
In this case, there is no dispute that Plaintiffs were aware of all the facts underlying
their claim for a refund based on a carryback credit from the 2004 tax year prior to October
31, 2017, the deadline for seeking to amend the pleadings in this matter. As discussed
above. Plaintiffs affirmed in open court that they meant to include the carryback credit
claim in the First Amended Complaint(which was filed on March 10, 2017), but did not
do so as the result of an oversight.^ Further, Plaintiffs' now-withdrawn Second Amended
^
The alleged inadvertent failure to include this claim in the First Amended Complaint
also does not satisfy the good cause standard. "[AJttomey neglect, carelessness, or
-9-
Complaint, which was filed before the deadline to seek amendment ofpleadings, contained
the carryback credit claim, which is conclusive evidence that Plaintiffs could have sought
amendment prior to expiration of the deadline. Plaintiffs cannot satisfy the requirements
of Rule 16(b) on this record.
Importantly, nowhere in their moving papers do Plaintiffs even acknowledge Rule
16(b)'s good cause requirement, much less show that it has been satisfied. See Ritchie
Risk-Linked Strategies Trading (Ireland), Ltd. v. Coventry First LLC, 282 F.R.D. 76, 79
(S.D.N.Y. 2012)("The burden of demonstrating good cause [under Rule 16(b)] rests with
the movant."). Plaintiffs offer no explanation for their delay in seeking amendment, or for
why they previously represented to the Court that they were "not seeking the 2004
carryback in addition to the pleaded 2002 and 2003 credits as part ofthe claimed refunds."
(Dkt. 84 at 3).
Plaintiffs have vigorously argued the merits ofthe carryback credit claim {see Dkt.
142), and have contended that Defendant cannot "claim any modicum of surprise or
prejudice" regarding it (Dkt. 134 at 5). However, Rule 16(b)'s good cause standard does
not depend on whether the proposed amendments are meritorious. See Lehman v.
Garfinkle, No. 08 CIV. 9385 SHS DF, 2013 WL 857739, at *7(S.D.N.Y. Mar. 7, 2013)
(explaining that "even a meritorious claim can be barred" by the failure to comply with a
scheduling order), adopted, 2013 WL 1501627(S.D.N.Y. Apr. 12, 2013). Moreover, and
oversight is not a sufficient basis for a court to amend a Scheduling Order pursuant to Rule
16(b)." Lamothe v. Town ofOyster Bay, No.08-CV-2078 ADS AKT,2011 WL 4974804,
at *7(E.D.N.Y. Oct. 19, 2011)(collecting cases).
- 10-
as noted above,"the absence of prejudice alone does not constitute good cause under Rule
16." Gullo, 540 F. App'x at 47. In other words, even accepting Plaintiffs' argument that
the carryback credit claim is meritorious and that Defendant is "collaterally estopped"from
denying it {see Dkt. 142 at 4), that does not change the Court's conclusion that Plaintiffs
have not satisfied Rule 16(b)'s good cause standard. Under these circumstances, the Court
finds no basis to grant Plaintiffs' belated request to file the proposed second amended
complaint.^ Moreover, the Court's determination that Plaintiffs have not and cannot now
assert a claim for a refund based on a carryback credit from the 2004 tax year necessarily
moots their request for leave to file a motion for summary judgment as to such a claim.
II.
Plaintiffs' Motion for Voluntary Partial Dismissal
Having determined that(1)Plaintiffs have not currently asserted a claim for a refund
based on a carryback credit from the 2004 tax year and (2) Plaintiffs cannot amend their
pleadings to assert such a claim at this point in the proceedings, the Court next considers
Plaintiffs' motion for voluntary partial dismissal. (Dkt. 131).
^
The Court further notes that Plaintiffs' motion for leave to file a second amended
complaint failed to comply with the Court's Local Rules of Civil Procedure. In particular.
Local Rule 15(b) provides that the proposed amendments to a pleading must be "identified
in the proposed pleading through the use of a word processing 'redline' function or other
similar markings that are visible in both electronic and paper format." L. R. Civ. P. 15(b).
Plaintiffs did not identify their proposed amendments in this manner. This is an additional
ground for denial of Plaintiffs' motion for leave to amend. See Governale v. Soler, 319
F.R.D. 79, 82 (E.D.N.Y. 2016)(denying as procedurally improper motion for leave to
amend that did not comply with court's local rules).
- 11 -
A.
Legal Standard
Plaintiffs seek to "voluntarily dismiss with prejudice to refiling same any claim for
refund for tax credits generated in the tax years ending September 30,2002 and September
30, 2003." (Dkt. 131-1 at 2). Plaintiffs' request is governed by Federal Rule of Civil
Procedure 41(a)(2), which provides in relevant part that"an action may be dismissed at the
plaintiffs request only by court order, on terms that the court considers proper." Fed. R.
Civ. P. 41(a)(2).'^ "Rule 41(a)(2) dismissals are at the district court's discretion and will
be reviewed only for an abuse ofthat discretion." United States v. Cathcart, 291 F. App'x
360, 361 (2d Cir. 2008). "[T]he presumption in this circuit is that a court should grant a
dismissal pursuant to Rule 41(a)(2)absent a showing that defendants will suffer substantial
prejudice as a result." Banco Cent. De Paraguay v. Paraguay Humanitarian Found., Inc.,
No. 01 CIV. 9649 (JFK), 2006 WL 3456521, at *2(S.D.N.Y. Nov. 30, 2006)(quotation
omitted).
B.
The Court Grants Plaintiffs' Request for Voluntary Dismissal of Their
Claim for a Refund based on Tax Credits Generated in the Tax Years
Ending September 30. 2002, and September 30,2003
As noted above. Plaintiffs have requested permission to voluntarily dismiss, with
prejudice, their "claim for refund for tax credits generated in the tax years ending
September 30,2002 and September 30,2003." (Dkt. 131-1 at 2). The Court sees no reason
to deny this request, inasmuch as it will not result in any prejudice to Defendant.
^
Although Rule 41(a)(2)refers to dismissal of an "action," it may be used to dismiss
less than the entire case. See Guigliano v. Danbury Hosp., 396 F. Supp. 2d 220, 224(D.
Conn. 2005).
- 12-
With respect to Defendant's argument that it was improper for Plaintiffs to seek to
"resurrect the previously withdrawn allegation that they are entitled to a carryback from
the 2004 tax year"(Dkt. 133 at 1), this issue has been mooted by the Court's resolution of
Plaintiffs' motion for leave to amend. In other words, while Plaintiffs stated in their motion
for voluntary partial dismissal that they "do not seek to di[s]miss in any way Plaintiffs'
claim to refund generating from the 2004 carryback" (Dkt. 131-1 at 3), the Court has
determined that no such claim is currently pending in this action. Plaintiffs cannot dismiss
(or retain) a claim that has not been pled, nor does such an unpleaded claim pose a barrier
to granting Plaintiffs' request to voluntarily dismiss claims that are asserted in this matter.
C.
The Court Denies Plaintiffs' Request to Vacate Ail Outstanding
Orders Regarding Their Claim for a Refund based on Tax
Credits Generated in the Tax Years Ending September 30. 2002.
and September 30.2003
Plaintiffs, in connection with their request for voluntary partial dismissal, have
asked the Court to vacate "all outstanding orders" regarding their claim for a refund based
on tax credits generated in the tax years ending September 30, 2002, and September 30,
2003. (Dkt. 131-1 at 3). Although Plaintiffs have not identified the particular "outstanding
orders" to which they are referring, the Court presumes this request is aimed at the Motion
to Compel D&O. Plaintiffs have offered no substantive reason why the Motion to Compel
D&O should be vacated, and the Court does not find such relief warranted. As Defendant
notes, by withdrawing their claim for tax credits generated in the tax years ending
September 30, 2002, and September 30, 2003, Plaintiffs have satisfied their outstanding
discovery obligations under the Motion to Compel D&O. (See Dkt. 133 at 13-14). As
- 13-
such, Plaintiffs' objections to the Motion to Compel D&O have been mooted. However,
the Court sees no reason to vacate the Motion to Compel D&O,since it need not(and does
not) reach the merits thereof.
III.
Defendant's Motion to Dismiss for Lack of Jurisdiction
Defendant has asked the Court to dismiss this case, arguing that(1)Plaintiffs have
voluntarily withdrawn the claims set forth in the operative pleading and(2)Plaintiffs have
not established that they should be permitted to pursue any other claims at this time. As
such. Defendant contends the matter has been mooted and the Court lacks jurisdiction.
A.
Legal Standard
"Pursuant to Article III of the Constitution, [federal courts] have jurisdiction only
over live cases and controversies." ABC, Inc. v. Stewart, 360 F.3d 90, 97(2d Cir. 2004).
Accordingly,"under the mootness doctrine, if an event occurs while a case is pending on
appeal that makes it impossible for the court to grant any effectual relief whatever to a
prevailing party," dismissal is the appropriate remedy. Id.(quotation omitted).
B.
No Live Controversy Exists in this Case
The Court agrees with Defendant that, on the record before the Court, there is no
live controversy in this case. First, Plaintiffs have voluntarily dismissed their claims for a
refund based on tax credits generated in the tax years ending September 30, 2002, and
September 30, 2003, which are the only claims set forth in the First Amended Complaint
(the operative pleading in this matter).^ Second, Plaintiffs cannot now assert a claim for a
^
Even had Plaintiffs not sought voluntary dismissal of these claims, they submitted
a proposed amended pleading that did not contain them, which constituted abandonment
- 14-
refund based on a earryback eredit from the 2004 tax year, for all the reasons discussed
above. Accordingly, there is nothing left in this matter for the Court(or a jury) to decide,
and the action must be dismissed. See Riordan v. Nationwide Mut. Fire Ins. Co., 984 F.2d
69, 70 (2d Cir. 1993)(explaining that a ease becomes moot when the issues presented are
no longer live, and finding mootness where the defendant "tendered, and the plaintiffs
accepted, the full amount of the judgment, plus interest, costs and disbursements").
CONCLUSION
For the foregoing reasons, the Court denies as moot Plaintiffs' objections to the
Motion to Compel D&O (Dkt. 122), grants in part and denies in part Plaintiffs' motion for
voluntary partial dismissal (Dkt. 131), denies Plaintiffs' motion for leave to file a second
amended complaint(Dkt. 135), denies as moot Plaintiffs' motion for leave to file a motion
for summary judgment (Dkt. 136), and grants Defendant's motion to dismiss for lack of
jurisdiction (Dkt. 140). The Clerk of Court is instructed to enter judgment and close the
ease.
SO ORDERED.
ELIZ^
United States District Judge
DATED:
September 19, 2019
Rochester, New York
thereof. See Elliott v. City ofHartford, 649 F. App'x 31, 32(2d Cir. 2016)(where a party
is represented by counsel, "it makes perfect sense to hold that a party who seeks to file an
amended pleading that omits a claim intends to abandon the claim, irrespective of whether
the amended pleading is permitted by the court"(quotation omitted)).
- 15 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?