Opinion
1:22-cv-7609 (MKV)
07-29-2024
ELAIACHI ELBOUTE, Plaintiff, v. HIGHGATE HOTELS, L.P. and OYO HOTEL TIMES SQ., Defendants.
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS THIRD AMENDED COMPLAINT
MARY KAY VYSKOCIL, UNITED STATES DISTRICT JUDGE:
Plaintiff Elaiachi Elboute brings this action against his former employers, Defendants Highgate Hotels, L.P. and OYO Hotel Times Square (collectively, “Defendants”), seeking solely to vacate an April 2021 arbitration award (the “Arbitration Award”) rendered by the Office of the Impartial Chairperson, an independent hotel industry arbitrator, in favor of Defendants, finding just cause for Plaintiff's termination. [ECF No. 20-1 (“Arbitration Opinion” or “Arb. Op.”)]. Defendants move to dismiss Plaintiff's Third Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the following reasons, the motion to dismiss is GRANTED.
BACKGROUND AND PROCEDURAL HISTORY
The Court assumes familiarity with the facts and the procedural history of this case, including its prior decision dismissing Plaintiff's initial Complaint without prejudice. [ECF No. 31 (“MTD Order”)]. The Court recounts only those facts relevant to the pending motion.
The following facts are taken from Plaintiff's “A Third Amended Complaints [sic] To Vacate An Arbitral Award” [ECF No. 46 (“Third Amended Complaint” or “TAC”)], and are accepted as true for purposes of this motion. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In addition, the Court considers the record of Plaintiff's proceedings before an independent industry arbitrator, see Arb. Op., which was filed by Defendants in support of their prior motion to dismiss Plaintiff's Complaint, because it is integral to and incorporated by reference into the Third Amended Complaint. See Chambers v. Time Warner. Inc., 282 F.3d 147, 152-53 (2d Cir. 2002) (“[O]n a motion to dismiss, a court may consider ‘documents attached to the complaint as an exhibit or incorporated in it by reference.'”); Lodi v. Int'l Bus. Machs Corp., No. 21-cv-6336 (JGK), 2022 WL 2669199, at *2 n.3 (S.D.N.Y. July 11, 2022) (although cited documents, including an arbitration decision, were not attached to plaintiff's complaint, the court could consider such materials on a motion to dismiss because they were “integral to and were expressly referenced in the complaint”).
Plaintiff began working for OYO Hotel Times Square (the “Hotel”) in 2012. TAC ¶ I.2. In March 2021, Hotel management terminated Plaintiff on grounds of time theft, alleging that on three mornings in March 2021, Plaintiff remained in the employee locker room for a total of 13 hours and 51 minutes, during which he performed none of his job responsibilities but was paid. TAC ¶¶ I.10, I.13; Arb. Op. 1-2. Plaintiff filed a grievance with his union, the New York Hotel & Motel Trades Council, AFL-CIO (the “Union”), which was referred to arbitration before Alvin Blyer, an independent industry arbitrator (the “Arbitrator”). See Arb. Op. Plaintiff, the Hotel, and the Union appeared at the arbitration and were represented by counsel. See Arb. Op. 1. The Union argued for Plaintiff that, on the days in question, Plaintiff was suffering from diarrhea and was using the bathroom in the locker room, and that this conduct did not warrant discharge. Arb. Op. 1. Plaintiff testified before the Arbitrator. See Arb. Op. 3 n.4. The Arbitrator concluded in a three-page written opinion that the Hotel had just cause to terminate Plaintiff. See Arb. Op. 3 (“[G]iven the seriousness of [Plaintiff's] offense, the Hotel may discharge [Plaintiff] if it wishes to do so.”).
Plaintiff also filed a charge with the National Labor Relations Board, which deferred to the Arbitrator's decision and dismissed the charge. MTD Order 3. Plaintiff then filed a complaint with the New York State Division of Human Rights, which found no probable cause for discrimination. MTD Order 3.
In September 2022, Plaintiff filed his initial Complaint before this Court, appearing pro se. [ECF No. 2 (“Complaint”)]. Defendants moved to dismiss the Complaint for failure to state a claim pursuant to Rule 12(b)(6). [ECF No. 19]. In August 2023, the Court issued a Memorandum Opinion and Order granting Defendants' motion to dismiss, denying Plaintiff's motion for appointment of counsel, and granting Plaintiff leave to amend his Complaint. MTD Order 11.
After Plaintiff failed to file an amended complaint by the deadline the Court had set, the Court issued an order to show cause, ordering that, if he wished to do so, Plaintiff file an amended complaint by a newly set deadline, and instructing Plaintiff that failure to comply and to prosecute the case would result in dismissal. [ECF No. 32]. Thereafter, Plaintiff, still proceeding pro se, filed an Amended Complaint. [ECF No. 33]. Soon thereafter, Plaintiff obtained legal counsel, who moved for an extension of time to further amend the Amended Complaint, which the Court granted. [ECF Nos. 36, 38]. Thereafter, Plaintiff filed the Second Amended Complaint. [ECF No. 39; see ECF No. 42]. In accordance with this Court's Individual Rules of Practice in Civil Cases, Defendants filed a pre-motion letter requesting that the Court dismiss Plaintiff's Second Amended Complaint on its own initiative or, in the alternative, permit Defendants to file a motion to dismiss. [ECF No. 41]. The Court granted Defendants leave to file a motion to dismiss and granted Plaintiff leave to file a further amended complaint curing the deficiencies raised in Defendants' pre-motion letter. The Court cautioned that this would be Plaintiff's final opportunity to amend his complaint. [ECF No. 43].
After several deficient filings, Plaintiff properly filed the Second Amended Complaint on December 19, 2023. [ECF No. 42].
On January 26, 2024, Plaintiff filed the operative Third Amended Complaint. See TAC. In the Third Amended Complaint, Plaintiff seeks, as his sole relief, to vacate the Arbitration Award, or, in the alternative, to remand this case to the Arbitrator. TAC ¶ III.8. Plaintiff appears to have abandoned his original claims for age discrimination in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et. seq., the New York State Human Rights Law, N.Y. Exec. Law §§ 290 et seq., and the New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-101 et seq., and for retaliation for union activism in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. See TAC ¶ II; MTD Order 1 (describing Plaintiff's original claims). Defendants moved to dismiss the Third Amended Complaint, filing a memorandum of law in support. [ECF Nos. 49, 50]. Plaintiff filed an opposition. [ECF No. 51 (“Pl. Opp.”)]. Defendants filed a reply brief in further support of their motion. [ECF No. 52].
LEGAL STANDARD
To survive a Rule 12(b)(6) motion to dismiss, a complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft, 556 U.S. at 678. While the Court “must accept as true all of the allegations contained in a complaint,” this “tenet . . . is inapplicable to legal conclusions” and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. The Court may also consider “matters of which judicial notice may be taken.” Chambers, 282 F.3d at 153.
DISCUSSION
I. Procedural Posture
The Court first considers whether it may resolve Defendants' motion to dismiss in the current procedural posture of this case. Actions to vacate an arbitral award are typically brought on by petition or motion to vacate. Indeed, “[u]nder the Federal Arbitration Act (‘FAA'), 9 U.S.C. § 6, a party seeking to vacate an arbitration award must proceed by motion to the court.” U.S. Ship Mgmt., Inc. v. Maersk Line, Ltd., 188 F.Supp.2d 358, 362-63 (S.D.N.Y.), aff'd, 51 Fed.Appx. 66 (2d Cir. 2002); see Kruse v. Sands Bros. & Co., 226 F.Supp.2d 484, 485 (S.D.N.Y. 2002) (“A party seeking vacatur must proceed by motion to the court.” (citing 9 U.S.C. § 6)). Here, Plaintiff filed a formal civil complaint and has not moved to vacate the Arbitration Award.
Nonetheless, a party's failure to initiate a vacatur action by petition or motion is not fatal. Courts in this District have considered such actions properly instituted under the FAA where fully presented to the court by a complaint and briefing on a motion to dismiss. See U.S. Ship Mgmt., 188 F.Supp.2d at 363; see also Pfeffer v. Wells Fargo Advisors, LLC, No. 16 CV 8321 (VB), 2017 WL 2269541, at *1 (S.D.N.Y. May 23, 2017) (construing complaint as motion to vacate arbitration award), aff'd, 723 Fed.Appx. 45 (2d Cir. 2018); Lobaito v. Chase Bank, 529 Fed.Appx. 100, 102 (2d Cir. 2013) (noting that district court could construe complaint as a motion to vacate an arbitration award on a Rule 12(b)(6) motion); cf. Orange & Rockland Utilities, Inc. v. Loc. 503, Int'lBhd. of Elec. Workers, No. 05-cv-6320 (WCC), 2006 WL 1073049, at *2-*3 (S.D.N.Y. Apr. 21, 2006) (rejecting defendant's argument that plaintiff's filing of a complaint instead of a motion to vacate was fatal, and noting that defendant “place[d] this action in a proper procedural posture” by filing a motion for judgment on the pleadings and a counterclaim to confirm the award (quoting U.S. Ship Mgmt., 188 F.Supp.2d at 363)). Notwithstanding the procedural irregularities of Plaintiff's Third Amended Complaint and the present motion to dismiss, even construing the Third Amended Complaint as a motion to vacate the Arbitration Award and Defendants' motion to dismiss as an opposition thereto, Plaintiff is not entitled to relief and the Third Amended Complaint must be dismissed for the reasons discussed herein.
Because Plaintiff is now represented by counsel, the Court no longer applies the special solicitude afforded pro se litigants, which would require the Court to construe Plaintiff's pleadings liberally and to interpret them to raise the strongest claims they suggest. See Hogan v. Fischer, 738 F.3d 509, 515 (2d Cir. 2013); MTD Order 4-5. As discussed, the Court has nonetheless construed Plaintiff's Third Amended Complaint as a motion to vacate the Arbitration Award.
II. Statute of Limitations
Section 12 of the FAA provides that “[n]otice of a motion to vacate, modify, or correct an award must be served upon the adverse party or his attorney within three months after the award is filed or delivered.” 9 U.S.C. § 12. As the Second Circuit has recognized, “[n]o exception to this three month limitations period is mentioned in the statute.” Florasynth v. Pickholz, 750 F.2d 171, 175 (2d Cir. 1984). Accordingly, a party “may not raise a motion to vacate, modify, or correct an arbitration award after the three-month period has run.” Terwilliger v. Res. America, Inc., No. 22-cv-9610 (NRB), 2023 WL 3582342, at *2 (S.D.N.Y. May 22, 2023) (citing Florasynth, 750 F.2d at 175). In this case, the Arbitration Award was issued on April 22, 2021. Arb. Op. 3. Plaintiff's Third Amended Complaint was filed on January 26, 2024. TAC. Even if the Court were to consider Plaintiff's initial Complaint to be his motion to vacate, that complaint was filed in September 2022, also exceeding the three-month period. Complaint. Therefore, Plaintiff's motion to vacate the Arbitration Award is plainly untimely, having been filed past the FAA's threemonth limitations period, and Defendants' motion to dismiss should be granted on this basis. See Lobaito, 529 Fed.Appx. at 102 (holding that district court properly dismissed a complaint construed as a motion to vacate as time barred under 9 U.S.C. § 12); Terwilliger, 2023 WL 3582342, at *1, *4 (dismissing motion to vacate as untimely).
Notwithstanding the untimeliness of his motion to vacate, Plaintiff argues that a party may seek vacatur of an arbitration award after the three-month limitations period under the doctrine of equitable estoppel. Pl. Opp. ¶¶ 10-12; TAC ¶ II.2. In support of this proposition, Plaintiff cites only authority from the Ninth Circuit, which does not bind this Court. See Move, Inc. v. Citigroup Glob. Mkt., Inc., 840 F.3d 1152, 1156 (9th Cir. 2016) (holding that equitable tolling applies to the FAA). The Second Circuit has consistently declined to reach the issue of whether the FAA's statute of limitations is subject to equitable exceptions, often finding no equitable justification for untimely filing of a request to vacate. See Florasynth, 750 F.2d at 175 (holding that Section 12 contains no exception to the three-month limitations period); see also Dalla-Longa v. Magnetar Cap. LLC, 33 F.4th 693, 697-98 (2d Cir. 2022) (declining to reach the question of whether there are equitable exceptions to Section 12's three-month deadline, because party did not show equitable reason for failure to serve); Milberg, LLP v. Drawrah Ltd., 844 Fed.Appx. 397, 400 (2d Cir. 2021) (declining to reach the question of exceptions to FAA's limitations period, because the facts did not support equitable exception in any event).
This Court, like others in the Second Circuit, does not resolve the question of whether equitable tolling applies to the FAA's statute of limitations, because Plaintiff fails to show any equitable reason that would justify an exception even if equitable tolling were available. Although Plaintiff argues that “a party may be permitted to seek vacatur of an arbitration award even after the passing of the three-month period according to the standard for [the] equitable estoppel doctrine,” Pl. Opp. ¶¶ 10-12, his opposition brief and Third Amended Complaint set forth only the reasoning of the Ninth Circuit's decision holding that equitable estoppel applies under the FAA, but do not advance any case-specific reasons as to why equitable estoppel should apply to Plaintiff, even if it were to be recognized by this Court. See Dalla-Longa, 33 F.4th at 697-98; Milberg, 844 Fed.Appx. at 400 (“[T]he facts advanced by [plaintiff] would not support even the equitable exception that it hypothesizes.”). Accordingly, the Court finds that Plaintiff's motion to vacate the Arbitration Award is time barred under Section 12's strict three-month statute of limitations. The Third Amended Complaint, seeking vacatur of the Arbitration Award as its sole relief, must be dismissed on this basis.
III. FAA and Manifest Disregard of the Law
Even if the Court were to grant an equitable exception to the FAA's three-month limitations period in this case, Plaintiff fails to demonstrate any grounds that would justify vacatur of the Arbitration Award. Under the FAA, a court may vacate an arbitration award in the following circumstances:
(1) where the award was procured by corruption, fraud, or undue means; (2) where there was evident partiality or corruption in the arbitrators, or either of them; (3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing,
upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or (4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.9 U.S.C. § 10(a); see Schwartz v. Merrill Lynch & Co., 665 F.3d 444, 451 (2d Cir. 2011).
In addition, under Second Circuit precedent, “the court may set aside an arbitration award if it was rendered in manifest disregard of the law.” Schwartz, 665 F.3d at 451 (internal quotation marks omitted). Courts in the Second Circuit employ a three-part inquiry to determine whether an arbitration award was issued in manifest disregard of the law, considering: (1) whether the law that was allegedly ignored was clear and explicitly applicable to the matter before the arbitrators; (2) whether the law was, in fact, improperly applied, leading to an erroneous outcome; and (3) whether the arbitrators actually possessed knowledge of the law and its applicability to the dispute. Telenor Mobile Commc'ns AS v. Storm LLC, 584 F.3d 396, 408 (2d Cir. 2009); F. Hoffmann-La Roche Ltd. v. Qiagen Gaithersburg, Inc., 730 F.Supp.2d 318, 326 (S.D.N.Y. 2010). To justify vacatur under the doctrine of manifest disregard, the movant must show that the arbitrator “appreciate[d] the existence of a clearly governing legal principle but decide[d] to ignore or pay no attention to it.” F. Hoffmann-LaRoche, 730 F.Supp.2d at 326-27 (quoting InterDigital Commc'ns. Corp. v. Nokia Corp., 407 F.Supp.2d 522, 529 (S.D.N.Y. 2005)). A court may conclude that there was manifest disregard of the law if it finds that “the error made by the arbitrators is so obvious that it would be instantly perceived by the average person qualified to serve as an arbitrator.” D.H. Blair & Co. v. Gottdiener, 462 F.3d 95, 111 (2d Cir. 2006) (quoting Willemijn Houdstermaatschappij, BV v. Standard Microsystems Corp., 103 F.3d 9, 13 (2d Cir. 1997)).
Under either the statutory grounds provided in the FAA or under the doctrine of manifest disregard, a party seeking to vacate an arbitration award “bears the heavy burden of showing that the award falls within [the] very narrow set of circumstances” that permit vacatur. Wallace v. Buttar, 378 F.3d 182, 189 (2d Cir. 2004) (quoting Duferco Int'l Steel Trading v. T. Klaveness Shipping A/S, 333 F.3d 383, 388 (2d Cir. 2003)); see also Porzig v. Dresdner, Kleinwort, Benson, N. America LLC, 497 F.3d 133, 139 (2d Cir. 2007) (noting that the “standard of review for arbitration awards” is “extremely deferential” in order to “encourage and support the use of arbitration by consenting parties”). This standard avoids “frustrat[ing] the twin goals of arbitration, namely, settling disputes efficiently and avoiding long and expensive litigation.” Scandinavian Reins. Co. v. Saint Paul Fire & Marine Ins. Co., 668 F.3d 60, 71-72 (2d Cir. 2012) (internal quotation marks omitted). A reviewing court should give “strong deference” to arbitration awards and the arbitration process. Porzig, 497 F.3d at 138. Mere evidence of the arbitrator committing “an error-or even a serious error” is not a sufficient basis to vacate an arbitration award. Jock v. Sterling Jewelers Inc., 646 F.3d 113, 122 (2d Cir. 2011) (internal quotation marks omitted). “If there is ‘even a barely colorable justification for the outcome reached,' the court must confirm the arbitration award.” Willemijn, 103 F.3d at 13 (quoting Matter of Andros Compania Maritima, S.A., 579 F.2d 691, 704 (2d Cir. 1978)).
Plaintiff fails to meet the heavy burden of justifying vacatur under either Section 10(a) or the doctrine of manifest disregard. To the extent Plaintiff relies upon Section 10(a)(3) to argue for vacatur, see Pl. Opp. ¶¶ 15-16, Plaintiff alleges but provides no facts to support his assertion that the Arbitrator “failed to grant . . . Plaintiff the opportunity to explain his case or bring any explanation around past practices or past policies.” TAC ¶ II.7.A. According to the Arbitration Opinion, the Arbitrator heard and considered Plaintiff's testimony and explanation for the time he stayed in the locker room. See Arb. Op. 2 (“[Plaintiff] stated that he had been ill for the last week and one half and had seen a doctor about his condition the day prior to the March 25 meeting.”). However, the Arbitrator determined that even though the evidence supported that Plaintiff was ill, the Arbitrator did “not believe [Plaintiff] went to the locker room . . . and stayed there for lengthy periods of time to deal with that condition,” and that even if that were the case, Plaintiff did not request or receive Hotel management's permission to do so. Arb. Op. 2-3 & n.4. Plaintiff does not elaborate, in the Third Amended Complaint or in his opposition brief, what evidence the Arbitrator purportedly refused to hear regarding Plaintiff's case or Defendants' past practices and policies. See TAC ¶ II.7.A; Pl. Opp. ¶ 16. Therefore, Plaintiff fails to establish that the Arbitrator refused to hear Plaintiff's evidence pertinent and material to the controversy. See 9 U.S.C. § 10(a)(3).
Plaintiff also alleges that he was prejudiced by several challenges he encountered during the arbitration process. See TAC ¶ II.7.A; Pl. Opp. ¶ 16. For example, Plaintiff alleges that he does not speak English and did not understand much of the arbitration process. See TAC ¶ II.7.A; Pl. Opp. ¶ 16. Although Plaintiff was provided with an Arabic interpreter, the interpreter apparently spoke in a different dialect than Plaintiff. TAC ¶ II.7.A. Plaintiff also alleges that several technical issues occurred during the arbitration, such as an inconsistent videoconference connection. TAC ¶ II.7.A. Assuming all of these alleged facts to be true, the Court still cannot reasonably infer from these incidents that the Arbitrator was “guilty of misconduct in refusing to postpone the hearing,” or that Plaintiff's rights were prejudiced, 9 U.S.C. § 10(a)(3), because the Court cannot find, as alleged, conduct by the Arbitrator that amounted to “a denial of fundamental fairness of the arbitration proceeding.” Dolan v. ARC Mech. Corp., No. 11-cv-09691 (PAC), 2012 WL 4928908, at *3 (S.D.N.Y. Oct. 17, 2012) (to justify vacatur under Section 10(a)(3), “the misconduct must amount to a denial of fundamental fairness of the arbitration proceeding” and “den[y] a party sufficient opportunity to present proof of a claim or defense and render[] the resulting arbitral decision biased, irrational, or arbitrary”); Ace American Ins. Co. v. Christiana Ins., LLC, No. 11-cv-8862 (ALC), 2012 WL 1232972, at *3 (S.D.N.Y. Apr. 12, 2012) (“Misconduct typically arises where there is proof of either bad faith or gross error on the part of the arbitrator ....[F]ederal courts do not superintend arbitration proceedings. Our review is restricted to determining whether the procedure was fundamentally unfair.” (internal citations and quotation marks omitted)).
Neither can Plaintiff's argument, considering the facts alleged in the Third Amended Complaint, support a finding of manifest disregard of the law. Plaintiff alleges that the Arbitrator “knowingly disregard[ed] the applicable legal principle that is clearly defined and not subject to reasonable debate” and “refused to heed that legal principle.” TAC ¶ II.7.B; Pl. Opp. ¶ 17. Plaintiff argues that the Arbitrator disregarded two legal principles: (1) that Plaintiff was terminated due to retaliation for his union activity and that Defendants failed to follow the procedure required to terminate a union delegate; and (2) “the applicable legal principle that prohibits . . . discriminat[ion] based on age.” TAC ¶ II.7.B.; Pl. Opp. ¶ 18. To the extent Plaintiff's first argument concerns a “legal principle” at all, and even assuming that the Hotel did fail to follow the proper procedure to terminate a delegate, Plaintiff still fails to establish (1) that this legal principle was “applicable to the matter before the [A]rbitrator[]”; (2) that the law was, in fact, “improperly applied, leading to an erroneous outcome”; and (3) that the Arbitrator “actually possessed knowledge of the law and its applicability to the dispute.” F. Hoffmann-La Roche, 730 F.Supp.2d at 326. Indeed, the Arbitration Opinion does not indicate that Plaintiff's Union counsel at the arbitration raised such an argument at all. See generally Arb. Op.
Nor does Plaintiff establish that the Arbitrator failed to consider the applicable legal principle that prohibits discrimination based on age. In the Third Amended Complaint, Plaintiff fails to allege any facts that would support an inference of age discrimination, such as “comment[s] . . . about his age, that he was treated adversely because of his age, or that he was replaced by a younger employee.” MTD Order 8. And once again, it is not clear that age discrimination was an issue presented before the Arbitrator at all, much less that the Arbitrator “appreciate[d] the existence of a clearly governing legal principle [regarding age discrimination] but decide[d] to ignore or pay no attention to it.” F. Hoffmann-La Roche, 730 F.Supp.2d at 327 (quoting InterDigital, 407 F.Supp.2d at 529).
The Arbitrator found that Defendants' discharge of Plaintiff was justified and permissible based on the undisputed evidence that Plaintiff remained in the locker room without permission for over 13 total hours and failed to perform any of his job duties during that time, although he was paid for it. See Arb. Op. 1-3. In light of the evidence and the Arbitrator's reasoning, the Court finds more than “a barely colorable justification for the outcome reached” by the Arbitrator. Willemijn, 103 F.3d at 13 (quoting Matter of Andros Compania Maritima, S.A., 579 F.2d at 704). Accordingly, Plaintiff has not met his “heavy burden of showing” that the Arbitration Award “falls within [the] very narrow set of circumstances” to justify vacatur. Wallace, 378 F.3d at 189 (quoting Duferco, 333 F.3d at 388). Thus, even if the Court were to find Plaintiff's motion to vacate the Arbitration Award to be timely, which it is not, the Court would deny Plaintiff's motion and dismiss the Third Amended Complaint.
IV. Leave to Amend
District courts “should not dismiss [a pro se complaint] without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)). The Court granted Plaintiff leave to amend his initial Complaint when he was proceeding pro se, MTD Order 11, and twice again following his retention of counsel. [See ECF Nos. 38, 43, 45]. In granting Plaintiff leave to file the Third Amended Complaint, the Court cautioned that “[t]his will be Plaintiff's final opportunity to amend his complaint.” [ECF No. 43].
Although a district court “should freely give leave [to amend] when justice so requires,” Fed.R.Civ.P. 15(a)(2), justice does not so require in this case. Leave to amend may be denied for reasons including “undue delay, . . . repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of amendment.” Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). Plaintiff has had three opportunities to cure the deficiencies identified by Defendants in their pre-motion letters, and by the Court in its prior motion to dismiss Order. He has failed to do so. Moreover, Plaintiff has not requested leave to amend and “has not identified any proposed amendments for the Court to evaluate that might cure the deficiencies afflicting [his] claims.” Truman v. Brown, 434 F.Supp.3d 100, 124 (S.D.N.Y. 2020). Accordingly, Plaintiff is DENIED leave to amend.
CONCLUSION
For the foregoing reasons, the motion to dismiss is GRANTED and the Third Amended Complaint is DISMISSED with prejudice. The Clerk of Court is respectfully requested to terminate the motion pending at docket entry 49 and to close the case.
SO ORDERED.