United States District Court, D. Connecticut
RULING ON PLAINTIFF'S MOTION FOR LEAVE TO FILE
SECOND AMENDED COMPLAINT
CHARLES S. HAIGHT, JR. Senior United States District Judge
case is before the Court on Plaintiff's motion (Doc. 31)
for an order of the Court granting Plaintiff leave to file a
Second Amended Complaint against Defendant in the form
attached to the motion papers. Plaintiff's motion to
amend is made under Rule 15(a) of the Federal Rules of Civil
Procedure. Defendant resists this motion to amend and
reiterates an earlier contention that Plaintiff's initial
complaint should be dismissed. See Docs. 20, 32.
This Ruling resolves Plaintiff's motion to amend his
January and June, 2013, Plaintiff Anthony Nwachukwu opened
three personal deposit and checking accounts with Defendant
Liberty Bank ("Liberty" or "the Bank").
In April 2016, an officer of the Bank advised Plaintiff that
the Bank was closing his accounts. Plaintiff objected to the
closing, but could not prevent it, and on May 6, 2016
instructed Liberty to wire his funds to the Bank of New York
Mullen, which was done.
9, 2016, Plaintiff filed his initial complaint (Doc. 4) in
this Court against Liberty. The case is based on the premise
that the Bank's conduct in closing Plaintiff's
accounts violated his legal rights. Plaintiff coupled his
complaint with a motion for a temporary restraining order and
preliminary injunction (Doc. 1). The Court denied all
preliminary relief in an oral ruling from the bench after a
hearing on May 16. See Minute Entry, Doc. 16;
Transcript, Doc. 17.
ensued some occasionally disjointed activities addressed to
the filings, which need not be recounted in detail. It is
sufficient for present purposes to say that Plaintiff, having
previously availed himself of the ability to amend his
complaint once as of right, is now required, by
Defendant's forcefully expressed refusal of consent, to
apply to the Court for leave to file a second amended
complaint. That application forms the subject matter of the
present motion, which this Ruling decides.
proposed Second Amended Complaint ("SAC") contains
nine counts. They all arise out of the same nexus of fact:
The closing by the Bank, in April 2016, of Plaintiff's
accounts, against Plaintiff's will and in disregard of
his protest. The nine counts may be summarized as follows:
* First Count: breach of contract.
* Second Count: breach of implied duty of good faith and fair
* Third Count: negligent infliction of emotional distress.
* Fourth Count: intentional infliction of emotional distress.
* Fifth Count: violation of Connecticut Unfair Trade
* Sixth Count: violation of 42 U.S.C. § 1981.
* Seventh Count: violation of 42 U.S.C. § 1982.
* Eighth Count: violation of 42 U.S.C. § 1983.
* Tenth Count: violation of the OCC of the U.S. Department of
Second Amended Complaint groups the First through Fifth
Counts under the caption "State Claims." The
remaining Counts are grouped under the caption "Federal
Claims - Civil Rights Violations." Plaintiff's
present motion, opposed by Defendant in its entirety, seeks a
Court order granting Plaintiff leave to file an amended
complaint asserting those claims in that order.
STANDARD FOR GRANTING LEAVE TO AMEND THE COMPLAINT
cases like the one at bar, where a party is not entitled to
amend its pleading as of right, Rule 15(a)(2) provides that
"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).
leading case on the propriety of amendment of pleadings by
leave of court is Foman v. Davis, 371 U.S. 178
(1962). The Supreme Court stated generally that "the
purpose of pleading is to facilitate a proper decision on the
merits." 371 U.S. at 182 (citing and quoting Conley
v. Gibson, 355 U.S. 41, 48 (1957)). Foman then
voices this oft-quoted guidance:
In the absence of any apparent or declared reason - such as
undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by
virtue of allowance of the amendment, futility of amendment,
etc. - the leave sought [to amend] should, as the rules
require, be "freely given."
371 U.S. at 182.
by Foman, federal trial courts are lenient in
allowing amendments to pleadings, but they are not supine. If
the party opposing amendment demonstrates the presence of one
or more of the negative factors listed in Foman, the
amendment will not be allowed, for in that circumstance the
cause of justice would not be served.
following Parts of this Ruling, I will consider whether any
of the "apparent or declared reasons" for refusing
amendment articulated in Foman are present in this
case. The final and most extended discussion relates to the
last preclusive circumstance Foman enumerates: the
"futility of amendment." The other Foman
factors require less analysis.
FACTORS RELEVANT TO REFUSING LEAVE TO AMEND
Undue Delay, Undue Prejudice
undue delay in bringing a motion to amend is one of the
factors, as enumerated by Foman, to consider in
determining whether leave to amend will be extended,
"[m]ere delay, . . . absent a showing of bad faith or
undue prejudice, does not provide a basis for a district
court to deny the right to amend." State Teachers
Ret. Bd. v. Fluor Corp., 654 F.2d 843, 856 (2d Cir.
1981). See also Middle Atl. Utils. Co. v. S. M. W. Dev.
Corp., 392 F.2d 380, 384 (2d Cir. 1968) ("The
three-year delay . . . is an inadequate basis for denying a
motion to amend. It may be a factor to be considered but
unless the motion either was made in bad faith or will
prejudice defendant, delay by itself is not enough to deny
the requisite relief"). The party opposing amendment
must show it has been prejudiced by its adversary's delay
in seeking leave. In this Circuit,
In determining what constitutes "prejudice, " we
consider whether the assertion of the new claim would: (i)
require the opponent to expend significant additional
resources to conduct discovery and prepare for trial; (ii)
significantly delay the resolution of the dispute; or (iii)
prevent the plaintiff from bringing a timely action in
Block v. First Blood Assocs., 988 F.2d 344, 350 (2d
case at bar, Plaintiff's present motion to amend his
complaint is not preceded by significant delay. The first
motion to amend (Doc. 19) was filed on May 27, 2016. After
some procedural uncertainties, the present motion to amend
was filed on July 29, 2016. That is not an inordinate
interval of time. The timing of this motion for leave to file
a Second Amended Complaint does not present any of the
significant measures of prejudice to Defendant enumerated by
Block as reasons to disallow amendment. There has
been no showing by Defendant that the new complaint will
require it to expend significant additional resources, nor
that the amendment will cause significant delay. (Indeed, the
proposed Second Amended Complaint has only nine counts to the
First Amended Complaint's ten.) Accordingly, the Court is
satisfied that neither undue delay nor undue prejudice to the
opposing party provides a viable ground upon which to deny
this motion for leave to amend.
Bad Faith, Dilatory Motive, Repeated Failure to Cure
has made two prior inadequate attempts to put forward this
amendment, and the Court's denial of the first attempt
gave Plaintiff's counsel ample notice of the Rule 15(a)
standard to be met. See Doc. 25, at 2.
Plaintiff's counsel, nonetheless, made a second, more
egregious error in the second effort to amend, by misstating
and mis-characterizing Rule 15(a). See Memorandum of
Law in Support of Plaintiff's Second Amended Complaint,
Doc. 29-2 at 2; Doc. 30. However, the Court takes
Plaintiff's counsel at his word when he says, on the
second page of his latest memorandum of law, that regarding
his mistake of law, "there was no intent at
'slight-of-hand' or any attempt to disregard the
rule." Doc. 31-1 at 2 n.1.
not a case like Denny v. Barber, 576 F.2d 465 (2d
Cir. 1978), where the district judge, in dismissing the
initial complaint, put plaintiff on notice as to the defects
of his complaint, and plaintiff sought leave to file a second
amended complaint after a first amended complaint that had
likewise been dismissed. In the case at bar, Plaintiff does,
as discussed infra, state claims meeting the federal
pleading standard, and has made prompt attempts to cure the
defects in his motions. Accordingly, the Court fails to find
any bad faith or dilatory motive on the part of this
Plaintiff in proffering this second amended complaint, and
regards Plaintiff's isolated prior curative failure an
insufficient ground on which to deny the instant motion for
leave to amend.
under ordinary circumstances, leave to amend must be freely
given, denial is proper where the proposed amendment would be
"futile." Foman, 371 U.S. at 182. An
amendment is considered "futile" if the amended
pleading fails to state a claim, or would be subject to a
successful motion to dismiss on some other basis. See,
e.g., Lucente v. Int'l Bus. Machs. Corp.,
310 F.3d 243, 258 (2d Cir. 2002) ("An amendment to a
pleading is futile if the proposed claim could not withstand
a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6)");
Donovan v. Am. Skandia Life Assur. Corp., 217 F.R.D.
325, 325 (S.D.N.Y. 2003) ("Where a proposed amended
complaint cannot itself survive a motion to dismiss, leave to
amend would be futile and may clearly be denied"),
aff'd, 96 F.App'x 779 (2d Cir. 2004),
cert. denied sub nom Hendrickson v. Am. Skandia Life
Assur. Corp., 543 U.S. 1146 (2005); Bentley v.
Greensky Trade Credit, LLC, 156 F.Supp.3d 274, 283 (D.
Conn. 2015), reconsideration denied sub nom.
Bentley v. Tri-State of Branford, LLC, No.
3-cv-141157, 2016 WL 2626805 (D. Conn. May 6, 2016).
therefore appropriate for the Court to consider which, if
any, of the claims alleged in the Second Amended Complaint
would survive a motion to dismiss under Rule 12(b)(6), if
that pleading were to be filed. Because an amended
claim's futility under Rule 15(a) depends upon whether it
would be dismissed under Rule 12(b)(6), we ask of each claim
Plaintiff that alleges in the SAC: Is this a claim upon which
relief can be granted? - that being the touchstone of a
motion to dismiss under Rule 12(b)(6). If a particular count
in the proposed SAC does not state a claim upon which relief
can be granted, the Court will not grant Plaintiff leave to
amend his complaint to include that claim.
the following discussion of futility considers the nine
pleaded counts seriatim for the most part,
particular emphasis will be laid upon the later claims
grouped in the SAC under the caption "Federal
Claims." I do so because the original subject matter
jurisdiction of this federal district court depends upon the
presence of a justiciable federal question under 28 U.S.C.
§ 1331. This would not appear to be a case where subject
matter jurisdiction may be derived from diversity of
citizenship under § 1332. If the proposed SAC were filed,
and it should become apparent that Plaintiff asserted no
viable federal claims, the Court would dismiss the entire
case, the federal claims with prejudice, and the state claims
without prejudice to assertion in a state court, the latter
for the reason that I would decline to exercise supplemental
jurisdiction under 28 U.S.C. § 1367 over the state
claims. If, on the other hand, it should appear that the SAC
contains at least one viable federal claim, I would exercise
supplemental jurisdiction over the state claims. The question
would then become, for Rule 15(a) purposes, whether each
state claim survives Rule 12(b)(6) analysis. There is no
point reaching that later stage unless at least one federal
claim states a claim upon which relief can be granted, and in
consequence cannot be discarded as futile, thereby
establishing this Court's subject matter jurisdiction.
Manifestly Futile Claims
detailed analysis of the futility of each count is not
necessary. It is immediately apparent that the Eighth Count
of the SAC does not and cannot state a claim.
count is captioned "Violation of 42 U.S.C. §
1983." Plaintiff's theory, as alleged in ¶ 69,
is that the Bank's conduct in closing Plaintiff's
accounts denied to Plaintiff "known constitutional
rights to be free of discrimination and to equal treatment as
do white people and those not of Nigerian descent, all in
violation of 42 U.S.C. § 1983." There is no such
thing as a "violation of 42 U.S.C. § 1983."
Section 1983 provides a civil claim for damages against any
person who, acting under color of state law, deprives another
of a right, privilege or immunity secured by the Constitution
or the laws of the United States. Section 1983 itself creates
no substantive rights; it provides only a procedure for
redress for the deprivation of rights established elsewhere.
Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993)
(citations omitted). "Section 1983 is not itself a
source of substantive rights, but merely provides a method
for vindicating federal rights elsewhere conferred."
Albright v. Oliver, 510 U.S. 266, 271 (1994)
(internal quotation marks omitted) (quoting Baker v.
McCollan, 443 U.S. 137, 144 n.3 (1979). In the case at
bar, the federal rights Plaintiff invokes are conferred by 42
U.S.C. §§ 1981 and 1982, pleaded in the Sixth and
Seventh Counts respectively. No independent or separate claim
lies under § 1983.
event, Plaintiff could not utilize § 1983 as a vehicle
for his claims against Liberty Bank because that section
furnishes a means of redress only with respect to the conduct
of those who act "under color of state law" -
individuals who are, in case law vernacular, "state
actors." Absent that element, no claim lies under §
1983. See, e.g., Hollander v. Copacabana Nightclub,
624 F.3d 30, 33 (2d Cir. 2010) ("To assert a Section
1983 claim, Den Hollander must plead that the Nightclubs'
conduct was done under the color of state law. State action
occurs where the challenged action is fairly attributable to
the state" (citations and internal quotation marks
omitted)). The closing of Plaintiff's accounts was the
conduct of Liberty Bank, a private entity. Plaintiff does not
allege, and no discernible basis exits for believing, that
the Bank's action was fairly attributable to the State of
these deficiencies, the Eighth Count in the SAC could not
survive a motion to dismiss it. Consequently, the Court will
not grant leave to include that count in an amended complaint
Comparable deficiencies exist with respect to the Tenth Count
of the SAC, in which Plaintiff alleges at ¶ 63 that
Defendant Liberty Bank "is a member of the OCC of the
U.S. Department of the Treasury, and as such is required to
give fair access and equal treatment to its customers and to
comply with all consumer laws and regulations."
Plaintiff's theory is that Liberty Bank violated the OCC.
claim was included in an earlier version of the complaint,
which the Bank moved to dismiss (Doc. 20). The Bank's
brief in support of that motion (Doc. 21), at 7-8, argued
with respect to the OCC claim that "the Office of the
Comptroller of Currency ('OCC') is a [U.S.]
government agency"; Plaintiff had cited to no authority
enabling the Court to substantiate the claim or grant any
relief to Plaintiff; and "Liberty is a state-chartered
mutual bank, not regulated by the OCC, and therefore no
cognizable legal theory exists in respect to this Tenth
Claim." There have been subsequent exchanges of briefs
of counsel, but Plaintiff has never quarreled with
Defendant's dismissive arguments concerning the OCC
claim, or cited any authority in support of that claim. The
OCC claim may fairly be regarded as abandoned by Plaintiff.
In any event it has no merit in law, and leave will not be
granted to include the Tenth Count in an amended complaint.
Standard of Review on Futility of Claims
noted supra, leave to amend a pleading under Rule
15(a) will be denied if a claim sought to be added by
amendment would be dismissed under Fed.R.Civ.P. 12(b)(6).
12(b)(6) allows defendants to assert by motion the defense of
a plaintiff's "failure to state a claim upon which
relief can be granted." In analyzing whether a plaintiff
states a claim upon which relief can be granted, a court must
accept as true all facts alleged in the complaint. Hill
v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (citing
Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d
Cir. 2002)). Claims set forth by the plaintiff in the
complaint must be facially plausible. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). A claim has
"facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678
reviewing court need not credit "legal conclusions"
or "[t]hreadbare recitals of the elements of a cause of
action supported by mere conclusory statements."
Id. To survive a motion to dismiss, a complaint
"requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do." Twombly, 550 U.S. at 555.
Instead, plaintiffs must allege "enough facts to state a
claim to relief that is plausible on its face, " which
is to say, facts sufficient to "nudge their claims
across the line from conceivable to plausible."
Id. at 570.
case at bar, a claim Plaintiff asserts in his proposed Second
Amended Complaint that does not meet those standards would
not survive a motion to dismiss the claim under Rule
12(b)(6). Accordingly, to that extent the Court will not
allow the amendment, since to do so would be futile.
considering the Plaintiff's claims seriatim, it
is necessary to add some qualifying comments with respect to
the pleading and proof of two of those claims: the Sixth
Count and the Seventh Count. In the Sixth Count, Plaintiff
alleges that Liberty Bank's conduct in closing his
accounts violated 42 U.S.C. § 1981. The Seventh Count
alleges that the same conduct violated 42 U.S.C. § 1982.
§§ 1981 and 1982 are codifications of what, in
their original forms, were parts of the Civil Rights Act of
1866, enacted by Congress in the immediate aftermath of the
Civil War to prohibit racial discrimination in specified
areas of human endeavor. This historical background is
recited by the Supreme Court in Runyon v.
Fairfax-Brewster School, Inc., 427 U.S. 160, 167-74
Civil Rights Act of 1964 included, in Title VII, prohibitions
against discrimination in various aspects of employment.
Title VII has been a fertile ground of federal litigation.
Beginning with McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973), and in a line of subsequent cases,
Supreme Court fashioned a protocol for the pleading and proof
of a Title VII employment discrimination claim. This is the
now familiar McDonnell Douglas framework which the
Second Circuit summarized recently in Littlejohn v. City
of New York, 795 F.3d 297 (2d Cir. 2015). An employment
discrimination plaintiff establishes a prima facie case if
the plaintiff can show that he or she is a member of a
protected class; was qualified for employment in the position
in question; suffered an adverse employment action; and there
is "some minimal evidence suggesting an inference that
the employer acted with discriminatory motivation."
Littlejohn, 795 F.3d at 307 (citing Supreme Court
decisions). Those showings, if made, raise a temporary
presumption of discriminatory motivation, which shifts the
burden of production to the employer to come forward with a
non-invidious justification for the adverse employment
action. If the employer presents evidence for that
justification, "joining issue on plaintiff's claim
of discriminatory motivation, " the presumption
vanishes, and the burden shifts back to plaintiff, who must
demonstrate that the employer's proffered reason was not
the true, or in any event the sole, reason for the employment
decision, a burden that "merges with plaintiff's
ultimate burden of showing that the defendant intentionally
discriminated against her." Id. at 307-08.
McDonnell Douglas proof and burden-shifting
framework is invariably applied in Title VII employment
discrimination cases, the land of its birth, where
McDonnell Douglas procedures in the district courts
must be regarded as compulsory. However, the Second Circuit
has made use of the framework in other contexts as well. In
Huntley v. Community School Board of Brooklyn, New York
School District No. 14, 543 F.2d 979 (2d Cir. 1976), an
African American school principal challenged his termination
as racially motivated, in violation of §§ 1981 and
1983, but did not assert a claim under Title VII. The Second
Circuit applied McDonnell Douglas, reasoning that
"[a]lthough McDonnell dealt with questions of
the order and nature of proof in actions under the Civil
Rights Act of 1964, by analogy the principles there
enunciated are applicable here." 543 F.2d at 983 n.6
(citation omitted). In Sorlucco v. New York City Police
Department, 888 F.2d 4 (2d Cir. 1989), the court of
appeals said: "By analogy, the [McDonnell
Douglas] analysis applies to claims under section
1983." 888 F.2d at 7. In Lizardo v. Denny's,
Inc., 270 F.3d 94, 103 (2d Cir. 2001), the Second
Circuit applied McDonnell Douglas burden-shifting to
a § 1981 complaint brought by African American and Asian
American restaurant patrons. In Back v. Hastings on
Hudson Union Free School District, 365 F.3d 107, 123 (2d
Cir. 2004), the court applied McDonnell Douglas in a
§ 1983 employment discrimination case where there was no
Title VII claim. In Ruiz v. City of Rockland, 609
F.3d 486, 491 (2d Cir. 2010), the Second Circuit considered
Title VII, § 1981, and §1983 claims together, and
applied the McDonnell Douglas framework to all of
Littlejohn, 795 F.3d 297, an employment case where
the plaintiff employee coupled a Title VII claim with claims
under 42 U.S.C. §§ 1981 and 1983, the Second
Circuit said, at 312: "Littlejohn's disparate
treatment claim under Title VII, § 1981, and § 1983
is subject to the burden-shifting evidentiary framework set
forth in McDonnell Douglas." Judge Droney's
opinion cited Ruiz for that inclusive proposition.
instructive is the Second Circuit's most recent decision
on the point: Doe v. Columbia University, 831 F.3d
46 (2d Cir. 2016). The plaintiff in Doe, a male
student at the defendant university, claimed that the
university acted with sex bias in investigating and
suspending him for alleged sexual assault, in violation of
Title IX of the Education Amendments of 1972, 20 U.S.C.
§ 1681 et seq. No employment claims were
involved. The district court dismissed Doe's action under
Rule 12(b)(6). The Second Circuit reversed. Judge Leval's
opinion poses the question as:
whether the burden-shifting framework established by the
McDonnell Douglas line of cases for claims of
discrimination on account of race, religion, or national
origin under Title VII, and the associated pleading burden we
articulated in Littlejohn, apply also to Title IX
claims alleging discrimination on account of sex in education
programs or activities that receive federal support.
831 F.3d at 55. The Second Circuit answered that question in
the affirmative. "These claims, " it reasoned,
"have so much in common that, at least on certain sorts
of facts, that rules the Supreme Court established for Title
VII litigation appear to apply also to such similar claims of
sex discrimination under Title IX." Id.
Doe, the Second Circuit said that a pleading
"is sufficient with respect to the element of
discriminatory intent" if it "pleads specific facts
that support a minimal plausible inference of such
discrimination." Id. at 56. The Doe
opinion's use of the adjective "plausible"
reflects the clear import of reading Littlejohn and
Doe together: on a motion to dismiss under Rule
12(b)(6), the criteria articulated in Iqbal apply to
discrimination claims, which must also be evaluated in
accordance with the McDonnell Douglas framework. The
Second Circuit observed in Doe that "In
Littlejohn, we clarified that Iqbal applies
to employment-discrimination complaints brought under Title
VII, " with the practical effect that,
at the 12(b)(6) stage of a Title VII suit, allegation of
facts supporting a minimal plausible inference of
discriminatory intent suffices as to this element of the
claim because this entitles the plaintiff to the temporary
presumption of McDonnell Douglas until the defendant