# DiResta v. Biz2Credit Inc.

> District Court, S.D. New York · December 20, 2021

URL: https://www.frixlaw.com/law-library/cases/10337446

## Case

- **Court:** District Court, S.D. New York
- **Decided:** December 20, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10337446

## How later opinions describe it (automated extraction)

- discussing how “the elements of a prima facie case may be used as a prism to shed light upon the plausibility of the claim” (quoting Rodriguez-Reyes v. Molina-Rodriguez, 711 F.3d 49, 54 (1st Cir. 2013)
- holding that although a plaintiff need not plead a prima facie case, she must set forth enough factual allegations to plausibly support each of the elements of her claim
- stating “the qualification necessary to shift the burden to defendant for an explanation of the adverse job action is minimal”

## Opinion text

USDC SDNY
DOCUMENT
UNITED STATES DISTRICT COURT ELECTRONICALLY FILED
SOUTHERN DISTRICT OF NEW YORK DOC #:
Sonnac nnn ence nnnnns IK DATE FILED:_12/20/2021
TIMOTHY DIRESTA, :
Plaintiff, :
: 21-cv-208 (LJL)
-\V- :
: OPINION AND ORDER
BIZ2CREDIT INC. and SHUJAH A. AWAN, :
Defendants. :

wn ee KX
LEWIS J. LIMAN, United States District Judge:
Defendants Biz2Credit Inc. (“Biz2Credit”) and Shujah A. Awan (“Awan” and
collectively with Biz2Credit, “Defendants”) move, pursuant to Federal Rule of Civil Procedure
12(b)(6), to dismiss the amended complaint of plaintiff Timothy DiResta (“DiResta” or
“Plaintiff’) for failure to state a claim upon which relief can be granted. Dkt. No. 39. Plaintiff
moves for entry of an order, pursuant to Federal Rule of Civil Procedure 11, for sanctions against
Defendants and their counsel. Dkt. No. 44.
For the following reasons, Defendants’ motion to dismiss is granted. Plaintiff's motion
for sanctions is denied.
BACKGROUND
For purposes of this motion, the Court accepts as true the allegations of DiResta’s
amended complaint. Dkt. No. 35 (“Amended Complaint” or “Am. Compl.”).
Plaintiff DiResta was born in 1969. Jd. at 4. The events at issue in this case took place
on or about July 3, 2019 and thereafter. /d. At the time, DiResta was “weeks shy of 50 years of
age.” Id.

DiResta interviewed for an associate corporate counsel position at Biz2Credit. Id. at 5.
Awan, the legal hiring coordinator and deputy general counsel, conducted the interview, which
lasted about an hour. Id. Right after, DiResta met with a hiring manager who told him that he
“did very well” and told him that Awan had said that “[h]e’s everything that [he] wanted” for the
company. Id. DiResta and the hiring manager then discussed a compensation package. Id.

“[W]hen other company staff were consulted that day or after they realized [DiResta’s] age from
the ‘25 years of experience’ noted at the beginning of [his] resume,” the decision was made that
DiResta “was not young enough for the position because, among other reasons, [he] would be
senior in age to the legal hiring coordinator/deputy general counsel (who was 42) and would
have to report to him, and they wanted someone younger, etc.” Id.
The person eventually hired for the position, who interviewed about a month before
DiResta, was 31 years of age. Id. That individual was not, and still is not, licensed as an
attorney in New York and had no experience with New York law, which Defendants had
advertised as being sought. Id. Biz2Credit is still advertising for the position filled by this

individual. Id.
DiResta filed a charge with the Equal Employment Opportunity Commission (“EEOC”)
on January 16, 2020. Id. Before the EEOC, Biz2Credit claimed that the younger hire was the
“best fit for the role,” but DiResta alleges that this is a pretext. Id. The EEOC issued a Notice of
Right to Sue letter, which DiResta received on October 17, 2020. Id.
PROCEDURAL HISTORY
Plaintiff, proceeding pro se, filed the original complaint in this action in October 20, 2020
in the U.S. District Court for the Eastern District of New York.1 Dkt. No. 1. The case was

1 Because Plaintiff is an attorney, he is not entitled to special solicitude as a pro se litigant. See
Tracy v. Freshwater, 623 F.3d 90, 101–02 (2d Cir. 2010).
transferred to the U.S. District Court for the Southern District of New York in January 2021.
Dkt. No. 15. Plaintiff amended his complaint in February 2021. Dkt. No. 35. The Amended
Complaint brings a claim under the Age Discrimination in Employment Act of 1967 (“ADEA”),
29 U.S.C. §§ 621–634. Id. at 3. Plaintiff alleges discrimination on the basis of age for
Defendants’ failure to hire him. Id. at 4. Plaintiff seeks compensatory damages against

Biz2Credit, such as lost wages at the company, and any other damages or relief allowed under
the ADEA, which are estimated to be at least $150,000.2 Id. at 6. Plaintiff also seeks damages
against both Biz2Credit and Awan under New York’s Human Rights Law (“NYSHRL”), N.Y.
Exec. Law § 296.3-a(a).
Defendants moved to dismiss the Amended Complaint in April 2021. Dkt. No. 39.
Plaintiff filed his opposition to the motion, Dkt. No. 40, and Defendants filed a reply
memorandum of law in support of their motion, Dkt. No. 43.3
Plaintiff moved for sanctions in June 2021, arguing that Defendants’ motion to dismiss
was frivolous. Dkt. Nos. 44, 44-1. Defendants filed a memorandum of law in opposition to the

motion for sanctions, Dkt. No. 45, and Plaintiff replied, Dkt. No. 46.
LEGAL STANDARD
To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a
complaint must include “sufficient factual matter, accepted as true, to ‘state a claim to relief that

2 The Court interprets the Amended Complaint as bringing an ADEA claim solely against
Biz2Credit. But even if it brings an ADEA claim against both Biz2Credit and Awan, the claim
against Awan would be dismissed because individuals may not be held liable under the ADEA.
See Karupaiyan v. CVS Health Corp., 2021 WL 4341132, at *8 (S.D.N.Y. Sept. 23, 2021) (citing
Cherry v. Toussaint, 50 F. App’x 476, 477 (2d Cir. 2002) (summary order), regarding the
ADEA); Wang v. Palmisano, 157 F. Supp. 3d 306, 338 (S.D.N.Y. 2016) (“[C]ourts in the Second
Circuit have consistently held that the ADEA does not impose liability on individuals.” (citing
cases)).
3 In his opposition papers, Plaintiff asks the Court to review Defendants’ motion to dismiss his
original complaint and his opposition to that motion; the Court has done so.
is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 554, 570 (2007)). A complaint must offer more than “labels and
conclusions,” “a formulaic recitation of the elements of a cause of action,” or “naked
assertion[s]” devoid of “further factual enhancement” in order to survive dismissal. Twombly,
550 U.S. at 555, 557. The ultimate question is whether “[a] claim has facial plausibility, [i.e.,]

the plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “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.” Id. at 679. Put another
way, the plausibility requirement “calls for enough fact to raise a reasonable expectation that
discovery will reveal evidence [supporting the claim].” Twombly, 550 U.S. at 556; see also
Matrixx Initiatives, Inc. v. Siracusano, 563 U.S. 27, 46 (2011).
DISCUSSION
The Court first addresses Defendants’ motion to dismiss and then turns to Plaintiff’s
motion for sanctions.

I. Defendants’ Motion to Dismiss
Defendants argue that the Amended Complaint fails to state a claim for age
discrimination under either the ADEA or the NYSHRL.
A. Plaintiff’s ADEA Claim
Defendants argue that the Amended Complaint fails to plead an ADEA claim because it
does not allege facts to support that DiResta was qualified for the position of associate corporate
counsel, that there were circumstances giving rise to an inference of discrimination, or that
DiResta’s age was the but-for cause of the decision not to hire him. Dkt. No. 39-1 at 7–11.
The ADEA provides that “[i]t shall be unlawful for an employer . . . to fail or refuse to
hire . . . any individual . . . because of such individual’s age.” 29 U.S.C. § 623(a), (a)(1). This
protection extends to individuals who are over the age of 40. Id. § 631(a).
The Second Circuit analyzes ADEA claims under the burden-shifting framework set forth
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Lively v. WAFRA Inv. Advisory

Grp., Inc., 6 F.4th 293, 303 n.3 (2d Cir. 2021). “Under McDonnell Douglas, the plaintiff bears
the initial burden of establishing a prima facie case of age discrimination by showing ‘(1) that
[he] was within the protected age group, (2) that [he] was qualified for the position, (3) that [he]
experienced adverse employment action, and (4) that the action occurred under circumstances
giving rise to an inference of discrimination.’” Id. (quoting Bucalo v. Shelter Island Union Free
Sch. Dist., 691 F.3d 119, 129 (2d Cir. 2012)); see also Bernstein v. New York City Dep’t of
Educ., 2020 WL 6564809, at *4 (S.D.N.Y. Nov. 9, 2020) (same). “Once a prima facie case is
established, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory
reason for the adverse action, which the plaintiff in turn may rebut by showing that the

employer’s determination was in fact the result of . . . discrimination.” Lively, 6 F.4th at 303 n.3
(internal quotation marks and citations omitted).
“To survive a Rule 12(b)(6) motion to dismiss, a plaintiff asserting an employment
discrimination complaint under the ADEA must plausibly allege that adverse action was taken
against her by her employer, and that her age was the ‘but-for’ cause of the adverse action,” and
a plaintiff “must supply sufficient factual material, and not just legal conclusions to push the
misconduct alleged in the pleading beyond the realm of the ‘conceivable’ to the ‘plausible.’”
Marcus v. Leviton Mfg. Co., Inc., 661 F. App’x 29, 31–32 (2d Cir. 2016) (summary order) (citing
Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 84, 87 (2d Cir. 2015)); see also Downey
v. Adloox Inc., 238 F. Supp. 3d 514, 519 (S.D.N.Y. 2017) (“To survive a motion to dismiss under
Rule 12(b)(6) of the Federal Rules of Civil Procedure, ‘a plaintiff asserting an employment
discrimination complaint under the ADEA must plausibly allege that adverse action was taken
against her by her employer, and that her age was the ‘but-for’ cause of the adverse action.’”
(quoting Marcus, 661 F. App’x at 31–32)).

“While a discrimination complaint need not allege facts establishing each element of a
prima facie case of discrimination to survive a motion to dismiss, it must at a minimum assert
nonconclusory factual matter sufficient to nudge its claims across the line from conceivable to
plausible to proceed.” E.E.O.C. v. Port Auth. of New York & New Jersey, 768 F.3d 247, 254 (2d
Cir. 2014) (cleaned up); see also Mandala v. NTT Data, Inc., 975 F.3d 202, 209 (2d Cir. 2020)
(holding that although a plaintiff need not plead a prima facie case, she must set forth enough
factual allegations to plausibly support each of the elements of her claim); McCormack v. IBM,
145 F. Supp. 3d 258, 266 n.2 (S.D.N.Y. 2015) (“A plaintiff pursuing an ADEA claim need not
plead a prima facie case under McDonnell Douglas in order to survive a motion to dismiss.”

(citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002))); Ndremizara v. Swiss Re Am.
Holding Corp., 93 F. Supp. 3d 301, 312 (S.D.N.Y. 2015) (same) (collecting cases). Instead,
“courts in this District have ‘held that elements of a prima facie case provide an outline of what
is necessary to render a plaintiff’s employment discrimination claims for relief plausible.’”
Mesias v. Cravath, Swaine & Moore LLP, 106 F. Supp. 3d 431, 436 (S.D.N.Y. 2015) (quoting
Johnson v. Morrison & Foerster LLP, 2015 WL 845723, at *3 (S.D.N.Y. Feb. 26, 2015)); see
also, e.g., Littlejohn v. City of New York, 795 F.3d 297, 311 n.9 (2d Cir. 2015) (discussing how
“the elements of a prima facie case may be used as a prism to shed light upon the plausibility of
the claim” (quoting Rodriguez-Reyes v. Molina-Rodriguez, 711 F.3d 49, 54 (1st Cir. 2013));
Alexander v. New York City Dep’t of Educ., 2020 WL 7027509, at *4 (S.D.N.Y. Nov. 30, 2020)
(“Indeed, the elements of a prima facie case under McDonnell Douglas need not be established
at the pleading stage, though these elements nevertheless provide an outline of what is necessary
to render a plaintiff’s employment discrimination claims for relief plausible.” (internal quotation
marks omitted)); Pustilnik v. Battery Park City Auth., 2019 WL 6498711, at *4 (S.D.N.Y. Dec.

3, 2019) (“Although the plaintiff need not make out a prima facie case at the motion to dismiss
stage, the prima facie elements nonetheless provide a guide-post for the adjudication of a motion
to dismiss.” (internal quotation marks omitted)); Shands v. Lakeland Cent. Sch. Dist., 2017 WL
1194699, at *5 (S.D.N.Y. Mar. 30, 2017) (“Although a plaintiff need not plead facts to establish
a prima facie case of employment discrimination in order to survive a motion to dismiss, courts
nevertheless consider the elements of a prima facie case in determining whether there is
sufficient factual matter in the complaint which, if true, gives the defendant fair notice of the
plaintiff’s employment discrimination claims and the grounds on which such claims rest.”
(cleaned up)). In particular, “[t]he facts required by Iqbal to be alleged in the complaint need not

give plausible support to the ultimate question of whether the adverse employment action was
attributable to discrimination” but “need only give plausible support to a minimal inference of
discriminatory motivation.” Littlejohn, 795 F.3d at 311.
Further, “to establish age discrimination under the ADEA, ‘a plaintiff must prove that age
was the “but-for” cause of the employer’s adverse decision.’” Lively, 6 F.4th at 303 (quoting
Gross v. FBL Fin. Servs., 557 U.S. 167, 176 (2009)). “The Supreme Court has clarified recently
that the but-for causation standard for discrimination claims applies not only at trial but at the
pleading stage as well.” Id. (citing Comcast Corp. v. Nat’l Ass’n of African Am.-Owned Media,
140 S. Ct. 1009, 1014 (2020)). Thus, to defeat a motion to dismiss, an ADEA plaintiff must
plausibly allege that he would have been hired but for his age. See id.
Here, in their memorandum in support of their motion to dismiss, Defendants do not
contest that DiResta was within the protected age group or that he experienced an adverse
employment action. Dkt. No. 39-1. Defendants instead claim that DiResta did not sufficiently

plead that he was qualified for the position, that the circumstances gave rise to an inference of
discrimination, and that his age was the but-for cause of the decision not to hire him. Id.
1. The Amended Complaint Does Not Plead That DiResta Was Qualified
for the Position
Defendants argue that the Amended Complaint does not contain factual allegations
demonstrating that DiResta was qualified for the position of associate corporate counsel. Dkt.
No. 39-1 at 7. DiResta responds that he alleged that he was qualified for the position when he
alleged that a hiring manager told him that Awan, the legal hiring coordinator with whom
DiResta had interviewed, had said that DiResta was everything he wanted for the company. Dkt.
No. 40 at 15.
“To satisfy the second element required to plead a discrimination claim under the ADEA,
a ‘plaintiff must show only that he possesses the basic skills necessary for performance of [the]
job.’” Zoulas v. New York City Dep’t of Educ., 400 F. Supp. 3d 25, 53 (S.D.N.Y. 2019)
(alteration in original) (quoting Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 92 (2d
Cir. 2001)); cf. Slattery, 248 F.3d at 92 (stating “the qualification necessary to shift the burden to

defendant for an explanation of the adverse job action is minimal”). Aside from providing the
name of the position at issue and stating that DiResta’s resume reflected he had “25 years of
experience,” the Amended Complaint does not provide any information about what the position
of associate corporate counsel required or about DiResta’s skills that made him qualified to
perform that job. Though DiResta highlights that the hiring manager commented that Awan had
said that DiResta was everything he wanted for the company, that allegation alone does not
reveal whether DiResta had the basic skills necessary to perform the job of associate corporate
counsel for which he was being interviewed as opposed to, for example, some other role at the
company. The Amended Complaint does not state what kind of experience DiResta had and

provides no additional allegations regarding the relevance of his years of experience to the
position of associate corporate counsel. It is true that “especially where discharge is at issue and
the employer has already hired the employee, the inference of minimal qualification is not
difficult to draw,” Slattery, 248 F.3d at 92, but this is not a case involving discriminatory
discharge after being hired. Rather DiResta alleges discriminatory failure to hire. Accordingly,
the Amended Complaint does not allege sufficient facts to show that DiResta was qualified for
the position of associate corporate counsel.
2. The Amended Complaint Fails to Plead Facts Supporting an
Inference of Discrimination or That DiResta’s Age Was the But-For
Cause of His Failure to Be Hired
Defendants argue that the Amended Complaint fails to set forth facts supporting an
inference of discrimination. Dkt. No. 39-1 at 8–10. Defendants acknowledge that the Amended
Complaint alleges that Biz2Credit ultimately hired a 31-year-old attorney who was not admitted
to practice law in New York, but they argue that this is insufficient to support an inference of
discrimination. Id. at 8–9. They argue that hiring a person who is not in a class protected by the
ADEA is insufficient alone to establish an inference of discrimination. Id. at 9. They also
contend that DiResta “never alleges that the candidate ultimately hired for the position was
unqualified or even less qualified” than DiResta and that “the attorney ultimately hired was not
admitted to practice in the State of New York is meaningless without allegations to the effect that
a New York License was a factor critical or even preferable to Biz2Credit in making its hiring
decision.” Id. at 9–10. Defendants also point out that there are no allegations that disparaging
comments were made to DiResta or to others regarding DiResta’s age. Id. at 9.
Additionally, Defendants contend that the Amended Complaint fails to state a claim
because it fails to allege facts to demonstrate that DiResta’s age was the but-for cause of
Biz2Credit’s decision not to hire him. Dkt. No. 39-1 at 10–11. Defendants characterize the

allegations regarding the decision not to hire DiResta (e.g., that Biz2Credit staff realized
DiResta’s age from the experience noted on his resume; that they wanted someone younger than
the deputy general counsel to report to him; and that it was decided that DiResta was not young
enough for the position) as merely “speculation” as to what Biz2Credit representatives were
thinking and as unsupported by facts. Id.
DiResta responds that he alleged that the younger hire was not qualified because, in
addition to that person not being licensed as an attorney in New York, that person had no
experience with New York law as Biz2Credit had advertised it sought. Dkt. No. 40 at 15.
DiResta also points out that the company continued to advertise the position even after hiring the

other individual. Id. DiResta further argues that a complaint does not need to allege but-for
causation and that, even so, he has alleged but-for causation. Id. at 15–16.
The Amended Complaint does not allege facts that either provide “minimal support for
the proposition that the employer was motivated by discriminatory intent,” Littlejohn, 795 F.3d
at 311, or that DiResta’s age was the but-for cause of Defendants’ decision not to hire him, see
Lively, 6 F.4th at 303. Here, DiResta plausibly alleges that Defendants hired a person
significantly younger than him as he was weeks shy of 50 while the individual hired was 31
years old. However, allegations that someone younger took the place of the plaintiff, alone, are
not sufficient to survive a motion to dismiss. Cf. Ndremizara, 93 F. Supp. 3d at 316–17
(collecting ADEA cases in which allegations that younger individuals replaced plaintiff are
insufficient to survive a motion to dismiss); see also James v. Borough of Manhattan Community
College, 2021 WL 5567848, at *7 (S.D.N.Y. Nov. 29, 2021).
Allegations that the younger individual hired was less qualified than DiResta might help
“nudge [his] claims across the line from conceivable to plausible.” E.E.O.C. v. Port Auth. of

New York & New Jersey, 768 F.3d at 254 (cleaned up). The Amended Complaint alleges that the
younger individual was not and still is not licensed as an attorney in New York and had no
experience with New York law, a qualification that Defendants allegedly sought. Though these
allegations may speak to the younger individual’s qualifications, the Amended Complaint
nowhere alleges that DiResta was licensed in New York or had any experience with New York
law.
DiResta’s allegations regarding Defendants’ desire to have someone younger to report to
Awan does not serve to nudge the complaint across the line to the plausible. Although he states
that others at the company decided that he was not young enough for the position, he does not

allege that he heard that comment or provide any other basis for that allegation, save for the
speculation that because he was not hired and a younger person was hired, the decision must
have been made because he was not young enough. “A [p]laintiff’s speculations, generalities,
and gut feelings, however genuine, when they are not supported by specific facts, do not allow
for an inference of discrimination to be drawn.” Small v. Allstate Ins. Co., 396 F. Supp. 2d 364,
371 (S.D.N.Y. 2005) (alteration omitted) (quoting Little v. State of N.Y., 1998 WL 306545, at *6
(E.D.N.Y. June 8, 1998)). Without any allegation of how DiResta knows or why he believes that
Defendants chose not to hire him because he was too old, the Amended Complaint fails to
provide that minimal support for an inference of discriminatory intent necessary for this case to
proceed to discovery. It also cannot serve to show that DiResta’s age was plausibly the but-for
cause of the decision not to hire him.
Accordingly, DiResta’s ADEA claim is dismissed without prejudice.
B. Plaintiff’s NYSHRL Claim
DiResta also brings a claim for age discrimination under the NYSHRL, which provides

that “[i]t shall be an unlawful discriminatory practice: (a) For an employer . . . to refuse to hire or
employ . . . an individual eighteen years of age or older . . . because of such individual’s age.”
N.Y. Exec. Law § 296.3-a(a).
“A district court ‘may decline to exercise supplemental jurisdiction’ if it ‘has dismissed
all claims over which it has original jurisdiction.’” Kolari v. N.Y.-Presbyterian Hosp., 455 F.3d
118, 122 (2d Cir. 2006) (quoting 28 U.S.C. § 1367(c)(3)). “Once a district court’s discretion is
triggered under § 1367(c)(3), it balances the traditional ‘values of judicial economy,
convenience, fairness, and comity,’ in deciding whether to exercise jurisdiction.” Id. (quoting
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)). “In weighing these factors, the
district court is aided by the Supreme Court’s additional guidance in Cohill that ‘in the usual case

in which all federal-law claims are eliminated before trial, the balance of factors . . . will point
toward declining to exercise jurisdiction over the remaining state-law claims.” Id. (quoting
Cohill, 484 U.S. at 350 n.7).
Having dismissed DiResta’s ADEA claim for failure to state a claim under Federal Rule
of Civil Procedure 12(b)(6), the Court declines to exercise supplemental jurisdiction over
DiResta’s state-law claim. DiResta’s claim for age discrimination under the NYSHRL is
therefore dismissed without prejudice.
C. Leave to Replead
Though DiResta has not requested leave to amend, Federal Rule of Civil Procedure
15(a)(2) provides that “a party may amend its pleading only with the opposing party’s written
consent or the court’s leave” and that “[t]he court should freely give leave when justice so
requires.” Fed. R. Civ. P. 15(a)(2). “[A] district court has discretion to deny leave for good

reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party,”
McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007), and “[t]he decision to
grant leave to amend is within the sound discretion of the trial court,” Bay Harbour Mgmt. LLC
v. Carothers, 474 F. Supp. 2d 501, 502 (S.D.N.Y. 2007) (citation omitted). DiResta suggests in
his papers that he felt constrained by the space provided in the standardized pro se complaint
form for employment discrimination claims. See, e.g., Dkt. No. 40 at 10 (“. . . I had to edit the
pro se form to add more space to fit my specific factual allegations.”). The Court also cannot say
it would be futile for DiResta to attempt to amend his complaint. The Court thus will permit
DiResta an opportunity to replead to address the deficiencies discussed in this opinion. See
Porat v. Lincoln Towers Cmty. Ass’n, 464 F.3d 274, 276 (2d Cir. 2006) (discussing how the

Second Circuit “strongly favors liberal grant of an opportunity to replead after dismissal of a
complaint under Rule 12(b)(6)”). Upon repleading, DiResta need not use the standardized pro se
complaint form in presenting his allegations.
II. Plaintiff’s Motion for Sanctions
Plaintiff moves for sanctions against “Defendants and/or their Counsel for making a
frivolous dismissal motion” in violation of Federal Rule of Civil Procedure 11(b)(2) and
11(b)(1). Dkt. No. 44. Plaintiff contends that Defendants’ argument that the McDonnell
Douglas prima facie factors may be used as a guide or outline for pleading is “so clearly contrary
to established law” that it “is frivolous.” Dkt. No. 44-1 ¶ 3. Plaintiff further argues that
Defendants’ motion to dismiss “cause[d] unnecessary delay.” Id. ¶ 5 (alteration in original).
Federal Rule of Civil Procedure 11(b)(2) requires that when an attorney presents to the
Court “a pleading, written motion, or other paper,” the attorney certifies to the best of his or her
knowledge “formed after an inquiry reasonable under the circumstances” that “the claims,

defenses, and other legal contentions are warranted by existing law or by a nonfrivolous
argument for extending, modifying, or reversing existing law or for establishing new law.” Fed.
R. Civ. P. 11(b)(2). “[T]o constitute a frivolous legal position for purposes of Rule 11 sanction,
it must be clear under existing precedents that there is no chance of success and no reasonable
argument to extend, modify or reverse the law as it stands.” Mareno v. Rowe, 910 F.2d 1043,
1047 (2d Cir. 1990). Contrary to Plaintiff’s characterization of Defendants’ legal position as
frivolous, the Court has concluded that it persuasively demonstrated why Plaintiff’s current
complaint fails to state a claim for relief. Thus, sanctions are not warranted under Rule 11(b)(2).
Sanctions are similarly not justified under Rule 11(b)(1), which provides that attorney must

certify that a motion “is not being presented for any improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation.” Fed. R. Civ. P. 11(b)(1). As
Defendants succeed in their motion to dismiss, the motion did not cause unnecessary delay.
Accordingly, Plaintiff’s motion for sanctions is denied.
CONCLUSION
For the foregoing reasons, the motion to dismiss the Amended Complaint is GRANTED,
and the Amended Complaint is dismissed without prejudice. If amended pleadings are not filed
on the docket within thirty (30) days of the date of this opinion, the case will be closed.
The motion for sanctions is DENIED.
The Clerk of Court is respectfully directed to close Dkt. Nos. 39 and 44.
SO ORDERED.
etl ME
Dated: December 20, 2021
New York, New York LEWIS J. LIMAN
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10337446. Public record. Not legal advice.