OmniProphis Corp. v. Vanteon Corp.

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

OMNIPROPHIS CORP.,

d/b/a Screened Images, Inc. DECISION AND ORDER

Plaintiff, 6:20-CV-06612 EAW

v.

VANTEON CORP.,

Defendant.

INTRODUCTION

Plaintiff OmniProphis Corp. d/b/a Screened Images, Inc. (“Plaintiff”) commenced

this action on August 17, 2020, arising from disputes related to a contract entered into

between it and defendant Vanteon Corp. (“Defendant”). Currently pending before the

Court is Defendant’s motion to dismiss counts II through V of Plaintiff’s complaint. (Dkt.

10). For the reasons set forth below, the Court grants Defendant’s motion to dismiss.

FACTUAL BACKGROUND

The following facts are taken from Plaintiff’s complaint and, as is required at this

stage of the proceedings, are presumed to be true.

Plaintiff sought to expand its business by producing products designed to prevent

unregulated “burner” cell phones from being used in prisons. (Dkt. 1 at ¶ 1). To that end,

in April of 2018, Plaintiff and Defendant, a provider of hardware and software engineering

services, began working together to develop a highly confidential and proprietary Software

Defined Radio (“SDR”) Program called the Phoenix Project. (Id. at ¶¶ 1, 12). In the course

of the parties’ meetings and conversations, Plaintiff provided Defendant with information

that outlined the engineering, telecommunications, and technical specifications required to

design and produce the Phoenix Project SDR. (Id. at ¶¶ 14-15). Defendant assured

Plaintiff that its employees possessed the necessary education, skill, experience, and

training to satisfy all of Plaintiff’s requirements for the project, and to develop it in a timely

manner. (Id. at ¶¶ 17-18).

As a result of these discussions, the parties entered into a Master Services

Agreement (“MSA”) in April of 2018. (Id. at ¶ 24). The MSA provides that Defendant

will perform the services required under the contract in a “professional, workmanlike

manner, with the degree of skill and care that is required by current, good and sound

professional procedures and practices.” (Id. at ¶ 25). Notwithstanding Defendant’s

assurances, the project fell behind schedule and over budget. (Id. at ¶ 30). In March of

2019, Defendant experienced significant communication pathway problems, arising from

it not having the necessary skills and experience it purported to possess. (Id. at ¶¶ 31-33).

By July 2019, months after the first phase of the project was supposed to have been

completed, only two of the promised twelve channels of uplink and downlink were

complete. (Id. at ¶ 34). On July 15, 2019, data glitch issues occurred for one channel of

uplink as a result of the communication pathway not being functional. (Id. at ¶ 35). At

that point, with the remaining project channels significantly behind schedule and the

project cost for the first phase already surpassing the projects’ entire budget, Plaintiff

offered to reassess the project schedule to create amended milestones and provide for

payment upon completion. (Id. at ¶¶ 36, 41-42, 45). Defendant declined to extend the

project schedule and instead, abandoned the project entirely and refused to refund

Plaintiff’s payments. (Id. at ¶¶ 46-47).

In its complaint, Plaintiff asserts the following causes of action against Defendant:

(1) breach of contract; (2) unjust enrichment; (3) negligent misrepresentation; (4) fraud in

the inducement; (5) violation of New York General Business Law § 349 (“NY GBL”); and

(6) declaratory judgment.

On October 19, 2020, Defendant filed the instant motion to dismiss counts II

through V of the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt.

10). Plaintiff filed its response in opposition to the motion on November 17, 2020 (Dkt.

15), and Defendant its reply on November 24, 2020 (Dkt. 16).

For the reasons set forth below, Defendant’s motion to dismiss is granted.

DISCUSSION

I. Legal Standard

“In considering a motion to dismiss for failure to state a claim pursuant to Rule

12(b)(6), a district court may consider the facts alleged in the complaint, documents

attached to the complaint as exhibits, and documents incorporated by reference in the

complaint.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). A court

should consider the motion by “accepting all factual allegations as true and drawing all

reasonable inferences in favor of the plaintiff.” Trs. of Upstate N.Y. Eng’rs Pension Fund

v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016). To withstand dismissal, a claimant

must set forth “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 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.” Turkmen v. Ashcroft, 589 F.3d 542,

546 (2d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need

detailed factual allegations, a plaintiff’s obligation to provide the grounds of his

entitle[ment] to relief 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 (alteration in

original) (internal quotations and citations omitted). “To state a plausible claim, the

complaint’s ‘[f]actual allegations must be enough to raise a right to relief above the

speculative level.’” Nielsen v. AECOM Tech. Corp., 762 F.3d 214, 218 (2d Cir. 2014)

(alteration in original) (quoting Twombly, 550 U.S. at 555).

II. Defendant’s Motion to Dismiss

As noted, Defendant moves to dismiss Plaintiff’s claims for unjust enrichment

(count II), negligent misrepresentation (count III), fraud in the inducement (count IV), and

violation of NY GBL § 349 (count V) for failure to state a claim upon which relief may be

granted pursuant to Rule 12(b)(6). The Court will address each claim separately.

A. Unjust Enrichment

Plaintiff’s claim for unjust enrichment against Defendant alleges that Defendant

received funds in excess of $300,000 from Plaintiff but did not provide the agreed-upon

products or services, unjustly enriching itself to Plaintiff’s detriment. Defendant contends

that this claim is barred by the existence of an express contract between the parties. On

these facts, the Court agrees.

An unjust enrichment claim under New York law requires that a plaintiff show that

the defendant was enriched at the plaintiff’s expense and “it is against equity and good

conscience to permit [D]efendants[s] to retain what is sought to be recovered.” BanxCorp

v. Costco Wholesale Corp., 723 F. Supp. 2d 596, 618 (S.D.N.Y. 2010) (quoting Am. Med.

& Life Ins. Co. v. Crossummit Enters., Inc., 27 Misc.3d 1210(A), 2010 WL 1493136, at *5

(N.Y. Sup. Ct. 2010)). An unjust enrichment claim “is available ‘only in unusual situations

when, though the defendant has not breached a contract nor committed a recognized tort,

circumstances create an equitable obligation running from the defendant to the plaintiff.’”

Amable v. New Sch., No. 20-CV-3811 (KMK), 2021 WL 3173739, at *12 (S.D.N.Y. July

27, 2021) (quoting Corsello v. Verizon N.Y., Inc., 18 N.Y.3d 777, 790 (2012)). “Under

New York law, ‘[a]n unjust enrichment claim is not available where it simply duplicates,

or replaces, a conventional contract or tort claim.’” Fetet v. Altice USA, Inc., No.

21CV1512 (DLC), 2021 WL 2941917, at *7 (S.D.N.Y. July 12, 2021) (quoting Corsello,

18 N.Y.3d at 790-91); see also Trustpilot Damages LLC v. Trustpilot, Inc., No. 21-CV-432

(JSR), 2021 WL 2667029, at *9 (S.D.N.Y. June 29, 2021) (“However, a plaintiff cannot

maintain an unjust enrichment claim when there is a ‘valid and enforceable contract

between the parties covering the dispute at issue.’” (quoting AHA Sales, Inc. v. Creative

Bath Prods., Inc., 58 A.D.3d 6, 20 (2d Dep’t 2008))).

Here, Plaintiff argues that it may plead its unjust enrichment claim in the alternative

to its breach of contract claim and that the claims are not duplicative because it relies on

events outside the four corners of the agreement to support the claim, including

Defendant’s refusal to renegotiate the deal. But an unjust enrichment claim is appropriately

pled in the alternative where there is a “bona fide dispute over the existence of the

contract.” Flatscher v. Manhattan Sch. of Music, No. 20 CIV. 4496 (KPF), 2021 WL

3077500, at *9 (S.D.N.Y. July 20, 2021) (citation omitted). When there is no dispute

between the parties as to the existence of a valid contractual agreement, as here, an unjust

enrichment claim is appropriately barred. Petrey v. Visions Fed. Credit Union, No.

320CV1147MADML, 2021 WL 2364971, at *6 (N.D.N.Y. June 9, 2021) (“Here, there is

no serious dispute as to whether there was a valid and enforceable contract between the

parties. In such circumstances, quasi-contract claims are routinely dismissed.”).

In this instance, Plaintiff’s unjust enrichment claim is inconsistent with its breach

of contract claim because the parties do not dispute that the MSA is an enforceable contract,

nor does Plaintiff’s unjust enrichment claim contain allegations that reasonably extend

beyond the dispute arising under the contract. As a result, Plaintiff’s unjust enrichment

claim is subject to dismissal. See In re Columbia Tuition Refund Action, No. 20-CV-3208

(JMF), 2021 WL 790638, at *9 (S.D.N.Y. Feb. 26, 2021) (“[C]ourts in this District have

previously dismissed unjust enrichment claims that were indistinguishable from contract

claims pleaded in the alternative in the same complaint, at least where the parties did not

dispute that they shared a contractual relationship.”) (collecting cases); see also NovaFund

Advisors, LLC v. Capitala Grp., LLC, No. 3:18-CV-1023 (MPS), 2021 WL 3568892, at

*14 (D. Conn. Aug. 11, 2021) (“[W]hen an unjust enrichment claim is asserted in the

alternative on the ground that no express contract existed, the unjust enrichment claim

cannot survive if the plaintiff incorporates the breach of contract allegations, allegations

that affirm the existence of a contract, into the unjust enrichment claim.”).

B. Fraudulent Inducement and Negligent Misrepresentation Claims

Defendant argues that Plaintiff’s claims for fraudulent inducement and negligent

misrepresentation rest on factual allegations concerning Defendant’s skill, experience, and

ability to perform under the contract and are duplicative of the claim for breach of contract.

Specifically, the allegations in the complaint underlying these claims include that

Defendant represented to Plaintiff that it: “employed properly educated, trained and

experienced engineers with adequate skill and knowledge sufficient to satisfy all

engineering, telecommunications and other technical requirements” (Dkt. 1 at ¶ 17); “had

sufficient project management experience to adequately budget the time and resources that

would be needed to complete the novel SDR” (id. at ¶ 18); “had the requisite expertise to

use the Xilinx evaluation board” (id. at ¶ 19); had written promotional material that stated

it had a platform that “offers the following key features: Xilinx Zynq Family FPGA for

high performance signal processing” (id. at ¶ 20); “had the experience, technical ability,

unique intellectual property, and team to execute this work, and to complete the Phoenix

Project SDR on time and on budget” (id. at ¶ 21); “had the required expertise and skill to

provide services and products, in order to induce [Plaintiff] to enter into the [MSA] and

pay [Defendant] (id. at ¶ 61); “had the required expertise and skill to provide services and

products necessary to develop the Phoenix Project, including representations that

[Defendant] employed skilled engineers with experience designing telecommunications

solutions of exactly the type necessary to develop and to complete the Phoenix Project”

(id. at ¶ 68); and that it “made such known misrepresentations with the specific intent of

inducing [Plaintiff] into conducting business with [Defendant], including paying

[Defendant] hundreds of thousands of dollars and executing various written agreements,”

(id. at ¶ 73).

To state a claim for fraud under New York law, a plaintiff must allege: “(1) a

misrepresentation or omission of material fact; (2) which the defendant knew to be false;

(3) which the defendant made with the intention of inducing reliance; (4) upon which the

plaintiff reasonably relied; and (5) which caused injury to the plaintiff.” Wynn v. AC

Rochester, 273 F.3d 153, 156 (2d Cir. 2001). Further, pursuant to the Federal Rules of

Civil Procedure, a “party must state with particularity the circumstances constituting [the]

fraud . . .” Fed. R. Civ. P. 9(b). “To satisfy this requirement, a plaintiff should specify the

time, place, speaker, and content of the alleged misrepresentations. In addition, the

complaint should explain how the misrepresentations were fraudulent and plead those

events which give rise to a strong inference that the defendant had an intent to defraud,

knowledge of the falsity, or a reckless disregard for the truth.” Caputo v. Pfizer, Inc., 267

F.3d 181, 191 (2d Cir. 2001) (internal quotations, citation, and alterations omitted).

Rule 9(b) also applies to negligent misrepresentation claims under New York law.

See Aetna Casualty & Surety Co. v. Aniero Concrete Co., Inc., 404 F.3d 566, 583 (2d Cir.

2005) (holding that a negligent misrepresentation claim “must be pled in accordance with

the specificity criteria of Rule 9(b)”); Directv, LLC v. Wright, No. 15-CV-474-FPG, 2016

WL 3181170, at *9 (W.D.N.Y. June 3, 2016) (“[S]ince negligent misrepresentation is a

type of fraud, a party pleading negligent misrepresentation is . . . subject to a heightened

pleading standard under Federal Rule of Civil Procedure 9(b).”).

Under New York law, “[a] claim for negligent misrepresentation requires the

plaintiff to demonstrate (1) the existence of a special of privity-like relationship imposing

a duty on the defendant to impart correct information to the plaintiff; (2) that the

information was incorrect; and (3) reasonable reliance on the information.” J.A.O.

Acquisition Corp. v. Stavitsky, 8 N.Y.3d 144, 148 (2007); accord King v. Crossland Sav.

Bank, 111 F.3d 251, 258 (2d Cir. 1997) (“[U]nder New York law a cause of action for

negligent misrepresentation can be maintained only when the plaintiff himself or herself

relies on statements made by the defendant.” (emphasis in original)).

Here, apart from the question of whether Plaintiff adequately pleaded claims for

fraud and negligent misrepresentation which, as explained above, must be pleaded with

particularity, the complaint does not contain adequate allegations differentiating Plaintiff’s

fraud and negligent misrepresentation claims from its breach of contract claim—rather,

Plaintiff’s fraud and negligent misrepresentation claims are based on the same

representations Plaintiff alleges Defendant made in connection with the contract.

“New York law requires that a fraud claim, raised in a case that stems from breach

of contract, be ‘sufficiently distinct,’ from the breach of contract claim. To be ‘sufficiently

distinct’ from a breach of contract claim, fraud claims must be based on more than a

defendant’s false statements indicating an intention to perform his or her obligations under

a contract.” Karsch v. Blink Health Ltd., 291 F. Supp. 3d 503, 507 (S.D.N.Y. 2018)

(internal quotations, citations, and alterations omitted); see also Telecom Int’l Am., Ltd. v.

AT&T Corp., 280 F.3d 175, 196 (2d Cir. 2001) (“[U]nder New York law, where a fraud

claim arises out of the same facts as plaintiff’s breach of contract claim, with the addition

only of an allegation that defendant never intended to perform the precise promises spelled

out in the contract between the parties, the fraud claim is redundant and plaintiff’s sole

remedy is for breach of contract.”) (internal quotations and citations omitted).

Accordingly, “[w]hen a plaintiff brings a fraud claim in tandem with a contract claim, the

fraud claim may only proceed where the plaintiff (i) can ‘demonstrate a legal duty separate

from the duty to perform under the contract’; (ii) can ‘demonstrate a fraudulent

misrepresentation collateral or extraneous to the contract’; or (iii) ‘seek[s] special damages

that are caused by the misrepresentation and unrecoverable as contract damages.’” TN

Metro Holdings, I, LLC v. Commonwealth Ins. Co., 51 F. Supp. 3d 405, 410 (S.D.N.Y.

2014) (quoting Bridgestone/Firestone, Inc. v. Recovery Credit Svcs., Inc., 98 F.3d 13, 20

(2d Cir. 1996)). Similarly, a negligent misrepresentation claim will not withstand scrutiny

on a motion to dismiss unless it asserts a violation of a legal duty independent from the

contractual obligations alleged. See Phoenix Companies, Inc. v. Concentrix Ins. Admin.

Sols. Corp., No. 20 CIV. 1738 (KPF), 2021 WL 3604663, at *11 (S.D.N.Y. Aug. 12, 2021);

Michael Davis Constr., Inc. v. 129 Parsonage Lane, LLC, 194 A.D. 3d 805, 808 (2d Dep’t

2021) (dismissing negligent misrepresentation claim as duplicative of contract claim where

“the allegations supporting the counterclaim alleging negligent misrepresentation are based

solely on the contractual relationship between the parties”).

Here, the alleged fraudulent misrepresentations Plaintiff identifies are the same

allegations serving as the basis for the breach of contract claim. While Plaintiff argues that

some of Defendant’s representations related to failures in the communication pathway

work, which is collateral to the parties’ contract, the Court disagrees that these

representations are wholly separate from and extraneous to Defendant’s contractual

obligations. See Metro Holdings, 51 F. Supp. 3d at 410 (finding that plaintiffs failed to

allege a fraud-based claim independent from the breach of contract claim because they

“d[id] not allege that [defendant] owed them a duty separate from [defendant’s] duty to

perform under the contract,” nor did they “seek relief distinct from that which they claim

they are due as a result of Defendant’s alleged breach of contract.”); see also Kriegel v.

Donelli, No. 11 Ci. 9160(ER), 2014 WL 2936000, at *13-14 (S.D.N.Y. June 30, 2014)

(finding plaintiff’s fraud claim duplicative of breach of contract claim where he made no

allegation that defendant owed duty other than as set forth in contract, the alleged

misrepresentation was not collateral to the contract, and the relief sought for both claims

was identical); GSCP VI Edge Marc Holdings, L.L.C. v. ETC Ne. Pipeline, LLC, 192

A.D.3d 454, 456 (1st Dep’t 2021) (“The court properly dismissed the . . . negligent

misrepresentation claim[] as duplicative of the breach of contract claim.”).

In sum, Plaintiff’s fraudulent inducement and negligent misrepresentation claims

fail because as they are alleged in the complaint, the allegations do not demonstrate that

the claims are independent of the breach of contract claim. Accordingly, Plaintiff has failed

to adequately allege a claim for fraudulent inducement or negligent misrepresentation, and

the claims are dismissed on this basis.

C. NY GBL § 349

Finally, Defendant contends that Plaintiff’s claim under NY GBL § 349 should be

dismissed because the alleged conduct was not consumer-oriented and does not fall under

the ambit of that statute. The Court grants Defendant’s motion as to this claim for the

reasons that follow.

Under NY GBL § 349, “[d]eceptive acts or practices in the conduct of any business,

trade or commerce or in the furnishing of any service” are unlawful. N.Y. Gen. Bus. Law

§ 349(a). “The purpose of NY GBL § 349 is to ‘empower customers,’ especially ‘the

disadvantaged’ and to ‘even the playing field of their disputes with better funded and

superiorly situated fraudulent businesses.” Van Praagh v. Gratton, 993 F. Supp. 2d 293,

305 (E.D.N.Y. 2014) (quoting Watts v. Jackson Hewitt Tax Service Inc., 579 F. Supp. 2d

334, 346 (E.D.N.Y. 2008)). “To make out a prima face case under Section 349, a plaintiff

must demonstrate that (1) the defendant’s deceptive acts were directed at consumers, (2)

the acts are misleading in a material way, and (3) the plaintiff has been injured as a result.”

Maurizio v. Goldsmith, 230 F.3d 518, 521 (2d Cir. 2000) (citation omitted).

Defendant does not contest whether the complaint adequately alleges that

Defendant’s conduct was materially misleading or that Plaintiff suffered an injury as a

result of said conduct, but rather contends that Plaintiff does not properly allege that the

conduct is consumer-oriented under New York law. The Court agrees.

In contrast to common-law fraud, NY GBL § 349 “is a creature of statute based on

broad consumer-protection concerns[.]” Gaidon v. Guardian Life Ins. Co. of Am., 96

N.Y.2d 201, 209 (2001) (quotations and citation omitted). “[S]ome of the operative factors

for assessing whether conduct should be characterized as consumer oriented or a private

transaction[] include[e] whether the operative transaction: (1) affected a broad swath of

consumers, (2) consisted of standard practices that necessarily affect numerous consumers,

or (3) is unique to the parties.” Rosendale v. Mr. Cooper Group Inc., No. 19-CV-9263

(NSR), 2021 WL 4066821, at *19 (S.D.N.Y. Sept. 7, 2021). “Although consumer-oriented

conduct does not require a repetition or pattern of deceptive conduct, a plaintiff must

demonstrate that the acts or practices have a broader impact on consumers at large” and

“[p]rivate contract disputes between the parties do not fall within the ambit of the statute.”

Wilson v. Nw. Mut. Ins. Co., 625 F.3d 54, 64 (2d Cir. 2010) (emphasis added) (quotation

and citation omitted); see also Green v. Cap. One, N.A., No. 20 CIV. 4655 (ER), 2021 WL

3810750, at *9 (S.D.N.Y. Aug. 26, 2021) (“Thus, private disputes, such as contract

disputes or single-time transactions, would not violate § 349.”).

Even construing the complaint liberally, Plaintiff has failed to allege that

Defendant’s conduct was consumer-oriented because Plaintiff has not alleged facts that

demonstrate Defendant’s conduct affects other consumers. Plaintiff makes only the

argument that Defendant’s alleged misrepresentations were made on a public-facing

website to support its contention that the conduct was consumer-oriented. (Dkt. 15 at 11).

The absence of factual allegations supporting the consumer-oriented nature of the

conduct is fatal to Plaintiff’s NY GBL §349 claim. “Indeed, any other conclusion would

effectively permit a plaintiff to convert almost any garden variety breach of contract cause

of action into a violation of section 349.” MaGee v. Paul Revere Life Ins. Co., 954 F. Supp.

582, 586 (E.D.N.Y. 1997). Speculative allegations arising from the fact that the

information about Defendant’s qualifications and abilities is contained on a public website

cannot suffice to withstand the instant motion. See, e.g., Young Men’s Christian Assoc. of

Plattsburgh v. Phila. Indent. Ins. Co., No. 8:18-CV-0565 (LEK/DJS), 2018 WL 6267923,

at *7-8 (N.D.N.Y. Nov. 30, 2018) (“[C]onclusory allegations, even of the existence of a

claim settlement policy designed to deceive the public, are not sufficient to state a claim

under § 349 in the absence of supporting factual allegations.”); Ticheli v. Travelers Ins.

Co., No. 1:14-CV-00172, 2014 WL 12587066, at *3 (N.D.N.Y. Dec. 23, 2014) (“Plaintiff

merely adds bald, conclusory allegations that [defendant’s] conduct toward Plaintiff was

in keeping with its practices toward ‘the public at large’ and its ‘policyholders.’ These

vague and conclusory references to harm involving the ‘public at large’ are nothing more

than unsupported speculation and are insufficient to state a plausible GBL § 249 claim.”

(citation omitted)); Cross v. State Farm Ins. Co., 3:10-CV-1179, 2011 WL 4916534, at *4

(N.D.N.Y. Oct. 17, 2011) (“Although Plaintiff speculates that others have been treated in

similar fashion, these allegations are insufficient to state a plausible General Business Law

§ 349 claim.”), mot. to vacate denied, 2011 WL 13234729 (N.D.N.Y. 2011); O.K.

Petroleum v. Travelers Indem. Co., No. 09-Civ. 10273 (LMM), 2010 WL 2813804, at *5

(S.D.N.Y. July 15, 2010) (“Plaintiffs allege that ‘the practices complained of are part of a

systemic program aimed at the policyholders generally, having an impact on insurance

consumers at large.’ However, Plaintiffs allege no facts to support this speculative

argument.”).

Accordingly, the Court grants Defendant’s motion as to Plaintiff’s NY GBL § 349

claim. See Polk v. Del Gatto, Inc., No. 21 CIV. 129 (PAE), 2021 WL 3146291, at * 11

(S.D.N.Y. July 23, 2021) (“Because the Complaint does not adequately differentiate

between the breach of contract and GBL § 349 claims, the Court dismisses the latter as

duplicative.”).

CONCLUSION

For the foregoing reasons, Defendant’s motion (Dkt. 10) to dismiss counts II

through V of Plaintiff’s complaint pursuant to Rule 12(b)(6) is granted and those claims

are dismissed without prejudice. See Ronzani v. Sanofi S.A., 899 F.2d 195, 198 (2d Cir.

1990) (typical practice at motion to dismiss stage is to dismiss claims without prejudice).

SO ORDERED.

________________________________

ELIZABETH A. WOLFORD

Chief Judge

United States District Court

Dated: September 13, 2021

Rochester, New York