New v. M&T Bank Corporation

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

ISAIAH THOMAS NEW,

Plaintiff,

21-CV-1186-LJV

v. DECISION & ORDER

M&T BANK CORPORATION, et al.,

Defendants.

On November 2, 2021, the pro se plaintiff, Isaiah Thomas New, commenced this

action under 42 U.S.C. § 1981, the New York State Human Rights Law, and New York

State common law. Docket Item 1; see Docket Item 6 (amended complaint). New, a

former employee of M&T Bank Corporation (“M&T” or “M&T Bank”), alleges that the

defendants—M&T, Manufacturers and Traders Trust Company, M&T Deputy Counsel

Arthur H. Salman, and several John Does—discriminated against him on the basis of

race and unlawfully retaliated against him when he complained about the discrimination.

Id.

On September 6, 2022, the defendants moved to dismiss the amended

complaint, Docket Item 11; on September 28, 2022, New responded, Docket Item 17;

and on October 12, 2022, the defendants replied, Docket Item 18.

For the reasons that follow, the defendants’ motion to dismiss will be granted

unless New files a second amended complaint correcting the deficiencies identified

below.

FACTUAL BACKGROUND1

From July 2017 to June 2018, New—a Black man with “a bachelor’s degree in

economics from an Ivy League university,” Docket Item 6 at ¶¶ 5, 7—worked in M&T’s

Finance Division as a “Management Trainee and Corporate Analyst,” id. at ¶ 10. He

was “the only [B]lack employee” out of “approximately 75 staff” members on the floor

where he worked, id. at ¶ 7, and “one of less than eight” Black employees “in the entire

350-person Finance Division,” id. at ¶ 8.

Shortly after he started at M&T, New began to experience “daily harassment,

verbal abuse[,] and racist jokes.” Id. at ¶ 17. For example, New’s manager—a white

man—“yelled at [New] for various petty and insignificant things,” id. at ¶ 18, but “did not

treat other bank employees . . . in such a manner,” id. at ¶ 19. New repeatedly raised

concerns about his manager’s conduct and documented those concerns in writing. Id.

at ¶¶ 20-22, 25. M&T’s human resources department (“HR”) met with New and

conducted an investigation but found “no evidence of misconduct or discrimination.” Id.

at ¶¶ 25-26. HR assigned New to a different manager but took no other “remedial

action.” Id. at ¶ 26 (emphasis omitted).

1 In deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6),

the court “accept[s] all factual allegations as true and draw[s] 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).

The following facts are taken from the amended complaint, Docket Item 6, and

the separation agreement referenced throughout the amended complaint, Docket Item

11-3; see Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004) (noting that a complaint is

deemed to include any written instrument that is incorporated by reference or “integral”

to the complaint).

In the following months, the harassment “increased in frequency and severity.”

Id. at ¶ 28. For example, a white secretary “spread[] rumors that [New] was ‘brown-

nosing’ favor and ‘sucking[ ]up to’ managers,” causing New “reputational harm.” Id. at

¶ 29. And a group of white employees “would regularly congregate in front of [New’s]

cubicle and make lewd, offensive jokes about African-Americans.” Id. at ¶ 33.

New continued to report the harassment to HR. Id. at ¶¶ 31-32, 36. Eventually,

he brought his concerns about the racist jokes to M&T Deputy Counsel Salman, who

told New to “call [him] when it happens again” but did not take any other action to

address the harassment. Id. at ¶¶ 36-37 (emphasis omitted); see id. at ¶ 14. A few

months later, New requested another meeting with Salman to report “racist graffiti” that

New had seen in the workplace. Id. at ¶¶ 37-38. Again, Salman took no action. Id. at

¶ 39.

Then, on June 7, 2018, Salman told New that M&T was terminating New’s

employment due to “performance” and “trust” issues. Id. at ¶ 46. New believed those

“issues” were pretextual because neither New’s manager nor the department head

would “enumerate a single performance issue” when asked. See id. at ¶¶ 46-59, 62.

And despite M&T’s policy “to provide employees with . . . escalating feedback, written

warnings[,] and corrective action notices before terminating an employment

relationship,” New had received no warnings regarding any performance issues prior to

the termination meeting. Id. at ¶ 63.

During the meeting, Salman presented New with a separation agreement that

“was intended to release M&T Bank from any claims arising from [New’s] employment.”

Id. at ¶ 76. It included the following language:

You, for and in consideration of the promises set forth in this Agreement,

hereby agree to release and discharge, and not to institute any suit or action

. . . , against M&T Bank . . . , on your behalf and on behalf of any person or

entity claiming by or through you, from any and all claims of any kind, known

and unknown, which you may now have or have ever had against M&T

Bank, including claims . . . arising from your employment with M&T Bank or

the termination of your employment with M&T Bank, whether based on

contract, tort, statute, local ordinance, regulation[,] or any comparable law

in any jurisdiction (“Released Claims”). By way of example and not in

limitation, the Age Discrimination in Employment Act of 1967. . . , Title VII

of the Civil Rights Act of 1964 . . . , the Americans with Disabilities Act of

1990 . . . , the Equal Pay Act of 1963 . . . , the New York Human Rights Law,

and the Family and Medical Leave Act of 1993 . . . , as well as any claims

asserting wrongful termination, breach of contract, breach of the covenant

of good faith and fair dealing, negligent or intentional infliction of emotional

distress, negligent or intentional misrepresentation, . . . and any other

federal, state or local law, rule, regulation, executive order[,] or guidelines

relating to discrimination . . . .

This Agreement covers both claims that you know about and those that you

may not know about at this time. This Agreement does not waive or release

any rights or claims that may arise after you sign this Agreement.

Docket Item 11-3 at 4-5 (emphasis in original). It also provided that New could “revoke”

the agreement “within seven [] calendar days” of signing it. Id. at 2.

As New “perused” the separation agreement, he asked Salman “what he thought

of the many claims” New had reported. Docket Item 6 at ¶ 76. Salman responded,

“[T]hey’re all in your head.” Id. (emphasis omitted). That statement convinced New that

he was “imagining the abuse and discrimination he suffered.” Id. at ¶ 77 (emphasis

omitted).

New’s original deadline to sign the agreement was June 15, 2018, Docket Item

11-3 at 6, but he requested and received a five-day extension, Docket Item 6 at ¶¶ 82-

83. Although New contacted multiple attorneys during that time, he was unable to find

“competent counsel” to advise him. Id. Some attorneys he spoke to “were hesitant to

litigate a discrimination case against M&T” and would not give New “adequate advice.”

Id. at ¶ 82. Others “required prohibitive sums of money for consultation.” Id. And one

“refused” to speak with New because the attorney was “an acquaintance of a former

M&T Bank executive.” Id. at ¶ 83.

New finally signed the separation agreement on June 22, 2018, 15 days after the

termination meeting. Docket Item 11-3 at 6; see Docket Item 6 at ¶ 76. In exchange,

he received payment of 60 days’ wages after his employment ended, compensation for

accrued vacation days, 60 days’ continuation of his health insurance, and some

continuation of his life insurance and personal accident insurance. See Docket Item 11-

3 at 2-3.

In October 2021—more than three years later—New learned that he had “valid

claims of racial harassment and discrimination” related to his employment at M&T,

Docket Item 6 at ¶ 84, and he unsuccessfully “offered to tender back the consideration

he [had] received” under the separation agreement, id. at ¶ 88. New then commenced

this action alleging that the defendants fraudulently induced him into signing the

separation agreement. See id. at ¶¶ 84-86.

LEGAL PRINCIPLES

“To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 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.” Id. (citing Twombly, 550 U.S. at 556). “The plausibility standard is

not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a

defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556).

DISCUSSION

The defendants argue that the amended complaint must be dismissed because

New “released all employment-related claims against M&T, M&T’s affiliates, and those

companies’ employees and agents” when he signed the separation agreement. Docket

Item 11-1 at 5. New responds that his claims are not barred because he “was

fraudulently induced into [signing] the separation agreement.” Docket Item 17 at 5.

Because New has not plausibly alleged that he was fraudulently induced into signing an

enforceable separation agreement, that separation agreement bars New’s claims.

I. FRAUDULENT INDUCEMENT

A plaintiff alleging fraudulent inducement must show that “(1) the defendant

made a material false representation, (2) the defendant intended to defraud the plaintiff

thereby, (3) the plaintiff reasonably relied upon the representation, and (4) the plaintiff

suffered damage as a result of such reliance.” NRW, Inc. v. Bindra, 775 F. App’x 22, 24

(2d. Cir. 2019) (summary order) (citing Wall v. CSX Transp., Inc., 471 F.3d 410, 415-16

(2d Cir. 2006)).

New alleges that Salman fraudulently induced him into signing the separation

agreement by stating that New’s “claims” were “all in [his] head.” Docket Item 6 at ¶ 76

(emphasis omitted); see id. at ¶¶ 108-13. The defendants argue that New has not

plausibly alleged two elements of a fraudulent inducement claim: (1) a material false

representation and (2) reasonable reliance. Docket Item 11-1 at 17-20.

A. Material False Representation

For purposes of fraudulent inducement, a material false representation must be

“either a misrepresentation or [] material omission of a fact.” Robinson v. Deutsche

Bank Tr. Co. Ams., 572 F. Supp. 2d 319, 322 (S.D.N.Y. 2008) (emphasis added)

(citation omitted). “Expressions of mere opinion or puffery are not actionable

representation of fact sufficient to state a claim for fraud.” Spin Master Ltd. v. Bureau

Veritas Consumer Prods. Servs., Inc., 2011 WL 1549456, at *10 (W.D.N.Y. Mar. 7,

2011) (internal quotation marks omitted) (collecting cases).

The defendants argue that Salman’s statement was “not a misrepresentation of

an existing fact.” Docket Item 11-1 at 19. New responds that the defendants draw an

“artificial distinction between fact and opinion.” Docket Item 17 at 2. But the defendants

are correct: Salman’s statement was an expression of opinion about the merit of New’s

potential legal claims. Cf. Von Turkovich v. APC Cap. Partners, LLC, 259 F. Supp. 2d

314, 321-22 (D. Vt. 2003) (finding that defendant’s statement that an agreement “would

accomplish [p]laintiffs’ goals” was “not a statement of existing fact but an opinion . . . of

the future value of the agreement”).

New argues that Salman intended to deceive him and “that opinions may be

actionable if they are disbelieved when made.” Docket Item 17 at 2 (emphasis in

original). But as the defendants note, see Docket Item 18 at 7-8, New bases that

argument on a series of cases finding that credit ratings are a “hybrid” of fact and

opinion and thus can be a material misrepresentation, see, e.g., Abu Dhabi Com. Bank

v. Morgan Stanley & Co. Inc., 888 F. Supp. 2d 431, 454-55 (S.D.N.Y. 2012) (noting that

credit ratings are “based on an analysis of underlying facts conducted by respected

rating organizations”). Salman’s statement was not a “hybrid” of fact and opinion

analogous to a credit rating, so those cases are inapposite.

Indeed, while New argues that Salman’s experience lent his opinion credibility

and caused New to believe that Salman had “analyzed data, conducted an assessment,

and reach a fact-based conclusion” as to the merits of any potential claims, Docket Item

17 at 2, New does not allege facts suggesting he believed that Salman conducted such

an assessment. To the contrary, New alleges that Salman took no action to investigate

his complaints. See Docket Item 6 at ¶ 36. So it is unclear why New would think that

Salman’s opinion was based on any factual analysis. In other words, even if Salman’s

statement was disingenuous, it was not a factual misrepresentation.

New therefore has not plausibly alleged that Salman made a material false

representation, a required element of a fraudulent inducement claim.

B. Reasonable Reliance

“Claimants alleging reasonable reliance must plead that they actually relied on

the alleged misrepresentation[]” at issue. Travelex Currency Servs., Inc. v. Puente

Enter., Inc., 449 F. Supp. 3d 385, 399 (S.D.N.Y. 2020) (citation omitted). “In assessing

the reasonableness of a plaintiff’s alleged reliance, [courts] consider the entire context

of the transaction, including factors such as its complexity and magnitude, the

sophistication of the parties, and the content of any agreements between them.”

Emergent Cap. Inv. Mgmt., LLC v. Stonepath Grp., Inc., 343 F.3d 189, 195 (2d Cir.

2003) (citations omitted).

“Often, whether or not reliance on alleged misrepresentations is reasonable in

the context of a particular case is intensely fact-specific and generally considered

inappropriate for determination on a motion to dismiss.” Robinson, 572 F. Supp. 2d at

322-23 (alteration and internal quotation marks omitted) (collecting cases). But “under

certain circumstances, dismissal is appropriate at this stage in the litigation.” Id. at 323.

New argues that “he felt compelled to sign the separation agreement based on

[Salman’s] statement[].” Docket Item 17 at 4. But as the defendants note, Docket Item

11-1 at 19, New did not sign the separation agreement immediately after he heard

Salman’s statement. In fact, New did not sign the agreement during the termination

meeting or even by the original deadline M&T set. Rather, after New left the meeting,

he requested and received an extension of time and contacted multiple attorneys to

seek legal advice about the merits of his claim. See Docket Item 6 at ¶¶ 82-83. He

signed the separation agreement more than two weeks after Salman made the

statement that allegedly induced New to release his claims. See Docket Item 11-3 at 6.

Even viewed in the light most favorable to New, that sequence of events does

not raise a plausible inference that New actually relied on Salman’s statement. On the

contrary, it suggests that New was skeptical of Salman’s statement and felt the need to

obtain an objective opinion about the merits of his potential claims from an attorney not

associated with M&T. The fact that New now says he was unable to find an attorney to

advise him does not change that analysis, especially because the separation agreement

included an acknowledgment that New “availed” himself of his right to seek legal

counsel “to the extent [he] desired.”2 Id. at 5.

2 What is more, even if New actually relied on Salman’s statement, that reliance

likely was not reasonable. Salman clearly was incentivized to minimize M&T’s liability

and discourage New from pursuing legal action, and New should have known that given

his education and experience. See, e.g., Von Turkovich, 259 F. Supp. 2d at 322-23

(“[G]iven [p]laintiffs’ business and financial sophistication, no rational trier of fact could

New therefore has not plausibly alleged that he reasonably relied on Salman’s

statement. And for that reason as well, he has failed to state a claim for fraudulent

inducement.

II. VOLUNTARY RELEASE OF CLAIMS

In addition to arguing that New was not fraudulently induced, the defendants say

that the separation agreement is enforceable because New signed it knowingly and

voluntarily. Docket Item 11-1 at 10-17. New does not dispute that contention. See

Docket Item 17 at 3 (arguing that New’s knowledge and voluntariness “does not

preempt” his fraudulent inducement claim). Nevertheless, the Court considers whether

the separation agreement is enforceable.

“Federal courts have articulated a strong policy in favor of enforcing settlement

agreements and releases.” Levine v. Bd. of Educ. of City of N.Y., 152 F.3d 919, 1998

WL 386141, at *2 (2d Cir. 1998) (summary order) (collecting cases). Under federal law,

a release generally is enforceable if the party’s waiver of his claims “was ‘knowing and

voluntary’ under the totality of the circumstances.” Pucilowski v. Spotify USA, Inc.

(“Pucilowski I”), 2022 WL 836797, at *4 (S.D.N.Y. Mar. 21, 2022), aff’d, 2022 WL

16842926 (quoting Bormann v. AT&T Commc’ns, Inc., 875 F.2d 399, 400-03 (2d Cir.

1989)); see id. (explaining that a release that is enforceable under federal law “will

necessarily” be enforceable under New York law (citations omitted)).

conclude that they justifiably relied on an opinion from another business person, with

whom they were in an adversarial relationship, that the transaction would accomplish

their goals.”); Century Pac., Inc. v. Hilton Hotels Corp., 528 F. Supp. 2d 206, 230

(S.D.N.Y. 2007) (with regard to transaction for sale of company, finding that “no

reasonable factfinder” could find it reasonable to rely on defendant’s statement that

“everything’s going to be fine”).

Courts in this Circuit consider several factors when evaluating whether a release

was entered into knowingly and voluntarily, including:

1) the plaintiff’s education and business experience, 2) the amount of time

the plaintiff had possession of or access to the agreement before signing it,

3) the role of [the] plaintiff in deciding the terms of the agreement, 4) the

clarity of the agreement, 5) whether the plaintiff was represented by or

consulted with an attorney, . . . 6) whether the consideration given in

exchange for the waiver exceeds employee benefits to which the employee

was already entitled by contract or law . . . [and 7)] whether an employer

encourages or discourages an employee to consult an attorney . . . and

whether the employee had a fair opportunity to do so.

Bormann, 875 F.2d at 403 (citations omitted); see Pucilowski I, 2022 WL 836797, at *4.

That list is not exhaustive, and all factors need not be satisfied for a release to be

enforceable. Long v. Corning Inc., 2020 WL 1467278, at *5 (W.D.N.Y. Mar. 26, 2020),

aff’d, 847 F. App’x 74 (citation omitted).

Here, the Bormann factors and the totality of the circumstances weigh in favor of

enforcement.

A. New’s Understanding of the Agreement

First, the Court considers the factors bearing on New’s ability to understand the

separation agreement: (1) New’s education and experience and (2) the clarity of the

agreement itself.

New’s education and experience weigh in favor of enforcing the separation

agreement. New describes himself as “highly-educated,” Docket Item 6 at ¶ 81, and

notes that he earned a bachelor’s degree from an Ivy League university, id. at ¶ 5.

Those qualifications suggest that New had the experience to “understand the

[a]greement and assess the costs and benefits of signing it.” See Westbrooke v.

Bellevue Hosp. Ctr., 2018 WL 4189514, at *4 (S.D.N.Y. Aug. 31, 2018). In fact, courts

have found plaintiffs with significantly less education and experience capable of

understanding the terms of a release. See Bachiller v. Turn On Prods., Inc., 2003 WL

1878416, at *4 (S.D.N.Y. Apr. 14, 2003) (holding that plaintiff with high school

equivalency diploma was capable of understanding release); see also Pucilowski I,

2022 WL 836797, at *5 (collecting cases).

The clarity of the agreement itself—which “may be the most important” Bormann

factor, Pucilowski I, 2022 WL 836797, at *4—also weighs in favor of enforcement. The

release section of the separation agreement is “clear, concise, and written in plain

language.” See Phillips v. Orleans County, 2019 WL 3088051, at *7 (W.D.N.Y. July 15,

2019). It “unambiguous[ly]” states that by signing, New forfeited the right to bring any

claims—known or unknown—against M&T arising from his employment, see Pucilowski

I, 2022 WL 836797, at *4, and New does not allege that he did not understand the

agreement’s terms, see generally Docket Item 6.

So both factors bearing on New’s understanding of the agreement favor

enforcement.

B. New’s Time to Consider the Agreement and Opportunity to Consult

Counsel

Next, the Court considers whether New had sufficient time to consider the

separation agreement and consult counsel.

Although there is no bright line rule for what constitutes sufficient time for a

plaintiff to evaluate an agreement, courts in this Circuit “have concluded that a period of

months will suffice, that a few days will suffice, and that even a few hours will suffice.”

Mandavia v. Columbia Univ., 912 F. Supp. 2d 119, 130 (S.D.N.Y. 2012) (collecting

cases) (internal citations omitted). The Second Circuit itself has noted that a two-week

period to consider an agreement in combination with a seven-day revocation period

“preclude[s] any finding that [a plaintiff] was not given sufficient time to knowingly and

voluntarily release her claims.” Pucilowski v. Spotify USA, Inc. (“Pucilowski II”), 2022

WL 16842926, at *1 (2d Cir. Nov. 10, 2022).

Here, New signed the agreement 15 days after it was presented to him.3 See

Docket Item 6 at ¶¶ 76-77; Docket Item 11-3 at 6. That period included a five-day

extension giving New additional time to consult counsel, Docket Item 6 at ¶ 82, and the

agreement included a seven-day revocation period, Docket Item 11-3 at 1. The time

New had to consider the agreement therefore favors enforcement. See Pucilowski II,

2022 WL 16842926, at *1.

Moreover, New spoke to multiple attorneys during that time, Docket Item 6 at

¶¶ 82-83, demonstrating that he had a fair opportunity to consult counsel. While New

says that he was unable to obtain counsel for a variety of reasons, id., the separation

agreement stated that by signing, New acknowledged that he had consulted counsel “to

the extent and for the purposes [he] desired,” Docket Item 11-3 at 6. So even though

New now suggests that he did not obtain sufficient legal counsel, that “does not

automatically render” the agreement invalid. See Rozenfeld v. Dep’t of Design &

Constr. of City of N.Y., 875 F. Supp. 2d 189, 200 (E.D.N. Y. 2012); Pucilowski I, 2022

WL 836797, at *6 (finding that although plaintiff was not counseled by an attorney, the

defendant gave plaintiff “fair opportunity to seek out counsel by providing her with plenty

3 In response to the motion to dismiss, New says that he “was held in a room that

he was told he could not leave.” Docket Item 17 at 3. But clearly, New was permitted to

leave the meeting without signing the release.

of time—fourteen days before signing—to do so” (citation and internal quotation marks

omitted)).

For those reasons, the time New had to consider the agreement and consult

counsel favors enforcement.

C. Consideration

The Court also considers the consideration New received in exchange for

releasing his claims, which included payment of 60 days’ wages after his employment

ended, compensation for accrued vacation days, 60 days’ continuation of his health

insurance, and some continuation of his life insurance and personal accident insurance.

See Docket Item 11-3 at 2-3. Those are “benefits to which [New] was not otherwise

entitled,” favoring enforcement of the agreement. See Phillips, 2019 WL 3088051, at

*7.

D. New’s Role in Drafting the Terms of the Agreement

Finally, the Court considers the fact that New apparently took no part in the

drafting of the terms of the separation agreement, see generally Docket Item 6, which

weighs against enforcement. Nevertheless, a plaintiff’s role in drafting the terms of a

waiver cannot alone raise an issue of voluntariness. Bormann, 875 F.2d at 403 n.1.

And here, based on the totality of the circumstances, the other Bormann factors

indicate that New entered into the separation agreement knowingly and voluntarily. The

separation agreement therefore is enforceable and bars New’s claims.

III. LEAVE TO AMEND

Generally, a court will afford a pro se plaintiff an opportunity to amend or to be

heard prior to dismissal “unless the court can rule out any possibility, however unlikely it

might be, that an amended complaint would succeed in stating a claim.” Abbas v.

Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (citation omitted); see also Cuoco v. Moritsugu,

222 F.3d 99, 112 (2d Cir. 2000) (“A pro se complaint is to be read liberally. Certainly

the court should not dismiss 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.”

(quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999))). But

leave to amend pleadings may be denied when amendment would be “futile.” Cuoco,

222 F.3d at 112.

New requests leave to amend his complaint to assert a claim for negligent

misrepresentation. Docket Item 17 at 5. But the separation agreement explicitly bars

New from asserting such a claim, see Docket Item 11-3 at 4, so that claim would fail

unless the agreement is unenforceable. And for the reasons noted above, that does not

appear to be the case.

Nevertheless, and in light of his pro se status, see Cuoco, 222 F.3d at 112, New

may amend his complaint to add facts establishing that the agreement is not

enforceable. To do that, New must allege facts showing either (1) that he reasonably—

and actually—relied on a material misrepresentation of fact made by the defendants

other than Salman’s statement that New’s claims were all in his head, or (2) that the

waiver of his claims was not knowing and voluntary.

New is advised that an amended complaint is intended to completely replace

the prior complaint in the action and thus “renders [any prior complaint] of no legal

effect.” Int’l Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir. 1977) (citations

omitted); see also Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994).

Therefore, any second amended complaint must include all allegations against each

of the defendants so that the second amended complaint stands alone as the only

complaint that the defendants must answer in this action. Further, New is advised that

the factual allegations in his first amended complaint do not raise a plausible inference

that he is entitled to relief, and he therefore should amend his complaint a second time

only if he can plead additional facts in support of his claims.

CONCLUSION

For the reasons stated above, the defendants’ motion to dismiss, Docket Item 11,

will be granted unless New files a second amended complaint within 30 days of the

date of this order. If New does not file a second amended complaint within that time,

the defendants’ motion to dismiss will be granted and the Clerk of the Court shall close

this case without further order.

SO ORDERED.

Dated: January 2, 2024

Buffalo, New York

/s/ Lawrence J. Vilardo

LAWRENCE J. VILARDO

UNITED STATES DISTRICT JUDGE