# Donadio v. Bayer HealthCare LLC

> District Court, W.D. New York · March 18, 2024

URL: https://www.frixlaw.com/law-library/cases/10366979

## Case

- **Court:** District Court, W.D. New York
- **Decided:** March 18, 2024
- **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/10366979

## How later opinions describe it (automated extraction)

- declining to determine “whether federal law preempts the state-law claims asserted here” because the plaintiffs “failed plausibly to allege that the ‘diet’ label [on the defendant’s soft drink products was] misleading”

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_____________________________________

PATRICA DONADIO, individually and on
behalf of all others similarly situated,
DECISION AND ORDER
Plaintiff,

6:22-CV-06521 EAW
v.

BAYER HEALTHCARE LLC,

Defendant.
_____________________________________

INTRODUCTION
Plaintiff Patricia Donadio (“Plaintiff”) brings this putative class action against
defendant Bayer HealthCare LLC (“Defendant”), alleging that it has deceptively marketed
Alka-Setzer Plus brand nighttime “Severe Cold & Flu” mix-in powder packets. (Dkt. 17).
Plaintiff alleges that the phrase “Honey Lemon Zest,” accompanied by images of a lemon
wedge and a honey dipper, creates the misleading impression that the medicine contains
“honey and lemon ingredients beyond a de minimis amount.” (Dkt. 17 at ¶ 32). Based on
these allegations, Plaintiff asserts claims for: (1) violation of New York General Business
Law (“GBL”) §§ 349 and 350; (2) violation of “[t]he Consumer Fraud Acts” of the states
of Kansas, New Mexico, Utah, Idaho, North Dakota, West Virginia, Montana, Mississippi,
and Arkansas; (3) breaches of express warranty, the implied warranty of
merchantability/fitness for a particular purpose, and the Magnuson Moss Warrant Act, 15
U.S.C. §§ 2301 et seq.; and (4) fraud. (Id. at ¶¶ 40, 47-67).
Defendant has moved to dismiss Plaintiff’s amended complaint. (Dkt. 22). For the
reasons that follow, Defendant’s motion is granted.
FACTUAL BACKGROUND

Defendant manufactures and sells Alka-Setzer Plus brand nighttime mix-in powder
packets for relief of “Severe Cold & Flu” (the “Product”). (Dkt. 17 at ¶ 1). The Product
comes in a package with the phrase “Honey Lemon Zest” on the front, accompanied by
images of a lemon wedge and a honey dipper. (Id.). The front of the package also contains
a list of active ingredients, in a different area, and on a different colored background. (Id.).

The active ingredients listed on the front of the package are acetaminophen, doxylamine
succinate, phenylephrine hydrochloride, and dextromethorphan hydrobromide. (Id.).
“[T]he full active and inactive ingredient lists on the reverse side of the packaging reveal
the absence of honey and any lemon ingredients.” (Id. at ¶ 16). Plaintiff alleges that:
Notwithstanding the front label disclosure of active ingredients, the
Product’s front label emphasis on honey and lemon through the wedge of
fresh lemon and dripping honey dipper, described as ‘Honey Lemon Zest’
next to a cup of steaming tea creates an impression of value on honey and
lemon greater than their true functional role in the formulation, because these
are inactive ingredients and present in de minimis amounts.

(Id. at ¶ 13 (quotation and alteration omitted)). “Other cold and cough products that do not
contain honey and lemon ingredients may contain pictures of a honey dipper and lemon
wedge, but disclose on their front labels this only means they have ‘Honey Lemon
Flavors.’” (Id. at ¶ 12).
PROCEDURAL BACKGROUND
Plaintiff filed her original complaint on November 21, 2022. (Dkt. 1). Defendant
moved to dismiss the original complaint (Dkt. 13), and the Court afforded Plaintiff an

opportunity to file an amended complaint “curing the alleged defects” (Dkt. 15). Plaintiff
thereafter filed the amended complaint, which is the operative pleading. (Dkt. 17).
Defendant filed the instant motion seeking dismissal of the amended complaint (Dkt. 22),
which Plaintiff has opposed (Dkt. 23). Briefing was completed on July 12, 2023, when
Defendant filed a reply. (Dkt. 24).

DISCUSSION
I. Legal Standard—Rule 12(b)(6)
“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 (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) (quoting Twombly, 550 U.S. at
555).

II. Plaintiff’s Claims
As noted above, Plaintiff’s amended complaint contains the following claims:
(1) violation of GBL §§ 349 and 350; (2) violation of “[t]he Consumer Fraud Acts” of the
states of Kansas, New Mexico, Utah, Idaho, North Dakota, West Virginia, Montana,
Mississippi, and Arkansas; (3) breaches of express warranty, the implied warranty of

merchantability/fitness for a particular purpose, and the Magnuson Moss Warranty Act;
and (4) fraud. (Dkt. 17 at ¶¶ 40, 47-67). For the reasons set forth below, the Court finds
that none of these claims are plausibly alleged.
A. GBL §§ 349 and 350 Claims
Plaintiff alleges that Defendant has violated §§ 349 and 350 of the GBL. (Dkt. 17

at ¶¶ 47-50). As another court in this Circuit has explained:
Section 349 of the New York General Business Law declares unlawful
“deceptive acts or practices in the conduct of any business, trade or
commerce or in the furnishing of any service.” Section 350 prohibits “false
advertising in the conduct of any business, trade, or commerce or in the
furnishing of any service.” Sections 349 and 350 are both aimed at conduct
that is deceptive—i.e., conduct likely to mislead a reasonable consumer
acting reasonably under the circumstances. The only difference between the
two is that Section 350 more narrowly targets deceptive or misleading
advertisements, while Section 349 polices a wider range of business
practices.

Colpitts v. Blue Diamond Growers, 527 F. Supp. 3d 562, 576 (S.D.N.Y. 2021) (quotations,
citations, and alterations omitted).
“To state a claim for false advertising or deceptive business practices under New
York . . . law, a plaintiff must plausibly allege that the deceptive conduct was likely to
mislead a reasonable consumer acting reasonably under the circumstances.” Mantikas v.
Kellogg Co., 910 F.3d 633, 636 (2d Cir. 2018) (quotation omitted). It is “well settled that
a court may determine as a matter of law that an allegedly deceptive advertisement would
not have misled a reasonable consumer” under appropriate circumstances. Fink v. Time
Warner Cable, 714 F.3d 739, 741 (2d Cir. 2013). The reasonable consumer inquiry is an
objective one, and “in determining whether a reasonable consumer would have been misled
by a particular advertisement, context is crucial.” Id. at 742. “To survive a motion to
dismiss, a plaintiff must do more than plausibly allege that a label might conceivably be
misunderstood by some few consumers.” Dwyer v. Allbirds, Inc., 598 F. Supp. 3d 137,
149 (S.D.N.Y. 2022).
Defendant argues that no reasonable consumer could conclude from the packaging

that the Product contains honey and lemon as ingredients beyond a de minimis amount.
(Dkt. 22-3 at 16). Instead, Defendant argues, “[a] reasonable consumer interested in
purchasing medicine and looking at the active ingredients on the front of the product
package—acetaminophen, doxylamine succinate, phenylephrine HCl, and
dextromethorphan HBr—will conclude that ‘Honey Lemon Zest’ reflects to the medicine’s
flavor, not its ingredients.” (Id.). The Court agrees.
“A reasonable consumer . . . does not lack common sense and is not assumed to be

the least sophisticated consumer.” Lisa Coppola, LLC v. Higbee, No. 1:19-CV-00678,
2020 WL 1154749, at *8 (W.D.N.Y. Mar. 10, 2020). In this case, a reasonable consumer
would not understand the phrase “Honey Lemon Zest” and pictures of a lemon wedge and
a honey dipper, on a visually and spatially distinct section of the package from the active
ingredient list, to indicate that honey or lemon are present in the medication in non de

minimis amounts. Instead, a reasonable consumer would understand that the phrase
“Honey Lemon Zest”—which is not itself the name of an ingredient found in nature—
refers to the flavor of the medication.
“Courts typically find misleading representations about ingredients when the
product label explicitly asserts that it is made with a specific ingredient or specifies the

quantity of an ingredient when the ingredient is not predominant in the Product.” Brown
v. Kellogg Sales Co., No. 1:20-CV-7283-ALC, 2022 WL 992627, at *4 (S.D.N.Y. Mar. 31,
2022). A reasonable consumer would observe that the packaging at issue in this case does
not state the Product is “made with” or “made from” honey, lemon, or lemon zest. See,
e.g., Angeles v. Nestle USA, Inc., 632 F. Supp. 3d 309, 315-16 (S.D.N.Y. 2022)

(considering bottle of sparkling water where “the bottle includes the words ‘Lemon &
Lemon Zest,’ drawings of ‘full and cut lemons, lemon peels and leaves from the lemon
plant,’ and is ‘in a bottle covered in yellow cellophane’” and concluding that “the label’s
use of the phrase ‘Lemon & Lemon Zest’ merely represents that the Product is lemon
flavored. The Product does not use language such as ‘made with lemon,’ ‘made with lemon
zest,’ or any other similar message that would convey to a reasonable consumer that the
Product includes those ingredients”); Warren v. Stop & Shop Supermarket, LLC, 592 F.

Supp. 3d 268, 278 (S.D.N.Y. 2022) (reasonable consumer would not understand “honey
graham crackers” with a picture of a honey dipper to convey that graham crackers’ honey
flavor was derived “mostly or exclusively from honey,” in part because “the Product’s
packaging does not use language such as ‘made with honey’ or ‘made with real honey,’ or
anything similar”); Cruz v. D.F. Stauffer Biscuit Co., No. 20 CIV 2402 PGG JLC, 2022

WL 4592616, at *5 (S.D.N.Y. Sept. 29, 2022) (finding that reasonable consumer would
not expect “lemon snap” cookies with a picture of a lemon on the label to be flavored
predominately or exclusively from real lemons, where package did not say “made with
lemons” or “made from lemons”).
A reasonable consumer would further be informed by the fact that the Product’s

package states “Honey Lemon Zest,” rather than “honey and lemon” or “honey and lemon
zest.” The use of “Honey Lemon Zest” as a phrase—or even title—is a clear indication
that it refers to the flavor of the product, and not to individual ingredients. See Warren v.
Coca-Cola Co., 670 F. Supp. 3d 72, 82 (S.D.N.Y. 2023) (finding that the phrase “Margarita
Hard Seltzer” did not misleadingly suggest that the product was “a cocktail containing

tequila” because “the Product’s label uses ‘Margarita’ as a modifier of the term ‘hard
seltzer’”). This is particularly so because “lemon” and “honey” are both words that “can
be used and commonly understood to refer to a product’s scent or flavor” rather than to
“promise the inclusion of any particular ingredient.” Davis v. Pur Co. (USA), Inc., No. 22-
CV-6430L, 2023 WL 3024407, at *4 (W.D.N.Y. Apr. 20, 2023) (finding that “a reasonable
consumer, acting reasonably under the circumstances, would not be misled by the Product
label’s use of the word ‘peppermint,’ into believing that the Product’s flavor was derived

solely from peppermint components such as peppermint oil or peppermint extract”); see
also Brown, 2022 WL 992627, at *4 (finding that description of Pop-Tarts as “Frosted
Strawberry,” with a picture of a halved strawberry, was not misleading because
“strawberries are a common food flavor, whether artificial or otherwise, especially in
processed snack foods like Pop-Tarts.”); Dashnau v. Unilever Mfg. (US), Inc., 529 F. Supp.

3d 235, 243 (S.D.N.Y. 2021) (collecting cases holding that “the word ‘vanilla’ on a
product’s front label makes a representation about the flavor of the product, but does not
make a representation about the source of the product’s vanilla flavor” (emphases in
original)).
Additionally, as Plaintiff acknowledges in the amended complaint, the active and

inactive ingredient lists on the package disclose that the Product contains “flavors,” but not
a more than de minimis amount of honey or lemon. (Dkt. 17 at ¶ 16). “Those interested
in the actual ingredients can read the list[.]” Steele v. Wegmans Food Markets, Inc., 472
F. Supp. 3d 47, 50 (S.D.N.Y. 2020); see also Cruz, 2022 WL 4592616, at *8 (“[T]he front
panel does not state or suggest that the Cookies are free of artificial flavor or that the

Cookies’ lemon flavor is derived exclusively or primarily from real lemons. The front
panel of the Cookies’ packaging merely lists the type of cookie—“Lemon Snaps”—and a
picture of lemons. Given that the ingredients list found on the Cookies’ packaging
discloses that the Cookies contain ‘NATURAL AND ARTIFICIAL FLAVORS,’ this
Court concludes as a matter of law that the Cookies’ packaging – when considered as a
whole – is not materially misleading.”); Angeles, 632 F. Supp. 3d at 316 (“[T]he ingredient
list contains only ‘CARBONATED MINERAL WATER’ and ‘NATURAL FLAVORS.’

A quick look to these Nutrition Facts would thus dispel any suggestion that the Product
contained ‘an appreciable amount’ of lemon.” (citation omitted)). And while “a reasonable
consumer should not be expected to consult” an ingredients list “to correct misleading
information set forth in large bold type on the front of the box,” Mantikas, 910 F.3d at 637,
no such misleading information exists in this case. Instead, the front of the package

accurately conveys that the Product is honey and lemon flavored. The lists of active and
inactive ingredients—which mention neither lemon nor honey—provide additional
information about the source of that flavoring. See Wallace v. Wise Foods, Inc., No. 20-
CV-6831 (JPO), 2021 WL 3163599, at *2 (S.D.N.Y. July 26, 2021) (where potato chips
were labeled “cheddar & sour cream flavored” and “[t]he ingredients label . . . explain[ed]

that the chips contain cheddar cheese and sour cream while informing that they contain
lesser amounts of artificial flavoring,” the ingredients label confirmed and did not
contradict the representations on the front of the package).
Plaintiff’s arguments to the contrary are unpersuasive. Plaintiff points out that the
amended complaint alleges there is growing demand among consumers for “OTC products

based on ‘natural ingredients,’” because consumers believe such products to be “equally,
if not more effective, in treating colds and coughs.” (Dkt. 1 at 15 (citing Dkt. 17 at ¶¶ 5-6,
8)). However, no reasonable consumer could believe that the Product is made from
“natural ingredients.” The front label makes no such claims, and discloses that the Product
contains acetaminophen, doxylamine succinate, phenylephrine hydrochloride, and
dextromethorphan hydrobromide. (Dkt. 17 at ¶ 1). A reasonable consumer’s desire for
“natural ingredients” would not cause him or her to simply ignore this information.

Plaintiff also argues that the use of the qualifying term “flavors” by competitors
would cause a reasonable consumer to conclude that the Product contained a more than de
minimis amount of honey and lemon. (Dkt. 23 at 15-16; see Dkt. 17 at ¶ 35 (“Plaintiff
viewed and/or was aware of how competitor products truthfully represented they only had
‘honey lemon flavors’ instead of honey and lemon ingredients.”)). But in both examples

provided by Plaintiff, the packaging at issue states “Green Tea & Honey Lemon Flavors.”
(Dkt. 17 at ¶ 12). Unlike honey and lemon, “green tea” is not commonly used or known
as a description of flavor. Additionally, the fact that two competitors have chosen to
include the word “flavors” on their packaging does not mean that Defendant’s failure to do
so is misleading. See Brown v. Coty, Inc., No. 22 CIV. 2696 (AT), 2023 WL 2691581, at

*5 (S.D.N.Y. Mar. 29, 2023) (use of the word “clean” by the defendant’s competitors did
not render the defendant’s marketing misleading where the defendant did not market its
products as “clean”).
A reasonable consumer would also consider whether the Product—a medicinal
powder—is one that would be expected to contain a more than de minimis amount of lemon

(or lemon zest) and honey. See Chen v. Dunkin’ Brands, Inc., 954 F.3d 492, 501 (2d Cir.
2020) (a reasonable consumer would not expect “Angus Steak & Egg Breakfast Sandwich”
and “Angus Steak & Egg Wake-Up Wrap” to contain an “intact” piece of meat (as opposed
to a ground beef patty) where the products were “marketed as grab-and-go products that
can be consumed in hand, without the need for a fork and knife”). Plaintiff has not
identified a single comparable product that contains such ingredients. Notably, the
examples that Plaintiff has identified of “[c]ompetitor brands of cough and cold

medications” that “contain honey and lemon ingredients” are all liquid cough syrups. (Dkt.
17 at ¶ 11). Further, the packages of these cough syrups contain phrases such as “taste the
real honey,” “naturally drug free,” and “with honey.” (Id.).
Finally, Plaintiff is simply incorrect that the Court must accept her “‘Honey Lemon’
allegations as true” at this stage of the proceedings. (Dkt. 23 at 13). While the Court is

obliged to accept Plaintiff’s well-pleaded factual allegations as true, it is not required to
accept her conclusory allegations about how a reasonable consumer would view the
Product’s packaging. See Chen, 954 F.3d at 501; Wynn v. Topco Assocs., LLC, No. 19-
CV-11104 (RA), 2021 WL 168541, at *3 (S.D.N.Y. Jan. 19, 2021).
For all these reasons, the Court agrees with Defendant that Plaintiff’s GBL claims

are not plausibly alleged and must be dismissed. The Court need not and does not reach
Defendant’s alternative argument that Plaintiff’s GBL claims are preempted by the Food,
Drug, and Cosmetic Act. (Dkt. 22-23 at 20-22); see 21 U.S.C. § 379r (with respect to
nonprescription drugs, “no State or political subdivision of a State may establish or
continue in effect any requirement . . . that is different from or in addition to, or that is

otherwise not identical with, a requirement under this chapter, the Poison Prevention
Packaging Act of 1970 (15 U.S.C. 1471 et seq.), or the Fair Packaging and Labeling Act
(15 U.S.C. 1451 et seq.)”); Geffner v. Coca-Cola Co., 928 F.3d 198, 200 (2d Cir. 2019)
(declining to determine “whether federal law preempts the state-law claims asserted here”
because the plaintiffs “failed plausibly to allege that the ‘diet’ label [on the defendant’s soft
drink products was] misleading”).
B. Multi-State Consumer Fraud Act Claim

Plaintiff’s second claim states: “The Consumer Fraud Acts of the States in the
Consumer Fraud Multi-State Class are similar to the consumer protection statute invoked
by Plaintiff and prohibit the use of unfair or deceptive business practices in the conduct of
commerce.” (Dkt. 17 at ¶ 51). Setting aside the patent inadequacy of this allegation, which
fails even to identify the specific laws at issue, the Court has determined for the reasons

discussed above that Plaintiff has not plausibly alleged an unfair or deceptive business
practice by Defendant. Her second claim thus also fails.
C. Breaches of Express Warranty, Implied Warranty of Merchantability,
and Magnuson Moss Warranty Act

The third claim in the amended complaint is for breaches of express warranty, the
implied warranty of merchantability/fitness for a particular purpose, and the Magnuson
Moss Warranty Act. (Dkt. 17 at ¶¶ 54-66). This claim is based on Plaintiff’s assertion that
Defendant “expressly and impliedly warranted to Plaintiff that [the Product] contained
honey and lemon ingredients beyond a de minimis amount.” (Id. at ¶ 54).
To plead a breach of express warranty claim under New York law, a plaintiff must
allege “(1) the existence of a material statement amounting to a warranty, (2) the buyer’s
reliance on this warranty as a basis for the contract with the immediate seller, (3) breach of
the warranty, and (4) injury to the buyer caused by the breach.” Goldemberg v. Johnson

& Johnson Consumer Cos., 8 F. Supp. 3d 467, 482 (S.D.N.Y. 2014) (citations omitted).
Plaintiff’s claim for breach of express warranty fails because she has not “adequately pled
that the Product does not comport with the statements contained on the label.” Dashnau,
529 F. Supp. 3d at 249 (quotation omitted). In particular, and as discussed above, the label

does not state that the Product contains honey or lemon ingredients beyond a de minimis
amount.
“A breach of the implied warranty of merchantability occurs when the product at
issue is unfit for the ordinary purposes for which such goods are used.” Id. (citation
omitted). The Product is a medication for treating cold and flu symptoms, and Plaintiff has

made no allegations whatsoever that it was unfit for that purpose. Additionally, “[t]o the
extent the [amended complaint] alleges that the Product does not conform to any promise
or affirmation of fact made on its label, [Plaintiff’s] claim fails for the same reason as [her]
express warranty claim.” Twohig v. Shop-Rite Supermarkets, Inc., 519 F. Supp. 3d 154,
167 (S.D.N.Y. 2021).

Plaintiff also does not have a viable claim under the Magnuson Moss Warranty Act.
“To state a claim under the [Magnuson Moss Warranty Act], plaintiffs must adequately
plead a cause of action for breach of written or implied warranty under state law.” Garcia
v. Chrysler Grp. LLC, 127 F. Supp. 3d 212, 232 (S.D.N.Y. 2015); see also Cosgrove v.
Oregon Chai, Inc., 520 F. Supp. 3d 562, 586 (S.D.N.Y. 2021) (“[T]he MMWA merely

incorporates and federalizes state-law breach of warranty claims, including state-law
standards for liability and damages.” (internal quotation marks omitted)). The failure of
Plaintiff’s state-law breach of warranty claims is equally fatal to her Magnuson Moss
Warranty Act claim.
D. Fraud Claim
Plaintiff’s final claim is for fraud. (Dkt. 17 at ¶ 67). Federal Rule of Civil Procedure
9(b) provides: “In alleging fraud or mistake, a party must state with particularity the

circumstances constituting fraud or mistake. Malice, intent, knowledge, and other
conditions of a person’s mind may be alleged generally.” Fed. R. Civ. P. 9(b). To state a
claim for common law fraud under New York law, a plaintiff must allege: “(1) a material
representation or omission of fact; (2) made with knowledge of its falsity; (3) with an intent
to defraud; and (4) reasonable reliance on the part of the plaintiff, (5) that causes damage

to the plaintiff.” Haggerty v. Ciarelli & Dempsey, 374 F. App’x 92, 94 (2d Cir. 2010).
“[C]ommon law fraud claims are subject to the particularity requirements of Rule 9(b).”
Filler v. Hanvit Bank, 156 F. App’x 413, 416 (2d Cir. 2005).
Plaintiff’s fraud claim fails for essentially the same reason as her other claims—she
has not plausibly alleged that she reasonably relied on a material misrepresentation by

Defendant. See, e.g., Daniel v. Mondelez Int’l, Inc., 287 F. Supp. 3d 177, 199 (E.D.N.Y.
2018) (“For essentially the same reasons discussed regarding the material representation
prong for the statutory claims, Plaintiff fails to plead reasonable reliance.”); Bautista v.
CytoSport, Inc., 223 F. Supp. 3d 182, 192 (S.D.N.Y. 2016) (“But, for the same reasons that
the § 349 claim fails, the fraud claim fails[.]”).

III. Leave to Amend
The final sentence of Plaintiff’s opposition to Defendant’s motion to dismiss states:
“For the foregoing reasons, the Court should deny Defendant’s Motion or in the alternative
grant leave to file a Second Amended Complaint.” (Dkt. 23 at 25). This “is not a proper
motion for leave to amend, and fails to comply with the Local Rules of Civil Procedure
with respect to the process for seeking to amend a pleading.” Wi3, Inc. v. Actiontec Elecs.,
Inc., 71 F. Supp. 3d 358, 363 (W.D.N.Y. 2014). Moreover, Plaintiff has already had a
chance to amend, and has failed to remedy the defects identified by Defendant. The Court
accordingly denies this “cursory or boilerplate request[] .. ., made solely ina memorandum
in opposition to a motion to dismiss.” Malin v. XL Capital, Ltd., 312 F. App’x 400, 402
(2d Cir. 2009).
CONCLUSION
For the foregoing reasons, the Court grants Defendant’s motion to dismiss. (Dkt.
22). The Clerk of Court is directed to enter judgment and close the case.
SO ORDERED.
PAL pd
Chief Judée
United States District Court
Dated: March 18, 2024
Rochester, New York

-15-

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10366979. Public record. Not legal advice.