Harkins v. Citizens Bank National Association

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

AMY HARKINS,

Plaintiff, DECISION AND ORDER

v.

6:24-CV-06649 EAW

CITIZENS BANK NATIONAL ASSOCIATION,

Defendant.

INTRODUCTION

Pro se plaintiff Amy Harkins (“Plaintiff”) filed this action against defendant

Citizens Bank National Association (“Defendant” or “Citizens”). (Dkt. 1). Currently

before the Court are several motions, including: Plaintiff’s motion for miscellaneous relief

(Dkt. 3); Plaintiff’s motion for a subpoena (Dkt. 4); Defendant’s motion to dismiss

Plaintiff’s complaint and request for sanctions (Dkt. 9); Plaintiff’s motion to file an

amended complaint (Dkt. 11); and Plaintiff’s motion to appoint counsel (Dkt. 12).

For the reasons that follow, Defendant’s motion to dismiss (Dkt. 9) is granted, the

request for sanctions is denied, and the case is dismissed. Plaintiff’s motion to amend (Dkt.

11) is denied as futile, and Plaintiff’s remaining motions (Dkt. 3; Dkt. 4; Dkt. 12) are denied

as moot.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The following facts are taken from Plaintiff’s complaints. As required at this stage

of the proceedings, the Court treats Plaintiff’s allegations as true.

Plaintiff filed her complaint on November 12, 2024, alleging that Defendant

discriminated against her because she is mentally ill. (Dkt. 1 at 1, 5). Plaintiff alleges that

Defendant has accused her of illegal and unethical actions and denied her settlement

services for two charge-off accounts in 2020. (Id. at 5; see also Dkt. 3 at 23). Plaintiff

alleges that Defendant caused her emotional distress and claims $80,000 in damages. (Dkt.

1 at 5-6). Plaintiff also filed a motion for miscellaneous relief seeking to “allow old

evidence,” including evidence of a previous settlement with Comenity Bank as it relates to

this case (Dkt. 3), and a motion for a subpoena for an individual from the Greece

Community Federal Credit Union (Dkt. 4).

Thereafter, on December 18, 2024, Plaintiff filed an amended complaint, and on

December 30, 2024, she filed a motion to file the amended complaint. (Dkt. 7 (amended

complaint with exhibits); Dkt. 11 (letter seeking leave to file amended complaint)).1 The

amended complaint alleges that Defendant negligently caused Plaintiff emotional distress

and discriminated against her because she is poor. (Dkt. 7 at 3). The amended complaint

does not appear to allege a claim for disability discrimination, but it does include

allegations that Defendant slandered her and violated her right to privacy by telling others

that she is mentally unstable. (Id. at 7-9). Attached to the amended complaint is a letter

dated November 6, 2024, from an individual named Bruce Freeman, stating that Plaintiff

1 Plaintiff served her complaint on November 21, 2024. (Dkt. 6). Her amended

complaint is dated December 15, 2024. (Dkt. 7). Accordingly, she was required to seek

the Court’s permission to file an amended pleading. See Fed. R. Civ. P. 15(a)(1)(A) (party

may file an amended pleading once as a matter of course 21 days after serving it).

complained to him in summer 2023 that Defendant would not settle Plaintiff’s accounts,

and that Defendant accused Plaintiff of “doing unethical (illegal) actions.” (Id. at 20).

Plaintiff further alleges that she made a complaint to the Consumer Financial

Protection Bureau (CFPB) on August 30, 2024, complaining that Defendant slandered her

and violated her right to privacy. (Id. at 9, 21-22 (CFPB “Summary of complaint

submitted”)). Specifically, Plaintiff reported that Defendant contacted Lifespan without

her consent and told them she had a mental problem, and that Defendant’s taking such

actions violated the Gramm-Leach-Bliley Act. (Id. at 21-22). Plaintiff also alleges that

Defendant accused her of illegally taping a “Citizens Bank phone call” during summer

2023. (Id. at 11).

Plaintiff’s amended complaint also references two lines of credit opened with

Defendant on November 3, 2017, which she alleges that she did not open. (Id. at 23).

Plaintiff claims that Defendant’s refusal to settle her charge-off accounts resulted in her

being denied a loan at the Greece Community Federal Credit Union. (Id. at 32-33).

Plaintiff attaches to the amended complaint various exhibits regarding her alleged

emotional distress and documenting various physical ailments from which she suffers.

(See, e.g., id. at 25, 28, 36-42). Shortly after filing her motion to amend, Plaintiff filed a

motion to appoint counsel on January 6, 2025 (Dkt. 12), and she also filed a letter with two

exhibits supplementing her amended complaint on February 3, 2025 (Dkt. 15).

Defendant filed a motion to dismiss the complaint on December 23, 2024 (Dkt. 9),

and Defendant also filed a response opposing Plaintiff’s motion to amend on January 13,

2025 (Dkt. 13). On February 5, 2025, the Court set a scheduling order on Defendant’s

motion to dismiss, noting the motion to amend and Defendant’s response thereto, and

setting deadlines of February 19, 2025, and February 26, 2025, for responses and replies

to the motion to dismiss. (Dkt. 16). Plaintiff responded to Defendant’s motion to dismiss

on February 12, 2025. (Dkt. 17).

This is not the first case Plaintiff has brought against Defendant. Plaintiff has filed

two previous actions asserting the same or similar claims against Defendant, both of which

were before the undersigned: Harkins v. Citizens Bank, Case No. 20-CV-6030 (W.D.N.Y.

Jan. 13, 2020) (“Harkins I”) and Harkins v. Citizens Bank, Case No. 23-CV-6601

(W.D.N.Y. Oct. 18, 2023) (“Harkins II”). Harkins I also involved claims for disability

discrimination, which the Court construed as brought pursuant to the Americans with

Disabilities Act (“ADA”), and for defamation, stemming from alleged interactions Plaintiff

had with Defendant’s employees in 2017, the alleged denial of a loan application in 2018,

and Plaintiff’s allegation that Defendant revealed her account information to a

representative of Lifespan. (Harkins I, Dkt. 1; Dkt. 22; Dkt. 31). After affording Plaintiff

an opportunity to amend the complaint, on September 8, 2022, the Court granted

Defendant’s motion to dismiss the action. (Id., Dkt. 31); see also Harkins v. Citizens Bank,

626 F. Supp. 3d 599, 603-04 (W.D.N.Y. 2022) (concluding that “Plaintiff has failed to state

a plausible claim for violation of the ADA, or any claim for disability discrimination

sounding in state law, and therefore Plaintiff’s disability discrimination claim is dismissed

with prejudice,” and declining to exercise supplemental jurisdiction over Plaintiff’s

defamation claim).

In Harkins II, Plaintiff alleged a claim for slander against Defendant, based on

alleged conduct that occurred in 2018 and 2019, including that Defendant slandered her to

Lifespan and her case manager in 2018 by telling them that Plaintiff had a mental disability

and could not handle her finances. (Harkins II, Dkt. 1; Dkt. 14). On August 12, 2024, the

Court dismissed Plaintiff’s slander claim because it lacked subject matter jurisdiction. (Id.,

Dkt. 14 at 6-7). The Court also denied leave to amend, since even if Plaintiff could

establish jurisdiction, Plaintiff’s slander claim would have been barred by the statute of

limitations, and due to Plaintiff’s repeated efforts to sue Defendant. (Id., Dkt. 14 at 11-

12); see also Harkins v. Citizens Bank, 744 F. Supp. 3d 268 (W.D.N.Y. 2024).

DISCUSSION

I. Defendant’s Motion to Dismiss (Dkt. 9)

Defendant has moved to dismiss the complaint with prejudice and without leave to

amend, arguing that (1) Plaintiff’s claims, which could have been brought via amendment

to her original complaint in Harkins I, are barred by the doctrine of res judicata, and (2)

the complaint fails to establish that Plaintiff has standing to bring a discrimination claim,

that any discrimination claim exists, or that Plaintiff has any viable claim under New York

state law. (Dkt. 9-1 at 12). Defendant also argues that Plaintiff should be enjoined from

filing further vexatious litigation to prevent her from further harassing Defendant. (Id. at

13).

A. 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 plaintiff

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). While the Court is “obliged to construe [pro se] pleadings liberally, particularly

when they allege civil rights violations,” McEachin v. McGuinnis, 357 F.3d 197, 200 (2d

Cir. 2004), even pleadings submitted pro se must satisfy the plausibility standard set forth

in Iqbal and Twombly, see Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (“Even after

Twombly, though, we remain obligated to construe a pro se complaint liberally.”).

B. Plaintiff’s Disability Discrimination Claim

Defendant argues that Plaintiff’s discrimination claim must be dismissed based on

the doctrine of res judicata, since the claim asserted in the instant case is the same as the

discrimination claim asserted in Harkins I. (Dkt. 9-1 at 16-20). Defendant further argues

that, even if Plaintiff’s disability discrimination claim is not barred by res judicata, it must

be dismissed because Plaintiff has failed to plausibly allege a discrimination claim under

federal or state law. (Id. at 21-28)

1. Res Judicata

“[T]he doctrine of res judicata, or claim preclusion, provides that ‘a final judgment

on the merits of an action precludes the parties . . . from relitigating issues that were or

could have been raised in that action.’” Duane Reade, Inc. v. St. Paul Fire and Marine Ins.

Co., 600 F.3d 190, 195 (2d Cir. 2010) (citation omitted). The doctrine “evokes the common

law principles of judicial economy and comity.” Channer v. Dep’t of Homeland Sec., 527

F.3d 275, 279 (2d Cir. 2008). “To determine whether the doctrine of res judicata bars a

subsequent action, we consider whether 1) the prior decision was a final judgment on the

merits, 2) the litigants were the same parties, 3) the prior court was of competent

jurisdiction, and 4) the causes of action were the same.” Brown Media Corp. v. K&L Gates,

LLP, 854 F.3d 150, 157 (2d Cir. 2017) (citation omitted).

The first three elements are easily satisfied. Harkins I resulted in a final judgment

on the merits, and Plaintiff’s discrimination claim was dismissed with prejudice. Harkins,

626 F. Supp. 3d at 603. The Second Circuit dismissed Plaintiff’s appeal because it

“lack[ed] an arguable basis either in law or in fact.” (Harkins I, Dkt. 39). The cases involve

the same parties—Plaintiff and Citizens. In addition, the Court had jurisdiction to hear

Plaintiff’s ADA discrimination claim in Harkins I. See ADA, 42 U.S.C. § 12182.

The fourth element—that the causes of action are the same—is satisfied because

Harkins I and the instant case involve the same claim: that Defendant allegedly

discriminated against Plaintiff based on an intellectual or mental disability, and the claims

in the instant case could have been brought in Harkins I. “To ascertain whether two actions

spring from the same ‘transaction’ or ‘claim,’ we look to whether the underlying facts are

‘related in time, space, origin, or motivation, whether they form a convenient trial unit, and

whether their treatment as a unit conforms to the parties’ expectations. . . .’” Waldman v.

Vill. of Kiryas Joel, 207 F.3d 105, 108 (2d Cir. 2000) (citations omitted). Further, “[a]

claim that ‘could have been raised in the prior action’ is precluded by a prior judgment if

the purportedly new claim ‘was sufficiently related to the claims that were asserted in the

first proceeding that it should have been asserted in that proceeding.’” Smith v. City of

N.Y., 130 F. Supp. 3d 819, 828-29 (S.D.N.Y. 2015) (quoting Pike v. Freeman, 266 F.3d

78, 91 (2d Cir. 2001)), aff’d, 664 F. App’x 45 (2d Cir. 2016). “The transactional approach

followed in the Second Circuit treats a new claim as precluded if it is based on the ‘same

transaction or occurrence,’ or ‘nucleus of operative fact,’ as the claims in the prior action.”

Id. at 829 (internal citations omitted).

In Harkins I, Plaintiff alleged that Defendant discriminated against her due to a

“perceived mental and intellectual disability.” (Harkins I, Dkt. 22 at 1, 6). Specifically,

Plaintiff alleged that in 2017 and 2018, Plaintiff had various interactions with Defendant’s

employees, Defendant failed to approve her for a refund for money she had lost, and also

that Defendant approved her for a loan in 2018, but then failed to deposit the money. (Id.,

Dkt. 22 at 8-24). The Court concluded that Plaintiff had failed to plausibly allege that

Defendant regarded her as having an impairment substantially limiting one or more of her

major life activities, and also that she had alleged no facts tying the purported refusal to

give her a refund with an alleged disability. Harkins, 626 F. Supp. 3d at 603. In the present

case, Plaintiff again alleges that Defendant engaged in “mental health discrimination.”

(Dkt. 1 at 1; see also id. at 1, 5 (“Citizens Bank has treated me unfairly because of my

mental health,” and it denied her settlement services for two charged-off accounts due to

her mental health)). Plaintiff further alleges that Defendant has discriminated against her

“for years.” (Id. at 6).

Plaintiff’s allegations in the present action are more general than her allegations in

Harkins I. However, a review of Plaintiff’s other filings in this case—specifically, the

motion for miscellaneous relief in which she seeks to admit certain evidence in connection

with the case (Dkt. 3)—reveals that the facts forming the basis for the present case are the

same as those forming the basis for Plaintiff’s complaint in Harkins I, or include allegations

that could have been included in the amended complaint filed in Harkins I in January 2022.

(See, e.g., Dkt. 3 at 5-6 (stating that Defendant should have put a refund on her account in

2021); id. at 14 (describing charge-off account opened in 2017, which Defendant

wrongfully reported); id. at 9, 14 (stating that Defendant denied her settlement of accounts,

and that Defendant made “financial mistakes” on her accounts)). In other words, in both

actions, Plaintiff alleges that Defendant discriminated against her based on a perceived

intellectual disability, including that they denied her loans and settlements of her accounts.

Further, the facts forming the basis for Plaintiff’s discrimination claim in the instant

complaint allegedly occurred before 2022, when Plaintiff filed the amended complaint in

Harkins I—and therefore Plaintiff could have included those claims in Harkins I. See, e.g.,

Townsend v. Livingston Cnty., No. 19-CV-6636-FPG, 2023 WL 3322647, at *3 (W.D.N.Y.

May 9, 2023) (“Here, Townsend’s Personal Seizure Claim was not specifically addressed

in the 2017 Lawsuit, but the claim is nevertheless barred by res judicata because the

Personal Seizure Claim ‘could have been raised’ in the 2017 Lawsuit, the 2017 Lawsuit

involved the same parties or those in privity with them, and the 2017 Lawsuit involved an

adjudication on the merits because it was dismissed with prejudice.”). For those reasons,

Plaintiff’s claim based on disability discrimination is barred by res judicata.

2. Failure to Allege an ADA violation

Even if Plaintiff’s disability discrimination claim was not barred by the doctrine of

res judicata, her claim would also be dismissed because she has failed to plausibly allege

that she was discriminated against based on an intellectual disability.

The ADA, 42 U.S.C. § 12182 (“Title III”), prohibits discrimination based on

disability in places of public accommodation. To establish a Title III discrimination claim,

a plaintiff must show “(1) that she is disabled within the meaning of the ADA; (2) that

defendants own, lease, or operate a place of public accommodation; and (3) that defendants

discriminated against her by denying her a full and equal opportunity to enjoy the services

defendants provide.” Camarillo v. Carrols Corp., 518 F.3d 153, 156 (2d Cir. 2008). “The

ADA defines a disability as ‘(A) a physical or mental impairment that substantially limits

one or more major life activities of such individual; (B) a record of such an impairment; or

(C) being regarded as having such an impairment (as described in paragraph (3)).’”

Alexiadis v. N.Y. Coll. of Health Pros., 891 F. Supp. 2d 418, 428 (E.D.N.Y. 2012) (quoting

42 U.S.C. § 12102(1)). “A claim of disability discrimination under the NYSHRL is

governed by the same legal standards as govern federal ADA claims.” Brizzi v. Utica Mut.

Ins. Co., 529 F. Supp. 3d 44, 56 (E.D.N.Y. 2021) (alteration omitted) (quoting Graves v.

Finch Pruyn & Co., 457 F.3d 181, 184 n.3 (2d Cir. 2006)).

Plaintiff’s disability discrimination claim suffers from the same deficiencies it did

in Harkins I. That is, Plaintiff has failed to plausibly allege that Defendant regarded her as

having an impairment that substantially limits one or more of her major life activities.

Instead, Plaintiff’s complaint provides, in conclusory fashion, that Defendant regarded

Plaintiff as having an unspecified “mental health diagnosis,” or “mental illness,” and the

amended complaint is devoid of facts suggesting that Defendant’s denial of settlement

services for her accounts was based on a qualifying disability within the meaning of the

statute. In other words, Plaintiff has alleged no facts tying Defendant’s purported refusal

with an alleged disability. Accordingly, Plaintiff has failed to state a plausible claim for

violation of the ADA, or any claim for disability discrimination sounding in state law, and

therefore Plaintiff’s disability discrimination claim is dismissed.2

2 To the extent Plaintiff’s complaint alleges a cause of action for negligent infliction

of emotional distress, any such claim would be dismissed for the same reasons discussed

below at section II, infra.

C. Sanctions

Defendant also moves for sanctions in the form of a filing injunction, enjoining

Plaintiff from filing further vexatious litigation against it. (Dkt. 9-1 at 13). Defendant

contends that sanctions are appropriate when a pro se Plaintiff has a history of submitting

multiple frivolous claims, and that this Court has previously used Rule 11 of the Federal

Rules of Civil Procedure to impose sanctions on pro se litigants who file frivolous or

baseless claims. (Id. at 13-14).

The Court has the power, pursuant to the All Writs Act, 28 U.S.C. § 1651, to issue

an injunction limiting vexatious litigation. See In re Martin-Trigona, 737 F.2d 1254, 1262

(2d Cir. 1984) (a district court has “the power and the obligation to protect the public and

the efficient administration of justice from [a vexatious litigant’s] litigious propensities”).

“[T]he traditional standards for injunctive relief, i.e. irreparable injury and inadequate

remedy at law, do not apply to the issuance of an injunction against a vexatious litigant.”

Id. Instead, the Second Circuit Court of Appeals has enumerated five factors to be

considered in restricting a litigant’s access to the court system:

(1) the litigant’s history of litigation and in particular whether it entailed

vexatious, harassing or duplicative lawsuits; (2) the litigant’s motive in

pursuing the litigation, e.g., does the litigant have an objective good faith

expectation of prevailing?; (3) whether the litigant is represented by counsel;

(4) whether the litigant has caused needless expense to other parties or has

posed an unnecessary burden on the courts and their personnel; and (5)

whether other sanctions would be adequate to protect the courts and other

parties.

Iwachiw v. N.Y.S. Dep’t of Motor Vehicles, 396 F.3d 525, 528 (2d Cir. 2005) (quotation

omitted). Further, it is well-settled that pro se parties are not immune from Rule 11

sanctions. Ferguson v. Comm’r of Tax & Fin., 739 F. App’x 19, 22 (2d Cir. 2018).

Plaintiff filed her first case against Defendant in 2020. (Harkins I, Dkt. 1). She was

afforded an opportunity to amend her complaint (id., Dkt. 21; Dkt. 22), but still failed to

plausibly state a disability discrimination claim and that claim was dismissed with

prejudice (id., Dkt. 31). Plaintiff appealed the Court’s decision to the Second Circuit (id.,

Dkt. 33), and the Second Circuit dismissed Plaintiff’s appeal because it “lack[ed] an

arguable basis either in law or in fact” (id., Dkt. 39). Plaintiff filed her second case against

Defendant in October 2023. (Harkins II, Dkt. 1). As explained above, the factual

circumstances forming the basis for the claims in Harkins II were the same as those forming

the basis for the claims in Harkins I. The Court again dismissed Plaintiff’s claims. (Id.,

Dkt. 14). Then, Plaintiff filed the instant action in 2024, again raising virtually the same

allegations. Since Plaintiff filed her first case in 2020, Defendant has been forced to file

four separate motions to dismiss or to otherwise defend against Plaintiff’s claims, which

have been previously held to be implausible or to lack a basis in fact or law.

Although Plaintiff has demonstrated a consistent pattern of making duplicative and

meritless filings, she has not yet been warned of the repercussions of such conduct. Taking

into account her pro se status and lack of legal training, the Court will not impose a filing

injunction at this time. See, e.g., Commer v. Am. Fed. of State, Cnty., & Mun. Employees,

272 F. Supp. 2d 332, 340 (S.D.N.Y. 2003) (“[B]ecause Commer is a pro se plaintiff, the

Court declines to impose [Rule 11] sanctions for conduct about which Commer has not

been explicitly warned.”), aff’d, 390 F.3d 203 (2d Cir. 2004); see also Ferguson, 739 F.

App’x at 22 (before imposing injunction, court must afford the plaintiff notice and the

opportunity to be heard); Benitez v. King, 298 F. Supp. 3d 530, 543 (W.D.N.Y. 2018)

(“courts that have imposed sanctions against pro se litigants frequently have attached

importance to the fact that the litigant previously had been placed on notice that he or she

was on the verge of violating Rule 11” (citation omitted)). However, Plaintiff is now

placed on notice and warned that she may not engage in the aforementioned filing

practices—specifically, the duplicative, frivolous claims she has brought against

Citizens in three separate cases, and she is strongly cautioned that any further

frivolous conduct on her part, including bringing further cases against Defendant

raising the same claims she has raised previously, may result in the entry of a filing

injunction against her. Plaintiff is further warned that her further pursuit of such

claims could result in the imposition of other types of sanctions, such as monetary

sanctions.

II. Motion to Amend (Dkt. 11)

Plaintiff has filed a motion for leave to file an amended complaint. (Dkt. 11).

Defendant opposes the motion. (Dkt. 13). For the reasons explained below, Plaintiff’s

motion to file an amended complaint is denied as futile.

Generally, the 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); Gomez v. USAA Fed. Sav. Bank, 171

F.3d 794, 795-96 (2d Cir. 1999) (pro se plaintiffs, whether proceeding in forma pauperis

or those who have paid the filing fee, should be permitted to at least once amend their

complaint when it “gives any indication that a valid claim might be stated”). However,

leave to amend pleadings is properly denied where amendment would be futile. See Cuoco

v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); Ruffolo v. Oppenheimer & Co., 987 F.2d

129, 131 (2d Cir. 1993) (“Where it appears that granting leave to amend is unlikely to be

productive, . . . it is not an abuse of discretion to deny leave to amend.”).

Plaintiff has provided the proposed amended complaint with her motion and the

Court has reviewed it. (See Dkt. 7). Plaintiff’s amended complaint alleges a claim for

slander and a claim for negligent infliction of emotional distress. For the following

reasons, the Court concludes that permitting Plaintiff to file an amended complaint would

be futile, and therefore Plaintiff’s motion for leave to amend her complaint is denied.

With respect to the slander claim, the Court may deny a motion for leave to amend

as futile where the proposed amended claims are time-barred. See 421-A Tenants Ass’n,

Inc. v. 125 Court St. LLC, 760 F. App’x 44, 51 (2d Cir. 2019) (affirming denial of motion

for leave to amend where proposed amendments did not change the fact that claims were

barred by the statute of limitations); Sokolski v. Trans Union Corp., 178 F.R.D. 393, 397

(E.D.N.Y. 1998) (“A motion to amend the complaint may be considered futile if the claims

sought to be added are barred by the relevant statute of limitations.”); see also Burton v.

Wells Fargo Bank, N.A., No. 23-CV-05520, 2024 WL 3173898, at *2 (E.D.N.Y. June 26,

2024) (denying leave to amend as futile when dismissing claims for lack of subject matter

jurisdiction and insufficient service of process and because the claims were time-barred,

among other reasons). The one-year statute of limitations for a slander claim “begins to

accrue on ‘the date of the publication or utterance of the allegedly slanderous statement[.]’”

See Uddoh v. United Healthcare, No. 16-cv-1002 (BMC) (LB), 2017 WL 563973, at *4

(E.D.N.Y. Feb. 10, 2017) (quoting Cullin v. Lynch, 113 A.D.3d 586 (2d Dep’t 2014)); see

also N.Y. CPLR 215(3).

Plaintiff’s slander claims across her cases stem from alleged statements Defendant

allegedly made to an entity called Lifespan regarding Plaintiff’s account information and

her mental status. In Harkins II, Plaintiff alleged that Defendant’s slanderous statements

occurred in 2018 and 2019, well outside the one-year statute of limitations. Plaintiff’s

amended complaint in this action again includes the allegations concerning statements

made to Lifespan, and therefore any claim for slander based on those communications

would be time-barred. Plaintiff further alleges that Defendant falsely accused her of

engaging in unethical conduct, and that this occurred in “summer 2023”—but given this

action was filed in November 2024, any alleged slanderous statements in summer 2023

still would be outside the relevant statute of limitations period. Accordingly, there would

be no useful purpose—particularly given the history of Plaintiff’s repeated efforts to sue

Defendant—to allow Plaintiff an attempt to amend her complaint to add a slander claim.

To the extent Plaintiff claims in her amended complaint that Defendant’s actions

violated the Gramm-Leach-Bliley Act, it is well-settled that there is no private right of

action to bring such a claim. See, e.g., Farley v. Williams, No. 02-CV-0667C(SR), 2005

WL 3579060, at *3 (W.D.N.Y. Dec. 30, 2005) (“Every case to have addressed the issue

has held that the GLBA does not provide for a private right of action.”); see also Shostack

v. Diller, No. 15-CV-2255 (GBD)(JLC), 2015 WL 5535808, at *7 (S.D.N.Y. Sept. 16,

2015) (“It is well-settled that the GLBA does not provide for a private right of action.”),

adopted, 2016 WL 958687 (S.D.N.Y. Mar. 8, 2016). Accordingly, any amendment of the

complaint to add such a claim would be futile.

Finally, as to Plaintiff’s claim for negligent infliction of emotional distress,

amendment of her complaint to add such a claim would also be futile. “To plead a negligent

infliction of emotional distress claim under New York law, a plaintiff must allege (1) a

breach of a duty owed to the plaintiff; (2) emotional harm; (3) a direct causal connection

between the breach and the emotional harm; and (4) circumstances providing some

guarantee of genuineness of the harm.” Francis v. Kings Park Manor, Inc., 992 F.3d 67,

81 (2d Cir. 2021). Plaintiff also must show that she suffered “an emotional injury from

defendant’s breach of a duty which unreasonably endangered her own physical safety.”

Mortise v. United States, 102 F.3d 693, 696 (2d Cir. 1996); see also Gartenberg v. Cooper

Union for the Advancement of Science & Art, ___ F. Supp. 3d ____, 2025 WL 401109, at

*23 (S.D.N.Y. Feb. 5, 2025), reconsideration denied, 2025 WL 602945 (S.D.N.Y. Feb. 25,

2025). Here, neither Plaintiff’s original complaint nor her amended complaint alleges any

facts supporting that Defendant’s conduct placed Plaintiff at risk of physical injury, or that

Defendant caused Plaintiff to fear for her personal safety. Rather, she alleges only that

Defendant treated her unfairly.

Further, banks do not owe any duty of special care to borrowers, and therefore

Plaintiff is hard-pressed to assert a negligence claim against Defendant. See, e.g., Bell v.

Deutsche Bank, No. 18-CV-01593 (JMA) (GRB), 2019 WL 4917901, at *7 (E.D.N.Y.

Sept. 30, 2019) (dismissing the plaintiff’s claim for negligent infliction of emotional

distress, “because plaintiffs’ allegations are conclusory and fail to plead that Deutsche

Bank owed them a duty”); see also Abraham v. Am. Home Mortg. Servicing, Inc., 947 F.

Supp. 2d 222, 236 (E.D.N.Y. 2013) (“It is well settled under New York law that a lender

is not in a fiduciary relationship with a borrower, and thus a lender does not owe a borrower

any special duties.”)). Accordingly, Plaintiff is not permitted to amend her complaint to

add a claim for negligent infliction of emotional distress, since any such amendment would

be futile.

In sum, Plaintiff has had several opportunities to assert claims against Defendant

based on the same set of facts, and on each occasion, she has failed to rectify the defects in

her pleadings. Each of her complaints has fallen short of stating a claim—whether it is

framed as a claim for discrimination, slander, or negligent infliction of emotional distress.

The Court will not permit Plaintiff yet another opportunity to allege a claim against

Defendant. For all those reasons, Plaintiff’s motion to file an amended complaint is denied.

Her remaining motions for miscellaneous relief (Dkt. 3), for a subpoena (Dkt. 4), and to

appoint counsel (Dkt. 12) are denied as moot.

CONCLUSION

For the foregoing reasons, Defendant’s motion to dismiss (Dkt. 9) is granted, but

the request for a filing injunction is denied. Plaintiff’s motion to amend (Dkt. 11) is denied

as futile. Plaintiff’s remaining motions (Dkt. 3; Dkt. 4; Dkt. 12) are denied as moot.

As set forth above, Plaintiff is now placed on notice and warned that she may

not engage in the duplicative, frivolous claims she has brought against Citizens in

three separate cases, and she is strongly cautioned that any further frivolous conduct

on her part, including bringing further cases against Defendant raising the same

claims she has raised previously, may result in the entry of a filing injunction against

her. Plaintiff is further warned that her further pursuit of such claims could result

in the imposition of other types of sanctions, such as monetary sanctions.

The Clerk of Court is directed to enter judgment in favor of Defendant and to close

this case.

SO ORDERED.

________________________________

ELIZABETH A. WOLFORD

Chief Judge

United States District Court

Dated: May 12, 2025

Rochester, New York