Norris

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

TERRANCE ANTHONY NORRIS,

Plaintiff,

v. MEMORANDUM & ORDER

25-CV-03231 (HG)

JPMORGAN CHASE BANK N.A.,

Defendant.

HECTOR GONZALEZ, United States District Judge:

Pro se Plaintiff Terrance Anthony Norris, a banking customer of Defendant, brings this

action against Defendant JPMorgan Chase Bank N.A. Plaintiff alleges four causes of action:

(i) breach of contract; (ii) breach of the implied covenant of good faith and fair dealing;

(iii) conversion; and (iv) negligence. See ECF No. 19 (Second Amended Complaint, “SAC”).1

Defendant moves to dismiss Plaintiff’s SAC for lack of subject matter jurisdiction under Fed. R.

Civ. P. 12(b)(1) and for failure to state a claim under Fed. R. Civ. P. 12(b)(6). See ECF No. 30

(Motion to Dismiss, “Mot.”). For the reasons set forth below, Defendant’s Rule 12(b)(1) motion

is GRANTED.

BACKGROUND

The Court draws the following facts from the SAC and documents attached to or

incorporated by reference in the SAC.2 Plaintiff is a customer of Defendant, who deposited three

1 Unless otherwise indicated, when quoting cases and the parties’ papers, the Court omits

all internal quotation marks, alteration marks, emphases, footnotes, and citations. The Court

refers to the pages assigned by the Electronic Case Files system (“ECF”).

2 The Court is “required to treat [Plaintiff’s] factual allegations as true, drawing all

reasonable inferences in favor of Plaintiff[] to the extent that the inferences are plausibly

supported by allegations of fact.” In re Hain Celestial Grp., Inc. Sec. Litig., 20 F.4th 131, 133

money orders totaling $2,225 into his personal bank account on or about July 12, 2023. See SAC

¶ 5. Two days later, Defendant placed a restriction on Plaintiff’s account “[t]o protect against

potential fraud[.]” See id. at 15. That restriction prevented Plaintiff from accessing the

deposited funds and certain electronic fund transfers credited to the account. See id. ¶ 6. The

restriction impeded Plaintiff from timely using those funds for essential expenses, including

“urgent roof repairs” to his residence. See id. ¶¶ 6, 9. Plaintiff’s inability to repair his roof

without those funds resulted in water intrusion, structural damage, and increased repair costs. Id.

¶ 9.

Although Plaintiff requested, both in person and in writing, that the funds be released or

that Defendant explain the restriction, Defendant did neither. See id. ¶¶ 7, 11–13. Defendant’s

representatives provided conflicting explanations for the restriction, including references to

“possible fraud,” but failed to involve law enforcement when asked. See id. ¶ 10. Defendant’s

explanation of the restriction was insufficient, “vague,” and “conflicting.” Id.

Plaintiff alleges that Defendant’s actions breached the Deposit Account Agreement

(“DAA”), which the parties entered into when Plaintiff opened his account with Defendant. See

id. ¶ 15. Under the DAA, Defendant agreed to “maintain account access, and follow applicable

(2d Cir. 2021). The Court therefore “recite[s] the substance of the allegations as if they

represented true facts, with the understanding that these are not findings of the [C]ourt, as [I]

have no way of knowing at this stage what are the true facts.” Id. Although the general rule is

that a plaintiff may not raise new allegations in his opposition to a motion to dismiss, because

Plaintiff is representing himself, the Court will nevertheless grant him some leeway by

considering both the allegations in the SAC and in Plaintiff’s Opposition in deciding the motion.

See Walker v. Schult, 717 F.3d 119, 122 n.1 (2d Cir. 2013) (“A district court deciding a motion

to dismiss may consider factual allegations made by a pro se party in his papers opposing the

motion.”); Guzman v. Barr, No. 19-cv-7163, 2021 WL 135909, at *2 (S.D.N.Y. Jan. 14, 2021)

(“In addition to what is contained in the complaint, the Court may consider factual statements

made in a pro se plaintiff’s opposition to a motion to dismiss.”).

laws and regulations.” Id. ¶¶ 15–16. Plaintiff claims Defendant breached the DAA by “seizing

and withholding” Plaintiff’s funds “without lawful justification.” Id. ¶ 17. As a result, Plaintiff

suffered financial loss, property damage, and emotional distress. See id. ¶ 19.

LEGAL STANDARD

I. Federal Rule of Civil Procedure Rule 12(b)(1)

When a party moves to dismiss under Rule 12(b)(1) as well as on other grounds, courts

“consider the Rule 12(b)(1) challenge first” because if a court finds that it lacks subject matter

jurisdiction, then the Defendant’s other “defenses and objections become moot and do not need

to be determined.” Daly v. Citigroup Inc., 939 F.3d 415, 426 (2d Cir. 2019). “A district court

properly dismisses an action under [Rule 12(b)(1)] for lack of subject matter jurisdiction if the

court lacks the statutory or constitutional power to adjudicate it.” Cortlandt St. Recovery Corp.

v. Hellas Telecomms. S.à.r.l., 790 F.3d 411, 416–17 (2d Cir. 2015). On a Rule 12(b)(1) motion,

a “district court must take all uncontroverted facts in the complaint (or petition) as true, and draw

all reasonable inferences in favor of the party asserting jurisdiction.” Tandon v. Captain’s Cove

Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014). Furthermore, the Court must

assume that Plaintiff’s legal claims “would be successful on the merits.” See Clementine Co.,

LLC v. Adams, 74 F.4th 77, 83 (2d Cir. 2023).

II. Federal Rule of Civil Procedure Rule 12(b)(6)

“In order to survive a motion to dismiss, a plaintiff must plead ‘enough facts to state a

claim to relief that is plausible on its face.’” Emilee Carpenter, LLC v. James, 107 F.4th 92, 99

(2d Cir. 2024) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim is

plausibly alleged ‘when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.’” Matzell v.

Annucci, 64 F.4th 425, 433 (2d Cir. 2023) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

“In making this assessment, the court must accept as true all of the factual allegations set out in

plaintiff’s complaint, draw inferences from those allegations in the light most favorable to

plaintiff, and construe the complaint liberally.” VR Glob. Partners, L.P. v. Petróleos de

Venezuela, S.A., No. 24-1176, 2024 WL 4891271, at *2 (2d Cir. Nov. 26, 2024). But courts need

not “accept as true” statements of “legal conclusions” in the complaint, and “[t]hreadbare recitals

of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to

defeat a motion to dismiss under Rule 12(b)(6). Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009)

(quoting Iqbal, 556 U.S. at 678).

III. Plaintiff’s Pro Se Status

A pro se complaint “must be held to less stringent standards than formal pleadings

drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). The Court’s obligation “to

construe a pro se complaint liberally” continues to apply “[e]ven after Twombly” established the

plausibility standard for assessing pleadings. Newsome v. Bogan, 795 F. App’x 72, 72 (2d Cir.

2020). “A pro se litigant, however, is not exempt ‘from compliance with relevant rules of

procedural and substantive law.’” Ramos-Nunez v. United States, No. 14-102, 2019 WL

1300811, at *4 (S.D.N.Y. Mar. 21, 2019) (quoting Traguth v. Zuck, 710 F.2d 90, 96 (2d Cir.

1983)).

DISCUSSION

I. The Court Does Not Have Subject Matter Jurisdiction

Federal courts have limited subject matter jurisdiction. Under 28 U.S.C. §§ 1331 and

1332, federal jurisdiction is only available when either (1) a “federal question” is presented, or

(2) there is complete diversity between the parties and the amount in controversy exceeds

$75,000. “A plaintiff asserting subject matter jurisdiction has the burden of proving by a

preponderance of the evidence that it exists.” Makarova v. United States, 201 F.3d 110, 113 (2d

Cir. 2000). “If the court determines at any time that it lacks subject-matter jurisdiction, the court

must dismiss the action.” Fed. R. Civ. P. 12(h)(3).

As best the Court can construe Plaintiff’s allegations concerning subject matter

jurisdiction, he appears to bring this action pursuant to both the Court’s federal question

jurisdiction under § 1331, SAC ¶ 1, and diversity jurisdiction under § 1332, Opp. at 24.3

Defendant moves to dismiss under Fed. R. Civ. P. 12(b)(1), arguing that the Court lacks

jurisdiction because Plaintiff asserts no valid claims arising under federal law and fails to

plausibly allege an amount in controversy sufficient to confer diversity jurisdiction. See Mot. at

17.

A. Federal Question Jurisdiction

Federal courts possess original jurisdiction over civil actions “arising under” federal law.

28 U.S.C. § 1331. An action “aris[es] under federal law . . . if a well-pleaded complaint

establishes either that federal law creates the cause of action or that the plaintiff’s right to relief

necessarily depends on resolution of a substantial question of federal law.” Empire Healthchoice

Assurance, Inc. v. McVeigh, 547 U.S. 677, 689–90 (2006).

3 Although Plaintiff does not allege diversity jurisdiction in the SAC, he does allege it in

the Opposition. See Opp. at 24. Given Plaintiff’s pro se status, “the Court has also considered

whether subject matter jurisdiction lies in this Court under 28 U.S.C.§ 1332.” Mercado v.

Quantum Servicing Corp., No. 15-cv-1500, 2015 WL 1969028, at *4 (E.D.N.Y. Apr. 29, 2015);

see also Clarkes v. Hughes, No. 17-cv-00961, 2018 WL 5634932, at *3 (E.D.N.Y. Oct. 30,

2018) (considering the basis for diversity jurisdiction when the court cannot discern a basis for

federal question jurisdiction alleged in pro se plaintiffs’ amended complaint).

Defendant argues that there is no federal question jurisdiction here because the SAC

abandons any claims Plaintiff formerly brought under the Electronic Fund Transfer Act

(“EFTA”), 15 U.S.C. § 1693. See Mot. at 17. In Opposition, Plaintiff gives conflicting

responses: on the one hand, he states that he “does not raise a specific claim under EFTA in the

[SAC],” ECF No. 37 (Plaintiff’s Opposition, “Opp.”) at 21; on the other hand, he contends that

he “alleges misconduct implicating federal statutes, including Regulation E under the [EFTA],”

id. at 23.

Although Plaintiff’s prior pleadings included a claim under the EFTA, Plaintiff dropped

that claim from the SAC and now brings only state claims. Compare ECF No. 1 (Complaint)

¶¶ 9–11 and ECF No. 7 (First Amended Complaint, “FAC”) ¶¶ 9–11, with generally SAC. “A

[pro se plaintiff] may voluntarily drop claims by choosing not to include them in a[n] [] amended

pleading.” Radin v. Tun, No. 12-cv-1393, 2015 WL 4645255, at *23 (E.D.N.Y. Aug. 4, 2015);

see also Omosefunmi v. Weiss, 198 F.3d 234 (2d Cir. 1999) (finding that “even under the relaxed

pleading standard afforded to pro se litigants,” an “express disavowal” of a claim “requires that

that claim be deemed abandoned”). Accordingly, as the only claims in this action are state

claims, the Court lacks federal question jurisdiction. See 28 U.S.C. § 1331; see also Skarzynska

v. New York Bus. Dev. Corp., No. 15-cv-00140, 2017 WL 1247882, at *3 (E.D.N.Y. Mar. 31,

2017).

B. Diversity Jurisdiction

Federal courts possess original jurisdiction over civil actions when the amount in

controversy exceeds $75,000, exclusive of interest and costs, and “the suit is between ‘citizens of

different States.’” St. Paul Fire & Marine Ins. Co. v. Universal Builders Supply, 409 F.3d 73, 80

(2d Cir. 2005) (quoting 28 U.S.C. § 1332(a)(1)).

The parties do not dispute, nor does the Court find, that complete diversity is lacking

between the parties.4 Rather, Defendant focuses on § 1332’s amount in controversy requirement.

See ECF No. 40 (Defendant’s Reply in Support of Motion; “Reply”) at 15. Plaintiff alleges a

total of $4,994,738.44 in damages, including: (i) $2,225 of withheld deposits; (ii) $25,000 in

property damage; (iii) $72,000 in financial losses, including lost business opportunity and credit

damage; (iv) $2 million for emotional distress; (v) $303,579 in interest; and (vi) $2,592,934.44 in

punitive damages. See SAC ¶ 31. Defendant argues that the plausible amount in controversy is

limited to the $2,225 money order deposits because the DAA precludes Defendant from liability

for “indirect, special, or consequential damages.” Mot. at 18.

The party invoking diversity jurisdiction has the burden of showing that there is a

“reasonable probability” that the claim is in excess of the jurisdictional amount. Scherer v.

Equitable Life Assur. Soc’y of the United States, 347 F.3d 394, 397 (2d Cir. 2003) (quoting

Tongkook Am., Inc. v. Shipton Sportswear Co., 14 F.3d 781, 784 (2d Cir. 1994)). While the

4 Plaintiff alleges that Defendant, a national bank with its main office in Columbus, Ohio,

is a citizen of Ohio. See SAC ¶ 4; see also OneWest Bank, N.A. v. Melina, 827 F.3d 214, 219 (2d

Cir. 2016) (“for diversity purposes, a national bank’s citizenship should be limited to the location

of its main office”). Although Plaintiff alleges that he resides in South Carolina, see SAC ¶ 3,

residency alone is insufficient to establish citizenship for diversity purposes, see Van Buskirk v.

United Grp. of Companies, Inc., 935 F.3d 49, 54 (2d Cir. 2019). Nevertheless, the SAC provides

sufficient documentation to satisfy the Court that diversity exists among the parties because pro

se Plaintiff appears to be a citizen of New York. See, e.g., Techno-TM, LLC v. Fireaway, Inc.,

928 F. Supp. 2d 694, 697 (S.D.N.Y. 2013) (“To determine citizenship, courts consider factors

including voting registration, employment, current residence, location of real and personal

property, location of spouse and family, driver’s license, automobile registration, tax payment

and addresses, and location of a person’s bank account and physician.”). Plaintiff holds a New

York driver’s license, see ECF No. 19-3 at 19; he receives New York State unemployment

benefits, see SAC at 29; his bank statements list a Brooklyn address, see id. at 25; and his wife,

with whom he resides, is a nurse licensed in New York and her affirmation was notarized in New

York one day before the SAC’s filing, see ECF No. 19-1 at 110–11. And nothing in the SAC

and its exhibits, or even the parties’ briefs, offer any indication that Plaintiff is a resident of

Ohio. Accordingly, there is complete diversity among the parties.

Second Circuit “recognizes a rebuttable presumption that the face of the complaint is a good

faith representation of the actual amount in controversy,” Wolde–Meskel v. Vocational

Instruction Project Cmty. Servs., Inc., 166 F.3d 59, 63 (2d Cir. 1999), a court must dismiss the

case for want of subject matter jurisdiction if “from the face of the pleadings, it is apparent, to a

legal certainty, that the plaintiff cannot recover the amount claimed or . . . that the plaintiff never

was entitled to recover that amount, and that his claim was therefore colorable for the purpose of

conferring jurisdiction.” Tongkook, 14 F.3d at 784.

Although “[t]he amount in controversy is determined at the time the action is

commenced,” if a court later determines that the true amount in controversy falls below the

threshold, dismissal for a lack of subject matter jurisdiction is required. Id. at 784, 786. “But the

test remains severe, allowing a finding that the amount in controversy falls below the threshold

only in three situations: ‘1) when the terms of a contract limit the plaintiff’s possible recovery;

2) when a specific rule of substantive law or measure of damages limits the money recoverable

by the plaintiff; and 3) when independent facts show that the amount of damages was claimed by

the plaintiff merely to obtain federal court jurisdiction.’” Brown v. N.Y. State S. Ct. for 2d Jud.

Dist., 680 F. Supp. 2d 424, 429 (E.D.N.Y. 2010) (quoting Wright, Miller & Cooper, Federal

Practice & Procedure: Jurisdiction 3d § 3702).

i. Accrued Interest

The $303,579 in accrued interest that Plaintiff alleges is excluded from the amount in

controversy because § 1332(b) requires an amount exceeding $75,000 “exclusive of interest and

costs.” Stiler v. Great N. Ins. Co., No. 07-cv-2236, 2008 WL 11517681, at *3 (S.D.N.Y. Jan. 2,

2008) (emphasis in original).

ii. Consequential Damages

Next, a total of $2,097,000 of Plaintiff’s alleged damages are consequential damages.

See SAC ¶ 31. Consequential damages are “[l]osses that do not flow directly and immediately

from an injurious act but that result indirectly from the act,” also known as “indirect damages.”

Black’s Law Dictionary (12th ed 2024); see also Horowitz v. Am. Int’l Grp., Inc., 498 F. App’x

51, 54 (2d Cir. 2012) (defining indirect loss, i.e., consequential loss, as “loss arising from the

results of damage rather than from the damage itself”). Here, Plaintiff’s alleged property

damages, financial losses, and emotional distress damages are consequential damages because

they indirectly flow from Defendant’s withholding of the $2,225 deposit. See, e.g., World

Wrestling Ent., Inc. v. Jakks Pac., Inc., 530 F. Supp. 2d 486, 520 (S.D.N.Y. 2007), aff’d, 328 F.

App’x 695 (2d Cir. 2009) (categorizing lost business opportunities as consequential damages);

Edwards v. Great N. Ins. Co., No. 03-cv-2947, 2006 WL 2053717, at *8 (E.D.N.Y. July 21,

2006) (categorizing injury to plaintiff’s credit rating as consequential damages); Abbott v. United

States, 76 F. Supp. 2d 236, 242 (N.D.N.Y. 1999), aff’d, 231 F.3d 889 (2d Cir. 2000)

(categorizing emotional distress as consequential damages); Comm’r v. Schleier, 515 U.S. 323,

336 (1995) (same). Indeed, Plaintiff himself characterizes these alleged damages as

“consequential losses” that resulted from Defendant’s actions. SAC ¶¶ 30–31.

However, as Defendant correctly points out, Plaintiff cannot recover the consequential

damages sought because the DAA bars recovery of “indirect, special, or consequential

damages.” ECF No. 19-1 at 134. Specifically, Section IX.B of the DAA states, in bold and

capitalized letters, that Defendant “WILL NOT BE LIABLE FOR INDIRECT, SPECIAL,

OR CONSEQUENTIAL DAMAGES REGARDLESS OF THE FORM OF ACTION AND

EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.”

Id. (emphasis in original). Courts have found that this contractual bar on consequential damages

is “valid and enforceable” under New York law.5 Serengeti Express, LLC v. JP Morgan Chase

Bank, N.A., No. 19-cv-5487, 2020 WL 2216661, at *4 (S.D.N.Y. May 7, 2020); see also Sommer

v. Fed. Signal Corp., 79 N.Y.2d 540, 551 (1992) (“Absent a statute or public policy to the

contrary, a contractual provision absolving a party from its own negligence will be enforced.”).

Accordingly, none of the consequential damages alleged can plausibly be included in calculating

the amount in controversy.

iii. Punitive Damages

Finally, Plaintiff seeks approximately $2.59 million in punitive damages. SAC ¶ 31.

Punitive damages “are aimed at deterrence and retribution.” State Farm Mut. Auto. Ins. Co. v.

Campbell, 538 U.S. 408, 416 (2003). When a plaintiff demands both actual and punitive

damages—and the plaintiff’s state law claims authorize an award of punitive damages—then

potential punitive damages “must be considered . . . in determining [the] jurisdictional amount.”

Peoples Club of Nigeria Int’l, Inc. v. Peoples Club of Nigeria Int’l – N.Y. Branch, Inc., 821 F.

App’x 32, 35 (2d Cir. 2020) (citing Bell v. Preferred Life Assur. Soc’y of Montgomery, 320 U.S.

238, 240 (1943)). However, “punitive damages will be considered with heightened scrutiny.”

Miller v. Cap. One Bank (USA) N.A., No. 24-cv-2834, 2024 WL 4654222, at *3 (E.D.N.Y. Nov.

5 Although the parties do not raise a choice of law issue, the Court applies state law

because “where the parties are silent as to the issue of choice of law, ‘it is appropriate for the

Court to apply New York law—the law of the forum state—to Plaintiff’s state-law claims.’”

NYQF Inc. v. Sigue Corp., 781 F. Supp. 3d 104, 119 (E.D.N.Y. 2025) (citing Global Switching

Inc. v. Kasper, No. 06-cv-412, 2006 WL 1800001, at *11 n. 10 (E.D.N.Y. June 29, 2006));

Herrschaft v. Nat’l Transportation, Inc., No. 21-cv-5618, 2023 WL 12056617, at *3 (E.D.N.Y.

Aug. 2, 2023) (“[P]laintiffs do not address choice of law in their papers, nor has defendant, by

virtue of its default. In similar circumstances, courts in this circuit have applied the law of the

forum state where the parties have failed to address the issue and also cited exclusively to the

forum state’s laws.”).

1, 2024); see also Nwanza v. Time, Inc., 125 F. App’x 346, 349 (2d Cir. 2005) (“We will not

allow a plaintiff to meet the amount-in-controversy requirement by demanding $5,000,000 in

punitive damages, when the only actual damages that he claims are unavailable as a matter of

law”); Zahn v. Int’l Paper Co., 469 F.2d 1033, 1034 n.1 (2d Cir. 1972) (“[I]n computing

jurisdictional amount, a claim for punitive damages is to be given closer scrutiny, and the trial

judge accorded greater discretion, than a claim for actual damages.”). The Supreme Court has

set constitutional limits on the ratio of punitive damages to compensatory damages6 that may

permissibly be awarded. See State Farm Mut. Auto. Ins. Co., 538 U.S. at 410. While there is no

precise mathematical formula to determine an appropriate ratio, the Supreme Court has held that

“single-digit multipliers are more likely to comport with due process.” Id. at 425–26 (finding a

punitive damages award with a 145-to-1 ratio unreasonable and disproportionate).

Under New York law, “[t]he concept of punitive damages has been sanctioned . . . in

actions based on negligence.” Martin v. Nieuw Amsterdam Prop. Mgmt., LLC, No. 22-cv-3506,

2025 WL 1504124, at *11 (E.D.N.Y. May 27, 2025) (quoting Home Ins. Co. v. Am. Home

Prods. Corp., 75 N.Y.2d 196, 204 (1990)). Here, as discussed above, Plaintiff successfully

alleges only $2,225 in compensatory damages because his alleged property damages, financial

losses, and emotional distress damages are consequential damages barred by the DAA, and the

alleged interest accrued on the withheld funds is excluded by § 1332(b). Yet he seeks

approximately $2.59 million in punitive damages—a ratio of roughly 1,165 to 1 compared to his

successfully alleged compensatory damages. This ratio far exceeds the single-digit range the

6 “Compensatory damages are intended to redress the concrete loss that the plaintiff has

suffered by reason of the defendant’s wrongful conduct.” State Farm Mut. Auto. Ins. Co., 538

U.S. at 416 (citing Restatement (Second) of Torts § 903, pp. 453–454 (1979)).

Supreme Court has identified as more likely to comport with due process. See State Farm Mut.

Auto. Ins. Co., 538 U.S. at 426. The Court therefore declines to count Plaintiff’s alleged punitive

damages toward the amount in controversy. See KT Exp. v. Wolf Canyon of Am., Inc., USA,

No. 09-cv7123, 2010 WL 5249231, at *2 (S.D.N.Y. Dec. 17, 2010) (dismissing the case for lack

of subject matter jurisdiction because plaintiffs’ alleged punitive damages cannot be recovered

and plaintiffs are thus unable to meet the amount in controversy requirement).

* * *

In sum, the only recoverable damages Plaintiff alleges to a “reasonable probability,”

Scherer, 347 F.3d at 397, are the $2,225 of withheld deposits plus a potential of approximately

$20,000 of punitive damages. Because this combined amount does not come close to meeting

the $75,000 jurisdictional threshold, the Court lacks diversity jurisdiction. See 28 U.S.C.

§ 1332(a). Accordingly, the Court dismisses Plaintiff’s claims without prejudice for lack of

subject matter jurisdiction, and the Court does not reach the parties’ Rule 12(b)(6) arguments.

II. Leave to Amend

“A court should freely give leave when justice so requires, but it may, in its discretion,

deny leave to amend for good reason, including futility, bad faith, undue delay, or undue

prejudice to the opposing party.” MSP Recovery Claims, Series LLC v. Hereford Ins. Co., 66

F.4th 77, 90–91 (2d Cir. 2023) (affirming denial of leave to amend). When a pro se complaint

fails to state a cause of action, the court generally “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.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). Of course, an

opportunity to amend is not required where, as here, “[t]he problem with [the plaintiff’s] cause of

action is substantive” such that “better pleading will not cure it.” Id. Thus, where “granting

leave to amend is unlikely to be productive . . . it is not an abuse of discretion to deny leave to

amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993).

Here, the Court finds that leave to amend is unwarranted for two reasons. First, the

deficiencies in Plaintiff’s claims cannot be cured by amendment because the DAA has limited

Plaintiff’s recovery. See Porter v. Uhler, No. 17-cv-0047, 2019 WL 1292226, at *6–7

(N.D.N.Y. Mar. 21, 2019), aff’d, 790 F. App’x 329 (2d Cir. 2020). Second, Plaintiff has already

amended the Complaint twice, and because the Court considered allegations raised in the

Opposition as if they were included in the formal pleadings, Plaintiff has effectively already been

given a third opportunity to amend his complaint. See McKeever v. Singas, No. 17-cv-4996,

2022 WL 5430426, at *2, *15 (E.D.N.Y. June 16, 2022) (considering allegations raised for the

first time in pro se plaintiff’s opposition in deciding a motion to dismiss and denying plaintiff

leave to file a third amended complaint), report and recommendation adopted as modified, 2022

WL 4095558 (E.D.N.Y. Sept. 7, 2022). That is already more than the Second Circuit ordinarily

requires and further leave to replead would be futile. See Applewhite v. N.Y.C. Dep’t of Educ.,

No. 21-cv-2928, 2024 WL 3718675, at *21 (E.D.N.Y. Aug. 8, 2024), aff’d sub nom. Applewhite

v. N.Y.C. Dep’t of Educ., No. 24-cv-2131, 2025 WL 783650 (2d Cir. Mar. 12, 2025). Plaintiff is

therefore denied a further opportunity to amend.

III. Warning About Fake Quotes and Citations

Defendant brings to the Court’s attention that Plaintiff’s Opposition includes citations to

a nonexistent case, GAI Consultants, Inc. v. Homestead Vill. Ltd. P’ship, 961 F. Supp. 1437,

1445 (E.D. Pa. 1997), see Opp. at 16, and nonexistent quotations in several other cases.7 See

Reply at 9–10.

The Second Circuit has explained that a party’s attempt to persuade a court or oppose an

adversary by relying on non-existent precedent “is an abuse of the adversary system.” Park v.

Kim, 91 F.4th 610, 615 (2d Cir. 2024); see also Mata v. Avianca, Inc., 678 F. Supp. 3d 443, 464–

66 (S.D.N.Y. 2023) (“A fake opinion is not ‘existing law’ and citation to a fake opinion does not

provide a non-frivolous ground for extending, modifying, or reversing existing law, or for

establishing new law.”). Indeed, courts swiftly sanction attorneys who engage in this abusive

practice. See, e.g, Ramirez v. Humala, No. 24-cv-242, 2025 WL 1384161, at *2 (E.D.N.Y. May

13, 2025) (collecting cases).

It is just as unacceptable for a pro se litigant to submit briefs with fake case citations as it

is for a lawyer to do so. “[A]lthough courts make some allowances for a pro se Plaintiff’s failure

to cite to proper legal authority, courts do not make allowances for a Plaintiff who cites to fake,

nonexistent, misleading authorities.” Dukuray v. Experian Info. Sols., No. 23-cv-9043, 2024 WL

3812259, at *11 (S.D.N.Y. July 26, 2024), report and recommendation adopted, No. 23-cv-

9043, 2024 WL 3936347 (S.D.N.Y. Aug. 26, 2024). “Quite obviously, many harms flow from

such deception—including wasting the opposing party’s time and money, the Court’s time and

resources, and reputational harms to the legal system (to name a few).” Id.

7 For example, Plaintiff purports to quote from Diesel Props S.r.l. v. Greystone Bus. Credit

II LLC, 631 F.3d 42, 52 (2d Cir. 2011), but the quote Plaintiff attributes to the case, “a party

breaches a contract when it fails to perform a contractual duty without a valid excuse,” does not

exist. Opp. at 13. Similarly, the quote, “[e]ven when a contract confers decision-making power

on one party, that party must act in good faith and in accordance with fair dealing,” that Plaintiff

attributes to Dalton v. Educ. Testing Serv., 87 N.Y.2d 384, 394 (1995), does not exist. Id. at 16.

The Court warns Plaintiff that any further filings with citations to nonexistent legal

authority may result in sanctions, including his submissions being stricken, filing restrictions or

monetary penalties being imposed, and/or his case being dismissed.

CONCLUSION

For the foregoing reasons, the Court GRANTS Defendant’s motion to dismiss, ECF

No. 30, and DISMISSES Plaintiff’s Second Amended Complaint, ECF No. 19, in its entirety

without prejudice under Rule 12(b)(1). Although Plaintiff paid the filing fee, the Court certifies

under 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith

and therefore in forma pauperis status is denied for the purpose of an appeal. Coppedge v.

United States, 369 U.S. 438, 444–45 (1962). The Clerk of Court is respectfully directed to enter

judgment consistent with this Order and close this case. The Clerk of Court is also directed to

mail a copy of this Order to pro se Plaintiff and note the mailing on the docket.

SO ORDERED.

/s/ Hector Gonzalez

HECTOR GONZALEZ

United States District Judge

Dated: Brooklyn, New York

May 6, 2026