Petition for Writ of Certiorari — Mahfooz Ahmad, Petitioner v. Colin Day, et al.

Appendix

TABLE OF APPENDIX

Second Circuit Court of Appeals, Order, Aug. 7,

2025, denying motion to recall mandate and to

consolidate appeals 23-920 & 24-856...................... la

Second Circuit Court of Appeals, Judgment, Aug.

5, 2024, “lacks arguable basis”................................ 2a

Second Circuit Court of Appeals, Judgment, Nov.

7, 2023 “lacks arguable basis”.................................. 4a

Second Circuit Court of Appeals, Judgment, Nov.

7, 2023, “lacks arguable basis”.................................5a

U.S. District Court, Southern District of New York

l:20-cv-04507, Opinion & Order, Dec. 28, 2022,

leave to amend partly granted................................. 6a

U.S. District Court, Southern District of New York

l:20-cv-04507, Order, June 6, 2023, dismissal

granted; injunction denied...................................... 28a

U.S. District Court, Southern District of New York

l:20-cv-04507, Order, April 02, 2024, motion to

reopen case denied.......... ......................................... 47a

United States Supreme Court, No. 23-6337,

Petition for Writ of Certiorari Denied and Petition

for Rehearing Denied.............................................. 48a

United States Supreme Court, No. 24-6397,

Petition for Writ of Certiorari Denied and Petition

for Rehearing Denied.................

49a

la

Second Circuit Court of Appeals, Order, Aug.

7, 2025, denying motion to recall mandate and

to consolidate appeals 23-920 & 24-856.

Mahfooz Ahmad,

Plaintiff-Appellant,

v.

Colin Day, et al.,

Defendants-Appellees.

Second Circuit Case No: 24-856

August 07, 2025,

Eunice C. Lee,

Beth Robinson,

Maria Araujo Kahn,

Circuit Judges.

Appellant, pro se, moves the Court to recall

the mandate and to consolidate Docket No. 24-856

with Docket No. 23-920. IT IS HEREBY ORDERED

that the motion is DENIED.

For the Court, Catherine O’Hagan Wolfe,

Clerk of Court.

2a

Second Circuit Court of Appeals, Judgment,

Aug. 5, 2024, “lacks arguable basis”

Mahfooz Ahmad,

Plaintiff-Appellant,

v.

Colin Day, et al.,

Defendants-Appellees.

Second Circuit Case No: 24-856

Eunice C. Lee,

Beth Robinson,

Maria Araujo Kahn,

Circuit Judges,

Appellant, proceeding pro se, moves for a

writ of habeas corpus, to hold the appeal in

abeyance, for an injunction, for summary

judgment, and to withdraw the habeas, abeyance,

and summary judgment motions. Appellees,

through counsel, move for imposition of a leave-tofile sanction against Appellant. Upon due

consideration, it is hereby ORDERED that

Appellant’s motions are DENIED and the appeal is

DISMISSED because it “lacks an arguable basis

either in law or in fact.” Neitzke v. Williams, 490

U.S. 319, 325 (1989); see Pillay v. INS, 45 F.3d 14,

17 (2d Cir. 1995) (per curiam) (holding that this

3a

Court has “inherent authority” to dismiss a

frivolous appeal). It is further ORDERED that

Appellees’ motion is DENIED.

For the Court, Catherine O’Hagan Wolfe,

Clerk of Court.

4a

Second Circuit Court of Appeals, Judgment,

Nov. 7, 2023 “lacks arguable basis”

Mahfooz Ahmad,

Plaintiff-Appellant,

v.

<

Colin Day, et al.,

Defendants-Appellees.

Second Circuit Case No: 23-920

Amalya L. Kearse,

Susan L. Carney,

Myrna Perez,

Circuit Judges,

Appellant, pro se, moves for in forma

pauperis status, appointment of counsel, an initial

hearing en banc, a summary remand, and an

award of costs for the appeal. Upon due

consideration, it is hereby ORDERED that the

motions are DENIED, and the appeal is

DISMISSED because it “lacks an arguable basis

either in law or in fact.” Neitzke v. Williams, 490

U.S. 319, 325 (1989); see 28 U.S.C. § 1915(e).

For the Court, Catherine O’Hagan Wolfe,

Clerk of Court.

5a

Second Circuit Court of Appeals, Judgment,

Nov. 7, 2023, “lacks arguable basis”

Mahfooz Ahmad,

Plaintiff-Appellant,

v.

Colin Day, et al.,

Defendants-Appellees.

Second Circuit Case No: 23-920

It is hereby Ordered that the motion to

reconsider (docket entry 131) and motion for

unrestricted access to PACER and waiver of

PACER fees (docket entry 140) are DENIED as

moot in light of the mandate issued on December 7,

2023.

For the Court, Catherine O’Hagan Wolfe, Clerk of

Court.

6a

U.S. District Court, Southern District of New

York l:20-cv-04507, Opinion & Order, Dec. 28,

2022, leave to amend partly granted.

Mahfooz Ahmad,

Plaintiff-Appellant,

v.

Colin Day, et al.,

Defendants-Appellees.

U.S. District Court for the Southern District

Court of New York Case No: l:20-cv-04507

December 28, 2022, Gabriel W. Gorenstein, United

States Magistrate Judge,

Pro se plaintiff Mahfooz Ahmad brought this

case alleging claims relating to his employment

and the alleged theft of his intellectual property.

See First Amended Complaint, filed Aug. 25, 2021

(Docket # 76) (“FAC”). Following a partial

dismissal of his first amended complaint, Ahmad

moves for leave to file a new complaint.1 In the

1 See Notice of Motion for Proposed Amended Complaint, filed

July 13, 2022 (Docket # 168) (“Pl. Mot.”); Memorandum in

Support of Motion for Proposed Amended Complaint, filed

July 13, 2022 (Docket # 168) (“Pl. Mem.”); Proposed Second

Amended Complaint, attached to Pl. Mem. (Docket # 168-1)

(“PSAC”); Letter, filed July 25, 2022 (Docket# 172) (“July 25

Letter”); Memorandum of Law in Opposition, filed July 27,

7a

proposed second amended complaint (“PSAC”),

Ahmad names as defendants iCIMS Inc. (“iCIMS”)

and associated individuals Colin Day and Courtney

Dutter (collectively, the “iCIMS defendants”);

Beacon

Hill

Staffing

Group

(“Beacon”);

naviHealth Inc. (“naviHealth”) and Clay Richards;

Vista Equity Partners (“Vista”); Susquehanna

Growth Equity (“Susquehanna”); and Comcast

Corporation (“Comcast”). See PSAC. For the

reasons that follow, the motion for leave to amend

is granted in part and denied in part.

I.

BACKGROUND

A. Allegations in the Proposed Amended

Complaint

The proposed amended complaint makes the

following allegations, which we assume to be true

for purposes of ruling on this motion to amend.

Ahmad worked in a contract position for

NBCUniversal beginning September 30, 2013.

PSAC | 3;2 July 25 Letter at 2. In February 2014,

Ahmad launched a social networking website

called “Keepup,” and, a month later, he applied for

2022 (Docket# 173) (“iCIMS Opp.”); Memorandum of Law in

Opposition, filed July 27, 2022 (Docket # 174) (“naviHealth

Opp.”); Memorandum of Law in Opposition, filed July 27,

2022 (Docket # 175) (“Vista Opp.”); Memorandum of Law in

Opposition, filed July 27, 2022 (Docket# 176) (“Beacon Opp.”);

Reply Memorandum in Support, filed Aug. 24, 2022 (Docket #

183) (“Pl. Reply”); Letter, filed Sept. 13, 2022 (Docket # 184)

(“September 13 Letter”).

2 The PSAC restarts paragraph numbering at various points.

Our citations to paragraph numbers are to the paragraphs in

the section entitled “Amended Complaint,” beginning on page

10 of the document. Where we cite to other portions of the

PSAC, we use page numbers followed by a parenthetical

indicating the paragraph number.

8a

funding from an investment firm called Dreamlt

Ventures, a New York state based firm backed by

Comcast. PSAC If If 4-5. Ahmad found out later that

year that two New York state entrepreneurs, Angel

Davis and Lauren Washington, won $250,000 in a

startup competition for a social networking

application also named “Keepup.” PSAC 1f 6. Davis,

Washington, “and their affiliates” trademarked

Keepup with the U.S. Patent and Trademark

Office (“USPTO”). PSAC 1f 6. Ahmad sent them a

cease-and-desist letter, and in December 2015, he

filed a request to extend time to oppose this

trademark with the USPTO, which denied the

request. PSAC 1f 6. Ahmad later applied for a job at

iCIMS and was hired. PSAC U1f 7-10. iCIMS hired

Ahmad at Comcast’s order, “so that iCIMS and its

affiliates could easily and closely monitor

Plaintiff.” PSAC If 9. Ahmad began working for

iCIMS on February 1, 2016. PSAC If 10. Although

Ahmad had “great work performance” while at

iCIMS, he received worse pay and more

burdensome responsibilities than his colleagues.

PSAC 1f1J 10, 12. A majority of iCIMS employees

“were of white race.” PSAC If 10. iCIMS forced

Ahmad to work through weekends and occasionally

well over 60 hours a week without requisite pay.

PSAC Ulf 14, 17. Even though iCIMS was aware

that Ahmad is Muslim and observes a compulsory

Friday prayer, his managers scheduled calls

during Friday prayers and spoke to him harshly

when he explained why he was rescheduling a

Friday call. PSAC U 18. On some occasions, iCIMS

would order food for employees, but did not order

kosher or halal food that Ahmad could eat,

consistent with his religious practices. PSAC 1f 13.

9a

On May 30, 2018, Ahmad submitted a “pdf

pitch deck business plan” of “novel intellectual

property” named “Jobtrail” to the CEO of iCIMS,

Colin Day, as an investment opportunity. PSAC If

19. On June 5, 6, and 7, 2018, iCIMS scheduled

meetings to learn and review Jobtrail’s “pre[]release platform.” PSAC ^f 20. Having “fully

understood Jobtrail’s trade secrets, business

model, application and use case of the novel

intellectual property,” iCIMS then terminated

Ahmad’s employment on June 7, 2018, “acting in

discrimination.” PSAC 1f1f 21-22. The complaint

alleges that iCIMS “acted deceptively and illegally

to acquire intellectual property that Plaintiff

had been creating even prior to joining iCIMS as

an employee.” PSAC 1f 27. On August 17, 2018,

about two months after Ahmad’s termination from

iCIMS, Vista invested $1.2 billion in iCIMS. PSAC

U 32.

In June 2019, Beacon contacted Ahmad

about a job opportunity, initially stating that

Ahmad would be a “contractual employee” of

Beacon and would work with naviHealth to

implement iCIMS’ software. PSAC f 35. After

Ahmad expressed “great hesitance,” Beacon and

naviHealth stated that naviHealth was seeking

someone full time for a role as “Senior

Configuration Engineer.” Id.

Beacon and

naviHealth said “this role will be made direct hired

full time with naviHealth and that will happen

after Plaintiff initiates the contract.” Id. At some

point in July 2019, Ahmad accepted the role

Beacon offered, induced by “false statements of [a

promising career with naviHealth.” PSAC 5 36. As

part of this acceptance, Ahmad also signed the first

10a

and last page of the agreements titled “Invention

Assignment Agreement” and “Business Associate

Addendum.” Id. Despite a “remote employment

understanding,”

Beacon

and

naviHealth

demanded Ahmad travel to Brentwood, Tennessee,

which cost him time and money. PSAC

40.

During his employment, Beacon and naviHealth

“improperly” reported Ahmad’s wages as earnings

in Tennessee. PSAC 5) 41. Because of this, Ahmad

was not able to qualify or was delayed in qualifying

for unemployment benefits during the pandemic,

“resulting in financial harm in New York.” Id.

Around June 2020, iCIMS, “as backed by” both

Vista and Susquehanna, was “able to engineer and

reverse-engineer Plaintiff[’]s novel intellectual)]

property and began to offer it as services to its

clients.” PSAC | 44.

The complaint also contains (1) allegations

claiming various conspiracies among the

defendants to harm plaintiff; (2) allegations that

some action was taken by the “defendants” without

specifying which defendants are at issue or the role

of each defendant; and (3) allegations that cite a

statute

or

legal

principles that are conclusory insofar as they do

not detail the specific acts demonstrating that the

defendants violated those laws or legal principles.

See, e.g., PSAC H 25, 29, 33-34, 37-39, 43-46, 4951, 54-59, 61-62. For the reasons explained below,

we do not consider these allegations.3

3 We also ignore an allegation that makes references to other

filings in this case, see PSAC U 52, as such an allegation is

inconsistent with the requirements of Fed. R. Civ. P. 10,

which provides pleadings shall refer to paragraphs of an

earlier pleading, not to memoranda of law.

Ila

B. Procedural History

Ahmad filed his original complaint in this action on

June 11, 2020, naming the iCIMS defendants and

describing for the most part an employment

discrimination claim. Complaint filed June 11,

2020 (Docket # 2) (“Compl.”). The iCIMS

defendants, originally the only defendants in the

case, moved to compel arbitration shortly

thereafter on the ground that the claim in the

complaint arose out of confidentiality agreement

Ahmad had executed with iCIMS. See Ahmad v.

Day, 556 F. Supp. 3d 214, 215 (S.D.N.Y. 2021). The

Court denied the motion to compel arbitration on

the ground that the complaint made claims of

employment discrimination and did not arise out of

the confidentiality agreement. Id. Ahmad filed the

FAC on August 25, 2021, adding naviHealth,

Beacon Hill, and Vista as defendants and adding

intellectual property claims. See FAC. The iCIMS

defendants answered the FAC on September 15,

2021. Answer, filed Sept. 15, 2021 (Docket # 78).

naviHealth, Beacon, and Vista each filed a motion

to dismiss. See Motion to Dismiss, filed Jan. 14,

2022( Docket # 104); Motion to Dismiss, filed Jan.

18, 2022 (Docket # 109); Motion to Dismiss, filed

Jan. 18, 2022 (Docket # 117). The Court granted

naviHealth and Beacon’s motions on the ground

that plaintiff lacked standing to sue them because

he had shown no injury traceable to their conduct

and granted Vista’s motion to dismiss for lack of

personal jurisdiction. See Ahmad v. Day, 2022 WL

1814905, at *5-6 (S.D.N.Y. June 2, 2022), adopted,

2022 WL 2452231 (S.D.N.Y. July 6, 2022). Ahmad

was given permission to move to file an amended

complaint. See Ahmad, 2022 WL 2452231, at *3.

12a

Ahmad filed the instant motion on July 13, 2022.

See Pl. Mem. Attached to the motion is a proposed

amended complaint that realleges claims against

the previous defendants and adds as new

defendants Susquehanna, Clay Richards (who is

associated with naviHealth), and Comcast. PSAC

at 1. The proposed complaint lists a host of federal

and state statutes and common law claims. See

PSAC at 5-8. Some relate to employment

discrimination or mistreatment during his

employment, and others appear to relate to his

claims of theft of his intellectual property. Id.

Additionally, Ahmad filed documents in

which he seeks to challenge the constitutionality of

the Federal Arbitration Act. See Notice of

Constitutional Question, filed July 13, 2022

(Docket # 167) (“Not.”); Supplement to ECF Docket

# 167, filed July 18, 2022 (Docket# 171) (“Supp. to

Not.”).

II. LAW GOVERNING MOTIONS FOR LEAVE

TO AMEND

Rule 15(a) provides that a “court should

freely give leave [to amend] when justice so

requires.” Fed. R. Civ. P. 15(a)(2). The policy

behind this rule is that “[l]iberal amendment

promotes judicial economy by making it possible to

dispose of all contentions between parties in one

lawsuit.” Bilt-Rite Steel Buck Corp. v. Duncan’s

Welding & Corr. Equip., Inc., 1990 WL 129970, at

*1 (E.D.N.Y. Aug. 24, 1990) (citing JennAir Prods,

v. Penn Ventilator, Inc., 283 F. Supp. 591, 594

(E.D. Pa. 1968)). The decision to grant or deny

leave to amend under Rule 15(a)(2) is “within the

discretion of the trial court.” See Zenith Radio

Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330

13a

(1971) (citation omitted). The court may deny leave

to amend for “good reason,” which normally

involves an analysis of the four factors articulated

in Foman v. Davis, 371 U.S. 178, 182 (1962): undue

delay, bad faith, futility of amendment, or undue

prejudice to the opposing party. McCarthy v. Dun

& Bradstreet Corp., 482 F.3d 184, 200 (2d Cir.

2007) (citing Foman, 371 U.S. at 182).

“Futility is a determination, as a matter of law,

that proposed amendments would fail to cure prior

deficiencies or to state a claim under Rule 12(b)(6)

of

the Federal Rules of Civil Procedure.” Empire

Merchs., LLC v. Reliable Churchill LLLP, 902 F.3d

132, 139 (2d Cir. 2018) (citations omitted).

III. DISCUSSION

In reviewing the complaint, we are mindful

that “[a] document filed pro se is to be liberally

construed, and a pro se complaint, however

inartfully pleaded, must be held to less stringent

standards than formal pleadings drafted by

lawyers.” Erickson v. Pardus, 551 U.S. 89, 94

(2007) (citations and internal quotation marks

omitted); accord McPherson v. Coombe, 174 F.3d

276, 280 (2d Cir. 1999) (A pro se party’s pleadings

should be construed liberally and interpreted “to

raise the strongest arguments that they

suggest[.]”) (quoting Burgos v. Hopkins, 14 F.3d

787, 790 (2d Cir. 1994)). However, even pro se

pleadings must contain factual allegations that

“raise a right to relief above the speculative level.”

Dawkins v. Gonyea, 646 F.Supp.2d 594, 603

(S.D.N.Y.2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 545, (2007)). We address

each defendant or set of defendants in turn.

14a

A. Vista

The Court previously granted Vista’s motion

to dismiss the First Amended Complaint based on

lack of personal jurisdiction. Ahmad, 2022 WL

1814905, at *5-6. The Court found that the FAC did

not establish that Vista “committed a tortious act

merely by investing money in iCIMS” and did not

meet

the

requirements for specific jurisdiction under New

York law. Ahmad, 2022 WL 1814905, at *6,

adopted, 2022 WL 2452231, at *2.

In examining the proposed amended

complaint, we ignore the paragraphs that make

allegations against all or some defendants in an

undifferentiated manner as a group, including

those with conclusory allegations of conspiracy.

See, e.g., Appalachian Enterprises, Inc. v.

ePayment Sols., Ltd., 2004 WL 2813121, at *7

(S.D.N.Y. Dec. 8, 2004) (“A plaintiff fails to satisfy

rule 8, where the complaint lumps all the

defendants together and fails to distinguish their

conduct because such allegations fail to give

adequate notice to the defendants as to what they

did wrong.”) (citations and internal punctuation

omitted); Stutts v. De Dietrich Grp., 2006 WL

1867060, at *14 (E.D.N.Y. June 30, 2006)

(“Conspiracy claims premised upon conclusory,

vague or general allegations will not withstand a

motion to dismiss.”) (citation and internal

punctuation omitted). We also ignore conclusory

allegations regarding Vista’s presence in New

York. See PSAC at 9 (^ 7) (alleging that all

defendants have “significant presence in the Sate

[sic] of New York” and “generate a significant

15a

amount of revenue and have large presence in the

state.”).

The only specific allegations regarding Vista

are that on August 17, 2018, it “invested hundreds

of millions of dollars (approximately $1.2 Billion)

in iCIMS, . . . two months after Plaintiffs unlawful

termination.” PSAC

32. The complaint alleges

that

Vista sold “close to half its stake in iCIMS” in June

2022. PSAC H 47, 53.

Nothing else in the complaint describes any

specific acts by Vista. While the complaint contains

a number of allegations lumping Vista in with

various other defendants, see e.g.,

44-49, no

description is given of any acts undertaken by

Vista itself. The claims that the defendants as a

group harmed plaintiff are entirely conclusory.

As the Court noted previously, Ahmad, 2022

WL 1814905, at *5 n.8, general jurisdiction over a

nonresident corporation based on the corporation’s

in-state presence is constitutional only if the

corporation’s in-state contacts “are so continuous

and systematic as to render it essentially at home

in the forum State.” Daimler AG v. Bauman, 571

U.S. 117, 139 (2014) (quoting Goodyear Dunlop

Tires Operations, S.A. v. Brown, 564 U.S. 915, 919

(2011)) (punctuation omitted). Ahmad’s proposed

complaint contains no non-conclusory allegations

showing such contacts, and thus subjecting Vista

to general personal jurisdiction would violate the

Due Process Clause. See Ahmad, 2022 WL

1814905, at *5 n.8.

As to specific jurisdiction, which in New

York is codified at C.P.L.R. § 302(a), the proposed

complaint does not cure the defects of the original

16a

complaint. Section 302(a) authorizes the exercise of

specific personal jurisdiction over a nonresident

defendant in four circumstances: (1) if the

defendant “transacts any business within the state

or contracts anywhere to supply goods or services

in the state,” id. § 302(a)(1); (2) if the defendant

“commits a tortious act within the state, except as

to a cause of action for defamation of character

arising from the act,” id. § 302(a)(2); (3) if the

defendant “commits a tortious act without the state

causing injury to person or property within the

state, except as to a cause of action for defamation

of character arising from the act, if he (i) regularly

does or solicits business, or engages in any other

persistent course of conduct, or derives substantial

revenue from goods used or consumed or services

rendered, in the state, or (ii) expects or should

reasonably expect the act to have consequences in

the state and derives substantial revenue' from

interstate or international commerce,” id. §

302(a)(3); or (4) if the defendant “owns, uses or

possesses any real property situated within the

state,” id. § 302(a)(4). There are no non-conclusory

allegations that show that Vista engaged in any of

these acts. The only specific allegation about

Vista’s activity is a business transaction with

iCIMS two months after Ahmad’s termination.

That transaction has no nexus to whatever harm

Ahmad is alleging (or any other claim in the

proposed complaint) and thus cannot satisfy

§302(a)(l). See, e.g. Sole Resort, S.A. de C.V. v.

Allure Resorts Mgmt., LLC, 450 F.3d 100, 103 (2d

Cir. 2006) (“A connection that is ‘merely

coincidental’

is

insufficient

to

support

jurisdiction.”) (citation omitted). As to the

17a

remaining allegations referring to defendants as a

group, they are all conclusory, and “a plaintiff may

not

rely

on

‘conclusory

non-fact-specific

jurisdictional allegations’ to overcome a motion to

dismissf.]” Doe v. Delaware State Police, 939 F.

Supp. 2d 313, 321 (S.D.N.Y. 2013)(quoting Jazini

v. Nissan Motor Co., 148 F.3d 181, 185 (2d Cir.

1998)). Accordingly, the Court will not grant leave

to amend to include Vista as a defendant.

B. Defendants Beacon Hill and naviHealth

1. Intellectual Property Claims

The Court previously granted the motion to

dismiss claims against naviHealth and Beacon

because of a lack of standing. Ahmad, 2022 WL

1814905, at *4-5, adopted, 2022 WL 2452231, at *23. The PSAC appears to assert claims about the

theft of intellectual property by iCIMS, roping

naviHealth and Beacon into these claims in an

entirely conclusory manner, again without

showing how their actions had any relation to those

claims. See, e.g., PSAC | 33. Thus, plaintiff lacks

standing to sue Beacon and naviHealth to remedy

any harm caused to him by iCIMS, given that he

continues to show no connection between the

actions of Beacon and naviHealth and any

allegedly improper action by iCIMS. See, e.g.,

Rothstein v. UBS AG, 708 F.3d 82, 91 (2d Cir.

2013) (to satisfy standing requirement, plaintiff

must “demonstrate a causal nexus between the

defendant’s conduct and the injury”) (citation

omitted).

2. Employment-Related Allegations

The proposed complaint includes entirely

new allegations regarding plaintiffs employment

that name naviHealth and Beacon Hill. We discern

18a

two separate factual circumstances. First, plaintiff

alleges that Beacon and/or naviHealth did not

fulfill a promise to provide him with a “full time

career” and to be hired by naviHealth. PSAC 35.

Second, the proposed complaint alleges that

Beacon and naviHealth “improperly reported

Plaintiff[’]s wages in the State of Tennessee” and

that this misreporting meant he later was not “able

to qualify for Regular Unemployment Benefits” or

was otherwise delayed in receiving benefits. PSAC

41 In its opposition, Beacon Hill disputes making

any such promise to Ahmad and cites to emails and

documents Ahmad previously placed in the record

along with language from their employment

contract in an apparent effort to argue that the

motion to amend would be futile. Beacon Opp. at

18-19. naviHealth similarly points to materials

outside the record to refute Ahmad’s allegations.

naviHealth Opp. at 5 n.2. But materials outside the

pleadings are not properly considered on a motion

to amend, see Kiarie v. Dumbstruck, Inc., 473 F.

Supp. 3d 350, 355-56 (S.D.N.Y. 2020). As one court

has noted, the fact that futility may sometimes

constitute a reason for denial of a motion to amend

is not a general invitation to explore the merits of

novel proposed claims or to raise defenses that

require analysis of matters outside the pleadings.

The futility defense to a motion to amend is not, in

short, a substitute for a motion to dismiss or a

motion for summary judgment. Livingston v.

Trustee Bank, 2021 WL 6199655, at *2 (N.D.N.Y.

Apr. 23, 2021) (citation omitted). Accordingly, we

consider only the allegations in the complaint.

With respect to the claim made that plaintiff was

falsely given the “promise of [a] full time career,”

19a

PSAC U 35, if we were to construe this claim as one

of fraud, it plainly does not satisfy the pleading

standards of Fed. R. Civ. P. 9(b) inasmuch as

Ahmad’s allegations “failQ to state with

particularity the circumstances constituting fraud”

Indeed, the circumstances of the alleged promise

are utterly garbled and no particular speaker or

statement is identified. See PSAC

35. To the

extent the proposed amended complaint could be

construed as attempting to state a breach of

contract claim, it fails because it is does not allege

with any specificity what the actual promise was,

who made the promise, and in what form it was

made. See, e.g., Wolff v. Rare Medium, Inc., 210 F.

Supp. 2d 490, 494 (S.D.N.Y. 2002) (“a plaintiff

must identify the specific provision of the contract

that was breached as a result of the acts at issue”),

affd, 65 F.App’x. 736 (2d Cir. 2003); Sud v. Sud,

211 A.D.2d 423, 424 (1st Dep’t 1995) (A breach of

contract claim is “properly dismissed” where

plaintiff fails “to allege, in nonconclusory language,

as required, the essential terms of the parties’

purported contract, including the specific

provisions of the contract upon which liability is

predicated.”).

The other employment-related claim is that

Beacon and naviHealth “improperly reported

Plaintiff[’]s wages in the State of Tennessee” and

that this misreporting meant he later was not “able

to qualify for Regular Unemployment Benefits” or

was otherwise delayed in receiving benefits. PSAC

TJ 41. The proposed complaint, however, does not

explain why or how naviHealth would be

responsible for the misreporting. According to the

proposed complaint, Ahmad accepted a job offer

20a

from Beacon for a project at naviHealth, and there

is no factual allegation that he worked for

naviHealth. PSAC TH 35-36. Thus, the proposed

complaint does not show that Ahmad has standing

to assert this claim with respect to naviHealth

because he has not shown how naviHealth caused

the alleged injury.

As for the claim with respect to Beacon,

Ahmad’s allegations are meager and vague. There

is an unclear reference to a “remote employment

understanding,” PSAC 40, with no specifics as to

the basis for this “understanding.” Additionally,

Ahmad’s factual allegations concede that the work

was at a Tennessee-based business and that he

repeatedly traveled to Tennessee for this work.

PSAC

40. More importantly, Ahmad has not

alleged how his wages were misreported, and it is

unclear what statutory or common law claim he

would have against Beacon. Whatever supposed

right this claim draws from, the complaint does not

provide allegations that show the claim could

survive a motion to dismiss.

The proposed complaint also alleges

repeatedly that different defendants alone or in

tandem breached a fiduciary responsibility owed to

Ahmad. PSAC

38, 49, 56. Putting aside the

conclusory nature of the allegations, a claim for

breach of fiduciary duty requires “the existence of

a fiduciary relationship[.]” Yukos Cap. S.A.R.L. v.

Feldman, 977 F.3d 216, 241 (2d Cir. 2020) (quoting

United States Fire Ins. Co. v. Raia, 94, A.D.3d 749

(2d Dep’t 2012)). A fiduciary relationship is a

specific arrangement grounded in trust and

confidence, which may be express or implied. N.

Shipping Funds I, LLC v. Icon Cap. Corp., 921 F.

21a

Supp. 2d 94, 104-105 (S.D.N.Y. 2013). Ahmad has

alleged no facts to show the existence of a fiduciary

relationship with naviHealth or Beacon. At times,

he asserts instead that employers owe such a duty

to their employees. See, e.g., PSAC

38. But, in

fact, case law holds otherwise. See, e.g., Kavitz v.

Int’l Bus. Machines Corp., 2010 WL 11507447, at

*10 (S.D.N.Y. Aug. 27, 2010), affd, 458 F. App’x 18

(2d Cir. 2012) (“[T]here is no fiduciary relationship

between an employee and his employer.”); BGC

Partners, Inc. v. Avison Young (Canada) Inc., 160

A.D.3d 407, 407-08 (1st Dep’t 2018) (“[N]o fiduciary

relationship

arises from

an

employment

relationship[.]”). Thus, the complaint does not state

a claim against naviHealth and Beacon based on

breach of fiduciary duty.

Finally, while neither party has raised it, we

are not convinced that there is subject matter

jurisdiction over any claims against naviHealth

and Beacon. The Court will not list the many

federal statutes listed in the complaint, see Compl.

at 5-8, as it is enough to say there are no factual

allegations in the complaint against naviHealth or

Beacon that fit within any of these federal statutes.

With the federal claims gone from the complaint,

there is no indication that the Court has subject

matter jurisdiction over any state law claims

inasmuch as there are no non- conclusory

allegations (or indeed any allegations) that show

the jurisdictional amount in 28 U.S.C. § 1332 has

been satisfied with respect to any employmentrelated claims.

3. Clay Richards

The proposed complaint would add Clay

Richards as a defendant to the case. Id. at 4. While

22a

it appears that Clay Richards is associated with

naviHealth, see PSAC at 3-4 (showing same

address for Richards as naviHealth),4 the only

reference the proposed complaint makes to

Richards specifically is that “Defendants

collectively including Clay Richards, conspired to

create an illegal plan of a misrepresented

contract.” PSAC

34. Such a vague and

conclusory allegation of a conspiracy is insufficient

to state a claim against Richards.

For the above reasons, the motion to amend

as to Beacon, naviHealth and Clay Richards is

denied.

C. The iCIMS Defendants

The original complaint and FAC contained

claims against the iCIMS defendants for

employment discrimination. See Compl. at 5; FAC

9-11. The new complaint adds a number of other

claims relating to employment discrimination and

intellectual property. See, e.g., PSAC

7-38.

The iCIMS defendants first argue that the

entire proposed amended complaint as it concerns

them is improper because the Court in its July 6,

2022 Order did not permit Ahmad to seek leave to

amend with respect to the iCIMS defendants.

iCIMS Opp. at 2-3; see also Ahmad, 2022 WL

2452231, at *3. We disagree that Ahmad is barred

from making a motion to amend.

While the rulings in the July 6, 2022, Order

are certainly the law of the case, its grant of

permission to file a leave to amend does not speak

4 In its opposition memorandum, naviHealth identified

Richards as the former CEO of naviHealth. naviHealth Opp.

at 6.

23a

to any future motion to amend with respect to the

iCIMS defendants. As iCIMS itself recognizes,

iCIMS Opp. at 2, Fed. R. Civ. P. 15(a)(2) allows a

party to seek leave to amend. iCIMS selectively

quotes from that rule to omit the portion that

states that leave to amend should be “freely” given

when “justice so requires.” In a perhaps related

argument, iCIMS argues that the new allegations

in the complaint “should have been included in

either [Ahmad’s] Original or First Amended

complaint” and that there is some burden in

responding to allegations two years after the filing

of the original complaint. Id. at 5. But iCIMS

makes no effort to show any prejudice resulting

from the new allegations, and it is settled that in

the absence of prejudice or bad faith, undue delay

is not in itself a basis to reject a motion to amend.

See State Tchrs. Ret. Bd. v. Fluor Corp., 654 F.2d

843, 856 (2d Cir. 1981); accord Contrera v. Langer,

314 F. Supp. 3d 562, 575 (S.D.N.Y. 2018).

iCIMS also argues that the complaint

violates Rule 8 of the Federal Rules of Civil

Procedure in that it fails to contain a “short and

plain

statement

of

the

claim showing the pleader is entitled to relief.”

iCIMS Opp. at 3. It argues that the complaint is so

“confusing, ambiguous, and unintelligible” that the

defendants cannot respond. Id. at 4. We disagree.

While, as we have noted, there are a number of

allegations that are improper, vague, and

conclusory, we believe that they are of a character

that iCIMS should be able to admit or deny (or

deny knowledge or information about) the

allegations without great difficulty. In other words,

the complaint passes muster under Rule 8 even if

24a

the allegations may fail to state a claim under Rule

12(b)(6).

Finally, iCIMS argues that “many of the

allegations are meritless or time-barred.” iCIMS

Opp. at 4. iCIMS’ brief, however, confines its

arguments as to the merits of the claims to a single,

brief paragraph and provides only the most cursory

argument on this point. See id. As to one claim, it

improperly relies on material outside the

pleadings. See, e.g., id. (asserting that plaintiff was

under 40 years old and thus cannot state a claim

for age discrimination). iCIMS also states that its

brief gives a “mere sampling” of the deficiencies in

the proposed complaint. Id. In light of the cursory

and undeveloped manner in which iCIMS presents

its arguments as to the merits of any potential

motion to dismiss (and thus as to the “futility” of

accepting the proposed complaint), we do not find

it appropriate to deny leave to amend to add

allegations against the iCIMS defendants on the

ground of futility. The iCIMS defendants will be

free to make such arguments in a future motion,

such

as

a

motion to dismiss, or perhaps more efficiently, a

motion for summary judgment.

D. Newly Added Defendants

The proposed complaint would add Comcast

and Susquehanna as defendants if allowed. PSAC

at 4. While these defendants have not yet been

served or appeared, it is plain from the face of the

complaint that it states no claims against them and

thus the plaintiff should not be permitted to amend

the complaint to add these defendants. This is one

of those instances where, if the complaint were

filed, the Court could appropriately dismiss it

25a

immediately upon filing under 28 U.S.C. §

1915(e)(2)(B) on the ground that plaintiff is

proceeding in forma pauperis and it is

“unmistakably clear that the . . . complaint lacks

merit or is otherwise defective.” Catzin v. Thank

You & Good Luck Corp., 899 F.3d 77, 82 (2d Cir.

2018) (citation omitted).

As to Comcast, the only non-conclusory and

specific allegations are that it was involved with

“Dreamlt Ventures” in the period of 2012-2014.

PSAC

1-6. Ahmad alleges only that Comcast

“backed” Dreamlt. PSAC | 5. He does not make

any allegations showing that Comcast actually

caused him any injury, let alone within any

possible period that would not be barred by a

relevant statute of limitations. Ahmad does allege

that iCIMS hired plaintiff “on the orders of its

affiliates [sic] Comcast so that iCIMS and its

affiliates could easily and closely monitor

Plaintiff.” PSAC If 9. These allegations, however,

do not state any claim for relief against Comcast.

See generally United States ex rel. Hussain v.

CDM Smith, Inc., 2018 WL 11217206, at *1

(S.D.N.Y. Jan. 31, 2018) (“[T]he substance of

Relator’s contemplated amendments is so vague as

to preclude application of the Rule 15 standard,

thereby rendering amendment futile.”). Moreover,

it appears that Ahmad lacks standing to assert any

claim against Comcast as he has not shown “a

causal connection” between any injury to Ahmad

“and the conduct complained of.” Lujan v. Defs. of

Wildlife, 504 U.S. 555, 560 (1992). Thus, the Court

lacks subject matter jurisdiction over any claim

against Comcast. Finally, there are no non-

26a

' conclusory allegations that there is personal

jurisdiction over Comcast.

As to Susquehanna, the complaint’s

allegations that mention it are entirely conclusory

and/or made in conjunction with allegations

against other defendants or unsupported claims of

conspiracy that fail to specify what acts

Susquehanna specifically engaged in. See PSAC

44, 46, 48-49. It is similarly the case that Ahmad

lacks standing to assert any claim against

Susquehanna because he has not shown “a causal

connection” between any injury to Ahmad “and the

conduct complained of.” Lujan, 504 U.S. at 560.

Thus, the Court would lack subject matter

jurisdiction over this claim. Additionally, there are

no non-conclusory allegations that there is

personal jurisdiction over Susquehanna.

E. FAA Notice

Finally, Ahmad has filed a document seemingly in

conjunction with the briefing of this motion that

seeks to challenge the constitutionality of the

Federal Arbitration Act (“FAA”). See Not.; Supp. to

Not. There is no claim involving the FAA in this

case, however. While iCIMS at one point sought to

dismiss the complaint on the ground that it was

covered by an arbitration agreement, the Court

denied that motion. See Ahmad, 556 F. Supp. 3d at

215. As a result, this Court has no reason to make

any ruling regarding the FAA inasmuch as federal

courts may only “determine actual controversies

arising between adverse litigants.” Muskrat v.

United States,219 U.S. 346, 361 (1911); accord

Whole Woman’s Health v. Jackson, 142 S. Ct. 522,

532 (2021).

27a

CONCLUSION

For the above reasons, the motion for leave

to amend (Docket # 168) is granted in part and

denied in part. Ahmad is given leave to file the

proposed amended complaint as long as he deletes

from the caption and from the list of defendants (on

pages 3 and 4) the following defendants: Beacon

Hill Staffing Group, naviHealth Inc., Vista Equity

Partners, Clay Richards, Susquehanna Growth

Equity, and Comcast Corporation. In other words,

plaintiff may file the proposed amended complaint

as long as the only defendants named are iCIMS

Inc., Colin Day, and Courtney Dutter. Also, this

proposed amended complaint must be filed on or

before January 6, 2023. So, Ordered, December 28,

2022, New York, New York.

28a

U.S. District Court, Southern District of New

York l:20-cv-04507, Order, June 6, 2023,

dismissal granted; injunction denied.

Mahfooz Ahmad,

Plaintiff-Appellant,

v.

Colin Day, et al.,

Defendants-Appellees.

U.S. District Court for the Southern District

Court of New York Case No: l:20-cv-04507

June 06, 2023, Jesse M. Furman, United States

District Judge,

Plaintiff Mahfooz Ahmad, proceeding

without counsel, brings this case against iCIMS,

Inc. (“iCIMS” or “the Company”), iCIMS Chief

Executive Officer Colin Day, and iCIMS Deputy

General Counsel Courtney Dutter (collectively,

“Defendants”), asserting a host of federal and state

causes of action arising from events during and

after his employment with iCIMS. The Second

Amended Complaint makes passing reference to a

dozen or so federal and state statutes, but —

liberally construed — it alleges three causes of

action. See ECF No. 188 (“SAC”), 4-8, H 1-25.

First, Ahmad alleges employment discrimination

on the basis of race, religion, and national origin,

29a

in violation of Title VII of the Civil Rights Act of

1964 (“Title VH”), 42 U.S.C. § 2000e et seq., Section

1981 of the 1866 Civil Rights Act (“Section 1981”),

42 U.S.C. § 1981; New York State Human Rights

Law (“NYSHRL”), N.Y. Exec. Law § 290 et seq.; and

New York City Human Rights Law (“NYCHRL”),

N.Y.C. Admin. Code § 8-101 et seq. SAC 4-5,

14. Second, Ahmad alleges wage and hour violations

under the Fair Labor Standards Act (“FLSA”), 29

U.S.C. § 201 et seq. SAC 5, U 6. Finally, Ahmad

alleges that Defendants misappropriated his

intellectual property and violated the Defend

Trade Secrets Act (“DTSA”), 18 U.S.C. § 1836 et

seq. SAC 7,

16, 22-23. Defendants now move,

pursuant to Rule 12(b)(6) of the Federal Rules of

Civil Procedure, to dismiss the Complaint for

failure to state a claim. ECF No. 197.5 For the

5 While the parties do not address the issue, the Court notes

that Defendants previously filed an answer to the First

Amended Complaint. See ECF No. 78 (“Defs.’ Answer”).

Although Rule 12(b) requires that a party move to dismiss

before filing a responsive pleading, courts have generally held

that a party may move to dismiss an amended complaint,

notwithstanding a prior answer to an earlier complaint, if the

amendment added new factual allegations. See, e.g.,

Coppelson v. Serhant, No. 19-CV-8481 (LJL), 2021 WL

148088, at *3 (S.D.N.Y. Jan. 15, 2021); Kalin v. Xanboo, Inc.,

526 F. Supp. 2d 392, 398 (S.D.N.Y. 2007). This is especially

true when, as here, the earlier answer alleged failure to state

a claim as an affirmative defense. See Doolittle v. Ruffo, 882

F. Supp. 1247, 1257 n.9 (N.D.N.Y. 1994); Wright & Miller,

Federal Practice and Procedure § 1361 (3d ed. 2020); see also

Defs.’ Answer 5, If 1. In any event, to the extent that

Defendants’ motion is untimely under Rule 12(b)(6), the Court

may and does treat it as a motion for judgment on the

pleadings under Rule 12(c). See, e.g., Patel v. Contemporary

Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001)

30a

reasons that follow, Defendants’ motion to dismiss

is GRANTED.6

BACKGROUND

The following facts, which are taken from

the Second Amended Complaint, are deemed to be

true for purposes of this motion and construed in

the light most favorable to Ahmad. See, e.g.,

Kleinman v. Elan Corp., PLC, 706 F.3d 145, 152

(2d Cir. 2013). Ahmad was hired by iCIMS as a

Data Migration Specialist in February 2016. SAC

12, *|J 10. He was promoted twice but received only

minimal salary increases; his employment later

transitioned from in-person to remote. Id. at 12, 5J5I

10-11.

Sometime

thereafter,

Ahmad’s

responsibilities increased: He was required to

commute to headquarters periodically without

reimbursement and often worked more than forty

hours per week without overtime compensation. Id.

at 12-13,

12-15, 17. Additionally, despite

knowing that Ahmad is a practicing Muslim,

iCIMS managers did not order halal or kosher food

on occasions that he visited headquarters with

other employees and scheduled calls during

compulsory Friday prayer on multiple occasions.

Id. 13-14, 51II 13, 18. Ahmad alleges that, on one

occasion, he “was spoken to harshly” after he

(holding that conversion “makes eminently good sense” under

such circumstances and citing cases).

6 In light of that disposition, Ahmad’s motions for a

preliminary injunction, see ECF No. 212, for appointment of

pro bono counsel, see ECF No. 232, to file certain documents

under seal, see ECF No. 233, and to waive any injunction

bond, see ECF No. 234, are denied as moot.

31a

explained that he needed to reschedule a meeting

due to Friday prayers. Id. at 14, 18. On May 30,

2018, Ahmad submitted to Day “as an investment

opportunity” a pitch deck business plan for a web­

based social networking platform he had developed

called Jobtrail; after Ahmad did so, iCIMS

scheduled meetings to review the business plan. Id.

14,

19-20. On June 7, 2018, however, his

employment was terminated, allegedly in order to

deprive him of his intellectual property. Id. at 15,

H 22-25.

Ahmad

alleges that,

following his

termination, iCIMS “and their affiliates” launched

a complex retaliatory scheme to cover up their

“illegal and deceptive copying of [his] novel

intellectual property invention.” Id. at 17, 33. The

Second Amended Complaint is somewhat fuzzy on

the particulars of this plan, making allegations

only as to former Defendants naviHealth, Inc.

(“naviHealth”) and Beacon Hill Staffing Group

(“Beacon Hill”), styled as “affiliates” of iCIMS.7 Id.

at 17, 35. In essence, Ahmad alleges that in June

2019, a year after he was terminated from iCIMS,

he received unsolicited emails from Beacon Hill

encouraging him to apply for a position with

7 Ahmad’s First Amended Complaint added naviHealth and

Beacon Hill as defendants. See ECF No. 76. On June 2, 2022,

Magistrate Judge Gorenstein issued a Report and

Recommendation recommending dismissal of the Amended

Complaint against naviHealth and Beacon Hill for lack of

personal jurisdiction and Article III standing, which the

Honorable Analisa Torres — to whom this case was previously

assigned — adopted shortly thereafter. See Ahmad v. Day, No.

20-CV-4507 (AT), 2022 WL 1814905 (S.D.N.Y. June 2, 2022),

adopted 2022 WL 2452231 (S.D.N.Y. Jul. 6, 2022).

32a

naviHealth. Id. Ultimately, he got a job with

naviHealth as a Senior Configuration Engineer, a

role that required him to implement iCIMS

software. Id. Ahmad claims that, as a condition of

employment, he was “deceptively lured and

induced” into signing an “Invention Assignment

Agreement,” after which iCIMS apparently

“reverse- engineer[ed]” Ahmad’s intellectual

property for its own purposes. Id. at 18, 20,

36,

43-44.

STANDARD OF REVIEW

In reviewing a motion to dismiss pursuant to

Rule 12(b)(6), a court must accept the factual

allegations set forth in the complaint as true and

draw all reasonable inferences in favor of the

plaintiff. See Giunta v. Dingman, 893 F.3d 73, 79

(2d Cir. 2018). A court will not dismiss any claims

unless the plaintiff has failed to plead sufficient

facts to state a claim to relief that is facially

plausible, see Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007) — that is, one that contains

“factual content that allows the court to draw the

reasonable inference that the defendant is liable

for the misconduct alleged,” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009). More specifically, a plaintiff

must allege facts showing “more than a sheer

possibility that a defendant has acted unlawfully.”

Id. A complaint that offers only “labels and

conclusions” or “a formulaic recitation of the

elements

of

a

cause

of

action will not do.” Twombly, 550 U.S. at 555.

Further, if the plaintiff “ha[s] not nudged [his]

claims across the line from conceivable to

plausible, [those claims] must be dismissed.” Id. at

33a

570. Where, as here, a plaintiff brings claims of

employment discrimination, however, the facts

“alleged in the complaint need not give plausible

support to the ultimate question of whether the

adverse employment action was attributable to

discrimination. They need only give plausible

support to a minimal inference of discriminatory

motivation.” Littlejohn v. City of New York, 795

F.3d 297, 311. (2d Cir. 2015); see also Vega v.

Hempstead Union Free Sch. Dist., 801 F.3d 72, SO87 (2d Cir. 2015). Ahmad is proceeding pro se —

that is, he is proceeding without counsel. It is well

established that a court is “obligated to afford a

special solicitude to pro se litigants.” Tracy v.

Freshwater, 623 F.3d 90, 101 (2d Cir. 2010); accord

Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009).

Thus, when considering Ahmad’s submissions, the

Court must interpret them “to raise the strongest

arguments that they suggest. ” Triestman v. Fed.

Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)

(per curiam) (internal quotation marks omitted).

Nevertheless, “to survive a motion to dismiss, a pro

se plaintiff must still plead sufficient facts to state

a claim that is plausible on its face.” Bodley v.

Clark, No. ll-CV-8955 (KBF), 2012 WL 3042175,

at *2 (S.D.N.Y. July 23, 2012); accord Green v.

MpLaughlin, 480 F. App’x 44, 46 (2d Cir. 2012)

(summary order).

DISCUSSION

As noted, the Court liberally construes the

Second Amended Complaint to allege three sets of

claims: employment discrimination claims under

federal, state, and local law; wage and hour claims

under the FLSA; and misappropriation of

34a

intellectual property claims. 8 The Court will

discuss each set of claims in turn, but will leave the

NYCHRL claims for last.

A. Employment Discrimination Claims

First,

Ahmad

brings

employment­

discrimination claims under Title VII, Section

1981^ and the NYSHRL. Courts examine claims

under Title VII, Section 1981, and the NYSHRL

using the same general standards. See Torre v.

Charter Commc’ns., Inc., 493 F. Supp. 3d 276, -85

(S.D.N.Y. 2020) (Title VII and NYSHRL); Awad v.

City of New York, No. 13-CV-5753 (BMC), 2014 WL

1814114, at *5 (E.D.N.Y. May 7, 2014) (Section

1981, Title VII, and NYSHRL). Under these

statutes, “[t]o survive a motion to dismiss, a

plaintiff need only establish a prima facie case of .

.. discrimination by demonstrating that (1) he was

within the protected class; (2) he was qualified for

the position; (3) he was subject to an adverse

employment action; and (4) the adverse action

8 The Court declines to consider claims raised in the Second

Amended Complaint that are wholly without factual support

and not addressed in Ahmad’s opposition to Defendants’

motion to dismiss. See, e.g., White v. Gutwein, No. 20-CV4532 (NSR), 2022 WL 2987554, at *2 (S.D.N.Y. July 28, 2022)

(“The Court’s duty to construe [a pro se] Complaint liberally

and favorably is not the equivalent of a duty to re-write it.”

(internal quotation marks omitted)). The Court also declines

to consider claims raised for the first time in Ahmad’s

opposition, including his First Amendment claims. See ECF

No. 215 (“Pl.’s Opp’n”), at 26; see also, e.g., Davila v. Lang,

343 F. Supp. 3d 254, 267 (S.D.N.Y. 2018) (noting that a court

may consider new facts raised by a pro se plaintiff in

opposition “to the extent that they are consistent with the

complaint” but that a plaintiff may not raise “entirely new

causes of action for the first time” (internal quotation marks

omitted)).

35a

occurred under circumstances giving rise to an

inference of discrimination.” Menaker v. Hofstra

Univ., 935 F.3d 20, 30 (2d Cir. 2019) (cleaned up).

At this early stage of the litigation, Ahmad must

“only give plausible support to a minimal inference

of discriminatory motivation”; he need not

plausibly allege that “the adverse employment

action was attributable to discrimination.”

Littlejohn, 795 F.3d at 311. Unlike the other three

statutes, however, Section 1981 applies only to

claims of intentional racial discrimination. See

Patterson v. Cnty. of Oneida, 375 F.3d 206, 226 (2d

Cir. 2004).

Measured against these standards, Ahmad’s

claims of employment discrimination —which are

based on three categories of allegations — fall

short.9 The first category of allegations is that he

was denied a salary increase despite being

assigned the “worst job duties” and “worst work

responsibilities.” SAC 12-13,

10-14. As

Defendants correctly point out, however, the

Second Amended Complaint is bereft of any

allegation that he was paid less well because of his

race, national origin, or religion. Defs.’ Mem. 21.

9 To the extent that the Second Amended Complaint alleges

claims under the Age Discrimination in Employment Act or

discrimination based on membership in any other protected

class, such claims were not included in, or reasonably related

to the claims that were included in, Ahmad’s Equal

Employment Opportunity Commission complaint, see ECF

No. 201- 2 (noting specifically that the bases for

discrimination were creed, national origin, and race/color),

and thus would be subject to dismissal for failure to exhaust

administrative remedies, see Williams v. N.Y.C. Hous. Auth.,

458 F.3d 67, 70 (2d Cir. 2006); Deravin v. Kerik, 335 F.3d 195,

201 (2d Cir. 2003).

36a

Ahmad merely asserts in conclusory fashion that

he did not receive as large a raise as other

employees, the majority of whom were white. SAC

12, If 10; see also Pl.’s Opp’n 22. But he fails to plead

any facts relating to the conduct . and

responsibilities of other employees, differences in

compensation, or other circumstances tending to

demonstrate that he was paid less by reason of his

race, religion, or national origin.

Accordingly, Ahmad’s claims based on a pay

disparity fail as a matter of law. See, e.g., Servello

v. N.Y. State Office of Child. & Fam. Servs., No. 18CV-0777, 2019 WL 974972, at *5 (N.D.N.Y. 2019)

(holding that by “failing] to plausibly allege that

[his] and [other] employees’ duties required

substantially equal responsibility, Plaintiff fails to

make out an unequal pay claim under . . . Title

VII”); Hughes v. Xerox Corp., 37 F. Supp. 3d 629,

645 (W.D.N.Y. 2014) (dismissing an unequal pay

claim for failure to identify similarly situated co­

workers who were paid more than the plaintiff);

accord Matthew v. Tex. Comptroller of Pub. Accts.,

No. 21-CV- 5337 (JPC), 2022 WL 4626511, at *7-8

(S.D.N.Y. Sept. 30, 2022); Jong-Fwu v. Overseas

Shipholding Grp., Inc., No. 00-CV-9682 (DLC),

2002 WL 1929490, at *6 (S.D.N.Y. Aug. 21, 2002).

Ahmad’s next category of allegations sounds

in the hostile work environment arena. To

establish a hostile work environment under Title

VII, Section 1981, or the NYSHRL, “a plaintiff

must show that ‘the workplace is permeated with

discriminatory intimidation, ridicule, and insult

that is sufficiently severe or pervasive to alter the

conditions of the victim’s employment and create

an abusive working environment.” Littlejohn, 795

37a

F.3d at 320-21 (quoting Harris v. Forklift Sys., Inc.,

510 U.S. 17, 21 (1993)); accord Lenart v. Coach,

Inc., 131 F. Supp. 3d 61, 66(S.D.N.Y. 2015)

(applying the same standards to the NYSHRL

claim). Ahmad’s allegations, even taken together,

fall short of this rigorous standard. He contends

that his job duties were more burdensome than

those of other employees, SAC 12-13,

12, 14-15;

see also Pl.’s Opp’n 22; that iCIMS failed to provide

halal (or kosher) meals when he came into the

office and, further, that iCIMS refused to take into

consideration his mandatory prayer times when

scheduling calls, SAC at 13-14,13, 18; and that,

on one occasion, he was spoken to harshly after he

explained that he needed to reschedule a call, id. at

14, U 18. Once again, however, what dooms

Ahmad’s claims is what is missing: any allegation

that this treatment was “because of his race,

national origin, or religion.” Farooq v. N.Y.C.

Health & Hosps. Corp., No. 19-CV-6294 (JMF),

2020 WL 5018387, at *9 (S.D.N.Y. Aug. 25, 2020).

Moreover, Ahmad offers only “[o]ffhand and

isolated incidents of offensive conduct,” which “will

not support a claim of discriminatory harassment.

” Salas v. N.Y.C. Dep’t of Investigation, 298 F.

Supp. 3d 676, 683 (S.D.N.Y. 2018) (internal

quotation marks omitted); see, e.g., Harris v. NYU

Langone Med. Ctr., No. 12-CV-0454 (RA), 2013 WL

3487032, at *15 n. 19 (S.D.N.Y. July 9, 2013)

(noting that the plaintiffs claim that she “spoke a

prayer at work in the presence of her supervisor . .

. resulting in inhumane discipline and discharge,”

without more, is insufficient to survive a motion to

dismiss), adopted as modified 2013 WL 5425336

(S.D.N.Y. Sept. 27, 2013); Brodt v. City of New

38a

York, 4 F. Supp. 3d 562, 569 (S.D.N.Y. 2014)

(“Courts also dismiss religious discrimination

claims when the allegations are too vague to

plausibly allege animus.”).

Finally, Ahmad asserts in conclusory

fashion that iCIMS “discriminatorily and

unlawfully terminated” his employment. SAC at

14, If 21. But, as Defendants point out, see Defs.’

Mem. 20, the very same paragraph of the Second

Amended Complaint explicitly alleges that the

reason for Ahmad’s termination was his proffering

of the pitch deck to Day, see SAC 14,

20-21. That

is, Ahmad’s own allegations undermine any claim

that his termination was caused by discrimination

on the basis of race, national origin, or religion. See,

e.g., Soloviev v. Goldstein, 104 F. Supp. 3d 232, 249

(E.D.N.Y. 2015) (granting a motion to dismiss

where the plaintiff had “shown no connection

between his termination and his gender, race, or

national origin”); see also, e.g., Nationwide Mut.

Ins. Co. v. Morning Sun Bus. Co., No. 10-CV-1777

(ADS), 2011 WL 381612, at *6 (E.D.N.Y. Feb. 2,

2011) (“[Where a plaintiffs] own pleadings are

internally inconsistent, a court is neither obligated

to reconcile nor accept the contradictory

allegations in the pleadings as true in deciding a

motion to dismiss.”).

Thus, Ahmad’s Title VII, Section 1981, and

NYSHRL claims must be and are dismissed.

B. FLSA Claims

Ahmad’s FLSA claims are almost all timebarred and, regardless, fail to state a claim. In

general, a statute of limitations is “an affirmative

defense that must be raised in the answer.” Ellul

v. Congregation of Christian Bros., 774 F.3d 791,

39a

798 n.12 (2d Cir. 2014). It is well established,

however, that “a statute of limitations defense may

be decided on a Rule 12(b)(6) motion if the defense

appears on the face of the complaint.” Id. (citing

Staehr v. Hartford Fin. Servs. Grp., Inc., 547 F.3d

406, 425 (2d Cir. 2008)). That is the case here for

nearly all of Ahmad’s FLSA claims. In general, the

statute of limitations for an FLSA claim is two

years. See 29 U.S.C. § 255(a); see also, e.g., Alvarez

v. Michael Anthony George Const. Corp., 15 F.

Supp. 3d 285, 296 (E.D.N.Y. 2014). Ahmad filed his

initial Complaint — in which he did arguably plead

an FLSA violation, see ECF No. 2, at 5 (“On many

occasions I was expected to work 60+ hours/wk.,

with no overtime pay.”) — on June 11, 2020.

Accordingly, any FLSA claim based on paychecks

prior to June 11, 2018, is time-barred. See

Nakahata v. N.Y.- Presbyterian Healthcare Sys.,

Inc., 723 F.3d 192, 198-99 (2d Cir. 2013) (“The

cause of action for FLSA . . . claims accrues on the

next regular payday following the work period

when services are renderedf, and] each paycheck

represents a potential cause of action.”). Ahmad

was terminated on June 7, 2018, SAC 14, 21, so,

at most, his final pay period would be within the

applicable statute of limitations; any claims based

on earlier pay periods are time-barred.

It is true that the statute of limitations for

an FLSA claim is “extended to three years” where

the violation was willful. Alvarez, 15 F. Supp. 3d at

296 (internal quotation marks omitted); see 29

U.S.C. § 255(a). But Ahmad does not allege facts in

any of his complaints, let alone the operative

Second Amended Complaint, to suggest that the

alleged FLSA violation was willful. See

40a

McLaughlin v. Richland Shoe Co., 486 U.S. 128,

132-33 (1988) (defining “willful” within the context

of the FLSA to mean that “the employer either

knew or showed reckless disregard for the matter

of whether its conduct was prohibited by the

statute”); Whiteside v. Hover-Davis, Inc., 995 F.3d

315, 320 (2d Cir. 2021) (“[A] plaintiff must allege

facts at the pleadings stage that give rise to a

plausible inference that a defendant willfully

violated the FLSA for the three-year exception to

apply.”). In the Second Amended Complaint,

Ahmad merely states that he had to work over

sixty hours a week and/or on weekends with no

overtime pay; he does not attribute this extra work

or lack of pay to any Defendant, let alone allege

that any Defendant was knowingly or recklessly

disregarding

the

FLSA’s

overtime

pay

requirements. See SAC 13-14,

14, 17. Thus, the

two-year statute of limitations applies to Ahmad’s

FLSA claims.

In any event, substantially for the reasons

articulated by Defendants, see Defs.’ Mem. 10,

Ahmad’s FLSA claims are wholly conclusory and

fail as a matter of law. He alleges that he often

worked over sixty hours a week, including on

weekends, without overtime pay, SAC 13- 14,

14, 17, but he does not provide any specific factual

details from which “the Court can reasonably infer

that there was indeed one or more particular

workweek(s) in which the plaintiff suffered an

overtime violation.” Bustillos v. Acad. Bus, LLC,

No. 13-CV-565 (AJN), 2014 WL 116012, at *4

(S.D.N.Y. Jan. 13, 2014); accord Lundy v. Cath.

Health Sys. of Long Island Inc., 711 F.3d 106, 114

(2d Cir. 2013) (“[I]n order to state a plausible FLSA

41a

overtime claim, a plaintiff must sufficiently allege

40 hours of work in a given workweek as well as

some uncompensated time in excess of the 40

hours.”). The conclusory nature of his FLSA claims

thus provides an independent basis for dismissal.

C. Misappropriation of Intellectual Property

Claims

Next, Ahmad brings claims against

Defendants for allegedly misappropriating a social

networking platform, Jobtrail, that Ahmad

allegedly created. See SAC 14, 20-21

19-21, 4445, 48. What claim Ahmad asserts is not entirely

apparent from the Second Amended Complaint,

but the most natural fit is for violation of the

DTSA.10 To state a claim under the DTSA, a

plaintiff must allege “(1) the existence of a trade

secret, defined broadly as information with

independent economic value that the owner has

taken reasonable measures to keep secret, and (2)

misappropriation of that secret, defined as the

10 To the extent that the Second Amended Complaint could be

construed to allege claims for copyright, patent, or trademark

infringement, the claims would fail as a matter of law for

failure to allege ownership of a valid copyright, patent, or

trademark. See Defs.’ Mem. 26-28; see also Feist Publ’ns, Inc.

v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991) (holding that

a plaintiff must prove, inter alia, “ownership of a valid

copyright” in order to establish copyright infringement);

Markman v. Westview Instruments, Inc., 517 U.S. 370, 384

(1996) (noting that the first element of most patent

infringement cases is “construing the patent,” thus

presupposing the existence of a patent); 1-800 Contacts, Inc.

v. WhenU.Com, Inc., 414 F.3d 400, 406-07 (2d Cir. 2005) (“In

order to prevail on a trademark infringement claim ... a

plaintiff must establish that ... it has a valid mark that is

entitled to protection.”).

42a

knowing improper acquisition and use or

disclosure of the secret.” Danping Li v. Gelormino,

No. 18-CV-442, 2019 WL 1957539, at *8 (D. Conn.

May 2, 2019) (internal quotation marks omitted).

Ahmad fails to allege either. First, Ahmad fails to

allege the existence of a trade secret. Under the

DTSA, the term “trade secret” includes “all forms

and types of financial, business, scientific,

technical, economic, or engineering information” if

(1) “the owner thereof has taken reasonable

measures to keep such information secret” and (2)

“the information derives independent economic

value . . . from not being generally known to, and

not being readily ascertainable through proper

means by, another person who can obtain economic

value from the disclosure or use of the

information.” 18 U.S.C. § 1839(3). Ahmad’s

admission that he voluntarily shared the relevant

information with Defendants without any

reasonable measures to protect the secrecy of the

information — such as a confidentiality or non­

disclosure agreement — is thus fatal to his claim.

SAC 14, 19; see, e.g., Zabit v. Brandometry, LLC,

540 F. Supp. 3d 412, 424 (S.D.N.Y. 2021) (granting

a motion to dismiss a DTSA claim where

“Plaintiffs’ own allegations in the [complaint] make

plain that they failed to take reasonable measures

to protect the secrecy of’ their trade secrets).

Moreover, Ahmad’s purported trade secret is too

“vague and indefinite” to be protected. Broker

Genius, Inc. v. Zalta, 280 F. Supp. 3d 495, 515

(S.D.N.Y. 2017) (internal quotation marks

omitted). He describes it as a “web based social

networking pre release platform,” SAC 14, If 20,

but does not provide any details as to the actually

43a

secret information within his job pitch. Without

that, the operative complaint merely alleges a

trade secret “at the highest level of abstraction,”

which is insufficient to plead a misappropriation

claim. Lawrence v. NYC Med. Prac., P.C., No. 18CV-8649 (GHW), 2019 WL 4194576, at *5

(S.D.N.Y. Sept. 3, 2019); see also Elsevier Inc. v. Dr.

Evidence, LLC, No. 17-CV-5540 (KBF), 2018 WL

557906, at *6 (S.D.N.Y. Jan. 23, 2018) (“[A]lleging

that a trade secret exists requires much more

specificity as to the information owned by the

claimant.”).

Second,

Ahmad

fails

to

allege

misappropriation, as the Second Amended

Complaint alleges only that Defendants came into

possession of the purported trade secret because

Ahmad voluntarily shared it as a purported

investment opportunity. SAC 14,

19; see also

Kairam v. W. Side GI, LLC, 793 F. App’x 23, 28 (2d

Cir. 2019) (summary order) (affirming dismissal of

a DTSA claim where the complaint “lacks any

allegation about the circumstances under which”

an alleged trade secret was misappropriated);

Principia Partners LLC v. Swap Fin. Grp., LLC,

No. 18-CV-7998 (AT), 2019 WL 4688711, at *3

(S.D.N.Y. Sept. 26, 2019) (dismissing a DTSA claim

where plaintiff fails to plead a breach of a duty of

secrecy or confidentiality). Moreover, Ahmad relies

heavily on allegations about the actions of nowdismissed parties — naviHealth and Beacon — to

support his misappropriation claim. See SAC 1921,

42-45, 48, 50. Ahmad claims without

support that these entities are affiliates of iCIMS,

but without allegations tending to show some

coordination between Defendants and the

44a

dismissed parties, this Court is not bound by his

conclusory allegation of an affiliate relationship.

See, e.g., Lopez v. Bonanza.com, Inc., No. 17-CV8493 (LAP), 2019 WL 5199431, at *17 (S.D.N.Y.

Sept. 30, 2019) (refusing to credit a plaintiffs

“generalized conclusory allegations lumping all

‘Defendants’ together”).

Accordingly, Ahmad’s claim under the DTSA must

be and is dismissed.

D. NYCHRL Claims

Finally,

Ahmad

brings

employment­

discrimination claims under the NYCHRL. Claims

brought under the NYCHRL are subject to a more

liberal standard than claims under Title VII and

the NYSHRL and, thus, must be analyzed

separately. See Mihalik v. Credit Agricole

Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir.

2013). For instance, “the adverse action need not

be material; instead, a plaintiff need only

demonstrate differential treatment that is more

than trivial, insubstantial, or petty.” Torre, 493 F.

Supp. 3d at 285 (internal quotation marks

omitted). In light of the distinct standards for

NYCHRL claims, and “because the law governing

claims under the NYCHRL is still developing,

[Ahmad’s] NYCHRL claims present questions best

left to the courts of the State of New York.” Maragh

v. Roosevelt Island Operating Corp., No. 16-CV7530 (JMF), 2021 WL 3501238, at *10 (S.D.N.Y.

Aug. 5, 2021) (internal quotation marks omitted).

Accordingly, Ahmad’s NYCHRL claims — for

discrimination and hostile work environment —

are dismissed without prejudice to him refiling

them in state court.

CONCLUSION

45a

For the foregoing reasons, Defendants’

motion to dismiss must be and is GRANTED, and

the Second Amended Complaint is dismissed,

without prejudice to refiling the NYCHRL claims

in state court. Ahmad’s motions for a preliminary

injunction, see ECF No. 212, for appointment of pro

bono counsel, see ECF No. 232, to file certain

documents under seal, see ECF No. 233, and to

waive any injunction bond, see ECF No. 234, are

therefore DENIED as moot. Further, because the

Court previously granted Ahmad leave to amend,

see ECF No. 187, and Ahmad neither suggests that

he has additional facts that would cure the defects

discussed above (some of which could not be cured),

nor requests leave to amend again, the Court

declines to sua sponte grant him another

opportunity to amend, see, e.g., Roundtree v. NYC,

No. 19-CV- 2475 (JMF), 2021 WL 1667193, at *6

(S.D.N.Y. Apr.

28, 2021)

(citing cases);

TechnoMarine SA v. Giftports, Inc., 758 F.3d 493,

505 (2d Cir. 2014) (“A plaintiff need not be given

leave to amend if it fails to specify . . . how

amendment would cure the pleading deficiencies in

its complaint.”).

Finally, the Court certifies, pursuant to Title

28, United States Code, Section 1915(a)(3), that

any appeal from this decision would not be taken

in good faith, so in forma pauperis status is denied.

See Coppedge v. United States, 369 U.S. 438, 44445 (1962). The Clerk of Court is directed to

terminate ECF Nos. 197, 212, 232, and 233; to

enter judgment in Defendants’ favor consistent

with this Opinion and Order; and to close the case.

46a

June 6, 2023, New York, New York.

47a

U.S. District Court, Southern District of New

York l:20-cv-04507, Order, April 02, 2024,

motion to reopen case denied.

Mahfooz Ahmad,

Plaintiff-Appellant,

v.

Colin Day, et al.,

Defendants-Appellees.

U.S. District Court for the Southern District

Court of New York Case No: l:20-cv-04507

April 02,2024, Jesse M. Furman, United States

District Judge:

This case is assigned to the undersigned, not

to Chief Judge Swain. Be that as it may, Plaintiffs

motion is DENIED as frivolous. The Court

certifies, pursuant to Title 28, United States Code,

Section 1915(a)(3), that any appeal from this Order

would not be taken in good faith, and in forma

pauperis status is thus denied. See Coppedge v.

United States, 369 U.S. 438, 444-45 (1962). The

Clerk of Court is directed to terminate ECF No. 244

and to mail this to Plaintiff. So, Ordered. April 02,

2024, New York, NY

48a

United States Supreme Court, No. 23-6337,

Petition for Writ of Certiorari Denied and

Petition for Rehearing Denied

Mahfooz Ahmad,

Plaintiff-Appellant,

v.

Colin Day, et al.,

Defendants-Appellees.

U.S. Supreme Court Case No. 23-6337

Orders, Feb. 20, 2024 & Mar. 25, 2024 —

Petition for Writ of Certiorari Denied and Petition

for Rehearing Denied.

49a

United States Supreme Court, No. 24-6397,

Petition for Writ of Certiorari Denied and

Petition for Rehearing Denied

Mahfooz Ahmad,

Plaintiff-Appellant,

v.

Colin Day, et al.,

Defendants-Appellees.

U.S. Supreme Court Case No. 24-6397

Orders, Apr. 7, 2024 & May 27, 2025 —

Petition for Writ of Certiorari Denied and Petition

for Rehearing Denied.