Total Equity Capital, LLC v. Flurry, Inc. et al
| Total Equity Capital, LLC |
| Flurry, Inc. and Simon Khalaf |
| 1:2015cv04168 |
| June 1, 2015 |
| US District Court for the Southern District of New York |
| Foley Square Office |
| XX Out of State |
| Jesse M. Furman |
| Securities/Commodities/Exchanges |
| 15 U.S.C. ยง 78 |
| Plaintiff |
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Filing
20
OPINION AND ORDER re: 14 MOTION to Dismiss filed by Simon Khalaf, Flurry, Inc., 19 LETTER MOTION for Oral Argument addressed to Judge Jesse M. Furman from Joel C. Haims dated December 3, 2015. For the reasons stated above , TEC's claims under Section 10(b) and Rule 10b-5 must be and are dismissed. It follows that its claim for control person liability under Section 20(a) also fails. See, e.g., First Jersey Sec., Inc., 101 F.3d at 1472. That leaves only the questi on of whether TEC should be granted leave to amend its complaint for a second time. TEC does not ask for leave to amend, and the Court declines to grant it sua sponte, both because amendment would likely be futile and because, in granting leave to fi le a first amended complaint, the Court expressly warned that TEC would not be given another opportunity to address the issues raised in Defendants' motion to dismiss. (See Docket No. 11). See, e.g., Clark v. Kitt, No. 12-CV-8061 (CS), 2014 WL 4 054284, at *15 (S.D.N.Y. Aug. 15, 2014) (holding that the plaintiff's failure to remedy the complaint's deficiencies identified by an earlier motion to dismiss "is alone sufficient grounds to deny leave to amend"); see also, e.g., Ruotolo v. City of N.Y., 514 F.3d 184, 191 (2d Cir. 2008) (affirming the district court's denial of leave to amend in part because of the previous opportunities that the plaintiff had received to amend the complaint). The Clerk of Court is directed to terminate Docket Nos. 14 and 19 and to close this case. (As further set forth in this Order.) (Signed by Judge Jesse M. Furman on 6/1/2016) (kko)
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