Wang v. Palmisano et al
| Chuan Wang |
| Samuel J. Palmisano, Martin Schroeter, Mark Loughridge, J. Randall Macdonald, John Does 1-20 and Jane Does 1-20 |
| 7:2013cv02186 |
| April 1, 2013 |
| US District Court for the Southern District of New York |
| White Plains Office |
| XX Out of State |
| Kenneth M. Karas |
| Other Civil Rights |
| 15 U.S.C. ยง 1331 |
| Plaintiff |
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Filing
37
MEMORANDUM AND OPINION re: 33 MOTION to Dismiss Amended Complaint. filed by J. Randall Macdonald, Samuel J. Palmisano, Mark Loughridge, Martin Schroeter. The Court grants Defendant's Motion To Dismiss. This dismissal is with pre judice. While [a] pro se complaint should not be dismissed without the Court granting leave to amend at least once, here the Court has already granted Plaintiff leave to amend. Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (italics omitted). With regard to Plaintiff's claims that accrued in March of 2008, "dismissal without prejudice would not produce a more just result as [Plaintiff] would be time-barred from re-filing...." See Maersk Line v. Phoenix Agro-Indus. Corp., No. 07- CV-3169, 2009 WL 1505281, at *5 (E.D.N.Y. May 27, 2009); see also Dluhos v. Floating & Abandoned Vessel, Known as New York, 162 F.3d 63, 69 (2d Cir. 1998) ("Nonetheless, a motion to amend should be denied if there is an apparent or declared reas on-such as... futility of amendment" (internal quotation marks omitted)). With respect to Plaintiff's claims dismissed for failure to state a claim, Plaintiff has had ample opportunity to press his claims against Defendants, IBM, Artech, CD I, and others before this and other courts. At this point, dismissing Plaintiff's claim with prejudice is appropriate. See Morale v. Yates, No. 07-CV-1460, 2008 WL 5220995, at *1 (E.D. Cal. Dec. 15, 2008) (noting that "[t]he court found tha t the original complaint did not state a claim," that "the court gave [the p]laintiff notice of the complaint's pleading deficiencies and an opportunity to amend," and that "[the p]laintiff failed to comply with the court 9;s order to file an amended complaint," and therefore dismissing the pro se plaintiff's complaint with prejudice); Slangal v. Getzin, 148 F.R.D. 691, 700 & n.14 (D. Neb. 1993) (dismissing a pro se plaintiff's complaint with prejudice pursuant to Rule 12(b)(6) because the "plaintiff ha[d] received full notice of the insufficiency of his original complaint and received a meaningful opportunity to respond through an invitation to file an amended complaint in order to remedy the noted failings" and the amended complaint failed to remedy the identified deficiencies). For these reasons, Defendants' Motion to Dismiss is granted with prejudice. The Clerk of the Court is respectfully directed to terminate the pending Motion, (see Dkt. No. 33) and to close the case. So Ordered. (Signed by Judge Kenneth M. Karas on 1/26/16) (yv)
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Filing
25
OPINION AND ORDER: In light of the foregoing, the Court grants Defendants' Motion and dismisses Plaintiff's Complaint. However, the Second Circuit has recognized that "[a] pro se complaint should not be dismissed without the Court granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated." Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (internal quotation marks omitted); see also Contre ras v. Perimenis, 562 F. App'x 50, 51 (2d Cir. 20 14) ("In addition to the requirement that prose complaints be liberally construed, district courts should generally not dismiss them without granting the plaintiff leave to amend at le ast once."). The Court will therefore give Plaintiff 30 days to submit an amended complaint. The Clerk of the Court is respectfully requested to terminate the pending Motion. (Dkt. No. 16.) SO ORDERED. (Signed by Judge Kenneth M. Karas on 9/30/2014) (lnl)
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