Filed: Sep. 22, 2015
Latest Update: Mar. 02, 2020
Summary: 14-4780 Ahluwalia v. St. George University UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SU
Summary: 14-4780 Ahluwalia v. St. George University UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUM..
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14-4780
Ahluwalia v. St. George University
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit, held
2 at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
3 York, on the 22nd day of September, two thousand fifteen.
4
5 PRESENT: JON O. NEWMAN,
6 ROBERT D. SACK,
7 GERARD E. LYNCH,
8 Circuit Judges,
9 ———————————————————————
10
11 NITESH AHLUWALIA,
12 Plaintiff-Appellant,
13
14 v. No. 14-4780
15
16 ST. GEORGE’S UNIVERSITY, UNIVERSITY
17 SUPPORT SERVICES, DANIELLE ROSEN,
18 Defendants-Appellees,
19 DOES I–XX,
20 Defendants.
21
22 ———————————————————————
23
24 APPEARING FOR APPELLANT: JASON J. BACH, The Bach Law Firm, LLC,
25 Las Vegas, Nevada.
26
27 APPEARING FOR APPELLEES: CHARLES S. SIMS (Pietro A. Deserio, on the
28 brief), Proskauer Rose LLP, New York, New
29 York, for St. George’s University, LLC, and
30 University Support Services, LLC.
31
32 MICHELLE ACOSTA, Fumuso, Kelly,
33 DeVerna, Snyder, Swart & Farrell, LLP,
34 Hauppauge, New York, for Danielle Rosen.
1 Appeal from the United States District Court for the Eastern District of New York
2 (Arthur D. Spatt, J.).
3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
4 AND DECREED that the judgment of the district court is AFFIRMED.
5 Plaintiff-Appellant Nitesh Ahluwalia appeals from a judgment dismissing his four-
6 count complaint pursuant to Fed. R. Civ. P. 12(b)(6). He alleges that he was unfairly
7 expelled from St. George’s University School of Medicine (“the School”), where he and
8 Defendant-Appellee Danielle Rosen were enrolled as students. He argues that the district
9 court erred in dismissing his claims against Defendants-Appellees St. George’s
10 University, LLC (“SGU LLC”) and University Support Services, LLC (“USS”) for
11 breach of contract and negligent hiring, training and supervision, and his claim against
12 Rosen for tortious interference with contract.1 He further challenges the district court’s
13 decision to deny him leave to replead. We assume the parties’ familiarity with the
14 underlying facts and procedural history of this case.
15 We review de novo the grant of a motion to dismiss under Fed. R. Civ. P. 12(b)(6),
16 accepting the factual allegations in the complaint as true and drawing all reasonable
17 inferences in favor of the plaintiff. Sewell v. Bernardin, 795 F.3d 337, 339 (2d Cir.
18 2015). In addition to the complaint, we may consider documents attached thereto or
19 incorporated by reference, and “documents upon which the complaint relies heavily.”
1
The district court also dismissed Ahluwalia’s claim for fraud against Rosen, but
Ahluwalia does not challenge that ruling on appeal.
2
1 Bldg. Indus. Elec. Contractors Ass’n v. City of New York, 678 F.3d 184, 187 (2d Cir.
2 2012). We review the denial of leave to amend the complaint for abuse of discretion.
3 Lotes Co. v. Hon Hai Precision Indus. Co.,
753 F.3d 395, 403 (2d Cir. 2014).
4 The breach of contract claim was properly dismissed because Ahluwalia fails
5 plausibly to allege that he was in a contractual relationship with SGU LLC or USS.
6 While Ahluwalia’s allegations support the inference that he was in a contractual
7 relationship with the entity that operates the School, neither SGU LLC nor USS is
8 plausibly alleged to be that entity. The School’s Eligibility and Certification Approval
9 report issued by the U.S. Department of Education, which is incorporated by reference in
10 the complaint, shows that SGU LLC wholly owns another entity, St. George’s University,
11 Ltd. (“SGU Ltd.”), which itself wholly owns the School. Absent circumstances
12 permitting piercing the corporate veil – which are not alleged here – the contractual
13 obligations of a subsidiary will not be imputed to the parent. See Sheridan Broad. Corp.
14 v. Small,
19 A.D.3d 331, 332 (1st Dep’t 2005).2
15 As to USS, the complaint alleges that it is an agent of the School, but an agent
16 contracting on behalf of a disclosed principal is not a party to the contract “unless there is
17 clear and explicit evidence of the agent’s intention to be personally bound.” Weinreb v.
18 Stinchfield,
19 A.D.3d 482, 483 (2d Dep’t 2005). Even assuming that Ahluwalia
2
Although it is not clear whether New York or Grenadian law should govern this dispute
in the event of a conflict, both parties stated at oral argument that they are content to
apply New York law, and neither party suggests that Grenadian law differs from New
York law in any way relevant to this case.
3
1 contracted with the School through USS, there is no allegation that USS failed to disclose
2 that it was acting on behalf of the School or that it intended at the time of contracting to
3 be bound by the contract.
4 The negligent hiring, training and supervision claim was also properly dismissed,
5 for at least three reasons. First, such claims are unavailable where the plaintiff was
6 wronged by an employee acting within the scope of his employment. Weinberg v.
7 Guttman Breast & Diagnostic Inst., 254 A.D.2d 213, 213 (1st Dep’t 1998). Dean Rao’s
8 decision to expel Ahluwalia was plainly within the scope of his employment as Dean of
9 Students at the School. This is so even if, as alleged, Dean Rao acted arbitrarily and in
10 bad faith, because “an act is within the scope of employment if it ‘was done while the
11 servant was doing his master’s work, no matter how irregularly, or with what disregard of
12 instructions.’” Sagal-Cotler v. Bd. of Educ.,
20 N.Y.3d 671, 675 (2013), quoting Riviello
13 v. Waldron,
47 N.Y.2d 297, 302 (1979). There is likewise no basis in the complaint for
14 inferring that Deans Weitzman and Robinson were acting outside the scope of their
15 employment. Second, the claim fails because Ahluwalia has not alleged any facts
16 showing that the School was on notice of its employees’ “propensity to commit the
17 conduct alleged.” Doe v. Goldweber,
112 A.D.3d 446, 447 (1st Dep’t 2013). Third, for
18 the reasons discussed above, the complaint does not plausibly allege that the School
19 employees whose actions are in question were employed by the named defendant entities.
20 We also affirm the district court’s dismissal of Ahluwalia’s claim against Rosen
21 for tortious interference with contract. Assuming arguendo that Ahluwalia’s contract
4
1 with the School incorporated the terms of the Judicial Process Manual, and that the
2 School breached those terms in expelling Ahluwalia, the complaint does not allege that
3 Rosen caused, or intended to cause, that breach. Rather, it alleges that Rosen intended to
4 have Ahluwalia expelled, which the School could have done without violating the terms
5 of the Judicial Process Manual. There is no basis in the complaint to infer that Rosen
6 desired or tried to induce the School to adopt or avoid any particular procedure. See
7 Alvord & Swift v. Stewart M. Muller Constr. Co., 46 N.Y.2d 276, 281 (1978)
8 (interference with contract must be intentional and not merely incidental). Because the
9 claim for tortious interference with prospective business relations is barely alluded to in
10 Ahluwalia’s briefing on appeal, we consider it abandoned. See Giuffre Hyundai, Ltd. v.
11 Hyundai Motor Am.,
756 F.3d 204, 207 n.2 (2d Cir. 2014) (plaintiff abandoned claims
12 “by failing to give them more than cursory treatment in its brief on appeal”).
13 Finally, the district court did not abuse its discretion in denying Ahluwalia leave to
14 amend his complaint. “A plaintiff need not be given leave to amend if [he] fails to
15 specify either to the district court or to the court of appeals how amendment would cure
16 the pleading deficiencies in [his] complaint.” TechnoMarine SA v. Giftports, Inc., 758
17 F.3d 493, 505 (2d Cir. 2014). In his brief, Ahluwalia inventories the pleading
18 deficiencies identified by the district court and announces his intention to remedy them,
19 but does not offer any specific new facts that would plausibly support a claim for relief.
5
1 We have considered all of Ahluwalia’s remaining arguments and find them to be
2 without merit. For the foregoing reasons the judgment of the district court is
3 AFFIRMED.
4
5
6 FOR THE COURT:
7 CATHERINE O’HAGAN WOLFE, Clerk of Court
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