Professional Documents
Culture Documents
JPMorgan Vs Mullaugh
JPMorgan Vs Mullaugh
Second Circuit
Plaintiff-Appellant,
– v. –
J.P. MORGAN CHASE & CO., J.P. MORGAN CHASE BANK, N.A.,
J.P. MORGAN SECURITIES, LLC, MICHAEL S. LEE, in his individual
and professional capacities,
Defendants-Appellees.
––––––––––––––––––––––––––––––
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
KEITH M. FLEISCHMAN
FLEISCHMAN BONNER & ROCCO LLP
Attorneys for Plaintiff-Appellant
565 Fifth Avenue, 7th Floor
New York, New York 10017
(212) 880-9567
TABLE OF CONTENTS
PRELIMINARY STATEMENT……………………………………….…........ 1
JURISDICTIONAL STATEMENT…………………………………………... 1
STATEMENT OF FACTS…………………………………………………….. 4
A. Lorig’s Background…………………………………………………...… 4
i
SUMMARY OF THE ARGUMENT……………………….…………………. 20
STANDARD OF REVIEW…………………………………………………….. 24
ARGUMENT…………………………………………………………………… 25
CONCLUSION…………………………………………………………………. 45
ii
TABLE OF AUTHORITIES
Cases
Ashcroft v. Iqbal,
556 U.S. 662 (2009).............................................................................................. 25
Anderson v. Bristol,
847 F. Supp. 2d. 1128 (S.D. Iowa 2012) .............................................................. 41
Bamba v. Fenton,
2017 WL 3446806 (E.D.N.Y. Aug. 10, 2017) ..................................................... 37
Case v. Anderson,
2017 WL 3701863 (S.D.N.Y. Aug. 25, 2017) ............................................... 18, 32
iii
Delise v. Metro-N. R. Co.,
646 F. Supp. 2d 288 (D. Conn. 2009)............................................................. 35, 36
Edwards v. Tardif,
240 Conn. 610, 692 A.2d 1266 (Conn. 1997) ...................................................... 35
Espinal v. Goord,
558 F.3d 119 (2d Cir. 2009) ........................................................................... 36, 37
Ferencz v. Medlock,
2014 WL 3339639 (W.D. Pa. July 8, 2014) ......................................................... 34
Fuller v. Preis,
35 N.Y.2d 425 (N.Y. 1974) ................................................................ 18, 24, 31, 32
Fulton v. Goord,
591 F.3d 37 (2d Cir. 2009) ................................................................................... 41
Goldman v. Belden,
754 F.2d 1059 (2d Cir. 1985) ............................................................................... 26
Hain v. Jamison,
28 N.Y. 3d 524 (N.Y. 2016) ................................................................................. 38
iv
Halko v. N.J. Transit Rail Operations, Inc.,
677 F. Supp. 135 (S.D.N.Y. 1987) ....................................................................... 36
Lorig v. Lorig,
2005 WL 3693765 (Conn. Super. Ct. Dec. 27, 2005) ............................................ 5
Mazella v. Beals,
27 N.Y.3d 694 (N.Y. 2016) ............................................................................ 33, 34
v
Reeves v Sanderson Plumbing Prods, Inc.,
540 U.S. 133 (2000).............................................................................................. 27
Roland v. McMonagle,
2015 WL 5918179 (S.D.N.Y. Oct. 9, 2015)......................................................... 36
Schonfeld v. Hilliard,
218 F.3d 164 (2d Cir. 2000) ................................................................................. 41
Tsveitel v. Geoghegan,
2009 WL 2182379 (E.D.N.Y. July 21, 2009) ...................................................... 37
Walker v. Schult,
717 F.3d 119 (2d Cir. 2013) ................................................................................. 27
vi
Watkins v. Labiak,
282 A.D.2d 601 (2d Dept. 2011) .................................................................... 39, 40
White v. Watson,
2018 WL 2047934 (S.D. Ill. May 2, 2018) .......................................................... 32
Rules / Statutes
Other Authorities
vii
PRELIMINARY STATEMENT
Plaintiff-Appellant Michael Mullaugh (“Appellant”) in his capacity as
appeals from a final judgment (A-68)1 entered pursuant to a decision by the United
States District Court for the Southern District of New York (Keenan, J.) dismissing
JURISDICTIONAL STATEMENT
§1332. This Court possesses jurisdiction of this appeal pursuant to 28 U.S.C. §1291.
Final judgment was entered into the court below on February 27, 2019. Appellant
filed a timely notice of appeal on March 27, 2019. This appeal is from a final
Morgan Chase & Co., J.P. Morgan Chase Bank, N.A., J.P. Morgan Securities LLC,
that Lorig suffered from severe mental health issues, including suicidal ideation.
1
The Joint Appendix is cited herein as (“A-__”).
2
Defendants J.P. Morgan Chase & Co., J.P. Morgan Chase Bank, N.A., and J.P.
Morgan Securities LLC are referred to collectively herein as “JPMorgan”.
JPMorgan together with Lee are referred to collectively herein as “Appellees”.
1
During this time, they pressured him to retire rather than commence long-term
disability leave. When he refused to accept their demand they terminated his
employment, cancelled his professional licenses, and refused to take any steps to
reinstate or preserve his licenses. Accordingly: (1) did the District Court err when
concluded that causation between Appellees’ conduct and Lorig’s suicide was, as a
matter of law, too attenuated, and (2) did the District Court abuse its discretion in
refusing to permit Appellant to amend his Complaint, which had never been
previously amended?
On January 22, 2017 at the age of 66, Lorig committed suicide at his Florida
home. (A-42, at ¶284). After Lorig’s death, Appellant commenced this lawsuit and
filed a single claim for wrongful death against the Appellees. As detailed more fully
below, the Complaint alleges that Appellees are liable for wrongful death because,
notwithstanding their awareness and knowledge that Lorig suffered from severe
mental health issues, including, specifically, suicidal ideation, they demanded that
2
Appellees filed a Fed. R. Civ. P. 12(b)(6) motion to dismiss, arguing: (a) that
their conduct and Lorig’s death; and (b) even if the Complaint had sufficiently
exclusive remedy provisions set forth in the New York Workers’ Compensation Law
(N.Y. Work. Comp. L. §§11, 29(6) referred to herein as the “NYWCL”). In his
if the District Court was inclined to grant any portion of Appellees’ Motion.
The District Court did not convene oral argument on Appellees’ motion.
Following full briefing, the District Court granted Appellees’ motion to dismiss,
solely on the ground that the Complaint failed to adequately plead causation. (A-65
to A-66). The District Court did not address Appellees’ arguments concerning the
NYWCL. Even though Appellees had argued that a 75-day gap between Lorig’s last
direct contact with Appellees (November 8, 2016) and his January 22 suicide was
too attenuated for liability to attach, the District Judge independently concluded: (1)
only the actions Appellees took after August 8, 2016 had any causal connection to
Lorig’s suicide; and (2) the last time Appellees had been specifically warned that
Lorig was suicidal was two years prior, in August 2014. The District Judge also
denied Appellant leave to amend his Complaint, stating that he could not “imagine
3
a set of circumstances that would allow [Appellant] to plead the causal element of a
February 26, 2019, the District Court issued an Opinion and Order dismissing the
Complaint. (A-54).3 The Clerk of the Court entered Judgment for Appellees on
February 27, 2019. (A-68). On March 27, 2019, Appellant filed the Notice of
Appeal. (A-69).
STATEMENT OF FACTS
A. Lorig’s Background
February 28, 2018. (A-9, at ¶21). Lorig was born in 1950 and died on January 22,
2017 at age 66. (A-9 at ¶19; A-10 at ¶25; A-42 at ¶284). Despite suffering for many
years from severe mental health illness (A-15, at ¶¶ 68-71), Lorig attained significant
professional successes in the financial services industry. (A-15, id.). After earning
degrees from the University of Illinois and Dartmouth College’s Tuck School of
Business (A-11, at ¶¶ 36-37), he commenced working for Bear Stearns & Co.
3
The District Court’s decision is electronically reported at Mullaugh v. J.P. Morgan
Chase & Co., 2019 WL 935173 (S.D.N.Y. Feb. 26, 2019).
4
(“BSC”) in 1979 (A-12, at ¶43). Lorig launched BSC’s institutional financial futures
business, eventually developing it into a $70 million enterprise, with the group rising
(A-12 to A-13, at ¶¶ 46-51). Thanks to his hard work and ingenuity, Lorig regularly
connection with divorce proceedings from his first wife, the Connecticut judge
overseeing the case observed in a published opinion that Lorig had been “living with
bipolar mood disorder for years but except for brief episodes he has not been
prevented from leading a full, active, and exciting life personally and
and 2001, Lorig took two medical leaves of six months each to treat his illness, and,
at ¶¶ 69-70).
JPMorgan acquired BSC in 2008. (A-13, at ¶52). To convince Lorig and his
retention package worth over $2.2 million. (A-14, at ¶56). The package was
5
structured as a blend of up-front loans and stock awards to be earned and paid in
equal increments over seven years. (A-14, at ¶57). Lorig was also awarded 13,284
JPMorgan restricted stock units (RSU), with 6,642 RSU vesting in July 2012, and
the remainder vesting one year later (July 2013). (A-14, at ¶58). JPMorgan
repayment installments due between June 2009 through 2015. (A-14, at ¶60). The
loan payments were subject to a 20% hurdle, requiring Lorig to gross 20% of $2.2
million (the combined total of his loan and RSU grants) to earn forgiveness of the
other brokers, even though institutional clients desired Lorig’s continued service.
(A-14, at ¶63). Despite the reassignment, Decedent remained a top 20% producer
25, 2014. (A-16, at ¶73). JPMorgan’s short-term disability policy afforded Lorig
direct supervisor, knew that Lorig had taken leave to address his mental health
illness. (A-16, at ¶78). Lorig also directly advised Appellees that while he could
6
not state when he’d return to work, he fully intended to return once he had recovered.
(A-16, at ¶76).
Lorig was treated by both a psychiatrist, Leonard Leven, M.D. (“Leven”), and
March 4, 2014, Leven informed Appellees that Lorig frequently engaged in “acute
suicidal ideation”. (A-17, at ¶85). On April 10, 2014, Leven and Chapar stated to
JPMorgan that Lorig had “fleeting thoughts of suicide.” (A-19 to A-20, at ¶107). On
June 10, 2014, Leven wrote that Lorig was “despondent with passive suicide
thoughts.” (A-20, at ¶111). On June 24, 2014, Leven advised Appellees that Lorig
woke up every day with “passive thoughts of suicide.” (A-21, at ¶115). On July 20,
2014 Leven faxed JP Morgan notes reporting that: (a) on June 9, 2019 Lorig stated
that he had “suicidal thoughts in the a.m. (A-21, at ¶117(a)); (b) on June 23, 2019
Lorig had advised Chapar that he engaged in suicidal ideation without a plan (A-21,
at ¶117(b)); and (c) on July 9, 2014 Lorig stated that he was “wakening with suicidal
(“Prudential”), and stated that Lorig was “suicidal from early in the morning for
several hours after.” (A-21, at ¶118). On August 10, 2014 Leven sent Prudential
another report warning that Lorig was “extremely anxious and depressed and had
7
fleeting thoughts of slitting his wrists” and continued experiencing passive suicidal
Lorig’s suicidal impulses partially stemmed from the fact that Lorig’s Wall Street
career formed a “core part” of Lorig’s identity, and, as a result, Leven stated that
Lorig was now “lost” and overwhelmed by an “existential crisis.” (A-23 to A-24, at
¶132).
Chapar sent reports to Prudential on June 20, 2015 and February 10, 2016, Chapar
advised that Lorig’s disability remained severe, and that it was not possible to
suicidal. JPMorgan’s disability leave forms advised health care professionals that if
4
As discussed in greater detail below, the District Judge stated that the last time
Appellees were warned of Lorig’s suicidal risk was August 2014. (A-66). But, as
noted above, the Complaint alleged that Chapar warned that Lorig’s disability
“remained severe”. As such the District Court should have drawn an inference that
Decedent’s ongoing disability included acute suicidal ideation. Moreover, had the
District Judge granted Appellant leave to amend the Complaint, Appellant would
have quoted additional language in Chapar’s February 10, 2016 report that reiterated
Lorig’s suicide risk. However, there would have been no need for Appellant to
expend his one amendment of right to include this specific detail, because the
Complaint as filed already supported that inference.
8
Chapar and Leven, and, later, another doctor, Jeffrey Fabacher, M.D.
working intensely towards the goal of returning Decedent to work. (A-22, at ¶119).
employees and tried to answer questions regarding both customers’ and his own
Despite his and his doctors’ efforts, six months of disability leave was not
enough time for Decedent to recover from his illness; long-term leave was necessary.
(A-23, at ¶128). But rather than support Decedent, Appellees – who clearly did not
want to retain someone they believed was too old, too sick, and too mentally unstable
– pressured him to retire rather than take further leave. In June 2014 Lee proposed
that Lorig retire and transfer all his business to another JPMorgan broker. (A-23, at
¶126). In exchange, Lee stated that Appellees would ultimately waive Lorig’s
unpaid loan balance payments. (A-23, id.). Appellees’ offer did not disclose
whether, while on long-term leave, monies would continue being deducted from
Lorig’s accounts. (A-23, at ¶127). The offer also did not detail how accumulated
loan interest would be treated. (A-23, id.). Lorig politely informed Lee that he was
in no shape to fairly evaluate the proposal and explained that he needed to take long-
9
term disability leave to treat his illness. Lorig assured Lee that he fully intended to
¶136). Having failed to convince Lorig to retire before he started that leave,
Appellees renewed and increased their efforts. In August 2014, shortly after Lorig
commenced long-term leave, Lee demanded that Lorig meet with him at the
Intercontinental Hotel in Manhattan. (A-25, at ¶142). Though Lorig was not in any
meeting. (A-25, at ¶143). At the meeting Lee again requested that Lorig voluntarily
retire and transfer all his business to Woo, and further agree not to return to work at
the end of his disability leave. (A-25, at ¶144). Lee stated that in exchange,
JPMorgan would forgive his outstanding loan balance and fully vest him in the RSU
grants. (A-25, at ¶145). This proposal was never put in writing. (A-25, at ¶148).
The proposal would have placed Lorig in a far worse position than similarly-situated
retiring JPMorgan brokers. Appellees did not offer to arrange for Lorig to transfer
his book-of-business to a JPMorgan broker of his choice and did not offer him a
have been 50-60% of such commissions in year one, 40-50% in year two, and 30-
essential for him to focus his energies upon recuperating, and further explained he
was unable to fairly consider the proposal given his condition. (A-26, at ¶¶ 150-152).
Lorig also reiterated his plan to return to work post-recovery. (A-26, id.).
Shortly following the InterContinental Hotel meeting Lee phoned Lorig and
stated that JPMorgan would terminate Lorig’s professional licenses. (A-26, at ¶153).
Lorig, who, given his severe mental illness, remained unable to substantively discuss
this action, asked Lee what JPMorgan expected him to do. (A-26, at ¶154). Lee
merely renewed his “proposal” that Lorig retire from JPMorgan on Appellees’
On September 14, 2015, Appellees made good on their threat, and filed a Form
U5 with the Financial Industry Regulatory Authority (FINRA) for Lorig. (A-26, at
(A-26, id.). Lorig did not realize that in Appellees’ eyes, his job had already been
terminated. (A-27, at ¶161). Appellees did not communicate to Lorig the fact of the
Form U5’s filing until October 3, 2014, when they mailed a copy of it to Lorig’s
11
Manhattan residence. (A-27, at ¶162). Nor did Appellees follow up with Lorig
regarding his licenses’ expiration. (A-27, at ¶164). They did not confirm he had
received a copy of the Form U5, even though they knew or deliberately ignored that
he was spending most of his time in Florida. (A-27, at ¶165). Furthermore, they did
not interact with Lorig either to assess his return, or to discuss potential
The Form U5’s timing strongly suggests that Appellees had malicious
motives. Following the Form U5’s filing, Lorig had two years to re-establish his
licenses without the need for an exam by reaffiliating with either JPMorgan or a new
employer. (A-29, at ¶182). After that deadline, the licenses would be irrevocably
canceled unless he sat for new, grueling licensing tests and re-applied state by state.
(A-30, at ¶¶ 183-185). But JPMorgan filed the Form U5 such that Lorig’s licenses’
expiration would fall just shy of the date Lorig was required to return to work under
The Form U5 was also filed within the time Lorig was required to fulfill
professional Continuing Education (“CE”) requirements for his licensure. When the
Form U5 was filed Lorig’s CE compliance had not lapsed, (A-28, at ¶168), and
would not have lapsed until March 8, 2015, five months after Appellees filed the
Form U5. (A-32, at ¶199). But even had his CE lapsed, FINRA rules provided for
Lorig’s licenses to be deactivated, not terminated, until he completed his credits. (A-
12
28, at ¶¶ 169-171). Had JPMorgan actually planned to continue employing Lorig,
he could have fulfilled his CE credits and re-established his licenses. (A-30, at ¶189).
Appellees instead quietly sent the Form U5 to Lorig’s Manhattan residence knowing
he was rarely there and timed the filing to effectively ensure that Lorig would be
deprived of enough time to affiliate with a new firm and re-activate his licenses. (A-
31, at ¶190). Moreover, Appellees did not specifically warn Lorig that that he might
permanently lose his licenses, and they took no steps to enable him to preserve them.
(A-31, at ¶¶ 194-195).
In autumn 2014, Lorig moved to Florida to aid his recovery. After moving he
condition to Prudential. Chapar sent reports in June 2015 and February 2016, (A-
32, at ¶204), each time reporting that Lorig’s disability remained severe, and that it
was impossible to yet determine when he could return to work. (A-32, at ¶205).
reason to believe that Lorig was not still a suicide risk as of February 2016 and would
have known or understood that his disability (which included acute suicidal ideation)
remained severe.
13
H. JPMorgan Refuses to Let Lorig Return to Work
By July 2016, Lorig’s condition had improved. He was ready to return to his
career at JPMorgan. (A-32, at ¶¶ 206-207). On July 26, 2016, Lorig emailed Lee
and other JPMorgan employees and advised them that Fabacher was clearing him to
return to work at the end of his disability leave—August 25, 2016. (A-33, at ¶208).
Between July 27 and August 8, 2016, Lorig and Fabacher provided information to
That same day a JPMorgan HR employee, Jen Smith (“Smith”) phoned Lorig and
informed him that he could not return to JPMorgan. (A-34, at ¶¶ 221-222). Smith
stated that there was no business for Lorig to return to, and further stated to him that
his employment had been terminated at the close of his Family and Medical Leave
Act’s (FMLA) leave. (A-34, id.). The FMLA provides for twelve weeks leave;
have terminated in May 2014, even before Appellees urged him to retire from
JPMorgan. (A-35, at ¶232). Lorig was stunned. Appellees had earlier suggested he
retire but had never told him that he had been fired or was already a retiree. (A-36,
at ¶236).
14
Smith also told Lorig that JPMorgan had terminated his licenses in September
2014. (A-34, at ¶223). Smith emailed Lorig on August 12, 2016 and told him that
Appellees’ position was that he was a retiree and sent him an “as you retire” guide.
(A-36 to A-37, at ¶¶ 237, 240). Of course, Smith did not address the fact that
throughout his leave, Lorig’s doctors had been routinely updating Appellees as to
Lorig’s condition, which would have been an empty exercise if Lorig had retired. In
the same email Smith further advised that JPMorgan was drafting an agreement that,
if Lorig signed it, would forgive his remaining loans and vest his RSUs. (A-36, at
¶238). Smith also claimed that Lorig’s employment would, supposedly, not be
It was not until August 25, 2016 that Appellees transmitted a draft agreement
and release for Lorig’s review. (A-37, at ¶241). The draft was – like Appellees’
earlier efforts to pressure Lorig into retiring – one-sided and unfair. JPMorgan
offered to provide continued vesting for 1,482 additional RSUs that Lorig had been
granted in 2014 and forgive his remaining loan balance. (A-37, at ¶¶ 242-243).6 In
exchange Appellees demanded that Lorig voluntarily resign, waive and release any
5
Nonetheless, Smith’s remark does not constitute a formal determination regarding
Decedent’s employment status or undermine Smith’s representation that Lorig had
been fired after his FMLA leave concluded.
6
Appellees overstated the loan balance. (A-18 to A-19, at ¶¶ 95-105).
15
claims he possessed (including discrimination claims) and accept non-compete
terms prohibiting him from working in any position which potentially competed with
JPMorgan, regardless of whether the new position requires trading licenses. (A-37
to A-38, at ¶¶ 244-249). JPMorgan did not offer Lorig trailing commissions on his
remaining business, as was standard for retiring JPMorgan brokers. (A-39, at ¶257).
from the fact that if the termination had instead been treated as a reduction-in-force,
Appellees would have owed Lorig at least a year’s worth of compensation under
JPMorgan’s severance plan and would have been obligated to forgive his loans and
vest his RSUs. Furthermore, a RIF would have prevented Appellees from restricting
Lorig’s employment other that disallowing him from soliciting JPMorgan’s clients
Even though the clock on Lorig’s licenses’ expiration was ticking, Appellees
did not negotiate in good faith with Lorig. On August 26, 2016, Lorig sent Smith
an email and stated that he had not retired, but had been terminated, and protested
that his licenses’ termination materially compromised his ability to reduce his loan
balance. (A-39 to A-40, at ¶¶ 260-264). Appellees, however, did not timely respond
to Lorig or his counsel, (A-40, at ¶266), and refused to file a Form U4 with FINRA
16
terms blocked Lorig’s ability to secure a new equivalent position fell on deaf ears.
(A-40 to A-41, at ¶¶ 269-276). Appellees also refused to assign Lorig work he was
too much for Lorig’s fragile psyche, a psyche Appellees knew was replete with
decimation of his professional future, Lorig committed suicide at his Florida home
Chapar’s February 10, 2016 report informed Appellees that Lorig remained severely
7
(A-54, at 6). The February 10, 2015 date appears to be a typographical error by
the District Court. Appellant alleged that Chapar sent Prudential a report on
February 10, 2016. (A-32, ¶204).
17
disabled, nor did the District Court draw an eminently plausible inference in
Appellant’s favor that as of February 2016 Appellees all knew and believed that
The District Court concluded that to hold Appellees liable for Lorig’s death,
Appellant was obligated to plausibly plead that his suicide was a foreseeable risk
associated with Appellees’ wrongful acts. (A-63 to A-64). The District Judge
qualified that concession by citing cases holding that sometimes “there [are] … cases
where the causal nexus [is] too tenuous to permit a jury to ‘speculate’ as to the
proximate cause of a suicide.” (A-54, id., citing, inter alia, Fuller v. Preis, 35
N.Y.2d 425, 433 (N.Y. 1974)). The District Judge also recognized that there can
“never be a sole cause for suicide.” (A-63, citing Case v. Anderson, 2017 WL
3701863, at *27 (S.D.N.Y. Aug. 25, 2017)).8 The District Court found that as of
July 26, 2016, Lorig believed he could return to his position at JPMorgan and did
not know his licenses had lapsed in a manner threatening to complicate future job
searches. (A-65). The District Judge specifically held that it was not until August
8, 2016 that Lorig was informed that Appellees officially opposed his return, and
that his licenses had been terminated. (A-65 to A-66). Accordingly, the District
8
In fact, Case correctly held that as to causation in a liability-for-suicide case, the
issue is “whether the defendants’ negligence substantially contributed to [the
decedent’s] death.” Id., citing Fuller. (emphasis supplied in original).
18
Court held that only Appellees’ post August 8, 2016 actions bore any causal
Based on the preceding framework, the District Court determined that it had
been nearly two years (since August 10, 2014) since Lorig’s medical team advised
Appellees that Lorig was suicidal. (A-66). Absent any explanation, the District
the District Judge, Appellees’ actions were “simply too attenuated to be the
proximate cause” of his death. (A-66, citing D’Addezio v. Agway Petroleum Corp.,
186 A.D.2d 929, 931 (3d Dep’t 1992)). Accordingly, the District Judge dismissed
the Complaint based on Appellant’s alleged failure to adequately plead his claim’s
The District Court also denied Appellant leave to amend his Complaint.
Although the District Judge recognized that Fed. R. Civ. P. instructs courts to “freely
give leave” to amend “when justice so requires”, (A-66, citing Rule 15(a)(2)), the
District Court opined that it could not “imagine a set of circumstances that would
allow Plaintiff to adequately plead the causal element of a wrongful death claim in
this case.” (A-66) Therefore, the District Court dismissed Appellant’s Complaint
19
SUMMARY OF THE ARGUMENT
pleading stage level, failing to draw all inferences in Appellant’s favor, and, worse,
Complaint, especially considering that the Complaint had not been previously
amended.
The District Court’s analysis rests upon a clear factual error, which, under the
requires reversal. Specifically, the District Court held that: (a) only Appellees’ post
August 8, 2016 conduct bore any causal nexus to Lorig’s suicide; and (b) it had,
supposedly, been two years since Appellees were expressly advised by Lorig’s
medical team that Decedent posed suicide risks. (A-66). But the Complaint alleges
conduct by Appellees well before August 8, 2016, and, in particular, alleges that on
two occasions, Appellees pressured Lorig to retire (on highly unfavorable terms)
rather than ever return to work. The fact that Lorig rejected Appellees’ proposal
does not, therefore, break the causal chain of Appellees’ years-long conduct. And
while the District Court concluded that Lorig believed he could return to his position
at JPMorgan and did not know the true effects of the license termination, Lorig’s
belief that he could return to JPMorgan is not in conflict with his concurrent concern
20
that Appellees, including Lee, was scheming to interfere or obstruct his return.
Moreover, the Complaint alleged that Lorig twice directly advised Lee that
Decedent’s then-current mental state blocked him from even considering the
error for the Court to draw inferences in Appellees’ favor that at all times during his
medical leave Lorig never was concerned about returning to JPMorgan, that he
comprehended what JPMorgan had done to his licenses, or that Appellees’ behavior
over a period of years did not cumulatively and substantially contribute to Lorig’s
suicide once Appellees made clear in July 2016 that Lee’s “proposal” (which had
already been a source of confusion and distress to Lorig) was no proposal at all, but
Equally troublingly, the District Court factually determined that it had been
over two years (i.e. – August 10, 2014) since Lorig’s medical providers had informed
JPMorgan that Lorig was a suicide risk. (A-66). However, the Complaint alleges
that Lorig’s condition remained severe. Accordingly, the District Judge was
required to draw an inference in Lorig’s favor that a mental health condition that
Appellees never argued in either their opening or reply brief in support of their Rule
12(b)(6) motion that they did not continue to believe that Lorig was potentially
21
suicidal. They instead claimed that the last possible conduct on their part before his
death occurred in November 2016 (2.5 months before Lorig’s death), which they
claimed was too temporally attenuated from his suicide to be causally sufficient.
Appellees also claimed in their reply brief that any knowledge on Appellees’ part
regarding Lorig’s suicidal ideation ceased as of July 26, 2016, when Lorig informed
JPMorgan that his doctors had cleared him to return to work. The Court instead
Moreover, had the Court granted Appellant leave to amend, he would have
alleged (and quoted directly from the February 2016 medical records) that Chapar’s
ideation. An amended Complaint would also allege that Appellees failed to timely
respond to a January 12, 2017 demand letter sent by Appellant’s counsel which, inter
alia, reiterated Lorig’s fragile mental health condition and the near-insurmountable
expire. Appellant would allege that Appellees’ inexcusable failure to timely and
substantively respond to the January 12 demand further pushed Lorig’s anxiety and
depression to the breaking point, and further substantially contributed to his decision
The District Court’s factual error alone warrants reversal, but as a legal matter
its analysis was also mistaken. It was simply premature for the District Court to
22
conclude that, as a matter of law, Appellant’s claim was not viable. Nearly all the
jurisprudence cited by the District Judge were cases that Appellant directly
addressed and distinguished in his opposition papers. Critically, in all those cases,
there is no suggestion that the defendant was directly aware that the employee was
suicidal. The fact that, at trial, or even at summary judgment, establishing liability
might prove challenging was not a basis to conclude that Appellant had not plausibly
pled that Appellees had engaged in deliberate or wrongful conduct that was a
specifically warned that Lorig was suicidal. In the face of those warnings, and
despite having been specifically informed that Lorig’s professional status and
standing was a key driver of his mental health issues, Appellees pressured Lorig to
leave the firm, and exerted that pressure knowing or deliberately ignoring his mental
fragility, quietly terminated his licenses, later told him that he had been fired as of
July 2014, and refused to take the most basic steps to preserve his licenses, knowing
that doing so devastated his chances of new employment, and thus forced a 66 year
old man with a decades-long history of depression, anxiety, and suicidal ideation to
Yet the District Court did not explain how the facts of the decisions it cited
23
believed, and, absent any explanation, concluded that Appellees’ actions were too
attenuated (either in time or nature – the District Judge did not say) to plead a claim.
Moreover, the District Court committed further error, and abused its discretion,
when he held there was no set of circumstances that could ever permit Appellant to
Forty-five years ago, the New York State Court of Appeals observed in Fuller
person injured by their negligence”9 and that “[r]egardless of how the evidence might
be viewed by those entitled to weigh it for its probative effect, there was enough to
establish plaintiff's right to have his evidence assessed by a trial jury, and it was
unwarranted to dismiss the complaint.” Id. The District Court’s decision neither
abided by Fuller’s principles, nor those governing Rule 12(b)(6) motions to dismiss.
STANDARD OF REVIEW
novo. The standard of review by this Court as to whether the District Court should
have granted Appellant leave to amend his Complaint is abuse of discretion. See In
9
Fuller v. Preis, 35 N.Y.2d 425, 427 (N.Y. 1974).
24
re Express Scripts Hldgs Co. Sec. Litig., __ Fed. App’x __, 2019 WL 2004302, at
*2 (2d Cir. May 7, 2019) (“We review de novo a district court's grant of a motion to
dismiss for failure to state a claim pursuant to Rule 12(b)(6))”, citing City of Pontiac
Policemen's & Firemen’s Ret. Sys. v. UBS AG, 752 F.3d 173, 179 (2d Cir. 2014).
This Court reviews a district court’s denial of a request to amend under Fed. R. Civ.
reviewed de novo. See Perry v. Mary Ann Liebert, Inc., __ Fed. App’x __, 2019
WL 1057076 at *1 (2d Cir. Mar. 6, 2019) (“We review a district court’s decision to
permit or deny leave to amend for abuse of discretion, but we review the denial of
leave to amend based on futility de novo”), citing Balintulo v. Ford Motor Co., 796
ARGUMENT
I. THE DISTRICT COURT FAILED TO DRAW REASONABLE
INFERENCES IN APPELLANT’S FAVOR, AND, INSTEAD,
IMPERMISSIBLY DREW INFERENCES FAVORING APPELLEES.
In Ashcroft v. Iqbal, the U.S. Supreme Court stated that “[a] claim has facial
plausibility when the pleaded factual content allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged”. Iqbal, 556 U.S.
662, 678 (2009) citing Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). This Court.
in Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010), explained that
25
the pleading stage; it simply calls for enough facts to raise a reasonable expectation
that discovery will reveal evidence of illegal[ity].” See also Twombly at 556
(observing that a well-pleaded complaint may proceed even if it strikes a savvy jurist
that actual proof of the claims “…is improbable and ... recovery is very remote and
unlikely.”); Keiler v. Harlequin Enters Ltd., 751 F.3d 64, 70 (2d Cir. 2014)
above the speculative level.”). Accord Goldman v. Belden, 754 F.2d 1059, 1067 (2d
Cir. 1985) (when faced with a motion to dismiss for failure to state a claim, the
court’s task is “not to weigh the evidence that might be presented at trial but merely
motion, the question is not whether a plaintiff is likely to prevail, but whether the
“whether plaintiffs allege enough to “nudge[ ] their claims across the line from
The District Court abstractly acknowledged these principles (A-62) but failed
to apply them. It instead resolved disputed factual issues itself in the context of a
Lorig’s doctors had provided to Appellees, and how Appellees regarded and
26
summary judgment. See Thomas v. TXX Svcs., Inc., 663 Fed. App’x 86, 89 (2d Cir.
2016) (reversing award of summary judgment in connection with alleged wage theft
under New York and federal law, where trial court resolved issues of fact itself rather
than determining whether such issues existed for trial).10 It is absolute error at the
motion to dismiss phase. See also Walker v. Schult, 717 F.3d 119, 128 (2d Cir. 2013)
(partially vacating district court’s grant of motion to dismiss prison inmate’s 1983
action where district court improperly “assay[ed] the weight of the evidence”, and
omitted); Suez Equity Investors, L.P. v Toronto-Dominion Bank, 250 F.3d 87, 100
(2d Cir. 2001) (in securities fraud case, concluding that district court failed to draw
employee received copies of original and modified report, circulated report, and was
10
Nor would it be appropriate post-trial. See Reeves v Sanderson Plumbing Prods,
Inc., 540 U.S. 133, 152 (2000) (in discrimination case, finding that Fifth Circuit
court erred in reversing district court’s denial of Fed. R. Civ. P. 50 motion and
rendering judgment for employer, because, inter alia, lower court failed to draw all
reasonable inferences in plaintiff’s favor, including acknowledging defendant’s age-
related comments but improperly discounting them because such comments
supposedly were not made in direct context of plaintiff’s termination, and
concluding that lower court impermissibly substituted its judgment concerning
evidence’s weight for the jury).
27
The District Court was not faced with a Complaint that failed to plead
Complaint was richly detailed and replete with facts that eminently permitted such
• Appellees had long known of Lorig’s struggles with mental illness, given
publicly reported decisions dating back to 2005 (A-10 to A-11, at ¶71), and
his two prior leaves of absence for mental health illness in 1989 and 2001, (A-
at all times Appellees believed that Lorig struggled with suicidal ideation,
whether an employee posed risks of suicide to develop a safety plan for their
to work.
• Appellees knew that Lorig was spending significant time in Florida, and, later
during his leave, moved to Florida, (A-22, at ¶123; A-27, at ¶165; A-32, at
28
¶197), thereby permitting a reasonable inference that Appellees knew Lorig
would not know that JPMorgan had terminated his licenses on September 19,
2015, and, consequently, would not realize that his licenses would be
permanently lost near the time his long-term disability leave ended.
and (b) that throughout his remaining leave, Lorig was concerned and anxious
have effectively barred him from his chosen profession in nearly any manner,
refused to take any steps to preserve his licenses, and even refused to assign
him work that did not require trading licenses. (A-36 to A-41, at ¶¶ 238-239,
reasonable inferences that: (a) these acts were a substantial cause of Lorig’s
suicide; (b) that these acts continued to substantially increase the risk of
29
Appellees and his death; and (c) that Appellees knew, ignored, or should have
District Court not only could have made, but was obligated to make. Its decision
instead rests entirely on drawing two inferences that favored Appellees; namely that
Lorig always believed he could return unmolested to his job, and that Appellees last
believed Lorig was suicidal two years before his death. The District Court’s decision
reversible error.
re Sept. 11 Prop. Damage & Bus. Loss Litig., 468 F. Supp. 2d 508, 524 (S.D.N.Y.
2006), aff'd sub nom., Aegis Ins. Servs., Inc. v. 7 World Trade Co., L.P., 737 F.3d
166 (2d Cir. 2013). A defendant’s conduct constitutes a proximate cause of injury
AG, 708 F.3d 82, 91 (2d Cir. 2013) (“Central to the notion of proximate cause is the
idea that a person is [] liable … to those with respect to whom his acts were a
substantial factor in the sequence of responsible causation and whose injury was
30
original, quoting Lerner v. Fleet Bank N.A., 318 F.3d 11, 123 (2d Cir. 2003) cert.
These basic principles apply in the context of tort liability for another’s
suicide. In Fuller11, the Court of Appeals held that public policy permits tortfeasors
to be held liable for the suicide of persons who, because of the tortfeasor’s
negligence, suffer mental disturbances that destroy their will to live. Fuller, 35
N.Y.2d at 428. Fuller further observed that while there can never be a sole cause of
11
Fuller concerned an estate executor’s suit to recover for the decedent's suicide
seven months after his being in an automobile accident in which the decedent
believed he was uninjured, but, in fact, had suffered serious head injuries. The trial
court entered judgment on a jury verdict for the plaintiff. The Appellate Division
dismissed the complaint holding that the connection between the decedent's injury
and his death was too doubtful and uncertain to hold the defendants liable. The
Court of Appeals subsequently reversed and remanded for a new trial finding that
questions of causations were jury issues.
12
Accord Estate of Brennan v. Church of Scientology Flag Servs Org., 832 F. Supp.
2d 1370, 1381 (M.D. Fla. 2011) (protection from liability for another’s suicide is
absent where a defendant’s wrongful action has facilitated or contributed to the
suicidal impulse). See also Restatement (Second) of Torts § 455 (1965) (liability lies
for negligent conduct that brings about the delirium or insanity of another “if his
delirium or insanity: (a) prevents him from realizing the nature of his act and the
certainty or risk of harm involved therein, or (b) makes it impossible for him to resist
an impulse caused by his insanity which deprives him of his capacity to govern his
conduct in accordance with reason.”).
31
Additionally, “when intervening acts are ‘but part of a continuum of events
initiated by the defendants’ original misconduct’ the acts which follow will not sever
the causal chain, though they may contribute to the ultimate injury.” Case v.
Anderson, 2017 WL 3701863, at *28 (S.D.N.Y. Aug. 25, 2017) (quoting Bell v.
N.Y.C. Health & Hosp. Corp., 90 A.D.2d. 270, 285 (2d Dept. 1982)). Both Fuller
and Case recognized that ultimately proving liability for a decedent’s suicide may
The District Judge cited Fuller and Case, (A-63 to A-64), but did not explain
why the Complaint’s allegations did not satisfy the causation standards those
decisions enunciate. The District Court’s analysis instead solely rested upon: (1) the
26, 2016 did Lorig have any concern that he could not return to work; and (2) the
Court’s mistaken inference that JPMorgan had not been advised since August 2014
that Lorig posed a suicide risk. The Court did not discuss any of the facts of the
decisions it cited or point to anything that severed the causal chain between
13
See also White v. Watson, 2018 WL 2047934, at *15 (S.D. Ill. May 2, 2018)
(finding that reasonable jury could find, under the circumstances of case, that
corrections officers owed prisoner a duty to prevent his suicide and to implement
suicide prevention policies, where prisoner had announced he would kill himself).
32
Appellees’ actions and Lorig’s suicide. As discussed further below, all the cases the
Court cited reflect materially different facts than those alleged here.
The District Court’s analysis also conflicts with §31 of the Restatement
(Third) of Torts: Phys. and Emot. Harm, which holds that where an actor’s tortious
conduct harms a person who possesses preexisting physical or mental conditions that
the actor is, nevertheless, subject to liability for all harm suffered by the victim. This
principle is also known as the “thin-skull plaintiff rule”. The fact that Appellees were
repeatedly made aware of Lorig’s mental state generally, and his suicidal ideation
specifically, reinforces rather than undermines the causal link between their actions
The fact that there was a gap in time between Lorig’s last direct
communication with Appellees and his suicide does not foreclose liability, nor
would the circumstance that other factors may have contributed to his death. “The
mere fact that other persons share some responsibility for plaintiff's harm does not
absolve defendant from liability because “there may be more than one proximate
cause of an injury”. Mazella v. Beals, 27 N.Y.3d 694, 706 (N.Y. 2016) (quoting
Argentina v. Emery World Wide Delivery Corp., 93 N.Y.2d 554, 560 n. 2 (N.Y.
33
1999)).14 In Mazella, a patient’s widow commenced a wrongful death action against
a psychiatrist, seeking damages resulting from the patient’s suicide. The trial judge
entered judgment in the widow’s favor and denied a motion to set the verdict aside.
Although the Court of Appeals reversed the verdict on the grounds that the trial court
had committed reversible error by admitting certain evidence, the Court nevertheless
held that the evidence had been legally sufficient to support the verdict, finding that
it was not unforeseeable that, after his psychiatrist threw him out of his office when
the patient refused to be hospitalized, the patient would have developed suicidal
thoughts given his many years of clinically-diagnosed depression for which he had
been taking medication. Id. at 706-707. Furthermore, the Court of Appeals also
professionals were not superseding events breaking the causal connection between
the doctor’s failures to properly monitor his patient's medication and adequately
14
See also Hydro Investors, Inc. v. Trafalgar Power Inc., 227 F.3d 8, 15 (2d Cir.
2000) (proximate cause determination does not require factfinder to identify liable
party as sole cause of harm; identified cause need only constitute a substantial factor
in bringing about injury).
15
See also Ferencz v. Medlock, 2014 WL 3339639, at *6 (W.D. Pa. July 8, 2014)
(partially denying summary judgment motion where prison’s failure to ensure full
communication of inmate watch information could constitute deliberate
indifference, and because prison warden was allegedly responsible for policy gap,
warden could face liability despite warden’s lack of personal knowledge or
34
Mazzella’s reasoning bears strong analogy here. Appellees unquestionably
knew Lorig was suicidal, and also knew that his depressed mental state in part
reflected the fact that Wall Street was a “core part of [Lorig’s] identity”. (A-23 to
Decedent’s doctor’s analysis, but that is a far cry from concluding at the pleading
stage that Appellees did not believe Lorig was despondent over not being able to
conclusively determine at the pleading stage what Appellees intended when they
refused to take any measures to preserve Lorig’s licenses, and dragged out
35
responding to Decedent’s counsel’s efforts to resolve the matter.16 Indeed, given
that, when viewed in the light most favorable to Plaintiff, the facts plausibly suggest
aggravating Lorig’s existing condition, the scope of Appellees’ liability for Lorig’s
injuries is more expansive. See Restatement (Third) of Torts: Phys. & Emot. Harm,
§33 (2010).
Nor is there a bright-line pleading test for temporal proximity. See Roland v.
the Second Circuit ‘has not drawn a bright line to define the outer limits’ of temporal
proximity in retaliation cases, courts have found support for causation in cases
16
See also Delise v. Metro-N. R. Co., 646 F. Supp. 2d 288, 291–92 (D. Conn. 2009)
(denying summary judgment in Federal Employer Liability Act intentional infliction
of emotional distress claim case arising out of railroad employee’s suicide, and
citing, inter alia, cmt “e” to Restatement (Second) of Torts § 46 (1965) for principle
that “[t]he extreme and outrageous character of the conduct may arise from the
actor's knowledge that the other is peculiarly susceptible to emotional distress, by
reason of some physical or mental condition or peculiarity. The conduct may become
heartless, flagrant, and outrageous when the actor proceeds in the face of such
knowledge, where it would not be so if he did not know” and further holding that
that issues of material fact precluded determining whether defendant’s conduct was
extreme and outrageous because employee’s supervisor was in position of actual
authority over decedent-employee, and whether he knew that employee was
especially susceptible to emotional distress and posed suicide risks) (emphasis
added); Halko v. N.J. Transit Rail Operations, Inc., 677 F. Supp. 135, 142 (S.D.N.Y.
1987) (denying summary judgment in FELA action where alleged harassment of
decedent-employee purportedly caused employee’s suicide, and holding that if
employee’s suicide was result of mental anguish that prevented employee from
exercising restraint or genuinely comprehending their actions, suicide was not
superseding cause severing causal link).
36
involving longer periods than the two months at issue here.”) (citing Gorman–Bakos
v. Cornell Co-op Ext. of Schenectady Cty., 252 F.3d 545, 554 (2d Cir. 2001) and
Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009) (“[T]he passage of only six
Geoghegan, 2009 WL 2182379, at *14 (E.D.N.Y. July 21, 2009) (Defendant’s gap
in treatment time argument did not establish absence of fact issues regarding the
cause of plaintiffs’ injuries). The District Judge failed to clearly identify what
alleged gap period rendered causation impossible to plead, such that the District
Court found that there were no conceivable facts that could be added to an amended
Complaint. (A-66). To the extent the passage of time was a relevant consideration,
it was, at most, merely a non-exclusive factor that a factfinder could consider along
with other evidence. See Bamba v. Fenton, 2017 WL 3446806, at *9 (E.D.N.Y. Aug.
10, 2017), aff'd, 758 F. App’x 8 (2d Cir. 2018) (“The Court acknowledges that
temporal proximity is only one factor in its causation analysis, and the plaintiff may
intervening period” between the protected activity and the alleged adverse action.”)
(S.D.N.Y. Mar. 8, 2017) (“A variety of factors can influence the fact-sensitive
37
in injury; the passage of time between the originally negligent act and the intervening
act; the spatial gap, if any, between the original act and the intervening act; whether
the original act of negligence was a completed occurrence or was ongoing at the time
of the intervening act; whether and, if so, what other forces combined to bring about
the harm; as well as public policy considerations regarding the scope of liability.’”)
(quoting Hain v. Jamison, 28 N.Y. 3d 524, 530 (N.Y. 2016)17). Instead, the District
determinative factor.
None of the decisions cited in the District Court’s opinion (see A-63 to A-66)
are analogous. None of the cited cases involved a scenario where the defendant
knew, or even reasonably should have known, that the decedent was suicidal. In
D’Addezio v. Agway Petroleum Corp., 186 A.D.2d 929 (3d Dept. 1992) an employee
company policy violations which resulted in the employer also swearing out two
felony complaints against the employee because the policy violations suggested that
the employee was stealing from the company. Nothing in the decision indicates that
the employer had any knowledge that the employee posed a suicide risk, and the
17
Hain was a wrongful death lawsuit wherein the trial court initially denied the
defendant’s summary judgment motion, the Appellate Division reversed, and the
Court of Appeals thereafter reversed the lower appellate court, finding that issues of
fact precluded awarding summary judgment as to the foreseeability of the facts at
issue.
38
employer’s actions—suspending the employee for possible theft and filing a
criminal complaint—are a far cry from Appellees pressuring Lorig to retire rather
than take long-term leave or return to work, quietly terminating his licenses,
connection with the employee drinking on the job and refused to provide treatment
for alcoholism and depression. Unlike Lorig, the Reinhard decedent was not on
disability leave and nothing indicates that the employer was aware that the employee
posed a suicide risk. Furthermore, Reinhard concluded that the plaintiff’s claim
sounded in age discrimination, whereas here, Lorig was discriminated not only due
to his age, but also based upon his mental health disability, and Appellees’ conduct
went well beyond merely refusing to provide requested counseling, and instead
constituted a scheme to strip Lorig of his clients, job, and licensure, fully aware that
nothing suggests that the decedent’s pre-arrest history should have led police officers
to suspect, let alone know, that the decedent posed a suicide risk. Watkins v. Labiak,
282 A.D.2d 601, 602 (2d Dept. 2011) is also off-point; in that case the decedent
39
killed himself after suffering pain and numbness from a shoulder operation, hardly
forseeable conduct that the surgeon should have been aware of.
Finally, Van Valkenburgh v. Robinson, 225 A.D.2d 839, 840-41 (3d Dept.
1996) is markedly inapposite. That case involved a tragically bizarre scenario where
an off-duty police officer got into an argument with his wife and removed his gun to
place it in his car. The couple continued arguing in the car, and the officer’s wife
grabbed the gun, refused to return it, accidentally shot herself in the hip, shot her
husband in the chest, paralyzing him, and, upon realizing what she had done,
committed suicide using the gun. It is, therefore, unsurprising that the Van
Valkenburgh court concluded the husband’s act of removing his weapon did not
Each of the above cases is facially inapposite, but unfortunately the District
Judge did not explain why they were analogous, or detail why Appellees’ acts were
too attenuated from Lorig’s suicide to satisfy proximate cause. This constitutes
Appellant had no opportunity to take any discovery from Appellees that would shed
light on their internal strategizing and decisions regarding how to address Lorig’s
18
This Court should decline any invitation by Appellees to affirm on the alternative
ground that Appellant’s claims were precluded under the NYWCL. While this Court
40
III. THE DISTRICT COURT ERRED IN REFUSING
TO GRANT APPELLANT LEAVE TO AMEND.
Although Appellant respectfully submits that the Complaint as pled should
not have been dismissed with prejudice, Appellant at least should have been
provided an opportunity to amend it, given that it was not amended as of right, and
Plaintiff had not previously requested or been provided with an opportunity to amend
the Complaint. As previously noted, while this Court reviews a district court’s
decision to permit or deny leave to amend for abuse of discretion, where the denial
is empowered to affirm a district court’s decision on any basis for which there is
sufficient support in the record, it is the Court’s “distinctly preferred practice to
remand” issues not addressed by the District Court for its consideration in the first
instance. Schonfeld v. Hilliard, 218 F.3d 164, 184 (2d Cir. 2000); accord Fulton v.
Goord, 591 F.3d 37, 45 (2d Cir. 2009). Affirming on this ground would,
respectfully, be especially inappropriate given that Appellant argued that: (a)
Appellees had already fired Lorig while he was on disability leave, thus taking it out
of the NYWCL’s purview because they are post-termination acts, see Anderson v.
Bristol, 847 F. Supp. 2d. 1128, 1140 (S.D. Iowa 2012) (surveying national case law,
and holding that, in context of Rule 12(b)(6) motion, improper to hold a wrongful
death claim relating to post-termination suicide as preempted under workers’
compensation statute); and (b) the Appellee’s conduct is alleged in detail to have
been intentional and deliberate and therefore excluded from NYWCL preemption.
See McNally v. Posterloid Corp., 15 A.D.3d 456, 457 (2d Dept. 2005) (intentional
tort may give rise to a cause of action outside NYWCL where plaintiff alleges that
employer engaged in intentional or deliberate acts directed at causing harm to the
particular employee.) See also Restatement (Third) of Torts: Phys. & Emot. Harm,
§33(a) (actor who intentionally causes harm is subject to liability for such harm even
if harm was unlikely to occur).
1057076, at *1 citing Balintulo v. Ford Motor Co., 796 F.3d 160, 164 (2d Cir. 2015).
Here, the District Court concluded that it could “not imagine a set of
circumstances that would allow Plaintiff to adequately plead the causal element of a
wrongful death claim in this case.” (A-66). Regrettably, the District Court’s surmise
rests upon its misapprehension of the factual record, and its error in drawing
inferences favorable to the Appellees regarding what they understood about Lorig’s
condition and whether acts they engaged in during his disability leave substantially
contributed to his suicide several years later when viewed in combination with their
later behavior closer in time to Lorig’s death. The District Court’s conclusion in this
regard also appears to rest on that Court’s reliance on wholly inapposite caselaw,
A court “should freely give leave [to amend] when justice so requires.” City
of Pontiac Gen. Employees' Ret. Sys. v. MBIA Inc., 300 F. App'x 33, 34 (2d Cir.
2008) (summary order) (quoting Fed. R. Civ. P 15(a)(2)). See also Ronzani v. Sanofi
S.A., 899 F.2d 195, 199 (2d Cir. 1990) (district court abused its discretion in denying
leave to amend where no leave previously given, and the panel could not determine
on the basis of the record that leave to amend was futile.). 19 Where a possibility
19
See also id at 198 (“Although the decision whether to grant leave to amend is
within the discretion of the district court, refusal to grant leave must be based on a
valid ground.”)
42
exists that a defect can be cured, leave to amend at least once should normally be
granted unless doing so would prejudice the defendant. Oliver Schools, Inc. v. Foley,
930 F.2d 248, 253 (2d Cir. 1991). Moreover, a plaintiff typically “will not see the
necessity of amendment” where that plaintiff lacks “the benefit of a ruling” from the
court. Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 797 F.3d 160, 190
(2d Cir. 2015). Under such circumstances, denial of a Rule 15 request is often
improper. See Cresci v. Mohawk Valley Cmty. Coll., 693 F. App’x 21, 25 (2d Cir.
2017) (summary order) (“The proper time for a plaintiff to move to amend the
complaint is when the plaintiff learns from the District Court in what respect the
complaint is deficient. Before learning from the court what are its deficiencies, the
efficaciously.”).
Here, the Complaint has never been amended, even as of right. Nor would
amendment be futile. If granted leave to amend, Appellant would make clear that
later medical reports provided to Appellees in 2016 specifically restated that Lorig
posed a suicide risk, and to add additional facts regarding Lorig’s communications
with friends and family that confirm that Appellees’ conduct, including their bad
faith refusal to accommodate his disability, refusal to preserve his licenses, and
demand that he accede to outrageous non-compete terms, was a direct and proximate
43
In addition, Appellant would also amend the Complaint to allege that, on
General Counsel’s office. That demand letter described in detail the emotional
letter advised that the demand would remain open for seven (7) days, and that if no
response was forthcoming, Lorig would need to commence appropriate legal action.
Appellant would further allege that Appellees nevertheless failed to respond to the
demand letter by January 19, despite now having been yet again reminded of Lorig’s
fragile mental health condition, and the fact that Appellees’ conduct, especially
secure new employment. Appellant would allege that Mr. Lorig anxiously awaited
contributed to Lorig’s suicide on January 22, only a few days after the demand
The District Court’s terse futility analysis simply cannot withstand de novo
review, and, even if de novo review did not apply, constituted an abuse of discretion.
44
Therefore, while the Complaint as pled satisfied requisite pleading standards,
CONCLUSION
For the reasons explained above, Appellant respectfully requests that the
District Court’s Order be reversed, or, in the alternative, that Appellant be granted
leave to replead his Complaint, together with such other and further relief as this
45
CERTIFICATE OF COMPLIANCE
Word 2010.
32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because this