14-4780 Ahluwalia v. St. George University UNITED STATES COURT OF APPEALS FOR THE SECO ND 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 DA TABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CI TING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT RE PRESENTED BY COUNSEL.

At a stated term of the Unite d States Court of Appeals fo r the Second Circuit, held 1 at the Thurgood Marshall United States Courth ouse, 40 Foley Square, in the City of New 2 York, on the 22 nd day of September, two thousand fifteen. 3 4 PRESENT: JON O. NEWMAN, 5 ROBERT D. SACK, 6 GERARD E. LYNCH, 7 Circuit Judges , 8

———————————————— ——————— 9 10 NITESH AHLUWALIA, 11 Plaintiff-Appellant , 12 13 v. No. 14-4780 14 15 ST. GEORGE’S UNIVERSITY, UNIVERSITY 16 SUPPORT SERVICES , DANIELLE ROSEN, 17 Defendants-Appellees , 18 DOES I–XX, 19 Defendants. 20 21

——————————————————————— 22 23 APPEARING FOR APPELLANT: JASON J. BACH, The Bach Law Firm, LLC, 24 Las Vegas, Nevada. 25 26 APPEARING FOR APPELLEES: CHARLES S. SIMS (Pietro A. Deserio, on the 27 brief), Proskauer Rose LLP, New York, New 28 York, for St. George’s University, LLC, and 29 University Sup port Services, LLC

. 30 31 MICHELLE ACOSTA, Fumuso, Kelly, 32 DeVerna, Snyder, Swart & Farrell, LLP, 33 Hauppauge, New York, for Danielle Rosen

. 342 Appeal from the United States District C ourt for the Eastern District of New York 1 (Arthur D. Spatt, J. ). 2 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 3 AND DECREED that the judgment of the district court is AFFIRMED. 4 Plaintiff-Appellant Nitesh Ahluwalia a ppeals from a judgment dismissing his four5 count complaint pursuant to Fed. R. Civ. P. 12(b)(6). He alleges that he was unfairly 6 expelled from St. George’s University School of Medicine (“the School”), where he and 7 Defendant-Appellee Danielle Rosen were enrolled as students. He argues that the district 8 court erred in dismissing his claims ag ainst Defendants-Appe llees St. George’s 9 University, LLC (“SGU LLC”) and Univers ity Support Services, LLC (“USS”) for 10 breach of contract and negligent hiring, trai ning and supervision, and his claim against 11

Rosen for tortious interference with contract. 1 He further challenges the district court’s 12 decision to deny him leave to replead. We assume the parties’ familiarity with the 13 underlying facts and procedur al history of this case. 14

We review de novo the grant of a motion to dismiss under Fed. R. Civ. P. 12(b)(6), 15 accepting the factual allegations in the comp laint as true and drawing all reasonable 16 inferences in favor of the plaintiff. Sewe ll v. Bernardin, 795 F. 3d 337, 339 (2d Cir. 17 2015). In addition to the co mplaint, we may consider do cuments attached thereto or 18 incorporated by reference, and “documents upon which the compla int relies heavily.” 19

1 The district court also dismissed Ahlu walia’s claim for fraud against Rosen, but Ahluwalia does not challenge that ruling on appeal.3 Bldg. Indus. Elec. Contractors Ass’n v. City of New York, 678 F.3d 184, 187 (2d Cir. 1 2012). We review the denial of leave to am end the complaint for abuse of discretion. 2

Lotes Co. v. Hon Hai Precision Indus. Co., 753 F.3d 395, 403 (2d Cir. 2014). 3 The breach of contract claim was prop erly dismissed because Ahluwalia fails 4 plausibly to allege that he was in a cont ractual relationship with SGU LLC or USS. 5 While Ahluwalia’s allegations support the inference that he was in a contractual 6 relationship with the entity that operates the School, neither SGU LLC nor USS is 7 plausibly alleged to be that entity. The Sc hool’s Eligibility and Certification Approval 8 report issued by the U.S. Department of Educ ation, which is incorporated by reference in 9 the complaint, shows that SG U LLC wholly owns another en tity, St. George’s University, 10 Ltd. (“SGU Ltd.”), which itself wholly ow ns the School. Absent circumstances 11 permitting piercing the corporat e veil – which are not allege d here – the contractual 12 obligations of a subsidiary w ill not be imputed to the parent . See Sheridan Broad. Corp. 13 v. Small, 19 A.D.3d 331, 332 (1st Dep’t 2005). 2 14 As to USS, the complaint a lleges that it is an agent of the School, but an agent 15 contracting on behalf of a disclo sed principal is not a party to the contract “unless there is 16 clear and explicit evidence of th e agent’s intention to be pe rsonally bound.” Weinreb v. 17 Stinchfield, 19 A.D.3d 482, 483 (2d Dep’ t 2005). Even assuming that Ahluwalia 18

2 Although it is not clear whet her 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 ne ither party suggests that Gr enadian law differs from New York law in any way relevant to this case.4 contracted with the School th rough USS, there is no allegati on that USS failed to disclose 1 that it was acting on behalf of the School or that it intended at the time of contracting to 2 be bound by the contract. 3 The negligent hiring, training and supervis ion claim was also properly dismissed, 4 for at least three reasons. First, such cl aims are unavailable where the plaintiff was 5 wronged by an employee acting within the scope of his employment. Weinberg v. 6 Guttman Breast & Diagnostic Inst., 254 A.D.2d 213, 213 (1st Dep’t 1998). Dean Rao’s 7 decision to expel Ahluwalia was plainly within the scope of his employment as Dean of 8

Students at the School. This is so even if, as alleged, Dean Rao acted arbitrarily and in 9 bad faith, because “an act is within the scop e of employment if it ‘was done while the 10 servant was doing his master’s work, no matter how irregularly, or with what disregard of 11 instructions.’” Sagal-Cotler v. Bd. of Educ ., 20 N.Y.3d 671, 675 (2 013), quoting Riviello 12 v. Waldron, 47 N.Y.2d 297, 302 (1979). There is likewise no basis in the complaint for 13 inferring that Deans Weitzman and Robinson were acting outside the scope of their 14 employment. Second, the claim fails becau se Ahluwalia has not alleged any facts 15 showing that the School was on notice of its employees’ “propensity to commit the 16 conduct alleged.” Doe v. Goldweber, 112 A.D. 3d 446, 447 (1st Dep’ t 2013). Third, for 17 the reasons discussed above, the complaint does not plausibly allege that the School 18 employees whose actions are in question were employed by the named defendant entities. 19

We also affirm the district court’s dism issal of Ahluwalia’s claim against Rosen 20

for tortious interference with contract. Assuming arguendo that Ahluwalia’s contract 215 with the School incorporated the terms of the Judicial Process Manual, and that the 1 School breached those terms in expelling Ahlu walia, the complaint does not allege that 2 Rosen caused, or intended to ca use, that breach. Rather, it a lleges that Rosen intended to 3 have Ahluwalia expelled, which the School c ould have done withou t violating the terms 4

of the Judicial Process Manual. There is no basis in the complaint to infer that Rosen 5 desired or tried to induce the School to adopt or avoid any particular procedure. See 6

Alvord & Swift v. Stewart M. Muller Co nstr. Co., 46 N.Y.2d 276, 281 (1978) 7 (interference with contract must be intenti onal and not merely incidental). Because the 8 claim for tortious interference with prospectiv e business relations is barely alluded to in 9 Ahluwalia’s briefing on appeal, we consider it abandoned. See Giuffre Hyundai, Ltd. v. 10 Hyundai Motor Am., 756 F.3d 204, 207 n.2 ( 2d Cir. 2014) (plaintiff abandoned claims 11 “by failing to give them more than curs ory treatment in its brief on appeal”). 12 Finally, the district court did not abuse its discretion in denying Ahluwalia leave to 13 amend his complaint. “A plaintiff need not be given leave to amend if [he] fails to 14 specify either to the district court or to the court of appeals how amendment would cure 15 the pleading deficiencies in [h is] complaint.” TechnoMarine SA v. Giftports, Inc., 758 16 F.3d 493, 505 (2d Cir. 2014). In his br ief, Ahluwalia inventories the pleading 17 deficiencies identified by the district court and announces his intention to remedy them, 18 but does not offer any specific new facts that would plausibly support a claim for relief. 196 We have considered all of Ahluwalia’s remaining arguments and find them to be 1 without merit. For the foregoing reasons the judgment of the district court is 2

AFFIRMED. 3

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5 FOR THE COURT: 6 CATHERINE O’HAGA N WOLFE, Clerk of Court 7 8 9 10 11