contract, that claim must be dismissed pursuant to Rule 12(b)(6).
Plaintiff's eighth cause of action alleges defamation on the
part of both defendants. In particular, plaintiff claims that
"St. John's  wrote and published false statements in September
of 1999 about [plaintiff] in an attempt to disparage his
reputation." (Compl. ¶ 45.) In support, plaintiff points to a
single statement, namely that he "was not a former assistant
soccer coach," which was "widely distributed at many campuses
across the country. . . ." (Id.) He further alleges that in
1999 St. John's and Nike "made other verbal false statement [sic]
about [plaintiff] in an attempt to disparage his reputation."
(Id. ¶ 46.) These statements, which were purportedly made "with
actual knowledge of their falsity and with malice," damaged
plaintiff's reputation by "injur[ing] plaintiff in his profession
and employment, and further, impugning him to be dishonest."
(Id. ¶¶ 47-49.)
In order to establish a claim for defamation under New York
law, a plaintiff must allege (i) a false and defamatory statement
of fact, (ii) of or concerning the plaintiff, (iii) publication
to a third party, and (iv) injury to the plaintiff as a result.
See Nowak v. EGW Home Care, Inc., 82 F. Supp.2d 101, 113
(W.D.N.Y. 2000) (citing Weldy v. Piedmont Airlines, Inc.,
985 F.2d 57, 61 (2d Cir. 1993)). However, while the defamation need
not be plead in haec verba, a pleading is only sufficient if it
adequately identifies "the purported communication, and an
indication of who made the communication, when it was made, and
to whom it was communicated." Broome v. Biondi, No. 96 Civ.
0805, 1997 WL 83295, at *2 (S.D.N.Y. Feb. 10, 1997); see also
Ives v. Guilford Mills, 3 F. Supp.2d 191, 199 (N.D.N.Y. 1998)
(dismissing defamation claim where it did not identify with
precision who at defendant company made the alleged statements,
at what times or places, and to whom the statements were made).
"The central concern is that the complaint afford defendant
sufficient notice of the communications complained of to enable
him to defend himself." Kelly v. Schmidberger, 806 F.2d 44, 46
(2d Cir. 1986). Mere conclusory statements that plaintiff was
disparaged by false statements are insufficient to state a
defamation claim. See Reilly v. Natwest Markets Group, Inc.,
181 F.3d 253, 271 (2d Cir. 1999) (affirming dismissal of
plaintiff's unsupported claim of defamation that defendant "said
`something bad' about him to client"); Ford v. Clement,
834 F. Supp. 72, 78 (S.D.N.Y. 1993), aff'd 29 F.3d 621 (2d Cir.
1994) (finding allegations of defamation insufficient where they
failed to "give [defendant] any notice whatsoever of the
communications at issue").
Plaintiff has failed to meet these pleading requirements.
Plaintiff alleges a series of defamatory statements without
identifying the substance of those statements, by whom they were
made, or to whom they were communicated. The one statement
plaintiff does identify, St. John's' statement that plaintiff
"was not a former assistant soccer coach," cannot save
plaintiff's claim because it is not a false statement of fact.
While plaintiff ambiguously describes himself at the outset of
his Complaint as a "teaching assistant/soccer coach/graduate
student," (Compl. ¶ 1), the Agreement denotes him as
"Administrative Assistant in the Department/Office of Men's
Soccer," a fact plaintiff acknowledges. (Compl. ¶ 6, Ex. 1.)
Further, in his resignation letter, plaintiff describes himself
as a "graduate assistant." (Id., Ex. 3.) The record therefore
reflects that plaintiff was not an assistant soccer coach.
Accordingly, plaintiff's defamation claim must be dismissed
pursuant to Rule 12(b)(6).
F. Motion for Leave to Amend
Subsequent to the full briefing of defendants' motions to
dismiss and defendants' answers to the Complaint, plaintiff filed
a motion for leave to amend his Complaint. Plaintiff's proposed
Amended Complaint adds several new factual allegations and two
new counts, his ninth and tenth causes of action, based on
violations of the Racketeer
Influenced and Corrupt Organizations Act ("RICO").*fn12
(Proposed Amended Complaint ("Prop.Amend.Compl.") ¶¶ 6-51,
After the filing of a responsive pleading, the grant or denial
of leave to amend a pleading is within the discretion of the
district court. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct.
227, 9 L.Ed.2d 222 (1962); Fed.R.Civ.P. 15(a) ("Rule 15(a)".)
While leave to amend shall be granted freely "when justice so
requires," Rule 15(a), it may be denied upon a finding of "bad
faith, undue delay, or prejudice to the opposing party." In Re
1993 Corning Securities Litig., No. 93 Civ. 7015(AGS), 1996 WL
257603, at *1 (S.D.N.Y. May 15, 1996). Moreover, a motion for
leave to amend may be denied where the amendment would be
"futile" and has "no colorable merit." Northbrook National Ins.
Co. v. J & R Vending Corp., 167 F.R.D. 643, 647 (E.D.N.Y. 1996)
(citing Oliver v. DeMarinis & Co., No. 90 Civ. 7950, 1993 WL
33421, at *2 (S.D.N.Y. Jan.29, 1993) (citation omitted)); see
also Foman, supra, 371 U.S. at 182, 83 S.Ct. 227 (noting
"futility of amendment" as a reason for denial of leave to
amend). An amendment may be considered "futile" if the amended
pleading could not survive a motion to dismiss. See Smith v.
Kessner, 183 F.R.D. 373, 373 (S.D.N.Y. 1998).
Plaintiff's proposed amendment would be futile because he lacks
standing to assert a RICO claim. Under 18 U.S.C. § 1964(c),
"[a]ny person injured in his business and property by reason of a
violation of section 1962 of this chapter" has standing to pursue
a civil RICO cause of action. This requires a showing that the
plaintiffs injury was proximately caused by the defendants'
alleged racketeering activity. See Holmes v. Securities Investor
Protection Corp., 503 U.S. 258, 268, 112 S.Ct. 1311, 117 L.Ed.2d
Plaintiff has failed to establish this causal relationship. In
his proposed Amended Complaint, plaintiff alleges that "[Nike]'s
racketeering income has given Nike the resources to enter into a
contract with St. John's University. It is that contract that has
caused direct injury to plaintiff." (Prop.Amend.Compl. ¶ 16.) Such
an attenuated connection belies plaintiff's conclusory allegation
in his stated RICO causes of action that "[a]s a direct and
proximate result of defendants' violations . . . plaintiff has
been injured in his business and property." (Id. ¶¶ 112, 117.)
Moreover, as with his other claims, plaintiff has failed to
explain what injury, if any, he allegedly suffered as a result of
defendants' illegal acts.
Viewing the proposed amendment in the light most favorable to
the plaintiff, it appears that plaintiff wishes to assert he was
forced to resign his employment at St. John's because of his
opposition to Nike's alleged racketeering activity. (Prop.
Amend.Compl. ¶ 68.) However, the Supreme Court has held that a
plaintiff asserting loss of employment in connection with illegal
practices does not have standing to assert a RICO claim, where
such termination is not caused by an act that is independently
wrongful under RICO. See Beck v. Prupis, ___ U.S. ___, ___, 120
S.Ct. 1608, 1617, 146 L.Ed.2d 561 (2000) (holding, in the context
of the termination of corporation's president, that injury caused
by an overt act not independently wrongful under RICO does not
give rise to RICO cause of action) (citing Hecht v. Commerce
Clearing House, 897 F.2d 21, 25 (2d Cir. 1990)). In this case,
any injuries plaintiff could allege would result from his
constructive discharge from St. John's, an act that itself is not
independently wrongful under RICO. Plaintiff therefore does not
have standing under Section 1964(c), and his RICO claims must be
Even if plaintiff's proposed amendment could survive a motion
the circumstances surrounding the filing of plaintiff's motion
for leave to amend warrant denial of plaintiff's motion on
account of bad faith and undue delay. First, plaintiff has had
ample opportunity to investigate its claims and seek leave to
amend. Plaintiff waited over one year from his resignation from
St. John's in order to file the Complaint, and five months after
the filing of the Complaint to file its motion for leave to
amend.*fn14 Second, his opposition to the motions to dismiss
relied on his "Amended Complaint" to cure the deficiencies in his
original Complaint with respect to three separate counts. (Pl.'s
Opp. at 3-6, discussing plaintiff's claims under 42 U.S.C. § 1985,
1986, 1981a.) However, plaintiff had not yet filed a motion
for leave to amend; nor did his memorandum indicate what
deficiencies the amended complaint would cure. Third, plaintiff's
proposed Amended Complaint does not cure any of the deficiencies
in the original Complaint, as it repeats the allegations of the
original Complaint for the subject counts. Based on such conduct,
the Court finds that plaintiff acted in bad faith, and with the
intention to unduly delay this litigation, by (i) relying on a
hypothetical Amended Complaint in the opposition papers, and
misrepresenting the content of the Amended Complaint, and by (ii)
waiting until after the motions to dismiss were fully briefed in
order to file his motion for leave to amend, based on an
insufficient new charge.*fn15 See PI, Inc. v. Quality Products,
Inc., 907 F. Supp. 752, 764 (S.D.N.Y. 1995) ("When it appears
that leave to amend is sought in anticipation of an adverse
ruling on the original claims . . . the court is free to deny
leave to amend."); Bymoen v. Herzog, Heine, Geduld, Inc., 88
Civ. 1796, 1991 WL 95387, at *1 (S.D.N.Y. May 28, 1991) (same);
CL-Alexanders Laing & Cruickshank v. Goldfeld, 739 F. Supp. 158,
165 (S.D.N.Y. 1990) (denying leave to amend where proposed
amended complaint was "festooned with unnecessary evidentiary
detail" and was "crafted in order to elicit a strong reaction in
the jury room"). Further, defendants will be prejudiced by a
grant of the motion, which would "require [them] to expend
significant additional resources to conduct discovery and prepare
for trial [and] significantly delay the resolution of the
dispute. . . ." Block v. First Blood Assocs., 988 F.2d 344, 350
(2d Cir. 1993) (citations and internal quotations omitted).
Plaintiff's motion for leave to amend his Complaint must
therefore be denied.
For the foregoing reasons, the Court grants defendants' motions
to dismiss in
full, and denies plaintiff's motion for leave to amend. The Clerk
of the Court is directed to close the file in this action.