The opinion of the court was delivered by: Denise Cote, District Judge:
The plaintiff, Manuel Cougil ("Cougil"), brings this action against Manhattan Ford Lincoln-Mercury, Inc. ("MFLM"), United Auto Workers Union Local 259 (the "Union") and Armand Lugassy ("Lugassy"), asserting claims under the First, Fourth, Eighth and Fourteenth Amendments of the United States Constitution, 42 U.S.C. § 1983 ("§ 1983"), and New York State Labor Law § 704 ("§ 704") against all defendants; a breach of contract claim against MFLM and Lugassy; and a breach of the duty of fair representation against the Union. The defendants have moved to dismiss Cougil's complaint, and MFLM and Lugassy also bring a motion for sanctions pursuant to Federal Rule of Civil Procedure
The following facts are drawn from the complaint filed on February 10, 2011 (the "Complaint") and are assumed to be true for the purposes of this motion. Cougil was employed as an automobile technician by MFLM from 1988 through March 10, 2008, when he was fired. While an employee, Cougil was given promotions and pay raises, reaching a position of "master technician." Lugassy was Cougil's supervisor for several years prior to March 10, 2008. As a member of the Union, Cougil was subject to the collective bargaining agreement ("CBA") between the Union and MFLM.
MFLM did not provide adequate training to prevent the "unlawful employment activity" of its employees. On several occasions in early 2008 -- February 7, February 12, and March 10 -- Cougil filed a grievance with the Union about MFLM and Lugassy. The defendants were all on notice that he was filing these grievances. On March 10, Cougil was fired from his job. The proffered reason was poor workmanship, but this was a pretext for retaliation for filing grievances with the Union. The Union did not intercede to prevent Cougil's discharge, nor did it file a grievance against MFLM's unlawful employment practices.
Cougil filed this action in New York State court on February 10, 2011. The defendants removed the action to federal court on February 21. The Union then filed a motion to dismiss on March 9 and MFLM and Lugassy filed a motion to dismiss on March 10. This Court set a schedule for briefing these motions on March 11, allowing Cougil to oppose the motions or amend his complaint by March 31. Cougil was informed that this would be his last opportunity to amend his complaint.
In a letter dated March 21, the defendants informed the Court that on February 24, Cougil had filed an amended complaint in the state court action. The Court informed the parties that the March 11 scheduling order remained in effect and that any amended complaint had to be filed in federal court by March 31.
Cougil has filed neither an amended complaint nor an opposition to either motion to dismiss. On April 1, 2011, after the deadline to amend the complaint or file an opposition brief had passed, counsel for Cougil contacted this Court's chambers to inform the Court that she expected Cougil would wish withdraw his complaint. By a letter dated April 21, Cougil indicated a desire to withdraw the complaint. This Court's chambers informed Cougil's counsel that the letter did not conform to Federal Rule of Civil Procedure 41.*fn1 Cougil then attempted to get the defendants' consent to remand the action to state court, where he would file an amended complaint. The amended complaint would purport to drop the federal law claims as well as all claims against the Union. In a letter dated June 15, Cougil informed the Court that the defendants had not consented to this course of action. MFLM and Lugassy then submitted a letter dated June 16 requesting that the still-unopposed motion to dismiss be granted, as any attempt to amend the complaint or remand the case would be untimely, and because the amended complaint suggested by Cougil still asserted federal causes of action.
On a motion to dismiss the court must "accept all allegations in the complaint as true and draw all inferences in the non-moving party's favor." LaFaro v. New York Cardiothoracic Group, PLLC, 570 F.3d 471, 475 (2d Cir. 2009) (citation omitted). The court is "not bound to accept as true legal conclusions couched as factual allegations. Only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 475--76 (citing Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950--51 (2009)). A complaint must do more than offer "naked assertions devoid of further factual enhancement." Iqbal, 129 S. Ct. at 1949 (citation omitted).
I. Section 1983 Claim "To state a claim under Section 1983, a plaintiff must allege facts indicating that some official action has caused the plaintiff to be deprived of his or her constitutional rights." Zherka v. Amicone, 634 F.3d 642, 644 (2d Cir. 2011) (citation omitted) (emphasis supplied). "[A] private individual may be considered a state actor for purposes of a constitutional challenge if his/her conduct is fairly attributable to the state." Leeds v. Meltz, 85 F.3d 51, 54 (2d Cir. 1996) (citation omitted).
Cougil asserts no plausible allegation that any of the defendants acted in any official capacity nor that their conduct might be attributable to the state. Rather, he alleges only the conclusory allegation that the defendants were "acting under color of the laws, statutes, ordinances, rules and regulations of the State of New York," a legal conclusion devoid of factual support. Therefore, his complaint does not assert a plausible § 1983 claim ...