Strugala v. Riggio et al, No. 1:2010cv09504 - Document 37 (S.D.N.Y. 2012)
Court Description: OPINION AND ORDER re: 30 MOTION to Dismiss the Amended Verified Shareholder Direct and Derivative Complaint filed by George Campbell, Jr., William Dillard, II, Margaret T. Monaco, Stephen Riggio, Michael J. Del Giudice, Barnes & Noble, Inc., David A. Wilson, David G. Golden, Irene R. Miller, Leonard Riggio, Lawrence S. Zilavy, Patricia L. Higgins. Accordingly defendants' motion to dismiss the amended complaint Dkt. No. 30 is granted. The clerk is directed to enter judgment accordingly. SO ORDERED. (Signed by Judge Louis L. Stanton on 8/3/2012) (jmi)
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rl ? OR1Gf~r ", L UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - - -x WHITNEY PARKER, on Behalf of Herself and Others Similarly Situated, and Derivatively on Behalf of Barnes & Noble, Inc., Plaintiff, 10 Civ. 9504 (LLS) - against - OPINION AND ORDER LEONARD RIGGIO, STEPHEN RIGGIO, GEORGE CAMPBELL, JR., DAVID G. GOLDEN, WILLIAM DILLARD II, PATRICIA L. HIGGINS, IRENE R. MILLER, MARGARET T. MONACO, DAVID A. WILSON, MICHAEL J. DEL GIUDICE, and LAWRENCE S. ZILAVY, Defendants, - and BARNES & NOBLE, INC., a Delaware Corporation, Nominal Defendant. - - - - - - -x In ----~----------------------------~------------~~~ St a ex reI. Barnes & Noble Inc. v. 0, Supp. 2d 378 in this (S.D.N.Y. 2011), action, his reasons & Noble ("B&N") that I di ssed t 817 F. original compl Strugala had not adequat pled failing to make a pre-suit demand on the Barnes board of rectors and thus lacked standing to assert his derivat claim the Exchange Securities supplemental juri and violations of section 14(a) Act. I declined ction over his state law claims him leave to file an amended complaint. to of exercise granted Strugala However, no Parker, complaint, longer also a wishes to proceed B&N shareholder, claiming that she has with has standing this action. filed an amended to do so since her claims are all derivative or on behalf of a putative class of B&N shareholders, and thus her substitution for Strugala is in name only. All defendants move under Fed. Parker's derivative claims, adequately that excused. The lIard, and to and demand on defendants P. B&N's (i.e., Miller, Monaco, Wilson, Stephen Riggio) move dismiss 's subject-matter jurisdiction, to ci v. 23.1 to dismiss arguing that Parker fails pre suit individual Higgins, Leonard 12 (b) (1) a R. state under be Golden, Giudice, Zilavy, Fed. R. R. civ. P. for aims and under Fed. should Campbell, Del law board to plead lack of Civ. P. 12 (b) (6) smiss all of Parker's claims for failure to state a claim on which reli can granted. The Amended Complaint The amended complaint pleads antially legations and claims as the original complaint. 817 F. Supp. allegations) . Leonard 2d at Riggio, number of (summary of same See - - - = ' - - a, St original complaint's The crux of those allegations is that defendant B&N's influence over B&N's a 381-85 the founder, has used his considerable rectors to cause the company to engage transactions benefitting Riggio and his 2 family at Among those transactions were B&N's purchase of B&N's expense. Booksellers, Col Riggio Inc. approval of a stockholder rights to alleges Securities statements that and that stat that shareholders poison when in Act certain fact the defendants Exchange independent when and plan, ("poison pill") and the designed B&N's directors in office. Riggio Parker Wl his violated by issuing B&N 14 (a) sect misleading rector of proxy candidates were they were beholden to Leonard Riggio, was 11 fact it signed was to igned benefit to keep B&N B&N's incumbent directors in office. attempts to cure the original complaint's defects by pleading additional allegations regarding B&N's directors' of independence from contends excuse preParker Court's juri fendant Leonard Riggio, which ct she t demand. leges diversity of citizenship as a basis juri lack ction, and contends that over the action even if the Court must this retain sole federal claim is smissed. Parker's Section l4(a} Claim Because Parker Fed. R. particul desi Civ. ty ngs her section 14(a) 23.1(b)(3) P. (A) any action from effort requires by the claim derivative her to plaintiff "state to obtain directors or comparable authori 3 with the if necessary, the shareholders members i law, and Parker1s derivative (B) the effort./I ing the action or not making Delaware Under claims must be for failure to make a demand on B&N's board if she has dismiss leged facts creat a reasonable directors are challenged transaction exercise business judgment." 814 or not obta reasons not from (Del. sint and was doubt independent" otherwise the or product "(1) the the " (2 ) of a valid Aronson v. Lewis, 473 A.2d 805, 1984), overruled on ot 74 6 A. 2 d 244 that Brehm v. Eisner, (De I. 2000). A. Where, as is amended with permission following a a compla dismissal without judice, even if the act or transaction complained in amendment is essenti ly the same conduct that was challenged in the original dismissed complaint, the Rule 23.1 demand inquiry must assessed by reference to the board in place at when the amended complaint is fil t Braddock v. Zimmerman, 906 A.2d 776, 786 (Del. 2006). When were Parker Leonard Riggio, William Dillard Mark Careleton, not dispute disinterest Riggio and filed II, the amended George Campbell, Irene Miller, Gregory Maffei, that and Lynch Golden, Jr., B&N's Patricia David Golden, Wilson, and Maffei, defendants disinterestedly 4 and directors Higgins, David Wilson, and William Lynch. independent, cannot complaint, Parker does Carelton concede consider a pre- are that t Demand demand. is therefore excused if Parker's allegations create a reasonable doubt that at least three of the remaining four directors are disinterested and independent. Ltd. v. S --~--£-------------~~- (Del. the Ch. Mar. time of 17, and See , No. Civ. A. 1566-N, 2006 WL 741939, at *4 2006) ("The test of majori fil ili of is whether at directors could have impartially considered and acted upon the demand./I) . In "the domination and ile demand control particulari s of context, one or plaintiff a more a manifest directors rection conduct in such a way as to comport with the corporation Aronson, also (or 473 A.2d at 816 Rales establish v. lack Blasband, of persons charg must of allege corporate Wl the doing s or interests controll ) ¢ /I (internal quotation marks omitted); see 634 A.2d independence, directors are 'beholden' to the 927, 936 Blasband (Del. must 1993) show ( "To that the es brothers or so under their influence that their discretion would . sterili /I \ ). Campbell In considering complaint, I the motion to smiss ed that Strugala had not pled facts to create a reasonable doubt that Campbell is dis independent. amended See complaint, Campbell cannot the 817 like the F. Supp. original 2d compl origi sufficient erested and at 386-87. The nt, alleges that sinterestedly consider a demand to sue on the 5 challenged transactions, transparently "approved a because he transactions self-interest number of signed solely expense benefit Leonard Riggio and/or the Riggio family at of the Company substantial and its I ikel ihood of sharehol I iabi I i for duties since becoming a Board member It and /I thus a fiduciary ~ Am. Compl. 155. 1 leges additional reasons why Campbell cannot independent a demand to sue: cons Union for the his position as president of Cooper Advancement of Science and Art, which donates money to, his donations to the same politi that Riggio and supports, historian and to the president Cooper legendary amended fundraisi Union, philanthropic circles, ~ 157. "Campbell "annual fe's s Riggio candidates position as an art at New York University, Riggio's alma mater. According Id. es " breaches 2008./1 to complaint, "in lities in "To keep his ch part New Riggios Riggios./I on Architecture and was because York's remain a edgeD to meet certa ied on people like Franzen Lecture large Campbell named his art staple. /I funding goals, Id. the ~ 158. Environment, co sponsored by the Cooper Union's architecture school, /I is "made possible by contributions from the Riggio Foundation and other 1 The allegations that the individual defendants face a substantial likelihood of liabil for their approval of the challenged transactions and that B&N's directors and officers insurance would not indemnify them in this lawsuit were previously ected by this Court in 817 F. Supp. 2d at 386. The amended complaint contains identical al ions, which for the reasons stated in do not create a reasonable doubt as to the directors' independence. 6 donors." alleges (internal Id. that Campbell quotation and Riggio marks have Parker omitted). "intertwining business relationships," since Cooper Union was a volunteer supporter of the Mentoring USA program, a charity to which Leonard Riggio and since "Leonard Riggio and Campbell contributed contribut thousands of dollars same to rd. 2008." political campaigns ~ democratic candidates in 160. Moreover, Campbell's wife is an art historian and the dean sch School of the Arts of New York Uni versi ty ("NYU"). Mrs. Campbell also served as New York Ci ty' s commissioner of cultural affairs. L the Riggios, the Campbells have been a fixture in New York's art and philanthropic circles for years. The Campbells and the Riggios regularly soc ize at events and fundraisers. Leonard Riggio has made significant financial contributions to NYU, his alma mater. These ertwining relationships prevent Campbell from making any decision on Barnes & Noble's behalf that might have any adverse consequences to Riggios. As a result, demand is futile as to Campbell. ~ rd. 161. Because under Delaware law "approving of or acquiescing in the challenged transactions, se a reasonable independent Coulter, Dec. 18, alleged Civ. 2002) more transactions of a s bus No. doubt without more,lf judgment, A. 19191 1 director's If Cal. and Pub. ~~____ 2002 WL 31888343 Campbell's that ability _______________ (footnote omitted) than is "insufficient to her 1 approval of l Ret. exercise ______ at Parker argues allegations 7 1 to *9 that the taken ~L_ (Del. v. _ _ _ __ _ Ch. she has lenged together, demonstrate intertwining connections between Campbell " the Riggios." Parker's Opp'n Br. 20. In Coulter, defendant because 2002 WL 31888343, Mandigo was not at *9, independent the court found that of former "Mandigo and Coulter are lifelong CEO ends," Coulter, "Mandigo's lihood is dependent on Coulter because Coulter is the son's I Lone Star and Mandigo's son is the general manager CEO Lone Star-owned restaurant and approved or deal in Denver, in all acquie transactions," and TENT stock, a alleged self rector during the s at Lone Star During that t Mandigo owned TENT." in Coulter, where Mandigo and Coulter were lifelong Unli Mandigo was financial challenged transactions, I ihood, donates to members of "New t Cooper support t Parker Cooper ter's from before the IPO, and had a financial interest in success friends, of "Mandigo was preparation for the IPO of TENT. a "Mandigo was a director /I rmitted to shirk his dut time Coulter was son's and interest in one and Mandigo had reason to allegations Union, York's and art show that and Riggio of ar only that his Riggio and Campbell are philanthropic circles" and contributed to has to same causes. alleges Union, but t Leonard acknowledges raise tens of millions of Riggio that has Campbell edged lars annually and that support 8 Parker does Cooper Union comes from the Riggios "and others.H not allege the relative magnitude or frequency of Riggio's donations during Campbell's eleven-year tenure as president, and thus it is impossible to ascertain their importance to Cooper The mere allegation of Riggio's past contribution does Union. not suggest that his donations were so important that Campbell would risk his reputation and approve Riggio's wrongdoing rather donations. than forego Riggio's Stewart (Del. See ex reI. Martha Omnimedia 2004) ("To create a reasonable doubt about an outside director's independence, a plaintiff must plead ts that would support nature the relationship inference or that additional because of the circumstances other than interested director's stock ownership or voting power, interested director would be more willing reputation than sk the relationship to of a the the non risk his or her with the interested director. H) . The allegations that Cooper Union works with Mentoring USA, an organization Riggio supports, and that Campbell contribute to the same political candidates, alleges, show "intertwining Riggios beyond Barnes 160. & business and Riggio do not, relationships Noble's boardroom. H See Am. as Parker with the Compl. ~ They show only that Campbell and Riggio prefer the same charity and candidates. 9 Parker alleges that Riggio contributes to his alma mater, NYU, where Campbell's wife works, but does not allege that Mrs. Campbell's "livelihood is dependent" on Riggio or his donations. From the amended complaint, it is unclear whether Riggio even knows that Mrs. Campbell works for NYU. Accordingly, creating a Parker does not all reasonable doubt that Campbell particularized is facts sinterested and independent. Higgins Parker alleges the following regarding Higgins's ability to consider a pre-suit demand: 167. Demand is futile as to Higgins because she faces a substantial 1 lihood for liabili breaches of fiduciary dut s since becoming a Board member 2006. While a member the Board, Higgins has approved a number of transparently self interested transactions designed solely to benefit Leonard Riggio and/or the Riggio family at the expense of the Company and its shareholders, including the College Booksellers acquisition, and leases and bus s transactions with Riggio family owned companies on gross unfair terms. In addition, Higgins rubber stamped Leonard Riggio's demand to have Stephen Riggio succeed him as CEO in 2002. This rubber-stamping demonstrates that Higgins is beholden to Leonard Riggio. By placating to the Riggios' demands, Higgins received hundreds of thousands of dollars director compensation every year. Moreover, Higgins approved the poison pill, designed solely to ensure Leonard Riggio's continued control over the Company and Higgins and the other Board members' continued entrenchment on the Board. These actions subject Higgins to a substantial likelihood of liability for breaches of fiduciary dutiesi accordingly, 11 not disinterestedly consi a demand to bring suit against herself. 10 the original complaint The only allegation that was not is that However Higgins that I approved Stephen Riggio s I additional instance of appointment Higgins s as approval I CEO. of an allegedly self interested transaction does not create additional doubt as to Higgins s held in ---=--a l As independence from Leonard Riggio. I I 817 F. Supp. 2d at 387: In "the demandile context a aintiff charging domination and control of one or more directors must allege particul zed facts manifesting a direction of corporate conduct in such a way as to comport with the wishes or interests of the corporation (or the person doing the controlling.)" Aronson, 473 A.2d at 816 (internal quotation marks omitted) . iff alleges no particularized facts regarding Leonard Riggio l s control over Campbell and Higgins. allegation that they approved "a number of self interested transactions" does not create a reasonable doubt as to the independence. See id. ("The rector's approval, alone does not establi cont ") . I Parker consider argues interested Leonard Noble Higginsls See Dkt. I I No. la IS allegation "the the Br. Higgins from 1999 to 2004 Higgins is a member of 11 and of the allegations Higgins that argument, that fail to self- of her Viewed as a whole l Ms. that Opp'n Court approval 26 at 16. demonstrate In support S St together with Riggio." Board present. of allegations original) . complaint ---='-- transactions director pay. Parker's in allegations the that 27 in n.9 beholden to (emphasis in she cites the amended "served again the Audit on from the Barnes June 2006 Committee & to and the Corporate Governance That 26. Higgins all is ion beholden even when approved, not no weight to nowhere Riggio: the does There compensation). along create with a it ~ that state that B&N's board that allegation, transactions the reasonable Compl. contention Higgins's election to e considered does s g to Riggio was respons (and her resultant Am. and Nominating Committee." doubt that Higgins Higgins is independent from Riggio. * * * * Because the amended complaint's legations do not create a reasonable doubt that Campbell and Higgins are disinterested and independent, they do not create majority of the board is dis a reasonable doubt that the erested and independent. B. The allegat in that demand to sue for the original fendants' complaint did not ead alleged violation of section 14(a) was excused under Aronson's second prong, because they did not lege "particularized facts sufficient to raise (1) a reason to doubt that the action was taken honestly and in good faith or (2) a reason to doubt that informed in making the decision" proxy statements. See St -----='-- (internal quotation marks omitt the board was adequately to issue allegedly misleading 817 F. Supp. 2d at 388 89 ). The amended complaint conta 12 no new allegations regarding the board's proxy decision making In statements. Parker states, oppos the arguments (at p. 14, n.4), Ms. that Parker prong incorporates by stated in plaintiff's previous motion to dismiss." ion to t Because on contes issuing Defendants made no new argument second prong. I in opposition brief s motion, "In based on Aronson s reference her process the Court already rejected those arguments, it concludes that the amended complaint's allegations do not create a reasonable directors doubt were that the independent board's and decision recommendation poison pill were valid exercises of bus that to certain rati t ss judgment. Parker's allegations do not create a reasonable doubt under either ~ronson/s pled that preexcused. t prongs, and therefore demand for her sect Accordingly, Parker's has not adequately 14(a) section claim should be 14 (a) claim is dismissed. Parker's State Law Claims A. The individual defendants argue that Parker's derivative claims do not meet the $75,000 amount-in controversy requirement for diversity jurisdiction under 28 U.S.C. she has not adequately pled juri § 1332 (a), ction under the and thus di versi ty statute. "A party invoking the j sdiction of the federal court has 13 the proving burden that probabili claim is appears in Co. , 14 F.3d 781, 511 F.2d 1004, sdictional to excess 'reasonable a of the statutory swear Inc. v. sdictional amount." j j the it that (2d Cir. 784 (2d 1006 facts 1994), Cir. quot i ng Moore v. 1975) "Where, challenged, are the party Betit, here, as assert jurisdiction must support those facts with 'competent proof' and \ j usti [its] allegations by a preponderance of United Food & Commercial Workers Union, Meriden Inc., --~~--------------~----~------ (brackets United Local 919 v. 30 F.3d 298, Food, quoting evidence. ' 305 McNutt v. Centermark r. (2d II Gen. 1994), Motors . of Ind., 298 U.S. 178,189 (1936). ----~----------~----------- Parker seeks equitable relief, for Relief Defendants' and that ~ C ("Declaring conduct has the further . , Am. Compl. Prayer and decreeing that Individual aintiff and the Defendants breached aintiff and the Class"), their ass duties and "such other and ief as this Court may deem just and proper," id. but does not seek a specif she e. senfranchi Individual directly owed to see contends that she amount of damages. leges that the M, Nevertheless, individual caused millions of dollars of harm to B&N, and thus ~ defendants leges that that the matter in controversy exceeds $75,000. "In actions seeking laratory or unctive relief, it is well established that the amount in controversy is measured by 14 the value of the object of the litigation." Hunt v. Wash. State e Adver. Comm'n, 432 U.S. 333, 347 (1977) Parker seeks declarations individual that have breached their fiduciary duties, individual the ion of invali director She hundreds millions alization exceeds the individual However, "the the defendant." (S.D.N.Y. to to the "is B&N's it 2010 worth market would comply cost with of calculating plaintiff, Inc., approach, t not 304 F. the claims, cost to the 2d 517, Supp. 519 erest" in B&N is treated as the plaintiff controversy analysis. Co., value where one Since B&N is the "real party in Island the relief B&N because $75,000 method Pro, ~~~~~--~--------~----~----- 1985) t amount- of duties, Parker's Opp'n Br. 31 & n.11. mich v. Parker's derivat purposes over --~-----------~----~------- 2004). that 'plaintiff's viewpoint' value those million and because prevailing this Circuit is the culates $830 to with invalidation of that lars tt defendants requested injunctions. and argues of cap comply 11, poison elections. various orders directing to defendants fendants 623 F. Supp. 1076, See 1079 v. (E.D.N.Y. Therefore, the value of any equitable relief to B&N, not defendants' Furthermore, analysis, compliance B&N's since market Parker costs, capit does ization not capitalization is "in controversy", 15 controls allege does that the not analysis. affect B&N's the market Valuing requires perspect with probabilityll "reasonable individual It speculation. defendants have breached already defendants prohibited reduction to Similarly, under monetary any attempt invalidating purely from B&N's Delaware state that declarations the fiduciary duties to those breaches duties are "incapable Moore, 511 F.2d at 1006. to assign a monetary value to an order September See speculative. to law See II B&N's Injunctions prohibiting the breaching terms. impossible their B&N are worth more than $75,000. individual is that from relief equitable requested the 2010 director Dimich, 304 F. ( "Benef i ts from an inj unction must not be immeasurable.'Il) , Morrison v. elections Supp. 2d would be at 519 \ too speculative and Allstate Indem. Co., 228 F.3d 1255, 1268 (11th Cir. 2000). seeks an order invalidating "the poison pill and/or it and recting the Individual Defendants to rescind or redeem restraining instituting any have the effect purchase the acquiror./I defendants from fensi ve measures of making the adopting, that Am. consummation Compl. Prayer for Relief ~ of an for J. dollars, not every 16 or intended to offer to a potential She the value to B&N of such an order. takeover of a large public company 1 of has or is Company more difficult or cost allege, however, millions implementing does not Although a ly involves hundreds of takeover is beneficial to a In corporation. that In fact, certain the Delaware circumstances it In re Inc. 637 A.2d 34, 43 cont by a corporation action, this Court rectors propos to ) it would be at an to controversy. S' holders potential consequence not . rd party's Parker of worth be considered See Am. theory quantifiable 469 ll awarded, juri cf. F.3d 271,277 speculation, fail ); millions in Standard, too (2d Cir. however, demonstrate Inc. is the Oakfabco, thus too amount in Inc., 498 F. so fail to American Standard under and speculat Dental be LLC, say beyond mere damages, claim to IPA of N. Y., ("We cannot those the attempts s argument must Doral whether dollars v. (" 2006) that board's acquisition takeover determining uncertain DiTolla v. I of would be more than $5 million. to a of Parker's argument that (S. D. N . Y. 2007) is e , a board of unsolicited against because the precise monetary benef s of . Lit rs no explanation why an order defending is Supp. 2 d 711, 718 corporate Commc' ns valuable to B&N. order for ("where a 1993) is a from I speculative Paramount (Del. proper recognized the prerogative resist or of restraining such n.13 is stated Court See Paramount Commc'ns Inc. v. directors to thwart a takeover. Network Supreme if they are Doral Dental has thus here satisfies CAFA's ctional amount in controversy.") Finally, argues that 17 although did not specific she ly request monetary damages in her prayer for reI seeks monetary damages for unj ust (including igned solely to see also College personally benefit Booksellers transaction) ggio, Leonard ~ id. However, 198. the only statement monetary value of damages is Parker's assertion in controversy Stephen members of the Riggio family," Am. Compl. Riggio, and/or ot 195i the and waste lege damages from "a series of corporate assets claims, which transactions enrichment f, exceeds $75,000, exclusi ve of ~ a "the amount of erest and costs." In United Food, court, asserting the defendants removed the case to federal diversity jurisdiction. They argued that though the plaintiff union sought primarily injunctive relief, it leged, "reI f ief just." as required by Connecticut law, in excess of $15,000," and requested "such other relief at 30 F.3d at 305 t sought its prayer for law or in equity as (emphasis in - - - - - - Uni Food is fair and In rej ecting the contention that the complaint satisfied the then applicable $50,000 amount in controversy, the Court of Appeals stated: To the extent that this prayer may be read as seeking damages, however, the eadings themselves provide no reliable indication of the specif amount, if in damages claimed by the Union. Indeed, the only reference to any amount in controversy we find in the record is the Union's boilerplate demand statement, as required by Connecticut state law procedure in all actions, whether legal or equitable, that it seeks ief in excess $15,000. Such a boilerplate l8 demand statement setting forth an open-ended demand an amount in excess of $15,000, without more, falls well short of the type of proof we require from fendants to establish that that $50,000 amount controversy requirement is met an action seeking primarily injunctive relief. rd. (emphasis in original) . Here, too, boilerplate Parker seeks primarily equitable statement that her claims satisfy relief. the Her amount in controversy sheds no light on the actual amount of damages she might recover on B&N's behalf. Although she asserts that the challenged transactions were worth millions dollars, she does not allege the extent to which those transactions nor does provide "allegations by a "competent preponderance proof" of the to ured B&N, support evidence." See her id. (internal quotation marks omitted) Accordingly, Parker controversy exceeds not $75,000. alleged Her state that the law matter ive in claims are therefore dismis B. asserts breach fiduc her remaining duty, claim, on behalf class of all B&N shareholders. She jurisdiction over that claim under 2005 ("CAFA"), Pub. L. No. a direct hersel f and a putative leges that this Court has 119 Stat. 4 See Am. Compl. 19 for ass Action Fairness Act 109 2, scattered sections of 28 U.S.C.) claim ~ (codified in 16. sdiction statute by adding "CAFA amends the diversity j 1332(d), act ers which with aintiff minimal federal jurisdiction where diversity and one defendant are interest (excl usi ve of Cardarelli, and 527 F.3d 25, 30 costs). II r. (2d any at one states) least $5 million Estate 2008), class least different citizens controversy of at and an aggregate amount over § of cit Pew v. 28 U.S.C. ---"" § 1332 (d) (2) . individual defendants argue class action meets Parker does not allege $5 million amount- -controversy requirement. The class ~ Compl. claim 183 seeks ("Plaintiff irreparable injury stated above, speculat class and equitable the Class relief. are Parker's reques alleges Parker the equitable thus does requisite not $5 See threatened have no adequate remedy at to value. cIa only Am. with law. II) ¢ relief all is As too that million amount in controversy, and that claim is therefore dismissed. Leave to Replead seeks "Generally, amend for a di good leave ct reason, to court ead has her dismiss discretion including iIi to ViII. of 391 F. 'x 20 62, deny bad delay, or undue prejudice to the opposing party.1I 66 claims. leave ith, to undue Platt v. Inc. (2d Cir. 2010) (internal quotation marks and brackets omitted) . that s defic "any identified ies Parker's Defendants go to only the pleading and can be cured." Opp'n Br. However, 41. ficiencies the cl dismiss is the ng: complaint go beyond mere matters of pl 14 (a) in by amended r's sect Parker because not adequately allege that demand on B&N's board should be excused. She s ain not how att she a will proposed further second attempt to Parker's state law claims are dismis seek is too speculative to ect, but r is Leave to App'x at ils to 66 as fore here, orig complaint her or eading. because the relief they is to the nature of ("Where, the cure ify. ead is t cure amended compla a Cf. i Platt, proposed amended 's pleading sought denied. the not defic ies, 391 F. complaint leave to amend was properly denied.") Conclusion Accordingly, compl (Dkt. defendants' No. 30) mot is granted. enter judgment accordingly. So ordered. 21 to di ss the amended clerk is direct to Dat New York, New York August 3, 2012 I..",.;. L. ~f~ Louis L. Stanton U.S.D.J. 22
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