CONIGLIO v. CUCUZZA APB LLC (2024)

MEMORANDUM & OPINION

Plaintiffs Maria Coniglio (“Mrs. Coniglio”) and Prima Pasta Distributors Inc. (“Prima”) (collectively, “Plaintiffs”) commenced this action on April 20, 2023 against Defendants Nicholas Cucuzza (“Mr. Cucuzza”), Daniela Cucuzza (“Mrs. Cucuzza”) (collectively, “the Cucuzzas”) and APB Distribution LLC (“APB”) (collectively, “Defendants”). Plaintiffs bring ten causes of action in their complaint: (1) Lanham Act claims for false advertising against all Defendants pursuant to 15 U.S.C. § 1125(A) et. seq. on behalf of Prima; (2) claims for monetary damages in lieu of dissolution against all Defendants pursuant to New York Business Corporation Law (“BCL”) § 1104(a) on behalf of Mrs. Coniglio; (3) misconduct claims against the Cucuzzas pursuant to BCL § 720 related to Prima's corporate assets; (4) claims of breach of fiduciary duty against the Cucuzzas for “oppressing and freezing out” Mrs. Coniglio and against APB as an aider and abettor; (5) Prima's claims of misappropriation of trade secrets against all Defendants; (6) claims for annulment of the dissolution at issue pursuant to BCL § 1008(a) and banning the Cucuzzas “from participating in the conduct and affairs of Prima except to cooperate in the restoration of Prima's trade secrets and other property misappropriated by the Cucuzzas”); (7) Prima's claims for tortious interference with business relations against all Defendants; (8) an accounting claim against all Defendants; (9) a constructive trust claim against all Defendants; and (10) an unjust enrichment claim against all Defendants. See generally Dkt. No. 1 (“Compl.”).

Currently pending before this Court is Plaintiffs’ Motion to Amend/Correct/Supplement the Complaint (“Plaintiff's Motion to Amend”). Dkt. No. 27.¹ For the reasons set forth below, the Court GRANTS Plaintiff's Motion to Amend.

I. Background

A. Factual allegations

The following recitation of facts is adapted largely from Plaintiffs’ original Complaint. See Compl., Dkt. No. 1. On or about September 17, 1995, the late Mr. Joseph Coniglio founded Prima Pasta Distributors Inc., a New York corporation formed and engaged, in part, in the business of importing, manufacturing, and distribution of dry food goods—namely, pasta—in Kings County, New York. Compl. ¶¶ 6, 12. On the day the business was formed, Mr. Coniglio issued his wife, Mrs. Coniglio, a stock certificate “for 100 shares out of 200 issued and authorized shares”—making Mrs. Coniglio a 50 percent shareholder of Prima. Id. ¶ 13. The remaining half of the issued and authorized shares went to Mrs. Cucuzza—who also became a 50% shareholder of Prima on the date of the business’ formation. Id. ¶¶ 6, 16. Mrs. Cucuzza's husband, Mr. Cucuzza, served as Prima's president. Id. ¶¶ 1,16. With the business structure then-established, Mr. Coniglio spent the remainder of his life working for, managing, and operating Prima which, at its height, grossed “over $8,000,000 in annual revenue.” Id. ¶¶ 1, 18. Mr. Coniglio passed away on or about December 30, 2016. Id. ¶ 19. Before he passed away, Mr. Coniglio delegated his managerial responsibilities to the Cucuzzas, who became executive officers of Prima. Id.

The apparently fruitful business relationship purpotedly began to disintegrate upon Mr. Coniglio's death. From 2000 until Mr. Coniglio's death, Mrs. Coniglio received regular weekly distributions resulting from (i) her 50% ownership of Prima and (ii) a purported agreement among all shareholders. Id. ¶¶ 21-22. But when Mr. Coniglio passed away on or about December 30, 2016, the Cucuzzas advised Mrs. Coniglio that Prima's operations were struggling—thereby resulting in a purportedly necessary “cut” of weekly distributions. Id. ¶ 22. Plaintiffs represent that, between December 30, 2016 and October 2020, Mrs. Coniglio's distributions were reduced by the Cucuzzas citing an alleged decline in Prima's revenue. Id. ¶¶ 23, 24.

In 2020, the Cucuzzas informed Mrs. Coniglio that Prima is no longer viable as a business. Id. ¶ 33. Indeed, in June 2020, the Cucuzzas offered to buy all of Mrs. Coniglio's shares in Prima for $200,000.00. Id. ¶ 34. Mrs. Coniglio, before considering the offer, requested that an independent auditor or accountant be appointed to review and opine on the Cucuzzas’ valuation of Mrs. Coniglio's shares—a request that was refused by the Cucuzzas. Id. Mrs. Coniglio's weekly distributions continued to gradually decrease, until October 2020, when the Cucuzzas informed Mrs. Coniglio that there was only $10,000 remaining in the business and issued a final payment to Mrs. Coniglio for $5,000. Id. ¶¶ 24-25.

As the Complaint alleges, however, Mrs. Coniglio's losses were the Cucuzza's gains. First, Mrs. Cucuzza received regular income from Prima “which was not approved by [Mrs. Coniglio] or the shareholders.” Id. ¶ 26. For example, Mrs. Cucuzza—also a 50 percent shareholder—allegedly received $227,000 over a three-year period between 2017 and 2020, a period during which Mrs. Coniglio's distributions decreased. See id. ¶ 26; cf. id. ¶¶ 22-24. Mr. Cucuzza also purpotedly received some form of compensation over the same three-year period—drawing $223,700.00 from Prima—which Plaintiffs purport to be “the most of any Prima employee and/or officer except for possibly [Mrs. Cucuzza].” Id. ¶ 28. In consideration for this income, Mr. Cucuzza allegedly handled “all major aspects of Prima[’s] business,” including but not limited to pricing negotiations and the management of Prima's most valuable customers. Id. ¶ 29.

Plaintiffs allege that, following Mrs. Coniglio's refusal to sell her shares in Prima absent independent valuation, the Cucuzzas “hatched a scheme” to steal Prima's business and “freeze” Mrs. Coniglio out of the corporation without compensation. Id. ¶ 34. On or about August 2020, following Mrs. Coniglio's refusal, the Cucuzzas purpotedly formed APB, a New York limited liability company. Id. ¶¶ 9, 34-35. APB, according to the Complaint, shares the same address as the Cucuzzas, at 79 Willow Gate, Roslyn Heights, NY 11577. Id. ¶ 9; cf. id. ¶¶ 7-8. The Complaint also alleges that APB operates in and shares “the same physical address as Prima, the same P.O. Box for mail, the same industry[—]bulk/dry foods[—], the same fax number, and the same [Department of Transportation] truck number.” Id. ¶ 38. Indeed, Plaintiffs allege that APB was created as part of a scheme to compete directly with and divert business away from Prima at Mrs. Coniglio's expense and detriment. Id. ¶ 39. Further, as Mr. Cucuzza handled pricing negotiation and the management of Prima's most valuable customers (id. ¶ 29), Plaintiffs allege that the Cucuzzas used their position to misappropriate “Prima's know-how, recipes, customer lists, customer data, suppliers, trade secrets, goodwill ․” Id. ¶ 40.

The Complaint provides examples of how this purported scheme was executed. One of such customers who accounted for a “substantial portion of Prima[’s] revenue” was Restaurant Depot. Id. ¶ 30. On or about April 20, 2020, prior to APB's formation, Plaintiffs allege that Mr. Cucuzza communicated with Restaurant Depot via email—the latter of which is reproduced below:

As you know and have said to us, we do a more than decent service taking care of your business. We are taking a significant reduction on the Dakota Growers line. The reductions across the board may seem minimal, but combined, they are substantial to us. With these margins that we are offering we hope to remain in business. We would like to kindly review after 3 months to be transparent as possible to see that we can continue with the proposed pricing. Realize that during these challenging times, it is challenging for all of us. We were doing a little better than OK before this crisis. Now, like yourselves, not so well. Restaurant Depot's business is our business. We could not continue if [Restaurant Depot] was not our customer. Our commitment is to make sure that [Restaurant Depot] always has pasta on their shelves; continuously. Please let me know what time is good to discuss on Wednesday [ ].

Id. ¶ 31. Plaintiffs allege that, following this communication, the Cucuzzas took steps to “induce, persuade, and cajole” Restaurant Depot to suspend its business relationship with Prima and move its business to APB by representing that Prima was going out of business. Id. ¶ 32. Plaintiffs also allege that representations by the Cucuzzas that Prima was going out of business were made while Prima was, in reality, generating “approximately $6,801,012 in revenue during peak COVID-19 shutdowns in 2020”—an impressive feat because, per Plaintiffs, 2020 was “a year that should have been an all-time low for any business in the restaurant industry, like Prima.” Id. ¶ 36.

According to Plaintiffs, the Restaurant Depot account was merely one example: at least six then-Prima customers are doing business with—or have done business with—APB. Id. ¶ 45. Indeed, a number of those customers began doing business with APB before Prima was formally closed in October 2020. See id. ¶¶ 42-44.

Unbeknownst to Mrs. Coniglio, according to the New York Department of Corporations, a “certificate of dissolution-cancellation” of Prima was filed on March 25, 2022—resulting in Prima becoming inactive as of December 29, 2022. Id. ¶ 47. Following an investigation, Mrs. Coniglio became aware of APB's existence and uncovered the Cucuzzas’ “connection and ownership” of APB. Id. Plaintiffs are now convinced that the Cucuzzas have “intermingled funds and assets, arbitrarily transferred funds between APB and Prima to conceal [their] illicit conduct, failed to adhere to corporate formalities, [ ] treated their entities as alter egos” while engaging in a “diversion of corporate opportunity, self-dealing and conflict of interest” resulting in numerous alleged breaches of the Cucuzzas’ fiduciary duty to Plaintiffs. Id. ¶¶ 48-49. Equipped with those findings, Plaintiffs bring the instant Complaint.

B. Procedural history

Plaintiffs filed the Complaint on April 20, 2023. Dkt. No. 1. Summonses were issued as to APB Distributions LLC, Daniela Cucuzza and Nicholas Cucuzza on April 28, 2023. Dkt. No. 7. On July 14, 2023, following appearance by counsel for all Defendants, Defendants impermissibly filed a Motion to Dismiss the Complaint (Dkt. No. 11) and a Motion for Sanctions pursuant to Fed. R. Civ. P. 11. See Dkt. No. 12. On July 20, 2023, the Honorable Nina R. Morrison, United States District Judge, denied Defendants’ Motion to Dismiss without prejudice, citing Defendants’ failure to comply with the Court's Individual Rules. See Text Order, dated July 20, 2023. On the same day, Defendants requested a pre-motion conference to obtain leave to file a Motion to Dismiss arguing, in part, that Plaintiffs’ Complaint does not allege any misrepresentations that Defendants made to Plaintiffs’ customers with sufficient particularity to support a Lanham Act claim. Dkt. No. 16.

On August 8, 2023, the Court denied, without prejudice, Defendants’ request for a pre-motion conference. See Text Order, dated August 8, 2023. The Court explained:

[i]n their submissions, Defendants argue, inter alia, that Plaintiffs’ complaint does not allege any misrepresentations that Defendants made to Plaintiffs’ customers with sufficient particularity to support a Lanham Act claim. If Plaintiffs believe that they can cure this alleged deficiency in their complaint through amendment, Plaintiffs shall file an amended complaint on or before August 21, 2023. Upon filing of the amended complaint, Defendants may renew their pre-motion conference request if they believe that the amended complaint has not cured the alleged defects. If Plaintiffs believe that no amendment to the complaint is necessary, then the parties shall confer and, on or before August 21, 2023, file a joint letter proposing a briefing schedule for Defendants’ motion to dismiss.

Id.

On August 17, 2023, the Court held an initial conference and permitted limited paper discovery to occur, in part, to allow Plaintiffs to supplement their Lanham Act claim. See Dkt. No. 22 at 19-20.

On August 25, 2023, in light of Plaintiffs’ failure to file an amended complaint, Defendants filed a letter proposing a briefing schedule for their motion to dismiss, along with an accompanying motion for Fed. R. Civ. P. 11 Sanctions. Dkt. No. 21. In light of Defendants’ renewed request, Judge Morrison issued a briefing schedule regarding the anticipated motion. See Text Order dated September 5, 2023.

On October 13, 2023, Plaintiffs filed the instant Motion to Amend pursuant to Fed. R. Civ. P. 15. Dkt. No. 27. Plaintiffs purport that, following the grant of limited discovery, the proposed Amended Complaint now “significantly fortifies the Lanham Act anti-competition claims” and includes “additional information about what appears to be false filings by [Mrs. Cucuzza] to obtain a ‘voluntary dissolution’ ” of Prima. Id. at 3.

On November 9, 2023, this matter was reassigned to the undersigned. See Docket Entry dated November 9, 2023. On November 20, 2023, Defendants renewed their Motion to Dismiss the Complaint for Failure to State a Claim along with a Motion for Sanctions pursuant to Fed. R. Civ. P. 11; both motions are now pending in front of Judge Morrison. Dkt. Nos. 29-34.

C. The Lanham Act

The Lanham Act, a trademark law, creates a cause of action for unfair competition through misleading advertising or labeling. POM Wonderful LLC v. Coca-Cola Co., 573 U.S. 102, 107 (2014). The cause of action imposes civil liability on any person who “uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which ․ misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities.” Id. at 108 (citing 15 U.S.C. § 1125(a)(1)). In other words, the Lanham Act makes actionable “false or misleading descriptions or false or misleading representations of fact made about one's own or another's goods or services” in “commercial advertising or promotion.” See Navarra v. Marlborough Gallery, Inc., No. 10-CV-7547(BSJ) (RLE), 2012 WL 13210272, at *5 (S.D.N.Y. Apr. 4, 2012) (citing S.C. Johnson & Son, Inc. v. Clorox Co., 241 F.3d 232, 238 (2d Cir. 2001)).

II. Discussion

A. Legal standards

Pursuant to Fed. R. Civ. P. 15, “[t]he court should freely give leave [to amend] when justice so requires,” making sure to interpret the rule liberally in favor of amendment so as to enable disputes to be resolved on the merits whenever possible. See Fed. R. Civ. P. 15(a)(2); Amaya v. Roadhouse Brick Oven Pizza, Inc., 285 F.R.D. 251, 253 (E.D.N.Y. 2012) (holding that leave to amend is entrusted to the court's discretion); Assam v. Deer Park Spring Water, Inc., 163 F.R.D. 400, 404 (E.D.N.Y. 1995). “Rule 15(a)(2) is a lenient standard, and the Court is to ‘freely give leave when justice so requires.’ ” Borozny v. Raytheon Techs. Corp., Pratt & Whitney Div., No. 3:21-CV-1657 (SVN), 2023 WL 7037523, at *2 (D. Conn. Oct. 26, 2023) (citing Sacerdote v. N.Y. Univ., 9 F.4th 95, 115 (2d Cir. 2021), cert. denied, 142 S. Ct. 1112 (2022)). “If the [movant] has at least colorable grounds for relief, justice ․ require[s]” that the court grant leave to amend a complaint. Golden Trade, S.r.L. v. Jordache, 143 F.R.D. 504, 506 (S.D.N.Y. 1992) (quoting S.S. Silberblatt v. East Harlem Pilot Block–Building 1 Hous. Dev. Fund Co., Inc., 608 F.2d 28, 42 (2d Cir. 1979)).

Generally, leave to amend pleadings under Fed. R. Civ. P. 15 shall only be denied “if there is delay, bad faith, futility, or prejudice to the non-moving party.” Hosking v. New World Mortg., Inc., 602 F. Supp. 2d 441, 445 (E.D.N.Y. 2009) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). In determining futility, the test is whether “the proposed claim could not withstand a Fed. R. Civ. P 12(b)(6) motion to dismiss.” Salazar v. Browne Realty Assocs., L.L.C., 796 F. Supp. 2d 378, 383 (E.D.N.Y. 2011) (citing Lucente v. IBM Corp., 310 F.3d 243, 258 (2d Cir. 2002)).

Before applying this test, however, the Court notes that it is well-established in the Second Circuit that “[t]he burden of proving futility rests on the party opposing the amendment.” Eliya, Inc. v. Steven Madden, Ltd., No. 15-CV-01272 (DRH) (SIL), 2017 WL 8794774, at *5 (E.D.N.Y. Feb. 2, 2017), report and recommendation adopted, 2017 WL 1190943 (E.D.N.Y. Mar. 30, 2017); Zuppardi's Appizza, Inc. v. Tony Zuppardi's Appiza, LLC, No. 3:10-CV-1363, 2012 WL 1067652, at *1 (D. Conn. Mar. 30, 2012); see Lumetrics, Inc. v. Bristol Instruments, Inc., 101 F. Supp. 3d 264, 270 (W.D.N.Y. 2015) (“In sum, [the opposing party] has failed to meet its burden to demonstrate that an amendment would be futile ․”); Copantitla v. Fiskardo Estiatorio, Inc., No. 09-CV-1608, 2010 WL 1327921, at *3 (S.D.N.Y. Apr. 5, 2010) (internal quotation marks omitted) (holding that when a party objects to a motion to amend on futility grounds, “the moving party must merely show that it has at least colorable grounds for relief”); Blaskiewicz v. Cty. of Suffolk, 29 F. Supp. 2d 134, 137 (E.D.N.Y. 1998) (“The party opposing such amendment has the burden of establishing that leave to amend would be prejudicial or futile.”); Harrison v. NBD Inc., 990 F. Supp. 179, 185 (E.D.N.Y. 1998) (“The party opposing the motion for leave to amend has the burden of establishing that an amendment would be prejudicial or futile.”).

B. Defendants have not met their burden of demonstrating that leave to amend would be futile

Here, Plaintiffs’ proposed Amended Complaint expressly supplements the original Complaint by provided additional specific examples where Defendants purportedly misrepresented Prima's viability and status to customers. See Proposed Amended Complaint, Dkt. No. 27-1 (“Am. Compl.”) at ¶¶ 34-55. In at least one example, Plaintiffs seek to supplement the Complaint with an instance where Mr. Cucuzza represented to a “long time supplier,” Dakota Growers Pasta Co., via email that Prima is “operating under a new company name as of 08/21/2020 APB Distribution” though Prima was still purpotedly an active, revenue-generating corporation on or around August 21, 2020. See Am. Compl. at ¶ 44. Plaintiffs argue that “Rule 15 jurisprudence allows leave for amendment to be freely given, particularly here, where there has been no prior amendment and the action has only just begun.” Dkt. No. 27.

In opposition to Plaintiffs’ Motion to Amend, Defendants argue, in a footnote, that Plaintiffs’ Motion to Amend should be denied. Defendants’ argument states, in full, that “Defendants believe that the allegations by Plaintiffs in their proposed Amended Complaint still fall short of a sufficiently-pled federal claim. As such, jurisdiction will still fail.” Dkt. No. 28 at n. 2.

At best, Defendants appear to argue that the proposed amendments to the Complaint are futile. But the Court will not sua sponte deny Plaintiffs’ Motion to Amend where Defendants have offered a cursory and conclusory argument in a footnote. See Eliya, Inc., 2017 WL 8794774, at *6 (“[A]s Defendant has failed to address, let alone meet, its burden, the Court will not deny Plaintiff's motion to amend premised on futility grounds sua sponte.”); Balk v. New York Inst. of Tech., No. 11-CV-509 (JFB) (AKT), 2013 WL 6990767, at *10 (E.D.N.Y. Sept. 30, 2013) (declining to examine sua sponte a proposed amended complaint for futility when the opposing party failed to do so).

Rather than explain why the proposed Amended Complaint would be futile, Defendants focus on the fact that Plaintiffs did not file amended pleadings by the Court-ordered August 21, 2023 deadline along with their argument that Plaintiffs allegedly failed to properly notice Defendants of the non-party subpoenas under Fed. R. Civ. P. 45. Defendants do not, however, address any of the proposed amendments to the complaint. Nor do Defendants address whether Plaintiffs, based on the proposed Amended Complaint, can prevail on a Lanham Act false advertising claim, in which Plaintiffs must “establish that the challenged message is (1) either literally or impliedly false, (2) material, (3) placed in interstate commerce, and (4) the cause of actual or likely injury to the plaintiff.” Church & Dwight Co. v. SPD Swiss Precision Diagnostics, GmBH, 843 F.3d 48, 65 (2d Cir. 2016). Defendants also do not address whether Plaintiffs’ proposed Amended Complaint fails to provide facts sufficient to determine whether the Lanham Act applies here (in the absence of a clear trademark issue) and, should the Lanham Act apply, whether liability can be imposed against Defendants as a matter of law for false advertising.

Even had Defendants argued that they rest their argument on their separately-filed motion to dismiss the Complaint (they did not), such an argument would fail. The proposed Amended Complaint is not identical to the Complaint. Defendants have failed to show why the proposed changes do not salvage the Amended Complaint. See Semon v. Rock of Ages Corp., No. 5:10-CV-143, 2011 WL 13202234, at *2 (D. Vt. Mar. 29, 2011) (“First, the Gusinsky Complaint and Plaintiff's proposed Amended Complaint are not identical, and Defendants have offered no argument as to why Plaintiff's Amended Complaint in particular fails as a matter of law. In other words, Defendants’ claim of futility rests on the sufficiency of a complaint filed in a different action that contains similar, though not identical, factual allegations.”). Defendants have not met their burden of demonstrating that leave to amend would be futile. See id. (“In the absence of argument specifically directed to the proposed amendments, they have not sufficiently demonstrated futility to deny Plaintiff's motion to amend.”). While Defendants may amend their motion to dismiss and may ultimately defeat Plaintiffs’ claims in their Fed. R. Civ. P. 12(b)(6) motion, they have not met their burden to establish futility at this stage, given the legal standards for amendments to pleadings. Young v. Lugo, No. 18-CV-4216 (JS) (JMW), 2021 WL 5989106, at *4 (E.D.N.Y. Dec. 17, 2021) (“Although Defendant Goodman may at the end of the day be successful on his motion to dismiss, Plaintiff has met the low burden of asserting a colorable argument that his proposed amendment is not futile.”).

Finally, while Defendants focus on the fact that Plaintiffs did not file an amended pleading by the August 21, 2023 deadline set in the Court's August 8, 2023 Text Order, that order only allowed Plaintiffs to file an Amended Complaint as of right by August 21, 2023. Indeed, as noted above, the Court permitted limited paper discovery; then-Magistrate Judge Ramon E. Reyes stated that he was giving Plaintiffs “the opportunity to find out if there are other emails, whether they're from the defendants, non-parties, manufacturers, whatever. And if [Plaintiffs] do find them, then [Plaintiffs] can mid-briefing, you know, submit those to Judge Morrison and say here, here's more proof of the Lanham Act claim.” Dkt. No. 22 at 20.² Plaintiffs have subsequently engaged in such discovery and have filed their proposed Amended Complaint accordingly.

Therefore, the Court will permit Plaintiffs to file the Amended Complaint.

III. Conclusion

For the foregoing reasons, the Court GRANTS Plaintiffs’ Motion to Amend. Plaintiffs shall file the Amended Complaint by February 26, 2024. The Court shall also permit, sua sponte, Defendants leave to amend their motion to dismiss the Complaint (Dkt. No. 29) in order to respond to the to-be-filed Amended Complaint. To that end, Defendants shall file their amended motion to dismiss the Amended Complaint by March 11, 2024.

SO ORDERED.

FOOTNOTES

1.   United States Magistrate Judges have the authority to issue decisions on motions to amend without any referral from a district judge. See Fossil Grp., Inc. v. Angel Seller LLC, 627 F. Supp. 3d 180, 187 (E.D.N.Y. 2022) (citing Marsh v. Sheriff of Cayuga Cnty., 36 F. App'x 10, 11 (2d Cir. 2002) (finding that the magistrate judge acted within his authority in denying a motion to amend the complaint)); see also L. Civ. R. 72.2 (“a Magistrate Judge ․ is empowered to act with respect to all non-dispositive pretrial matters unless the assigned District Judge orders otherwise”); Media Glow Digit., LLC v. Panasonic Corp. of N. Am., No. 16 Civ. 7907, 2020 WL 3483632, at *3 (S.D.N.Y. June 26, 2020) (“A motion to amend is not a dispositive motion.”) (citation omitted). “Courts in this circuit generally treat motions to amend as non-dispositive pre-trial motions,” Prosper v. Thomson Reuters Inc., No. 18-CV-2890 (OTW), 2021 WL 535728, at *1 n.1 (S.D.N.Y. Feb. 11, 2021) (collecting cases), although a few courts in this Circuit “have suggested that a magistrate judge's denial of a motion to amend a complaint should be treated as dispositive, while a grant of the same motion should be treated as non-dispositive.” AT&T Corp. v. Atos IT Sols. & Servs., Inc., No. 21-CV-4550 (VSB) (RWL), 2024 WL 379952, at *1 (S.D.N.Y. Feb. 1, 2024); see also Ashford Locke Builders v. GM Contractors Plus Corp., No. 17-CV-3439 (AMD) (CLP), 2020 WL 6200169, at *1 (E.D.N.Y. Oct. 22, 2020) (“unless the magistrate judge's decision effectively dismisses or precludes a claim, thereby rendering the motion to amend dispositive, motions for leave to amend are subject to review under the ‘clearly erroneous or contrary to law’ standard of Rule 72(a).”). In this instance, the Court issues its decision as a memorandum and order. See AT&T Corp., 2024 WL 379952 at *1.

2.   Defendants’ arguments regarding Plaintiffs’ purported failure to comply with Fed. R. Civ. P. 45 are not relevant to whether the Court should permit Plaintiffs to file an amended complaint.

JOSEPH A. MARUTOLLO, United States Magistrate Judge: