govinfo:USCOURTS-nynd-1_22-cv-00579-0

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UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF NEW YORK 
__________________________________________________ 
 
NAJIY-ULLAH AZIYZ, 
 
Plaintiff, 
v.        1:22-cv-579 
 
CAMECA, a Wisconsin Profit Corporation; AMETEK,  
a Pennsylvania Profit Corporation; STEVEN TURNBULL, 
individually and in his capacity as a manager;  
ANNIE STROUD, individually and in her capacity as  
a manager; and FABRICE LEDUIGOU, individually and  
in his capacity as a manager, 
 
      Defendants. 
___________________________________________________ 
 
THOMAS J. McAVOY,  
Senior United States District Judge 
 
DECISION & ORDER 
I.    INTRODUCTION 
Plaintiff Najiy-Ullah Aziyz, proceeding pro se, brings this diversity action against 
Defendants Cameca Inc. (“Camaca”), Ametek Inc. (“Ametek”), Steven Turnbull 
(“Turnbull”), Annie Stroud (“Stroud”), and Fabrice LeDuigou (“LeDuigou”)(collectively 
“Defendants”). See generally First Am. Compl. (“FAC”), Dkt. No. 29-1.  Plaintiff’s claims 
arise because Cameca offered, and Plaintiff accepted, the Northeast Field Service 
Engineer (“NFSE”) position to be performed remotely from Plaintiff’s home in New York 
State; Camaca rescinded that offer after it learned of Plaintiff’s 1991 felony conviction; 
and then, the next day, reinstated the offer and set August 10, 2020 as Plaintiff’s start 
and orientation date. See id.  Plaintiff contends that because Cameca failed to provide 
him by August 10 with the necessary apparatuses (company car, computer, phone, and 
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email) to participate in the orientation and perform his duties, Defendants “reneged on 
plaintiff’s reinstatement job [sic] offer and orientation solely due to Plaintiff’s 1991 felony 
conviction,” effectively denying him employment.  Id. at ¶¶ 52, 53.   
Plaintiff brings claims that he labels as: (1) “Violation of New York Human Rights 
Law (N.Y. Exec. Law § 292 et seq.)” (Count I); (2) “Defendants’ Breach of Contract” 
(Count II); (3) “Breach of Promissory Estoppel” (Count III), (4) “Breach of Contract 
(Confidentiality of Hiring Data)” (Count IV);  (5) “Breach of Good Faith and Fair 
Dealings” (Count V); (6) “Fraud, Deceit, and Negligent Misrepresentation” (Count VI); 
and (7) “Promissory Fraud Misrepresentation” (Count VII). See FAC.  Each claim is 
brought against all Defendants. Id.  
Defendants move to dismiss the action pursuant to Fed. R. Civ. P. 12(b)(2) on 
the grounds that the Court lacks personal jurisdiction over each defendant, and 
pursuant to Fed. R. Civ. P. 12(b)(6) on the grounds that the FAC fails to state claims 
upon which relief may be granted. See Dkt. No. 31.  Plaintiff opposes the motion, see 
Dkt. No. 33, and Defendants file a Reply. See Dkt. No. 34.  For the reasons that follow, 
Defendants’ motion is granted in part and denied in part.  
II. BACKGROUND 
 
a.  Prior Litigation  
This is Plaintiff’s second pro se action filed in federal court concerning the 
Camaca NFSE position.  In the first action, brought in the United States District Court 
for the Western District of Wisconsin against all defendants named here except Ametek 
(Cameca’s parent company), Plaintiff claimed that Cameca violated federal 
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antidiscrimination laws,1 the Fair Credit Reporting Act, 15 U.S.C. § 1681b(b)(3)(A) 
(“FCRA”), and Wisconsin state common law by failing to make him a “good faith” offer of 
employment after discovering that he had a felony conviction. See 'Aziyz v. Cameca, 
No. 20-CV-896-WMC, 2021 WL 3471583, at *1 (W.D. Wis. Aug. 6, 2021), aff'd sub nom. 
Aziyz v. Cameca, Inc., No. 21-2550, 2022 WL 354444 (7th Cir. Feb. 7, 2022), reh'g 
denied, No. 21-2550, 2022 WL 727638 (7th Cir. Mar. 10, 2022).  
There, as in the instant case, on July 20, 2020 Camaca offered Plaintiff the 
NFSE position. See id. at *1.  Plaintiff accepted the position the same day by sending a 
signed copy of the offer letter to Stroud, Cameca’s Human Resource Manager.  Id.  The 
parties agreed that Plaintiff’s first day at Cameca would be Monday, August 10, 2020, 
and on July 27, Cameca Service Manager LeDuigou emailed Plaintiff, stating that he 
was looking forward to him joining the team and informing him that Cameca would be 
providing him with a cellphone. Id.  
“Cameca has a policy of considering applicants with a criminal history for 
employment. It also has a policy of conducting a ‘7-10 years background check’ of its 
applicants. As part of its hiring process, Cameca hired a third-party vendor, HireRight, to 
conduct a background check” on Plaintiff.  Id.  “HireRight finalized its report on July 28, 
2020. That same day, defendant Stroud sent [Plaintiff] a ‘welcome aboard’ email.” Id.  
“On or about August 6, 2020, however, Stroud called [Plaintiff] and told him that, in 
performing her own background investigation, she discovered that [Plaintiff] had a 
 
1Plaintiff, who is black and was 52 years old at the time, alleged (1) disparate impact race 
discrimination under Title VII, and (2) disparate treatment age discrimination under the Age Discrimination 
in Employment Act. See 'Aziyz v. Cameca, No. 20-CV-896-WMC, 2021 WL 3471583, at *2 (W.D. Wis. 
Aug. 6, 2021), aff'd sub nom. Aziyz v. Cameca, Inc., No. 21-2550, 2022 WL 354444 (7th Cir. Feb. 7, 
2022), reh'g denied, No. 21-2550, 2022 WL 727638 (7th Cir. Mar. 10, 2022). 
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felony conviction.  Stroud told [Plaintiff] that she had shared this information with 
LeDuigou, who became ‘upset’ that [Plaintiff] had not disclosed this information during 
the interview process. Stroud told [Plaintiff] that she would have to report the conviction 
to Cameca's corporate office and rescind the job offer.” Id. at *2.  Nevertheless, on 
August 7, 2020, Stroud called Plaintiff and told him that: “(1) she was wrong for sharing 
the information about his conviction with LeDuigou; and (2) Cameca actually wished to 
proceed with [Plaintiff’s] orientation on August 10.  Stroud also attempted to set up a 
conference call with LeDuigou and [Plaintiff] to talk, but the parties were unable to find a 
time that worked.” Id.  That same day, Turnbull, Cameca’s Vice President of Human 
Resources, “also called [Plaintiff], apologized for how things had been handled, and 
explained how the company had discovered [Plaintiff’s] felony conviction. According to 
Turnbull, after receiving HireRight's background check, Stroud noticed that [Plaintiff’s] 
age and graduation date did not coincide with his work history, so she followed up with 
LeDuigou to see what he had learned during [Plaintiff’s] interview.” Id. “Turnbull told 
[Plaintiff] that it was LeDuigou (not Stroud) who then conducted the internet search that 
led to the discovery of the conviction. Turnbull further admitted during this conversation 
that Stroud, LeDuigou, and he ‘acted discriminatory towards Plaintiff based on race and 
age.’” Id. (quoting Am. Compl. ¶ 98)). “Finally, later that same day, Turnbull emailed 
[Plaintiff] and said he was looking forward to him starting with Cameca.” Id.  
“The next day, August 8, [Plaintiff] emailed Turnbull and asked (1) how he could 
‘ensure that I will not be targeted by [LeDuigou]’ and (2) whether there were any other 
managers or departments for whom he could work.” Id.  “Turnbull responded the 
following day, assuring [Plaintiff] that Cameca maintained a fair working environment 
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and LeDuigou had been reminded of and confirmed that he would comply with 
Cameca's anti-discrimination policies. Turnbull also emphasized that Cameca's ‘good 
faith and commitment to the Code of Ethics [contained in the employee handbook] is 
evidenced by our decision to move forward to hire you after being informed of your past 
criminal convictions.’” Id. (quoting Am. Compl,  ¶104). 
“On August 10, [Plaintiff’s] planned start date, Turnbull again emailed him to ask 
whether he had received the previous email and intended to report to work that day.” Id.  
“[Plaintiff] responded that he did not intend to join Cameca because it had not assured 
him that he would not be a target of retaliation or that the job offer was in good faith. 
Cameca then allegedly filled the Field Service Engineer job with someone who was 
‘sufficiently younger’ than [Plaintiff].” Id.  
Defendants moved for dismissal pursuant to Fed. R. Civ. P. 12(b)(6), contending 
primarily that none of Plaintiff's federal claims were actionable because, as Plaintiff 
admitted in his amended complaint, Cameca offered him a job and he rejected it.  Id. 
The District Court agreed, holding: “Because the admissions in the amended complaint 
disprove plaintiff's allegations of unlawful discrimination or violation of his rights under 
the FCRA, the court will dismiss his federal claims under Rule 12(b)(6) and decline to 
exercise supplemental jurisdiction over the remaining state law claims, which will be 
dismissed without prejudice for lack of jurisdiction.” Id.; see id., at *4–6.  
On appeal, the United States Court of Appeals for the Seventh Circuit affirmed 
the District Court’s decision, finding that “[e]ven taking Aziyz's factual allegations at face 
value, he has failed to allege that Cameca took any adverse employment action against 
him.” Aziyz,  2022 WL 354444, at *1.  “Aziyz's discrimination claims fail because his 
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allegations show that he did not suffer an adverse employment action, which is an 
essential element of his race- and age-discrimination claims.” Id., at *2.  The Seventh 
Circuit found that even though Plaintiff insisted that Cameca had no intention of 
following through on its job offer after discovering his criminal conviction, “speculative 
future adverse action is not adverse action.” Id. (citations omitted).  “Aziyz's own 
allegations show that he did not confirm his willingness to start work but instead rejected 
Cameca's job offer on the morning his orientation was to begin.” Id. The Seventh Circuit 
held that “Aziyz's rejection of the job offer also defeats any argument that Cameca's 
failure to send the laptop and phone showed that it did not intend to follow through on 
the job offer. Moreover, in his email rejecting the job offer, Aziyz did not identify the lack 
of a laptop computer or phone as a basis for his refusal to start work, nor did he allege 
that he ever told Cameca during the numerous conversations leading up to his 
orientation that he had not received them.” Id. 
Likewise, the Seventh Circuit found that “the district court correctly reasoned that 
the temporary rescission of the offer does not satisfy the [Fair Credit Reporting Act's] 
definition of ‘adverse action,’ which requires ‘a denial of employment’ or a ‘decision for 
employment purposes that adversely affects any ... prospective employee.’” Id., at *3 
(quoting 15 U.S.C. § 1681a(k)(1)(B)(ii)). The Circuit Court held: “Cameca did not deny 
Aziyz employment or otherwise make an employment decision that harmed him. We 
also agree with the district court that even if there had been a conceivable harm under 
the Act, it would have stemmed from the independent investigation and not, as is 
required, from HireRight's report. Aziyz alleges in his amended complaint that the 
background report did not reveal his criminal conviction. The basis of Cameca's 
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temporary rescission was the company's additional, independent internet investigation, 
not the report itself.” Id. (emphasis in original). 
b.  Instant Action 
In the instant action, Plaintiff alleges that on July 14, 2020, he interviewed with 
LeDuigou for the Cameca NFSE position, which was to be performed remotely from 
New York State, where Plaintiff resided. FAC ¶¶ 13, 19.  On July 20, 2020, Plaintiff 
“received [a] formal offer letter from Stroud,” which he accepted the same day by 
forwarding a signed copy of the offer letter to Stroud. Id. ¶¶ 17-18.  Plaintiff asserts:  
Per Plaintiff’s Job Offer - required the first day of employment, the position 
pay rate of $1,634.62 per week ($85,000 annual base), company vehicle, 
eligibility for the Sales Incentive Program, benefits program, eligibility for 
(15) paid PTO days annually, eligibility for (9) Scheduled Holidays as well 
as three floating holidays, and eligibility for 401k Plan. Additionally, required 
the first day of employment, a company computer, company phone, and 
company email. 
 
Id. ¶ 27.  On the same day, Plaintiff “informed Stroud that he could not resign from [his 
then-current employment position as a Senior Field Service Engineer] until he had 
satisfactory [sic] passed the background check and pre-employment drug screen.” Id. 
¶¶ 22-23.  
On July 28, 2020, Plaintiff received an “all clear and welcome aboard” email from 
Stroud, prompting Plaintiff to resign from his then-current position. Id. ¶¶ 24-25.  
“Plaintiff’s amended first day at work and orientation was rescheduled for Monday, 
August 10th, 2020 at Cameca.” Id. ¶ 26.  Also on July 28, 2020, Stroud requested 
Plaintiff complete certain employment-related documentation and forms, which Plaintiff 
completed and submitted. Id. ¶¶ 28-29.  
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On July 30, 2020, Stroud asked Plaintiff if he had a preference for his email 
address at work, and informed Plaintiff that his “company computer and company phone 
[would] be mailed to his home for work and participation in orientation.” Id. ¶ 31. Also on 
July 30, 2020, “LeDuigou informed Plaintiff that his company car and company phone 
[would] be delivered to his home for work and participation in orientation.” Id. ¶ 32.  
“Ametek’s employee handbook, ‘Code of Ethics and Business Conduct Handbook’ 
(hereinafter ‘Code’) was issued to the Plaintiff.” Id. ¶ 35.  
On August 6, 2020, Stroud “discovered criminal information about the Plaintiff,”2 
which she disclosed to LeDuigou, who would have been Plaintiff’s direct supervisor. 
See id. ¶¶ 38-39.  Plaintiff contends that LeDuigou “was upset with Plaintiff due to the 
nature of the criminal conviction.” Id. ¶ 39.  He further contends that “Stroud and 
LeDuigou planned the withdrawal of Plaintiff’s job offer solely due to Plaintiff’s criminal 
conviction.” Id. ¶ 40. He asserts that on August 6, 2020, “Stroud rescinded Plaintiff’s job 
offer solely due to his criminal conviction.” Id. ¶ 41.  He also asserts that on August 6, 
2020, “Defendants stopped all preparations for Plaintiff’s first day of work and 
orientation to be held on August 10, 2020.”  Id. ¶ 43. 
 Nevertheless, Plaintiff contends that on August 6, 2020, “Stroud consulted with 
Ametek regarding the recession [sic] of Plaintiff’s job offer on the basis of his criminal 
conviction,” id. ¶ 44, and on August 7, 2020, “after consulting with Ametek, Defendants 
reinstated plaintiff’s job offer and resumed preparations for orientation to be held on 
Aug. 10, 2020.” Id.  ¶ 47.  On August 7, 2020, “Plaintiff confirmed his acceptance for the 
Northeast Field Service position.” Id.  ¶ 48.  On the same day, Plaintiff requested a 
 
2 The FAC indicates that Plaintiff has a 1991 felony conviction, FAC ¶¶ 42, 52,111, for which he 
appears to have been incarcerated and eventually paroled.  See id. ¶ 63  
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meeting with LeDuigou and Stroud “regarding employment matters,” but LeDuigou 
declined to speak or meet with him. Id. ¶¶ 49-50.  On August 8, 2020, “Plaintiff again 
confirmed his acceptance of the NFSE position and raised concerns regarding his 
employment to Turnbull, H.R. Vice President.” Id. ¶ 51.  Plaintiff communicated via 
phone and email with Turnbull “specifically to ask about rumors regarding many 
employees not wanting to work with Plaintiff because of his criminal history. Plaintiff also 
asked, if the rumors were true, can he work under another manager or in another 
division, as Ametek have [sic] over (6) subsidiaries in New York state.” Id. ¶ 141.  
“Turnbull responded that those rumors are unfounded, and further expressed Cameca 
[sic] is excited about Plaintiff joining the team. In fact, Turnbull express [sic] to Plaintiff 
how Ametek maintains a working environment that values diversity and protects the 
right of each employee to fair and equitable treatment. Turnbull assured Plaintiff of [sic] 
any actions that contradict this policy would be subject to corrective actions.” Id.  
Plaintiff contends, however, that “Defendants intentionally concealed material facts from 
Plaintiff, including, without limitation, that his reinstatement job [sic] was merely 
pretexted to establish an at-will relationship only to deny Plaintiff the required 
apparatus3 needed for him to perform his job. Defendants concealed their malice 
motives [sic], to deny plaintiff employment solely due to his criminal conviction, a 
statutory [sic] prohibited act.” Id.   
Plaintiff asserts that “[o]n Aug. 10, 2020, Defendants harden [sic] their position on 
not hiring a convicted felon and reneged on plaintiff’s reinstatement [sic] job offer and 
orientation solely due to Plaintiff’s 1991 felony conviction, by their failure to provide 
 
3 Plaintiff uses both "apparatus" and "apparatuses” when referring to items needed to participate 
in the orientation and to perform his job duties.  See, generally, FAC.   
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Plaintiff with the required apparatus to participate in orientation, and the opportunity to 
satisfactory [sic] perform his duty as the Northeast Field Service Engineer.”  Id. ¶ 52.   
Plaintiff contends that because Cameca failed to provide him by his start date the 
apparatuses necessary to participate in the orientation and perform his position 
remotely, he was denied employment due to his prior felony conviction.  See id. ¶ 53   
(“Defendants’ act of [f]ailing to provide Plaintiff with the required apparatus to participate 
in orientation, and the opportunity to satisfactory [sic] perform his duty as the Northeast 
Field Service Engineer denied Plaintiff employment.”).  Plaintiff asserts that by this 
omission, Defendants violated the NYSHRL, breached Plaintiff’s contract, and 
committed various common law torts. See generally, FAC.   
III. DISCUSSION 
 a.  Fed. R. Civ. P. 12(b)(2) Motion 
Ther e is no dispute that all defendants are domiciled outside New York State.4  
Defendants move to dismiss the action pursuant to Fed. R. Civ. P. 12(b)(2) on the 
grounds that the Court lacks personal jurisdiction over each defendant.   
1.  Standard of Review  
“A plaintiff bears the burden of demonstrating personal jurisdiction over a person 
or entity against whom it seeks to bring suit.” Penguin Grp. (USA) Inc. v. Am. Buddha, 
609 F.3d 30, 34 (2d Cir. 2010) (citing In re Magnetic Audiotape Antitrust Litig., 334 F.3d 
 
4 The FAC alleges that Ametek is a Pennsylvania corporation with its principal place of the 
business at 1100 Cassatt Road, Berwyn, Pennsylvania, FAC ¶ 5; that Cameca is a Wisconsin corporation 
with its principal place of business at 5470 Nobel Dr., Fitchburg, Wisconsin 53711, id . ¶ 6; and that 
Turnbull, Stroud, and LeDuigou each reside in Wisconsin. See id. ¶¶ 8-10. However, LeDuigou submits a 
declaration indicating that he resides in Reston, Virginia, see Dkt. No. 31-3, ¶ 2, and Turnbull submits a 
declaration indicating that he resides in Ridgewood, New Jersey, Dkt. No. 31- 4, ¶ 2.  Plaintiff has not 
rebutted LeDuigou and Turnbull’s attestations as to their residences, but submits declarations wherein he 
asserts that Stroud and Turnbull are each "citizen[s] of another state.” Dkt. Nos. 33-6, 33-7.  
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204, 206 (2d Cir. 2003) (per curiam)). “If the defendant is content to challenge only the 
sufficiency of the plaintiff's factual allegation[s], in effect demurring by filing a Rule 
12(b)(2) motion, the plaintiff need persuade the court only that its factual allegations 
constitute a prima facie showing of jurisdiction.” Dorchester Fin. Sec., Inc. v. Banco 
BRJ, S.A., 722 F.3d 81, 85 (2d Cir. 2013)(per curiam)(citation omitted); see Yak v. 
BiggerPockets, L.L.C., 2022 WL 67740, at *1 (2d Cir. Jan. 7, 2022)(Summary 
Oder)(“Prior to trial, . . . when a motion to dismiss for lack of jurisdiction is decided on 
the basis of affidavits and other written materials, the plaintiff need only make a prima 
facie showing.”)(citing Seetransport Wiking Trader Schiffarhtsgesellschaft MBH & Co., 
Kommanditgesellschaft v. Navimpex Centrala Navala, 989 F.2d 572, 580 (2d Cir. 
1993)). “Although a plaintiff must eventually establish personal jurisdiction by a 
preponderance of the evidence, when addressing the issue based on pleadings and 
affidavits, the Court must accept the allegations in the plaintiff's complaint and affidavits 
as true, and all doubts must be resolved in the plaintiff's favor, notwithstanding any 
controverting presentation by the moving party.” Berdeaux v. OneCoin Ltd., 561 F. 
Supp. 3d 379, 395 (S.D.N.Y. 2021)(citing A.I. Trade Fin., Inc. v. Petra Bank, 989 F.2d 
76, 79–80 (2d Cir. 1993)).  “A plaintiff, however, ‘must make allegations establishing 
jurisdiction with some ‘factual specificity’ and cannot establish jurisdiction through 
conclusory assertions alone.’” Id. (quoting Cont'l Indus. Grp. v. Equate Petrochemical 
Co., 586 F. App'x 768, 769 (2d Cir. 2014), in turn quoting Jazini v. Nissan Motor Co., 
148 F.3d 181, 185 (2d Cir. 1998), and citing Penguin, 609 F.3d at 34–35 (stating that a 
prima facie showing of jurisdiction “entails making legally sufficient allegations of 
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jurisdiction, including an averment of facts that, if credited, would suffice to establish 
jurisdiction over the defendant.” (cleaned up)). 
“A plaintiff must carry his burden with respect to each defendant individually.” Id. 
at 396 (citations omitted). “To allege personal jurisdiction over a defendant, group 
pleading is not permitted. Instead, the plaintiff is required to establish personal 
jurisdiction separately over each defendant.” In re Aegean Marine Petroleum Network, 
Inc. Sec. Litig., 529 F.Supp.3d 111, 135 (S.D.N.Y. 2021).   “When personal jurisdiction 
is predicated on specific jurisdiction, a plaintiff must establish a prima facie case of 
jurisdiction as to each claim.” Berdeaux, 561 F. Supp. 3d at 396 (citing Ainbinder v. 
Potter, 282 F. Supp. 2d 180, 184 (S.D.N.Y. 2003) (“Because this is a matter of specific 
jurisdiction, each cause of action must be analyzed separately.”); Sunward Elecs., Inc. 
v. McDonald, 362 F.3d 17, 24 (2d Cir. 2004) (“A plaintiff must establish the court's 
jurisdiction with respect to each claim asserted.”)(emphasis in original)). 
“Personal jurisdiction over a foreign defendant involves a two-step inquiry. First, 
courts look to the law of the forum state to determine whether jurisdiction exists.  Where 
the forum state's jurisdictional requirements are satisfied, the court must then consider 
whether the district court's exercise of personal jurisdiction over a foreign defendant 
comports with the due process protections established under the United States 
Constitution.” Yih v. Taiwan Semiconductor Mfg. Co., 815 F. App'x 571, 573 (2d Cir. 
2020) (cleaned up); see Lear v. Royal Caribbean Cruises Ltd., No. 1:20-CV-4660-GHW, 
2021 WL 1299489, at *4 (S.D.N.Y. Apr. 7, 2021). 
The New York State long-arm statute provides for general jurisdiction under Section 
301 of the New York Civil Practice Law and Rules (“C.P.L.R.”), and for specific 
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jurisdiction under Section 302(a).  Plaintiff asserts that personal jurisdiction may be 
obtained over Defendants pursuant to C.P.L.R. §§ 302(a)(1) and (a)(3).  See Pl. Mem. 
L. in Opp. (“Pl MOL”), Dkt. No. 33-1 at pp. 5-10.   
CPLR § 302(a) provides in pertinent part: 
As to a cause of action arising from any of the acts enumerated in this section, a 
court may exercise personal jurisdiction over any non-domiciliary ... who in person 
or through an agent ... 
 
(1) transacts any business within the state ...; or 
 
* * *  
 
(3) commits a tortious action without the state causing injury to a person or property 
within the state ... if he 
 
(i) regularly does or solicits business, or engages in any other persistent course 
of conduct, or derives substantial revenue from goods used or consumed or 
services rendered, in the state, or  
 
(ii) expects or should reasonably expect the act to have consequences in the 
state and derives substantial revenues from interstate or international commerce. 
 
C.P.L.R. § 302(a).   
 
“’To establish personal jurisdiction over a defendant, due process requires a 
plaintiff to allege (1) that a defendant has ‘certain minimum contacts’ with the relevant 
forum, and (2) that the exercise of jurisdiction is reasonable in the circumstances.’” 
Kumar v. Opera Sols. OPCO, LLC, No. 1:20-CV-6824-GHW, 2021 WL 4442832, at *6 
(S.D.N.Y. Sept. 28, 2021)(quoting In re Terrorist Attacks, 714 F.3d at 673, in turn citing 
Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). “’To determine whether a 
defendant has the necessary ‘minimum contacts,’ a distinction is made between 
‘specific’ and ‘general’ personal jurisdiction.’” Id. (quoting In re Terrorist Attacks on Sept. 
11, 2001, 714 F.3d 659, 673 (2d Cir. 2013)).  “Courts ‘may assert general personal 
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jurisdiction over a foreign defendant to hear any and all claims against that defendant 
only when the defendant's affiliations with the State in which the suit is brought ‘are so 
constant and pervasive so as to render it essentially at home in the forum State.’” Id. 
(quoting Waldman v. Palestine Liberation Org., 835 F.3d 317, 331 (2d Cir. 2016), in turn 
quoting Daimler AG v. Bauman, 571 U.S. 117, 122 (2014)).  “Specific jurisdiction, by 
contrast, ‘depends on an affiliation between the forum and the underlying controversy, 
principally, activity or an occurrence that takes place in the forum State and is therefore 
subject to the State's regulation.’” Id. (quoting In re Terrorist Attacks, 714 F.3d at 673, in 
turn quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 
(2011)). 
2.  C.P.L.R. § 302(a)(1) 
  “T o establish personal jurisdiction under Section 302(a)(1), two requirements 
must be met: (1) [t]he defendant must have transacted business within the state; and (2) 
the claim asserted must arise from that business activity.” Sole Resort, S.A. de C.V. v. 
Allure Resorts Mgmt. LLC, 450 F.3d 100, 103 (2d Cir. 2006) (citing McGowan, 52 
N.Y.2d at 273); see JihShyr Yih v. Taiwan Semiconductor Mfg. Co., No. 18-CV-3844 
(CS), 2019 WL 2578306, at *6 (S.D.N.Y. June 24, 2019), aff'd sub nom. Yih v. Taiwan 
Semiconductor Mfg. Co., 815 F. App'x 571 (2d Cir. 2020)(“A finding of specific 
jurisdiction under N.Y. C.P.L.R § 302(a)(1) requires the Court to determine that ‘the 
defendant purposefully directed his activities at residents of the forum ... and the 
litigation results from alleged injuries that arise out of or relate to those 
activities.’”)(quoting In re Terrorist Attacks on Sept. 11, 2001, 440 F. Supp. 2d 281, 284 
(S.D.N.Y. 2006) (alteration in original))(interior quotation marks and citation omitted).  
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“CPLR 302 (a) is a single act statute and proof of one transaction in New York is 
sufficient to invoke jurisdiction, even though the defendant never enters New York, so 
long as the defendant's activities here were purposeful and there is a substantial 
relationship between the transaction and the claim asserted.” Daniel B. Katz & Assoc. 
Corp. v Midland Rushmore, LLC, No. 2011-01834, 4554/10, 937 N.Y.S.2d 236, 2011 
N.Y. Slip Op. 09584, 2, 2011 WL 6825731 (N.Y.A.D., Dec. 27, 2011)(cleaned up). 
“Determining whether a non-domiciliary is transacting business in New York is a 
fact-based determination.” Lear, 2021 WL 1299489, at 6 (citing Paterno, 24 N.Y.3d at 
376).  Whether a party has transacted business in New York depends upon the “totality 
of the circumstances concerning the party's interactions with and activities within the 
state.” Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d 779, 787 (2d 
Cir. 1999). “’A nondomiciliary transacts business under CPLR § 302(a)(1) when he 
purposefully avails himself of the privilege of conducting activities within New York, thus 
invoking the benefits and protections of its laws.’” Lear, 2021 WL 1299489, at *5 
(quoting CutCo Indus., Inc. v. Naughton, 806 F.2d 361, 365 (2d Cir. 1986)(internal 
quotation marks and citations omitted)). “’The New York Court of Appeals has explained 
that ‘the overriding criterion necessary to establish a transaction of business is some act 
by which the defendant purposefully avails itself of the privilege of conducting activities 
within New York,’ thereby ‘invoking the benefits and protections of its laws.’” Id. (quoting 
Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 673 F.3d 50, 61 (2d Cir. 2012) 
(citations omitted)).  
“Purposeful activities are volitional acts by which the non-domiciliary avails itself 
of the privilege of conducting activities within the forum State, thus invoking the benefits 
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and protections of its laws.... More than limited contacts are required for purposeful 
activities sufficient to establish that the non-domiciliary transacted business in New 
York.” Paterno v. Laser Spine Inst., 24 N.Y.3d 370, 376 (NY 2014) (cleaned up); see 
Yih, 815 F. App'x at 574 (“Under New York law, . . . ‘[m]ore than limited contacts are 
required for purposeful activities sufficient to establish that the non-domiciliary 
transacted business.’”)(quoting Coast to Coast Energy, Inc. v. Gasarch, 149 A.D.3d 
485, 53 N.Y.S.3d 16, 18 (N.Y. App. Div., 2017), in turn quoting Paterno, 24 N.Y.3d at 
376)).  “The lack of an in-state physical presence is not dispositive of the question 
whether a non-domiciliary is transacting business in New York.” Paterno, 24 N.Y.3d at 
376.  “The exercise of long-arm jurisdiction under N.Y. C.P.L.R. § 302(a)(1) can be 
warranted when an out of state actor projects itself into New York to conduct business 
transactions by electronic and telephonic means.” Lear, 2021 WL 1299489, at *5 (citing 
Paterno, 24 N.Y.3d at 376). “At a minimum, the defendant ‘must, on his or her own 
initiative ... project himself or herself into the state to engage in a sustained and 
substantial transaction of business.” Atwal, 2023 WL 3063450, at *6 (quoting Hau Yin 
To v. HSBC Holdings, PLC, 700 F. App'x 66, 67 (2d Cir. 2017) (internal quotation marks 
and citations omitted).  
 “Although it is impossible to precisely fix those acts that constitute a 
transaction of business, ... it is the quality of the defendants' New York 
contacts that is the primary consideration.” Fischbarg v. Doucet, 9 N.Y.3d 
375, 380 (2007). This emphasis on “a certain quality, rather than a specific 
quantity, of contacts with the forum,” U.S. Theatre Corp. v. 
Gunwyn/Lansburgh Ltd. P'ship, 825 F. Supp. 594, 596 (S.D.N.Y. 1993), 
means that “proof of one transaction in New York is sufficient to invoke 
jurisdiction, even though the defendant never enters New York, so long as 
the defendant's activities here were purposeful and there is a substantial 
relationship between the transaction and the claim asserted.” Deutsche 
Bank Sec., Inc. v. Mont. Bd. of Invs., 7 N.Y.3d 65, 71 (2006) (internal 
quotation marks omitted). 
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JihShyr Yih v. Taiwan Semiconductor Mfg. Co., No. 18-CV-3844 (CS), 2019 WL 
2578306, at *6 (S.D.N.Y. June 24, 2019), aff'd sub nom. Yih v. Taiwan Semiconductor 
Mfg. Co., 815 F. App'x 571 (2d Cir. 2020). 
“If the first prong of the test for jurisdiction under C.P.L.R. 302(a)(1) is satisfied, 
the court must then inquire whether the plaintiff's claims arise from that transaction.” 
Atwal, 2023 WL 3063450, at *6 (citing Licci ex rel. Licci v. Lebanese Canadian Bank, 
SAL, 673 F.3d 50, 66 (2d Cir. 2012)).  “A suit will be deemed to have arisen out of a 
party's activities in New York ‘when there is some articulable nexus between the 
business transacted and the cause of action sued upon, or when there is a substantial 
relationship between the transaction and the claim asserted.’” Id. (quoting Sole Resort, 
450 F.3d at 103) (internal quotations marks and citations omitted). 
Plaintiff’s Arguments 
 Plaintiff argues that Cameca and Ametek transacted business within New York 
State by soliciting and employing New York residents to manufacture, sell, and service 
their high-performance analytic instruments. See Pl. MOL at 6 (citing Pl. Ex. A; Pl. Ex. 
B; Pl. Ex. C; Pl. Ex. D; Pl. Ex. E).  Plaintiff alleges that Cameca is a Wisconsin 
corporation and wholly owned subsidiary of Ametek, FAC at ¶ 6; that Ametek is a 
Pennsylvania corporation that controls every aspect of operation at Cameca, including 
but not limited to, hiring and terminating its employees, FAC at ¶¶ 5, 56; and he 
contends that Cameca and Ametek both share the same link to solicit New York 
residents for employment. Pl. Ex. A at ¶ 7; Pl. Ex. B at ¶ 7; Pl. Ex. A1.  Plaintiff also 
alleges that Ametek is the parent company to at least six (6) subsidiary companies in 
New York State, Pl. Ex. B at ¶ 8, and that Cameca has at least two (2) companies which 
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sell, and provide maintenance services for, its high-performance analytical instruments. 
Pl. Ex. B at ¶ 8. He asserts that “it is unopposed by Defendants with affidavit (or 
otherwise) that Cameca and Ametek transact business in New York State, including but 
not limited to, soliciting and employing New York State residents to manufacture, sale 
[sic], and provide services to Cameca’s and Ametek’s high-performance analytic 
instruments.” Pl. MOL at 7 (citing Pl. Ex. A at ¶¶ 3-8; Pl. Ex. B at ¶¶ 3-8); see id. at 14 
(same).  Plaintiff also asserts that exercising personal jurisdiction over Cameca and 
Ametek comports with due process because these defendants have sufficient minimum 
contacts with New York State through their corporate activities, see Pl. MOL at 11-14, 
and that under the circumstances it would be reasonable to assert personal jurisdiction 
over them. Id. p. 14.  
 Plaintiff’s arguments regarding the transaction of business in New York by 
Turnbull, Stroud, and LeDuigou (collectively, “Individual Defendants”) are more general 
and amount to improper group pleading.  In re Aegean Marine Petroleum Network, Inc. 
Sec. Litig., 529 F.Supp.3d at 135.  Plaintiff contends that “Defendants regularly solicit[] 
business, … and derive[] substantial revenue from goods used or consumed and 
services rendered in the State of New York,” Pl. MOL at 2, and that “Defendants 
transacted business within New York State by soliciting and employing its residents to 
service its high-performance analytical instruments.”  Id. at 7.  Plaintiff maintains that 
Defendants’ “continual communication with Plaintiff into the state of New York 
expresses Defendants[‘] solicitation to create a[n] employer-employee relationship.” Pl. 
MOL at 7.  He further contends that “[t]he discriminatory actions under NYSHRL, and 
fraudulent misrepresentation arise from Defendants’ ‘transacted business’ within New 
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York State by soliciting and employing its residents to service its high-performance 
analytic instruments.” Id. (citing FAC). Thus, Plaintiff maintains, “Defendants purposely 
availed themselves by soliciting and employing New York residents to manufacture, 
sale [sic], and provide services to their product line of high-performance analytic 
instruments, and thereby invoked the benefits and protection of its laws.” Id. (citing Pl. 
Ex. A; Pl. Ex. B).  Plaintiff does not present due process arguments specifically directed 
to the Individual Defendants.  See Pl. MOL at pp. 11-14.   
Analysis - Cameca and Ametek 
On July 14, 2020, “Plaintiff interviewed with LeDuigou for the Northeast Field 
Service Engineer position at Cameca.” FAC ¶ 13.  Plaintiff indicates this interview was 
conducted by telephone while Plaintiff was in New York.  See Pl. MOL, at 6.  There are 
no allegations indicating how it was that Plaintiff learned of the position and applied for 
it.  Plaintiff’s contention that “Defendants” solicited potential employees from New York 
State appears to be based on Cameca’s and Ametek’s online posting of open 
employment positions, which Plaintiff describes as Cameca’s and Ametek’s “career 
link.”  See Pl. MOL at 4 (“Cameca and Ametek transact business in New York State by 
the acts of soliciting and employing New York residents for the manufacturing, sales, 
and service of their product line.”); 6 (“Cameca and Ametek transact business within 
New York State by soliciting and employing New York residents to the manufacturing, 
sales, and services of its high-performance analytic instrument.”); Pl. Ex. A, ¶¶ 6-7 
(“Cameca solicits and employ [sic] New York residents to sale [sic] and service their 
product line of high-performance analytical instrumentation throughout United States, 
including New York State.  Cameca’s ‘career’ link is directly linked with Ametek to solicit 
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and employ New York residents.”)(citing Pl. Ex. A1); Pl. Ex. B, ¶¶ 6-7 (“Ametek solicit 
[sic] and employ [sic] New York residents to manufacture, sale [sic], and service their 
product line of advanced analytical instrumentation throughout United States, including 
New York State. Ametek’s ‘career’ link is directly linked with Cameca to solicit and 
employ New York residents.”)(citing Pl. Ex. A1).  Plaintiff’s Exhibit A1 is a printout of an 
online posting for “careers” with Cameca, see Pl. Ex. A1, CM/ECF p. 1, and the results 
of a search for “New York” jobs on Ametek’s employment openings database. See id. 
CM/ECF pp. 3-6.   
[T]he courts have identified a spectrum of cases involving a defendant's use 
of the internet. At one end are cases where the defendant makes 
information available on what is essentially a “passive” web site. This use of 
the internet has been analogized to an advertisement in a nationally-
available magazine or newspaper, and does not without more justify the 
exercise of jurisdiction over the defendant. See [K.C.P.L., Inc. v. Nash, No. 
98 Civ. 3773, 1998 WL 823657, at *4-*5 (S.D.N.Y.1998)]; Hearst Corp. v. 
Goldberger, No. 96 Civ. 3620, 1997 WL 97097, at *10 (S.D.N.Y. Feb. 26, 
1997); see also [Zippo Mfg. Co. v. Zippo Dot Com, 952 F. Supp. 1119, 1123 
(W.D.Pa.1997)]. At the other end of the spectrum are cases in which the 
defendant clearly does business over the internet, such as where it 
knowingly and repeatedly transmits computer files to customers in other 
states. See CompuServe, Inc. v. Patterson, 89 F.3d 1257 (6th Cir.1996). 
Finally, occupying the middle ground are cases in which the defendant 
maintains an interactive web site which permits the exchange of information 
between users in another state and the defendant, which depending on the 
level and nature of the exchange may be a basis for jurisdiction. See 
American Homecare Fed. Inc. v. Paragon Scientific Corp., 27 F.Supp.2d 
109, 113 (D.Conn.1998); Zippo, 952 F. Supp. at 1124. 
 
Citigroup Inc. v. City Holding Co., 97 F. Supp. 2d 549, 565 (S.D.N.Y. 2000).   
 
The first page of Plaintiff’s Exhibit A1 shows links for interested individuals to 
“contact us” and “sign up for [a] newsletter.”  Id. at CM/ECF p. 1.   If this website merely 
imparts information but does not allow transactions relative to employment, then this 
would be insufficient to support personal jurisdiction under C.P.L.R. 302(a)(1). See 
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Paterno, 24 N.Y.3d at 377-78 (“Passive websites . . . which merely impart information 
without permitting a business transaction, are generally insufficient to establish personal 
jurisdiction. Thus, … the mere fact that [plaintiff] viewed [the websites] in New York is 
insufficient to establish CPLR 302(a)(1) personal jurisdiction over defendants.”)(citations 
omitted); cf. V'Soske, Inc. v. Vsoske.com, No. 00 Civ. 6099, 2001 WL 546567, at *4 & n. 
3 (S.D.N.Y. May 23, 2001) (stating that the mere possibility of requesting information 
about products is insufficient to establish personal jurisdiction).   
Further, Plaintiff’s Exhibit A1 references Cameca employment positions in New 
York State, in other states within the United States, and in other countries. See Pl. 
Exhibit A1.  This tends to negate a conclusion that Cameca and Ametek “[sought] out 
and initiate contact with New York” by directing the employment advertisement “at New 
York, rather than the world with access to the web.” Lear, 2021 WL 1299489, at *8; cf. 
Hsin Ten Enter, USA, Inc. v. Clark Enters., 138 F.Supp.2d 449, 456 (S.D.N.Y. 2000) 
(“[P]ersonal jurisdiction over a defendant is not appropriate simply because the 
defendant maintains a website which residents of New York may visit.”)(citing Bensusan 
Restaurant Corp. v. King, 126 F.3d 25, 29 (2d Cir. 1997)). 
 But Plaintiff contends that Cameca’s and Ametek’s websites are “relatively 
interactive.” See Pl. Ex. A ¶ 12; Pl. Ex. B ¶ 12.  Plaintiff’s declarations indicate that the 
websites to which he refers allow “New York residents, government and university labs 
as well as leading high-tech industrial companies to apply for services and call or email 
the Company.” Id.  Construing the pleadings and declarations in the light most favorable 
to Plaintiff, and resolving all doubts in his favor, the link on Plaintiff’s Exhibit 1A plausibly 
allows interested job applicants to ask questions related to available employment and, 
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potentially, get the ball rolling for an employment application.  It is also a reasonable 
inference that Plaintiff learned of and applied for the NFSE position by viewing this 
website while he was in New York. Thus, Plaintiff has presented a prima facie basis to 
conclude that Cameca and Ametek transacted business in New York through the 
solicitation of New York residents for employment through this website.  Assuming that 
to be true, Cameca’s and Ametek’s maintenance of this website supplies a connection 
between New York and the underlying controversy.  
Furthermore, although “courts seem generally loath to uphold jurisdiction under 
the ‘transaction in New York’ prong of CPLR 302(a)(1) if [a] contract . . .  was negotiated 
solely by mail, telephone, and fax without any New York presence by the defendant,’” 
Lear, 2021 WL 1299489, at *7 (citations omitted), here the facts as alleged by Plaintiff 
indicate that both Cameca and Ametek have a presence in New York through their 
sales and service employees in the state. See Pl. Ex. A ¶ 8; Pl. Ex. B ¶¶ 5-8.  And 
contrary to the employment contract negotiated in Lear, the prospective employment 
agreement at issue here was intended to be performed in New York.  Considering the 
totality of the circumstances, Plaintiff has presented a prima facie case that Cameca 
and Ametek transacted business in New York for C.P.L.R. 302(a)(1) purposes by 
soliciting New York residents for employment. 
Plaintiff has also presented facts supporting a prima facie basis to conclude that 
his claims arose from this transaction of business.  There exists an articulable nexus 
between Cameca’s and Ametek’s solicitation of employees in New York and Plaintiff’s 
claims. See Best Van Lines, Inc. v. Walker, 490 F.3d 239, 246 (2d Cir. 2007)(“As for the 
second part of [Section 302(a)(1)’s] test, a suit will be deemed to have arisen out of a 
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party's activities in New York if there is an articulable nexus, or a substantial 
relationship, between the claim asserted and the actions that occurred in New York.”); 
see also Def. Reply, at 8 (Plaintiffs’ “claims do not arise out of Defendants’ supposedly 
general business activities. Rather, they arise out of his alleged job offer.”).  Considering 
the totality of circumstances, Plaintiff has presented a prima facie case supporting a 
basis for the Court to exercise personal jurisdiction over Cameca and Ametek pursuant 
to Section 302(a)(1). 
Finally, Plaintiff has presented a prima facie basis to conclude that the exercise 
of personal jurisdiction over Cameca and Ametek comports with due process.  
Accepting Plaintiff’s allegations as true for purposes of this motion, and drawing all 
inferences in Plaintiff’s favor, both of these corporations seemingly have sufficient 
minimum contacts with New York State such that they should reasonably anticipate 
being haled into court over claims arising from the solicitation of individuals for 
employment in New York. See State v. Vayu, Inc., 39 N.Y.3d 330, 337, 206 N.E.3d 
1236, 1241–42 (N.Y. 2023); Manning v. Erhardt + Leimer, Inc., No. 17-CV-348, 2020 
WL 759656, at *9 (W.D.N.Y. Feb. 7, 2020).  Under the circumstances, the prospect of 
having to defend an employment-related and/or contract-related suit in New York 
comports with traditional notions of fair play and substantial justice. See Vayu, 39 
N.Y.3d at 337, 206 N.E.3d at 1241–42; Manning, 2020 WL 759656, at *9.  Moreover, 
“[b]ecause the New York long-arm statute is more restrictive than the federal due 
process requirements, by virtue of satisfying the long-arm statute the minimum contacts 
and reasonableness requirements of due process have similarly been met.” Chatwal 
Hotels & Resorts LLC v. Dollywood Co., 90 F.Supp.3d 97, 107 (S.D.N.Y. 2015); accord 
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Peterson v. Islamic Republic of Iran, 2013 WL 1155576, at *15 (S.D.N.Y. Mar. 13, 2013) 
(“New York law requires a greater showing of minimum contacts than would be required 
by the Due Process Clause alone.”); see also Joint Stock Co. Channel One Russia 
Worldwide v. Infomir LLC, 2017 WL 825482, *15 (S.D.N.Y.), adopted, 2017 WL 
1321007 (S.D.N.Y. 2017) (“[c]ompliance with New York's long-arm statute usually - 
though not invariably - results in compliance with the constitutional standard as well”).  
Accordingly, Plaintiff has presented a prima facie basis for the Court to exercise 
personal jurisdiction over Cameca and Ametek pursuant to C.P.L.R. Section 302(a)(1). 
Analysis - Individual Defendants 
However, even accepting Plaintiff’s allegations as true and drawing reasonable 
inferences on his behalf, the Individual Defendants’ contacts with Plaintiff do not amount 
to purposeful activities sufficient to establish that these defendants availed themselves 
of the privilege of conducting activities within New York State. Paterno, 24 N.Y.3d at 
376.  There are no specific allegations indicating that the Individual Defendants 
individually projected themselves into New York to solicit Plaintiff, or any other New 
York resident, for employment.  See Atwal, 2023 WL 3063450, at *6 (“At a minimum, 
the defendant must, on his or her own initiative ... project himself or herself into the state 
to engage in a sustained and substantial transaction of business.”).  Plaintiff’s 
declarations concerning the Individual Defendants indicate that they each allegedly5 
solicited business in New York “by making phone calls to customers or publishing 
advertisements in the State of New York,” Pl. Exs. C ¶ 5; D ¶ 6; E ¶ 6, but these 
 
5 Defendants challenge Plaintiff's declarations concerning Defendants’ conduct because Plaintiff 
was never employed by Cameca and thus lacks personal knowledge as to the basis of his contentions. 
Nevertheless, the Court considers the contentions for the purpose of determining whether Plaintiff has 
stated a prima facie case supporting personal jurisdiction. 
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allegations do not support the contention that the Individual Defendants solicited Plaintiff 
or any other New York resident for purposes of employment.  Furthermore, Plaintiff’s 
claims do not arise out of the sale by the Individual Defendants of a product or services, 
or from the content of published advertisements for products or services.  Thus, these 
contentions do not support the second prong of the C.P.L.R. 302(a)(1) analysis as 
pertaining the Individual Defendants. . 
Rather, the allegations indicate that the Individual Defendants each became 
involved with Plaintiff’s prospective employment through his interview and with matters 
occurring thereafter. The allegations do not indicate that any of the Individual 
Defendants reached into New York to solicit Plaintiff, or any other New Yorker, for 
employment. Indeed, there is no allegation that any of the Individual Defendants had 
any contact with Plaintiff before his interview, or that any of the Individual Defendants 
had anything to do with the employment link in Plaintiff’s Exhibit 1A. 
Even assuming, arguendo, that the Individual Defendants’ communications with 
Plaintiff during and after his interview amounted to the solicitation of Plaintiff for 
employment, these defendants’ individual contacts with Plaintiff were too limited to 
amount to transaction of business in New York.  LeDuigou communicated with Plaintiff 
by telephone on July 14, 2020 for the interview, Pl. MOL at 6, and on July 30, 2020 to 
inform Plaintiff that his company car and company phone would be delivered to his 
home for work and participation in orientation. FAC ¶ 32. These limited contacts during 
the application process are insufficient to establish purposeful activities that amount to 
the transaction of business in New York. See Paterno, 24 N.Y.3d at 376 (“More than 
limited contacts are required for purposeful activities sufficient to establish that the non-
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domiciliary transacted business in New York.”); Yih, 815 F. App'x at 574 (“Under New 
York law, . . . more than limited contacts are required for purposeful activities sufficient 
to establish that the non-domiciliary transacted business.”)(cleaned up).   
The same conclusion applies to Turnbull.  Plaintiff’s facts indicate that Turnbull 
communicated with Plaintiff on August 7 & 8, 2020 via phone and email regarding 
Plaintiff’s concerns about accepting the NFSE position because Plaintiff had heard 
rumors that some Cameca employees did not want to work with him due to his because 
of his felony conviction. See Pl. MOL at 28 (“On August 7 & 8, 2020, Plaintiff, via phone 
and email, asked Turnbull about the then-current employment environment regarding 
his safety and the protection of his employment rights due to the rumors.”); FAC ¶¶ 51, 
141, 149.  Turnbull also, at some point, issued Plaintiff the Ametek/Cameca employee 
handbook and code of conduct.  FAC ¶ 108.  These limited contacts, which occurred 
after Plaintiff was interviewed and offered the NFSE position, are insufficient to establish 
purposeful activities in New York such to amount to the transaction of business in New 
York. See Paterno, 24 N.Y.3d at 376; Yih, 815 F. App'x at 574.  As discussed above, 
allegations that a defendant made telephone calls and sent emails to New York, without 
more, are generally insufficient to support jurisdiction.  Even accepting Plaintiff’s 
allegations and declarations as true, and drawing reasonable inferences in his favor, he 
fails to establish a prima facie case that Turnbull transacted business in New York for 
purposes of C.P.L.R. § 302(a)(1). 
Plaintiff had a few more communications with Stroud than he did with Turnbull 
and LeDuigou, but overall they do not establish purposeful activities such to amount to 
the transaction of business in New York.  On July 20, 2020, Stroud sent Plaintiff a 
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formal offer letter, FAC ¶ 17; on July 28, 2020, Stroud sent Plaintiff an “all clear and 
welcome aboard” email and requested that Plaintiff complete forms necessary for 
employment, FAC ¶ ¶ 24, 28; on July 30, 2020, Stroud asked Plaintiff whether he had a 
preference for an email address at work and informed him that his company computer 
and company phone would be mailed to his home from work, FAC ¶ ¶ 30-31; on August 
6, 2020, Stroud rescinded Plaintiff’s job offer, FAC ¶ 41; on August 7, 2020, Stroud 
reinstated Plaintiff’s job offer at which time Plaintiff requested a meeting with Stroud and 
LeDuigou, FAC ¶ ¶ 47-49; and advised Plaintiff that LeDuigou declined to speak or 
meet with him. See FAC ¶ 49.  Again, these limited contacts are insufficient to establish 
purposeful activities such to amount to the transaction of business in New York. See 
Paterno, 24 N.Y.3d at 376; Yih, 815 F. App'x at 574. 
 Thus, Plaintiff fails to present a prima facie basis for the Court to exercise 
personal jurisdiction over the Individual Defendants pursuant to Section 302(a)(1).  
Further, even assuming that personal jurisdiction over the Individual Defendants would 
be proper pursuant to Section 302(a)(1), Plaintiff fails to present due process arguments 
directed specifically to the Individual Defendants.  Although the Court must construe pro 
se pleadings liberally and interpret them to raise the strongest arguments they suggest, 
see Daniels v. Kijakazi, No. 22-CV-6297 (LJL), 2023 WL 3901987, at *3 (S.D.N.Y. June 
8, 2023)(citations omitted), “the Court's duty to liberally construe a plaintiff's [pleading]  
is not the equivalent of a duty to re-write it.” Davila v. Lang, 343 F. Supp. 3d 254, 266 
(S.D.N.Y. 2018)(internal quotation marks and citation omitted).  Based on Plaintiff’s 
submissions, he fails to present a prima facie basis to conclude that the exercise of 
personal jurisdiction over the Individual Defendants would not violate due process. 
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3.  C.P.L.R. § 302(a)(3) 
“Under Section 302(a)(3), a court may exercise personal jurisdiction when 
a non-domiciliary commits a tortious act outside of New York State, but causes 
harm to someone in the state, if the conditions set forth in either Section 
302(a)(3)(i) or (ii) are present.” Davey v. PK Benelux B.V., No. 20 CV 5726 (VB), 
2021 WL 3501199, at *2 (S.D.N.Y. Aug. 6, 2021) (citing Doe v. Del. State Police, 
939 F. Supp. 2d 313, 325–26 (S.D.N.Y. 2013)). “Under both Section 302(a)(3)(i) 
and (ii), ‘(1) a defendant must have committed a tortious act outside New York, 
(2) the cause of action must arise from that tortious act, and (3) the act must 
have caused injury to a person or property within New York.’” Id. (quoting Doe v. 
Del. State Police, 939 F. Supp. 2d at 325–26).  
Under Section 302(a)(3)(i), “a plaintiff must demonstrate one of four forms 
of in state activity by the defendant.” Id. (citing Doe v. Del. State Police, 939 F. 
Supp. 2d at 326). “These activities include: (i) regularly doing business in the state, 
(ii) regularly soliciting business in the state, (iii) engaging in a persistent course of 
conduct in New York, or (iv) deriving substantial revenue from goods used or 
consumed or services rendered.” Id. (citing Doe v. Del. State Police, 939 F. Supp. 
2d at 326).  Section 302(a)(3)(ii) confers jurisdiction over a non-domiciliary when 
five elements are met: 
(1) The [plaintiff stated a colorable claim that the] defendant committed a 
tortious act outside the state; (2) the cause of action arose from that act; (3) 
the act caused injury to a person or property within the state; (4) the 
defendant expected or should reasonably have expected the act to have 
consequences in the state; (5) the defendant derives substantial revenue 
from interstate or international commerce. 
 
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Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. v. UPS Supply Chain Sols., Inc., No. 21-
2867, 2023 WL 4610772, at *3 (2d Cir. July 19, 2023)(quoting Sole Resort, S.A. de C.V. 
v. Allure Resorts Mgmt., LLC, 450 F.3d 100, 106 (2d Cir. 2006), in turn citing LaMarca 
v. Pak–Mor Mfg. Co., 95 N.Y.2d 210, 713 N.Y.S.2d 304, 735 N.E.2d 883, 886 (NY 
2000)). 
Analysis 
 Plaintiff appears to proceed under Section 302(a)(3)(ii).  See Pl. MOL at 8 
(“Plaintiff relies on Section 302(a)(3)[.] The conferral of jurisdiction under this provision 
rests on five elements: (1) that defendant committed a tortious act outside the state; (2) 
that the cause of action arises from that act; (3) that the act caused injury to a person or 
property within the State; (4) that defendant expected or should reasonably have 
expected the act to have consequences in the State; and (5) that defendant derived 
substantial revenue from interstate or international commerce.”)(internal quotation 
marks and citation omitted); id. at 9 (“Defendants expected or reasonably should have 
expected the act of discrimination to have consequence in New York State.”).  
Accepting Plaintiff’s allegations as true and drawing reasonable inferences in his favor, 
he has established a prima facie basis to conclude that each of the Section 302(a)(3)(ii)   
elements could be satisfied as to Cameca and Ametek.  He does not, however, direct 
his arguments to the Individual Defendants.  Critically, as to the fifth element, Plaintiff 
asserts that “Defendants derives [sic] substantial revenue from interstate and 
international commerce,” Pl. MOL at 9, but in support of this proposition he cites only to 
his declarations pertaining to Cameca and Ametek. Id. (citing Pl. Ex. A, at ¶ 17; Pl. Ex. 
B, at ¶ 9).  Stroud, LeDuigou, and Turnbull have each submitted declarations attesting 
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that they “do not personally derive any revenue from interstate or international 
commerce.” Def. Ex. A, at ¶ 9; Def. Ex. B, at ¶ 9; Def. Ex. C, at ¶ 8.  Plaintiff’s lack of 
specific factual allegations relative to the Individual Defendants on this issue defeats 
any conclusion that personal jurisdiction may be obtained over the Individual 
Defendants pursuant to Section 302(a)(3)(ii).   
 Likewise, to the extent that Plaintiff proceeds under Section 302(a)(3)(i), he 
directs his factual contentions to Cameca and Ametek. See Pl. MOL at  9 (“Here, 
Defendants regularly do business in New York State and solicit business in New 
York State.”)(citing Pl. Ex. A, at ¶¶ 8-9, 16; Pl. Ex. B, at ¶¶ 8-9, 18).  Even accepting 
Plaintiff’s allegations as true and drawing reasonable inferences on his behalf, he fails 
to present a prima case that any of the Individual Defendants (i) regularly do business in 
New York State, (ii) regularly solicit business in New York State, (iii) engage in a 
persistent course of conduct in New York State, or (iv) derive substantial revenue from 
goods used or consumed or services rendered in New York State.   
Further, even if it could be assumed that Plaintiff satisfies any of these elements, 
he fails to direct due process arguments specifically to the Individual Defendants. 
Accordingly, Plaintiff fails to present a prima facie case that personal jurisdiction over 
the Individual Defendants would be proper under Section 302(a)(3).   
4.  Jurisdictional Discovery 
Plaintiff asserts that “should the Court conclude that the plaintiff may be able to 
establish jurisdiction if given the opportunity to develop a full factual record, Plaintiff 
request [sic] this Court to order discovery.” Pl. MOL at 14.  Defendants oppose the 
request for jurisdictional discovery. See Reply, p. 10, n. 5.   
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“’District courts have broad discretion to decide whether to allow jurisdictional 
discovery and, if so, to what extent.’” Lear, 2021 WL 1299489, at *11 (quoting In re MS 
Angeln GmbH & Co. KG, No. 10 Civ. 4820 (GBD), 2012 WL 1080300, at *7 (S.D.N.Y. 
Mar. 29, 2012), in turn citing  Frontera Res. Azer. Corp. v. State Oil Co. of Azer. 
Republic, 582 F.3d 393, 401 (2d Cir. 2009) and Lehigh Valley Indus., Inc. v. Birenhaum, 
527 F.2d 87, 93 (2d Cir. 1975)).  “In light of that discretion, the Second Circuit has 
repeatedly affirmed denials of jurisdictional discovery where the plaintiffs failed to 
demonstrate a prima facie case for personal jurisdiction over the defendants.”  Id. (citing 
Best Van Lines, 490 F.3d at 255 (concluding that district court was “well within its 
discretion in declining to permit discovery because the plaintiff had not made out a 
prima facie case for jurisdiction”); Jazini v. Nissan Motor Co., 148 F.3d 181, 186 (2d Cir. 
1998) (“Since the Jazinis did not establish a prima facie case that the district court had 
jurisdiction over Nissan Japan, the district court did not err in denying discovery on that 
issue.”)).   
Under the circumstances, and because Plaintiff’s conclusory request for 
jurisdictional discovery appears to seek an unwarranted fishing expedition, Plaintiff’s 
request for jurisdictional discovery is denied.  
 b.  Fed. R. Civ. P. 12(b)(6) Motion 
  1. Standard of Review 
On a Fed. R. Civ. P. 12(b)(6) motion, the Court must accept “all factual 
allegations in the complaint as true, and draw[] all reasonable inferences in the plaintiff's 
favor." Holmes v. Grubman, 568 F.3d 329, 335 (2d Cir. 2009) (internal quotation marks 
omitted).  This tenet does not apply to legal conclusions. Ashcroft v. Iqbal, 556 U.S. 
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662, 678 (2009).  Similarly, “[t]hreadbare recitals of the elements of a cause of action, 
supported by mere conclusory statements ... are not entitled to the assumption of truth.” 
Id.; see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(stating that a court is 
“not bound to accept as true a legal conclusion couched as a factual allegation”).  
"To survive a motion to dismiss, a complaint must contain sufficient factual 
matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 556 
U.S. at 678 (quoting Twombly, 550 U.S. at 570). “[D]etermining whether a complaint 
states a plausible claim for relief ... [is] a context-specific task that requires the 
reviewing court to draw on its judicial experience and common sense.... [W]here the 
well-pleaded facts do not permit the court to infer more than the mere possibility of 
misconduct, the complaint has alleged–but it has not show[n]–that the pleader is entitled 
to relief.” Id., at 679 (cleaned up).  "While Twombly does not require heightened fact 
pleading of specifics, it does require enough facts to ‘nudge [Plaintiff’s] claims across 
the line from conceivable to plausible.'" In re Elevator Antitrust Litig., 502 F.3d 47, 50 
(2d Cir. 2007)(quoting Twombly, 550 U.S. at 570). A claim will only have “facial 
plausibility when the plaintiff pleads factual content that allows the court to draw the 
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 
U.S. at 678.  This pleading standard "demands more than an unadorned, the-defendant-
unlawfully-harmed me accusation" in order to withstand scrutiny. Id. (citing Twombly, 
550 U.S. at 555).  “Where a complaint pleads facts that are ‘merely consistent with’ a 
defendant's liability, it ‘stops short of the line between possibility and plausibility of 
‘entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557).  
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Generally, “[i]n adjudicating a Rule 12(b)(6) motion, a district court must confine 
its consideration to facts stated on the face of the complaint, in documents appended to 
the complaint or incorporated in the complaint by reference, and to matters of which 
judicial notice may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d 
Cir. 1999) (internal quotation marks and citation omitted).  When a plaintiff proceeds pro 
se, however, the Court may consider “materials outside the complaint to the extent that 
they are consistent with the allegations in the complaint,” Gayot v. Perez, No. 16-CV-
8871 (KMK), 2018 WL 6725331, at *4 (S.D.N.Y. Dec. 21, 2018), including “factual 
allegations made by a pro se party in his papers opposing the motion.” Walker v. Schult, 
717 F.3d 119, 122 n.1 (2d Cir. 2013).  
“T he Court is obligated to construe pro se pleadings broadly and liberally, 
interpreting them so as to raise the strongest arguments they suggest.” Daniels v. 
Kijakazi, No. 22-CV-6297 (LJL), 2023 WL 3901987, at *3 (S.D.N.Y. June 8, 2023)(citing 
Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007); Weixel v. Bd. of Educ. of City of New 
York, 287 F.3d 138, 146 (2d Cir. 2002); Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 
2000)). “However, this does not relieve pro se plaintiffs of the requirement that they 
plead enough facts to ‘nudg[e] their claims across the line from conceivable to 
plausible.’” Id. (quoting Twombly, 550 U.S. at 570). “Nor does it relieve them of the 
obligation to otherwise comply with the pleading standards set forth by the Federal 
Rules of Civil Procedure.” Id. (citing Saidin v. N.Y.C. Dep't of Educ., 498 F. Supp. 2d 
683, 687 (S.D.N.Y. 2007)).  
A court “may not properly dismiss a [claim] that states a plausible version of the 
events merely because the court finds that a different version is more plausible.”  
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Anderson News, 680 F.3d at 185.  “The role of the court at this stage of the proceedings 
is . . . merely to determine whether the plaintiff's factual allegations are sufficient to 
allow the case to proceed.”  Doe v. Columbia Univ., 831 F.3d 46, 59 (2d Cir. 2016). 
2.  Analysis 
 
Individual Defendants 
 
 A ll claims against Turnbull, Stroud, and LeDuigou are dismissed without 
prejudice because the Court lacks personal jurisdiction over them. 
Count I 
 
In Count I, Plaintiff alleges that Defendants violated New York Human Rights 
Law (“NYHRL”) § 296(15) by denying him employment based on his 1991 felony 
conviction and without first undertaking a proper evaluation under Article 23-A of the 
N.Y. Correction Law. See FAC ¶¶ 63-64, 66.  NYHRL § 296(15) makes it unlawful to 
deny employment to an individual “by reason of his having been convicted of one or 
more criminal offenses ... when such denial is in violation of the provisions of [Article 23-
A] of the N.Y. Correction Law.” N.Y. Exec. Law § 296(15).  Article 23-A provides that 
employment shall not be “denied or acted upon adversely by reason of the individual's 
having been previously convicted of one or more criminal offenses” unless: “(1) there is 
a direct relationship between one or more of the previous criminal offenses and the . . . 
employment sought or held by the individual; or (2) the . . .  granting or continuation of 
the employment would involve an unreasonable risk to property or to the safety or 
welfare of specific individuals or the general public.” N.Y. Correct. Law § 752.  
Courts consider NYSHRL employment discrimination claims using the McDonnell 
Douglas three-part burden shifting framework used in Title VII cases. Franklin v. Whole 
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Foods Mkt. Grp., Inc., No. 20-CV-4935 (VEC), 2022 WL 256460, at *4 (S.D.N.Y. Jan. 
26, 2022)(citing Walsh v. New York City Hous. Auth., 828 F.3d 70, 74–75 (2d Cir. 
2016)); see id. (“Courts apply this framework to NYSHRL criminal history discrimination 
claims even though criminal history is not a protected category under Title VII.”) 
(collecting cases).  Pursuant to the McDonnell Douglas burden shifting framework, a 
plaintiff must first present a prima facie case of discrimination “by establishing (1) that 
he belongs to a protected class; (2) that he is qualified or competent to perform the job; 
(3) that he suffered an adverse employment action; and (4) that the adverse 
employment action occurred under circumstances giving rise to an inference of 
discrimination.” Id. (citing Abrams v. Dep't of Pub. Safety, 764 F.3d 244, 252 (2d Cir. 
2014), in turn citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973)). 
Courts in the Second Circuit “have characterized the evidence necessary to satisfy” a 
prima facie case under the McDonnell Douglas framework “as ‘minimal’ and ‘de 
minimis.’” Zimmerman v. Assocs. First Capital Corp., 251 F.3d 376, 381 (2d Cir. 2001) 
(quoting Byrnie v. Town of Cromwell, 243 F.3d 93, 101 (2d Cir. 2001)). “However, ‘[t]o 
survive a motion to dismiss, the plaintiff does not need to prove discrimination, or even 
allege facts establishing every element of the McDonnell Douglas prima facie case, but 
the facts alleged must give ‘plausible support to the reduced requirements’ of the prima 
facie case.’” Ingram v. Nassau Health Care Corp., No. 17CV05556JMASIL, 2019 WL 
1332857, at *3 (E.D.N.Y. Mar. 25, 2019)(quoting Thomson v. Odyssey House, No. 14-
CV-3857, 2015 WL 5561209, at *5 (E.D.N.Y. Sept. 21, 2015), in turn quoting Littlejohn 
v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015), and citing Dawson v. New York 
City Transit Auth., 624 Fed. App'x 763, 767 (2d Cir. 2015) (“We apply [the Littlejohn] 
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standard in reviewing the district court's dismissal of [p]laintiff's ADA complaint.”)). 
“Thus, while a plaintiff need not allege specific facts establishing all the elements of a 
prima facie case under McDonnell Douglas, these elements can still ‘provide an outline 
of what is necessary to render [a plaintiff's employment discrimination] claims for relief 
plausible.’” Id. (quoting Kelly v. N.Y. State Office of Mental Health, 200 F. Supp. 3d 378, 
389 (E.D.N.Y. Aug. 9, 2016)(additional citation omitted)); see Nnebe v. City of New 
York, No. 22-CIV-3860 (VEC/SLC), 2023 WL 2393920, at *9 (S.D.N.Y. Jan. 30, 2023), 
report and recommendation adopted, No. 22-CV-3860 (VEC), 2023 WL 2088526 
(S.D.N.Y. Feb. 17, 2023)(“Although Nnebe need not plead a prima facie case of 
discrimination to survive a motion to dismiss, she ‘must allege sufficient facts showing 
that she is entitled to relief.’”)(quoting Bermudez v. City of New York, 783 F. Supp. 2d 
560, 575 (S.D.N.Y. 2011)). 
The Court starts with whether Plaintiff has pleaded a plausible claim of 
discrimination under § 296(15) against Cameca, the entity with which Plaintiff applied 
for the NFSE position.  The allegations in the FAC indicate that that Plaintiff belongs to 
the protected class in that he has a 1991 felony conviction that Cameca representatives 
discovered, and that he is qualified to perform the NFSE position by virtue of his college 
degrees in electronics and electrical engineering, see FAC ¶¶ 14-15, his six (6) years of 
experience as a Service Engineer, id. ¶ 15, and by the fact that he was offered the 
NFSE position after interviewing for it.  Id. ¶¶ 13, 17-18, 47-48, 51.  
By virtue of Plaintiff’s allegations that Defendants violated NYHRL § 296(15) by 
denying him employment based on his 1991 felony conviction, Plaintiff effectively 
alleges a discriminatory failure-to-hire claim.  “To make out a failure-to-hire claim under . 
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. . the NYSHRL, a plaintiff must demonstrate that: (1) []he is a member of a protected 
class; (2) []he applied and was qualified for a job for which the employer was seeking 
applicants; (3) []he was rejected despite being qualified; and (4) after this rejection, the 
position remained open and the employer continued to seek applicants with plaintiff's 
qualifications.” Hughes v. Twenty-First Century Fox, Inc., 304 F. Supp. 3d 429, 445 
(S.D.N.Y. 2018)(citing McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. 1817; Petrosino v. 
Bell Atl., 385 F.3d 210, 226 (2d Cir. 2004)); see Hughes v. Twenty-First Century Fox, 
Inc., 304 F. Supp. 3d 429, 445 (S.D.N.Y. 2018)(failure to hire an otherwise competent 
applicant can, in certain circumstances, amount to an adverse employment action). 
 The questions presented here are whether Cameca failed to hire Plaintiff for the 
NFSE position; if so, whether this adverse employment action occurred under 
circumstances giving rise to an inference of discrimination; and whether the position 
remained open and the employer continued to seek applicants with Plaintiff's 
qualifications after Plaintiff was rejected for the position.  Examining these questions in 
the context of the allegations in the FAC and Plaintiff’s memorandum of law, Plaintiff 
presents a plausible claim of discrimination – although just barely so. 
The allegations in the FAC indicate that after Cameca initially rescinded its 
employment offer after learning of Plaintiff’s 1991 felony conviction, it reinstated that 
offer within twenty-four hours.  Furthermore, Plaintiff’s allegations indicate that Cameca 
representatives contacted Plaintiff about the reinstated employment offer, attempted to 
address any concerns he had in fulfilling the position, and indicated that Cameca was 
moving forward with Plaintiff’s commencement on August 10, 2020. The Count I claim 
sounds as if it is based on a “speculative future adverse action” theory similar to that 
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rejected by the Seventh Circuit. See Aziyz, 2022 WL 354444, at *2 (“speculative future 
adverse action is not adverse action”).   
However, accepting as true (as the Court must on this motion) that Cameca 
representatives did not provide Plaintiff the necessary apparatuses to participate in the 
orientation and effectively perform the NFSE position, it is a reasonable inference 
(although an extremely weak one) that Cameca did not intend to go forward with the 
position in good faith because of Plaintiff’s prior felony conviction. Unlike in his case in 
Wisconsin, Plaintiff does not assert here that he emailed Turnbull on August 10 
rejecting the employment offer, and the parties have not provided the Court with 
Plaintiff’s amended complaint in that action.  While perhaps artful pleading by Plaintiff to 
avoid the fate of the Wisconsin action, the Court is not prepared at this time to take 
judicial notice of Plaintiff’s allegations in the Wisconsin case inasmuch as the Wisconsin 
pleading has not been provided to the Court. Cf. Rothman v. Gregor, 220 F.3d 81, 92 
(2d Cir. 2000)(“The Appellants submitted a copy of the Midway complaint to the District 
Court in their papers in opposition to the motion to dismiss. GT and its officers do not 
dispute the authenticity of the Midway complaint and further agree that the Midway 
complaint was filed on or after January 22, 1999. Pursuant to Fed. R. Evid. 201(b), we 
take judicial notice of the Midway complaint as a public record.”); Diaz v. Johnson & 
Johnson, 2021 WL 3087633, at *5 n.1 (W.D.N.Y. July 22, 2021) (taking judicial notice of 
complaint and request for and entry of dismissal of action filed in California court, which 
were attached to the defendant's motion to dismiss pursuant to Rule 12(b)(6)); 5–Star 
Management, Inc. v. Rogers, 940 F. Supp. 512, 518 (E.D.N.Y.1996) (taking judicial 
notice of pleadings in other lawsuits attached to defendants' motion to dismiss).  
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Further, Plaintiff asserts in a footnote in his memorandum of law: “In this earlier 
suit, Plaintiff’s allegations were a grave misrepresentation of the facts, and the district 
court used Plaintiff’s allegation against him to grant Defendants [sic] motion to dismiss 
under Rule 12(b)(6). However, [t]he district court did not prove true any allegations of 
the Plaintiff in the granting of Defendants’ motion to dismiss. Plaintiff recant [sic] and 
separate [sic] himself from any allegations that is [sic] not supported by this First 
Amended Complaint in this Court.”  Pl. Opp. Mem. L., Dkt. No.  33-1 (“Pl. MOL”), at 1, n. 
1. The Court fails to see how Plaintiff’s allegations in the prior action “were a grave 
misrepresentation of the facts” inasmuch as Plaintiff seemingly made these allegations. 
Moreover, the District Court in Wisconsin did not need to “prove true” Plaintiff’s 
allegations but rather accepted those allegations as true for purposes of the motion.  
Nevertheless, the Court will decide the instant motion on the pleadings in this case.  
On the current record, the Court is left with the allegations that LeDuigou was 
angry because Plaintiff did not reveal his criminal history, “Defendants conceded their 
action [sic] were discriminatory,” Pl. MOL at 1, LeDuigou refused to meet with Plaintiff to 
discuss his concerns about rumors that some Cameca employees did not want to work 
with Plaintiff because of his felony conviction, and the apparatuses necessary for 
Plaintiff to participate in the orientation and fulfill his duties did not show up at his 
residence by August 10, 2020 as promised by LeDuigou and Stroud.  Despite not 
alleging that the employer continued to seek applicants for the NFSE position, that is a 
reasonable inference here. See 'Aziyz, 2021 WL 3471583, at *2 (After Plaintiff indicated 
that “he did not intend to join Cameca because it had not assured him that he would not 
be a target of retaliation or that the job offer was in good faith, . . . Cameca then 
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allegedly filled the Field Service Engineer job with someone who was sufficiently 
younger than” Aziyz.”). In the end, Plaintiff has stated a plausible claim of discrimination 
under NYHRL § 296(15) against Cameca. 
Defendants dispute whether Plaintiff may bring a NYHRL § 296(15) claim against 
Ametek because that entity was not Plaintiff’s direct prospective employer. “In Griffin v. 
Sirva, Inc., the New York Court of Appeals adopted a four-factor test to determine 
whether an entity is an individual's direct employer.” Franklin, 2022 WL 256460, at *3 
(citing Griffin v. Sirva, Inc., 29 N.Y.3d 174 (2017)).  The four factors are: “(1) the 
selection and engagement of the servant; (2) the payment of salary or wages; (3) the 
power of dismissal; and (4) the power of control of the servant's conduct.” Griffin, 29 
N.Y. 3d at 186 (quoting State Div. of Hum. Rts. v. GTE Corp., 109 A.D.2d 1082, 1083 
(4th Dep't 1985) (internal quotation marks omitted)). The Griffin Court stated that the 
“greatest emphasis [is] placed on the alleged employer's power ‘to order and control’ the 
employee in his or her performance of work.” Griffin, 29 N.Y.3d at 186–87.    
Plaintiff argues that “Ametek would have controlled every aspect of Plaintiff’s 
employment including but not limited to, hiring and termination of Plaintiff, the Work 
Opportunity Tax Credit, the Employee Information Form, Direct Deposit (salary), Offer 
Letters, SharePoint, New Employee Orientation, and the Code of Ethics and Business 
Conduct (Ametek Handbook).” Pl. MOL at 17-18 (citing FAC at ¶¶ 44-47, 56-59).  
Although Plaintiff’s allegations are largely conclusory, he has alleged enough to 
plausibly establish that Ametek would have had sufficient control over Cameca’s 
employees that Ametek could be considered Plaintiff’s employer alongside Cameca.  
See Franklin, 2022 WL 256460, at *4 (“In short, while he may have a very tough row to 
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hoe on this point at the summary judgment stage, Franklin has pled adequately, 
although just barely, that Amazon and Whole Foods were prospective employers.”).  
Defendants’ motion on this ground is denied. 
Count II 
 
In Count II, Plaintiff alleges a breach of contract clam arising from his job offer.  
Plaintiff asserts, essentially, that Cameca’s job offer, which he accepted and relied 
upon, required Cameca to provide him by August 10, 2020 the apparatuses necessary 
to participate in his orientation and perform the NFSE job functions.  See FAC ¶¶ 68-
88.  But, he contends, Cameca breached the agreement by failing to provide the 
apparatuses by this time, thereby denying Plaintiff employment. Id.  Even accepting as 
true all of Plaintiff’s allegations, he fails to present a legally viable breach of contract 
claim in Count II. 
“Under New York law, for a successful breach of contract claim, a plaintiff 
must show (1) the formation of an agreement, (2) performance by one party, (3) 
breach of the agreement by the other, and (4) damages.” Anders v. Verizon 
Commc'ns Inc., No. 16-CV-5654 (VSB), 2018 WL 2727883, at *8 (S.D.N.Y. June 5, 
2018)(citing Berman v. Sugo LLC, 580 F. Supp. 2d 191, 202 (S.D.N.Y. 2008); see 
Icahn v. Lions Gate Ent. Corp., 929 N.Y.S.2d 200 (N.Y. Sup. Ct. 2011)(Under New York 
law, a claim for breach of contract requires: (i) the existence of a contract; (ii) breach by 
the other party; and (iii) damages suffered as a result of the breach.). While Plaintiff’s 
allegations plausibly indicate that Plaintiff and Cameca entered an employment 
agreement, these same allegations are insufficient to establish an actionable breach of 
contract claim.  
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“A sufficient pleading for breach of contract must, ‘at a minimum, allege the 
terms of the contract, each element of the alleged breach and the resultant 
damages in a plain and simple fashion.’” Warren v. John Wiley & Sons, Inc., 952 F. 
Supp. 2d 610, 624 (S.D.N.Y. 2013) (quoting Zaro Licensing, Inc. v. Cinmar, Inc., 
779 F. Supp. 276, 286 (S.D.N.Y. 1991)).  “New York courts require plaintiffs to 
‘plead the provisions of the contract upon which the claim is based’—in other words, 
‘a complaint in a breach of contract action must set forth the terms of the agreement 
upon which liability is predicated.’” Anders, 2018 WL 2727883, at *8  (quoting 
Window Headquarters, Inc. v. MAI Basic Four, Inc., No. 91 Civ. 1816 (MBM), 1993 
WL 312899, at *3 (S.D.N.Y. Aug. 12, 1993), and citing Chrysler Capital Corp. v. 
Hilltop Egg Farms, Inc., 514 N.Y.S.2d 1002, 1003 (3d Dep't 1987) (“In an action to 
recover damages for breach of contract, the complaint must ... set forth the terms of 
the agreement upon which liability is predicated, either by express reference or by 
attaching a copy of the contract.”)). 
Plaintiff alleges Cameca “declared in writing to [him]” a job offer, which he 
accepted by signing and returning the job offer. FAC , ¶¶ 69, 71, 76.  He further alleges 
he was to receive certain benefits, such as a salary, vehicle, and paid time off . Id. 
at ¶ 74.  Critically, however, he does not allege he was offered employment for any fixed 
duration.  As such, the employment offer was for at-will employment. See Brady v. 
Calyon Sec. (USA), 406 F. Supp. 2d 307, 314 (S.D.N.Y. 2005)(because plaintiff 
made no allegation he had a contract specifying a time period for his employment, 
the court presumed him to be an at-will employee for purposes of Rule 12(b)(6)); see 
also Minovici v. Belkin BV, 971 N.Y.S.2d 103, 108 (NY App. Div. 2013)(“New York 
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adheres to the traditional common-law rule that absent an agreement establishing a 
fixed duration, an employment relationship is presumed to be a hiring at will, terminable 
at any time by either party.”)(internal quotation marks and citations omitted); Myers v. 
Coradian Corp., 459 N.Y.S.2d 929, 930 (N.Y. App. Div. 1983)(“Nearly a century ago the 
Court of Appeals ruled that without some form of contractual agreement establishing a 
durational period, employment is terminable at will by either the employer or the 
employee, and neither has a cause of action against the other based on the termination 
of employment. That principle is still being applied by the courts of this State.”)(citations 
omitted). “When there is an at-will employment relationship, the employer may 
unilaterally alter the terms of employment, and the employee may end the employment 
if the new terms are unacceptable.” Minovici, 971 N.Y.S.2d at 108 (citations omitted)).   
Even assuming Plaintiff failed to timely receive the apparatuses necessary for 
him to participate in orientation and perform the NFSE’s functions, the employer was 
free to unilaterally alter the terms of employment.  The failure to timely provide Plaintiff 
with the agreed-upon apparatuses, even if done because of Plaintiff’s criminal history, 
does not amount to an actionable breach of contract in this prospective at-will 
employment situation. Accordingly, Defendants’ motion to dismiss Count II is granted.  
Plaintiff is free to move for leave to amend this cause of action if he can assert in good 
faith facts indicating that the prospective employment relationship was for a fixed 
duration, or some other basis in the purported contract limiting the employer’s discretion 
to change the terms of the agreed-upon employment relationship. Cf. De Petris v. Union 
Settlement Assoc., 86 N.Y.2d 406, 633 N.Y.S.2d 274, 276, 657 N.E.2d 269 (N.Y. 
1995)(“An employee may recover ... by establishing that the employer made the 
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employee aware of its express written policy limiting its right of discharge and that the 
employee detrimentally relied on that policy in accepting the employment.”).  
Count III 
In Count III, Plaintiff asserts a claim of promissory estoppel. See FAC ¶¶ 89-104. 
He contends that Cameca “declared in writing” a job offer to him, id. ¶ 90, and 
“Defendants represented, promised and implied in writing that Plaintiff would be 
provided with the required” apparatuses to participate in his orientation and perform the 
NFSE functions. Id. ¶ 91. He alleges that “Defendants declared the job offer, and made 
these representations, in such a manner as to manifest its [sic] willingness to enter into 
a contract with Plaintiff,” id., ¶ 93, that he “assented to Defendants [sic] job offer and 
promises when he signed and returned the job offer, and satisfactory [sic] 
passed/completed all the contingencies outlined in the job offer,” id., ¶ 94, but that: 
Defendants failed in their promise when they breached the at-will 
relationship in the commission of a statutory [sic] prohibited act. 
Defendants’ act of denying Plaintiff the required apparatus to report to 
orientation, work, and the opportunity to satisfactory [sic] perform is [sic] 
duty as the Northeast Field Service Engineer, solely based on Plaintiff 
having a criminal history, denied Plaintiff employment in violation of 
NYSHRL, and Tort Laws.  
 
Id. ¶ 95. 
 
Under New York law, promissory estoppel requires (1) a clear and unambiguous 
promise; (2) reasonable and foreseeable reliance by the party to whom the promise is 
made, and (3) an injury sustained in reliance on the promise. Haier Am. Trading, LLC, 
Co., No. 1:17-CV-921 (TJM/CFH), 2018 WL 4288617, at *17 (N.D.N.Y. Sept. 7, 
2018)(citations omitted).  As Defendants argue, it is unclear what promise Defendants 
failed to live up to.  As drafted, the claim could be based on Cameca’s promise of 
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employment as contained in the job offer, see FAC ¶ 27, Stroud’s promise to provide 
Plaintiff with the apparatuses necessary to go forward with the NFSE position, see FAC 
¶ 31, LeDuigou’s promise to provide Plaintiff with these apparatuses, see FAC ¶ 32, or 
a combination of all these promises.  If it is the latter, which it appears to be, then the 
claim could be dismissed as duplicative of the claims set forth in Counts I and II.  
However, the Court need not base its determination on the ambiguity in Plaintiff’s 
pleading because there are other reasons to dismiss Count III.  
Promissory estoppel is only applicable in the absence of an enforceable contract. 
Doe v. Syracuse Univ., No. 5:19-CV-1467 (TJM/ATB), 2020 WL 2513691, at *12 
(N.D.N.Y. May 15, 2020). Here, the Court finds the existence of a contract, but 
concludes that Plaintiff has not sufficiently alleged that a breach occurred. Count III may 
be dismissed on this basis.  
 Further, “since the plaintiff was offered only at-will employment, []he cannot 
establish reasonable reliance, a necessary element to recover damages on theories of 
fraudulent misrepresentation, negligent misrepresentation, and promissory estoppel.” 
Marino v. Oakwood Care Ctr., 774 N.Y.S.2d 562, 563 (N.Y. App. Div. 2004)(collecting 
cases); see also Guido v. Orange Reg'l Med. Ctr., 958 N.Y.S.2d 195, 199 (N.Y. App. 
Div. 2013)(“Where, as here, a plaintiff is offered only at-will employment, he or she will 
generally be unable to establish reasonable reliance on a prospective employer's 
representations.”); Blodgett v. Siemens Indus., Inc., No. 13-CV-3194 (JMAAKT, 2018 
WL 385477, at *5 (E.D.N.Y. Jan. 11, 2018) (“It is well-established that at-will employees 
cannot reasonably rely on representations supposedly promising them continued 
employment in the future.”); Annese v. Sodexo, Inc., No. 5:12-CV-412 GLS/TWD, 2012 
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WL 2571261, at *4 (N.D.N.Y. July 2, 2012) (“an at-will employee can almost never 
establish that he reasonably relied on a representation of his employer.”). Count III may 
be dismissed on this basis as well. 
Based on these considerations, Plaintiff fails to state an actionable promissory 
estoppel claim.  The Court grants Defendants’ motion in this respect and dismisses 
Count III.  Because it does not appear that Plaintiff could amend his pleading to avoid 
this conclusion, Count III is dismissed with prejudice.  
Count IV  
In Count IV, Plaintiff brings a breach of contract claim asserting, essentially, that 
when Stroud advised LeDuigou about Plaintiff’s 1991 criminal conviction, she breached 
the terms of the Code causing Plaintiff injuries and damage. See FAC, ¶¶ 105-129.  As 
an initial matter, Defendants argue that even if the Code can be deemed an enforceable 
contract (which Defendants argue it cannot), it was between Plaintiff and Cameca – not 
between Plaintiff and Ametek or the Individual Defendants.  See Def. Br. at 19.  Plaintiff 
does not address this specific issue, see Pl. Br. at 23-26, and the FAC is relatively 
ambiguous on this issue.  The FCA alleges that Ametek promulgated the Code, see 
FAC ¶¶ 107, 110, 120-121; that the Code was issued to Plaintiff through Cameca’s 
Human Resource Department, FAC ¶¶ 108, 115, 122; that Stroud breached the Code, 
FAC ¶¶ 128-129; and that in doing so Stroud acted in contravention of an unidentified 
entities’ contract. See, e.g.,  FAC ¶ 123 (“Stroud breached its [sic] contract with Plaintiff 
by its [sic] failure to follow its [sic] own practices, policies and procedures with regard to 
the terms and conditions of Plaintiff's employment as set forth herein.”), FAC ¶ 124 
(“Stroud intentionally, willfully and/or maliciously breached its [sic] contract with 
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Plaintiff.”), FAC ¶ 125 (“Defendants expected and/or should have reasonably expected 
Plaintiff to rely on the aforementioned policies and procedures as a commitment by 
Defendants to follow and abide by them.”).  Even liberally construing the allegations in 
the FAC, and given Plaintiff’s lack of opposition on the issue, the Court will deem the 
Code to be between Plaintiff and Cameca - Plaintiff’s prospective employer that issued 
Plaintiff the Code.  The Court will consider any actions by Stroud to have been taken on 
Cameca’s behalf.  
To establish that an employment policy creates a binding contract, an employee 
must prove that (1) an express written policy limiting the employer's right of discharge 
exists, (2) the employer (or one of its authorized representatives) made the employee 
aware of this policy, and (3) the employee detrimentally relied on the policy in accepting 
or continuing employment.  Baron v. Port Auth. of New York & New Jersey, 271 F.3d 
81, 85 (2d Cir. 2001) (affirming dismissal where employment manuals did not limit 
employer’s right of discharge).  “The New York Court of Appeals has admonished that 
this is a difficult pleading burden, and that routinely issued employee manuals, 
handbooks and policy statements should not lightly be converted into binding 
employment agreements.” Id. (cleaned up)(emphasis in Baron). “[S]everal rules have 
been developed by New York courts to honor this admonition.” Id. at 85, n. 2.  “’Mere 
existence of a written policy, without the additional elements ..., does not limit an 
employer's right to discharge an at-will employee or give rise to a legally enforceable 
claim by the employee against the employer.’” Id. (quoting De Petris v. Union 
Settlement Ass'n, 86 N.Y.2d 406, 410, 633 N.Y.S.2d 274, 657 N.E.2d 269 (N.Y. 1995)).  
“Similarly, ‘oral assurances with only general provisions in the employee manual [are 
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in]sufficient’ to create an implied employment contract.” Id. (quoting Skelly v. Visiting 
Nurse Assoc. of Capital Region Inc., 210 A.D.2d 683, 619 N.Y.S.2d 879, 881 (N.Y. App. 
Div. 1994) (citation omitted)).  “However, ‘[p]olicies in a personnel manual specifying the 
employer's practices with respect to the employment relationship ... may become a part 
of the employment contract’ where the employee establishes an express written policy 
regarding the conduct at issue, the employer made the employee aware of the policy, 
and the employee detrimentally relied on the policy.” Gordon v. City of New York, 14-
CIV-6115 (JPO/JCF), 2017 WL 908198, at *3 (S.D.N.Y. Mar. 7, 2017)(quoting Baron, 
271 F.3d at  85)(additional citations omitted).  
Defendants argue that Plaintiff does not allege facts establishing that Cameca or 
Ametek intended the Code to constitute an enforceable contract.  They contend that the 
“[m]ere existence of a written policy … does not limit an employer's right to discharge an 
at-will employee or give rise to a legally enforceable claim by the employee against the 
employer.” De Petris, 86 N.Y. 2d at 410.  Plaintiff counters that he is “not alleging the 
Code limits an employer’s right to discharge an at-will employee,” but rather that “New 
York State laws prohibits discrimination making it illegal to terminate against an 
employee on the basis of his criminal history. . . .  Thus, the at-will employment status is 
not applicable in this cause of action, and this Court should consider Plaintiff’s 
handbook constituting a binding contract.” Pl. Br. at 23-24.   
Plaintiff’s argument is without merit. He improperly conflates New York State 
antidiscrimination law with the impact that at-will employment has on the ability to 
establish an actionable breach of contract claim based on representations in an 
employee manual governing at-will employees. While it is true that New York’s 
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antidiscrimination laws apply to at-will employees, these laws do not circumvent the 
considerations impacting whether an employee manual gives rise to a legally 
enforceable contract involving an at-will prospective employee. See Baron, 271 F.3d at 
85, n. 2; see also Minovici, 971 N.Y.S.2d at 108; Marino, 774 N.Y.S.2d at 563; Guido, 
958 N.Y.S.2d at 199; Blodgett, 2018 WL 385477, at *5; Annese, 2012 WL 2571261, at 
*4.  Be that as it may, however, Plaintiff presents allegations plausibly establishing that 
he relied on the terms of the Code in, inter alia, resigning from his then-current 
employment thereby causing him detriment.  This is sufficient to state a plausible claim 
that the Code constitutes an enforceable contract. See Gordon, 2017 WL 908198, at *3.  
Even accepting this proposition, however, Plaintiff fails to present a plausible 
claim that Stroud breached this contract by disclosing Plaintiff’s criminal history to 
LeDuigou. The Code provides in pertinent part: “[E]xcept to the extent legally required, 
[hiring data], as well as confidential employee data, should not be disclosed to people 
inside or outside the company who do not have a legitimate work-related need to know.” 
FAC at ¶ 110.  As Defendants argue, Stroud disclosed Plaintiff’s a felony conviction which 
is not “confidential” since it is public record. See Aziyz v. Tremble, No. CIV A 5:03CV-412 
HL, 2008 WL 282738, at *1 (M.D. Ga. Jan. 31, 2008) (referencing plaintiff’s imprisonment in 
the Department of Corrections).  Further, because LeDuigou was to be Plaintiff’s manager 
and direct supervisor, he had a legitimate, work-related need to know about Plaintiff’s 
criminal history. Plaintiffs’ arguments to the contrary are without merit. 
The fact that Stroud discovered Plaintiff’s criminal history during the hiring 
process does not, by itself, make it confidential hiring data that could not be disclosed to 
anyone without a legitimate right to know, as Plaintiff argues. See Pl. Br. at 24-25 (“The 
issue here is about the information Stroud acquired during the hiring process of Plaintiff, 
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despite what the information was, which made it Plaintiff’s hiring data in the possession 
of Cameca’s H.R. department. Thus, Plaintiff’s hire [sic] data is employee’s confidential 
data, which Stroud should have not disclosed to anyone who does not have a legitimate 
work-related need to know.”).  As indicated, LeDuigou was Plaintiff’s prospective manager 
and thus had a legitimate right to know of this publicly available information.  
Further, the provisions of the FCRA did not prevent Stroud from disclosing Plaintiff’s 
1991 felony conviction to LeDuigou, as Plaintiff argues. See id. at 26 (“The FCRA’s seven-
year lookback period limits how long adverse information can be report [sic] and used 
for hiring decisions for applications in New York.  FCRA is a federal law which all 
employers must follow. . . .  Despite [sic] Plaintiff is not alleging a claim under [FCRA], 
[FCRA] is a federal law which compel [sic] Defendants to follow.  [FCRA] has reasoned 
no employer is permitted to report adverse information over seven-years [old] and use it 
for hiring purposes then it is reasonable to believe LeDuigou did not have a legitimate 
work-related need to know about Plaintiff’s 30-yr old felony conviction.”). The FCRA 
provides in pertinent part that “no consumer reporting agency may make any consumer 
report containing any of the following items of information: . . . (5) Any other adverse 
item of information, other than records of convictions of crimes which antedates the 
report by more than seven years.” 15 U.S.C. § 1681c(a)(5).  Even accepting the 
allegations in the FAC as true, Stroud was neither acting as a consumer reporting 
agency, nor disclosed Plaintiff’s 1991 felony conviction based on a consumer reporting 
agency’s report.  Rather, her information purportedly was based on Stroud’s own 
research. Thus, the FCRA is inapplicable.  That being the case, the FCRA’s seven-year 
look back period is inapplicable.   
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For these reasons, Defendants’ motion to dismiss Count IV is granted.  Because 
it does not appear that Plaintiff could amend his pleading to avoid this conclusion, and 
because the Wisconsin District Court dismissed Plaintiff’s FCRA claim with prejudice, 
Count IV is dismissed with prejudice.  
Count V 
 In Count V, Plaintiff contends that Defendants breached the implied covenant of 
good faith and fair dealing in Plaintiff’s contract with the Defendants by failing to provide 
“all the required apparatus [sic] specifically stated in the job offer and as promised 
rendered the performance of the contract impossible. In addition, Defendants [sic] acts 
prevented any accomplished [sic] purpose of the job offer.” FAC ¶ 135; see id. ¶ 136 
(“Defendants [sic] breach of implied covenant is their failure to provide all the required 
apparatus [sic] for plaintiff to participating [sic] in orientation on August 10, 2020, and 
satisfactory [sic] performing his duties as the [F]ield Service Engineer.”). 
“‘Under New York law, parties to an express contract are bound by an 
implied duty of good faith, but breach of that duty is a breach of the 
underlying contract.’” Harris v. Provident Life & Accident Ins. Co., 310 F.3d 
73, 80 (2d Cir. 2002) (quoting Fasolino Foods Co. v. Banca Nazionale del 
Lavoro, 961 F.2d 1052, 1056 (2d Cir. 1992)). “New York law ... does not 
recognize a separate cause of action for breach of the implied covenant of 
good faith and fair dealing when a breach of contract claim, based upon the 
same facts, is also pled.” Id. at 81. Thus, “when a complaint alleges both a 
breach of contract and a breach of the implied covenant of good faith and 
fair dealing based on the same facts, the latter claim should be dismissed 
as redundant.” Cruz v. Fxdirectdealer, LLC, 720 F.3d 115, 125 (2d Cir. 
2013). 
Converse v. State Farm Fire & Cas. Co., No. 5:21-CV-457 (TJM/ATB), 2022 WL 
976891, at *2 (N.D.N.Y. Mar. 31, 2022). 
  Plaintiff’s claim for “breach of good faith and fair dealings” is based on the same 
allegations as his breach of contract claims in Counts II and IV.  Because the claim is 
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based on the same alleged facts as Plaintiff’s contract claims, it is duplicative and must 
be dismissed.   
Accordingly, Defendants’ motion in this regard is granted and Count V is 
dismissed.  Because it does not appear that Plaintiff could amend his pleading to avoid 
this conclusion, Count V is dismissed with prejudice.  
Counts VI and VII 
 In Count VI, Plaintiff alleges that Turnbull made false representations and 
promises to him when he communicated with Turnbull “via phone and email, specifically 
to ask about rumors regarding many employees not wanting to work with Plaintiff 
because of his criminal history.” FAC ¶ 141. Plaintiff contends that Turnbull’s 
representations that the rumors were unfounded, that Cameca was excited about 
Plaintiff joining the team, that Ametek maintains a working environment that values 
diversity and protects the right of each employee to fair and equitable treatment, and 
that any actions that contradict this policy would be subject to corrective action were 
untrue.  Plaintiff maintains: 
Defendants intentionally concealed material facts from Plaintiff, including, 
without limitation, that his reinstatement [sic] job was merely pretexted [sic] 
to establish an at-will relationship only to deny Plaintiff the required 
apparatus needed for him to perform his job. Defendants concealed their 
malice [sic] motives, to deny plaintiff employment solely due to his criminal 
conviction, a statutory [sic] prohibited act. These representations, promises 
and material omissions were made by Turnbull (on behalf of all Defendants) 
on or around August 7, 2020. 
 
FAC ¶ 141.  Plaintiff contends that at the time Turnbull made these “false 
representations and promises of assurances, the Defendants was [sic] in fact engaged 
in stopping all opportunities for Plaintiff to satisfactory [sic] perform his duties as the 
Northeast Field Service Engineer, solely due to his criminal conviction.” Id. ¶ 143.  
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Plaintiff contends that “Turnbull knew that his representations and promises of 
assurances were false, made them without belief in their veracity, without intention of 
fulfilling them and/or with reckless disregard as to their truth,” and that Turnbull made 
these false representations, promises and omissions, “and otherwise concealed 
material facts, with the intent to induce Plaintiff to accept a position of employment with 
them.” Id. ¶ 144. Plaintiff contends that he relied on Turnbull’s false representations and 
promises to his detriment, including resigning from his then-current employment position 
and foregoing other employment opportunities. Id. ¶ 146.  Plaintiff asserts that his 
reliance on Turnbull’s representations “was reasonable under the circumstances, as 
Turnbull had concealed the true facts from him, and proof of their [sic] contrary intention 
was unavailable to him.” Id. 
 In Count VII, Plaintiff points to Turnbull’s August 7, 2020 representations and 
promises, but contends that at the same time Turnbull made these false representations 
and promises “Defendants were in the commission of [sic] denying Plaintiff employment 
because of his criminal history, a statutory [sic] prohibited act.” Id. ¶ 149. Plaintiff 
maintains that he suffered damages because he reasonably relied upon Turnbull’s false 
representations and promises. Id. ¶¶ 150-55. 
Whether Counts VI and VII are claims of fraud, fraudulent inducement, fraudulent 
concealment, fraudulent misrepresentation, or promissory fraud, they are “variations on 
the same theme, largely sharing the core elements of fraud claims: ‘(1) a material 
misrepresentation or omission of fact (2) made by defendant with knowledge of its 
falsity (3) and intent to defraud; (4) reasonable reliance on the part of the plaintiff; and 
(5) resulting damage to the plaintiff.’” Nourieli v. Lemonis, 20-CV-8233 (JPO), 2021 WL 
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3475624, at *6 (S.D.N.Y. Aug. 6, 2021)(quoting Crigger v. Fahnestock & Co., 443 F.3d 
230, 234 (2d Cir. 2006)); see Junk v. Aon Corp., No. 07 Civ. 4640, 2007 U.S. Dist. 
LEXIS 89741, at *18-19 (S.D.N.Y. Dec. 3, 2007) (Under New York law, to establish a 
claim for fraudulent inducement or fraud, a plaintiff must successfully allege “(1) a 
knowingly false representation of a material fact and (2) detrimental reliance thereon. 
The false representation can be either a misrepresentation or the material omission of a 
fact. Reliance means ‘reasonable’ reliance.”)(citing Wurtsbaugh v. Banc of America 
Securities LLC, No. 05 Civ. 6220, 2006 U.S. Dist. LEXIS 40473, 2006 WL 1683416, at 
*6 (S.D.N.Y. June 20, 2006)); Globatex Group, LTD., v. Trends Sportswear, LTD. et al., 
No. 09-CV-235, 2009 U.S. Dist. LEXIS 38302, 2009 WL 1270002, at *6 (E.D.N.Y. May 
6, 2009)(“To establish a promissory fraud cause of action in New York, a plaintiff must 
show (1) that there was a material, false representation; (2) made with knowledge of its 
falsity; (3) an intent to defraud, (4) that plaintiff reasonably relied upon; (5) causing the 
plaintiff damages.”)(citing Cofacredit, S.A. v. Windsor Plumbing Supply Co., 187 F.3d 
229, 239 (2d Cir.1999) (collecting cases applying this five-part test)). 
 F raud claims must meet Federal Rule of Civil Procedure 9(b)’s requirement to 
“state with particularity the circumstances constituting fraud.” Nourieli, 2021 WL 
3475624, at *7; see Fed. R. Civ. P. 9(b) (“In alleging fraud or mistake, a party must state 
with particularity the circumstances constituting fraud or mistake. Malice, intent, 
knowledge, and other conditions of a person's mind may be alleged generally.”).  
“[H]azy aspirational statements are not fraud,” Nourieli, 2021 WL 3475624, at *7 (citing 
Sidamonidze v. Kay, 757 N.Y.S.2d 560, 560 (N.Y. App. Div. 2003)(holding that “mere 
puffery, opinions of value or future expectations” do not support fraud claim)), and “[t]he 
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same goes for ‘forward-looking statement[s] of opinion.’” Id. (quoting Glidepath Holding 
B.V. v. Spherion Corp., No. 04-CV-9758, 2010 WL 1372553, at *9 (S.D.N.Y. Mar. 26, 
2010)). “In order to survive a motion to dismiss, a plaintiff must set out specific facts in 
his complaint demonstrating that defendants never intended to make good on any of the 
promises made.” Elite Phys. Services, LLC v. Citicorp Payment Services, Inc., 06 CIV. 
2447 (BSJ), 2009 WL 10669137, at *6 (S.D.N.Y. Oct. 9, 2009)(citation omitted).  
 E ven accepting Plaintiff’s non-conclusory allegations as true, Turnbull’s 
statements and promises that Plaintiff would have a positive work environment and that 
any negative conduct related to Plaintiff’s prior conviction would be dealt with 
appropriately are aspirational statements and forward-looking opinions. They do not 
amount to actionable fraud.  Further, Plaintiff fails to provide specific facts 
demonstrating that Turnbull never intended to make good on any of his promises.  
While Plaintiff speculates that Turnbull’s promises were false because Plaintiff did not 
receive the necessary work apparatuses by his start date, the FAC indicates that it was 
Stroud and LeDuigou who advised Plaintiff he would receive these apparatuses-not 
Turnbull.  Moreover, Plaintiff contends that it was Stroud and LeDuigou who “planned 
the withdrawal of Plaintiff’s job offer solely due to Plaintiff’s criminal conviction.” FAC ¶ 
40.  Plaintiff’s attempt to link Turnbull’s promises with the failure to provide Plaintiff with 
the necessary work apparatuses by his start date amounts to a threadbare recital of the 
elements of a cause of action for fraud supported by mere conclusory statements, which 
is insufficient to withstand a motion to dismiss. See Haier, 2018 WL 4288617, at *3 
(“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 
statements, do not suffice.”)(quoting Iqbal, 556 U.S. at 678).  
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 Moreover, assuming, arguendo, that Turnbull could be plausibly linked to the 
failure to timely deliver the work apparatuses by virtue of his position as Cameca’s Vice 
President for Human Resources, the fraud claims in Counts VI and VII will be dismissed 
because these claims are redundant of Plaintiff’s Count II breach of contract claim.  
“’[U]nder New York law, ‘where a fraud claim arises out of the same facts as plaintiff’s 
breach of contract claim, with the addition only of an allegation that defendant never 
intended to perform the precise promises spelled out in the contract between the 
parties, the fraud claim is redundant and plaintiff's sole remedy is for breach of 
contract.’” Telecom Intern. America, Ltd. v. AT & T Corp., 280 F.3d 175, 196 (2d Cir. 
2001) (quoting Sudul v. Computer Outsourcing Servs., 868 F. Supp. 59, 62 
(S.D.N.Y.1994)); see Four Star Capital Corp. v. Nynex Corp., 183 F.R.D. 91, 109 
(S.D.N.Y.1997) (“Under New York law, a claim for common law fraud will not lie if that 
claim is duplicative of a claim for breach of contract”).  “In order to establish a fraud 
claim in addition to a breach of contract claim, plaintiff must show misrepresentations 
that are misstatements of material fact or promises with a present, but undisclosed, 
intent not to perform, not merely promissory statements regarding future acts.” 
Venables v. Sagona, 925 N.Y.S.2d 578, 581 (N.Y. App. Div. 2011)(citations omitted).  
“A cause of action for fraud may be maintained on the basis of allegations that a party 
made a collateral or extraneous misrepresentation that induced the contract but cannot 
exist when it arises out of the same facts as the breach of contract claim, with the sole 
additional allegation that the defendant never intended to fulfill its express contractual 
obligations.”  Globaltex Group, 2009 WL 1270002, at *6.  When boiled to their core, 
Plaintiff’s fraud claims are merely that Cameca never intended to fulfill its express 
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contractual obligation set forth in the job offer, and Plaintiff reaches this conclusion 
based upon Turnbull’s promissory statements regarding future events. This is an 
insufficient basis to allow the fraud claims to proceed in addition to the Count II breach 
of contract claim. 
Plaintiff also contends that he alleges a plausible negligent misrepresentation 
claim. The Court does not agree.  “Under New York law, the elements for a negligent 
misrepresentation claim are that (1) the defendant had a duty, as a result of a special 
relationship, to give correct information; (2) the defendant made a false representation 
that he or she should have known was incorrect; (3) the information supplied in the 
representation was known by the defendant to be desired by the plaintiff for a serious 
purpose; (4) the plaintiff intended to rely and act upon it; and (5) the plaintiff reasonably 
relied on it to his or her detriment.” Hydro Inv'rs, Inc. v. Trafalgar Power Inc., 227 F.3d 8, 
20 (2d Cir. 2000).  “[T]he alleged misrepresentation must be factual in nature and not 
promissory or relating to future events that might never come to fruition.” Id. at 20-21 
(citing Murray v. Xerox Corp., 811 F.2d 118, 123 (2d Cir. 1987)(“Promises of future 
conduct are not actionable as negligent misrepresentations.”); Sheth v. New York Life 
Ins. Co., 709 N.Y.S.2d 74, 75 (N.Y. App. Div. 2000) (“The purported misrepresentations 
relied upon by plaintiffs may not form the basis of a claim for fraudulent and/or negligent 
misrepresentation since they are conclusory and/or constitute mere puffery, opinions of 
value or future expectations.”)(citations omitted); Bango v. Naughton, 184 A.D.2d 961, 
963, 584 N.Y.S.2d 942 (N.Y. App. Div.1992) (negligent misrepresentation claim was 
properly dismissed for failure to state a claim because the alleged representations were 
“mere expressions of future expectation”) (internal quotation and citation omitted); 
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Margrove Inc. v. Lincoln First Bank of Rochester, 54 A.D.2d 1105, 1107, 388 N.Y.S.2d 
958 (N.Y. App. Div. 1976) (“The alleged negligent misstatements all relate to promised 
future conduct, if misstatements they be, and there is a lack of any element of 
misrepresentation as to an existing material fact so as to come within the doctrine of 
negligent misrepresentation....”); Glanzer v. Shepard, 233 N.Y. 236, 242, 135 N.E. 275 
(N.Y. 1922) (Cardozo, J.) (holding a defendant liable for a negligent misstatement of 
material existing fact)). Here, even if it can be assumed that a special relationship 
existed between Plaintiff and Cameca, the alleged misrepresentations by Turnbull about 
how Plaintiff would be treated if he started in the NFSE position were not factual in 
nature but rather promissory and related to future events.  Thus, they are insufficient to 
support a negligent misrepresentation claim.  See id.; see also Eternity Glob. Master 
Fund Ltd. v. Morgan Guar. Tr. Co. of N.Y., 375 F.3d 168, 187–88 (2d Cir. 2004)(“As in 
the case of fraud, an alleged misrepresentation must be factual and not ‘promissory or 
related to future events.’”)(quoting Hydro Investors, 227 F.3d at 20). Further, since 
Plaintiff was offered only at-will employment, he cannot establish reasonable reliance, a 
necessary element to recover damages on a theory of negligent misrepresentation. 
Marino, 774 N.Y.S.2d at 563. 
 For these reasons, Defendants’ motion is granted to the extent it is directed to 
Counts VI and VII, and these counts are dismissed. Because it does not appear that 
Plaintiff could amend his pleading to avoid this conclusion, Count VI and VII are 
dismissed with prejudice.  
VI. CONCLUSION 
 For the reasons stated above,  
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- that much of Defendants’ motion (Dkt. No. 31) brought pursuant to Fed. R. Civ. 
P. 12(b)(2) is GRANTED in part and DENIED in part.  This aspect of the motion is 
granted to the extent that Defendants Turnbull, Stroud, and LeDuigou are dismissed 
from this action because the Court cannot obtain personal jurisdiction over them. This 
aspect of the motion is denied as to Defendants Cameca and Ametek. 
- that much of Defendants’ motion (Dkt. No. 31) brought pursuant to Fed. R. Civ. 
P. 12(b)(6) is GRANTED in part and DENIED in part.  This aspect of the motion is 
granted to the extent that all claims against Turnbull, Stroud, and LeDuigou are 
dismissed without prejudice for lack of personal jurisdiction; Count II is dismissed 
without prejudice to Plaintiff moving for leave to replead this claim; Counts III, IV, V, VI, 
and VII are dismissed with prejudice, and this aspect of the motion is denied as to 
Count I.  
IT IS SO ORDERED.  
Dated:  September 18, 2023 
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