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19-0755-cv

United States Court of Appeals


for the

Second Circuit

MICHAEL MULLAUGH, as Personal Representative


of the Estate of MICHAEL A. LORIG,

Plaintiff-Appellant,

– v. –

J.P. MORGAN CHASE & CO., J.P. MORGAN CHASE BANK, N.A.,
J.P. MORGAN SECURITIES, LLC, MICHAEL S. LEE, in his individual
and professional capacities,

Defendants-Appellees.
––––––––––––––––––––––––––––––
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

BRIEF FOR PLAINTIFF-APPELLANT

KEITH M. FLEISCHMAN
FLEISCHMAN BONNER & ROCCO LLP
Attorneys for Plaintiff-Appellant
565 Fifth Avenue, 7th Floor
New York, New York 10017
(212) 880-9567
TABLE OF CONTENTS

PRELIMINARY STATEMENT……………………………………….…........ 1

JURISDICTIONAL STATEMENT…………………………………………... 1

STATEMENT OF THE ISSUE PRESENTED FOR REVIEW……..……… 1

STATEMENT OF THE CASE………………………………………..………. 2

A. The Nature of The Case……………………………………………….… 2

B. The Course of Proceedings and Disposition Below…………..………... 4

STATEMENT OF FACTS…………………………………………………….. 4

A. Lorig’s Background…………………………………………………...… 4

B. Lorig Joins JPMorgan…………………………………………………... 5

C. Lorig Commences Short-Term Disability Leave……………………… 6

D. Appellees Pressure Lorig to Retire Rather than Take Long-Term


Leave……………………………………………………………………… 9

E. Appellees Pressure Lorig To Retire Rather Than Return from


Long-Term Leave………………………………………………………... 10

F. JPMorgan Quietly Terminates Lorig’s Trading Licenses……………. 11

G. Lorig Continues Treatment…………………………………………...… 13

H. JPMorgan Refuses to Let Lorig Return to Work……………………... 14

I. Appellees Negotiate In Bad Faith With Lorig…………………………. 15

J. Lorig Commits Suicide………………………………………………….. 17

K. The Lower Court’s Decision……………………………………………. 17

i
SUMMARY OF THE ARGUMENT……………………….…………………. 20

STANDARD OF REVIEW…………………………………………………….. 24

ARGUMENT…………………………………………………………………… 25

I. THE DISTRICT COURT FAILED TO DRAW REASONABLE


INFERENCES IN APPELLANT’S FAVOR, AND, INSTEAD,
IMPERMISSIBLY DREW INFERENCES FAVORING
APPELLEES…………………………………………………………. 25

II. THE DISTRICT COURT ERRED IN CONCLUDING THAT


THE COMPLAINT FAILED TO ADEQUATELY ALLEGE
CAUSATION…………………………………………………………. 30

III. THE DISTRICT COURT ERRED IN REFUSING TO GRANT


APPELLANT LEAVE TO AMEND………………………………... 41

CONCLUSION…………………………………………………………………. 45

ii
TABLE OF AUTHORITIES
Cases
Ashcroft v. Iqbal,
556 U.S. 662 (2009).............................................................................................. 25

Anderson v. Bristol,
847 F. Supp. 2d. 1128 (S.D. Iowa 2012) .............................................................. 41

Argentina v. Emery World Wide Delivery Corp.,


93 N.Y.2d 554 (N.Y. 1999) ............................................................................ 33, 34

Arista Records, LLC v. Doe 3,


604 F.3d 110 (2d Cir. 2010) ........................................................................... 25, 26

Balintulo v. Ford Motor Co.,


796 F.3d 160 (2d Cir. 2015) ..................................................................... 25, 41, 42

Bamba v. Fenton,
2017 WL 3446806 (E.D.N.Y. Aug. 10, 2017) ..................................................... 37

Bell Atl. Corp. v. Twombly,


550 U.S. 544 (2007)........................................................................................ 25, 26

Bell v. N.Y.C. Health & Hosp. Corp.,


90 A.D.2d. 270 (2d Dept. 1982) ..................................................................... 25, 32

Case v. Anderson,
2017 WL 3701863 (S.D.N.Y. Aug. 25, 2017) ............................................... 18, 32

City of Pontiac Gen. Employees' Ret. Sys. v. MBIA Inc.,


300 F. App'x 33 (2d Cir. 2008) ............................................................................. 42

City of Pontiac Policemen's & Firemen’s Ret. Sys. v. UBS AG,


752 F.3d 173 (2d Cir. 2014) ................................................................................. 25

Cresci v. Mohawk Valley Cmty. Coll.,


693 F. App’x 21 (2d Cir. 2017) ............................................................................ 43

iii
Delise v. Metro-N. R. Co.,
646 F. Supp. 2d 288 (D. Conn. 2009)............................................................. 35, 36

D’Addezio v. Agway Petroleum Corp.,


186 A.D.2d 929 (3d Dep’t 1992) .................................................................... 19, 38

Edwards v. Tardif,
240 Conn. 610, 692 A.2d 1266 (Conn. 1997) ...................................................... 35

Espinal v. Goord,
558 F.3d 119 (2d Cir. 2009) ........................................................................... 36, 37

Estate of Brennan v. Church of Scientology Flag Servs Org.,


832 F. Supp. 2d 1370 (M.D. Fla. 2011) ............................................................... 31

Express Scripts Hldgs Co. Sec. Litig.,


__ Fed. App’x __, 2019 WL 2004302 (2d Cir. May 7, 2019) ....................... 24, 25

Ferencz v. Medlock,
2014 WL 3339639 (W.D. Pa. July 8, 2014) ......................................................... 34

Fuller v. Preis,
35 N.Y.2d 425 (N.Y. 1974) ................................................................ 18, 24, 31, 32

Fulton v. Goord,
591 F.3d 37 (2d Cir. 2009) ................................................................................... 41

G.C.W. by Rivera v. United States,


2017 WL 933098 (S.D.N.Y. Mar. 8, 2017) .................................................... 37, 38

Goldman v. Belden,
754 F.2d 1059 (2d Cir. 1985) ............................................................................... 26

Gorman–Bakos v. Cornell Co-op Ext. of Schenectady Cty.,


252 F.3d 545 (2d Cir. 2001) ........................................................................... 36, 37

Hain v. Jamison,
28 N.Y. 3d 524 (N.Y. 2016) ................................................................................. 38

iv
Halko v. N.J. Transit Rail Operations, Inc.,
677 F. Supp. 135 (S.D.N.Y. 1987) ....................................................................... 36

Hydro Investors, Inc. v. Trafalgar Power Inc.,


227 F.3d 8 (2d Cir. 2000) ............................................................................... 33, 34

In re Sept. 11 Prop. Damage & Bus. Loss Litig.,


468 F. Supp. 2d 508 (S.D.N.Y. 2006) .................................................................. 30

Keiler v. Harlequin Enters Ltd.,


751 F.3d 64 (2d Cir. 2014) ................................................................................... 26

Lerner v. Fleet Bank N.A.,


318 F.3d 11 (2d Cir. 2003) cert. denied 540 U.S. 1012 (2003) ..................... 30, 31

Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC,


797 F.3d 160 (2d Cir. 2015) ................................................................................. 43

Lorig v. Lorig,
2005 WL 3693765 (Conn. Super. Ct. Dec. 27, 2005) ............................................ 5

Mazella v. Beals,
27 N.Y.3d 694 (N.Y. 2016) ............................................................................ 33, 34

McNally v. Posterloid Corp.,


15 A.D.3d 456 (2d Dept. 2005) ............................................................................ 41

Mroz v. City of Tonawanda,


999 F. Supp. 436 (W.D.N.Y. 1998) ...................................................................... 39

Mullaugh v. J.P. Morgan Chase & Co.,


2019 WL 935173 (S.D.N.Y. Feb. 26, 2019) .......................................................... 4

Oliver Schools, Inc. v. Foley,


930 F.2d 248 (2d Cir. 1991) ................................................................................. 43

Perry v. Mary Ann Liebert, Inc.,


__ Fed. App’x __, 2019 WL 1057076 (2d Cir. Mar. 6, 2019) ................. 25, 41, 42

v
Reeves v Sanderson Plumbing Prods, Inc.,
540 U.S. 133 (2000).............................................................................................. 27

Reinhard v. Harsco Corp.,


2006 WL 2795639 (W.D.N.Y. Sept. 26, 2006) .................................................... 39

Roland v. McMonagle,
2015 WL 5918179 (S.D.N.Y. Oct. 9, 2015)......................................................... 36

Ronzani v. Sanofi S.A.,


899 F.2d 195 (2d Cir. 1990) ................................................................................. 42

Rothstein v. UBS AG,


708 F.3d 82 (2d Cir. 2013) ................................................................................... 30

Schonfeld v. Hilliard,
218 F.3d 164 (2d Cir. 2000) ................................................................................. 41

Soto v. City of Sacramento,


567 F. Supp. 662 (E.D. Cal. 1983) ....................................................................... 35

Suez Equity Investors, L.P. v Toronto-Dominion Bank,


250 F.3d 87 (2d Cir. 2001) ................................................................................... 27

Thomas v. TXX Svcs., Inc.,


663 Fed. App’x 86 (2d Cir. 2016) ........................................................................ 27

Tsveitel v. Geoghegan,
2009 WL 2182379 (E.D.N.Y. July 21, 2009) ...................................................... 37

Van Valkenburgh v. Robinson,


225 A.D.2d 839 (3d Dept. 1996) .......................................................................... 40

Walker v. Schult,
717 F.3d 119 (2d Cir. 2013) ................................................................................. 27

Walsh v. Tehachapi Unified Sch. Dist.,


997 F. Supp. 2d 1071 (E.D. Cal. 2014) ................................................................ 35

vi
Watkins v. Labiak,
282 A.D.2d 601 (2d Dept. 2011) .................................................................... 39, 40

White v. Watson,
2018 WL 2047934 (S.D. Ill. May 2, 2018) .......................................................... 32

Rules / Statutes

28 U.S.C. §1291 ........................................................................................................ 1

28 U.S.C. §1332 ........................................................................................................ 1

Fed. R. Civ. P. 12 ............................................................................................. Passim

Fed. R. Civ. P. 15 ........................................................................................ 19, 25, 43

Fed. R. Civ. P. 50 .................................................................................................... 27

Other Authorities

Restatement (Second) of Torts § 46 ........................................................................ 36

Restatement (Second) of Torts § 455 ...................................................................... 31

Restatement (Third) of Torts § 31 ........................................................................... 33

Restatement (Third) of Torts § 33 ..................................................................... 36, 41

vii
PRELIMINARY STATEMENT
Plaintiff-Appellant Michael Mullaugh (“Appellant”) in his capacity as

personal representative of the Estate of Michael Lorig (“Lorig” or “Decedent”)

appeals from a final judgment (A-68)1 entered pursuant to a decision by the United

States District Court for the Southern District of New York (Keenan, J.) dismissing

Appellant’s claim under Fed. R. Civ. P. 12(b).

JURISDICTIONAL STATEMENT

The District Court had subject matter jurisdiction pursuant to 28 U.S.C.

§1332. This Court possesses jurisdiction of this appeal pursuant to 28 U.S.C. §1291.

Final judgment was entered into the court below on February 27, 2019. Appellant

filed a timely notice of appeal on March 27, 2019. This appeal is from a final

judgment disposing of Appellant’s claim in this action against Defendants J.P.

Morgan Chase & Co., J.P. Morgan Chase Bank, N.A., J.P. Morgan Securities LLC,

and Michael S. Lee (“Lee”).2

STATEMENT OF THE ISSUE PRESENTED FOR REVIEW

The Appellees were indisputably aware, through frequent medical reports,

that Lorig suffered from severe mental health issues, including suicidal ideation.

1
The Joint Appendix is cited herein as (“A-__”).
2
Defendants J.P. Morgan Chase & Co., J.P. Morgan Chase Bank, N.A., and J.P.
Morgan Securities LLC are referred to collectively herein as “JPMorgan”.
JPMorgan together with Lee are referred to collectively herein as “Appellees”.
1
During this time, they pressured him to retire rather than commence long-term

disability leave. When he refused to accept their demand they terminated his

employment, cancelled his professional licenses, and refused to take any steps to

reinstate or preserve his licenses. Accordingly: (1) did the District Court err when

it failed to draw inferences in Appellant’s favor regarding Appellees’ knowledge and

concluded that causation between Appellees’ conduct and Lorig’s suicide was, as a

matter of law, too attenuated, and (2) did the District Court abuse its discretion in

refusing to permit Appellant to amend his Complaint, which had never been

previously amended?

STATEMENT OF THE CASE

A. The Nature of The Case

On January 22, 2017 at the age of 66, Lorig committed suicide at his Florida

home. (A-42, at ¶284). After Lorig’s death, Appellant commenced this lawsuit and

filed a single claim for wrongful death against the Appellees. As detailed more fully

below, the Complaint alleges that Appellees are liable for wrongful death because,

notwithstanding their awareness and knowledge that Lorig suffered from severe

mental health issues, including, specifically, suicidal ideation, they demanded that

he accept a sub-standard retirement package, and, when he refused to accept that

package, terminated his licenses and his job.

2
Appellees filed a Fed. R. Civ. P. 12(b)(6) motion to dismiss, arguing: (a) that

the Complaint failed to adequately allege sufficient proximate causation between

their conduct and Lorig’s death; and (b) even if the Complaint had sufficiently

alleged proximate causation, it was nevertheless barred under the supposedly

exclusive remedy provisions set forth in the New York Workers’ Compensation Law

(N.Y. Work. Comp. L. §§11, 29(6) referred to herein as the “NYWCL”). In his

opposition to Appellees’ motion, Appellant requested leave to amend his Complaint

if the District Court was inclined to grant any portion of Appellees’ Motion.

The District Court did not convene oral argument on Appellees’ motion.

Following full briefing, the District Court granted Appellees’ motion to dismiss,

solely on the ground that the Complaint failed to adequately plead causation. (A-65

to A-66). The District Court did not address Appellees’ arguments concerning the

NYWCL. Even though Appellees had argued that a 75-day gap between Lorig’s last

direct contact with Appellees (November 8, 2016) and his January 22 suicide was

too attenuated for liability to attach, the District Judge independently concluded: (1)

only the actions Appellees took after August 8, 2016 had any causal connection to

Lorig’s suicide; and (2) the last time Appellees had been specifically warned that

Lorig was suicidal was two years prior, in August 2014. The District Judge also

denied Appellant leave to amend his Complaint, stating that he could not “imagine

3
a set of circumstances that would allow [Appellant] to plead the causal element of a

wrongful death claim in this case.” (A-66).

B. The Course of Proceedings and Disposition Below

Appellant commenced this lawsuit by filing the Complaint on April 2, 2018.

(A-6). On June 4, 2018, Appellees moved to dismiss the Complaint. (A-4). On

February 26, 2019, the District Court issued an Opinion and Order dismissing the

Complaint. (A-54).3 The Clerk of the Court entered Judgment for Appellees on

February 27, 2019. (A-68). On March 27, 2019, Appellant filed the Notice of

Appeal. (A-69).

STATEMENT OF FACTS

A. Lorig’s Background

Appellant was appointed personal representative for Decedent’s estate on

February 28, 2018. (A-9, at ¶21). Lorig was born in 1950 and died on January 22,

2017 at age 66. (A-9 at ¶19; A-10 at ¶25; A-42 at ¶284). Despite suffering for many

years from severe mental health illness (A-15, at ¶¶ 68-71), Lorig attained significant

professional successes in the financial services industry. (A-15, id.). After earning

degrees from the University of Illinois and Dartmouth College’s Tuck School of

Business (A-11, at ¶¶ 36-37), he commenced working for Bear Stearns & Co.

3
The District Court’s decision is electronically reported at Mullaugh v. J.P. Morgan
Chase & Co., 2019 WL 935173 (S.D.N.Y. Feb. 26, 2019).

4
(“BSC”) in 1979 (A-12, at ¶43). Lorig launched BSC’s institutional financial futures

business, eventually developing it into a $70 million enterprise, with the group rising

to become BSC’s Private Client Service division’s second-largest grossing business.

(A-12 to A-13, at ¶¶ 46-51). Thanks to his hard work and ingenuity, Lorig regularly

earned at least $1 million annually. (A-13, at ¶¶ 50-51).

Lorig’s mental health struggles were a matter of public record. In 2005, in

connection with divorce proceedings from his first wife, the Connecticut judge

overseeing the case observed in a published opinion that Lorig had been “living with

bipolar mood disorder for years but except for brief episodes he has not been

prevented from leading a full, active, and exciting life personally and

professionally.” (A-15, at ¶71 quoting Lorig v. Lorig, 2005 WL 3693765, at *1

(Conn. Super. Ct. Dec. 27, 2005)).

Appellees incontrovertibly knew of Decedent’s mental health issues. In 1989

and 2001, Lorig took two medical leaves of six months each to treat his illness, and,

in both cases, he returned to work and continued to succeed professionally. (A-15,

at ¶¶ 69-70).

B. Lorig Joins JPMorgan

JPMorgan acquired BSC in 2008. (A-13, at ¶52). To convince Lorig and his

attractive book-of-business to remain at JPMorgan, JPMorgan offered him a

retention package worth over $2.2 million. (A-14, at ¶56). The package was

5
structured as a blend of up-front loans and stock awards to be earned and paid in

equal increments over seven years. (A-14, at ¶57). Lorig was also awarded 13,284

JPMorgan restricted stock units (RSU), with 6,642 RSU vesting in July 2012, and

the remainder vesting one year later (July 2013). (A-14, at ¶58). JPMorgan

thereafter distributed $1,682,244.24 in loan proceeds to Lorig, with annual

repayment installments due between June 2009 through 2015. (A-14, at ¶60). The

loan payments were subject to a 20% hurdle, requiring Lorig to gross 20% of $2.2

million (the combined total of his loan and RSU grants) to earn forgiveness of the

otherwise-required loan payments. (A-14, at ¶61).

Shortly after joining JPMorgan, Lorig’s institutional business was assigned to

other brokers, even though institutional clients desired Lorig’s continued service.

(A-14, at ¶63). Despite the reassignment, Decedent remained a top 20% producer

in his division. (A-14, at ¶64).

C. Lorig Commences Short-Term Disability Leave

In 2014, Lorig suffered an attack of severe depression, featuring acute suicidal

ideation. (A-16, at ¶72). Lorig commenced short-term disability leave on February

25, 2014. (A-16, at ¶73). JPMorgan’s short-term disability policy afforded Lorig

25 weeks (6 months) of leave. (A-16, at ¶75). Appellees, including Lee, Lorig’s

direct supervisor, knew that Lorig had taken leave to address his mental health

illness. (A-16, at ¶78). Lorig also directly advised Appellees that while he could

6
not state when he’d return to work, he fully intended to return once he had recovered.

(A-16, at ¶76).

Lorig was treated by both a psychiatrist, Leonard Leven, M.D. (“Leven”), and

a psychoanalyst, George Chapar, Ph.D. (“Chapar”). (A-17, at ¶82). These doctors

routinely informed JPMorgan regarding Lorig’s health condition. For example, on

March 4, 2014, Leven informed Appellees that Lorig frequently engaged in “acute

suicidal ideation”. (A-17, at ¶85). On April 10, 2014, Leven and Chapar stated to

JPMorgan that Lorig had “fleeting thoughts of suicide.” (A-19 to A-20, at ¶107). On

June 10, 2014, Leven wrote that Lorig was “despondent with passive suicide

thoughts.” (A-20, at ¶111). On June 24, 2014, Leven advised Appellees that Lorig

woke up every day with “passive thoughts of suicide.” (A-21, at ¶115). On July 20,

2014 Leven faxed JP Morgan notes reporting that: (a) on June 9, 2019 Lorig stated

that he had “suicidal thoughts in the a.m. (A-21, at ¶117(a)); (b) on June 23, 2019

Lorig had advised Chapar that he engaged in suicidal ideation without a plan (A-21,

at ¶117(b)); and (c) on July 9, 2014 Lorig stated that he was “wakening with suicidal

thoughts.” (A-21, at ¶117(c)). On July 26, 2014, Leven wrote a report to

JPMorgan’s disability management services agent, Prudential Insurance

(“Prudential”), and stated that Lorig was “suicidal from early in the morning for

several hours after.” (A-21, at ¶118). On August 10, 2014 Leven sent Prudential

another report warning that Lorig was “extremely anxious and depressed and had

7
fleeting thoughts of slitting his wrists” and continued experiencing passive suicidal

thoughts. (A-23 to A-24, at ¶¶ 132-133). Leven also specifically reported that

Lorig’s suicidal impulses partially stemmed from the fact that Lorig’s Wall Street

career formed a “core part” of Lorig’s identity, and, as a result, Leven stated that

Lorig was now “lost” and overwhelmed by an “existential crisis.” (A-23 to A-24, at

¶132).

The doctors’ warnings continued in 2015 and 2016. (A-32, at ¶¶ 204-205).

Chapar sent reports to Prudential on June 20, 2015 and February 10, 2016, Chapar

advised that Lorig’s disability remained severe, and that it was not possible to

determine when he would return to work.4 (A-32, id.).

Official JPMorgan policy required Appellees to know whether Lorig was

suicidal. JPMorgan’s disability leave forms advised health care professionals that if

an employee was suicidal, JPMorgan “require[d] a safety plan.” (A-20, at ¶109).

4
As discussed in greater detail below, the District Judge stated that the last time
Appellees were warned of Lorig’s suicidal risk was August 2014. (A-66). But, as
noted above, the Complaint alleged that Chapar warned that Lorig’s disability
“remained severe”. As such the District Court should have drawn an inference that
Decedent’s ongoing disability included acute suicidal ideation. Moreover, had the
District Judge granted Appellant leave to amend the Complaint, Appellant would
have quoted additional language in Chapar’s February 10, 2016 report that reiterated
Lorig’s suicide risk. However, there would have been no need for Appellant to
expend his one amendment of right to include this specific detail, because the
Complaint as filed already supported that inference.
8
Chapar and Leven, and, later, another doctor, Jeffrey Fabacher, M.D.

(“Fabacher”) consistently informed Appellees that Lorig’s medical team was

working intensely towards the goal of returning Decedent to work. (A-22, at ¶119).

Lorig himself attempted to be as cooperative as possible with Appellees under the

circumstances. During his disability leave, he communicated with JPMorgan

employees and tried to answer questions regarding both customers’ and his own

personal JP Morgan accounts. (A-22, at ¶¶ 120-124).

D. Appellees Pressure Lorig to Retire Rather than Take Long-Term Leave

Despite his and his doctors’ efforts, six months of disability leave was not

enough time for Decedent to recover from his illness; long-term leave was necessary.

(A-23, at ¶128). But rather than support Decedent, Appellees – who clearly did not

want to retain someone they believed was too old, too sick, and too mentally unstable

– pressured him to retire rather than take further leave. In June 2014 Lee proposed

that Lorig retire and transfer all his business to another JPMorgan broker. (A-23, at

¶126). In exchange, Lee stated that Appellees would ultimately waive Lorig’s

unpaid loan balance payments. (A-23, id.). Appellees’ offer did not disclose

whether, while on long-term leave, monies would continue being deducted from

Lorig’s accounts. (A-23, at ¶127). The offer also did not detail how accumulated

loan interest would be treated. (A-23, id.). Lorig politely informed Lee that he was

in no shape to fairly evaluate the proposal and explained that he needed to take long-

9
term disability leave to treat his illness. Lorig assured Lee that he fully intended to

return to work once he recovered. (A-23, at ¶128).

E. Appellees Pressure Lorig To Retire Rather


Than Return from Long-Term Leave

Lorig commenced long-term disability leave on August 15, 2014. (A-24, at

¶136). Having failed to convince Lorig to retire before he started that leave,

Appellees renewed and increased their efforts. In August 2014, shortly after Lorig

commenced long-term leave, Lee demanded that Lorig meet with him at the

Intercontinental Hotel in Manhattan. (A-25, at ¶142). Though Lorig was not in any

condition to discuss or negotiate his professional life, he nonetheless attended the

meeting. (A-25, at ¶143). At the meeting Lee again requested that Lorig voluntarily

retire and transfer all his business to Woo, and further agree not to return to work at

the end of his disability leave. (A-25, at ¶144). Lee stated that in exchange,

JPMorgan would forgive his outstanding loan balance and fully vest him in the RSU

grants. (A-25, at ¶145). This proposal was never put in writing. (A-25, at ¶148).

The proposal would have placed Lorig in a far worse position than similarly-situated

retiring JPMorgan brokers. Appellees did not offer to arrange for Lorig to transfer

his book-of-business to a JPMorgan broker of his choice and did not offer him a

percentage of trailing commissions over a three-year period (which typically would

have been 50-60% of such commissions in year one, 40-50% in year two, and 30-

40% in year three). (A-25, at ¶149).


10
Lorig declined to accept Appellees’ proposal, informed Lee that it was

essential for him to focus his energies upon recuperating, and further explained he

was unable to fairly consider the proposal given his condition. (A-26, at ¶¶ 150-152).

Lorig also reiterated his plan to return to work post-recovery. (A-26, id.).

Shortly following the InterContinental Hotel meeting Lee phoned Lorig and

stated that JPMorgan would terminate Lorig’s professional licenses. (A-26, at ¶153).

Lorig, who, given his severe mental illness, remained unable to substantively discuss

this action, asked Lee what JPMorgan expected him to do. (A-26, at ¶154). Lee

merely renewed his “proposal” that Lorig retire from JPMorgan on Appellees’

dictated terms. (A-26, at ¶155).

F. JPMorgan Quietly Terminates Lorig’s Trading Licenses

On September 14, 2015, Appellees made good on their threat, and filed a Form

U5 with the Financial Industry Regulatory Authority (FINRA) for Lorig. (A-26, at

¶¶ 156-160). Broker-dealers, investment advisers, and securities issuers file a Form

U5 to terminate registrations of individuals in the appropriate jurisdiction they are

licensed in along with self-regulatory organizations such as NASDAQ or the NYSE.

The Form U5 resulted in Decedent’s state licenses being simultaneously terminated.

(A-26, id.). Lorig did not realize that in Appellees’ eyes, his job had already been

terminated. (A-27, at ¶161). Appellees did not communicate to Lorig the fact of the

Form U5’s filing until October 3, 2014, when they mailed a copy of it to Lorig’s

11
Manhattan residence. (A-27, at ¶162). Nor did Appellees follow up with Lorig

regarding his licenses’ expiration. (A-27, at ¶164). They did not confirm he had

received a copy of the Form U5, even though they knew or deliberately ignored that

he was spending most of his time in Florida. (A-27, at ¶165). Furthermore, they did

not interact with Lorig either to assess his return, or to discuss potential

accommodations. (A-27 at ¶166; A-29 at ¶¶ 176-181).

The Form U5’s timing strongly suggests that Appellees had malicious

motives. Following the Form U5’s filing, Lorig had two years to re-establish his

licenses without the need for an exam by reaffiliating with either JPMorgan or a new

employer. (A-29, at ¶182). After that deadline, the licenses would be irrevocably

canceled unless he sat for new, grueling licensing tests and re-applied state by state.

(A-30, at ¶¶ 183-185). But JPMorgan filed the Form U5 such that Lorig’s licenses’

expiration would fall just shy of the date Lorig was required to return to work under

JPMorgan’s disability plan. (A-30, at ¶188).

The Form U5 was also filed within the time Lorig was required to fulfill

professional Continuing Education (“CE”) requirements for his licensure. When the

Form U5 was filed Lorig’s CE compliance had not lapsed, (A-28, at ¶168), and

would not have lapsed until March 8, 2015, five months after Appellees filed the

Form U5. (A-32, at ¶199). But even had his CE lapsed, FINRA rules provided for

Lorig’s licenses to be deactivated, not terminated, until he completed his credits. (A-

12
28, at ¶¶ 169-171). Had JPMorgan actually planned to continue employing Lorig,

he could have fulfilled his CE credits and re-established his licenses. (A-30, at ¶189).

Appellees instead quietly sent the Form U5 to Lorig’s Manhattan residence knowing

he was rarely there and timed the filing to effectively ensure that Lorig would be

deprived of enough time to affiliate with a new firm and re-activate his licenses. (A-

31, at ¶190). Moreover, Appellees did not specifically warn Lorig that that he might

permanently lose his licenses, and they took no steps to enable him to preserve them.

(A-31, at ¶¶ 194-195).

G. Lorig Continues Treatment

In autumn 2014, Lorig moved to Florida to aid his recovery. After moving he

commenced treatment with his new doctor, Fabacher. (A-32, at ¶¶ 197-198). He

also continued treatment with Chapar, who continued reporting on Decedent’s

condition to Prudential. Chapar sent reports in June 2015 and February 2016, (A-

32, at ¶204), each time reporting that Lorig’s disability remained severe, and that it

was impossible to yet determine when he could return to work. (A-32, at ¶205).

Accordingly, and drawing all inferences in Appellant’s favor, Appellees had no

reason to believe that Lorig was not still a suicide risk as of February 2016 and would

have known or understood that his disability (which included acute suicidal ideation)

remained severe.

13
H. JPMorgan Refuses to Let Lorig Return to Work

By July 2016, Lorig’s condition had improved. He was ready to return to his

career at JPMorgan. (A-32, at ¶¶ 206-207). On July 26, 2016, Lorig emailed Lee

and other JPMorgan employees and advised them that Fabacher was clearing him to

return to work at the end of his disability leave—August 25, 2016. (A-33, at ¶208).

Between July 27 and August 8, 2016, Lorig and Fabacher provided information to

JPMorgan’s human resource (HR) employees, as Lorig awaited returning to work.

(A-33 to A-34, at ¶¶209-220).

On August 8, 2016, Fabacher faxed a clearance letter for Lorig to JPMorgan.

That same day a JPMorgan HR employee, Jen Smith (“Smith”) phoned Lorig and

informed him that he could not return to JPMorgan. (A-34, at ¶¶ 221-222). Smith

stated that there was no business for Lorig to return to, and further stated to him that

his employment had been terminated at the close of his Family and Medical Leave

Act’s (FMLA) leave. (A-34, id.). The FMLA provides for twelve weeks leave;

accordingly, Lorig’s FMLA leave, having commenced in February 2014, would

have terminated in May 2014, even before Appellees urged him to retire from

JPMorgan. (A-35, at ¶232). Lorig was stunned. Appellees had earlier suggested he

retire but had never told him that he had been fired or was already a retiree. (A-36,

at ¶236).

14
Smith also told Lorig that JPMorgan had terminated his licenses in September

2014. (A-34, at ¶223). Smith emailed Lorig on August 12, 2016 and told him that

Appellees’ position was that he was a retiree and sent him an “as you retire” guide.

(A-36 to A-37, at ¶¶ 237, 240). Of course, Smith did not address the fact that

throughout his leave, Lorig’s doctors had been routinely updating Appellees as to

Lorig’s condition, which would have been an empty exercise if Lorig had retired. In

the same email Smith further advised that JPMorgan was drafting an agreement that,

if Lorig signed it, would forgive his remaining loans and vest his RSUs. (A-36, at

¶238). Smith also claimed that Lorig’s employment would, supposedly, not be

officially terminated until the matter was resolved. (A-36, at ¶239).5

I. Appellees Negotiate In Bad Faith With Lorig

It was not until August 25, 2016 that Appellees transmitted a draft agreement

and release for Lorig’s review. (A-37, at ¶241). The draft was – like Appellees’

earlier efforts to pressure Lorig into retiring – one-sided and unfair. JPMorgan

offered to provide continued vesting for 1,482 additional RSUs that Lorig had been

granted in 2014 and forgive his remaining loan balance. (A-37, at ¶¶ 242-243).6 In

exchange Appellees demanded that Lorig voluntarily resign, waive and release any

5
Nonetheless, Smith’s remark does not constitute a formal determination regarding
Decedent’s employment status or undermine Smith’s representation that Lorig had
been fired after his FMLA leave concluded.
6
Appellees overstated the loan balance. (A-18 to A-19, at ¶¶ 95-105).
15
claims he possessed (including discrimination claims) and accept non-compete

terms prohibiting him from working in any position which potentially competed with

JPMorgan, regardless of whether the new position requires trading licenses. (A-37

to A-38, at ¶¶ 244-249). JPMorgan did not offer Lorig trailing commissions on his

remaining business, as was standard for retiring JPMorgan brokers. (A-39, at ¶257).

Appellees’ insistence on characterizing the termination as a resignation stemmed

from the fact that if the termination had instead been treated as a reduction-in-force,

Appellees would have owed Lorig at least a year’s worth of compensation under

JPMorgan’s severance plan and would have been obligated to forgive his loans and

vest his RSUs. Furthermore, a RIF would have prevented Appellees from restricting

Lorig’s employment other that disallowing him from soliciting JPMorgan’s clients

and employees. (A-38, at ¶¶ 250-252).

Even though the clock on Lorig’s licenses’ expiration was ticking, Appellees

did not negotiate in good faith with Lorig. On August 26, 2016, Lorig sent Smith

an email and stated that he had not retired, but had been terminated, and protested

that his licenses’ termination materially compromised his ability to reduce his loan

balance. (A-39 to A-40, at ¶¶ 260-264). Appellees, however, did not timely respond

to Lorig or his counsel, (A-40, at ¶266), and refused to file a Form U4 with FINRA

reactivating Decedent’s licenses while the discussions continued. (A-40, at ¶268).

Lorig’s counsel’s representations that the license terminations and non-compete

16
terms blocked Lorig’s ability to secure a new equivalent position fell on deaf ears.

(A-40 to A-41, at ¶¶ 269-276). Appellees also refused to assign Lorig work he was

qualified to do, such as providing strategic advice to JPMorgan executives, which

did not require a trading license. (A-41, at ¶277).

J. Lorig Commits Suicide

The end-result of JPMorgan’s obstinacy, hostility, and strategic delay proved

too much for Lorig’s fragile psyche, a psyche Appellees knew was replete with

severe clinically-diagnosed depression, anxiety, and suicidal ideation. Facing

decimation of his professional future, Lorig committed suicide at his Florida home

on January 22, 2017. (A-42 to A-43, at ¶¶ 284-290).

K. The Lower Court’s Decision

The District Court held:

On five occasions ending on July 20, 2014 Lorig’s medical team


sent JPMorgan updates on his health, all of which indicated Lorig
had suicidal thoughts … Plaintiff further alleges that on July 26,
2014, August 10, 2014, June 20, 2015, and February 10, 2015,
Lorig’s medical professionals sent Prudential … updates on
Lorig’s health, with the first two reports indicating Lorig had
suicidal thoughts.7
The District Court did not expressly acknowledge that Appellant alleged that

Chapar’s February 10, 2016 report informed Appellees that Lorig remained severely

7
(A-54, at 6). The February 10, 2015 date appears to be a typographical error by
the District Court. Appellant alleged that Chapar sent Prudential a report on
February 10, 2016. (A-32, ¶204).
17
disabled, nor did the District Court draw an eminently plausible inference in

Appellant’s favor that as of February 2016 Appellees all knew and believed that

Lorig posed a suicide risk.

The District Court concluded that to hold Appellees liable for Lorig’s death,

Appellant was obligated to plausibly plead that his suicide was a foreseeable risk

associated with Appellees’ wrongful acts. (A-63 to A-64). The District Judge

conceded that proximate causation is normally a factfinder issue, (A-64), but

qualified that concession by citing cases holding that sometimes “there [are] … cases

where the causal nexus [is] too tenuous to permit a jury to ‘speculate’ as to the

proximate cause of a suicide.” (A-54, id., citing, inter alia, Fuller v. Preis, 35

N.Y.2d 425, 433 (N.Y. 1974)). The District Judge also recognized that there can

“never be a sole cause for suicide.” (A-63, citing Case v. Anderson, 2017 WL

3701863, at *27 (S.D.N.Y. Aug. 25, 2017)).8 The District Court found that as of

July 26, 2016, Lorig believed he could return to his position at JPMorgan and did

not know his licenses had lapsed in a manner threatening to complicate future job

searches. (A-65). The District Judge specifically held that it was not until August

8, 2016 that Lorig was informed that Appellees officially opposed his return, and

that his licenses had been terminated. (A-65 to A-66). Accordingly, the District

8
In fact, Case correctly held that as to causation in a liability-for-suicide case, the
issue is “whether the defendants’ negligence substantially contributed to [the
decedent’s] death.” Id., citing Fuller. (emphasis supplied in original).
18
Court held that only Appellees’ post August 8, 2016 actions bore any causal

connection to Lorig’s death “under Plaintiff’s own theory”. (A-65 to A-66).

Based on the preceding framework, the District Court determined that it had

been nearly two years (since August 10, 2014) since Lorig’s medical team advised

Appellees that Lorig was suicidal. (A-66). Absent any explanation, the District

found that such circumstances rendered it “not reasonably foreseeable that

[Appellees’] actions would result in Lorig’s suicide”, (A-66), because, according to

the District Judge, Appellees’ actions were “simply too attenuated to be the

proximate cause” of his death. (A-66, citing D’Addezio v. Agway Petroleum Corp.,

186 A.D.2d 929, 931 (3d Dep’t 1992)). Accordingly, the District Judge dismissed

the Complaint based on Appellant’s alleged failure to adequately plead his claim’s

causation element. (A-66).

The District Court also denied Appellant leave to amend his Complaint.

Although the District Judge recognized that Fed. R. Civ. P. instructs courts to “freely

give leave” to amend “when justice so requires”, (A-66, citing Rule 15(a)(2)), the

District Court opined that it could not “imagine a set of circumstances that would

allow Plaintiff to adequately plead the causal element of a wrongful death claim in

this case.” (A-66) Therefore, the District Court dismissed Appellant’s Complaint

with prejudice. (A-66).

19
SUMMARY OF THE ARGUMENT

The District Court committed clear error by engaging in factfinding at the

pleading stage level, failing to draw all inferences in Appellant’s favor, and, worse,

drawing inferences favorable to Appellees. Furthermore, the District Court abused

its discretion in failing to provide Appellant any opportunity to amend the

Complaint, especially considering that the Complaint had not been previously

amended.

The District Court’s analysis rests upon a clear factual error, which, under the

de novo standard governing appellate review of a Fed. R. Civ. P. 12(b)(6) motion,

requires reversal. Specifically, the District Court held that: (a) only Appellees’ post

August 8, 2016 conduct bore any causal nexus to Lorig’s suicide; and (b) it had,

supposedly, been two years since Appellees were expressly advised by Lorig’s

medical team that Decedent posed suicide risks. (A-66). But the Complaint alleges

conduct by Appellees well before August 8, 2016, and, in particular, alleges that on

two occasions, Appellees pressured Lorig to retire (on highly unfavorable terms)

rather than ever return to work. The fact that Lorig rejected Appellees’ proposal

does not, therefore, break the causal chain of Appellees’ years-long conduct. And

while the District Court concluded that Lorig believed he could return to his position

at JPMorgan and did not know the true effects of the license termination, Lorig’s

belief that he could return to JPMorgan is not in conflict with his concurrent concern

20
that Appellees, including Lee, was scheming to interfere or obstruct his return.

Moreover, the Complaint alleged that Lorig twice directly advised Lee that

Decedent’s then-current mental state blocked him from even considering the

retirement proposal or processing the implications of a license termination. It was

error for the Court to draw inferences in Appellees’ favor that at all times during his

medical leave Lorig never was concerned about returning to JPMorgan, that he

comprehended what JPMorgan had done to his licenses, or that Appellees’ behavior

over a period of years did not cumulatively and substantially contribute to Lorig’s

suicide once Appellees made clear in July 2016 that Lee’s “proposal” (which had

already been a source of confusion and distress to Lorig) was no proposal at all, but

instead a fait accompli.

Equally troublingly, the District Court factually determined that it had been

over two years (i.e. – August 10, 2014) since Lorig’s medical providers had informed

JPMorgan that Lorig was a suicide risk. (A-66). However, the Complaint alleges

that in February 2016, Chapar informed Prudential (and, by extension, Appellees)

that Lorig’s condition remained severe. Accordingly, the District Judge was

required to draw an inference in Lorig’s favor that a mental health condition that

“remained severe” (A-32, at ¶205), included suicidal ideation. Notably, the

Appellees never argued in either their opening or reply brief in support of their Rule

12(b)(6) motion that they did not continue to believe that Lorig was potentially

21
suicidal. They instead claimed that the last possible conduct on their part before his

death occurred in November 2016 (2.5 months before Lorig’s death), which they

claimed was too temporally attenuated from his suicide to be causally sufficient.

Appellees also claimed in their reply brief that any knowledge on Appellees’ part

regarding Lorig’s suicidal ideation ceased as of July 26, 2016, when Lorig informed

JPMorgan that his doctors had cleared him to return to work. The Court instead

independently concluded that the gap in time was two years.

Moreover, had the Court granted Appellant leave to amend, he would have

alleged (and quoted directly from the February 2016 medical records) that Chapar’s

February 2016 communication to Prudential reiterated that Lorig engaged in suicidal

ideation. An amended Complaint would also allege that Appellees failed to timely

respond to a January 12, 2017 demand letter sent by Appellant’s counsel which, inter

alia, reiterated Lorig’s fragile mental health condition and the near-insurmountable

obstacles posed as a result of Appellees having allowed his professional licenses to

expire. Appellant would allege that Appellees’ inexcusable failure to timely and

substantively respond to the January 12 demand further pushed Lorig’s anxiety and

depression to the breaking point, and further substantially contributed to his decision

to kill himself only three days after the response deadline.

The District Court’s factual error alone warrants reversal, but as a legal matter

its analysis was also mistaken. It was simply premature for the District Court to

22
conclude that, as a matter of law, Appellant’s claim was not viable. Nearly all the

jurisprudence cited by the District Judge were cases that Appellant directly

addressed and distinguished in his opposition papers. Critically, in all those cases,

there is no suggestion that the defendant was directly aware that the employee was

suicidal. The fact that, at trial, or even at summary judgment, establishing liability

might prove challenging was not a basis to conclude that Appellant had not plausibly

pled that Appellees had engaged in deliberate or wrongful conduct that was a

substantial cause of Lorig’s suicide. Here, JPMorgan was repeatedly and

specifically warned that Lorig was suicidal. In the face of those warnings, and

despite having been specifically informed that Lorig’s professional status and

standing was a key driver of his mental health issues, Appellees pressured Lorig to

leave the firm, and exerted that pressure knowing or deliberately ignoring his mental

fragility, quietly terminated his licenses, later told him that he had been fired as of

July 2014, and refused to take the most basic steps to preserve his licenses, knowing

that doing so devastated his chances of new employment, and thus forced a 66 year

old man with a decades-long history of depression, anxiety, and suicidal ideation to

face the prospect of sitting anew for multiple examinations.

Yet the District Court did not explain how the facts of the decisions it cited

analogize to this case’s unique facts. It instead repeatedly engaged in independent

factfinding as to what Lorig supposedly believed, as well as what JPMorgan

23
believed, and, absent any explanation, concluded that Appellees’ actions were too

attenuated (either in time or nature – the District Judge did not say) to plead a claim.

Moreover, the District Court committed further error, and abused its discretion,

when he held there was no set of circumstances that could ever permit Appellant to

plead a wrongful death claim’s causal element.

Forty-five years ago, the New York State Court of Appeals observed in Fuller

with respect to a negligent tortfeasor’s liability for a victim’s suicide that

“…negligent tort-feasors may be liable for the wrongful death, by suicide, of a

person injured by their negligence”9 and that “[r]egardless of how the evidence might

be viewed by those entitled to weigh it for its probative effect, there was enough to

establish plaintiff's right to have his evidence assessed by a trial jury, and it was

unwarranted to dismiss the complaint.” Id. The District Court’s decision neither

abided by Fuller’s principles, nor those governing Rule 12(b)(6) motions to dismiss.

The decision should be reversed.

STANDARD OF REVIEW

This Court reviews the granting of a motion to dismiss on the pleadings de

novo. The standard of review by this Court as to whether the District Court should

have granted Appellant leave to amend his Complaint is abuse of discretion. See In

9
Fuller v. Preis, 35 N.Y.2d 425, 427 (N.Y. 1974).

24
re Express Scripts Hldgs Co. Sec. Litig., __ Fed. App’x __, 2019 WL 2004302, at

*2 (2d Cir. May 7, 2019) (“We review de novo a district court's grant of a motion to

dismiss for failure to state a claim pursuant to Rule 12(b)(6))”, citing City of Pontiac

Policemen's & Firemen’s Ret. Sys. v. UBS AG, 752 F.3d 173, 179 (2d Cir. 2014).

This Court reviews a district court’s denial of a request to amend under Fed. R. Civ.

P. 15 under an abuse of discretion standard, but a denial based on alleged futility is

reviewed de novo. See Perry v. Mary Ann Liebert, Inc., __ Fed. App’x __, 2019

WL 1057076 at *1 (2d Cir. Mar. 6, 2019) (“We review a district court’s decision to

permit or deny leave to amend for abuse of discretion, but we review the denial of

leave to amend based on futility de novo”), citing Balintulo v. Ford Motor Co., 796

F.3d 160, 164 (2d Cir. 2015).

ARGUMENT
I. THE DISTRICT COURT FAILED TO DRAW REASONABLE
INFERENCES IN APPELLANT’S FAVOR, AND, INSTEAD,
IMPERMISSIBLY DREW INFERENCES FAVORING APPELLEES.

In Ashcroft v. Iqbal, the U.S. Supreme Court stated that “[a] claim has facial

plausibility when the pleaded factual content allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged”. Iqbal, 556 U.S.

662, 678 (2009) citing Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). This Court.

in Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010), explained that

Twombly’s plausibility requirement “does not impose a probability requirement at

25
the pleading stage; it simply calls for enough facts to raise a reasonable expectation

that discovery will reveal evidence of illegal[ity].” See also Twombly at 556

(observing that a well-pleaded complaint may proceed even if it strikes a savvy jurist

that actual proof of the claims “…is improbable and ... recovery is very remote and

unlikely.”); Keiler v. Harlequin Enters Ltd., 751 F.3d 64, 70 (2d Cir. 2014)

(complaint need only plead “allegations sufficient to raise an entitlement to relief

above the speculative level.”). Accord Goldman v. Belden, 754 F.2d 1059, 1067 (2d

Cir. 1985) (when faced with a motion to dismiss for failure to state a claim, the

court’s task is “not to weigh the evidence that might be presented at trial but merely

to determine whether the complaint itself is legally sufficient.”). On a Rule 12(b)(6)

motion, the question is not whether a plaintiff is likely to prevail, but whether the

well-pleaded factual allegations plausibly give rise to an inference of illegality, i.e.,

“whether plaintiffs allege enough to “nudge[ ] their claims across the line from

conceivable to plausible.” Twombly, 550 U.S. at 570.

The District Court abstractly acknowledged these principles (A-62) but failed

to apply them. It instead resolved disputed factual issues itself in the context of a

motion directed to the Complaint’s sufficiency. Specifically, the District Judge

independently determined what Lorig subjectively believed, what information

Lorig’s doctors had provided to Appellees, and how Appellees regarded and

understood that information. That would constitute reversible error even on

26
summary judgment. See Thomas v. TXX Svcs., Inc., 663 Fed. App’x 86, 89 (2d Cir.

2016) (reversing award of summary judgment in connection with alleged wage theft

under New York and federal law, where trial court resolved issues of fact itself rather

than determining whether such issues existed for trial).10 It is absolute error at the

motion to dismiss phase. See also Walker v. Schult, 717 F.3d 119, 128 (2d Cir. 2013)

(partially vacating district court’s grant of motion to dismiss prison inmate’s 1983

action where district court improperly “assay[ed] the weight of the evidence”, and

failed to draw all reasonable inferences in plaintiff’s favor in concluding that

plaintiff failed to provide sufficient details about prison conditions) (citation

omitted); Suez Equity Investors, L.P. v Toronto-Dominion Bank, 250 F.3d 87, 100

(2d Cir. 2001) (in securities fraud case, concluding that district court failed to draw

all reasonable inferences in non-movant plaintiff’s favor in finding that defendants

lacked knowledge as to alleged forgery, where complaint pleaded that bank

employee received copies of original and modified report, circulated report, and was

acting on behalf of corporate defendants at time he circulated such report).

10
Nor would it be appropriate post-trial. See Reeves v Sanderson Plumbing Prods,
Inc., 540 U.S. 133, 152 (2000) (in discrimination case, finding that Fifth Circuit
court erred in reversing district court’s denial of Fed. R. Civ. P. 50 motion and
rendering judgment for employer, because, inter alia, lower court failed to draw all
reasonable inferences in plaintiff’s favor, including acknowledging defendant’s age-
related comments but improperly discounting them because such comments
supposedly were not made in direct context of plaintiff’s termination, and
concluding that lower court impermissibly substituted its judgment concerning
evidence’s weight for the jury).
27
The District Court was not faced with a Complaint that failed to plead

adequate facts permitting it to draw reasonable inferences in Appellant’s favor. The

Complaint was richly detailed and replete with facts that eminently permitted such

inferences. Among other things Appellant alleged that:

• Appellees had long known of Lorig’s struggles with mental illness, given

publicly reported decisions dating back to 2005 (A-10 to A-11, at ¶71), and

his two prior leaves of absence for mental health illness in 1989 and 2001, (A-

7, at ¶5; A-15, at ¶69), thereby permitting a reasonable inference that

Appellees always understood Lorig to suffer from chronic health issues.

• Appellees were informed in February 2016 that Lorig’s condition remained

severe, (A-32, at ¶¶ 204-205), thereby permitting a reasonable inference that

at all times Appellees believed that Lorig struggled with suicidal ideation,

including after Appellees refused to permit him back.

• Official JPMorgan policies always required that Appellees be informed

whether an employee posed risks of suicide to develop a safety plan for their

return to work, (A-20, at ¶109), thereby permitting a reasonable inference that

Appellees understood that a safety plan would be necessary if Lorig returned

to work.

• Appellees knew that Lorig was spending significant time in Florida, and, later

during his leave, moved to Florida, (A-22, at ¶123; A-27, at ¶165; A-32, at

28
¶197), thereby permitting a reasonable inference that Appellees knew Lorig

would not know that JPMorgan had terminated his licenses on September 19,

2015, and, consequently, would not realize that his licenses would be

permanently lost near the time his long-term disability leave ended.

• Lee, on Appellees’ behalf, twice-pressured Lorig to retire rather than return

to JPMorgan; once before he commenced long-term leave (A-23, at ¶¶125-

128), and once thereafter. (A-25, at ¶¶141-152). That fact supported

reasonable inferences that: (a) Appellees’ subsequent conduct was malicious;

and (b) that throughout his remaining leave, Lorig was concerned and anxious

that his future was in jeopardy.

• Appellees proposed unacceptable settlement terms, did not timely respond to

Lorig’s calls, demanded restrictions on Lorig’s future employment that would

have effectively barred him from his chosen profession in nearly any manner,

refused to take any steps to preserve his licenses, and even refused to assign

him work that did not require trading licenses. (A-36 to A-41, at ¶¶ 238-239,

241-252, 256-277). The District Court therefore should have drawn

reasonable inferences that: (a) these acts were a substantial cause of Lorig’s

suicide; (b) that these acts continued to substantially increase the risk of

suicide in the 75-day period between Lorig’s last communication with

29
Appellees and his death; and (c) that Appellees knew, ignored, or should have

known that this conduct materially aggravated Lorig’s suicide risk.

All of these were perfectly reasonable, well-supported inferences that the

District Court not only could have made, but was obligated to make. Its decision

instead rests entirely on drawing two inferences that favored Appellees; namely that

Lorig always believed he could return unmolested to his job, and that Appellees last

believed Lorig was suicidal two years before his death. The District Court’s decision

reveals no other analysis or basis in the Complaint’s allegations and constitutes

reversible error.

II. THE DISTRICT COURT ERRED IN CONCLUDING THAT THE


COMPLAINT FAILED TO ADEQUATELY ALLEGE CAUSATION.
Causation is a “fact-centered issue generally reserved for the trier of fact.” In

re Sept. 11 Prop. Damage & Bus. Loss Litig., 468 F. Supp. 2d 508, 524 (S.D.N.Y.

2006), aff'd sub nom., Aegis Ins. Servs., Inc. v. 7 World Trade Co., L.P., 737 F.3d

166 (2d Cir. 2013). A defendant’s conduct constitutes a proximate cause of injury

where it is a substantial cause of the injury-producing events. See Rothstein v. UBS

AG, 708 F.3d 82, 91 (2d Cir. 2013) (“Central to the notion of proximate cause is the

idea that a person is [] liable … to those with respect to whom his acts were a

substantial factor in the sequence of responsible causation and whose injury was

reasonably foreseeable or anticipated as a natural consequence.”) (italics supplied in

30
original, quoting Lerner v. Fleet Bank N.A., 318 F.3d 11, 123 (2d Cir. 2003) cert.

denied 540 U.S. 1012 (2003)).

These basic principles apply in the context of tort liability for another’s

suicide. In Fuller11, the Court of Appeals held that public policy permits tortfeasors

to be held liable for the suicide of persons who, because of the tortfeasor’s

negligence, suffer mental disturbances that destroy their will to live. Fuller, 35

N.Y.2d at 428. Fuller further observed that while there can never be a sole cause of

suicide, id. at 433, the issue is simply whether a defendant’s negligence

“substantially contributed” to a decedent’s suicide. Id.12

11
Fuller concerned an estate executor’s suit to recover for the decedent's suicide
seven months after his being in an automobile accident in which the decedent
believed he was uninjured, but, in fact, had suffered serious head injuries. The trial
court entered judgment on a jury verdict for the plaintiff. The Appellate Division
dismissed the complaint holding that the connection between the decedent's injury
and his death was too doubtful and uncertain to hold the defendants liable. The
Court of Appeals subsequently reversed and remanded for a new trial finding that
questions of causations were jury issues.
12
Accord Estate of Brennan v. Church of Scientology Flag Servs Org., 832 F. Supp.
2d 1370, 1381 (M.D. Fla. 2011) (protection from liability for another’s suicide is
absent where a defendant’s wrongful action has facilitated or contributed to the
suicidal impulse). See also Restatement (Second) of Torts § 455 (1965) (liability lies
for negligent conduct that brings about the delirium or insanity of another “if his
delirium or insanity: (a) prevents him from realizing the nature of his act and the
certainty or risk of harm involved therein, or (b) makes it impossible for him to resist
an impulse caused by his insanity which deprives him of his capacity to govern his
conduct in accordance with reason.”).

31
Additionally, “when intervening acts are ‘but part of a continuum of events

initiated by the defendants’ original misconduct’ the acts which follow will not sever

the causal chain, though they may contribute to the ultimate injury.” Case v.

Anderson, 2017 WL 3701863, at *28 (S.D.N.Y. Aug. 25, 2017) (quoting Bell v.

N.Y.C. Health & Hosp. Corp., 90 A.D.2d. 270, 285 (2d Dept. 1982)). Both Fuller

and Case recognized that ultimately proving liability for a decedent’s suicide may

prove challenging, but it is a different matter to conclude at a pleading stage that a

defendant did not substantially contribute to a suicide.13

The District Judge cited Fuller and Case, (A-63 to A-64), but did not explain

why the Complaint’s allegations did not satisfy the causation standards those

decisions enunciate. The District Court’s analysis instead solely rested upon: (1) the

Court’s independent speculative, counter-factual determination that only after July

26, 2016 did Lorig have any concern that he could not return to work; and (2) the

Court’s mistaken inference that JPMorgan had not been advised since August 2014

that Lorig posed a suicide risk. The Court did not discuss any of the facts of the

decisions it cited or point to anything that severed the causal chain between

13
See also White v. Watson, 2018 WL 2047934, at *15 (S.D. Ill. May 2, 2018)
(finding that reasonable jury could find, under the circumstances of case, that
corrections officers owed prisoner a duty to prevent his suicide and to implement
suicide prevention policies, where prisoner had announced he would kill himself).

32
Appellees’ actions and Lorig’s suicide. As discussed further below, all the cases the

Court cited reflect materially different facts than those alleged here.

The District Court’s analysis also conflicts with §31 of the Restatement

(Third) of Torts: Phys. and Emot. Harm, which holds that where an actor’s tortious

conduct harms a person who possesses preexisting physical or mental conditions that

results in harm of a greater magnitude or degree that might reasonably be expected,

the actor is, nevertheless, subject to liability for all harm suffered by the victim. This

principle is also known as the “thin-skull plaintiff rule”. The fact that Appellees were

repeatedly made aware of Lorig’s mental state generally, and his suicidal ideation

specifically, reinforces rather than undermines the causal link between their actions

and Lorig’s suicide.

The fact that there was a gap in time between Lorig’s last direct

communication with Appellees and his suicide does not foreclose liability, nor

would the circumstance that other factors may have contributed to his death. “The

mere fact that other persons share some responsibility for plaintiff's harm does not

absolve defendant from liability because “there may be more than one proximate

cause of an injury”. Mazella v. Beals, 27 N.Y.3d 694, 706 (N.Y. 2016) (quoting

Argentina v. Emery World Wide Delivery Corp., 93 N.Y.2d 554, 560 n. 2 (N.Y.

33
1999)).14 In Mazella, a patient’s widow commenced a wrongful death action against

a psychiatrist, seeking damages resulting from the patient’s suicide. The trial judge

entered judgment in the widow’s favor and denied a motion to set the verdict aside.

Although the Court of Appeals reversed the verdict on the grounds that the trial court

had committed reversible error by admitting certain evidence, the Court nevertheless

held that the evidence had been legally sufficient to support the verdict, finding that

it was not unforeseeable that, after his psychiatrist threw him out of his office when

the patient refused to be hospitalized, the patient would have developed suicidal

thoughts given his many years of clinically-diagnosed depression for which he had

been taking medication. Id. at 706-707. Furthermore, the Court of Appeals also

concluded that the patient’s hospitalization and treatment by other medical

professionals were not superseding events breaking the causal connection between

the doctor’s failures to properly monitor his patient's medication and adequately

diagnose his worsening condition. Id. at 707.15

14
See also Hydro Investors, Inc. v. Trafalgar Power Inc., 227 F.3d 8, 15 (2d Cir.
2000) (proximate cause determination does not require factfinder to identify liable
party as sole cause of harm; identified cause need only constitute a substantial factor
in bringing about injury).
15
See also Ferencz v. Medlock, 2014 WL 3339639, at *6 (W.D. Pa. July 8, 2014)
(partially denying summary judgment motion where prison’s failure to ensure full
communication of inmate watch information could constitute deliberate
indifference, and because prison warden was allegedly responsible for policy gap,
warden could face liability despite warden’s lack of personal knowledge or

34
Mazzella’s reasoning bears strong analogy here. Appellees unquestionably

knew Lorig was suicidal, and also knew that his depressed mental state in part

reflected the fact that Wall Street was a “core part of [Lorig’s] identity”. (A-23 to

A-24, at ¶132). Of course, it is possible that a jury’s evaluation of the evidence,

including almost certainly expert testimony, might reach different interpretations of

Decedent’s doctor’s analysis, but that is a far cry from concluding at the pleading

stage that Appellees did not believe Lorig was despondent over not being able to

continue his professional life. Likewise, it would be grossly premature to

conclusively determine at the pleading stage what Appellees intended when they

refused to take any measures to preserve Lorig’s licenses, and dragged out

involvement in the actual events surrounding the suicide); Walsh v. Tehachapi


Unified Sch. Dist., 997 F. Supp. 2d 1071, 1079 (E.D. Cal. 2014) (holding, under
California law, that where a defendant's negligence causes decedent to suffer mental
condition preventing decedent from controlling their suicidal impulses, such
negligence is a proximate cause of suicide, permitting assigning liability to
defendant, and further concluding that there were genuine issues of disputed fact
regarding whether acts of school district employees were cause of student’s suicide);
Soto v. City of Sacramento, 567 F. Supp. 662, 694 (E.D. Cal. 1983) (denying
summary judgment and finding that issues of causation remained, where plaintiff-
arrestee alleged that he had been punitively placed in solitary confinement as result
of frame-up and attempted suicide, and observing that if the defendants’ acts violated
plaintiff’s rights and caused him to not mentally appreciate his actions, suicide
attempt would not break causation chain); Edwards v. Tardif, 240 Conn. 610, 619,
692 A.2d 1266, 1271 (Conn. 1997) (affirming jury’s verdict to plaintiff and rejecting
appellant’s argument that verdict should have been set aside where evidence
sufficient to establish that internist’s failure to render adequate care and treatment,
and failure to take into account patient’s prior medical history, proximately caused
patient’s foreseeable suicide).

35
responding to Decedent’s counsel’s efforts to resolve the matter.16 Indeed, given

that, when viewed in the light most favorable to Plaintiff, the facts plausibly suggest

malicious intent on Appellees’ part, and, at the least, reckless indifference to

aggravating Lorig’s existing condition, the scope of Appellees’ liability for Lorig’s

injuries is more expansive. See Restatement (Third) of Torts: Phys. & Emot. Harm,

§33 (2010).

Nor is there a bright-line pleading test for temporal proximity. See Roland v.

McMonagle, 2015 WL 5918179, at *6 (S.D.N.Y. Oct. 9, 2015) (“However, while

the Second Circuit ‘has not drawn a bright line to define the outer limits’ of temporal

proximity in retaliation cases, courts have found support for causation in cases

16
See also Delise v. Metro-N. R. Co., 646 F. Supp. 2d 288, 291–92 (D. Conn. 2009)
(denying summary judgment in Federal Employer Liability Act intentional infliction
of emotional distress claim case arising out of railroad employee’s suicide, and
citing, inter alia, cmt “e” to Restatement (Second) of Torts § 46 (1965) for principle
that “[t]he extreme and outrageous character of the conduct may arise from the
actor's knowledge that the other is peculiarly susceptible to emotional distress, by
reason of some physical or mental condition or peculiarity. The conduct may become
heartless, flagrant, and outrageous when the actor proceeds in the face of such
knowledge, where it would not be so if he did not know” and further holding that
that issues of material fact precluded determining whether defendant’s conduct was
extreme and outrageous because employee’s supervisor was in position of actual
authority over decedent-employee, and whether he knew that employee was
especially susceptible to emotional distress and posed suicide risks) (emphasis
added); Halko v. N.J. Transit Rail Operations, Inc., 677 F. Supp. 135, 142 (S.D.N.Y.
1987) (denying summary judgment in FELA action where alleged harassment of
decedent-employee purportedly caused employee’s suicide, and holding that if
employee’s suicide was result of mental anguish that prevented employee from
exercising restraint or genuinely comprehending their actions, suicide was not
superseding cause severing causal link).
36
involving longer periods than the two months at issue here.”) (citing Gorman–Bakos

v. Cornell Co-op Ext. of Schenectady Cty., 252 F.3d 545, 554 (2d Cir. 2001) and

Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009) (“[T]he passage of only six

months between the dismissal of [plaintiff’s] lawsuit and an allegedly retaliatory

beating ... is sufficient to support an inference of a causal connection.”)); Tsveitel v.

Geoghegan, 2009 WL 2182379, at *14 (E.D.N.Y. July 21, 2009) (Defendant’s gap

in treatment time argument did not establish absence of fact issues regarding the

cause of plaintiffs’ injuries). The District Judge failed to clearly identify what

alleged gap period rendered causation impossible to plead, such that the District

Court found that there were no conceivable facts that could be added to an amended

Complaint. (A-66). To the extent the passage of time was a relevant consideration,

it was, at most, merely a non-exclusive factor that a factfinder could consider along

with other evidence. See Bamba v. Fenton, 2017 WL 3446806, at *9 (E.D.N.Y. Aug.

10, 2017), aff'd, 758 F. App’x 8 (2d Cir. 2018) (“The Court acknowledges that

temporal proximity is only one factor in its causation analysis, and the plaintiff may

establish a causal connection by demonstrating “a ‘pattern of antagonism’ over the

intervening period” between the protected activity and the alleged adverse action.”)

(citation omitted); G.C.W. by Rivera v. United States, 2017 WL 933098, at *8

(S.D.N.Y. Mar. 8, 2017) (“A variety of factors can influence the fact-sensitive

proximate cause determination, including ‘the foreseeability of the event resulting

37
in injury; the passage of time between the originally negligent act and the intervening

act; the spatial gap, if any, between the original act and the intervening act; whether

the original act of negligence was a completed occurrence or was ongoing at the time

of the intervening act; whether and, if so, what other forces combined to bring about

the harm; as well as public policy considerations regarding the scope of liability.’”)

(quoting Hain v. Jamison, 28 N.Y. 3d 524, 530 (N.Y. 2016)17). Instead, the District

Court erroneously treated alleged temporal attenuation as a sole, outcome-

determinative factor.

None of the decisions cited in the District Court’s opinion (see A-63 to A-66)

are analogous. None of the cited cases involved a scenario where the defendant

knew, or even reasonably should have known, that the decedent was suicidal. In

D’Addezio v. Agway Petroleum Corp., 186 A.D.2d 929 (3d Dept. 1992) an employee

committed suicide after being indefinitely suspended pending an investigation into

company policy violations which resulted in the employer also swearing out two

felony complaints against the employee because the policy violations suggested that

the employee was stealing from the company. Nothing in the decision indicates that

the employer had any knowledge that the employee posed a suicide risk, and the

17
Hain was a wrongful death lawsuit wherein the trial court initially denied the
defendant’s summary judgment motion, the Appellate Division reversed, and the
Court of Appeals thereafter reversed the lower appellate court, finding that issues of
fact precluded awarding summary judgment as to the foreseeability of the facts at
issue.
38
employer’s actions—suspending the employee for possible theft and filing a

criminal complaint—are a far cry from Appellees pressuring Lorig to retire rather

than take long-term leave or return to work, quietly terminating his licenses,

demanding unreasonable separation terms, and refusing to take any action to

preserve his licenses.

In Reinhard v. Harsco Corp., 2006 WL 2795639 (W.D.N.Y. Sept. 26, 2006)

the decedent’s employer fired the employee after a disciplinary hearing in

connection with the employee drinking on the job and refused to provide treatment

for alcoholism and depression. Unlike Lorig, the Reinhard decedent was not on

disability leave and nothing indicates that the employer was aware that the employee

posed a suicide risk. Furthermore, Reinhard concluded that the plaintiff’s claim

sounded in age discrimination, whereas here, Lorig was discriminated not only due

to his age, but also based upon his mental health disability, and Appellees’ conduct

went well beyond merely refusing to provide requested counseling, and instead

constituted a scheme to strip Lorig of his clients, job, and licensure, fully aware that

he suffered from suicidal ideation.

Similarly, in Mroz v. City of Tonawanda, 999 F. Supp. 436 (W.D.N.Y. 1998),

nothing suggests that the decedent’s pre-arrest history should have led police officers

to suspect, let alone know, that the decedent posed a suicide risk. Watkins v. Labiak,

282 A.D.2d 601, 602 (2d Dept. 2011) is also off-point; in that case the decedent

39
killed himself after suffering pain and numbness from a shoulder operation, hardly

forseeable conduct that the surgeon should have been aware of.

Finally, Van Valkenburgh v. Robinson, 225 A.D.2d 839, 840-41 (3d Dept.

1996) is markedly inapposite. That case involved a tragically bizarre scenario where

an off-duty police officer got into an argument with his wife and removed his gun to

place it in his car. The couple continued arguing in the car, and the officer’s wife

grabbed the gun, refused to return it, accidentally shot herself in the hip, shot her

husband in the chest, paralyzing him, and, upon realizing what she had done,

committed suicide using the gun. It is, therefore, unsurprising that the Van

Valkenburgh court concluded the husband’s act of removing his weapon did not

proximately cause his wife’s death.

Each of the above cases is facially inapposite, but unfortunately the District

Judge did not explain why they were analogous, or detail why Appellees’ acts were

too attenuated from Lorig’s suicide to satisfy proximate cause. This constitutes

reversible error by the District Court, particularly at a pleading stage where

Appellant had no opportunity to take any discovery from Appellees that would shed

light on their internal strategizing and decisions regarding how to address Lorig’s

illness and intention to return to work.18

18
This Court should decline any invitation by Appellees to affirm on the alternative
ground that Appellant’s claims were precluded under the NYWCL. While this Court

40
III. THE DISTRICT COURT ERRED IN REFUSING
TO GRANT APPELLANT LEAVE TO AMEND.
Although Appellant respectfully submits that the Complaint as pled should

not have been dismissed with prejudice, Appellant at least should have been

provided an opportunity to amend it, given that it was not amended as of right, and

Plaintiff had not previously requested or been provided with an opportunity to amend

the Complaint. As previously noted, while this Court reviews a district court’s

decision to permit or deny leave to amend for abuse of discretion, where the denial

is empowered to affirm a district court’s decision on any basis for which there is
sufficient support in the record, it is the Court’s “distinctly preferred practice to
remand” issues not addressed by the District Court for its consideration in the first
instance. Schonfeld v. Hilliard, 218 F.3d 164, 184 (2d Cir. 2000); accord Fulton v.
Goord, 591 F.3d 37, 45 (2d Cir. 2009). Affirming on this ground would,
respectfully, be especially inappropriate given that Appellant argued that: (a)
Appellees had already fired Lorig while he was on disability leave, thus taking it out
of the NYWCL’s purview because they are post-termination acts, see Anderson v.
Bristol, 847 F. Supp. 2d. 1128, 1140 (S.D. Iowa 2012) (surveying national case law,
and holding that, in context of Rule 12(b)(6) motion, improper to hold a wrongful
death claim relating to post-termination suicide as preempted under workers’
compensation statute); and (b) the Appellee’s conduct is alleged in detail to have
been intentional and deliberate and therefore excluded from NYWCL preemption.
See McNally v. Posterloid Corp., 15 A.D.3d 456, 457 (2d Dept. 2005) (intentional
tort may give rise to a cause of action outside NYWCL where plaintiff alleges that
employer engaged in intentional or deliberate acts directed at causing harm to the
particular employee.) See also Restatement (Third) of Torts: Phys. & Emot. Harm,
§33(a) (actor who intentionally causes harm is subject to liability for such harm even
if harm was unlikely to occur).

Both arguments illuminate hotly-contested factual disputes that require


further discovery. In any event, given that the District Court entirely declined to
address the issue, this Court should, at most, remand for further findings.
41
was based on alleged futility, the standard of review is de novo. Perry, 2019 WL

1057076, at *1 citing Balintulo v. Ford Motor Co., 796 F.3d 160, 164 (2d Cir. 2015).

Here, the District Court concluded that it could “not imagine a set of

circumstances that would allow Plaintiff to adequately plead the causal element of a

wrongful death claim in this case.” (A-66). Regrettably, the District Court’s surmise

rests upon its misapprehension of the factual record, and its error in drawing

inferences favorable to the Appellees regarding what they understood about Lorig’s

condition and whether acts they engaged in during his disability leave substantially

contributed to his suicide several years later when viewed in combination with their

later behavior closer in time to Lorig’s death. The District Court’s conclusion in this

regard also appears to rest on that Court’s reliance on wholly inapposite caselaw,

and erroneous application of proximate causation principles.

A court “should freely give leave [to amend] when justice so requires.” City

of Pontiac Gen. Employees' Ret. Sys. v. MBIA Inc., 300 F. App'x 33, 34 (2d Cir.

2008) (summary order) (quoting Fed. R. Civ. P 15(a)(2)). See also Ronzani v. Sanofi

S.A., 899 F.2d 195, 199 (2d Cir. 1990) (district court abused its discretion in denying

leave to amend where no leave previously given, and the panel could not determine

on the basis of the record that leave to amend was futile.). 19 Where a possibility

19
See also id at 198 (“Although the decision whether to grant leave to amend is
within the discretion of the district court, refusal to grant leave must be based on a
valid ground.”)
42
exists that a defect can be cured, leave to amend at least once should normally be

granted unless doing so would prejudice the defendant. Oliver Schools, Inc. v. Foley,

930 F.2d 248, 253 (2d Cir. 1991). Moreover, a plaintiff typically “will not see the

necessity of amendment” where that plaintiff lacks “the benefit of a ruling” from the

court. Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 797 F.3d 160, 190

(2d Cir. 2015). Under such circumstances, denial of a Rule 15 request is often

improper. See Cresci v. Mohawk Valley Cmty. Coll., 693 F. App’x 21, 25 (2d Cir.

2017) (summary order) (“The proper time for a plaintiff to move to amend the

complaint is when the plaintiff learns from the District Court in what respect the

complaint is deficient. Before learning from the court what are its deficiencies, the

plaintiff cannot know whether he is capable of amending the complaint

efficaciously.”).

Here, the Complaint has never been amended, even as of right. Nor would

amendment be futile. If granted leave to amend, Appellant would make clear that

later medical reports provided to Appellees in 2016 specifically restated that Lorig

posed a suicide risk, and to add additional facts regarding Lorig’s communications

with friends and family that confirm that Appellees’ conduct, including their bad

faith refusal to accommodate his disability, refusal to preserve his licenses, and

demand that he accede to outrageous non-compete terms, was a direct and proximate

cause of his suicide.

43
In addition, Appellant would also amend the Complaint to allege that, on

January 12, 2017, Appellant’s counsel transmitted a demand letter to JPMorgan’s

General Counsel’s office. That demand letter described in detail the emotional

trauma that Lorig had experienced, and continued to experience, as a result of

Appellees’ discriminatory and malicious conduct, including setting forth the

particulars of Decedent’s mental health disabilities. Appellant’s January 12 demand

letter advised that the demand would remain open for seven (7) days, and that if no

response was forthcoming, Lorig would need to commence appropriate legal action.

Appellant would further allege that Appellees nevertheless failed to respond to the

demand letter by January 19, despite now having been yet again reminded of Lorig’s

fragile mental health condition, and the fact that Appellees’ conduct, especially

allowing his licenses to expire, had materially compromised Decedent’s ability to

secure new employment. Appellant would allege that Mr. Lorig anxiously awaited

JPMorgan’s substantive response, and Appellee’s failure to do so reflected

continuing, knowing, wrongful conduct on their part, and further substantially

contributed to Lorig’s suicide on January 22, only a few days after the demand

letter’s response deadline passed.

The District Court’s terse futility analysis simply cannot withstand de novo

review, and, even if de novo review did not apply, constituted an abuse of discretion.

44
Therefore, while the Complaint as pled satisfied requisite pleading standards,

minimally, leave to amend should have been granted.

CONCLUSION

For the reasons explained above, Appellant respectfully requests that the

District Court’s Order be reversed, or, in the alternative, that Appellant be granted

leave to replead his Complaint, together with such other and further relief as this

Court may deem just and appropriate.

Dated: June 7, 2019


New York, New York FLEISCHMAN BONNER & ROCCO, LLP

By: _/s/ Keith M. Fleischman___________


Keith M. Fleischman, Esq.
Patrick L. Rocco, Esq.
565 Fifth Avenue, Seventh Floor
New York, New York 10017
Telephone: (212) 880-9571
kfleischman@fbrllp.com
procco@fbrllp.com

Attorneys for Appellant

45
CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume limit of Local Rule

32.1(a)(4)(A) because, excluding the parts of the document exempted by Fed. R.

App. P. 32(f), this document contains 11,025 words, as determined by Microsoft

Word 2010.

2. This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because this

document has been prepared in a proportionally spaced typeface using Microsoft

Word 2010 in 14-point Times New Roman font.

By: _/s/ Keith M. Fleischman_________

Keith M. Fleischman, Esq.