Full opinion text
OPINION & ORDER KENNETH M. KARAS, District Judge. Before the Court is Plaintiffs Motion to File a Proposed Second Amended Complaint (“PSAC”) against Defendants Pros-kauer Rose LLP (“Proskauer”), Ishry Singh, Raymond Pocino, John Virga, the Greater New York Laborers-Employers Cooperation and Education Trust Fund (“GNYLECET”), Mason Tenders District Council Trust Funds (“MTDCTF”), Laborers International Union of North America (“LIUNA”), Paul O’Brien, Charles Carrón, Merrick Rossein, and Chris Columbia (collectively “Defendants”). Plaintiff alleges that several Defendants have breached fiduciary duties to the MTDCTF; that Plaintiff was discharged from his employment in violation of the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq.; that several Defendants violated the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq.; and that some defamed Plaintiff. Defendants oppose Plaintiffs Motion on futility grounds, arguing that Plaintiff has failed to state a claim upon which relief can be granted, pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons stated below, Plaintiffs Motion is GRANTED in part and DENIED in part. I. Background A background of the facts leading up to this point in the litigation of this case is discussed in a prior Opinion & Order from this Court. See Ello v. Singh, No. 05 Civ. 9625, 2006 WL 2270871 (S.D.N.Y. Aug. 7, 2006) (denying Plaintiffs motion to disqualify counsel). Rather than repeat those familiar facts here, the Court will refer to the relevant facts only when necessary. There is a need, however, to lay out the procedural history of this case. This case began on November 15, 2005 when Plaintiff filed a Complaint. (Dkt. No. 1.) Then, on February 9, 2006, Plaintiff filed an Amended Complaint. (Dkt. No. 33.) Five months later, on July 13, 2006 — the same day the Court scheduled oral argument on Plaintiffs motion to disqualify Defendants’ counsel (Dkt. No. 36) — Plaintiff again attempted to amend his Complaint, this time without prior permission of the Court. The Court denied Plaintiffs disqualification motion, see Elio, 2006 WL 2270871, at *1, and denied Plaintiffs attempt to file the July 13th Complaint for failure to comply with the Court’s Individual Practices (Dkt. No. 38). Less than a week later, Plaintiff sought the Court’s permission to file an Amended Complaint. (Dkt. No. 40.) However, before the Court could schedule a conference to hear the Parties on what Complaint Plaintiff would seek leave to file, Plaintiff asked the Court to refrain from scheduling a conference, because he intended to file yet another Amended Complaint. Before Plaintiff submitted his next Amended Complaint and accompanying motion, the Court explained that any additional amendments to the Complaint would have to be based on new evidence that was not previously available to Plaintiff. (Ct.Conf. Tr. 5-7, Sept. 12, 2006.) After an exchange of letters between the Parties, Plaintiff filed a Motion to Amend the Complaint with a PSAC on September 15, 2006. But there is more. On November 6, 2006, this litigation took another step backward before moving forward. On that date, Plaintiff filed his Reply Memorandum of Law in Support of its Motion to File the PSAC (“Plaintiffs Reply Memorandum”). Plaintiffs Reply Memorandum, which unjustifiably exceeded the permitted page limit by thirty-nine pages, was also accompanied by what amounts to a Second Proposed Second Amended Complaint (“SPSAC”). Plaintiffs SPSAC, which he did not seek permission to file — the second time that has happened in this case — seeks to expand Plaintiffs defamation claims and to add a malicious prosecution claim against Singh and Proskauer. To summarize: After filing his Complaint in this ease, Plaintiff amended his Complaint, and after doing so, he filed a different, proposed Amended Complaint which was subsequently rejected for failure to comply with the Court’s Individual practices. Plaintiff next withdrew a different proposed Complaint (a third version of the Complaint, in effect), then submitted a PSAC. Finally, in the midst of briefing on the PSAC, without permission, Plaintiff attempted to file a SPSAC. Tallying the score, Plaintiff has filed five versions of the Complaint. At the pre-motion conference on the PSAC, after an inquiry by the Court as to what Complaint Plaintiff was seeking leave to file, Plaintiff indicated that he is pursuing all of the causes of action in the PSAC and the defamation claim raised in the SPSAC. (Pre-motion Conf. Tr. 26, Dec. 12, 2006.) However, Plaintiff confirmed that he does not intend to go to trial on the malicious prosecution claim raised in the SPSAC. (Id.) Plaintiffs allegations (which are assumed to be true for the purposes of this Motion) are as follows: (1) Defendants Proskauer, Virga, Pocino, O’Brien, and Carrón breached fiduciary duties owed to the Mason Tenders District Council Pension Plan and Welfare Plan (PSAC ¶¶ 24-135); (2) Defendants Pocino, Proskauer, and Virga violated Section 510 of ERISA by discharging Plaintiff from his positions with LIUNA and GNYLECET (id. ¶¶ 136-96); (3) Defendants Proskauer, Vir-ga, Pocino, O’Brien, and Carrón, operated MTDCTF in violation of RICO (id. ¶¶ 197-286); and (4) Defendants Proskauer, Poci-no, Rossein, Singh, and Columbia defamed Plaintiff (SPSAC ¶¶ 287-418). This case initially arose out of an allegation by Singh, an accounts payable employee of the MTDCTF, that Plaintiff sexually assaulted Singh on February 4, 2005. At the time, Plaintiff was an employee of the LIUNA and the MTDC, where he held numerous positions within both organizations. See Elio, 2006 WL 2270871, at *1 (describing Plaintiffs prior positions). Plaintiff claims that Singh, an employee of MTDCTF, approached Plaintiff on a number of occasions between December 2004 and February 2005 to solicit Plaintiffs assistance in securing a position with the MTDC. Plaintiff allegedly rebuffed Singh’s requests, due to what Plaintiff says were budgetary constraints and policies which favor LECET and Local # 279 employees for available positions. Despite Plaintiffs refusal to offer Singh employment, Singh allegedly continued to remind Plaintiff that he was interested in employment. On February 4, 2005, Plaintiff and Singh had a conversation at a local restaurant and bar. During this conversation, Singh allegedly attempted to make his prospective employment more attractive by claiming that he had family in law enforcement. Plaintiff allegedly told Singh that LIUNA maintained an active Inspector General’s Office and that there was no need for the assistance of outside law enforcement. Plaintiff claims that this was the end of their interactions that night — once the conversation ended, the two men headed towards the offices of the MTDCTF and eventually parted ways. Plaintiff claims that Singh retaliated against Plaintiff for his refusal to hire him by filing false allegations that Plaintiff sexually assaulted Singh on February 4, 2005. Plaintiff alleges that he learned of Singh’s allegation on February 9, 2005, from New York City Detective Whelan. (PSAC ¶ 167.) That same day, Plaintiff believes that a meeting of Trustees was held to discuss Singh’s allegations against Plaintiff. (Id. ¶ 166.) This alleged meeting was held in Plaintiffs absence and the minutes were subsequently withheld from Plaintiff. (Id.) That same day, Pocino told Plaintiff to stay away from the MTDCTF’s employees and staff, allegedly pursuant to Pros-kauer’s advice.- (Id. ¶ 172.) Pocino refused to discuss Singh’s harassment report with Plaintiff, also allegedly pursuant to Proskauer’s advice. (Id.) Singh’s allegation caused the MTDCTF to subsequently investigate the claim. Proskauer, serving as counsel, retained Merrick T. Rossein, Esq., to conduct an investigation. Plaintiff, apparently on the advice of his counsel, never met with Rossein. In mid-March 2005, Pocino requested Plaintiffs resignation, which Plaintiff submitted under “duress.” (Id. ¶¶ 188-89.) II. Discussion A. Standard of Review Rule 15(a) of the Federal Rules of Civil Procedure states that leave to amend a complaint should be “freely given when justice so requires.” Fed.R.Civ.P. 15(a). However, “[a] district court has discretion to deny leave for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir.2007). “When the plaintiff has submitted a proposed amended complaint, the district judge may review that pleading for adequacy and need not allow its filing if it does not state a claim upon which relief can be granted.” Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir.1991). The adequacy of the proposed amended complaint is judged by the same standard as that applied to a motion to dismiss for failure to state a claim, Rule 12(b)(6) of the Federal Rules of Civil Procedure. See General ■ Elec. Capital Financial, Inc. v. Bank Leumi Trust Co. of New York, No. 95 Civ. 9224, 1999 WL 33029, at *5 (S.D.N.Y. Jan.21, 1999) (citing Ricciuti, 941 F.2d at 123). A motion brought under Fed. R.Civ.P. 12(b)(6) posits that Plaintiff has failed “to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). The Supreme Court has recently held that “[w]hile a complaint attacked by a Rule 12(b) (6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the ‘grounds’ of his ‘entitle-[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, — U.S.-,-, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007) (citations omitted and second alteration in original). In Bell Atlantic, id. at 1964-69, the Supreme Court also abandoned reliance on the oft-quoted refrain from Conley v. Gibson that, “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief[,]” 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). As the Court explained, a literal application of Conley’s “no set of facts” rationale is improper because “a wholly conclusory statement of claim would survive a motion to dismiss whenever the pleadings left open the possibility that a plaintiff might later establish some ‘set of [undisclosed] facts’ to support recovery .... ” Bell Atl., 127 S.Ct. at 1968. Instead, the Court emphasized that “[f]actual allegations must be enough to raise a right to relief above the speculative level ... [,]” id. at 1965, and “once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint[,]” id. at 1969. Plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Id. at 1974; see also Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir.2007) (“After careful consideration of the Court’s opinion and the conflicting signals from it that we have identified, we believe the Court is not requiring a universal standard of heightened fact pleading, but is instead requiring a flexible ‘plausibility standard,’ which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible. ”). If Plaintiff “ha[s] not nudged [his] claims across the line from conceivable to plausible, [his] complaint must be dismissed.” Bell Atl., 127 S.Ct. at 1974. When considering a Rule 12(b)(6) motion, a court must limit itself to facts stated in the complaint, documents attached to the complaint, and documents incorporated into the complaint. See Newman & Schwartz v. Asplundh Tree Expert Co., 102 F.3d 660, 662 (2d Cir.1996) (citation omitted). The Court will accept as true Plaintiffs allegations, and draw all inferences in Plaintiffs favor. See Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir.1993); Blimpie Int'l Inc. v. Blimpie of the Keys, 371 F.Supp.2d 469, 470-71 (S.D.N.Y.2005). At this stage, the Court is not concerned with weighing the evidence which would be presented at trial. See Chosun Int’l Inc. v. Chrisha Creations, Ltd., 413 F.3d 324, 327 (2d Cir.2005). B. ERISA Congress has stated that the primary purpose of ERISA is to “protect interstate commerce and the interests of participants in employee benefit plans and their beneficiaries, by requiring the disclosure and reporting to participants and beneficiaries of financial and other information....” 29 U.S.C. § 1001(b). ERISA achieves these objectives “by establishing standards of conduct, responsibility, and obligation for fiduciaries of employee benefit plans, and by providing for appropriate remedies, sanctions, and ready access to the Federal courts.” Id. In addition, ERISA was intended to “to protect interstate commerce, the Federal taxing power, and the interests of participants in private pension plans and their beneficiaries by improving the equitable character and the soundness of such plans by requiring them to vest the accrued benefits of employees with significant periods of service, to meet minimum standards of funding, and by requiring plan termination insurance.” 29 U.S.C. § 1001(c). Plaintiff has pled two ERISA causes of action. First, he alleges that certain Defendants breached their fiduciary duties under ERISA. Second, he alleges that his employment was terminated in violation of ERISA. Both claims are discussed, in turn. 1. Breach of Fiduciary Duty under Section 502 of ERISA Section 502 of ERISA, 29 U.S.C. § 1132, provides a number of causes of action to enforce ERISA’s regulation of employee benefit plans. The rights enforced by Section 502 are found in each employee benefit plan, in the statutes that make-up ERISA, and in the common-law of ERISA as developed by the courts. Plaintiffs first ERISA claim is for breach of fiduciary duties. Plaintiff brings this action as a former Trustee of the MTDCTF and as a participant in the Pension and Welfare Plans. (PSAC ¶ 24.) Plaintiff claims that Proskauer, Virga, Po-cino, O’Brien, and Carrón breached their fiduciary duties owed towards the MTDC Pension, Annuity, and Welfare Plans. (Id.) Section 404 of ERISA describes four affirmative duties for fiduciaries: (1) exclusive purpose; (2) prudence; (3) diversification; and (4) acting in accordance with the plan. See 29 U.S.C. § 1104. Plaintiff seeks injunctive and equitable relief pursuant to 29 U.S.C. § 1132(a). (PSAC ¶ 24.) Plaintiff alleges that Proskauer, serving as counsel to MTDC and MTDCTF, acted as a fiduciary as that term is defined in 29 U.S.C. § 1002(21). Plaintiff merely alleges, on information and belief, that Pros-kauer was retained as a “Fund fiduciary.” (PSAC ¶ 31.) He alleges that Proskauer is a fiduciary of the pension, annuity, and welfare plans because it went beyond merely providing legal advice. (Id.) Pros-kauer also allegedly usurped the Trustees’ powers by dictating certain courses of action, rather than merely advising the Trustees. (Id. ¶ 33.) According to Plaintiff, Proskauer undertook discretionary control and authority in the administration of the MTDC. (Id. ¶¶ 34-75.) The allegations include: Proskauer selected Virga for the position of Director based on a pre-exist-ing relationship, despite Virga’s lack of adequate credentials (id. ¶ 35); Proskauer attorneys attended Trust Fund and Executive Board meetings, even though their attendance was not mandatory (id. ¶ 36); Proskauer’s presence deterred opposition to Proskauer’s views on various matters (id. ¶ 38); Proskauer wrote the minutes for several, high-level meetings, and billed the MTDC for time devoted to this effort — work which Plaintiff claims was unnecessary and costly (id. ¶¶ 40-49); Pros-kauer attorneys traveled to MTDCTF meetings at the expense of the MTDC (id. ¶¶ 51-53); Proskauer took over MTDC’s delinquency work (id. ¶¶ 54-59); Pros-kauer favored litigation over settlement in a particular case (id. ¶¶ 60-67); Proskauer advised against taking any legal action against Carlos Mellace, who at one time was a co-administrator of MTDCTF (id. ¶¶ 68-71); and Proskauer submitted a bill for $49,192.50 for services related to a real estate purchase under the Training Fund, which Plaintiff claims was not authorized (id. ¶¶ 72-75). With respect to the other Defendants named in this cause of action, Plaintiff alleges a number of other breaches of fiduciary duties, including: the authorization of a vehicle for Virga’s use (id. ¶¶ 81-84); Virga’s decision to provide breakfast for himself and other employees (id. ¶ 85); the payment of welfare benefits to at least one expelled member of the union — a matter which Plaintiff investigated and Proskauer attempted to conceal (id. ¶¶ 90-98); Vir-ga’s failure to report account delinquencies (id. ¶¶ 100-11); O’Brien’s recommendation to hire Lazard Asset Management (“La-zard”) to manage plan assets without disclosing that O’Brien’s son, a recent college graduate, had been hired by Lazard (id. ¶¶ 112-15); the conflict of interest due to Proskauer’s representation of Lazard (id.); the all-expense-paid golfing trips to exclusive golf resorts enjoyed by Pocino and his wife (id. ¶¶ 116-18); Proskauer’s revision of an investment management agreement to establish higher fees (id. ¶¶ 119-21, 126-27); Proskauer’s use of plan assets to prove Plaintiff was criminally liable for assaulting Singh (id. ¶¶ 122-24); Pros-kauer’s, Virga’s, O’Brien’s, and Carron’s conspiracy to preclude Plaintiff from attending Trust Fund and Executive Board meetings (id. ¶ 125); Proskauer’s, Virga’s, O’Brien’s, and Carron’s conspiracy to deny Plaintiff access to records (id.); and Pros-kauer’s erroneous advice to MTDCTF regarding the Pension Plan’s Summary Plan Description (id. ¶¶ 130-35). The Court begins its analysis of these claims with an examination of the standing requirement under Section 502 of ERISA. Section 502 names three classes of persons who may commence an action for breach of a fiduciary duty: (1) a participant or beneficiary, (2) the Secretary of Labor, and (3) a fiduciary. 29 U.S.C. § 1132(a); see McCabe v. Trombley, 867 F.Supp. 120, 125 n. 3 (N.D.N.Y.1994) (“Section 1132 is the provision which defines the scope of the court’s subject matter jurisdiction over the instant suit, in which plaintiff alleges a breach of fiduciary duty.”). Plaintiff brings this cause of action as a former Trustee of the MTDCTF, as well as a plan participant. As a former Trustee, Plaintiff lacks standing to allege a breach of fiduciary duties. In Chemung Canal Trust Co. v. Sovran Bank/Md., 939 F.2d 12 (2d Cir.1991), the Second Circuit long ago held that a former fiduciary lacks standing to claim a breach of ERISA’s fiduciary duties, id. at 14. The Second Circuit considered the list of people that Section 502 allows to sue, and concluded that “[t]he statute names only three classes of persons who may commence an action, and a former fiduciary is not one of them.” Id. The Second Circuit went on to explain that the list in Section 502 was “exclusive” and that the statute’s legislative history indicated no intent to “grant a former fiduciary a continuing right to sue on behalf of the plan .... ” Id. Accordingly, Plaintiff lacks standing to sue as a former Trustee. Plaintiff also claims standing as a plan participant. Standing requirements for a plan participant differ depending on kind of relief requested by Plaintiff. While “a plan participant may have Article III standing to obtain injunctive relief related to ERISA’s disclosure and fiduciary duty requirements without a showing of individual harm to the participante,]” Plaintiff must have “suffered an injury-in-fact” to claim restitution or disgorgement. Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco Managed Care, L.L.C., 433 F.3d 181, 199-200 (2d Cir.2005); see also New York Dist. Council of Carpenters Pension Fund v. Savasta, No. 99 Civ. 11362, 2005 WL 22872, at *2 (S.D.N.Y. Jan.4, 2005) (noting that Section 502(a)(3) provides for limited relief, and not “classic compensatory and punitive damages.”). The PSAC contains two instances where the Plaintiff alleges that he was personally affected by the alleged breaches of fiduciary duty. First, Plaintiff claims that Pros-kauer expended plan assets starting in February 2005 to prove Plaintiff was guilty of criminal charges (PSAC ¶ 122); and second, that Proskauer, Virga, O’Brien, and Carrón conspired to deny Plaintiff access to Fund records and to preclude him from attending Trust Fund and Executive Board meetings (id. ¶ 125). The Court will assume that Plaintiff has adequate participant standing for these two allegations because of these specific claims in the PSAC that Plaintiff was personally injured. Standing, however, does not end the matter: Fund Defendants argue that even if Plaintiff has standing, he has not pled a breach of any duty, because no interest of his in the Fund has been denied or taken away. The Court agrees. An employer’s investigation of allegation of sexual harassment “is not a gratuitous or optional undertaking; under federal law, an employer’s failure to investigate may allow a jury to impose liability on the employer.” See Malik v. Carrier Corp., 202 F.3d 97, 105 (2d Cir.2000). Thus, Fund Defendants had “an affirmative duty to investigate the report of an allegation of sexual harassment.” Id. at 109. Furthermore, Proskauer cannot be sued for a breach of fiduciary duties in investigating Singh’s allegations because, inter alia, its services were authorized by the Trustees, and do not “amount to illegal profits or ill-gotten gains derived directly from defendants’ alleged culpable acts.” See Savasta, 2005 WL 22872, at *2-3 (holding that fees paid to a non-fiduciary pursuant to a service agreement with a union fund are not actionable as disgorgement under Section 502 of ERISA). Although Section 510 of ERISA may permit a cause of action against a fund attorney, see Greenwood Mills, Inc. v. Burris, 130 F.Supp.2d 949, 960-61 (M.D.Tenn.2001), Plaintiff must allege far more egregious conduct than what he alleges here, which is nothing more than his disagreement with Proskauer’s role and some of their fees. Plaintiffs second allegation of breach is also unfounded. Fund Defendants’ decision to preclude Plaintiff from attending a meeting of the Trustees and accessing Fund records, even if true, does not state a breach of fiduciary duty recognized by statute, any plan, or the common-law. Plaintiffs allegations do not state a claim, in large part, because they are far afield from ERISA’s purpose, as well as the statutory rights and rights at common-law that ERISA seeks to protect. See 29 U.S.C. §§ 1001(b)-(c), 1104, 1132(a); see also Massachusetts v. Morash, 490 U.S. 107, 112, 109 S.Ct. 1668, 104 L.Ed.2d 98 (1989) (“ERISA was passed by Congress in 1974 to safeguard employees from the abuse and mismanagement of funds that had been accumulated to finance various types of employee benefits.”); Ancekewicz v. Long Island Univ., No. 02 Civ. 4490, 2005 WL 1411917, at *8 (E.D.N.Y. June 15, 2005) (“ERISA’s goal of protecting [pension and other] benefits from interference does not transform ERISA’s statutory scheme into a federal job protection scheme.”) (quoting Raymond v. Mobil Oil Corp., 983 F.2d 1528, 1539 (10th Cir.1993)) (alteration in original). Nothing about precluding Plaintiff from meetings about his alleged sexual assault, even if that assault never occurred, remotely threatens the management of Plaintiffs benefits. Proskauer also argues that Plaintiff has not sufficiently pled that Proskauer is a fiduciary under 29 U.S.C. § 1002(21). The statute states, in relevant part: a person is a fiduciary with respect to a plan to the extent (i) he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets, (ii) he renders investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of such plan, or has any authority or responsibility to do so, or (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan. 29 U.S.C.A. § 1002(21)(A). “This definition requires (1) showing that the plan assets are at issue and (2) that the individual defendants exercised authority or control relating to the management or disposition of such assets.” Maney v. Fischer, No. 96 Civ. 0561, 1998 WL 151023, at *4 (S.D.N.Y. Mar.31, 1998). Courts have construed broadly the definition of “fiduciary” contained in ERISA. See Mertens v. Hewitt Assocs., 508 U.S. 248, 262, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993). “[Wjhether or not an individual or entity is an ERISA fiduciary must be determined by focusing on the function performed, rather than on the title held.” Blatt v. Marshall & Lassman, 812 F.2d 810, 812 (2d Cir.1987) (holding that defendants were fiduciaries because they exercised actual control over plan assets). Relying on the Department of Labor’s regulations promulgated under ERISA, the Second Circuit has explained that: [A]n attorney, accountant, actuary or consultant who renders legal, accounting, actuarial or consulting services to an employee benefit plan ... [is not] a fiduciary to the plan solely by virtue of the rendering of such services, absent a showing that such consultant (a) exercises discretionary authority or discretionary control respecting the management of the plan, (b) exercises authority or control respecting management or disposition of the plan’s assets, (c) renders investment advice for a fee, direct or indirect, with respect to the assets of the plan, or has any authority or responsibility to do so, or (d) has any discretionary authority or discretionary responsibility in the administration of the plan. F.H. Krear & Co. v. Nineteen Named Trustees, 810 F.2d 1250, 1259-60 (2d Cir.1987) (quoting 29 C.F.R. § 2509.75-5 (1986)). Plaintiffs conclusory allegations merely portray Proskauer as a zealous advocate for the Fund, and Plaintiffs personal opposition to Proskauer’s role or billing practices fails to make Proskauer a fiduciary. The allegations in the PSAC fall far short of claiming that Proskauer had discretionary authority or control over the Fund; that Proskauer managed Fund assets; rendered investment advice; or had discretionary authority or responsibility over the administration of the Fund. While Plaintiff also makes many conclusory allegations about Proskauer’s hands-on involvement with the Fund, nothing in the PSAC is sufficient to allege that Proskauer crossed the threshold from legal counsel to that of a fund fiduciary. See Acosta v. Pace Local 1-300 Health Fund, No. 04 Civ. 3885, 2007 WL 496877, at *8-9 (D.N.J. Feb. 9, 2007) (holding that conclusory claims that lawyer acted as fiduciary for ERISA purposes did not state a claim upon which relief could be granted). Instead, Plaintiffs allegations merely demonstrate that Proskauer’s services were typical of those provided by legal counsel, rather than those of a fiduciary. See, e.g., Health Cost Controls of Illinois, Inc. v. Washington, 187 F.3d 703, 709 (7th Cir.1999) (“[L]awyers and other professionals who render services to the plan’s administrator do not exercise any decisionmaking authority over the plan or plan assets; the power to act for the plan is essential to status as a fiduciary under ERISA.”) (internal quotations omitted); see Custer v. Sweeney, 89 F.3d 1156, 1163 (4th Cir.1996) (affirming dismissal of claim that lawyer was fiduciary because allegations in complaint were insufficient to allege status as fiduciary) (citing 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 at 317-18 (2d ed.1990) (noting that court need not accept plaintiffs “‘unwarranted deductions,’ ‘footless conclusions of law,’ or ‘sweeping legal conclusions cast in the form of factual allegations’ ” (footnotes omitted))); Bd. of Trs. of Teamsters Local 918 Pension Fund v. Freeburg & Freeburg, C.P.A., No. 98 Civ. 4895, 1999 WL 803895, at *2 n. 1 (E.D.N.Y. Sept.28, 1999) (“Professionals, such as attorneys or accountants, are not fiduciaries unless they provide more than ordinary professional services to a plan.”); Carpenters’ Local Union No. 961 Pension Fund v. Silverman, No. 93 Civ. 8787, 1995 WL 378539, at *2 (S.D.N.Y. June 26, 1995) (“The mere provision of usual or ordinary professional services, such as by attorneys, does not imply fiduciary status.”). Accordingly, Proskauer cannot be sued as an ERISA fiduciary and Plaintiffs claim in this regard fails. Fund Defendants also contend that several of Plaintiffs allegations are barred by ERISA’s statute of limitations. ERISA requires that an action for breach of fiduciary duty be brought: (1) six years after (A) the date of the last action which constituted a part of the breach or violation, or (B) in the case of an omission the latest date on which the fiduciary could have cured the breach or violation, or (2) three years after the earliest date on which the plaintiff had actual knowledge of the breach or violation; except that in the case of fraud or concealment, such action may be commenced not later than six years after the date of discovery of such breach or violation. 29 U.S.C. § 1113. Fund Defendants argue that Plaintiffs position as a Trustee gave Plaintiff actual knowledge of many of the alleged breaches of fiduciary duty brought in this case. Plaintiff became a Trustee of the MTDC in August 1996, see Ello, 2006 WL 2270871, at *2, and remained a Trustee until his resignation on April 1, 2005, which Plaintiff characterizes as a constructive discharge. (PSAC ¶¶ 188-89.) It is not clear, however, whether the three-year limitation or the six-year limitation applies in this case, or if some combination of the three- and six-year limitations apply to different claims. The three-year limitation applies “three years after the earliest date on which the plaintiff had actual knowledge of the breach or violation.... ” 29 U.S.C. § 1113(2). “[A] plaintiff has ‘actual knowledge of the breach or violation’ within the meaning of ERISA § 413(2), 29 U.S.C. § 1113(2), when he has knowledge of all material facts necessary to understand that an ERISA fiduciary has breached his or her duty or otherwise violated the Act.” Caputo v. Pfizer, Inc., 267 F.3d 181, 193 (2d Cir.2001). By contrast, “the six-year statute of limitations should be applied to cases in which a fiduciary: (1) breached its duty by making a knowing misrepresentation or omission of a material fact to induce an employee/beneficiary to act to his detriment; or (2) engaged in acts to hinder the discovery of a breach of fiduciary duty.” Id. at 190. At this stage of the case, Defendants have opposed Plaintiffs Motion to File a Proposed Second Amended Complaint on futility grounds. Defendants argue that the PSAC fails to state a claim upon which relief can be granted. Much of what Fund Defendants ask the Court to decide on the statute of limitations defense cannot be decided on a Rule 12(b)(6) motion because the Court must limit its review to the PSAC, documents attached to the PSAC, and documents incorporated into the PSAC by reference. See Newman, 102 F.3d at 662. “Dismissal for failure to state a claim based on a statute of limitations is appropriate only if a complaint shows clearly that a claim is not timely.” Toussaint v. JJ Weiser & Co., No. 04 Civ. 2592, 2005 WL 356834, at *11 (S.D.N.Y. Feb. 13, 2005); see also Harris v. City of New York, 186 F.3d 243, 251 (2d Cir.1999). The PSAC, in all but a single instance, which is discussed below, fails to identify when the alleged breaches took place. Fund Defendants’ counsel asks the Court to consider the affidavit of John J. Virga, which offers dates for the alleged breaches, to fill the void left by the PSAC. Virga’s affidavit, however, does not fit within the three categories of materials that this Court can consider when Defendants merely contest the sufficiency of the pleadings, as they have done here. Therefore, the Court will not consider Virga’s affidavit to decide the statute of limitations defense. One of Plaintiffs claims is susceptible to adjudication on the pleadings. Plaintiff claims that the Trustees’ decision to retain Carlos Mellaee, who retired in December 1998, was a breach of fiduciary duty. (PSAC ¶¶ 68-71.) Under the more lenient, six-year statute of limitations, Plaintiffs last opportunity to bring a claim for this alleged breach was December 2004. Plaintiffs first Complaint in this case was filed on November 15, 2005, which is beyond the six-year limitation period. This claim is barred under the statute of limitations and therefore is futile. 2. Unlawful Discharge Under ERISA Section 510 Section 510 of ERISA (“Section 510”), 29 U.S.C. § 1140, makes it unlawful for any person to discharge or take other adverse action against employees for exercising their rights under an employee benefit plan or for the purpose of interfering with the attainment of any right to which employees may become entitled. As a second ERISA claim, Plaintiff alleges that Pocino, Proskauer, and Virga illegally interfered with his rights under Section 510. (PSAC ¶¶ 136-96.) Specifically, Plaintiff claims that he was preemptively and constructively discharged after Singh accused Plaintiff of sexual assault. According to Plaintiff, he was improperly denied access to Fund records and improperly barred from attending a meeting of the Trustees as a result of Singh’s allegations. (Id. ¶¶ 138, 162-75, 178-92.) Additionally, Plaintiff claims he was constructively discharged as retaliation for his whistle-blowing efforts to expose waste, corruption, and graft within the Fund, which Plaintiff says include Singh’s allegations against Plaintiff. (Id. ¶¶ 137, 141-61, 176, 192.) Section 510 of ERISA “was designed primarily to prevent unscrupulous employers from discharging or harassing their employees in order to keep them from obtaining vested pension rights.” Dister v. Continental Group, Inc., 859 F.2d 1108, 1111 (2d Cir.1988). “[A] § 510 claim involves three elements: 1) prohibited employer conduct; 2) taken for the purpose of interfering; 3) with the attainment of any right to which the employee may become entitled.” Hayes v. Compass Group USA Inc., 343 F.Supp.2d 112, 121 (D.Conn.2004). “In order to prevail on a Section 510 claim, the plaintiff must demonstrate that an employer, in taking adverse employment action against the employee, ‘was at least in part motivated by the specific intent to engage in activity prohibited by § 510.’” Tavoloni v. Mount Sinai Med. Ctr., 26 F.Supp.2d 678, 680 (S.D.N.Y.1998) (quoting Dister, 859 F.2d at 1111). The Second Circuit has described the demonstration of specific intent under Section 510 as “[a]n essential element of plaintiffs proof under the statute ....” Dister, 859 F.2d at 1111. a. Claim Against Fund Defendants and Proskauer Plaintiff claims that Pocino, Proskauer, and Virga prevented him from attending meetings of the Trustees and denied him access to Fund records in response to Singh’s allegations. In particular, Plaintiff claims that Virga falsely denied that a specific Trustees meeting had been scheduled, and subsequently withheld the minutes of that meeting from Plaintiff. (PSAC ¶¶ 165-66, 169.) Plaintiff alleges that Pocino told Plaintiff that Proskauer had advised Pocino to inform Plaintiff that Plaintiff was to “stay away from the Trust Funds and its employees.” (Id. ¶ 172.) This directive, in effect, “suspended [Plaintiff] from the bulk of this [sic] salaried positions[,]” and from ascertaining what Singh had said about Plaintiff. (Id. ¶ 173-75.) According to Plaintiff, Pocino and Proskauer issued the directive to keep Plaintiff from “pursuing the welfare fund fraud and the Singh matter.” (Id. ¶ 176.) For Plaintiffs claim to survive a motion to dismiss, he must plead that the Fund’s motivation for terminating his employment was to deny him a right protected under Section 510. See Vallone v. Banca Nazionale del Lavoro, N.Y. Branch, No. 02 Civ. 6064, 2004 WL 2912887, at *2 (S.D.N.Y. Dec.14, 2004) (“[A]n employer’s intent is the central question under § 510”); see also Blessing v. J.P. Morgan Chase & Co., No. 02 Civ. 3874, 2003 WL 470338, at *3 (S.D.N.Y. Feb.24, 2003) (dismissing Section 510 claim because plaintiff did not “allege that he was terminated in order to avoid paying him severance”). The courts of this District, as well as the Second Circuit, have made clear that “no claim ‘lies where the loss of pension benefits was a mere consequence of, but not a motivating factor behind,’ an adverse employment action.” Tavoloni, 26 F.Supp.2d at 680 (quoting Dister, 859 F.2d at 1111); see also Burke v. Gregory, 356 F.Supp.2d 179, 187 (N.D.N.Y.2005) (dismissing a Section 510 claim because plaintiff failed to demonstrate that her termination was motivated by her employer’s desire to deprive her of plan benefits); Romano v. Verizon Commc’ns, Inc., No. 01 Civ. 6737, 2002 WL 472192, at *5 (S.D.N.Y. Mar.27, 2002) (“Plaintiffs also fail to allege that the defendants acted with the intent to prevent plaintiffs from attaining enhanced benefits.”). Plaintiff has not alleged, as the plain words of the statute require, that his rights were impaired as a result of “exercising a[] right to which he is entitled under the provisions of an employee benefit plan.” 29 U.S.C. § 1140. Nor has he claimed that he was discharged in order to “interfer[e] with the attainment of any right.” Id. In addition, Plaintiff has failed to plead adequately that his employer infringed on any of his protected rights. Only rights referenced in Section 510, typically plan benefits, are protected. The fact that Plaintiffs benefits were terminated after he was constructively discharged is not sufficient to plead the requisite intent to sustain this claim. See Kendall v. Fisse, No. 00 Civ. 5154, 2004 WL 1196811, at *7 (E.D.N.Y. May 25, 2004) (“Plaintiff must prove more than the simple fact that his termination precluded him from vesting into a pension plan; he must also show that Citibank had an unlawful purpose in firing him.”). Even construing the PSAC broadly, and in a light most favorable to Plaintiff, it is impossible to identify the right that Plaintiffs employer was denying to Plaintiff. See McLellan v. E.I. DuPont de Nemours & Co., Inc., No. 04 Civ. 314, 2006 WL 3751583, at *20 (WJD.N.Y. Dec.19, 2006) (“Nevertheless, relief under § 510 for adverse action taken for exercising a right under the Plan is unavailable to McLellan who, according to a careful review of the Complaint, fails to identify any such right exercised.”). The “rights” that Plaintiff claims he was denied include the right to attend a Trustees’ meeting about allegations of criminal conduct by Plaintiff, to have access to Fund records, and, presumably, to retain his status as a Trustee. These “rights,” however, are not actionable under Section 510. Section 510 protects employees from unscrupulous employers that seek to improperly deny employees their pension rights. See Dister, 859 F.2d at 1111; see also Quinby v. WestLB AG, No. 04 Civ. 7406, 2007 WL 1153994, at *15 (S.D.N.Y. Apr.19, 2007) (finding inference of discrimination when plaintiff was terminated two weeks before pension was to vest); Infan-tolino v. Joint Indus. Bd. of the Elec. Indus., No. 06 Civ. 520, 2007 WL 879415, at *8 (E.D.N.Y. Mar. 15, 2007) (denying motion to dismiss when plaintiff alleged that his benefits were terminated as retaliation for filing a discrimination lawsuit). Section 510 is not a vehicle for Plaintiff to challenge any Defendant’s decision to bar Plaintiff from a Trustees’ meeting that was investigating Plaintiffs alleged criminal conduct, or the Trustees’ ultimate decision to seek Plaintiff’s resignation. See Ancekewicz, 2005 WL 1411917, at *8 (“ERISA’s goal of protecting [pension and other] benefits from interference does not transform ERISA’s statutory scheme into a federal job protection scheme.” (quoting Raymond v. Mobil Oil Corp., 983 F.2d 1528, 1539 (10th Cir.1993)) (alteration in original)). Therefore, Plaintiffs Section 510 claim is futile. b. Union Defendants The retaliation claim against Union Defendants, however, is a different story. Plaintiff has alleged that he has consistently reported fraud and abuse within the Fund, and, in particular, that he informed Virga that Joseph Giardina, and at least four others, were improperly receiving benefits. (PSAC ¶¶ 144-52.) Following up on this supposed complaint, Plaintiff alleges that he sought a meeting with a variety of LIUNA officials, including the Inspector General in late November 2004. (Id. ¶¶ 152.) Plaintiff later objected to a recommendation to merely terminate the improper benefits, because Plaintiff thought that an audit was necessary to determine if others were improperly receiving benefits. (Id. ¶¶ 153-61.) Soon thereafter, Virga allegedly expressed his “displeasure” that Plaintiff had referred to the matter to LIUNA. (Id. ¶ 160.) According to Plaintiff, it was soon after this series of events that Plaintiff was asked by Pocino in mid-March 2005 to resign from his LIUNA and GNYLECET positions, and it is to those positions (and not to any positions with the MTDCF) that Plaintiff seeks reinstatement. (Id. ¶¶ 177, 188, and 196.) “Whistle-blowers” are protected under Section 510 of ERISA from adverse employment actions relating to whistle-blowing activity. The relevant portion of Section 510 provides that “[i]t shall be unlawful for any person to discharge, fine, suspend, expel, or discriminate against any person because he has given information or has testified or is about to testify in any inquiry or proceeding relating to this chapter or the Welfare and Pension Plans Disclosure Act.” 29 U.S.C. § 1140. It is unarguable that termination from employment is an adverse employment action covered by Section 510. However, Union Defendants argue that Plaintiff fails to allege that Union Defendants acted with the requisite intent to deprive plaintiff of some protected ERISA right or benefit, and that Plaintiff fails to allege that he engaged in protected conduct under Section 510. Regarding the first point, “to prevail on a Section 510 claim, the plaintiff must demonstrate that an employer, in taking adverse employment action against the employee, ‘was at least in part motivated by the specific intent to engage in activity prohibited by § 510.’ ” Tavoloni 26 F.Supp.2d at 680 (quoting Dister, 859 F.2d at 1111). According to Union Defendants, Plaintiff has failed to satisfy this element because he only has alleged that he was deprived of his rights as a Trustee of the Fund, and because any actions by Pocino were in not in his Union capacity. Relatedly, Union Defendants argue that Plaintiffs alleged whistleblower activities related only to the operation of the Fund, and not to the operation of LIUNA. These arguments, while potentially dispos-itive at the summary judgment stage, fail to demonstrate that Plaintiffs proposed amendment is futile. While some of Plaintiffs allegations involve limits on his role as a Trustee of the Fund, and by themselves do not make out a Section 510 claim, the core of his claim is that he lost his job at LIUNA because of his complaints regarding fraudulent administration of the Fund. And while the PSAC is a little vague about which capacity Pocino was acting when he sought Plaintiffs resignation, it cannot be said that Plaintiffs allegations regarding Pocino’s motives, or what hat he was wearing, bar the claim. Thus, given the plausibility of Plaintiffs claims regarding Pocino’s conduct, and, in particular, the motives for that conduct, the scope of Plaintiffs whistle-blower activities is best left for either summary judgment or a trial. Defendant’s second point asks whether Plaintiffs whistle-blowing activities involved an “inquiry” for purposes of Section 510. Here, Plaintiff is helped by the Second Circuit’s decision in Nicolaou v. Horizon Media, 402 F.3d 325, 330 (2d Cir.2005), in which the Court held that “the proper focus is not on the formality or informality of the circumstances under which an individual gives information, but rather on whether the circumstances can fairly be deemed to constitute an ‘inquiry’ ” and thus be entitled to protection under Section 510. Plaintiff adequately alleges, though just barely, that he sought meetings with several individuals, including the LIUNA Inspector General, to provide information about suspected fraud in benefits disbursement. While Plaintiff does not allege he was responding to, or providing information to, a formal inquiry, Plaintiffs claims regarding his alleged efforts at scheduling a meeting with decision-makers and those who might begin a formal inquiry, could constitute a Section 510 claim. Id. (noting that allegations that Plaintiff met with outside counsel and the employer’s president sufficient to state a claim under Section 510). Thus, Plaintiffs proposed amendment to his second cause of action against Union Defendants may proceed, but his allegations regarding Proskauer and Fund Defendants may not. C. Civil RICO Plaintiff alleges that Proskauer, Virga, Pocino, O’Brien, and Carrón, acting individually and in concert, committed illegal acts which constitute violations of RICO. Plaintiff alleges that the MTDCTF is the RICO enterprise. Although Plaintiff alleges a total of nineteen racketeering acts, these allegations can be reduced to a group of four allegations. First, Plaintiff claims that Virga allowed former members of the Union, who had been proscribed from receiving benefits pursuant to a court order, to continue to receive benefits. (PSAC ¶¶ 215-52.) Second, Plaintiff alleges that Proskauer illegally received compensation for its representation of the MTDCTF in Plaintiffs dispute with Singh and in connection with Proskauer’s efforts in this case. (Id. ¶¶ 253-57.) Third, Plaintiff alleges that Proskauer gave illegal gifts to Pocino, Virga, O’Brien, and Car-ron. (Id. ¶¶ 258-84.) Finally, Plaintiff pleads that the above-named Defendants all conspired to engage in the illegal conduct described in the PSAC. (Id. ¶ 285.) Plaintiff contends that this illegal activity has injured him in two ways; first, he argues that he is liable for the losses of the MTDCTF as a result of the illegal activity (id. ¶ 205); and second, he claims that his property interest in the Pension Plan and Welfare Fund has been harmed because “every dollar of loss is a dollar that is unavailable to pay benefits to plaintiff and his dependents” (id. ¶ 206). The elements of a RICO claim under 18 U.S.C. § 1962(c) are that: (1) defendants through the commission of two or more predicate acts; (2) constituting a “pattern”; (3) of “racketeering activity”; (4) directly or indirectly invested in, or maintained an interest in, or participated in; (5) an “enterprise”; (6) the activities of which affect interstate or foreign commerce. See Nat’l Group for Commc’n & Computers Ltd. v. Lucent Techs. Inc., 420 F.Supp.2d 253, 270 (S.D.N.Y.2006). Plaintiff must establish each element as to each individual defendant. Id. at 270 n. 28. “In order to have standing, plaintiff must also show that injuries to its business or property were ‘proximately caused by a pattern of racketeering activity violating Section 1962 or by individual RICO predicate acts.’ ” Id. at 270 (quoting Lerner v. Fleet Bank N.A., 318 F.3d 113, 122-23 (2d Cir.2003)). Defendants argue that Plaintiff lacks standing to pursue a civil RICO claim because he has not pled a sufficient injury. Defendants also argue that the PSAC does not allege any racketeering activity and that Plaintiff has failed to plead operation and control of the alleged enterprise. Indeed, there are more holes in Plaintiffs RICO cause of action than in the proverbial piece of swiss cheese. However, because the Court agrees with Defendants that Plaintiff lacks standing under RICO to bring this claim, the Court need not reach these other deficiencies. Civil RICO allows “[a]ny person injured in his business or property by reason of a violation of Section 1962” to sue for treble damages and attorneys’ fees. 18 U.S.C. § 1964(c). “From this language, courts have extracted the conditions a plaintiff must meet to satisfy RICO’s standing requirements: ‘(1) a violation of Section 1962; (2) injury to business or property; and (3) causation of the injury by the violation.’ ” First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 767 (2d Cir.1994) (quoting Hecht v. Commerce Clearing House, Inc., 897 F.2d 21, 23 (2d Cir.1990)). Plaintiff “only has standing if, and can only recover to the extent that, he has been injured in his business or property by the conduct constituting the violation.” Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985); accord First Nationwide, 27 F.3d at 768. Furthermore, Plaintiff must show that the alleged racketeering was both the proximate and “but-for” cause of his injuries. See First Nationwide, 27 F.3d at 769. The alleged injury claimed here is two-fold. First, Plaintiff claims that he, presumably as a former fiduciary, is liable for any losses incurred as a result of Defendants’ alleged racketeering activity. Second, Plaintiff claims that his personal property interest in the Pension and Welfare Plans has been injured because every dollar lost is a dollar that is no longer available to pay his benefits. Neither of these allegations is sufficient to state a claim for standing under RICO. Plaintiffs putative liability as a former Trustee is not sufficient to claim an injury under RICO. “[A]s a general rule, a cause of action does not accrue under RICO until the amount of damages becomes clear and definite.” Motorola Credit Corp. v. Uzan, 322 F.3d 130, 135 (2d Cir.2003); First Nationwide, 27 F.3d at 768. Any potential liability that Plaintiff may incur as a former Trustee has yet to materialize. A civil RICO action can only be brought when a plaintiffs “actual loss becomes clear and definite.” Denney v. Deutsche Bank AG, 443 F.3d 253, 266 (2d Cir.2006); Motorola Credit Corp., 322 F.3d at 136; First Nationwide, 27 F.3d at 769. Thus, Plaintiffs claim that he has been injured because he may face a lawsuit in the future is not an injury under RICO. See Hecht, 897 F.2d at 24 (holding that claim for loss of future commissions was “too speculative to confer standing”). Plaintiff also fails to adequately plead standing based on any losses suffered by the Union because he has not pled any losses suffered as a direct injury to his business or property as a result of the alleged RICO violation. See Laborers Local 17 Health & Benefit Fund v. Philip Morris, Inc., 191 F.3d 229, 235 (2d Cir.1999) (holding that pleading a “direct injury” is necessary for establishing proximate causation in a RICO action). The potential direct losses alleged here would be borne by the Union—any indirect injury to Plaintiff at some unknown point in the future is too attenuated to confer standing under RICO. See Commer v. Am. Fed’n of State, County & Mun. Employees, No. 01 Civ. 4260, 2003 WL 21697873, at *3 (S.D.N.Y. July 22, 2003) (holding that injuries suffered by a third-party union did not confer standing upon one of its former members to sue under RICO for losses incurred by all of the union’s members); Mayes v. Local 106, No. 93 Civ. 716, 1999 WL 60135, at *3 (N.D.N.Y. Feb. 5, 1999) (“A plaintiff cannot bring a civil suit under RICO, in a personal capacity, where the injury he alleges has been incurred by a union of which he is a member and any derivative injury to him is no different from that sustained by similarly situated members of the same union.”), aff'd, 201 F.3d 431 (2d Cir.1999). Plaintiff, therefore, lacks standing in his capacity as a Plan participant to sue under RICO. The RICO cause of action is thus futile. D. Defamation Plaintiffs final cause of action is for defamation against Rossein, Proskauer, Pocino, Singh, and Columbia. (SPSAC ¶ 289.) Plaintiff claims that these Defendants defamed him by making false statements in connection with the investigation of Singh’s allegations of sexual assault against Plaintiff. To state a claim for defamation under New York law, Plaintiff must establish: “(1) that a defamatory statement of fact was made concerning [Plaintiff]; (2) that the defendant published that statement to a third party; (3) that the statement was false; (4) that there exists some degree of fault; (5) and that there are special damages or that the statement is defamatory per se, i.e. it disparaged the plaintiff in the way of his or her office, profession or trade.” Muzio v. Inc. Village of Bayville, No. 99 Civ. 8605, 2006 WL 39063, at *8 (E.D.N.Y. Jan.3, 2006). The Court will consider the alleged defamatory statements made by each Defendant. ‘While the defamation need not be plead in haec verba, ‘a pleading is only sufficient if it adequately identifies the purported communication, and an indication of who made the statement, when it was made, and to whom it was communicated.’ ” Camp Summit of Summitville, Inc., No. 05 Civ. 4994, 2007 WL 1152894, at *10 (S.D.N.Y. Apr. 16, 2007) (quoting Scholastic, Inc. v. Stouffer, 124 F.Supp.2d 836, 849 (S.D.N.Y.2000)). “The central concern is that the complaint afford defendant sufficient notice of the communications complained of to enable him to defend himself.” Kelly v. Schmidberger, 806 F.2d 44, 46 (2d Cir.1986) (citations omitted). Thus, “[m]ere conclusory statements that the claimant was disparaged by false statements are insufficient to state a defamation claim.” Scholastic, 124 F.Supp.2d at 849; see also Ford v. Clement, 834 F.Supp. 72, 78 (S.D.N.Y.1993) (holding that allegations of defamation were insufficient where they failed to “give [defendant] any notice whatsoever of the communications at issue”), aff'd, 29 F.3d 621 (2d Cir.1994). The Court will consider the alleged defamatory statements made by each Defendant. 1. Rossein Merrick Rossein was retained by Pros-kauer on behalf of the Funds to investigate Singh’s allegations against Plaintiff and to issue a report detailing his findings (“Ros-sein Report” or “Report”). Plaintiff claims that the Rossein Report is libelous, but doesn’t identify any particular portion of the report as containing the libelous material. The Court will liberally construe Plaintiffs claim to encompass the entire Report. Fund Defendants argue that the contents of the Rossein Report are protected by a qualified privilege. Under New York law, a “conditional, or qualified, privilege extends to a ‘communication made by one person to another upon a subject in which both have an interest.’ ” Liberman v. Gelstein, 80 N.Y.2d 429, 590 N.Y.S.2d 857, 862, 605 N.E.2d 344, 349 (1992) (quoting Stillman v. Ford, 22 N.Y.2d 48, 53, 290 N.Y.S.2d 893, 238 N.E.2d 304 (1968)). In the employment context, the qualified privilege is recognized as protecting the free flow of information. See Dunson v. Tri-Maintenance & Contractors, Inc., 171 F.Supp.2d 103, 116-17 (E.D.N.Y.2001). Communications regarding alleged employee misconduct are covered by the privilege. See Loksen, 239 F.3d at 272. However, a defendant can forfeit the privilege “by making a false, defamatory statement with malice of either the common-law or constitutional variety.” Id.; see also Liberman, 590 N.Y.S.2d 857, 605 N.E.2d at 350 (explaining that a finding of either form of malice defeats the privilege). “Common-law malice is based on the traditional concept of spite or ill will, while constitutional malice or ‘actual’ malice refers to publication of false material with knowledge of its falsity, or a high degree of awareness of the falsity.” Dunson, 171 F.Supp.2d at 117. Plaintiff must show malice based on a preponderance of the evidence. See id. Plaintiff has failed to adequately plead that Rossein’s Report satisfies either common-law malice or actual malice. To establish common-law malice, Plaintiff must show that Rossein’s ill will towards Plaintiff was “the one and only cause for the publication .... ” Loksen, 239 F.3d at 272 (internal quotations and citation omitted). Thus, for Plaintiff to show common-law malice, he must show that Rossein issued the Report solely to harm Plaintiff. The SPSAC does not make that allegation. As an initial matter, Rossein was retained as an outsider to conduct an investigation into Singh’s allegations against Plaintiff. (SPSAC ¶ 320.) When Rossein was retained, he was a stranger with no motive to harm Plaintiff and Plaintiff has not pled that Rossein subsequently developed any animus towards Plaintiff. See Brattis v. Rainbow Adver. Holdings, L.L.C., No. 99 Civ. 10144, 2000 WL 702921, at *6 (S.D.N.Y. May 31, 2000) (stating that a finding of personal animus is necessary to establish common-law malice). Plaintiff contends that Rossein’s Report was one-sided, even though the SPSAC documents Rossein’s attempt to interview Plaintiff before he issued his report. (SPSAC ¶ 351.) According to the SPSAC, after Rossein spoke to Plaintiffs counsel, Rossein agreed to meet with Plaintiff and Plaintiffs counsel on April 6, 2005. (Id. ¶¶ 352-53.) Plaintiff acknowledges, however, that it was Plaintiffs counsel who advised Plaintiff to refuse to meet with Rossein on the day of their scheduled meeting. (Id. ¶ 353.) Based solely on the facts pled in the SPSAC, it is apparent that Rossein omitted Plaintiffs version of the events from the Report because Plaintiff, upon advice of counsel, refused to meet with Rossein. (Id.) Notwithstanding these facts, Plaintiff remarkably claims that Ros-sein’s Report is defamatory because it fails to take Plaintiffs side of the story into account. (SPSAC ¶¶ 362-89.) The merits of the Rossein Report, however, are not at issue; the question, rather, is whether Rossein issued his report strictly out of ill-will towards Plaintiff. Nothing in the SPSAC even suggests an affirmative answer to that question. If anything, the SPSAC supports the opposite inference. The same conclusion follows under the actual malice standard, which asks whether Rossein knew that the defamatory statements in his Report were false, or had a high degree of awareness that they were false. Again, Plaintiffs refusal to meet with Rossein made it impossible for Ros-sein to credit Plaintiffs version of Singh’s allegations. (SPSAC ¶ 372.) Moreover, Plaintiff cannot claim actual malice under these circumstances, because “[i]t is well settled that a defendant’s failure to investigate before making defamatory statements does not support a finding of actual malice.” Boyd v. Nationwide Mut. Ins. Co., 208 F.3d 406, 408 (2d Cir.2000) (citing Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 666-67, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989)); accord Brattis, 2000 WL 702921, at *5. In any event, Rossein’s Report is certainly more thorough than other employer-generated, investigative reports that have enjoyed the employer’s qualified privilege. See Dunson, 171 F.Supp.2d at 117 (questioning the accuracy or conclusions drawn in a report not enough to defeat privilege). In addition, Plaintiff also fails to plead that Rossein knew the conclusions in his Report were false or that he was aware of a likelihood of falsity. 2. Proskauer Proskauer is alleged to have defamed Plaintiff three times. (SPSAC ¶¶ 390-406.) First, Plaintiff alleges that Detective Whelan “told plaintiff that [Kathleen] McKenna, [a partner at Proskauer,] telephoned him repeatedly regarding the charges and made statements evidencing her belief in plaintiffs guilt” in connection with the Singh episode. (SPSAC ¶ 315.) Second, Plaintiff claims that McKenna defamed Plaintiff in a letter setting out the Rosse