Nwachukwu v. Liberty Bank (257 F. Supp. 3d 280, 2017)

RULING ON PLAINTIFF’S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

HAIGHT, Senior District Judge:

This case is before the Court on Plaintiffs motion (Doc. 31) for an order of the Court granting Plaintiff leave to file a Second Amended Complaint against Defendant in the form attached to the motion papers. Plaintiffs motion to amend is made under Rule 15(a) of the Federal Rules of Civil Procedure. Defendant resists this motion to amend and reiterates an earlier contention that Plaintiffs initial complaint should be dismissed. See Docs. 20, 32. This Ruling resolves Plaintiffs motion to amend his complaint.

I. INTRODUCTION

In January and June, 2013, Plaintiff Anthony Nwachukwu opened three personal deposit and checking accounts with Defendant Liberty Bank (“Liberty” or “the Bank”). In April 2016, an officer of the Bank advised Plaintiff that the Bank was closing his accounts. Plaintiff objected to the closing, but could not prevent it, and on May 6, 2016 instructed Liberty to wire his funds to the Bank of New York Mullen, which was done.

On May 9, 2016, Plaintiff filed his initial complaint (Doc. 4) in this Court against Liberty. The case is based on the premise that the Bank’s conduct in closing Plaintiffs accounts violated his legal rights. Plaintiff coupled his complaint with a motion for a temporary restraining order and preliminary injunction (Doc. 1). The Court denied all preliminary relief in an oral ruling from the bench after a hearing on May 16. See Minute Entry, Doc. 16; Transcript, Doc. 17.

There ensued some occasionally disjointed activities addressed to the filings, which need not be recounted in detail. It is sufficient for present purposes to say that Plaintiff, having previously availed himself of the ability to amend his complaint once as of right, is now required, by Defendant’s forcefully expressed refusal of consent, to apply to the Court for leave to file a second amended complaint. That application forms the subject matter of the present motion, which this Ruling decides.

The proposed Second Amended Complaint (“SAC”) contains nine counts. They all arise out of the same nexus of fact: The closing by the Bank, in April 2016, of Plaintiffs accounts, against Plaintiffs will and in disregard of his protest. The nine counts may be summarized as follows:

* First Count: breach of contract.

* Second Count: breach of implied duty of good faith and fair dealing

* Third Count: negligent infliction of emotional distress.

* Fourth Count: intentional infliction of emotional distress.

* Fifth Count: violation of Connecticut Unfair Trade Practices Act.

* Sixth Count: violation of 42 U.S.C. § 1981.

* Seventh Count: violation of 42 U.S.C. § 1982.

* Eighth Count: violation of 42 U.S.C. '§ 1983.

* Tenth Count: violation of the OCC of the U.S. Department of the Treasury.

The Second Amended Complaint groups the First through Fifth Counts under the caption “State Claims.” The remaining Counts are grouped under the caption “Federal Claims — Civil Rights Violations.” Plaintiffs present motion, opposed by Defendant in its entirety, seeks a Court order granting Plaintiff leave to file an amended complaint asserting those claims in that order.

II. STANDARD FOR GRANTING LEAVE TO AMEND THE COMPLAINT

In cases like the one at bar, where a party is not entitled to. amend its pleading as of right, Rule 15(a)(2) provides that “a party may amend its pleading only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2).

The leading case on the propriety of amendment of pleadings by leave of court is Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). The Supreme Court stated generally that “the purpose of pleading is to facilitate a proper decision on the merits.” 371 U.S. at 182, 83 S.Ct. 227 (citing and quoting Conley v. Gibson, 355 U.S. 41, 48, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Foman then voices this oft-quoted guidance:

In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought [to amend] should, as the rules require, be “freely given.”

371 U.S. at 182, 83 S.Ct. 227.

Instructed by Foman, federal trial courts are lenient in allowing amendments to pleadings, but they are not supine. If the party opposing amendment demonstrates the presence of one or more of the negative factors listed in Foman, the amendment will not be allowed, for in that circumstance the cause of justice would not be served.

In the following Parts of this Ruling, I will consider whether any of the “apparent or declared reasons” for refusing amendment articulated in Foman are present in this case. The final and most extended discussion''relates to the last preclusive circumstance Foman enumerates: the “futility of amendment.” The other Foman factors require less analysis.

III. FACTORS RELEVANT TO REFUSING LEAVE TO AMEND

A. Undue Delay, Undue Prejudice

While undue delay in bringing a motion to amend is one of the factors, as enumerated by Foman, to consider in determining whether leave to amend will be extended, “[m]ere delay, ... absent a showing of bad faith or undue prejudice, does not provide a basis for a district court to deny the right to amend.” State Teachers Ret. Bd. v. Fluor Corp., 654 F.2d 843, 856 (2d Cir. 1981). See also Middle Atl. Utils. Co. v. S. M. W. Dev. Corp., 392 F.2d 380, 384 (2d Cir. 1968) (“The three-year delay,... is an inadequate basis for denying a motion to amend, It may be a factor to be considered but unless the motion either was made in bad faith or will prejudice defendant, delay by itself is not enough to deny the requisite relief’). The party opposing amendment must show it has been prejudiced by its adversary’s delay in seeking leave.. In this Circuit,

In determining what constitutes “prejudice,” we consider whether the assertion of the new claim would: (i) require the opponent to expend significant additional resources to conduct discovery and prepare for trial; (ii) significantly delay the resolution of the dispute; or (iii) prevent the plaintiff from, bringing a timely action in another jurisdiction.

Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir. 1993).

In the case at bar, Plaintiffs present motion to amend his complaint is not preceded .by significant delay. The first motion to amend (Doc. 19) was filed on May 27, 2016. After some procedural uncertainties, the present motion to amend was filed on July 29, 2016. That is not an inordinate interval of time. The timing of this motion for leave to file a Second Amended Complaint does not present any of the significant measures of prejudice to Defendant enumerated by Block as reasons to disallow amendment. There has been no showing by Defendant that the new complaint will require it to expend significant additional resources, nor that the amendment will cause significant delay. (Indeed, the proposed Second Amended Complaint has only nine counts to the First Amended Complaint’s ten.) Accordingly, the Court is satisfied that neither undue delay nor undue prejudice to the opposing party provides a viable ground upon which to deny this motion for leave to amend.

B. Bad Faith, Dilatory Motive, Repeated Failure to Cure

Plaintiff has made two prior inadequate attempts to put forward this amendment, and the Court’s denial of the first attempt gave Plaintiff’s counsel ample notice of the Rule 15(a) standard to be met. See Doc. 25, at 2. Plaintiffs counsel, nonetheless, made a second, more egregious error in the second effort to amend, by misstating and mis-characterizing Rule 15(a). See Memorandum of Law in Support of Plaintiffs Second Amended Complaint, Doc. 29-2 at 2; Doc. 30. However, the Court takes Plaintiff’s counsel at his word when he says, on the second page, of his latest memorandum of law, that regarding his mistake of law, “there was no intent at ‘slight-of-hand’ or any attempt.to disregard the rule.” Doc. 31-1 at 2 ml.

This is not a case like Denny v. Barber, 576 F.2d 465 (2d Cir. 1978), where the district judge, in dismissing the initial complaint, put plaintiff on notice as to the defects of his complaint, and plaintiff sought leave to file a second amended complaint after a first amended complaint that had likewise been dismissed. In the case at bar, Plaintiff does, as discussed infra, state claims meeting the federal pleading standard, and has made .prompt attempts to cure the defects in his motions. Accordingly, the Court fails to find any bad faith or dilatory motive on the part of this Plaintiff in proffering this second amended complaint, and regards Plaintiffs isolated prior curative failure an insufficient ground on which to deny the instant motion for leave' to amend.

C. Futility

1. Preliminary Considerations

Although, under ordinary circumstances, leave to amend must be freely given, denial is proper where the proposed amendment would be “futile.” Foman, 371 U.S. at 182, 83 S.Ct. 227. An amendment is considered “futile” if the amended pleading fails to state a claim, or would be subject to a successful motion to dismiss on some other basis. See, e.g., Lucente v. Int’l Bus. Machs. Corp., 310 F.3d 243, 258 (2d Cir. 2002) (“An amendment to.a.pleading is futile if the proposed claim could not withstand a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6)”); Donovan v. Am. Skandia Life Assur. Corp., 217 F.R.D. 325, 325 (S.D.N.Y. 2003) (“Where a proposed amended complaint cannot itself survive a motion to dismiss, leave to amend would be futile and may clearly be denied”), aff'd, 96 Fed.Appx. 779 (2d Cir. 2004), cert. denied sub nom Hendrickson v. Am. Skandia Life Assur. Corp., 543 U.S. 1146, 125 S.Ct. 1299, 161 L.Ed.2d 107 (2005); Bentley v. Greensky Trade Credit, LLC, 156 F.Supp.3d 274, 283 (D. Conn. 2015), reconsideration denied sub nom. Bentley v. Tri-State of Branford, LLC, No. 3-cv-141157, 2016 WL 2626805 (D. Conn. May 6, 2016).

■ It is therefore appropriate for the Court to consider which, if any, of the claims alleged in the Second Amended Complaint would survive a motion to dismiss under Rule 12(b)(6), if that pleading were to be filed. Because an amended claim’s futility under Rule 15(a) depends upon whether it would be dismissed under Rule 12(b)(6), we ask of each claim Plaintiff that alleges in the SAC: Is this a claim upon which relief can be granted? — that being the touchstone of a motion to dismiss under Rule 12(b)(6). If a particular count in the proposed SAC does not state a claim upon which relief can be granted, the Court will not grant Plaintiff leave to amend his complaint to include that claim.

While the following discussion of futility considers the nine pleaded counts seriatim for the most part,- particular emphasis will be laid upon the later- claims grouped in the SAC under the - caption “Federal Claims.” I do so because the original subject matter jurisdiction of this federal district court depends upon the presence of a justiciable federal question under 28. U.S.C. § 1331. This would not appear to be a case where subject matter jurisdiction may be derived from diversity of citizenship under § 1332. If the proposed SAC were filed, and it should become apparent that Plaintiff asserted no viable federal claims, the Court would dismiss the entire case, the federal claims with prejudice, and the state claims without prejudice to assertion in a state court, the latter for the reason that I would decline to exercise supplemental jurisdiction under 28 U.S.C. § 1367 over the state claims. If, on the other hand, it- should appear that the SAC contains, at least one viable federal claim, I would exercise supplemental jurisdiction over the state claims. The question would then become, for Rule 15(a) purposes, whether each state claim survives Rule 12(b)(6) analysis. There is ho point reaching that later stage unless at least one federal claim states a claim upon which relief can be: granted, and in consequence cannot be discarded as futile, thereby establishing this Court’s subject matter jurisdiction.

2. Manifestly Futile Claims

A detailed analysis of the futility of each count is not necessary. It is immediately apparent that the Eighth Count of the SAC does not and cannot state a claim.

The count is captioned “Violation of 42 U.S.C. § 1983.” Plaintiffs theory, as alleged in ¶ 69, is that, the Bank’s conduct in closing Plaintiffs accounts denied to Plaintiff “known constitutional rights to be free of discrimination and to equal treatment as do white people and those not of Nigerian descent, all in violation of 42 U.S.C. § 1983.” There is no such thing as a “violation of 42 U.S.C. §■ 1983.” .

Section 1983 provides a civil claim for damages against any person who, acting under color of state law, deprives another of a right, privilege dr immunity secured by the Constitution or the laws of the United States. Section 1983 itself creates no substantive rights; it provides only-a procedure for redress for the deprivation of rights established elsewhere.

Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993) (citations omitted). “Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred.” Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (internal quotation marks omitted) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). In the case at bar, the federal rights Plaintiff invokes are conferred by 42 U.S.C. §§ 1981 and 1982, pleaded in the Sixth and Seventh Counts respectively. No independent or separate claim lies under § 1983.

In any event, Plaintiff could not utilize § 1983 as a vehicle for his claims against Liberty Bank because that section furnishes a means of redress only with respect to the conduct of those who act “under color of state law” — individuals who are, in case law vernacular, “state actors.” Absent that element, no claim lies under § 1983. See, e.g., Hollander v. Copacabana Nightclub, 624 F.3d 30, 33 (2d Cir. 2010) (“To assert a Section 1983 claim, Den Hollander must plead that the Nightclubs’ conduct was done under the color of state law. State action occurs where the challenged action is fairly attributable to the state” (citations and internal quotation marks omitted)). The closing of Plaintiffs accounts was the conduct of Liberty Bank, a private entity. Plaintiff does not allege, and no discernible basis exits for believing, that the Bank’s action was fairly 'attributable to the State of Connecticut.

Given these deficiencies, the Eighth Count in the SAC could not survive a motion to dismiss it. Consequently, the Court will not grant leave to include that count in an amended complaint

Comparable deficiencies exist with respect to the Tenth Count of the SAC, in which Plaintiff alleges at ¶ 63 that Defendant Liberty Bank “is a member of the OCC of the US Department of the Treasury, and as such is required to give fair access and equal treatment to its customers and to comply with all consumer laws and regulations.” Plaintiffs theory is that Liberty Bank violated the OCC.

That claim was included in an earlier version of the complaint, which the Bank moved to dismiss (Doc. 20). The Bank’s brief in support of that motion (Doc. 21), at 7-8, argued with respect to the OCC claim that “the Office of the Comptroller of Currency (’OCC’) is a [U.S.] government agency”; Plaintiff had cited to no authority enabling the Court to substantiate the claim or grant any relief to Plaintiff; and “Liberty is a state-chartered mutual bank, not regulated by the OCC, and therefore no cognizable legal theory exists in respect to this Tenth Claim.” There have been subsequent exchanges of briefs of counsel, but Plaintiff has never quarreled with Defendant’s dismissive arguments concerning the OCC claim, or cited any authority in support of that claim. The OCC claim may fairly be regarded as abandoned by Plaintiff. In any event it has no merit in law, and leave will not be granted to include the Tenth Count in an amended complaint.

3. Standard of Review on Futility of Claims

As noted supra, leave to amend a pleading under Rule 15(a) will be denied if a claim sought to be added by amendment would be dismissed under Fed. R. Civ. P. 12(b)(6).

Rule 12(b)(6) allows defendants to assert by motion the defense of a plaintiffs “failure to state a claim upon which relief can be granted.” In analyzing whether a plaintiff states a claim upon which relief can be granted, a court must accept as true all facts alleged in the complaint. Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (citing Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002)). Claims set forth by the plaintiff in the complaint must be facially plausible. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim has “facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

A reviewing court need not credit “legal conclusions” or “[t]hreadbare recitals of the elements of a cause of action supported by mere conclusory statements.” Id. To survive a motion to dismiss, a complaint “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Instead, plaintiffs must allege “enough facts to state a claim to relief that is plausible on its face,” which is to say, facts sufficient to “nudge[] their claims across the line from conceivable to plausible.” Id. at 570, 127 S.Ct. 1955.

In the case at bar, a claim Plaintiff asserts in his proposed Second Amended Complaint that does not meet those standards would not survive a motion to dismiss the claim under Rule 12(b)(6). Accordingly, to that extent the Court will not allow the amendment, since to do so would be futile.

Before considering the Plaintiffs claims seriatim, it is necessary to add some qualifying comments with respect to the pleading and proof of two of those claims: the Sixth Count and the Seventh Count. In the Sixth Count, Plaintiff alleges that Liberty Bank’s conduct in closing his accounts violated 42 U.S.C. § 1981. The Seventh Count alleges that the same conduct violated 42 U.S.C. § 1982. §§ 1981 and 1982 are codifications of what, in their original forms, were parts of the Civil Rights Act of 1866, enacted by Congress in the immediate aftermath of the Civil War to prohibit racial discrimination in specified areas of human endeavor. This historical background is recited by the Supreme Court in Runyon v. Fairfax-Brewster School, Inc., 427 U.S. 160, 167-74, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976).

The Civil Rights Act of 1964 included, in Title VII, prohibitions against discrimination in various aspects of employment. Title VII has been a fertile ground of federal litigation. Beginning with McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and in a line of subsequent cases, the Supreme Court fashioned a protocol for the pleading and proof of a Title VII employment discrimination claim. This is the now familiar McDonnell Douglas framework which the Second Circuit summarized recently in Littlejohn v. City of New York, 795 F.3d 297 (2d Cir. 2015). An employment discrimination plaintiff establishes a prima facie case if the plaintiff can show that he or she is a member of a protected class; was qualified for employment in the position in question; suffered an adverse employment action; and there is “some minimal evidence suggesting an inference that the employer acted with discriminatory motivation.” Littlejohn, 795 F.3d at 307 (citing Supreme Court decisions). Those showings, if made, raise a temporary presumption of discriminatory motivation, which shifts the burden of production to the employer to come forward with a non-invidious justification for the adverse employment action. If the employer presents evidence for that justification, “joining issue on plaintiffs claim of discriminatory motivation,” the presumption vanishes, and the burden shifts back to plaintiff, who must demonstrate that the employer’s proffered reason was not the true, or in any event the sole, reason for the employment decision, a burden that “merges with plaintiffs ultimate burden of showing that the defendant intentionally discriminated against her.” Id. at 307-08.

The McDonnell Douglas proof and bur-: den-shifting framework is invariably applied in Title VII employment discrimination cases, the land of its birth, where McDonnell Douglas procedures in the district courts must be regarded as compulsory. However, the Second Circuit has made use of the framework in other contexts as well. In Huntley v. Community School Board of Brooklyn, New York School District No. 14, 543 F.2d 979 (2d Cir. 1976), an African American school principal challenged his termination as racially motivated, in violation of §§ 198T and 1983, but did not assert a claim under Title VII. The Second Circuit applied McDonnell Douglas, reasoning that “[although McDonnell dealt with questions of the order and nature of proof in actions under the Civil Rights Act of 1964, by analogy the principles there enunciated are applicable here.” 543 F.2d at 983 n.6 (citation omitted). In Sorlucco v. New York City Police Department, 888 F.2d 4 (2d Cir. 1989), the court of appeals said: “By analogy, the [McDonnell Douglas] analysis applies to claims under section 1983.” 888 F.2d at 7. In Lizardo v. Denny’s, Inc., 270 F.3d 94, 103 (2d Cir. 2001), the Second Circuit applied McDonnell Douglas burden-shifting to a § 1981 complaint brought by African American and Asian American restaurant patrons. In Back v. Hastings On Hudson Union Free School District, 365 F.3d 107, 123 (2d Cir. 2004), the court applied McDonnell Douglas in a § 1983 employment discrimination case where there was no Title VII claim. In Ruiz v. Cty. of Rockland, 609 F.3d 486, 491 (2d Cir. 2010), the Second Circuit considered Title VII, § 1981, and § 1983 claims together, and applied the- McDonnell Douglas framework to all of them.

In Littlejohn, 795 F.3d 297, an employment case where the ■ plaintiff employee coupled a Title VII claim with claims under 42 U.S.C. §§ 1981 and 1983, the Second Circuit said, at 312: “Littlejohn’s disparate treatment claim under Title VII, § 1981, and § 1983 is subject to the burden-shifting evidentiary framework set forth in McDonnell Douglas.” Judge Drone^s opinion cited Ruiz for that inclusive proposition. Id.

Equally instructive is the Second Circuit’s most recent decision on the point: Doe v. Columbia University, 831 F.3d 46 (2d Cir. 2016). The plaintiff in Doe, á male student at the defendant university, claimed that the university acted with sex bias in investigating and suspending him for alleged sexual assault, in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 et seq. No employment claims were involved. The district court dismissed Doe’s action under Rule 12(b)(6). The Second Circuit reversed. Judge Leval’s opinion poses the question as:

whether the burden-shifting framework established by the McDonnell Douglas line of cases for claims of discrimination on account of race, religion, or national origin under Title VII, and the associated -pleading burden we articulated in Littlejohn, apply also to Title IX claims alleging discrimination on account of sex in education programs or activities that receive federal support.

831 F.3d at 55. The Second Circuit answered that question in the affirmative. “These claims,” it reasoned, “have so much in common that, at least on certain sorts of facts, that rules the Supreme Court established for Title VII litigation appear to apply also to such similar claims of sex discrimination under Title IX.” Id.

In Doe, the Second Circuit said that a pleading “is sufficient with respect to the element of discriminatory intent” if it “pleads specific facts that support a minimal plausible inference of such discrimination.” Id. at 56. The Doe opinion’s use of the adjective “plausible” reflects the clear import of reading Littlejohn and Doe together: on a motion to dismiss under Rule 12(b)(6), the criteria articulated in Iqbal apply to discrimination claims, which must also be evaluated in accordance with the McDonnell Douglas framework. The Second Circuit observed in Doe that “In Litt-lejohn, we clarified that Iqbal applies to employment-discrimination complaints brought under Title VII,” with the practical effect that,

at the 12(b)(6) stage of a Title VII . suit, allegation of facts supporting a minimal plausible inference of discriminatory intent suffices as to this element of the claim because this entitles the plaintiff to the temporary presumption of McDonnell Douglas until the defendant furnishes its asserted reasons for its actions against the plaintiff.

831 F.3d at 54-55.

In the case at bar, Plaintiff Nwa-chukwu claims that Defendant Liberty Bank, in closing his accounts,, discriminated against him because of his race and national origin. Those claims lie under 42 U.S.C. §§ 1981 and 1982, pleaded in the Sixth and Seventh Counts respectively. The evolving line of Second Circuit decisions establishes the rule in this Circuit that requires the combined application of the McDonnell Douglas framework and Iqbal pleading principles to any claim where discriminatory complaint is an element. Under the cited Second Circuit cases, a district court evaluating the legal sufficiency of a discrimination claim applies the McDonnell Douglas framework to the pleading and order of proof, and applies the Iqbab-Ttvombly criteria to the adequacy of a plaintiffs initial pleading.

I will follow that authority when I come to consider the futility vel non of Plaintiffs federal Sixth and Seventh Counts. They are preceded in the Second Amended Complaint by the state claims. I will now consider the state claims in order. However, discussion of all Plaintiffs claims in the SAC is preceded by a statement of Plaintiffs narrative of the case. That narrative forms the factual nexus' for every claim Plaintiff asserts in his proposed amended pleading.

IV. PLAINTIFF’S NARRATIVE OF THE CASE

The theme pervading all nine counts in the amended complaint is that Liberty Bank’s closing of Plaintiffs accounts was arbitrary, unfair, conducted in a deceptive manner, and the result of the Bank’s discrimination against Plaintiff on account of his race and national origin.

Plaintiffs allegations with respect to the manner in which his accounts came to be closed appear in Count One of the SAC and are incorporated by reference throughout. In essence, Plaintiffs account is that on April 4, 2016, an unnamed bank employee telephoned Plaintiff unexpectedly. Plaintiff was not there to receive the call. The caller left a message, asking Plaintiff to return the call “so as to discuss his accounts at Liberty Bank.” SAC ¶ 15.

Plaintiff returned the Bank’s call that day. A brief conversation ensued. Plaintiff speaks English with a pronounced accent. The bank employee asked him about his country of origin. Plaintiff responded that he was originally from Nigeria. In response to a further question by the bank employee about his employment, Plaintiff said that “he manages a payment platform.” SAC ¶ 17. The short conversation thereupon ended. Plaintiff alleges that “[tjhere was no legitimate banking purpose for the information sought by the banking official,” since Plaintiffs “country of origin and line of work had nothing to do with the accounts held by him at Liberty Bank.” ¶ 18.

Plaintiffs theory of the case is that on the basis of that single phone conversation, and in view of numerous publicized charges of fraudulent internet banking schemes concocted by Nigerians, those in charge of Liberty Bank decided they wanted nothing more to do with Plaintiff or his funds on deposit. On or about April 14, 2016, Plaintiff received a letter dated April 4 from a Liberty Bank vice president, Robin Fujio, stating that Plaintiffs accounts would be closed by April 29, 2016.

The reasons the Bank gave Plaintiff in its letter for closing his accounts had to do with difficulty in substantiating “the volume and dollar amounts credited to your personal accounts here,” and “the nature of the business that you own,” which involved obtaining “visas and passports.” SAC ¶ 24. Ms. Fujio refused Plaintiffs requests to meet with her to discuss the matter. During a telephone conversation on April 29, 2016, Plaintiff alleges that Fujio said to him:

I will not see you and your attorney and there is nothing you can do to change my mind. I will meet with you alone if you want to show me anything, but like I said, it will not change my mind. The accounts will be closed. We don’t want money from your type.

SAC ¶30. The pleading stops short of saying that vice president Fujio “thereupon slammed down the phone,” but the unpleasant tenor of this conversation is sufficiently conveyed without it.

During this conversation, Plaintiff complained to Fujio that the sudden and involuntary closing of his accounts at Liberty would cause him various sorts of hardship and inconvenience. The only concession Fujio would give was to postpone the closings by one week.

At all times between Plaintiff opening these accounts and the Bank closing them, Plaintiff maintained the accounts in good standing, complied with all Bank rules and practices, and paid all banking charges.

Plaintiff includes in his narrative a suggested motive for Liberty Bank’s adverse behaviour toward him. At that time, Plaintiff alleges, there was “a widely held belief among Americans, especially in the banking community that Nigerians are often involved in sham international banking schemes and illicit activities,” with the results that “the FBI has actively investigated internet fraudulent banking schemes that allegedly originate in Nigeria” and “Nigerians have come under unfair scrutiny by the banking community in America based upon the illicit activities and banking shams of a relatively small group of Nigerians.” SAC ¶¶ 19-21. In these circumstances, Plaintiff alleges in ¶ 22 “on information and belief’ that:

the Liberty Bank officers to whom Mr. Nwachukwu spoke, including the gentleman who for no known banking purpose asked him about his country of origin and First Vice President Robin Fujio, were aware of the widely held belief and unfairly unprejudiced belief that Nigerians were often involved in sham international banking schemes and illicit activities involving banking.

Plaintiff does not allege specifically that this awareness ascribed to Liberty Bank officers caused them to close his accounts, but that is the clear implication of the SAC read as a whole.

With the exception of the just quoted conclusory allegations about Bank officers’ mental processes, Plaintiff’s narrative is fashioned from well-pleaded factual allegations. Iqbal commands me to accept them as true. My responsibility on the present motion is to determine whether those facts, when viewed in the light of governing law, state plausible claims for relief. That is a “context-specific task” which, Justice Kennedy instructs us in Iqbal, “requires the reviewing court to draw on its judicial experience and common sense.” 556 U.S. at 679, 129 S.Ct. 1937. This Ruling draws upon those virtues, to the extent that I possess them.

I turn to the remaining counts in the Second Amended Complaint, beginning with the state claims.

V. STATE CLAIMS

A. CountOne: Breach of Contract

In Connecticut, “[t]he elements of a breach of contract claim are [1] formation of an agreement, [2] performance by one party, [3] breach by the other party, and [4] damages.” Meyers v. Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C., 311 Conn. 282, 291, 87 A.3d 534 (2014) (quoting Maloney v. Connecticut Orthopedics, P.C., 47 F.Supp.2d 244, 249 (D. Conn. 1999)).

As to the first element, Plaintiff satisfactorily alleges that he and Defendant formed an agreement at the time Plaintiff opened his bank accounts with Defendant. ¶ 35. Plaintiff also satisfactorily alleges his own performance, saying he “did not violate any terms of the agreement concerning his accounts .... The accounts were in good standing and the fees that were charged ... were always paid.” ¶ 36. As to the third element, Plaintiffs central claim of breach seems to be that Defendant failed to secure Plaintiffs accounts, following an inadequate “investigation.” Taking all of Plaintiffs factual allegations as true, this is sufficient to satisfy the breach element of a breach of contract claim.

Where the breach of contract claim comes up short is in its failure to allege actual damages caused by the breach, as required by the fourth element. In Connecticut, proof of damages is an essential element of a claim for common law breach of contract. Meyers, 311 Conn. at 291, 87 A.3d 534. “When damages are claimed they are an essential element of the plaintiffs proof and must be proved with reasonable certainty.” Leggett St. Ltd. P’ship v. Beacon Indus., Inc., 239 Conn. 284, 308-09, 685 A.2d 305 (Conn. 1996). In the absence of such evidence of the amount of actual damages, “the plaintiff cannot prevail” on a claim for breach of contract. Bottaro v. D & D Heating and Air Conditioning, No. TTDCV136006751S, 2015 WL 5626167, at *4 (Conn. Super. Ct. Aug.17, 2015).

In the present case, the only reference in the First Count, the breach of contract claim, that is even arguably relevant to damages appears in ¶ 41, where Plaintiff alleges: “The closure of the accounts if left the way it is will make other banks/financial institutions wary of the Plaintiff without reason.” This language cannot be read as an assertion that such fiscal embarrass-mént has already been visited upon Plaintiff by some unnamed “other bank/financial institution.” Rather, Plaintiff is speculating — the circumstances do not merit a stronger word — that this may happen to him in the future. Moreover, the speculation is implausible. Liberty Bank closed Plaintiffs accounts in April 2016. It is now June 2017, over a year later. If some other bank or institution had treated Plaintiff warily, negatively or adversely because Liberty Bank had previously closed his accounts, one would expect that the Court would have heard about it by now. The logical inference to draw is that Plaintiff has had no difficulty or awkwardness in his subsequent dealings with other banks.

Conceptually, it is possible under the Connecticut cases to include a future loss in compensable actual damages for a present breach of contract. But the nature, amount and likelihood of that future loss must be adequately proven.’ An illustrative case is Wyatt Energy, Inc. v. Motiva Enterprises, LLC, 128 Conn.App. 666, 19 A.3d 181 (2011), where the owner of a port terminal entered into a contract with an oil refiner for the refiner’s use of the terminal. The terminal owner breached the contract. The refiner included in its asserted damages, and succeeded upon, a claim that the terminal owner’s breach deprived the refiner of future revenues under a separate contract between the refiner and its leading customer. During a bench trial, the trial court received proof from the refiner about the nature and profitability of its agreement with its customer, and the likelihood of the agreement being extended and the revenues continuing, but for the terminal operator’s breach. The Connecticut Appellate Court, - affirming the trial court’s award of damages on that claim, reasoned that the refiner’s trial evidence

proved to a reasonable certainty that Citgo would have remained a customer of Motiva at the Wyatt terminal .throughout the life of the agreement. Notwithstanding Wyatt’s argument to the contrary, the court’s memorandum of decision demonstrates that its award of damages was based not on mere speculation or assumptions,- but on its evaluation of the evidence presented in support of Motiva’s damages claim; evidence that afforded a basis for a reasonable estimate of Motiva’s total damages as sustained by Wyatt’s breach of the agreement.

128 Conn.App. at 687-88, 19 A.3d 181 (internal quotation marks omitted).

In contrast, Plaintiffs proposed amendment contains no allegations identifying banks or - institutions that might treat Plaintiff unfavorably in the future because of Liberty Bank’s past conduct, or how that hypothesized adverse treatment might damage Plaintiff. Nor is there any allegation that Plaintiff has been subjected to such indignities up to the present. The Appellate Court in Wyatt Energy held that the refiner’s claim for lost future revenues was compensable, as actual damages for breach of contract because the claim was based on evidence, not “mere speculation or assumptions.” Plaintiffs claim that Liberty Bank’s breach of contract will damage him in futuro is nothing but speculation or assumptions. In short, Plaintiffs failure to plead any form of damages is a concomitant failure to plead an essential element of this breach of contract claim.

In consequence, Plaintiffs proposed First Count does not state a viable claim under Connecticut law for breach of contract. The Court will not grant leave to amend the complaint so as to include that claim.

B. Count Two: Breach of the Implied Covenant of Good Faith and Fair Dealing

Count Two of the SAC reincorporates the narrative allegations of the pleading, and alleges in ¶ 42 that Liberty Bank “breached the doctrine of good faith and fair dealing that is implicit in all business transactions.”

“[I]t is axiomatic that the duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship.” De La Concha of Hartford, Inc. v. Aetna Life Ins. Co., 269 Conn. 424, 432, 849 A.2d 382 (Conn. 2004). Stated otherwise, “every contract carries an implied duty requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement.” Id. To constitute a breach of the covenant of good faith and fair dealing, the violative conduct “must have been taken in bad faith.” Id. at 433, 849 A.2d 382. “Bad faith” in this context is “not prompted by an honest mistake as to one’s rights or duties, but by some interested or sinister motive. Bad faith means more than mere negligence; it involves a dishonest purpose.” Id.

“Bad faith is usually proved circumstantially because it is usually, by definition, ‘furtive,’ and thus a plaintiff need not set forth' a more specific or objective set of facts in the complaint in order to survive a motion to dismiss.” Singer v. Priceline Grp., Inc., No. 15-cv-1090 (VAB), 2016 WL 3976539, at *6 (D. Conn. July 22, 2016) (internal quotation marks omitted) (quoting Antonacci v. Darwin Select Ins. Co., No. HHBCV085009088, 2009 WL 1424676, at *2 (Conn. Super. Ct. Apr. 27, 2009)).

In the case at bar, Plaintiff adequately pleads that the complained-of acts taken by Liberty Bank to impede his contractual rights (closure of his accounts with the Bank) were taken for an “interested or sinister motive.” Plaintiff alleges that the Bank closed his accounts “for illegal discriminatory reasons based upon [Plaintiffs] race and national origin.” SAC ¶ 39.

Iqbal held with respect to an allegation that defendants acted with discriminatory intent that “the Federal Rules do not require courts to credit a complaint’s, conclu-sory statements without reference to its factual, context,” and dismissed the action because “respondent’s complaint fails to plead sufficient facts to state a claim for purposeful and unlawful, discrimination against petitioners.” 556 U.S. at 686-87, 129 S.Ct. 1937. In contrast, the Plaintiff at bar pleads suggestive facts. He points out that the Bank officers’ decision to close his accounts was taken seemingly on the same day that the Bank’s employee inquired into Plaintiffs national origin and learned he was Nigerian, a circumstance coupled with the Bank officer’s subsequent dismissive statement to Plaintiff: “We don’t want money from your. type.” -¶¶ 17, 23, 30. These allegations are sufficient to establish at- the pleadings stage a plausible claim that the Bank engaged in the “interested or sinister motive” of discrimination on the basis of race or national origin.

Under Connecticut law, acting in bad faith is a necessary, but not sufficient, element of a cognizable claim for breach of the implied covenant of good faith and fair dealing. To recover for breach of the covenant, a plaintiff must establish the requisite elements of a breach of contract claim. See Hirschfeld v. Machinist, 151 Conn.App. 414, 95 A.3d 1167 (2014):

It is well settled that a breach of the implied covenant of good faith and fair dealing is, in essence, a breach of contract — and, therefore, subject to the general rules governing the law of contracts ....

... [A] claim for breach of good faith and fair dealing is nothing more than a breach of contract claim and is analyzed like a claim for the breach of any other contractual duty. The appropriate remedy for a breach of the implied covenant of good faith and fair dealing, therefore, is money damages.

Id. at 430-31, 95 A.3d 1167 (Flynn, J., dissenting) (citation and internal quotation marks omitted). For the reasons stated in the preceding section, Plaintiff does not allege a requisite element of a breach of contract claim — actual damages. That is fatal to a claim for breach of the covenant of good faith and fair dealing implied in the contract between the parties. The Connecticut cases’ requirement, that a viable claim for breach of contract include demonstrable damages caused by the breach, is not abrogated by characterizing the offending conduct as a breach of the implied covenant.

Further, Connecticut courts have adopted the view that a claim for breach of the implied covenant of good faith and fair dealing must be tied to an alleged breach of an express contract term. See Geysen v. Securitas Sec. Servs. USA, Inc., 322 Conn. 385, 399, 142 A.3d 227 (Conn. 2016); Landry v. Spitz, 102 Conn.App. 34, 47, 925 A.2d 334 (2007). See also Steiner v. Lewmar, Inc., No. 3:09 CV 1976 DJS, 2013 WL 5755578, at *5 (D. Conn. Oct. 22, 2013) (Squatrito, J.) (quoting Landry); E. Point Sys., Inc. v. Maxim, No. 3:13-CV-00215 VLB, 2014 WL 523632, at *4 (D. Conn. Feb. 7, 2014) (Bryant, J.) (same); Larobina v. Wells Fargo Bank, N.A., 3:10—cv1279(MRK), 2012 WL 1032953, at *4 (D. Conn. Mar. 27, 2012) (Kravitz, J.) (same). As discussed under Count One, Plaintiff has not stated a claim for breach of the contract’s express terms.

Because Plaintiff has not pleaded factual allegations as to damages, leave will not be granted to amend the complaint to include a claim of breach of the implied covenant of good faith and fair dealing.

C. Count Three: Negligent Infliction of Emotional Distress

Count Four: Intentional Infliction of Emotional Distress

Count One and Count Two sound in contract. Connecticut law also establishes the tort of infliction of emotional distress. More precisely, there are two related but separate torts: intentional and negligent infliction of emotional distress. Plaintiff seeks leave to amend his complaint to plead both of them.

Typically a plaintiff pleads both infliction claims in the alternative, in the same complaint, against the same defendant, arising out of the same nexus of facts. The case at bar follows that pattern. Plaintiff alleges in the Third Count that Liberty Bank’s conduct constitutes negligent infliction of emotional distress upon Plaintiff. The Fourth Count alleges that the same conduct constitutes intentional infliction of that distress.

In Carrol v. Allstate Insurance Company, 262 Conn. 433, 815 A.2d 119 (2003), the Connecticut Supreme Court had occasion to consider both causes of action together and reflect upon their similarities and differences. The case arose out of property damage caused by a fire at the plaintiffs home. Plaintiffs insurer, the defendant, denied coverage on the basis of its investigatory conclusion that the fire resulted from arson committed by plaintiff. Plaintiff sued the insurer under the policy. A jury trial established that the insurer’s conclusion of arson was erroneous.

The jury awarded plaintiff damages for intentional and negligent infliction of emotional distress, and breach of contract. The finding of intentional infliction allowed an award of punitive damages against the insurer. On appeal, the Connecticut Supreme Court reversed the judgment for intentional infliction of emotional distress and vacated the award of punitive damages. The court affirmed the judgment for negligent infliction. The court’s reasoning for this divided result is instructive in the case at bar. I consider these two claims, asserted by the present Plaintiff, in order.

1. Intentional Infliction of Emotional Distress

As for the intentional infliction of emotional distress, the Carrol court summarized the law of Connecticut in concise terms:

In order for the plaintiff to prevail in a case for liability under intentional infliction of emotional distress, four elements must be established. It must be shown (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant’s conduct was the cause of the plaintiffs distress; and (4) that the emotional distress sustained by the plaintiff was severe.

Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of. the facts to an average member of the community would arose his resentment against the actor, and lead him to exclaim, Outrageous! Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress.

262 Conn. at 442-43, 815 A.2d 119 (footnote, citations, and internal quotation marks omitted).

Reverting to the case at bar, I conclude that the Plaintiffs narrative of events, even if accepted as entirely truthful,- does not state a plausible claim for the intentional infliction of emotional distress under the demanding criteria of Carrol. On Plaintiffs own narrative and theory of the case, the Bank did not close his accounts because of some mysterious, purposeless, baseless, unfounded, excessive and outrageous intention to.cause Plaintiff emotional distress. Rather, Plaintiff’s theory is that as the result of real-world developments, Liberty Bank officers became wary of doing banking business with Nigerians, and closed Plaintiffs accounts immediately after Plaintiff identified Nigeria as the land of his birth. If one accepts that as .the explanation for the Bank’s conduct, one may (for the sake of argument) condemn the conduct as mistaken, unfair, unreasonable, mean-spirited, paranoid, illegal, nay, even unconstitutional. However, the Bank’s acts do not rise to the level (or more appropriately, sink to the depths) “as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community,” to ■ quote again the state supreme court’s powerful language in Carrol

Indeed, the particular holding in Carrol militates against a conclusion in the present case that Liberty Bank’s conduct was the stuff of which an action for intentional infliction' of emotional distress may be made. The court reasoned in Carrol that

the evidence was not sufficient for a jury reasonably to conclude that the defendant’s conduct in its fire investigation was extreme and outrageous. The plaintiff produced evidence that the defendant did not conduct a thorough or reasoned investigation and may have decided too quickly that the fire had .been set deliberately. As distressing as this .insurance investigation may have been to the plaintiff, however, it simply was not so atrocious as to trigger liability for intentional infliction of emotional distress.

262 Conn. at 443-44, 815 A.2d 119 (emphasis in original).

I reach the same conclusion with respect to Plaintiffs claim that the Bank’s conduct triggers liability for intentional infliction. That is the claim asserted in Count Four. Leave will not be granted to amend the complaint to include that claim.

2. Negligent Inñiction of Emotional Distress

Turning now to Count . Three, it asserts, on the same facts, a claim for the negligent infliction of emotional distress. The nature and elements of that tort under Connecticut law were summarized recently in Leth v. Halloran & Sage, LLP, No. HHDCV1660680189S, 2017 WL 1194321, at *7-8 (Conn. Super. Ct. Feb. 21, 2017):

In Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 398 A.2d 1180 (Conn. 1978), our Supreme Court held that, in order to prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove that the defendant should have realized that its conduct involved . an .unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm. As further clarified by our appellate courts, to prevail on such a claim, a plaintiff must prove that the defendant’s conduct created an unreasonable risk of causing the plaintiff emotional distress, the plaintiffs distress was foreseeable, the emotional distress was severe enough that it might result in illness or bodily harm, and, finally, that the defendant’s conduct was the cause of the plaintiffs distress. The foreseeability requirement in a negligent infliction of emotional distress claim is more specific than the standard negligence requirement that an actor should have foreseen that his tortious conduct was likely to cause harm. In order to state a claim for negligent infliction of emotional distress, the plaintiff must plead that the actor should have foreseen that her behavior would likely cause harm of a specific nature, ie., emotional'distress likely to lead to illness or bodily harm. In negligent infliction of emotional distress claims, unlike general negligence claims, the foreseeability of the precise nature of the harm to be anticipated is a prerequisite to recovery even where a breach of duty might otherwise be found.

2017 WL 1194321, at *8 (emphases in original) (citations to other Connecticut Supreme Court cases and internal quotation marks omitted).

In Barrett v. Danbury Hospital, 232 Conn. 242, 654 A.2d 748 (Conn. 1995), the Connecticut Supreme Court reflected further on the distress a plaintiff might feel and the foreseeability of that distress by a defendant whose conduct caused plaintiff to feel it. The court said:

This part of the Montinieri test essentially requires that the fear or distress experienced by the plaintiffs be reasonable in light of the conduct of the defendants. If such a fear were reasonable in light of the defendants’ conduct, the defendants should have realized that their conduct related an unreasonable risk of causing distress, and they, therefore, properly would be held liable. Conversely, if the fear were unreasonable in light of the defendants’ conduct, the defendants would not have recognized that their conduct could cause this distress and, therefore, they would not be liable.

232 Conn. at 261, 654 A.2d 748.

Connecticut law does not require that in order to state a claim for negligent infliction of emotional distress, a plaintiffs distress must have caused actual illness or bodily harm, so long as the defendant should have foreseen that his conduct might have that effect. In Carivl, the Connecticut Supreme Court reviewed its prior decisions and reiterated that “there is no logical reason for making a distinction, for purposes of liability, between those cases where the emotional ' distress results in bodily injury and those cases where there is emotional distress only. The only requirement is that the distress might result in illness or bodily harm.” 262 Conn. at 448, 815 A.2d 119 (emphasis in original) (citation an internal quotation marks omitted). The court allowed the Carrol plaintiffs judgment on his negligent infliction claim to stand because his proof at trial satisfied that less demanding element:

[Tjhere was sufficient evidence that the plaintiffs distress was severe enough for the jury reasonably to conclude that the plaintiffs distress might result in illness or bodily harm. The only requirement is that the distress might result in .illness or bodily harm. The plaintiff testified that he could not sleep, had frequent nightmares, had a loss of appetite, and experienced depression and a sense of isolation from his community because of the investigation.

Finally, there was sufficient evidence from which the jury could find causation: The plaintiff testified' that although the fire was upsetting, it was the defendant’s investigation that was “devastating” and the cause of his emotional turmoil.

Id

Plaintiff Nwachukwu’s account in the SAC on this aspect of the case is limited to allegations appearing in ¶ 32 of the First Count (breach of contract) and ¶¶ 46-47 of the Third Count (negligent infliction of emotional distress). According to ¶ 32, Plaintiff told Bank vice president Fujio on the telephone that

the closure of his personal accounts would set a bad precedent and he risks being unbankable since he was not given a proper foundation or any banking related grounds for his being terminated. He mentioned to her that he was late on paying his bills, taxes and school fees for his children, because of the directives she gave in her letter. He did not want to write checks on the accounts that she had promised to close. He asked her for accommodations given his circumstances, but she refused.

¶ 46 alleges that “when the Plaintiff finally spoke with Ms. Fujio, he told her about the high level of distress that her letter had placed on him, thereby affecting his family.” ¶ 47 alleges: “Defendant’s conduct in closing the Plaintiffs accounts caused emotional distress to the Plaintiff and said distress resulted in illness to the Plaintiff.”

In the case at bar, even if those allegations are accepted as true, the cited holdings by the Connecticut Supreme Court compel the conclusion that Plaintiff fails to allege a plausible claim for negligent infliction of emotional distress. Specifically, Plaintiff fails to assert facts sufficient to establish that Liberty Bank should have anticipated that closing Plaintiffs bank accounts would create in their erstwhile depositor an emotional distress so severe that it might result in Plaintiff suffering illness or bodily harm.

I accept that when Liberty abruptly closed his accounts, Plaintiff felt irritation, coupled with the anxiety and uncertainty he described to Fujio in their telephone conversation about the checks he needed to write to creditors. There was no need for the Bank officers to foresee that reaction on the part of Plaintiff, Nwachukwu having forcibly expressed it to Fujio in an unsuccessful effort to keep his accounts open. But those circumstances do not support a claim against the Bank for negligent infliction of emotional distress. As the cited Connecticut cases hold, in order to state a claim for negligent infliction of emotional distress, Plaintiff must plead and prove that the Bank officers foresaw, or should have foreseen, that if the Bank closed Plaintiffs accounts, Plaintiff would suffer emotional distress of a severity likely to lead to his illness or bodily harm. The specific question posed by this motion is whether Plaintiffs proposed Second Amended Complaint pleads a claim with those particular circumstances that is plausible. He does not do so.

Accepting the truth of the factual allegations in the SAC, the Bank’s notice of closing of accounts confronted Plaintiff with the necessity of making arrangements for “almost $100,000.00 from his accounts at Liberty Bank,” SAC ¶ 34, a significant amount but not beyond the capabilities of the myriad banks in the tri-State area during the year 2016. It is reasonable to suppose that the Liberty Bank officers (to the extent they thought about it at all) foresaw that Plaintiff, an experienced businessman, would be able ability to retrieve his funds from Liberty and deposit them with another bank. However, it is entirely fanciful to suppose that the Liberty officers foresaw or should have foreseen that their closing Plaintiffs accounts would plunge Plaintiff an emotional distress so severe “the distress might result in illness or bodily harm,” to quote Carrol one more time. Some of Plaintiffs allegations seek to create that impression, but their transparent purpose is to recite the elements of a negligent infliction claim, an exercise in advocacy the Supreme Court explicitly rejected in Twombly and Iqbal. The claim Plaintiff pleads is wildly implausible. I reach that common-sense conclusion with the guidance of my own common sense, which Justice Kennedy directed me to employ in Iqbal.

For the foregoing reasons, Plaintiffs claim would not survive á motion to dismiss, and the Court will'not grant Plaintiff leave to include that claim in an amended complaint.

D. Count Five: CUTPA

The Fifth Count of the proposed Second Amended Complaint asserts a claim by Plaintiff against Defendant Liberty Bank under the Connecticut Unfair Trade Practices Act (CUTPA), Connecticut General Statutes §§ 42-110 et seq.

The Supreme Court of Connecticut has said that “CUTPA is, on its face, a remedial statute.” Marinos v. Poirot, 308 Conn. 706, 712, 66 A.3d 860 (Conn. 2013). The Act’s core provisions appear in General Statutes § 42-110b(a) and § 42-110g(a).

§ 42-110b(a) provides:

No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.

§ 42-110g(a) provides in part:

Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action in the judicial district in which the plaintiff or defendant resides or has his principal place of business or is doing business, to recover actual damages.

The Supreme Court of Connecticut looked to these provisions when it defined, in Artie’s Auto Body, Inc. v. Hartford Fire Insurance Co., 287 Conn. 208, 947 A.2d 320 (Conn. 2008), the requisite elements of a viable CUTPA claim:

To prevail on a CUTPA claim, the plaintiffs must prove that (1) the defendant engaged in unfair or deceptive acts or practices in the conduct of any trade or commerce, General Statutes § 42-110b(a); and (2) each class member claiming entitlement to relief under CUTPA has suffered an ascertainable loss of money or property as a result of the defendant’s acts or practices. General Statutes § 42-110g(a). The ascertainable loss requirement is a threshold barrier which' limits the class of persons who may bring a CUTPA action seeking either actual damages or equitable relief .... Thus, to be entitled to any relief under CUTPA, a plaintiff must first prove that he has suffered an ascertainable loss due to a CUTPA violation.

287 Conn. at 217-18, 947 A.2d 320 (citation and internal