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Case 1:22-cv-00347-VM Document 21 Filed 09/12/22 Page 1 of 17
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`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`ALEJANDRO VIVAR, individually and on
`behalf of all others similarly situated,
`
`
` Plaintiffs,
`- against -
`
`
`
`
`22 Civ. 0347 (VM)
`
`DECISION AND ORDER
`
`APPLE INC.,
`
`
` Defendant.
`VICTOR MARRERO, United States District Judge.
`Plaintiff Alejandro Vivar (“Vivar”), on behalf of
`himself and all others similarly situated, (together with
`Vivar, “Plaintiffs”) brings this action against Apple Inc.
`(“Apple”), alleging that Apple’s representations about the
`battery-life of one of its products, Powerbeats Pro wireless
`headphones (“Powerbeats” or the “Product”), are materially
`misleading. (See “Complaint” or “Compl.,” Dkt. No. 1.) Vivar
`asserts ten causes of action on behalf of Plaintiffs: (1)
`violation of the New York General Business Law (“NY GBL”)
`Section 349; (2) violation of NY GBL Section 350; (3)
`violation of the consumer fraud acts of the states in which
`the remaining Plaintiffs reside; (4) breach of contract; (5)
`breach of express warranty; (6) breach of implied warranty of
`merchantability; (7) violation of the Magnuson Moss Warranty
`
`
`
`1
`
`

`

`Case 1:22-cv-00347-VM Document 21 Filed 09/12/22 Page 2 of 17
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`
`Act, 15 U.S.C. Sections 2301, et seq.; (8) negligent
`misrepresentation; (9) fraud; and (10) unjust enrichment.
`Now before the Court is Apple’s motion to dismiss the
`Complaint in its entirety pursuant to Rules 12(b)(2) and
`12(b)(6) of the Federal Rules of Civil Procedure.1 (See
`“Motion,” Dkt. No. 14.) For the reasons stated below, Apple’s
`Motion is DENIED in part and GRANTED in part.
`I.
`BACKGROUND
`A. FACTUAL BACKGROUND2
`Vivar is a citizen of New York who purchased Powerbeats
`in New York between January 2021 and July 2021. Apple is a
`corporation incorporated and headquartered in California.
`Apple markets Powerbeats as having a battery life of “up to
`9 hours of listening time” and “24 hours with the Powerbeats
`charging case.” (Compl. ¶ 5.) The Complaint includes an image
`of this marketing, copied below. (See id.)
`
`
`1 Apple also moved to dismiss Vivar’s claim for injunctive relief pursuant
`to Rule 12(b)(1). On August 11, 2022, Vivar withdrew this claim. (See
`Dkt. No. 18 at 5 n.1 (“Plaintiff withdraws his claim for injunctive
`relief.”)).
` The factual recitation set forth below, except as otherwise noted,
`derives from the Complaint and the facts pleaded therein, which the Court
`accepts as true for the purposes of ruling on a motion to dismiss. See
`Spool v. World Child Int’l Adoption Agency, 520 F.3d 178, 180 (2d Cir.
`2008) (citing GICC Capital Corp. v. Tech Fin. Grp., Inc., 282 F.3d 147,
`152 (2d Cir. 2002)). Except when specifically quoted, no further citation
`will be made to the Complaint or the documents referred to therein.
`
`2
`
` 2
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`

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`Case 1:22-cv-00347-VM Document 21 Filed 09/12/22 Page 3 of 17
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`
`Vivar contends that Apple has also made written
`representations and promises that the Product would be
`“defect-free” and would “maintain its charge equally and
`consistently.” (Id. ¶¶ 92-93.) The Complaint does not
`incorporate any evidence to support these representations.
`Despite Apple’s statements, one of the earbuds “will not
`consistently charge or will quickly dissipate its charge” due
`to a speculated design defect with the charging case and
`corrosion from user perspiration. (Id. ¶¶ 7-8; 22-23.) Thus,
`Vivar argues, Apple has made false and misleading
`representations as to the Product.
`Vivar purchased Powerbeats for no less than $150.00 on
`the belief that the earbuds would retain a charge for the
`time promised in Apple’s marketing materials. He would not
`have purchased the product, or would not have paid as much,
`
`
`
`3
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`

`

`Case 1:22-cv-00347-VM Document 21 Filed 09/12/22 Page 4 of 17
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`but for Apple’s representations as to Powerbeats’ battery
`life.
`On January 13, 2022, Vivar filed the Complaint on behalf
`of himself, a putative class of persons from New York (the
`“New York Class”), and a putative class of persons from the
`states of Michigan, Montana, Rhode Island, Georgia, North
`Dakota, Virginia, South Dakota, and Oklahoma (the “Non-New
`York Class”), all of whom purchased Powerbeats “during the
`statute of limitations for each cause of action alleged.”
`(Id. ¶ 64.)
`Pursuant to the Court’s Individual Practices, Apple
`notified Vivar by letter dated April 13, 2022 of its intention
`to move to dismiss the Complaint. (See Dkt. No. 11-1.) Vivar
`responded by letter dated April 20, 2022. (See Dkt. No. 11-
`2.) Unable to resolve the dispute through these letters, Apple
`moved the Court on April 29, 2022 for leave to file a motion
`to dismiss, (see Dkt. No. 11), and the Court directed the
`parties to submit briefing on the matter.3 (See Dkt. No. 16.)
`Apple filed its Motion and supporting papers (see “MOL,”
`Dkt. No. 15) on August 4, 2022, and Vivar filed his opposition
`memorandum on August 11, 2022. (See “Opp.,” Dkt. No. 18.)
`
`
`3 The Court granted full briefing, (see Dkt. No. 16), however, the parties
`consented to the Court deeming the parties’ premotion letters (Dkt. No.
`11), and the parties’ limited briefing (see Dkt. Nos. 15, 18, 20), as a
`fully briefed motion, (see Dkt. No. 19).
`
`4
`
`

`

`Case 1:22-cv-00347-VM Document 21 Filed 09/12/22 Page 5 of 17
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`Apple replied on August 18, 2022. (See “Reply,” Dkt. No. 20.)
`In reaching this Decision and Order, the Court has considered
`each of these submissions, in addition to the parties’
`premotion letters. (See Dkt. No. 11).
`B. THE PARTIES’ ARGUMENTS
`Apple moves to dismiss the complaint on two grounds.
`First, it argues that Vivar has failed to state a claim for
`any of the ten alleged causes of action. (See Dkt. No. 11-1
`at 1-4). And second, the Court lacks personal jurisdiction
`over the putative Non-New York Class members’ claims because
`their claims do not arise out of or relate to Apple’s contacts
`in those Class members’ eight states of residency. (See MOL
`at 4-6.) Vivar responds that his allegations are sufficient
`to state a claim for relief, (see Dkt. No. 11-2 at 2-4), and
`the claims for the Non-New York Class members should proceed
`because at this stage personal jurisdiction over Apple is
`determined solely by Vivar’s residency in New York. (See Opp’n
`at 6-9.)
`
`DISCUSSION
`II.
`A. MOTION TO DISMISS UNDER RULE 12(b)(2)
`1. Legal Standard
`Apple seeks dismissal of the putative Non-New York Class
`members’ claims on the basis that the Court lacks personal
`jurisdiction pursuant to Rule 12(b)(2). Upon motion, the
`
`
`
`5
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`Case 1:22-cv-00347-VM Document 21 Filed 09/12/22 Page 6 of 17
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`Court must dismiss an action against any defendant over which
`it lacks personal jurisdiction. See Fed. R. Civ. P. 12(b)(2);
`see also Darby Trading Inc. v. Shell Int’l Trading & Shipping
`Co., 568 F. Supp. 2d 329, 335 (S.D.N.Y. 2008). “A court facing
`challenges as to both its jurisdiction over a party and the
`sufficiency of any claims raised must first address the
`jurisdictional question.” Lugones v. Pete and Gerry’s
`Organic, LLC, 440 F. Supp. 3d 226, 234 (S.D.N.Y. 2020)
`(quoting Cohen v. Facebook, Inc., 252 F. Supp. 3d 140, 148
`(E.D.N.Y. 2017)).
`To prevail on a Rule 12(b)(2) motion, a plaintiff “bears
`the burden of showing that the court has jurisdiction over
`the defendant.” In re Magnetic Audiotape Antitrust Litig.,
`334 F.3d 204, 206 (2d Cir. 2003) (per curiam). This showing
`requires “legally sufficient allegations of jurisdiction,
`including an averment of facts that, if credited[,] would
`suffice to establish jurisdiction over the defendant.”
`Penguin Grp. (USA) Inc. v. Am. Buddha, 609 F.3d 30, 34-35 (2d
`Cir. 2010) (quotations omitted). In other words, “the
`plaintiff need only make a prima facie showing that the court
`possesses personal jurisdiction over the defendant.”
`DiStefano v. Carozzi N. Am., Inc., 286 F.3d 81, 84 (2d Cir.
`2001) (quoting Bank Brussels Lambert v. Fiddler Gonzalez &
`Rodriguez, 171 F.3d 779, 784 (2d Cir. 1999)).
`
`
`
`6
`
`

`

`Case 1:22-cv-00347-VM Document 21 Filed 09/12/22 Page 7 of 17
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`Three requirements must be met for a court to exercise
`personal jurisdiction -- plaintiffs must show (1) proper
`service on the defendants, (2) that a statutory basis for
`personal jurisdiction exists, and (3) that the exercise of
`jurisdiction comports with the constitutional doctrine of due
`process. See Licci ex rel. Licci v. Lebanese Canadian Bank,
`SAL, 673 F.3d 50, 59-60 (2d Cir. 2012).
`To assure that jurisdiction comports with due process,
`a court must assess “whether a defendant has sufficient
`minimum contacts with the forum to satisfy the court’s
`exercise of personal jurisdiction over the defendant and
`whether the assertion of personal jurisdiction over the
`defendant comports with traditional notions of fair play and
`substantial justice under the circumstances of the particular
`case.” Johnson v. UBS AG, 791 F. App’x 240, 242 (2d Cir. 2019)
`(internal marks omitted). “In analyzing the minimum contacts
`requirement, courts have distinguished between two bases for
`personal jurisdiction: specific jurisdiction and general
`jurisdiction.” Id. General jurisdiction exists when a
`“corporation’s affiliations with the State are so continuous
`and systematic as to render it essentially at home in the
`forum.” See Brown v. Lockheed Martin Corp., 814 F.3d 618, 627
`(2d Cir. 2016) (quoting Daimler AG v. Bauman, 571 U.S. 117,
`139 (2014)). In contrast, “[s]pecific jurisdiction is
`
`
`
`7
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`

`Case 1:22-cv-00347-VM Document 21 Filed 09/12/22 Page 8 of 17
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`available when the cause of action sued upon arises out of
`the defendant’s activities in a state.” Id. at 624.
`2. The Court Defers Determination of Jurisdiction
` Over Putative Non-New York Class Members’ Claims4
`
`Apple argues that the Court cannot exercise specific
`jurisdiction over the claims of the putative Non-New York
`Class because these claims bear no nexus to Apple’s activities
`in New York.5 (See MOL at 2.) For an exercise of specific
`jurisdiction, “[t]here must be an affiliation between the
`forum and the underlying controversy, principally an activity
`or an occurrence that takes place in the forum state and is
`therefore subject to the State’s regulation.” Ford Motor Co.
`v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1025 (2021).
`In determining whether to assert specific jurisdiction
`over a nonresident defendant, courts consider three factors:
`(1) “the defendant must have purposefully availed itself of
`the privileges of conducting activities within the forum
`State or have purposefully directed its conduct into the forum
`State”; (2) “the plaintiff’s claims must arise out of or
`
`
`4 Apple does not challenge this Court’s jurisdiction over Vivar’s or the
`putative New York Class members’ claims.
` Vivar does not, and could not, allege that the Court has general
`jurisdiction over Apple, a corporation incorporated and headquartered in
`California. See Brown v. Lockheed Martin Corp., 814 F.3d 619, 629 (2d
`Cir. 2016) (“[W]hen a corporation is neither incorporated nor maintains
`its principal place of business in a state, mere contacts, no matter how
`‘systematic and continuous,’ are extraordinarily unlikely to add up to an
`‘exceptional case’” in which general jurisdiction may be asserted.)
`
`8
`
` 5
`
`

`

`Case 1:22-cv-00347-VM Document 21 Filed 09/12/22 Page 9 of 17
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`
`relate to the defendant’s forum conduct”; and (3) “the
`exercise of jurisdiction must be reasonable under the
`circumstances.” U.S. Bank N.A. v. Bank of Am. N.A., 916 F.3d
`143, 150 (2d Cir. 2019) (quoting Bristol-Myers Squibb Co. v.
`Superior Ct. of Cal., 137 S. Ct. 1773, 1785-86 (2017)). When
`there is no connection between the forum and the underlying
`controversy, “specific jurisdiction is lacking regardless of
`the extent of a defendant’s unconnected activities in the
`State.” Bristol-Myers, 137 S. Ct. at 1776.
`Although there has been some debate about whether
`Bristol-Myers applies to class actions, the Court has
`followed the “overwhelming majority of federal courts [that]
`have held that Bristol-Myers applies to claims brought by
`named plaintiffs in class actions.” Pittman v. Chick-fil-A,
`Inc., No. 21 Civ. 8041, 2022 WL 2967586, at *3 (S.D.N.Y. July
`27, 2022) (quoting Lugones, 440 F. Supp. 3d at 235-36)
`(emphasis added). For potential plaintiffs, however, courts
`in this District have determined, and this Court agrees, “it
`is wiser to . . . defer any assessment of whether there is
`specific jurisdiction over the claims of putative non-New
`York class members until the class certification stage.”
`Lugones, 440 F. Supp. 3d at 236 (collecting cases); see also
`Simon v. Ultimate Fitness Grp., LLC, No. 19 Civ. 890, 2019 WL
`4382204, at *4 (S.D.N.Y. Aug, 19, 2019) (deciding that out of
`
`
`
`9
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`Case 1:22-cv-00347-VM Document 21 Filed 09/12/22 Page 10 of 17
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`the three approaches courts have taken in applying Bristol-
`Meyers to nationwide class actions, it is most appropriate to
`defer questions of jurisdiction over class claims until class
`certification); Bassaw v. United Indus. Corp., 482 F. Supp.
`3d 80, 86 (S.D.N.Y. 2020) (“Absent a motion for class
`certification, the Court need not resolve whether it also has
`personal jurisdiction over the claims of putative class
`members outside of New York.”).6
`Because these potential out-of-state plaintiffs may
`never be joined in this action, and Vivar has not yet stated
`a claim, see Section B.1 below, the Court need not assess
`personal jurisdiction over the Non-New York Class members’
`claims unless and until Vivar files an amended complaint.
`Apple’s motion to dismiss the claims of the putative Non-New
`York Class on jurisdictional grounds is therefore denied
`without prejudice subject to renewal in response to any
`amended complaint.
`
`
`6 The Court is unpersuaded by Apple’s argument that the putative classes
`in Lugones and Simon can or should be distinguished from the Non-New York
`Class here. Further, in contrast to Smith v. Apple, Inc., here there is
`no named non-forum state plaintiff asserting claims on behalf of a
`putative out-of-state class -- so far there is only Vivar. Cf. No. 21
`Civ. 3657, 2022 WL 313874, at *4 (S.D.N.Y. Feb. 2, 2022) (dismissing
`“[a]ll claims brought by Tucker, including those brought on behalf of the
`putative South Carolina class,” because of a failure to plead a nexus
`between Tucker’s claims on behalf of the class and Apple’s contacts with
`New York).
`
`
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`Case 1:22-cv-00347-VM Document 21 Filed 09/12/22 Page 11 of 17
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`
`B. MOTION TO DISMISS UNDER RULE 12(b)(6)
`1. Legal Standard
`Apple also moves to dismiss the Complaint pursuant to
`Rule 12(b)(6) on the basis that Vivar has failed to allege
`sufficient facts to support any of the ten counts.7
`“To survive a motion to dismiss, a complaint must contain
`sufficient factual matter, accepted as true, to ‘state a claim
`to relief that is plausible on its face.’” Ashcroft v. Iqbal,
`556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
`550 U.S. 544, 570 (2007)). This standard is met “when the
`plaintiff pleads factual content that allows the court to
`draw the reasonable inference that the defendant is liable
`for the misconduct alleged.” Id. A complaint should be
`dismissed if the plaintiff has not offered factual
`allegations sufficient to render the claims facially
`plausible. See id. However, a court should not dismiss a
`complaint for failure to state a claim if the factual
`allegations sufficiently “raise a right to relief above the
`speculative level.” Twombly, 550 U.S. at 555.
`In resolving a motion to dismiss, the Court’s task is
`“to assess the legal feasibility of the complaint, not to
`
`
`7 In accordance with the decision to defer a determination of whether this
`Court may exercise jurisdiction over the Non-New York Class, the only
`relevant claims for the Rule 12(b)(6) analysis belong to Vivar and the
`putative New York Class.
`
`
`11
`
`

`

`Case 1:22-cv-00347-VM Document 21 Filed 09/12/22 Page 12 of 17
`
`
`assay the weight of the evidence which might be offered in
`support thereof.” In re Initial Pub. Offering Sec. Litig.,
`383 F. Supp. 2d 566, 574 (S.D.N.Y. 2005) (internal marks
`omitted), aff’d sub nom. Tenney v. Credit Suisse First Boston
`Corp., No. 05 Civ. 3430, 2006 WL 1423785 (2d Cir. May 19,
`2006). In this context, courts must draw reasonable
`inferences in favor of the nonmoving party. See Chambers v.
`TimeWarner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). Although
`courts accept factual allegations in the complaint as true at
`this stage, this requirement does not extend to legal
`conclusions. See Iqbal, 556 U.S. at 678.
`2. Vivar’s Claims Are Not Actionable
`Vivar brings ten causes of action on behalf of himself
`and the putative New York Class, all of which are premised on
`the
`same
`contention: Apple’s
`representations
`about
`Powerbeats’ battery life are materially misleading. Thus, if
`Apple’s alleged statements do not misrepresent the product,
`Vivar’s claims must be dismissed for failing to state a claim
`upon which relief may be granted.
`“It is well settled that a court may determine as a
`matter of law that an allegedly deceptive advertisement would
`not have misled a reasonable consumer.” Fink v. Time Warner
`Cable, 714 F.3d 739, 741 (2d Cir. 2013). Determining whether
`a product label or advertisement is misleading is an
`
`
`
`12
`
`

`

`Case 1:22-cv-00347-VM Document 21 Filed 09/12/22 Page 13 of 17
`
`
`“objective” test, and thus liability is “limited to those
`[representations] likely to mislead a reasonable consumer
`acting reasonably under the circumstances.” Oswego Laborers’
`Local 214 Pension Fund v. Marine Midland Bank, 647 N.E.2d
`741, 745 (N.Y. 1995); see also Fink, 714 F.3d at 741.
`The Complaint asserts that the following representations
`by Apple are deceptive to the reasonable consumer: “each
`earbud has up to 9 hours of listening time” and “24 hours
`with charging case,” and “5-minute Fast Fuel charging gives
`1.5 hours of playback when the battery is low.” (Compl. ¶ 5)
`These statements are purportedly deceptive because “users
`experience battery draining and charging issues” from the
`earbuds
`“not
`consistently
`charg[ing]”
`or
`“quickly
`dissipat[ing] its charge.” (Id. ¶¶ 6-7.) The Complaint goes
`on to speculate as to why the charging issues exist. (See id.
`¶¶ 8-24.)
`While it would seem from the pleadings that Vivar’s
`argument is such that Apple misrepresents the product’s
`capability of holding a charge “up to” a certain number of
`hours -- since these are Apple’s claims in the advertisements
`Vivar included in the Complaint -- through briefing on this
`Motion Vivar notified the Court that his claims are not based
`
`
`
`13
`
`

`

`Case 1:22-cv-00347-VM Document 21 Filed 09/12/22 Page 14 of 17
`
`
`on Apple’s “up to” representations,8 but rather Apple’s
`statements that Powerbeats would be “defect-free” and “charge
`equally and consistently.” (Dkt. No. 11-2 at 2; see Compl. ¶¶
`92-93.) Vivar would not have purchased Powerbeats if he knew
`either of these “representations” were false.
`The problem with Vivar’s argument is that the Complaint
`does not contain any facts to substantiate that Apple ever
`made
`these
`representations.
`The Complaint includes
`advertisements from Apple stating that “each earbud has up to
`9 hours of listening time” (Compl. ¶ 5), Powerbeats are
`“powered by the Apple H1 Chip” (id. ¶ 2), and the earbuds
`have “dual audio controls” (id. ¶ 3). However, Vivar does not
`include the allegedly deceptive advertisement upon which he
`bases this suit, nor does he provide any other facts to
`substantiate that Apple “conveyed in writing and promised
`[Powerbeats] would be defect-free” and made “representations
`affirm[ing] and promis[ing] that the Product . . . would
`
`
`8 The Court notes, and Vivar acknowledges (see Dkt. No. 11-2 at 1), that
`courts in this District have often held that “up to” representations are
`not actionable as false and misleading representations. See, e.g., Fink,
`714 F.3d at 742 n.3 (finding “up to” claim concerning internet speed could
`not support claims on motion to dismiss because “‘up to’ would ‘lead a
`reasonable consumer to expect that speeds could be less than the
`advertised ‘3x faster’ and ‘100x faster’ speeds.”(quoting and affirming
`Fink v. Time Warner Cable, 837 F. Supp. 2d 279, 283-84 (S.D.N.Y. 2011)));
`Turk v. Rubbermaid Inc., No. 21 Civ. 270, 2022 WL 836894, at *7 (S.D.N.Y.
`Mar. 21, 2022) (“The Court fails to understand how a reasonable consumer
`could interpret these [up to] statements to mean that the Products would
`always retain ice for a full five days.”).
`
`14
`
`

`

`Case 1:22-cv-00347-VM Document 21 Filed 09/12/22 Page 15 of 17
`
`
`maintain its charge equally and consistently.” (Id. ¶¶ 92-
`93).
`These claims lack the facial plausibility necessary at
`this stage because Vivar has not provided the “writing” or
`marketing materials containing these alleged representations.
`(Id. ¶ 93.) “The primary evidence in a consumer-fraud case
`arising out of allegedly false advertising is, of course, the
`advertising itself.” Fink, 714 F.3d at 742 (“[E]asily
`conclud[ing]” that dismissal was appropriate where plaintiffs
`failed to produce advertisement because plaintiffs “should
`not need discovery” to support a lawsuit they brought “based
`upon the specific text of a specific advertisement.”) The
`advertisement is so crucial because, to determine whether a
`reasonable consumer would have been misled, the Court must
`know the context of the representations -- “under certain
`circumstances, the presence of a disclaimer or similar
`clarifying language may defeat a claim of deception.” Id.;
`see also Mantikas v. Kellogg Co., 910 F.3d 633, 636 (2d Cir.
`2018) (same); McVetty v. Tomtom N. Am., Inc., No. 19 Civ.
`4908, 2022 WL 2789760, at *4 (S.D.N.Y. July 15, 2022)
`(granting motion to dismiss where complaint failed to provide
`“entire context” of the label on which plaintiff relied to
`purchase the product). Further, “[a] plaintiff who alleges
`that he was deceived by an advertisement may not misquote or
`
`
`
`15
`
`

`

`Case 1:22-cv-00347-VM Document 21 Filed 09/12/22 Page 16 of 17
`
`
`misleadingly excerpt the language of the advertisement in his
`pleadings and expect his action to survive a motion to dismiss
`or, indeed, to escape admonishment.” Id.
`As the Complaint currently stands, the Court cannot
`determine whether Vivar misquoted or misleadingly excerpted
`Apple’s language, or even where this alleged language exists.
`Accordingly, the pleadings fail to persuade the Court that
`Apple has made false or misleading representations as to its
`Powerbeats product. Pursuant to Rule 12(b)(6), and without
`prejudice to renewal, the Court dismisses the Complaint in
`its entirety.
`
`ORDER
`III.
`For the reasons discussed above, it is hereby
`ORDERED that the motion (Dkt. No. 14) of defendant Apple,
`Inc. (“Apple”) is GRANTED pursuant to Rule 12(b)(6) of the
`Federal Rules of Civil Procedure and the complaint in this
`action (Dkt. No. 1) is dismissed without prejudice. Alejandro
`Vivar (“Vivar”) is granted leave to file an amended complaint
`no later than October 14, 2022. Apple’s motion to dismiss
`under Rule 12(b)(2) for lack of personal jurisdiction is
`denied at this time without prejudice to raising a similar
`jurisdictional argument in response to any amended complaint
`filed by Vivar.
`
`
`
`
`16
`
`

`

`Case 1:22-cv-00347-VM Document 21 Filed 09/12/22 Page 17 of 17
`
`
`SO ORDERED.
`Dated:
`September 12, 2022
`New York, New York
`
`
`
`_________________________
`Victor Marrero
`U.S.D.J.
`
`
`
`17
`
`

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