MEMORANDUM OPINION & ORDER
Plaintiff Fred Pasternack commenced this action against Laboratory Corporation of America (“LabCorp”) and ChoicePoint, Inc.
Pasternack now seeks leave to file a Second Amended Complaint (“SAC”). In the proposed SAC, Pasternack attempts— as to ChoicePoint — to address the deficiencies that led to the dismissal of his negligence and gross negligence claims in the August 1, 2011 Opinion. As to LabCorp, the SAC again pleads negligence, gross negligence, negligent misrepresentation, and fraud. The SAC omits the Amended Complaint’s Section 1983 claim, however, and adds a claim for “injurious falsehood.” (Am. Cmplt.; SAC)
LabCorp does not oppose Pasternack’s motion to file a Second Amended Complaint; ChoicePoint opposes Plaintiffs motion. For the reasons stated below, Pasternack’s motion for leave to file a Second Amended Complaint will be granted as to LabCorp but denied as to ChoicePoint.
I. FEDERAL LAW GOVERNING THE DRUG TESTING OF AVIATION EMPLOYEES
Because the regulatory scheme governing the testing of aviation employees is critical to an understanding of Pasternack’s claims, the Court includes a summary of that scheme and certain relevant regulations.
The Federal Aviation Administration (“FAA”) and the U.S. Department of Transportation (“DOT”) have issued regulations concerning the drug testing of aviation employees. The Second Circuit outlined the regulatory scheme in Drake v. Lab. Corp. of Am. Holdings,
In the FAA Act, Congress granted the FAA broad authority over aviation safety, including the power to adopt regulations that it “finds necessary for safety in air commerce and national security.” 49 U.S.C. § 44701(a)(5). Pursuant to this power, in 1988, the FAA promulgated regulations mandating that all aviation-industry employees who perform safety-sensitive functions be subjected to random drug-testing. See Anti-Drug Program for Personnel Engaged in Specified Aviation Activities, 53 Fed. Reg. 47024 (Nov. 21, 1988) (codified as amended at 14 C.F.R. pt. 121, App. I)The regulations set forth in great detail the “standards and components” that required drug-testing programs must include. See 14 C.F.R. pt. 121, App. I. They prescribe, among other things, the classes of employees that must be tested, 14 C.F.R. pt. 121, App. I § III, the substances for which they must be tested, id. § IV, the types of testing to be conducted (e.g., pre-employment testing, random testing, and post-accident testing), id. § V, and the length of time that records of required drug testing must be retained, id. § VI.
The FAA regulations incorporate by reference DOT regulations that set out detailed protocols to be followed by drug-testing laboratories. See id. § LB. (requiring that aviation employers comply with “Procedures for Transportation Workplace Drug Testing Programs,” 49 C.F.R. pt. 40, published by the DOT). The DOT regulations provide, among other things, that laboratories must use chain-of-custody procedures to document each time a urine specimen is handled or transferred, see 49 C.F.R. § 40.83(b), that an employer’s designated MRO [Medical Review Officer] must review and certify test results before the laboratory reports them to the employer, id. § 40.97(b); id. § 40.123, and that laboratories must report test results to an MRO in writing, id. § 40.97(b). Although they set out elaborate rules for conducting drug tests, the DOT regulations do not specifically address negligence on the part of drug-testing laboratories or otherwise establish the minimum standard of care to be exercised by laboratory personnel.
Drake,
The dispute between the parties concerns the consequences of Pasternack’s initial failure to provide an adequate urine sample when randomly chosen for a drug test, and his decision to leave the collection facility before the collection process was complete. Two DOT regulations explicitly provide that where an employee leaves a collection site before the collection process is complete, that conduct constitutes a “refusal to test”:
40.193 What happens when an employee does not provide a sufficient amount of urine for a drug test?
(a) This section prescribes procedures for situations in which an employee does not provide a sufficient amount of urine*544 to permit a drug test (i.e., 45 mL of urine).
(b) As the collector, you must do the following:
(1) Discard the insufficient specimen, except where the insufficient specimen was out of temperature range or showed evidence of adulteration or tampering (see § 40.65(b) and (c)).
(2) Urge the employee to drink up to 40 ounces of fluid, distributed reasonably through a period of up to three hours, or until the individual has provided a sufficient urine specimen, whichever occurs first. It is not a refusal to test if the employee declines to drink. Document on the Remarks line of the CCF [Custody and Control Form] (Step 2), and inform the employee of, the time at which the three-hour period begins and ends.
(3) If the employee refuses to make the attempt to provide a new urine specimen or leaves the collection site before the collection process is complete, you must discontinue the collection, note the fact on the “Remarks” line of the CCF (Step 2), and immediately notify the DER [Designated Employer Representative]. This is a refusal to test.
49 C.F.R. § 40.193 (emphasis added).
40.191 What is a refusal to take a DOT drug test, and what are the consequences?
(a) As an employee, you have refused to take a drug test if you:
(2) Fail to remain at the testing site until the testing process is complete____
49 C.F.R. § 40.191(a)(2).
II. PASTERNACK’S DRUG TEST
Pasternack is a physician and part-time pilot. (SAC ¶¶ 1, 3) From 1978 until February 2008, Pasternack was a Senior Aviation Medical Examiner (“AME”) for the FAA, (Id. ¶ 10) In this capacity, Pasternack performed medical examinations that the FAA requires pilots to undergo in order to maintain certain certifications. (Id. ¶ 10) He also piloted chartered flights for Northeastern Aviation Corporation (“Northeastern”). (Id. at 11) Pasternack received compensation both as an AME and as a Northeastern pilot. (Id. ¶¶ 10-11)
Defendant ChoicePoint, Inc. provides, among other services, drug testing administration programs to both governmental and private entities. (Id. ¶4) Defendant LabCorp provides “specimen collection and laboratory drug testing services to private entities.” (Id. ¶ 5) ChoicePoint entered into a contract with Northeastern in which it agreed to “help administer Northeastern’s drug testing program.” (Id. ¶ 16) LabCorp entered into a contract with ChoicePoint in which it agreed to “perform specimen collection and testing services, which included specimen collection and testing services for Northeastern.” (Id. ¶ 17)
On June 1, 2007, Northeastern notified Pasternack that he had been selected for random drug testing. (Id. ¶ 18) On June 5, 2007, Pasternack appeared for drug testing at a LabCorp collection site located at 1317 Third Avenue in Manhattan at approximately 1:10 p.m. (Id. ¶ 19) Pasternack brought with him a pre-printed chain-of-custody form (“CCF”) provided to him by Northeastern, as DOT regulations require. (Id. ¶ 19) Pasternack “attempted to provide a urine sample,” but was unable to produce “a sufficient amount of urine.” (Id. ¶ 20) The LabCorp collector, Theresa Montalvo, instructed Pasternack to go to the waiting room. (Id. ¶ 22) Pasternack told Montalvo that he needed to leave the collection site in order to attend to a patient, but that he would return the following morning to provide an adequate sample. (Id. ¶¶ 23-24) Although DOT
Shortly after 4:00 p.m. that same day, Pasternack returned to the LabCorp facility. After calling Northeastern and obtaining permission to take a second urine sample from Pasternack, Montalvo noted on the CCF that “Dr. Pasternack had left and returned and also noted that Northeastern approved the second collection.” (Id. ¶ 28) Pasternack then provided an adequate urine sample. (Id. ¶ 29) LabCorp analyzed the sample, which tested negative for prohibited drugs. (Id. ¶ 31) LabCorp sent the results, along with the CCF, to Choice-Point. (Id. ¶ 31)
Dr. Melvin Samuels was the Medical Review Officer (“MRO”) at ChoicePoint responsible for reviewing Pasternack’s laboratory results. (Id. ¶¶ 31-32) DOT regulations provide that an MRO is “a licensed physician ... who is responsible for receiving and reviewing laboratory results ... and evaluating potential medical explanations for certain drug test results.” 49 C.F.R. § 40.3. (Id. ¶ 32) Based on the CCF, MRO Samuels determined that Pasternack had left the collection site before the test was completed, and that this conduct constituted a “refusal to test.” (Id. ¶¶ 35-36) On June 15, 2007, in response to an inquiry from Northeastern concerning Pasternack’s drug test, ChoicePoint reported that there had been a “refusal to test.” (Id. ¶ 38) ChoicePoint also notified the FAA that Pasternack had refused his drug test. (Id. ¶ 40)
In an Emergency Order dated November 20, 2007, the FAA revoked all of Pasternack’s airman certificates on the basis that he refused to take a drug test, allegedly relying on Montalvo’s statements and ChoicePoint’s “refusal to test” determination. (Id. ¶ 45) On February 21, 2008, the FAA terminated Pasternack’s AME designation, citing his refusal to submit to a random drug test. (Id. ¶ 45) “As a result, Dr. Pasternack has been unable to pilot any flights or perform pilot medical examinations or function as an AME.” (Id.) Pasternack claims that because of Defendants’ actions, he “has lost, and continues to lose, income that he would have earned by continuing to pilot aircraft for Northeastern and Skytypers” and has lost “a major portion of his income as a physician, including [compensation he would have received for] administration of FAA medical examinations and consultations as an AME.” (Id. ¶ 48)
III. PASTERNACK’S CHALLENGE TO THE FAA’S ACTION
As noted above, on November 20, 2007, “the FAA revoked all of [Pasternack’s] airm[a]n certificates,”
On September 2, 2010, the NTSB remanded the case to Chief ALJ William E. Fowler to “make, clarify and expound upon those credibility determinations, findings of fact, and conclusions of law that are pertinent to an assessment of whether respondent refused to undergo drug testing under 49 C.F.R. § 40.191.” (See J. Randolph Babbitt. Administrator, Federal Aviation Administration v. Fred Leroy Pasternack, Decisional Order on Remand, Docket SE18133RM at 2 (hereinafter “Apr. 8, 2011 ALJ Decision”)) On the basis of a full evidentiary hearing, the ALJ affirmed the FAA administrator’s order revoking Pasternack’s airman certificates, concluding that he had “refused to take a DOT drug test under the provisions of 49 C.F.R. § 40.191(a)(2) on June 5, 2007” and “by virtue of his refusal ... has demonstrated that he lacks the qualifications required to hold, and exercise the privileges of, any certificate or rating issued under [Federal Aviation Regulations] Part 61.”
The current status of Pasternack’s challenge to the FAA’s actions has not been addressed by the parties. According to the SAC, Pasternack’s “administrafive appeal remains open after multiple proceedings before the ALJ, the National Transportation Safety Board, and the D.C. Circuit.” (SAC ¶ 47)
IV. THE PRIOR DISMISSAL OF PASTERNACK’S NEGLIGENCE CLAIMS AGAINST CHOICE-POINT
The essence of Pasternack’s claims against ChoicePoint in the Amended Complaint is that “ChoicePoint wrongfully designated Pasternack as a ‘refusal to test’ on the CCF [i.e., the chain of custody form], which designation, in turn, was solely responsible for the FAA’s revocation of Pasternack’s airmen certificates as well as his AME designation.” (Am. Cmplt. ¶ 197). Pasternack claimed that ChoicePoint made this erroneous designation “based upon an arbitrary and idiosyncratic determination that a procedural irregularity destroyed the integrity of the urine sample Pasternack provided.” (Am. Cmplt. ¶ 196)
In dismissing Pasternack’s negligence claims against ChoicePoint, the Court began its analysis by setting out the elements of negligence under New York law and by noting that the scope of the duty owed to a plaintiff presents a question of law:
“Under New York law, which applies to this case, ‘a plaintiff must establish three elements to prevail on a negligence claim: (1) the existence of a duty on defendant’s part as to plaintiff; (2) a breach of this duty; and (3) injury to the plaintiff as a result thereof.’ ” Farash v. Cont’l Airlines, Inc.,574 F.Supp.2d 356 ,*547 367 (S.D.N.Y.2008) (quoting Alfaro v. Wal-Mart Stores, Inc.,210 F.3d 111 , 114 (2d Cir.2000)).
“The existence of a duty is an essential element of a negligence claim because, ‘[i]n the absence of a duty, as a matter of law, no liability can ensue.’ ” Farash,574 F.Supp.2d at 367 (quoting McCarthy v. Olin Corp.,119 F.3d 148 , 156 (2d Cir.1997)). “A plaintiff must show more than a duty owed to a potentially limitless class of people, but rather a specific duty owed to the plaintiff.” Gen. Star Indem. Co. v. Platinum Indem. Ltd., No. 00 CIV. 4960(LMM)(GWG),2002 WL 31159106 , at *3 (S.D.N.Y. Sept. 27, 2002) (citing Hamilton v. Beretta U.S.A. Corp.,96 N.Y.2d 222 , 232 [727 N.Y.S.2d 7 ,750 N.E.2d 1055 ] (N.Y.2001) (“injured party must show that a defendant owed not merely a general duty to society but a specific duty to him or her”); Lauer v. City of New York.95 N.Y.2d 95 ,100 [711 N.Y.S.2d 112 ,733 N.E.2d 184 ] (N.Y. 2000) (“[w]ithout a duty running directly to the injured person there can be no liability in damages, however careless or foreseeable the harm”)). As the Second Circuit has emphasized, “in New York . '. ‘the judicial power to modify the general rule’ of ordinary care ‘is reserved for very limited situations’ and is not to be ‘exercise[d] ... on an ad hoc basis.’” Alfaro,210 F.3d at 115 (quoting Stagl v. Delta Airlines, Inc.,52 F.3d 463 , 469 (2d Cir.1995)).
The scope of the duty owed to a plaintiff is a question of law, see Palka v. Servicemaster Mgmt. Servs. Corp.,83 N.Y.2d 579 , 585 [611 N.Y.S.2d 817 ,634 N.E.2d 189 ] (N.Y.1994) (“the definition of the existence and scope of an alleged tortfeasor’s duty is usually a legal, policy-laden declaration reserved for judges to make prior to submitting anything to fact-finding or jury consideration” (citations omitted)). The determination of whether a party breached its duty of care may also be decided as a matter of law. See Alfaro,210 F.3d at 116 (“we hold that Wal-Mart’s alleged breach-failing to assist Alfaro in a timely manner-was outside the scope of its duty to Alfaro”); see also Blye v. Manhattan & Bronx Surface Transit Operating Auth.,124 A.D.2d 106 , 109 [511 N.Y.S.2d 612 ] (1st Dept.1987) (“Whether or not in a given case a breach of duty has occurred will depend on the particular facts of the case and is either a question of law or of fact depending on the susceptibility of the facts to varying inferences. The facts at bar, which are not susceptible to varying interpretations, enable us to determine, as a matter of law, whether a breach of duty of care has occurred.” (citing Sheehan v. City of New York.40 N.Y.2d 496 , 502 [387 N.Y.S.2d 92 ,354 N.E.2d 832 ] (N.Y.1976); Palsgraf v. Long Island Railroad Company.248 N.Y. 339 , 345 [162 N.E. 99 ] (N.Y.1928); Amoruso v. New York City Transit Authority,12 A.D.2d 11 , 12,207 N.Y.S.2d 855 (1st Dept.1960))).
Pasternack,
The Court then discussed the Drake trilogy of cases, which analyze the liability of drug testing laboratories and MROs for negligence in conducting and evaluating drug tests. See Drake v. Lab. Corp. of Am. Holdings,
As an initial matter, the Amended Complaint does not allege that ChoicePoint or Dr. Samuels communicated the “refusal to test” determination to anyone. Accordingly, it is entirely unclear what action ChoicePoint took that damaged Pasternack.
Secondly, the duty of care discussed in Drake III [and related cases] arises from a contractual relationship between a service provider and an employer. Here, the Amended Complaint does not allege that ChoicePoint had a contractual relationship with Pasternack’s employer, Northeastern Aviation Corp. Accordingly, the initial factual predicate for finding a duty of care is not present here, and its absence requires dismissal of Pasternack’s negligence claims. Assuming arguendo that Pasternack could plead facts demonstrating that (1) ChoicePoint communicated its “refusal to test” determination to someone; (2) that this communication caused harm to Pasternack; and (3) there was a contractual relationship between Choice-Point and Northeastern, a finding that Dr. Samuels — ChoicePoint’s MRO — had a duty of care to Pasternack arising out of his obligation to properly interpret the DOT regulation regarding a “refusal to test,” would represent a significant extension of precedent. Drake III, Santiago [v. Greyhound Lines, Inc.,956 F.Supp. 144 , 153 (N.D.N.Y.1997) ], and Coleman [v. Town of Hempstead,30 F.Supp.2d 356 , 365 (E.D.N.Y.1999) ] all involve a direct mishandling of plaintiffs urine specimen: in Drake III, the MRO allegedly sent the wrong sample to the laboratory; in Coleman, Lab Corp. allegedly failed to maintain the seal on plaintiffs urine sample; and in Santiago, the defendant doctor did not properly label the specimen and did not maintain chain of custody. Here, the Amended Complaint does not allege that Choice-Point in any way mishandled Pasternack’s urine sample. Instead, Pasternack claims that ChoicePoint’s MRO misinterpreted a DOT regulation. Pasternack has not cited any law demonstrating that such a misinterpretation can provide the basis for a negligence claim.
Finally, assuming arguendo that Pasternack could plead facts showing that a contract existed between Northeastern and ChoicePoint, that ChoicePoint breached that contract, and that in breaching the contract ChoicePoint violated a duty of care to Pasternack not to misinterpret the DOT regulation governing a “refusal to test,” the Amended Complaint fails to articulate a plausible theory as to how ChoicePoint misinterpreted the “refusal to test” regulation. See Iqbal,129 S.Ct. at 1949 .
While the Amended Complaint asserts that ChoicePoint violated numerous federal regulations, the method by which it allegedly violated those regulations involves solely the MRO’s determination that Pasternack’s conduct constitutes a “refusal to test.” The applicable federal regulations, however, explicitly provide that where an employee leaves a collection site before the collection process is complete, that conduct constitutes a “refusal to test.”
For example, 49 C.F.R. § 40.191(a)(2) states that “[a]s an employee, you have refused to take a drug test if you ... [flail to remain at the testing site until the testing process is complete.” Similarly, 49 C.F.R. § 40.193 provides that “[i]f the employee ... leaves the collection site before the collection process is complete .... [t]his is a refusal to*549 test.” While Pasternack alleges that MRO Samuels made “an arbitrary and idiosyncratic determination” in concluding that Pasternack’s departure from the collection site constituted a “refusal to test” (Am. Cmplt. ¶ 196), the plain language of the applicable regulations requires such a determination. Pasternack has not presented a plausible theory as to how MRO Samuels’ determination constitutes a misinterpretation of these regulations, much less that he was negligent in making this determination.
Pasternack,
DISCUSSION
I. STANDARD FOR GRANTING LEAVE TO AMEND
Under the Federal Rules of Civil Procedure, leave to amend should be “freely give[n] ... when justice so requires.” Fed.R.Civ.P. 15(a)(2). District courts “ha[ve] broad discretion to decide whether to grant leave to amend.” Gurary v. Winehouse,
A court may properly deny leave to amend in cases of “ ‘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 the allowance of the amendment, futility of amendment, etc.’” Ruotolo v. City of New York,
An amendment is futile where it is legally insufficient on its face such that the amended claim could not survive a motion to dismiss. Lucente v. IBM Corp.,
Delay alone, in the absence of bad faith or prejudice, is not a sufficient reason for denying a motion to amend. Ruotolo,
Under Rule 15(a), unfair prejudice exists where the opposing party would experience undue difficulty in defending a lawsuit because of a change of tactics or theories on the part of the movant. Henry v. Murphy, No. M-82 (JFK),
II. DISCUSSION
ChoicePoint opposes Pasternack’s motion for leave to file a second amended complaint on grounds of undue delay and unfair prejudice, and futility.
A. Delay and Prejudice
This Court granted ChoicePoint’s motion to dismiss on August 1, 2011. (Dkt. No. 22) Four days later, Pasternack requested leave to file a second amended complaint. (Dkt. No. 24) He then sought an extension of time in order to obtain new counsel. (Dkt. No. 25) New counsel was retained within a month’s time. (Dkt. No. 29) Pasternack then filed his motion seeking leave to file a second amended complaint in November 2011, within three months of this Court’s August 2011 dismissal order. (Dkt. No. 37) The Court concludes that Pasternack was not dilatory in submitting his request for leave to file a second amended complaint.
ChoicePoint has likewise not demonstrated that it will suffer unfair prejudice if this Court permits further amendment. UMG Recordings, Inc. v. Lindor, No. CV-05-1095(DGT),
The only prejudice that ChoicePoint cites is that it will be forced to return to a proceeding after the claims against it were dismissed. This is not unfair prejudice, however, if the claims made by Pasternack meet the Iqbal/Twombly standard.
In sum, ChoicePoint has not demonstrated that Pasternack was dilatory in seeking permission to file the proposed SAC or that it will suffer unfair prejudice if the motion to amend is granted.
B. Futility
The Amended Complaint alleged causes of action against ChoicePoint for fraud,
Pasternack’s theory of liability for his negligence claims is that
ChoicePoint breached its duty to Dr. Pasternack by mishandling the review and evaluation of his laboratory results in violation of DOT Regulations. Specifically, ... ChoicePoint, through its employees, failed to investigate the facts of Dr. Pasternack’s collection, as it was required to do under 49 C.F.R. § 40.123(3), or make the determination that (1) Dr. Pasternack’s specimen should be verified as a positive result, (2) Dr. Pasternack’s specimen should be verified as a negative result, (3) Dr. Pasternack’s test should be cancelled, or (4) Dr. Pasternack should be deemed a refusal to test due to adulteration or substitution of sample. Instead, Choice-Point determined that Dr. Pasternack was a refusal to test for other reasons and only belatedly communicated that determination, without explanation, to Northeastern and the FAA despite the fact that ChoicePoint was expressly prohibited from making that determination by the clear language of 49 C.F.R. § 40.355®.
(SAC ¶¶ 77-78, 83-84) Pasternack also states that he is not claiming that Choice-Point “merely misinterpreted a regulation,” but instead that ChoicePoint “breached [its] duties to him by failing to follow the unambiguous mandates of the DOT regulations and guidelines.” (Pltf. Br. 10)
In arguing that MRO Samuels violated DOT regulations, Pasternack now cites to 49 C.F.R. § 40.123(e) and 49 C.F.R. § 40.355. 49 C.F.R. § 40.123(e) provides: What are the MRO’s responsibilities in the DOT drug testing program?
As an MRO, you have the following basic responsibilities:
(e) You must act to investigate and correct problems where possible and notify appropriate parties (e.g., HHS, DOT, employers, service agents) where assistance is needed, (e.g., cancelled or problematic tests, incorrect results, problems with blind specimens).
49 C.F.R. § 40.123(e).
49 C.F.R. § 40.355 provides:
What limitations apply to the activities of service agents?
(i) Except as provided in paragraph (j) of this section, you must not make a determination that an employee has refused a drug or alcohol test. This is a non-delegable duty of the actual employer. You may, however, provide advice and information to employers regarding refusal-to-test issues.
(j) As an exception to paragraph (i) of this section, you may make a determination that an employee has refused a drug or alcohol test, if:
(1) You schedule a required test for an owner-operator or other self-employed individual, and the individual fails to appear for the test without a legitimate reason; or
*552 (2) As an MRO, you determine that an individual has refused to test on the basis of adulteration or substitution.
49 C.F.R. § 40.355(f) and (j) (emphasis added).
(1) Applicable Law
As noted above, under New York law, “ ‘a plaintiff must establish three elements to prevail on a negligence claim: (1) the existence of a duty on defendant’s part as to plaintiff; (2) a breach of this duty; and (3) injury to the plaintiff as a result thereof.’ ” Farash v. Cont’l Airlines, Inc.,
“The existence of a duty is an essential element of a negligence claim because, ‘[i]n the absence of a duty, as a matter of law, no liability can ensue.’ ” Farash,
“Although juries determine whether and to what extent a particular duty was breached, it is for the courts first to determine whether any duty exists.” Drake III,
(2) Analysis
In the August 2011 dismissal order, this Court found that Pasternack had failed to demonstrate that MRO Samuels (1) owed Pasternack a duty of care not to misinterpret DOT regulations relating to a “refusal to test”; and (2) had acted negligently in concluding that, under DOT regulations, Pasternack’s departure from the collection site constituted a “refusal to test.” Pasternack,
While a number of courts have recognized “the existence of a limited duty on the part of [a drug testing] laboratory to employees who are the subject of the tests,” Coleman v. Town of Hempstead.
For example, in Santiago the court found that the doctor who collected the plaintiffs urine sample “had a duty to [the Plaintiff] to collect his specimen with due care.”
In Coleman, the court likewise found that LabCorp — which had been hired by the town of Hempstead to “interpret the urinalysis test” — owed a duty of care to a tested employee. In that case, Coleman’s urine sample was lost and then invalidated because the seal on the specimen had been broken. Coleman,
Plaintiff also argues that in Drake III,
Likewise in Landon v. Kroll Laboratory Specialists, Inc.,
In short, all of the cases cited by Pasternack involve a mishandling of the plaintiffs urine sample or improper testing, and thus allege underlying conduct presenting classic examples of negligence.
Here, instead, Pasternack argues that his negligence and gross negligence claims should be permitted to proceed solely because Dr. Samuels violated two DOT regulations. The first — 49 C.F.R. § 40.123(e) — directs an MRO “to investigate and correct problems where possible and notify appropriate parties (e.g., HHS, DOT, employers, service agents) where assistance is needed, (e.g., cancelled or problematic tests, incorrect results, problems with blind specimens).” The Court holds, as a matter of law, that any obligation imposed by this regulation is — in the context of this case — too vague to serve as the basis for a negligence action.
The second regulation cited by Pasternack — 49 C.F.R. § 40.355(i) — states that, except as provided in § 40.355®, an MRO “must not make a determination that an employee has refused a drug or alcohol test. This is a non-delegable duty of the actual employer. You may, however, provide advice and information to employers regarding refusal-to-test issues.” 49 C.F.R. § 40.355(i) (emphasis added).
§ 40.355® states:
As an exception to paragraph (i) of this section, you may make a determination that an employee has refused a drug or alcohol test, if:
(1) You schedule a required test for an owner-operator or other self-employed individual, and the individual fails to appear for the test without a legitimate reason; or
*555 (2) As an MRO, you determine that an individual has refused to test on the basis of adulteration or substitution.
49 C.F.R. § 40.355(3).
In the SAC, Pasternack alleges that ChoicePoint violated § 40.355(i) by “transmitting] to Northeastern a one-page'form that reported that Dr. Pasternack was a ‘refusal to test.’ ” (SAC, ¶ 38) ChoicePoint argues that it did no more than provide advice to Northeastern about a “refusal to test,” which it is explicitly permitted to do under § 40.355®. (Def. Br. 11) The form referenced in the SAC has not been provided to the Court, however, and in the context of this motion, the Court must assume that it does indeed transmit ChoicePoint’s determination that Pasternack’s conduct constitutes a “refusal to test.” Recognizing that the regulation’s authorization to provide advice regarding “refusal to test” issues may provide a safe harbor for ChoicePoint’s communication to Northeastern, the Court will nonetheless assume, for purposes of the instant motion, that (1) ChoicePoint made a determination that Pasternack had engaged in a “refusal to test”; (2) ChoicePoint transmitted its determination to Northeastern (and to the. FAA, see SAC, ¶ 40); and (3) Choice-Point’s actions violate the proscription set forth in 49 C.F.R. § 40.355®. The question remains whether violation of this regulation, standing alone, may provide the basis for a negligence action under New York law.
Pasternack has cited no case suggesting that a violation of 49 C.F.R. § 40.355® provides a basis for a negligence action under New York law. To the contrary, under New York law, violation of a regulation — as opposed to a statute — is not negligence per se but merely “some evidence” of negligence that a jury may consider in rendering its verdict. Chen v. United States,
Finally, Pasternack has not offered a plausible theory as to how Choice-Point caused him injury. To prevail on his negligence claims, Pasternack must demonstrate that he suffered injury as a result of ChoicePoint’s conduct. Farash,
Because the SAC does not “‘state a claim to relief that is plausible on its face,’ ” Iqbal,
CONCLUSION
For the reasons stated above, Plaintiffs motion for leave to file a Second Amended
SO ORDERED.
Notes
. Reed Elsevier Inc. acquired ChoicePoint and all of its subsidiaries in September 2008. As a result, ChoicePoint’s drug testing services are now offered by LexisNexis Occupational Health Solutions. (Def. Br. 1 n. 1) Pasternack names LexisNexis in the caption of his proposed SAC, but refers to the Defendant as ChoicePoint. For ease of reference, the Court will refer to ChoicePoint.
. "[T]he FAA grants permission to pilot aircraft through the issuance of airman certificates of various types. NTSB definitions provide that '[ajirman certificate’ means any certificate issued by the FAA to an airman and shall include medical certificates required for an airman." Bullwinkel v. U.S. Dep’t of Transp., FAA,
. In his findings of fact, the ALJ noted that Pasternack had served as an MRO for approximately 16 years, that he had received training on substance abuse from ChoicePoint in 2005, that “[s]uch training included instruction that leaving a drug testing facility without providing an adequate urine sample constitutes a drug test refusal,” and that "[b]y virtue of both such training and his experience as an MRO, [Pasternack] knew or should have known that he was, under the applicable regulations, refusing a drug test when he departed the Lab Corp. testing facility ... on June 5, 2007.” (Apr. 8, 2011 ALJ Decision at 20)
. Although Pasternack asserts in his principal brief that the SAC contains a cause of action for negligent misrepresentation against ChoicePoint (Pltf. Br. 1), this is incorrect. The Third Cause of Action for negligent misrepresentation names only LabCorp. (SAC, Third Cause of Action)
. In Drake III, the court found that the facts supported a claim of negligence against, inter alia, the MRO, based on Coleman and Santia
. Warshaw v. Concentra Health Services,
. To permit Pasternack’s negligence claims to proceed solely on the basis of ChoicePoint’s alleged violation of Section 40.355(i) would, in essence, give test subjects a private right of action for violation of that regulation, cloaked in the form of a state law negligence claim. The Second Circuit has ruled, however, that “the FAA Act does not provide a private right of action for violations of FAA drug-testing regulations.” Drake II,
. Pasternack argues that "DOT Regulations recognize that not all early departures are to be considered refusals to test” (Pltf. Reply Br. 7), citing to 49 CFR §§ 40.199-40.203 and 49 C.F.R. Part 40 App. H. Pasternack does not argue that any of the circumstances described in §§ 40.199-40.203 are applicable here, however. Appendix H to Part 40 likewise does not contradict the clear language of 49 C.F.R. §§ 40.191(a)(2) and 40.193.