OPINION & ORDER L’Amore Consulting, LLC (“Plaintiff”) brings this action for breach of contract against SBS Services, Inc. (“Defendant”). (See First Amended Complaint (“FAC”), ECF No. 8.) Pursuant to Federal Rule of Civil Procedure 12(b)6), Defendant has moved to dismiss the FAC. (“Defendant’s Motion”, ECF No. 13.) Plaintiff has cross-moved for leave to file a Second Amended Complaint (“SAC”, ECF No. 17-2). (“Plaintiff’s Motion,” ECF No. 16.) For the following reasons, Defendant’s Motion is GRANTED in part and DENIED in part and Plaintiff’s Motion is GRANTED in part and DENIED in part. FACTUAL BACKGROUND The following facts are taken from the SAC and assumed to be true for the purposes of Defendant’s Motion. On or about July 15, 2022, Plaintiff and Defendant entered into a written Consulting Agreement (the “Agreement”) whereby Plaintiff would provide Defendant with certain business development services for a term of one year. (SAC 8.) In exchange for Plaintiff’s services, Defendant would pay Plaintiff $16,600 per month (the “Monthly Fee”). (Id. 11.) During the term of the Agreement, Plaintiff sent monthly invoices to Defendant requesting payment of the Monthly Fee. (Id. 13.) The total amount Plaintiff billed to Defendant for its Monthly Fee was $199,200, but Defendant has paid only $190,900. (Id. 14.) The Agreement also contemplated that that Defendant would pay Plaintiff bonuses (“Bonus Compensation”) based on revenue that Plaintiff generated for Defendant in connection with specific projects, at an amount and structure to be agreed upon by the parties. (Id. 15.) The parties reached such an agreement regarding Bonus Compensation in connection with a particular project. (Id.
16-17.) During the term of the Agreement, Plaintiff sent regular invoices to Defendant requesting payment of its Bonus Compensation. (Id. 18.) The total amount Plaintiff billed to Defendant for Bonus Compensation was $ 454,536.96, but Defendant has paid only $161,610.60. (Id. 19.) In or around March 2023, Defendant stopped accepting new business opportunities generated by Plaintiff. (Id. 20.) PROCEDURAL HISTORY On September 26, 2023, Plaintiff filed suit against Defendant. (See ECF No. 1.) On October 17, 2023, Plaintiff filed the FAC. (ECF No. 8.) On February 6, 2024, Defendant filed the instant motion to dismiss (ECF No. 13), as well as a memorandum of law (“Def.’s MoL.,” ECF No. 14) and a reply in support thereof and in opposition to Plaintiff’s cross-motion for leave to amend (“Def.’s Reply,” ECF No. 15). On the same day, Plaintiff filed the instant motion for leave to amend its complaint (ECF No. 16), as well as an opposition to Defendant’s motion to dismiss (“Pltf.’s Opp.”, ECF No. 18.) LEGAL STANDARDS I. Motion to Dismiss To survive a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), for “failure to state a claim upon which relief can be granted,” 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)). “Although for the purposes of a motion to dismiss [a court] must take all of the factual allegations in the complaint as true, [it is] ‘not bound to accept as true a legal conclusion couched as a factual allegation.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). The Court will accept the facts in a complaint as true “and then determine whether they plausibly give rise to an entitlement to relief.” Id. A claim is facially plausible when the factual content pleaded allows the Court “to draw a reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678. Ultimately, determining whether a complaint states a facially plausible claim upon which relief may be granted is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. II. Leave to Amend Rule 15 of the Federal Rules of Civil Procedure applies to motions to amend the pleadings once the time for amending a pleading as of right has expired and provides that leave to amend a complaint should be “freely given when justice so requires.” Fed. R. Civ. P. 15(a). In general, amendments are favored because they “tend to facilitate a determination on the merits.” Zucker v. Porteck Global Servs. Inc., No. 13-CV-2674 (JS)(AKT), 2015 WL 6442414, at *4 (E.D.N.Y. Oct. 23, 2015) (citations omitted). “If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits.” Foman v. Davis, 371 U.S. 178, 182 (1962). Leave to amend is within the discretion of the district court. See Krupski v. Costa Crociere S.p.A., 130 S. Ct. 2485, 2489 (2010) (Rule 15(a) gives a district court discretion to decide whether to grant a motion to amend before trial”). Despite the liberal construction generally afforded Rule 15 which requires only that the movant provide “colorable grounds for the relief sought,” Kaster v. Modification Sys., Inc., 731 F.2d 1014, 1018 (2d Cir. 1984), “[w]here it appears that granting leave to amend is unlikely to be productive…it is not an abuse of discretion to deny leave to amend,” Lucente v. IBM Corp., 310 F.3d 243, 258 (2d Cir. 2002) (internal quotation marks and citation omitted). One appropriate basis for denying leave to amend is that the proposed amendment is futile. AEP Energy Services Gas Holding Co. v. Bank of America, N.A., 626 F.3d 699, 726 (2d Cir. 2010). A proposed amendment to a pleading is futile when it “could not withstand a motion to dismiss.” Balintulo v. Ford Motor Co., 796 F.3d 160, 164-65 (2d Cir. 2015); see Lucente, 310 F.3d at 258; see also Zucker, 2015 WL 6442414, at *4 (“A proposed amendment may be denied as futile where it has no merit or fails to demonstrate a cognizable or sufficient claim”). Hence, “[t]he standard for futility with respect to a motion to amend under Rule 15 is identical to the standard for a Rule 12(b)(6) motion to dismiss.” Melito v. Am. Eagle Outfitters, Inc., No. 14-CV-2440 (VEC), 2016 WL 6584482, at *2 (S.D.N.Y. Nov. 7, 2016) (quoting Crippen v. Town of Hempstead, No. 07-CV-3478 (JFB)(ARL), 2009 WL 803117, at *1 n.1 (E.D.N.Y. Mar. 25, 2009)); see Schwartzco Enterprises LLC v. TMH Mgmt., LLC, 60 F. Supp. 3d 331, 338 (E.D.N.Y. 2014) (“Indeed, if the proposed amended complaint cannot survive the motion to dismiss, then plaintiffs’ cross-motion to amend will be denied as futile”) (internal quotation marks and citation omitted). DISCUSSION The Court begins by noting that where, as here, a plaintiff seeks to amend its complaint while a motion to dismiss is pending, the Court “may either deny [the] pending motion to dismiss as moot or consider the merits of the motion, analyzing the facts as alleged in the amended pleading.” Pettaway v. Nat’l Recovery Sols., LLC, 955 F.3d 299, 303 (2d Cir. 2020). Since the Defendant had adequate notice and time to respond to the proposed SAC, the Court will consider the Defendant’s Motion in light of the new allegations contained in the SAC. See Arthur Properties, S.A. v. ABA Gallery, Inc., No. 11 CIV. 4409 LAK, 2011 WL 5910192, at *6 (S.D.N.Y. Nov. 28, 2011); see also Eskenazi-McGibney v. Connetquot Cent. Sch. Dist., 84 F. Supp. 3d 221, 226 (E.D.N.Y. 2015). If the proposed SAC cannot survive Defendant’s motion to dismiss, then Plaintiff’s cross-motion to amend will be denied as futile. See Schwartzco Enterprises LLC, 60 F. Supp. 3d at 338-39. I. Breach of Contract Plaintiff’s first cause of action against Defendant is for breach of contract. To adequately state a claim for breach of contract, Plaintiff must plead the existence of “(1) an agreement, (2) adequate performance by the [P]laintiff, (3) breach by the [D]efendant, and (4) damages.” See Fischer & Mandell, LLP v. Citibank, N.A., 632 F.3d 793, 799 (2d Cir. 2011). The parties do not appear to dispute the first two elements — namely, that the parties entered into a “valid, binding, and enforceable” Agreement in July 2022 and that Plaintiff performed its duties under the Agreement. (See SAC
