Kenneth M. KRYS, as joint official liquidators, of SphinX Ltd., SPhinX Strategy Fund Ltd., SPhinX Plus SPC Ltd., SPhinX Distressed Ltd., SPhinX merger arbitrage Ltd., SPhinX Special Situations Ltd., SPhinX Macro Ltd., SPhinX Long/Short Equity Ltd., SPhinX Managed Futures, as assignee of claims assigned by Miami Children‘s Hospital Foundation, OFI Palmares, Green & Smith Investment Management LLC, Thales Fund Management LLC, Kellner Dileo & Co. LLC, Martingale Asset Management LP, Longacre Fund Management LLC, Margot Macinnis, as assignee of claims assigned by Miami Childrens Hospital Foundation, OFI Asset Management, Green & Smith Investment Management LLC, Thales Fund Management LLC, Kellner Dileo & Co. LLC, Martingale Asset Management LP, Longacre Fund Management LLC, et al., as joint official liquidator of SPhinX Ltd., SphinX Strategy Fund Ltd., SphinX Plus SPC LTD, SPhinX Distressed Ltd., SPhinX Merger Arbitrage, Ltd., SphinX Special Situations Ltd., SphinX Macro Ltd., et al., The Harbour Trust Co. Ltd., as Trustee of the SphinX Trust, Plaintiffs-Appellants, Christopher Stride, as joint official liquidators, of SphinX Ltd., SPhinX Strategy Fund Ltd., SPhinX Plus SPC Ltd., SPhinX Distressed Ltd., SPhinX merger arbitrage Ltd., SPhinX Special Situations Ltd., SPhinX Macro Ltd., SPhinX Long/Short Equity Ltd., SPhinX Managed Futures, as assignee of claims assigned by Miami Children‘s Hospital Foundation, OFI Palmares, Green & Smith Investment Management LLC, Thales Fund Management LLC, Kellner Dileo & Co. LLC, Martingale Asset Management LP, Longacre Fund Management LLC, James P. Sinclair, as Trustee of the SPhinX Trust, Plaintiffs, v. Richard BUTT, Defendant-Appellee.
No. 11-1695-cv.
United States Court of Appeals, Second Circuit.
June 20, 2012.
484 F. App‘x 153
As to the impact on the grand jury, summary judgment was appropriate. A less searching scrutiny of procedural protections is warranted for grand jury proceedings than for a criminal trial. See United States v. York, 428 F.3d 1325, 1331 (11th Cir.2005); cf. United States v. Calandra, 414 U.S. 338, 349, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974) (rejecting use of exclusionary rule in grand jury proceedings and noting that “the grand jury does not finally adjudicate guilt or innocence, it has traditionally been allowed to pursue its investigative and accusatorial functions unimpeded by the evidentiary and procedural restrictions applicable to a criminal trial“). Jovanovic has not sustained his burden of addressing evidence of prejudice. And it matters that the prosecutor instructed the grand jury to disregard all media coverage and that the law required it to base its conclusion solely on the evidence presented.
Summary judgment was also appropriate on Jovanovic‘s claim that the pretrial publicity caused a witness to come forward and perjure herself at trial. Jovanovic must be able to prove that the injury complained of “was not too remote a consequence of the improper leaks to the press.” Powers, 728 F.2d at 105 (internal quotation marks omitted). The witness‘s perjury—accepting Jovanovic‘s allegations—was too remote of a consequence of Fairstein‘s statements.
Finally, because we found that Bonilla‘s investigation was not so deficient as to render him potentially liable for malicious prosecution, Jovanovic‘s municipal liability claim necessarily fails. See Wray v. City of New York, 490 F.3d 189, 196 (2d Cir.2007); see also City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986).
Finding no merit in Jovanovic‘s remaining arguments, we hereby AFFIRM the judgment of the district court.
Kenneth M. KRYS, as joint official liquidators, of SphinX Ltd., SPhinX Strategy Fund Ltd., SPhinX Plus SPC Ltd., SPhinX Distressed Ltd., SPhinX merger arbitrage Ltd., SPhinX Special Situations Ltd., SPhinX Macro Ltd., SPhinX Long/Short Equity Ltd., SPhinX Managed Futures, as assignee of claims assigned by Miami Children‘s Hospital Foundation, OFI Palmares, Green & Smith Investment Management LLC, Thales Fund Management LLC, Kellner Dileo & Co. LLC, Martingale Asset Management LP, Longacre Fund Management LLC, Margot Macinnis, as assignee of claims assigned by Miami Childrens Hospital Foundation, OFI Asset Management, Green & Smith Investment
Christopher Stride, as joint official liquidators, of SphinX Ltd., SPhinX Strategy Fund Ltd., SPhinX Plus SPC Ltd., SPhinX Distressed Ltd., SPhinX merger arbitrage Ltd., SPhinX Special Situations Ltd., SPhinX Macro Ltd., SPhinX Long/Short Equity Ltd., SPhinX Managed Futures, as assignee of claims assigned by Miami Children‘s Hospital Foundation, OFI Palmares, Green & Smith Investment Management LLC, Thales Fund Management LLC, Kellner Dileo & Co. LLC, Martingale Asset Management LP, Longacre Fund Management LLC, James P. Sinclair, as Trustee of the SPhinX Trust, Plaintiffs,
v.
Richard BUTT, Defendant-Appellee.1
Robert Mills (Andrew Dash, David J. Molton, Brown Rudnick LLP, and Leo R. Beus, Lee M. Andelin, on the brief) Beus Gilbert PLLC, Scottsdale, AZ, for Plaintiffs-Appellants.
PRESENT: B.D. PARKER, PETER W. HALL, and J. CLIFFORD WALLACE,2 Circuit Judges.
SUMMARY ORDER
Plaintiffs-Appellants appeal from the district court‘s judgment adopting the Special Master‘s Report and Recommendation and dismissing their state-law breach of fiduciary duty claims—both for direct and aiding and abetting liability—against Defendant-Appellee. We assume the parties’ familiarity with the facts, procedural history, and issues on appeal.
“We review de novo a district court‘s grant of a motion to dismiss under
I. Direct Liability
Under New York law, “[a] fiduciary relationship exists between two persons when one of them is under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relation.” EBC I, Inc. v. Goldman Sachs & Co., 5 N.Y.3d 11, 19, 799 N.Y.S.2d 170, 832 N.E.2d 26 (2005) (quotation marks omitted).
Such a relationship, necessarily fact-specific, is grounded in a higher level of trust than normally present in the marketplace between those involved in arm‘s length business transactions. Generally, where parties have entered into a contract, courts look to that agreement to discover the nexus of the parties’ relationship and the particular contractual expression establishing the parties’ interdependency. If the parties do not create their own relationship of higher trust, courts should not ordinarily transport them to the higher realm of relationship and fashion the stricter duty for them. Id. at 19-20, 799 N.Y.S.2d 170, 832 N.E.2d 26 (alterations, citations, and quotation marks omitted). “At the heart of the fiduciary relationship lies reliance, and de facto control and dominance.” United States v. Chestman, 947 F.2d 551, 568 (2d Cir.1991) (quotation marks and alterations omitted) (citing New York law).
Plaintiffs allege that Butt—an officer at Refco Alternative Investments, Inc. (“RAI“)—owed a fiduciary duty to SPhinX Managed Future Funds (“SMFF“) and Plus Funds. The district court concluded that Plaintiffs failed to indicate that there was anything about Butt‘s role as a corporate official that created a personal relationship of trust and confidence and, accordingly, dismissed this claim with prejudice. We agree.
As the Special Master correctly explained, every allegation in the Amended Complaint (the “complaint“) regarding Butt‘s fiduciary duty is either conclusory or entirely derivative of RAI‘s duty. While packed with miscellaneous allegations against other people, all the complaint says about Butt was that he was an officer of RAI who oversaw all of RAI‘s commodity pools. Nowhere in their complaint or, for that matter, in their briefs do Plaintiffs tell us why Butt—as opposed to RAI—owed them a fiduciary duty. Indeed, when we asked Plaintiffs at oral argument where they had alleged Butt‘s fiduciary duty, they pointed us to Paragraph 233 of the complaint, which states, in full, that “RAI and Defendant Butt owed PlusFunds and SphinX fiduciary duties by virtue of RAI‘s role executing trades, providing clearing services, monitoring margin requirements, causing the movement of SphinX cash, acting as SphinX‘s contact in connection with the custody of SphinX‘s assets at RCM and other responsibilities delegated RAI and Butt.” Such derivative allegations are legally insufficient to state a claim for breach of fiduciary duty against Butt.3
Plaintiffs claim support from Rajeev Sindhwani, M.D., PLLC, v. Coe Business Service, Inc., 52 A.D.3d 674, 861 N.Y.S.2d 705 (N.Y.App.Div.2008), in which the Second Department explained that “[a] corporate officer who participates in the commission of a tort may be held individually liable, regardless of whether the officer acted on behalf of the corporation in the course of official duties and regardless of whether the corporate veil is pierced,” id. at 709 (quotation marks omitted). Rajeev Sindhwani, however, was not a breach of fiduciary duty case.4 Moreover, the breach of fiduciary duty cases Plaintiffs cite for the same proposition, notably Talansky v. Schulman, 2 A.D.3d 355, 770 N.Y.S.2d 48, 53 (2003), trace back to the principles set forth in Wechsler v. Bowman, 285 N.Y. 284, 291, 34 N.E.2d 322 (1941), the seminal New York case establishing liability for aiding and abetting another‘s breach of fiduciary duty. As discussed below, Plain-
II. Aiding and Abetting Liability
Indeed, beyond direct liability for one‘s own actions, New York law recognizes a cause of action for aiding and abetting another‘s breach of fiduciary duty. “A claim for aiding and abetting a breach of fiduciary duty requires,” inter alia, “that the defendant knowingly induced or participated in the breach.” Kaufman v. Cohen, 307 A.D.2d 113, 760 N.Y.S.2d 157, 169 (N.Y.App.Div.2003). “Although a plaintiff is not required to allege that the aider and abettor had an intent to harm, there must be an allegation that such defendant had actual knowledge of the breach of duty.” Id. (emphasis added). “Constructive knowledge of the breach of fiduciary duty by another is legally insufficient to impose aiding and abetting liability.” Id.; see also Kolbeck v. LIT Am., Inc., 939 F.Supp. 240, 246 (S.D.N.Y.1996) (“New York common law . . . has not adopted a constructive knowledge standard for imposing aiding and abetting liability. Rather, New York courts and federal courts in this district, have required actual knowledge.“).5
As the Special Master correctly noted, Plaintiffs’ aiding-and-abetting claim fails to allege Butt‘s knowledge of any other party‘s breach of a fiduciary duty. Plaintiffs contend that Butt knew about the segregation requirements, knew that Plaintiffs’ cash was being transferred from segregated accounts at Refco LLC to unsegregated accounts at RCM, and knew that such transfers left the cash exposed to Refco‘s bankruptcy. Even reading these allegations in the light most favorable to Plaintiffs, however, they do not plausibly suggest that Butt actually knew the transfers violated anyone‘s fiduciary duty. Plaintiffs claim (maybe correctly) that some Refco party breached its fiduciary duty by transferring money to unsegregated accounts without authorization. They never allege, however, that Butt knew the transfers were unauthorized. That deficiency is fatal. Without such knowledge, the notion that Butt helped others breach their fiduciary duties “stops short of the line between possibility and plausibility of entitlement to relief.” See Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citations and quotation marks omitted).
III. Conclusion
We have considered Plaintiffs’ other arguments and conclude that they are without merit. For the foregoing reasons, the district court‘s judgment is AFFIRMED.