QUANTA SPECIALTY LINES INSURANCE COMPANY, Plаintiff-Counter-Defendant-Appellee, v. INVESTORS CAPITAL CORPORATION, Defendant-Counter-Claimant-Appellant.
No. 10-0219-cv.
United States Court of Appeals, Second Circuit.
Nov. 16, 2010.
403 Fed. Appx. 530
Jonathan R. Harwood (Lisa L. Shrewsbury & Richard J. Rogers, on the brief), Traub Lieberman Straus & Shrewsberry LLP, Hawthorne, NY, for Appellee.
PRESENT: RALPH K. WINTER, JOSÉ A. CABRANES, DENNY CHIN, Circuit Judges.
SUMMARY ORDER
Plaintiff-counter-defendant-appellant Quanta Spеcialty Lines Insurance Company (“Quanta“) at one time provided a professional liability insurance policy to defendant-counterсlaimant-appellant Investors Capital Corporation (“ICC“). Quanta brought this action in the District Court seeking a declaration that it was not required, under the insurance policy, to defend and indemnify ICC for certain ongoing arbitration proceedings in which ICC is a defendant. The District Court granted summary judgmеnt to Quanta. See Quanta Lines Ins. Co. v. Investors Capital Corp., No. 06 Civ. 4624, 2009 WL 4884096 (S.D.N.Y. Dec. 17, 2009). ICC then brought this appeal arguing that (1) the District Court erred in granting summary judgment to Quanta and (2) the District Court abused its discretion in deсlining to permit ICC to amend its answer to add an affirmative defense under
I. Summary Judgment
We review a district court‘s summary judgment rulings de novo, drawing all factual inferences in favor of the non-moving party. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003). Undertaking that review, we affirm the grant of summary judgment to Quanta for substantially the reasons set forth by the District Court in connection with one of the three independent bases for the Court‘s December 17, 2009, 2009 WL 4884096, ruling. Specifically, we agree with the District Court that “as of the ... inception date of the original policy, ICC had knowledge or a reasonable basis upоn which to anticipate that a wrongful act or interrelated wrongful act could result in a claim pursuant to Section 1 of the policies.” Quanta Lines, 2009 WL 4884096, at *15 (some capitalization removed).
II. Denial of Leave to Amend Answer
In its briefs on appeal, ICC challenges the District Court‘s denial of its motion for leave to amend its answer. We hold that we lack jurisdiction over that сhallenge, and in any event, the challenge is meritless.
A. We Lack Jurisdiction Over ICC‘s Challenge to the Denial of Leave to Amend
A notice of aрpeal “must designate the judgment, order, or part thereof being appealed.”
Thus, an “intent to appeal from” the denial of leave to аmend is not “clear on the face of“—and cannot “be inferred from“—ICC‘s notice of appeal, and “we must dismiss the appeal for lack of jurisdiction insofar as the appellant[] seek[s] review of” the denial of leave to amend. New Phone Co. v. City of New York, 498 F.3d 127, 131 (2d Cir.2007); accord Shrader v. CSX Transp., Inc., 70 F.3d 255, 256 (2d Cir.1995).
Although Quanta did not raise the issue in its briefs, the scope of a notice of appeal determines our subject matter jurisdiction. See New Phone Co., 498 F.3d at 131. We are therefore required to raise the issue nostra sponte, and Quanta cannot waive the jurisdictional defect in ICC‘s notice of appeal. Id.
We acknowledge, furthermore, that we are required to “construe notices of appeal liberally.” Shrader, 70 F.3d at 256. But ICC has been represented by counsel throughout this litigation, cf. Phelps v. Kapnolas, 123 F.3d 91, 93 (2d Cir.1997) (giving a particularly liberal construction to the notice of appeаl of a pro se appellant), and where a notice of appeal “fail[s] to mention” a specific order, we are “bar[red] from cоnsidering” an appellate challenge to that order, Shrader, 70 F.3d at 256.
We therefore lack jurisdiction to review the District Court‘s denial of ICC‘s motion to amend its answer.
B. Leave to Amend Was, in Any Event, Properly Denied
Although we do not have jurisdiction over ICC‘s challenge to the denial of leave to amend, we wish to note for completeness that leave to amend was properly denied.
The District Court denied ICC leave to amend on the ground that ICC‘s proposed affirmative defense was meritless and amendment was therefore futile. See Quanta Specialty Lines Ins. Co. v. Investors Capital Corp., No. 06 Civ. 4624, 2008 WL 1910503, at *8-10 (S.D.N.Y. Apr. 30, 2008) (citing Monahan v. N.Y.C. Dep‘t of Corr., 214 F.3d 275, 283 (2d Cir.2000) (noting that leave to amend an answer may be denied on the grounds of “futility“)). We аgree with the District Court that amendment was futile, but we do so for a different reason than the one stated by the District Court. Unlike the District Court, we see no nеed to evaluate the merits of ICC‘s affirmative defense under
ICC seeks to add the affirmative defense under
Therefore, assume for the sake of analysis that we were to reverse the District Court and grant ICC lеave to amend its answer to add its affirmative defense under
Accordingly, we agree with the District Court (though on a different ground) that ICC‘s proposed amendment is futile. Even if we were to have jurisdiсtion over ICC‘s challenge to the denial of leave to amend—and even if we were to permit ICC to assert its affirmative defense and that defense were to succeed—this action would result in the same outcome as the one set forth in the District Court‘s December 17, 2009 order and opinion: a ruling that Quanta is not required to indemnify and defend ICC.
CONCLUSION
For the foregoing reasons, the December 17, 2009 order of the District Court is AFFIRMED. ICC‘s challenge to the Distriсt Court‘s order of April 20, 2008, denying ICC‘s motion for leave to amend its answer is DISMISSED for lack of subject matter jurisdiction.