Case Information
‐ ‐ cv Nuevo Mundo S.A. UNITED STATES COURT OF APPEALS THE SECOND CIRCUIT
SUMMARY ORDER
R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT S L OCAL R ULE 32.1.1. W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN ELECTRONIC DATABASE WITH THE NOTATION SUMMARY ORDER ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .
At stated term United States Court Appeals Second Circuit, held Thurgood Marshall United States Courthouse, Foley Square, City New York, st day November, two thousand sixteen. PRESENT: DENNY CHIN,
SUSAN L. CARNEY,
Circuit Judges ,
BRIAN M. COGAN,
District Judge. [*]
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SEGUROS NUEVO MUNDO S.A.,
Plainti ff‐ Appellant ‐ ‐ cv
B. ALLEN TROUSDALE,
Defendant ‐ Appellee [**]
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*2 FOR PLAINTIFF ‐ APPELLANT: ALAN M. POLLACK, John D. D ʹ Ercole,
Robinson Brog Leinwand Greene Genovese & Gluck P.C., New York, New York. DEFENDANT ‐ APPELLEE: PETER J. PIZZI, Mariel L. Belanger, Walsh Pizzi O ʹ Reilly Falanga LLP, Newark, New Jersey.
Appeal from United States District Court Eastern District New York (Mauskopf, ).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED judgment district court is AFFIRMED
Plaintiff ‐ appellant Seguros Nuevo Mundo S.A. ( ʺ Seguros ʺ ) appeals district court ʹ s March judgment dismissing Seguros ʹ s amended (the ʺ ʺ ). Seguros claims arise out defendant ‐ appellee B. Allen Trousdale alleged breach guaranty, Seguros seeks enforce. The granted motion dismiss pursuant Federal Rule Civil Procedure 12(b)(6), explaining reasoning March memorandum order. assume parties ʹ familiarity facts, procedural history, issues appeal.
In Seguros alleges following facts. Grad Associates P.A. Grad ), architectural firm owned controlled, Eiffel *3 Engineering Technique, C.A. ( ʺ Eiffel ʺ ) formed a joint venture and contracted the Republic of Venezuela Venezuela ʺ ) to design and build a prison in Venezuela. Venezuela required the issuance of certain payment and performance bonds. Seguros, underwriter payment performance bonds, issued bonds the project. As a condition to issuing the bonds, Seguros obtained a guaranty (the ʺ Guaranty ) signed by Trousdale ʺ behalf ʺ Grad guaranteeing any amounts that Seguros was required to pay to Venezuela under the bonds. App. Following the joint venture alleged breach its construction contract, Venezuela sued Seguros, Seguros paid Venezuela $12 million in settlement the lawsuit. Seguros seeks recover that amount, plus costs, fees other damages, from personally pursuant defended action by arguing that Guaranty was not guaranty, that he signed only representative Grad. dismissed finding it failed plausibly allege ʺ intent bound Guaranty in individual capacity. Lerner Amalgamated Clothing & Textile Workers Union F.2d (2d Cir. 1991) (quoting Mencher Weiss, N.Y. (1953)). For reasons discussed below, agree. review de novo dismissal complaint failure claim, construing liberally, accepting factual allegations *4 the complaint as true, drawing all reasonable inferences in the plaintiff favor. ʺ Chambers v. Time Warner, Inc. , 282 F.3d 147, 152 (2d Cir. 2002) (citation omitted). Documents that are attached to the complaint or incorporated in it reference are deemed part of the pleading may be considered ʺ on a motion to dismiss. Roth v. Jennings , 489 F.3d 499, 509 (2d Cir. 2007). To survive Rule 12(b)(6) motion to dismiss, must plead ʺ enough facts claim to relief that is plausible on face. ʺ Bell Atl. Corp. Twombly , U.S. 570 (2007).
Under York law, where individual acts in his capacity as an agent of disclosed principal, the agent ʺ will not be personally bound unless there is the agent intention substitute or superadd his liability for, or to, that principal. ʺ Salzman Sign Co. Beck , N.Y.2d (1961) (quoting Mencher N.Y. at 4).
Accepting factual allegations as true drawing all reasonable inferences in favor, conclude that the Complaint does not plausibly allege agreed personally liable on the plain language Guaranty, as set forth in the translation attached the Complaint, states was acting [his] capacity President ʺ behalf GRAD ASSOCIATES P.A. ʺ App. Furthermore, silent structure transactions between parties, negotiations, or any other *5 circumstances under executed Without more, Complaint fails identify or point intent substitute or add liability or Grad. Salzman N.Y.2d Accordingly, hold properly dismissed failure claim. have considered additional arguments find them without merit. For reasons stated herein, judgment
AFFIRMED THE COURT:
Catherine O Hagan Wolfe, Clerk
[*] Judge Brian M. Cogan United States District Court Eastern District York, sitting designation.
[**] Clerk Court respectfully directed amend official caption conform above.
[1] had diversity jurisdiction over this action pursuant U.S.C. § 1332(a)(2), citizen foreign (Venezuela) is citizen York.
[2] Seguros does not seek recovery from Grad, terminated business operations prior date filed initial complaint.
[3] reference revised translation Guaranty filed has not objected.