17-3823-cv Levy v. BASF Metals, Ltd. UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32 .1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRON IC 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 a stated Term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
28 th day of February, two thousand nineteen.

Present: RALPH K. WINTER, ROSEMARY S. POOLER, Circuit Judges

. RONNIE ABRAMS, 1 District Judge

.

_____________________________________________________

SUSAN LEVY,

Plaintiff-Appellant

,

v. 17-3823-cv

BASF METALS LIMITED, BASF CORPORATION, GOLDMAN SACHS INTERNATIONAL, GOLDMAN SACHS GROUP, INC., GOLDMAN SACHS & CO.,
GOLDMAN SACHS EXECUTIO N & CLEARING, L.P., ICBC STANDARD BANK PLC, UBS AG, UBS SECURITIES LLC, HSBC BANK USA, N.A.,
LONDON PLATINUM AND PALLADIUM FIXING COMPANY LIMITED,

Defendants-Appellees

. 2

1 Judge Ronnie Abrams, United States District C ourt for the Southern District of New York, sitting by designation.

2 The Clerk of the Court is direct ed to amend the caption as above.2 _____________________________________________________
Appearing for Appellant: Susan Levy, pro se, New York, N.Y.

Appearing for Appellees: Michael F. Willia ms, Kirkland & Ellis LLP (Peter A. Farrell, on the brief ), Washington, D.C., for BASF Metals Limited and BASF Corporation ;

Damien J. Marshall, Boies Schiller Flexner LLP (Leigh M. Nathanson, Laura C. Harris, on the brief ), New York, N.Y., for HSBC Bank USA, N.A. ;

Stephen Ehrenberg, Sullivan & Cromwell LLP, New York, N.Y., for Goldman Sachs International, The Goldman Sachs Group, Inc., and Goldman Sachs & Co. LLC f/k/a Goldman, Sachs & Co. ;

Robert G. Houck, Clifford Chance US LLP, New York, N.Y., for
ICBC Standard Bank PLC ;

Eric J. Stock, Gibson, Dunn & Crutcher LLP (Mark A. Kirsch, D. Jarrett Arp, Melanie L. Katsur, Indraneel Sur, on the brief ), New York, N.Y., for UBS AG and UBS Securities LLC ;

Ethan E. Litwin, Dechert LLP (Morgan J. Feder, on the brief ), New York, N.Y., for The London Platinum and Palladium Fixing Company Ltd

.

Appeal from the United States District Court for the Southern District of New York (Woods, J. ).

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED

.

Appellant Susan Levy, an attorney proceeding pro se, appeals from the October 19, 2017, judgment of the United States District Court fo r the Southern District of New York (Woods, J. ), dismissing her second amended complaint as time barred and denying leave to amend. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of
issues for review.

We review the district cour t’s “interpretation and applica tion of a statute of limitations”
de novo. City of Pontiac Gen. Emps.’ Ret. Sys. v. MBIA, Inc. , 637 F.3d 169, 173 (2d Cir. 2011). We review the district court’s denial of equ itable tolling and leave to amend, as well as its discovery orders, for abuse of discretion. McCarthy v. Dun & Bradstreet Corp. , 482 F.3d 184, 200 (2d Cir. 2007) (leave to amend); Torres v. Barnhart , 417 F.3d 276, 279 (2d Cir. 2005) (equitable tolling); DG Creditor Corp. v. Dabah , 151 F.3d 75, 79 (2d Cir. 1998) (discovery orders).3 Levy first challenges the dismissal of he r claims as time barred. Levy’s second amended complaint asserted claims under the Commodities and Exchange Act (“CEA”), 3 Racketeer Influenced and Corrupt Organizations Act (“RI CO”), and the Sherman Act. “RICO claims are subject to a four-year statute of limitations,” which begins to run “ upon the discovery of the injury.” Koch v. Christie’s Int’l PLC , 699 F.3d 141, 148, 150 (2d Cir. 2012). Likewise, claims
under the Sherman Act “shall be forever barred unless commenced within four years after the cause of action accrued.” 15 U.S.C. § 15b. A cause of action under the antitrust laws accrues
“when a defendant commits an act th at injures a plaintiff’s business.” Zenith Radio Corp. v. Hazeltine Research, Inc. , 401 U.S. 321, 338 (1971); see also id. at 339 (“[I]f a plaintiff feels the adverse impact of an antitrust conspiracy on a particular date , a cause of action immediately accrues to him to recover all damages incurred by that date and all provable damages that will flow in the future from the acts of the conspirato rs on that date.”). We agree with the district
court that the statute of limita tions for Levy’s RICO and Sherman Act claims began to run in 2008. Levy had actual notice of her in juries in 2008 when she was forced to pay a margin call and lost her entire investment. Therefore, Le vy’s complaint, which she did not file until 2015, was not timely.

The district court did not abuse its discre tion by denying Levy the benefit of equitable tolling. As the district court ex plained, equitable tolling applie s only in “rare and exceptional circumstance[s]” where (1) a plaintiff is “pre vented” from filing her complaint in a timely manner and (2) a plaintiff has “acted with reason able diligence throughout the period [s]he seeks
to toll.” Smith v. McGinnis , 208 F.3d 13, 17 (2d Cir. 2000) (internal quotation marks omitted); see also Johnson v. Nyack Hosp. , 86 F.3d 8, 12 (2d Cir. 1996) (obser ving that equitable tolling is appropriate when a plaintiff “h as been prevented in some extraordinary way from exercising [her] rights” (internal quotation marks omitted)). The district court concluded that Levy’s previous complaint, which she filed in 2012 asser ting various claims based on the same financial losses at issue here, demonstrated that she was aw are that she had been injured and that she was capable of pursuing her legal remedi es. We agree with its analysis.

Nor can we say that the district court a bused its discretion by denying Levy leave to amend her complaint. Indeed, Levy, an attorne y, had already amended her complaint twice. Moreover, as explained above, Le vy’s claims were time barred. Under these circumstances, the
district court did not abuse its discretion by concluding that any further amendment would be
futile. See Grace v. Rosenstock , 228 F.3d 40, 53 (2d Cir. 2000) (“Amendment would likely be futile if, for example, the claims the plaintiff sought to add would be barred by the applicable statute of limitations.”).

Finally, Levy argues that the district court abused its dire ction by staying discovery while the defendants’ motions to dismiss were pending. Di strict courts have “bro ad discretion to direct and manage the pre-trial discovery process.” Wills v. Amerada Hess Corp. , 379 F.3d 32, 41 (2d Cir. 2004). Federal Rule of Civil Procedure 26(c)(1 ) allows district courts to issue protective orders “to protect a part y or person from . . . undue burden or expense.” The district court cited appropriate factors—undue burde n and expense—in granting the stay of discovery. We cannot say that this determination wa s an abuse of discretion.

3 We address Levy’s CEA claims in a separate op inion, which we issue simultaneously with this summary order.4 We have considered the remainder of Le vy’s arguments and find them to be without merit. Accordingly, the judgment of th e district court hereby is AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk