1 22

- 2041

- cv Samaroo v. The Bank of New York Mellon

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 ELECTRONIC DATABASE (WITH THE NO TATION “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, 1 held at the Thurgood Marshall United States Courthouse , 40 Foley Square, in the 2 City of New York, on the 1 7 t h d ay of M a y , two thousand twenty

- three

. 3 4 PRESENT: GUIDO CALABRESI , 5 RAYMOND J. LOHIER, JR., 6 MARIA ARAÚJO KAHN , 7 Circuit Judges

. 8

------------------------------------------------------------------ 9 KARAMCHAND SAMAROO , 10 11 Plaintiff

- Appell ant , 12 13

v. No. 22

- 2041

- cv 14 15 THE BANK OF NEW YORK 16 MELLON , 17 18 Defendant

- Appellee

. 19

------------------------------------------------------------------ 20 212 FOR PLAINTIFF

- AP P ELLANT : K ARAMCHA N D S AMAROO , pro 1
se , New York, NY 2
FOR DEFENDANT

- APPELLEE: W. J OHN L EE ( Daniel A. 3 Kadish, on the brief ), Morgan, 4 Lewis & Bockius LLP, New 5 York, NY, Morgan, Lewis & 6 Bockius LLP, Philadelphia, PA 7 Appeal from a judgment of the United States District Court for the 8
Southern District of New York ( Analisa Torres , Judge ). 9
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 10

AND DECREED that the judgment of the District Court is AFFIRMED

. 11

Plaintiff

- Appellant Karamchand Samaroo, proceeding pro se , appeals from 12

a judgment of the United States District Court for the Southern District of New 13

York ( Torres , J. ) dismissing without prejudice his whistleblower antiretaliation 14

claims under Section 806 of the Sarbanes

- Oxley Act of 2002 (“SOX”) , 18 U.S.C. 15
§ 1514A , against Defendant

- Appellee The Bank of New York Mellon (“BNY 16
Mellon”)

. Samaroo did not file an amended complaint but instead chose to 17
appeal the dismissal. See Festa v. Loc. 3 Int’l Bhd. of Elec. Workers , 905 F.2d 35, 18

36

– 37 (2d Cir. 1990). We assume the parties’ familiarity with the underlying facts 19
and the record of prior proceedings, to which we refer only as necessary to 20
explain our decision to affirm. 213 “ We review the grant of a motion to dismiss de novo , accepting as true all 1
factual claims in the complaint and drawing all re asonable inferences in the 2
plaintiff’s favor.” Fink v. Time Warner Cable , 714 F.3d 739, 740

– 41 (2d Cir. 2013). 3
“Where, as here, the complaint was filed pro se , it must be construed liberally to 4
raise the strongest arguments it suggests. Nonetheless, a pro se complaint must 5
state a plausible claim for relief.” Nielsen v. Rabin , 746 F.3d 58, 63 (2d Cir. 2014) 6
(quotation marks omitted). A claim will have “facia l plausibility when the 7
plaintiff pleads factual content that allows the court to draw the reasonable 8
inference that the defendant is liable for the misconduct alleged.” Fink , 714 F.3d 9

at 741 (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009))

. 10

Section 806 of SOX pr otects employees from retaliation if they “provide 11

information .

. . regarding any conduct which the employee reasonably believes 12

constitutes a violation of [18 U.S.C.] section 1341 [mail fraud], 1343 [wire fraud], 13
1344 [bank fraud], or 1348 [securities fraud], any rule or regulation of the 14
Securities and Exchange Commission , or any provision of Federal law relating to 15
fraud against shareholders.” 18 U.S.C. § 1514A(a)(1) ; see Nielsen v. AECOM 16
Tech. Corp. , 762 F.3d 214, 219 (2d Cir. 2014)

. Th e elements of a whistleblower 17

anti retaliation claim under Section 806 are “ that (1) [the employee] engaged in 184 protected activity ; (2) the employer knew that [the employee] engaged in 1
protected activity ; (3) [the employee] suffered an unfavorable personnel action ; 2
and (4) the protected activity was a contributing factor in the unfavorable 3

action. ” Murray v. UBS Sec., LLC , 43 F.4th 254, 259 (2d Cir. 2022) (quotation 4
marks omitted)

. 5

Samaroo claims he was retaliated against after he filed numerous internal 6
ethics complaints. But most of th e internal complaints report that BNY Mellon 7

had engaged in conduct constituting nepotism and favoritism rather than the 8
listed categories of fraud or securities violations in Section 806

. 1 It is true that 9

some of the internal complaints expressly reference fraud, money laundering and 10

other financial crimes allegedly committed by BNY Mellon, including in 11
connection with government contracts

. See , e.g. , Supp. App’x 161 , 179 , 195

. But 12

based on our review of Samaroo ’s factual allegations in support of those claims , 13
we agree with the Magistrate Judge’s conclusion that “these assertions, though 14
labeled as something different, also relate to alleged nepotism or favoritism by 15

1 The Magistrate Judge and District Court arrived at the same conclusion after reviewing the documents attached to Samaroo’s opposition to BNY Mellon’s motion to dismiss. “ A district court

. . . may consider factual allegations made by a pro se party in hi s papers opposing” a motion to dismiss. Walker v. Schult , 717 F.3d 119, 122 n.1 (2d Cir. 2013).5 [Samaroo’s] former managers

. ” Supp. App’x 272

. Samaroo has not “ alleged any 1
facts plausibly suggesting that this supposed misconduct implicated any of the 2
enumerated provisions in ” Section 806. Nielsen , 762 F.3d at 223. For these 3
reasons, Samaroo has fail ed to plausibly allege that he engaged in protected 4
activity as required to sustain a whistleblower claim under Section 806. We 5

deem his claim to be insufficient as a matter of law. 6

We have considered Samaroo’s remaining arguments and conclude that 7
they are without merit. For the foregoing reasons, th e judgment of the District 8

Court is AFFIRMED

. 9

FOR THE COURT: 10 Catherine O’Hagan Wolfe, Clerk of Court 11 12