District Judge Jed S. Rakoff of the United States District Court for the Southern *

District of New York, sitting by designation.

09-0993-cv

Boccardi Capital Systems v. D.E. Shaw Laminar Portfolios

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY

ORDERS FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S

LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER

PAPER IN WHICH A LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A

CITATION APPEARS, AT LEAST ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR

BE ACCOMPANIED BY THE NOTATION: (SUMMARY ORDER). A PARTY CITING A SUMMARY

ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER TOGETHER WITH THE PAPER IN

WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL

UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS

PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT

HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY

OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT

DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.

At a stated term of the United States Court of Appeals for the Second Circuit, held

at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of

New York, on the 9 day of December, two thousand nine. th

PRESENT:

JOHN M. WALKER, JR.,

REENA RAGGI,

Circuit Judges,

JED S. RAKOFF,

District Judge.

*

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BOCCARDI CAPITAL SYSTEMS, INC.,

Plaintiff-Appellant,

 v. No. 09-0993-cv

D.E. SHAW LAMINAR PORTFOLIOS, L.L.C.,

Defendant-Appellee.

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APPEARING FOR APPELLANT: RUSSELL I. GLAZER (Kathleen E. Holtz, on the

brief), Troygould PC, Los Angeles, California.

APPEARING FOR APPELLEE: MICHAEL RIPS (John D. Lovi, Lara E.

Romansic, Justin B. Perri, on the brief), Steptoe &

Johnson LLP, New York, New York.

Appeal from the United States District Court for the Southern District of New York

(George B. Daniels, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on February 9, 2009, is AFFIRMED.

Boccardi Capital Systems, Inc. (“Boccardi”) appeals the dismissal of this diversity

action asserting common-law claims against D.E. Shaw Laminar Portfolios, L.L.C. (“Shaw”)

based on the failure of the parties’ contemplated joint takeover of Riviera Holding

Corporation (“Riviera”), a hotel and casino operator. We review a Rule 12(b)(6) dismissal

de novo, “constru[ing] [the] complaint liberally, accepting all factual allegations in the

complaint as true, and drawing all reasonable inferences in the plaintiff’s favor.” Holmes

v. Grubman, 568 F.3d 329, 335 (2d Cir. 2009) (internal quotation marks omitted). To avoid

dismissal, the complaint must “state a claim to relief that is plausible on its face.” Ashcroft

v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotation marks omitted). We assume

familiarity with the facts and the record of prior proceedings, which we reference only as

necessary to explain our decision to affirm.

1. Breach of Contract

Boccardi contends that the district court erred in ruling that it failed to plead facts
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sufficient to state a claim for Shaw’s breach of a “Confidentiality and Use Restriction

Agreement” (the “Agreement”). Boccardi asserts that, pursuant to the Agreement, it

provided Shaw with confidential information, including its business plan for acquiring

control of Riviera, in exchange for which Shaw promised not to divulge the information or

use it other than in connection with the planned joint takeover. The complaint alleges that

Shaw breached the Agreement by purchasing blocks of Riviera stock and later making a

public bid for the company while refusing to permit Boccardi to exercise purported options

to purchase a portion of its stake or to vote its shares.

Boccardi’s claim for breach of contract was properly dismissed. As the district court

observed, the complaint itself asserts that Shaw purchased Riviera stock with Boccardi’s

“assistance and advice,” and “in association with” Boccardi. Am. Compl. ¶ 24. Boccardi

does not dispute that it acquiesced in the purchase; rather, it contends that it did so based “on

conditions that never materialized,” Appellant’s Br. at 27, an apparent reference to its

expectation of a further agreement regarding options. But such an agreement never

materialized, and Shaw is not bound by Boccardi’s mere expectation that it would. See

Joseph Martin, Jr. Delicatessen, Inc. v. Schumacher, 52 N.Y.2d 105, 109, 417 N.E.2d 541,

543 (1981) (noting that “agreement to agree” is unenforceable).

Nor does the complaint allege facts indicating that Shaw relied on Boccardi’s

confidential information in making its subsequent public bid for Riviera. Boccardi claims

to have advised Shaw that such a bid would cause the share price to increase, but even if
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Shaw relied upon this unextraordinary prediction, no factfinder could conclude that it

constituted confidential information within the meaning of the Agreement, which expressly

excluded from that definition “information . . . generally available to the public.” Cf. Buhler

v. Michael P. Maloney Consulting, Inc., 299 A.D.2d 190, 191, 749 N.Y.S.2d 867, 868 (1st

Dep’t 2002) (holding that contact list based on, inter alia, “information that was publicly

available” did not qualify as trade secret).

Because we conclude that Boccardi fails to state a claim for breach of the Agreement,

we need not address its contention that it is now entitled to a share of Shaw’s profits from

the acquired stock. See Appellant’s Br. at 32 (claiming that Shaw “was not at liberty to keep

for itself the property it obtained by using the information”). We note, however, that the

Agreement required Shaw to use Boccardi’s information only to advance the planned joint

takeover and to return or destroy the information if it decided not to participate. The

Agreement did not require Shaw to divest itself of property in that event.

Our conclusion that Boccardi has failed sufficiently to allege a breach of contract

compels a similar conclusion respecting its claim, grounded in the same factual predicate, for

breach of the implied duty of good faith and fair dealing. See National Mkt. Share, Inc. v.

Sterling Nat’l Bank, 392 F.3d 520, 525 (2d Cir. 2004) (“In New York, breach of the implied

duty of good faith and fair dealing is merely a breach of the underlying contract.” (internal

quotation marks omitted)); see also Murphy v. Am. Home Prods. Corp., 58 N.Y.2d 293, 304,

448 N.E.2d 86, 91 (1983).
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2. Breach of Fiduciary Duty

We also agree with the district court that Boccardi failed adequately to plead the

existence of a fiduciary relationship between itself and Shaw. “A fiduciary relationship

exists under New York law when one [person] is under a duty to act for or to give advice for

the benefit of another upon matters within the scope of the relation.” Flickinger v. Harold

C. Brown & Co., 947 F.2d 595, 599 (2d Cir. 1991) (internal quotation marks omitted).

However, “[w]hen parties deal at arm[’]s length in a commercial transaction, no relation of

confidence or trust sufficient to find the existence of a fiduciary relationship will arise absent

extraordinary circumstances.” In re Mid-Island Hosp., Inc., 276 F.3d 123, 130 (2d Cir. 2002)

(internal quotation marks omitted). No such circumstances are pleaded here.

The complaint alleges that Shaw owed Boccardi a fiduciary duty because Shaw agreed

to act as its “underwriter, investment banker and financier.” Am. Compl. ¶ 42. As the

district court correctly observed, however, the complaint’s factual allegations, if proved,

would not establish that Shaw agreed to act as Boccardi’s “financier”; rather, Boccardi

expected to finance its own participation. See id. ¶¶ 19-21. Nor would Shaw’s receipt of

confidential information, without more, transform it into Boccardi’s fiduciary. The cases

Boccardi cites in support of this contention are distinguishable. See, e.g., JPMorgan Chase

Bank, N.A. v. IDW Group, LLC, No. 08 Civ. 9116, 2009 WL 321222, at *10, 12 (S.D.N.Y.

Feb. 9, 2009) (holding duty existed where alleged fiduciary received “a great deal of highly

confidential and sensitive information,” cultivated relationships with principal’s employees,
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and acted as principal’s adviser “in a position of extraordinary trust” (internal quotation

marks omitted)). There is no allegation that Shaw agreed to “act for or to give advice for the

benefit of” Boccardi. Flickinger v. Harold C. Brown & Co., 947 F.2d at 599. Rather,

Boccardi claims that the parties “work[ed] together to acquire control of Riviera.” Am.

Compl. ¶ 28. Finally, Boccardi has not sufficiently alleged the existence of a joint venture

in light of its failure to plead facts suggesting it would have shared in any loss resulting from

Shaw’s investment in Riviera. See Brown v. Cara, 420 F.3d 148, 159-60 (2d Cir. 2005).

3. Constructive Trust and Unjust Enrichment

Boccardi’s quasi-contractual claims, seeking imposition of a constructive trust and

recovery under a theory of unjust enrichment, are precluded by the existence of an express

written agreement governing the subject matter at issue, i.e., Boccardi’s confidential

information. See In re First Cent. Fin. Corp., 377 F.3d 209, 213 (2d Cir. 2004) (“[W]e

conclude that this principle – that the existence of a written agreement precludes a finding

of unjust enrichment – also applies to constructive trust claims . . . .”); City of Yonkers v.

Otis Elevator Co., 844 F.2d 42, 48 (2d Cir. 1988) (“Our disposition of the contract claim also

disposes of the quasi-contractual cause of action, because such relief is unavailable where

an express contract covers the subject matter.”); Clark-Fitzpatrick, Inc. v. Long Island R.R.

Co., 70 N.Y.2d 382, 388, 516 N.E.2d 190, 193 (1987).

4. Leave To Amend

Finally, Boccardi contends that the district court should have afforded it a second
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opportunity to amend its complaint. Ordinarily, we review a denial of leave to amend for

abuse of discretion. See Patane v. Clark, 508 F.3d 106, 113 n.6 (2d Cir. 2007). In this case,

Boccardi never requested leave. Nor has it shown that amendment would have permitted it

to survive dismissal. The additional facts it proffers, if proved, might demonstrate injury

following Shaw’s conduct, but not that Shaw breached the Agreement. The allegation that

Shaw advised Boccardi not to seek other financing is contradicted by the complaint. And the

bare promise that Shaw would “act to protect [its] interests” would be insufficient, even if

proven, to demonstrate the “extraordinary circumstances” required for the creation of a

fiduciary relationship. In re Mid-Island Hosp., Inc., 276 F.3d at 130 (internal quotation

marks omitted). Thus, the district court did not err by dismissing the complaint without

granting leave to amend. See Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 76 (2d

Cir. 1998).

We have considered Boccardi’s remaining arguments on appeal, and we conclude that

they are without merit. Accordingly, the judgment of the district court is AFFIRMED.

FOR THE COURT:

CATHERINE O’HAGAN WOLFE, Clerk of Court

By:_______________________