14

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Estate of Ernest Gottdiener, et al. v. Sater and Lauria

UNITED STATES COURT OF APPEALS

FOR 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 1, 2007, 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 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 7 th day of May, two thousand and

fifteen.

PRESENT: RICHARD C. WESLEY,

DEBRA ANN LIVINGSTON,

DENNY CHIN,

Circuit Judges

.

________________ _______________ _____________

ESTATE OF ERNEST GOTTDIENER, ESTATE OF

JUDIT GOTTDIENER, ERVIN TAUSKY, SUAN

INVESTMENTS,

Plaintiffs

‐ Appellants

,

‐ v. ‐ No. 14

‐ 1313

FELIX SATER, SALVATORE LAURIA,

Defendants

‐ Appellees.

________________ _______________ _____________2 FOR APPELLANTS: 

### FREDERICK M. OBERLANDER, The Law Offices of

Frederick M. Oberlander, Montauk, NY (Richard E.

Lerner, The Law Offices of Richard E. Lerner, New

York, NY, on the brief ).

FOR APPELLEES: 

### ROBERT S. WOLF (Robert D. Lillienstein, Jason

Canales, on the brief ), Moses & Singer, LLP, New

York, NY, for Defendant

‐ Appellee Felix Sater.

JOSHUA D. LISTON, Beys, Stein & Mobargha LLP,

New York, NY, for Defendant

‐ Appellee Salvatore

Lauria.

________________ _______________ _____________

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

New York (Schofield, J .).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the District Court be and

hereby is AFFIRMED

.

Plaintiffs

‐ Appellants Estates of Ernest and Judit Gottdiener, Ervin Tausky,

and Suan Investments (“Plaintiffs”) appeal from a judgment of the United States

District Court for the Southern District of New York, dismissing their claims

against Defendants

‐ Appellees Felix Sater and Salvatore Lauria (“Defendants”)

for violations of the Racketeer Influenced and Corrupt Organizations Act3 (“RICO”), 18 U.S.C. §§ 1961 et seq. 1 We assume the parties’ familiarity with the

underlying facts, procedural history, and issues on appeal.

Plaintiffs assert two claims against Defendants: a substantive RICO

violation, predicated on Defendants’ aiding and abetting a non

‐ party’s securities

fraud, § 1962(c), and a RICO conspiracy violation, for agreeing to further the non

‐

party’s securities fraud, § 1962(d).

RICO claims predicated on securities fraud are subject to Federal Rule of

Civil Procedure 9(b)’s heightened pleading standards requiring that the

allegations of fraud be “state[d] with particularity.” Fed. R. Civ. P. 9(b); Cohen v.

S.A.C. Trading Corp.

, 711 F.3d 353, 359 (2d Cir. 2013). To satisfy this requirement,

the complaint must “specify the time, place, speaker, and content of the alleged

misrepresentations, explain how the misrepresentations were fraudulent and

plead those events which give rise to a strong inference that the defendant had

an intent to defraud, knowledge of the falsity, or a reckless disregard for the

truth.” Cohen

, 711 F.3d at 359 (citing Caputo v. Pfizer, Inc.

, 267 F.3d 181, 191 (2d

Cir. 2001)) (internal quotation marks and alterations omitted). Plaintiffs’ First

1 We review de novo a district court’s dismissal of a complaint pursuant to Federal Rule

of Civil Procedure 12(b)(6), construing the complaint liberally, accepting all well

‐ pled

factual allegations in the complaint as true, and drawing all reasonable inferences in the

plaintiff’s favor. Chambers v. Time Warner, Inc.

, 282 F.3d 147, 152 (2d Cir. 2002).4 Amended Complaint, considered in conjunction with its attached exhibits, Fed.

R. Civ. P. 10(c), does not sufficiently plead the securities fraud

‐ based RICO

claims, see Fed. R. Civ. P. 9(b).

We review a district court’s denial of leave to amend the complaint for

abuse of discretion. Ruotolo v. City of N.Y.

, 514 F.3d 184, 191 (2d Cir. 2008). Here,

Plaintiffs were afforded multiple opportunities to rectify their Rule 9 pleading

deficiencies. See Transcript of Proceedings at 7–14, Estate of Gottdiener v. Sater

, 35

F. Supp. 3d 386 (S.D.N.Y. Mar. 19, 2014), ECF No. 14; Memo Endorsement at 2,

Estate of Gottdiener

, 35 F. Supp. 3d 386, ECF No. 23. The District Court thus did

not abuse its discretion in denying Plaintiffs leave to amend the First Amended

Complaint. See ATSI Commc’ns, Inc. v. Shaar Fund, Ltd.

, 493 F.3d 87, 108 (2d Cir.

2007); cf. Luce v. Edelstein

, 802 F.2d 49, 56 (2d Cir. 1986).

We have considered all of Plaintiffs’ remaining arguments and find them

to be without merit. Accordingly, for the reasons set forth above, the judgment

of the District Court is AFFIRMED

.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk