15-1557 Fanning v. National Grid/Keyspan



## 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 JA NUARY 1, 2007, IS PE RMITTED AND IS GOVERNE D 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 (W ITH THE NOTATION A SUMMARY ORDER @ ). A PARTY CITING TO 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 City of 2 New York, on the 20 th day of May, two thousand sixteen. 3 4 PRESENT: 5 DENNIS JACOBS, 6 BARRINGTON D. PARKER, 7 REENA RAGGI, 8 Circuit Judges. 9

_____________________________________ 10 11 Francis P. Fanning, 12 13 Plaintiff-Appellant , 14 15 v. 15-1557 16 17 18 National Grid/Keyspan, 19 20 Defendant-Appellee . 21 22

_____________________________________ 23 24 FOR PLAINTIFF-APPELLANT: Francis P. Fanning, pro se, Larchmont, NY. 25 26 FOR DEFENDANT-APPELLEE: Justin F. Capuano (with James G. Ryan, on 27 the brief ), Cullen and Dykman LLP, Garden 28 City, NY. 292 Appeal from a judgment of the United States Di strict Court for the Eastern District of New 1 York (Kuntz, J .; Bloom, M.J. ). 2
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 3 DECREED that the judgment of the district court is AFFIRMED

. 4 Appellant Francis P. Fanning, pro se, appeal s from a judgment in favor of KeySpan 5 Corporation (“Keyspan”), a wholly owned subsidiary of National Grid USA, in his suit under the 6 Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b) et seq . We assume the parties’ 7 familiarity with the underlying facts, the procedur al history of the case, and the issues on appeal. 8 We review de novo a district court’s dismissal of a complaint pursuant to Federal Rule of 9 Civil Procedure 12(b)(6), “construing the compla int liberally, accepting all factual allegations in 10 the complaint as true, and drawing all reasona ble inferences in the plaintiff’s favor.” Leibowitz v. 11 Cornell Univ. , 445 F.3d 586, 590 (2d Cir. 2006) (internal qu otation marks omitted). A plaintiff 12 must allege sufficient facts to state a claim to relief that is “plausible on its face.” Bell Atl. Corp. 13 v. Twombly , 550 U.S. 544, 570 (2007). 14 In this Circuit, pro se complaints should not be dismissed by the district court without 15 granting leave to amend at least once when a liberal reading of the complaint gives “any 16 indication” that a valid claim might be stated. Shomo v. City of New York , 579 F.3d 176, 183 (2d 17 Cir. 2009) (citation omitted). However, a dist rict court need not grant leave to amend if 18 amendment would be “futile.” See, e.g. , Cuoco v. Moritsugu , 222 F.3d 99, 112 (2d Cir. 2000). 19 We review a district cour t’s denial of leave to amend for abus e of discretion, unle ss “the denial of 20 leave to amend is based on a legal interpretation, such as a determination that amendment would be 213 futile,” in which case we review the denial de novo. Smith v. Hogan , 794 F.3d 249, 253 (2d Cir. 1 2015). 2 The district court properly di smissed Fanning’s FTCA claims. The FTCA does not create 3 a cause of action against private entities; it simply waives the federal government’s sovereign 4 immunity for torts committed by its employees in circumstances in which a private individual 5 would be liable. United States v. Olson , 546 U.S. 43, 44 (2005); see also 28 U.S.C. § 1346(b)(1). 6 Moreover, the allegedly fraudul ent activity that formed the nucleus of Fanning’s complaint 7 happened between 1998 and 2005, well beyond the FT CA’s two-year statute of limitations for 8 filing an administrative claim. See 28 U.S.C. § 2401(b)

. 9 The district court denied Fa nning’s motion for leave to ame nd. Under Federal Rule of 10 Civil Procedure 15(a)(1)(A), a “party may amend its pleading once as a matter of course within . . . 11 21 days after serving it.” Fed. R. Civ. P. 15(a )(1)(A). Since Fanning moved for leave to amend 12 on June 25, 2014, within 21 da ys of having served KeyS pan on June 5, 2014, Fanning was 13 “entitled to amend [his] complaint as a matter of right without leave of the district court.” See In 14 re Agent Orange Prod. Liab. Litig. , 517 F.3d 76, 103 (2d Cir. 2008). Any error, however, was 15 harmless because any claims Fanning could have brought under the Employee Retirement Income 16 Security Act (“ERISA”), 29 U.S.C. §§ 1001 et seq. , or Sarbanes-Oxley, 15 U.S.C. §§ 7201 et seq. , 17 (or under the Securities Exchange Act, 15 U.S.C. §§ 78a et seq. , for enforcement of 18 Sarbanes-Oxley’s disclosure requirements) would have been barred by the statutes of limitations. 19
See 29 U.S.C. § 1113 (six-year statute of limitations from the time of discovery of ERISA breach 20 of fiduciary duty involving “fraud or concealmen t”); 28 U.S.C. § 1658(b) (two-year statute of 21 limitations from the time of discovery of “ fraud, deceit, manipulation, or contrivance in 224 contravention of a regulatory requirem ent concerning the securities laws”); LC Capital Partners, 1 LP v. Frontier Ins. Group, Inc. , 318 F.3d 148, 154 (2d Cir. 2003) (observing that 2 pre-Sarbanes-Oxley statute of limitations was one year after discovery of facts constituting the 3 violation); see also 15 U.S.C. § 7202(b)(1) (violations of Sarbanes-Oxley treated the same as 4 violations of Securities Exchange Act). None of the allegedly fraudulent transactions of which 5 Fanning complains occurred after 2005. Moreover, he alleges that he knew of the allegedly 6 fraudulent activity as early as 2002, when he was fo rced into retirement for confronting KeySpan 7 officials about it. 8 We have considered Fanning’s remaining argume nts and find them to be without merit. 9 Accordingly, we AFFIRM the district court’s judgment. 10
FOR THE COURT: 11 Catherine O’Hagan Wolfe, Clerk 12