10-2239-cv
Associated Community Bancorp v. The Travelers Companies
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 NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 11th day of May, two thousand eleven.
5
6 PRESENT: RICHARD C. WESLEY,
7 GERARD E. LYNCH,
8 DENNY CHIN,
9 Circuit Judges.
10
11
12
13 ASSOCIATED COMMUNITY BANCORP, INC., CONNECTICUT COMMUNITY
14 BANK N.A., WESTPORT NATIONAL BANK, DENNIS D. CLARK,
15
16 Plaintiffs-Appellants,
17
18 -v.- 10-2239-cv
19
20 THE TRAVELERS COMPANIES, INC., ST. PAUL MERCURY INS. CO.,
21
22 Defendants-Appellees.
23
24
25
26 FOR APPELLANT: MITCHELL J. AUSLANDER (Todd G. Cosenza,
27 Alison R. Levine, on the brief), Willkie
28 Farr & Gallagher LLP, New York, NY.
29
30 FOR APPELLEE: G. ERIC BRUNSTAD, JR. (Collin O’Connor
31 Udell, Matthew J. Delude, Dechert LLP;
32 Thomas J. Judge, Thompson, Loss & Judge,
33 LLP, on the brief), Dechert LLP,
34 Hartford, CT.
35
1 Appeal from the United States District Court for the
2 District of Connecticut (Hall, J.).
3
4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
5 AND DECREED that the judgment of the district court be
6 AFFIRMED.
7 Plaintiffs-Appellants Associated Community Bancorp,
8 Inc., Connecticut Community Bank N.A., Westport National
9 Bank, and Dennis Clark appeal from an April 7, 2010 judgment
10 dismissing the complaint and a May 28, 2011 order denying
11 their motion to reopen the judgment and file a third amended
12 complaint of the United States District Court for the
13 District of Connecticut (Hall, J.). We assume the parties’
14 familiarity with the underlying facts and the procedural
15 history of the case.
16 “We review de novo the grant of a motion to dismiss for
17 failure to state a claim upon which relief can be granted
18 under Federal Rule of Civil Procedure 12(b)(6).” Harris v.
19 Mills, 572 F.3d 66, 71 (2d Cir. 2009). “We consider the
20 legal sufficiency of the complaint, taking its factual
21 allegations to be true and drawing all reasonable inferences
22 in the plaintiff’s favor.” Id. We likewise review “de novo
23 questions as to the ambiguity and meaning of the language of
24 [an insurance] contract.” State Farm Fire & Cas. Ins. Co.
2
1 v. Sayles, 289 F.3d 181, 185-86 (2d Cir. 2002); see also Bd.
2 of Educ. v. St. Paul Fire & Marine Ins. Co., 801 A.2d 752,
3 754 (Conn. 2002) (“[C]onstruction of a contract of insurance
4 presents a question of law for the court which this court
5 reviews de novo.”) (alteration in the original).
6 Having conducted an independent and de novo review of
7 the record in light of these principles, we affirm the
8 district court’s judgment for substantially the same reasons
9 stated by the district court in its thorough and
10 well-reasoned decision.
11 Appellants make one argument that was not considered
12 below, undoubtedly because it was presented to the district
13 court only briefly at oral argument, and not presented again
14 in either Appellants’ motion to reopen or in their efforts
15 to amend the complaint. They argue that the underlying
16 claims against them fall within a carveback to the policy’s
17 insolvency exclusion because they allege covered acts
18 “solely in connection with [their] investment on behalf of a
19 customer in the stock of [an investment company or similar
20 organization].” Assuming arguendo that Appellants raised
21 this issue below, it is without merit. The carveback
22 relates to investments in an investment company’s “stock” –
3
1 that is, in its equity. While some of the underlying
2 complaints refer to “shares,” all of them make clear that
3 the proposed Madoff investments involved creating an
4 investment account with Madoff, not making an equity
5 investment in the stock of an investment company or similar
6 organization.
7 We have considered Appellants’ remaining arguments and
8 find them to be without merit. For the foregoing reasons,
9 the judgment of the district court is hereby AFFIRMED.
10
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
13
14
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