10-2917-cv(L)
Malone v. Bayerische Hypo-Und Vereinsbank
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 24th day of June, two thousand eleven.
5
6 PRESENT: CHESTER J. STRAUB,
7 REENA RAGGI,
8 RICHARD C. WESLEY,
9 Circuit Judges.
10
11
12 MICHAEL MALONE and BARBARA MALONE, Husband and Wife,
13
14 Plaintiffs-Appellants,
15
16 -v.- 10-2917-cv (Lead)
17 10-2920-cv (Con)
18
19 BAYERISCHE HYPO-UND VEREINSBANK, AG, NEW YORK BRANCH,
20 BAYERISCHE HYPO-UND VEREINSBANK US FINANCE, f/k/a BAYERISCHE
21 HYPO-UND VEREINSBANK STRUCTURED FINANCE, INC., KATTEN MUCHIN
22 ROSENMAN, LLP, f/k/a ROSENMAN COLIN, LLP, ENTERPRISE
23 FINANCIAL SERVICES CORPORATION, A MISSOURI CORPORATION,
24 f/k/a ENTERPRISE BANK,
25
26 Defendants-Appellees,
27
28 DOES, 1 THROUGH 50,
29
30 Defendants.*
*
The Clerk of the Court is directed to amend the official caption in
accordance with this order.
1 FOR APPELLANTS: BRIAN G. ISAACSON, Isaacson &
2 Wilson, P.S., Seattle, WA.
3
4 FOR APPELLEE HVB: MARK W. LERNER (Trevor J. Welch,
5 on the brief), Kasowitz, Benson,
6 Torres & Friedman, LLP, New
7 York, NY.
8
9 FOR APPELLEE KATTEN: TED PORETZ, Ellenoff Grossman &
10 Schole, LLP, New York, NY.
11
12 FOR APPELLEE ENTERPRISE: KENNETH J. KELLY (Lori A.
13 Jordan, on the brief), Epstein
14 Becker & Green, P.C., New York,
15 NY.
16
17 Appeal from the United States District Court for the
18 Southern District of New York (Gardephe, J.).
19
20 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
21 AND DECREED that the judgment of the district court be
22 AFFIRMED.
23 Appellants Michael and Barbara Malone (the “Malones”)
24 appeal from a judgment of the United States District Court
25 for the Southern District of New York (Gardephe, J.), which
26 dismissed as time-barred their claims against Appellees
27 Bayerische Hypo-Und Vereinsbank (collectively with related
28 entity, “HVB”), Katten Muchin Rosenman, LLP (“Katten”), and
29 Enterprise Financial Services Corporation (“Enterprise”).
30 We assume the parties’ familiarity with the underlying
31 facts, the procedural history, and the issues presented for
32 review.
2
1 The Malones’ claims against HVB and Enterprise are not
2 tolled under 28 U.S.C. § 1367(d). That provision applies
3 only to state claims dismissed from federal court and
4 subsequently re-filed in state court. Seabrook v. Jacobson,
5 153 F.3d 70, 72 (2d Cir. 1998). This interpretation of the
6 provision is in keeping with the nature of the broader
7 statutory section, which addresses supplemental jurisdiction
8 over state claims. 28 U.S.C. § 1367; see In re Ames Dep’t
9 Stores, Inc., 582 F.3d 422, 427 (2d Cir. 2009) (noting that
10 in interpreting statutory language, we must consider “the
11 specific context in which that language is used, and the
12 broader context of the statute as a whole”).
13 As for the claims against Katten, Judge Gardephe
14 correctly found that the Malones were on inquiry notice
15 concerning Katten’s role in the underlying alleged fraud
16 since at least 2003. Accordingly, those claims are also
17 time-barred.
18 On these and all remaining issues, we agree with the
19 district court’s thorough and well-reasoned opinion. For
20 the foregoing reasons, the judgment of the district court is
21 hereby AFFIRMED.
22 FOR THE COURT:
23 Catherine O’Hagan Wolfe, Clerk
3