14‐1313
Estate of Ernest Gottdiener, et al. v. Sater and Lauria
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.
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 7th 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.
____________________________________________
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 Act
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(“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).
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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
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