14-3490
Lexon Insurance Company v. Wells Fargo Bank
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 16th day of October, two thousand fifteen.
5
6 PRESENT: DENNIS JACOBS,
7 RAYMOND J. LOHIER, JR.,
8 Circuit Judges.
9 GEOFFREY W. CRAWFORD,*
10 District Judge.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 LEXON INSURANCE COMPANY,
14 Plaintiff-Appellant,
15
16 -v.- 14-3490
17
18 WELLS FARGO BANK,
19 Defendant-Appellee.
20 - - - - - - - - - - - - - - - - - - - -X
21
*
The Honorable Geoffrey W. Crawford, United States
District Judge for the District of Vermont, sitting by
designation.
1
1 FOR APPELLANT: ANDREW S. KENT, CHIESA SHAHINIAN
2 & GIANTOMASI PC, West Orange,
3 New Jersey.
4
5 FOR APPELLEE: RICHARD G. HADDAD, OTTERBOURG
6 P.C., New York, New York.
7
8 Appeal from a judgment of the United States District
9 Court for the Southern District of New York (Hellerstein,
10 J.).
11
12 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
13 AND DECREED that the judgment of the district court be
14 AFFIRMED.
15
16 Lexon Insurance Company (“Lexon”) appeals from the
17 judgment of the United States District Court for the
18 Southern District of New York (Hellerstein, J.), granting
19 the motion of Wells Fargo Bank for judgment on the
20 pleadings. We assume the parties’ familiarity with the
21 underlying facts, the procedural history, and the issues
22 presented for review.
23
24 1. As to the dismissal of Lexon’s claim of unjust
25 enrichment, the district court correctly applied New York
26 law, holding that the relationship between Lexon and Wells
27 Fargo did not support an unjust enrichment claim. See
28 Grynberg v. ENI S.P.A., 503 F. App’x 42, 44 (2d Cir. 2012)
29 (“Although privity is not required for an unjust enrichment
30 claim, a claim will not be supported if the connection
31 between the parties is too attenuated.”) (citing Mandarin
32 Trading Ltd. v. Wildenstein, 944 N.E.2d 1104, 1110-11 (N.Y.
33 2011)).
34
35 2. Lexon’s claim of equitable subrogation is not
36 cognizable because the government had no rights against
37 Wells Fargo in the first instance, given that Wells Fargo
38 was not an “importer” under 19 C.F.R. § 141.1. The cases
39 Lexon cites to support its claim are inapposite. In Corex
40 Corp. v. United States, 524 F.2d 1017, 1019-20 (9th Cir.
41 1975), the Ninth Circuit held that the “determination of who
42 is the importer under the pertinent statute does not turn on
43 technical rules such as the law of sales, but rather on the
44 realities as to who arranges as principal and not as agent
45 for the articles to be imported into the United States.”
46 Id. (internal quotation marks omitted). Lexon’s complaint
47 is devoid of any allegations that ANG operated as Wells
2
1 Fargo’s agent. See N.Y. Marine & General Ins. Co. v.
2 Tradeline (L.L.C.), 266 F.3d 112, 122 (2d Cir. 2001) (“New
3 York common law provides that an agency relationship results
4 from a manifestation of consent by one person to another
5 that the other shall act on his behalf and subject to his
6 control, and the consent by the other to act.” (internal
7 quotation marks omitted)).
8
9 3. Lexon challenges the grant of judgment on the
10 pleadings, on the ground that Wells Fargo cherry-picked
11 documents that it annexed to its answer. The district court
12 properly considered these documents in adjudicating Wells
13 Fargo’s Rule 12(c) motion. See L-7 Designs, Inc. v. Old
14 Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011) (“On a 12(c)
15 motion, the court considers the complaint, the answer, [and]
16 any written documents attached to them . . . .” (internal
17 quotation marks omitted)). Lexon does not dispute the
18 authenticity of any such documents. Moreover, the district
19 court limited its holding to consideration of Lexon’s
20 complaint and any accompanying documents. J.A. 338 (“In
21 sum, the facts alleged in the Amended Complaint and the
22 contracts attached to the complaint indicate that ANG was at
23 all times the importer of goods and do not establish that
24 Wells Fargo did anything other than provide ANG with
25 financing secured by the goods owned by ANG.”).
26
27 4. Lexon argues that it should have been granted leave
28 to amend its complaint. But given that Lexon has not stated
29 a claim under either of its asserted causes of action,
30 Lexon’s motion was properly denied on the basis of futility.
31 See State Teachers Retirement Bd. v. Fluor Corp., 654 F.2d
32 843, 856 (2d Cir. 1981) (“Reasons for a proper denial of
33 leave to amend include . . . futility of the amendment
34 . . . . .”).
35
36 For the foregoing reasons, and finding no merit in
37 Lexon’s other arguments, we hereby AFFIRM the judgment of
38 the district court.
39
40 FOR THE COURT:
41 CATHERINE O’HAGAN WOLFE, CLERK
42
3