15‐626
NYSA Series Trust, et al. v. Dessein, et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
AMENDED 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 29th day of January, two thousand
sixteen.
PRESENT: AMALYA L. KEARSE,
CHESTER J. STRAUB,
RICHARD C. WESLEY,
Circuit Judges.
______________________
NYSA SERIES TRUST, LEW RUMSMOKE,
LEAH GABELMAN, TRUSTEE,
GABELMAN TRUST, GERALD E. FUESS,
RICHARD MARTIN, RICHARD B. ABBOTT,
TERI MARTIN, CHRISTOPHER MORRIS,
JACOB HULLER, SUSAN SCHWEITZER,
TRUSTEE, SCHWEITZER LIVING TRUST,
EDWIN L. OLMSTEAD, ALTON PROSSER,
MICHAEL CUDDY, MICHAEL & ELIZABETH
PFOHL, ANDREW MERRITT, BRIAN
LETCHER, WILLIAM PATTERSON, TRUSTEE,
PATTERSON WAREHOUSE EMPLOYEE
AND PROFIT SHARING PLAN,
Plaintiffs‐Appellants,
‐v.‐ No. 15‐626
PATRICK DESSEIN, BRETT GREENKY,
M.D., SETH GREENKY, M.D.,
GLENN AXELROD, M.D., RICHARD
ESPOSITO, JOHN SACCO, M.D., ESPSCO
SYRACUSE, LLC
Defendants‐Appellees.
______________________
FOR PLAINTIFFS‐APPELLANTS: JAY SHAPIRO (Patricia C.
Foster, Patricia C. Foster PLLC,
Pittsford, NY, on the brief),
White and Williams LLP, New
York, NY.
FOR DEFENDANTS‐APPELLEES DANIEL B. BERMAN (Janet D.
PATRICK DESSEIN, BRETT GREENKY, Callahan, on the brief), Hancock
M.D., SETH GREENKY, M.D., Estabrook, LLP, Syracuse, NY.
GLENN AXELROD, M.D.,
RICHARD ESPOSITO:
FOR DEFENDANT‐APPELLEE MATTHEW VAN RYN,
JOHN SACCO, M.D.: Melvin & Melvin, PLLC,
Syracuse, NY.
Appeal from the United States District Court for the Northern District of
New York (David N. Hurd, Judge).
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UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED that the judgment of the District Court is
AFFIRMED.
Plaintiffs‐Appellants appeal from the dismissal with prejudice of their
claims against Defendants‐Appellees under Section 10(b) of the Securities
Exchange Act of 1934, 15 U.S.C. § 78j(b), and Rule 10b‐5, 17 C.F.R. § 240.10b‐5.
The action arises out of Plaintiffs‐Appellants’ purchase of debt securities in a
private placement offering (the “Offering”) made by Defendant‐Appellee
ESPSCO Syracuse, LLC (“ESPSCO”). Plaintiffs‐Appellants allege that the
informational materials included with the Offering contained material
misrepresentations that fraudulently induced them into making this investment.
The District Court dismissed plaintiffs’ federal claims against the
individual defendants principally on the ground that the complaint failed to state
a claim on which relief can be granted under Section 10(b) and Rule 10b‐5, and
alternatively on the ground that those claims were barred by the statute of
limitations. The sufficiency of a complaint to state a claim on which relief can be
granted is a question of law. See De Jesus v. Sears, Roebuck & Co., 87 F.3d 65, 69
(2d Cir. 2010), cert. denied, 562 U.S. 1168 (2011). We agree, for substantially the
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reasons stated by the District Court, that plaintiffs’ complaint failed to state a
claim on which relief can be granted under Section 10(b) and Rule 10b‐5.
Although the District Court dismissed plaintiffs’ federal claims against
ESPSCO only on the statute‐of‐limitations ground, “[i]t is well settled that this
Court ‘may affirm on any basis for which there is sufficient support in the record,
including grounds not relied on by the district court,’” Lotes Co. v. Hon Hai
Precision Industry Co., 753 F.3d 395, 413 (2d Cir. 2014) (quoting Bruh v. Bessemer
Venture Partners III L.P., 464 F.3d 202, 205 (2d Cir. 2006), cert. denied, 549 U.S. 1209
(2007)). As the complaint failed to state a claim against ESPSCO under Section
10(b) and Rule 10b‐5 for the same reasons stated by the District Court with
respect to the individual defendants, we affirm the dismissal of ESPSCO for
failure to state a claim.
We have considered all of plaintiffs’ challenges to the District Court’s
ruling that the complaint failed to state a claim and have found them to be
without merit. We AFFIRM the judgment of the District Court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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