16‐998‐cv
Seguros Nuevo Mundo S.A. v. Trousdale
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 COURTʹS 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
ʺSUMMARY ORDERʺ). 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 1st day of November, two thousand sixteen.
PRESENT: DENNY CHIN,
SUSAN L. CARNEY,
Circuit Judges,
BRIAN M. COGAN,
District Judge.*
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SEGUROS NUEVO MUNDO S.A.,
Plaintiff‐Appellant,
v. 16‐998‐cv
B. ALLEN TROUSDALE,
Defendant‐Appellee.**
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* Judge Brian M. Cogan of the United States District Court for the Eastern District
of New York, sitting by designation.
** The Clerk of Court is respectfully directed to amend the official caption to
conform to the above.
FOR PLAINTIFF‐APPELLANT: ALAN M. POLLACK, John D. DʹErcole,
Robinson Brog Leinwand Greene Genovese &
Gluck P.C., New York, New York.
FOR DEFENDANT‐APPELLEE: PETER J. PIZZI, Mariel L. Belanger, Walsh
Pizzi OʹReilly Falanga LLP, Newark, New
Jersey.
Appeal from the United States District Court for the Eastern District of
New York (Mauskopf, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiff‐appellant Seguros Nuevo Mundo S.A. (ʺSegurosʺ) appeals the
district courtʹs March 25, 2016 judgment dismissing Segurosʹs amended complaint (the
ʺComplaintʺ). Segurosʹs claims arise out of defendant‐appellee B. Allen Trousdaleʹs
alleged breach of a personal guaranty, which Seguros seeks to enforce.1 The district
court granted Trousdaleʹs motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6), explaining its reasoning in its March 25, 2016 memorandum and
order. We assume the partiesʹ familiarity with the facts, procedural history, and issues
on appeal.
In the Complaint, Seguros alleges the following facts. Grad Associates
P.A. (ʺGradʺ), an architectural firm that Trousdale owned and controlled, and Eiffel
1 The district court had diversity jurisdiction over this action pursuant to 28 U.S.C.
§ 1332(a)(2), as Seguros is a citizen of a foreign state (Venezuela) and Trousdale is a citizen of
New York.
2
Engineering Technique, C.A. (ʺEiffelʺ) formed a joint venture and contracted with the
Republic of Venezuela (ʺVenezuelaʺ) to design and build a prison in Venezuela.
Venezuela required the issuance of certain payment and performance bonds. Seguros,
an underwriter of payment and performance bonds, issued bonds for the project. As a
condition to issuing the bonds, Seguros obtained a guaranty (the ʺGuarantyʺ) signed by
Trousdale ʺon behalf ofʺ Grad guaranteeing any amounts that Seguros was required to
pay to Venezuela under the bonds. J. App. at 45. Following the joint ventureʹs alleged
breach of its construction contract, Venezuela sued Seguros, and Seguros paid
Venezuela $12 million in settlement of the lawsuit. Seguros seeks to recover that
amount, plus costs, fees and other damages, from Trousdale personally pursuant to the
Guaranty.2 Trousdale defended the action by arguing that the Guaranty was not a
personal guaranty, and that he signed only as a representative of Grad.
The district court dismissed the Complaint, finding that it failed to
plausibly allege ʺclear and explicit evidenceʺ of Trousdaleʹs intent to be bound by the
Guaranty in his individual capacity. Lerner v. Amalgamated Clothing & Textile Workers
Union, 938 F.2d 2, 5 (2d Cir. 1991) (quoting Mencher v. Weiss, 306 N.Y. 1, 4 (1953)). For
the reasons discussed below, we agree.
We review de novo the district courtʹs dismissal of a complaint for failure
to state a claim, ʺconstruing the complaint liberally, accepting all factual allegations in
2 Seguros does not seek recovery from Grad, which terminated its business
operations prior to the date that Seguros filed its initial complaint.
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the complaint as true, and drawing all reasonable inferences in the plaintiffʹs favor.ʺ
Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002) (citation omitted).
ʺDocuments that are attached to the complaint or incorporated in it by reference are
deemed part of the pleading and may be consideredʺ on a motion to dismiss. Roth v.
Jennings, 489 F.3d 499, 509 (2d Cir. 2007). To survive a Rule 12(b)(6) motion to dismiss, a
complaint must plead ʺenough facts to state a claim to relief that is plausible on its face.ʺ
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Under New York law, where an individual acts in his capacity as an agent
of a disclosed principal, the agent ʺwill not be personally bound unless there is clear
and explicit evidence of the agentʹs intention to substitute or superadd his personal
liability for, or to, that of his principal.ʺ Salzman Sign Co. v. Beck, 10 N.Y.2d 63, 67 (1961)
(quoting Mencher, 306 N.Y. at 4).
Accepting all Segurosʹs factual allegations as true and drawing all
reasonable inferences in its favor, we conclude that the Complaint does not plausibly
allege that Trousdale agreed to be personally liable on the Guaranty. The plain
language of the Guaranty, as set forth in the translation attached to the Complaint,3
states that Trousdale was ʺacting in [his] capacity of Presidentʺ and ʺon behalf of GRAD
ASSOCIATES P.A.ʺ J. App. at 45. Furthermore, the Complaint is silent as to the
structure of the transactions between the parties, the negotiations, or any other
3We reference the revised translation of the Guaranty filed with the Complaint, to
which Trousdale has not objected.
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circumstances under which Trousdale executed the Guaranty. Without more, the
Complaint fails to identify or point to ʺclear and explicit evidenceʺ of Trousdaleʹs intent
to substitute or add his personal liability for or to that of Grad. Salzman, 10 N.Y.2d at
67. Accordingly, we hold that the district court properly dismissed the Complaint for
failure to state a claim.
We have considered all of Segurosʹs additional arguments and find them
to be without merit. For the reasons stated herein, the judgment of the district court is
AFFIRMED.
FOR THE COURT:
Catherine OʹHagan Wolfe, Clerk
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