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affirming dismissal by the district court and noting that "Rule 9(b) requires that the complaint allege facts with a greater specificity than is evident here. We hold that the complaint fails to allege with sufficient specificity facts that link Gambella, and JPMorgan Chase Bank in turn, to any fraud perpetrated by Boktor and NYF."
Summary of this case from In re Ditech Holding Corp.Opinion
No. 09-1767-cv.
June 29, 2010.
Appeal from a judgment of the United States District Court for the Southern District of New York (Preska, C.J.). UPON DUE CONSIDERATION it is hereby ORDERED, ADJUDGED, AND DECREED that the judgment of the district court be AFFIRMED.
John F. Lauro, Lauro Law Firm, New York, NY, Lisa Beth Hymes, Armonk, NY, for Appellant.
Andrea Likwornik Weiss (Alan H. Scheiner, of counsel), Levi Lubarsky Feigenbaum, New York, NY, for Appellee.
PRESENT: WILFRED FEINBERG, ROBERT D. SACK and PETER W. HALL, Circuit Judges.
SUMMARY ORDER
Plaintiff-Appellant appeals from the district court's March 31, 2009 order granting the Defendants-Appellees' motion to dismiss the complaint under Fed.R.Civ.P. 12(b)(6). We assume the parties' familiarity with the facts, procedural history, and specification of issues on appeal.
We review de novo a district court's grant of a motion to dismiss. Slayton v. Am. Express Co., 604 F.3d 758, 766 (2d Cir. 2010). Where, as here, the complaint pleads claims of fraud and its affinities, the complaint is subject to the heightened pleading standards of Fed.R.Civ.P. 9(b). See In re Morgan Stanley Info. Fund Sec. Litig., 592 F.3d 347, 358 (2d Cir. 2010). Under Rule 9(b), "a party must state with particularity the circumstances constituting fraud." Fed.R.Civ.P. 9(b). Conclusory statements and allegations are not enough to meet the Rule 9(b) pleading requirements. See In re Carter-Wallace, Inc., Sec. Litig., 220 F.3d 36, 40 (2d Cir. 2000).
According to the complaint, in December 2004, Nicholas Gambella ("Gambella") participated in a conference call with Abubaker El-Nagar ("El-Nagar") and Amir Boktor ("Boktor"). The complaint describes the interaction between El-Nagar and Gambella as follows:
Boktor introduced Gambella as the vice-president of the investment department of JPMorgan New York and the representative for the JPMorgan Investment Program. Gambella described in detail the benefits of a JPMorgan Investment Program and his role at JPMorgan in an effort to further the business relationship between Musalli and JPMorgan.
Plaintiff-appellant argues that this statement, and later email messages to Stokes in which Gambella denied the existence of the investment program demonstrate Gambella's participation in the fraud originated by Boktor and New York Financial ("NYF"). The complaint itself, however, only alleges that Gambella denied that Musalli placed funds in the investment program, not whether the program itself ever existed.
Rule 9(b) requires that the complaint allege facts with a greater specificity than is evident here. We hold that the complaint fails to allege with sufficient specificity facts that link Gambella, and JPMorgan Chase Bank in turn, to any fraud perpetrated by Boktor and NYF.
After reviewing the remaining issues and claims on appeal and the record of proceedings below, we affirm for substantially the same reasons articulated by the district court in its thoughtful and well-reasoned order and opinion.
Accordingly, the judgment of the district court is AFFIRMED.