Williams v. Citigroup Inc. ( 2011 )

10-538-cv
Williams v. Citigroup Inc.
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
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 11th day
of August, two thousand eleven.
Present:
PIERRE N. LEVAL,
ROBERT A. KATZMANN,
PETER W. HALL,
Circuit Judges.
____________________________________________________
LINDA GRANT WILLIAMS,
Plaintiff-Appellant,
v. No. 10-538-cv
CITIGROUP INC., CITIGROUP GLOBAL MARKETS INC.,
Defendants-Appellees.
____________________________________________________
For Plaintiff-Appellant: MICHAEL A. BOWSE, Browne Woods George LLP, Los
Angeles, Cal. (Lee A. Weiss, Browne Woods George
LLP, New York, N.Y., on the brief).
For Defendants-Appellees: CARMINE D. BOCCUZZI, Cleary Gottlieb Steen &
Hamilton LLP, New York, N.Y. (Leah Brannon, Cleary
Gottlieb Steen & Hamilton LLP, Washington, D.C., on
the brief).
Appeal from the United States District Court for the Southern District of New York
(Preska, C.J.).
ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and
DECREED that the judgment of the district court is AFFIRMED in part and VACATED in
part, the February 8, 2010 order of the district court is VACATED, and the case is
REMANDED for further proceedings.
Plaintiff-Appellant Linda Grant Williams appeals from a November 3, 2009 judgment of
the United States District Court for the Southern District of New York (Preska, C.J.) dismissing
her complaint and from the district court’s February 8, 2010 order denying her postjudgment
motion for reargument and reconsideration of that dismissal and for leave to replead. On appeal,
Williams asserts, inter alia, that the district court erred by granting Citigroup’s Rule 12(b)(6)
motion to dismiss as to her federal claims.1
Williams is an attorney licensed in the state of New York who specializes in facility
financing. She alleges that she has developed an improved, patent-pending structure for Airline
Special Facility bonds (“ASF bonds”), which are issued by municipalities to finance the
construction and renovation of airport terminals. Defendant-Appellee Citigroup Inc., through its
wholly owned subsidiary Citigroup Global Markets Inc. (together, “Citigroup”), is a major
underwriter of ASF bonds. We presume the parties’ familiarity with the remaining facts and
procedural history of this case.
We review the district court’s Rule 12(b)(6) dismissal de novo, “accepting all factual
claims in the complaint as true, and drawing all reasonable inferences in the plaintiff’s favor.”
Famous Horse Inc. v. 5th Ave. Photo Inc., 624 F.3d 106, 108 (2d Cir. 2010). “To survive a
1
We address in our accompanying opinion Williams’s additional arguments that the
district court erred by dismissing the complaint without granting leave to replead, denying her
postjudgment motion, and exercising supplemental jurisdiction to dismiss her state law claims
with prejudice. That opinion sets forth additional background facts as well as the procedural
history of this case.
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motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id.
We address first Williams’s challenge to the district court’s dismissal of her claims
brought under Section 1 of the Sherman Act, which proscribes in pertinent part “[e]very contract,
combination . . . , or conspiracy, in restraint of trade or commerce among the several States.” 15
U.S.C. § 1. Williams asserts that Citigroup entered into conspiracies with other banks, ASF
bond underwriters, rating agencies, airlines, municipalities, and other entities to boycott
Williams’s structure. After review of the allegations in Williams’s complaint, we conclude that
Williams has failed to plead “enough factual matter (taken as true) to suggest that an agreement
was made.” Twombly, 550 U.S. at 556. For substantially the reasons stated by the district court
in its thorough and well-reasoned discussion of Williams’s federal antitrust claims, see Williams
v. Citigroup, Inc., No. 08 CV 9208(LAP), 2009 WL 3682536, at *2-6 (S.D.N.Y. Nov. 2, 2009),
we agree that the complaint failed to place its allegations of parallel conduct “in a context that
raises a suggestion of a preceding agreement, not merely parallel conduct that could just as well
be independent action,” and does not otherwise provide “plausible grounds to infer an
agreement.” Twombly, 550 U.S. at 556-57.
Nor do we detect any error in the district court’s dismissal of Williams’s claims under
Section 2 of the Sherman Act. To state a claim for monopolization under this section, a plaintiff
must allege that the defendant both possessed monopoly power in the relevant market and
willfully acquired or maintained that power through anticompetitive conduct. See Verizon
Commc’ns Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 407 (2004). We have
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held that where, as here, the alleged monopolization is based on a monopolist’s refusal to deal,
the plaintiff must allege that the defendant terminated a prior, voluntary course of dealing. In re
Elevator Antitrust Litig., 502 F.3d 47, 52 (2d Cir. 2007) (per curiam). On appeal, Williams
argues that her complaint sufficiently pleaded this element based on her allegations that a
Citigroup executive, after hearing Williams’s pitch, exclaimed, “We are going to mint money on
this idea! Thank you!”, App. 61, and that after information about Williams’s structure became
known to managers responsible for ASF bond underwriting, Citigroup refused to deal with her
and prevented its employees from promoting the structure, id. at 64. Because these allegations
are patently insufficient to plead a prior, voluntary course of dealing, cf. Trinko, 540 U.S. at 408-
10, the district court properly dismissed these claims.2
For the foregoing reasons, we AFFIRM the judgment insofar as it dismissed Williams’s
federal claims. For the reasons stated in our accompanying opinion, we VACATE both the
order denying Williams’s postjudgment motion for leave to replead and so much of the judgment
as retained supplemental jurisdiction over and dismissed Williams’s state law claims. We
REMAND the case for further proceedings consistent with the opinion. Any further appeal will
be referred to this panel, and the party taking appeal shall advise the Clerk of Court of this
direction.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
2
We do not reach the other aspects of the district court’s dismissal of the Section 2 claim,
including Williams’s contentions in a footnote of her brief regarding the monopolizing effect of
certain alleged features of ASF bond issuances, as Williams has failed to preserve these issues
for appellate review. See JP Morgan Chase Bank v. Altos Hornos de Mexico, S.A. de C.V., 412
F.3d 418, 428 (2d Cir. 2005); United States v. Restrepo, 986 F.2d 1462, 1463 (2d Cir. 1993).
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