The Merit Group, LLC v. Sint Maarten Int'l Telecomm. Servs., NV ( 2010 )

09-4418-cv
The Merit Group, LLC v. Sint Maarten Int’l Telecomm. Servs., NV
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to summary orders
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 United States Courthouse, 500 Pearl Street, in the City of New York,
on the twenty-sixth day of May, two thousand and ten.
PRESENT:
JOSÉ A. CABRANES,
ROBERT A. KATZMANN ,
DENNY CHIN ,
Circuit Judges.
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THE MERIT GROUP , LLC,
Plaintiff-Appellant,
-v.- No. 09-4418-cv
SINT MAARTEN INTERNATIONAL TELECOMMUNICATIONS
SERVICES, NV, and THE TELEM GROUP , NV,
Defendants-Appellees.
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1
2 FOR PLAINTIFF-APPELLANT: LEONARD N. FLAMM , New York,
3 NY.
4
5 FOR DEFENDANTS-APPELLEES: CHRISTOPHER J. KLATELL (David
6 B. Goldstein, of counsel)
7 Rabinowitz, Boudin, Standard,
8 Krinsky & Lieberman, P.C., New
9 York, NY.
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1
1
2 Appeal from a September 26, 2009 judgment of the United States District Court for the
3 Southern District of New York (George B. Daniels, Judge).
4
5 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
6 DECREED that the judgment of the District Court be AFFIRMED.
7
8 Plaintiff-appellant The Merit Group, LLC (“plaintiff”) appeals from the District Court’s order
9 dismissing its complaint and denying its cross-motion for leave to amend in plaintiff’s action to recover
10 fees pursuant to a financial services agreement entered into with defendants-appellees
11 Telecommunications Services, NV, and The Telem Group, NV (jointly “defendants”). Plaintiff claims
12 on appeal that the District Court erred in (1) dismissing plaintiff’s claim that the implied covenant of
13 good faith and fair dealing required defendants to pay plaintiff a fee, and (2) denying plaintiff leave to
14 amend its complaint. We were informed at oral argument that plaintiff is not asserting the breach of
15 contract claim on appeal, so we will not address it here. We assume the parties’ familiarity with the
16 remaining facts, procedural history, and issues on appeal.
17
18 We review de novo the District Court’s decision dismissing a complaint pursuant to Rule 12(b)(6),
19 see Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). “To survive dismissal, [a] plaintiff
20 must provide the grounds upon which his claim rests through factual allegations sufficient ‘to raise a
21 right to relief above the speculative level.’” ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d
22 Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). We review the District Court’s
23 denial of leave to amend a complaint for “abuse of discretion.” See, e.g., Jin v. Metro. Life Ins. Co., 310
24 F.3d 84, 101 (2d Cir. 2002). “A district court has abused its discretion if it based its ruling on an
25 erroneous view of the law or on a clearly erroneous assessment of the evidence, or rendered a decision
26 that cannot be located within the range of permissible decisions.” Sims v. Blot, 534 F.3d 117, 132 (2d Cir.
27 2008) (internal quotation marks, citations, and alterations omitted).
28
29 After conducting an independent review of the record and case law, we conclude, substantially
30 for the reasons stated in the well-reasoned decision and order of the District Court, The Merit Group,
31 LLC v. Sint Maarten Int’l Telecomm. Servs., NV, No. 08-cv-3496, 2009 WL 3053739 (S.D.N.Y. Sept. 24,
32 2009), that the District Court did not improperly dismiss plaintiff’s complaint and did not err in denying
33 plaintiff leave to amend on its cross-motion.
34
35 CONCLUSION
36
37 We have considered each of plaintiff’s arguments on appeal and find them to be without merit.
38 For the reasons stated above, we AFFIRM the judgment of the District Court.
39
40 FOR THE COURT,
41 Catherine O’Hagan Wolfe, Clerk of Court
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