09-4701-cv
Asset Management Associates of New York v. Emerson Telecommunication Products LLC

                                   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 6th day of October, two thousand and ten.

PRESENT:


          WILFRED FEINBERG ,
          JOSEPH M. MC LAUGHLIN ,
          JOSÉ A. CABRANES,
                               Circuit Judges.
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ASSET MANAGEMENT ASSOCIATES OF NEW YORK , INC .,

                    Plaintiff-Appellant,

                    -v.-                                                                   No. 09-4701-cv

EMERSON TELECOMMUNICATION PRODUCTS LLC,

                    Defendant-Appellee.
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FOR DEFENDANT-APPELLEE:                                       LEONARD F. LESSER (Andrew W. Dean and Anika L.
                                                              Rappleye, on the brief) Simon Lesser PC, New York,
                                                              NY.

FOR PLAINTIFF-APPELLANT:                                      THOMAS P. PUCCIO , New York, NY and James V.
                                                              Masella, III, Blank Rome LLP, New York, NY.



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        Appeal from a September 30, 2009, order of the United States District Court for the Eastern
District of New York (Thomas C. Platt, Judge).

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the District Court be VACATED and the cause REMANDED
for further proceedings consistent with this order.

         This case arises from a dispute over the terms of a contract between plaintiff Asset
Management Associates of New York, Inc. (“AMA”) and defendant Emerson Telecommunications
Products LLC (“ETP”). AMA challenges an order of the District Court denying its motion for leave
to amend. The order—in its entirety—stated, “Asset Management’s motion for leave to file a first
amended complaint is hereby denied. So ordered.” Asset Mgmt. Assocs. of N.Y., Inc. v. Emerson
Telecomm. Prods. LLC, No. 08-CV-2506 (E.D.N.Y. Sept. 30, 2009) (capitalization omitted). We
assume the parties’ familiarity with the underlying facts, procedural history, and issues presented on
appeal.1

         Rule 15 of the Federal Rules of Civil Procedure provides that “[t]he court should freely give
leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2). In the ordinary course, “we are
accustomed to reviewing a district court’s decision whether to grant or deny leave to amend, rather
than making that decision for ourselves in the first instance.” Iqbal v. Ashcroft, 574 F.3d 820, 822 (2d
Cir. 2009). In conducting that review, “we apply a deferential, ‘abuse of discretion’ standard of
review to the district court’s informed discretion.” Id. “A district court has abused its discretion if it
based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the
evidence, or rendered a decision that cannot be located within the range of permissible decisions.”
Sims v. Blot, 534 F.3d 117, 132 (2d Cir. 2008) (citation, alteration, and internal quotation marks
omitted).

        It is well settled, however, that while “[a] district court has discretion to deny leave for good
reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party,” McCarthy
v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007), “[o]utright refusal to grant the leave
without any justifying reason for the denial is an abuse of discretion,” Jin v. Metro. Life Ins. Co., 310
F.3d 84, 101 (2d Cir. 2002) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). As the Supreme Court
has unambiguously instructed, “[i]n the absence of any apparent or declared reason . . . the leave


1
 We exercise jurisdiction over this appeal as a “final decision” of the District Court pursuant to 28
U.S.C. § 1291 because where, as here, “the District Court has ordered the parties to proceed to
arbitration, and dismissed all the claims before it,” appellate review of an otherwise unappealable
interlocutory order is appropriate. Green Tree Fin. Corp. v. Randolph, 531 U.S. 79, 89 (2000).

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sought should, as the rules require, be ‘freely given.’” Foman, 317 U.S. at 182 (quoting Fed. R. Civ. P.
15(a)).

        ETP argues that a February 10, 2010, order of the District Court in a collateral, but related,
case provides an adequate basis on which to affirm the September 30, 2009, order from which AMA
appeals. We disagree. First, the order to which ETP cites refers to the fact that AMA’s motion for
leave to amend was denied without stating a reason for denial. Asset Mgmt. Assocs. of NY, Inc. v.
Emerson Telecomm. Prods. LLC, No. 08-CV-2128 (E.D.N.Y. Feb. 10, 2010). It does no more than the
September 30, 2009, order did to articulate a “justifying reason” upon which appellate review could
proceed. Second, even if the February 10, 2010, order stated an adequate basis for denial—which it
does not—the District Court cannot fulfill its obligations under Foman five months after the original
motion for leave to amend was denied. Accordingly, the February 10, 2010, order did not correct
the defect in the District Court’s September 30, 2009, order.

         The “broad discretion,” Gurary v. Winehouse, 235 F.3d 792, 801 (2d Cir. 2000), afforded to the
District Court with respect to motions for leave to amend simply does not permit it to force us to
guess at what reasons may justify its decision. Because the District Court’s order is barren of any
justification as to why leave to amend might have been denied, we cannot conduct even a deferential
review of that order. Accordingly, we must vacate the judgment of the District Court and remand
the cause to give the District Court an opportunity either (1) to enter a new order justifying its
decision to deny the motion for leave to file an amended complaint; or (2) to grant the motion.

                                              CONCLUSION

    For the reasons stated above, the order of the District Court is VACATED and the cause
REMANDED for further proceedings consistent with this order.



                                               FOR THE COURT,
                                               Catherine O’Hagan Wolfe, Clerk of Court




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