     10-967-cv
     Chapman v. Office of Children & Family Servs.



                          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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 3rd day of June, two thousand eleven.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                DEBRA ANN LIVINGSTON,
 9                              Circuit Judge,
10                JED S. RAKOFF,*
11                              District Judge.
12
13       - - - - - - - - - - - - - - - - - - - -X
14      BRUCE CHAPMAN,
15
16                   Plaintiff-Appellant,
17
18                   -v.-                                               10-0967-cv
19
20      OFFICE OF CHILDREN AND FAMILY SERVICES
21      OF THE STATE OF NEW YORK, CORNELL
22      UNIVERSITY, NEW YORK STATE COLLEGE OF


                *
              The Honorable Jed S. Rakoff, of the United States
         District Court for the Southern District of New York,
         sitting by designation.
                                                 1
 1   HUMAN ECOLOGY AT CORNELL UNIVERSITY,
 2   MICHAEL A. NUNNO, GWEN AMES, DENISE J.
 3   CLARKE, PETER D. MIRAGLIA, VIRGINIA
 4   SIERRA, THE DEPARTMENT OF FAMILY
 5   ASSISTANCE OF THE STATE OF NEW YORK,
 6
 7             Defendants-Appellees,
 8
 9   NEW YORK STATE DIVISION FOR YOUTH, NEW
10   YORK STATE DEPARTMENT OF SOCIAL
11   SERVICES, JOHN JOHNSON, MARGARET DAVIS,
12   PATSY MURRAY, JEFFREY LEHMAN, HUNTER
13   RAWLINGS III, FAMILY LIFE DEVELOPMENT
14   CENTER, RESIDENTIAL CHILD CARE PROJECT,
15   THERAPEUTIC CRISIS INTERVENTION, MARTHA
16   HOLDEN, HILLSIDE CHILDREN’S CENTER,
17   DENNIS RICHARDSON, DOUGLAS BIDLEMAN,
18   SEALED DEFENDANTS 1 THROUGH 99, JANE
19   DOE 1 THROUGH 5, JOHN DOE 1 THROUGH 5,
20
21            Defendants.**
22   - - - - - - - - - - - - - - - - - - - -X
23
24   FOR APPELLANT:     Hilary Adler
25                      (Alan Kachalsky, on brief)
26                      Law Office of Hilary Adler
27                      Gardiner, NY
28
29   FOR APPELLEES:     Nelson E. Roth
30                      (Valerie Cross Dorn, on brief)
31                      Cornell University
32                      Office of University Counsel
33                      Ithaca, NY
34
35                      Eric T. Schneiderman
36                      (Victor Paladino, Barbara D. Underwood,
37                      Andrea Oser, on brief)
38                      New York State Office of the Attorney
39                      General
40                      Albany, NY

          **
            The Clerk of Court is respectfully instructed to
     amend the official case caption as shown above.
                                   2
 1        Appeal from a judgment by the United States District
 2   Court for the Northern District of New York (Hurd, J.)
 3   granting Defendants’ motion to dismiss and dismissing
 4   Appellant’s entire First Amended Complaint with prejudice.
 5
 6        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 7   AND DECREED that the district court’s judgment is AFFIRMED.
 8
 9        Appellant appeals from an order by the district court
10   dismissing his complaint for failure to state a claim. We
11   assume the parties’ familiarity with the underlying facts,
12   the procedural history, and the issues presented for review.
13
14        We review de novo a district court’s dismissal of a
15   complaint under Federal Rule of Procedure 12(b)(6). Kiobel
16   v. Royal Dutch Petroleum Co., 621 F.3d 111, 124 (2d Cir.
17   2010). We review for abuse of discretion a district court’s
18   denial of a plaintiff’s request for leave to amend a
19   deficient complaint. Green v. Mattingly, 585 F.3d 97, 104
20   (2d Cir. 2009).
21
22        To survive a motion to dismiss, a complaint must be
23   “plausible on its face,” such that the court can “draw the
24   reasonable inference that the defendant is liable for the
25   misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937,
26   1949 (2009). Moreover, the False Claims Act is an anti-
27   fraud statute, so qui tam actions under the Act must satisfy
28   the heightened pleading requirements of Rule 9(b). Gold v.
29   Morrison-Knudsen Co., 68 F.3d 1475, 1476-76 (2d Cir. 1995)
30   (per curiam). The district court concluded that Appellant’s
31   complaint lacked the plausibility and particularity needed
32   to state a claim under Iqbal and Rule 9(b). We agree.
33   Appellant’s complaint fails to allege any basis for
34   concluding that Defendants engaged in any fraud. Indeed,
35   while Defendants’ eligibility for federal funding may be
36   debatable on the face of their submissions to the federal
37   government, there is no plausible allegation of scienter
38   with respect to those submissions. Since scienter is a
39   necessary element of an FCA claim, we affirm the district
40   court’s order dismissing Appellant’s entire complaint.
41
42        Further, the district court was well within its
43   discretion to deny Appellant leave to amend his complaint.
44   Where it is reasonable to conclude that amendments would be
45   futile, a district court has discretion to deny leave to

                                  3
 1   amend. See In re Tamoxifen Citrate Antitrust Litig., 466
 2   F.3d 187, 220-21 (2d Cir. 2006). The present record
 3   indicates that under the theories presented in his
 4   complaint, Appellant will never be able to plausibly allege
 5   that Defendants committed fraud; thus, the district court
 6   was within its discretion to deny leave to amend based on
 7   futility.
 8
 9        Moreover, Appellant never formally moved the district
10   court for leave to amend, so the district court was also
11   within its discretion to deny such leave without analysis or
12   comment. Id.
13
14        For the foregoing reasons, the judgment of the district
15   court is hereby AFFIRMED.
16
17
18                              FOR THE COURT:
19                              CATHERINE O’HAGAN WOLFE, CLERK
20




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