     10-3667-cv
     Poplar Lane Farm LLC v. The Fathers of Our Lady of Mercy



                            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 United States Courthouse, 500 Pearl Street, in
     the City of New York, on the 30th day of November, two thousand eleven.

     PRESENT:
                JON O. NEWMAN,
                GERARD E. LYNCH,
                      Circuit Judges,
                JANE A. RESTANI,
                      Judge.*
     _________________________________________

     Poplar Lane Farm LLC, E. Robert Fussell,

                       Plaintiffs-Appellants,

                       v.                                                     10-3667-cv

     The Fathers of Our Lady of Mercy,

                Defendant-Appellee.
     _________________________________________

     FOR APPELLANTS:                              E. Robert Fussell, Esq., pro se and for Poplar
                                                  Lane Farm LLC, Le Roy, NY.




              *
              Judge Jane A. Restani, of the United States Court of International Trade, sitting by
     designation.
FOR APPELLEES:              Kenneth Alan Manning and Timothy William Hoover,
                            Phillips Lytle LLP, Buffalo, NY.

       Appeal from a judgment of the United States District Court for the Western

District of New York (Skretny, C.J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED.

       Plaintiffs-Appellants Poplar Lane Farm LLC and E. Robert Fussell

(“Appellants”) appeal from the district court’s dismissal of their complaint pursuant

to Rule 12(b)(6) of the Federal Rules of Civil Procedure, as well as the denial of

their recusal motion and other relief. See Poplar Lane Farm LLC v. The Fathers of

Our Lady of Mercy, No. 08-cv-509, 2010 WL 3303852 (W.D.N.Y. Aug. 19, 2010).

We assume the parties’ familiarity with the underlying facts, procedural history, and

issues on appeal.

       “We review de novo a district court’s dismissal of a complaint pursuant to

Rule 12(b)(6), construing the complaint liberally, accepting all factual allegations in

the complaint as true, and drawing all reasonable inferences in the plaintiff’s favor.”

Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). In determining

the sufficiency of a complaint for Rule 12(b)(6) purposes, a court may consider, in

addition to the allegations contained in the complaint, “any documents that are either

incorporated into the complaint by reference or attached to the complaint as

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exhibits.” Blue Tree Hotels Inv. (Can.), Ltd. v. Starwood Hotels & Resorts

Worldwide, Inc., 369 F.3d 212, 217 (2d Cir. 2004).

       Appellants abandoned any breach of contract claim in the district court and

have failed to raise adequately any such claim for our review. “[I]ssues adverted to

in a perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived.” Tolbert v. Queens Coll., 242 F.3d 58, 75 (2d

Cir. 2001) (internal quotation marks omitted); see also Norton v. Sam’s Club, 145

F.3d 114, 117 (2d Cir. 1998) (“Issues not sufficiently argued in the briefs are

considered waived and normally will not be addressed on appeal.”). Because

Fussell is an attorney, we decline to afford Appellants any of the “special

consideration” that we “customarily grant to pro se parties.” Holtz v. Rockefeller &

Co., Inc., 258 F.3d 62, 82 n.4 (2d Cir. 2001) (internal quotation marks omitted). In

any event, the complaint plainly fails to state a claim for breach of contract.

       Appellants contend, for the first time on appeal, that their complaint stated

claims in implied and quasi contract, quantum meruit, and negligent

misrepresentation. In addition, they raised an unjust enrichment claim for the first

time in a summary judgment motion, not in the complaint. Generally, we will not

consider unpreserved arguments or those raised for the first time on appeal, see

Allianz Ins. Co. v. Lerner, 416 F.3d 109, 114 (2d Cir. 2005), and we see no reason to

depart from that principle here. In any event, even were we to consider Appellants’

various unpreserved arguments, we would find them meritless.

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       Appellants’ claims necessarily are precluded by the 1984 gas lease. Under

New York law, when a valid agreement governs the subject matter of a dispute

between parties, claims arising from that dispute are contractual; attempts to

repackage them as sounding in fraud, conversion, and other torts, as well as unjust

enrichment, implied and quasi contract, and quantum meruit, are generally

precluded, unless based on a duty independent of the contract.1 See Diesel Props

S.R.L. v. Greystone Bus. Credit II LLC, 631 F.3d 42, 54 (2d Cir. 2011) (unjust

enrichment); Mid-Hudson Catskill Rural Migrant Ministry, Inc. v. Fine Host Corp.,

418 F.3d 168, 175 (2d Cir. 2005) (quantum meruit); Clark-Fitzpatrick, Inc. v. Long

Island R.R., 70 N.Y.2d 382, 388-89, 516 N.E.2d 190, 193-94 (1987) (quasi-contract

and tort); Sergeants Benev. Ass’n Annuity Fund v. Renck, 796 N.Y.S.2d 77, 84 n.3,

19 A.D.3d 107, 116 n.3 (1st Dep’t 2005) (negligent misrepresentation); Baker v.

Norman, 643 N.Y.S.2d 30, 33, 226 A.D.2d 301, 304 (1st Dep’t 1996) (fraud).

       Although that principle does not apply “where there is a bona fide dispute as

to the existence of a contract or where the contract does not cover the dispute in

issue,” Am. Tel. & Util. Consultants v. Beth Israel Med. Ctr., 763 N.Y.S.2d 466,

466, 307 A.D.2d 834, 835 (1st Dep’t 2003), neither of those factors is present here.

Appellants’ conclusory allegation in their complaint that the lease assignment was



       1
        Nor may Appellants assert a claim in equity, as their complaint seeks damages,
and they have failed to show “that they have no adequate remedy at law.” Brown v.
Sandimo Materials, 250 F.3d 120, 127 (2d Cir. 2001).

                                           4
somehow invalid does not by itself create a bona fide dispute. See Ashcroft v. Iqbal,

129 S. Ct. 1937, 1949 (2009) (“[T]he tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to legal conclusions.”). Contrary

to Appellants’ contention, the district court correctly found that the lease placed no

preconditions on the lessor’s approval of the lessee’s assignment. Thus, the

assignment did not invalidate the lease.

       Finally, Appellants’ claim that any district or circuit judge who is Roman

Catholic must recuse himself from the case is totally without merit. Cf. MacDraw,

Inc. v. CIT Grp. Equip. Fin., Inc., 138 F.3d 33, 37 (2d Cir. 1998) (“A suggestion that

a judge cannot administer the law fairly because of the judge’s racial and ethnic

heritage is extremely serious and should not be made without a factual foundation

going well beyond the judge’s membership in a particular racial or ethnic group.”).

       We have reviewed Appellants’ remaining arguments and find them to be

without merit. For the foregoing reasons, the judgment of the district court is hereby

AFFIRMED.

                                           FOR THE COURT:
                                           Catherine O’Hagan Wolfe, Clerk




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