    13-3274
    DePasquale v. DePasquale



                          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 TO 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
    Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
    3rd day of June, two thousand fourteen.

    PRESENT:
                JON O. NEWMAN,
                JOHN M. WALKER, JR.,
                JOSÉ A. CABRANES,
                      Circuit Judges.
    _____________________________________________

    Vincent DePasquale,


                               Plaintiff-Appellant,

                     v.                                                 13-3274

    Daniel DePasquale, Pension Design Services, Inc.,

                      Defendants-Appellees.
    _____________________________________________

    FOR PLAINTIFF-APPELLANT:                             VINCENT DEPASQUALE, pro se, Rahway, NJ.

    FOR DEFENDANTS-APPELLEES:                            MARK D. LEFKOWITZ, Schwartz &
                                                         Silverstein, LLP, New City, NY, for
                                                         Appellee Daniel DePasquale; Scott A.
                                                         Schechter, Sergio Alves, Kaufman, Borgeest
                                                         & Ryan LLP, Valhalla, NY, for Appellee
                                                         Pension Design Services, Inc.
        Appeal from a judgment and order of the United States District Court for the Eastern
District of New York (Roslynn R. Mauskopf, Judge).


    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment and order are AFFIRMED.


        Plaintiff-Appellant Vincent DePasquale, proceeding pro se, filed suit on May 21, 2012
against his uncle, Daniel DePasquale, a trustee of Debro Manufacturing Corporation’s pension
plan, and against Pension Design Services, Inc. (“PDS”), alleging numerous violations of the
Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1001–1461.1 In a
judgment entered March 1, 2013, the District Court granted defendants’ motion to dismiss the
complaint pursuant to Rule 12(b)(6), holding that the claim was time-barred. In a Memorandum
and Order entered August 5, 2013, the District Court denied plaintiff’s motion for
reconsideration and motion to amend the complaint. We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the issues on appeal.
        We review de novo a district court’s grant of a motion to dismiss, including “legal
conclusions” concerning the court’s “interpretation and application of a statute of limitations.”
See City of Pontiac Gen. Emps.’ Ret. Sys. v. MBIA, Inc., 637 F.3d 169, 173 (2d Cir. 2011). To
survive a Rule 12(b)(6) motion to dismiss, the complaint must include “enough facts to state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although all allegations contained
in the complaint are assumed to be true, this tenet is “inapplicable to legal conclusions.” Iqbal,
556 U.S. at 678. We review denial of motions for reconsideration and for leave to amend for
abuse of discretion. See Johnson v. Univ. of Rochester Med. Ctr., 642 F.3d 121, 125 (2d Cir.
2011) (denial of Rule 60(b) motion for reconsideration); ATSI Commc’ns, Inc. v. Shaar Fund,
Ltd., 493 F.3d 87, 108 (2d Cir. 2007) (denial of leave to amend).
       Upon a review of the record, we agree with the District Court’s conclusions, for
substantially the reasons stated in its thorough and well-reasoned orders. Accordingly, the
judgment and order of the district court are AFFIRMED.



       1
         Vincent DePasquale was represented by counsel in the District Court, and counsel filed
his appellate brief. He terminated counsel before filing his reply brief and presently proceeds
pro se.

                                                2
       We DENY Daniel DePasquale’s request for sanctions on the merits, and also as
improperly raised in his appellate brief rather than in a separately filed motion as required by
Federal Rule of Appellate Procedure 38. See Great Am. Ins. Co. v. M/V Handy Laker, 348 F.3d
352, 354 (2d Cir. 2003) (denying request for Rule 38 sanctions raised in appellee’s brief where
no separately filed motion had been submitted). We generally impose such sanctions only in
cases of blatant frivolity, bad faith, or repetitive frivolous filings. See, e.g., 60 E. 80th St.
Equities, Inc. v. Sapir (In re 60 E. 80th St. Equities, Inc.), 218 F.3d 109, 119-20 (2d Cir. 2000);
Moore v. Time, Inc., 180 F.3d 463, 463-64 (2d Cir. 1999). While Vincent DePasquale’s appeal is
without merit, it does not warrant sanctions under this standard.


                                      FOR THE COURT:
                                      Catherine O’Hagan Wolfe, Clerk




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