         10-2917-cv(L)
         Malone v. Bayerische Hypo-Und Vereinsbank

                                 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 24th day of June, two thousand eleven.
 5
 6       PRESENT: CHESTER J. STRAUB,
 7                REENA RAGGI,
 8                RICHARD C. WESLEY,
 9                         Circuit Judges.
10
11
12       MICHAEL MALONE and BARBARA MALONE, Husband and Wife,
13
14                                     Plaintiffs-Appellants,
15
16                      -v.-                                                10-2917-cv (Lead)
17                                                                          10-2920-cv (Con)
18
19       BAYERISCHE HYPO-UND VEREINSBANK, AG, NEW YORK BRANCH,
20       BAYERISCHE HYPO-UND VEREINSBANK US FINANCE, f/k/a BAYERISCHE
21       HYPO-UND VEREINSBANK STRUCTURED FINANCE, INC., KATTEN MUCHIN
22       ROSENMAN, LLP, f/k/a ROSENMAN COLIN, LLP, ENTERPRISE
23       FINANCIAL SERVICES CORPORATION, A MISSOURI CORPORATION,
24       f/k/a ENTERPRISE BANK,
25
26                                     Defendants-Appellees,
27
28       DOES, 1 THROUGH 50,
29
30                                     Defendants.*

                *
                The Clerk of the Court is directed to amend the official caption in
         accordance with this order.
 1   FOR APPELLANTS:            BRIAN G. ISAACSON, Isaacson &
 2                              Wilson, P.S., Seattle, WA.
 3
 4   FOR APPELLEE HVB:          MARK W. LERNER (Trevor J. Welch,
 5                              on the brief), Kasowitz, Benson,
 6                              Torres & Friedman, LLP, New
 7                              York, NY.
 8
 9   FOR APPELLEE KATTEN:       TED PORETZ, Ellenoff Grossman &
10                              Schole, LLP, New York, NY.
11
12   FOR APPELLEE ENTERPRISE:   KENNETH J. KELLY (Lori A.
13                              Jordan, on the brief), Epstein
14                              Becker & Green, P.C., New York,
15                              NY.
16
17        Appeal from the United States District Court for the
18   Southern District of New York (Gardephe, J.).
19
20       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

21   AND DECREED that the judgment of the district court be

22   AFFIRMED.

23       Appellants Michael and Barbara Malone (the “Malones”)

24   appeal from a judgment of the United States District Court

25   for the Southern District of New York (Gardephe, J.), which

26   dismissed as time-barred their claims against Appellees

27   Bayerische Hypo-Und Vereinsbank (collectively with related

28   entity, “HVB”), Katten Muchin Rosenman, LLP (“Katten”), and

29   Enterprise Financial Services Corporation (“Enterprise”).

30   We assume the parties’ familiarity with the underlying

31   facts, the procedural history, and the issues presented for

32   review.

                                  2
1        The Malones’ claims against HVB and Enterprise are not

2    tolled under 28 U.S.C. § 1367(d).     That provision applies

3    only to state claims dismissed from federal court and

4    subsequently re-filed in state court.     Seabrook v. Jacobson,

5    153 F.3d 70, 72 (2d Cir. 1998).     This interpretation of the

6    provision is in keeping with the nature of the broader

7    statutory section, which addresses supplemental jurisdiction

8    over state claims.     28 U.S.C. § 1367; see In re Ames Dep’t

9    Stores, Inc., 582 F.3d 422, 427 (2d Cir. 2009) (noting that

10   in interpreting statutory language, we must consider “the

11   specific context in which that language is used, and the

12   broader context of the statute as a whole”).

13       As for the claims against Katten, Judge Gardephe

14   correctly found that the Malones were on inquiry notice

15   concerning Katten’s role in the underlying alleged fraud

16   since at least 2003.    Accordingly, those claims are also

17   time-barred.

18       On these and all remaining issues, we agree with the

19   district court’s thorough and well-reasoned opinion.     For

20   the foregoing reasons, the judgment of the district court is

21   hereby AFFIRMED.

22                                 FOR THE COURT:
23                                 Catherine O’Hagan Wolfe, Clerk




                                     3
