         10-2239-cv
         Associated Community Bancorp v. The Travelers Companies

                                 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 11th day of May, two thousand eleven.
 5
 6       PRESENT: RICHARD C. WESLEY,
 7                GERARD E. LYNCH,
 8                DENNY CHIN,
 9                         Circuit Judges.
10
11
12
13       ASSOCIATED COMMUNITY BANCORP, INC., CONNECTICUT COMMUNITY
14       BANK N.A., WESTPORT NATIONAL BANK, DENNIS D. CLARK,
15
16                                     Plaintiffs-Appellants,
17
18                      -v.-                                                10-2239-cv
19
20       THE TRAVELERS COMPANIES, INC., ST. PAUL MERCURY INS. CO.,
21
22                                     Defendants-Appellees.
23
24
25
26       FOR APPELLANT:                MITCHELL J. AUSLANDER (Todd G. Cosenza,
27                                     Alison R. Levine, on the brief), Willkie
28                                     Farr & Gallagher LLP, New York, NY.
29
30       FOR APPELLEE:                 G. ERIC BRUNSTAD, JR. (Collin O’Connor
31                                     Udell, Matthew J. Delude, Dechert LLP;
32                                     Thomas J. Judge, Thompson, Loss & Judge,
33                                     LLP, on the brief), Dechert LLP,
34                                     Hartford, CT.
35
1         Appeal from the United States District Court for the
2    District of Connecticut (Hall, J.).
3
4        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

5    AND DECREED that the judgment of the district court be

6    AFFIRMED.

7        Plaintiffs-Appellants Associated Community Bancorp,

8    Inc., Connecticut Community Bank N.A., Westport National

9    Bank, and Dennis Clark appeal from an April 7, 2010 judgment

10   dismissing the complaint and a May 28, 2011 order denying

11   their motion to reopen the judgment and file a third amended

12   complaint of the United States District Court for the

13   District of Connecticut (Hall, J.).     We assume the parties’

14   familiarity with the underlying facts and the procedural

15   history of the case.

16       “We review de novo the grant of a motion to dismiss for

17   failure to state a claim upon which relief can be granted

18   under Federal Rule of Civil Procedure 12(b)(6).”     Harris v.

19   Mills, 572 F.3d 66, 71 (2d Cir. 2009).    “We consider the

20   legal sufficiency of the complaint, taking its factual

21   allegations to be true and drawing all reasonable inferences

22   in the plaintiff’s favor.”    Id.   We likewise review “de novo

23   questions as to the ambiguity and meaning of the language of

24   [an insurance] contract.”    State Farm Fire & Cas. Ins. Co.

                                    2
1    v. Sayles, 289 F.3d 181, 185-86 (2d Cir. 2002); see also Bd.

2    of Educ. v. St. Paul Fire & Marine Ins. Co., 801 A.2d 752,

3    754 (Conn. 2002) (“[C]onstruction of a contract of insurance

4    presents a question of law for the court which this court

5    reviews de novo.”) (alteration in the original).

6        Having conducted an independent and de novo review of

7    the record in light of these principles, we affirm the

8    district court’s judgment for substantially the same reasons

9    stated by the district court in its thorough and

10   well-reasoned decision.

11       Appellants make one argument that was not considered

12   below, undoubtedly because it was presented to the district

13   court only briefly at oral argument, and not presented again

14   in either Appellants’ motion to reopen or in their efforts

15   to amend the complaint.   They argue that the underlying

16   claims against them fall within a carveback to the policy’s

17   insolvency exclusion because they allege covered acts

18   “solely in connection with [their] investment on behalf of a

19   customer in the stock of [an investment company or similar

20   organization].”   Assuming arguendo that Appellants raised

21   this issue below, it is without merit.   The carveback

22   relates to investments in an investment company’s “stock” –


                                   3
1    that is, in its equity.   While some of the underlying

2    complaints refer to “shares,” all of them make clear that

3    the proposed Madoff investments involved creating an

4    investment account with Madoff, not making an equity

5    investment in the stock of an investment company or similar

6    organization.

7        We have considered Appellants’ remaining arguments and

8    find them to be without merit.    For the foregoing reasons,

9    the judgment of the district court is hereby AFFIRMED.

10
11                               FOR THE COURT:
12                               Catherine O’Hagan Wolfe, Clerk
13
14




                                   4
