13-0912-cv
Gander Mountain Co. v. Islip U-Slip LLC

                           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
Thurgood Marshall Courthouse, 40 Foley Square, in the City of New York, on the 1st day of
April, two thousand fourteen.

Present:
         ROBERT A. KATZMANN,
                     Chief Judge,
         JOSÉ A. CABRANES,
                     Circuit Judge,
         RICHARD M. BERMAN,
                     District Judge.*
________________________________________________

GANDER MOUNTAIN COMPANY,

           Plaintiff-Appellant,

                   v.                                           No. 13-0912-cv

ISLIP U-SLIP LLC,

         Defendant-Appellee.
________________________________________________

For Plaintiff-Appellant:          DUDLEY W. VON HOLT, Thompson Coburn LLP, St. Louis,
                                  MO (Bruce D. Ryder, Paul T. Sonderegger, Thompson Coburn


       *
          The Honorable Richard M. Berman, of the United States District Court for the Southern
District of New York, sitting by designation.
                                   LLP, St. Louis, MO; Alan J. Pope, Pope & Schrader LLP,
                                   Binghamton, NY, on the brief).

For Defendant-Appellee:            JEANETTE SIMONE, Hinman, Howard & Kattel, LLP,
                                   Binghamton, NY.


      Appeal from the United States District Court for the Northern District of New York
(D’Agostino, J.).

       ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff-Appellant Gander Mountain Company (“Gander”) appeals from a February 11,

2013 judgment entered by the United States District Court for the Northern District of New York

(D’Agostino, J.), which dismissed Gander’s claims for fraud, breach of contract, and related

causes of action against Defendant-Appellee Islip U-Slip LLC (“Islip”). Gander’s claims arise

out of a commercial lease signed in 2004, in which Gander leased a parcel of real property from

nonparty Pathmark Stores, Inc. (“Pathmark”) in order to operate a retail outdoor equipment store.

Islip later purchased the premises from Pathmark in 2010, taking over the lease. The premises

flooded in 2006 and again in 2011. After the second flood, Gander discovered that the premises

had previously flooded perhaps as many as four additional times in the twenty years preceding

the signing of the lease. As relevant here, the district court dismissed Gander’s claims for fraud

on statute of limitations grounds, finding that Gander was on inquiry notice of Pathmark’s

alleged failure to disclose the premise’s flooding history after the first flood in 2006. In the

alternative, the district court found that Pathmark had no duty to disclose the premises’ flooding

history because that information was readily available to Gander. On appeal, Gander argues that

both of these grounds for dismissal are erroneous and that the district court abused its discretion

in denying Gander’s request for leave to amend its complaint.

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        We review a district court’s grant of a motion to dismiss under Rule 12(b)(6) for failure

to state a claim de novo, “accepting all factual claims in the complaint as true, and drawing all

reasonable inferences in the plaintiff’s favor.” Famous Horse Inc. v. 5th Ave. Photo Inc., 624

F.3d 106, 108 (2d Cir. 2010). “To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007)). “We review a district court’s denial of leave to amend for abuse of discretion,

unless the denial was based on an interpretation of law, such as futility, in which case we review

the legal conclusion de novo.” Panther Partners Inc. v. Ikanos Commc’ns, Inc., 681 F.3d 114,

119 (2d Cir. 2012).

        Under New York law, the statute of limitations for fraud is “the greater of six years from

the date the cause of action accrued or two years from the time the plaintiff . . . discovered the

fraud, or could with reasonable diligence have discovered it.” N.Y. CPLR § 213(8). Here, an

independent review of the record and relevant case law reveals that the district court correctly

concluded that Gander was on inquiry notice of the alleged fraud in 2006. Accordingly, for

substantially the reasons stated by the district court in its thorough decision entered on February

11, 2013, we affirm the dismissal of Gander’s fraud claims for failure to comply with the statute

of limitations.

        Furthermore, we conclude that Gander could not have cured this deficiency through an

amended complaint. Amendment therefore would have been futile, and thus the district court did

not err in denying Gander’s request for leave to amend. Having resolved the appeal on these

grounds, we need not address Gander’s argument challenging the alternative basis for the district

court’s decision.

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       We have considered all of Gander’s remaining arguments and find them to be without

merit. Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED.

                                        FOR THE COURT:
                                        CATHERINE O’HAGAN WOLFE, CLERK




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