     14-3490
     Lexon Insurance Company v. Wells Fargo Bank

                          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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 16th day of October, two thousand fifteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                RAYMOND J. LOHIER, JR.,
 8                              Circuit Judges.
 9                GEOFFREY W. CRAWFORD,*
10                              District Judge.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       LEXON INSURANCE COMPANY,
14                Plaintiff-Appellant,
15
16                    -v.-                                               14-3490
17
18       WELLS FARGO BANK,
19                Defendant-Appellee.
20       - - - - - - - - - - - - - - - - - - - -X
21




                *
               The Honorable Geoffrey W. Crawford, United States
         District Judge for the District of Vermont, sitting by
         designation.
                                                  1
 1   FOR APPELLANT:             ANDREW S. KENT, CHIESA SHAHINIAN
 2                              & GIANTOMASI PC, West Orange,
 3                              New Jersey.
 4
 5   FOR APPELLEE:              RICHARD G. HADDAD, OTTERBOURG
 6                              P.C., New York, New York.
 7
 8        Appeal from a judgment of the United States District
 9   Court for the Southern District of New York (Hellerstein,
10   J.).
11
12        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
13   AND DECREED that the judgment of the district court be
14   AFFIRMED.
15
16        Lexon Insurance Company (“Lexon”) appeals from the
17   judgment of the United States District Court for the
18   Southern District of New York (Hellerstein, J.), granting
19   the motion of Wells Fargo Bank for judgment on the
20   pleadings. We assume the parties’ familiarity with the
21   underlying facts, the procedural history, and the issues
22   presented for review.
23
24        1. As to the dismissal of Lexon’s claim of unjust
25   enrichment, the district court correctly applied New York
26   law, holding that the relationship between Lexon and Wells
27   Fargo did not support an unjust enrichment claim. See
28   Grynberg v. ENI S.P.A., 503 F. App’x 42, 44 (2d Cir. 2012)
29   (“Although privity is not required for an unjust enrichment
30   claim, a claim will not be supported if the connection
31   between the parties is too attenuated.”) (citing Mandarin
32   Trading Ltd. v. Wildenstein, 944 N.E.2d 1104, 1110-11 (N.Y.
33   2011)).
34
35       2. Lexon’s claim of equitable subrogation is not
36   cognizable because the government had no rights against
37   Wells Fargo in the first instance, given that Wells Fargo
38   was not an “importer” under 19 C.F.R. § 141.1. The cases
39   Lexon cites to support its claim are inapposite. In Corex
40   Corp. v. United States, 524 F.2d 1017, 1019-20 (9th Cir.
41   1975), the Ninth Circuit held that the “determination of who
42   is the importer under the pertinent statute does not turn on
43   technical rules such as the law of sales, but rather on the
44   realities as to who arranges as principal and not as agent
45   for the articles to be imported into the United States.”
46   Id. (internal quotation marks omitted). Lexon’s complaint
47   is devoid of any allegations that ANG operated as Wells

                                  2
 1   Fargo’s agent. See N.Y. Marine & General Ins. Co. v.
 2   Tradeline (L.L.C.), 266 F.3d 112, 122 (2d Cir. 2001) (“New
 3   York common law provides that an agency relationship results
 4   from a manifestation of consent by one person to another
 5   that the other shall act on his behalf and subject to his
 6   control, and the consent by the other to act.” (internal
 7   quotation marks omitted)).
 8
 9        3. Lexon challenges the grant of judgment on the
10   pleadings, on the ground that Wells Fargo cherry-picked
11   documents that it annexed to its answer. The district court
12   properly considered these documents in adjudicating Wells
13   Fargo’s Rule 12(c) motion. See L-7 Designs, Inc. v. Old
14   Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011) (“On a 12(c)
15   motion, the court considers the complaint, the answer, [and]
16   any written documents attached to them . . . .” (internal
17   quotation marks omitted)). Lexon does not dispute the
18   authenticity of any such documents. Moreover, the district
19   court limited its holding to consideration of Lexon’s
20   complaint and any accompanying documents. J.A. 338 (“In
21   sum, the facts alleged in the Amended Complaint and the
22   contracts attached to the complaint indicate that ANG was at
23   all times the importer of goods and do not establish that
24   Wells Fargo did anything other than provide ANG with
25   financing secured by the goods owned by ANG.”).
26
27        4. Lexon argues that it should have been granted leave
28   to amend its complaint. But given that Lexon has not stated
29   a claim under either of its asserted causes of action,
30   Lexon’s motion was properly denied on the basis of futility.
31   See State Teachers Retirement Bd. v. Fluor Corp., 654 F.2d
32   843, 856 (2d Cir. 1981) (“Reasons for a proper denial of
33   leave to amend include . . . futility of the amendment
34   . . . . .”).
35
36        For the foregoing reasons, and finding no merit in
37   Lexon’s other arguments, we hereby AFFIRM the judgment of
38   the district court.
39
40                              FOR THE COURT:
41                              CATHERINE O’HAGAN WOLFE, CLERK
42




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