     11-0897-cv
     Brown v. Quiniou


                          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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
  New York, on the 9th day of March, two thousand twelve.

  PRESENT:
              PIERRE N. LEVAL,
              ROBERT D. SACK,
              PETER W. HALL,
                    Circuit Judges.
  _________________________________________________

  Agatha Brown,

                   Plaintiff - Counter-Defendant - Appellant,

                   v.                                             11-0897-cv

  Michel Quiniou, Agatha Diffusion, S.R.L.,

                   Defendants - Appellees,

  Sixteen, Inc.,

                   Defendant - Counter-Claimant - Appellee,

  Fross Zelnick Lehrman & Zissu, P.C.,

              Defendant.
  _________________________________________________
FOR APPELLANT:                  Agatha Brown, pro se, Farmers Branch, TX.

FOR APPELLEES:                  David B. Sunshine and Amy F. Divino, Cozen O’Connor,
                                New York, NY.

        Appeal from a judgment of the United States District Court for the Southern District of

New York (Batts, J.).

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED and Appellees’ motion to

strike is DENIED.

        Appellant Agatha Brown, pro se, appeals from the district court’s denial of leave to

amend, and grant of summary judgment in favor of Sixteen, Inc. (“Sixteen”). The district court

ruled that Brown’s trademark infringement action was barred by the defense of laches. We

assume the parties’ familiarity with the underlying facts, procedural history of the case, and

issues on appeal.

        Although we have not yet settled on the appropriate standard to review a grant of

summary judgment based on the defense of laches, compare Hermès Int’l v. Lederer de Paris

Fifth Ave., Inc., 219 F.3d 104, 107 (2d Cir. 2000) (applying de novo review), with

Eppendorf–Netheler–Hinz GMBH v. Nat’l Sci. Supply Co., 14 F. App’x 102, 105 (2d Cir. 2001)

(summary order) (applying abuse of discretion review (citing Conopco, Inc. v. Campbell Soup

Co., 95 F.3d 187, 193 (2d Cir. 1996))), the Supreme Court has instructed that “[w]hether laches

bars an action in a given case . . . ‘is a question primarily addressed to the discretion of the trial

court.’” Burnett v. N.Y. Cent. R.R. Co., 380 U.S. 424, 435 (1965) (quoting Gardner v. Panama

R.R. Co., 342 U.S. 29, 30 (1951)). It is unnecessary to decide whether prior case law in this

Circuit applying the de novo standard of review to a district court’s laches ruling is good law, as

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the precise standard is immaterial in this case. Under either a de novo review or a review for

abuse of discretion, Brown’s action against Sixteen was barred by the defense of laches for the

reasons articulated by the district court in its well-reasoned decision.1 See Brown v. Sixteen,

Inc., 02-cv-4630, 2009 WL 1159161 (S.D.N.Y. Apr. 28, 2009).

       Additionally, “[w]e review the denial of leave to amend for abuse of discretion.” Green

v. Mattingly, 585 F.3d 97, 104 (2d Cir. 2009) (citation and internal quotation marks omitted).

In seeking to re-add two defendants to this action, as well as to expand upon the allegations in

her original complaint and add new claims, Brown waited three years from the dismissal of her

claims against those defendants (based on insufficient service of process) and four years from

the time she filed her complaint. The district court thus acted well within its discretion in ruling

that amendment at such a late stage of the litigation would have been improper where she gave

no reasonable explanation for the delay. See Jin v. Metro. Life Ins. Co., 310 F.3d 84, 101 (2d

Cir. 2002) (“Leave to amend should be freely granted, but the district court has the discretion to

deny leave if there is a good reason for it, such as futility, bad faith, undue delay, or undue

prejudice to the opposing party.”).

       We have given careful consideration to each of Brown’s arguments on appeal, and find

them to be without merit. For the foregoing reasons, the judgment of the district court is hereby

AFFIRMED and Appellees’ motion to strike is DENIED.

                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe, Clerk




           1
            We decline to consider the arguments and evidence that Brown presents for the first
   time on appeal, as well as the factual assertions she makes without any reference to the record.
   See Fed. R. App. P. 10(a), 28(a)(9)(A); Katir v. Columbia Univ., 15 F.3d 23, 25 (2d Cir. 1994)
   (per curiam); Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1077 (2d Cir. 1993).

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