     11-3889
     Chechele v. Scheetz


                           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 9th day of March, two thousand twelve.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                DENNY CHIN,
 9                SUSAN L. CARNEY,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       DONNA ANN GABRIELE CHECHELE,
14                Plaintiff-Appellant,
15
16                    -v.-                                               11-3889
17
18       W. EDWARD SCHEETZ,
19                Defendant-Appellee,
20
21       MORGANS HOTEL GROUP CO.,
22                Nominal Defendant-Appellee.
23       - - - - - - - - - - - - - - - - - - - -X
24
25       FOR APPELLANT:                        James A. Hunter, Hunter & Kmiec,
26                                             New York, N.Y.
27

                                                  1
 1   FOR APPELLEES:             Joseph A. Matteo (Stanley S.
 2                              Arkin, Howard J. Kaplan, on the
 3                              brief), Arkin Kaplan Rice LLP,
 4                              New York, N.Y (Counsel for W.
 5                              Edward Scheetz).
 6
 7                              Dennis H. Tracey, III, Jordan L.
 8                              Estes, Hogan Lovells US LLP, New
 9                              York, N.Y. (Counsel for Morgans
10                              Hotel Group Co.).
11
12        Appeal from a judgment of the United States District
13   Court for the Southern District of New York (Sullivan, J.).
14
15        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
16   AND DECREED that the judgment of the district court be
17   AFFIRMED.
18
19
20        Donna Ann Gabriele Chechele (“Chechele”) appeals from
21   the dismissal of her shareholder derivative complaint
22   against nominal defendant Morgans Hotel Group Co.
23   (“Morgans”) and its former President and CEO, W. Edward
24   Scheetz (“Scheetz”), which sought to recover Scheetz’s
25   profits from purchases and sales of Morgans stock within a
26   six-month period. See Securities and Exchange Act of 1934 §
27   16(b), 15 U.S.C. § 78p(b). We assume the parties’
28   familiarity with the underlying facts, the procedural
29   history, and the issues presented for review.
30
31        “We review de novo the dismissal of a complaint under
32   Rule 12(b)(6), accepting all factual allegations as true and
33   drawing all reasonable inferences in favor of the
34   plaintiff.” Hutchison v. Deutsche Bank Sec. Inc., 647 F.3d
35   479, 483-84 (2d Cir. 2011) (internal quotation marks
36   omitted). The district court declined to consider certain
37   SEC filings, which were not incorporated into the complaint,
38   for the truth of their assertions. This was not in error.
39   See Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007)
40   (“When a complaint alleges, for example, that a document
41   filed with the SEC failed to disclose certain facts, it is
42   appropriate for the court, in considering a Rule 12(b)(6)
43   motion, to examine the document . . . . ‘only to determine
44   what the document[] stated,’ and ‘not to prove the truth of
45   [its] contents.’” (emphasis in original) (quoting Kramer v.
46   Time Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991))).
47

                                  2
 1        Absent the SEC filings, the complaint’s allegations
 2   that Scheetz was part of an ownership group are entirely
 3   conclusory and cannot withstand Scheetz’s motion to dismiss.
 4   See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (“To
 5   survive a motion to dismiss, a complaint must contain
 6   sufficient factual matter, accepted as true, to ‘state a
 7   claim to relief that is plausible on its face.’” (quoting
 8   Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
 9
10        “We review denial of leave to amend under an abuse of
11   discretion standard.” Hutchison, 647 F.3d at 490 (internal
12   quotation marks omitted). Chechele failed to amend or move
13   to amend her complaint within 21 days after Scheetz filed
14   his Rule 12(b)(6) motion. See Fed. R. Civ. P. 15(a)(1).
15   While a court “should freely give leave [to amend] when
16   justice so requires,” Fed. R. Civ. P. 15(a)(2), “[i]t is
17   within the court’s discretion to deny leave to amend . . .
18   when [as here] leave is requested informally in a brief
19   filed in opposition to a motion to dismiss.” In Re:
20   Tamoxifen Citrate Antitrust Litig., 466 F.3d 187, 220 (2d
21   Cir. 2006); see also Porat v. Lincoln Towers Cmty. Ass’n,
22   464 F.3d 274, 276 (2d Cir. 2006) (per curiam) (“Especially
23   given that plaintiff's counsel did not advise the district
24   court how the complaint's defects would be cured, upon all
25   the facts of this case we find no abuse of discretion and
26   decline to remand for repleading.”).
27
28
29        Finding no merit in Chechele’s remaining arguments, we
30   hereby AFFIRM the judgment of the district court.
31
32
33
34                              FOR THE COURT:
35                              CATHERINE O’HAGAN WOLFE, CLERK
36
37




                                  3
