     15-1557
     Fanning v. National Grid/Keyspan




                            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 ASUMMARY ORDER@). A PARTY CITING TO 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 for the Second Circuit,
 2   held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
 3   New York, on the 20th day of May, two thousand sixteen.
 4
 5   PRESENT:
 6               DENNIS JACOBS,
 7               BARRINGTON D. PARKER,
 8               REENA RAGGI,
 9                     Circuit Judges.
10   _____________________________________
11
12   Francis P. Fanning,
13
14                              Plaintiff-Appellant,
15
16                     v.                                                   15-1557
17
18
19   National Grid/Keyspan,
20
21                              Defendant-Appellee.
22
23   _____________________________________
24
25   FOR PLAINTIFF-APPELLANT:                          Francis P. Fanning, pro se, Larchmont, NY.
26
27   FOR DEFENDANT-APPELLEE:                           Justin F. Capuano (with James G. Ryan, on
28                                                     the brief), Cullen and Dykman LLP, Garden
29                                                     City, NY.
 1          Appeal from a judgment of the United States District Court for the Eastern District of New

 2   York (Kuntz, J.; Bloom, M.J.).


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

 4   DECREED that the judgment of the district court is AFFIRMED.

 5          Appellant Francis P. Fanning, pro se, appeals from a judgment in favor of KeySpan

 6   Corporation (“Keyspan”), a wholly owned subsidiary of National Grid USA, in his suit under the

 7   Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b) et seq. We assume the parties’

 8   familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

 9          We review de novo a district court’s dismissal of a complaint pursuant to Federal Rule of

10   Civil Procedure 12(b)(6), “construing the complaint liberally, accepting all factual allegations in

11   the complaint as true, and drawing all reasonable inferences in the plaintiff’s favor.” Leibowitz v.

12   Cornell Univ., 445 F.3d 586, 590 (2d Cir. 2006) (internal quotation marks omitted). A plaintiff

13   must allege sufficient facts to state a claim to relief that is “plausible on its face.” Bell Atl. Corp.

14   v. Twombly, 550 U.S. 544, 570 (2007).

15          In this Circuit, pro se complaints should not be dismissed by the district court without

16   granting leave to amend at least once when a liberal reading of the complaint gives “any

17   indication” that a valid claim might be stated. Shomo v. City of New York, 579 F.3d 176, 183 (2d

18   Cir. 2009) (citation omitted).     However, a district court need not grant leave to amend if

19   amendment would be “futile.” See, e.g., Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).

20   We review a district court’s denial of leave to amend for abuse of discretion, unless “the denial of

21   leave to amend is based on a legal interpretation, such as a determination that amendment would be




                                                        2
 1   futile,” in which case we review the denial de novo. Smith v. Hogan, 794 F.3d 249, 253 (2d Cir.

 2   2015).

 3            The district court properly dismissed Fanning’s FTCA claims. The FTCA does not create

 4   a cause of action against private entities; it simply waives the federal government’s sovereign

 5   immunity for torts committed by its employees in circumstances in which a private individual

 6   would be liable. United States v. Olson, 546 U.S. 43, 44 (2005); see also 28 U.S.C. § 1346(b)(1).

 7   Moreover, the allegedly fraudulent activity that formed the nucleus of Fanning’s complaint

 8   happened between 1998 and 2005, well beyond the FTCA’s two-year statute of limitations for

 9   filing an administrative claim. See 28 U.S.C. § 2401(b).

10            The district court denied Fanning’s motion for leave to amend. Under Federal Rule of

11   Civil Procedure 15(a)(1)(A), a “party may amend its pleading once as a matter of course within . . .

12   21 days after serving it.” Fed. R. Civ. P. 15(a)(1)(A). Since Fanning moved for leave to amend

13   on June 25, 2014, within 21 days of having served KeySpan on June 5, 2014, Fanning was

14   “entitled to amend [his] complaint as a matter of right without leave of the district court.” See In

15   re Agent Orange Prod. Liab. Litig., 517 F.3d 76, 103 (2d Cir. 2008). Any error, however, was

16   harmless because any claims Fanning could have brought under the Employee Retirement Income

17   Security Act (“ERISA”), 29 U.S.C. §§ 1001 et seq., or Sarbanes-Oxley, 15 U.S.C. §§ 7201 et seq.,

18   (or under the Securities Exchange Act, 15 U.S.C. §§ 78a et seq., for enforcement of

19   Sarbanes-Oxley’s disclosure requirements) would have been barred by the statutes of limitations.

20   See 29 U.S.C. § 1113 (six-year statute of limitations from the time of discovery of ERISA breach

21   of fiduciary duty involving “fraud or concealment”); 28 U.S.C. § 1658(b) (two-year statute of

22   limitations from the time of discovery of “fraud, deceit, manipulation, or contrivance in


                                                      3
1    contravention of a regulatory requirement concerning the securities laws”); LC Capital Partners,

2    LP v. Frontier Ins. Group, Inc., 318 F.3d 148, 154 (2d Cir. 2003) (observing that

3    pre-Sarbanes-Oxley statute of limitations was one year after discovery of facts constituting the

4    violation); see also 15 U.S.C. § 7202(b)(1) (violations of Sarbanes-Oxley treated the same as

5    violations of Securities Exchange Act). None of the allegedly fraudulent transactions of which

6    Fanning complains occurred after 2005. Moreover, he alleges that he knew of the allegedly

 7   fraudulent activity as early as 2002, when he was forced into retirement for confronting KeySpan

 8   officials about it.

 9           We have considered Fanning’s remaining arguments and find them to be without merit.

10   Accordingly, we AFFIRM the district court’s judgment.

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




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