Opinion
No. 10-0206-cv.
December 16, 2010.
UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, and DECREED that the judgment of the district court be AFFIRMED.
Frederic D. Walker, New York, NY, for Plaintiff-Appellant.
Leo V. Leyva (Kevin R.J. Schroth, of counsel, and Nicole A. Gerritsen, on the brief), Cole, Schotz, Meisel, Forman Leonard, P.A., New York, New York, for Defendants-Appellees Metro Homes, LLC, Dean S. Geibel, Paul E. Fried, Metro Harborspire, LLC, Metro Harborspire GM, LLC, and Vector Urban Renewal Associates, GM LLC.
Mayra V. Tarantino, Lite DePalma Greenberg, LLC, Newark, NJ, for Defendants-Appellees Donald J. Trump and The Trump Organization, Inc.
Andrew J. Melnick (Scott W. Bulcao, of counsel), Schindler Cohen Hochman LLP, New York, NY, for Defendant-Appellee UBS Financial Services Inc.
PRESENT: ROGER J. MINER, CHESTER J. STRAUB, DEBRA ANN LIVINGSTON, Circuit Judges.
SUMMARY ORDER
Plaintiff-appellant Dushan Kosovich ("Kosovich") appeals from an order and judgment of the United States District Court for the Southern District of New York (Rakoff, J.) dismissing his complaint in its entirety and with prejudice. Kosovich brought this action against the defendants-appellees, alleging federal securities fraud and various state-law claims in connection with his investment in a real estate project to be constructed in Jersey City, New Jersey. On October 30, 2009, the defendants-appellees moved to dismiss Kosovich's claims for failure to state a claim pursuant to Federal Rules of Civil Procedure 12(b)(6). The district court granted the motions on November 30, 2009. Kosovich timely appealed to this Court. We assume the parties' familiarity with the underlying facts and procedural history.
At the start, we reject Kosovich's argument that the district court impermissibly relied on documents that were not part of his complaint. The district court made clear that the "written representations in the Brochure alone" were sufficient to dispose of Kosovich's federal securities claim. Kosovich v. Metro Homes, LLC, No. 09 Civ. 6992(JSR), 2009 WL 5171737 at *4-5, 2009 U.S. Dist. LEXIS 121390 at *13 (S.D.N.Y. Dec. 29, 2009) (emphasis added). Moreover, even assuming that the district court relied on the contents of the PPM, Kosovich's complaint clearly incorporated it. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (noting that a "complaint is deemed to include any written instrument . . . incorporated in it by reference," and that "[e]ven where a document is not incorporated by reference, the court may nevertheless consider it where the complaint relies heavily upon its terms and effect." (internal quotation marks omitted)).
While Kosovich alleged in his complaint that the defendants-appellees issued a Private Placement Memorandum ("PPM") and a selling brochure ("Brochure") in connection with the disputed securities transaction, he only attached the. Brochure to his complaint.
On appeal, Kosovich primarily challenges the dismissal of his federal securities fraud claim under Section 10(b) of the Securities Exchange Act of 1934 and Securities and Exchange Commission Rule 10b-5. For substantially the same reasons presented in the thorough and well-reasoned Memorandum Order of the district court, we conclude that any reliance by Kosovich on the misstatements and omissions he alleges was unreasonable as a matter of law. In brief, Kosovich principally alleges that defendants-appellees UBS Financial Services, Inc. and Kenneth Kavanagh, a former broker, knowingly misrepresented that Kosovich's investment in the real estate project was a fixed-interest loan. The Brochure, however, clearly explains that investments in the project would be divided into two classes of interests, neither of which would be a loan. It further warns, in boldface, uppercase letters, that " THERE CAN BE NO ASSURANCE OR GUARANTEE THAT THE COMPANY WILL MEET ITS BUSINESS OR INVESTMENT OBJECTIVES" and that " THE COMPANY'S INVESTMENT AND DEVELOPMENT PROGRAM IS SPECULATIVE AND ENTAILS SUBSTANTIAL RISKS." Given these unambiguous written statements explaining the nature of and risks inherent in the securities offering, Kosovich's alleged belief that his investment was a loan was clearly unreasonable.
We further agree with the district court that even if this were not the case, Kosovich's claim is time-barred. The relevant statute of limitations required Kosovich to file his claim "not later than the earlier of [two] 2 years after the discovery of the facts constituting the violation," or "[five] 5 years after such violation." 28 U.S.C. § 1658(b) (2006) (emphasis added); see Merck Co. v. Reynolds, ___ U.S. ___, ___, 130 S.Ct. 1784, 1789, 176 L.Ed.2d 582 (2010). Even assuming, as Kosovich argues, that the proper limitations period was two years, beginning in June 2007, Kosovich filed his claim in August 2009, well after his proposed limitations period expired. Consequently, the statute of limitations bars his federal securities claim.
Kosovich finally argues that the district court's dismissal of his complaint without leave to amend it was an abuse of discretion. Kosovich admits, however, that he never asked the district court for leave to amend and that he requests this relief for the first time on appeal. Such a request is thus not properly before this. Court. See In re Nortel Networks Corp. Sec. Litig., 539 F.3d 129, 132 (2d Cir. 2008) (noting that arguments raised for the first time on appeal are generally deemed waived).
We have reviewed Kosovich's remaining arguments and find them to be waived or without merit. The judgment of the district court is therefore AFFIRMED.