Rosner v. Star Gas Partners, L.P.
Opinion of the Court
SUMMARY ORDER
Plaintiffs-appellants appeal from (1) the judgment of the United States District Court for the District of Connecticut (Ar-terton, J.), dismissing their claims against all defendants, and (2) the denial of their motion to modify the judgment to grant leave to file an amended complaint. We assume the parties’ familiarity with the underlying facts and procedural history of this case, as well as the issues presented on appeal.
We conclude that the district court correctly held that the Consolidated Amended Complaint (the “Complaint”) failed to state a claim for securities fraud. Long before the price of Star Gas Partners, L.P. (“Star Gas”) securities fell in October 2004, the defendants disclosed customer attrition figures to the public and made it clear that Star Gas’s Business Improvement Plan (the “BIP”) was facing significant challenges.
Further, although Sevin’s July 2004 disclosure also included positive statements about the BIP, including that “we are beginning to see many of the operational and customer satisfaction benefits originally anticipated” and that he was optimistic “because we have a company under control,” there is no “substantial likelihood” that a “reasonable investor would have considered [these statements] significant in making investment decisions.” Ganino v. Citizens Utils. Co., 228 F.3d 154, 161-62 (2d Cir. 2000) (internal quotation marks omitted). Sevin’s positive statements about the BIP’s present stability were sufficiently vague and generalized that no reasonable investor would have relied upon them, particularly when coupled with Sevin’s concurrent disclosures about the BIP’s problems to date.
We conclude also that the district court did not abuse its discretion in dismissing the Complaint with prejudice, despite plaintiffs-appellants’ footnote request in their opposition brief for leave to amend if the district court “deems the claims against Defendants insufficiently pleaded.” See In re Tamoxifen Citrate Antitrust Litig., 466 F.3d 187, 220 (2d Cir. 2006) (“It is within the court’s discretion to deny leave to amend implicitly by not addressing the request when leave is requested informally in a brief filed in opposition to a motion to dismiss.”). Nor did the district court abuse its discretion in denying plaintiffs-appellants’ motion to modify the judgment, see Gorman v. Consol. Edison Corp., 488 F.3d 586, 592 (2d Cir. 2007) (“Generally, we review a district court’s denial of a motion to amend under the abuse of discretion standard.”), even assuming arguendo the applicability of the
For the foregoing reasons, the judgment of the district court dismissing the Complaint and denying the post-judgment motion to amend the Complaint is AFFIRMED.
. Although the Complaint raises additional fraud claims, plaintiffs-appellants conceded during oral argument that this appeal chai-
. We note that plaintiffs-appellants' brief refers to allegedly misleading statements that appear only in their proposed Consolidated Second Amended Complaint, which they submitted to the district court after it dismissed the Complaint. Because these allegations were not included in the Complaint, we do not consider them in reviewing the district court's order of dismissal.
Reference
- Full Case Name
- James C. ROSNER, Trustee of James C. Rosner Revocable Trust, John E. Wertin and RS Holdings LLC, all individually and on behalf of all others similarly situated, Richard Carter, individually and on behalf of all others similarly situated, August Prokop, Brian M. Block, Dennis McCole, Grant Strunk, Harriette S. Charles L. Tabas Foundation, Lila Gold, Robert Seigle, Richard Feit, James White, Louis Jagerman, Martin M. Wood, Michael A. Freedman, Sara Spinner Block, Jack Yopp, Jay Lederman, Michael R. Kiser, Sharon I. Dinkes, and Lee A. Gould, all individually and on behalf of all others similarly situated, Consolidated-Plaintiffs v. STAR GAS PARTNERS, L.P., Irik P. Sevin and Ami Trauber, Star Gas, LLC, Consolidated-Defendant-Appellee, A.G. Edwards & Sons, Inc., RBC Dain Rauscher Inc., UBS Investment Bank, Paul Biddelman, Hanseatic Americas, Inc., and Audrey L. Sevin, Star Gas Propane L.P., Petro Holdings Inc., Star Gas Finance Co., Joseph P. Cavanaugh, Richard F. Ambury and James J. Bottiglieri, Consolidated-Defendants
- Cited By
- 11 cases
- Status
- Published