16‐998‐cv Seguros Nuevo Mundo S.A. v. Trousdale 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 COURTʹS 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 ʺSUMMARY ORDERʺ). 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 1st day of November, two thousand sixteen.

PRESENT: DENNY CHIN, SUSAN L. CARNEY, Circuit Judges, BRIAN M. COGAN, District Judge.*

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SEGUROS NUEVO MUNDO S.A., Plaintiff‐Appellant,

v. 16‐998‐cv

B. ALLEN TROUSDALE, Defendant‐Appellee.**

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* Judge Brian M. Cogan of the United States District Court for the Eastern District of New York, sitting by designation. ** The Clerk of Court is respectfully directed to amend the official caption to conform to the above.

FOR PLAINTIFF‐APPELLANT: ALAN M. POLLACK, John D. DʹErcole, Robinson Brog Leinwand Greene Genovese & Gluck P.C., New York, New York.

FOR DEFENDANT‐APPELLEE: PETER J. PIZZI, Mariel L. Belanger, Walsh Pizzi OʹReilly Falanga LLP, Newark, New Jersey.

Appeal from the United States District Court for the Eastern District of

New York (Mauskopf, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Plaintiff‐appellant Seguros Nuevo Mundo S.A. (ʺSegurosʺ) appeals the

district courtʹs March 25, 2016 judgment dismissing Segurosʹs amended complaint (the

ʺComplaintʺ). Segurosʹs claims arise out of defendant‐appellee B. Allen Trousdaleʹs

alleged breach of a personal guaranty, which Seguros seeks to enforce.1 The district

court granted Trousdaleʹs motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6), explaining its reasoning in its March 25, 2016 memorandum and

order. We assume the partiesʹ familiarity with the facts, procedural history, and issues

on appeal.

In the Complaint, Seguros alleges the following facts. Grad Associates

P.A. (ʺGradʺ), an architectural firm that Trousdale owned and controlled, and Eiffel

1 The district court had diversity jurisdiction over this action pursuant to

(a)(2), as Seguros is a citizen of a foreign state (Venezuela) and Trousdale is a citizen of New York.

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Engineering Technique, C.A. (ʺEiffelʺ) formed a joint venture and contracted with the

Republic of Venezuela (ʺVenezuelaʺ) to design and build a prison in Venezuela.

Venezuela required the issuance of certain payment and performance bonds. Seguros,

an underwriter of payment and performance bonds, issued bonds for the project. As a

condition to issuing the bonds, Seguros obtained a guaranty (the ʺGuarantyʺ) signed by

Trousdale ʺon behalf ofʺ Grad guaranteeing any amounts that Seguros was required to

pay to Venezuela under the bonds. J. App. at 45. Following the joint ventureʹs alleged

breach of its construction contract, Venezuela sued Seguros, and Seguros paid

Venezuela $12 million in settlement of the lawsuit. Seguros seeks to recover that

amount, plus costs, fees and other damages, from Trousdale personally pursuant to the

Guaranty.2 Trousdale defended the action by arguing that the Guaranty was not a

personal guaranty, and that he signed only as a representative of Grad.

The district court dismissed the Complaint, finding that it failed to

plausibly allege ʺclear and explicit evidenceʺ of Trousdaleʹs intent to be bound by the

Guaranty in his individual capacity. Lerner v. Amalgamated Clothing & Textile Workers

Union,

(2d Cir. 1991) (quoting Mencher v. Weiss,

(1953)). For

the reasons discussed below, we agree.

We review de novo the district courtʹs dismissal of a complaint for failure

to state a claim, ʺconstruing the complaint liberally, accepting all factual allegations in

2 Seguros does not seek recovery from Grad, which terminated its business operations prior to the date that Seguros filed its initial complaint.

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the complaint as true, and drawing all reasonable inferences in the plaintiffʹs favor.ʺ

Chambers v. Time Warner, Inc.,

(2d Cir. 2002) (citation omitted).

ʺDocuments that are attached to the complaint or incorporated in it by reference are

deemed part of the pleading and may be consideredʺ on a motion to dismiss. Roth v.

Jennings,

(2d Cir. 2007). To survive a Rule 12(b)(6) motion to dismiss, a

complaint must plead ʺenough facts to state a claim to relief that is plausible on its face.ʺ

Bell Atl. Corp. v. Twombly,

(2007).

Under New York law, where an individual acts in his capacity as an agent

of a disclosed principal, the agent ʺwill not be personally bound unless there is clear

and explicit evidence of the agentʹs intention to substitute or superadd his personal

liability for, or to, that of his principal.ʺ Salzman Sign Co. v. Beck,

(1961)

(quoting Mencher,

).

Accepting all Segurosʹs factual allegations as true and drawing all

reasonable inferences in its favor, we conclude that the Complaint does not plausibly

allege that Trousdale agreed to be personally liable on the Guaranty. The plain

language of the Guaranty, as set forth in the translation attached to the Complaint,3

states that Trousdale was ʺacting in [his] capacity of Presidentʺ and ʺon behalf of GRAD

ASSOCIATES P.A.ʺ J. App. at 45. Furthermore, the Complaint is silent as to the

structure of the transactions between the parties, the negotiations, or any other

3We reference the revised translation of the Guaranty filed with the Complaint, to which Trousdale has not objected.

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circumstances under which Trousdale executed the Guaranty. Without more, the

Complaint fails to identify or point to ʺclear and explicit evidenceʺ of Trousdaleʹs intent

to substitute or add his personal liability for or to that of Grad. Salzman,

. Accordingly, we hold that the district court properly dismissed the Complaint for

failure to state a claim.

We have considered all of Segurosʹs additional arguments and find them

to be without merit. For the reasons stated herein, the judgment of the district court is

AFFIRMED.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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