24-2814-cv BAT LLC v. TD Bank N.A. et al.

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.

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 6th day of November, two thousand twenty-five.

PRESENT: AMALYA L. KEARSE, RICHARD C. WESLEY, MARIA ARAÚJO KAHN, Circuit Judges, ------------------------------------------------------------------ BAT LLC, Plaintiff-Appellant, v. No. 24-2814-cv TD BANK N.A., HALIFAX SECURITY, INC., DOING BUSINESS AS NORTH AMERICAN VIDEO, INTEGRATED SECURITY SYSTEMS, Defendants-Cross-Defendants-Appellees, LYDIA SECURITY MONITORING INC., DOING BUSINESS AS COPS MONITORING,

Defendant-Cross-Claimant-Appellee, SECURECOM WIRELESS LLC, Defendant-Cross-Defendant, ADT LLC, SECURITY AND DATA TECHNOLOGIES, INC., Defendants.

------------------------------------------------------------------ FOR PLAINTIFF-APPELLANT BAT LLC: JOSEPH ZELMANOVITZ, Stahl & Zelmanovitz, New York, NY.

Elliot Hahn, Hahn Eisenberger PLLC, Brooklyn, NY.

FOR DEFENDANT-APPELLEE ANDREW I. HAMELSKY (Jenifer TD BANK N.A.: A. Scarcella on the brief), Stradley Ronon Stevens & Young, LLP, New York, NY.

FOR DEFENDANT-APPELLEE Michael D. Silberfarb, Huaou HALIFAX SECURITY, INC.: Yan, Blank Rome LLP, New York, NY.

FOR DEFENDANT-APPELLEE Michel O. Weisz, Michel O.

INTEGRATED SECURITY SYSTEMS: Weisz, P.A., Doral, FL.

FOR DEFENDANT-APPELLEE Frank J. Wenick, Kevin Murtagh, LYDIA SECURITY MONITORING INC.: Ahmuty Demers & McManus, Albertson, NY.

Appeal from a September 27, 2024 judgment of the United States District Court for the Eastern District of New York (Nina R. Morrison, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

Plaintiff BAT LLC (“BAT”) appeals from a judgment of the United States District Court for the Eastern District of New York dismissing its Fourth Amended Complaint for lack of subject matter jurisdiction, because of lack of standing to pursue the claims asserted, and denying BAT’s request to file a fifth amended complaint. In 2012, someone broke into safe deposit boxes at a branch of defendant TD Bank N.A. (“TD”) in Brooklyn, New York, and stole valuable items from a safe deposit box leased by Yaakov and Chaya Bienenstock (the “Bienenstocks”), the contents of which included more than $7 million worth of diamonds. In 2015, BAT was formed as a company; the Bienenstocks assigned to BAT all of their rights “concerning” the box’s contents; and BAT commenced this action seeking damages for the diamonds and other contents of the box. During the proceedings in this case, the Bienenstocks admitted that they did not own the diamonds or anything else in the box.

In its answer to BAT’s initial complaint in 2015, TD asserted, inter alia, that “BAT did not have a valid assignment of the rights of [the] . . . Bienenstock[s],” that “BAT lacks standing to bring the within cause of action,” and that “BAT has no rights against TD Bank for property which Plaintiff does not own.” TD Answer dated October 15, 2015, Affirmative Defenses SECOND, SIXTH, and TENTH. Thereafter, through September 15,

2016, BAT filed four amended complaints. TD’s answers to those complaints included these quoted challenges to BAT’s standing to sue for the loss of the contents of the box.

Following some seven years of discovery, the parties filed cross-motions in 2023 for summary judgment and other relief, and BAT sought permission to file a fifth amended complaint. The motions were referred to Magistrate Judge Cheryl L. Pollak, who issued a detailed and carefully reasoned Report and Recommendation, recommending (1) dismissal of the entire action for lack of subject matter jurisdiction, and (2) denial of BAT’s motion for leave to amend its complaint. Over timely objections by BAT, the district court adopted Magistrate Judge Pollak’s recommendations to dismiss the action for lack of subject matter jurisdiction and to deny BAT’s motion for leave to amend its complaint, see District Court’s ORDER ADOPTING REPORT AND RECOMMENDATION, dated September 26, 2024; and judgment was entered accordingly.

Finding no error or abuse of discretion in these rulings, we affirm the district court’s dismissal of the action for lack of subject matter jurisdiction and the denial of leave to file a fifth amended complaint, substantially for the reasons set out in the Magistrate Judge’s Report and Recommendation, which is reported at BAT LLC v. TD Bank, N.A., No. 15 CV 5839, 2024 WL 4485397 (E.D.N.Y. Mar. 30, 2024), see id. at *10–*28 (lack of subject matter jurisdiction because of lack of standing), and *29–*34 (denial of leave to further amend the Fourth Amended Complaint).

CONCLUSION We have considered all of BAT’s contentions on this appeal and have found them to be without merit. The judgment of the district court is AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court