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Amy R. Gurvey v. Cowan


February 10, 2012


Appeal from a judgment of the United States District Court for the Southern District of New York (Barbara S. Jones, Judge).


Gurvey v. Cowan, Liebowitz & Latman, P.C., et al.


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.

1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the 2 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, 3 on the 10th day of February, two thousand twelve.


UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 23 DECREED that the judgment of the District Court be AFFIRMED in part and VACATED and 24 REMANDED in part.

25 Plaintiff-appellant Amy R. Gurvey appeals from the District Court's April 23, 2009 judgment 26 dismissing her third amended complaint ("TAC") pursuant to Fed. R. Civ. P. 12(b)(6). We assume the 27 parties' familiarity with the underlying facts and the procedural history of the case, some of which we 28 briefly reiterate here.


30 In February 2006 Gurvey filed her initial complaint in this action, principally asserting claims of 31 misappropriation of trade secrets against all defendants named in the complaint, fraud and breach of 32 fiduciary duty against her attorney, Cowan, Liebowitz & Latman LLC ("Cowan"), and unfair 1 competition and interference with prospective economic advantage against Cowan, Clear Channel 2 Communications ("CCC"), InstantLive, and Live Nation, Inc. ("Live Nation"). Gurvey did not serve 3 the complaint on the defendants at that time.

4 Four months later, in June 2006, Gurvey filed an amended complaint, which added a subsidiary 5 of CCC as a defendant, as well as, inter alia, claims of malpractice against Cowan. Gurvey served the 6 first amended complaint on all defendants, and attached a copy of the original complaint.

7 Later, on March 4, 2008, Gurvey filed her third*fn2 amended complaint, which forms the basis of 8 this appeal. The TAC added as defendants several partners of and one associate employed by Cowan 9 (together with Cowan, the "Cowan Defendants"), several executives of the corporate defendants, and 10 Michael Gordon, the bass guitarist for the rock band "Phish." The TAC also asserted numerous claims 11 against various defendants for, inter alia, misappropriation of trade secrets, unfair competition, breach of 12 fiduciary duty, tortious interference with a contract, tortious interference with prospective economic 13 relations, attorney malpractice, violations of Section 2 of the Sherman Act,*fn3 violations of state antitrust 14 laws, and violations of the Lanham Act.*fn4

15 On April 23, 2009, the District Court dismissed the TAC in its entirety.*fn5 Gurvey v. Cowan, 16 Liebowitz & Latman, P.C., No. 06 Civ. 1202, 2009 WL 1117278 (S.D.N.Y. Apr. 24, 2009) ("Gurvey II").

1 The court determined that Gurvey's claims of misappropriation of trade secrets, unfair competition, and 2 tortious interference with contract claims were time-barred. The court also determined that her state 3 and federal antitrust claims, as well as her unjust enrichment claim, had been inadequately pleaded. It 4 further found that Gurvey's false advertising claims under the Lanham Act were related to the 5 authorship of her allegedly proprietary ideas and therefore were not properly the subject of an action 6 under the Lanham Act.

7 With respect to Gurvey's claims for tortious interference with prospective economic relations, 8 the court concluded that Gurvey's allegations--that, because Cowan illegally revealed her proprietary 9 information and trade secrets to CCC and Live Nation, she lost the opportunity to complete a private 10 placement offering of securities to be issued by her own company--were too vague to give rise to a 11 plausible claim for relief. The court determined that the TAC neglected to allege that defendants knew 12 of Gurvey's private placement opportunity when they allegedly wrongfully interfered with the 13 opportunity, and therefore dismissed the tortious interference claim.

14 Finally, with respect to Gurvey's legal malpractice claims against the Cowan defendants, the 15 court concluded that Gurvey had offered only "vague and non-actionable challenges" to defendants' 16 legal representation. Gurvey's allegation that defendants had failed to protect the confidentiality of her 17 trade secrets was not premised on "anything more than speculation" and did not present a challenge to 18 the actual quality of defendants' legal representation. In addition, Gurvey's allegation of a conflict of 19 interest did not include any detail as to the supposed conflict. Moreover, the court determined that 20 Gurvey had failed to identify the precise damages she had suffered or how defendants' legal 21 representation had actually caused these damages. Gurvey's breach of fiduciary duty claims against the 22 Cowan defendants were dismissed for similar reasons.*fn6

On appeal Gurvey argues that the District Court abused its discretion by (1) failing to adjudicate 2 her April 2010 Rule 60(b) motion which, inter alia, sought leave to file a fourth amended complaint; (2) 3 dismissing her claims against the defendants for misappropriation of her trade secrets, violation of the 4 federal and state unfair competition and antitrust laws, tortious interference with her contractual and 5 business relations, and attorney malpractice and breach of fiduciary duty; (3) not issuing a formal order 6 with respect to the Cowan defendants' motion to compel arbitration and stay all proceedings pending 7 arbitration; (4) failing to enter on the docket and adjudicate her requests to "reinstate" discovery; (5) 8 granting Live Nation's and CCC's motions to dismiss for lack of personal jurisdiction; (6) finding that 9 defendants did not engage in unfair competition by issuing false and misleading press releases; and (7) 10 dismissing her claims against Cowan for ongoing malpractice and breach of fiduciary duty before the 11 United States Patent and Trademark Office and for tortious interference with her contract with her 12 previous employer, Legend Films.*fn7 Gurvey has also moved to correct the record on appeal, requesting 13 that we order the District Court to docket various documents she has unsuccessfully attempted to file 14 with the District Court during the pendency of this appeal, including a record of a state arbitration 15 proceeding and a motion filed pursuant to Fed. R. Civ. P. 60(b), and that we order the District Court to 16 permit her to file a fourth amended complaint (which she has also unsuccessfully attempted to file with 17 the court). The Cowan defendants have petitioned for fees and costs, requesting that Gurvey be 18 required to pay their expenses associated with the defense of the instant appeal.


2 We review de novo a dismissal of a complaint under Federal Rule of Civil Procedure 12(b)(6), 3 "construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing 4 all reasonable inferences in the plaintiff's favor." Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d 5 Cir. 2002). The complaint must plead "enough facts to state a claim to relief that is plausible on its 6 face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although all allegations contained in the 7 complaint are assumed to be true, this tenet is "inapplicable to legal conclusions." Ashcroft v. Iqbal, 129 8 S. Ct. 1937, 1949 (2009). A claim will have "facial plausibility when the plaintiff pleads factual content 9 that allows the court to draw the reasonable inference that the defendant is liable for the misconduct 10 alleged." Id.

11 Having conducted an independent and de novo review of the record in light of these principles, 12 and for substantially the reasons stated by the District Court in its thorough and well-reasoned opinion 13 and order of April 2009, Gurvey II, 2009 WL 1117278, we affirm the judgment to the extent that it 14 dismissed Gurvey's claims for misappropriation of trade secrets, unfair competition, and tortious 15 interference with contract as time-barred, and to the extent that it dismissed her claims for false 16 advertising, violations of state and federal antitrust laws, and tortious interference with prospective 17 economic relations, for failing to sufficiently plead claims upon which relief may be granted.

18 However, we vacate the District Court's judgment to the extent that it dismissed Gurvey's 19 claims for attorney malpractice and breach of fiduciary duty against the Cowan defendants. Construing 20 the TAC liberally, accepting all the factual allegations in the complaint as true, and drawing all 21 reasonable inferences in Gurvey's favor, see Bell Atl. Corp., 550 U.S. at 570, we conclude that Gurvey 22 stated a plausible claim by alleging that the defendants used the information given to them as part of a 23 confidential attorney-client relationship to their own advantage by disclosing it to other clients who then 1 profited therefrom to Gurvey's detriment, see Ulico Cas. Co. v. Wilson, Elser, Moskowitz, Edelman & Dicker, 2 56 A.D.3d 1, 10 (1st Dep't 2008).*fn8 We therefore remand the cause for further proceedings before the 3 District Court on these claims.

4 We deny Gurvey's motion to correct the record on appeal, having found that the documents she 5 asks this Court to consider either were not properly filed with the District Court or concern events that 6 occurred subsequent to the District Court's dismissal of her claims. See generally Fed. R. App. P. 10(e) 7 (setting forth procedure for correction of record on appeal). We also deny the request of the Cowan 8 defendants for an award of appellate costs and fees. See Fed. R. App. P. 38; Schiff v. United States, 919 9 F.2d 830, 834 (2d Cir. 1990).

10 We have reviewed Gurvey's remaining arguments and find them to be without merit.


For the foregoing reasons, the judgment of the District Court is hereby AFFIRMED in part and VACATED in part as specified above. The cause is REMANDED to the District Court for further proceedings consistent with this order, including discovery on the remaining claims and any possible dispositive motions that may thereafter ensue.


Catherine O'Hagan Wolfe, Clerk of Court

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