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Amy R. Gurvey v. Cowan

February 10, 2012

AMY R. GURVEY, PLAINTIFF-APPELLANT,
v.
COWAN, LIEBOWITZ & LATMAN, P.C., CLEAR CHANNEL COMMUNICATIONS, INC., LIVE NATION, INC., INSTANT LIVE CONCERTS, LLC, NEXTICKETING, INC., WILLIAM BORCHARD, MIDGE HYMAN, BAILA CELEDONIA, CHRISTOPHER JENSEN, DALE HEAD, STEVE SIMON, MICHAEL GORDON, AND SUSAN SCHICK, DEFENDANTS-APPELLEES.*FN1



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

09-2185-cv(L)

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

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.

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.

PRESENT: 6 7 AMALYA L. KEARSE, 8 JOSE A. CABRANES, 9 ROBERT D. SACK, 10 Circuit Judges.

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.

29 BACKGROUND

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 ...


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