Int’l Strategies Grp., Ltd. v. Ness

10-1581-cv
Int’l Strategies Grp., Ltd. v. Ness
UNITED STATES COURT OF APPEALS 1
2
FOR THE SECOND CIRCUIT 3
4
August Term, 2010 5
6
7
(Argued: April 8, 2011 Decided: July 15, 2011) 8
9
Docket No. 10-1581-cv 10
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INTERNATIONAL STRATEGIES GROUP, LTD. , 14
15
Plaintiff-Appellant, 16
17
- v.- 18
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PETER S. NESS , 20
21
Defendant-Appellee. 22
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Before: JACOBS, Chief Judge, CABRANES, Circuit 26
Judge, KRAVITZ, District Judge.*
27
28
Plaintiff-Appellant International Strategies Group, 29
Ltd. appeals from a March 31, 2010 judgment of the United 30
States District Court for the District of Connecticut 31
(Chatigny, J.), granting Defendant-Appellee Peter Ness’s 32
motion to dismiss the complaint as untimely. The claims, 33
alleging breach of fiduciary duty, intentional 34
* The Honorable Mark R. Kravitz, of the United States
District Court for the District of Connecticut, sitting by
designation.

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misrepresentation, negligent misrepresentation, and 1
conspiracy to commit those three offenses , arose from the 2
loss of a $4 million investment that the plaintiff made with 3
Ness’s employer. We agree with the district court that the 4
claims are untimely and that tolling is unwarranted. 5
AFFIRMED. 6
K ATHLEEN C. S TONE , Boston, MA , for 7
Plaintiff-Appellant. 8
9
R OBERT C. E. L ANEY , (Claire E. 10
Ryan, on the brief), Ryan Ryan 11
Deluca LLP, Stamford, CT , for 12
Defendant-Appellee. 13
14
DENNIS JACOBS, Chief Judge: 15
16
Plaintiff International Strategies Group, Ltd. (“ISG”) 17
appeals from a March 31, 2010 judgment of the United States 18
District Court for the District of Connecticut (Chatigny, 19
J.), granting Defendant Peter Ness’s motion to dismiss as 20
untimely ISG’s complaint, which alleges breach of fiduciary 21
duty, intentional misrepresentation, negligent 22
misrepresentation, and conspiracy to commit those three 23
offenses. ISG’s claims arose from the loss of a $4 million 24
investment it made with Ness’s employer, Corporation of the 25
BankHouse (“BankHouse”). The district court ruled that 26
tolling of the untimely claims, on the basis of Ness’s 27
2

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continuing concealment, was unwarranted. We affirm on the 1
ground that this lawsuit, commenced in April 2004, arises 2
from an injury suffered no later than June 2000, and is 3
therefore barred by the applicable statute of repose, Conn. 4
Gen. Stat. § 52-577. 5
6
BACKGROUND 7
We recount only the facts that bear upon the issues 8
necessary to decide the appeal, and assume (as we must) that 9
all plausible allegations in ISG’s first amended complaint 10
are true. Where appropriate, we take judicial notice of 11
filings from ISG’s related lawsuits. See Scherer v. 12
Equitable Life Assurance Soc’y of the U.S., 347 F.3d 394, 13
402 (2d Cir. 2003). 14
The defendant, Peter S. Ness, was the Vice President 15
of Corporate Finance at BankHouse, as well as an in-house 16
counsel and the head of the Greenwich office. Ness was one 17
of a core group of senior executives for entities controlled 18
by James F. Pomeroy, II. BankHouse, and several other 19
Pomeroy-controlled entities, purported to offer a 20
sophisticated investment opportunity but was in essence a 21
Ponzi scheme. 22
3

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Around April 1998, Pomeroy enticed ISG to invest $4 1
million with BankHouse by promising guaranteed profits of $2 2
million every twelve days for three months, 1 with an express 3
covenant that invested funds would not be depleted. 4
Although Pomeroy assured ISG that profits were accruing as 5
expected, ISG’s funds were soon depleted through various 6
unauthorized transfers. 7
BankHouse prolonged the scheme by tantalizing ISG with 8
some or all of its notional profits--in the form of a $9 9
million promissory note. Around October 1998, Ness and 10
Pomeroy proposed that ISG forgo the payment by note and 11
instead participate in another investment opportunity. ISG 12
knew nothing about this proposed investment, 2 but agreed 13
1 See App. at 68 (Funds Management Agreement).
Although ISG did not attach the Funds Management Agreement
to its complaint or its opposition to Ness’s motion to
dismiss, it “reli[ed] on the terms and effect of [the
agreement] in drafting the complaint” by alleging that the
investment created fiduciary duties, see Chambers v. Time
Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002); it also
filed the agreement in its suit against BankHouse, see
Barber Aff. Ex. A, Int’l Strategies Grp., Ltd. v. Corp. of
the BankHouse, Inc., No. 02-cv-10532 (D. Mass. May 15,
2002). The agreement may therefore be considered in this
appeal.
2 ISG’s pleadings are inconsistent as to whether it
knew that funds would be transferred to another entity.
Compare First Am. Compl. ¶ 25 (“[ISG] agreed to allow what
it believed to be an augmented investment amount to be
transferred to another entity, Swan Trust, for further
4

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nevertheless. BankHouse then transferred $19 million of its 1
clients’ money to a foreign entity, Swan Trust, which 2
included any remnant of ISG’s investment. 3
The funds that BankHouse transferred to Swan Trust were 4
swiftly distributed (unlawfully) to third-party bank 5
accounts. BankHouse concealed the depletion from ISG for a 6
time: In January 1999, Ness sent a memorandum informing 7
Chris Barber, a Managing Director of ISG, that funds 8
invested with Swan Trust were expected to yield profits of 9
200% to 300%, which would be disbursed to BankHouse by the 10
end of the month. 3 At some point prior to June 2000, 11
however, ISG learned that Swan Trust had dissipated the 12
funds. (ISG’s filings reflect an unimportant inconsistency 13
on the timing. 4) 14
investment.”), with Pl.’s Opp. to Def.’s Mot. to Dis. at 6
(“At the time, ISG had no knowledge of Swan Trust . . . .”).
3 This and subsequent communications from Ness are
properly considered because they were referenced (either
specifically or as a course of conduct) in the complaint and
were attached by ISG to its opposition to Ness’s motion to
dismiss. First Am. Compl. ¶ 29; Pl.’s Opp. to Def.’s Mot.
to Dis. Ex. E; cf. Chambers, 282 F.3d at 153.
4 ISG’s complaint concedes knowledge of the dissipation
only as of June 2000. First Am. Compl. ¶ 36. Its
opposition to Ness’s motion to dismiss, however, admits
knowledge since August 1999. Pl.’s Opp. to Def.’s Mot. to
Dis. at 10; see also Complaint ¶ 90, Int’l Strategies Grp.,
Ltd. v. Corp. of the BankHouse, Inc., No. 02-cv-10532 (D.
5

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The complaint alleges that BankHouse undertook (or 1
pretended to undertake) efforts to recover the funds from 2
Swan Trust, as a ploy to dissuade ISG from bringing a claim. 3
As part of the deception, ISG cites two memoranda that Ness 4
co-wrote to it in October 1999 (“the October 1999 5
Memoranda”), which optimistically described the recovery 6
efforts conducted by BankHouse’s attorneys and its “recovery 7
specialists,” but stressed the need for confidentiality. 8
See Pl.’s Opp. to Def.’s Mot. to Dis. Exs. F, G. ISG was 9
lulled: Although the memoranda suggested an imminent 10
recovery, ISG waited for months while the recovery efforts 11
unfolded. 12
Approximately nine months later, ISG (and other 13
investors) accepted BankHouse’s suggestion to grant a power 14
of attorney to BankHouse’s outside counsel, A. John 15
Pappalardo, to act on its behalf in the recovery efforts. 16
Efforts by Pappalardo continued from mid-2000 through the 17
fall of 2001, during which time (as ISG alleges generally) 18
BankHouse and “its employees and agents” deceived ISG by 19
insisting “that they were doing everything feasible to 20
Mass. Mar. 22, 2002).
The discrepancy is unimportant because the result is
the same even if the June 2000 date is used.
6

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recover the funds” and that independent action would 1
“interfere with [BankHouse’s] ability to recover on behalf 2
of the investors.” First Am. Compl. ¶ 43. 3
On August 15, 2001, nearly two years after the October 4
1999 Memoranda he co-drafted, Ness faxed a single-page, 5
handwritten note (the “August 2001 Fax”) to Chris Barber of 6
ISG, in evident response to an inquiry by ISG: 7
Chris-- 8
9
• Discussed your letter with Jim [Pomeroy] 10
11
• Will get letter to you ASAP from me (with 12
John [Pappalardo] OK) or from John--- 13
14
• We are proceeding with first steps of 15
litigation --- 16
17
Peter 18
Pl.’s Opp. to Def.’s Mot. to Dis. Ex. H. ISG claims that it 19
first realized that the recovery efforts were futile (or 20
perhaps fictitious) after the promises in this fax went 21
unfulfilled. 22
After a few more months, ISG hired its own counsel to 23
recover its funds through litigation. Several additional 24
months later, on March 22, 2002, ISG commenced a suit 25
against BankHouse, Pomeroy, and various other Pomeroy- 26
7

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controlled entities to recover its investment funds. 5 Ness 1
was not named a defendant or mentioned in the complaint. 2
The defendants answered, but later ceased to defend. After 3
more than two years of litigation, ISG won a default 4
judgment of over $10 million in damages and penalties. 6
5
ISG’s inability to collect on its judgment triggered 6
additional lawsuits. This suit was filed on April 27, 2004 7
in the United States District Court for the District of 8
Connecticut. Three days later, a nearly identical suit was 9
filed in the United States District Court for the District 10
of Massachusetts against Stephen Heffernan, the Chief 11
Financial Officer of BankHouse, alleging (among other 12
claims) the same six causes of action as alleged in this 13
suit.7 Ness was not mentioned in the complaint. The suit 14
against Heffernan was dismissed as untimely. 8
15
5 See Complaint, Int’l Strategies Grp., Ltd. v. Corp.
of the BankHouse, Inc., No. 02-cv-10532 (D. Mass. Mar. 22,
2002).
6 See Amended Judgment, Int’l Strategies Grp., Ltd. v.
Corp. of the BankHouse, Inc., No. 02-cv-10532 (D. Mass. June
3, 2004).
7 See Complaint, Int’l Strategies Grp., Ltd. v.
Heffernan, No. 04-10863 (D. Mass. Apr. 30, 2004).
8 See Memorandum of Decision, Int’l Strategies Grp.,
Ltd. v. Heffernan, No. 04-10863 (D. Mass. July 30, 2004),
ECF No. 11; App. at 60-63. The court ruled that the repose
8

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While this suit (against Ness) and the suit against 1
Heffernan were pending, ISG began suing third parties 2
involved in the transactions. In May and June 2004, ISG 3
sued two banks involved in the transfers. 9 In September 4
2004, ISG sued Pappalardo and his current and prior law 5
firms, claiming malpractice in connection with the power of 6
attorney it granted him. 10 Pappalardo and the firms 7
prevailed on summary judgment: Each claim was held either 8
meritless (because no attorney-client relationship was 9
formed) or untimely. 11
10
period began in 1999, when ISG knew all the facts giving
rise to its claim (after BankHouse and its CEO represented
to ISG that its funds were about to be returned); under
Massachusetts law, ISG’s knowledge that its funds were
dissipated precluded tolling.
9 See Complaint, Int’l Strategies Grp., Ltd. v. ABN
AMRO Bank N.V., No. 04-601604 (Sup. Ct. N.Y. County May 27,
2004); Complaint, Int’l Strategies Grp., Ltd v. ABN AMRO
Bank N.V., No. 04-601731 (Sup. Ct. N.Y. County June 7,
2004). Ness is mentioned in only one paragraph in each
complaint (concerning the $9 million promissory note). The
cases, which were consolidated, have apparently been
dismissed pursuant to a stipulated order.
10 See Complaint, Int’l Strategies Grp., Ltd. v.
Greenberg Traurig, LLP, No. 04-cv-12000 (D. Mass. Sept. 16,
2004). Ness was mentioned once in the complaint, in
connection with the August 2001 Fax.
11 See Int’l Strategies Grp., Ltd. v. Greenberg
Traurig, LLP, 482 F.3d 1 (1st Cir. 2007), aff’g on other
grounds No. 04-cv-12000, 2006 U.S. Dist. LEXIS 3401 (D.
Mass. Jan. 30, 2006).
9

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After the other suits had concluded, the district court 1
in this case granted Ness’s motion to dismiss the action as 2
untimely, ruling that the limitations period began to run by 3
June 2000 and that tolling was unwarranted. 4
5
DISCUSSION 6
We review de novo a district court’s dismissal of an 7
action under Fed. R. Civ. P. 12(b)(6) for failure to state a 8
claim. Selevan v. N.Y. Thruway Auth., 584 F.3d 82, 88 (2d 9
Cir. 2009). To avoid dismissal, ISG’s allegations “must be 10
enough to raise a right to relief above the speculative 11
level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 12
(2007). Assuming all “well-pleaded factual allegations” to 13
be true and drawing all reasonable inferences in ISG’s 14
favor, we “determine whether [the allegations] plausibly 15
give rise to an entitlement to relief.” Ashcroft v. Iqbal, 16
129 S. Ct. 1937, 1950 (2009). 17
18
I 19
Tort actions under Connecticut law are (with exceptions 20
not relevant here) subject to the three-year statute of 21
repose that “begins with the date of the act or omission 22
10

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complained of, not the date when the plaintiff first 1
discovers an injury.” Piteo v. Gottier, 112 Conn. App. 441, 2
445 (App. Ct. 2009) (internal quotation marks omitted); see 3
Conn. Gen. Stat. § 52-577; Barrett v. Montesano, 269 Conn. 4
787, 794 (2004) (noting that Conn. Gen. Stat. § 52-577 is 5
among the statutes that the Connecticut Supreme Court has 6
referred to as “statutes of limitations” even though they 7
“technically function more like statutes of repose”). 8
ISG’s funds were unlawfully dissipated by June 2000, 9
the point by which ISG concedes knowledge of the dissipation 10
in the present complaint. See First Am. Compl. ¶ 36. The 11
present suit was filed on April 27, 2004, nearly four years 12
later. ISG argues that its claims are nevertheless timely, 13
because Ness’s actions amounted to a “continuing course of 14
conduct” through August 2001, thereby “allowing [it] to 15
commence [its] lawsuit at a later date.” 12 Sherwood v. 16
Danbury Hosp., 252 Conn. 193, 203 (2000) (internal quotation 17
12 To the extent that ISG argues that Ness’s actions
from 1999 to 2001 give rise to separate causes of action for
misrepresentation and breach of fiduciary duty, it is
duplicative of the “continuing course of conduct” argument.
In any event, ISG did not raise this argument before the
district court, and “[i]n general, a federal appellate court
does not consider an issue not passed upon below.” See
Booking v. Gen. Star Mgmt. Co., 254 F.3d 414, 418 (2d Cir.
2001) (internal quotation marks omitted).
11

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marks omitted). 1
At the threshold, Ness argues that a course of conduct 2
cannot toll the repose period beyond the plaintiff’s 3
discovery of the injury. See, e.g., Rosato v. Mascardo, 82 4
Conn. App. 396, 405 (App. Ct. 2004). The cases he cites 5
interpret a different statute of limitations (Conn. Gen. 6
Stat. § 52-584), one that contains a separate two-year 7
limitation triggered when an injury is “first sustained or 8
discovered.” However, at least one Connecticut trial court 9
has indicated that this proposition from Rosato is 10
nevertheless equally applicable to § 52-577, and the 11
knowledge of the injury may well deny a plaintiff (with a 12
claim subject to that provision) the benefit of the 13
continuous course of conduct doctrine. See Coss v. Stewart, 14
Civ. No. 08-5007541-S, 2010 WL 1050534, at *6 n.1 (Conn. 15
Super. Ct. Feb. 11, 2010), aff’d, 126 Conn. App. 30 (App. 16
Ct. 2011). It is possible that the wording in Rosato may 17
signify only that the separate two-year limitation will 18
already have begun running at that point. But we need not 19
resolve the issue, because even if the continuous course of 20
conduct doctrine were available for the period following the 21
discovery of the actionable harm, ISG has not plausibly 22
12

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alleged facts warranting its application. 1
“To support a finding of a ‘continuing course of 2
conduct’ . . . there must be evidence of the breach of a 3
duty that remained in existence after commission of the 4
original wrong related thereto.” Fichera v. Mine Hill 5
Corp., 207 Conn. 204, 209 (1988). A plaintiff can show a 6
“duty that remained in existence” by establishing: (A) “a 7
special relationship between the parties giving rise to such 8
a continuing duty,” or (B) “some later wrongful conduct of a 9
defendant related to the prior act.” Id. at 209-10. 10
11
A 12
ISG’s conclusory claim that BankHouse’s “superior 13
knowledge, skill and expertise” and acceptance of ISG’s 14
funds created a fiduciary bond with Ness is not a plausible 15
allegation of a “special relationship between the parties” 16
giving rise to a continuing duty. Id. at 210; see First Am. 17
Compl. ¶ 14. The Connecticut Supreme Court recognizes that 18
“not all business relationships implicate the duty of a 19
fiduciary,” and that “certain relationships, as a matter of 20
law, do not impose upon either party the duty of a 21
fiduciary.” Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 22
13

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Conn. 20, 38 (2000). Because the present suit is against 1
Ness in his personal capacity, the inquiry must focus on 2
ISG’s dealings with Ness rather than its dealings with other 3
BankHouse agents, or with the firm itself. 4
ISG does not allege that Ness had any role in the 5
solicitation of ISG’s investment, First Am. Compl. ¶ 13, or 6
that he presented himself as an investment manager. ISG 7
merely claims that “from time to time” Ness “held himself 8
out as having experience and expertise in financial and 9
investment matters.” First Am. Compl. ¶ 4. Nor does ISG 10
claim that Ness offered to perform a key role in its 11
investing relationship with BankHouse or that he purported 12
to have superior knowledge about investments made by 13
BankHouse or ISG. See Beverly Hills Concepts, Inc. v. 14
Schatz & Schatz, Ribicoff & Kotkin, 247 Conn. 48, 57 (1998). 15
Absent a representation that Ness had “superior knowledge, 16
skill or expertise” or that he “sought the plaintiff’s 17
special trust,” there can be no breach of fiduciary duty 18
under Connecticut law. Id. Whether or not BankHouse owed a 19
fiduciary duty to ISG, Ness’s fiduciary duties--if any--ran 20
to BankHouse by virtue of his officership. See First Am. 21
Compl. ¶ 11. 22
14

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1
B 2
ISG has also not plausibly alleged that tolling is 3
warranted on account of “some later wrongful conduct . . . 4
related to the prior act” by Ness. Fichera, 207 Conn. at 5
210. Conclusory allegations are made about BankHouse and 6
its “employees and agents,” but the only alleged 7
misrepresentations attributed to Ness after 1999 are stray 8
remarks from the August 2001 Fax, most notably that “We are 9
proceeding with first steps of litigation.” (Ness’s failure 10
to inform ISG of the repose period cannot establish a course 11
of conduct because, as discussed above, Ness had no special 12
relationship with ISG.) 13
A single-page, handwritten fax sent twenty months after 14
any other alleged misrepresentation by Ness does not 15
plausibly link up to form a continuous course of conduct. 16
If a plaintiff’s miscellaneous, discontinuous interactions 17
with a defendant over an extended period of time alone 18
justified tolling, it “would render the repose part of [a] 19
statute of limitations a nullity,” Nieves v. Cirmo, 67 Conn. 20
App. 576, 587 (App. Ct. 2002), and “would, in effect, allow 21
the plaintiff to acquiesce in the defendant’s conduct for as 22
15

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long as convenient to the plaintiff, contrary to one of the 1
purposes of statutes of limitations, which is to prevent the 2
unexpected enforcement of stale claims concerning which the 3
persons interested have been thrown off their guard by want 4
of prosecution,” Rivera, 45 Conn. Supp. at 160 (internal 5
quotation marks omitted). 6
Moreover, Ness’s fax was not unprompted: It was 7
apparently in response to an inquiry by ISG. App. at 164 8
(reflecting Ness’s assurance that he “[d]iscussed [ISG’s] 9
letter with Jim [Pomeroy]”). A plaintiff does not have a 10
unilateral option to extend the repose period of its claims 11
merely by making an inquiry that can be expected to elicit a 12
reply. Cf. Sanborn v. Greenwald, 39 Conn. App. 289, 297 13
(App. Ct. 1995) (“A plaintiff should not be allowed to keep 14
a legal malpractice action alive after the lawyer-client 15
relationship has ended by telephoning the attorney every 16
three years to obtain verification that something the 17
attorney had drafted previously would not cause the 18
plaintiff harm.”). 19
20
II 21
ISG argues that even if its claims were untimely, Ness 22
16

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should be equitably estopped from asserting a repose defense 1
because he discouraged ISG from pursuing its remedies. Ness 2
cites our dicta concerning the unavailability of equitable 3
tolling under Conn. Gen. Stat. § 52-577 as establishing a 4
“well-settled” principle that equitable estoppel is 5
inapplicable as well. Ness Br. at 11; Gerena v. Korb, 617 6
F.3d 197, 206 (2d Cir. 2010). But that argument ignores the 7
differences between equitable tolling and equitable 8
estoppel. See Bennett v. United States Lines, 64 F.3d 62, 9
65-66 (2d Cir. 1995). In any event, a recent Connecticut 10
Appellate Court case indicates that equitable estoppel may 11
be available under § 52-577. See Coss v. Steward, 126 Conn. 12
App. 30, 41-45 (App. Ct. 2011). 13
Equitable estoppel in Connecticut has two elements: (1) 14
“the party against whom estoppel is claimed must do or say 15
something calculated or intended to induce another party to 16
believe that certain facts exist and to act on that belief”; 17
and (2) “the other party must change its position in 18
reliance on those facts, thereby incurring some injury.” 19
Connecticut Nat’l Bank v. Voog, 233 Conn. 352, 366 (1995) 20
(internal quotation marks omitted). “[A] person who claims 21
an estoppel must show that he has exercised due diligence to 22
17

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know the truth, and that he not only did not know the true 1
state of things but also lacked any reasonably available 2
means of acquiring knowledge.” Id. at 367 (internal 3
quotation marks omitted). 4
ISG has not plausibly alleged that it exercised due 5
diligence or changed its position based on Ness’s 6
representations. The August 2001 Fax was vague, cursory, 7
informal, and otherwise without indicia of reliability. A 8
diligent party would not have depended on it, at least not 9
without demanding reliable confirmation. Moreover, the (at 10
least) twenty-month gap between the fax and Ness’s previous 11
alleged misrepresentations defeat any claim that ISG relied 12
upon Ness for periodic status updates to assess whether to 13
forbear bringing suit. (To the contrary, ISG was relying on 14
Pappalardo to execute its recovery efforts through the power 15
of attorney it granted him.) 16
Under Connecticut law, ISG’s knowledge by June 2000 17
that its funds were dissipated necessarily informed it that 18
Ness’s earlier representations were untrue. First Am. 19
Compl. ¶¶ 29, 32, 36. ISG’s credulous faith in Ness’s 20
subsequent assurances fell well short of diligence; 14 there 21
14 ISG argues that the district court improperly found
facts concerning (inter alia) ISG’s sophistication, and
18

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is “no reason to encourage investors who suspect something 1
amiss to rely solely on their [advisor’s] advice and to 2
refrain from seeking outside advice.” Piteo v. Gottier, 112 3
Conn. App. 441, 449 (App. Ct. 2009). ISG “cannot seek the 4
safe harbor of equitable estoppel due to [its] own failure 5
to recognize that [it] w[as] required to pursue [its] 6
action.” Celentano v. Oaks Condo. Ass’n, 265 Conn. 579, 615 7
(2003). 8
9
For the foregoing reasons, the judgment of the district 10
court is affirmed. 11
prematurely required it to prove due diligence. Since the
record supports no plausible inference of due diligence
(without regard to ISG’s level of sophistication), these
arguments need not be reached.
19

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