Shaev v. Hampel

74 F. App'x 154

• Court: Court of Appeals for the Second Circuit
• Decided: September 17, 2003
• Docket: No. 02-9453
• Status: Published

Opinion

SUMMARY ORDER

Plaintiff-Appellant Victoria Shaev appeals from district court rulings granting defendants’ motion to dismiss her amended complaint, and denying her motions to allow discovery and to enlarge the record. Shaev alleges that a proxy statement issued by the defendants on March 8, 1999, violated Section 14(a) of the Securities Exchange Act of 1934, 15 U.S.C. § 78n(a), and Rule 14a-9, promulgated thereunder, 17 C.F.R. § 240.14a-9, by making material misstatements and omissions as to the number of shares available under a proposed stock incentive plan, and by failing to provide a Black-Scholes estimate of the plan’s cost. Further, she contends that the district court abused its discretion: (1) in denying her motion to allow discovery on the issue of whether reasonable estimates of these figures were available to the defendants when they disseminated the proxy statement; and (2) in excluding the report of an independent proxy statement review firm from the record.

The district court acted well within its discretion in denying the plaintiffs motions to allow discovery and to enlarge the record. We also agree with the court below that our decision in Resnik v. Swartz, et al., 308 F.3d 147 (2d Cir.2002), requires that the plaintiffs amended complaint be dismissed under Fed.R.Civ.P. 12(b)(6). We need not, therefore, reach the other questions raised by this appeal.¹

We have considered all of the appellant’s arguments and found them to be without merit. Accordingly, for substantially the reasons stated by the district court, we AFFIRM.

1 . Thus, we need not decide whether plaintiff's complaint could also be dismissed for failure to make a demand on Alcoa’s Board of Directors, nor whether plaintiff's complaint was pleaded with sufficient particularity.