Zaerpour v. Bank of America Corp.

Opinion

23-845 Zaerpour v. Bank of America Corp.

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 TO 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 9th day of May, two thousand twenty-four.

PRESENT:

DENNIS JACOBS, RICHARD J. SULLIVAN, WILLIAM J. NARDINI,

Circuit Judges.

_____________________________________

SOHEIL ZAERPOUR,

Plaintiff-Appellant,

v. No. 23-845

BANK OF AMERICA CORPORATION, BANK OF AMERICA, N.A., BARCLAYS BANK PLC, BARCLAYS PLC, BNP PARIBAS GROUP, BNP PARIBAS USA, INC., BNP PARIBAS S.A., BNP

PARIBAS SECURITIES CORP., CITIGROUP, INC., CITIBANK N.A., CITIGROUP GLOBAL MARKETS INC., CREDIT SUISSE GROUP AG, CREDIT SUISSE INTERNATIONAL, CREDIT SUISSE SECURITIES (USA) LLC, DEUTSCHE BANK AG, DEUTSCHE BANK SECURITIES INCORPORATED, THE GOLDMAN SACHS GROUP INC., GOLDMAN, SACHS & CO. LLC, HSBC HOLDINGS PLC, HSBC BANK PLC, HSBC NORTH AMERICA HOLDINGS, INC., HSBC BANK USA, N.A., HSBC SECURITIES (USA) INC., J.P. MORGAN BANK & CO., J.P. MORGAN CHASE BANK, N.A., J.P. MORGAN SECURITIES LLC, MERRILL LYNCH PIERCE FENNER & SMITH, INC., MUFG BANK, LTD., MUFG SECURITIES AMERICAS INC., MORGAN STANLEY, MORGAN STANLEY & CO., LLC, MORGAN STANLEY & CO. INTERNATIONAL, PLC, NATWEST MARKETS SECURITIES INC., RBC CAPITAL MARKETS, LLC, ROYAL BANK OF CANADA, ROYAL BANK OF SCOTLAND PLC, SG AMERICAS SECURITIES LLC, SOCIETE GENERALE S.A., STANDARD CHARTERED BANK, STANDARD CHARTERED SECURITIES (NORTH AMERICA) INC., UBS AG, UBS SECURITIES LLC,

Defendants-Appellees. *

_____________________________________

For Plaintiff-Appellant: SOHEIL ZAERPOUR, pro se, Clifton, NJ.

For Defendants-Appellees Jeffrey J. Resetarits, Shearman & Sterling Bank of America LLP, New York, NY. Corporation, Bank of

* The Clerk of Court is respectfully directed to amend the official case caption as set forth above.

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America, N.A., and Merrill Lynch, Pierce, Fenner & Smith, Inc.:

For Defendants-Appellees Matthew A. Schwartz, Sullivan & Barclays Bank PLC and Cromwell LLP, New York, NY. Barclays PLC:

For Defendants-Appellees David C. Esseks, Rebecca Ann Cecchini, BNP Paribas Group, BNP Allen & Overy LLP, New York, NY. Paribas USA, Inc., BNP Paribas S.A., and BNP Paribas Securities Corp.:

For Defendants-Appellees Andrew A. Ruffino, Covington & Burling Citigroup, Inc., Citibank LLP, New York, NY. N.A., and Citigroup Global Markets, Inc.:

For Defendants-Appellees Herbert S. Washer, David G. Credit Suisse Group AG, Januszewski, Jason M. Hall, Miles Wiley, Credit Suisse Cahill Gordon & Reindel LLP, New York, International, and Credit NY. Suisse Securities (USA) LLC:

For Defendants-Appellees Alexander Kazam, King & Spalding LLP, Deutsche Bank AG and Washington, DC. Deutsche Bank Securities Incorporated:

For Defendants-Appellees Rishi Zutshi, Cleary Gottlieb Steen & The Goldman Sachs Hamilton LLP, New York, NY. Group Inc. and Goldman, Sachs & Co. LLC:

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For Defendants-Appellees J. Matthew Goodin, Julia C. Webb, Locke HSBC Holdings PLC, Lord LLP, Chicago, IL, Roger B. Cowie, HSBC Bank PLC, HSBC Locke Lord LLP, Dallas, TX. North America Holdings, Inc., HSBC Bank USA, N.A., and HSBC Securities (USA) Inc.:

For Defendants-Appellees Boris Bershteyn, Skadden, Arps, Slate, J.P. Morgan Bank & Co., Meagher & Flom LLP, New York, NY. J.P. Morgan Chase Bank, N.A., and J.P. Morgan Securities LLC:

For Defendants-Appellees Joseph J. Bial, Paul, Weiss, Rifkind, MUFG Bank, Ltd. and Wharton & Garrison LLP, Washington, MUFG Securities DC. Americas Inc.:

For Defendants-Appellees Jonathan M. Moses, Justin L. Brooke, Morgan Stanley, Morgan Wachtell, Lipton, Rosen & Katz, New Stanley & Co., LLC, and York, NY. Morgan Stanley & Co. International, PLC:

For Defendants-Appellees Paul S. Mishkin, Davis Polk & Wardwell Natwest Markets LLP, New York, NY. Securities Inc. and Royal Bank of Scotland PLC:

For Defendants-Appellees Mark A. Nebrig, James P. McLoughlin, RBC Capital Markets, LLC Jr., Moore and Van Allen PLLC, and Royal Bank of Canada: Charlotte, NC.

For Defendants-Appellees James R. Warnot, Jr., Patrick C. Ashby, SG Americas Securities Nicole E. Jerry, Linklaters LLP, New

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LLC and Societe Generale York, NY, Adam S. Lurie, Linklaters LLP, S.A.: Washington, DC.

For Defendants-Appellees Marc J. Gottridge, Herbert Smith Freehills Standard Chartered Bank New York LLP, New York, NY. and Standard Chartered Securities (North America) Inc.:

For Defendants-Appellees Eric J. Stock, Seth M. Rokosky, Gibson, UBS AG and UBS Dunn & Crutcher LLP, New York, NY. Securities LLC:

Appeal from a judgment of the United States District Court for the Southern

District of New York (Laura Taylor Swain, Chief Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the May 4, 2023 judgment of the district court

is AFFIRMED.

Soheil Zaerpour, proceeding pro se, appeals from a judgment of the district

court dismissing his latest attempt to sue more than a dozen banking groups for

conspiring to sabotage his trades by manipulating the foreign exchange market.

After Zaerpour’s first three lawsuits were dismissed, he filed the original

complaint in this action, which purported to incorporate by reference a pleading

from one of his prior suits. The district court dismissed the original complaint but

granted Zaerpour leave to amend. Zaerpour then filed an amended complaint –

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the operative complaint here – which the district court dismissed as frivolous

without leave to amend. This appeal followed. We assume the parties’ familiarity

with the underlying facts, procedural history, and issues on appeal, to which we

refer only as necessary to explain our decision. 1

Although we construe pro se pleadings “liberally,” we do “not excuse

frivolous or vexatious filings by pro se litigants.” Tristman v. Fed. Bureau of Prisons,

470 F.3d 471, 477 (2d Cir. 2006) (internal quotation marks omitted). An action is

frivolous when “the factual contentions are clearly baseless, such as when

allegations are the product of delusion or fantasy,” or when “the claim is based on

an indisputably meritless legal theory.” Livingston v. Adirondack Beverage Co., 141

F.3d 434, 437 (2d Cir. 1998) (internal quotation marks omitted). Although we have

not yet decided whether we review the dismissal of a frivolous complaint de novo

or for abuse of discretion, we need not decide that question here because the

district court’s decision “easily passes muster under the more rigorous de novo

review.” Tewari v. Sattler, No. 23-36, 2024 WL 177445, at *1 (2d Cir. Jan. 17, 2024)

1 Zaerpour moves for permission to file a reply brief and a supplemental appendix, the latter of

which contains newspaper articles and other documents referencing spurious conspiracy theories. The request to file a supplemental appendix is denied because these documents were not part of the record below and cannot be filed in an appendix. See Fed. R. App. P. 30(a)(1)(A)– (D). The motion is granted, however, with respect to his reply brief, which was otherwise timely filed. See Fed. R. App. P. 28(c), 31(a)(1).

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(quoting Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 364 n.2 (2d Cir.

2000)).

In his amended complaint, Zaerpour alleged that the “banking cartel” had

violated a variety of federal laws – including “securities laws,[] computer crimes,

and anti[]trust laws, and possibly others” – by manipulating the foreign exchange

market against him so that he consistently lost money on his trades. Supp. App’x

at 199, 202. According to Zaerpour, “[t]he reason [he] know[s] this is” because “all

[his] trades became predictive of all [foreign exchange] market movements at large

for the entire duration of [his foreign exchange] trading activity.” Id. at 202.

Zaerpour went on to explain that the banks have so far gone unpunished due to

“corruption” at the Department of Justice. Id. While Zaerpour contended that his

account statements would prove these conspiracy allegations, he did not attach

those statements to his amended complaint or describe them in any detail.

We affirm the dismissal of Zaerpour’s amended complaint as frivolous. His

allegations that his trades somehow “predict[ed]” the entire foreign exchange

market, id., – and that his trading efforts were thwarted due to a banking

conspiracy – lack any basis in fact or law. See Livingston, 141 F.3d at 437. Indeed,

Zaerpour’s amended complaint provides no specific facts whatsoever on how this

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supposed conspiracy unfolded or how he was targeted by the banks. See Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (explaining that we need not credit “legal

conclusion[s] couched as . . . factual allegation[s]” (internal quotation marks

omitted)). And even if we generously construe his complaint as bringing claims

under various statutes, his conclusory allegations fail to state a claim under any

cognizable legal theory. For instance, Zaerpour alleged no specific facts that could

plausibly suggest that the banks conspired with one another or engaged in a

pattern of racketeering activity. See Anderson News, L.L.C. v. Am. Media, Inc., 680

F.3d 162, 184 (2d Cir. 2012) (explaining that a plausible claim for conspiracy must

plead facts suggesting “that an agreement was made” (internal quotation marks

omitted)); Tapia-Ortiz v. Winter, 185 F.3d 8, 11 (2d Cir. 1999) (“The complaint’s

conclusory, vague, and general allegations of a criminal conspiracy do not

therefore suffice to establish that the defendants participated in a ‘pattern of

racketeering activity’ as prohibited by [the Racketeer Influenced and Corrupt

Organizations Act].” (quoting 18 U.S.C. § 1962)). Nor do Zaerpour’s conclusory

allegations support a claim for securities fraud or market manipulation. See Set

Cap. LLC v. Credit Suisse Grp. AG, 996 F.3d 64, 75 (2d Cir. 2021) (discussing the

“heightened pleading requirements” for securities fraud claims, including that

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plaintiff must identify the specific statements that were fraudulent); id. at 76

(stating that plaintiff must identify the manipulative acts in order to plead a

market manipulation claim under Section 10(b) of the Exchange Act).

We likewise affirm the denial of leave to amend Zaerpour’s complaint.

Although district courts generally grant pro se plaintiffs leave to amend a

complaint, that leave may be denied when a plaintiff has already been given an

opportunity to amend. See Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988).

Zaerpour has already had one chance to do so in this litigation, not to mention the

various other opportunities to replead that he received by virtue of his three prior

lawsuits.

We have considered Zaerpour’s remaining arguments and find them

equally without merit. Accordingly, we AFFIRM the judgment of the district

court.

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