189 F.3d 461 (2nd Cir. 1999), 98-9528, Levy v. Alliance Capital Management L.P.

Docket Nº:98-9528.
Citation:189 F.3d 461
Party Name:Elliott A. LEVY, Plaintiff-Appellant, v. ALLIANCE CAPITAL MANAGEMENT L.P., Equitable Life Assurance Society of the United States and the Hudson River Trust, Defendants-Appellees.
Case Date:August 20, 1999
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 461

189 F.3d 461 (2nd Cir. 1999)

Elliott A. LEVY, Plaintiff-Appellant,

v.

ALLIANCE CAPITAL MANAGEMENT L.P., Equitable Life Assurance Society of the United States and the Hudson River Trust, Defendants-Appellees.

No. 98-9528.

United States Court of Appeals, Second Circuit

August 20, 1999

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA2 s 0.23 regarding use of unpublished opinions)

Appeal from the United States District Court for the Southern District of New York (Denny Chin, Judge ).

For Appellant: PAUL D. WEXLER and GREGORY A. BLUE, Bragar Wexler Eagel & Morgenstern, New York, N.Y.

For Appellees: JAMES H.R. WINDELS, Davis Polk & Wardwell, New York, N.Y. for appellee Alliance Capital Management L.P., and JOHN D. DONOVAN, JR., Ropes & Gray, Boston, MA, for appellees The Hudson River Trust. RICHARD A. ROSEN, Paul, Weiss, Rifkind, Wharton & Garrison, New York, N.Y., for Equitable Life Assurance Society of the United States.

PRESENT: HON. GUIDO CALABRESI, HON. ROBERT D. SACK, HON. SONIA SOTOMAYOR, Circuit Judges.

UPON DUE CONSIDERATION, it is ORDERED, ADJUDGED, AND DECREED that the judgment of the district court be and hereby is AFFIRMED.

Elliott Levy ("Appellant" "Levy") appeals from orders of the United States District Court for the Southern District of New York (Denny Chin, Judge ) dismissing his complaint against Alliance Capital Management L.P. ("Alliance"), Equitable Life Assurance Society of the United States ("Equitable"), and The Hudson River Trust ("Trust") for failure to state a claim upon which relief can be granted. Levy's action was brought under § 36(b) of the Investment Company Act ("ICA"). We affirm the district court.

BACKGROUND

We review de novo a district court's decision to dismiss a complaint under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. See Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir.1998). We must accept the factual allegations in the complaint as true. See id. A complaint should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)) (internal quotation marks omitted). "The issue is not whether a...

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