Donna Ann Gabriele CHECHELE, Plaintiff-Appellant, v. W. Edward SCHEETZ, Defendant-Appellee, Morgans Hotel Group Co., Nominal Defendant-Appellee, 466 F. App'x 39

SUMMARY ORDER Donna Ann Gabriele Chechele (“Chechele”) appeals from the dismissal of her shareholder derivative complaint against nominal defendant Morgans Hotel Group Co. (“Morgans”) and its former President and CEO, W. Edward Scheetz (“Scheetz”), which sought to recover Scheetz’s profits from purchases and sales of Morgans stock within a six-month period. See Securities and Exchange Act of 1934 § 16(b), 15 U.S.C. § 78p(b).

We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review. ‘We review de novo the dismissal of a complaint under Rule 12(b)(6), accepting all factual allegations as true and drawing all reasonable inferences in favor of the plaintiff.” Hutchison v. Deutsche Bank Sec. Inc., 647 F.3d 479, 483-84 (2d Cir.2011) (internal quotation marks omitted). The district court declined to consider certain SEC filings, which were not incorporated into the complaint, for the truth of their assertions. This was not in error. See Roth v.

Jennings, 489 F.3d 499, 509 (2d Cir.2007) (“When a complaint alleges, for example, that a document filed with the SEC failed to disclose certain facts, it is appropriate for the court, in considering a Rule 12(b)(6) motion, to examine the document .... ‘only to determine what the doeument[] stated,’ and ‘not to prove the truth of [its] contents.’ ” (emphasis in original) (quoting Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir.1991))). Absent the SEC filings, the complaint’s allegations that Scheetz was part of an ownership group are entirely conclusory and cannot withstand Scheetz’s motion to dismiss.

See Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ”) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “We review denial of leave to amend under an abuse of discretion standard.” Hutchison, 647 F.3d at 490 (internal quotation marks omitted). Chechele failed to amend or move to amend her complaint within 21 days after Scheetz filed his Rule 12(b)(6) motion.

See Fed.R.Civ.P. 15(a)(1). While a court “should freely give leave [to amend] when justice so requires,” Fed.R.Civ.P. 15(a)(2), “[i]t is within the court’s discretion to deny leave to amend ... when [as here] leave is requested informally in a brief filed in opposition to a motion to dismiss.” In Re: Tamoxifen Citrate Antitrust Litig., 466 F.3d 187, 220 (2d Cir.2006); see also Porat v. Lincoln Towers Cmty.

Ass’n, 464 F.3d 274, 276 (2d Cir.2006) (per curiam) (“Especially given that plaintiffs counsel did not advise the district court how the complaint’s defects would be cured, upon all the facts of this case we find no abuse of discretion and decline to remand for repleading.”). Finding no merit in Chechele’s remaining arguments, we hereby AFFIRM the judgment of the district court.