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This is an appeal from a final judgment entered in the United States District Court for the Southern District of New York (Stanton, J.), dismissing on the pleadings a diversity action brought by plaintiff-appellant AmBase Corporation ("AmBase") against defendants-appellees for indemnification of legal expenses incurred in a tax dispute with the Internal Revenue Service ("IRS"). This dispute concerned certain tax liabilities that allegedly were assumed by the predecessor corporation of defendant-appellee City Investing Company Liquidating Trust (the "Trust"). The District Court dismissed the complaint upon a finding that the express contractual indemnification claim pleaded therein failed to state a claim upon which relief could be granted and that the restitution, unjust enrichment, implied contract, and breach of fiduciary duty claims were time barred by New York's statute of limitations. The District Court further denied AmBase leave to amend its complaint because the breach of contract and breach of third-party beneficiary contract claims AmBase sought to add in its amended complaint were also time barred.

This is AmBase's second bite at the litigation apple, its first bite having been taken in an action filed in the Delaware Chancery Court, see AmBase Corp. v. City Inv. Co. Liquidating Trust, 2001 WL 167698, CA No. 18207-NC (Del. Ch.2001) ("Delaware Action"), which was dismissed as time barred by Delaware's shorter statute of limitations. For the reasons that follow, we conclude that AmBase's claims are barred as a matter of law by the doctrine of res judicata. Accordingly, we affirm the judgment of the District Court without reaching the merits of whether AmBase's various claims either fail to state a claim upon which relief can be granted or are time barred.


326 F.3d 63 (2003)

AMBASE CORPORATION, A Delaware Corporation, Plaintiff-Appellant,


CITY INVESTING COMPANY LIQUIDATING TRUST, as successor to City Investing Company, a dissolved Delaware Corporation, John J. Quirk, Trustee of City Investing Company Liquidating Trust, and Marion Scharffenberger, Executrix of the Estate of George T. Scharffenberger, Eben W. Pyne, Individually and as Trustee of the City Investing Company Liquidating Trust, Lester J. Mantell, Individually and as Trustee of the City Investing Company Liquidating Trust, Defendants-Appellees.

Docket No. 02-7230.

United States Court of Appeals, Second Circuit.

Argued: November 7, 2002.

Decided: April 3, 2003.

New York Law School location: File #3127, Box #146