Greenberg v. Malkin
Opinion of the Court
SUMMARY ORDER
AFTER ARGUMENT AND UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the District Court is hereby AFFIRMED.
Plaintiffs-appellants Arnold E. Green-berg and Jay H. Koppel appeal from various pre-and post-trial rulings and from a September 28, 2000 judgment for defendants following a jury trial, all entered in the United States District Court for the Southern District of New York (Harold Baer, Jr., Judge, and Robert L. Carter, Judge ).
On this appeal, plaintiffs claim that the District Court erred in its instructions to the jury on plaintiffs’ claims for breach of fiduciary duty and for violation of provisions of the Securities and Exchange Commission’s “anti-bundling” rule, 17 C.F.R. §§ 240.14a-4(a)(3), (b)(1). However, we need not reach the merits of these arguments. Any error in the instructions was harmless, because plaintiffs failed to present evidence sufficient to establish causation. See, e.g., LNC Invs., Inc. v. First Fidelity Bank, N.A., 173 F.3d 454,
Plaintiffs also challenge the District Court’s post-trial ruling against them on their equitable claim for unjust enrichment. While not set forth as a separate argument, a corresponding challenge appears to be made to the sufficiency of the evidence supporting the jury verdict on the other claims. If these arguments are construed as challenges to the weight of the evidence supporting the District Court’s findings and/or the jury verdict, we lack appellate jurisdiction. De Falco v. Bernas, 244 F.3d 286, 325 (2d Cir.) (citing Stonewall Ins. Co. v. Asbestos Claims Mgmt. Corp., 73 F.3d 1178, 1199 (2d Cir. 1995), modified on other grounds, 85 F.3d 49 (2d Cir. 1996)), cert. denied sub nom. Dirie v. De Falco, — U.S. -, 122 S.Ct. 207, 151 L.Ed.2d 147 (2001). If, on the other hand, the arguments are viewed as challenges to the legal sufficiency of the evidence, we review for abuse of discretion and we need merely find that there was sufficient evidence from which the jury could have reached its verdict (or, in the case of the unjust enrichment claim, from which the District Court could have reached its conclusion). Id. at 325-26. Based on our review of the trial record, we conclude that this threshold has been met.
The District Court’s dismissal of plaintiffs’ fraud claims does not constitute reversible error. In August 1999, the District Court dismissed Koppel’s fraud claim for the first time, and we agree with the reasoning set forth in the District Court’s opinion. Koppel v. 4987 Corp., 1999 WL at *3-4. One year later, shortly before trial, the District Court requested a consolidated complaint, encompassing all surviving claims from the separate complaints of Koppel and Greenberg. Plaintiffs submitted a consolidated complaint that added back Koppel’s previously-dismissed fraud claim. The District Court’s request for a consolidated complaint, though, was not an invitation to ignore its prior rulings. The District Court properly enforced its request by excising Koppel’s previously-dismissed fraud claim from the consolidated complaint.
The District Court also properly dismissed plaintiffs’ cause of action for “fraudulent scheme,” the elements of which purportedly are (1) the accomplishing of a lawful purpose (2) by unlawful means. New York does not recognize such a cause of action. At most, the cases on which plaintiffs rely—an 1882 decision of the New York State Court of Appeals, Rich v. New York Cent. & Hudson River R.R. Co., 87 N.Y. 382 (1882), and two decisions citing Rich, Albemarle Theatre, Inc. v. Bayberry Realty Corp., 27 A.D.2d 172, 277 N.Y.S.2d 505 (1st Dep’t 1967) and North Shore Bottling Co. v. C. Schmidt & Sons, Inc., 22 N.Y.2d 171, 292 N.Y.S.2d 86, 239 N.E.2d 189 (1968)—recognize that a contractual relationship sometimes gives rise to a legal common law duty extraneous to the contract, Albemarle, 27 A.D.2d at 177, 277 N.Y.S.2d at 511, the intentional violation of which may constitute a tort. None of the cited cases identify an independent cause of action for “fraudulent scheme,” as defined by plaintiffs. Indeed, plaintiffs’ claim appears to be simply a repackaging of the same allegations made in their other causes of action. The District Court did not err in dismissing this claim.
Plaintiffs’ remaining arguments also lack merit. The District Court did not abuse its broad discretion in precluding expert witnesses from both plaintiffs and defendants on the issue of the methodology used in the “Consensus Report” and in limiting the scope of the testimony of a fact witness on that same issue. See generally E.R. Squibb & Sons, Inc. v. Lloyd’s & Cos., 241 F.3d 154, 167 (2d Cir. 2001); Olin Corp. v. Ins. Co. of N. Am., 221 F.3d 307, 319 (2d Cir. 2000) (“[E]ven an erroneous evidentiary ruling will not lead to reversal unless affirmance would be inconsistent with substantial justice.” (internal quotation marks omitted)). While we might find error in the District Court’s limitation of plaintiffs’ proof of damages, any such error was harmless in light of plaintiffs’ inability to establish defendants’ liability. We also find no abuse of discretion in the District Court’s denial of plaintiffs’ motions for leave to amend their complaint, which were made after the filing of summary judgment motions and again at trial. See Grace v. Rosenstock, 228 F.3d 40, 53-54 (2d Cir. 2000), cert. denied, 532 U.S. 923, 121 S.Ct. 1362, 149 L.Ed.2d 290 (2001); Commander Oil Corp. v. Bario Equip. Corp., 215 F.3d 321, 333 (2d Cir.), cert. denied, 531 U.S. 979, 121 S.Ct. 427, 148 L.Ed.2d 436 (2000); Cahill v. O’Donnell, 75 F.Supp.2d 264, 279 (S.D.N.Y. 1999) (“Our Circuit has consistently found prejudice and denied amendments where discovery has already been completed and summary judgment motions have been filed.”). Lastly, we find no abuse of discretion in the District Court’s denial of plaintiffs’ motion to compel production of documentary discovery, some of which was plainly irrelevant or privileged, and some of which was duplicative of previously produced material. See generally United States v. Yonkers
We have examined all of the plaintiffs’ contentions and find them to be without merit. For the reasons set forth, the judgment of the District Court is hereby AFFIRMED.
Several months before trial, Judge Carter recused himself and the case was reassigned to Judge Baer.
Reference
- Full Case Name
- Arnold E. GREENBERG and Jay H. Koppel v. Peter L. MALKIN, Stanley Katzman, John L. Loehr, Wien, Malkin & Bettex, Donald A. Bettex, Martin D. Newman, 4987 Corporation and 498 Seventh Avenue Associates, DefendantsAppellees, Garment Capitol Associates, Nominal-Defendant-Appellant
- Cited By
- 2 cases
- Status
- Published