Michael Bandler, MB & Co. v. BPCM NYC, Ltd.
Opinion
SUMMARY ORDER
Michael Bandler, who filed a brief pro se, and MB & Co. Ltd., through counsel, appeal from so much of the final judgment as granted defendants’ motion for partial summary judgment on plaintiffs’ claims for breach of contract, conversion, and civil conspiracy. BPCM NYC and related entities (“BPCM”) cross-appeal the denial of their motion for sanctions. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
As an initial matter, Bandler moves for leave to file an amended brief or, alternatively, for the Court to consider arguments raised for the first time in his reply brief, and to file an untimely reply declaration in support of this motion. We grant Ban-dler’s motion to file an untimely reply declaration in support of his motion, but we deny the motion for leave to file an amended brief or for consideration of arguments raised for the first time in his reply brief, because consideration of such belated ar *72 guments would prejudice BPCM. Cf. Harris, Albany Cty. Office (In re Harris), 464 F.3d 263, 268 n. 3 (2d.Cir. 2006).
We review de novo an order granting summary judgment, Feingold v. New York, 366 F.3d 138, 148 (2d Cir. 2004), which shall be granted “if the movant shows that there is no genuine, dispute as to any material fact and the movant is entitled to a judgment as a matter of law,” Fed.R.Civ.P. 56(a). When the opposing party bears the burden of proof at trial, summary judgment should be granted if the moving party “can point to an absence of evidence to support an essential element of the nonmoving party’s claim.” Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). The court draws all inferences in favor of the nonmovant, but,' “[w]here the moving party demonstrated the absence of a genuine issue of material fact, the opposing party must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.” Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 44 (2d Cir. 2015) (quoting Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011)). We review a district court’s denial of sanctions for abuse of discretion. Perez v. Posse Comitatus, 373 F.3d 321, 326 (2d Cir. 2004).
Upon review, we conclude that the district court properly granted BPCM partial summary judgment and did not abuse its discretion in denying BPCM’s motion for sanctions. We affirm for substantially the reasons stated by the district court in its September 29, 2014 order. We have considered all of the parties’ arguments for reversal and find them to be without merit.
We grant BPCM’s motion for the costs of the supplemental appendix because Bandler did not comply with Rule 30(b) of the Federal Rules of Appellate Procedure and the material in the supplemental appendix was relevant. For the same reasons, we deny Bandler’s motion for sanctions.
Accordingly, we AFFIRM the judgment of the district court, DENY Bandler’s motions to amend his brief and for sanctions, and GRANT Bandler’s motion to file an untimely reply and BPCM’s motion for costs.
Reference
- Full Case Name
- MICHAEL BANDLER, MB & CO. LTD., Dba Michael Bandler and Company, Plaintiffs-Counterclaim Defendants-Appellants-Cross-Appellees, v. BPCM NYC, LTD., BPCM Worldwide, Ltd., BPCM LA, Ltd., Blue Stripe, Ltd., Carrie Ellen Phillips, Vanessa Von Bismarck, Ali Froley, Laura Woodward, Defendants-Counter Claimants-Appellees-Cross-Appellants
- Cited By
- 5 cases
- Status
- Unpublished