12-1420

Bice v. Robb

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED

ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A

DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST

SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 14th 4 day of February, two thousand thirteen.

5

6 PRESENT: DENNIS JACOBS,

7 Chief Judge,

8 AMALYA L. KEARSE,

9 SUSAN L. CARNEY,

10 Circuit Judges.

11

12 - - - - - - - - - - - - - - - - - - - -X

13 ELIZABETH ROBB BICE, CLARE ROBB WENK,

14 EDWARD ROBB, BARBARA ROBB, 

15 Plaintiffs-Appellants,

16

17 -v.- 12-1420

18

19 GEORGE E. ROBB, JR., 

20 Defendant-Appellee.

21 - - - - - - - - - - - - - - - - - - - -X

22

23 FOR APPELLANTS: JOHN M. BRICKMAN (Todd H.

24 Hesekiel and Benjamin S. Kaplan,

25 on the brief), Ackerman, Levine,

26 Cullen, Brickman & Limmer, LLP,

27 Great Neck, New York.

28

1
1 FOR APPELLEE: JAMES A. GOOLD (Laura M. Flahive

2 Wu, Covington & Burling LLP, New

3 York, New York, on the brief;

4 Rosemarie Paine, Jacobs & Dow

5 LLC, New Haven, Connecticut, on

6 the brief), Covington & Burling

7 LLP, Washington, D.C.

8

9 Appeal from a judgment of the United States District

10 Court for the Southern District of New York (Crotty, J.).

11

12 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

13 AND DECREED that the judgment of the district court be

14 AFFIRMED. 

15

16 Elizabeth Robb Bice, Clare Robb Wenk, Edward Robb, and

17 Barbara Robb (the “siblings”) appeal from the judgment of

18 the United States District Court for the Southern District

19 of New York (Crotty, J.), granting summary judgment in favor

20 of their older brother, George E. Robb, Jr. We assume the

21 parties’ familiarity with the underlying facts, the

22 procedural history, and the issues presented for review. 

23

24 1. The district court properly granted summary judgment in

25 favor of George Jr. on the siblings’ three claims. As to

26 their claim for breach of contract, the siblings failed to

27 establish that any enforceable agreement actually existed,

28 as required under New York law. See Eternity Global Master

29 Fund Ltd. v. Morgan Guar. Trust Co. of N.Y., 375 F.3d 168,

30 177 (2d Cir. 2004). Even accepting that George Jr. promised

31 his father that he would “take care of the family,” such a

32 promise is far too indefinite and vague to be enforced. See

33 Dombrowski v. Somers, 41 N.Y.2d 858, 859 (1977).

34

35 As to the siblings’ claims premised on constructive

36 trust and unjust enrichment, such equitable remedies are

37 soundly within the district court’s discretion. In re

38 Flanagan, 503 F.3d 171, 179-80 (2d Cir. 2007). Because

39 there was no enforceable promise and because George Jr.’s

40 buyout of RPM Securities, Inc. (a New York Stock Exchange

41 specialist firm) was an arm’s-length transaction with the

42 senior management of RPM (including his father), the

43 district court did not abuse its discretion in refusing to

44 impose a constructive trust or order restitution for the

45 alleged unjust enrichment. 

46

2
1 2. The district court did not abuse its discretion in

2 ordering the siblings to produce certain documents they

3 claimed were privileged: emails between the siblings

4 considering their potential claims against George Jr. Such

5 documents are not attorney-client communications, because

6 counsel for the siblings was not actually a party to the

7 discussions. See United States v. Mejia, 655 F.3d 126, 131-

8 32 (2d Cir. 2011). Likewise, the documents are not

9 protected by the attorney work-product doctrine, because

10 (though they may have been created because of the prospect

11 of litigation) they are not the work product of an

12 individual acting as the siblings’ attorney. See United

13 States v. Adlman, 134 F.3d 1194, 1196 (2d Cir. 1998); see

14 also Hickman v. Taylor, 329 U.S. 495, 510 (1947); In re

15 Grand Jury Subpoenas Dated Mar. 19, 2002 & Aug. 2, 2002, 318

16 F.3d 379, 383 (2d Cir. 2003). 

17

18 3. Finally, the district court did not manifestly err in

19 refusing to consider the Langone declaration. A district

20 court “has wide discretion in punishing failure to conform

21 to the rules of discovery.” Outley v. City of New York, 837

22 F.2d 587, 590 (2d Cir. 1988). Here, the siblings sought

23 leave to submit the Langone declaration well after the close

24 of discovery and after the main briefs supporting and

25 opposing summary judgment had been filed. In any event, the

26 district court reasonably concluded that its content was too

27 remote and too speculative.

28

29 For the foregoing reasons, and finding no merit in the

30 siblings’ other arguments, we hereby AFFIRM the judgment of

31 the district court.

32

33 FOR THE COURT:

34 CATHERINE O’HAGAN WOLFE, CLERK

35

3