12-1420 Bice v. Robb



### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED**
**ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W**  **HEN CITING A SUMMARY ORDER IN A**
**DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX 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 .**  **At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 14 th** **day of February, two thousand thirteen.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **Chief Judge ,**  7 **AMALYA L. KEARSE,** 8 **SUSAN L. CARNEY,** 9 **Circuit Judges**

**.** 10 11 - - - - - - - - - - - - - - - - - - - -X 12 **ELIZABETH ROBB BICE, CLARE ROBB WENK,** 13 **EDWARD ROBB, BARBARA ROBB,** 14 **Plaintiffs-Appellant s,**  15 16 **-v.- 12-1420** 17 18 **GEORGE E. ROBB, JR.,** 19 **Defendant-Appellee**

**.** 20 - - - - - - - - - - - - - - - - - - - -X 21 22 **FOR APPELLANTS:** JOHN M. BRICKMAN (Todd H. 23 Hesekiel and Benjamin S. Kaplan, 24 on the brief ), Ackerman, Levine, 25 Cullen, Brickman & Limmer, LLP, 26 Great Neck, New York. 27 28

1**FOR APPELLEE:** JAMES A. GOOLD (Laura M. Flahive 1 Wu, Covington & Burling LLP, New 2 York, New York, on the brief ; 3 Rosemarie Paine, Jacobs & Dow 4 LLC, New Haven, Connecticut, on 5 the brief ), Covington & Burling 6 LLP, Washington, D.C. 7 8 Appeal from a judgment of the United States District 9 Court for the Southern District of New York (Crotty, J. ). 10 11 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 12 **AND DECREED**that the judgment of the district court be 13
**AFFIRMED**

. 14 15 Elizabeth Robb Bice, Clare Robb Wenk, Edward Robb, and 16 Barbara Robb (the “siblings”) appeal from the judgment of 17 the United States District Court for the Southern District 18 of New York (Crotty, J. ), granting summary judgment in favor 19 of their older brother, George E. Robb, Jr. We assume the 20 parties’ familiarity with the underlying facts, the 21 procedural history, and the issues presented for review. 22 23 **1.** The district court properly granted summary judgment in 24 favor of George Jr. on the siblings’ three claims. As to 25 their claim for breach of contract, the siblings failed to 26 establish that any enforceable agreement actually existed, 27 as required under New York law. SeeEternity Global Master 28 Fund Ltd. v. Morgan Guar. Trust Co. of N.Y. , 375 F.3d 168, 29 177 (2d Cir. 2004). Even accepting that George Jr. promised 30 his father that he would “take care of the family,” such a 31 promise is far too indefinite and vague to be enforced. See 32 Dombrowski v. Somers , 41 N.Y.2d 858, 859 (1977)

. 33 34 As to the siblings’ claims premised on constructive 35 trust and unjust enrichment, such equitable remedies are 36 soundly within the district court’s discretion. In re 37 Flanagan , 503 F.3d 171, 179-80 (2d Cir. 2007). Because 38 there was no enforceable promise and because George Jr.’s 39 buyout of RPM Securities, Inc. (a New York Stock Exchange 40 specialist firm) was an arm’s-length transaction with the 41 senior management of RPM (including his father), the 42 district court did not abuse its discretion in refusing to 43 impose a constructive trust or order restitution for the 44 alleged unjust enrichment. 45 46

2**2.** The district court did not abuse its discretion in 1 ordering the siblings to produce certain documents they 2 claimed were privileged: emails between the siblings 3 considering their potential claims against George Jr. Such 4 documents are not attorney-client communications, because 5 counsel for the siblings was not actually a party to the 6 discussions. See United States v. Mejia , 655 F.3d 126, 131- 7 32 (2d Cir. 2011). Likewise, the documents are not 8 protected by the attorney work-product doctrine, because 9 (though they may have been created because of the prospect 10 of litigation) they are not the work product of an 11 individual acting as the siblings’ attorney. SeeUnited 12 States v. Adlman , 134 F.3d 1194, 1196 (2d Cir. 1998); see 13 also Hickman v. Taylor , 329 U.S. 495, 510 (1947); In re 14 Grand Jury Subpoenas Dated Mar. 19, 2002 & Aug. 2, 2002 , 318 15 F.3d 379, 383 (2d Cir. 2003)

. 16 17 **3.** Finally, the district court did not manifestly err in 18 refusing to consider the Langone declaration. A district 19 court “has wide discretion in punishing failure to conform 20 to the rules of discovery.” Outley v. City of New York , 837 21 F.2d 587, 590 (2d Cir. 1988). Here, the siblings sought 22 leave to submit the Langone declaration well after the close 23 of discovery and after the main briefs supporting and 24 opposing summary judgment had been filed. In any event, the 25 district court reasonably concluded that its content was too 26 remote and too speculative. 27 28 For the foregoing reasons, and finding no merit in the 29 siblings’ other arguments, we hereby **AFFIRM** the judgment of 30 the district court. 31 32 FOR THE COURT: 33 CATHERINE O’HAGAN WOLFE, CLERK 34 35

3