1

09-4241-cv

Edmonds v. Seavey

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 Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

4 New York, on the 27 day of May, two thousand and ten. th

5

6 PRESENT: AMALYA L. KEARSE,

7 ROBERT D. SACK, 

8 RICHARD C. WESLEY,

9 Circuit Judges.

10

11 

12

13 JOHN L. EDMONDS, Individually and as a Managing General

14 Partner of Fifth and 106th Street Housing Company, Inc., 

15

16 Plaintiff-Counter-Defendant-Appellant,

17

18 CHARLES H. HILL ASSOCIATES, as a limited partner of Church

19 Home Associates, LP, a/k/a Charles H. Hill Associates, LP,

20

21 Plaintiffs,

22

23 -v.- 09-4241-cv

24

25 ROBERT W. SEAVEY, Individually and as a General Partner of

26 Fifth and 106th Street Associates, LP, AVERY B. SEAVEY,

27 Individually and as a General Partner of Logan Plaza

28 Associates, LP, and Church Home Associates, and Owner of

29 Dalton Management Company, LLC, RONALD DAWLEY, as Chief

30 Executive Officer of Dalton Management Company, LLC, DALTON

31 MANAGEMENT COMPANY, LLC, THE SEAVEY ORGANIZATION, NEAL B.

32 SEAVEY, Individually and as Owner, Manager and Member of
 The Clerk of the Court is respectfully directed to amend the official *

caption in this action to conform with that of this summary order. 

2

1 Dalton Management Company, LLC, PHYLLIS M. SEAVEY,

2 Individually and as Owner, Manager and Member of Dalton

3 Management Company, LLC, 

4

5 Defendants-Counter-Claimants-Appellees,

6

7 MARKS PANETH & SHRON, LLP, Auditors

8

9 Defendants-Appellees,

10

11 CHARLES HILL ASSOCIATES, CHARLES HILL ASSOCIATES, LP, as a

12 Limited Partner of Church Home Associates, LP, LOGAN PLAZA

13 ASSOCIATES, LP, 

14

15 Defendants. 

*

16 

17

18 FOR APPELLANT: M. DOUGLAS HAYWOODE, Law Office of M.

19 Douglas Haywoode, Brooklyn, NY. 

20

21 FOR APPELLEES 

22 ROBERT W. SEAVEY, 

23 ET AL.: SCOTT E. MOLLEN, M. DARREN TRAUB,

24 Herrick, Feinstein LLP, New York, NY.

25

26 FOR APPELLEES 

27 MARKS PANETH &

28 SHRON, LLP: WILLIAM J. KELLY, THOMAS R. MANISERO,

29 Wilson Elser Moskowitz Edelman & Dicker,

30 LLP, White Plains, NY. 

31

32 Appeal from the United States District Court for the

33 Southern District of New York (Baer, J.).

34

35

36 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

37 AND DECREED that the judgment of the district court be

38 AFFIRMED. 
3

1 Appellant appeals from a judgment of the United States

2 District Court for the Southern District of New York (Baer,

3 J.) dated September 15, 2009, granting summary judgment to

4 the defendants and dismissing appellant’s claims in their

5 entirety. Appellant also challenges the May 5, 2009 opinion

6 and order of Magistrate Judge Francis awarding costs to the

7 defendants for appellant’s failure to attend a deposition

8 that he noticed, as well as the December 2, 2009 opinion and

9 order of the district court imposing sanctions against

10 appellant’s attorney under Rule 11 of the Federal Rules of

11 Civil Procedure. We assume the parties’ familiarity with

12 the underlying facts, the procedural history, and the issues

13 presented for review.

14 Following a de novo review, we find no error in the

15 district court’s September 15, 2009 opinion and order

16 granting summary judgment to the defendants. After more

17 than a year of both formal and informal discovery, appellant

18 has adduced no evidence that would permit a reasonable fact

19 finder to conclude that the defendants have engaged in a

20 pattern of “racketeering activity” within the meaning of the

21 civil RICO statute. See 18 U.S.C. § 1961 et seq.; see also

22 Spool v. World Child Int’l Adoption Agency, 520 F.3d 178,
 As there existed no independent basis for subject matter jurisdiction 1

over appellant’s remaining state law claims, the district court was well

within its discretion to decline to exercise supplemental jurisdiction over

those claims. See, e.g., Matican v. City of New York, 524 F.3d 151, 154-55

(2d Cir. 2008). 

4

1 183 (2d Cir. 2008). Instead, this case presents little more

2 than a business dispute in which appellant – the aggrieved

3 business partner – can demonstrate, at most, negligent

4 accounting on the part of the defendants. Because that is

5 plainly insufficient to prevail on a civil RICO claim, the

6 court below properly dismissed it. See Qatar Nat’l 1

7 Navigation & Transp. Co., Ltd. v. Citibank, N.A., No 89-civ8 0464(CSH), 1992 WL 276565, at *5 (S.D.N.Y. Sept. 29, 1992),

9 aff’d 182 F.3d 901 (2d Cir. 1999) (summary order). 

10 We also find no basis to reverse either of the

11 sanctions awards below. “We review all aspects of a

12 District Court’s decision to impose sanctions for abuse of

13 discretion.” Schlaifer Nance & Co., Inc. v. Estate of

14 Warhol, 194 F.3d 323, 333 (2d Cir. 1999). 

15 The magistrate did not abuse his discretion in his May

16 5, 2009 order imposing sanctions based on the refusal of

17 appellant’s counsel to attend a deposition that he noticed,

18 and the district court correctly affirmed that award. See
 This Rule provides that “[a] party who, expecting a deposition to be 2

taken, attends in person or by an attorney may recover reasonable expenses for

attending, including attorney’s fees, if the noticing party failed to[] ...

attend and proceed with the deposition.” Fed. R. Civ. P. 30(g)(1). 

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1 Fed. R. Civ. P. 30(g); see also 28 U.S.C. § 636(b)(1)(A) 2

2 (permitting magistrate to resolve certain pretrial matters,

3 subject to “clearly erroneous or contrary to law” standard). 

4 Appellant’s counsel purported to cancel the deposition of

5 Mrs. Seavey the evening before it was to take place – a

6 Sunday, no less – in retaliation for the defendants’

7 purported “obstructions in the discovery process.” We agree

8 that this proffered explanation is nothing more than

9 pretext. Appellant’s counsel did not even know the contents

10 of the documents that were being “obstructed,” much less

11 whether they were relevant to the deposition when he

12 cancelled it. And, in any case, the proper course would

13 have been to proceed with the deposition while reserving the

14 right to recall Mrs. Seavey and question her about

15 subsequent disclosures if it proved necessary. See, e.g.,

16 Barrett v. Brian Bemis Auto World, 230 F.R.D. 535, 537 (N.D.

17 Ill. 2005). 

18 Finally, the district court’s December 2, 2009 order

19 imposing sanctions under Rule 11 was a legitimate exercise

20 of discretion. Appellant has not propounded a single fact
 Notably, such a sanction is not without precedent. See, e.g., 3

Balthazar v. Atl. City Med. Ctr., 137 Fed. Appx. 482, 490-91 (3d Cir. 2005)

(unpublished); LaVigna v. WABC Television, Inc., 159 F.R.D. 432, 437 (S.D.N.Y.

1995). 

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1 to substantiate his allegation that the defendants have been

2 engaged in a pattern of racketeering activity. He fails to

3 point to any evidence showing that the defendants have

4 misappropriated funds, issued fraudulent financial

5 statements, or otherwise committed malfeasance cognizable

6 under the civil RICO statute. Both the record in this case

7 and the submissions of counsel confirm for our Court, a

8 conclusion drawn below, that counsel does not appear to

9 comprehend the function of the civil RICO statute. Thus,

10 the district court’s chosen sanction is particularly

11 apropos: requiring that counsel attend CLE courses in the

12 relevant subject area. 

3

13 We have reviewed all of appellant’s arguments and find

14 them to be without merit. For the foregoing reasons, the

15 judgment of the district court is hereby AFFIRMED.

16

17 FOR THE COURT:

18 Catherine O’Hagan Wolfe, Clerk

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