1

09-4241-cv Edmonds v. Seavey UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER

RULI NGS BY SU MMA RY ORD ER DO NOT HAVE PRE CED ENT IAL EF FEC T . C ITA TIO N T O ASU MMARY ORD ER FIL ED ON OR AFT ER JANUARY 1, 2007, IS PERMIT TED AND IS GOVERNED BY F EDE RAL RULE OF A PPE LLA TE P ROC EDU RE 32.1 AND TH IS COU RT ’ S L OCA L RULE 32.1.1. W HEN CI TIN G A SUMMAR Y ORDERIN A DOC UME NT FIL ED WIT H T HIS CO URT , A PAR TY MUS T C ITE EI THE R T HE F EDE RAL A PPE NDI X O R AN ELE CTR ONI C D ATABAS E ( WIT H T HE NOT ATI ON “ SUMMAR Y O RDE R ”). APA RTY CI TIN G ASU MMARY ORD ER MUS T S ERV E ACO PY OF IT ON ANY PARTY NO T R EPR ESE NTE D B Y C OUN SEL . 

### 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 ofThe 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-civ

### 8 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. SeeThis 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). 5 

### 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 factNotably, 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). 6 

### 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 

### 19 20