15-2054

Mazzei v. Money Store

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 15th 4 day of July, two thousand sixteen.

5

6 PRESENT: AMALYA L. KEARSE,

7 RALPH K. WINTER,

8 DENNIS JACOBS,

9 Circuit Judges.

10

11 - - - - - - - - - - - - - - - - - - - -X

12 JOSEPH MAZZEI, on behalf of himself

13 and all others similarly situated, 

14 Plaintiff-Appellant,

15

16 -v.- 15-2054

17

18 THE MONEY STORE, TMS MORTGAGE, INC.,

19 HOMEQ SERVICING CORP., 

Defendants-Appellees.* 20

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22

* The Clerk of Court is directed to amend the official

caption in this case to conform to the listing of the

parties above.

1
1 FOR PLAINTIFF-APPELLANT: PAUL S. GROBMAN (Neal DeYoung,

2 Sharma & DeYoung, on the brief),

3 New York, New York.

4

5 FOR DEFENDANTS-APPELLEES: DANIEL A. POLLACK (Edward T.

6 McDermott, Anthony Zaccaria,

7 Minji Kim, on the brief),

8 McCarter & English, LLP, New

9 York, New York.

10

11 Appeal from a judgment of the United States District

12 Court for the Southern District of New York (Koeltl, J.).

13

14 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

15 AND DECREED that the judgment of the district court be

16 AFFIRMED. 

17

18 Joseph Mazzei appeals from the judgment of the United

19 States District Court for the Southern District of New York

20 (Koeltl, J.) and two post-trial rulings. At trial, Mazzei

21 sought to prove two breach-of-contract theories on behalf of

22 himself and two nationwide classes. The jury found in favor

23 of defendants and against Mazzei and the “Fee-Splitting

24 Class” as to the “fee-splitting claim,” and in favor of

25 Mazzei and the “Late Fee Class” as to the “late fee claim.” 

26 Subsequently, the district court (1) denied Mazzei’s motion

27 for a new trial on the fee-splitting claim and (2) granted

28 defendants-appellees’ post-trial motion to decertify the

29 Late Fee Class. 

30

31 In the accompanying opinion, we affirm the grant of

32 defendants’ motion for decertification of the Late Fee

33 Class. In this summary order, we affirm the denial of

34 Mazzei’s motion for a new trial, and the judgment of the

35 district court. We assume the parties’ familiarity with the

36 underlying facts, the procedural history, and the issues

37 presented for review. 

38

39 Mazzei’s principal argument in support of his motion

40 for a new trial was that the district court had abused

41 discretion in declining to grant an adverse inference

42 instruction on the fee-splitting claim. The court did not

43 abuse discretion in refusing to impose additional sanctions

44 in the form of an adverse inference instruction, and it did

45 not abuse discretion in denying the Rule 59 motion made on

46 the same premise. 

47

2
1 The New Invoice System was a web-based, electronic

2 billing database owned by Fidelity National Foreclosure

3 Solutions (“Fidelity”), a nonlawyer entity to which

4 defendants outsourced certain legal services. Fidelity and

5 vendors, including law firms, used the New Invoice System to

6 submit invoices to defendants. The data in that system

7 (records of the invoices from Fidelity and vendors) were not

8 maintained in their original, accessible form. Affirming

9 the magistrate judge, the district court ruled that,

10 although the database was in the possession of Fidelity (and

11 its successor) rather than defendants, defendants had the

12 legal and practical ability to obtain access, and should

13 have caused the data to be preserved in the previously

14 accessible form. The district court affirmed the limited

15 sanctions awarded by the magistrate judge: the costs of

16 determining the current accessibility of the data, and

17 attorney’s fees and costs for the sanctions motion.

18

19 The district court declined to grant additional relief

20 in the form of an adverse inference charge because the court

21 found that the New Invoice System contained only “tangential

22 information” as to the fee-splitting claim: It did not

23 record payment of invoices by defendants, it did not record

24 fees that were charged to members of the class, and it did

25 not contain bills by Fidelity to law firms or payments by

26 law firms to Fidelity. Mazzei v. Money Store, 308 F.R.D.

27 92, 102 (S.D.N.Y. 2015). It also found that Mazzei failed

28 to diligently seek discovery of fee-splitting evidence from

29 other obvious sources--sources more likely to evidence what

30 payments were exchanged between Fidelity and the law firms.

31 These findings were not clearly erroneous and supported

32 denial of the motion for an adverse inference. See Chin v.

33 Port Auth. of N.Y. & N.J., 685 F.3d 135, 162 (2d Cir. 2012)

34 (“[A] district court may, at its discretion, grant an

35 adverse inference jury instruction insofar as such a

36 sanction would ‘serve the threefold purpose of (1) deterring

37 parties from destroying evidence; (2) placing the risk of an

38 erroneous evaluation of the content of the destroyed

39 evidence on the party responsible for its destruction; and

40 (3) restoring the party harmed by the loss of evidence

41 helpful to its case to where the party would have been in

42 the absence of spoliation.’” (quoting Byrnie v. Town of

43 Cromwell, 243 F.3d 93, 107 (2d Cir. 2001)) (brackets

44 omitted)), superseded in part by Fed. R. Civ. P. 37(e)

45 (2015). 

46

3
1 Under the current Rule 37(e)(2), which took effect

2 after the post-trial motions were decided, an adverse

3 inference instruction may be given for failure to preserve

4 electronically stored information “only upon finding that

5 the party acted with the intent to deprive another party of

6 the information’s use in the litigation.” Fed. R. Civ. P.

7 37(e)(2)(B). The district court specifically found that

8 defendants did not act with such intent.

9

10 As the district court further explained: “[A]ny

11 additional evidence from the New Invoice System would not

12 have made any difference in this trial. The plaintiff

13 obtained the records from the New Invoice System relating to

14 Mazzei and introduced them at trial. . . . Even with the

15 evidence from the New Invoice System, Mazzei could not prove

16 his individual claim. There is thus no basis to believe

17 that evidence from the New Invoice System would have proved

18 any claim with respect to the class.” Mazzei, 308 F.R.D. at

19 100. “Absent a showing of prejudice [resulting from the

20 missing evidence], the jury’s verdict should not be

21 disturbed.” Chin, 685 F.3d at 162 (quoting Residential

22 Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 112 (2d

23 Cir. 2002)) (brackets omitted).

24

25 Mazzei’s remaining arguments are unpersuasive. 

26 Defendants’ questions and argument at trial regarding the

27 lack of evidence that Fidelity made payments to law firms or

28 lawyers did not violate the district court’s pretrial

29 orders. The court’s refusal to admit into evidence the

30 Buechner Affidavit was not an abuse of discretion: Mazzei

31 has never articulated the relevance of the information

32 (aside from making spoliation arguments); and Mazzei still

33 does not explain how the information contained in the

34 affidavit likely would have affected the jury’s verdict. 

35 Furthermore, Mazzei failed to articulate in the district

36 court a hearsay exception or exclusion pursuant to which

37 admission of the affidavit would have been proper. Finally,

38 denial of a motion for a new trial on weight-of-the-evidence

39 grounds is not subject to appellate review. Stonewall Ins.

40 Co. v. Asbestos Claims Mgmt. Corp., 73 F.3d 1178, 1199 (2d

41 Cir. 1995), modified on other grounds, 85 F.3d 49 (2d Cir.

42 1996).

43

4
1 We have considered Mazzei’s remaining arguments and

2 find them to be without merit. For the reasons stated

3 herein and in the accompanying opinion, the judgment of the

4 district court is AFFIRMED.

5

6 FOR THE COURT:

7 CATHERINE O’HAGAN WOLFE, CLERK

8

5