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10-1142-cv

RSL Communications Plc v. Bildirici et al.

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 26 day of January, two thousand eleven. th

5

6 PRESENT: DENNIS JACOBS,

7 Chief Judge,

8 RICHARD C. WESLEY,

9 DENNY CHIN,

10 Circuit Judges.

11

12

13 - - - - - - - - - - - - - - - - - - - -X

14 RSL COMMUNICATIONS PLC, by Michael

15 John Andrew Jervis and Steven Anthony

16 Pearson, as the Joint Administrators,

17

18 Plaintiff-Counter-Defendant19 Appellant,

20

21 -v.- 10-1142-cv

22

23 ITZHAK FISHER,

24

25 Defendant-Counter-Claimant26 Appellee,

27
 The Clerk of the Court is directed to amend the *

official caption to conform to the caption listed above.

2

1 NESIM BILDIRICI, PAUL DOMORSKI, RONALD

2 S. LAUDER, STEVEN SCHIFFMAN, JACOB

3 SCHUSTER, and EUGENE SEKULOW,

4

5 Defendants-Appellees.*

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8 FOR APPELLANT: JOHN H. BAE (Adam C. Dembrow, Kaitlin R.

9 Walsh, Paul T. Martin, Greenberg Traurig,

10 LLP, New York, NY, and Dan K. Webb,

11 Robert L. Michels, Ryanne L. Easley,

12 Winston & Strawn LLP, Chicago, IL, on the

13 brief), Greenberg Traurig, LLP, New York,

14 NY.

15

16 FOR APPELLEES: JOHN S. KIERNAN (Catherine M. Amirfar,

17 Benjamin Sirota, William C. Weeks, on the

18 brief), Debevoise & Plimpton LLP, New

19 York, NY. 

20

21 Appeal from a judgment of the United States District

22 Court for the Southern District of New York (Sullivan, J.).

23

24 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

25 AND DECREED that the judgment of the district court be

26 AFFIRMED. 

27

28 Appellant RSL Communications Plc (“Plc”) appeals from

29 (1) the judgment entered on March 9, 2010 by the United

30 States District Court for the Southern District of New York

31 (Sullivan, J.), which, inter alia, granted Appellees’ motion

32 for summary judgment and denied Plc’s motion to supplement

33 discovery, pursuant to its opinion dated August 10, 2009;

34 and (2) the district court’s orders dated February 23, 2009

35 and May 4, 2009, ruling that the “but for” and proximate

36 causation standards were applicable, rather than the

37 “substantial factor” standard. We assume the parties’

38 familiarity with the underlying facts, the procedural

39 history, and the issues presented for review.

40

41 [1] A grant of summary judgment is reviewed de novo,

42 “resolv[ing] all ambiguities and draw[ing] all permissible
 Recent amendments to the Federal Rules of Civil **

Procedure (effective December 1, 2010) moved the relevant

provision to Fed. R. Civ. P. 56(d), without substantive

change.

3

1 factual inferences in favor of the party against whom

2 summary judgment is sought.” Terry v. Ashcroft, 336 F.3d

3 128, 137 (2d Cir. 2003) (quoting Stern v. Trustees of

4 Columbia Univ., 131 F.3d 305, 312 (2d Cir. 1997)). The

5 denial of a motion to supplement discovery under Fed. R.

6 Civ. P. 56(f) is reviewed for abuse of discretion. See **

7 Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d

8 Cir. 2003). 

9 

10 We affirm the district court’s grant of summary

11 judgment and denial of supplementation for substantially the

12 reasons stated in Judge Sullivan’s well-reasoned and

13 scholarly opinion. See RSL Commc’ns Plc v. Bildirici, 649

14 F. Supp. 2d 184 (S.D.N.Y. 2009).

15

16 [2] We review the legal standards applied by the district

17 court de novo. See Myers v. Hertz Corp., 624 F.3d 537, 547

18 (2d Cir. 2010). We affirm the district court’s selection of

19 the “but for” and proximate causation standards for

20 substantially the reasons stated in its two orders, dated

21 February 23, 2009 and May 4, 2009. See RSL Commc’ns Plc v.

22 Bildirici, No. 04 Civ. 5217, 2009 U.S. Dist. LEXIS 37547

23 (S.D.N.Y. May 4, 2009); RSL Commc’ns Plc v. Bildirici, No.

24 04 Civ. 5217, 2009 U.S. Dist. LEXIS 13864, 2009 WL 454136

25 (S.D.N.Y. Feb. 23, 2009).

26

27 We have considered all of Plc’s contentions on this

28 appeal and have found them to be without merit. 

29 Accordingly, the judgment of the district court is hereby

30 AFFIRMED. Plc’s renewed motion to certify to the New York

31 Court of Appeals the question of New York law regarding

32 fiduciary duties to creditors for a company operating in the

33 “zone of insolvency” is DENIED as moot. 

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35

36 FOR THE COURT:

37 CATHERINE O’HAGAN WOLFE, CLERK

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