14-3294-cv RJR Mech., Inc., v. Liberty Mut. Ins. Co.

1 14-3294-cv RJR Mech., Inc., v. Liberty Mut. Ins. Co.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT



## SUMMARY ORDER

Rulings by summary order do not have precedential effect. Cita tion to a summary order filed on or after January 1, 2007, is permitted a nd 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 mu st cite either the Federal Appendix or an electronic database (with the notation “summa ry 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 for the Second Circuit, held at the Thurgood Marshall United States Courthouse , 40 Foley Square, in the City of New York, on the 15 th day of October, two thousand fifteen.

PRESENT: J OSÉ A. C ABRANES , R OSEMARY S. P OOLER , Circuit Judges, P AUL G. G ARDEPHE , District Judge

. *

RJR M ECHANICAL , I NC ., Plaintiff-Appellant, 14-3294-cv

v.

L IBERTY M UTUAL I NSURANCE C OMPANY , Defendant-Appellee.

FOR PLAINTIFF-APPELLANT: U MAR A. S HEIKH (Misha M. Wright, on the brief ), Marino Partners LLP, White Plains, NY.

* The Honorable Paul G. Gardephe, United States District Court for the Southern District of New York, sitting by designation.14-3294-cv RJR Mech., Inc., v. Liberty Mut. Ins. Co.

2 FOR DEFENDANT-APPELLEE: M ARK A. C ANIZIO , Duane Morris LLP, New York, NY.

Appeal from a judgment of the United States District Court for the Eastern District of New 1 York (Ramon E. Reyes, Magistrate Judge ). 2

UPON DUE CONSIDERATION WHEREO F, IT IS HEREBY ORDERED, 3 ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED. 4

Plaintiff RJR Mechanical, Inc., (“RJR”) appeals from the District Court’s August 7, 2014 5 judgment that plaintiff “takes nothing of” defe ndant Liberty Mutual Insurance Company (“Liberty 6 Mutual”), which judgment followed a bench trial at which “the parties offered hundreds of pages of 7 documents into evidence and elicited the testimo ny” of several RJR and Liberty Mutual employees. 8 SPA-1, 41. On appeal, RJR raises a number of arguments, including that the District Court erred in 9 crediting certain witness testimony in support of its fi ndings of fact, and in allocating the burden of 10 proof to RJR. We assume the parties’ familiarity with the underlying facts, the procedural history of 11 the case, and the issues on appeal. 12

“The district court’s findings of fact after a be nch trial are not to be overturned unless they 13 are clearly erroneous. This standard applies wheth er those findings are based on witness testimony, 14 or on documentary evidence, or on inferences from other facts.” Ceraso v. Motiva Enterprises, LLC

, 15 326 F.3d 303, 316 (2d Cir. 2003) (citations omitted ). Additionally, “[i]n reviewing findings for clear 16 error, we are not allowed to second-guess either th e trial court’s credibility assessments or its choice 17 between permissible competing inferences. Even if [we] might have weighed the evidence 18 differently, [we] may not overturn find ings that are not clearly erroneous.” Id. (citation omitted). We 19 review the District Court’s “conclusions of law de novo .” In re Sept. 11 Litig. , —F.3d—, 2015 WL 20 5449788, at *8 (2d Cir. Sept. 17, 2015). 21

Upon review of the record and relevant law, we find no error, much less clear error, in the 22 District Court’s credibility determinations specifically or its findings of fact generally. Similarly, the 23 District Court did not err in allocati ng the burden of proof to RJR. See Diesel Props S.r.l. v. Greystone 24 Bus. Credit II LLC , 631 F.3d 42, 52 (2d Cir. 2011) (“In order to recover from a defendant for breach 25 of contract, a plaintiff must prove, by a pre ponderance of the evidence, (1) the existence of a 26 contract between itself and that defendant; (2) pe rformance of the plaintiff’s obligations under the 27 contract; (3) breach of the contract by that defend ant; and (4) damages to the plaintiff caused by that 28 defendant’s breach.”) (applying New York law). 29

3014-3294-cv RJR Mech., Inc., v. Liberty Mut. Ins. Co.

3 CONCLUSION 1

We have considered all of the arguments raised by plaintiff on appeal and find them to be 2 without merit. For the reasons stated above, we AFFIRM the District Court’s August 7, 2014 3 judgment. 4

5 FOR THE COURT: 6 Catherine O’Hagan Wolfe, Clerk 7