19

- 3273

- cv Morris & Judith Family Partnership, LLC v. Fidelity Brokerage Servs. LLC

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 FEDE RAL 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.

At a stated Term of the United States Court of Appeals for the Second Circuit,

h eld at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of

New York on the 18 th d ay of December, two thousand twenty

.

Present: ROSEMARY S. POOLER

, RICHARD C. WESLEY,

WILLIAM J. NARDINI

, Circuit Judges

,

___________________________________________________

MORRIS & JUDITH FAMILY PARTNERSHIP, LLC

,

Plaintiff

- Appellant

,

v. 19

- 3273

- cv

FIDELITY BROKERAGE SERVICES LLC

,

Defendant

- Third Party

- Plaintiff

- Appellee

. 1

_____________________________________________________

Appearing for Appellant: Jeffrey Schreiber, Meister Seelig & Fein LLP, New York,

N

. Y.

Appearing for Appellee: Daniel H. Tabak, Cohen & Gresser LLP (Sharon L. Barbour, on the brief ), New York, N

. Y.

1 The Clerk of the Court is directed to amend the caption as above.2 Appeal from the United States District Court for the Sou thern District of New
York ( Rakoff

, J. ).

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECRE ED that the judgment be and it hereby is AFFIRMED

.

Plaintiff

- Appellant Morris & Judith Family Partnership ( “ Morris Partnership ”) appeals from an order entered on April 23, 2019

, and a final judgment entered on September 1 3 , 2019

, in the United States District Court for the Sou thern District of New York ( Rakoff

, J. ) , granting Fidelity Brokerage Services LLC’s (“Fidelity”) motion for summary judgment against the Morris Partnership on the Morris Partnership ’s breach of

contract claim and den ying the Morris Partnership ’s motion for summary judgment against Fidelit y

. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.

The district court granted Fidelity’s motion based on a limitation of liability provision in Fidelity’s c ustomer agreement (the “Agreement”) . The provision required

the Morris Partnership to notify Fidelity immediately of suspicious activity in the Morris Partnership ’s account. I t is undisputed that Fidelity sent the Morris Partnership a transaction confirmation and account statement listing the disputed transfer at issue to the

Morris Partnership ’s address of record in November 201 4 . T he Morris Partnership failed to notify Fidelity that it considered this to be suspicious behavior until 2016 . T he district

court held that the Morris Partnership ’s failure to provide timely notification barred the

Morris Partnership ’s breach of contract claim.

We review a district court’s grant of summary judgment de novo. See Townsend v. Benjamin Enters., Inc. , 679 F.3d 41, 47 (2d Cir. 2012)

. The Morris Partnership argues that the district court erred because Fidelity was already aware of the relevant activity in the Morris Partnership’s account and its allegedly suspicious nature; and that this excused the Morris Partnership’s failure to notify Fidelity of its complaint in a timely way . But the limitation of liability provision expressly assigns the Morris Part nership the duty to monitor its account and report unauthorized activity

. It failed to do so, and thus the Agreement frees Fidelity from liability.

T he Morris Partnership also contends that Fidelity knowingly transferr ed the

Morris Partnership ’s assets from the Morris Partnership ’s account into an unauthorized

individual’s account . The Morris Partnership argues that this is a material breach, which

under Massachusetts law excused the Morris Partnership from its obligation under the Agreement to pr ovide timely notice

. The Morris Partnership also argues that Fidelity

failed to establish harm resulting from the Morris Partnership ’s breach of the notice provision

. The Morris Partnership did not raise these arguments belo w , and we decline to consider them for the first time on appeal

. See In re Nortel Networks Corp. Sec. Litig.

, 539 F.3d 129, 132 (2d Cir. 2008) (“It is a well

- established general rule that an appellate

court will not consi der an issue raised for the first time on appeal.” (alteration and citations omitted) ). Even if we considered them

, the Morris Partnership fails to cite cases3 supporting its argument that, under Massachusetts law, a prior breach excuses a party’s

noti ficat ion obligations

.

We have considered the remainder of the Morris Partnership ’s arguments and find them to be without merit. Accordingly, the judgment of the district court hereby is

AFFIRMED

.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk