15-51 (L), 15-129 (Con) Bandler v. BPCM NYC, Ltd. 

## 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 JA NUARY 1, 2007, IS PE RMITTED AND IS GOVERNE D 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 (W ITH THE NOTATION A SUMMARY ORDER @ ). A PARTY CITING TO 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 22 nd day of January, two thousand sixteen.

PRESENT: ROBERT A. KATZMANN, Chief Judge, AMALYA L. KEARSE, Circuit Judge , GREGORY H. WOODS, * District Judge

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___________________________________________ MICHAEL BANDLER, MB & CO. LTD., dba Michael Bandler and Company, Plaintiffs-CounterclaimDefendants-Appellants-CrossAppellees , v. 15-51 (L), 15-129 (Con) BPCM NYC, LTD., BPCM WORLDWIDE, LTD., BPCM LA, LTD., BLUE STRIPE, LTD., CARRIE ELLEN PHILLIPS, VANE SSA VON BISMARCK, ALI FROLEY, LAURA WOODWARD,Defendants-CounterclaimantsAppellees-Cross-Appellants. †

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* The Honorable Gregory H. Woods, of the United St ates District Court for the Southern District of New York, sitting by designation.

† The Clerk of Court is directed to amend the caption as indicated above.2 FOR PLAINTIFFS-COUNTERCLAIMDEFENDANTS-APPELLANTS-CROSSAPPELLEES: Michael Bandler, filed a brief pro se, Quechee, Vermont. J EFFREY S. E TTENGER (Jennifer B. Ettenger, Melville, New York, on the brief for MB & Co. Ltd.), Lee A. Schwartz & Associates, PLLC, Melville, New York.

FOR DEFENDANTS-COUNTERCLAIMANTSAPPELLEES-CROSS- APPELLANTS: J OSHUA K RAKOWSKY (Larry Hutcher, on the brief ), Davidoff Hutcher & Citron LLP, New York, New York.

Appeal from a judgment of the United States Di strict Court for the Southern District of New York (Gardephe, J .).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Michael Bandler, who filed a brief pro se, and MB & Co. Ltd., thr ough counsel, appeal from so much of the final judgment as grante d defendants’ motion for partial summary judgment on plaintiffs’ claims for breach of contract, c onversion, and civil conspiracy. BPCM NYC and related entities (“BPCM”) cross-appeal the denial of their motion for sanctions. We assume the parties’ familiarity with the underlying facts, the procedural hi story of the case, and the issues on appeal. As an initial matter, Bandler moves for leave to file an amended brief or, alternatively, for the Court to consider arguments raised for the first time in his reply brief, and to file an untimely reply declaration in support of this motion. We grant Bandler’s motion to file an untimely reply declaration in support of his motion, but we deny th e motion for leave to file an amended brief or3 for consideration of arguments raised for the first time in his reply brief, because consideration of such belated arguments would prejudice BPCM. Cf. Harris v. Albany Cty. Office (In re Harris) , 464 F.3d 263, 268 n.3 (2d Cir. 2006).

We review de novo an order granting summary judgment, Feingold v. New York , 366 F.3d 138, 148 (2d Cir. 2004), which shall be granted “if the movant shows that there is no genuine dispute as to any material fact a nd the movant is entitled to a judg ment as a matter of law,” Fed. R. Civ. P. 56(a). When the opposing party bears the burden of proof at trial, summary judgment should be granted if the moving pa rty “can point to an absence of evidence to support an essential element of the nonmoving party’s claim.” Goenaga v. March of Dimes Birth Defects Found. , 51 F.3d 14, 18 (2d Cir. 1995). The court draws all inferences in favor of the nonmovant, but, “[w]here the moving party demonstrates the abse nce of a genuine issue of material fact, the opposing party must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.” Robinson v. Concentra Health Servs., Inc ., 781 F.3d 42, 44 (2d Cir. 2015) (quoting Brown v. Eli Lilly & Co. , 654 F.3d 347, 358 (2d Cir. 2011)). We review a

district court’s denial of sanc tions for abuse of discretion. Perez v. Posse Comitatus , 373 F.3d 321, 326 (2d Cir. 2004). Upon review, we conclude that the district court properly granted BPCM partial summary judgment and did not abuse its discretion in deny ing BPCM’s motion for sanctions. We affirm for substantially the reasons stated by the district court in its September 29, 2014 order. We have considered all of the parties’ arguments for reversal and find them to be without merit. We grant BPCM’s motion for the costs of th e supplemental appendix because Bandler did not comply with Rule 30(b) of the Federal Rules of Appellate Procedure a nd the material in the4 supplemental appendix was relevant. For the same reasons, we deny Bandler’s motion for

sanctions. Accordingly, we AFFIRM the judgment of the district court, DENY Bandler’s motions to amend his brief and for sanctions, and GRANT Bandler’s motion to file an untimely reply and

BPCM’s motion for costs.

FOR THE COURT: Catherine O = Hagan Wolfe, Clerk