15-737 Reives v. Lumpkin 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 Cour t of Appeals for the Se cond Circuit, held at 1 the Thurgood Marshall United Stat es Courthouse, 40 Foley Sq uare, in the City of New 2 York, on the 27 th day of January, two thousand sixteen. 3 4 PRESENT: 5 GUIDO CALABRESI, 6 GERARD E. LYNCH, 7 RAYMOND J. LOHIER, JR., 8 Circuit Judges. 9

___________________ __________________ 10 11 ROBERT REIVES , 12 13 Plaintiff-Appellant , 14 15 v. No. 15-737 16 17 ELGIN BAYLOR LUMPKIN , 18 19 Defendant-Appellee

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___________________ __________________ 21 22 FOR APPELLANT: DIMITRIOS KOUROUKLIS, Law 23 Office of Dimitrios Kourouklis, New 24 York, NY (Effimia Soter, Law Office of 25 Effie Soter, P.C., New York, NY, on the 26 brief ). 27 28 FOR APPELLEE: BENJAMIN D. LIEBOWITZ (Maurice 29 W. Heller, Hillary H. Hughes, on the 30 brief ), Garvey Schubert Barer, New 31 York, NY. 322 Appeal from a judgment and order of the United States District Court for the 1 Southern District of New York (Ronnie Abrams, J .). 2 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 3 AND DECREED that the judgment and order of the district court are AFFIRMED

. 4 Plaintiff-Appellant Robert Reives brought this action in the United States District 5 Court for the Southern District of New Yo rk against Defendant-A ppellee Elgin Baylor 6 Lumpkin for breach of a contr act by which Lumpkin, a musical performer, hired Reives to 7 be his manager. Reives appeals from a judgment in favor of Lumpkin following a 8 one-day bench trial. Reives argues that th e district court erred by allowing Lumpkin to 9 present an abandonment defense at trial and in finding that the parties had abandoned the 10 contract. We assume the parties’ familiarity with the underlying fa cts, the procedural 11 history, and the issues presented for review. 12
Abandonment is an affirma tive defense that should be pleaded under Rule 8(c) of 13 the Federal Rules of Civil Procedure. Rule 8(c) requires that a responsive pleading set 14 forth certain enumerated affirmative defenses as well as “any avoidance or affirmative 15 defense.” Fed. R. Civ. P. 8(c). One of the core purposes of Rule 8(c) is to place opposing 16 parties on notice that a particular defense will be pursued so as to prevent surprise or unfair 17 prejudice. See Blonder–Tongue Labs., Inc. v. Univ. of Ill. Found ., 402 U.S. 313, 350 18 (1971). A district court may nevertheless ente rtain unpled affirmative defenses in the 19 absence of undue prejudice to th e plaintiff, bad faith or dilato ry motive on the part of the 20 defendant, futility, or undue de lay of the proceedings. See Monahan v. N.Y.C. Dep’t of 21 Corr., 214 F.3d 275, 283- 84 (2d Cir. 2000) (allowing affirmat ive defense to be raised at the 223 summary judgment stage); Gilmore v. Gilm ore, 503 F. App’x 97, 99 (2d Cir. 2012) 1 (allowing an affirmative defense to be raised for the first tim e in a joint pretrial order). 2
The district court did not abuse its di scretion in allowing Lu mpkin to raise an 3
abandonment defense for the first time in his pretrial memorandum. The delay in raising 4 this defense did not prejudice Reives because abandonment shares a common factual nexus 5 with accord and satisfaction and waiver, two affirmative defens es Lumpkin did raise in his 6 responsive pleading. Indeed, in opposition to Lumpkin’s pretrial memorandum, Reives 7 did not claim surprise or prejudice. 8 Reives also challenges the district c ourt’s factual finding that the parties had 9 mutually abandoned the management contract th at is the basis for his breach of contract 10 claim. When reviewing a judgment following a bench trial, we review a district court’s 11 findings of fact for clear error and its conclu sions of law de novo. Merck Eprova AG v. 12 Gnosis S.p.A., 760 F.3d 247 , 255 (2d Cir. 2014). “Wheth er a contract has been 13 abandoned is a question of fact . . . , and ca nnot be disturbed on ap peal from a bench trial 14 unless clearly erroneous.” Wolff & Munier, In c. v. Whiting-Turner Contracting Co., 946 15 F.2d 1003, 1008 (2d Cir. 1991). Abandonment requires mutual assent of the parties. 16 Graham v. James, 144 F.3d 229, 238 (2d Ci r. 1998). However, such assent may be 17
“inferred from attendant circumstances and co nduct of the parties.” Armour & Co. v. 18 Celic, 294 F.2d 432, 435 (2d Cir. 1961). 19 Two factual findings independently support the district court’s conclusion that the 20 parties mutually abandoned the management contract. First, the district court credited the 21 testimony of Lumpkin recounti ng a telephone conversation be tween himself and Reives 224 wherein the parties agreed to part ways. Seco nd, the district court fo und that the parties’ 1 post-termination conduct was su fficiently inconsistent was th e terms of the management 2 agreement to infer that the pa rties agreed to terminate the contract. Neither finding is 3 clearly erroneous. 4 Under the clearly erroneous standard, “the reviewing court must give due regard to 5 the trial court’s opportunity to judge the witne sses’ credibility.” Fed. R. Civ. P. 52(a)(6). 6 “We are not allowed to second-guess the cour t’s credibility assessments,” and “[w]here 7 there are two permissible views of the evid ence, the factfinder’s choice between them 8 cannot be clearly erroneous.” Diesel Props S.r.l. v. Greystone Bus. Credit II LLC, 631 9 F.3d 42, 52 (2d Cir. 2011) (internal quotation marks omitted). In addition to considering 10 Lumpkin’s demeanor on the witness stand, Judge Abrams found that Reives’ testimony 11 was evasive and less consistent than Lumpkin’ s with objectively verifiable facts. Those 12 credibility assessments were not clearly erroneous. 13 Nor did the district court err in finding th at mutual assent to abandon the contract 14 could be inferred from the parties’ post-te rmination conduct. Following the purported 15 termination of the contract, Lumpkin hire d a new manager – a clear breach of the 16 management agreement if it was still in effect . Reives, though aw are that Lumpkin had 17 hired a new manager, did not make any attempt to contact Lumpkin, or pursue legal action, 18 despite having reacted aggressively to an earlie r perceived breach of the contract. Reives 19 did not mention the management agreement to Lumpkin at either of their two subsequent 205 encounters. Furthermore, aside from a single assignment of certain royalties, 1 Reives 1 never received or (prior to this lawsuit) requested any payments owed pursuant to the 2 management contract. Based on this record, th e district court did not clearly err in finding 3 that the parties’ conduct was sufficiently inconsistent with the terms of the contract to 4 demonstrate abandonment. 5 We have considered Reives’ remaining arguments and find them to be without 6 merit. Accordingly, we AFFIRM the judgment of the district court. 7
FOR THE COURT: 8 Catherine O’Hagan Wolfe, Clerk 9 10

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1 The district court found that Lumpkin’s as signment of royalties to Reives, though not simultaneous with the abandonment of the contract, was considera tion for the termination of the management agreement. On appeal, Reives argu es that Judge McMahon, to whom this case was previously assigned, found in an ea rlier opinion that the assignment of royalties was consideration for a different contract. That argument lacks merit. Judge McMahon’s purported “finding” was merely a passing comment made while deciding a motion to dismiss and did not preclude the factfinder from reaching a differe nt conclusion at trial.