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 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 ASUMMARY ORDER@). A PARTY CITING TO 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 for the Second Circuit, held at 

2 the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New 

York, on the 27th 3 day of January, two thousand sixteen. 

4 

5 PRESENT: 

6 GUIDO CALABRESI,

7 GERARD E. LYNCH, 

8 RAYMOND J. LOHIER, JR.,

9 Circuit Judges. 

10 _____________________________________ 

11 

12 ROBERT REIVES, 

13 

14 Plaintiff-Appellant,

15 

16 v. No. 15-737

17 

18 ELGIN BAYLOR LUMPKIN, 

19 

20 Defendant-Appellee.

21 _____________________________________ 

22 

23 FOR APPELLANT: DIMITRIOS KOUROUKLIS, Law 

24 Office of Dimitrios Kourouklis, New 

25 York, NY (Effimia Soter, Law Office of 

26 Effie Soter, P.C., New York, NY, on the 

27 brief). 

28 

29 FOR APPELLEE: BENJAMIN D. LIEBOWITZ (Maurice 

30 W. Heller, Hillary H. Hughes, on the 

31 brief), Garvey Schubert Barer, New 

32 York, NY. 
2 

1 Appeal from a judgment and order of the United States District Court for the 

2 Southern District of New York (Ronnie Abrams, J.). 

3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 

4 AND DECREED that the judgment and order of the district court are AFFIRMED. 

5 Plaintiff-Appellant Robert Reives brought this action in the United States District 

6 Court for the Southern District of New York against Defendant-Appellee Elgin Baylor 

7 Lumpkin for breach of a contract by which Lumpkin, a musical performer, hired Reives to 

8 be his manager. Reives appeals from a judgment in favor of Lumpkin following a 

9 one-day bench trial. Reives argues that the district court erred by allowing Lumpkin to 

10 present an abandonment defense at trial and in finding that the parties had abandoned the 

11 contract. We assume the parties’ familiarity with the underlying facts, the procedural 

12 history, and the issues presented for review. 

13 Abandonment is an affirmative defense that should be pleaded under Rule 8(c) of 

14 the Federal Rules of Civil Procedure. Rule 8(c) requires that a responsive pleading set 

15 forth certain enumerated affirmative defenses as well as “any avoidance or affirmative 

16 defense.” Fed. R. Civ. P. 8(c). One of the core purposes of Rule 8(c) is to place opposing 

17 parties on notice that a particular defense will be pursued so as to prevent surprise or unfair 

18 prejudice. See Blonder–Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 350 

19 (1971). A district court may nevertheless entertain unpled affirmative defenses in the 

20 absence of undue prejudice to the plaintiff, bad faith or dilatory motive on the part of the 

21 defendant, futility, or undue delay of the proceedings. See Monahan v. N.Y.C. Dep’t of 

22 Corr., 214 F.3d 275, 283-84 (2d Cir. 2000) (allowing affirmative defense to be raised at the 
3 

1 summary judgment stage); Gilmore v. Gilmore, 503 F. App’x 97, 99 (2d Cir. 2012) 

2 (allowing an affirmative defense to be raised for the first time in a joint pretrial order). 

3 The district court did not abuse its discretion in allowing Lumpkin to raise an 

4 abandonment defense for the first time in his pretrial memorandum. The delay in raising 

5 this defense did not prejudice Reives because abandonment shares a common factual nexus 

6 with accord and satisfaction and waiver, two affirmative defenses Lumpkin did raise in his 

7 responsive pleading. Indeed, in opposition to Lumpkin’s pretrial memorandum, Reives 

8 did not claim surprise or prejudice. 

9 Reives also challenges the district court’s factual finding that the parties had 

10 mutually abandoned the management contract that is the basis for his breach of contract 

11 claim. When reviewing a judgment following a bench trial, we review a district court’s 

12 findings of fact for clear error and its conclusions of law de novo. Merck Eprova AG v. 

13 Gnosis S.p.A., 760 F.3d 247, 255 (2d Cir. 2014). “Whether a contract has been 

14 abandoned is a question of fact . . . , and cannot be disturbed on appeal from a bench trial 

15 unless clearly erroneous.” Wolff & Munier, Inc. v. Whiting-Turner Contracting Co., 946 

16 F.2d 1003, 1008 (2d Cir. 1991). Abandonment requires mutual assent of the parties. 

17 Graham v. James, 144 F.3d 229, 238 (2d Cir. 1998). However, such assent may be 

18 “inferred from attendant circumstances and conduct of the parties.” Armour & Co. v. 

19 Celic, 294 F.2d 432, 435 (2d Cir. 1961). 

20 Two factual findings independently support the district court’s conclusion that the 

21 parties mutually abandoned the management contract. First, the district court credited the 

22 testimony of Lumpkin recounting a telephone conversation between himself and Reives 
4 

1 wherein the parties agreed to part ways. Second, the district court found that the parties’ 

2 post-termination conduct was sufficiently inconsistent was the terms of the management 

3 agreement to infer that the parties agreed to terminate the contract. Neither finding is 

4 clearly erroneous. 

5 Under the clearly erroneous standard, “the reviewing court must give due regard to 

6 the trial court’s opportunity to judge the witnesses’ credibility.” Fed. R. Civ. P. 52(a)(6). 

7 “We are not allowed to second-guess the court’s credibility assessments,” and “[w]here 

8 there are two permissible views of the evidence, the factfinder’s choice between them 

9 cannot be clearly erroneous.” Diesel Props S.r.l. v. Greystone Bus. Credit II LLC, 631 

10 F.3d 42, 52 (2d Cir. 2011) (internal quotation marks omitted). In addition to considering 

11 Lumpkin’s demeanor on the witness stand, Judge Abrams found that Reives’ testimony 

12 was evasive and less consistent than Lumpkin’s with objectively verifiable facts. Those 

13 credibility assessments were not clearly erroneous. 

14 Nor did the district court err in finding that mutual assent to abandon the contract 

15 could be inferred from the parties’ post-termination conduct. Following the purported 

16 termination of the contract, Lumpkin hired a new manager – a clear breach of the 

17 management agreement if it was still in effect. Reives, though aware that Lumpkin had 

18 hired a new manager, did not make any attempt to contact Lumpkin, or pursue legal action, 

19 despite having reacted aggressively to an earlier perceived breach of the contract. Reives 

20 did not mention the management agreement to Lumpkin at either of their two subsequent 
5 

encounters. Furthermore, aside from a single assignment of certain royalties,1 1 Reives 

2 never received or (prior to this lawsuit) requested any payments owed pursuant to the 

3 management contract. Based on this record, the district court did not clearly err in finding 

4 that the parties’ conduct was sufficiently inconsistent with the terms of the contract to 

5 demonstrate abandonment. 

6 We have considered Reives’ remaining arguments and find them to be without 

7 merit. Accordingly, we AFFIRM the judgment of the district court. 

8 FOR THE COURT: 

9 Catherine O’Hagan Wolfe, Clerk 

10 

11 

12 

 

1 The district court found that Lumpkin’s assignment of royalties to Reives, though not 

simultaneous with the abandonment of the contract, was consideration for the termination of the 

management agreement. On appeal, Reives argues that Judge McMahon, to whom this case was 

previously assigned, found in an earlier 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 different conclusion at trial.