         09-4241-cv
         Edmonds v. Seavey


                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                                 SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX 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 .


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 27 th day of May, two thousand and ten.
 5
 6       PRESENT: AMALYA L. KEARSE,
 7                ROBERT D. SACK,
 8                RICHARD C. WESLEY,
 9                         Circuit Judges.
10
11
12
13       JOHN L. EDMONDS, Individually and as a Managing General
14       Partner of Fifth and 106th Street Housing Company, Inc.,
15
16                                       Plaintiff-Counter-Defendant-Appellant,
17
18       CHARLES H. HILL ASSOCIATES, as a limited partner of Church
19       Home Associates, LP, a/k/a Charles H. Hill Associates, LP,
20
21                                       Plaintiffs,
22
23                       -v.-                                                   09-4241-cv
24
25       ROBERT W. SEAVEY, Individually and as a General Partner of
26       Fifth and 106th Street Associates, LP, AVERY B. SEAVEY,
27       Individually and as a General Partner of Logan Plaza
28       Associates, LP, and Church Home Associates, and Owner of
29       Dalton Management Company, LLC, RONALD DAWLEY, as Chief
30       Executive Officer of Dalton Management Company, LLC, DALTON
31       MANAGEMENT COMPANY, LLC, THE SEAVEY ORGANIZATION, NEAL B.
32       SEAVEY, Individually and as Owner, Manager and Member of

                                                            1
 1   Dalton Management Company, LLC, PHYLLIS M. SEAVEY,
 2   Individually and as Owner, Manager and Member of Dalton
 3   Management Company, LLC,
 4
 5                           Defendants-Counter-Claimants-Appellees,
 6
 7   MARKS PANETH & SHRON, LLP, Auditors
 8
 9                           Defendants-Appellees,
10
11   CHARLES HILL ASSOCIATES, CHARLES HILL ASSOCIATES, LP, as a
12   Limited Partner of Church Home Associates, LP, LOGAN PLAZA
13   ASSOCIATES, LP,
14
15                           Defendants. *
16
17
18   FOR APPELLANT:          M. DOUGLAS HAYWOODE, Law Office of M.
19                           Douglas Haywoode, Brooklyn, NY.
20
21   FOR APPELLEES
22   ROBERT W. SEAVEY,
23   ET AL.:           SCOTT E. MOLLEN, M. DARREN TRAUB,
24                     Herrick, Feinstein LLP, New York, NY.
25
26   FOR APPELLEES
27   MARKS PANETH &
28   SHRON, LLP:             WILLIAM J. KELLY, THOMAS R. MANISERO,
29                           Wilson Elser Moskowitz Edelman & Dicker,
30                           LLP, White Plains, NY.
31
32        Appeal from the United States District Court for the
33   Southern District of New York (Baer, J.).
34
35
36         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

37   AND DECREED that the judgment of the district court be

38   AFFIRMED.



           *
             The Clerk of the Court is respectfully directed to amend the official
     caption in this action to conform with that of this summary order.


                                           2
1        Appellant appeals from a judgment of the United States

2    District Court for the Southern District of New York (Baer,

3    J.) dated September 15, 2009, granting summary judgment to

4    the defendants and dismissing appellant’s claims in their

5    entirety.   Appellant also challenges the May 5, 2009 opinion

6    and order of Magistrate Judge Francis awarding costs to the

7    defendants for appellant’s failure to attend a deposition

8    that he noticed, as well as the December 2, 2009 opinion and

9    order of the district court imposing sanctions against

10   appellant’s attorney under Rule 11 of the Federal Rules of

11   Civil Procedure.   We assume the parties’ familiarity with

12   the underlying facts, the procedural history, and the issues

13   presented for review.

14       Following a de novo review, we find no error in the

15   district court’s September 15, 2009 opinion and order

16   granting summary judgment to the defendants.     After more

17   than a year of both formal and informal discovery, appellant

18   has adduced no evidence that would permit a reasonable fact

19   finder to conclude that the defendants have engaged in a

20   pattern of “racketeering activity” within the meaning of the

21   civil RICO statute.     See 18 U.S.C. § 1961 et seq.; see also

22   Spool v. World Child Int’l Adoption Agency, 520 F.3d 178,



                                     3
1    183 (2d Cir. 2008).        Instead, this case presents little more

2    than a business dispute in which appellant – the aggrieved

3    business partner – can demonstrate, at most, negligent

4    accounting on the part of the defendants.               Because that is

5    plainly insufficient to prevail on a civil RICO claim, the

6    court below properly dismissed it. 1           See Qatar Nat’l

7    Navigation & Transp. Co., Ltd. v. Citibank, N.A., No 89-civ-

8    0464(CSH), 1992 WL 276565, at *5 (S.D.N.Y. Sept. 29, 1992),

9    aff’d 182 F.3d 901 (2d Cir. 1999) (summary order).

10         We also find no basis to reverse either of the

11   sanctions awards below.         “We review all aspects of a

12   District Court’s decision to impose sanctions for abuse of

13   discretion.”      Schlaifer Nance & Co., Inc. v. Estate of

14   Warhol, 194 F.3d 323, 333 (2d Cir. 1999).

15         The magistrate did not abuse his discretion in his May

16   5, 2009 order imposing sanctions based on the refusal of

17   appellant’s counsel to attend a deposition that he noticed,

18   and the district court correctly affirmed that award.                  See




           1
             As there existed no independent basis for subject matter jurisdiction
     over appellant’s remaining state law claims, the district court was well
     within its discretion to decline to exercise supplemental jurisdiction over
     those claims. See, e.g., Matican v. City of New York, 524 F.3d 151, 154-55
     (2d Cir. 2008).


                                           4
1    Fed. R. Civ. P. 30(g); 2 see also 28 U.S.C. § 636(b)(1)(A)

2    (permitting magistrate to resolve certain pretrial matters,

3    subject to “clearly erroneous or contrary to law” standard).

4    Appellant’s counsel purported to cancel the deposition of

5    Mrs. Seavey the evening before it was to take place – a

6    Sunday, no less – in retaliation for the defendants’

7    purported “obstructions in the discovery process.”                 We agree

8    that this proffered explanation is nothing more than

9    pretext.     Appellant’s counsel did not even know the contents

10   of the documents that were being “obstructed,” much less

11   whether they were relevant to the deposition when he

12   cancelled it.      And, in any case, the proper course would

13   have been to proceed with the deposition while reserving the

14   right to recall Mrs. Seavey and question her about

15   subsequent disclosures if it proved necessary.                See, e.g.,

16   Barrett v. Brian Bemis Auto World, 230 F.R.D. 535, 537 (N.D.

17   Ill. 2005).

18         Finally, the district court’s December 2, 2009 order

19   imposing sanctions under Rule 11 was a legitimate exercise

20   of discretion.      Appellant has not propounded a single fact


           2
             This Rule provides that “[a] party who, expecting a deposition to be
     taken, attends in person or by an attorney may recover reasonable expenses for
     attending, including attorney’s fees, if the noticing party failed to[] ...
     attend and proceed with the deposition.” Fed. R. Civ. P. 30(g)(1).


                                           5
1    to substantiate his allegation that the defendants have been

2    engaged in a pattern of racketeering activity.                He fails to

3    point to any evidence showing that the defendants have

4    misappropriated funds, issued fraudulent financial

5    statements, or otherwise committed malfeasance cognizable

6    under the civil RICO statute.             Both the record in this case

7    and the submissions of counsel confirm for our Court, a

8    conclusion drawn below, that counsel does not appear to

9    comprehend the function of the civil RICO statute.                 Thus,

10   the district court’s chosen sanction is particularly

11   apropos: requiring that counsel attend CLE courses in the

12   relevant subject area. 3

13         We have reviewed all of appellant’s arguments and find

14   them to be without merit.          For the foregoing reasons, the

15   judgment of the district court is hereby AFFIRMED.

16
17                                       FOR THE COURT:
18                                       Catherine O’Hagan Wolfe, Clerk
19
20




           3
             Notably, such a sanction is not without precedent. See, e.g.,
     Balthazar v. Atl. City Med. Ctr., 137 Fed. Appx. 482, 490-91 (3d Cir. 2005)
     (unpublished); LaVigna v. WABC Television, Inc., 159 F.R.D. 432, 437 (S.D.N.Y.
     1995).


                                           6
