    11-3401-cv
    Brown v. Coleman



                                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 “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, held at the
    Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
    14th day of March, two thousand thirteen.

    PRESENT:
                GUIDO CALABRESI,
                ROSEMARY S. POOLER,
                REENA RAGGI,
                      Circuit Judges.
    ____________________________________________________________

    LUISA GUTTI BROWN,

                     Plaintiff-Appellant,

                     -v.-                                                        11-3401-cv

    SYDNEY COLEMAN, M.D., KENNETH WEMM, M.D.,
    AND TRIBECA PLASTIC SURGERY,

                Defendants-Appellees.*
    ___________________________________________________________

    For Appellant:                  Luisa Gutti Brown, pro se, Clifton, NJ

    For Appellees:                  Gina B. DiFolco (Wayne Marc Roth, on the brief) McAloon &
                                    Friedman, P.C., New York, NY, for Defendants-Appellees Sydney
                                    Coleman, M.D., and Tribeca Plastic Surgery




               *
                   The Clerk of Court is directed to amend the official caption as set out above.
                              Michael Paul Kandler (Bruce Morgan Brady, on the brief) Callan,
                              Koster, Brady & Brennan, LLP, New York, NY, for Defendant-
                              Appellee Kenneth Wemm, M.D.

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

    UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND
DECREED that the district court judgment is AFFIRMED.

        Plaintiff-Appellant Luisa Gutti Brown, pro se, appeals from an order denying a motion to
compel a third party’s compliance with a subpoena, an order granting a motion in limine
precluding certain evidence from trial, orders partially granting summary judgment and, upon
reconsideration, granting summary judgment in full to defendant Kenneth Wemm, and a final
judgment in favor of defendants Sydney Coleman and Tribeca Plastic Surgery entered following
a jury trial. We assume the parties’ familiarity with the underlying facts and the procedural
history of the case.

I.     Issues Not Preserved for Appellate Review

        We will not consider Brown’s arguments concerning either the relevance of complaints
to the New York Department of Health (“NYDOH”) or the New York Police Department
(“NYPD”), or the request for a new trial because she failed to preserve those issues for appellate
review. The well-established general rule is that a court of appeals will not consider an issue
raised for the first time on appeal. See Singleton v. Wulff, 428 U.S. 106, 120-21 (1976); see also
Virgilio v. City of New York, 407 F.3d 105, 116 (2d Cir. 2005). Moreover, merely mentioning or
stating an issue in a brief is insufficient to present an issue for appellate review. See Niagara
Mohawk Power Corp. v. Hudson River-Black River Regulating Dist., 673 F.3d 84, 107 (2d Cir.
2012). To be sure, the rule is not an absolute bar to raising new issues on appeal, and this Court
may, in its discretion, depart from the general rule to remedy manifest or obvious injustice. See
Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 527 (2d Cir. 1990). That, however, is not
this case.

        Here, Brown was represented by counsel in the district court who filed lengthy
opposition papers responding to several arguments raised in the motion in limine filed by
defendants Coleman and Tribeca Plastic Surgery. Those papers did not respond to the
defendants’ argument seeking exclusion at trial of the NYDOH and NYPD complaints. Brown
offers no explanation for this failure. Nor has she otherwise demonstrated manifest injustice
from the court’s grant of in limine relief. Accordingly, we decline to review this claim. See
Thomas E. Hoar, 900 F.2d at 527. To the extent Brown’s appellate challenge to the in limine
ruling could be construed to argue that her attorney below was ineffective in failing to oppose
the defendants’ motion on this basis, that does not present a ground for reviewing claims
presented for the first time on appeal, as we have held that clients pursuing civil claims “must be
held accountable for the acts and omissions of their attorneys.” Unicorn Tales, Inc. v. Banerjee,
138 F.3d 467, 471 (2d Cir. 1998) (internal quotation marks omitted).

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         Brown’s argument that the judgment should be reversed and the case remanded for a new
trial is also unpreserved. Beyond a conclusory sentence at the end of her brief, Brown fails to
specify any error committed during trial. Accordingly, we do not consider the argument. See
Niagara Mohawk, 673 F.3d at 107.

II.    Motion to Compel

         We review a district court’s discovery rulings for abuse of discretion. See In re Agent
Orange Prod. Liab. Litig., 517 F.3d 76, 102 (2d Cir. 2008); see also In re Fitch, Inc., 330 F.3d
104, 108 (2d Cir. 2003) (“Motions to compel . . . are . . . entrusted to the sound discretion of the
district court.” (internal quotation marks omitted)). Although a party “must be afforded a
meaningful opportunity to establish the facts necessary to support his claim,” a district court has
“wide latitude to determine the scope of discovery,” and abuses its discretion “only when the
discovery is so limited as to affect a party’s substantial rights.” In re Agent Orange, 517 F.3d at
103 (internal quotation marks and citations omitted).

         Here, Brown argues that the subpoena served on the CBS news organization should have
been enforced because CBS’s claim of privilege was without merit. The argument fails because
the district court did not deny Brown’s motion to compel on the basis of privilege; rather, it
denied the motion as moot based on the sworn declaration of a CBS representative that the
requested information had been destroyed during the regular course of business in 2006, long
before Brown filed her lawsuit. Accordingly, Brown’s argument that the district court
improperly denied the motion to compel on the ground of privilege is without foundation. In
addition, even if Brown has challenged the mootness ruling on appeal, it cannot be said that the
district court abused its discretion in denying a motion to compel the production of information
in the face of a sworn declaration that such evidence no longer existed and only vague assertions
to the contrary.

III.   Motion for Summary Judgment

        We review orders granting summary judgment de novo, asking whether the record
reveals any genuine dispute of material fact and the moving party was entitled to judgment as a
matter of law. See Fed. R. Civ. P. 56(a); Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292,
300 (2d Cir. 2003). In doing so, we are “required to resolve all ambiguities and draw all
permissible factual inferences in favor of the party against whom summary judgment is sought.”
Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003) (internal quotation marks omitted).
However, “conclusory statements or mere allegations [are] not sufficient to defeat a summary
judgment motion.” Davis v. New York, 316 F.3d 93, 100 (2d Cir. 2002).

         Brown submits that, in granting summary judgment, the district court erroneously
characterized her claim to charge Wemm with permitting Coleman to “remove fat from a part of
her body from which she did not want it removed,” when the court should have stated that she
charged Wemm with allowing Coleman “to inject large amounts of fat to [her] face.” This
argument is without merit because Brown herself repeatedly asserted in her summary judgment
filings that Wemm was negligent in failing to stop Coleman from harvesting fat from areas of her

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body to which she did not consent. Accordingly, because Brown claims no other error in the
grant of summary judgment to Wemm, the district court’s order is affirmed.

       We have considered all of Brown’s remaining 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




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