     10-1142-cv
     RSL Communications Plc v. Bildirici et al.




                          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 .


 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 26 th day of January, two thousand eleven.
 5
 6       PRESENT: DENNIS JACOBS,
 7                         Chief Judge,
 8                RICHARD C. WESLEY,
 9                DENNY CHIN,
10                         Circuit Judges.
11
12
13       - - - - - - - - - - - - - - - - - - - -X
14       RSL COMMUNICATIONS PLC, by Michael
15       John Andrew Jervis and Steven Anthony
16       Pearson, as the Joint Administrators,
17
18                    Plaintiff-Counter-Defendant-
19                    Appellant,
20
21                    -v.-                                         10-1142-cv
22
23       ITZHAK FISHER,
24
25                    Defendant-Counter-Claimant-
26                    Appellee,
27

                                                  1
 1   NESIM BILDIRICI, PAUL DOMORSKI, RONALD
 2   S. LAUDER, STEVEN SCHIFFMAN, JACOB
 3   SCHUSTER, and EUGENE SEKULOW,
 4
 5             Defendants-Appellees. *
 6   - - - - - - - - - - - - - - - - - - - -X
 7
 8   FOR APPELLANT:    JOHN H. BAE (Adam C. Dembrow, Kaitlin R.
 9                     Walsh, Paul T. Martin, Greenberg Traurig,
10                     LLP, New York, NY, and Dan K. Webb,
11                     Robert L. Michels, Ryanne L. Easley,
12                     Winston & Strawn LLP, Chicago, IL, on the
13                     brief), Greenberg Traurig, LLP, New York,
14                     NY.
15
16   FOR APPELLEES:    JOHN S. KIERNAN (Catherine M. Amirfar,
17                     Benjamin Sirota, William C. Weeks, on the
18                     brief), Debevoise & Plimpton LLP, New
19                     York, NY.
20
21        Appeal from a judgment of the United States District
22   Court for the Southern District of New York (Sullivan, J.).
23
24        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
25   AND DECREED that the judgment of the district court be
26   AFFIRMED.
27
28        Appellant RSL Communications Plc (“Plc”) appeals from
29   (1) the judgment entered on March 9, 2010 by the United
30   States District Court for the Southern District of New York
31   (Sullivan, J.) , which, inter alia, granted Appellees’ motion
32   for summary judgment and denied Plc’s motion to supplement
33   discovery, pursuant to its opinion dated August 10, 2009;
34   and (2) the district court’s orders dated February 23, 2009
35   and May 4, 2009, ruling that the “but for” and proximate
36   causation standards were applicable, rather than the
37   “substantial factor” standard. We assume the parties’
38   familiarity with the underlying facts, the procedural
39   history, and the issues presented for review.
40
41   [1] A grant of summary judgment is reviewed de novo,
42   “resolv[ing] all ambiguities and draw[ing] all permissible


         *
            The Clerk of the Court is directed to amend the
     official caption to conform to the caption listed above.

                                   2
 1   factual inferences in favor of the party against whom
 2   summary judgment is sought.” Terry v. Ashcroft, 336 F.3d
 3   128, 137 (2d Cir. 2003) (quoting Stern v. Trustees of
 4   Columbia Univ., 131 F.3d 305, 312 (2d Cir. 1997)). The
 5   denial of a motion to supplement discovery under Fed. R.
 6   Civ. P. 56(f)** is reviewed for abuse of discretion. See
 7   Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d
 8   Cir. 2003).
 9
10        We affirm the district court’s grant of summary
11   judgment and denial of supplementation for substantially the
12   reasons stated in Judge Sullivan’s well-reasoned and
13   scholarly opinion. See RSL Commc’ns Plc v. Bildirici, 649
14   F. Supp. 2d 184 (S.D.N.Y. 2009).
15
16   [2] We review the legal standards applied by the district
17   court de novo. See Myers v. Hertz Corp., 624 F.3d 537, 547
18   (2d Cir. 2010). We affirm the district court’s selection of
19   the “but for” and proximate causation standards for
20   substantially the reasons stated in its two orders, dated
21   February 23, 2009 and May 4, 2009. See RSL Commc’ns Plc v.
22   Bildirici, No. 04 Civ. 5217, 2009 U.S. Dist. LEXIS 37547
23   (S.D.N.Y. May 4, 2009); RSL Commc’ns Plc v. Bildirici, No.
24   04 Civ. 5217, 2009 U.S. Dist. LEXIS 13864, 2009 WL 454136
25   (S.D.N.Y. Feb. 23, 2009).
26
27        We have considered all of Plc’s contentions on this
28   appeal and have found them to be without merit.
29   Accordingly, the judgment of the district court is hereby
30   AFFIRMED. Plc’s renewed motion to certify to the New York
31   Court of Appeals the question of New York law regarding
32   fiduciary duties to creditors for a company operating in the
33   “zone of insolvency” is DENIED as moot.
34
35
36                              FOR THE COURT:
37                              CATHERINE O’HAGAN WOLFE, CLERK
38
39
40
41

         **
            Recent amendments to the Federal Rules of Civil
     Procedure (effective December 1, 2010) moved the relevant
     provision to Fed. R. Civ. P. 56(d), without substantive
     change.

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