    13-4215
    Corsair Special Situations Fund, L.P. v. National Resources


                             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 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 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
    17th day of December, two thousand fourteen.

    PRESENT:
                ROBERT D. SACK,
                GERARD E. LYNCH,
                RAYMOND J. LOHIER, JR.,
                      Circuit Judges.
    _____________________________________

    CORSAIR SPECIAL SITUATIONS FUND, L.P.,

                                 Plaintiff-Appellee,

                       v.                                              13-4215

    NATIONAL RESOURCES, NATIONAL
    RE/SOURCES INVESTMENTS, LLC, I.PARK,
    LLC, AKA iPark, IPARK EDGEWATER, LLC,
    ONE MAIN STREET EDGEWATER, LLC,
    HUDSON VIEW ASSOCIATES, LLC,
    WESTCHESTER INDUSTRIES, INC.,

                                 Third Parties-Appellants,

    ENGINEERED FRAMING SYSTEMS, INC.,
    JOHN J. HILDRETH, MARIE N. HILDRETH,
    EFS STRUCTURES, INC.,


                                 Defendants.
    _____________________________________
FOR PLAINTIFF-APPELLEE:                       MATTHEW SCOTT STURTZ (Gregory J. Spaun,
                                              Welby, Brady, & Greenblatt, LLP, on the brief),
                                              Miles & Stockbridge, P.C., Baltimore, Maryland.


FOR THIRD PARTIES-APPELLANTS: JOHN F. CARBERRY (William. N. Wright, on the
                              brief), Cummings & Lockwood LLC, Stamford,
                              Connecticut.


       Appeal from a judgment of the United States District Court for the District of

Connecticut (Janet C. Hall, J.).

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

DECREED that the judgment of the district court is AFFIRMED.

       After plaintiff-appellee Corsair Special Situations Fund, L.P. (“Corsair”) served a writ of

execution on third party-appellant National Resources for certain funds allegedly owed by

National Resources to defendant EFS Structures, National Resources continued to pay the funds

directly to or on behalf of EFS. Corsair then moved for a turnover order directing National

Resources to pay Corsair approximately two million dollars, the amount allegedly paid by

National Resources in violation of the writ, which the district court granted on September 26,

2013. National Resources now appeals that order, as well as the district court’s denials of its

Motion for Reconsideration and request for an evidentiary hearing. We assume the parties’

familiarity with the underlying facts, the procedural history, and the issues on appeal.

       National Resources asserts several errors in the rulings below. First, it reasserts its

claims that it failed to receive proper service of Corsair’s writ of execution and that the “EFS

Structures” to which National Resources owed its debt was not the same company as Corsair’s

judgment-debtor. Second, National Resources argues that the district court misread



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Connecticut’s post-judgment garnishment statute, Conn. Gen. Stat. § 52-536a(a)(4)(B), so as to

calculate a grossly excessive turnover amount, and that the district court improperly relied on

unauthenticated evidence submitted by Corsair – arguments raised for the first time in the district

court in National Resources’s belated Supplemental Memorandum and in its Motion for

Reconsideration, respectively.

       These latter claims were not timely made below, and are therefore not preserved for

appellate review. As a general rule, we do not consider an argument “not properly raised in the

district court,” Nat’l Union Fire Ins. Co. of Pittsburgh, PA. v. Stroh Companies, Inc., 265 F.3d

97, 115-16 (2d Cir. 2001), including one “raised for the first time below in a motion for

reconsideration,” Official Comm. of Unsecured Creditors of Color Tile, Inc. v. Coopers &

Lybrand, LLP, 322 F.3d 147, 159 (2d Cir. 2003). National Resources argues that it raised at

least some of its claims in its Supplemental Memorandum and not, technically, in a motion to

reconsider, but that does not render its challenge timely. Despite having some notice of National

Resources’s statutory objection, the district court never had occasion to probe National

Resources’s challenge at the hearing, nor did Corsair have an opportunity to respond.

       Because these waiver rules are prudential rather than jurisdictional, we may at our

discretion choose to reach an unpreserved argument where (1) “consideration of the issue is

necessary to avoid manifest injustice” or (2) “the issue is purely legal and there is no need for

additional fact-finding.” Baker, 239 F.3d at 420 (internal quotation marks omitted).

“[C]ircumstances normally do not militate in favor of an exercise of discretion,” however, where

the novel arguments “were available to the parties below and they proffer no reason for their

failure to raise [them].” In re Nortel Networks Corp. Sec. Litig., 539 F.3d 129, 133 (2d Cir.

2008) (internal quotation marks omitted).

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       Although National Resources knew the amount sought by Corsair as soon as Corsair filed

its turnover request on January 17, 2013, it did not challenge that amount either in its opposition

to the motion, including in its footnote request for an evidentiary hearing on other issues, or at

the August 20, 2013 hearing held by the district court. Instead, having already submitted

extensive briefing on Corsair’s turnover motion, National Resources first raised its statutory

objections to the requested amount in a Supplemental Memorandum submitted to the district

court on September 13, 2013, nearly a month after the hearing, and first challenged the

admissibility of Corsair’s evidence in its Motion for Reconsideration of the district court’s grant

of the turnover order. National Resources raised these issues belatedly even though it possessed

all the evidence necessary to respond to Corsair’s calculations, which consisted exclusively of its

own business records, from the beginning of the litigation. Because National Resources

provides no legitimate reason for failing to timely raise its objections to the turnover amount

below, we decline to consider them on appeal.

       For much the same reasons, the district court did not err in denying National Resources’s

Motion for Reconsideration. We review a district court’s denial of a motion for reconsideration

under Rule 59(e) or 60(b) of the Federal Rules of Civil Procedure for abuse of discretion.

Munafo v. Metro. Transp. Auth., 381 F.3d 99, 105 (2d Cir. 2004); Canfield v. Van Atta

Buick/GMC Truck, Inc., 127 F.3d 248, 249 (2d Cir. 1997).

       Under Rule 59(e), a district court may “alter or amend judgment to correct a clear error

of law or prevent manifest injustice.” ING Global v. United Parcel Serv. Oasis Supply Corp.,

757 F.3d 92, 96 (2d Cir. 2014) (internal quotation marks omitted). The “manifest injustice”

standard is, by definition, “deferential to district courts and provide[s] relief only in the


                                                   4
proverbial ‘rare case.’” United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009). As we have

observed, a judgment in a civil case does not constitute “manifest injustice” where the movant’s

arguments for relief “were available to the [party] below and [the party] proffer[s] no reason for

[its] failure to raise the arguments.” In re Johns-Manville Corp., 759 F.3d 206, 219 (2d Cir.

2014) (internal quotation marks omitted). As already noted, National Resources failed to

challenge either the admissibility or the factual or legal accuracy of Corsair’s submission

documenting the amount subject to turnover in any timely fashion before the district court.

Where a party with all the necessary time and resources fails to raise an obvious challenge to a

writ of garnishment, we do not find the imposition of a higher monetary judgment than the party

deems appropriate to constitute a “manifest injustice.”

       Under Rule 60(b), a district court may “relieve a party or its legal representative from a

final judgment, order, or proceeding” on the grounds of “mistake, inadvertence, surprise, or

excusable neglect.” Fed. R. Civ. P. 60(b)(1). In determining whether a party’s neglect is

“excusable” in any given instance, a court should take into account “all relevant circumstances

surrounding the party’s omission,” including “[1] the danger of prejudice to the non-movant, [2]

the length of the delay and its potential impact on judicial proceedings, [3] the reason for the

delay, including whether it was within the reasonable control of the movant, and (4) whether the

movant acted in good faith.” Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 366 (2d Cir.

2003) (internal quotation marks omitted). Despite the inherent “flexibility” of this inquiry, we

have stressed that the core focus remains “on the third factor: the reason for the delay.” Id.

(internal quotation marks omitted).




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       National Resources claims that it failed to challenge Corsair’s turnover amount at the

August 2013 hearing because it reasonably mistook that proceeding for an “oral argument”

focusing purely on “jurisdictional” issues. Yet the district court’s scheduling notice clearly

stated: “Pursuant to Section 52-356b of the Connecticut General Statutes, the court intends to

hold a hearing on plaintiff’s Motion for Turnover” on a specified date. Since Conn. Gen. Stat. §

52-356b is the source of National Resources’s entitlement to a hearing to contest the turnover,

nothing in the notice suggests that the hearing was limited to jurisdictional issues, or that

National Resources would be entitled to a second, more “substantive” hearing later. Moreover,

National Resources’s own request for an “evidentiary hearing” in its opposition to the turnover

motion raised only three issues for the court’s determination, none of which disputed Corsair’s

calculation of the turnover amount. In any event, whether National Resources understood the

August 2013 hearing to be an oral argument or an evidentiary hearing has no bearing on its

failure to object to Corsair’s proposed turnover amount on factual, legal, or evidentiary grounds

in its opposition to Corsair’s initial motion. The district court thus did not abuse its discretion in

finding that National Resources’s misreading of its scheduling order did not qualify as

“excusable neglect” under Rule 60(b).

       Nor did the district court abuse its discretion in denying National Resources’s request for

an additional evidentiary hearing to determine the correct turnover amount. See United States v.

Bonventre, 720 F.3d 126, 128 (2d Cir. 2013) (noting general abuse of discretion standard for

denial of request for evidentiary hearing). National Resources’s request is governed by the

Fourteenth Amendment right to due process, which demands that any “deprivation of life,

liberty, or property be preceded by notice and opportunity for hearing appropriate to the nature


                                                  6
of the case.” Chase Grp. Alliance LLC v. N.Y.C. Dep’t of Fin., 620 F.3d 146, 150 (2d Cir.

2010) (internal quotation marks omitted). In this case, the district court scheduled a hearing on

Corsair’s turnover motion on August 20, 2013. National Resources had the opportunity to raise

any objections to the turnover at or in anticipation of this proceeding. Having failed to avail

itself of that opportunity to oppose Corsair’s turnover amount, National Resources cannot show

that the court abused its discretion by declining to schedule an additional hearing.

       As to National Resources’s preserved challenges to the district court’s turnover order,

neither has merit. First, National Resources claims that it never received proper service of the

writ of execution underlying Corsair’s turnover request. Because Conn. Gen. Stat. § 52-59b

provides for service on foreign corporations through the Secretary of State, National Resources

insists that Corsair’s decision to effect personal service on one of National Resources’s

managing officers was procedurally deficient. Under § 52-59b(c), a foreign corporation in

Connecticut is “deemed to have appointed the Secretary of the State as its attorney and to have

agreed that any process in any civil action brought against the . . . foreign partnership . . . may be

served upon the Secretary of the State and shall have the same validity as if served . . .

personally.” Conn. Gen. Stat. § 52-59b(c). As its permissive language implies, however,

“[§] 52-59b(c) provides only one of many methods of giving notice and is not exclusive.”

Anderson v. Schibi, 364 A.2d 853, 856 (Conn. Super. Ct. App. Sess. 1976); accord Dime Bank

v. Merrill Lynch, Pierce, Fenner & Smith, Inc., No. X05CV094017091S, 2010 WL 760441, at

*16 (Conn. Super. Ct. Jan. 15, 2010); Ruocco v. Metro. Boston Hockey League, No.

CV074024835S, 2007 WL 4635000, at *12 (Conn. Super. Ct. Dec. 7, 2007).

       Another method of serving foreign LLCs in Connecticut is found at Conn. Gen. Stat.


                                                  7
§ 34-105(d), which provides that

                any process, notice or demand in connection with any action or
                proceeding . . . to be served upon a limited liability company
                which is subject to the provisions of section 34-104 may be served
                upon any member of the limited liability company in whom
                management of the limited liability company is vested or any
                manager of the limited liability company by any proper officer.


Conn. Gen. Stat.§ 34-105(d); see also Conn. Gen. Stat. § 34-101(10) (defining a foreign LLC as

“an entity that is . . . not required to be registered or organized under any statute of this state

other than sections 34-100 to 34-242, inclusive”). Because Corsair’s personal service of its writ

on one of National Resources’s managing members comported with Conn. Gen. Stat.§

34-105(d), it satisfies Connecticut’s requirements for effecting service on a foreign corporation.

        Finally, National Resources insists that the “EFS Structures” to which National

Resources owed its debt was not the same entity as Corsair’s judgment-debtor, noting that this

latter “EFS Structures” had its corporate status revoked shortly after judgment and that a new

“EFS Structures” incorporated shortly after contracting with National Resources. As National

Resources concedes, the district court’s determination regarding EFS’s identity is a factual

finding reviewable only for clear error. See Mobil Shipping & Transp. Co. v. Wonsild Liquid

Carriers Ltd., 190 F.3d 64, 67 (2d Cir. 1999). In reaching that determination, the district court

emphasized that the “new” EFS Structures used the same name, business address, and federal tax

identification number as the judgment-debtor entity. Furthermore, it reasonably construed the

fact that the “new” EFS was incorporated only after National Resources signed its contract as

further evidence that the contracting entity to whom National Resources pledged its debt must

have been the original EFS. In light of these considerations, the sole countervailing fact of


                                                   8
EFS’s reincorporation does not make the district court’s determination clearly erroneous.

       Accordingly, we AFFIRM the judgment of the district court.

                                            FOR THE COURT:
                                            Catherine O’Hagan Wolfe, Clerk




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