11-2376-cv
Guckenberger v. Prudential Ins. Co. of Am.

                               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
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 9th day of July, two thousand twelve,

Present:    PIERRE N. LEVAL,
            ROSEMARY S. POOLER,
            CHRISTOPHER F. DRONEY,
                        Circuit Judges.
_____________________________________________________

CHRISTINE GUCKENBERGER,

                                  Plaintiff-Appellant,

                            -v-                                            11-2376-cv

PRUDENTIAL INSURANCE COMPANY OF AMERICA,

                        Defendant-Appellee.
_____________________________________________________

Appearing for Appellant:          Brian M. Hussey, Wantagh, N.Y.

Appearing for Appellee:           Tiffany A. Buxton, Alston & Bird LLP, New York, N.Y.

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

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED in
part and VACATED in part.
        Christine Guckenberger appeals from a judgment of the district court entered on May 13,
2011. We assume the parties’ familiarity with the underlying facts, procedural history, and
specification of issues for review.

       Guckenberger argues on appeal that the district court improperly granted summary
judgment in favor of Prudential Insurance Company of America. “Our standard of review for . .
. motions for summary judgment is de novo.” Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d
292, 300 (2d Cir. 2003). “On a motion for summary judgment, all factual inferences must be
drawn in favor of the non-moving party.” Id.

       We believe that Prudential’s evidence, including Jennifer M. Ervin’s detailed
supplemental affidavit, was sufficient to raise a presumption that proper notice was mailed as
required under New York state law. See N.Y. Ins. L. § 3211(c). Indeed, Prudential’s evidence
provided the district court with sufficient basis to conclude that Prudential’s “office practice . . .
[was] geared so as to ensure the likelihood that a notice of cancellation is always properly
addressed and mailed.” Nassau Ins. Co. v. Murray, 46 N.Y.2d 828, 830 (1978). Because
Guckenberger failed to present any evidence to rebut the presumption raised by Prudential, and
indeed concedes that she could not have rebutted such a presumption, the district court properly
granted summary judgment in favor of Prudential.

         Furthermore, we conclude that we have jurisdiction over the claim on appeal that the
district court improperly sanctioned Guckenberger’s counsel pursuant to Federal Rule of Civil
Procedure Rule 11. “Where an award of sanctions runs only against the attorney, the attorney is
the party in interest and must appeal in his or her name.” DeLuca v. Long Island Lighting Co.,
Inc., 862 F.2d 427, 429 (2d Cir. 1988). Federal Rule of Appellate Procedure 3, however, makes
clear that “[a]n appeal must not be dismissed . . . for failure to name a party whose intent to
appeal is otherwise clear from the notice.” Fed. R. App. P. 3(c)(4).

        Here, even though the notice of appeal does not specifically list Guckenberger’s counsel
as a party, counsel’s intent to appeal from the district court’s order sanctioning counsel is
sufficiently clear, given that the notice of appeal specifies that the judgment from which an
appeal was taken not only “dismiss[ed] plaintiff’s complaint” but also “sanction[ed] plaintiff’s
counsel in the amount of $500.” In this context, we believe that the notice of appeal makes clear
that counsel intended to be a party to the appeal because counsel alone was the subject of the
court’s sanction and Guckenberger would have had no direct personal stake in the outcome of an
appeal from the portion of the district court’s order sanctioning counsel. Cf. Agee v. Paramount
Commc’ns, Inc., 114 F.3d 395, 399 (2d Cir. 1997).

        “We review a district court’s determination with respect to sanctions under . . . Rule 11
for abuse of discretion.” Gurary v. Winehouse, 235 F.3d 792, 798 (2d Cir. 2000). We conclude
there was no proper basis for sanctioning Guckenberger’s counsel. While we believe that
Prudential’s evidence was sufficient to raise the presumption at issue, we are unable to conclude
that counsel’s pursuit of Guckenberger’s claim—including counsel’s argument that Ervin’s
supplemental affidavit was insufficient to entitle Prudential to summary judgment—warranted
the sanction imposed by the district court.

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     Accordingly, the district court’s grant of summary judgment in Prudential’s favor is
AFFIRMED, while the order of the district court sanctioning Guckenberger’s counsel is
VACATED.


                                                   FOR THE COURT:
                                                   Catherine O’Hagan Wolfe, Clerk




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