     12-1420
     Bice v. Robb

                          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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 14th day of February, two thousand thirteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                AMALYA L. KEARSE,
 9                SUSAN L. CARNEY,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       ELIZABETH ROBB BICE, CLARE ROBB WENK,
14       EDWARD ROBB, BARBARA ROBB,
15                Plaintiffs-Appellants,
16
17                    -v.-                                               12-1420
18
19       GEORGE E. ROBB, JR.,
20                Defendant-Appellee.
21       - - - - - - - - - - - - - - - - - - - -X
22
23       FOR APPELLANTS:                       JOHN M. BRICKMAN (Todd H.
24                                             Hesekiel and Benjamin S. Kaplan,
25                                             on the brief), Ackerman, Levine,
26                                             Cullen, Brickman & Limmer, LLP,
27                                             Great Neck, New York.
28

                                                  1
 1   FOR APPELLEE:              JAMES A. GOOLD (Laura M. Flahive
 2                              Wu, Covington & Burling LLP, New
 3                              York, New York, on the brief;
 4                              Rosemarie Paine, Jacobs & Dow
 5                              LLC, New Haven, Connecticut, on
 6                              the brief), Covington & Burling
 7                              LLP, Washington, D.C.
 8
 9        Appeal from a judgment of the United States District
10   Court for the Southern District of New York (Crotty, J.).
11
12        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
13   AND DECREED that the judgment of the district court be
14   AFFIRMED.
15
16        Elizabeth Robb Bice, Clare Robb Wenk, Edward Robb, and
17   Barbara Robb (the “siblings”) appeal from the judgment of
18   the United States District Court for the Southern District
19   of New York (Crotty, J.), granting summary judgment in favor
20   of their older brother, George E. Robb, Jr. We assume the
21   parties’ familiarity with the underlying facts, the
22   procedural history, and the issues presented for review.
23
24   1.   The district court properly granted summary judgment in
25   favor of George Jr. on the siblings’ three claims. As to
26   their claim for breach of contract, the siblings failed to
27   establish that any enforceable agreement actually existed,
28   as required under New York law. See Eternity Global Master
29   Fund Ltd. v. Morgan Guar. Trust Co. of N.Y., 375 F.3d 168,
30   177 (2d Cir. 2004). Even accepting that George Jr. promised
31   his father that he would “take care of the family,” such a
32   promise is far too indefinite and vague to be enforced. See
33   Dombrowski v. Somers, 41 N.Y.2d 858, 859 (1977).
34
35        As to the siblings’ claims premised on constructive
36   trust and unjust enrichment, such equitable remedies are
37   soundly within the district court’s discretion. In re
38   Flanagan, 503 F.3d 171, 179-80 (2d Cir. 2007). Because
39   there was no enforceable promise and because George Jr.’s
40   buyout of RPM Securities, Inc. (a New York Stock Exchange
41   specialist firm) was an arm’s-length transaction with the
42   senior management of RPM (including his father), the
43   district court did not abuse its discretion in refusing to
44   impose a constructive trust or order restitution for the
45   alleged unjust enrichment.
46


                                  2
 1   2.   The district court did not abuse its discretion in
 2   ordering the siblings to produce certain documents they
 3   claimed were privileged: emails between the siblings
 4   considering their potential claims against George Jr. Such
 5   documents are not attorney-client communications, because
 6   counsel for the siblings was not actually a party to the
 7   discussions. See United States v. Mejia, 655 F.3d 126, 131-
 8   32 (2d Cir. 2011). Likewise, the documents are not
 9   protected by the attorney work-product doctrine, because
10   (though they may have been created because of the prospect
11   of litigation) they are not the work product of an
12   individual acting as the siblings’ attorney. See United
13   States v. Adlman, 134 F.3d 1194, 1196 (2d Cir. 1998); see
14   also Hickman v. Taylor, 329 U.S. 495, 510 (1947); In re
15   Grand Jury Subpoenas Dated Mar. 19, 2002 & Aug. 2, 2002, 318
16   F.3d 379, 383 (2d Cir. 2003).
17
18   3.   Finally, the district court did not manifestly err in
19   refusing to consider the Langone declaration. A district
20   court “has wide discretion in punishing failure to conform
21   to the rules of discovery.” Outley v. City of New York, 837
22   F.2d 587, 590 (2d Cir. 1988). Here, the siblings sought
23   leave to submit the Langone declaration well after the close
24   of discovery and after the main briefs supporting and
25   opposing summary judgment had been filed. In any event, the
26   district court reasonably concluded that its content was too
27   remote and too speculative.
28
29        For the foregoing reasons, and finding no merit in the
30   siblings’ other arguments, we hereby AFFIRM the judgment of
31   the district court.
32
33                              FOR THE COURT:
34                              CATHERINE O’HAGAN WOLFE, CLERK
35




                                  3
