13-3589-cv
Barbara v. MarineMax, Inc.

                                  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 28th
day of August, two thousand fourteen.

PRESENT:           JOSÉ A. CABRANES,
                   DENNY CHIN,
                   RAYMOND J. LOHIER, JR.,
                                Circuit Judges.


PAUL BARBARA, DIANE KENNEY, ANGELA CHIANESE,
MATTHEW BARBARA,

                   Plaintiffs-Appellants,

                             v.                                                       No. 13-3589-cv

MARINEMAX, INC.,

                   Defendant-Appellee,

WILLIAM H. MCGILL, JR., MICHAEL H. MCLAMB,
MICHAEL AIELLO, ROBERT KANT,

                   Defendants.*




         * Plaintiffs clarified in their reply brief that they are not appealing the District Court’s grant of summary

judgment with respect to defendants William H. McGill, Jr., Michael H. McLamb, Michael Aiello, and Robert Kant.
Reply Br. 1 n.1. Accordingly, the Clerk of Court is respectfully directed to amend the official caption in this case to
conform with the caption above.
FOR PLAINTIFFS-APPELLANTS:                              PETER R. GINSBURG, Peter R. Ginsberg Law,
                                                        LLC, New York, NY.

FOR DEFENDANT-APPELLEE:                                 DAVID G. JANUSZEWSKI (John A. Eakins,
                                                        Cahill Gordon & Reindel LLP, New York,
                                                        NY; Paul C. Gluckow, Leigh Wasserstrom,
                                                        Simpson Thacher & Bartlett LLP, New York,
                                                        NY, on the brief), Cahill Gordon & Reindel
                                                        LLP, New York, NY.

       Appeal from a judgment of the United States District Court for the Eastern District of New
York (Allyne R. Ross, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

        Plaintiffs Paul Barbara, Diane Kenney, Angela Chianese, and Matthew Barbara (jointly, the
“Barbaras”) appeal from the District Court’s August 23, 2013 entry of summary judgment in favor
of defendant-appellee MarineMax, Inc. (“MarineMax”). On appeal, we consider whether the District
Court properly held that there was no genuine dispute of material fact as to whether MarineMax
breached the duty of good faith and fair dealing. We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the issues on appeal.

         We review a grant of summary judgment de novo, viewing the facts “in the light most
favorable to the non-moving party and draw[ing] all reasonable inferences in that party’s favor.” Cox
v. Warwick Valley Cent. Sch. Dist., 654 F.3d 267, 271 (2d Cir. 2011). Summary judgment is appropriate
where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a). “Where the record taken as a whole could not lead a rational
trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         Under New York law, the implied covenant of good faith and fair dealing provides that
“neither party to a contract shall do anything which has the effect of destroying or injuring the right
of the other party to receive the fruits of the contract.” M/A-COM Sec. Corp. v. Galesi, 904 F.2d 134,
136 (2d Cir. 1990). In determining whether a party has breached the covenant of good faith and fair
dealing, “a court must examine not only the express language of the parties’ contract, but also any
course of performance or course of dealing that may exist between the parties.” Tractebel Energy
Mktg., Inc. v. AEP Power Mktg., Inc., 487 F.3d 89, 98 (2d Cir. 2007) (internal quotation marks
omitted). “Since there is a presumption that all parties act in good faith, the burden of proving a
breach of the covenant of good faith and fair dealing is on the person asserting the absence of good
faith.” Id. (internal quotation marks and brackets omitted).



                                                   2
        After de novo review of the record and relevant case law, we conclude that the District Court
properly granted summary judgment in favor of MarineMax substantially for the reasons stated in its
August 22, 2013 opinion. With regard to plaintiffs’ potential private sale of restricted securities to
Bear Stearns, the District Court correctly determined that it need not address whether the so-called
Section 4(1½) exemption would have permitted the sale because there was no genuine dispute of
material fact as to whether MarineMax breached the duty of good faith. The record shows that
MarineMax’s outside counsel, Robert Kant (“Kant”), had discussed with plaintiffs their request that
he approve the sale on October 23, 2006. Thereafter, Kant was unresponsive to plaintiffs’
communications for a period of six business days—from October 23, 2006 through October 31,
2006—after which there is no evidence that plaintiffs made any further attempt to contact Kant
until nearly two months later, on December 20, 2006. Kant replied on December 26, 2006,
ultimately approving the sale on January 4, 2007. On this record, taken as a whole, a rational trier of
fact could not find that MarineMax acted in bad faith. Accordingly, MarineMax was properly entitled
to judgment as a matter of law.1

         The District Court also properly granted summary judgment in favor of MarineMax
regarding the public sale. It is undisputed that plaintiffs’ shares were re-registered in their individual
names by February 22, 2007—well before the one-year holding period for their restricted securities
expired on April 1, 2007. As a result, any alleged delay by MarineMax in assisting the re-registration
did not “injur[e]” or “destroy[]” plaintiffs’ ability to sell the shares publicly. M/A-COM, 904 F.2d at
136. Nor is it genuinely disputed that plaintiffs did not submit a written request to Kant to approve a
public sale until August 2009, after which Kant promptly provided the requisite opinion letters and
plaintiffs sold their stock. The contract between the parties clearly mandated that “[a]ll notices,
requests, demands, and other communications required or permitted under this Agreement shall be
in writing.” Accordingly, MarineMax was also entitled to judgment as a matter of law regarding the
public sale.

       We have considered all of the arguments raised by plaintiffs on appeal and find them to be
without merit. For the reasons stated above, we AFFIRM the District Court’s August 23, 2013
judgment.

                                                                 FOR THE COURT:
                                                                 Catherine O’Hagan Wolfe, Clerk




         1 Indeed, plaintiffs’ counsel informed us at oral argument that there was no evidence in the record of bad faith

regarding the private sale other than delay, and that plaintiffs’ counsel was aware of no cases holding that delay alone
could constitute bad faith.

                                                            3
