         12-1521-cv(L)
         Spagnola and Bernstein v. Great Northern

                                 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 22nd day of August, two thousand thirteen.
 5
 6       PRESENT:
 7                      RICHARD C. WESLEY,
 8                      PETER W. HALL,
 9                      SUSAN L. CARNEY,
10                               Circuit Judges.
11
12
13
14       FRED SPAGNOLA, individually and on behalf of others
15       similarly situated,
16       JONATHAN BERNSTEIN, individually and on behalf of others
17       similarly situated,
18
19                                     Plaintiffs-Appellants,
20
21                             -v.-                                         12-1521-cv (Lead)
22                                                                          12-2746-cv (Con)
23
24       GREAT NORTHERN INSURANCE COMPANY, THE CHUBB CORPORATION,
25
26                                     Defendants-Appellees,
27
28       FEDERAL INSURANCE COMPANY, JOHN D. FINNEGAN, THOMAS F.
29       MOTAMED,
30                         Defendants.*


                *
               The Clerk of the Court is directed to amend the caption in
         the case to conform with the above.
 1
 2
 3   FOR APPELLANT:    Peter S. Linden, Edward M. Varga III,
 4                     Andrew McNeela, Roger W. Kirby (of
 5                     counsel), Kirby McInerney LLP, New York,
 6                     NY.
 7
 8                     Harold Edgar, (of counsel), Law Office of
 9                     Harold Edgar, New York, NY.
10
11                     Kenneth Elan, Law Office of Kenneth Elan,
12                     New York, NY.
13
14   FOR APPELLEE:     Joseph G. Finnerty III, Keara M. Gordon,
15                     DLA Piper LLP (U.S.), New York, NY.
16
17                     Sara Z. Moghadam, DLA Piper LLP (U.S.),
18                     Washington, D.C.
19
20
21        Appeal from the United States District Court for the
22   Southern District of New York (Baer, J.).
23
24       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

25   AND DECREED that the judgment of the United States District

26   Court for the Southern District of New York is AFFIRMED.

27       Plaintiffs-Appellants Fred Spagnola and Jonathan

28   Bernstein appeal from a decision issued by the United States

29   District Court for the Southern District of New York (Baer,

30   J.) denying them class certification. We assume the parties’

31   familiarity with the underlying facts, the procedural

32   history, and the issues presented for review.

33       Plaintiff-Appellant Spagnola commenced this litigation

34   in September 2006. The district court dismissed the majority

                                  2
1    of Spagnola’s claims, and on appeal, this Court affirmed the

2    dismissal, but remanded for the court to further re-examine

3    claims relating to certain language in the policy. On

4    remand, the district court coordinated Spagnola’s case with

5    Bernstein’s, who had filed while Spagnola sought appeal.

6    Together, they filed for class certification and were

7    denied. Spagnola and Bernstein appealed, but this Court

8    remanded for reconsideration sua sponte in light of Wal-Mart

9    Stores Inc. v. Dukes, 131 S. Ct. 2541 (2011). The district

10   court found Wal-Mart had limited import for the instant

11   case; affirmed its prior order; and denied class

12   certification. This appeal followed.

13       Plaintiffs-Appellants appeal on the grounds that the

14   district court’s denial of class certification pursuant to

15   Federal Rule of Civil Procedure 23(a)(4) and (b)(3) was in

16   error.

17       This Court applies an abuse of discretion standard

18   "both [to] the lower court's ultimate determination on

19   certification of a class as well as to its rulings that the

20   individual Rule 23 requirements have been met." Myers v.

21   Hertz Corp., 624 F.3d 537, 547 (2d Cir. 2010). The district

22   court "is empowered to make a decision--of its


                                  3
1    choosing--that falls within a range of permissible

2    decisions," and the Court will only find "abuse" when the

3    district court's decision "rests on an error of law. . . or

4    a clearly erroneous factual finding, or. . . its decision. .

5    . cannot be located within the range of permissible

6    decisions." Myers, 624 F.3d at 547. The parties seeking

7    class certification--here, Spagnola and Bernstein--bear the

8    burden of establishing the evidence that each of Rule 23's

9    requirements has been met. See Amchem Prods., Inc. v.

10   Windsor, 521 U.S. 591, 614 (1997).

11       Nothing in the lower court’s well-reasoned decision

12   finding that Plaintiffs-Appellants failed to meet their

13   burden of demonstrating that they were adequate class

14   representatives, or that common questions predominated in

15   the proposed class action, veers outside the range of

16   permissible decisions.

17       For the foregoing reasons, the judgment of the district

18   court is hereby AFFIRMED.

19                               FOR THE COURT:
20                               Catherine O’Hagan Wolfe, Clerk
21

22




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