     09-3004-cv
     Cretella v. Luriano


                           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 for the Second Circuit, held
 2   at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
 3   New York, on the 22nd day of March, two thousand ten.
 4
 5   PRESENT:
 6               RALPH K. WINTER,
 7               DEBRA ANN LIVINGSTON,
 8                                 Circuit Judges.
 9               LEWIS A. KAPLAN,
10                                 District Judge. *
11   _________________________________________________
12
13   FRANK CRETELLA,
14             Plaintiff-Appellant,
15
16            -v.-                                            No. 09-3004-cv
17
18   NELSON LIRIANO, individually, and as Manager, MARGARET
19   SPANIOLO, individually, and as General Manager, MARIA LOCCISANO,
20   individually, and as Senior Personnel Employee, and BERGDORF
21   GOODMAN, INC.,
22                  Defendants-Appellees. **
23   _________________________________________________
24
25                                   Da’Tekena Barango-Tariah, Brooklyn, NY, for Plaintiff-
26                                   Appellant.
27

     *
     The Honorable Lewis A. Kaplan of the United States District Court for the Southern
     District of New York, sitting by designation.
     **
        The Clerk of the Court is directed to amend the official caption in this case to conform
     to the listing of the parties stated above.


                                                     1
 1                                  Andrew P. Saulitis, New York, NY, for Defendants-
 2                                  Appellees.
 3
 4          UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND

 5   DECREED that the judgment of the district court be AFFIRMED.

 6          Plaintiff-Appellant Frank Cretella appeals from the May 12, 2009, order and the

 7   June 16, 2009, judgment of the United States District Court for the Southern District of

 8   New York (Swain, J.), sanctioning Cretella for discovery violations and granting the

 9   motion for summary judgment of Defendants-Appellees Nelson Liriano, Margaret

10   Spaniolo, Maria Loccisano, and Bergdorf Goodman, Inc. Cretella argues that the district

11   court abused its discretion in granting sanctions against him and that it erred in finding

12   that he failed to rebut the non-discriminatory reasons for his firing proffered by the

13   defendants. We assume the parties’ familiarity with the underlying facts, procedural

14   history, and specification of the issues on appeal.

15          We review a grant of summary judgment de novo, construing the evidence in the

16   light most favorable to the nonmoving party. Mitchell v. Shane, 350 F.3d 39, 47 (2d Cir.

17   2003). Summary judgment is appropriate when “there is no genuine issue as to any

18   material fact and . . . the movant is entitled to judgment as a matter of law.” Fed. R. Civ.

19   P. 56(c). An issue of fact is “genuine” if “the evidence is such that a reasonable jury

20   could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477

21   U.S. 242, 248 (1986). A decision by a district court imposing sanctions is reviewed for

22   abuse of discretion. United States v. Seltzer, 227 F.3d 36, 39 (2d Cir. 2000). “Whether a

23   litigant was at fault or acted willfully or in bad faith are questions of fact, and we review

24   the District Court’s determinations for clear error.” Agiwal v. Mid Island Mortgage

25   Corp., 555 F.3d 298, 302 (2d Cir. 2009).



                                                   2
 1          Courts have inherent power to assess sanctions “when a party has acted in bad

 2   faith, vexatiously, wantonly, or for oppressive reasons.” DLC Mgmt. Corp. v. Town of

 3   Hyde Park, 163 F.3d 124, 136 (2d Cir. 1998) (quoting Chambers v. NASCO, Inc., 501

 4   U.S. 32, 45 (1991)) (internal quotation mark omitted). The district court must find bad

 5   faith in order to impose such sanctions and bad faith must be shown by “clear evidence”

 6   that the actions in question are taken for “harassment or delay or . . . other improper

 7   purposes.” United States v. Int’l Bhd. of Teamsters, 948 F.2d 1338, 1345 (2d Cir. 1991))

 8   (quoting Oliveri v. Thompson, 803 F.2d 1265, 1272 (2d Cir. 1986)) (internal quotation

 9   marks omitted); see also Seltzer, 227 F.3d at 41-42.

10          Cretella objects to the district court’s order of sanctions on the grounds that the

11   court erred in its factual findings. He argues that the defendants’ lawyer was aware of a

12   non-party witness deposition before it occurred and chose not to attend in order to confer

13   upon the defendants a tactical advantage by obtaining the later exclusion of the witness’s

14   testimony.    The documents presented in the record, which consist mainly of

15   communications between or statements of the two attorneys involved in this matter, do

16   not show that the district court committed clear error in finding that the defendants’

17   attorney was unaware of the deposition at the time that it was being taken or in finding

18   bad faith on the part of Cretella’s attorney. Nor did the court abuse its discretion by

19   disregarding the testimony given at that deposition as a sanction. In fact, the court

20   evaluated the witness’s testimony after its initial determination that the defendants were

21   entitled to summary judgment in order to assure that no issue of material fact was raised

22   in that testimony; Cretella was therefore not prejudiced by the sanctions.




                                                  3
 1            Our independent review of the record confirms that the district court properly

 2   granted the defendants’ motion for summary judgment, and we affirm for substantially

 3   the reasons set out in the court’s extensive and well-reasoned opinion of June 16, 2009.

 4   We have considered all of Cretella’s remaining arguments and find them to be without

 5   merit.

 6            For the foregoing reasons, the judgment of the district court is hereby affirmed.
 7
 8
 9                                                         FOR THE COURT:
10                                                         Catherine O’Hagan Wolfe, Clerk
11
12




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