11-5420-cv
Galindo v. Instalaciones de Tendidos Telefonicos, S.A.

                                   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 TO 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 January, two thousand thirteen.

PRESENT: PIERRE N. LEVAL,
         REENA RAGGI,
                    Circuit Judges,
         KENNETH M. KARAS,
                    District Judge.*

-------------------------------------------------------------------------------------
MARCELINO ALBUQUERQUE GALINDO, MUSP
SERVICOS DE LOCACAO, LTDA.,
              Consolidated Plaintiffs-Consolidated
              Counter Defendants-Cross
              Claimants-Appellants,

ITETE BRASIL INSTALACOES TELEFONICAS LTD.,
                Defendant-Consolidated Third Party
                Defendant-Cross Defendant-Cross
                Claimant-Appellant,
          v.                                                                            No. 11-5420-cv

INSTALACIONES DE TENDIDOS TELEFONICOS,
S.A.,
              Consolidated Third Party Defendant
              -Interpleader Plaintiff-Appellee,

          *
        The Honorable Kenneth M. Karas, of the United States District Court for the
Southern District of New York, sitting by designation.
INSTALACIONES DE TELEFONOS, S.A.,
              Defendant-Cross Claimant-Cross
              Defendant,

UBS INTERNATIONAL INC., UBS FINANCIAL
SERVICES INC.,
               Consolidated         Defendants-
               Consolidated Counter Claimants-
               Consolidated Third Party Plaintiffs-
               Interpleader Plaintiffs.**
---------------------------------------------------------------------------------

APPEARING FOR APPELLANTS:                                  JOHN P. GLEASON, Gleason & Koatz, LLP,
                                                           New York, New York.

APPEARING FOR APPELLEE:                                    JOHN DELLAPORTAS (Rachael G. Pontikes,
                                                           Kevin Potere, on the brief), Duane Morris LLP,
                                                           New York, New York.

         Appeal from a judgment of the United States District Court for the Southern District

of New York (Lewis A. Kaplan, Judge; James C. Francis IV, Magistrate Judge).

         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on December 5, 2011, is AFFIRMED.

         In this interpleader action, appellants Marcelino Albuquerque Galindo

(“Albuquerque”), MUSP Servicos de Locacao, Ltda. (“MUSP” and together with

Albuquerque, “MUSP Appellants”), and Itete Brasil Instalacoes Telefonicas Ltd. (“Itete

Brasil”) challenge an award of summary judgment in favor of appellee Instalaciones de

Tendidos Telefonicos, S.A. (“Itete Spain”) on claims to funds deposited with the court by

UBS International Inc. and UBS Financial Services Inc. We assume the parties’ familiarity



         **
           The Clerk of Court is directed to amend the official caption as shown above.

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with the facts and record of prior proceedings, which we reference only as necessary to

explain our decision to affirm.

1.     Jurisdiction

       As an initial matter, we agree with Itete Spain that we lack jurisdiction over Itete

Brasil’s appeal. Although the caption of the initial timely notice of appeal references Itete

Brasil, the body states only that Albuquerque and MUSP intend to appeal, omitting any

reference to Itete Brasil. This is insufficient to confer jurisdiction on this court to hear an

appeal by Itete Brasil. See Gusler v. City of Long Beach, 700 F.3d 646, 648–650 (2d Cir.

2012) (holding notice of appeal that mentioned party in caption, but identified different party

as appealing in body, insufficient to confer jurisdiction under Fed. R. App. P. 3(c)(1)(A)).

Insofar as the “first amended notice of appeal” clearly expresses Itete Brasil’s intent to

appeal, that notice cannot confer jurisdiction over Itete Brasil’s appeal as it was untimely,

having been filed more than 30 days after entry of judgment, and over 14 days after MUSP

Appellants’ initial notice of appeal. See Fed. R. App. P. 4(a)(1)(A), (a)(3). In sum, because

Itete Brasil failed to comply with the requirements of Fed. R. App. P. 3 and 4, which are

jurisdictional and may not be waived, see Torres v. Oakland Scavenger Co., 487 U.S. 312,

317 (1988), Itete Brasil’s appeal is dismissed for lack of jurisdiction.1




       1
         In any event, even if we had jurisdiction over Itete Brasil’s appeal, we would affirm
the district court’s dismissal of its claims and defenses, in light of Itete Brasil’s willful and
repeated violations of the district court’s discovery orders over a sustained time period. See
Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298, 302 (2d Cir. 2009).

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2.     Discovery Sanctions

       MUSP Appellants contend that the district court abused its discretion when, in

response to their continued violations of discovery orders, the court precluded them from

arguing that they advanced $1 million on behalf of Itete Brasil. In evaluating a district

court’s exercise of its discretion to sanction a party for discovery abuses under Fed. R. Civ.

P. 37, we consider “(1) the willfulness of the non-compliant party or the reason for

non-compliance; (2) the efficacy of lesser sanctions; (3) the duration of the period of

noncompliance; and (4) whether the non-compliant party had been warned of the

consequences of . . . noncompliance.” Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298, 302

(2d Cir. 2009) (ellipsis in original; internal quotation marks omitted). Here, these factors all

weigh against MUSP Appellants. After Albuquerque testified under oath to the existence of

documents relevant to MUSP Appellants’ contention that they advanced $1 million on behalf

of Itete Brasil, MUSP Appellants failed to produce those documents in response to Itete

Spain’s March 9, 2010 requests. During the next year, MUSP Appellants willfully ignored

repeated court orders to produce relevant documents, despite being warned that failure to

comply would result in potentially case-dispositive sanctions, specifically dismissal. Despite

MUSP Appellants’ continued obstructive conduct, the district court nevertheless did not

immediately impose the severe sanction of dismissal, electing instead to order preclusion of

the argument to which the withheld discovery most directly pertained. In the circumstances

presented, we conclude that the district court acted well within its discretion in imposing that

sanction. See Agiwal v. Mid Island Mortg. Corp., 555 F.3d at 303; Daval Steel Prods. v.

M/V Fakredine, 951 F.2d 1357, 1366–67 (2d Cir. 1991).

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3.     Summary Judgment

       MUSP Appellants argue that it was “unreasonable” for the district court to grant

summary judgment in favor of Itete Spain, due to MUSP Appellants’ “inconsequential

omission of the [Local] Rule 56.1 Statement.” Appellants Br. 14. On de novo review of the

summary judgment award, see Paneccasio v. Unisource Worldwide, Inc., 532 F.3d 101, 107

(2d Cir. 2008), we conclude that the argument fails because the MUSP Appellants’ failure

to submit a Rule 56.1 statement was far from “inconsequential.” Rather, it permitted the

district court to assume the truth of Itete Spain’s uncontroverted Rule 56.1 statement

indicating that Albuquerque was not entitled to receive dividends from Itete Spain. See T.Y.

v. N.Y.C. Dep’t of Educ., 584 F.3d 412, 418 (2d Cir. 2009). MUSP Appellants have pointed

to no admissible evidence raising a genuine issue of material fact regarding Albuquerque’s

entitlement to dividends. Accordingly, summary judgment was appropriate.

       We have considered appellants’ remaining arguments and conclude that they are

without merit. The judgment of the district court is AFFIRMED.

                                   FOR THE COURT:
                                   CATHERINE O’HAGAN WOLFE, Clerk of Court




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