Michael Bandler, MB & Co. v. BPCM NYC, Ltd. , 631 F. App'x 71 ( 2016 )

15-51 (L), 15-129 (Con)
Bandler v. BPCM NYC, Ltd.
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 ASUMMARY 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 22nd day of January, two thousand sixteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
AMALYA L. KEARSE,
Circuit Judge,
GREGORY H. WOODS,*
District Judge.
___________________________________________
MICHAEL BANDLER, MB & CO. LTD., dba
Michael Bandler and Company,
Plaintiffs-Counterclaim
Defendants-Appellants-Cross-
Appellees,
v. 15-51 (L),
15-129 (Con)
BPCM NYC, LTD., BPCM WORLDWIDE, LTD.,
BPCM LA, LTD., BLUE STRIPE, LTD., CARRIE
ELLEN PHILLIPS, VANESSA VON BISMARCK,
ALI FROLEY, LAURA WOODWARD,
Defendants-Counterclaimants-
Appellees-Cross-Appellants.†
___________________________________________
*
The Honorable Gregory H. Woods, of the United States District Court for the Southern District
of New York, sitting by designation.
†
The Clerk of Court is directed to amend the caption as indicated above.
FOR PLAINTIFFS-COUNTERCLAIM
DEFENDANTS-APPELLANTS-CROSS-
APPELLEES: Michael Bandler, filed a brief pro se,
Quechee, Vermont.
JEFFREY S. ETTENGER (Jennifer B.
Ettenger, Melville, New York, on the
brief for MB & Co. Ltd.), Lee A.
Schwartz & Associates, PLLC, Melville,
New York.
FOR DEFENDANTS-COUNTERCLAIMANTS-
APPELLEES-CROSS-APPELLANTS: JOSHUA KRAKOWSKY (Larry Hutcher, on
the brief), Davidoff Hutcher & Citron
LLP, New York, New York.
Appeal from a judgment of the United States District Court for the Southern District of
New York (Gardephe, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Michael Bandler, who filed a brief pro se, and MB & Co. Ltd., through counsel, appeal
from so much of the final judgment as granted defendants’ motion for partial summary judgment
on plaintiffs’ claims for breach of contract, conversion, and civil conspiracy. BPCM NYC and
related entities (“BPCM”) cross-appeal the denial of their motion for sanctions. We assume the
parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on
appeal.
As an initial matter, Bandler moves for leave to file an amended brief or, alternatively, for
the Court to consider arguments raised for the first time in his reply brief, and to file an untimely
reply declaration in support of this motion. We grant Bandler’s motion to file an untimely reply
declaration in support of his motion, but we deny the motion for leave to file an amended brief or
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for consideration of arguments raised for the first time in his reply brief, because consideration of
such belated arguments would prejudice BPCM. Cf. Harris v. Albany Cty. Office (In re Harris),
464 F.3d 263, 268 n.3 (2d Cir. 2006).
We review de novo an order granting summary judgment, Feingold v. New York, 366 F.3d
138, 148 (2d Cir. 2004), which shall be granted “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to a judgment as a matter of law,” Fed. R.
Civ. P. 56(a). When the opposing party bears the burden of proof at trial, summary judgment
should be granted if the moving party “can point to an absence of evidence to support an essential
element of the nonmoving party’s claim.” Goenaga v. March of Dimes Birth Defects Found., 51
F.3d 14, 18 (2d Cir. 1995). The court draws all inferences in favor of the nonmovant, but,
“[w]here the moving party demonstrates the absence of a genuine issue of material fact, the
opposing party must come forward with specific evidence demonstrating the existence of a
genuine dispute of material fact.” Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 44 (2d
Cir. 2015) (quoting Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011)). We review a
district court’s denial of sanctions for abuse of discretion. Perez v. Posse Comitatus, 373 F.3d
321, 326 (2d Cir. 2004).
Upon review, we conclude that the district court properly granted BPCM partial summary
judgment and did not abuse its discretion in denying BPCM’s motion for sanctions. We affirm
for substantially the reasons stated by the district court in its September 29, 2014 order. We have
considered all of the parties’ arguments for reversal and find them to be without merit.
We grant BPCM’s motion for the costs of the supplemental appendix because Bandler did
not comply with Rule 30(b) of the Federal Rules of Appellate Procedure and the material in the
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supplemental appendix was relevant. For the same reasons, we deny Bandler’s motion for
sanctions.
Accordingly, we AFFIRM the judgment of the district court, DENY Bandler’s motions to
amend his brief and for sanctions, and GRANT Bandler’s motion to file an untimely reply and
BPCM’s motion for costs.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
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