Bice v. Robb , 511 F. App'x 108 ( 2013 )

12-1420
Bice v. Robb
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 14th day of February, two thousand thirteen.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 AMALYA L. KEARSE,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 ELIZABETH ROBB BICE, CLARE ROBB WENK,
14 EDWARD ROBB, BARBARA ROBB,
15 Plaintiffs-Appellants,
16
17 -v.- 12-1420
18
19 GEORGE E. ROBB, JR.,
20 Defendant-Appellee.
21 - - - - - - - - - - - - - - - - - - - -X
22
23 FOR APPELLANTS: JOHN M. BRICKMAN (Todd H.
24 Hesekiel and Benjamin S. Kaplan,
25 on the brief), Ackerman, Levine,
26 Cullen, Brickman & Limmer, LLP,
27 Great Neck, New York.
28
1
1 FOR APPELLEE: JAMES A. GOOLD (Laura M. Flahive
2 Wu, Covington & Burling LLP, New
3 York, New York, on the brief;
4 Rosemarie Paine, Jacobs & Dow
5 LLC, New Haven, Connecticut, on
6 the brief), Covington & Burling
7 LLP, Washington, D.C.
8
9 Appeal from a judgment of the United States District
10 Court for the Southern District of New York (Crotty, J.).
11
12 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
13 AND DECREED that the judgment of the district court be
14 AFFIRMED.
15
16 Elizabeth Robb Bice, Clare Robb Wenk, Edward Robb, and
17 Barbara Robb (the “siblings”) appeal from the judgment of
18 the United States District Court for the Southern District
19 of New York (Crotty, J.), granting summary judgment in favor
20 of their older brother, George E. Robb, Jr. We assume the
21 parties’ familiarity with the underlying facts, the
22 procedural history, and the issues presented for review.
23
24 1. The district court properly granted summary judgment in
25 favor of George Jr. on the siblings’ three claims. As to
26 their claim for breach of contract, the siblings failed to
27 establish that any enforceable agreement actually existed,
28 as required under New York law. See Eternity Global Master
29 Fund Ltd. v. Morgan Guar. Trust Co. of N.Y., 375 F.3d 168,
30 177 (2d Cir. 2004). Even accepting that George Jr. promised
31 his father that he would “take care of the family,” such a
32 promise is far too indefinite and vague to be enforced. See
33 Dombrowski v. Somers, 41 N.Y.2d 858, 859 (1977).
34
35 As to the siblings’ claims premised on constructive
36 trust and unjust enrichment, such equitable remedies are
37 soundly within the district court’s discretion. In re
38 Flanagan, 503 F.3d 171, 179-80 (2d Cir. 2007). Because
39 there was no enforceable promise and because George Jr.’s
40 buyout of RPM Securities, Inc. (a New York Stock Exchange
41 specialist firm) was an arm’s-length transaction with the
42 senior management of RPM (including his father), the
43 district court did not abuse its discretion in refusing to
44 impose a constructive trust or order restitution for the
45 alleged unjust enrichment.
46
2
1 2. The district court did not abuse its discretion in
2 ordering the siblings to produce certain documents they
3 claimed were privileged: emails between the siblings
4 considering their potential claims against George Jr. Such
5 documents are not attorney-client communications, because
6 counsel for the siblings was not actually a party to the
7 discussions. See United States v. Mejia, 655 F.3d 126, 131-
8 32 (2d Cir. 2011). Likewise, the documents are not
9 protected by the attorney work-product doctrine, because
10 (though they may have been created because of the prospect
11 of litigation) they are not the work product of an
12 individual acting as the siblings’ attorney. See United
13 States v. Adlman, 134 F.3d 1194, 1196 (2d Cir. 1998); see
14 also Hickman v. Taylor, 329 U.S. 495, 510 (1947); In re
15 Grand Jury Subpoenas Dated Mar. 19, 2002 & Aug. 2, 2002, 318
16 F.3d 379, 383 (2d Cir. 2003).
17
18 3. Finally, the district court did not manifestly err in
19 refusing to consider the Langone declaration. A district
20 court “has wide discretion in punishing failure to conform
21 to the rules of discovery.” Outley v. City of New York, 837
22 F.2d 587, 590 (2d Cir. 1988). Here, the siblings sought
23 leave to submit the Langone declaration well after the close
24 of discovery and after the main briefs supporting and
25 opposing summary judgment had been filed. In any event, the
26 district court reasonably concluded that its content was too
27 remote and too speculative.
28
29 For the foregoing reasons, and finding no merit in the
30 siblings’ other arguments, we hereby AFFIRM the judgment of
31 the district court.
32
33 FOR THE COURT:
34 CATHERINE O’HAGAN WOLFE, CLERK
35
3