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15‐4077‐cv Estate of Ernest Gottdiener et al. v. Bayrock Group, LLC, et al. 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. 1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 3 City of New York, on the 30th day of January, two thousand seventeen. 4 5 PRESENT: REENA RAGGI, 6 DENNY CHIN, 7 RAYMOND J. LOHIER, JR., 8 Circuit Judges. 9 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 10 ESTATE OF ERNEST GOTTDIENER, ESTATE 11 OF JUDIT GOTTDIENER, ERVIN TAUSKY, 12 SUAN INVESTMENTS, 13 14 Plaintiffs‐Appellants, 15 16 FREDERICK MARTIN OBERLANDER, 17 18 Movant‐Appellant, 19 20 J. KRISS, J. KRISS, for BAYROCK MERRIMAC 21 LLC, MICHAEL EJEKAM, MICHAEL EJEKAM, 22 for BAYROCK MERRIMAC LLC, BAYROCK 23 GROUP, LLC, BAYROCK WHITESTONE, LLC, 24 BAYROCK CAMELBACK, LLC, 1 1 Plaintiffs, 2 3 v. No. 15‐4077‐cv 4 5 BAYROCK GROUP, LLC, TEVFIK ARIF, JULIUS 6 SCHWARZ, BRIAN HALBERG, SALVATORE 7 LAURIA, ALEX SALOMON, JERRY WEINRICH, 8 NIXON PEABODY, LLP, ROBERTS & 9 HOLLAND, LLP, MARTIN DOMB, CRAIG H. 10 BROWN, BAYROCK WHITESTONE, LLC, 11 DUVAL & STACHENFELD, LLP, BRUCE 12 STACHENFELD, MORGAN LEWIS & BOCKIUS, 13 LLP, DAVID GRANIN, NATIONAL UNION 14 FIRE INSURANCE COMPANY OF 15 PITTSBURGH, PENNSYLVANIA, ADAM B. 16 GILBERT, BAYROCK SPRING STREET, LLC, 17 BAYROCK MERRIMAC, LLC, SATTERLEE 18 STEPHENS BURKE & BURKE, LLP, BEYS STEIN 19 & MOBARGHA, LLP, ELLIOT PISEM, 20 MICHAEL SAMUELS, MEL DOGAN, JOHN 21 DOES 1‐100, BAYROCK CAMELBACK, LLC, 22 BAYROCK GROUP, INC., TAMIR SAPIR, ALEX 23 SAPIR, SAPIR DOES 1 THROUGH 100, WALTER 24 SAURACK, KELLY ANNE MOORE, NADER 25 MOBARGHA, MICHAEL PETROS BEYS, 26 LENDER INVESTOR JOHN DOES 1‐100, FELIX 27 SATER, SALOMON & COMPANY, P.C., 28 AKERMAN SENTERFITT, LLP, 29 30 Defendants‐Appellees. 31 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 32 33 FOR PLAINTIFFS‐APPELLANTS: FREDERICK M. OBERLANDER, The Law 34 Office of Frederick M. Oberlander, 35 P.C., Montauk, NY. 36 37 FOR DEFENDANTS‐APPELLEES: ROBERT S. WOLF, Moses & Singer LLP, 38 New York, NY. 39 2 1 Appeal from a judgment of the United States District Court for the 2 Southern District of New York (Lorna G. Schofield, Judge). 3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 4 AND DECREED that the judgment of the District Court is AFFIRMED. 5 Plaintiffs‐appellees, along with their counsel, appeal from the vacatur of 6 their notice of voluntary dismissal without prejudice, and the simultaneous 7 dismissal of their action with prejudice, as well as from the prior denials of (1) 8 their motion to remand to state court and (2) their motion to stay proceedings 9 pending emergency hearings regarding witness tampering. This is the third 10 federal court action commenced by plaintiffs and their counsel relating to 11 allegations that Felix Sater engaged in a fraudulent conspiracy in violation of the 12 Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961 et seq., or 13 related state fraud claims. See Kriss et al. v. BayRock Group LLC et al., 14 1:10‐cv‐3959‐LGS‐FM (S.D.N.Y.) (filed May 10, 2010); Estate of Gottdiener v. Sater, 15 35 F. Supp. 3d 386 (S.D.N.Y.), on reconsideration, 35 F. Supp. 3d 402 (S.D.N.Y. 16 2014), aff’d, 602 F. App’x 552 (2d Cir. 2015); Kriss et al. v. BayRock Group LLC et 17 al., 1:13‐cv‐3905‐LGS (S.D.N.Y.) (filed June 7, 2013). We assume the parties’ 18 familiarity with the facts and record of the prior proceedings, to which we refer 19 only as necessary to explain our decision to affirm. 20 Rule 41 of the Federal Rules of Civil Procedure provides that “[a] plaintiff 21 may dismiss an action without a court order by filing a notice of dismissal before 22 the opposing party serves either an answer or a motion for summary judgment.” 23 Fed. R. Civ. P. 41(a)(1)(A)(i). The Rule “presupposes that the opposing party can 24 file both” an answer and a motion for summary judgment. ISC Holding AG v. 25 Nobel Biocare Fin. AG, 688 F.3d 98, 112 (2d Cir. 2012). We have recognized that 26 vacatur of a notice of voluntary dismissal may be appropriate in certain 3 1 “extreme” circumstances, where “the purpose of Rule 41(a)(1)[(A)](i) would be 2 better served by abandoning a literal interpretation” of it. Thorp v. Scarne, 599 3 F.2d 1169, 1176 (2d Cir. 1979); see Johnson Chem. Co. v. Home Care Prods., Inc., 4 823 F.2d 28, 30‐31 (2d Cir. 1987) (concluding that the fact that a preliminary 5 injunction hearing had been held in the case was not sufficiently “extreme” to 6 warrant vacatur of the plaintiff’s voluntary dismissal), abrogated on other 7 grounds by Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990). 8 Taken together, the facts, procedural history, and other circumstances 9 relevant to this case (including sanctions imposed on appellants’ counsel and 10 referrals by a district court to the United States Attorney for the Eastern District of 11 New York for investigation of counsel’s potential violations of federal criminal 12 law) are, to say the least, extreme. We identify no error in the District Court’s 13 decision to vacate the appellants’ Rule 41(a) dismissal or its subsequent decision 14 to dismiss the case with prejudice under Rule 41(b). 15 We have considered all of the appellant’s remaining arguments and 16 conclude that they are without merit. For the foregoing reasons, the judgment of 17 the District Court is AFFIRMED. 18 FOR THE COURT: 19 Catherine O=Hagan Wolfe, Clerk of Court 4
Document Info
Docket Number: 15-4077-cv
Filed Date: 1/30/2017
Precedential Status: Non-Precedential
Modified Date: 4/17/2021