Allstate Ins. Co. v. Rozenberg ( 2011 )

09-0873-cv
Allstate Ins. Co. v. Rozenberg
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 15 th day of February, two thousand eleven.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 PETER W. HALL,
9 RAYMOND J. LOHIER, Jr.,
10 Circuit Judges.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 ALLSTATE INSURANCE COMPANY, ALLSTATE
14 INDEMNITY COMPANY, ALLSTATE PROPERTY
15 & CASUALTY INSURANCE COMPANY,
16 ALLSTATE NEW JERSEY INSURANCE
17 COMPANY, CONTINENTAL INSURANCE
18 COMPANY, DEERBROOK INSURANCE COMPANY,
19 ENCOMPASS INDEMNITY COMPANY, GLENS
20 FALLS INSURANCE COMPANY, and
21 NATIONAL-BEN FRANKLIN INSURANCE
22 COMPANY OF ILLINOIS,
23
24 Plaintiffs-Appellees,
25
26 -v.- 09-0873-cv
27
1
1 A.R. MEDICAL REHABILITATION, P.C.,
2 A.R. MEDICAL ART, P.C., and YONKERS
3 MEDICAL ART, P.C.,
4
5 Defendants-Appellants,
6
7 ALEXANDER ROZENBERG, M.D., INNA
8 POLACK, ALEXANDER POLACK, YULIY
9 GOLDMAN, MIGHTY MANAGEMENT GROUP,
10 INC., MIGHTY MANAGEMENT, LLC, BLUE
11 WAVE MANAGEMENT, INC., NATALYA
12 SHVARTSMAN, EMMANUEL KUCHEROVSKY, and
13 SHAUN ROBINSON, also known as PRINCE,
14
15 Defendants.
16 - - - - - - - - - - - - - - - - - - - -X
17
18 FOR APPELLANTS: Mark L. Furman
19 Hoffman Polland & Furman PLLC
20 New York, NY
21
22 FOR APPELLEES: Richard D. King, Jr.
23 (Nathan A. Tilden, on brief)
24 Smith & Brink, P.C.
25 Garden City, N.Y.
26
27 Appeal from an order by the United States District
28 Court for the Eastern District of New York (Spatt, J.)
29 granting Appellees’ motion for prejudgment attachment.
30
31 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
32 AND DECREED that Appellants’ appeal is DISMISSED for lack of
33 appellate subject-matter jurisdiction.
34
35 Defendants appeal from an order of attachment issued in
36 this suit, which alleges civil RICO and fraud claims. The
37 district court found that the plaintiffs (“Allstate”) were
38 likely to succeed on the merits and that the defendants had
39 previously fraudulently conveyed and hidden their assets
40 with an intent to defraud their creditors. On appeal, this
41 attachment order is contested by a subset of the defendants,
42 the “P.C. Companies.” We assume the parties’ familiarity
43 with the underlying facts, the procedural history, and the
44 issues presented for review.
45
2
1 A prejudgment order of attachment is not a final order,
2 so our usual avenue of appellate jurisdiction, 28 U.S.C. §
3 1291 (granting circuit courts jurisdiction to hear appeals
4 from final judgments of district courts), is closed in this
5 case. See Wabtec Corp. v. Faiveley Transp. Malmo AB, 525
6 F.3d 135, 137 (2d Cir. 2008) (“[F]ederal appellate
7 jurisdiction ordinarily depends on the existence of a
8 decision by the District Court that ends the litigation on
9 the merits and leaves nothing for the court to do but
10 execute the judgment.” (internal quotation marks omitted)).
11 The P.C. Companies propose two primary grounds for appellate
12 jurisdiction: the collateral order doctrine, and the
13 interlocutory appeal statute. 28 U.S.C. § 1292. This
14 appeal fails to satisfy the requisites for either ground;
15 therefore, we lack jurisdiction to hear it.
16
17 The collateral order doctrine, established in Cohen v.
18 Beneficial Industrial Loan Corp., 337 U.S. 541 (1949),
19 allows a circuit court appellate jurisdiction to hear an
20 immediate appeal from a district court ruling if that
21 ruling: (1) conclusively determines the disputed question;
22 (2) resolves an important issue completely separate from the
23 merits of the underlying action; and (3) resolves an issue
24 that would be effectively unreviewable on appeal from a
25 final judgment. Kensington Int’l Ltd. v. Republic of Congo,
26 461 F.3d 238, 240 (2d Cir. 2006) (describing Cohen’s
27 original conception of the collateral order doctrine). In
28 1992, the Second Circuit (reinterpreting Cohen) added a
29 fourth requirement to the collateral order doctrine: (4)
30 The district court’s ruling must “present serious and
31 unsettled questions of law.” Banque Nordeurope S.A. v.
32 Banker, 970 F.2d 1129, 1131 (2d Cir. 1992) (per curiam). In
33 the Second Circuit, a district court’s ruling must meet all
34 four of these requirements before this Court has appellate
35 jurisdiction to hear an immediate appeal from it.
36
37 The P.C. Companies’ appeal presents no serious or
38 unsettled questions of law. The P.C. Companies dispute only
39 factual findings of the district court, such as whether they
40 participated in the fraudulent scheme to hide assets from
41 creditors. Because the P.C. Companies’ appeal does not meet
42 the fourth requirement of the collateral order doctrine, the
43 doctrine does not afford us appellate jurisdiction to hear
44 this appeal. Furthermore, because this appeal fails the
45 fourth requirement of the collateral order doctrine, we need
46 not, and do not, reach the question of whether it satisfies
47 any of the other three requirements of the doctrine.
3
1 The P.C. Companies’ second proposed ground for
2 appellate jurisdiction is subsection (a)(1) of the
3 interlocutory statute, 28 U.S.C. 1292, which grants us
4 jurisdiction to hear interlocutory appeals from rulings by
5 district courts that are injunctive in nature. The P.C.
6 Companies argue that the attachment of their property in
7 this case is injunctive because it requires their attorneys
8 to hold a growing pool of assets on their behalf and
9 prevents their attorneys from releasing these accruing
10 assets to them. However, freezing of assets is the very
11 essence of attachment. The argument advanced by the P.C.
12 Companies would effectively make every order of attachment
13 injunctive and immediately appealable. We decline to
14 endorse such an extreme and absurd result. Without opining
15 in the abstract on whether an order of attachment could
16 become injunctive if it mandated sufficiently significant
17 activity above and beyond the acts necessary to effectuate
18 attachment, we conclude that the attachment order in this
19 case does not require such additional activity and is not
20 injunctive. As a result, 28 U.S.C. § 1292(a)(1) does not
21 provide us with appellate jurisdiction to hear this appeal.
22
23 We hereby DISMISS Appellants’ appeal for lack of
24 appellate subject-matter jurisdiction.
25
26
27 FOR THE COURT:
28 CATHERINE O’HAGAN WOLFE, CLERK
29
4