Currin v. Williams , 428 F. App'x 21 ( 2011 )

10-1792-cv
Currin v. Williams
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 12th day of May, two thousand eleven.
5
6 PRESENT: RICHARD C. WESLEY,
7 GERARD E. LYNCH,
8 DENNY CHIN,
9 Circuit Judges.
10
11
12
13 PETER CURRIN, DAVID CURRIN,
14
15 Plaintiffs-Appellants,
16
17 -v.- 10-1792-cv
18
19 PHARRELL WILLIAMS, NEPTUNES, STAR TRAK ENTERTAINMENT
20 INCORPORATED, RCA RECORDS LABEL, A UNIT OF BMG MUSIC, DBA
21 BMG ENTERTAINMENT, BAD BOY ENTERTAINMENT, BAD BOY RECORDS,
22 FKA BAD BOY ENTERTAINMENT,
23
24 Defendants,
25
26 ARISTA RECORDS INCORPORATED, SONY BMG MUSIC ENTERTAINMENT,
27
28 Defendants-Appellees.
29
30
31
1 FOR APPELLANT: PETER & DAVID CURRIN, pro se, Bloomfield,
2 CT.
3
4 FOR APPELLEE: TIMOTHY A. DIEMAND (Joseph M. Gillis, on
5 the brief), Wiggin & Dana LLP, New Haven,
6 CT.
7
8 Appeal from the United States District Court for the
9 District of Connecticut (Chatigny, J.).
10
11 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
12 AND DECREED that the judgment of the district court be
13 AFFIRMED.
14 Appellants Peter and David Currin (“Appellants”) appeal
15 from a judgment of the United States District Court for the
16 District of Connecticut (Chatigny, J.), which granted
17 summary judgment in favor of Appellees Arista Records and
18 Sony BMG Music Entertainment (“Appellees”). We assume the
19 parties’ familiarity with the underlying facts, the
20 procedural history, and the issues presented for review.
21 We review a district court’s ruling on a motion for
22 default judgment for abuse of discretion, see Pecarsky v.
23 Galaxiworld.com Ltd., 249 F.3d 167, 171 (2d Cir. 2001),
24 bearing in mind that we have expressed a “strong preference
25 for resolving disputes on the merits,” and that “a default
26 judgment is the most severe sanction which the court may
27 apply.” New York v. Green, 420 F.3d 99, 104 (2d Cir. 2005)
2
1 (internal quotation marks and citations omitted). Here,
2 Appellants’ argument that Appellees defaulted by failing to
3 timely respond to the original, non-operative complaint is
4 belied by the record. On the date on which a response was
5 due, Appellees appeared and requested an extension of time
6 to respond to the complaint. Because the court granted that
7 request, Appellees averted default. See Fed. R. Civ. P.
8 6(b)(1). The court did not abuse its discretion in denying
9 Appellants’ motion for default judgment.
10 We review an order granting summary judgment de novo
11 and ask whether the district court properly concluded that
12 there were no genuine issues of material fact and that the
13 moving party was entitled to judgment as a matter of law.
14 See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300
15 (2d Cir. 2003). In determining whether there are genuine
16 issues of material fact, we are “required to resolve all
17 ambiguities and draw all permissible factual inferences in
18 favor of the party against whom summary judgment is sought.”
19 Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003)
20 (internal quotation marks omitted). However, “conclusory
21 statements or mere allegations [are] not sufficient to
22 defeat a summary judgment motion.” Davis v. New York, 316
3
1 F.3d 93, 100 (2d Cir. 2002) (internal citations omitted).
2 Having concluded a de novo review of the record, we
3 affirm the district court’s award of summary judgment to
4 Appellees for substantially the same reasons stated by the
5 district court in its decision and by the magistrate judge
6 in her report and recommendation. The district court
7 properly excluded the purported expert report offered by
8 Appellants in opposition to summary judgment based on their
9 failure to provide the purported expert’s qualifications.
10 See Fed. R. Evid. 702. We have considered Appellants’
11 remaining contentions and find them without merit.
12 For the foregoing reasons, the judgment of the district
13 court is hereby AFFIRMED. Additionally, Appellants’ so-
14 called motion for “default identification” is DENIED, as the
15 motion contains no cognizable request for relief. See Fed.
16 R. App. P. 27(a)(2)(A).
17
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
20
21
4