Grewal v. Cuneo ( 2020 )

19-448
Grewal v. Cuneo
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 25th day of February, two thousand twenty.
PRESENT:
JOHN M. WALKER, JR.,
BARRINGTON D. PARKER,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
Preetpal Grewal,
Plaintiff-Counter Defendant-
Third Party Defendant-Appellant,
v. No. 19-448
Cuneo Gilbert & LaDuca LLP,
Defendant-Counter Claimant-Appellee,
Jonathan W. Cuneo, Charles J. LaDuca, Pamela
Gilbert, Joel Davidow, Michael J. Flannery,
Robert J. Cynkar, Sandra Cuneo, Daniel M.
Cohen, Matthew E. Miller,
Defendants-Appellees,
Elizabeth Thomas,
Intervenor-Third Party Plaintiff.*
_____________________________________
* The Clerk of Court is directed to amend the caption as above.
FOR PLAINTIFF-APPELLANT: Preetpal Grewal, pro se, New
York, NY.
FOR DEFENDANT-COUNTER CLAIMANT-APPELLEE Ralph Michael Smith, Esq.,
AND FOR DEFENDANTS-APPELLEES: Chincoteague, VA.
Appeal from a judgment of the United States District Court for the Southern District of
New York (Abrams, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the January 17, 2019 judgment is AFFIRMED.
Appellant Preetpal Grewal, an attorney proceeding pro se, appeals the district court’s 2019
judgment against her. In 2013, Grewal sued her former employer, Cuneo Gilbert & LaDuca LLP
(“CGL”) and several individuals at the law firm (together, “defendants”), raising claims for, inter
alia, breach of contract, breach of an implied covenant of good faith and fair dealing, breach of
fiduciary duty, and employment discrimination, based on her Indian national origin, by creating a
hostile work environment. In 2015, the district court partially granted defendants’ motion to
dismiss, dismissing Grewal’s claim of breach of fiduciary duty, her claims against certain
individual defendants, and certain other claims. In 2016, the district court granted partial summary
judgment to defendants on Grewal’s employment discrimination and implied covenant claims, but
ruled that genuine issues of material fact precluded entry of summary judgment for defendants on
her breach of contract claim. After a bench trial on that claim, the district court found in favor of
CGL and, in 2018, entered final judgment for defendants. On January 17, 2019, the district court
denied Grewal’s post-judgment motion seeking reconsideration of that judgment under Federal
Rule of Civil Procedure 60.
Grewal filed a notice of appeal on February 15, 2019. After the appeal was fully briefed,
Grewal moved in this Court for leave to re-submit her opening brief so that she could correct
certain citation issues. We assume the parties’ familiarity with the underlying facts, the procedural
history of the case, and the issues on appeal, to which we refer only as needed to explain our
decision to affirm the district court’s judgment and to deny as moot Grewal’s motion to submit a
corrected brief.
I. Timeliness of Appeal
Fed. R. App. P. 4(a)(4)(A) tolls the time within which a party must file a notice of appeal
if a Rule 60(b) motion has been filed within 28 days of entry of the operative judgment. We have
held that Rule 4(a)’s 28-day deadline is not jurisdictional, but is a “claim-processing rule” and, as
such, its enforcement is subject to waiver, forfeiture, and other equitable exceptions. See Weitzner
v. Cynosure, Inc., 802 F.3d 307, 312 (2d Cir. 2015).
We applied this principle in denying CGL’s March 20, 2019 motion to dismiss Grewal’s
appeal as untimely filed. We also denied CGL’s motion to reconsider that decision, concluding
that CGL forfeited the argument that Grewal’s Rule 60 motion, too, was untimely and that the
motion therefore failed to toll the time within which she was required to file a notice of appeal.
We further ruled that we had jurisdiction to consider Grewal’s appeal of the January 17, 2019
judgment.
CGL now renews its contention that we lack jurisdiction over Grewal’s appeal of the
district court’s judgment and of any prior orders. It argues that it has not waived or forfeited its
timeliness objection because, on March 20, 2019, it moved in this Court to dismiss the appeal as
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untimely and, in that motion to dismiss, it asserted that Grewal’s Rule 60 motion was filed more
than 28 days after the entry of judgment and therefore could not toll Grewal’s time to appeal.
After careful review of the record, we are not persuaded by CGL’s assertion that it raised
the Rule 60 tolling argument in earlier-filed submissions. CGL’s March 2019 motion to dismiss
Grewal’s appeal did not argue that the Rule 60 motion failed to toll the time to appeal; in fact, so
far as we can discern, CGL’s motion did not even mention the Rule 60 motion or tolling at all.
Although CGL stated in its submission that “the District Court correctly denied [Grewal’s motion
to extend the time to appeal] because it was untimely under Appellate Rule 4(a)(1)(A) and
(a)(4)(vi) [sic2],” CGL did not offer any argument as to how Rule 4(a)(4)(A)(vi) applied. Dkt. No.
41 at 2. The district court order dated January 17, 2019, denying Grewal’s motion to extend the
time to appeal and on which CGL relied to argue that the appeal was untimely, similarly did not
address or discuss Grewal’s Rule 60 motion and Rule 4(a)(4) tolling.
Further, although CGL’s reply in further support of its motion to dismiss discussed
Grewal’s Rule 60 motion, CGL there argued only that the Rule 60 motion could not be construed
as a timely notice of appeal. Thus, CGL again did not urge that Grewal’s Rule 60 motion failed to
toll her time to appeal. Having failed to make this argument earlier, CGL has forfeited its right to
do so now. See Manrique v. United States, 137 S. Ct. 1266, 1272 (2017) (holding that rights
accorded by claim-processing rules “may be forfeited if the party asserting the rule waits too long
2
The Federal Rules of Appellate Procedure contain no Rule 4(a)(4)(vi); it appears that CGL
intended to cite Rule 4(a)(4)(A)(vi).
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to raise the point” (internal quotation marks omitted)). We therefore proceed to consider the merits
of Grewal’s appeal.
II. Waiver of Claims
As an initial matter, although “a court is ordinarily obligated to afford special solicitude to
pro se litigants” because a pro se litigant “generally lacks both legal training and experience,” we
have ruled that “a lawyer representing himself ordinarily receives no such solicitude at all,” Tracy
v. Freshwater, 623 F.3d 90, 101-02 (2d Cir. 2010). Further, this Court “normally will not[ ] decide
issues that a party fails to raise in his or her appellate brief.” Moates v. Barkley, 147 F.3d 207, 209
(2d Cir. 1998) (per curiam); see also Terry v. Inc. Vill. of Patchogue, 826 F.3d 631, 632–33 (2d
Cir. 2016) (“Although we accord filings from pro se litigants a high degree of solicitude, even a
litigant representing himself is obliged to set out identifiable arguments in his principal brief.”
(internal quotation marks omitted)). Nor does this Court usually decide issues that an appellant
raises only in passing. See Gerstenbluth v. Credit Suisse Sec. (USA) LLC, 728 F.3d 139, 142 n.4
(2d Cir. 2013) (pro se litigant “waived any challenge” to the district court’s adverse ruling because
brief mentioned ruling only “obliquely and in passing.”); Norton v. Sam’s Club, 145 F.3d 114, 117
(2d Cir. 1998) (“Issues not sufficiently argued in the briefs are considered waived and normally
will not be addressed on appeal.”).
On appeal, Grewal challenges the district court’s (1) finding that she was not a partner at
CGL; (2) dismissal of her breach-of-fiduciary duty claim; (3) dismissal of her claims against the
individual defendants; (4) grant of summary judgment to CGL on her discrimination claims
brought under the New York State Human Rights Law (“NYSHRL”) and New York City Human
Rights Law (“NYCHRL”); (5) grant of summary judgment to CGL on her implied covenant of
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good faith and fair dealing claim; and (6) judgment entered in favor of CGL after a bench trial on
her breach of contract claim. Because no related arguments are developed in her appeal briefs, we
deem Grewal to have waived any other challenges on appeal, including any challenge to the district
court’s denial of her Rule 60 motion.
In her arguments on appeal challenging the district court’s summary judgment decision,
Grewal relies solely on allegations that she made in her complaint. Grewal does this even though
the district court adjudicated the parties’ summary judgment motions based on both Grewal’s and
defendants’ Rule 56.1 statements.
Citations to a complaint alone do not suffice to support arguments contesting the district
court’s summary judgment ruling. Grewal does not cite to her summary judgment motion,
memorandum, Rule 56.1 statement, or any evidence that she submitted at summary judgment in
support of her arguments. Nor does she argue now that the district court overlooked any such
submitted evidence and arguments or that any evidence adduced by defendants and on which the
district court relied was inaccurate. Rule 28(a)(8) of the Federal Rules of Appellate Procedure
requires an appellant to cite to the relevant portions of the record on appeal to support her
arguments. Failure to do so may result in the court treating her argument as waived. See Clark v.
John Lamula Inv’rs, Inc., 583 F.2d 594, 602 (2d Cir. 1978) (determining that “this court need not
search the record to discover whether such error indeed exists” when appellant failed to cite to the
record in support of his argument). Applying this principle in the circumstances before us, we
conclude that Grewal has waived any challenges that she otherwise might make to the district
court’s summary judgment ruling.
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III. Dismissal
We review de novo the dismissal of a complaint under Rule 12(b)(6) of the Federal Rules
of Civil Procedure for failure to state a claim. See Chambers v. Time Warner, Inc., 282 F.3d 147,
152 (2d Cir. 2002). On de novo review, we determine whether the complaint pleads “enough facts
to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007). We must construe the complaint liberally, “accepting all factual allegations in the
complaint as true, and drawing all reasonable inferences in the plaintiff’s favor.” Chambers, 282
F.3d at 152.
On review, we identify no merit in any of Grewal’s challenges to the district court’s
dismissal decision. First, Grewal challenges the district court’s conclusion that she was not a
partner at CGL. She asserts that CGL members repeatedly referred to her as a partner while she
was employed at the firm, and contends that CGL should be therefore estopped now from claiming
that she was not a partner. The district court correctly held, however, that under D.C. Code § 29-
603.08(a) (which none dispute applies here), “partnership by estoppel” applies only where the
partnership represents that an individual is a partner and a person relies on that representation in a
transaction with the partnership.3 See Ross v. 1301 Conn. Ave. Assocs., 99 F.3d 444, 446 (D.C.
Cir. 1996) (citing D.C.’s former version of the partnership by estoppel law and stating partnership
by estoppel is recognized “only with respect to claims by persons who have reasonably relied upon
outward representations of partnership”). Grewal did not allege in her complaint—nor does she
3
The district court held that, because CGL was a partnership organized under D.C. law, D.C. law
applied to questions that concern partnership affairs. On the other hand, because the parties
assumed that New York law applied to state tort and contract claims the district court ruled that it
would apply New York law to those claims. On appeal, the parties do not challenge these rulings.
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assert in her brief—that, in deciding to join CGL or in any other transaction she had with the firm
that she relied on a representation, she would be or was a partner at the firm. Further, Grewal did
not allege in her complaint (and does not argue here) that she had undertaken to bear any
partnership losses in proportion to her share of the profits, as D.C. partnership law requires. See
D.C. Code. § 29-604.01(b). We therefore discern no error in the district court’s ruling on this issue.
Second, Grewal challenges the court’s dismissal of her claim for breach of fiduciary duty,
again asserting that the district court erred in finding that she was not a CGL partner and in
reasoning that the firm did not owe her any such duty. As discussed above, however, Grewal failed
adequately to allege that she was a partner at CGL. Because a partnership owes fiduciary duties
only to partners (and not to employees), Grewal failed to state a claim for breach. See D.C. Code.
§ 29-604.07. See generally Wilson v. Dantas, 746 F.3d 530, 536 (2d Cir. 2014) (holding that breach
of fiduciary duty claim was properly dismissed where plaintiff failed to allege existence of a
partnership or “mutual intent . . . to create a fiduciary relationship”).
Finally, Grewal challenges the district court’s dismissal from the suit of certain individual
defendants. She argues, in only a conclusory manner, that “all individual defendants are necessary
parties to this action,” and cites in support the principle that a lawsuit against a partnership must
name all partners as defendants. Dkt. No. 160 at 39–40. Grewal fails to raise any specific
arguments, however, as to why the district court erred in ruling that those individual defendants
whom it dismissed were not partners at CGL. She has thus waived any claim of error as to that
ruling.4
4
In any event, the district court correctly held that Grewal also failed adequately to allege that
those individuals were partners of CGL under a partnership-by-estoppel theory.
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IV. Final Judgment
Grewal’s challenges to the district court’s judgment rejecting her breach of contract claim
are also unpersuasive. “In reviewing a judgment entered after a bench trial,” this Court reviews
findings of fact for clear error and its “conclusions of law, and its application of the law to the
facts, de novo.” Krist v. Kolombos Rest. Inc., 688 F.3d 89, 95 (2d Cir. 2012). “Where there are two
permissible views of the evidence, the factfinder’s choice between them cannot be clearly
erroneous.” Id. (internal quotation marks omitted). On appeal, this Court may not “second-guess
the bench-trial court’s credibility assessments.” Id. As discussed briefly below, the district court
did not err in its well-reasoned decision on this claim.
Grewal insists, in a conclusory fashion, that she was entitled to origination and lodestar
fees in the “Air Cargo” litigation, the “wire harness” litigation, and other cases handled by CGL.
She does not, however, challenge the district court’s factual finding that, to receive “origination”
compensation at CGL, she needed to satisfy four criteria: (1) propose the idea, (2) find a client, (3)
draft the complaint, and then, (4) accrue profits to the firm from the foregoing three. This factual
finding was critical to the district court’s ruling that Grewal was not entitled to any origination
fees. On review of the record, Grewal points to no clear error in the district court’s finding. The
district court credited the testimony of CGL partners and employees that the factors controlled. It
largely discredited Grewal’s testimony, as it was entitled to do. As to Grewal’s argument that the
district court erred in finding that statements by CGL members that she was entitled to 5% of
origination fees in the “wire harness” litigation was a discretionary concession rather than an
admission that Grewal was contractually entitled to origination fees in that case, we also see no
clear error. There, the court again merely credited other testimony over Grewal’s.
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Grewal also contends almost in passing that she was entitled to lodestar fees and that CGL
deprived her of her right to work on various cases. The district court reasonably rejected Grewal’s
proposed explanation for lodestar calculations, accepted CGL’s calculation, and found that Grewal
failed to show that she was entitled to any other work or fees. Again, these were findings in which
the court relied primarily on its justifiable credibility determinations. Grewal adduces no basis for
us to overturn them on appeal.
* * *
We have considered all of Grewal’s remaining arguments and conclude that they are
without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk of Court
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