Valenti v. Penn Mutual Life Insurance Co.

12-1732
Valenti v. Penn Mutual Life Insurance Co.
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 6th 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
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13 ROSE VALENTI, ROXANNE COMMISSO, HAYA
14 ZIZERSKY, THERESA KUROWSKI, MARLENE
15 RAMSAMOOJ, MICHELLE MICHAELS, LORETA
16 JARLEGO, TITI SOYEIJU, BELLA ZAHAVI, CAROL
17 KURA, ROBERT VALENTI, VALENTI, LIMITED,
18 SEEMA AZIM, ANNETTE PICO, KRYSTYNA
19 JASINSKI, STEPHEN VALENTI, DONALD VALENTI,
20 ANNA STARKMAN,
21 Plaintiffs-Appellants,
22
23 -v.- 12-1732
24
25 PENN MUTUAL LIFE INSURANCE COMPANY, VICTOR
26 P. MAURO,
27 Defendants-Appellees,
28
1
1 PENN PENSION CENTER, INC., ANDREW SIEGEL,
2 Defendants.
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4
5 FOR APPELLANTS: JILL ROSELL (Alice H. Oshins, on
6 the brief), Jill Rosell, PLLC,
7 New York, New York.
8
9 FOR APPELLEES: STEVEN E. MELLEN (Jessica E.
10 Levine, on the brief), Winget,
11 Spadafora & Schwartzberg, LLP,
12 New York, New York.
13
14 Appeal from a judgment of the United States District
15 Court for the Southern District of New York (Koeltl, J.).
16
17 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
18 AND DECREED that the judgment of the district court be
19 AFFIRMED.
20
21 Rose Valenti, her husband, and other associated
22 individuals who participated in an employee benefit plan,
23 appeal from the judgment of the United States District Court
24 for the Southern District of New York (Koeltl, J.), granting
25 summary judgment in favor of Penn Mutual Life Insurance
26 Company and Victor P. Mauro. We assume the parties’
27 familiarity with the underlying facts, the procedural
28 history, and the issues presented for review.
29
30 On appeal, Valenti raises a host of discovery issues
31 that were not properly raised below (e.g., Penn Mutual’s
32 failure to produce trade blotters) and that have not been
33 preserved for appeal to this Court. We decline to exercise
34 our discretion to review these unpreserved discovery issues.
35 See Caidor v. Onondaga Cnty., 517 F.3d 601, 603 (2d Cir.
36 2008).
37
38 Valenti’s remaining arguments amount to pure
39 speculation that Penn Mutual embezzled funds from the
40 employee benefit plan. In order to defeat summary judgment,
41 a plaintiff “must do more than simply show that there is
42 some metaphysical doubt as to the material facts.”
43 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
44 574, 586 (1986); see also McPherson v. N.Y.C. Dep’t of
45 Educ., 457 F.3d 211, 215 n.4 (2d Cir. 2006) (“[S]peculation
46 alone is insufficient to defeat a motion for summary
47 judgment.”). Valenti points to no admissible evidence to
2
1 support her claim of embezzlement. The financial statements
2 produced by Penn Mutual reflect a detailed and proper
3 accounting.
4
5 For the foregoing reasons, and finding no merit in
6 Valenti’s other arguments, we hereby AFFIRM the judgment of
7 the district court.
8
9 FOR THE COURT:
10 CATHERINE O’HAGAN WOLFE, CLERK
11
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