Vioni v. American Capital Strategies, Ltd.

11-4496
Vioni v. American Capital Strategies, Ltd., et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
(Filed Under Seal)
(Redacted Version)
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 18th day of January, two thousand thirteen.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 JON O. NEWMAN,
9 REENA RAGGI,
10 Circuit Judges.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 LISA VIONI and HEDGE CONNECTION,
14 INC.,
15 Plaintiffs-Appellants,
16
17 -v.- 11-4496
18
19 AMERICAN CAPITAL STRATEGIES, LTD.;
20 PROVIDENCE INVESTMENT MANAGEMENT,
21 L.L.C.; PROVIDENCE INVESTMENT
22 PARTNERS, L.L.C.; and RUSSELL JEFFREY,
23 Defendants-Appellees,
24 - - - - - - - - - - - - - - - - - - - -X
25
1
1 FOR APPELLANT: Michael Quinn Carey, Carey &
2 Associates LLC, New York, New
3 York.
4
5 FOR APPELLEE AMERICAN Stewart D. Aaron, (Erik C.
6 CAPITAL STRATEGIES, Walsh, on the brief), Arnold &
7 LTD.: Porter, LLP, New York, New York.
8
9
10 FOR APPELLEES Neil H. Klausner, (David S.
11 PROVIDENCE INVESTMENT Greenberg, Davis & Gilbert LLP,
New York, New York; Gerald C.
12 MANAGEMENT, L.L.C.;
Maria, John F. Kelleher,
13 PROVIDENCE INVESTMENT Higgins, Cavanaugh & Cooney,
14 PARTNERS, L.L.C.; and LLP, Providence, Rhode Island on
15 RUSSELL JEFFREY: the brief), Davis & Gilbert LLP,
New York, New York
16
17 Appeal from a judgment of the United States District
18 Court for the Southern District of New York (Crotty, J.).
19
20 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
21 AND DECREED that the judgment of the district court be
22 AFFIRMED IN PART and REVERSED IN PART.
23
24 Lisa Vioni appeals from the judgment of the United
25 States District Court for the Southern District of New York
26 (Crotty, J.), granting summary judgment in favor of
27 defendants-appellees and imposing sanctions on Vioni’s
28 attorney, Michael Quinn Carey. Vioni brought this action
29 for breach of contract and quantum meruit to recover a
30 finder’s fee she alleges was owed for introducing Russell
31 Jeffrey of Providence Investment Management, L.L.C., and
32 Providence Investment Partners, L.L.C. (collectively
33 “Providence”) to Robert Grunewald of American Capital
34 Strategies, Ltd. (“American Capital”). The district court
35 held that Vioni had failed to satisfy New York’s statute of
36 frauds. We assume the parties’ familiarity with the
37 underlying facts, the procedural history, and the issues
38 presented for review.
39
40 We review de novo a district court’s grant of summary
41 judgment. Mario v. P&C Food Mkts., Inc., 313 F.3d 758, 763
2
1 (2d Cir. 2002). We review a district court’s decision to
2 impose sanctions for abuse of discretion. Wolters Kluwer
3 Fin. Sevs., Inc. v. Scivantage, 564 F.3d 110, 113 (2d Cir.
4 2009).
5
6 1. “In order to recover in quantum meruit under New
7 York law, a claimant must establish ‘(1) the performance of
8 services in good faith, (2) the acceptance of the services
9 by the person to whom they are rendered, (3) an expectation
10 of compensation therefor, and (4) the reasonable value of
11 the services.’” Mid-Hudson Catskill Rural Migrant Ministry,
12 Inc. v. Fine Host Corp., 418 F.3d 168, 175 (2d Cir. 2005)
13 (quoting Revson v. Cinque & Cinque, P.C., 221 F.3d 59, 69
14 (2d Cir. 2000)). Both parties must understand that the
15 party performing the services has a reasonable expectation
16 of compensation for those services. See Aluminum Fair, Inc.
17 v. Abdella, 456 N.Y.S.2d 184, 185 (App. Div. 3d Dept. 1982);
18 DiBella v. Hopkins, 187 F. Supp. 2d 192, 201 (S.D.N.Y.
19 2002).
20
21 2. Under New York’s statute of frauds, any “contract
22 to pay compensation for services rendered in negotiating a
23 loan, or in negotiating the purchase [or] sale . . . of a
24 business opportunity, business, its good will, inventory,
25 fixtures or an interest therein,” must be in writing to be
26 enforceable. N.Y. Gen. Oblig. Law § 5-701(a)(10). This
27 applies to claims for quantum meruit. Morris Cohon & Co. v.
28 Russell, 23 N.Y.2d 569 (1969). To satisfy the statute of
29 frauds for a claim for quantum meruit, “a sufficient
30 memorandum need only evidence the fact of plaintiff’s
31 employment by defendant to render the alleged services.”
32 Id. at 575-76. The memorandum need not contain an express
33 agreement to pay for the services; the agreement can be
34 found “by reasonable construction and necessary
35 implication.” Id. at 574. The memorandum may postdate the
36 services. See id. at 574-76.
37
38 3. Vioni’s claim against American Capital fails
39 because the only discussions Vioni had with Grunewald about
40 compensation involved potential marketing work for American
41 Capital, work that never materialized. That part of the
42 district court’s opinion granting summary judgment in favor
43 of American Capital is therefore AFFIRMED.
44
3
1 4. Vioni’s claim against Jeffrey and Providence, on
2 the other hand, satisfies the statute of frauds. Writings
3 from March 26, 2007; April 19, 2007; and June 5, 2007
4 together permit a finding that Jeffrey hired Vioni to
5 introduce him to persons with whom Jeffrey could enter into
6 any mutually beneficial arrangement for his investment
7 business. That part of the district court’s opinion
8 granting summary judgment in favor of Jeffrey and Providence
9 is therefore REVERSED.
10
11 5. The district court did not abuse its discretion in
12 imposing sanctions on Vioni’s attorney, Michael Quinn Carey,
13 for taking wasteful depositions. The district court’s award
14 was not excessive and was supported by a well-reasoned and
15 thorough accounting of the precise way in which the
16 depositions at issue were frivolous, repetitive, or time-
17 wasting. We therefore AFFIRM the district court’s decision
18 to impose sanctions.
19
20 For the foregoing reasons, we hereby AFFIRM IN PART and
21 REVERSE IN PART the judgment of the district court. The
22 case is remanded to the district court for further
23 proceedings.
24
25
26 FOR THE COURT:
27 CATHERINE O’HAGAN WOLFE, CLERK
28
4