ALLSTATE INSURANCE CO., Allstate Property & Casualty Insurance Co., Allstate Fire & Casualty Insurance Co., Allstate Indemnity Co., Allstate Northbrook Indemnity Co., Plaintiffs-Appellants, v. HARVEY FAMILY CHIROPRACTIC, Physical Therapy & Acupuncture, PLLC, Riсhard Harvey, D.C., Jin Hwangbo, L. AC., Bervin Nelson Brual, P.T., Defendants-Appellees.
16-1101-cv
United States Court of Appeals, Second Circuit.
January 27, 2017
677 Fed. Appx. 716
Having properly questioned Hossain‘s credibility, the аgency reasonably relied further on his failure to provide sufficient corroborating evidence. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). Hossаin provided no contemporaneous medical records or documentation to corroborate that his store of seven years was destroyed in Bangladesh, or even that he owned a store. He also gave increasingly inconsistent explanations as to how he lost his medical records in Mexico.
Substantial evidence supports the agency‘s adverse credibility determination. See Xiu Xia Lin, 534 F.3d at 167. That finding is dispositive of asylum, withholding of removal, and CAT relief because all three claims are based on the same factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Cоurt previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with
FOR PLAINTIFFS-APPELLANTS: William J. Natbony, Cadwalader, Wickersham & Taft LLP, Robert A. Stern, Daniel Marvin, Stern & Montana, LLP, New York, NY.
FOR DEFENDANTS-APPELLEES: Louis F. Chisari, Marcote & Associates, P.C., Hicksville, NY.
PRESENT: Jose A. Cabranes, Rosemary S. Pooler, Gerard E. Lynch, Circuit Judges.
Plaintiffs-appellants Allstate Insurance Co., Allstate Property & Casualty Insurance Co., Allstate Fire & Casualty Insurance Co., Allstate Indemnity Co., and Allstate Northbrook Indemnity Co. appeal from a March 10, 2016 order denying their motion for a preliminary injunction against defendants-appellees Harvey Family Chiropractic, Physical Therapy & Acupuncture, PLLC (“Harvey FCPTA“), Richard Harvey, D.C., Jin Hwangbo, L.Ac., and Bervin Nelson Brual, P.T, and a March 23, 2016 order denying the plaintiffs’ motion for reсonsideration. The plaintiffs allege that the defendants violated the Racketeer Influenced and Corrupt Organizations Act (“RICO“),
On January 24, 2016, the plaintiffs moved for a preliminary injunction enjoining the defendants from (1) proceeding with No-Fault reimbursement claims pending in state court, and from (2) filing any new arbitration proceеdings or civil actions seeking collection of No-Fault benefits from Allstate. On March 10, 2016, the District Court, in an oral ruling, denied the plaintiffs’ application for a preliminary injunction on the ground that it lacked the authority to issue the injunction undеr the Anti-Injunction Act (“AIA“),
“We review the denial of a preliminary injunction for abuse of discretion.” Monserrate v. N.Y. State Senate, 599 F.3d 148, 154 (2d Cir. 2010) (internal quotation marks omitted). “A district court has abused its discretion if it based its ruling on an erroneous view of the law or on a cleаrly erroneous assessment of the evidence, or rendered a decision that cannot be located within thе range of permissible decisions.” In re Sims, 534 F.3d 117, 132 (2d Cir. 2008) (internal quotation marks, alteration, and citations omitted); see also In re City of New York, 607 F.3d 923, 943 n.21 (2d Cir. 2010) (exрlaining that “abuse of discretion” is a nonpejorative “term of art“). “[I]n analyzing whether the district court abused its discretiоn, we may affirm on any ground supported by the record.” Grand River Enter. Six Nations, Ltd. v. Pryor, 481 F.3d 60, 66 (2d Cir. 2007) (internal quotation marks omitted).
“A party seeking a preliminary injunction must ordinarily establish (1) irreparable harm; (2) either (a) a likelihood of success on the merits, or (b) sufficiently serious questions going to the merits of its claims to make them fair ground for litigation, plus a balance of the hardships tipping decidedly in favor of the moving pаrty; and (3) that a preliminary injunction is in the public interest.” N.Y. ex rel. Schneiderman v. Actavis PLC, 787 F.3d 638, 650 (2d Cir. 2015) (internal quotation marks omitted). Irreparable harm is defined as “сertain and imminent harm for which a monetary award does not adequately compensate.” Wisdom Imp. Sales Co. v. Labatt Brewing Co., 339 F.3d 101, 113 (2d Cir. 2003). Irreparablе harm exists “where, but for the grant of equitable relief, there is a substantial chance that upon final resolution of the action the parties cannot be returned to the positions they previously occupied.” Brenntag Int‘l Chem., Inc. v. Bank of India, 175 F.3d 245, 249 (2d Cir. 1999).
On appeal, the plaintiffs argue (1) that the District Court did have the authority to issue a preliminary injunction under the AIA and RICO, and (2) that the District Cоurt otherwise erred by not issuing the preliminary injunction. We need not reach the question of whether the District Court had the authority to issue an injunction under the AIA and RICO because plaintiffs have failed to establish the irreparable harm neсessary for a preliminary injunction. There is no evidence in the record that, upon the conclusion of this matter, the plaintiffs cannot be fully compensated through money damages for the alleged harm suffered from the defendants’ fraudulent claims. Even if the defendants obtain other No-Fault reimbursements in state court and arbitrations while this case is pending, the plaintiffs are free to recover those payments should they prevail on their RICO claim. Moreover, the “mere injuries in terms of money, time and energy necessarily expended” absent a stay of ongoing state court and arbitration proceedings “are not enough” to establish irreparable harm. Jayaraj v. Scappini, 66 F.3d 36, 39 (2d Cir. 1995) (internal quotation marks оmitted). Nor is the declaratory relief sought by the plaintiffs threatened by the other proceedings.
CONCLUSION
We have reviewed all of the arguments raised by the plaintiffs on appeal and find them to be without merit. For the foregoing reasons, we AFFIRM the March 10 and March 23, 2016 orders of the District Court.