Kelly BENNETT, Plaintiff-Appellant, v. STERLING PLANET, INC., Defendant-Appellee-Cross-Appellant.
No. 12-4812-cv.
United States Court of Appeals, Second Circuit.
Nov. 15, 2013.
We review a grant of summary judgment de novo, viewing the facts “in the light most favorable to the non-moving party and draw[ing] all reasonable inferences in that party‘s favor.” Cox v. Warwick Valley Cent. Sch. Dist., 654 F.3d 267, 271 (2d Cir. 2011). Summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
An independent review of the record and relevant case law reveals that the District Court properly adopted the Magistrate Judge‘s recommendation to grant the motion for summary judgment. Plaintiff was required to exhaust his administrative remedies by filing a grievance addressing the claims alleged in the complaint before commencing this lawsuit; however, the grievance upon which plaintiff relies in his brief was filed six months before the injury giving rise to the instant claims. With regard tо the merits, plaintiff has failed to show a genuine dispute over either prong of his deliberate indifference claim: his injury was not sufficiently serious to constitute an Eighth Amendment violation, and defendants did not consciously disregard an excessive risk to рlaintiff‘s health.
Accordingly, we affirm for substantially the reasons stated by the Magistrate Judge in his comprehensive February 28, 2011 report and recommendation.
CONCLUSION
We have considered all of the plaintiff‘s arguments on appeal and find them to be withоut merit. For the reasons stated above, we AFFIRM the July 21, 2011 judgment of the District Court.
Mark A. Konkel, Isabella Pei-Ying Lee, John L. Monroe, Jr., Ford & Harrison, LLP, New York, N.Y. and Atlanta, GA, for Defendant-Appellee.
PRESENT: JOHN M. WALKER, JR., JOSÉ A. CABRANES and BARRINGTON D. PARKER, Circuit Judges.
SUMMARY ORDER
Plaintiff-appellant Kelly Bennett appeals from the District Court‘s August 2, 2012 judgment, awarding her 25,000 shares of stock in defendant-appellee Sterling Planet, Inc.‘s holding company, and from the District Court‘s November 1, 2012 order on the рarties’ post-trial motions. At issue in this breach-of-contract action is whether the Court erred in awarding plaintiff stock from defendant‘s holding company rather than from defendant itself. We assume the parties’ familiarity with the underlying facts and the prоcedural history of the case, to which we refer only as necessary to explain our decision to affirm.
In December 2005, plaintiff was offered employment with the company known as “Sterling Planet.” The sole Sterling Planet entity in existence at that time was Sterling Planet, Inc. (the “original Sterling Planet“). The original Sterling Planet confirmed plaintiff‘s offer of employment in a letter dated December 30, 2005, which provided that, upon acceptance of the offer, plaintiff would reсeive “25,000 shares from the management stock options pool.” Plaintiff accepted the offer, and, on March 20, 2006, started her employment with the original Sterling Planet.
In early 2008, Sterling Planet underwent a corporate reorganization. The original Sterling Planet was renamed “Sterling Planet Holdings, Inc.” (“Sterling Planet Holdings“), and a new corporation was formed named “Sterling Planet, Inc.” (the “new Sterling Planet“). The new Sterling Planet was to serve as the day-to-day operational entity of the company with the entirety of its 100,000 shares wholly owned by Sterling Planet Holdings. As part of the reorganization, all stock in the original Sterling Planet was reissued as Sterling Planet Holdings stock on a share-for-share basis to every stockholder. Plaintiff continued to wоrk for what had then become the new Sterling Planet, until her employment was terminated on July 14, 2009.
Plaintiff filed her breach of contract suit on October 5, 2009, alleging, inter alia, that she had not received the 25,000 shares of company stock to which she was entitled. Her suit named as the sole defendant the new Sterling Planet. In the course of considering pretrial motions, the Magistrate Judge learned of the corporate reorganization, prompting him to inquire about which entity would issue the 25,000 shares to plаintiff should she prevail at trial. On June 21, 2012, defense counsel informed the Court that the appropriate entity to issue stock would be Sterling Planet Holdings, not the defendant (i.e., the new Sterling Planet), which was wholly-owned by Sterling Planet Holdings and had no individual shareholders. Plaintiff objected on the grounds that the defendant had already admitted in its pleadings that it (i.e., the new Sterling Planet) was the entity that had promised to issue the stock, and that defendant should have pleaded an affirmative defense based on the corporate reorganization.
On the eve of trial, defendant orally moved to amend its answer to appropriately reflect each corporate entity‘s role in the dispute as a result of the corporate reorganization. The Magistrate Judge permitted the defendant to amend its answer to aver that the “stock holdings shifted to ... Sterling Planet Holdings” and that “the employment relationship with the employees and the day-to-day operations shifted to the operating company, which ... became [the new] Sterling Planet.” Joint App‘x 305. The jury ultimately found that defendant was liable for breach of contract, and, as a remedy, the Magistrate Judge awarded plaintiff 25,000 shares of Sterling Planet Hоldings stock. The Magistrate Judge reasoned that the reference to the stock in the offer letter—the stock which plaintiff had been originally promised as a condition of her employment—should be understood as referring to stock issued by Sterling Planet Holdings, not by the new Sterling Planet.
Plaintiff filed several post-trial motions, including a Rule 59 motion requesting that the Magistrate Judge alter the judgment and award stock issued by the new Sterling Planet. Defendant filed a motion under Rule 15 seeking to constructively amеnd its answer to the extent such a motion was necessary. The Magistrate Judge denied plaintiff‘s motion on the merits and denied defendant‘s motion as moot in light of the prior amendment.
This appeal followed.
Both parties agree that specific performancе of the contract is the proper remedy, but disagree as to the identity of the stock to which plaintiff is entitled.1 We review a district court‘s award of specific performance for abuse of discretion. See Abrahamson v. Bd. of Educ. оf Wappingers Falls Cent. Sch. Dist., 374 F.3d 66, 76 (2d Cir. 2004); see also In re Sims, 534 F.3d 117, 132 (2d Cir. 2008) (explaining the term of art “abuse of discretion” as a ruling based on “an erroneous view of the law or on a clearly erroneous assessment of the evidence, or ... a decision that cannot be loсated within the range of permissible decisions” (internal quotation marks and alteration omitted)). In a diversity case, where the parties have agreed to the application of the forum law—as evidenced by reliance on that law in the parties’ briefing, as in this case—their agreement ends the choice-of-law inquiry. See Am. Fuel Corp. v. Utah Energy Dev. Co., 122 F.3d 130, 134 (2d Cir. 1997).
Under New York law, it is fundamental “that damages for breach of contract should put the plaintiff in the same economic position he would have been in had the defendant fulfilled the contract.” Lucente v. Int‘l Bus. Machines Corp., 310 F.3d 243, 262 (2d Cir. 2002). The judgment of the District Court was wholly in line with this precept. Had the old Sterling Planet timely complied with the terms of its offer letter, plaintiff would have been given 25,000 of the millions of shares issued by the original Sterling Planet, all of which were later re-issued by Sterling Planet Holdings. By requesting 25,000 shares of the 100,000 shares issued by the new Sterling Planet, plaintiff now seeks to become the only individual shareholder in the operating subsidiary and, in essence, a one-quarter owner of that company. Such a result would be an undeserved windfall and inconsistent with the mutual intentions and reasonable expectations of the parties.
Plaintiff‘s central argument is that an award of stock in Sterling Planet Holdings is foreclosed by the following two рaragraphs in defendant‘s amended answer:
¶ 8: Defendant admits only that it submitted to Plaintiff the employment offer letter dated December 30, 2005. . . .
¶ 9: Defendant admits only that it received from Plaintiff an executed copy of the employment offer lеtter referenced in Paragraph 8 of Plaintiff‘s Amended Complaint from Plaintiff and that Plaintiff‘s signature was dated January 2, 2006. . . .
Joint App‘x 64. These paragraphs misstate (apparently inadvertently) that defendant—that is, the new Sterling Planet, not the old Sterling Planet—provided plaintiff with the original offer of employment. Nevertheless, plaintiff seizes upon these paragraphs to argue that they constitute judicial “admissions” that defendant offered plaintiff 25,000 shares of its stock—that is, 25,000 shares of stock in thе
Yet, just before trial, the Court granted defendant‘s oral motion to amend its pleadings, precisely so as to reflect the true parties tо the offer letter in light of the corporate reorganization, thereby resolving this confusion. Under
Plaintiff suggests that the offer must be for new Sterling Planet stock because a non-party to a contract, such as Sterling Planet Holdings, cannot be held liable for a breach under New York law. Yet this contention misstates the law. Cf. TNS Holdings, Inc. v. MKI Sec. Corp., 92 N.Y.2d 335, 339, 680 N.Y.S.2d 891, 703 N.E.2d 749 (1998) (“mandating disregard of the corporate form” in certain cases where failure to do so would “result[] in wrongful or inequitable consequences“).
To the extent that the amendment was prоper, plaintiff argues that she should have been granted the opportunity to show the jury the inconsistent pleadings. In Andrews v. Metro N. Commuter R.R. Co., 882 F.2d 705, 705-07 (2d Cir. 1989), we held that a district court‘s refusal to permit jurors to be informed of and examine inconsistent pleadings was “a substantial abuse of discretion.” Id. at 705-07. Plaintiff, however, does not challenge the Magistrate Judge‘s authority to adjudicate the issue of specific performance, see note 1, ante, thereby conceding that the issue of specific performance wаs an equitable issue for the court, not the jury. We conclude, therefore, that any claimed error on this issue is harmless. See
CONCLUSION
We have considered all of the plaintiff‘s arguments on appeal and find them to be without merit. For the reasons stated above, we AFFIRM the August 2, 2012 judgment and November 1, 2012 order of the District Court.