CORSAIR SPECIAL SITUATIONS FUND, L.P., Plaintiff-Appellee, v. NATIONAL RESOURCES, National Resources Investments, LLC, I.Park, LLC, aka iPark, IPark Edgewater, LLC, One Main Street Edgewater, LLC, Hudson View Associates, LLC, Westchester Industries, Inc., Third Parties-Appellants, Engineered Framing Systems, Inc., John J. Hildreth, Marie N. Hildreth, Efs Structures, Inc., Defendants.
No. 13-4215
United States Court of Appeals, Second Circuit
Dec. 17, 2014
40-46
“While consistent, detailed, and credible testimony may be sufficient to carry the alien’s burden, evidence corroborating h[er] story, or an explanation for its absence, may be required where it would reasonably be expected.” Diallo v. INS, 232 F.3d 279, 285-86 (2d Cir.2000). The agency appropriately found that corroboration was necessary in this case because Verma’s claim was based on substantially the same facts as her husband’s claim, which was deemed not credible in his separate removal proceeding. See id. The agency afforded no weight to her husband’s statements, see Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.2006), observed that her background evidence did not specifically address her situation, and considered her failure to produce available corroboration in the form of letters from friends or family, see Diallo, 232 F.3d at 285-87. These rulings were reasonable.
The agency also reasonably discounted the likelihood of future persecution on the grounds that: her account of evading police during her husband’s alleged arrests (she moved to another room) was implausible; one of her similarly situated sons continues to live in India unharmed; and she failed to show that police would look for her if she returned. See Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir.1999) (evidence showing family continued to live safely in country of origin “cuts against” claim of future harm based on family relationship); see also Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir.2005) (providing that a fear is not objectively reasonable if it lacks “solid support” in the record and is merely “speculative at best.”). The agency’s findings that she failed to provide sufficient corroboration or demonstrate a likelihood of persecution were dispositive of withholding of removal and CAT relief because those claims were 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 Court 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
Matthew Scott Sturtz (Gregory J. Spaun, Welby, Brady, & Greenblatt, LLP, on the brief), Miles & Stockbridge, P.C., Baltimore, MD, for Plaintiff-Appellee.
John F. Carberry (William. N. Wright, on the brief), Cummings & Lockwood LLC, Stamford, CT, for Third Parties-Appellants.
PRESENT: ROBERT D. SACK, GERARD E. LYNCH and RAYMOND J. LOHIER, JR., Circuit Judges.
After plaintiff-appellee Corsair Special Situations Fund, L.P. (“Corsair”) served a writ of execution on third party-appellant National Resources for certain funds allegedly owed by National Resources to defendant EFS Structures, National Resources continued to pay the funds directly to or on behalf of EFS. Corsair then moved for a turnover order directing National Re-
National Resources asserts several errors in the rulings below. First, it reasserts its claims that it failed to receive proper service of Corsair’s writ of execution and that the “EFS Structures” to which National Resources owed its debt was not the same company as Corsair’s judgment-debtor. Second, National Resources argues that the district court misread Connecticut’s post-judgment garnishment statute,
These latter claims were not timely made below, and are therefore not preserved for appellate review. As a general rule, we do not consider an argument “not properly raised in the district court,” Nat’l Union Fire Ins. Co. of Pittsburgh, PA. v. Stroh Companies, Inc., 265 F.3d 97, 115-16 (2d Cir.2001), including one “raised for the first time below in a motion for reconsideration,” Official Comm. of Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147, 159 (2d Cir.2003). National Resources argues that it raised at least some of its claims in its Supplemental Memorandum and not, technically, in a motion to reconsider, but that does not render its challenge timely. Despite having some notice of National Resources’s statutory objection, the district court never had occasion to probe National Resources’s challenge at the hearing, nor did Corsair have an opportunity to respond.
Because these waiver rules are prudential rather than jurisdictional, we may at our discretion choose to reach an unpreserved argument where (1) “consideration of the issue is necessary to avoid manifest injustice” or (2) “the issue is purely legal and there is no need for additional factfinding.” Baker v. Dorfman, 239 F.3d 415, 420 (2d Cir.2000) (internal quotation marks omitted). “[C]ircumstances normally do not militate in favor of an exercise of discretion,” however, where the novel arguments “were available to the parties below and they proffer no reason for their failure to raise [them].” In re Nortel Networks Corp. Sec. Litig., 539 F.3d 129, 133 (2d Cir.2008) (internal quotation marks omitted).
Although National Resources knew the amount sought by Corsair as soon as Corsair filed its turnover request on January 17, 2013, it did not challenge that amount either in its opposition to the motion, including in its footnote request for an evidentiary hearing on other issues, or at the August 20, 2013 hearing held by the district court. Instead, having already submitted extensive briefing on Corsair’s turnover motion, National Resources first raised its statutory objections to the requested amount in a Supplemental Memorandum submitted to the district court on September 13, 2013, nearly a month after the hearing, and first challenged the admissibility of Corsair’s evidence in its Motion for Reconsideration of the district court’s grant of the turnover order. Na-
For much the same reasons, the district court did not err in denying National Resources’s Motion for Reconsideration. We review a district court’s denial of a motion for reconsideration under
Under
Under
National Resources claims that it failed to challenge Corsair’s turnover amount at the August 2013 hearing because it reasonably mistook that proceeding for an “oral argument” focusing purely on “jurisdictional” issues. Yet the district court’s scheduling notice clearly stated: “Pursuant to
Nor did the district court abuse its discretion in denying National Resources’s request for an additional evidentiary hearing to determine the correct turnover amount. See United States v. Bonventre, 720 F.3d 126, 128 (2d Cir.2013) (noting general abuse of discretion standard for denial of request for evidentiary hearing). National Resources’s request is governed by the Fourteenth Amendment right to due process, which demands that any “deprivation of life, liberty, or property be preceded by notice and opportunity for hearing appropriate to the nature of the case.” Chase Grp. Alliance LLC v. N.Y.C. Dep’t of Fin., 620 F.3d 146, 150 (2d Cir.2010) (internal quotation marks omitted). In this case, the district court scheduled a hearing on Corsair’s turnover motion on August 20, 2013. National Resources had the opportunity to raise any objections to the turnover at or in anticipation of this proceeding. Having failed to avail itself of that opportunity to oppose Corsair’s turnover amount, National Resources cannot show that the court abused its discretion by declining to schedule an additional hearing.
As to National Resources’s preserved challenges to the district court’s turnover order, neither has merit. First, National Resources claims that it never received proper service of the writ of execution underlying Corsair’s turnover request. Because
Another method of serving foreign LLCs in Connecticut is found at
any process, notice or demand in connection with any action or proceeding ... to be served upon a limited liability company which is subject to the provisions of section 34–104 may be served upon any member of the limited liability
company in whom management of the limited liability company is vested or any manager of the limited liability company by any proper officer.
Finally, National Resources insists that the “EFS Structures” to which National Resources owed its debt was not the same entity as Corsair’s judgment-debtor, noting that this latter “EFS Structures” had its corporate status revoked shortly after judgment and that a new “EFS Structures” incorporated shortly after contracting with National Resources. As National Resources concedes, the district court’s determination regarding EFS’s identity is a factual finding reviewable only for clear error. See Mobil Shipping & Transp. Co. v. Wonsild Liquid Carriers Ltd., 190 F.3d 64, 67 (2d Cir.1999). In reaching that determination, the district court emphasized that the “new” EFS Structures used the same name, business address, and federal tax identification number as the judgment-debtor entity. Furthermore, it reasonably construed the fact that the “new” EFS was incorporated only after National Resources signed its contract as further evidence that the contracting entity to whom National Resources pledged its debt must have been the original EFS. In light of these considerations, the sole countervailing fact of EFS’s reincorporation does not make the district court’s determination clearly erroneous.
Accordingly, we AFFIRM the judgment of the district court.
ROBERT D. SACK
GERARD E. LYNCH
RAYMOND J. LOHIER, JR.
UNITED STATES CIRCUIT JUDGES