Case Information
*1 16 ‐ 3743 ‐ cv Ins. Mut. Co. Weber, et al.
UNITED STATES COURT OF APPEALS THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 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 TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At stated term United States Appeals Second Circuit, held Thurgood Marshall United States Courthouse, Foley Square, City York, th day December, two thousand seventeen.
PRESENT: GUIDO CALABRESI,
RAYMOND J. LOHIER, JR.,
Circuit Judges ,
EDWARD R. KORMAN, Judge .* ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ SENTRY INSURANCE A MUTUAL COMPANY, Plaintiff ‐ Appellee , No. ‐ ‐ cv
HERSHEL WEBER,
Defendant Appellant , BRAND MANAGEMENT INC., AKA BUDGET * Edward Korman, United States Eastern York, sitting designation. *2 1 SERVICES INC., DYNAMIC CLAIM SERVICES,
2 INC., BUDGET SERVICES INC.,
3
4 Defendants .
5 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
6 FOR APPELLANT: Avrom R. Vann, York, NY.
7
8 APPELLEE: Stephen Harris, Laura M. Zulick, Drinker 9 Biddle & Reath LLP, Philadelphia, PA. 10 11
Appeal from a judgment of United States District Court for Eastern District York (Eric N. Vitaliano, ).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED judgment Court AFFIRMED.
Hershel appeals from a judgment (Vitaliano, J.) granting summary favor Insurance Mutual Company (“Sentry”) denying cross motion judgment. We assume parties = familiarity facts record prior proceedings, which we refer only as necessary explain our decision affirm.
1. Preclusion Order
argues abused precluding him offering evidence oppose as discovery violations. disagree. Federal Rule Civil Procedure gives *3 courts broad discretion sanction parties who fail to obey discovery orders, including the preclude “the disobedient party supporting or opposing designated claims or defenses.” Fed. Civ. P. 37(b)(2)(A)(ii). Several factors guide our review, including “(1) the willfulness of the non ‐ compliant party . . . ; (2) efficacy lesser sanctions; (3) the duration of the period of noncompliance; and (4) whether non ‐ compliant had been warned consequences noncompliance.” S. England Tel. Co. Global NAPs 2010) (quotation marks omitted). The must “relate particular which discovery order addressed.” Daval Steel Prods., Div. Francosteel Corp. M/V Fakredine,
The record supports determination defendants engaged in willful, bad ‐ faith discovery conduct; monetary sanctions had repeatedly proven ineffective secure compliance Judge Mann’s orders; defendants violated multiple compulsion orders over year long period. Mann repeatedly warned further noncompliance could result severe sanctions, including preclusion. And most delayed outstanding production documents related entities controlled (and *4 therefore Sentry’s alter ego claim), the preclusion order was well tailored the defendants’ noncompliance. Contrary Weber’s contention, was not required show prejudice resulting the misconduct. See S. New England Tel. Co., 624 F.3d at 148–49. also reject argument the sanction was an abuse because it resulted the entry $12.5 million judgment against him. A sanction “must be commensurate non compliance.” Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d 130, 140
(2d Cir. 2007). Under circumstances this case, sanction appropriately commensurate. See Sieck Russo, F.2d 134
1989). Finally, we reject contention failed consider exhaust alternative sanctions imposed is “appropriate on overall record.” S. England Tel. Co., 148.
2. Partial Summary Judgment Order
The properly granted motion partial claim. Under York law, an owner is liable acts corporation when corporation merely an “alter ego” owner. See Carte Blanche (Sing.) Pte., Ltd. Diners Club Int’l, A seeking pierce corporate veil, thereby *5 hold an owner liable, must show that (1) “the owner exercised complete domination over corporation respect to transaction issue,” and (2) “such domination was used to commit fraud or wrong that injured seeking to pierce veil.” MAG Portfolio Consult, GMBH Merlin Biomed Grp. LLC, 2001) (quotation marks omitted).
We first reject Weber’s argument that Sentry failed adequately plead its alter ego claim. complaint against Budget Services Inc. (“Budget”) and Weber contains sufficiently specific factual allegations that Weber dominated Brand Management Inc. (“Brand”) and Budget and that he used his domination avoid corporations’ contractual obligations Sentry. To extent now argues that Sentry failed plead an alter ego claim in its complaint against Brand, and therefore could not determine Brand alter ego, failed raise this argument has forfeited it. See Aslanidis U.S. Lines, We reject argument that, even if Sentry adequately pleaded its alter ego claim, nonetheless improper (1) genuine disputes material fact remain (2) did not establish elements as Budget. are not persuaded. First, *6 District Court’s preclusion order, there no evidence properly before Court that created genuine factual dispute. Second, Court correctly concluded, based factors described Wm. Passalacqua Builders, Inc. Resnick Developers South, 1991), demonstrated that both Brand Budget are egos. have considered remaining arguments conclude they
are without merit. For foregoing reasons, AFFIRMED. THE COURT:
Catherine O = Hagan Wolfe, Clerk
