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Smallwood v. Lupoli

United States Court of Appeals, Second Circuit
Mar 4, 2009
No. 07-4445-cv (2d Cir. Mar. 4, 2009)

Summary

affirming district court's grant of summary judgment to defendants where plaintiffs failed to adduce sufficient evidence supporting "a reasonable finding of a unifying objective or an association-in-fact to coalesce around it"

Summary of this case from 287 Franklin Ave. Residents' Ass'n v. Meisels

Opinion

No. 07-4445-cv.

March 4, 2009.

Appeal from the United States District Court for the Eastern District of New York (Joseph F. Bianco, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court, entered on September 17, 2007, is AFFIRMED.

APPEARING FOR APPELLANTS: EDWARD G. BAILEY, Bailey Sherman, P.C., Douglaston, New York.

APPEARING FOR APPELLEES: PATRICK F. BRODERICK, Bayside, New York, for appellees Matthew M. Lupoli, Albert Basal, Fred Basal, Tony Zadeh, Plaza Homes, LLC, and Universal Development, LLC; PETER M. REDMOND, Bayside, New York, pro se, and for appellee Peter M. Redmond, P.C.; JOSEPH V. DIBLASI, New York, New York, for appellee George J. Brucker.

PRESENT: HONORABLE REENA RAGGI, HONORABLE PETER W. HALL, Circuit Judges, HONORABLE GERARD E. LYNCH, District Judge.

The Honorable Gerard E. Lynch, of the United States District Court for the Southern District of New York, sitting by designation.


Plaintiffs Keishma Smallwood, Editha Hills, Alice Collins, and Alice Dailyda appeal an award of summary judgment in favor of defendants on substantive and conspiratorial claims of racketeering, see 18 U.S.C. § 1962(c), (d), in connection with the auctioning of two properties entrusted to the care of court-appointed guardian Matthew M. Lupoli. On our de novo review of the district court's grant of summary judgment, see Mathirampuzha v. Potter, 548 F.3d 70, 74 (2d Cir. 2008), we assume the parties' familiarity with the facts and procedural history of this case, which we reference only as necessary to explain our decision.

Having dismissed these federal claims, the district court declined to exercise supplemental jurisdiction over the companion state-law claims. Because appellants do not challenge that aspect of the district court's judgment, we deem any such argument waived. See In re U.S. Wireless Data, Inc., 547 F.3d 484, 492 (2d Cir. 2008).

In awarding summary judgment, the district court held that plaintiffs failed to adduce sufficient evidence that defendants operated as an association-in-fact, a prerequisite to both their substantive and conspiratorial claims of racketeering.See 18 U.S.C. §§ 1962(c), (d) 1961(4). We agree. The fact that defendants — a court-appointed guardian, an attorney retained by the guardian, an appraiser, certain bidders and the corporate entities through which they operated — were repeat players in two property auctions is insufficient, by itself, to permit a reasonable factfinder to conclude that they functioned as a unit to accomplish the alleged unlawful objective of rigging the properties' at-auction sales prices. See United States v. Turkette, 452 U.S. 576, 583 (1981) (explaining that RICO enterprise is proved "by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit"); United States v. Coonan, 938 F.2d 1553, 1559-60 (2d Cir. 1991) (observing that association-in-fact "is oftentimes more readily proven by what it does, rather than by abstract analysis of its structure" (emphasis in original) (internal quotation marks omitted)). Indeed, except for an isolated pre-sale inquiry, Lupoli denied having discussed the properties with the defendant bidders before they were sold. The purchasers testified similarly. Plaintiffs introduce no contrary evidence.

Instead, plaintiffs submit that circumstantial evidence — in particular, Editha Hills's deposition testimony that she was introduced to the winning bidder and informed of the winning bid for the Smallwood property before the auction took place — would support an inference that defendants functioned as the necessary racketeering unit. Without further support, however, such an inference is not reasonable when the uncontroverted evidence is that both auctions were public and attended by dozens of individuals, and that persons unaffiliated with the defendants actually bid on the properties. Thus, the circumstantial evidence cannot support a reasonable finding of a unifying objective or an association-in-fact to coalesce around it. See United States v. Turkette, 452 U.S. at 583;United States v. Coonan, 938 F.2d at 1559-60.

In an effort to avoid this conclusion, plaintiffs, at oral argument, asserted that the unaffiliated bidders were somehow coerced or pressured by the defendant bidders, some of whom were previously convicted — years ago — for conspiring to rig bids on state-auctioned properties. Plaintiffs have failed to demonstrate the admissibility of such convictions. See Fed.R.Evid. 404(b); see also Fed.R.Civ.P. 56(e). Although plaintiffs had an opportunity to pursue discovery from the unaffiliated bidders, they have adduced nothing beyond conjecture or speculation regarding their participation in any rigging scheme.See Major League Baseball Properties, Inc. v. Salvino, Inc., 542 F.3d 290, 310 (2d Cir. 2008) (explaining that bald conclusions or speculation cannot defeat summary judgment motion).

Because we conclude that plaintiffs failed to adduce sufficient evidence of a RICO enterprise, we need not consider their challenges to the alternative deficiencies in proof identified by the district court in granting summary judgment.

The judgment of the district court is AFFIRMED.


Summaries of

Smallwood v. Lupoli

United States Court of Appeals, Second Circuit
Mar 4, 2009
No. 07-4445-cv (2d Cir. Mar. 4, 2009)

affirming district court's grant of summary judgment to defendants where plaintiffs failed to adduce sufficient evidence supporting "a reasonable finding of a unifying objective or an association-in-fact to coalesce around it"

Summary of this case from 287 Franklin Ave. Residents' Ass'n v. Meisels
Case details for

Smallwood v. Lupoli

Case Details

Full title:KEISHMA SMALLWOOD, by and through the Guardian of her person, EDITHA…

Court:United States Court of Appeals, Second Circuit

Date published: Mar 4, 2009

Citations

No. 07-4445-cv (2d Cir. Mar. 4, 2009)

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