Andritz Hydro Canada v. Rochester Gas & Electric

• Court: Court of Appeals for the Second Circuit
• Decided: October 4, 2023
• Docket: 23-0080
• Status: Unpublished

Opinion

23-0080 Andritz Hydro Canada v. Rochester Gas & Electric

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 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 A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the 2 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 3 4th day of October, two thousand twenty-three. 4 5 Present: 6 DEBRA ANN LIVINGSTON, 7 Chief Judge, 8 BARRINGTON D. PARKER, 9 WILLIAM J. NARDINI, 10 Circuit Judges. 11 _____________________________________ 12 13 ANDRITZ HYDRO CANADA, INC., THE 14 SUCCESSOR TO VA TECH HYDRO CANADA, 15 INC., 16 17 Plaintiff-Appellant, 18 19 v. 23-0080 20 21 ROCHESTER GAS AND ELECTRIC CORPORATION, 22 23 Defendant-Appellee. 24 _____________________________________ 25 26 27 For Plaintiff-Appellant: CHAD W. FLANSBURG, Phillips Lytle LLP 28 29 For Defendant-Appellee: JOSHUA M. AGINS (Joseph G. Curran, on the brief), 30 Ward Greenberg Heller & Reidy LLP 31 32

1 1 Appeal from a judgment of the U.S. District Court for the Western District of New York

2 (Geraci, J.).

3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

4 DECREED that the judgment of the district court is AFFIRMED.

5 Plaintiff-Appellant Andritz Hydro Canada, Inc. (“Andritz”) appeals a judgment entered on

6 January 4, 2023 in the United States District Court for the Western District of New York (Geraci,

7 J.) dismissing its breach of contract claim against Rochester Gas and Electric Corporation

8 (“RG&E”). On appeal, Andritz argues that RG&E’s 12-year suspension of the parties’

9 contract—and its indication that it was unlikely to lift the suspension—constituted RG&E’s

10 abandonment and termination of the contract, entitling Andritz to damages for breach. We

11 assume the parties’ familiarity with the underlying facts, the procedural history of the case, and

12 the issues on appeal. We set them forth here only insofar as necessary to explain our

13 determination that Andritz failed to preserve this argument before the district court and our

14 conclusion not to consider it.

15 “The law in this Circuit is clear that where a party has shifted his position on appeal and

16 advances arguments available but not pressed below, and where that party has had ample

17 opportunity to make the point in the trial court in a timely manner, waiver will bar raising the issue

18 on appeal.” United States v. Braunig, 553 F.2d 777, 780 (2d Cir. 1977) (citations omitted).

19 Even when a party has mentioned a point below, a “single, conclusory, one-sentence argument is

20 insufficient to preserve any issue for appellate review.” Cuoco v. Moritsugu, 222 F.3d 99, 112

21 n.4 (2d Cir. 2000); see 23-34 94th St. Grocery Corp. v. N.Y.C. Bd. of Health, 685 F.3d 174, 184

22 n.8 (2d Cir. 2012). Likewise, a party forfeits an issue when it “merely incorporat[es] by reference

23 an argument presented to the district court, stat[es] an issue without advancing an argument,”

2 1 Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998), “merely incant[s] the phrase . . . and then

2 immediately proceed[s] to argue a different theory,” or fails to “offer some argument or

3 development of its theory,” United States v. Griffiths, 47 F.3d 74, 77 (2d Cir. 1995). Nonetheless,

4 this Court retains “discretion to consider waived arguments” and will exercise it “where necessary

5 to avoid a manifest injustice.” Allianz Insur. Co. v. Lerner, 416 F.3d 109, 114 (2d Cir. 2005)

6 (internal quotation marks omitted).

7 Here, Andritz’s core argument on appeal was presented below, to the extent presented at

8 all, in a single sentence (followed by a citation to a 1902 case with an explanatory parenthetical)

9 located in its response to RG&E’s motion to dismiss. The sentence presumes that abandonment

10 and termination occurred under the present facts, but neither the sentence nor the explanatory

11 parenthetical advances an argument as to why RG&E’s suspension constituted abandonment and

12 termination—let alone that New York law compels such a conclusion. Moreover, the sentence

13 falls mid-paragraph in a section of the response devoted to an entirely different theory—that

14 RG&E terminated the contract by failing to respond to Andritz’s November 4, 2019, letter.

15 Andritz does not purport to raise on appeal this theory of termination by silence. Nor does it

16 pursue the other theory developed in the district court—that RG&E terminated the contract in its

17 letter dated April 16, 2020, and is therefore liable for damages.

18 We conclude that Andritz failed to adequately present its argument in the district court and

19 has therefore not preserved it for consideration here. Furthermore, this Court discerns no

20 “manifest injustice” in declining to consider the forfeited argument on appeal. “Although we

21 may exercise discretion to consider [forfeited] arguments where necessary to avoid a manifest

22 injustice, the circumstances normally do not militate in favor of an exercise of discretion to address

23 . . . new arguments on appeal . . . where those arguments were available to the [parties] below and

3 1 they proffer no reason for their failure to raise the arguments below.” In re Nortel Networks

2 Corp. Sec. Litig., 539 F.3d 129, 133 (2d Cir. 2008) (second alteration in original) (internal

3 quotation marks omitted). Here, Andritz does not dispute that the argument articulated on appeal

4 was available to it below. In its briefs, Andritz proffers neither an explanation for not pressing

5 the argument before the district court nor a suggestion that a failure to consider it would result in

6 manifest injustice.

7 We have considered Plaintiff-Appellant’s remaining arguments and find them to be without

8 merit. Accordingly, we AFFIRM the judgment of the district court.

9 FOR THE COURT: 10 Catherine O’Hagan Wolfe, Clerk