Grewal v. Cuneo

• Court: Court of Appeals for the Second Circuit
• Decided: February 25, 2020
• Docket: 19-448
• Status: Unpublished

Opinion

19-448 Grewal v. Cuneo 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 ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 25th day of February, two thousand twenty.

PRESENT: JOHN M. WALKER, JR., BARRINGTON D. PARKER, SUSAN L. CARNEY, Circuit Judges. _____________________________________

Preetpal Grewal, Plaintiff-Counter Defendant- Third Party Defendant-Appellant, v. No. 19-448

Cuneo Gilbert & LaDuca LLP,

Defendant-Counter Claimant-Appellee,

Jonathan W. Cuneo, Charles J. LaDuca, Pamela Gilbert, Joel Davidow, Michael J. Flannery, Robert J. Cynkar, Sandra Cuneo, Daniel M. Cohen, Matthew E. Miller,

Defendants-Appellees,

Elizabeth Thomas,

Intervenor-Third Party Plaintiff.* _____________________________________

* The Clerk of Court is directed to amend the caption as above. FOR PLAINTIFF-APPELLANT: Preetpal Grewal, pro se, New York, NY.

FOR DEFENDANT-COUNTER CLAIMANT-APPELLEE Ralph Michael Smith, Esq., AND FOR DEFENDANTS-APPELLEES: Chincoteague, VA.

Appeal from a judgment of the United States District Court for the Southern District of

New York (Abrams, J.).

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

DECREED that the January 17, 2019 judgment is AFFIRMED.

Appellant Preetpal Grewal, an attorney proceeding pro se, appeals the district court’s 2019

judgment against her. In 2013, Grewal sued her former employer, Cuneo Gilbert & LaDuca LLP

(“CGL”) and several individuals at the law firm (together, “defendants”), raising claims for, inter

alia, breach of contract, breach of an implied covenant of good faith and fair dealing, breach of

fiduciary duty, and employment discrimination, based on her Indian national origin, by creating a

hostile work environment. In 2015, the district court partially granted defendants’ motion to

dismiss, dismissing Grewal’s claim of breach of fiduciary duty, her claims against certain

individual defendants, and certain other claims. In 2016, the district court granted partial summary

judgment to defendants on Grewal’s employment discrimination and implied covenant claims, but

ruled that genuine issues of material fact precluded entry of summary judgment for defendants on

her breach of contract claim. After a bench trial on that claim, the district court found in favor of

CGL and, in 2018, entered final judgment for defendants. On January 17, 2019, the district court

denied Grewal’s post-judgment motion seeking reconsideration of that judgment under Federal

Rule of Civil Procedure 60. Grewal filed a notice of appeal on February 15, 2019. After the appeal was fully briefed,

Grewal moved in this Court for leave to re-submit her opening brief so that she could correct

certain citation issues. We assume the parties’ familiarity with the underlying facts, the procedural

history of the case, and the issues on appeal, to which we refer only as needed to explain our

decision to affirm the district court’s judgment and to deny as moot Grewal’s motion to submit a

corrected brief.

I. Timeliness of Appeal

Fed. R. App. P. 4(a)(4)(A) tolls the time within which a party must file a notice of appeal

if a Rule 60(b) motion has been filed within 28 days of entry of the operative judgment. We have

held that Rule 4(a)’s 28-day deadline is not jurisdictional, but is a “claim-processing rule” and, as

such, its enforcement is subject to waiver, forfeiture, and other equitable exceptions. See Weitzner

v. Cynosure, Inc., 802 F.3d 307, 312 (2d Cir. 2015).

We applied this principle in denying CGL’s March 20, 2019 motion to dismiss Grewal’s

appeal as untimely filed. We also denied CGL’s motion to reconsider that decision, concluding

that CGL forfeited the argument that Grewal’s Rule 60 motion, too, was untimely and that the

motion therefore failed to toll the time within which she was required to file a notice of appeal.

We further ruled that we had jurisdiction to consider Grewal’s appeal of the January 17, 2019

judgment.

CGL now renews its contention that we lack jurisdiction over Grewal’s appeal of the

district court’s judgment and of any prior orders. It argues that it has not waived or forfeited its

timeliness objection because, on March 20, 2019, it moved in this Court to dismiss the appeal as

3 untimely and, in that motion to dismiss, it asserted that Grewal’s Rule 60 motion was filed more

than 28 days after the entry of judgment and therefore could not toll Grewal’s time to appeal.

After careful review of the record, we are not persuaded by CGL’s assertion that it raised

the Rule 60 tolling argument in earlier-filed submissions. CGL’s March 2019 motion to dismiss

Grewal’s appeal did not argue that the Rule 60 motion failed to toll the time to appeal; in fact, so

far as we can discern, CGL’s motion did not even mention the Rule 60 motion or tolling at all.

Although CGL stated in its submission that “the District Court correctly denied [Grewal’s motion

to extend the time to appeal] because it was untimely under Appellate Rule 4(a)(1)(A) and

(a)(4)(vi) [sic2],” CGL did not offer any argument as to how Rule 4(a)(4)(A)(vi) applied. Dkt. No.

41 at 2. The district court order dated January 17, 2019, denying Grewal’s motion to extend the

time to appeal and on which CGL relied to argue that the appeal was untimely, similarly did not

address or discuss Grewal’s Rule 60 motion and Rule 4(a)(4) tolling.

Further, although CGL’s reply in further support of its motion to dismiss discussed

Grewal’s Rule 60 motion, CGL there argued only that the Rule 60 motion could not be construed

as a timely notice of appeal. Thus, CGL again did not urge that Grewal’s Rule 60 motion failed to

toll her time to appeal. Having failed to make this argument earlier, CGL has forfeited its right to

do so now. See Manrique v. United States, 137 S. Ct. 1266, 1272 (2017) (holding that rights

accorded by claim-processing rules “may be forfeited if the party asserting the rule waits too long

2 The Federal Rules of Appellate Procedure contain no Rule 4(a)(4)(vi); it appears that CGL intended to cite Rule 4(a)(4)(A)(vi).

4 to raise the point” (internal quotation marks omitted)). We therefore proceed to consider the merits

of Grewal’s appeal.

II. Waiver of Claims

As an initial matter, although “a court is ordinarily obligated to afford special solicitude to

pro se litigants” because a pro se litigant “generally lacks both legal training and experience,” we

have ruled that “a lawyer representing himself ordinarily receives no such solicitude at all,” Tracy

v. Freshwater, 623 F.3d 90, 101-02 (2d Cir. 2010). Further, this Court “normally will not[ ] decide

issues that a party fails to raise in his or her appellate brief.” Moates v. Barkley, 147 F.3d 207, 209

(2d Cir. 1998) (per curiam); see also Terry v. Inc. Vill. of Patchogue, 826 F.3d 631, 632–33 (2d

Cir. 2016) (“Although we accord filings from pro se litigants a high degree of solicitude, even a

litigant representing himself is obliged to set out identifiable arguments in his principal brief.”

(internal quotation marks omitted)). Nor does this Court usually decide issues that an appellant

raises only in passing. See Gerstenbluth v. Credit Suisse Sec. (USA) LLC, 728 F.3d 139, 142 n.4

(2d Cir. 2013) (pro se litigant “waived any challenge” to the district court’s adverse ruling because

brief mentioned ruling only “obliquely and in passing.”); Norton v. Sam’s Club, 145 F.3d 114, 117

(2d Cir. 1998) (“Issues not sufficiently argued in the briefs are considered waived and normally

will not be addressed on appeal.”).

On appeal, Grewal challenges the district court’s (1) finding that she was not a partner at

CGL; (2) dismissal of her breach-of-fiduciary duty claim; (3) dismissal of her claims against the

individual defendants; (4) grant of summary judgment to CGL on her discrimination claims

brought under the New York State Human Rights Law (“NYSHRL”) and New York City Human

Rights Law (“NYCHRL”); (5) grant of summary judgment to CGL on her implied covenant of

5 good faith and fair dealing claim; and (6) judgment entered in favor of CGL after a bench trial on

her breach of contract claim. Because no related arguments are developed in her appeal briefs, we

deem Grewal to have waived any other challenges on appeal, including any challenge to the district

court’s denial of her Rule 60 motion.

In her arguments on appeal challenging the district court’s summary judgment decision,

Grewal relies solely on allegations that she made in her complaint. Grewal does this even though

the district court adjudicated the parties’ summary judgment motions based on both Grewal’s and

defendants’ Rule 56.1 statements.

Citations to a complaint alone do not suffice to support arguments contesting the district

court’s summary judgment ruling. Grewal does not cite to her summary judgment motion,

memorandum, Rule 56.1 statement, or any evidence that she submitted at summary judgment in

support of her arguments. Nor does she argue now that the district court overlooked any such

submitted evidence and arguments or that any evidence adduced by defendants and on which the

district court relied was inaccurate. Rule 28(a)(8) of the Federal Rules of Appellate Procedure

requires an appellant to cite to the relevant portions of the record on appeal to support her

arguments. Failure to do so may result in the court treating her argument as waived. See Clark v.

John Lamula Inv’rs, Inc., 583 F.2d 594, 602 (2d Cir. 1978) (determining that “this court need not

search the record to discover whether such error indeed exists” when appellant failed to cite to the

record in support of his argument). Applying this principle in the circumstances before us, we

conclude that Grewal has waived any challenges that she otherwise might make to the district

court’s summary judgment ruling.

6 III. Dismissal

We review de novo the dismissal of a complaint under Rule 12(b)(6) of the Federal Rules

of Civil Procedure for failure to state a claim. See Chambers v. Time Warner, Inc., 282 F.3d 147,

152 (2d Cir. 2002). On de novo review, we determine whether the complaint pleads “enough facts

to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007). We must construe the complaint liberally, “accepting all factual allegations in the

complaint as true, and drawing all reasonable inferences in the plaintiff’s favor.” Chambers, 282

F.3d at 152.

On review, we identify no merit in any of Grewal’s challenges to the district court’s

dismissal decision. First, Grewal challenges the district court’s conclusion that she was not a

partner at CGL. She asserts that CGL members repeatedly referred to her as a partner while she

was employed at the firm, and contends that CGL should be therefore estopped now from claiming

that she was not a partner. The district court correctly held, however, that under D.C. Code § 29-

603.08(a) (which none dispute applies here), “partnership by estoppel” applies only where the

partnership represents that an individual is a partner and a person relies on that representation in a

transaction with the partnership.3 See Ross v. 1301 Conn. Ave. Assocs., 99 F.3d 444, 446 (D.C.

Cir. 1996) (citing D.C.’s former version of the partnership by estoppel law and stating partnership

by estoppel is recognized “only with respect to claims by persons who have reasonably relied upon

outward representations of partnership”). Grewal did not allege in her complaint—nor does she

3 The district court held that, because CGL was a partnership organized under D.C. law, D.C. law applied to questions that concern partnership affairs. On the other hand, because the parties assumed that New York law applied to state tort and contract claims the district court ruled that it would apply New York law to those claims. On appeal, the parties do not challenge these rulings.

7 assert in her brief—that, in deciding to join CGL or in any other transaction she had with the firm

that she relied on a representation, she would be or was a partner at the firm. Further, Grewal did

not allege in her complaint (and does not argue here) that she had undertaken to bear any

partnership losses in proportion to her share of the profits, as D.C. partnership law requires. See

D.C. Code. § 29-604.01(b). We therefore discern no error in the district court’s ruling on this issue.

Second, Grewal challenges the court’s dismissal of her claim for breach of fiduciary duty,

again asserting that the district court erred in finding that she was not a CGL partner and in

reasoning that the firm did not owe her any such duty. As discussed above, however, Grewal failed

adequately to allege that she was a partner at CGL. Because a partnership owes fiduciary duties

only to partners (and not to employees), Grewal failed to state a claim for breach. See D.C. Code.

§ 29-604.07. See generally Wilson v. Dantas, 746 F.3d 530, 536 (2d Cir. 2014) (holding that breach

of fiduciary duty claim was properly dismissed where plaintiff failed to allege existence of a

partnership or “mutual intent . . . to create a fiduciary relationship”).

Finally, Grewal challenges the district court’s dismissal from the suit of certain individual

defendants. She argues, in only a conclusory manner, that “all individual defendants are necessary

parties to this action,” and cites in support the principle that a lawsuit against a partnership must

name all partners as defendants. Dkt. No. 160 at 39–40. Grewal fails to raise any specific

arguments, however, as to why the district court erred in ruling that those individual defendants

whom it dismissed were not partners at CGL. She has thus waived any claim of error as to that

ruling.4

4 In any event, the district court correctly held that Grewal also failed adequately to allege that those individuals were partners of CGL under a partnership-by-estoppel theory.

8 IV. Final Judgment

Grewal’s challenges to the district court’s judgment rejecting her breach of contract claim

are also unpersuasive. “In reviewing a judgment entered after a bench trial,” this Court reviews

findings of fact for clear error and its “conclusions of law, and its application of the law to the

facts, de novo.” Krist v. Kolombos Rest. Inc., 688 F.3d 89, 95 (2d Cir. 2012). “Where there are two

permissible views of the evidence, the factfinder’s choice between them cannot be clearly

erroneous.” Id. (internal quotation marks omitted). On appeal, this Court may not “second-guess

the bench-trial court’s credibility assessments.” Id. As discussed briefly below, the district court

did not err in its well-reasoned decision on this claim.

Grewal insists, in a conclusory fashion, that she was entitled to origination and lodestar

fees in the “Air Cargo” litigation, the “wire harness” litigation, and other cases handled by CGL.

She does not, however, challenge the district court’s factual finding that, to receive “origination”

compensation at CGL, she needed to satisfy four criteria: (1) propose the idea, (2) find a client, (3)

draft the complaint, and then, (4) accrue profits to the firm from the foregoing three. This factual

finding was critical to the district court’s ruling that Grewal was not entitled to any origination

fees. On review of the record, Grewal points to no clear error in the district court’s finding. The

district court credited the testimony of CGL partners and employees that the factors controlled. It

largely discredited Grewal’s testimony, as it was entitled to do. As to Grewal’s argument that the

district court erred in finding that statements by CGL members that she was entitled to 5% of

origination fees in the “wire harness” litigation was a discretionary concession rather than an

admission that Grewal was contractually entitled to origination fees in that case, we also see no

clear error. There, the court again merely credited other testimony over Grewal’s.

9 Grewal also contends almost in passing that she was entitled to lodestar fees and that CGL

deprived her of her right to work on various cases. The district court reasonably rejected Grewal’s

proposed explanation for lodestar calculations, accepted CGL’s calculation, and found that Grewal

failed to show that she was entitled to any other work or fees. Again, these were findings in which

the court relied primarily on its justifiable credibility determinations. Grewal adduces no basis for

us to overturn them on appeal.

* * *

We have considered all of Grewal’s remaining arguments and conclude that they are

without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O=Hagan Wolfe, Clerk of Court