Abbas v. Martin , 689 F. App'x 43 ( 2017 )

16-1089
Abbas v. Martin
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.
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 27th day of April, two thousand seventeen.
PRESENT: DENNIS JACOBS,
BARRINGTON D. PARKER,
DEBRA ANN LIVINGSTON,
Circuit Judges.
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HASSAN ALI ABBAS, ESQ.,
Plaintiff-Appellant,
-v.- 16-1089
RICHARD A. MARTIN, ESQ., ORRICK,
HERRINGTON & SUTCLIFFE LLP,
Defendants-Appellees.
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FOR APPELLANT: HASSAN A. ABBAS, pro se,
Hanover Park, IL.
1
FOR APPELLEES: KELLY M. DALEY (Peter A.
Bicks, on the brief),
Orrick, Herrington &
Sutcliffe LLP, New York,
NY.
Appeal from a judgment of the United States District
Court for the Southern District of New York (Sullivan, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
AND DECREED that the judgment of the district court be
AFFIRMED.
Hassan Abbas appeals pro se from a final order of the
United States District Court for the Southern District of
New York (Sullivan, J.) dismissing his complaint pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure. We
review de novo the district court’s dismissal of a complaint
pursuant to Rule 12(b)(6), accepting all factual allegations
in the complaint as true and drawing all reasonable
inferences in the plaintiff’s favor. Chambers v. Time
Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). We assume
the parties’ familiarity with the underlying facts, the
procedural history, and the issues presented for review.
On July 16, 2014, this Court granted a motion for
sanctions against Abbas in an unrelated lawsuit brought by
Abbas and a Congolese corporation (of which Abbas was the
sole corporate officer) against two banks that were
represented by Orrick, Herrington & Sutcliffe LLP
(“Orrick”). Abbas, a lawyer, was then “of counsel” to the
law firm Handler Thayer LLP (“Handler Thayer”). Later that
day, Richard A. Martin, then a partner at Orrick, notified
Handler Thayer by email that if Abbas did not pay the
sanctions, Orrick would “look to” Handler Thayer to do so.
App’x at 33. When, soon after, Handler Thayer terminated
its “of counsel” arrangement with Abbas,1 Abbas then filed
1 According to Abbas, this was an informal arrangement and
was not governed by contract.
2
the present action alleging that Martin’s email constituted
tortious interference with Abbas’s business relationship.
The district court dismissed the complaint on the ground
that it failed to plausibly allege the claim.
Under New York law, which the parties agree controls
here, a plaintiff alleging tortious interference must
establish that “(1) [he] had a business relationship with a
third party; (2) the defendant knew of that relationship and
intentionally interfered with it; (3) the defendant acted
solely out of malice, or used dishonest, unfair, or improper
means; and (4) the defendant’s interference caused injury to
the relationship.” Carvel Corp. v. Noonan, 350 F.3d 6, 17
(2d Cir. 2003).
“[A]s a general rule, the defendant’s conduct must
amount to a crime or an independent tort” in order to
constitute tortious interference. Carvel Corp. v. Noonan, 3
N.Y.3d 182, 190 (2004). Where (as here) no such crime or
independent tort is alleged, a defendant may nevertheless be
held liable if he engages in conduct “for the sole purpose
of inflicting intentional harm on plaintiff[],” id., or,
perhaps, if he has employed other “wrongful means,” id. at
191. Assuming, arguendo, the latter exception exists, the
New York Court of Appeals has suggested that “‘wrongful
means’ include physical violence, fraud or
misrepresentation, civil suits and criminal prosecutions,”
id., and “extreme and unfair economic pressure,” id. at 192
(internal quotation marks omitted).
Abbas alleges that Martin’s email was motivated solely
by malice and that it qualifies as “wrongful means.” As to
malice, given Martin’s interest in ensuring that his clients
collect the monetary sanctions they were owed, Abbas has not
plausibly alleged that Martin’s motivation was devoid of
“legitimate economic self-interest.” Id. at 191; see
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (requiring a
complaint to “contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face” (internal quotation marks omitted)). And Martin had
3
at least an arguable basis under agency principles for
seeking payment from the potentially deeper pocket of
Abbas’s firm in the event Abbas defaulted.2 Under Illinois
law (Handler Thayer is a Chicago firm), a law firm may be
held liable for monetary sanctions imposed on one of its
lawyers acting within the scope of his authority. See
Brubakken v. Morrison, 240 Ill. App. 3d 680, 686-87 (1992).
As to “wrongful means,” an email from one law firm to
another informing it that it may be held accountable for the
monetary sanctions imposed on one of its attorneys bears no
resemblance to the type of conduct the New York Court of
Appeals has identified as tortious interference. The email
was neither fraudulent nor “extreme and unfair,” and
therefore was not wrongful. Carvel Corp., 3 N.Y.3d at 192.
Accordingly, we hereby AFFIRM the judgment of the
district court.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
2 This is especially true given Abbas’s undisputed use of
Handler Thayer email and letterhead in the lawsuit in which
he was sanctioned -- in fact, the latter was mentioned in
Martin’s email.
4