Thyroff v. Nationwide Mutual Insurance Company , 360 F. App'x 179 ( 2010 )

09-1002-cv
Thyroff v. Nationwide Mutual Insurance Company
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
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the eleventh day of January, two thousand ten.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 DEBRA ANN LIVINGSTON,
9 Circuit Judge,
10 JED S. RAKOFF, *
11 District Judge.
12 _______________________________________
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14
15 Louis E. Thyroff,
16
17 Plaintiff-Appellant,
18
19 v. 09-1002-cv
20
21 Nationwide Mutual Insurance Company, Nationwide Mutual Fire
22 Insurance Company, Nationwide Life Insurance, Nationwide
23 General Insurance Company, Nationwide Property and Casualty
24 Company, Nationwide Variable Life Insurance Company,
*
Jed S. Rakoff, Judge of the United States District
Court for the Southern District of New York, sitting by
designation.
1 Colonial Insurance Company of Wisconsin,
2
3 Defendants-Appellees. **
4
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6
7 FOR APPELLANT: William P. Tedards, Jr., Washington,
8 DC.
9
10 FOR APPELLEES: Ben M. Krowicki, Bingham McCutchen
11 LLP, Hartford, CT.
12
13 Appeal from a judgment of the United States District
14 Court for the Western District of New York (Telesca, J.).
15 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
16 AND DECREED that the judgment of the district court is
17 AFFIRMED.
18 Plaintiff, Louis Thyroff, appeals from summary judgment
19 entered February 12, 2009 in the United States District
20 Court for the Western District of New York (Telesca, J.).
21 Thyroff claims that, following his termination as an
22 insurance agent for defendant Nationwide Mutual Insurance
23 Co. (“Nationwide”), personal files stored on a leased
24 Nationwide computer were converted when the company
25 repossessed it. The district court granted summary judgment
26 for defendants. We assume the parties’ familiarity with the
**
We direct the Clerk of the Court to amend the
official caption as noted.
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1 underlying facts, the procedural history, and the issues
2 presented for review.
3 We review summary judgment decisions de novo. Woodman
4 v. WWOR-TV, Inc., 411 F.3d 69, 75 (2d Cir. 2005).
5 “According to New York law, ‘[c]onversion is the
6 unauthorized assumption and exercise of the right of
7 ownership over goods belonging to another to the exclusion
8 of the owner’s rights.’” Thyroff v. Nationwide Mut. Ins.
9 Co. (Thyroff I), 460 F.3d 400, 403-04 (2d Cir. 2006)
10 (quoting Vigilant Ins. Co. of Am. v. Hous. Auth. of El Paso,
11 660 N.E.2d 1121, 1126 (N.Y. 1995) (internal quotation marks
12 omitted)) (alterations in original). “Where the original
13 possession is lawful, a conversion does not occur until the
14 defendant refuses to return the property after demand or
15 until he sooner disposes of the property.” Seanto Exports
16 v. United Arab Agencies, 137 F. Supp. 2d 445, 451 (S.D.N.Y.
17 2001) (quoting Schwartz v. Capital Liquidators, Inc., 984
18 F.2d 53, 54 (2d Cir. 1993) (per curiam)) (internal quotation
19 marks omitted). Thyroff challenges: [i] the district
20 court’s holding that Nationwide’s original possession was
21 lawful, and that demand and refusal was therefore an element
22 of his conversion claim; and [ii] its holding that he failed
23 to produce sufficient evidence of demand to survive summary
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1 judgment. We see no such error.
2 Thyroff leased a computer from Nationwide and placed on
3 it personal files, of which Nationwide consequently took
4 possession--along with the computer--following termination
5 of the lease. Thyroff does not argue that repossession of
6 the computer was unlawful. Under New York law, this is
7 enough to make Nationwide’s possession of Thyroff’s personal
8 files lawful. See, e.g., Congregation Anshe Sefard of Keap
9 St., Inc. v. Title Guarantee & Trust Co., 50 N.E.2d 534,
10 534-35 (N.Y. 1943) (conversion of personal property
11 established when dispossessed lessee demanded, and was
12 refused, return of property on formerly leased premises);
13 Lewis v. Ocean Navigation & Pier Co., 26 N.E. 301, 304-05
14 (N.Y. 1891) (same); Miller v. Marchuska, 819 N.Y.S.2d 591,
15 593 (N.Y. App. Div. 2006) (“[R]etention by [a real property]
16 owner of goods belonging to [a] dispossessed [former
17 occupant] after demand for their return constitutes
18 conversion.” (emphasis added)); Pecoraro v. M & T Bank
19 Corp., 782 N.Y.S.2d 481, 482-83 (N.Y. App. Div. 2004)
20 (lessor of safe deposit box was lawful possessor of box
21 contents); Reich v. Cochran, 99 N.Y.S. 755, 755-56 (N.Y.
22 App. Div. 1906) (conversion of personal property established
23 when dispossessed lessee demanded, and was refused, return
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1 of property on formerly leased premises).
2 Thyroff relies on this Court’s statement in a prior
3 appeal in this case:
4 [W]e disagree with the district court’s
5 finding that Thyroff failed to state a
6 claim for conversion of any business
7 records on the AOA because Nationwide owns
8 the AOA. Nationwide owns the AOA, but that
9 does not mean that it also owns any records
10 that Thyroff may have saved on the system.
11 Additionally, Thyroff has alleged that he
12 installed his personal computer programs
13 onto the AOA, and it is clear that
14 Nationwide does not own these programs. Had
15 Nationwide leased Thyroff a filing cabinet
16 into which Thyroff placed his personal
17 property, such as a camera, Nationwide
18 would not contend that it could seize
19 Thyroff’s camera when it reclaimed its
20 filing cabinet. The instant situation is
21 no different.
22 Thyroff I, 460 F.3d at 404. Thyroff argues that the quoted
23 passage controls whether Nationwide’s possession of his
24 files was lawful. But the issue in Thyroff I was whether
25 Nationwide could avoid liability for conversion because it
26 owned the property at issue outright, free of any possessory
27 rights assertable by Thyroff. The quite distinct issue here
28 is whether Nationwide can avoid liability for conversion
29 because, even though it did not own the property at issue
30 outright, it was in lawful possession of the property,
31 subject to Thyroff’s superior possessory right.
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1 Did Thyroff produce sufficient evidence of demand to
2 survive summary judgment? We think not. The purpose of the
3 demand requirement “is simply ‘that one in lawful possession
4 shall not have such possession changed into an unlawful one
5 until he be informed of the defect of his title and have an
6 opportunity to deliver the property to the true owner.’”
7 Leveraged Leasing Admin. Corp. v. PacifiCorp Capital, Inc.,
8 87 F.3d 44, 49 (2d Cir. 1996) (some internal quotation marks
9 omitted) (quoting Employers’ Fire Ins. Co. v. Cotten, 156
10 N.E. 629, 630 (N.Y. 1927)). Only one of the documents
11 Thyroff proffers to evidence demand arguably does so: the
12 handwritten notes of a Nationwide employee stating that
13 “[Thyroff had] indicated [to the Nationwide employee] he has
14 lots of personal info on the computer + wants it back.” But
15 “lots of personal info” is inadequate to notify Nationwide
16 of what electronic information he claimed superior right to,
17 and demanded: The phrase could refer to anything from
18 emails to customer lists. See Condrey v. SunTrust Bank of
19 Ga., 429 F.3d 556, 568 (5th Cir. 2005) (under Georgia law,
20 demand for return of plaintiff’s “stuff” deemed
21 insufficiently specific to survive summary judgment); St.
22 Louis Fixture & Show Case Co. v. F.W. Woolworth Co., 88
23 S.W.2d 254, 259, 262 (Mo. Ct. App. 1935) (demand for
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1 “furniture and fixtures” left on abandoned premises
2 insufficient); Commercial Factors Corp. v. Parrillo, 138
3 A.2d 324, 325-26 (R.I. 1958) (plaintiff must have made
4 demand for “specific goods”); 90 C.J.S. Trover & Conversion
5 § 43 (“The demand must be . . . sufficiently definite and
6 complete to apprise the defendant of the specific property
7 claimed.” (footnote omitted)); 18 Am. Jur. 2d Conversion §
8 76 (“Where a part of the goods is claimed by the plaintiff,
9 a failure to specify the articles demanded has been held to
10 render the demand insufficient.”).
11 We have considered Thyroff’s remaining arguments, and
12 find them to be without merit. For the foregoing reasons,
13 the judgment of the district court is hereby AFFIRMED.
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
16
17 By: __________________________
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