Gilman v. Marsh & McLennan Cos. , 654 F. App'x 16 ( 2016 )

15-0603
Gilman v. Marsh & McLennan Cos.
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3
4 SUMMARY ORDER
5
6 RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
7 FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
8 APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
9 ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
10 OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING A SUMMARY
11 ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
12
13 At a stated term of the United States Court of Appeals for
14 the Second Circuit, held at the Thurgood Marshall United States
15 Courthouse, 40 Foley Square, in the City of New York, on the
16 16th day of June, two thousand sixteen.
17
18 PRESENT: AMALYA L. KEARSE,
19 RALPH K. WINTER,
20 DENNIS JACOBS,
21 Circuit Judges.
22
23 - - - - - - - - - - - - - - - - - - - - -X
24
25 WILLIAM W. GILMAN, EDWARD J. McNENNEY, JR.,
26 Plaintiffs-Appellants,
27
28 -v.- 15-0603
29
30 MARSH & McLENNAN COMPANIES, INC., MARSH
31 INC., MARSH USA INC., MARSH GLOBAL
32 BROKING INC., MICHAEL CHERKASKY,
33 Defendants-Appellees.
34
35 - - - - - - - - - - - - - - - - - - - - -X
36
37 FOR APPELLANTS: DAVID I. GREENBERGER (Jeffrey L.
38 Liddle, Blaine H. Bortnick, James
1
1 W. Halter, on the brief), Liddle &
2 Robinson, LLP, New York, NY.
3
4 FOR MARSH APPELLEES: JONATHAN D. POLKES (Gregory
5 Silbert, Nicholas J. Pappas, on
6 the brief), Weil, Gotshal & Manges
7 LLP, New York, NY.
8
9 FOR CHERKASKY APPELLEE: JAMES O. HEYWORTH (Andrew W.
10 Stern, on the brief), Sidley
11 Austin LLP, New York, NY.
12
13 Appeal from a judgment of the United States District Court
14 for the Southern District of New York (Oetken, J.).
15
16 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
17 DECREED that the judgment of the district court be AFFIRMED.
18
19 William Gilman and Edward McNenney, Jr. appeal from the
20 order of the United States District Court for the Southern
21 District of New York (Oetken, J.) dismissing their claims for
22 (i) abuse of process against their former employer, Marsh (i.e.,
23 Marsh & McLennan Cos., Marsh Inc., Marsh USA Inc., and Marsh
24 Global Broking Inc.), and the CEO of their former employer,
25 Michael Cherkasky, and (ii) misconduct against Cherkasky as an
26 attorney. As explained in an opinion filed simultaneously with
27 this summary order, we affirm the district court’s dismissal
28 of Gilman and McNenney’s claims for employment benefits against
29 their former employer. We assume the parties’ familiarity with
30 the underlying facts, the procedural history, and the issues
31 presented for review.
32 We review the grant of a motion to dismiss de novo, accept
33 as true all factual allegations, and draw all reasonable
34 inferences in favor of the plaintiffs. Fink v. Time Warner
35 Cable, 714 F.3d 739, 740-41 (2d Cir. 2013).
36 1. Gilman and McNenney cannot make out a claim for abuse
37 of process against Marsh and Cherkasky. As we recognized in
38 Cook v. Sheldon, “[t]he gist of abuse of process is the improper
39 use of process after it is regularly issued.” 41 F.3d 73, 80
40 (2d Cir. 1994) (emphasis added) (internal marks omitted). To
2
1 the extent Gilman and McNenney allege any “abuse,” it
2 unquestionably came before the process in question (their
3 respective indictments), not after. Accordingly, we affirm
4 the district court’s dismissal of their abuse of process claim.
5 2. Gilman and McNenney’s claim of misconduct by an
6 attorney under New York Judiciary Law Section 487 also fails.
7 Such a claim must allege that the attorney committed the
8 misconduct while acting in the capacity as an attorney. See,
9 e.g., Barrows v. Alexander, 912 N.Y.S.2d 831, 832 (App. Div.
10 2010). To the extent Gilman and McNenney allege any misconduct
11 by Cherkasky, it was without a doubt in his role as the CEO of
12 Marsh, not as an attorney. Therefore, we affirm the district
13 court’s dismissal of their misconduct by an attorney claim.
14 Accordingly, and finding no merit in Gilman’s or McNenney’s
15 other arguments, we hereby AFFIRM the judgment of the district
16 court.
17 FOR THE COURT:
18 CATHERINE O’HAGAN WOLFE, CLERK
3