Herzfeld v. JPMorgan Chase Bank, N.A. , 354 F. App'x 488 ( 2009 )

09-0213-cv
Herzfeld v. JPMorgan Chase & Co.
UNITED STATES COURT OF APPEALS
F OR T HE S ECOND C IRCUIT
SUMMARY ORDER
R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO SUMMARY ORDERS FILED AFTER J ANUARY 1, 2007,
IS PERMITTED AND IS GOVERNED BY THIS COURT ’ S L OCAL R ULE 32.1 AND F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1. I N A
BRIEF OR OTHER PAPER IN WHICH A LITIGANT CITES A SUMMARY ORDER , IN EACH PARAGRAPH IN WHICH A CITATION APPEARS , AT LEAST
ONE CITATION MUST EITHER BE TO THE F EDERAL A PPENDIX OR BE ACCOMPANIED BY THE NOTATION : “( SUMMARY ORDER ).” A PARTY
CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS
CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH
IS PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE ( SUCH AS THE DATABASE AVAILABLE AT HTTP :// WWW . CA 2. USCOUR T S . GOV /).
IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE ORDER ON SUCH A DATABASE , THE CITATION MUST INCLUDE REFERENCE
TO THAT DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED .
At a stated Term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 25 th day of November, two thousand and
nine.
Present: JOSEPH M. MCLAUGHLIN,
RICHARD C. WESLEY,
Circuit Judges,
LAWRENCE E. KAHN,
District Judge. *
________________________________________________
ERIK HERZFELD,
Plaintiff-Appellant,
- v. - (09-0213-cv)
JPMORGAN CHASE BANK, N.A.,
Defendant-Appellee.
__________________________________________________
*
The Honorable Lawrence E. Kahn, of the United States District Court
for the Northern District of New York, sitting by designation.
1
Appearing for Appellant: JOHN T. SARTORE, Paul, Frank &
Collins, Burlington, Vermont.
Appearing for Appellee: JAMES J. COSTER, Satterlee,
Stephens, Burke & Burke LLP, New
York, New York.
Appeal from the United States District Court for the
Southern District of New York (Cote, J.).
1 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
2 AND DECREED that the judgment of the United States District
3 Court for the Southern District of New York be AFFIRMED.
4 Plaintiff, Erik Herzfeld, appeals from the district
5 court’s December 15, 2008 judgment and order granting
6 summary judgment to Defendant, JPMorgan Chase Bank, N.A.
7 (“JPMC” or the “Bank”). Plaintiff’s sole allegation is that
8 JPMC fraudulently induced him to remain employed by the Bank
9 through false representations, and thereby, to forgo a
10 position at another bank.
11 We presume the parties’ familiarity with the underlying
12 facts, the procedural history of the case, and the issues on
13 appeal. After reviewing the district court’s grant of
14 summary judgment de novo, see Global Network Commc’ns, Inc.
15 v. City of New York, 562 F.3d 145, 150 (2d Cir. 2009), we
16 affirm for substantially the reasons stated by the district
2
1 court. We note for purposes of clarity that the district
2 court properly applied the standards for granting summary
3 judgment when it stated that “factual allegations that might
4 otherwise defeat a motion for summary judgment will not be
5 permitted to do so when they are made for the first time in
6 the plaintiff’s affidavit opposing summary judgment and that
7 affidavit contradicts [his] own prior deposition testimony.”
8 Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001).
9 The parties assume that New York law governs this
10 action, and “implied consent . . . is sufficient to
11 establish choice of law.” Krumme v. WestPoint Stevens Inc.,
12 238 F.3d 133, 138 (2d Cir. 2000) (internal quotation marks
13 omitted). Under New York law, a plaintiff alleging fraud
14 must show five elements by clear and convincing evidence:
15 “(1) a material misrepresentation or omission of fact (2)
16 made by defendant with knowledge of its falsity (3) and
17 intent to defraud; (4) reasonable reliance on the part of
18 plaintiff; and (5) resulting damage to the plaintiff.”
19 Crigger v. Fahnestock & Co., 443 F.3d 230, 234 (2d Cir.
20 2006); see also Gaidon v. Guardian Life Ins. Co., 94 N.Y.2d
21 330, 348-50 (1999).
3
1 As the New York Court of Appeals has cautioned, “[t]he
2 elements of fraud are narrowly defined,” and “[n]ot every
3 misrepresentation or omission rises to the level of fraud.”
4 Gaidon, 94 N.Y.2d at 349-50; see also Eternity Global Master
5 Fund Ltd. v. Morgan Guar. Trust Co., 375 F.3d 168, 187 (2d
6 Cir. 2004). A fraud claim must be based on the
7 “representation of a material existing fact.” N.Y. Univ. v.
8 Continental Ins. Co., 87 N.Y.2d 308, 318 (1995). Further, a
9 party has a duty to disclose information if it has made a
10 “partial or ambiguous statement that requires additional
11 disclosure to avoid misleading the other party” only when
12 that party is aware that the other party is “operating under
13 a mistaken perception of a material fact.” Remington Rand
14 Corp. v. Amsterdam-Rotterdam Bank, N.V., 68 F.3d 1478, 1484
15 (2d Cir. 1995).
16 The district court properly concluded that the alleged
17 misrepresentations on which Plaintiff’s claim of fraudulent
18 inducement is based were insufficient as a matter of law to
19 defeat JPMC’s motion for summary judgment. See Herzfeld v.
20 JPMorgan Chase Bank, N.A., No. 07 Civ. 9439 (DLC), 2008 WL
21 5210992, at *2-5 (S.D.N.Y. Dec. 15, 2008). Herzfeld “failed
4
1 to make a sufficient showing on . . . essential element[s]
2 of [his] case with respect to which [he] has the burden of
3 proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
4 The Court has reviewed Plaintiff’s remaining arguments
5 and finds them to be without merit. Accordingly, the
6 judgment of the district court is hereby AFFIRMED.
7
8 For the Court
9 Catherine O’Hagan Wolfe, Clerk
10
11 By: ______________________
12
5