Cordius Trust v. Kummerfeld Associates, Inc., (2nd Cir. 2009)

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08-0939-cv

Cordius Trust v. Kummerfeld Associates, Inc.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO

SUMMARY ORDERS FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED

BY THIS COURT'S LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE

32.1. IN 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 FEDERAL APPENDIX 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.CA2.USCOURTS.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 Courthouse, 500 Pearl Street, in the City of New York, on the 2nd day

of June, two thousand nine.

Present:

HON. ROGER J. MINER,

HON. ROBERT A. KATZMANN,

HON. REENA RAGGI,

Circuit Judges.

CORDIUS TRUST,

Plaintiff-Counter-Defendant-Appellee,

v. No. 08-0939-cv

DONALD D. KUMMERFELD,

Respondent-Appellant,

ELIZABETH KUMMERFELD and KUMMERFELD ASSOCIATES, INC.,

Defendant-Counter-Claimants.

For Plaintiff-Counter-Defendant-Appellee: James A. Wade, Bradford S. Babbitt, and Mathew Jasinski, Robinson & Cole LLP, Hartford, CT For Respondent-Appellant: Kenneth F. McCallion, McCallion & Associates LLP, New York, NY Appeal from the United States District Court for the Southern District of New York (Cote, J.).

ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and DECREED that the judgment of the district court entered January 29, 2008, is AFFIRMED.

Respondent-Appellant Donald Kummerfeld ("Kummerfeld") appeals from the January 29, 2008 judgment of the United States District Court for the Southern District of New York (Cote, J.), following a jury trial, piercing the corporate veil of Kummerfeld Associates, Inc.

("KAI") and ordering Kummerfeld liable to plaintiff for $ 2,656,796.02 in damages, interest, fees, and costs. We assume the parties' familiarity with the facts of the case, its procedural history, and the issues on appeal.

On appeal, Kummerfeld identifies numerous purported errors in the trial and argues that the jury's verdict was clearly a product of these errors. Specifically, he claims that the district court improperly (1) restricted the cross-examination of certain witnesses; (2) determined that Ms. Kummerfeld was competent to testify; (3) admitted evidence regarding criminal and civil cases involving Ms. Kummerfeld or KAI; and (4) instructed the jury that it could draw an adverse inference from Kummerfeld's failure to produce certain evidence. None of these purported errors, however, are supported by the record.

Kummerfeld argues further that the court erroneously instructed the jury that, as a matter of law, he completely dominated KAI, removing this element from the jury's consideration.

Plaintiff had established previously that Kummerfeld completely dominated KAI. See Cordius Trust v. Kummerfeld, 153 F. App'x 761, 763 (2d Cir. 2005) (summary order). Therefore, the instruction on this element was appropriate.

Finally, Kummerfeld argues that the jury's verdict was not based on the weight of the evidence. Because Kummerfeld first made a motion for judgment as a matter of law only after the jury returned its verdict and judgment as a matter of law is not necessary to prevent manifest injustice, he cannot now challenge the sufficiency of the evidence. See Kirsch v. Fleet St., Ltd., 148 F.3d 149, 164 (2d Cir. 1998) ("As to any issue on which no proper Rule 50(b) motion was made, [judgment as a matter of law] may not properly be . . . ordered by the appellate court unless that action is required in order to prevent manifest injustice."); see also Broadnax v. City of New Haven, 415 F.3d 265, 268 (2d Cir. 2005). In any event, based on the evidence adduced at trial, a reasonable jury easily could have concluded that Kummerfeld abused KAI in a way that warranted the intervention of equity. See Cordius Trust, 153 F. App'x at 763.

We have considered Kummerfeld's remaining arguments and find them to be without merit. Accordingly, for the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

FOR THE COURT: CATHERINE O'HAGAN WOLFE, CLERK By:

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