Industrial Risk Insurers v. Citigroup, Inc., et al., (2nd Cir. 2008)
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08-1024-cv
Industrial Risk Insurers v. Citigroup, Inc., et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUM M ARY
ORDERS FILED AFTER JANUARY 1, 2007, IS PERM ITTED 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 W HICH A LITIGANT CITES A SUM M ARY ORDER, IN EACH PARAGRAPH IN WHICH A
CITATION APPEARS, AT LEAST ONE CITATION M UST EITHER BE TO THE FEDERAL APPENDIX OR
BE ACCOM PANIED BY THE NOTATION: (SUM M ARY ORDER). A PARTY CITING A SUM M ARY
ORDER M UST SERVE A COPY OF TH AT SUM M ARY ORDER TOGETHER W ITH THE PAPER IN
W HICH THE SUM M ARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL
UNLESS TH E SUM M ARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE W HICH IS
PUBLICLY ACCESSIBLE W ITHOUT PAYM ENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://W W W .CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY
OF THE ORDER ON SUCH A DATABASE, THE CITATION M UST INCLUD E R EFERENCE TO THAT
DATABASE AND THE DOCKET NUM BER OF THE CASE IN W HICH THE ORDER W AS 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 20th day of October, two thousand eight,
PRESENT:
HON. BARRINGTON D. PARKER,
HON. DEBRA ANN LIVINGSTON,
Circuit Judges,
HON. DENNY CHIN, District Judge.* INDUSTRIAL RISK INSURERS, as subrogee of Silverstein Properties, Inc., Plaintiff-Appellant, -v.- No. 08-1024-cv SUMMARY ORDER THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, CITIGROUP GLOBAL MARKETS HOLDINGS, INC., and CITIGROUP, INC., Defendants-Appellees. FOR APPELLANT: Douglas J. Pepe (Gregory P. Joseph, on the brief), Gregory P.
Joseph Law Offices LLC, New York, NY FOR APPELLEES: Christopher P. Moore (Thomas J. Moloney and Kristen M.
Santillo, on the brief), Cleary Gottlieb Steen & Hamilton LLP, New York, NY UPON DUE CONSIDERATION of this appeal from a judgment entered in the United States District Court for the Southern District of New York, it is hereby ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.
Plaintiff-Appellant Industrial Risk Insurers ("IRI") appeals from a judgment of the United States District Court for the Southern District of New York (Hellerstein, J.) denying its motion for partial vacatur of the District Court's previous judgment dismissing its complaint. We assume the parties' familiarity with the facts, procedural history, and scope of the issues presented on appeal.
We review the District Court's judgment in light of our previous decision, which remanded IRI's motion for partial vacatur to the District Court. In remanding, we "underscore[d] that, if the district court, on remand, construes its ruling on assumption of risk in such a way that IRI cannot in other cases be collaterally estopped by it, then the need to grant the motion to vacate would be significantly reduced." Indus. Risk Insurers v. Port Auth. of N.Y. & N.J., 493 F.3d 283, 289 (2d Cir. 2007). On this appeal, we assess whether the District Court satisfactorily complied with our mandate. See In re Ivan F. Boesky Sec. Litig., 957 F.2d 65, 69 (2d Cir. 1992).
We conclude that it did.
In its opinion denying Appellant's motion for partial vacatur, the District Court clarified that its holding on the nearly identical assumption of risk issue in the related case of Aegis Ins.
Servs., Inc. v. Port Auth. of N.Y. & N.J. (In re September 11 Prop. Damage & Bus. Loss Litig.), 468 F. Supp. 2d 508 (S.D.N.Y. 2006), was on the merits. See Indus. Risk Insurers v. Port Auth. of N.Y. & N.J., No. 02-7170, 2008 WL 282273, at *5 (S.D.N.Y. Jan. 30, 2008). The District Court also assured this Court and the parties that should the assumption of risk issue present itself again in future, related litigation, "there is no reason to believe that I would consider myself precluded from carefully reviewing any argument on the merits, whether previously decided or not." Id. at *6. We are confident that the District Court, charged as it is with presiding over all litigation stemming from the events of September 11, 2001, see Air Transportation Safety and System Stabilization Act, Pub. L. No. 107-42, § 408(b)(3), 115 Stat. 230, 241 (2001), perceives the pitfalls that could arise from an application of collateral estoppel to its assumption of risk ruling in future cases.
Moreover, we note that under both federal and New York law, a prerequisite to application of collateral estoppel against a party is an opportunity for that party to contest fully the merits of the issue in question. See Boguslavsky v. Kaplan, 159 F.3d 715, 720 (2d Cir. 1998) (stating the federal rule); Curry v. City of Syracuse, 316 F.3d 324, 331 (2d Cir. 2003) (stating the New York rule). Federal law also provides that where an appeal is taken from a judgment based on multiple grounds and the appellate court affirms on one ground but not on the other, there is "no collateral estoppel as to the unreviewed ground." Gelb v. Royal Globe Ins. Co., 798 F.2d 38, 45 (2d Cir. 1986). Nor do we perceive any problematic rigidity under New York law. As we stated in In re Hyman, New York's collateral estoppel doctrine is "flexible," and "whether to apply it [in] a particular case depends on general notions of fairness involving a practical inquiry into the realities of the litigation." 502 F.3d 61, 66 (2d Cir. 2007) (quoting Jeffreys v. Griffin, 1 N.Y.3d 34, 41 (2003)) (internal quotation marks omitted). Moreover, in a recent decision, the First Department declined to give preclusive effect to an alternative ground for a decision because it had not been fully litigated. See Tydings v. Greenfield, Stein & Senior, LLP, 843 N.Y.S.2d 538, 540-42 (1st Dep't 2007).
The judgment of the District Court is AFFIRMED.
For the Court: Catherine O'Hagan Wolfe, Clerk By:
* The Honorable Denny Chin, United States District Judge for the Southern District of New York, sitting by designation.
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