09-5103-cv
D auphinais v. C unningham
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMM ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
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 6 th day of October, two thousand ten.
PRESENT: ROGER J. MINER,
BARRINGTON D. PARKER,
REENA RAGGI,
Circuit Judges.
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DOUGLAS H. DAUPHINAIS,
Plaintiff-Appellant,
v. No. 09-5103-cv
DONALD H. CUNNINGHAM, I/O HANSON-
WHITNEY & SBC, et al.,
Defendants-Appellees,
PHILIP L. STEELE, et al.,
Defendants.
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APPEARING FOR APPELLANT: DOUGLAS H. DAUPHINAIS, pro se, Ocala, Florida.
FOR APPELLEES: Todd W. Whitford, Howard, Kohn, Sprague &
Fitzgerald, Hartford, Connecticut.
Appeal from the judgment of the United States District Court for the District of
Connecticut (Vanessa L. Bryant, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment entered on December 3, 2009, is AFFIRMED.
Pro se plaintiff Douglas H. Dauphinais, whose complaint against defendants was
dismissed, appeals from so much of the judgment as was entered in favor of defendants
Philip L. Steele, Stephen C. Lattanzio, and Shaun B. Cashman pursuant to Fed. R. Civ. P.
12(b)(6), as well as the denial of his motions for appointment of counsel, entry of default
judgments, and a pretrial conference. We assume the parties’ familiarity with the facts and
proceedings below, which we reference only as necessary to explain our decision to affirm.
1. Dismissal
We review a Rule 12(b)(6) dismissal de novo. See Chase Grp. Alliance LLC v.
N.Y.C. Dep’t of Fin., --- F.3d ----, ----, 2010 WL 3547606, at *3 (2d Cir. Sept. 14, 2010).
Like the district court, we conclude that Dauphinais’s September 22, 2008 complaint must
be dismissed against Steele, Lattanzio, and Cashman because the slander claim is barred by
the two-year statute of limitations, see Conn. Gen. Stat. § 52-597, and the tortious
interference with business relations claim is barred by the three-year statute of limitations,
see Conn. Gen. Stat. § 52-577. Likewise, Dauphinais’s civil racketeering claim against these
defendants, see 18 U.S.C. §§ 1961-1968, is barred by the four-year statute of limitations that
began to run in 1993 or 1994 when Dauphinais alleges that he first discovered the alleged
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civil racketeering scheme. McLaughlin v. Am. Tobacco Co., 522 F.3d 215, 233 (2d Cir.
2008). In any event, Dauphinais’s civil racketeering claim fails because the facts alleged,
even when liberally construed, fail to demonstrate a “pattern of racketeering activity” as
required by 18 U.S.C. § 1962. See Spool v. World Child Int’l Adoption Agency, 520 F.3d
178, 183 (2d Cir. 2008). Meanwhile, Dauphinais’s claim under the Connecticut Corrupt
Organization and Racketeering Activities Act (“CORA”), Conn. Gen. Stat. § 53-393 et seq.,
was properly dismissed because that criminal statute does not provide a private civil cause
of action. See Metro Square, LLC v. Pettingill, No. CV 950148987S, 1997 WL 176350, at
*2-3 (Conn. Super. Ct. Apr. 3, 1997); see also Provencher v. Enfield, 284 Conn. 772, 777,
936 A.2d 625, 629 (2007) (“[T]here exists a presumption in Connecticut that private
enforcement does not exist unless expressly provided in a statute.”).
2. Appointment of Counsel
We review the denial of a motion to appoint counsel for abuse of discretion, see
Ferrelli v. River Manor Health Care Ctr., 323 F.3d 196, 200 (2d Cir. 2003), mindful that a
district court, in considering such a motion, “should first determine whether [a litigant’s]
position was likely to be of substance,” Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d
Cir. 1989) (internal quotation marks omitted). “Even where the claim is not frivolous,
counsel is often unwarranted where the [litigant’s] chances of success are extremely slim.”
Id. (internal quotation marks omitted). Because we conclude that the district court correctly
determined, as a matter of law, that Dauphinais’s complaint could not succeed, we identify
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no abuse of discretion in its refusal to appoint counsel. No other conclusion is warranted by
the district court’s failure to consider other factors cited by Dauphinais on appeal as none
would have altered the decision to dismiss.
3. Motions for Default Judgments
Nor do we identify abuse of discretion in the denial of Dauphinais’s motions for entry
of default judgments. See Shah v. N.Y. State Dep’t of Civil Serv., 168 F.3d 610, 615 (2d Cir.
1999). Dauphinais did not file a proof of service of the summons and complaint as to any
defendant. Moreover, defendants timely appeared prior to adjudication of Dauphinais’s
December 2008 motion for default and either answered or moved to dismiss the complaint
prior to his March 2009 motions for default. In these circumstances, the district court acted
within its discretion in declining to enter default judgments.
4. Pretrial Conference
Dauphinais submits that the district court erred in declining to hold a pretrial
conference in order to resolve a discovery dispute. “[T]he federal rules give district courts
broad discretion to manage the manner in which discovery proceeds,” In re Subpoena Issued
to Dennis Friedman, 350 F.3d 65, 69 (2d Cir. 2003), and we review discovery rulings for
abuse of discretion, see In re Agent Orange Prod. Liability Litig., 517 F.3d 76, 102 (2d Cir.
2008). We identify no basis in the record to conclude that the district court abused its
discretion here.
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We have considered Dauphinais’s other arguments on appeal and conclude that they
are without merit. Accordingly, the December 3, 2009 judgment is hereby AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
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