09-3004-cv
Cretella v. Luriano
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed on or
after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and
this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a
party must cite either the federal appendix or an electronic database (with the notation “summary
order”). A party citing a summary order must serve a copy of it on any party not represented by
counsel.
1 At a stated term of the United States Court of Appeals for the Second Circuit, held
2 at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
3 New York, on the 22nd day of March, two thousand ten.
4
5 PRESENT:
6 RALPH K. WINTER,
7 DEBRA ANN LIVINGSTON,
8 Circuit Judges.
9 LEWIS A. KAPLAN,
10 District Judge. *
11 _________________________________________________
12
13 FRANK CRETELLA,
14 Plaintiff-Appellant,
15
16 -v.- No. 09-3004-cv
17
18 NELSON LIRIANO, individually, and as Manager, MARGARET
19 SPANIOLO, individually, and as General Manager, MARIA LOCCISANO,
20 individually, and as Senior Personnel Employee, and BERGDORF
21 GOODMAN, INC.,
22 Defendants-Appellees. **
23 _________________________________________________
24
25 Da’Tekena Barango-Tariah, Brooklyn, NY, for Plaintiff-
26 Appellant.
27
*
The Honorable Lewis A. Kaplan of the United States District Court for the Southern
District of New York, sitting by designation.
**
The Clerk of the Court is directed to amend the official caption in this case to conform
to the listing of the parties stated above.
1
1 Andrew P. Saulitis, New York, NY, for Defendants-
2 Appellees.
3
4 UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND
5 DECREED that the judgment of the district court be AFFIRMED.
6 Plaintiff-Appellant Frank Cretella appeals from the May 12, 2009, order and the
7 June 16, 2009, judgment of the United States District Court for the Southern District of
8 New York (Swain, J.), sanctioning Cretella for discovery violations and granting the
9 motion for summary judgment of Defendants-Appellees Nelson Liriano, Margaret
10 Spaniolo, Maria Loccisano, and Bergdorf Goodman, Inc. Cretella argues that the district
11 court abused its discretion in granting sanctions against him and that it erred in finding
12 that he failed to rebut the non-discriminatory reasons for his firing proffered by the
13 defendants. We assume the parties’ familiarity with the underlying facts, procedural
14 history, and specification of the issues on appeal.
15 We review a grant of summary judgment de novo, construing the evidence in the
16 light most favorable to the nonmoving party. Mitchell v. Shane, 350 F.3d 39, 47 (2d Cir.
17 2003). Summary judgment is appropriate when “there is no genuine issue as to any
18 material fact and . . . the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
19 P. 56(c). An issue of fact is “genuine” if “the evidence is such that a reasonable jury
20 could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477
21 U.S. 242, 248 (1986). A decision by a district court imposing sanctions is reviewed for
22 abuse of discretion. United States v. Seltzer, 227 F.3d 36, 39 (2d Cir. 2000). “Whether a
23 litigant was at fault or acted willfully or in bad faith are questions of fact, and we review
24 the District Court’s determinations for clear error.” Agiwal v. Mid Island Mortgage
25 Corp., 555 F.3d 298, 302 (2d Cir. 2009).
2
1 Courts have inherent power to assess sanctions “when a party has acted in bad
2 faith, vexatiously, wantonly, or for oppressive reasons.” DLC Mgmt. Corp. v. Town of
3 Hyde Park, 163 F.3d 124, 136 (2d Cir. 1998) (quoting Chambers v. NASCO, Inc., 501
4 U.S. 32, 45 (1991)) (internal quotation mark omitted). The district court must find bad
5 faith in order to impose such sanctions and bad faith must be shown by “clear evidence”
6 that the actions in question are taken for “harassment or delay or . . . other improper
7 purposes.” United States v. Int’l Bhd. of Teamsters, 948 F.2d 1338, 1345 (2d Cir. 1991))
8 (quoting Oliveri v. Thompson, 803 F.2d 1265, 1272 (2d Cir. 1986)) (internal quotation
9 marks omitted); see also Seltzer, 227 F.3d at 41-42.
10 Cretella objects to the district court’s order of sanctions on the grounds that the
11 court erred in its factual findings. He argues that the defendants’ lawyer was aware of a
12 non-party witness deposition before it occurred and chose not to attend in order to confer
13 upon the defendants a tactical advantage by obtaining the later exclusion of the witness’s
14 testimony. The documents presented in the record, which consist mainly of
15 communications between or statements of the two attorneys involved in this matter, do
16 not show that the district court committed clear error in finding that the defendants’
17 attorney was unaware of the deposition at the time that it was being taken or in finding
18 bad faith on the part of Cretella’s attorney. Nor did the court abuse its discretion by
19 disregarding the testimony given at that deposition as a sanction. In fact, the court
20 evaluated the witness’s testimony after its initial determination that the defendants were
21 entitled to summary judgment in order to assure that no issue of material fact was raised
22 in that testimony; Cretella was therefore not prejudiced by the sanctions.
3
1 Our independent review of the record confirms that the district court properly
2 granted the defendants’ motion for summary judgment, and we affirm for substantially
3 the reasons set out in the court’s extensive and well-reasoned opinion of June 16, 2009.
4 We have considered all of Cretella’s remaining arguments and find them to be without
5 merit.
6 For the foregoing reasons, the judgment of the district court is hereby affirmed.
7
8
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
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