Allstate Ins. Co. v. Rozenberg

09-0873-cv Allstate Ins. Co. v. Rozenberg 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 2 for the Second Circuit, held at the Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 15 th day of February, two thousand eleven. [5] 6 PRESENT: DENNIS JACOBS, 7 Chief Judge, 8 PETER W. HALL, 9 RAYMOND J. LOHIER, Jr., 10 Circuit Judges. [11] 12 - - - - - - - - - - - - - - - - - - - -X 13 ALLSTATE INSURANCE COMPANY, ALLSTATE 14 INDEMNITY COMPANY, ALLSTATE PROPERTY 15 & CASUALTY INSURANCE COMPANY, 16 ALLSTATE NEW JERSEY INSURANCE 17 COMPANY, CONTINENTAL INSURANCE 18 COMPANY, DEERBROOK INSURANCE COMPANY, 19 ENCOMPASS INDEMNITY COMPANY, GLENS 20 FALLS INSURANCE COMPANY, and 21 NATIONAL-BEN FRANKLIN INSURANCE 22 COMPANY OF ILLINOIS, [23] 24 Plaintiffs-Appellees, [25] 26 -v.- 09-0873-cv [1] 1 A.R. MEDICAL REHABILITATION, P.C., 2 A.R. MEDICAL ART, P.C., and YONKERS 3 MEDICAL ART, P.C., [4] 5 Defendants-Appellants, [6] 7 ALEXANDER ROZENBERG, M.D., INNA 8 POLACK, ALEXANDER POLACK, YULIY 9 GOLDMAN, MIGHTY MANAGEMENT GROUP, 10 INC., MIGHTY MANAGEMENT, LLC, BLUE 11 WAVE MANAGEMENT, INC., NATALYA 12 SHVARTSMAN, EMMANUEL KUCHEROVSKY, and 13 SHAUN ROBINSON, also known as PRINCE, [14] 15 Defendants. 16 - - - - - - - - - - - - - - - - - - - -X [17] 18 FOR APPELLANTS: Mark L. Furman 19 Hoffman Polland & Furman PLLC 20 New York, NY [21] 22 FOR APPELLEES: Richard D. King, Jr. 23 (Nathan A. Tilden, on brief) 24 Smith & Brink, P.C. 25 Garden City, N.Y. [26] 27 Appeal from an order by the United States District 28 Court for the Eastern District of New York (Spatt, J.) 29 granting Appellees’ motion for prejudgment attachment. [30] 31 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED 32 AND DECREED that Appellants’ appeal is DISMISSED for lack of 33 appellate subject-matter jurisdiction. [34] 35 Defendants appeal from an order of attachment issued in 36 this suit, which alleges civil RICO and fraud claims. The 37 district court found that the plaintiffs (“Allstate”) were 38 likely to succeed on the merits and that the defendants had 39 previously fraudulently conveyed and hidden their assets 40 with an intent to defraud their creditors. On appeal, this 41 attachment order is contested by a subset of the defendants, 42 the “P.C. Companies.” We assume the parties’ familiarity 43 with the underlying facts, the procedural history, and the 44 issues presented for review. [2] 1 A prejudgment order of attachment is not a final order, 2 so our usual avenue of appellate jurisdiction, 28 U.S.C. § 3 1291 (granting circuit courts jurisdiction to hear appeals 4 from final judgments of district courts), is closed in this 5 case. See Wabtec Corp. v. Faiveley Transp. Malmo AB, 525 6 F.3d 135, 137 (2d Cir. 2008) (“[F]ederal appellate 7 jurisdiction ordinarily depends on the existence of a 8 decision by the District Court that ends the litigation on 9 the merits and leaves nothing for the court to do but 10 execute the judgment.” (internal quotation marks omitted)). 11 The P.C. Companies propose two primary grounds for appellate 12 jurisdiction: the collateral order doctrine, and the 13 interlocutory appeal statute. 28 U.S.C. § 1292 . This 14 appeal fails to satisfy the requisites for either ground; 15 therefore, we lack jurisdiction to hear it. [16] 17 The collateral order doctrine, established in Cohen v. 18 Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), 19 allows a circuit court appellate jurisdiction to hear an 20 immediate appeal from a district court ruling if that 21 ruling: (1) conclusively determines the disputed question; 22 (2) resolves an important issue completely separate from the 23 merits of the underlying action; and (3) resolves an issue 24 that would be effectively unreviewable on appeal from a 25 final judgment. Kensington Int’l Ltd. v. Republic of Congo, [26] 461 F.3d 238, 240 (2d Cir. 2006) (describing Cohen’s 27 original conception of the collateral order doctrine). In 28 1992, the Second Circuit (reinterpreting Cohen) added a 29 fourth requirement to the collateral order doctrine: (4) 30 The district court’s ruling must “present serious and 31 unsettled questions of law.” Banque Nordeurope S.A. v. 32 Banker, 970 F.2d 1129, 1131 (2d Cir. 1992) (per curiam). In 33 the Second Circuit, a district court’s ruling must meet all 34 four of these requirements before this Court has appellate 35 jurisdiction to hear an immediate appeal from it. [36] 37 The P.C. Companies’ appeal presents no serious or 38 unsettled questions of law. The P.C. Companies dispute only 39 factual findings of the district court, such as whether they 40 participated in the fraudulent scheme to hide assets from 41 creditors. Because the P.C. Companies’ appeal does not meet 42 the fourth requirement of the collateral order doctrine, the 43 doctrine does not afford us appellate jurisdiction to hear 44 this appeal. Furthermore, because this appeal fails the 45 fourth requirement of the collateral order doctrine, we need 46 not, and do not, reach the question of whether it satisfies 47 any of the other three requirements of the doctrine. [3] 1 The P.C. Companies’ second proposed ground for 2 appellate jurisdiction is subsection (a)(1) of the 3 interlocutory statute, 28 U.S.C. 1292, which grants us 4 jurisdiction to hear interlocutory appeals from rulings by 5 district courts that are injunctive in nature. The P.C. 6 Companies argue that the attachment of their property in 7 this case is injunctive because it requires their attorneys 8 to hold a growing pool of assets on their behalf and 9 prevents their attorneys from releasing these accruing 10 assets to them. However, freezing of assets is the very 11 essence of attachment. The argument advanced by the P.C. 12 Companies would effectively make every order of attachment 13 injunctive and immediately appealable. We decline to 14 endorse such an extreme and absurd result. Without opining 15 in the abstract on whether an order of attachment could 16 become injunctive if it mandated sufficiently significant 17 activity above and beyond the acts necessary to effectuate 18 attachment, we conclude that the attachment order in this 19 case does not require such additional activity and is not 20 injunctive. As a result, 28 U.S.C. § 1292 (a)(1) does not 21 provide us with appellate jurisdiction to hear this appeal. [22] 23 We hereby DISMISS Appellants’ appeal for lack of 24 appellate subject-matter jurisdiction. [26] 27 FOR THE COURT: 28 CATHERINE O’HAGAN WOLFE, CLERK