13-4189-cv
Snyder v. Wells Fargo Bank, N.A.
 
                                   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
ASUMMARY ORDER@). A PARTY CITING A SUMMARY ORDER MUST 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 5th day of December, two thousand fourteen.

PRESENT: AMALYA L. KEARSE,
                 CHESTER J. STRAUB,
                 REENA RAGGI,
                                 Circuit Judges.
----------------------------------------------------------------------
RICHARD SNYDER,
                                 Plaintiff-Appellant,
                 v.                                                      No. 13-4189-cv

WELLS FARGO BANK, N.A., as successor to Wachovia
Bank, N.A.,
                                 Defendant-Appellee.
----------------------------------------------------------------------
APPEARING FOR APPELLANT:                          RAYMOND J. DOWD (Samuel A. Blaustein,
                                                  Justin T. Kelton, on the brief), Dunnington,
                                                  Bartholow & Miller, LLP, New York,
                                                  New York.

APPEARING FOR APPELLEE:                          MICHAEL P. MANNING, Greenberg Traurig,
                                                 LLP, New York, New York.

          Appeal from a judgment of the United States District Court for the Southern District

of New York (Shira A. Scheindlin, Judge).

                                                     1
       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on October 3, 2013, is AFFIRMED.

       Plaintiff Richard Snyder, who brought this diversity action against Wells Fargo

Bank, N.A. (“Wells Fargo”), alleging breach of contract and breach of fiduciary duty by

Wells Fargo’s predecessor, Wachovia Bank, N.A. (“Wachovia”), appeals from a final

judgment entered after a second trial at which the jury found in favor of Wachovia on both

claims. Snyder now challenges the district court’s decision setting aside the first trial

verdict on the fiduciary-duty claim and seeks reinstatement of that verdict. See Snyder v.

Wells Fargo Bank, N.A., 

(S.D.N.Y. 2013); Fed. R. Civ. P. 50(b). In

the alternative, he seeks remand for a new trial limited to the issue of damages, faulting the

district court’s exclusion of certain expert opinion. We review the vacating of a jury

verdict on a Rule 50(b) motion de novo, see Tepperwien v. Entergy Nuclear Operations,

Inc., 

, 567 (2d Cir. 2011), and the exclusion of expert opinion for abuse of

discretion, see Cameron v. City of New York, 

, 61 (2d Cir. 2010). We assume

the parties’ familiarity with the facts and the record of prior proceedings, which we

reference only as necessary to explain our decision to affirm.

1.     Vacatur of the Jury’s Verdict on the Fiduciary Duty Claim

       Snyder argues that the district court erred in vacating the first trial’s verdict because

the trial evidence was sufficient to permit the jury to conclude that Wachovia breached its

fiduciary duty to Snyder by failing to hedge or “collar” his investments against the risks of




                                               2
a market downturn.1 See 

(stating that setting aside jury verdict under Rule 50(b)

appropriate only if reasonable jury would not have legally sufficient evidentiary basis to

find for non-movant on that issue). In considering this argument, we must view the record

evidence in the light most favorable to Snyder and draw all reasonable inferences in his

favor. See Reeves v. Sanderson Plumbing Prods., Inc., 

, 150 (2000).

       Where, as here, the parties’ relationship originated in contract, a plaintiff suing for

breach of fiduciary duty must prove that the parties “created a relationship of higher trust

than would arise from [their contract] alone.” EBC I, Inc. v. Goldman, Sachs & Co., 

, 20, 

, 175 (2005).2 The contract at issue, an investment

management agreement, afforded Wachovia considerable discretion with respect to

Snyder’s portfolio. This gave rise to a duty of care “not to act arbitrarily or irrationally in

exercising that discretion.” Dalton v. Educ. Testing Serv., 

, 389, 

, 979 (1995).

       Nevertheless, Snyder’s breach-of-fiduciary-duty claim rested on the same failed

duty as his breach-of-contract claim: namely, Wachovia’s failure to implement an

agreed-on hedging strategy for Snyder’s investments. As the district court correctly

noted, this alone supports vacatur of the first jury’s verdict on the fiduciary-duty claim.

See Carvel Corp. v. Noonan, 

, 16 (2d Cir. 2003) (“Where the plaintiff and

1
  A “collar” is an option strategy that limits the range of possible positive or negative
returns on an underlying stock to a specific range by using a combination of put and call
options.
2
  The parties do not dispute that New York law applies here because it is the law of the
forum state. See Bank of N.Y. v. Amoco Oil Co., 

, 650 (2d Cir. 1994).

                                              3
defendant are parties to a contract, and the plaintiff seeks to hold the defendant liable in

tort, the plaintiff must prove that the defendant breached a duty ‘independent’ of its duties

under the contract; otherwise plaintiff is limited to an action in contract.” (citing

Clark-Fitzgerald Inc. v. Long Island R.R. Co., 

, 

(1987));

see also Brooks v. Key Trust Co. Nat. Ass’n, 

, 630, 

, 272

(3d Dep’t 2006) (finding no separate claim for breach of fiduciary duty where the

“allegations underlying plaintiff’s fiduciary duty claim . . . are either expressly raised in

plaintiff’s breach of contract claim or encompassed within the contractual relationship by

the requirement implicit in all contracts of fair dealings and good faith”).

       Snyder argues that Wachovia had an independent duty arising out of Office of the

Comptroller of the Currency (“OCC”) regulations governing fiduciary accounts. The

relevant regulations, however, state that a national bank that has investment discretion on

behalf of another exercises its “fiduciary capacity” by investing funds “in a manner

consistent with applicable law,” which law includes the “terms of the instrument governing

a fiduciary relationship”—here, the investment management agreement.               12 C.F.R.

§§ 9.2(b), (e), 9.11. These OCC regulations do no more than reinforce Wachovia’s

existing duty under the contract and New York law “not to act arbitrarily or irrationally in

exercising [its] discretion.”   Dalton v. Educ. Testing 

, 639

N.Y.S.2d at 979.

       Accordingly, we conclude that, because Snyder’s breach-of-fiduciary-duty claim

was duplicative of his breach-of-contract claim, the district court correctly vacated that part


                                              4
of the first jury’s verdict. In light of this holding, we need not reach Snyder’s argument

that the jury’s breach-of-fiduciary-duty finding was supported by the record.

2.     Exclusion of Expert Opinion

       Snyder argues that he is entitled to a new trial as to damages because the district

court abused its discretion in excluding expert opinion that Wachovia should have

implemented a conservative hedging strategy immediately upon receipt of his securities on

August 8, 2008. The record indicates that the purported basis for this opinion was the

expert’s experience working at Merrill Lynch, where such immediate implementation was

authorized.   But what Merrill Lynch policy allowed does not speak to Wachovia’s

policies—which the expert testified he had never read. Thus, an opinion so grounded was

properly excluded as irrelevant. See United States v. Rutkoske, 

, 177 (2d

Cir. 2007) (explaining that relevancy requires “a relation” between the evidence “and a

matter properly provable in the case”). Moreover, Snyder’s expert failed to tie his opinion

to established industry practice, instead seeking to opine on such practices solely by

reference to the very facts of this case. The district court acted well within its discretion in

excluding such opinion. See United States v. Scop, 

, 143 (2d Cir. 1988)

(holding expert testimony improper where it drew legal conclusions based entirely on the

facts of the case in which the testimony was elicited); cf. United States v. Bilzerian, 

, 1294 (2d Cir. 1991) (affirming admissibility of expert testimony “on federal

securities regulation and the filing requirements of Schedule 13D” when “presented by

referring to a blank form”).


                                               5
       The district court also correctly excluded the expert’s opinion insofar as it went to

ultimate issues for jury resolution—specifically, an opinion that Wachovia’s contractual

and fiduciary duties required it to implement the hedging strategy, and an opinion that

Wachovia breached these duties by failing to implement the hedging strategy upon receipt

of Snyder’s September 27, 2008 email directing transfer of his assets to Bank of New York.

See United States v. 

(holding that while expert “may opine on

an issue of fact within the jury’s province,” he “may not give testimony stating ultimate

legal conclusions based on those facts”).

       Finally, insofar as Snyder sought to elicit expert opinion that Snyder adequately

explained the investment preferences he wished Wachovia to implement, the district court

did not manifestly err in deciding that the jury could understand and assess this matter

without expert help. See Andrews v. Metro North Commuter R.R. Co., 

, 708

(2d Cir. 1989) (holding that proffered expert testimony cannot be directed to “lay matters

which a jury is capable of understanding and deciding without the expert’s help”); see also

SR Int’l Bus. Ins. Co. v. World Trade Ctr. Properties, LLC, 

, 119 (2d Cir.

2006) (stating that exclusion of expert testimony will not be overturned unless “manifestly

erroneous”).

       Even if we had identified error, however, we would conclude that it was harmless

and, thus, not warranting a new trial. See Cameron v. City of New 

.

Snyder successfully elicited testimony from his expert on many of the subjects he now

argues were improperly excluded, including that Wachovia could have successfully


                                             6
hedged Snyder’s investments in August and September 2008. This testimony laid the

foundation for Snyder’s summation argument that Wachovia breached its duties by not

implementing the hedging strategy. Thus, there is no reason to think that exclusion of

expert testimony likely affected the outcome of the case. See Tesser v. Bd. of Educ. of

City Sch. Dist. Of City of N.Y., 

, 319 (2004).

         Thus, we conclude that the exclusion of expert testimony does not warrant a new

trial.

3.       Conclusion

         We have considered Synder’s remaining arguments and conclude that they are

without merit. We therefore AFFIRM the judgment of the district court.

                                   FOR THE COURT:
                                   CATHERINE O’HAGAN WOLFE, Clerk of Court




                                            7