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.
---------------------------------------------------------------
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.
---------------------------------------------------------------
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 ----, ----, 

, 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., 

, 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, 

, 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, 

, at

*2-3 (Conn. Super. Ct. Apr. 3, 1997); see also Provencher v. Enfield, 

, 777,

, 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., 

, 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., 

, 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.”

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., 

, 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, 

, 69 (2d Cir. 2003), and we review discovery rulings for

abuse of discretion, see In re Agent Orange Prod. Liability Litig., 

, 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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