15-2054
     Mazzei v. Money Store

                          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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 15th day of July, two thousand sixteen.
 5
 6       PRESENT: AMALYA L. KEARSE,
 7                RALPH K. WINTER,
 8                DENNIS JACOBS,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       JOSEPH MAZZEI, on behalf of himself
13       and all others similarly situated,
14                Plaintiff-Appellant,
15
16                    -v.-                                               15-2054
17
18       THE MONEY STORE, TMS MORTGAGE, INC.,
19       HOMEQ SERVICING CORP.,
20                Defendants-Appellees.*
21       - - - - - - - - - - - - - - - - - - - -X
22



                *
               The Clerk of Court is directed to amend the official
         caption in this case to conform to the listing of the
         parties above.
                                                  1
 1   FOR PLAINTIFF-APPELLANT:    PAUL S. GROBMAN (Neal DeYoung,
 2                               Sharma & DeYoung, on the brief),
 3                               New York, New York.
 4
 5   FOR DEFENDANTS-APPELLEES:   DANIEL A. POLLACK (Edward T.
 6                               McDermott, Anthony Zaccaria,
 7                               Minji Kim, on the brief),
 8                               McCarter & English, LLP, New
 9                               York, New York.
10
11        Appeal from a judgment of the United States District
12   Court for the Southern District of New York (Koeltl, J.).
13
14        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
15   AND DECREED that the judgment of the district court be
16   AFFIRMED.
17
18        Joseph Mazzei appeals from the judgment of the United
19   States District Court for the Southern District of New York
20   (Koeltl, J.) and two post-trial rulings. At trial, Mazzei
21   sought to prove two breach-of-contract theories on behalf of
22   himself and two nationwide classes. The jury found in favor
23   of defendants and against Mazzei and the “Fee-Splitting
24   Class” as to the “fee-splitting claim,” and in favor of
25   Mazzei and the “Late Fee Class” as to the “late fee claim.”
26   Subsequently, the district court (1) denied Mazzei’s motion
27   for a new trial on the fee-splitting claim and (2) granted
28   defendants-appellees’ post-trial motion to decertify the
29   Late Fee Class.
30
31        In the accompanying opinion, we affirm the grant of
32   defendants’ motion for decertification of the Late Fee
33   Class. In this summary order, we affirm the denial of
34   Mazzei’s motion for a new trial, and the judgment of the
35   district court. We assume the parties’ familiarity with the
36   underlying facts, the procedural history, and the issues
37   presented for review.
38
39        Mazzei’s principal argument in support of his motion
40   for a new trial was that the district court had abused
41   discretion in declining to grant an adverse inference
42   instruction on the fee-splitting claim. The court did not
43   abuse discretion in refusing to impose additional sanctions
44   in the form of an adverse inference instruction, and it did
45   not abuse discretion in denying the Rule 59 motion made on
46   the same premise.
47

                                  2
 1        The New Invoice System was a web-based, electronic
 2   billing database owned by Fidelity National Foreclosure
 3   Solutions (“Fidelity”), a nonlawyer entity to which
 4   defendants outsourced certain legal services. Fidelity and
 5   vendors, including law firms, used the New Invoice System to
 6   submit invoices to defendants. The data in that system
 7   (records of the invoices from Fidelity and vendors) were not
 8   maintained in their original, accessible form. Affirming
 9   the magistrate judge, the district court ruled that,
10   although the database was in the possession of Fidelity (and
11   its successor) rather than defendants, defendants had the
12   legal and practical ability to obtain access, and should
13   have caused the data to be preserved in the previously
14   accessible form. The district court affirmed the limited
15   sanctions awarded by the magistrate judge: the costs of
16   determining the current accessibility of the data, and
17   attorney’s fees and costs for the sanctions motion.
18
19        The district court declined to grant additional relief
20   in the form of an adverse inference charge because the court
21   found that the New Invoice System contained only “tangential
22   information” as to the fee-splitting claim: It did not
23   record payment of invoices by defendants, it did not record
24   fees that were charged to members of the class, and it did
25   not contain bills by Fidelity to law firms or payments by
26   law firms to Fidelity. Mazzei v. Money Store, 

  92, 102 (S.D.N.Y. 2015). It also found that Mazzei failed
28   to diligently seek discovery of fee-splitting evidence from
29   other obvious sources--sources more likely to evidence what
30   payments were exchanged between Fidelity and the law firms.
31   These findings were not clearly erroneous and supported
32   denial of the motion for an adverse inference. See Chin v.
33   Port Auth. of N.Y. & N.J., 

, 162 (2d Cir. 2012)
34   (“[A] district court may, at its discretion, grant an
35   adverse inference jury instruction insofar as such a
36   sanction would ‘serve the threefold purpose of (1) deterring
37   parties from destroying evidence; (2) placing the risk of an
38   erroneous evaluation of the content of the destroyed
39   evidence on the party responsible for its destruction; and
40   (3) restoring the party harmed by the loss of evidence
41   helpful to its case to where the party would have been in
42   the absence of spoliation.’” (quoting Byrnie v. Town of
43   Cromwell, 

, 107 (2d Cir. 2001)) (brackets
44   omitted)), superseded in part by Fed. R. Civ. P. 37(e)
45   (2015).
46


                                  3
 1        Under the current Rule 37(e)(2), which took effect
 2   after the post-trial motions were decided, an adverse
 3   inference instruction may be given for failure to preserve
 4   electronically stored information “only upon finding that
 5   the party acted with the intent to deprive another party of
 6   the information’s use in the litigation.” Fed. R. Civ. P.
 7   37(e)(2)(B). The district court specifically found that
 8   defendants did not act with such intent.
 9
10        As the district court further explained: “[A]ny
11   additional evidence from the New Invoice System would not
12   have made any difference in this trial. The plaintiff
13   obtained the records from the New Invoice System relating to
14   Mazzei and introduced them at trial. . . . Even with the
15   evidence from the New Invoice System, Mazzei could not prove
16   his individual claim. There is thus no basis to believe
17   that evidence from the New Invoice System would have proved
18   any claim with respect to the class.” 

  100. “Absent a showing of prejudice [resulting from the
20   missing evidence], the jury’s verdict should not be
21   disturbed.” 

(quoting Residential
22   Funding Corp. v. DeGeorge Fin. Corp., 

, 112 (2d
23   Cir. 2002)) (brackets omitted).
24
25        Mazzei’s remaining arguments are unpersuasive.
26   Defendants’ questions and argument at trial regarding the
27   lack of evidence that Fidelity made payments to law firms or
28   lawyers did not violate the district court’s pretrial
29   orders. The court’s refusal to admit into evidence the
30   Buechner Affidavit was not an abuse of discretion: Mazzei
31   has never articulated the relevance of the information
32   (aside from making spoliation arguments); and Mazzei still
33   does not explain how the information contained in the
34   affidavit likely would have affected the jury’s verdict.
35   Furthermore, Mazzei failed to articulate in the district
36   court a hearsay exception or exclusion pursuant to which
37   admission of the affidavit would have been proper. Finally,
38   denial of a motion for a new trial on weight-of-the-evidence
39   grounds is not subject to appellate review. Stonewall Ins.
40   Co. v. Asbestos Claims Mgmt. Corp., 

, 1199 (2d
41   Cir. 1995), modified on other grounds, 

(2d Cir.
42   1996).
43


                                  4
1        We have considered Mazzei’s remaining arguments and
2   find them to be without merit. For the reasons stated
3   herein and in the accompanying opinion, the judgment of the
4   district court is AFFIRMED.
5
6                              FOR THE COURT:
7                              CATHERINE O’HAGAN WOLFE, CLERK
8




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