Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-22-2003

Lundy v. Hochberg
Precedential or Non-Precedential: Non-Precedential

Docket No. 00-1969




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Recommended Citation
"Lundy v. Hochberg" (2003). 2003 Decisions. Paper 194.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/194


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                           NOT PRECEDENTIAL


UNITED STATES COURT OF APPEALS
     FOR THE THIRD CIRCUIT

        Case No: 00-1969

        MARVIN LUNDY,

               Appellant

                v.


       ROBERT HOCHBERG;
        JOHN HAYMOND;
      JOHN HAYMOND, P.C.
    t/a HAYMOND & LUNDY;
       SCOTT E. DIAMOND;
HAYMOND, NAPOLI, DIAMOND, P.C.


        Case No: 02-3781

     *JOHN HAYMOND;
HAYMOND NAPOLI DIAMOND, P.C.

                v.


        MARVIN LUNDY


                v.


      JOHN HAYMOND;
     ROBERT HOCHBERG;
HAYMOND, NAPOLI, DIAMOND, P.C.
                   John Haymond;
          Haymond, Napoli, Diamond, P.C.,
        a Connecticut professional corporation
    (now known as the Haymond Law Firm, P.C.),

                                  Appellants

    * (Amended as per the Clerk's 12/5/02 Order)




                Case No: 02-3845

                MARVIN LUNDY,

                         Appellant

                          v.


            ROBERT HOCHBERG;
             JOHN HAYMOND;
           JOHN HAYMOND, P.C.
         t/a HAYMOND & LUNDY;
            SCOTT E. DIAMOND;
     HAYMOND, NAPOLI, DIAMOND, P.C.
           ____________________

    Appeal from the United States District Court
       for the Eastern District of Pennsylvania
               (D.C. No. 99-CV-5048)
  District Judge: The Honorable Norma L. Shapiro
              _____________________

    Submitted Under Third Circuit LAR 34.1(a)
               September 16, 2003

Before: MCKEE, SMITH and COWEN, Circuit Judges

             (Filed: October 22, 2003)

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                                    ________________

                               OPINION OF THE COURT
                                  ________________

SMITH, Circuit Judge.

       In a separate decision filed this same date, we addressed some of the bitter fruits of

a legal partnership gone awry. 1 Before us are the remains of the day: a challenge by

Marvin Lundy contesting the District Court’s grant of a motion to dismiss his RICO 2

claims and his state law claims of fraud and negligent misrepresentation; a claim by

Marvin Lundy that the District Court erred in several trial rulings, including an order

trifurcating the claims for trial; and an assertion by Marvin Lundy, John Haymond and the

Haymond Napoli Diamond, P.C. law firm that the District Court erred in refusing to

exercise jurisdiction over non-parties who diverted certain partnership assets.

       Haymond and Hochberg moved to dismiss Lundy’s appeal of the dismissal of his

RICO and several state law claims for lack of jurisdiction. Haymond and Hochberg

asserted that Lundy’s appeal was from an unappealable order because of the pendency of

two remaining causes of action. Although Lundy’s appeal from the District Court’s order

was premature, that appeal ripened with the District Court’s final entry of judgment and

Haymond and Hochberg have not suffered any prejudice. Fed. R. App. P. 4(a)(2);


  1
   See Lundy v. Hochberg, Nos. 02-1343, 02-2041, 02-3678, 02-3732, and the first issue
asserted in 02-3845 (3d Cir. October _, 2003).
  2
   RICO is an acronym for the Racketeer Influenced and Corrupt Organizations Act. 18
U.S.C. § 1961-1964.

                                             3
FirsTier Mortgage Co. v. Investors Ins. Co., 

(1991); Lazy Oil Co. v. Witco

Corp., 

, 585-87 (3d Cir. 1999). Because a final order was entered, we

exercise appellate jurisdiction pursuant to 28 U.S.C. § 1291.

       We dispense with a recitation of the facts inasmuch as the parties, for whom we

write, are intimately familiar with every twist and turn in this litigation. Our review of a

grant of a motion to dismiss is plenary. Lorenz v. CSX Corp., 

, 1411 (3d Cir.

1993). We review an order by the District Court to trifurcate the issues for trial under

Federal Rule of Civil Procedure 42(b) for an abuse of discretion. Barr Laboratories, Inc.

v. Abbott Laboratories, 

, 105 (3d Cir. 1992). We also review the denial of a

motion to amend for an abuse of discretion. In re Burlington Coat Factory Securities

Litig., 

, 1434 (3d Cir. 1997). With respect to whether the District Court

erred in refusing to exercise jurisdiction over non-parties who diverted funds from the

partnership, our review is for an abuse of discretion because it concerns the relief

obtainable in a receivership proceeding. Securities and Exhange Comm’n v. Black, 

, 195, 199 (3d Cir. 1998); see also Securities and Exchange Comm’n v. Elliott,

953, F.2d 1560, 1566 (11th Cir. 1992) (observing that the district court “has broad powers

and wide discretion to determine relief in an equity receivership”).

       We conclude that the District Court did not err in dismissing Lundy’s RICO and

state law claims. It is clear from Lundy’s own RICO case statement that Lundy was

present at the meeting in April 1997 when his counsel, Robert Fiebach, confronted



                                              4
Hochberg with the fact that he was under a federal indictment as evidenced by the public

records of the United States District Court for the District of M assachusetts. Despite his

knowledge of that indictment, Lundy forged ahead with negotiations for the Haymond &

Lundy partnership, choosing to proceed without ascertaining from either Hochberg or the

available public record the ultimate outcome of the indictment. Under these

circumstances, we fail to see a cognizable “scheme to defraud” as required for the

predicate acts of mail or wire fraud under 18 U.S.C. §§ 1341, 1343, or the state law

claims of fraud and negligent misrepresentation. See Brokerage Concepts, Inc. v. U.S.

Healthcare, Inc., 

, 528-29 (3d Cir. 1998) (concluding that RICO claim

predicated on mail and wire fraud was legally deficient since victim was well aware of

the true motivation behind the request for the audit); Ideal Dairy Farms, Inc. v. John

Labatt, Ltd., 

, 747 (3d Cir. 1996) (concluding that plaintiff failed to show a

scheme to defraud by charging more than the price set forth in the contract since plaintiff

was aware that the prices exceeded the contract); Reynolds v. East Dyer Development

Co., 

, 1253 (7th Cir. 1989) (plaintiffs failed to show predicate scheme to

defraud because plaintiffs had been notified of problem and it was a matter of public

record). As the District Court recognized, the single instance of bank fraud was

insufficient to constitute a pattern of racketeering activity. Haymond v. Lundy, 

, at *5.

       Lundy’s challenge of the District Court’s order to bifurcate the issues of liability



                                              5
and damages with respect to the breach of the partnership agreement claim and to

separate that claim from the Lanham Act and tort claims is also without merit. District

Judge Shapiro explained that liability on the contract claim would be tried first because

the issue of damages could not be intelligently presented until there was a determination

by the jury of whether Lundy or Haymond, or both, had committed a breach. Bifurcation

of liability and damages, in the District Court’s view, would make it easier for the jury to

understand the issues. This explanation is reasonable in light of the complexity of the

case and we conclude there was no abuse of the discretion with which Rule 42(b)3 vests

the District Court.

       Nor do we find the District Court’s refusal to grant Lundy’s motion to amend his

complaint an abuse of discretion. The District Court explained in its written

memorandum that the

       amendment was proposed in Lundy’s final pretrial memorandum, submitted
       to the court on the eve of trial, and a proposed amended pleading was not
       attached. To have permitted Lundy leave to assert amorphous additional
       counterclaims at that late date would have prejudiced the plaintiff and
       caused undue delay, as the trial would have had to be postponed.

Haymond v. Lundy, 

, * 3 (E.D. Pa. January 29, 2001). As we recognized

in In re Burlington Coat Securities 

, undue delay and

prejudice are valid grounds for denying a request to amend one’s complaint.

  3
    Fed. R. Civ. P. 42(b) provides that the “court, in furtherance of convenience or to
avoid prejudice, or when separate trials will be conducive to expedition and economy,
may order a separate trial of any claim . . . or of any separate issue or of any number of
claims. . . or issues[.]”

                                              6
       The final issue we confront is the contention that the District Court erred by

refusing at the conclusion of the case to exercise jurisdiction over the persons, i.e. the

Pennsylvania professional corporation of Haymond, Napoli & Diamond (“HND-PA”),

who diverted funds from the Haymond & Lundy partnership, thereby precluding the

appointed receiver from attempting to recover the diverted funds.4 We conclude that the

District Court did not abuse its discretion. It recognized that it could have directed the

receiver to bring a separate suit against HND-PA, but concluded that such a course would

result in a delay of “indeterminable length” and postpone Lundy’s ability to collect the

fees due. Instead, the Court decided that the

       Better solution to the problems posed: Haymond, whose tacit approval of
       HND-PA’s decision not to escrow the attorney’s fees allowed that firm to
       withhold $1.5 million from H & L, will be charged with the consequences
       of his actions. But for Haymond’s collusion with HND-PA, H & L would
       have collected all the fees in questions. It is unfair to Lundy to await a
       further adjudication of the fees, HND-PA may retain by virtue of
       Haymond’s willingness to let HND-PA evade the court’s jurisdiction.
       Under the broad, inherently equitable nature of its powers over a firm in
       receivership, the court will fashion a remedy that effects substantial justice
       to all concerned. . . . The $1,532,948 collected but not remitted by HND-PA
       . . . will be treated as if it had been collected by Haymond. Haymond will
       be charged $1,532,948 in accounts received the amount otherwise due him.
       His recovery against HND-PA is a separate matter from the amount due
       Lundy from the assets of the partnership, and should not delay distribution.

Haymond v. Lundy, 

, *9 (E.D. Pa. August 23, 2002). This is quite

reasonable under the circumstances and we will not disturb the District Court’s judgment.

  4
   Lundy and Haymond both assert that the District Court’s findings with respect to
exercising jurisdiction over the persons who diverted the funds were not supported by the
evidence. There is no merit to that argument.

                                                7
      Accordingly, we will affirm the judgment of the District Court.

                    ______________________________________

TO THE CLERK:

      Please file the foregoing Opinion.




                                                /s/D. Brooks Smith
                                           Circuit Judge
Date: October 22, 2003




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