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awarding $1 in nominal damages where the company had "liabilities far exceeding its assets" and eventually met an "abrupt demise"
Summary of this case from Cottam v. Glob. Emerging Capital Grp.Opinion
No. 08-0941-cv.
March 23, 2009.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court be AFFIRMED and BrandAid Marketing Corporation's cross-appeal is DISMISSED.
For Appellant: Steven S. Biss, Esq., Richmond, VA.
For Appellee: Paul W. Siegert, Esq., New York, NY.
Defendant-Appellant Steven S. Biss appeals from a judgment entered on January 25, 2008 in the Southern District of New York (Pauley, III, J.). The District Court entered judgment in favor of Plaintiff-Appellee BrandAid Marketing Corporation in the amount of $21 million on its breach of contract claim against Defendant Cyberian Enterprises and nominal damages of $1 on BrandAid's fraud claim against Cyberian and Biss, jointly and severally. We assume the parties' familiarity with the underlying facts and the procedural history of the case, as well as the issues on appeal.
Biss attempts to challenge the District Court judgment entered in favor of BrandAid and against Cyberian on BrandAid's breach of contract claim. Because Cyberian has not appealed, we lack appellate jurisdiction to review the judgment entered against it. See Billino v. Citibank, N.A., 123 F.3d 723, 726 (2d Cir. 1997). In addition, we find no error in the District Court's determination that Biss engaged in fraudulent conduct toward BrandAid. Accordingly, we affirm the $1 nominal judgment entered against Biss on BrandAid's fraud claim for substantially the same reasons stated by the District Court. See BrandAid Marketing Corp. v. Biss, No. 03 Civ. 5088(WHP), 2008 WL 190494, *4-*6 (S.D.N.Y. January 22, 2008).
In its brief to this Court, BrandAid argues for a partial reversal of the District Court judgment on the grounds that the court (1) erroneously calculated the damages stemming from its fraud claim and (2) abused its discretion by denying BrandAid's request for punitive damages. Because BrandAid did not properly cross-appeal, we dismiss its appeal for lack of appellate jurisdiction.
Under the Federal Rules of Appellate Procedure, a notice of appeal must specify the party taking the appeal, designate the judgment or order being appealed, and name the court to which the appeal is taken. See Fed.R.App.P. 3(c)(1). The notice of appeal must also "`specifically indicate the litigant's intent to seek appellate review . . . [in order to] ensure that the filing provides sufficient notice to other parties and the courts.'" Haugen v. Nassau County Dep't Of Soc. Servs., 171 F.3d 136, 137-38 (2d Cir. 1999) (per curiam) (alterations in original) (quoting Smith v. Barry, 502 U.S. 244, 248 (1992)). However, "[a]n appeal must not be dismissed for informality of form or title of the notice of appeal, or for failure to name a party whose intent to appeal is otherwise clear from the notice." Fed.R.App.P. 3(c)(4). The Supreme Court has instructed that the technical requirements contained within Rule 3 of the Federal Rules of Appellate Procedure should be liberally construed. See Smith, 502 U.S. at 248. Indeed, even if a notice of appeal is "technically at variance with the letter of [Rule 3], a court may nonetheless find that the litigant has complied with the rule if the litigant's action is the functional equivalent of what the rule requires." Id. (emphasis added) (internal quotation marks omitted). For instance, in Haugen, 171 F.3d at 137-38, a case upon which BrandAid relies, we deemed a letter requesting an extension of time to appeal to be itself a notice of appeal.
In this case, the District Court judgment was entered on January 25, 2008. Paul Sloan, the Chairman and CEO of BrandAid, purportedly on behalf of BrandAid, filed a "Motion For Extension of Time to File a Notice of Appeal," dated February 13, 2008. The District Court, noting that BrandAid's appearance was without counsel, rejected the application on the ground that corporations may only appear through counsel in federal court. We need not determine whether BrandAid's motion was the "functional equivalent" of a notice of appeal because it is well-settled that a corporation cannot appear in federal court except through its lawyer. See Rowland v. California Men's Colony, 506 U.S. 194, 201-02 (1993); Grace v. Bank Leumi Trust Co., 443 F.3d 180, 192 (2d Cir. 2006). Thus, even if we construed Mr. Sloan's motion for an extension of time to file a notice of appeal as the functional equivalent of a notice of appeal, he nevertheless had no authority to represent BrandAid in this federal court proceeding. See Jacobs v. Patent Enforcement Fund, Inc., 230 F.3d 565, 568-69 (2d Cir. 2000). We therefore conclude that BrandAid failed to properly cross-appeal the District Court judgment.
Accordingly, for the reasons set forth above, the judgment of the district court is hereby AFFIRMED and BrandAid Marketing Corporation's cross-appeal is DISMISSED.