NASTASI ASSOCIATES INC v. 28 50 (2021)

United States Court of Appeals, Second Circuit.

NASTASI & ASSOCIATES, INC., Plaintiff-Appellant, v. BLOOMBERG, L.P., Turner Construction Corp., Eurotech Construction Corp., Donaldson Acoustics Co. Inc., Javier Paulino, Marilyn Francisco, Anthony Guzzone, William Dale Summerville, Lauren Eckart Smith, Michael Campana, Ronald Olson, Fay Devlin, Duane Robert Donaldson, Douglas Donaldson, Defendants-Appellees, Vito Nigro, Does 1-28, Turner Construction Company, Does 1-50, Defendants.

20-1789

Decided: April 13, 2021

Present: Debra Ann Livingston, Chief Judge, Richard C. Wesley, Susan L. Carney, Circuit Judges.

For Plaintiff-Appellant: Jason C. Spiro (David B. Harrison, Peter Demato, Thomas M. Kenny, on the brief), Spiro Harrison, Short Hills, NJ. For Defendants-Appellees: Keith Blackman (Allan N. Taffet, on the brief), Bracewell LLP, New York, NY, Attorneys for Bloomberg, L.P., William Dale Summerville and Lauren Eckhart Smith, Thomas J. Curran, Doris D. Short, Pecker & Abramson, P.C., New York, NY, Attorneys for Turner Construction Company, Patrick A. Mullin, Law Offices of Patrick A. Mullin, New York, NY, Attorneys for Eurotech Construction Corp. and Fay Devlin, Jonathan M. Cooper, Law Offices of Jonathan M. Cooper, Cedarhurst, NY, Attorneys for Javier Paulino, Aaron H. Pierce, Pierce & Kwok LLP, New York, NY, Attorneys for Anthony Guzzone, Eric P. Franz, Law Offices of Eric Franz, P.L.L.C., Mineola, NY, Attorneys for Douglas Donaldson, Edward M. Spiro, Morvillo Abramowitz Grand Iason & Anello P.C., New York, NY, Attorneys for Donaldson Acoustics Co., Inc. and Duane Robert Donaldson, Jason A. D'Angelo, Herrick, Feinstein LLP, New York, NY, Attorneys for Marilyn Francisco, Brian King, David Smith, Smith & King, LLC, Garden City, NY, Attorneys for Michael Campana.

SUMMARY ORDER

Nastasi & Associates, Inc. (“Nastasi”), appeals from a March 11, 2020 judgment of the district court granting Defendants’ motion to dismiss and subsequent order denying Nastasi's motion for reconsideration. The district court held that Nastasi lacked Article III standing to pursue its claims because it had assigned its assets, including its legal claims, to the “Franklin D. Nastasi Trust.” We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

In Fund Liquidation Holdings LLC v. Bank of Am. Corp., this Court held that “a pre-suit assignment does not extinguish Article III standing,” clarifying that “there is a distinction between having standing to pursue a claim and being a real party in interest with respect to that claim, only the latter of which is implicated by an assignment.” 991 F.3d 370, 380 (2d Cir. 2021). Neither party contests that in consideration of this Court's recent decision, the district court's dismissal, on the basis that Nastasi lacked Article III standing, was in error. As to the district court's alternative holding under Rule 17 of the Federal Rules of Civil Procedure, the court's fact-finding as to the “real party in interest” and its determination that Nastasi had a “reasonable time ․ for the real party in interest to ratify, join, or be substituted into the action” may have been impacted by its determination that the issue was a matter of Article III standing. See Special App. 16–17 n.1 (quoting Fed. R. Civ. P. 17(a)(3)). We therefore remand to the district court for reconsideration in light of this Court's decision in Fund Liquidation Holdings.

* * *

We have considered Nastasi's remaining arguments and find them to be without merit.¹ Accordingly, we VACATE the judgment of the district court and REMAND for further proceedings consistent with this order.

FOOTNOTES

1. Appellant's pending motion requesting that this Court take judicial notice of a filing in the related state-court action is denied as moot.

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