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United States Court of Appeals, Second Circuit.

MORRIS & JUDITH FAMILY PARTNERSHIP, LLC, Plaintiff-Appellant, v. FIDELITY BROKERAGE SERVICES LLC, Defendant-Third Party-Plaintiff-Appellee.1


Decided: December 18, 2020

Present: ROSEMARY S. POOLER, RICHARD C. WESLEY, WILLIAM J. NARDINI, Circuit Judges, Appearing for Appellant: Jeffrey Schreiber, Meister Seelig & Fein LLP, New York, N.Y. Appearing for Appellee: Daniel H. Tabak, Cohen & Gresser LLP (Sharon L. Barbour, on the brief), New York, N.Y.


Plaintiff-Appellant Morris & Judith Family Partnership (“Morris Partnership”) appeals from an order entered on April 23, 2019, and a final judgment entered on September 13, 2019, in the United States District Court for the Southern District of New York (Rakoff, J.), granting Fidelity Brokerage Services LLC's (“Fidelity”) motion for summary judgment against the Morris Partnership on the Morris Partnership's breach of contract claim and denying the Morris Partnership's motion for summary judgment against Fidelity. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.

The district court granted Fidelity's motion based on a limitation of liability provision in Fidelity's customer agreement (the “Agreement”). The provision required the Morris Partnership to notify Fidelity immediately of suspicious activity in the Morris Partnership's account. It is undisputed that Fidelity sent the Morris Partnership a transaction confirmation and account statement listing the disputed transfer at issue to the Morris Partnership's address of record in November 2014. The Morris Partnership failed to notify Fidelity that it considered this to be suspicious behavior until 2016. The district court held that the Morris Partnership's failure to provide timely notification barred the Morris Partnership's breach of contract claim.

We review a district court's grant of summary judgment de novo. See Townsend v. Benjamin Enters., Inc., 679 F.3d 41, 47 (2d Cir. 2012). The Morris Partnership argues that the district court erred because Fidelity was already aware of the relevant activity in the Morris Partnership's account and its allegedly suspicious nature; and that this excused the Morris Partnership's failure to notify Fidelity of its complaint in a timely way. But the limitation of liability provision expressly assigns the Morris Partnership the duty to monitor its account and report unauthorized activity. It failed to do so, and thus the Agreement frees Fidelity from liability.

The Morris Partnership also contends that Fidelity knowingly transferred the Morris Partnership's assets from the Morris Partnership's account into an unauthorized individual's account. The Morris Partnership argues that this is a material breach, which under Massachusetts law excused the Morris Partnership from its obligation under the Agreement to provide timely notice. The Morris Partnership also argues that Fidelity failed to establish harm resulting from the Morris Partnership's breach of the notice provision. The Morris Partnership did not raise these arguments below, and we decline to consider them for the first time on appeal. See In re Nortel Networks Corp. Sec. Litig., 539 F.3d 129, 132 (2d Cir. 2008) (“It is a well-established general rule that an appellate court will not consider an issue raised for the first time on appeal.” (alteration and citations omitted)). Even if we considered them, the Morris Partnership fails to cite cases supporting its argument that, under Massachusetts law, a prior breach excuses a party's notification obligations.

We have considered the remainder of the Morris Partnership's arguments and find them to be without merit. Accordingly, the judgment of the district court hereby is AFFIRMED.

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