U.S. v. Potamkin Cadillac Corp.
| Decision Date | 22 September 1982 |
| Docket Number | D,No. 109,109 |
| Citation | 689 F.2d 379 |
| Parties | 1982-2 Trade Cases 64,957 UNITED STATES of America, Plaintiff-Appellee, v. POTAMKIN CADILLAC CORPORATION, Defendant-Appellant. ocket 82-6053. |
| Court | U.S. Court of Appeals — Second Circuit |
Philip I. Beane, New York City, for defendant-appellant.
Jonathan A. Lindsey, Asst. U. S. Atty., Southern District of New York, New York City (John S. Martin, Jr., U. S. Atty., Southern District of New York, Richard N. Papper, Asst. U. S. Atty., New York City, of counsel), for plaintiff-appellee.
Before LUMBARD, CARDAMONE and WINTER, Circuit Judges.
Defendant-appellant Potamkin Cadillac Corporation ("Potamkin") appeals from a grant of summary judgment entered February 19, 1982 in the United States District Court for the Southern District of New York, 533 F.Supp. 331, (Duffy, Judge ) which found Potamkin liable for failing to file a financial report pursuant to an order of the Federal Trade Commission ("FTC") in violation of 15 U.S.C. § 46(b) (1976) (Section 6 of the Federal Trade Commission Act) and assessed penalties of $100 for each day the report was not filed, 15 U.S.C. § 50 (1976) (Section 10 of the Federal Trade Commission Act), for a total of $39,100. Potamkin requests reversal of Judge Duffy's order and a remand to the District Court for a full evidentiary hearing, asserting that unresolved issues of fact remain. We find this contention utterly without legal merit. Indeed, we find this appeal frivolous within the meaning of Rule 38, Fed.R.App.P. and we assess jointly and severally against Potamkin and its lawyer, Philip I. Beane, Esquire, double costs and $500 in attorney's fees in favor of the Government.
The undisputed facts in this case show that Potamkin is a corporation engaged in interstate commerce; that on February 1, 1980 the FTC issued a special order directing Potamkin to file within 10 days of receipt an informational report covering the last quarter of 1979 on an FTC form attached to the order; that on February 11, 1980 the order was served on Potamkin by registered mail and service was acknowledged; that Potamkin did not move to quash or limit the order or to obtain an extension of time for filing; that the FTC issued a notice of default to Potamkin stating that the statutory penalty of $100 per day would start to run on April 12, 1980; that service of the default notice was acknowledged on March 11, 1980; that this action was brought on September 3, 1980; and that by letter of May 8, 1981 Potamkin sent a partial report to government counsel which was deemed an acceptable filing. The report thus was not filed for 391 days after the statutory penalty began running; of that period, approximately 248 days elapsed after the government's complaint in this case was filed.
Throughout these proceedings, Potamkin has claimed that a timely filing was in fact made and the document was lost by the government; alternatively, that Potamkin was not required to file the report in the first place; that it had filed the report upon receipt of the complaint; or that "all of the documents used in this matter by the government are not clear and concise, and are not readily understandable or decipherable." Potamkin's evidence that the report was filed is an affidavit sworn by its attorney, Philip I. Beane, who concededly lacks personal knowledge, that "(t)o the best of POTAMKIN's knowledge, the report was filed in a timely fashion." The supporting proof is best summed up by a letter from Beane to a government attorney which states, On the government's motion for summary judgment, Judge Duffy properly ruled that Potamkin's unsupported assertion that it had filed the report did not create a genuine issue of material fact which might preclude summary judgment.
Rule 56(e) of the Federal Rules of Civil Procedure states unequivocally that in order to defeat a motion for summary judgment, the opposing party must "set forth specific facts showing that there is a genuine issue for trial." Such an issue is not created by a mere allegation in the pleadings, Applegate v. Top Associates, Inc., 425 F.2d 92, 96 (2d Cir. 1970); Korinis v....
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