Braunstein v. McCabe, No. 08-1690
In an action related to bankruptcy proceedings, district court judgment is affirmed where: 1) the court properly denied plaintiff's jury trial demand in the turnover action as no Seventh Amendment right to trial by jury attaches to the statutory turnover action authorized by 11 U.S.C. sec. 542; 2) the court properly granted attorney Ziady's motion to dismiss the defendant's fourth-party complaint for negligent misrepresentation as attorney Ziady owed no legal duty to defendant; and 3) the court did not abuse its discretion in denying defendant's motion to amend the fourth-party complaint, as the record shows that the defendant's proposed amendment would have been futile. District court judgment is reversed where the court erred in its turnover order for the insurance proceeds as defendant's expenditures were not made in the ordinary course of business.
APPEAL from a judgment of the United States District Court for the District of Massachusetts.
Decided: June 26, 2009
Before Lynch, Chief Judge, Torruella and Lipez, Circuit Judges.
Opinion by Lynch, Chief Judge.