14-1125-cv
    Bermudez v. City of New York


                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                   SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

                  At a stated term of the United States Court of Appeals for the Second Circuit,
    held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
    New York, on the 10th day of April, two thousand fifteen.

    PRESENT:
                GUIDO CALABRESI,
                PETER W. HALL,
                      Circuit Judges,
                JED S. RAKOFF,*
                      District Judge.
    _____________________________________

    Fernando Bermudez,

                                         Plaintiff-Appellant,

                           v.                                          Docket No.    14-1125

    City of New York, Michael Lentini, William Fitzpatrick, Daniel Massanova, John Mulalley,
    Baker, (First name unknown), Mulcahy, (First name unknown), Various John Does, Who are or
    were offices of the New York City Police Department, individually & in their official capacity,
    Various Jane Does, Who are or were Offices of the New York City Police Department,
    individually,

                                         Defendants-Appellees,

    Robert M. Morgenthau, individually & in his official capacity as former District Attorney of New
    York County, Nancy Ryan, individually & in her official capacity as Assistant Attorneys of New
    York County, James Rodriguez, individually & in his official capacity as Assistant Attorneys of
    New York County, Robin McCabe, individually & in their official capacity as Assistant Attorneys
    of New York County, Mary C. Farrington, individually & in their official capacity, Hilary Hassler,

    * Hon. Jed S. Rakoff, of the United States District Court for the Southern District of New York,
    sitting by designation.
individually & in their official capacity as Assistant Attorneys of New York County, Herculano
Izquierdo, individually & in their official capacity as Assistant Attorneys of New York County,

                              Defendants.
______________________________________________


FOR PLAINTIFF-APPELLANT:                             Brian J. Isaac, Pollack, Pollack, Isaac, & De
                                                     Cicco, LLP, New York, NY

FOR DEFENDANT:                                       Patricia A. Bailey, New York County District
                                                     Attorney’s Office, New York, NY

FOR DEFENDANTS-APPELLEES:                            Karen Griffin, New York            City   Law
                                                     Department, New York, NY


       Appeal from an order granting summary judgment in favor of defendants-appellees and

putative appeal from an order dismissing the complaint as to defendant James Rodriguez in the

United States District Court for the Southern District of New York (Preska, C.J.). We consider

here only the issue of whether this court has jurisdiction to consider an appeal from the September

29, 2012 order dismissing all claims against defendant Rodriguez.

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that plaintiff’s challenges to the district court’s order issued on September 29, 2012,

granting defendant Rodriguez’s motion to dismiss, are DISMISSED for lack of subject matter

jurisdiction. We assume the parties’ familiarity with the underlying facts and procedural history

of the case.

       “Federal Rule of Appellate Procedure 3(c)(1)(B) provides that a notice of appeal ‘must . . .

designate the judgment, order, or part thereof being appealed.’ This requirement is ‘jurisdictional

in nature.’” Swatch Grp. Mgmt. Servcs. Ltd. v. Bloomberg, L.P., 

, 93 (2d Cir. 2014)

(quoting Gonzalez v. Thaler, 

, 652 (2012)). This court’s jurisdiction to review an

order of the district court “is limited by the wording of the notice” of appeal. New Phone Co., Inc.

v. City of New York, 

, 130 (2d Cir. 2007). “While ‘we construe notices of appeal


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liberally, taking the parties’ intentions into account,’” Swatch 

(quoting

Shrader v. CSX Transp., Inc., 

, 256 (2d Cir. 1995)), “jurisdiction . . . depends on

whether the intent to appeal from that decision is clear on the face of, or can be inferred from, the

notice[] of appeal,” New Phone 

. Where the intent to appeal cannot be

inferred from the notice of appeal or its accompanying documents, the court will lack jurisdiction

over the challenged order. 

(citing 

); cf. Mir v. Shah, 569 Fed.

App’x 48, 49 n.2 (2d Cir. 2014) (summary order) (“[A]lthough Mir’s notice of appeal designates

only the order denying reconsideration, his supporting papers attached to his notice address the

district court’s entire dismissal. Construing his notice of appeal liberally, we conclude that Mir

intended to appeal from both orders.”).

       Although plaintiff argues in his opening brief that the September 29, 2012 order dismissing

the claims against defendant Rodriguez was improper, he failed to identify that order in his notice

of appeal or any of the accompanying paperwork. The notice identifies, as the order being

appealed from, only “the Order of the Honorable Loretta A. Preska, entered on March 28, 2014,

that granted Defendants’ motion for summary judgment.” Notice of Appeal, A1631. Because

we cannot infer from the notice or its accompanying papers that the September 29, 2012 order was

intended to be challenged on appeal, “we are ‘bar[red] from considering’ an appellate challenge to

that order.” Quanta Specialty Lines Ins. Co. v. Investors Capital Corp., 403 Fed. App’x 530, 532

(2d Cir. 2010) (summary order) (quoting 

); In re Bugnacki, 528 Fed. App’x

30, 32 (2d Cir. 2013) (summary order) (“The notice’s lack of reference or even allusion to the

district court ruling Bugnacki seeks to challenge means her appeal from that ruling cannot

proceed.”); see also Rosendale v. Mahoney, 496 Fed. App’x 120, 121 (2d Cir. 2012) (summary

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order); Candelaria v. Baker, 464 Fed. App’x 21, 22 (2d Cir. 2012) (summary order); Austin v.

Fischer, 453 Fed. App’x 80, 82 (2d Cir. 2011) (summary order).

       We find the parties’ remaining arguments related to the jurisdictional question we address

here to be without merit. The remaining issues related to plaintiff’s challenge to the district

court’s March 28, 2014 order, granting summary judgment in favor of defendants-appellees, will

be resolved by a separate opinion to issue in due course.

       Accordingly, we DISMISS that portion of plaintiff’s appeal challenging the order of the

district court issued on September 29, 2012.

                                                     FOR THE COURT:
                                                     Catherine O=Hagan Wolfe, Clerk




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