Filed: Jul. 09, 2012
Latest Update: Mar. 26, 2017
Summary: 11-189-cv Pietrangelo v. Alvas Corp. 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 “SUMMARY
Summary: 11-189-cv Pietrangelo v. Alvas Corp. 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 “SUMMARY O..
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11-189-cv
Pietrangelo v. Alvas Corp.
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 “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 9th day of July, two thousand twelve.
5
6 PRESENT:
7 RICHARD C. WESLEY,
8 SUSAN L. CARNEY,
9 Circuit Judges,
10 ROSLYNN R. MAUSKOPF,
11 District Judge.*
12 __________________________________________
13
14 JAMES E. PIETRANGELO, II,
15
16 Plaintiff-Appellant,
17
18 v. 11-189-cv
19
20 ALVAS CORPORATION, DBA PINE STREET DELI,
21 GEORGE ALVANOS, CHRISTINE ALVANOS, EVAN
22 ALVANOS, JOHN DOE, CITY OF BURLINGTON,
23 EMMETT B. HELRICH, in his personal and
24 official capacities, WADE LABRECQUE, in
25 his personal and official capacities,
26 WILLIAM SORRELL, in his official capacity,
27
Defendants-Appellees.**
__________________________________________
*
The Honorable Roslynn R. Mauskopf, of the United States
District Court for the Eastern District of New York, sitting by
designation.
**
The Clerk of Court is respectfully instructed to amend the
caption as set forth above.
1 FOR PLAINTIFF-APPELLANT: James E. Pietrangelo, II,
2 pro se, Avon, OH.
3
4 FOR DEFENDANTS-APPELLEES
5 Alvas Corporation, DBA
6 Pine Street Deli, George
7 Alvanos, Christine Alvanos,
8 Evan Alvanos: Robin Ober Cooley, Pierson
9 Wadhams Quinn Yates & Coffrin,
10 Burlington, VT.
11
12 FOR DEFENDANTS-APPELLEES
13 City of Burlington,
14 Emmett B. Helrich, Wade
15 Labrecque: Pietro J. Lynn, Lynn, Lynn &
16 Blackman, P.C., Burlington, VT.
17
18 FOR DEFENDANT-APPELLEE
19 William H. Sorrell: David R. Groff, Assistant
20 Attorney General, for William H.
21 Sorrell, Attorney General of the
22 State of Vermont, Montpelier,
23 VT.
24
25 Appeal from a judgment of the United States District
26 Court for the District of Vermont (Reiss, J.).
27
28 UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED,
29 AND DECREED that the judgment of the district court is
30 AFFIRMED.
31 Appellant James E. Pietrangelo, II, proceeding pro se,1
32 appeals from the district court’s judgment (1) denying his
1
We note, as the district court recognized, that Pietrangelo
is an attorney with substantial litigation experience. Thus he
“cannot claim the special consideration which the courts
customarily grant to pro se parties.” Holtz v. Rockefeller &
Co., 258 F.3d 62, 82 n.4 (2d Cir. 2001) (internal quotation marks
omitted).
2
1 motion to remand to state court his action raising claims
2 under 42 U.S.C. § 1983 and state law;2 (2) denying his
3 motions to compel discovery and for leave to conduct
4 additional discovery; (3) granting Defendants’ summary
5 judgment motions; and (4) denying his motion for
6 reconsideration of a decision granting summary judgment to
7 certain defendants. We assume the parties’ familiarity with
8 the underlying facts and the procedural history of the case.
9 I. Discovery Rulings
10 We review a district court’s discovery rulings for
11 abuse of discretion, bearing in mind that a “district court
12 has broad discretion to manage pre-trial discovery.” Wood
13 v. F.B.I., 432 F.3d 78, 84 (2d Cir. 2005). For
14 substantially the same reasons as those stated in its
15 decisions, the district court did not abuse its discretion
16 in denying Pietrangelo’s motions to compel and for leave to
17 conduct further discovery in opposition to the renewed
18 summary judgment motion filed by the Alvas Corporation,
19 George Alvanos, Christine Alvanos, and Evan Alvanos (the
20 “Alvas Defendants”). Given the broad and burdensome nature
2
We address this issue in a separate per curiam opinion in
which we conclude that the district court did not err in denying
the motion to remand to state court because Defendants’ notice of
removal and consent to removal were timely under 28 U.S.C.
§ 1446(b).
3
1 of the request at issue—that the Alvas Defendants identify
2 and provide the contact information of every male who had
3 been their friend, acquaintance, employee, servant, family
4 member, or agent over an 18-month period—the district court
5 acted well within its discretion in determining that
6 compelling the disclosure of this information was not a
7 reasonable means of discovering the identity of the John Doe
8 who allegedly assaulted Pietrangelo.
9 II. Summary Judgment Motions
10 We review an order granting summary judgment de novo
11 and ask whether the district court properly concluded that
12 there were no genuine issues of material fact and that the
13 moving party was entitled to judgment as a matter of law.
14 Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d
15 Cir. 2003). “In determining whether there are genuine
16 issues of material fact, we are required to resolve all
17 ambiguities and draw all permissible factual inferences in
18 favor of the party against whom summary judgment is sought.”
19 Terry v. Ashcroft,
336 F.3d 128, 137 (2d Cir. 2003)
20 (internal quotation marks omitted). However, “conclusory
21 statements or mere allegations [are] not sufficient to
22 defeat a summary judgment motion.” Davis v. New York, 316
23 F.3d 93, 100 (2d Cir. 2002).
4
1 Having conducted an independent review of the record in
2 light of these principles, we affirm the district court’s
3 grant of summary judgment in favor of Defendants for
4 substantially the same reasons stated by the district court
5 in its decisions. Pietrangelo’s Fourth Amendment seizure
6 claim is without merit. A “seizure” occurs where, “in view
7 of all of the circumstances surrounding the incident, a
8 reasonable person would have believed that he was not free
9 to leave.” United States v. Mendenhall, 446 U.S. 544, 554
10 (1980). Factors suggestive of seizure include “the
11 threatening presence of several officers, the display of a
12 weapon by an officer, some physical touching of the person
13 of the citizen, or the use of language or tone of voice
14 indicating that compliance with the officer’s request might
15 be compelled.” Id. Pietrangelo asserted only that, after
16 the officers responded to Pietrangelo’s call, Officer
17 Helrich “ordered and required” him to stand on a strip of
18 grass next to the sidewalk and answer questions. Like the
19 district court, we conclude that this bare assertion is
20 wholly inadequate to defeat Defendants’ motion for summary
21 judgment.
22
5
1 With regard to his First Amendment claim, the cases on
2 which Pietrangelo relies in his brief are inapposite, as
3 they involve outright restrictions on speech, rather than
4 the “time, place, or manner” restrictions at issue here. To
5 be sure, Pietrangelo made an affirmation suggesting that his
6 speech was, in fact, restricted, stating that Officer
7 Helrich “considerably reduced the effectiveness of [his]
8 picketing,” when Helrich allegedly directed him to picket on
9 a strip of grass adjacent to the sidewalk rather than on the
10 sidewalk itself. See Appellant’s Br. 44. However, this
11 allegation is blatantly contradicted by the photographs of
12 the area attached to the summary judgment motion filed by
13 the City of Burlington, Officer Helrich, and Officer Wade
14 Labrecque (the “City Defendants”), which reveal that the
15 strip of grass is virtually identical to the sidewalk in all
16 relevant respects, including visibility to pedestrians and
17 vehicles. See Scott v. Harris, 550 U.S. 372, 379-80 (2007).
18 Finally, with respect to the summary judgment motion
19 filed by the Alvas Defendants, as the district court found,
20 the sparse evidence offered by Pietrangelo that was arguably
21 probative of a connection between John Doe and the Alvas
22 Defendants was both unduly speculative and of questionable
23 legal relevance. We have considered Pietrangelo’s remaining
6
1 challenges to all of the district court’s summary judgment
2 decisions, including the grant of summary judgment in favor
3 of Vermont Attorney General William Sorrell, and find them
4 to be without merit.
5 III. Motion for Reconsideration
6 We generally review the denial of a motion for
7 reconsideration for abuse of discretion. L-7 Designs, Inc.
8 v. Old Navy, LLC, 647 F.3d 419, 435 (2d Cir. 2011). The
9 district court did not abuse its discretion in denying
10 Pietrangelo’s motion for reconsideration based on his
11 argument that the court denied him a meaningful opportunity
12 to oppose the City Defendants’ summary judgment motion. The
13 district court correctly concluded that Pietrangelo had not
14 acted in accordance with a reasonable interpretation of
15 accepted legal standards in declining to respond to the City
16 Defendants’ motion based on his belief that doing so would
17 waive his right to seek remand, especially where his motion
18 to remand was pending.
19 We have considered Pietrangelo’s remaining arguments
20 pertaining to the issues addressed in this Order and find
21 them to be without merit. For the foregoing reasons, and
22 the reasons set forth in the per curiam opinion accompanying
7
1 this Order, the judgment of the district court is hereby
2 AFFIRMED.
3
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
6
8
