Filed: May 14, 2010
Latest Update: Feb. 21, 2020
Summary: 09-2365-cv Burke v. Acosta 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
Summary: 09-2365-cv Burke v. Acosta 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 ..
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09-2365-cv
Burke v. Acosta
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.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in
the City of New York, on the 14th day of May, two thousand ten.
PRESENT:
JON O. NEWMAN,
JOHN M. WALKER, JR.,
GERARD E. LYNCH,
Circuit Judges.
___________________________________________________
Brian Burke,
Plaintiff-Appellant,
v. No. 09-2365-cv
Solomon Acosta, Fascore/Great West, MTA/NYC Transit
Authority,
Defendants-Appellees.
____________________________________________________
FOR APPELLANT: Brian Burke, pro se, New York, New York.
FOR APPELLEES FASCORE/
GREAT WEST: Virginia Shea (Michael J. Zaretsky, on the
brief), Chorpenning, Good, Carlet & Garrison
New York, New York.
FOR APPELLEES MTA/NYC
TRANSIT AUTHORITY: Ching Wah Chin, Associate Counsel, for
James B. Henly, General Counsel for the
Metropolitan Transportation Authority, New
York, New York.
1 Appeal from a judgment of the United States District Court for the Southern District
2 of New York (Castel, J.).
3 UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED,
4 AND DECREED that the judgment of the district court be AFFIRMED.
5 Brian Burke, pro se, appeals from the district court’s April 2009 judgment
6 dismissing his complaint. We assume the parties’ familiarity with the underlying facts and
7 the procedural history of the case.
8 As an initial matter, “we construe notices of appeal liberally, taking the parties’
9 intentions into account.” Sahu v. Union Carbide Corp., 548 F.3d 59, 65 (2d Cir. 2008)
10 (internal quotation marks omitted). Here, we liberally construe Burke’s pro se notice of
11 appeal to request review of the following district court orders: the August 2008 order
12 granting the Defendants-Appellees’ motions to dismiss Burke’s amended complaint, the
13 March 2009 order denying Burke’s motions for leave to file second and third amended
14 complaints, and the April 2009 order denying both Burke’s motion for reconsideration of
15 the March 2009 order and his motion for leave to file a fourth amended complaint.
16 However, we do not infer from Burke’s notice of appeal, which indicates that he appeals
17 the April 2009 judgment, any intent to appeal the district court’s subsequent May 2009
18 denial of Burke’s second motion for reconsideration. See
id. at 65-66 (“[O]ur appellate
19 jurisdiction depends on whether the intent to appeal from a decision is clear on the face of,
20 or can be inferred from, the notice[] of appeal.”) (internal quotation marks and brackets
2
1 omitted).
2 We review de novo a district court’s dismissal of a complaint for lack of subject
3 matter jurisdiction or for failure to state a claim upon which relief may be granted,
4 construing the complaint liberally, “accepting all factual allegations in the complaint as
5 true, and drawing all reasonable inferences in the plaintiff's favor.” Shomo v. City of New
6 York, 579 F.3d 176, 183 (2d Cir. 2009) (internal quotation marks omitted). A complaint
7 must plead “enough facts to state a claim to relief that is plausible on its face.” Bell
8 Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007). “A pleading that offers ‘labels and
9 conclusions’ . . . will not do. Nor does a complaint suffice if it tenders ‘naked assertions’
10 devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal,
129 S. Ct. 1937, 1949 (2009),
11 quoting
Twombly, 550 U.S. at 555, 557 (citation and brackets omitted). Although all
12 factual allegations in the complaint are assumed to be true, this tenet is “inapplicable to
13 legal conclusions.”
Id. In determining whether a complaint satisfies the plausibility
14 standard, we construe pro se submissions liberally. See Harris v. Mills,
572 F.3d 66, 72
15 (2d Cir. 2009); see also
Shomo, 579 F.3d at 183.
16 Here, the district court’s August 2008 order properly determined that Burke failed to
17 state a plausible federal claim in his first amended complaint, because although he provided
18 numerous “labels and conclusions,” he made insufficient factual allegations to state a
19 plausible claim. See
Iqbal, 129 S. Ct. at 1949;
Twombly, 550 U.S. at 555.
20 The district court identified potential federal claims that Burke might raise in an
21 amended complaint, and the court stayed its order to permit mediation to take place. After
22 mediation failed, Burke moved to file a second and third amended complaint, but he again
23 failed to allege facts sufficient to state a plausible federal claim and failed to establish
3
1 complete diversity of the parties, as required for diversity jurisdiction. Accordingly, in its
2 March 2009 order, the district court did not abuse its discretion in denying Burke’s motions
3 for leave to amend his complaint. See Starr v. Sony BMG Music Enter., 592 F.3d 314, 321
4 (2d Cir. 2010) (“We review the denial of leave to amend a complaint for abuse of discretion
5 . . . .”).1
6 The district court did not abuse its discretion in its April 2009 order denying
7 Burke’s motion for reconsideration of the March 2009 order, because Burke failed to “point
8 to controlling decisions or data that the court overlooked.” Shrader v. CSX Transp., Inc.,
9
70 F.3d 255, 257 (2d Cir. 1995); see also In re BDC 56 LLC,
330 F.3d 111, 123 (2d Cir.
10 2003). Nor did the district court abuse its discretion in denying Burke leave to file a fourth
11 amended complaint, given that the proposed complaint was “merely [a] recycled version[]”
12 of the previously proposed amended complaints. Bellikoff v. Eaton Vance Corp.,
481 F.3d
13 110, 118 (2d Cir. 2007). Moreover, the district court properly denied Burke leave to amend
14 because amendment would have been futile. See Foman v. Davis,
371 U.S. 178, 182
15 (1962); Burch v. Pioneer Credit Recovery, Inc.,
551 F.3d 122, 126 (2d Cir. 2008).
16
1
Burke’s Title VII claims merit some discussion. His amended complaint only vaguely
referred to a Title VII claim. Honoring its obligation to construe pro se complaints broadly, the
district court identified this possible claim and suggested that Burke make his intentions clearer.
Along with his proposed Second Amended Complaint (“SAC”), Burke attached a right to sue
letter showing he had exhausted his administrative remedies and that he was authorized to sue,
inter alia, the New York City Transportation Authority (“NYCTA”). Construed liberally, the
SAC and the proposed Third Amended Complaint alleged that FASCore/Great West, Acosta and
Zagajeski violated Title VII, but the amended complaints did not clarify whether any Title VII
retaliation claim was directed at the NYCTA. The district court’s March 2009 Order correctly
dismissed Title VII claims against FASCore/ Great West, Acosta, and Zagajeski. In light of the
district court’s specific instruction to Burke to clarify whether he intended to bring such a claim
against the NYCTA, Burke’s failure to do so waives any such claim.
4
1 On appeal, Burke primarily argues that the Defendants-Appellees breached one or
2 more contracts. However, having found no basis for subject matter jurisdiction, the district
3 court’s April 2009 order properly declined to exercise supplemental jurisdiction over
4 Burke’s state law claims. See 28 U.S.C. § 1367; Valencia ex rel. Franco v. Lee, 316 F.3d
5 299, 304-05 (2d Cir. 2003).
6 We have reviewed Burke’s remaining arguments on appeal, including his challenge
7 to the constitutionality of motions to dismiss, and conclude that they are without merit.
8 For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
11
5
