Jordan v. Verizon Corp. ( 2010 )

09-3318-cv
Jordan v. V erizon Corp.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST 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 13 th day of August, two thousand ten.
PRESENT: ROSEMARY S. POOLER,
ROBERT D. SACK,
REENA RAGGI,
Circuit Judges.
------------------------------------------------------------------------------------
KATHRYN JORDAN,
Plaintiff-Appellant,
v. No. 09-3318-cv
VERIZON CORPORATION,
Defendant-Appellee,
PAUL HASTINGS,
Defendant.
------------------------------------------------------------------------------------
APPEARING FOR APPELLANT: KATHRYN JORDAN, pro se, New York, New
York.
APPEARING FOR APPELLEE: KENNETH W. GAGE, Paul, Hastings, Janofsky
& Walker LLP, Chicago, Illinois.
Appeal from the United States District Court for the Southern District of New York (Gerard
E. Lynch, Judge).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the appeal from the district court’s May 29, 2009 judgment [Docket No. 26] is
DISMISSED, the district court’s June 29, 2009 order is AFFIRMED, and the motion for default
judgment or remand is DENIED as moot.
Pro se plaintiff Kathryn Jordan appeals from the district court’s dismissal of her amended
complaint1 and the denial of her motion for reconsideration, recusal, and sanctions. We assume the
parties’ familiarity with the facts and record of prior proceedings.
1. Appeal from the Judgment of Dismissal
Because Jordan’s July 27, 2009 notice of appeal was not filed within thirty days of the May
29, 2009 judgment, see Fed. R. App. P. 4(a)(1)(A), and Jordan’s June 29, 2009 motion for
reconsideration was filed more than twenty-eight days after the judgment was entered, see Fed. R.
App. P. 4(a)(4)(A)(vi), we dismiss Jordan’s appeal from the May 29 judgment for lack of
jurisdiction, see Bowles v. Russell, 551 U.S. 205, 209 (2007) (noting that “taking of an appeal within
the prescribed time is ‘mandatory and jurisdictional’”).
2. Appeal from the District Court’s Denial of Reconsideration
On Jordan’s timely appeal from the denial of her motion for reconsideration under Fed. R.
Civ. P. 60(b), our review is limited to abuse of discretion, and “we must affirm . . . unless the ruling
is based on an erroneous view of the law or on a clearly erroneous assessment of the evidence.”
Rodriguez v. Mitchell, 252 F.3d 191, 200 (2d Cir. 2001) (internal quotation marks and alteration
omitted). We cannot conclude that the district court abused its discretion in this case.
a. Subject Matter Jurisdiction
A plaintiff asserting subject matter jurisdiction has the burden of proving its existence by a
preponderance of the evidence. See Morrison v. Nat’l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir.
2008). When, as in this case, the defendant challenges the factual basis for the plaintiff’s assertion
of jurisdiction, “[j]urisdiction must be shown affirmatively, and that showing is not made by drawing
from the pleadings inferences favorable to the party asserting it.” APWU v. Potter, 343 F.3d 619,
1
Jordan’s notice of appeal states that she appeals from, inter alia, “the full Opinion and
Order entered on December 10th, 2008, whereby [the district court] GRANTED Defendant
Verizon’s Motion to Dismiss Appellant’s Amended Complaint.” Because the district court entered
judgment dismissing Jordan’s amended complaint on May 29, 2009, we construe Jordan’s notice
as seeking to appeal that judgment.
2
623 (2d Cir. 2003) (internal quotation marks omitted); see also Robinson v. Gov’t of Malaysia, 269
F.3d 133, 140 (2d Cir. 2001).
Here, defendant Verizon Corporation challenged Jordan’s allegation that the damages arising
from Verizon’s alleged breach of its obligation to schedule an exit interview satisfied the $75,000
amount in controversy required for a federal court to exercise diversity jurisdiction. See 28 U.S.C.
§ 1332.2 In dismissing Jordan’s original complaint, the district court noted that Jordan alleged only
that damages exceeded $15,000, and directed Jordan to submit a jurisdictional affidavit explaining
why damages arising from Verizon’s alleged breach exceeded $75,000. In filing her amended
complaint, however, Jordan failed to provide any such explanation. Having failed to adduce any
evidence that her claim satisfied the amount-in-controversy requirement, Jordan did not carry her
jurisdictional burden. See, e.g., Scherer v. Equitable Life Assurance Soc’y of United States, 347
F.3d 394, 397 (2d Cir. 2003) (“A party invoking the jurisdiction of the federal court has the burden
of proving that it appears to a ‘reasonable probability’ that the claim is in excess of the statutory
jurisdictional amount.” (internal quotation marks omitted)). Accordingly, we identify no abuse of
discretion in the district court’s decision declining to reconsider its jurisdictional ruling.3
b. Claims Precluded by Prior Actions
Nor do we identify abuse of discretion in the district court’s conclusion that Jordan’s claims
concerning the negotiation and entry of the settlement agreement were barred by res judicata. Our
comparison of Jordan’s complaints and the district court’s judgments in Jordan v. Verizon Corp.,
No. 02 Civ. 10144 (S.D.N.Y. Aug. 30, 2004), aff’d, No. 04-5581-cv, 2005 WL 3116750 (2d Cir.
Nov. 22, 2005), and Jordan v. Verizon Corp., No. 02 Civ. 10144, 2007 WL 4591924 (S.D.N.Y. Dec.
27, 2007), indicates that Jordan’s claims were, or could have been, litigated in those earlier actions,
see Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981) (“A final judgment on the
merits of an action precludes the parties or their privies from relitigating issues that were or could
have been raised in that action.”).
2
Like the district court, we do not consider the challenged pension benefits as part of our
review of the amount in controversy because we conclude that any such claim is precluded by the
judgments in Jordan’s prior actions.
3
We do not address Jordan’s appellate argument that the district court had supplemental
jurisdiction over her claims based on their relation to her prior lawsuits, see 28 U.S.C. § 1367,
because Jordan did not raise such an argument in the district court, see Singleton v. Wulff, 428 U.S.
106, 120 (1976) (“[A] federal appellate court does not consider an issue not passed upon below.”).
It would be inappropriate for us to address the issue in the first instance because a district court may,
in its discretion, decline to exercise supplemental jurisdiction under certain circumstances. See 28
U.S.C. § 1367(c); Phillips v. Audio Active Ltd., 494 F.3d 378, 392 (2d Cir. 2007).
3
c. Recusal of Judge Lynch
Finally, it appears that the only basis for Jordan’s motion for Judge Lynch’s recusal was her
disagreement with his dismissal rulings. Such disagreement “almost never constitute[s] a valid basis
for a bias or partiality motion.” Liteky v. United States, 510 U.S. 540, 555 (1994). Our review of
the record confirms that “a reasonable person knowing all the facts would not think that the Judge’s
impartiality might reasonably be questioned.” United States v. Pitera, 5 F.3d 624, 627 (2d Cir.
1993).
We have considered Jordan’s other arguments on appeal and conclude that they lack merit.
Accordingly, we DISMISS the appeal from the district court’s May 29, 2009 judgment, AFFIRM
the district court’s June 29, 2009 order, and DENY as moot Jordan’s motion for a default judgment
or remand.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
4