Ruotolo v. City of New York ( 2008 )

06-3886-cv
Ruotolo v. City of New York
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3
4 August Term, 2007
5
6
7 (Argued: September 25, 2007 Decided: February 6, 2008)
8
9 Docket No. 06-3886-cv
10
11 - - - - - - - - - - - - - - - - - - - -X
12
13 ANGELO RUOTOLO,
14
15 Plaintiff-Appellant,
16
17 - v.-
18
19 CITY OF NEW YORK; RAYMOND KELLY,
20 Commissioner of Police, City of New
21 York; PATRICK J. TIMLIN, Former Chief
22 of Police, City of New York, Bronx;
23 RAYMOND ROONEY, Deputy Inspector, New
24 York City Police Department, formerly
25 Commanding Officer 50th Precinct,
26 Bronx; WILLIAM RILEY, Lieutenant, New
27 York City Police Department, formerly
28 Integrity Control Officer, 50th
29 Precinct, Bronx,
30
31 Defendants-Appellees.
32
33 - - - - - - - - - - - - - - - - - - - -X
34
35 Before: JACOBS, Chief Judge, LEVAL and SOTOMAYOR,
36 Circuit Judges.
37
38 Appeal from the judgment of the United States District
1 Court for the Southern District of New York (Stein, J.)
2 dismissing, under Fed. R. Civ. P. 12(b)(6), a police
3 officer’s claim that he was subjected to retaliation in
4 violation of his First Amendment rights for [i] writing an
5 official report about health concerns at his precinct, and
6 [ii] filing a lawsuit that challenged personnel action taken
7 against him in the wake of that report. Also appealed is
8 the denial of leave to amend the complaint.
9 AFFIRMED.
10 ANDREW M. WONG, New York, NY,
11 for Plaintiff-Appellant.
12
13 TAHIRIH M. SADRIEH, Assistant
14 Corporation Counsel (Michael A.
15 Cardozo, Corporation Counsel for
16 the City of New York), New York,
17 NY, for Defendants-Appellees.
18
19 DENNIS JACOBS, Chief Judge:
20 Retired police sergeant Angelo Ruotolo (“Ruotolo”) sues
21 the City of New York (the “City”) and various officials and
22 members of the New York City Police Department
23 (collectively, the “NYPD”), alleging retaliation in
24 violation of the First Amendment for his speech regarding
25 health concerns at his precinct. He appeals from a judgment
26 of the United States District Court for the Southern
27 District of New York (Stein, J.), granting defendants’
2
1 motion to dismiss the “Second Amended and Supplemental
2 Complaint” (the “Complaint”) for failure to state a claim
3 under Fed. R. Civ. P. 12(b)(6). Ruotolo’s speech consisted
4 of a report concerning health conditions at his precinct,
5 which he was directed to prepare in his role as precinct
6 Safety Officer, and a lawsuit he filed in the wake of
7 retaliatory personnel action taken against him after the
8 report was submitted. The district court dismissed, citing
9 Garcetti v. Ceballos, 547 U.S. 410, 126 S. Ct. 1951 (2006),
10 on the ground that both the report and the lawsuit were
11 unprotected because Ruotolo was speaking as a public
12 employee in the course of his employment duties. No appeal
13 is taken from the dismissal of the claim premised on
14 Ruotolo’s report. As to Ruotolo’s lawsuit, we affirm on the
15 ground that it did not address a matter of public concern.
16 And we affirm the district court’s exercise of its
17 discretion to deny leave to amend the complaint based on
18 plaintiff’s delay and the undue burden and prejudice to
19 defendants.
20
21 BACKGROUND
22 Ruotolo was an NYPD Sergeant with 20 years service when
3
1 he retired in 2004. In October 1999, Ruotolo was serving as
2 the Training and Safety Officer for the 50th Precinct in the
3 Bronx. When a local newspaper reported possible
4 contamination and health risks at the precinct from
5 underground gasoline storage tanks, Ruotolo was assigned--in
6 his capacity as Safety Officer--to survey employee illnesses
7 and deaths that might be related to this potential
8 environmental hazard. His two-page report, dated October
9 28, 1999 (the “October 1999 Report”), and titled “Survey
10 Pursuant to Request,” identified a seemingly large number of
11 cancers, miscarriages, birth defects and other health
12 problems afflicting individuals working at the precinct.
13 Ruotolo recommended a thorough environmental evaluation,
14 which was done.
15 The environmental experts reported that leakage from
16 the fuel storage tanks into the soil and air had raised
17 contaminant levels above OSHA and EPA safety standards. At
18 great expense and over many months, the City undertook to
19 abate the hazard. Representatives of the Patrolmen’s
20 Benevolent Association (“PBA”) came to the precinct in April
21 2000 to sign up potential plaintiffs for a personal injury
22 lawsuit. One of the PBA lawyers asked to speak with Ruotolo
4
1 because he was the author of the October 1999 Report. As
2 Ruotolo testified in his March 2005 deposition in this
3 lawsuit, he answered the PBA’s questions with the knowledge
4 of his commanding officer, spoke to no one else about the
5 proposed lawsuit, did not himself enlist as a plaintiff, and
6 never learned whether an action was filed. This encounter
7 was not pled in any version of Ruotolo’s complaint prior to
8 dismissal of the action, but it is relevant to our analysis.
9 Ruotolo alleges that he experienced on-the-job
10 retaliation starting soon after submitting the October 1999
11 Report to his commanding officer, and continuing until he
12 retired. The retaliation included: frequent reassignments
13 to undesirable shifts and to duties he considered beneath
14 his rank and tenure, denial of use of leave time, transfer
15 to a less desirable precinct, and discipline for trivial or
16 fabricated reasons. After Ruotolo alleged those acts of
17 retaliation (in the original complaint in this lawsuit,
18 filed in July 2003), Ruotolo alleged (in amended complaints)
19 that the retaliation took additional forms, including verbal
20 harassment by superior officers, denial of overtime
21 assignments, the first negative performance review of his
22 career, and excessive discipline for a minor infraction.
5
1 As a result of that discipline, Ruotolo was put on “modified
2 duty,” and was stripped of his badge, shield, identification
3 card and weapons. He was still on modified duty when he
4 retired on July 26, 2004, which meant he lost the privilege
5 of carrying a firearm after retirement (thus reducing his
6 prospect for future income in the security field). Based on
7 these experiences, Ruotolo attributed to the City a
8 “municipal custom and practice of tolerance of the violation
9 of [whistle-blowers’] rights.”
10 As compensatory damages, Ruotolo alleges lost income
11 and reduced pension benefits. Ruotolo also seeks punitive
12 damages, and an injunction to (i) expunge from his
13 employment records the retaliatory disciplinary charges and
14 performance reviews, and (ii) restore impaired retirement
15 benefits and privileges.
16 The original complaint identified the October 1999
17 Report as the single episode of speech underlying his First
18 Amendment claim. Over the next three years of active
19 litigation, Ruotolo was twice given leave to amend his
20 complaint, notably to add the filing of his lawsuit as the
21 second--and only other--instance of speech for which Ruotolo
22 alleged retaliation. By May 2006, the parties had concluded
6
1 extensive discovery, narrowed the claims through multiple
2 dispositive motions (various state law claims were dismissed
3 on an earlier Rule 12(b)(6) motion), litigated numerous
4 discovery and trial-related motions, and submitted their
5 final joint pretrial order.
6 Trial on Ruotolo’s surviving claims was two weeks away
7 when the Supreme Court ruled in Garcetti v. Ceballos that
8 “when public employees make statements pursuant to their
9 official duties, the employees are not speaking as citizens
10 for First Amendment purposes, and the Constitution does not
11 insulate their communications from employer discipline.”
12 126 S. Ct. 1951, 1960 (2006). Upon the defendants’ renewed
13 motion to dismiss, the district court ruled that the First
14 Amendment claim succumbed to Garcetti because Ruotolo
15 admittedly wrote the October 1999 Report in his capacity as
16 Safety Officer, and because the lawsuit was premised solely
17 on non-actionable speech. As to the lawsuit, the court
18 explained:
19 After Garcetti, for a lawsuit adequately to charge
20 a First Amendment retaliation claim, the lawsuit
21 must be predicated on speech made by a public
22 employee as a citizen, and not pursuant to his or
23 her official duties. To hold otherwise--that
24 filing a lawsuit alleging retaliation for non-
25 protected speech would give rise to a First
26 Amendment complaint--would defy logic, allowing a
7
1 plaintiff to bootstrap a non-actionable objection
2 to legitimate employer discipline into a valid
3 First Amendment claim.
4
5 (Emphasis in original).
6 In opposing the Rule 12(b)(6) motion, Ruotolo
7 unsuccessfully attempted to rehabilitate his Complaint by
8 reference to his deposition testimony about the April 2000
9 conversation with a PBA representative. For the first time,
10 Ruotolo argued that he was not then speaking in his official
11 capacity as Safety Officer (and author of the October 1999
12 Report), but rather was speaking as a private citizen on a
13 health matter of public concern. As Ruotolo had as yet
14 never alleged the April 2000 PBA conversation, the district
15 court decided that the exchange with the PBA was outside the
16 pleadings and not properly considered on a motion to
17 dismiss.
18 Final judgment was entered on July 21, 2006. Ruotolo
19 moved to vacate the judgment and for leave to file a Third
20 Amended and Supplemental Complaint. The district court
21 denied vacatur because Ruotolo “failed to demonstrate a need
22 to prevent manifest injustice or correct a clear error that
23 would affect the outcome of the case.” The district court
24 also denied leave to amend to add the PBA conversation
8
1 because of undue delay, and the undue burden and prejudice
2 that would result to defendants. Ruotolo timely appealed
3 these rulings and the final judgment.
4
5 DISCUSSION
6 We review de novo a district court’s dismissal of a
7 complaint pursuant to Rule 12(b)(6), “accepting all factual
8 allegations in the complaint and drawing all reasonable
9 inferences in the plaintiff’s favor.” ATSI Commc’n, Inc. v.
10 Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007). To
11 survive a motion to dismiss, a complaint must plead “enough
12 facts to state a claim to relief that is plausible on its
13 face.” Bell Atlantic Corp. v. Twombly, -- U.S. --, 127 S.
14 Ct. 1955, 1974 (2007).
15
16 A
17 On appeal, Ruotolo concedes that Garcetti mandates
18 dismissal of the First Amendment claim premised on the
19 October 1999 Report. Ruotolo argues, however, that the
20 district court erred in reading Garcetti to require
21 dismissal of the claim premised on his filing a federal
22 lawsuit. We hold that Ruotolo’s claim based on his lawsuit
9
1 must fail because his lawsuit did not address a matter of
2 public concern.
3 Whether public employee speech is protected from
4 retaliation under the First Amendment entails two inquiries:
5 (1) “whether the employee spoke as a citizen on a matter of
6 public concern” and, if so, (2) “whether the relevant
7 government entity had an adequate justification for treating
8 the employee differently from any other member of the
9 general public.” Garcetti, 126 S. Ct. at 1958 (citing
10 Pickering v. Bd. of Educ. of Township High Sch. Dist. 205,
11 Will County, 391 U.S. 563, 568 (1968)); see also Skehan v.
12 Vill. of Mamaroneck, 465 F.3d 96, 106 (2d Cir. 2006)
13 (rephrasing the test for a First Amendment retaliation claim
14 as three-pronged, requiring plaintiffs to prove: “(1) they
15 engaged in constitutionally protected speech because they
16 spoke as citizens on a matter of public concern; (2) they
17 suffered an adverse employment action; and (3) the speech
18 was a motivating factor in the adverse employment decision”
19 (internal quotation marks and citation omitted)). The
20 majority opinion in Garcetti focused on the first inquiry,
21 and specifically its operation as a limiting principle when
22 the government is acting as an employer, exercising control
10
1 over employee speech in the interest of the “efficient
2 provision of public services.” Garcetti, 126 S. Ct. at3 1958. Recognizing that government employers (like private
4 employers) “have heightened interests in controlling speech
5 made by an employee in his or her professional capacity,”
6 the Supreme Court ruled that a public employee speaking in
7 his official capacity is not speaking as a citizen for First
8 Amendment purposes, id. at 1960, and employer retaliation
9 for such speech does not justify the “displacement of
10 managerial discretion by judicial supervision,” id. at 1961.
11 The principal episode of speech at issue in Garcetti
12 was a memo in which a deputy district attorney alerted his
13 supervisors to perceived irregularities in how a search
14 warrant was obtained in a particular case. In precluding
15 that First Amendment claim, the Court emphasized that the
16 memo was written as part of the employee’s official duties
17 and that the employer’s negative reaction to it “simply
18 reflects the exercise of employer control over what the
19 employer itself has commissioned or created.” Id. at 1960.
20 The Garcetti plaintiff “did not act as a citizen when he
21 went about conducting his daily professional activities . .
22 . . When he went to work and performed the tasks he was paid
11
1 to perform, [plaintiff] acted as a government employee.”
2 Id. Similarly (as is undisputed here), Ruotolo prepared his
3 October 1999 Report as part of his official duties, and for
4 that reason Ruotolo has not appealed from this aspect of the
5 district court’s ruling.1
6 Ruotolo argues that his First Amendment retaliation
7 claim nonetheless survives as to damages arising out of
8 post-lawsuit retaliation, because this lawsuit was filed in
9 his capacity as a private citizen. The district court
10 rejected this argument, holding that under Garcetti, the
11 First Amendment does not protect a government employee from
12 retaliation for filing a lawsuit in which the underlying
13 retaliation claim rests on non-actionable official speech.
14 We need not decide whether Ruotolo’s lawsuit amounts to
15 speech by a “citizen” rather than by a “public employee”
16 within the meaning of Garcetti: a simpler ground is
17 available because in any event that speech is not “on a
1
As the Garcetti Court observed, public employees who
suffer retaliation for their official speech are not without
recourse, and should avail themselves of the “powerful
network of legislative enactments--such as whistle-blower
protection laws and labor codes--available to those who seek
to expose wrongdoing.” Garcetti, 126 S. Ct. at 1962. We
express no opinion as to the availability of such recourse
to Ruotolo.
12
1 matter of public concern.” Id. at 1958.
2 “Whether an employee’s speech addresses a matter of
3 public concern is a question of law for the court to decide,
4 taking into account the content, form, and context of a
5 given statement as revealed by the whole record.” Lewis v.
6 Cowen, 165 F.3d 154, 163 (2d Cir. 1999) (citing Connick v.
7 Myers, 461 U.S. 138, 147-48 and n.7 (1983)). The heart of
8 the matter is whether the employee’s speech was “calculated
9 to redress personal grievances or whether it had a broader
10 public purpose.” Lewis, 165 F.3d at 163-64. Ruotolo’s
11 lawsuit sought to redress his personal grievances. It did
12 not seek to advance a public purpose. We therefore hold
13 that his lawsuit did not constitute speech on a matter of
14 public concern, and we affirm the district court’s dismissal
15 on that basis.
16 As to the personal nature of Ruotolo’s grievances, the
17 Complaint alleges that Ruotolo wrote the October 1999 Report
18 because he was assigned to do so as part of his job, and
19 that the Report led to retaliatory acts affecting Ruotolo
20 alone. The acts of alleged retaliation against Ruotolo bear
21 upon the circumstances and perquisites of his employment,
22 such as reassignment, transfer, time off, and discipline.
13
1 The section of the Complaint titled “Consequences of the
2 Retaliation” enumerates adverse career, financial and
3 emotional effects that Ruotolo suffered personally. The
4 relief sought is also almost entirely personal to Ruotolo,
5 including compensatory damages and an injunction relating to
6 Ruotolo’s employment records.
7 The Complaint accuses the City of routinely tolerating
8 the violation of whistleblower rights, and seeks punitive
9 damages to deter “future illegal and retaliatory conduct,”
10 arguably hinting at some broader public purpose. However,
11 retaliation against the airing of generally personal
12 grievances is not brought within the protection of the First
13 Amendment by “the mere fact that one or two of [a public
14 employee’s] comments could be construed broadly to implicate
15 matters of public concern.” Ezekwo v. New York City Health
16 & Hosp. Corp., 940 F.2d 775, 781 (2d Cir. 1991).
17 In Ezekwo, a physician complained about aspects of her
18 hospital residency program, including unfair evaluation of
19 her by attending physicians, the lack of opportunity to
20 perform surgery and learn specialized skills, and
21 discrimination on the basis of race, sex and national
22 origin. She also complained generally about the attending
14
1 physicians’ poor management skills and teaching methods,
2 their lack of punctuality, and the lack of proper hospital
3 maintenance. Viewing these complaints “objectively and as a
4 whole,” we held that, for First Amendment purposes, these
5 complaints were not matters of public concern. Id.6 Although the quality of a physician-training program may
7 affect the public, we concluded that the plaintiff “was not
8 on a mission to protect the public welfare. Rather her
9 primary aim was to protect her own reputation and individual
10 development as a doctor.” Id.; see also Tiltti v. Weise,
11 155 F.3d 596, 603 (2d Cir. 1998) (finding no public concern
12 in complaints about working conditions made by customs
13 officers who alleged retaliation when they were reassigned,
14 despite their claim that the relocations would adversely
15 affect homeland security); Cotarelo v. Vill. of Sleepy
16 Hollow Police Dep’t, 460 F.3d 247, 252 (2d Cir. 2006)
17 (finding police officer’s lawsuit is a matter of public
18 concern because his allegations concerned “discrimination
19 problems generally and were not limited to instances
20 affecting only [the plaintiff].”).
21 As the Eleventh Circuit observed, “[a] public employee
22 may not transform a personal grievance into a matter of
15
1 public concern by invoking a supposed popular interest in
2 the way public institutions are run.” Boyce v. Andrew, 510
3 F.3d 1333, 1343 (11th Cir. 2007) (quoting Ferrara v. Mills,
4 781 F.2d 1508, 1516 (11th Cir. 1986)). A generalized public
5 interest in the fair or proper treatment of public employees
6 is not enough. Because Ruotolo’s lawsuit concerns
7 essentially personal grievances and the relief he seeks is
8 for himself alone, the lawsuit is not speech on a matter of
9 public concern and cannot sustain a First Amendment
10 retaliation claim.
11
12 B
13 After final judgment was entered dismissing the
14 Complaint, Ruotolo moved to vacate the judgment and file a
15 Third Amended and Supplemental Complaint. Thus Ruotolo
16 sought to plead another instance of speech that would not be
17 vulnerable to the specific Garcetti analysis that had
18 defeated the claim premised on the October 1999 Report. The
19 proposed amended pleading frames Ruotolo’s April 2000
20 conversation with PBA representatives as an episode of
21 protected speech made in his capacity as a private citizen.
22 A denial of a motion to vacate a judgment under Rule 60(b)
16
1 is reviewed for abuse of discretion, see Transaero, Inc. v.
2 La Fuerza Aerea Boliviana, 162 F.3d 724, 729 (2d Cir. 1998),
3 likewise, a denial of leave to amend a complaint under Rule
4 15(a), see Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131
5 (2d Cir. 1993) (per curiam).
6 A party seeking to file an amended complaint post-
7 judgment must first have the judgment vacated or set aside
8 pursuant to Fed. R. Civ. P. 59(e) or 60(b). See Nat’l
9 Petrochemical Co. of Iran v. M/T Stolt Sheaf, 930 F.2d 240,
10 244-45 (2d Cir. 1991) (noting that Rule 15(a)’s liberal
11 amendment policy should not “be employed in a way that is
12 contrary to the philosophy favoring finality of judgments
13 and the expeditious termination of litigation” (internal
14 quotation marks and citation omitted)). Ruotolo moved to
15 set aside the judgment pursuant to Rule 60(b), a mechanism
16 for “extraordinary judicial relief” invoked only if the
17 moving party demonstrates “exceptional circumstances.”
18 Paddington Partners v. Bouchard, 34 F.3d 1132, 1142 (2d Cir.
19 1994) (citation omitted). The district court found no such
20 “exceptional circumstances,” and Ruotolo’s appeal does not
21 press for relief on that ground. Nor does there appear to
22 be a basis for Rule 60(b) relief. Therefore, ordinarily “it
17
1 would be contradictory to entertain a motion to amend the
2 complaint.” Nat’l Petrochemical Co. of Iran, 930 F.2d at3 245. However, we have said in dicta that “in view of the
4 provision in rule 15(a) that ‘leave [to amend] shall be
5 freely given when justice so requires,’ it might be
6 appropriate in a proper case to take into account the nature
7 of the proposed amendment in deciding whether to vacate the
8 previously entered judgment.” Id. (citing Foman v. Davis,
9 371 U.S. 178, 182 (1962)). Even assuming that a post-
10 judgment motion to amend can be heard, we see no basis for
11 finding any abuse of discretion here.
12 Leave to amend, though liberally granted, may properly
13 be denied for: “undue delay, bad faith or dilatory motive
14 on the part of the movant, repeated failure to cure
15 deficiencies by amendments previously allowed, undue
16 prejudice to the opposing party by virtue of allowance of
17 the amendment, futility of amendment, etc.” Foman, 371 U.S.
18 at 182. “Mere delay, however, absent a showing of bad faith
19 or undue prejudice, does not provide a basis for the
20 district court to deny the right to amend.” State Teachers
21 Ret. Bd. v. Fluor Corp., 654 F.2d 843, 856 (2d Cir. 1981);
22 see also 6 Charles Allen Wright, Arthur R. Miller & Mary Kay
18
1 Kane, Federal Practice and Procedure: Civil 2d, § 1487, at
2 613 (1990 & 2007 Supp.) (citing prejudice to the opposing
3 party as “the most important factor” and “the most frequent
4 reason for denying leave to amend”). In denying Rule 15(a)
5 relief, the district court found that Ruotolo’s delay in
6 seeking leave to amend was inexcusable given the previous
7 opportunities to amend, and the defendants’ burden and
8 prejudice. These findings were well within the bounds of
9 its discretion.
10 When the original complaint was filed in 2003, Ruotolo
11 certainly knew about his own conversation with the PBA back
12 in 2000. Ruotolo seeks to excuse his delay in pleading this
13 conversation on the ground that he did not realize its
14 significance until the Supreme Court spoke in Garcetti.
15 True, Ruotolo was not required to plead every conversation
16 he had as a private citizen; but he may be expected to have
17 pled every such conversation as to which he was asserting
18 unconstitutional retaliation. Nothing in the law pre-
19 Garcetti prevented or inhibited him from pleading the PBA
20 conversation. Even after Ruotolo testified about it at his
21 March 2005 deposition, he evidently did not believe that he
22 suffered unconstitutional retaliation on that account, and
19
1 therefore did not mention it in his Second Amended and
2 Supplemental Complaint filed in August 2005. “When the
3 moving party has had an opportunity to assert the amendment
4 earlier, but has waited until after judgment before
5 requesting leave, a court may exercise its discretion more
6 exactingly.” State Trading Corp. of India, Ltd. v.
7 Assuranceforeningen Skuld, 921 F.2d 409, 418 (2d Cir. 1990)
8 (denying leave to amend complaint to plead additional causes
9 of action based on foreign law long known to movant).
10 In gauging prejudice, we consider, among other factors,
11 whether an amendment would “require the opponent to expend
12 significant additional resources to conduct discovery and
13 prepare for trial” or “significantly delay the resolution of
14 the dispute.” Block v. First Blood Assocs., 988 F.2d 344,
15 350 (2d Cir. 1993). Undue prejudice arises when an
16 “amendment [comes] on the eve of trial and would result in
17 new problems of proof.” Fluor Corp., 654 F.2d at 856
18 (reversing denial of leave to amend sought promptly after
19 learning new facts, where “no trial date had been set by the
20 court and no motion for summary judgment had yet been filed
21 by the defendants” and where “the amendment will not involve
22 a great deal of additional discovery”).
20
1 Ruotolo argues that he should not be faulted for his
2 delay in seeking to amend his complaint prior to the
3 Garcetti decision because prior to Garcetti he had no good
4 reason to do so. We need not decide what would be the force
5 of this argument because Ruotolo did not move promptly
6 following the Garcetti decision, when the vulnerability of
7 his complaint became evident. Ruotolo waited until after
8 the district court dismissed his complaint to propose an
9 amendment.
10 Ruotolo’s proposed amendment comes post-judgment in a
11 case that had been trial-ready, and pleads a new scenario
12 that would prevent disposition of the case until either
13 further motion practice or a trial--and any trial or motion
14 practice would likely be delayed pending discovery on open
15 questions. Did Ruotolo participate in the PBA conversation
16 in his official capacity? Who said what? Did that
17 conversation provoke retaliation? Can that retaliation be
18 teased apart from the retaliation allegedly premised on the
19 October 1999 Report? Because the proposed amendment would
20 unduly burden and prejudice defendants in the circumstances
21 of this case, it is properly barred. See Bradick v. Israel,
22 377 F.2d 262, 263 (2d Cir. 1967) (per curiam) (affirming
21
1 denial of motion to amend brought on eve of trial, adding
2 new theories of law and new problems of proof); 6 Wright,
3 Miller & Kane, § 1487, at 623 and n.9 (amendment is
4 prejudicial when it “substantially changes the theory on
5 which the case has been proceeding and is proposed late
6 enough so that the opponent would be required to engage in
7 significant new preparation”). We therefore see no ground
8 for vacatur or other post-judgment relief.
9
10 C
11 Ruotolo’s remaining arguments pertain to his due
12 process claim and the New York State whistle-blower
13 protection statute. Those claims are not properly before us
14 because they were raised for the first time on appeal. See
15 Bogle-Assegai v. Connecticut, 470 F.3d 498, 504 (2d Cir.
16 2006).
17
18 CONCLUSION
19 For the foregoing reasons, the judgment of the district
20 court is affirmed.
22