Forjone v. The State of California , 425 F. App'x 73 ( 2011 )

10-822-cv
Forjone v. The State of California
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 6th day of July, two thousand eleven.
PRESENT:
ROSEMARY S. POOLER,
RICHARD C. WESLEY,
DEBRA ANN LIVINGSTON,
Circuit Judges.
__________________________________________
John-Joseph Forjone, et al.,
Plaintiffs-Appellants,
Wayne Mack, et al.,
Plaintiffs,
v. 10-822-cv
The State of California, et al.,
Defendants-Appellees,
__________________________________________
FOR APPELLANTS: Christopher Earl Strunk, pro se, Brooklyn, NY; John-Joseph
Forjone, pro se, Lake Luzerne, NY, on the brief.
FOR APPELLEES: Jeremy A. Colby, Michael P. McClaren, Webster Szanyi LLP,
Buffalo, NY. for New York State Board of Elections and Counties
of Erie, Orleans, Genesse, Wyoming, Allegany, Chatauqua,
Cattaraugus, Cayuga, Chemung, Oneida, Tioga, Schuyler,
Steuben, Livingston, Yates, Seneca, Oswego, Madison, Herkimer,
Otsego, St. Lawrence, Franklin, Clinton, Essex, Montgomery,
Warren, Saratoga, Washington, Ulster, Delaware, Putnam and
Fulton.
Thomas G. Gardiner, Sr. Assistant County Attorney, and James
Castro-Blanco, Chief Deputy County Attorney, for Robert F.
Meehan, Westchester County Attorney, White Plains, NY., for
Westchester County and Westchester County Board of Elections.
Christopher C. Wang and Mark. L. Cross, Attorneys, Department
of Justice, Civil Rights Division, Appellate Section, for Thomas E.
Perez, Assistant Attorney General, Washington, D.C., for the
United States.
Fay Ng, Assistant Corporation Counsel, for Michael A. Cardozo,
Corporation Counsel, the City of New York Law Department, New
York, NY, for Marty Markowitz and the City of New York.
Amanda J. Cochran-McCall, Assistant Attorney General, General
Litigation Division, for Robert B. O’Keefe, Chief, General
Litigation Division; David C. Mattax, Director of Defense
Litigation; Bill Cobb, Deputy Attorney General for Civil
Litigation; Daniel T. Hodge, First Assistant Attorney General;
Greg Abbott, Attorney General of the State of Texas, Austin, TX.,
for Texas.
Stephen M. Sorrels, Feldman Kieffer, LLP, Buffalo, NY. for
County of Columbia.
Denise A. Hartman and Andrew B. Ayers, Assistant Solicitors
General, f Counsel, for, Barbara D. Underwood, Solicitor General;
Eric T. Schneiderman, Attorney General of the State of New York,
Albany, NY., for the Secretary of State of New York and the New
York State Attorney General.
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Appeal from a judgment of the United States District Court for the Northern District of
New York (Kahn, J.).
UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the appeal is DISMISSED in part and the judgment of the district court is
AFFIRMED.
Appellants John-Joseph Forjone and Christopher Earl Strunk, proceeding pro se, appeal
from the district court’s judgment granting the defendants’ motions to dismiss the complaint
raising various claims related to the National Voter Registration Act (“NVRA”), 42 U.S.C.
§ 1973gg et seq., and the Help America Vote Act (“HAVA”), 42 U.S.C. § 15301 et seq. We
assume the parties’ familiarity with the underlying facts, the procedural history of the case, and
the issues on appeal.
I. Jurisdiction
As a threshold matter, we lack jurisdiction over Strunk’s appeal. A notice of appeal must
“specify the party or parties taking the appeal by naming each one in the caption or body of the
notice . . . .” Fed. R. App. P. 3(c)(1)(A). Forjone’s timely notice of appeal was not filed on
behalf of Strunk, as it did not reference Strunk or even “plaintiffs” more generally, and was
signed by Forjone only. See Fed. R. App. P. 3(c)(2) (“A pro se notice of appeal is considered
filed on behalf of the signer . . . unless the notice clearly indicates otherwise.”). Additionally,
the amended notice of appeal that was filed on behalf of Strunk was untimely, as it was filed
over 60 days after entry of the judgment and over 14 days after Forjone’s timely notice of
appeal. See Fed. R. App. P. 4(a)(1)(B) and 4(a)(3). The requirements set forth in Fed. R. App.
P. 3 and 4 are jurisdictional in nature and may not be waived. Torres v. Oakland Scavenger Co.,
487 U.S. 312, 317 (1988). Strunk’s appeal is therefore dismissed for lack of jurisdiction, leaving
Forjone as the only remaining appellant.
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II. The District Court’s Venue Transfer Order
In his brief, Forjone challenges the order issued by the district court for the Western
District of New York transferring the case to the district court for the Northern District of New
York. Pursuant to 28 U.S.C. § 1404(a), “[f]or the convenience of parties and witnesses, in the
interest of justice, a district court may transfer any civil action to any other district or division
where it might have been brought.” “The determination whether to grant a change of venue
requires a balancing of conveniences, which is left to the sound discretion of the district court.”
Filmline (Cross-Country) Productions, Inc. v. United Artists Corp., 865 F.2d 513, 520 (2d Cir.
1989). “That discretion will not be disturbed upon appeal without a clear showing of abuse.” Id.
Here, the district court did not abuse its discretion in transferring the case to the Northern
District of New York on the ground that a substantially similar case, Loeber v. Spargo, N.D.N.Y.
No. 04-cv-1193 (N.D.N.Y. July 31, 2008) (E.C.F. No. 109), had been previously filed and was
pending in that District. As compared to the instant action, the action in Loeber was brought by
several of the same plaintiffs against several of the same defendants and involved substantially
similar claims. Under these circumstances, the district court reasonably concluded that hearing
the two actions in the same district would be more efficient and convenient for both the court
and the parties, and would minimize the risk of reaching inconsistent results.
III. Decision By a Single Judge
Forjone also challenges the district court’s decision not to hear the case before a three-
judge panel, pursuant to 28 U.S.C. § 2284. Under that section, “[a] district court of three judges
shall be convened . . . when an action is filed challenging the constitutionality of the
apportionment of congressional districts or the apportionment of any statewide legislative body.”
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28 U.S.C. § 2284. Although Section 2284 is jurisdictional, “it has long been held that a single
judge may dismiss a claim that must normally be heard by a three judge court if it is
‘insubstantial.’” Kalson v. Paterson, 542 F.3d 281, 287 (2d Cir. 2008) (collecting cases). The
Supreme Court has described an “insubstantial” claim in this context as one “obviously without
merit or clearly concluded by [the Supreme Court’s] previous decisions.” McLucas v. De
Champlain, 421 U.S. 21, 28 (1975).
Here, although the district court did not explicitly deny the plaintiffs’ request for a three-
judge panel, we affirm the implicit denial of that request on the ground that the plaintiffs’ claims
were insubstantial. See Freedom Holdings, Inc. v. Cuomo, 624 F.3d 38, 49 (2d Cir. 2010) (“We
may affirm the district court’s decision on any ground appearing in the record.”). To the limited
extent that their claims were comprehensible, the plaintiffs appeared to object to the manner in
which federal funds were distributed to states under HAVA. However, the plaintiffs have not
identified any right of action that would entitle them to act on behalf of the federal government,
the State of New York, or any other state in this context. See Sandusky County Democratic
Party v. Blackwell, 387 F.3d 565, 572 (6th Cir. 2004) (“HAVA does not itself create a private
right of action.”). Accordingly, the district court was not required to hear the case before a
three-judge panel pursuant to 22 U.S.C. § 2284.
IV. Decision Granting the Defendants’ Motions to Dismiss
We review de novo a district court’s dismissal of a complaint for lack of standing
pursuant to Fed. R. Civ. P. 12(b)(1), and for failure to state a claim pursuant to Fed. R. Civ. P.
12(b)(6). Selevan v. N.Y. Thruway Auth., 584 F.3d 82, 88 (2d Cir. 2009). We review a district
court’s dismissal of a complaint pursuant to Fed. R. Civ. P. 8(a) for abuse of discretion. See
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Simmons v. Abruzzo, 49 F.3d 83, 87 (2d Cir. 1995). Having conducted an independent review of
the record in light of these principles, we affirm the district court’s judgment for substantially the
same reasons stated by the district court in its well-reasoned decision. Forjone has abandoned
any challenge to the district court’s dispositive order by failing to raise such a challenge in his
brief. See LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995). Accordingly, the
judgment of the district court is hereby AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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