Scherman v. New York State Banking Department , 443 F. App'x 600 ( 2011 )

10-3868 & 10-3875
Scherman v. N.Y. State Banking Dep’t
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 20th day of October, two thousand eleven.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 JON O. NEWMAN,
9 GERARD E. LYNCH,
10 Circuit Judges.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 DEBORAH ANN SCHERMAN,
14 Plaintiff-Appellant,
15
16 v. 10-3868, 10-3875
17
18 NEW YORK STATE BANKING DEPARTMENT,
19 Defendant-Appelle.
20
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22
23 FOR APPELLANT: Deborah Ann Scherman, pro se,
24 Tobyhanna, PA.
25
26 FOR APPELLEES: Matthew W. Grieco, Assistant
27 Solicitor General, Benjamin N.
28 Gutman, Deputy Solicitor
1
1 General, Barbara D. Underwood,
2 Solicitor General, for Eric T.
3 Schneiderman, Attorney General
4 of the State of New York, New
5 York, NY.
6
7 Appeal from judgments of the United States District
8 Court for the Southern District of New York (Batts, J.).
9
10 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
11 AND DECREED that the judgments of the district court be
12 AFFIRMED.
13
14 Appellant Deborah Ann Scherman, proceeding pro se,
15 appeals from separate district court judgments (1) granting
16 the motion of the New York State Banking Department to
17 dismiss her employment discrimination complaint raising
18 claims under the Americans with Disabilities Act of 1990, 42
19 U.S.C. § 12112 et seq., for lack of subject matter
20 jurisdiction; and (2) sua sponte dismissing for lack of
21 subject matter jurisdiction her employment discrimination
22 complaint raising claims under the Age Discrimination in
23 Employment Act of 1967, 29 U.S.C. § 621 et seq. We assume
24 the parties’ familiarity with the underlying facts, the
25 procedural history of the case, and the issues on appeal.
26
27 In reviewing the dismissal of a complaint for lack of
28 subject matter jurisdiction pursuant to FED. R. CIV. P.
29 12(b)(1), we review factual findings for clear error and
30 legal conclusions de novo. See Morrison v. Nat'l Austl.
31 Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008). Additionally,
32 we review de novo the sua sponte dismissal of a complaint
33 for lack of subject matter jurisdiction. See Digitel, Inc.
34 v. MCI Worldcom, Inc., 239 F.3d 187, 190 (2d Cir. 2001).
35
36 Liberally construed, Scherman’s briefs appear to
37 dispute the district court’s application of Eleventh
38 Amendment state sovereign immunity to bar her claims.
39 Having conducted an independent and de novo review of the
40 record and case law, we affirm the district court’s
41 judgments for substantially the same reasons stated by the
42 district court in its decisions issued in S.D.N.Y. No. 09-
43 cv-2476 and S.D.N.Y. No. 10-cv-1246 and by the magistrate
44 judge in S.D.N.Y. No. 09-cv-2476. Any other challenges to
45 the judgments on appeal have been abandoned. See LoSacco v.
46 City of Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995)
47 (holding that issues not raised in a pro se brief were
2
1 abandoned). Although the district court did not conclude
2 that granting Scherman leave to amend her complaints would
3 have been futile, see Branum v. Clark, 927 F.2d 698, 705 (2d
4 Cir. 1991), we have reached that conclusion independently.
5
6 Accordingly, the judgment of the district court is
7 hereby AFFIRMED.
8
9 Additionally, Scherman’s motion to supplement the
10 record is hereby DENIED, as she has failed to make the
11 required showing for supplementation of the record, see FED.
12 R. APP. P. 10(e)(2), and, in any event, the supplemental
13 documents would not change the result.
14
15
16 FOR THE COURT:
17 CATHERINE O’HAGAN WOLFE, CLERK
18
19
3