Tsimmer v. Quarantillo ( 2009 )

08-2804-cv
Tsimmer v. Quarantillo et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION
TO SUMMARY ORDERS FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY THIS COURT’S LOCAL RULE 32.1 AND FEDERAL RULE OF
APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A
LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION
APPEARS, AT LEAST ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX
OR BE ACCOMPANIED BY THE NOTATION: (SUMMARY ORDER). A PARTY CITING
A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER TOGETHER WITH
THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT
REPRESENTED BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN
ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF
FEE (SUCH AS THE DATABASE AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV/).
IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE ORDER ON
SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE
AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.
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 24 th day of November, two thousand nine.
5
6 PRESENT: ROBERT D. SACK,
7 BARRINGTON D. PARKER,
8 RICHARD C. WESLEY,
9 Circuit Judges.
10
11
12 ________________________________________________
13
14 Leo Tsimmer,
15
16 Plaintiff-Appellant,
17
18 v. 08-2804-cv
19
20 Director Andrea Quarantillo, New York District Director of the
21 United States Citizenship and Immigration Services; Director
1 Ruth A. Dorochoff, Chicago District of Director of the United
2 States Citizenship and Immigration Services; Officer-in-Charge
3 Kate Leopole, Milwaukee Sub-Office, United States Citizenship
4 and Immigration Services; Secretary Janet Napolitano, of the
5 Department of Homeland Security; Acting Deputy Director
6 Michael Aytes, of the United States Citizenship and
7 Immigration Services; Department of Homeland Security; U.S.
8 Citizenship and Immigration Services; and Acting U.S. Attorney
9 Lev Dassin, 1
10
11 Defendants-Appellees.
12 ________________________________________________
13
14 APPEARING FOR PLAINTIFF-APPELLANT: D AVID K WANG S OO K IM,
15 (Matthew L.
16 Guadagno, Kerry W.
17 Bretz, and Jules
18 E. Coven, on the
19 brief) Bretz &
20 Coven, LLP, New
21 York, NY
22
23 APPEARING FOR DEFENDANTS-APPELLEES: F. J AMES L OPREST,
24 J R., Special
25 Assistant United
26 States Attorney,
27 and Ross E.
28 Morrison,
29 Assistant United
30 States Attorney
31 (for Lev L.
32 Dassin, Acting
33 United States
34 Attorney for the
35 Southern District
36 of New York), New
37 York, NY
1
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), the public officers who have ceased to hold
office are removed and the public officers’ successors
are automatically substituted.
2
1
2 Appeal from the United States District Court for the
3 Southern District of New York (McMahon, J.).
4
5 UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED,
6 AND DECREED that the judgment of said District Court be and
7 hereby is AFFIRMED:
8
9 Appellant Leo Tsimmer (“Tsimmer”) appeals from a final
10 judgment entered by the United States District Court for the
11 Southern District of New York (McMahon, J.) on April 25,
12 2008, dismissing Tsimmer’s complaint for lack of subject
13 matter jurisdiction. We assume the parties' familiarity
14 with the underlying facts, the procedural history of the
15 case, and the issues on appeal.
16 In our review of a dismissal of a complaint for lack of
17 subject matter jurisdiction, we review the District Court’s
18 factual findings for clear error and legal conclusions de
19 novo. Wake v. United States, 89 F.3d 53, 57 (2d Cir. 1996).
20 We AFFIRM for the substantive reasons detailed in the
21 District Court’s opinion.
22
23 FOR THE COURT:
24 Catherine O’Hagan Wolfe,
25 Clerk
26
27 By:_______________________
3