Whitfield v. McCabe, Weisberg & Conway, P.C. ( 2021 )

20-590-cv
Whitfield v. McCabe, Weisberg & Conway, P.C.
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
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
25th day of March, two thousand twenty one.
Present: ROSEMARY S. POOLER,
RICHARD J. SULLIVAN,
MICHAEL H. PARK,
Circuit Judges.
_____________________________________________________
LORREN V. WHITFIELD, SETTLOR/TRUSTEE,
Plaintiff-Appellant,
v. 20-590-cv
McCABE, WEISBERG & CONWAY, P.C.,
Defendant-Appellee. 1
_____________________________________________________
Appearing for Appellant: Lorren V. Whitfield, pro se, Brooklyn, N.Y.
Appearing for Appellee: Melissa S. Dicerbo, McCabe, Weisberg & Conway, LLC, New
Rochelle, N.Y.
Appeal from the United States District Court for the Eastern District of New York (Kuntz, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
1
The Clerk of the Court is directed to amend the caption as above.
Lorren Whitfield, proceeding pro se, appeals the district court’s judgment dismissing his
complaint for lack of subject-matter jurisdiction pursuant to Federal Rule of Civil Procedure
12(h)(3) and failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6).
Whitfield sued McCabe, Weisberg & Conway, P.C. (“McCabe”) and others in connection with
state-court foreclosure and eviction actions and the defendants’ other efforts to collect on the
underlying note. We assume the parties’ familiarity with the underlying facts, procedural
history, and specification of issues for review.
“[W]e liberally construe pleadings and briefs submitted by pro se litigants, reading such
submissions to raise the strongest arguments they suggest,” McLeod v. Jewish Guild for the
Blind, 864 F.3d 154, 156 (2d Cir. 2017) (internal quotation marks and alteration omitted), but pro
se appellants must still comply with Federal Rule of Appellate Procedure 28(a), which “requires
appellants in their briefs to provide the court with a clear statement of the issues on appeal.”
Moates v. Barkley, 147 F.3d 207, 209 (2d Cir. 1998). We “normally will not[] decide issues that
a party fails to raise in his or her appellate brief.” Id. Here, Whitfield’s appellate brief does not
address the bases for the district court’s ruling, which were that his challenge to the state-court
judgments was barred by the Rooker-Feldman doctrine, and that he failed to allege sufficient
facts in support of his claim under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C.
§§ 1692-1962p. He has thus forfeited any such challenges. See LoSacco, 71 F.3d at 93.
The arguments Whitfield did raise in his brief do not provide a basis for reversal.
Dismissing a complaint pursuant to Federal Rule of Civil Procedure 12 does not violate the
constitutional right to a jury trial. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(discussing standards for dismissing a complaint prior to trial pursuant to Fed. R. Civ. P.
12(b)(6)). Whitfield’s claims about his legal status as a trust, indigenous person, or religious
consumer have no legal basis. The defendants were not required to answer the complaint because
the district court dismissed it sua sponte, just as McCabe was not required to serve a scheduling
order on appeal because this Court entered a default scheduling order and sent a copy to
Whitfield. Finally, although Whitfield claimed he never received a response to his brief, an
attorney for McCabe certified in October 2020 that a copy of its brief was served on Whitfield by
mail.
We have considered the remainder of Whitfield’s arguments and find them to be without
merit. Accordingly, the order of the district court hereby is AFFIRMED. Each side shall bear its
own costs.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
2