Schulz v. Kellner ( 2012 )

11-4894-cv
Schulz v. Kellner
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 22nd day of June, two thousand twelve.
PRESENT: PIERRE N. LEVAL,
REENA RAGGI,
DENNY CHIN,
Circuit Judges.
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ROBERT L. SCHULZ and JOHN LIGGETT,
Plaintiffs-Appellants,
v. No. 11-4894-cv
DOUGLAS KELLNER, Individually and as Commissioner
of the New York State Board of Elections, EVELYN
AQUILA, Individually and as Commissioner of the New
York State Board of Elections, HELENA MOSES
DONAHUE, Individually, JAMES A. WALSH, as
Commissioner of the New York State Board of Elections,
and GREGORY P. PETERSON, as Commissioner of New
York State Board of Elections,
Defendants-Appellees.*
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*
The Clerk of Court is directed to amend the official caption as shown above.
APPEARING FOR APPELLANTS: ROBERT L. SCHULZ, pro se, Queensbury, New
York (John Liggett, pro se, New York, New
York, on the brief).
FOR APPELLEES: Paul M. Collins, Deputy Special Counsel, New
York State Board of Elections, Albany, New
York.
Appeal from an order of the United States District Court for the Northern District of
New York (Lawrence E. Kahn, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the order entered on October 13, 2011, is AFFIRMED.
Plaintiffs Robert L. Schulz and John Liggett, proceeding pro se, appeal the denial of
their motion for reconsideration of the dismissal of their amended complaint for lack of
standing and mootness.1 We review the denial of Fed. R. Civ. P. 59(e) and 60(b) motions
for abuse of discretion, see Johnson v. Univ. of Rochester Med. Ctr., 642 F.3d 121, 125 (2d
Cir. 2011) (Rule 60(b)); Schwartz v. Liberty Mut. Ins. Co., 539 F.3d 135, 150 (2d Cir. 2008)
(Rule 59(e)), and the dismissal of a complaint for lack of standing and mootness de novo, see
Amador v. Andrews, 655 F.3d 89, 95 (2d Cir. 2011) (mootness); Selevan v. N.Y. Thruway
Auth., 584 F.3d 82, 88 (2d Cir. 2009) (standing). We assume the parties’ familiarity with the
1
Because plaintiffs’ notice of appeal states that they appeal only the denial of
reconsideration, we lack jurisdiction to review arguments decided by the district court in the
underlying dismissal order that were not renewed in plaintiffs’ motion for reconsideration.
See Fed. R. App. P. 3(c)(1)(B); “R” Best Produce, Inc. v. DiSapio, 540 F.3d 115, 121 (2d
Cir. 2008) (holding that court reviewing appeal from denial of reconsideration has
jurisdiction to review arguments decided in the underlying order only if renewed in motion
for reconsideration). Accordingly, we lack jurisdiction to review plaintiffs’ challenges to the
dismissal of their Contracts Clause claim and to the magistrate judge’s confidentiality order.
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underlying facts and record of prior proceedings, which we reference only as necessary to
explain our decision to affirm.
“In order to have standing to bring suit, a plaintiff is constitutionally required to have
suffered (1) a concrete, particularized, and actual or imminent injury-in-fact (2) that is
traceable to defendant’s conduct and (3) likely to be redressed by a favorable decision.”
Woods v. Empire Health Choice, Inc., 574 F.3d 92, 96 (2d Cir. 2009). Plaintiffs alleged that
the New York State Board of Elections’ adoption of voting procedures involving the use of
computers and other machines violated New Yorkers’ rights to have their votes accurately
counted during the 2008 elections, “[d]ue to the enhanced probability and inevitability of
machine error and human fraud during the primaries.” Am. Compl. ¶ 251. Like the district
court, we conclude that the bare allegation of conjectural future harm does not satisfy the
constitutional requirement that plaintiffs allege a concrete and particularized injury-in-fact.
We have considered plaintiffs’ remaining arguments on appeal and conclude that they
are without merit. Accordingly, the order denying reconsideration is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
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