Weaver v. Indymac Federal Bank, FSB

11-4652
Weaver v. Indymac Fed. Bank, FSB
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 TO 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 21st day of November, two thousand twelve.
Present:
JOHN M. WALKER, JR.,
ROBERT A. KATZMANN,
DEBRA ANN LIVINGSTON,
Circuit Judges.
________________________________________________________
EVERETTE WEAVER,
Plaintiff-Appellant,
v. No. 11-4652
INDYMAC FEDERAL BANK, FSB, Now Known As ONE
WEST BANK, FSB, f/k/a INDYMAC BANK, FSB,
Defendant-Appellee,
HOULIHAN LAWRENCE REAL ESTATE, INC., JOHN
OLIVEIRA,
Defendants-Cross Defendants-
Appellees,
JOAN DAVIES,
Defendant-Cross Claimant-
Cross Defendant-Appellee,
CLOVE BRANCH ROAD, LLC, KEVIN P. BARRY, Attorney at Law,
Defendants-Cross Defendants-
Cross Claimants-Appellees.
________________________________________________________
For Plaintiff-Appellant: Everette Weaver, pro se, Hopewell Junction, NY.
For Defendants-Appellees: Scott Kossove, L’Abbate, Balkan, Colavita &
Contini, L.L.P., Garden City, NY, for defendants-
appellees Houlihan Lawrence Real Estate, Inc.,
John Oliveira; Glenn Alan Kaminska, Ahmuty,
Demers & McManus, Albertson, NY, for
defendant-appellee Joan Davies; Kevin Dennehy
Slakas, New York, NY, for defendant-appellee
Clove Branch Road, LLC; Michael Paul Kandler,
Callan, Koster, Brady & Brennan, LLP, New York,
NY, for defendant-appellee Kevin P. Barry. No
appearance for defendant-appellee Indymac Federal
Bank, FSB, Now Known As One West Bank, FSB,
f/k/a Indymac Bank, FSB.
Appeal from a judgment and order of the United States District Court for the Southern
District of New York (Owen, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment and order of the district court is AFFIRMED.
Appellant Everette Weaver, proceeding pro se, appeals from the district court’s orders (1)
granting several defendants’ motions to dismiss or for judgment on the pleadings pursuant to
Federal Rules of Civil Procedure 12(b)(6) and 12(c); (2) dismissing his claims against Indymac
Federal Bank, FSB for lack of subject matter jurisdiction; and (3) directing the district court
clerk to “terminate” his motion to amend his first amended complaint based on Weaver’s failure
to comply with the court’s individual practice rules. Weaver also moves to supplement the
2
record on appeal, and for the Court to take judicial notice of certain documents. We assume the
parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on
appeal.
This Court reviews de novo a district court’s grant of a Rule 12(b)(6) motion to dismiss,
“accepting all factual allegations [in the complaint] as true and drawing all reasonable inferences
in favor of the plaintiff.” Litwin v. Blackstone Grp., L.P., 634 F.3d 706, 715 (2d Cir. 2011). We
review the grant of a Rule 12(c) motion for judgment on the pleadings under the same standard.
See Bank of N.Y. v. First Millennium, Inc., 607 F.3d 905, 922 (2d Cir. 2010). A district court’s
dismissal of a claim for lack of subject matter jurisdiction is also reviewed de novo. See Norex
Petroleum Ltd. v. Access Indus., Inc., 631 F.3d 29, 32 (2d Cir. 2010) (per curiam).
Weaver has forfeited any challenge to the district court’s dismissal of his amended
complaint, as he does not address in his appellate brief any of the issues addressed by the district
court, and, instead, merely reiterates his factual allegations and raises new claims. See LoSacco
v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995) (holding, in the context of a pro se
appeal, that issues not raised in an appellate brief are abandoned); see also Tolbert v. Queens
Coll., 242 F.3d 58, 75 (2d Cir. 2001) (“It is a settled appellate rule that issues adverted to in a
perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed
waived.” (internal quotation marks omitted)). In any event, an independent review of the record
and relevant case law and statutory provisions reveals that the district court properly adopted the
magistrate judge’s recommendations to dismiss Weaver’s claims, and, thus, we affirm the district
court’s judgment for substantially the same reasons stated by the magistrate judge in her
thorough June 2010 and February 2011 reports and recommendations.
3
With respect to Weaver’s motion for leave to amend his amended complaint, this Court
reviews the denial of a motion to amend, which was the practical effect of the district court’s
termination of his motion, for abuse of discretion. See Spiegel v. Schulmann, 604 F.3d 72, 78
(2d Cir. 2010). We conclude that the district court did not abuse its discretion in terminating
Weaver’s motion to amend, especially since he provided no explanation as to why he was unable
to raise those claims earlier. Furthermore, a review of Weaver’s proposed claims reflects that
they are essentially recharacterizations of the claims in his first amended complaint, and, thus,
would suffer from the same defects as those claims. See Bellikoff v. Eaton Vance Corp., 481
F.3d 110, 118 (2d Cir. 2007) (“Leave to amend is especially inappropriate where . . . proposed
amendments [are] merely recycled versions of claims which ha[ve] already fallen victim to a
motion to dismiss.”). Thus, we also affirm the district court’s order terminating Weaver’s
motion to amend.
We have considered all of Weaver’s arguments and find them to be without merit.
Accordingly, we AFFIRM the judgment and order of the district court. It is further ORDERED
that Weaver’s motion to supplement the record and for this Court to take judicial notice is
DENIED, as we generally do not consider materials on appeal that were not before the district
court, see Int’l Bus. Machs. Corp. v. Edelstein, 526 F.2d 37, 45 (2d Cir. 1975), and do not find
that extraordinary circumstances warranting the review of such materials exist in this case.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
4