Bermudez v. City of New York

14-1125-cv
Bermudez v. City of New York
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 ASUMMARY 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
New York, on the 10th day of April, two thousand fifteen.
PRESENT:
GUIDO CALABRESI,
PETER W. HALL,
Circuit Judges,
JED S. RAKOFF,*
District Judge.
_____________________________________
Fernando Bermudez,
Plaintiff-Appellant,
v. Docket No. 14-1125
City of New York, Michael Lentini, William Fitzpatrick, Daniel Massanova, John Mulalley,
Baker, (First name unknown), Mulcahy, (First name unknown), Various John Does, Who are or
were offices of the New York City Police Department, individually & in their official capacity,
Various Jane Does, Who are or were Offices of the New York City Police Department,
individually,
Defendants-Appellees,
Robert M. Morgenthau, individually & in his official capacity as former District Attorney of New
York County, Nancy Ryan, individually & in her official capacity as Assistant Attorneys of New
York County, James Rodriguez, individually & in his official capacity as Assistant Attorneys of
New York County, Robin McCabe, individually & in their official capacity as Assistant Attorneys
of New York County, Mary C. Farrington, individually & in their official capacity, Hilary Hassler,
* Hon. Jed S. Rakoff, of the United States District Court for the Southern District of New York,
sitting by designation.
individually & in their official capacity as Assistant Attorneys of New York County, Herculano
Izquierdo, individually & in their official capacity as Assistant Attorneys of New York County,
Defendants.
______________________________________________
FOR PLAINTIFF-APPELLANT: Brian J. Isaac, Pollack, Pollack, Isaac, & De
Cicco, LLP, New York, NY
FOR DEFENDANT: Patricia A. Bailey, New York County District
Attorney’s Office, New York, NY
FOR DEFENDANTS-APPELLEES: Karen Griffin, New York City Law
Department, New York, NY
Appeal from an order granting summary judgment in favor of defendants-appellees and
putative appeal from an order dismissing the complaint as to defendant James Rodriguez in the
United States District Court for the Southern District of New York (Preska, C.J.). We consider
here only the issue of whether this court has jurisdiction to consider an appeal from the September
29, 2012 order dismissing all claims against defendant Rodriguez.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that plaintiff’s challenges to the district court’s order issued on September 29, 2012,
granting defendant Rodriguez’s motion to dismiss, are DISMISSED for lack of subject matter
jurisdiction. We assume the parties’ familiarity with the underlying facts and procedural history
of the case.
“Federal Rule of Appellate Procedure 3(c)(1)(B) provides that a notice of appeal ‘must . . .
designate the judgment, order, or part thereof being appealed.’ This requirement is ‘jurisdictional
in nature.’” Swatch Grp. Mgmt. Servcs. Ltd. v. Bloomberg, L.P., 756 F.3d 73, 93 (2d Cir. 2014)
(quoting Gonzalez v. Thaler, 132 S. Ct. 641, 652 (2012)). This court’s jurisdiction to review an
order of the district court “is limited by the wording of the notice” of appeal. New Phone Co., Inc.
v. City of New York, 498 F.3d 127, 130 (2d Cir. 2007). “While ‘we construe notices of appeal
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liberally, taking the parties’ intentions into account,’” Swatch Grp., 756 F.3d at 93 (quoting
Shrader v. CSX Transp., Inc., 70 F.3d 255, 256 (2d Cir. 1995)), “jurisdiction . . . depends on
whether the intent to appeal from that decision is clear on the face of, or can be inferred from, the
notice[] of appeal,” New Phone Co., 498 F.3d at 131. Where the intent to appeal cannot be
inferred from the notice of appeal or its accompanying documents, the court will lack jurisdiction
over the challenged order. Id. at 130 (citing Shrader, 70 F.3d at 256); cf. Mir v. Shah, 569 Fed.
App’x 48, 49 n.2 (2d Cir. 2014) (summary order) (“[A]lthough Mir’s notice of appeal designates
only the order denying reconsideration, his supporting papers attached to his notice address the
district court’s entire dismissal. Construing his notice of appeal liberally, we conclude that Mir
intended to appeal from both orders.”).
Although plaintiff argues in his opening brief that the September 29, 2012 order dismissing
the claims against defendant Rodriguez was improper, he failed to identify that order in his notice
of appeal or any of the accompanying paperwork. The notice identifies, as the order being
appealed from, only “the Order of the Honorable Loretta A. Preska, entered on March 28, 2014,
that granted Defendants’ motion for summary judgment.” Notice of Appeal, A1631. Because
we cannot infer from the notice or its accompanying papers that the September 29, 2012 order was
intended to be challenged on appeal, “we are ‘bar[red] from considering’ an appellate challenge to
that order.” Quanta Specialty Lines Ins. Co. v. Investors Capital Corp., 403 Fed. App’x 530, 532
(2d Cir. 2010) (summary order) (quoting Shrader, 70 F.3d at 256); In re Bugnacki, 528 Fed. App’x
30, 32 (2d Cir. 2013) (summary order) (“The notice’s lack of reference or even allusion to the
district court ruling Bugnacki seeks to challenge means her appeal from that ruling cannot
proceed.”); see also Rosendale v. Mahoney, 496 Fed. App’x 120, 121 (2d Cir. 2012) (summary
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order); Candelaria v. Baker, 464 Fed. App’x 21, 22 (2d Cir. 2012) (summary order); Austin v.
Fischer, 453 Fed. App’x 80, 82 (2d Cir. 2011) (summary order).
We find the parties’ remaining arguments related to the jurisdictional question we address
here to be without merit. The remaining issues related to plaintiff’s challenge to the district
court’s March 28, 2014 order, granting summary judgment in favor of defendants-appellees, will
be resolved by a separate opinion to issue in due course.
Accordingly, we DISMISS that portion of plaintiff’s appeal challenging the order of the
district court issued on September 29, 2012.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
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