Hussein v. Hotel Employees

SUMMARY ORDER

This cause came on to be heard on the record from the United States District Court for the Southern District of New York, and was argued by plaintiff pro se and by counsel for defendants.

ON CONSIDERATION WHEREOF, it is now hereby ordered, adjudged, and decreed that the judgment of said District Court be and it hereby is vacated and that the cross-appeal be and it hereby is dismissed.

Plaintiff pro se Mamdouh Hussein appeals from a judgment of the United States District Court for the Southern District of New York, Shira A. Scheindlin, Judge, granting summary judgment dismissing his complaint alleging violations of the Labor-Management Reporting and Disclosure Act, 29 U.S.C. § 401 et seq. Defendants have cross-appealed, seeking affirmance. For the reasons that follow, we vacate the judgment and remand for further proceedings.

At the oral argument of this appeal, this Court inquired of defense counsel whether either the district court or defendants had given Hussein notice, in accordance with cases such as Vital v. Interfaith Medical Center, 168 F.3d 615 (2d Cir.1999), of the consequences of failing to respond properly to defendants’ motion for summary judgment. Although defense counsel stated his belief that such notice had been given, the documents he has now submitted to this Court in support of that belief do not show the requisite notice. While Hussein responded to the summary judgment motion with certain affidavits, his own affidavit appears merely to reiterate allegations of his complaint, and it is not clear from the record that he was aware of the type of response needed to defeat such a motion.

Accordingly, the judgment of the district court is vacated, and the matter is remanded for the giving of notice and for further proceedings not inconsistent with Vital v. Interfaith Medical Center and the authorities cited therein. See also McPherson v. Coombe, 174 F.3d 276 (2d Cir.1999). We express no view as to the merits of defendants’ summary judgment motion, and nothing in this order forecloses the granting of such relief following the appropriate proceedings on remand.

Defendants’ cross-appeal, filed “solely for the purpose of preserving alternative arguments in support of the Judgment” (Defendants’ brief on appeal at 1), is dismissed as improvidently filed. See generally Great American Audio Corp. v. Metacom, Inc., 938 F.2d 16, 19 (2d Cir.1991) (per curiam) (prevailing party is entitled to urge affirmance on any basis submitted to the district court and supported by the record, including a basis rejected by the court; but the prevailing party is not entitled to cross-appeal).

The judgment of the district court is vacated, and the matter is remanded for further proceedings consistent with the foregoing. The cross-appeal is dismissed.