Opinion
No. 10-4058-cv.
June 30, 2011.
Appeal from a judgment and an order of the United States District Court for the Southern District of New York (Daniels, J.; Maas, M.J.).
Joseph Kastner, pro se, Jersey City, N.J., for Plaintiffs-Appellants.
Elina Druker, Special Assistant Corporation Counsel, New York, N.Y. (Michael A. Cardozo, Corporation Counsel, on the brief), for the City Defendants-Appellees City of New York, Comptroller of the City of New York and Corporation Counsel of the City of New York.
Peter James Johnson Jr.; Leahey Johnson, P.C., New York, N.Y., for Defendant-Appellee Allstate Insurance Company.
James S. Dobis; Dobis, Russell Peterson, P.C., New York, N.Y., for Defendant Appellee Ford Motor Company.
Edward J. Savidge; Brand, Glick Brand, P.C., Garden City, N.Y., for Defendants-Appellees Mario Lopez, Mystic Leasing Service Corp., Hedi Kodoglannis, and Gus Kodoglannis.
Patrick J. Hughes (Jennifer Critchley, on the brief); Connell Foley, LLP, New York, N.Y., for Defendant-Appellee Hereford Insurance Company.
Randi F. Knepper; McElroy, Deustch, Mulvaney Carpenter, LLP, Newark, N.J., for Defendant-Appellee Continental Casualty Company.
SUMMARY ORDER
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment and order of the district court are AFFIRMED.
Plaintiff-Appellant Joseph Kastner, proceeding pro se, appeals the district court's: (1) judgment adopting the magistrate judge's report and recommendation and thereby dismissing Kastner's second amended complaint principally for failure to state a claim upon which relief may be granted; and (2) order denying Kastner's motion for reconsideration and leave to file a third amended complaint. 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 the district court's dismissal of a complaint under Federal Rule of Civil Procedure 12(b)(6), "construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiffs favor." Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). This Court reviews for abuse of discretion a district court order denying Rule 59(e) and 60(b) motions. See Transaero, Inc. v. La Fuerza Aerea Boliviano, 162 F.3d 724, 729 (2d Cir. 1998) (Rule 60(b)); Baker v. Dorfman, 239 F.3d 415, 422 (2d Cir. 2000) (Rule 59(e)).
In this case, because Kastner's arguments on appeal fail to address the district court's bases for dismissing his claims and denying his motion for reconsideration and leave to amend, Kastner has waived any such challenge. See Norton v. Sam's Club, 145 F.3d 114, 117 (2d Cir. 1998) ("Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal."); LoSacco v. City of Middletoum, 71 F.3d 88, 92-93 (2d Cir. 1995) (holding that issues not raised by pro se litigant in appellate brief were abandoned). Accordingly, we limit our review to the issues that Kastner raised in his opening brief.
Kastner argues for the first time on appeal that the judges below were biased against him and that the magistrate judge should have questioned him on the confusing points of his second amended complaint. The well-established general rule is that a court of appeals will not consider an issue raised for the first time on appeal. See Singleton v. Wulff, 428 U.S. 106, 120-21, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976); see also Virgilio v. City of New York, 407 F.3d 105, 116 (2d Cir. 2005). The rule is not an absolute bar to raising new issues on appeal; the Court may, in its discretion, disregard the general rule when necessary to remedy manifest or obvious injustice. See Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 527 (2d Cir. 1990). We conclude that there is no reason to disregard the general rule that we will not review arguments raised for the first time on appeal, as Kastner has not demonstrated that review of these claims is necessary to remedy manifest injustice. In any event, Kastner has not articulated any meaningful basis for his belief that the judges below were biased against him. The fact that motions were not decided in his favor is not a sufficient basis to support a claim of bias. See, e.g., Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994) ("judicial rulings alone almost never constitute a valid basis for a bias or partiality recusal motion," and "opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings . . . do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible").
Kastner's remaining procedural arguments do not provide any basis for disturbing the orders below. First, there is nothing in the record to suggest that the district court intentionally failed to mail Kastner a copy of its dismissal order. In any event, Kastner fails to show how he was prejudiced by not receiving that order any earlier than he did, and we note that he was able to timely move for reconsideration of that order. Second, there is no merit to Kastner's argument that the magistrate judge erred by failing to read all of Kastner's submissions. In order to survive a motion to dismiss under Rule 12(b)(6), a complaint must, among other things, provide "a plain statement of the claim . . . [that] give[s] the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests." Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007) (internal quotation marks omitted) (alterations in original). A review of the magistrate judge's report and recommendations reveals that the magistrate judge expended considerable effort in reviewing the numerous allegations in Kastner's second amended complaint.
We have considered Appellant's remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment and order of the district court.