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stating that district courts "may decline to exercise supplemental jurisdiction over a claim . . . if . . . the district court has dismissed all claims over which it has original jurisdiction"
Summary of this case from Simon v. Keyspan CorporationOpinion
No. 09-4133-pr.
March 8, 2011.
Appeal from a judgment of the United States District Court for the Northern District of New York (Scullin, J.).
UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court be MODIFIED, and, as modified, is AFFIRMED.
Michael A. Ross, pro se, Comstock, NY, for appellant.
Eric T. Schneiderman, Attorney General of the State of New York; Andrea Oser, Deputy Solicitor General; Martin A. Hotvet, Assistant Solicitor General (on the brief), New York, NY, for appellees.
PRESENT: WILFRED FEINBERG, DEBRA ANN LIVINGSTON and RAYMOND J. LOHIER, JR., Circuit Judges.
SUMMARY ORDER
Appellant Michael A. Ross, proceeding pro se, appeals the district court's judgment granting the defendants' motion for summary judgment and dismissing his complaint. We assume the parties' familiarity with the underlying facts and the procedural history of the case.
On appeal, Ross argues only that the defendants are liable for his losses under a theory of fraudulent misrepresentation. Accordingly, he has abandoned the constitutional claims under 42 U.S.C. § 1983 that the magistrate judge and district court read into his amended complaint. See Cruz v. Gomez, 202 F.3d 593, 596 n. 3 (2d Cir. 2000) ("When a litigants-including a pro se litigant — raises an issue before the district court but does not raise it on appeal, the issue is abandoned."). Because the fraudulent misrepresentation claim that Ross raises on appeal solely presents an issue of state law, see Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co. of N.Y., 375 F.3d 168, 186-87 (2d Cir. 2004) (stating the elements of a fraudulent misrepresentation claim under New York law), this claim cannot be brought under § 1983, which "provides a remedy only for the deprivation of `rights, privileges, or immunities secured by the Constitution and laws' of the United States," Gonzaga Univ. v. Doe, 536 U.S. 273, 283, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002).
Although district courts may exercise supplemental jurisdiction over certain state law claims, see 28 U.S.C. § 1367(a), district courts "may decline to exercise supplemental jurisdiction over a claim . . . if . . . the district court has dismissed all claims over which it has original jurisdiction," id. at § 1367(c)(3). In fact, dismissal of pendent state law claims under such circumstances is generally appropriate, as "[n]eedless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law." United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). Thus, where, as here, the district court dismissed a plaintiffs federal law claims and entered judgment in the defendants' favor without explicitly addressing any pendent state law claims, and the plaintiff raises an issue involving a pendent state law claim on appeal, we have modified the district court's judgment to clarify that the dismissal of any asserted state law claim is based on a lack of jurisdiction, and, if appropriate, affirmed the district court's judgment as modified. See, e.g., Powell v. Gardner, 891 F.2d 1039, 1047 (2d Cir. 1989); see also Pugh-Perry v. New York Human Resources Admin, 402 Fed.Appx. 588, 589-90 (2d Cir. 2010) (summary order); Volmar v. North Shore Hosp., 216 Fed. Appx. 136, 137-438 (2d Cir. 2007) (summary order). We therefore direct that, to the extent Ross asserted a fraudulent misrepresentation claim under New York law, the judgment should be modified to clarify that the dismissal of any such claim is based on a lack of jurisdiction.
Accordingly, the judgment of the district court is hereby MODIFIED, and, as modified, is hereby AFFIRMED.