Opinion
10-3868, 10-3875
10-20-2011
DEBORAH ANN SCHERMAN, Plaintiff-Appellant, v. NEW YORK STATE BANKING DEPARTMENT, Defendant-Appelle.
FOR APPELLANT: Deborah Ann Scherman, pro se, Tobyhanna, PA. FOR APPELLEES: Matthew W. Grieco, Assistant Solicitor General, Benjamin N. Gutman, Deputy Solicitor General, Barbara D. Underwood, Solicitor General, for Eric T. Schneiderman, Attorney General of the State of New York, New York, NY.
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 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 20th day of October, two thousand eleven. PRESENT: DENNIS JACOBS ,
Chief Judge,
JON O. NEWMAN,
GERARD E. LYNCH,
Circuit Judges.
FOR APPELLANT: Deborah Ann Scherman, pro se,
Tobyhanna, PA.
FOR APPELLEES: Matthew W. Grieco, Assistant Solicitor General, Benjamin N.
Gutman, Deputy Solicitor
General, Barbara D. Underwood,
Solicitor General, for Eric T.
Schneiderman, Attorney General
of the State of New York, New
York, NY.
Appeal from judgments of the United States District Court for the Southern District of New York (Batts, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
AND DECREED that the judgments of the district court be AFFIRMED.
Appellant Deborah Ann Scherman, proceeding pro se, appeals from separate district court judgments (1) granting the motion of the New York State Banking Department to dismiss her employment discrimination complaint raising claims under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12112 et seq., for lack of subject matter jurisdiction; and (2) sua sponte dismissing for lack of subject matter jurisdiction her employment discrimination complaint raising claims under the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. We assume the parties' familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
In reviewing the dismissal of a complaint for lack of subject matter jurisdiction pursuant to FED. R. CIV. P. 12(b)(1), we review factual findings for clear error and legal conclusions de novo. See Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008). Additionally, we review de novo the sua sponte dismissal of a complaint for lack of subject matter jurisdiction. See Digitel, Inc. v. MCI Worldcom, Inc., 239 F.3d 187, 190 (2d Cir. 2001).
Liberally construed, Scherman's briefs appear to dispute the district court's application of Eleventh Amendment state sovereign immunity to bar her claims. Having conducted an independent and de novo review of the record and case law, we affirm the district court's judgments for substantially the same reasons stated by the district court in its decisions issued in S.D.N.Y. No. 09-cv-2476 and S.D.N.Y. No. 10-cv-1246 and by the magistrate judge in S.D.N.Y. No. 09-cv-2476. Any other challenges to the judgments on appeal have been abandoned. See LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995) (holding that issues not raised in a pro se brief were abandoned). Although the district court did not conclude that granting Scherman leave to amend her complaints would have been futile, see Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991), we have reached that conclusion independently.
Accordingly, the judgment of the district court is hereby AFFIRMED.
Additionally, Scherman's motion to supplement the record is hereby DENIED, as she has failed to make the required showing for supplementation of the record, see FED. R. APP. P. 10(e)(2), and, in any event, the supplemental documents would not change the result.
FOR THE COURT:
CATHERINE O'HAGAN WOLFE, CLERK