09-2365-cv

Burke v. Acosta

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 “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 14 day of May, two thousand ten. th

PRESENT:

JON O. NEWMAN,

JOHN M. WALKER, JR.,

GERARD E. LYNCH, 

 Circuit Judges. 

___________________________________________________

Brian Burke,

Plaintiff-Appellant, 

 v. No. 09-2365-cv

Solomon Acosta, Fascore/Great West, MTA/NYC Transit 

Authority,

Defendants-Appellees.

____________________________________________________

FOR APPELLANT: Brian Burke, pro se, New York, New York.

FOR APPELLEES FASCORE/

GREAT WEST: Virginia Shea (Michael J. Zaretsky, on the

brief), Chorpenning, Good, Carlet & Garrison

New York, New York.
2

FOR APPELLEES MTA/NYC 

TRANSIT AUTHORITY: Ching Wah Chin, Associate Counsel, for

James B. Henly, General Counsel for the

Metropolitan Transportation Authority, New

York, New York.

1 Appeal from a judgment of the United States District Court for the Southern District

2 of New York (Castel, J.).

3 UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED,

4 AND DECREED that the judgment of the district court be AFFIRMED.

5 Brian Burke, pro se, appeals from the district court’s April 2009 judgment

6 dismissing his complaint. We assume the parties’ familiarity with the underlying facts and

7 the procedural history of the case.

8 As an initial matter, “we construe notices of appeal liberally, taking the parties’

9 intentions into account.” Sahu v. Union Carbide Corp., 548 F.3d 59, 65 (2d Cir. 2008)

10 (internal quotation marks omitted). Here, we liberally construe Burke’s pro se notice of

11 appeal to request review of the following district court orders: the August 2008 order

12 granting the Defendants-Appellees’ motions to dismiss Burke’s amended complaint, the

13 March 2009 order denying Burke’s motions for leave to file second and third amended

14 complaints, and the April 2009 order denying both Burke’s motion for reconsideration of

15 the March 2009 order and his motion for leave to file a fourth amended complaint. 

16 However, we do not infer from Burke’s notice of appeal, which indicates that he appeals

17 the April 2009 judgment, any intent to appeal the district court’s subsequent May 2009

18 denial of Burke’s second motion for reconsideration. See id. at 65-66 (“[O]ur appellate

19 jurisdiction depends on whether the intent to appeal from a decision is clear on the face of,

20 or can be inferred from, the notice[] of appeal.”) (internal quotation marks and brackets
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1 omitted).

2 We review de novo a district court’s dismissal of a complaint for lack of subject

3 matter jurisdiction or for failure to state a claim upon which relief may be granted,

4 construing the complaint liberally, “accepting all factual allegations in the complaint as

5 true, and drawing all reasonable inferences in the plaintiff's favor.” Shomo v. City of New

6 York, 579 F.3d 176, 183 (2d Cir. 2009) (internal quotation marks omitted). A complaint

7 must plead “enough facts to state a claim to relief that is plausible on its face.” Bell

8 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A pleading that offers ‘labels and

9 conclusions’ . . . will not do. Nor does a complaint suffice if it tenders ‘naked assertions’

10 devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009),

11 quoting Twombly, 550 U.S. at 555, 557 (citation and brackets omitted). Although all

12 factual allegations in the complaint are assumed to be true, this tenet is “inapplicable to

13 legal conclusions.” Id. In determining whether a complaint satisfies the plausibility

14 standard, we construe pro se submissions liberally. See Harris v. Mills, 572 F.3d 66, 72

15 (2d Cir. 2009); see also Shomo, 579 F.3d at 183. 

16 Here, the district court’s August 2008 order properly determined that Burke failed to

17 state a plausible federal claim in his first amended complaint, because although he provided

18 numerous “labels and conclusions,” he made insufficient factual allegations to state a

19 plausible claim. See Iqbal, 129 S. Ct. at 1949; Twombly, 550 U.S. at 555. 

20 The district court identified potential federal claims that Burke might raise in an

21 amended complaint, and the court stayed its order to permit mediation to take place. After

22 mediation failed, Burke moved to file a second and third amended complaint, but he again

23 failed to allege facts sufficient to state a plausible federal claim and failed to establish
 Burke’s Title VII claims merit some discussion. His amended complaint only vaguely 1

referred to a Title VII claim. Honoring its obligation to construe pro se complaints broadly, the

district court identified this possible claim and suggested that Burke make his intentions clearer. 

Along with his proposed Second Amended Complaint (“SAC”), Burke attached a right to sue

letter showing he had exhausted his administrative remedies and that he was authorized to sue,

inter alia, the New York City Transportation Authority (“NYCTA”). Construed liberally, the

SAC and the proposed Third Amended Complaint alleged that FASCore/Great West, Acosta and

Zagajeski violated Title VII, but the amended complaints did not clarify whether any Title VII

retaliation claim was directed at the NYCTA. The district court’s March 2009 Order correctly

dismissed Title VII claims against FASCore/ Great West, Acosta, and Zagajeski. In light of the

district court’s specific instruction to Burke to clarify whether he intended to bring such a claim

against the NYCTA, Burke’s failure to do so waives any such claim.

4

1 complete diversity of the parties, as required for diversity jurisdiction. Accordingly, in its

2 March 2009 order, the district court did not abuse its discretion in denying Burke’s motions

3 for leave to amend his complaint. See Starr v. Sony BMG Music Enter., 592 F.3d 314, 321

4 (2d Cir. 2010) (“We review the denial of leave to amend a complaint for abuse of discretion

5 . . . .”). 

1

6 The district court did not abuse its discretion in its April 2009 order denying

7 Burke’s motion for reconsideration of the March 2009 order, because Burke failed to “point

8 to controlling decisions or data that the court overlooked.” Shrader v. CSX Transp., Inc.,

9 70 F.3d 255, 257 (2d Cir. 1995); see also In re BDC 56 LLC, 330 F.3d 111, 123 (2d Cir.

10 2003). Nor did the district court abuse its discretion in denying Burke leave to file a fourth

11 amended complaint, given that the proposed complaint was “merely [a] recycled version[]”

12 of the previously proposed amended complaints. Bellikoff v. Eaton Vance Corp., 481 F.3d

13 110, 118 (2d Cir. 2007). Moreover, the district court properly denied Burke leave to amend

14 because amendment would have been futile. See Foman v. Davis, 371 U.S. 178, 182

15 (1962); Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 126 (2d Cir. 2008).

16
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1 On appeal, Burke primarily argues that the Defendants-Appellees breached one or

2 more contracts. However, having found no basis for subject matter jurisdiction, the district

3 court’s April 2009 order properly declined to exercise supplemental jurisdiction over

4 Burke’s state law claims. See 28 U.S.C. § 1367; Valencia ex rel. Franco v. Lee, 316 F.3d

5 299, 304-05 (2d Cir. 2003).

6 We have reviewed Burke’s remaining arguments on appeal, including his challenge

7 to the constitutionality of motions to dismiss, and conclude that they are without merit.

8 For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

9 FOR THE COURT:

10 Catherine O’Hagan Wolfe, Clerk

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