19-161-cv

Weisshaus v. Port Authority

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 Thurgood Marshall United States Courthouse, 40 Foley Square, in 

the City of New York, on the 28thday of May, two thousand twenty.

PRESENT: BARRINGTON D. PARKER,

DENNY CHIN,

SUSAN L. CARNEY,

Circuit Judges.

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YOEL WEISSHAUS,

Plaintiff-Appellant,

-v- 19-161-cv

PORT AUTHORITY OF NEW YORK & NEW 

JERSEY,

Defendant-Appellee,

NEW YORK STATE, NEW YORK STATE 

ASSEMBLY, NEW YORK STATE SENATE, 

STATE OF NEW JERSEY, NEW JERSEY 

STATE LEGISLATOR, NEW JERSEY STATE 

GENERAL ASSEMBLY, NEW JERSEY STATE 

SENATE, JOHN DOES 1 THROUGH 20, 
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JANE DOES 1 THROUGH 20, 

 Defendants.

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FOR PLAINTIFF-APPELLANT: YOEL WEISSHAUS, pro se, New Milford, New 

Jersey.

FOR DEFENDANT-APPELLEE: KATHLEEN G. MILLER, The Port 

Authority of New York and New Jersey, New 

York, New York.

Appeal from the United States District Court for the Southern District of 

New York (Eaton, J.).1

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED in 

part and VACATED in part, and the action is REMANDED for further proceedings 

consistent with this order. 

Plaintiff-appellant Yoel Weisshaus, proceeding pro se, sued defendantappellee Port Authority of New York and New Jersey (the "Port Authority"), claiming, 

inter alia, that toll increases for the Port Authority's river crossings violated his right to 

travel. His complaint was sua sponte dismissed in 2011. On appeal, we affirmed the 

dismissal of all claims, except we remanded for the district court to consider whether 

Weisshaus had adequately pleaded a dormant Commerce Clause claim. See Weisshaus 

1 Judge Richard K. Eaton, of the United States Court of International Trade, sitting

by designation.
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v. Port Auth. of N.Y. & N.J., 497 F. App'x 102, 104-05 (2d Cir. 2012). We noted that the 

district court could, in its discretion, stay the case pending resolution of a similar case 

brought against the Port Authority by AAA Northeast and other AAA entities 

(collectively, "AAA"). Id. at 105.

On remand, in an amended complaint, Weisshaus asserted three claims 

under the dormant Commerce Clause based on: (1) the setting of tolls to fund projects 

unconnected to the Port Authority's "interdependent transportation system" ("ITN"); 

(2) the discount given to E-ZPass users as compared to those who pay tolls in cash; and 

(3) the setting of tolls to fund future projects. He also asserted other claims not based 

on the dormant Commerce Clause. The Port Authority moved to dismiss the new 

complaint for failure to state a claim, or to stay the case pending decision in the AAA 

case. The Port Authority provided exhibits from the AAA case in support. The district 

court stayed Weisshaus's case until summary judgment was granted for the Port 

Authority in the AAA case. D. Ct. Dkt. No. 56; see also AAA Ne. v. Port Auth. of N.Y. & 

N.J. ("AAA"), 221 F. Supp. 3d 374, 396 (S.D.N.Y. 2016). After the stay was lifted, 

Weisshaus moved to file a second amended complaint. The district court denied that 

motion. It considered converting the Port Authority's motion to dismiss to a motion for 

summary judgment, but did not do so; in the end, it granted the Port Authority's 

motion to dismiss, relying in part on factual findings the court had made in AAA.
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This appeal followed. We assume the parties' familiarity with the 

underlying facts, the procedural history, and the issues on appeal.

I. Standards of Review

We review de novo a district court's dismissal for failure to state a claim. 

Smith v. Hogan, 794 F.3d 249, 253 (2d Cir. 2015). While we ordinarily "review denial of 

leave to amend under an abuse of discretion standard, when the denial of leave to 

amend is based on a legal interpretation, such as a determination that amendment 

would be futile, a reviewing court conducts a de novo review." Id. (internal quotation 

marks and alterations omitted) (italics added).

II. Non-ITN Projects Claim

In deciding a motion to dismiss for failure to state a claim, this Court (and 

the district court) should not consider matters outside the pleadings. See Nakahata v. 

N.Y.-Presbyterian Healthcare Sys., Inc., 723 F.3d 192, 202 (2d Cir. 2013). Courts must limit 

their consideration to: (1) "the factual allegations in the . . . complaint, which are 

accepted as true"; (2) "documents attached to the complaint as an exhibit or 

incorporated in it by reference"; (3) "matters of which judicial notice may be taken"; or 

(4) "documents either in plaintiff['s] possession or of which plaintiff[] had knowledge 

and relied on in bringing suit." Roth v. CitiMortgage Inc., 756 F.3d 178, 180 (2d Cir. 2014) 

(internal quotation and alterations marks omitted).
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As for judicial notice, Federal Rule of Evidence 201(b) provides that courts 

may take judicial notice only of facts outside the trial record that are "not subject to 

reasonable dispute." Fed. R. Evid. 201(b). "Such facts must either be (1) generally 

known within the territorial jurisdiction of the trial court or (2) capable of accurate and 

ready determination by resort to sources whose accuracy cannot reasonably be 

questioned." Int'l Star Class Yacht Racing Ass'n v. Tommy Hilfiger U.S.A., Inc., 146 F.3d 

66, 70 (2d Cir. 1998) (internal quotation marks omitted). "A court may take judicial 

notice of a document filed in another court not for the truth of the matters asserted in 

the other litigation, but rather to establish the fact of such litigation and related filings." 

Id. (internal quotation marks omitted). "Facts adjudicated in a prior case do not meet 

either test of indisputability contained in Rule 201(b): they are not usually common 

knowledge, nor are they derived from an unimpeachable source." Id.; see also Liberty 

Mut. Ins. Co. v. Rotches Pork Packers, Inc., 969 F.2d 1384, 1388-89 (2d Cir. 1992) (noting

that the district court overstepped the bounds of judicial note when it relied on 

a finding of fact from a bankruptcy court order).

"[W]here matter outside the pleadings is offered and not excluded by the 

trial court, the motion to dismiss should be converted to a motion for summary 

judgment." Nakahata, 723 F.3d at 202-03; see also Fed. R. Civ. P. 12(d) ("If, on a motion 

under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not 

excluded by the court, the motion must be treated as one for summary judgment under 
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Rule 56. All parties must be given a reasonable opportunity to present all the material 

that is pertinent to the motion."). However, "reversal for lack of conversion is not 

required unless there is reason to believe that the extrinsic evidence actually affected the 

district court's decision and thus was not at least implicitly excluded." Amaker v. Weiner, 

179 F.3d 48, 51 (2d Cir. 1999).

We conclude that the district court erred in dismissing the non-ITN 

projects claim. The Port Authority submitted with its motion evidence produced in 

AAA. The Port Authority relied on this evidence for the proposition that its ITN system 

was unprofitable. The district court did not convert the motion to one for summary 

judgment, but nonetheless cited to factual findings in the AAA decision. In doing so, 

the district court apparently believed it could take judicial notice of the factfinding in

AAA. For instance, in examining whether revenues were diverted to non-ITN projects, 

the court described the findings in AAA and then concluded:

Faced by the full weight of these facts, Weisshaus has not 

shown that his allegations of fact could lead the court to 

reasonably find the Port Authority liable on facts that have 

already been determined to foreclose liability. Thus, 

plaintiff’s claim that portions of the 2011 Toll Increase are 

being diverted to projects not functionally related to the ITN 

fails to state a claim under the dormant Commerce Clause. 

Because the court previously decided that there were no toll 

revenues that could have been diverted to projects outside of 

the ITN, plaintiff’s claim that the 2011 Toll Increase is being 

used to fund non-ITN projects . . . necessarily fails to allege 

facts sufficient to satisfy the pleading standard.

S. App'x at 29.
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The findings in AAA, however, were not subject to judicial notice, and 

Weisshaus disputed or attempted to distinguish a number of facts drawn from those 

cases that were material to the decision to dismiss the non-ITN projects claim in this 

case. Because that use of facts from AAA was error, the matter is remanded for the 

district court to convert the motion to one for summary judgment, in whole or in part, 

and to permit Weisshaus an opportunity to submit evidence in opposition to the 

motion. Of course, the district court is free, upon such conversion, to consider the 

evidentiary materials submitted by the Port Authority. We express no opinion as to the 

merits of Weisshaus's claim.

III. Points That Are Affirmed

Despite the error discussed above, there are aspects of the district court's 

decision that we affirm.

A. Other Dormant Commerce Clause Claims

Weisshaus argues that the Port Authority's cash toll surcharge violates the 

dormant Commerce Clause because it "penalize[es] drivers for not having E-ZPass." 

Appellant's Br. at 49. He contends that the district court erred when it considered the 

benefits that E-ZPass confers on all drivers -- that is, better traffic flow -- because the 

court "stepped outside the four corners of the complaint[]" to make such a finding. 

Appellant's Br. at 51. We disagree. Weisshaus attached a Port Authority press release 

to his amended complaint, which explained the Port Authority's reason for discounting 
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the toll price for E-ZPass users: to decrease traffic congestion. In nearly a decade of 

litigation, Weisshaus has never contended that this benefit was inauthentic, nor does he 

do so on appeal. Accordingly, the district court appropriately relied on the documents 

incorporated into Weisshaus's amended complaint, and it did not err when it dismissed 

his cash toll surcharge claim.

Similarly, we affirm the district court's dismissal of Weisshaus's future 

projects claim, also raised under the dormant Commerce Clause. There, he argues that 

the Port Authority cannot raise toll prices "to fundraise revenues for future facilities, 

years in advance" because it may never deliver a benefit to those paying the increased 

rate. Appellant's Br. at 54. When determining whether a fee charged by a government 

entity violates the Commerce Clause, we consider whether the fee "confer[s] an actual 

or potential benefit" on those who pay. See Bridgeport & Port Jefferson Steamboat Co. v. 

Bridgeport Port Auth., 567 F.3d 79, 87 (2d Cir. 2009) (emphasis added). A fee is 

permissible if it supports a project with "at least a functional relationship to facilities 

used by the fee payers." Id. (internal quotation marks omitted). Here, the Port 

Authority plans to use the funds to "maintain and modernize the bridges and tunnels of 

the ITN," Appellee's Br. at 23, which satisfies the "functional relationship" requirement, 

see Bridgeport, 567 F.3d at 87. Accordingly, the district court did not err in dismissing 

Weisshaus's future projects claim.
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B. Scope of Our Prior Mandate

"The scope of a mandate may extend beyond express holdings, and 

precludes relitigation both of matters expressly decided [and] . . . impliedly resolved by 

the appellate court." In re Coudert Bros. LLP, 809 F.3d 94, 99 (2d Cir. 2015) (internal 

quotation marks and alterations omitted). "A mandate, therefore, may expressly 

dispose of certain issues raised on appeal, or if the disposition of an issue is necessarily 

implied by our decision, a mandate may also foreclose such an issue from being 

considered by the lower court." Id. (internal quotation marks omitted). "The district 

court must follow both the specific dictates of the remand order as well as the broader 

spirit of the mandate." Id. (internal quotation marks omitted).

Here, our remand order directed the district court to "analyze the 

adequacy of Weisshaus's pleadings with respect to a dormant Commerce Clause claim 

by applying the standard the Supreme Court set out . . . for analyzing the 

reasonableness of fees charged for use of state-provided facilities." Weisshaus, 497 F. 

App’x at 105. We instructed the district court "to determine in the first instance whether 

Weisshaus has adequately pleaded such a claim or should be granted leave to amend 

the claim." Id. at 104-05. We then affirmed the dismissal of Weisshaus's claims in all 

other respects. Id. at 106. To the extent that Weisshaus attempted on remand to raise 

claims other than the dormant Commerce Clause, the district court was correct to 

dismiss them as beyond the scope of this Court's mandate. 
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C. Minimum Wage Claim

In his original complaint, Weisshaus asserted that the post-2011 toll rate 

"exceeds the minimum wage guideline of what a person under such income conditions 

can afford . . . . Thus, these tolls are targeted to restrict minimum wage earners the right 

to travel." Our prior panel affirmed the dismissal of Weisshaus's right-to-travel claim, 

stating that "travelers do not have a constitutional right to the most convenient form of 

travel, and minor restrictions on travel simply do not amount to the denial of a 

fundamental right." Weisshaus, 497 F. App’x at 104 (internal quotation marks omitted).

In his amended complaint, Weisshaus made essentially the same 

allegation that the toll was prohibitively expensive for a minimum wage earner, but 

instead presented it as the foundation of a dormant Commerce Clause claim. He 

asserted that the toll rate's chilling effect on travel for prospective minimum wage 

earners discriminated against interstate commerce. An independent review of the 

record and relevant case law reveals that the district court properly held that this claim 

fares no better when pursued under the Commerce Clause.

IV. Leave to Amend

The district court's denial of Weisshaus's motion to amend the complaint 

was based, at least in part, on the factfinding it drew from AAA, which Weisshaus 

disputed. See S. App'x at 34 ("To the extent that plaintiff's Proposed Second Amended 

Complaint claims that the ITN was operating at a profit, and therefore, the need for the 
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2011 Toll Increase was motivated by an 'ulterior motive of setting the tolls at its highest 

level,' the court notes that it has previously addressed the issue in AAA . . . ."). The 

district court should reconsider its denial of that motion for the reasons discussed 

above.

We have considered all of Weisshaus's remaining arguments and find 

them to be without merit. Accordingly, we AFFIRM the judgment of the district court 

in part, VACATE in part, and REMAND the action for further proceedings consistent 

with this order.

FOR THE COURT: 

Catherine O=Hagan Wolfe, Clerk of Court