14-1125-cv 

Bermudez v. City of New York

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 ASUMMARY ORDER@). A PARTY CITING TO 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 10th day of April, two thousand fifteen. 

PRESENT: 

GUIDO CALABRESI,

PETER W. HALL, 

Circuit Judges,

JED S. RAKOFF,*

District Judge. 

_____________________________________ 

Fernando Bermudez, 

 Plaintiff-Appellant, 

 v. Docket No. 14-1125 

City of New York, Michael Lentini, William Fitzpatrick, Daniel Massanova, John Mulalley, 

Baker, (First name unknown), Mulcahy, (First name unknown), Various John Does, Who are or 

were offices of the New York City Police Department, individually & in their official capacity, 

Various Jane Does, Who are or were Offices of the New York City Police Department, 

individually, 

 Defendants-Appellees, 

Robert M. Morgenthau, individually & in his official capacity as former District Attorney of New 

York County, Nancy Ryan, individually & in her official capacity as Assistant Attorneys of New 

York County, James Rodriguez, individually & in his official capacity as Assistant Attorneys of 

New York County, Robin McCabe, individually & in their official capacity as Assistant Attorneys 

of New York County, Mary C. Farrington, individually & in their official capacity, Hilary Hassler, 

 

* Hon. Jed S. Rakoff, of the United States District Court for the Southern District of New York, 

sitting by designation.
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individually & in their official capacity as Assistant Attorneys of New York County, Herculano 

Izquierdo, individually & in their official capacity as Assistant Attorneys of New York County, 

 Defendants. 

______________________________________________ 

FOR PLAINTIFF-APPELLANT: Brian J. Isaac, Pollack, Pollack, Isaac, & De 

Cicco, LLP, New York, NY 

FOR DEFENDANT: Patricia A. Bailey, New York County District 

Attorney’s Office, New York, NY 

FOR DEFENDANTS-APPELLEES: Karen Griffin, New York City Law 

Department, New York, NY 

 Appeal from an order granting summary judgment in favor of defendants-appellees and 

putative appeal from an order dismissing the complaint as to defendant James Rodriguez in the 

United States District Court for the Southern District of New York (Preska, C.J.). We consider 

here only the issue of whether this court has jurisdiction to consider an appeal from the September 

29, 2012 order dismissing all claims against defendant Rodriguez. 

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

DECREED that plaintiff’s challenges to the district court’s order issued on September 29, 2012, 

granting defendant Rodriguez’s motion to dismiss, are DISMISSED for lack of subject matter 

jurisdiction. We assume the parties’ familiarity with the underlying facts and procedural history 

of the case. 

“Federal Rule of Appellate Procedure 3(c)(1)(B) provides that a notice of appeal ‘must . . . 

designate the judgment, order, or part thereof being appealed.’ This requirement is ‘jurisdictional 

in nature.’” Swatch Grp. Mgmt. Servcs. Ltd. v. Bloomberg, L.P., 756 F.3d 73, 93 (2d Cir. 2014) 

(quoting Gonzalez v. Thaler, 132 S. Ct. 641, 652 (2012)). This court’s jurisdiction to review an 

order of the district court “is limited by the wording of the notice” of appeal. New Phone Co., Inc. 

v. City of New York, 498 F.3d 127, 130 (2d Cir. 2007). “While ‘we construe notices of appeal 
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liberally, taking the parties’ intentions into account,’” Swatch Grp., 756 F.3d at 93 (quoting 

Shrader v. CSX Transp., Inc., 70 F.3d 255, 256 (2d Cir. 1995)), “jurisdiction . . . depends on 

whether the intent to appeal from that decision is clear on the face of, or can be inferred from, the 

notice[] of appeal,” New Phone Co., 498 F.3d at 131. Where the intent to appeal cannot be 

inferred from the notice of appeal or its accompanying documents, the court will lack jurisdiction 

over the challenged order. Id. at 130 (citing Shrader, 70 F.3d at 256); cf. Mir v. Shah, 569 Fed. 

App’x 48, 49 n.2 (2d Cir. 2014) (summary order) (“[A]lthough Mir’s notice of appeal designates 

only the order denying reconsideration, his supporting papers attached to his notice address the 

district court’s entire dismissal. Construing his notice of appeal liberally, we conclude that Mir 

intended to appeal from both orders.”). 

Although plaintiff argues in his opening brief that the September 29, 2012 order dismissing 

the claims against defendant Rodriguez was improper, he failed to identify that order in his notice 

of appeal or any of the accompanying paperwork. The notice identifies, as the order being 

appealed from, only “the Order of the Honorable Loretta A. Preska, entered on March 28, 2014, 

that granted Defendants’ motion for summary judgment.” Notice of Appeal, A1631. Because 

we cannot infer from the notice or its accompanying papers that the September 29, 2012 order was 

intended to be challenged on appeal, “we are ‘bar[red] from considering’ an appellate challenge to 

that order.” Quanta Specialty Lines Ins. Co. v. Investors Capital Corp., 403 Fed. App’x 530, 532 

(2d Cir. 2010) (summary order) (quoting Shrader, 70 F.3d at 256); In re Bugnacki, 528 Fed. App’x 

30, 32 (2d Cir. 2013) (summary order) (“The notice’s lack of reference or even allusion to the 

district court ruling Bugnacki seeks to challenge means her appeal from that ruling cannot 

proceed.”); see also Rosendale v. Mahoney, 496 Fed. App’x 120, 121 (2d Cir. 2012) (summary 
4 

order); Candelaria v. Baker, 464 Fed. App’x 21, 22 (2d Cir. 2012) (summary order); Austin v. 

Fischer, 453 Fed. App’x 80, 82 (2d Cir. 2011) (summary order). 

We find the parties’ remaining arguments related to the jurisdictional question we address 

here to be without merit. The remaining issues related to plaintiff’s challenge to the district 

court’s March 28, 2014 order, granting summary judgment in favor of defendants-appellees, will 

be resolved by a separate opinion to issue in due course. 

Accordingly, we DISMISS that portion of plaintiff’s appeal challenging the order of the 

district court issued on September 29, 2012. 

 FOR THE COURT: 

 Catherine O=Hagan Wolfe, Clerk