14

- 1082 Weinstein v. City of New York et al.



## 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 TH E FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION A SUMMARY 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, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 2 New York, on the 20 t h da y of November , two thousand fiftee n. 3 4 PRESENT: 5 DENNIS JACOBS , 6 DEBR A ANN LIVINGSTON , 7 CHRISTOPHER F. DRONEY , 8 Circuit Judges. 9

_____________________________________ 10 11 Martin Weinstein , 12 13 Plaintiff

- Appellant , 14 15 16

v. 14

- 1082 17 18 19 City of New York , et al. , 20 21 Defendants

- Appellee s. 22

_____________________________________ 23 24 FOR PLAINTIFF

- APPELLANT: Martin Weinstein
, pro se , Commack, New York

. 25 26 FOR DEFENDANTS

- APPELLEE S : Pamela Seider Dolgow, F a y Ng, Assistant 27 Corporation Counsel s , for Zachary W. Carter
, 28 Corporation Counsel of the City of New York
, New 29 York, New York

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

New York ( Schofield
, J

. ). 2

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 3

DECREED that the motions to supplement the record are DENIED , and the judgment of the 4

district court is AFFIRMED

. 5

Martin Weinstein
, pro se , appeals the district court ’ s dismissal of his complaint for failure 6

to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6)

. We assume the parties ’ 7
familiarity with the underlying facts, the procedural history of the case, and the issues on appeal

. 8

“We review the grant of a motion to dismiss de novo , accepting as true all factual claims in 9
the complaint and drawing all reasonable inferences in the plaintiff’s favor.” Fink v. Time 10

Warner Cable , 714 F.3d 739, 740

- 41 (2d Cir. 2013) (per curiam) . To withstand a Rule 12(b)(6) 11

motion to dis miss, the complaint must plead “ enough facts to state a claim to relief that is plausible 12

on its face.” Bell Atl

. Corp. v. Twombly , 550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal
, 13

556 U.S. 662, 678 (2009). Although a court must accept as true all factual allegations in the 14
complaint, that requirement is “inapplicable to legal conclusions.” Iqbal , 556 U.S. at 6 78. 15

As t he district court determined
, Weinstein’s federal claims a re time barred

. Weinstein 16
does not contend that his complaint was timely ; rather, h e argues that the statutes of limitation 17

should have been equitably tolled because the defendants prevented him from accessing emails 18

that would have provided factual support for his claim s

. 19
Equitable tolling is available in “rare and exceptional circumstances.” Zerilli

- Edelglass v. 20

N.Y.C. Transit Auth. , 333 F.3d 74, 80 (2d Cir. 2003 ) ( alteration om itted). T he district court did 21

not abuse its discretion by denying equitable tolling

. Weinstein was aware of the injuries 223 underlying his cause s of action as soon as he resigned , and actively litigated claims based on these 1

same facts in state court

. See Pani v. Empire Blue Cross Blue Shield , 1 52 F.3d 67, 75 (2d Cir. 2

1998) ( “It is well established that a district court may rely on matters of public record in deciding a 3

motion to dismiss under Rule 12(b)(6)

. . . . ”). 4
Weinstein has not alleged that the defendants concealed his causes of action, but that he 5
was prevented from accessing certain evidence . Fraudulent concealment doctrine excuses a 6
plaintiff’s late filing of a complaint if the defendants concealed the cause of action itself

. See 7
Veltri v. Bldg. Serv. 32B

- J Pension Fund , 393 F.3d 318, 323 (2d Cir. 2004) ; Pearl v. City of Long 8

Beach
, 2 9 6 F.3d 76, 84 (2d Cir. 2002 ) . Weinstein confuses the “distinction between fraudulent 9

concealment of the existence of a cause of action and fraudulent concealment of facts that, if 10
known, would enhance a plaintiff’s ability to prevail as to a cause of action of which the plaintiff 11

was previously aware.” See Pearl , 296 F.3d at 84. Therefore
, Weinstein’s excuse for his 12
delay

— tha t the defendants concealed emails that would have provided factual support for his 13

claim s

— does not constitu te an exceptional circumstance warranting tolling. Cf. Brown v. 14

Parkchester S. Condos.
, 287 F.3d 58, 60 (2d Cir. 2002) (Sotomayor, J.) ; Miller v. Int’l Tel. & Tel. 15
Corp. , 755 F.2d 20, 24 (2d Cir. 1985)

. 16

Weinstein ’ s motions to supplement the record on appeal are denied. “Absent 17
extraordinary circumstances, this Court will not enlarge the record on appeal to include 18
evidentiary material not present ed to the district court.” Okoi v. El Al Israel Airlines , 378 F. 19
App’x 9, 11 n.1 (2d Cir. 2010) (summary order) (citing Int’l Bus. Machs. Corp. v. Edelstein , 526 20

F.2d 37, 45 (2d Cir. 1975) )

. Weinstein has not alleged any extraordinary circumstance 21

warran ting our consi deration of the new evidence he seeks to submit

. 224 We have considered Weinstein’s remaining arguments and find them to be without merit. 1
Accordingly, we AFFIRM the judgment of the district court. Weinstein’s motions to supplement 2

the record are DENIED. 3

FOR THE COURT: 4 Catherine O ’ Hagan Wolfe, Clerk 5