1 17-2767 Vayani v. Pohani



## 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 DATA BASE (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 1 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 2 City of New York, on the 7 th day of June, two thousand eighteen. 3 4 PRESENT: 5 ROSEMARY S. POOLER, 6 RAYMOND J. LOHIER, JR., 7 Circuit Judges, 8 RICHARD J. SULLIVAN,* 9 District Judge. 10

__________________________________________ 11 12 Abdul Khaliq Vayani, Security Guard, 146 West 13 29th Street Owners Corporation, 14 15 Plaintiff-Appellant , 16 17 v. 17-2767 18 19 146 West 29th Street Owners Corporation, Berik 20 Management, Managing 146 Building, President 21 Rikin Sheth, Berik Man agement, Geeta Pathak, 22 Former Accountant Verik Management, Local 23 Union 32BJ SEIU, Michael Fishman, Union 24 Trustees for all benefit funds: Former Chairman 25 of the Building Service 32BJ Benefit Funds, 26

* Judge Richard J. Sullivan, of the United States Distri ct Court for the Southern District of New York, sitting by designation.2 Former President Trustee Local Union 32BJ and 1 Present Vice President SEIU Washington, 2 Hector J. Figueroa, Union Trustees for all 3 benefit funds: President and former Secretary 4 Treasurer, Local 32 BJ, SEIU President and 5 Trustee Local Union 32 BJ, SEIU, Todd Jenning, 6 Officer Union 32BJ, Denis Johnston, Vice 7 President Union 32BJ, Mike Graham, Officer 8 Union 32BJ, Thomas Giordano, Officer Union 9 32BJ, Address: 25 West 18th St., New York, NY 10 10011, Howard I. Rothschild, Employer Trustees 11 for all benefit funds: S ecretary of the Building 12 Service 32BJ Benefit Funds and President of the 13 Realty Advisory Board of Labor Relations, Inc., 14 John Santora, Employer Trustees for all Benefit 15 Funds: Chief Operating Officer and Executive 16 Vice President, Asset Services, Cushman & 17 Wakefiled, Inc., Charles Dorego, Esq. Employer 18 Trustees for All Benefit Funds: General Counsel, 19 Glenwood Management, Ward Fred, Employer 20 Trustees for all benefit funds: Vice President for 21 Labor Relations, One Source, Michael P. 22 Fishman, Union Trustees for all benefit funds: 23 Former Chairman of the Building Service 32BJ 24 Benefit Funds and Former President of Local 32 25 BJ, SEIU Washington, Kevin J. Doyle, Union 26 Trustees for all benefit funds: Executive Vice 27 President, Local 32 BJ, SEIU, Brian Lambert, 28 Additional Union Trust ees: Health Fund: Vice 29 President, Local 32 BJ SEIU, Kyle Bragg, 30 Additional Union Trust ees: Pension Fund: Vice 31 President, Local 32 BJ, SEIU, Larry Engelstein, 32 Additional Union Trust ees: SRSP: Assistant to 33 the President, Local 32BJ, SEIU, John Pagnotta, 34 Additional Union Trustees: Shortman Fund, 35 District leader, Local 32BJ, SEIU, Lenore 36 Friedlaender, Additional Union Trustees: Legal 37 Fund: Vice President, Local 32BJ, SEIU, Susan 38 Cowell, Executive Director, Building Service 39 32BJ, 25 West 18 Street, New York, NY 40 10011-1991, Regine Breton, Building Service 41 32BJ Benefit Funds Administrators Fund 42 Directors: Pension Fund and SRSP, Angelo 43 Dascoli, Building Service 32BJ Benefit Funds 443 Administrators Fund Directors: Health Fund, 1 Linda Nelson, Building Service 32BJ Benefit 2 Funds Administrators Fund Directors: 3 Shortman Fund, Alan Snyder, Building Service 4 32BJ Benefit Funds Administrators Fund 5 Directors: Legal Fund, 6 7 Defendants-Appellees , 8 9 Tim Rockholt, Service Employment 10 International Union SEIU Washington, Michael 11 Geffner, Union 32 BJ Counsels, RAAB Sturm, 12 Goldman & Ganchrow, LLP, Joseph Labuda 13 Counsel 146 West Building and Berik 14 Management, Milman Labuda Law Group 15 PLLC, Mevani West Side Stores Owner, 16 Chandru Hasso, Michael Prezzels, Rakhani, 17 Kishan Advani, Jay Kapadia, Saman Kukreja, 18 Sanjay Kukreja, Jal Bilmoria, Keshab Raj 19 Seadie, Shamina Khan, Chandru Jotwani, 20 Sanjay Grover, Manu Pohani, Nari Pohani, 21 22 Defendants

. 23

__________________________________________ 24 25 26 FOR PLAINTIFF-APPELLANT: Abdul K. Vayani, pro se, Avenel, N.J. 27 28 FOR DEFENDANTS-APPELLEES: 29 30 SERV. EMPS. INT’L UNION, ET AL. Walter M. Meginniss, Jr ., Gladstein, Reif & 31 Meginniss, LLP (Olivia Singer, Office of the 32 General Counsel, SEIU Local 32BJ, on the 33 brief ), New York, N.Y. 34 35 HECTOR J. FIGUEROA, ET AL. Ira A. Sturm, Raab, Sturm & Ganchrow, 36 LLP, Fort Lee, N.J. 37 38 39 146 W. 29TH ST. OWNERS CORP., ET AL. Meredith Cavallaro, Paduano & Weintraub 40 LLP, New York, N.Y. 41 424 Appeal from a judgment of the United States Di strict Court for the Southern District of 1

New York (Koeltl, J .). 2

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

DECREED that the judgment of the district court is AFFIRMED

. 4

Appellant Abdul Vayani, proceeding pro se, ap peals from the district court’s judgment 5

dismissing his complaint. Vayani sued his em ployer, a union that represented its employees, 6

and various managers, employees, trustees, and administrators of the employer, the union, and 7

the union’s benefit funds (“the Funds”). He alleged principally that the defendants had 8

conspired to prevent him from joining the union and thereby obt aining certain benefits. The 9

defendants moved to dismiss. Because the Funds defendants submitted documents outside the 10

pleadings with their motion to dismiss, the distri ct court converted their motion into a motion for 11

summary judgment. The district court then gran ted the defendants’ motions to dismiss and for 12

summary judgment, reasoning that each of Vayani’s claims was either time barred or collaterally 13

estopped by a 2010 arbitration determination th at Vayani was not a union member. Vayani 14

appeals. We assume the parties’ familiarity with the underlying facts, the procedural history of 15

the case, and the issues on appeal. 16

“We review de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6), 17

construing the complaint liberally, accepting all factual allegations in the complaint as true, and 18

drawing all reasonable inferences in the plaintiff’s favor.” Chambers v. Time Warner, Inc ., 282 19

F.3d 147, 152 (2d Cir. 2002). We review a district court’s grant of summ ary judgment de novo, 20

drawing all factual inferences in favor of the non-moving party. Sousa v. Marquez , 702 F.3d 21

124, 127 (2d Cir. 2012). 225 Upon such review, we conclude that the distri ct court properly dismi ssed Vayani’s claims 1

as collaterally estopped or time barred. Except as noted below, we therefore affirm for 2

substantially the reasons stated by the district court in its thorough August 11, 2017 decision. 3

Vayani argues that the district court er red when it converted the Funds defendants’ 4

motion to dismiss into a motion for summary judg ment because he did not have an opportunity 5

to engage in discovery. See Hernandez v. Coffey , 582 F.3d 303, 309 (2d Cir. 2009) (holding that 6

a pro se plaintiff was entitled to an opportunity to take relevant di scovery before the district court 7

converted a motion for judgment on the pleadings into a motion for summary judgment). But in 8

his Second Amended Complaint, Vayani referred to or relied on all of th e documents attached to 9

the Funds defendants’ motion. Accordingly, those documents may be viewed as incorporated 10

into his pleading by reference, and were ther efore proper subjects for the district court to 11

consider on a motion to dismiss. See Nicosia v. Amazon.com, Inc. , 834 F.3d 22d, 230-31 (2d Cir. 12

2016). Moreover, although the distri ct court stated that it had converted the Funds defendants’ 13

motion into a motion for summary j udgment, the district c ourt did not refer to or apparently rely 14

on any of the materials submitted by the Funds de fendants in rendering its decision. Accordingly, 15

notwithstanding the district court’ s statement, the Funds defendant s’ motion was, as a practical 16

matter, “not converted into a motion for summary judgment.” Hayden v. Cty. Of Nassau , 180 17

F.3d 42, 54 (2d Cir. 1999). As a re sult, dismissal was proper even though Vayani did not have an 18

opportunity to engage in discovery. 19

We have considered Vayani’s remaining argumen ts and find them to be without merit. 20

Accordingly, we AFFIRM the judgment of the district court. 21

FOR THE COURT: 22 Catherine O’Hagan Wolfe, Clerk of Court 23