* The Honorable Louis F. O berdorfer, United States District Judge for the District of Columbia, sitting by designation. 1 05-4935-cv New Phone v. City of New York 1 UNIT ED S TAT ES COU RT OF A PP EALS 2 3 FOR THE SE CON D CIR CUIT 4 5

____________________________________ 6 7 August Term, 2006 8 9 (Argued: November 14, 2006 Decide d: May 17, 2007 ) 10 11 Doc ket Nos . 05 -49 35- cv( L) 12 05-5490-cv(CON) & 05-5502-cv(CON) 13

____________________________________ 14 15 16 THE NEW PHO NE CO., I

NC., and B EST PAYPHO NES, I NC. 17 18 Plaintiffs- Appellant s , 19 20 21 – v. – 22 23 24 CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF INF ORMATION 25 TECHNOLOGY AND TEL ECOMMUNICATI ONS, and GINO MENCHI NI, in his Official 26 Capacity 27 28 Defendants-Appellees

. 29 30

____________________________________ 31 32 Before: JACOBS, Chief Judge, SACK, Circuit Judge , and OBERDORFER, District Judge. * 33 34

____________________________________ 35 36 Plaintiffs-Appellants appeal from an order sua sponte dismissing a complaint and a filing 37 injunction entered by the U nited States District Court for the Eastern District of New York 382

(Gleeson, J.). 1 2 VACATED and REMANDED in part. Appeal DI SMISSED in part and DENI ED as 3 moot in par

t. 4 5 6 CHARLES H. RYANS, New York, NY, for Appell ants

. 7 8 KAREN M. GRIFFI N, Corporation Counsel of the City of New 9 York (Michael A. Cardozo, Francis F. Caputo, Michae l S. Adler, 10 and Jerald Horowitz, of counsel), for Appellees

. 11 PER CURI AM: 12 This opinion addres ses thre e consoli dated ap peals. I n 05-4935 -cv(L

), the plaintiffs13 appella

nts The Ne

w Phone Co. , Inc . and Be st Pay phones, I nc. (col lectivel

y, "New/Be st") join

tly 14 appeal from an August 5, 2005 order (Gleeson, J.) (“August 5 Order”) sua sponte dismissing 15 complain

t number 0 5-cv-17 02. I

n 05-5490 -cv(C) a

nd 05-550 2-cv(C) , New Phone and Be st 16 Payphone ea

ch appeal from an August 26, 2005 order ( Gleeson, J.) (“August 26 Order”) deny ing 17 their requests to file new complaints under the terms of a filing injunction issued by the district 18 court in the August 5 Order. 19 I. Backgro und 20 Established telephone companies such as Verizon provide the vast bulk of pay phone 21 services in New York City . New/Best have for severa l years ope

rated what may

fairly be 22 described as fringe pay phone services. For example, they place pay

phones on the outside of 23 buildings and connect them to the lines maintained by the established telephone service 24
compa nies. In 1996, New Yor k Cit y created a n ew regul atory sch eme gov ernin g these fringe 25 payphone businesses w hich, among other things, required them to obtain a fr anchise agreement 26 from the City. New/B est objected to the new scheme and reac ted by filing suit against the City. 273

Since that time, the City has denied their re peated requests for franchise a greements and has 1 taken va

rious alle gedly

discriminatory

and reta liatory actions a gainst t hem. Ove

r the y ears, 2 New/Best generally responded to new City re gulations by moving to amend their pending 3 complaints. Concerned they would run afoul of a local four-month statue of limitations, they 4 also ofte

n simultane ously

filed ne w complai

nts. By the e

nd of 2004, New/Best had seven 5 complaints against the City pending in the Eastern District of New York. In a ddition, Ne

w/Best 6 and the City have filed a number of procedural motions as they vigorously litiga

ted. 7 In December 2004, the City adopted new re gulations further affecting New/Best’s 8 businesses: (1) a six percent fee increase for new pay phone s, and (2) a bar on future advertising 9 on payphone e

nclosures in Manhattan below 96th Street. In r esponse, New/Best again adopte d 10 the motion to amend/new complaint strategy . In April 2005, they moved to amend their seven 11 then-pending complaints, including one in which motions to dismiss were fully briefed. 12 Simultaneously, they jointly filed complaint 05-cv-1702, g enerally r eiterating the allegations of 13 the earlier complaints as amended. 14 Concerned about the proliferation of cases a nd matters, the trial court, after briefing a nd 15 argument by

counsel, enjoined New/Best from filing additional complaints without leave of 16 court. In addition, the court, sua sponte, and without briefing or argument, dismissed complaint 17 05-cv-1702. Three weeks later, Ne w/Best sought leave to file y et another complaint; the district 18 court de

nied thei r reque st. 19 II. Analysis 20 A. The Dismissal of 05-cv-1702 21 As part of its gene ral powe r to admini ster its do cket, a d istrict c ourt may

stay or dismiss a 221 It ap pears that the dist

rict cou rt intende d the dismis sal to be w ithout pre judice; it suggested that plaintiffs may seek leave to file a new complaint after the pending motions are decided . August

5 Order at 8. Neverthele ss, the dismissal without proce ss or othe rwise preserving the claims was error

. 4 suit that is duplicative of another federal court suit. See Colorado River Water Conservation 1 Dist. v. United States , 424 U.S. 800, 817 (1976). The dismissal of a complaint based on the 2 exercise of this power is reviewed for abuse of disc retion. See Curtis v. Citibank, N.A. , 226 F.3d 3 133, 138 (2d Cir. 2000). 4 Without the benefit of briefing on the subject, the trial court found with minimal 5 discussion that “the compla int appears to be largely duplicat ive of ea rlier complaints.”

August 5 6 Order at 8 (emphasis added). I n a footnote, the district court recognized that it did “not conduct 7 an exhaustive comparison of the seven complaints.” August 5 Order at 7 n.6. While the district 8
court wa s not requ ired to c onduct an

exhaustive

compari son befor

e dismissin

g 05-cv-1702, it 9 should have undertaken a more thorough re view to determine if these claims were based on a 10 “common nucleus of operative facts.” See, e.g. , Waldman v. Village of Kiryas Joel, 207 F.3d 11 105, 113 (2d Cir. 200 0). Compla int 05-cv -1702 challeng es new Cit y r egulat ions that N ew/Best 12 could not have cha llenge d before . When new allega tions are not obvious ly b arred by c laim 13 preclusion, plaintiffs are entitled to process, even if a motion for lea ve to amend has been denied. 14 Curtis , 226 F.3d at 136, 140. Furthermore, while the district court stated that it would take 15 New/Best's requests to amend their complaints into considera tion, this is not adequate to ensure 16 that the st

atute of limitations

will be toll ed and the ir claims will be pr

eserve d. Under

these 17 circumst

ances, we cannot affirm

the distri ct court ’s sua sponte dismissal. 1 18 There are other mechanisms the district court ca n employ to achieve

judicial efficiency 192 In Eberhart v. United States , 546 U.S. 12 (2005) (per curiam) and Kontrick v. Ryan , 540

U.S. 443 (2 004), the S uprem e Cour t has c ast so me dou bt abo ut th e rati onale under lying Torres

. Because the Supreme Court has not expressly overruled Torres , however, we are bound by it. See Agostini v. Felton , 521 U.S. 203, 237 (1997). 5 and still preserve New/Best’s rights. The district c ourt need not conduct a line by line 1 comparison of 05-cv-1702 to excise the duplicative claims; it can order the plaintiffs to do so or 2 face sanction. It c an also order further briefing on the issue of whether the new claims are indee d 3 based on the same “nucleus of operative fa cts.” Waldman, 207 F.3d at 113. The court also has 4 the authority

to defer analy sis on the me

rits of the se claims

until the pe

nding mot

ions to dismi ss 5

are re solved. F or example , it could s imply stay the 05-cv-1702 a

ction, or it could dismiss it 6 without prejudice so long as it also ordered the statue of limitations tolled. 7 Accordingly , we VACATE the portion of the August 5 Order dismissing 05-c v-1702 and 8 REMAND to the district court for further proceeding s consistent with this order. 9 B. The Filing Injunction 10 None of t he notice s of appe al mention the entr y of the filing injunction ; our juris diction is 11 limited by the wording of the notice. Kowsh v. Bd. of Elections , 99 F.3d 78, 80 (2d Cir. 1996). 12 Rule 3(c) provides that “the notice of appeal must . . . desig nate the judgment, order or part 13 thereof

being a ppealed .” Fed. R. App. P. 3( c)(1)( B). We ha

ve an inde

pendent o bligation to 14 ensure the notice of appeal complies with Rule 3(c). Dynegy Midstream Servs. v. Trammochem, 15 451 F.3d 89, 92 (2d Cir. 2006). While we may construe the rules liberally , we do not have the 16 authority to waive the jurisdictional re quirements of this rule. Torres v. Oakland Scavenger Co., 17 487 U.S. 312, 317 (1988). 2 18 We recognize that some of our opinions have sugg ested in dicta that we have jurisdiction 196

to revie w a distri ct court ’s decis ion if the a ppellee fully responds to the app ellant’s

argume nts – 1 and thereby

suffers no prejudice – even where the intent to appeal from the decision is not clear 2 on the face of, and cannot be infer red from the language

of, the notice of appeal. See, e.g. , 3 Ametex Fabrics, Inc. v. Just In Materials, Inc. , 140 F.3d 1 01, 106 (2 d Cir. 1998 ). But su ch a rule 4 would be inconsistent with other decisions of this Court which, even though we did not there 5 comment explicitly on the issue, dismissed appeals on grounds of insuff icient notice 6 notwithstanding the appellees’ complete response to the appe llants’ arguments. See Shrader v. 7 CSX Transp., Inc. , 70 F.3d 2 55, 256 (2 d Cir. 1995 ) (holdin g that w e do not ha

ve jurisd iction to 8 review a district court’s decision because the intent to appe al could not be inferred from the 9 notice); Brief for Appellees at 23-27, Shrader , No. 95-7037 (2d Cir. Mar. 30, 1995) (responding 10 to the app ellant’s argume nts); see also Ko wsh , 99 F.3d at 80; Brief for Appellees at 11-12, 11 Kowsh , No. 96-9314 (2d Cir. Oct. 25, 1996) (responding to the appellant’s a rguments). 12 Moreove

r, our as sertion o f jurisdiction over an appe al based

on the app ellee’s

response 13 on the merits to the appellant’s arguments sugg ests that an appellee may waive the jurisdictional 14 defects in the notice of appeal. That is not so. See Torres , 487 U.S. at 317 (noting that the 15
req ui rem ent s of

Ru les 3 an d 4 m ay no t b e wa iv ed b eca use th ey are ju ris di cti ona l i n na tu re) . In 16 the case at bar, the City ’s brief responds to New/Best's ar guments as to the August 5 filing 17 injunction. Our jurisdiction, however, depends on whether the intent to appeal fr om that decision 18 is clear on the face of, or can be inferred from, the notices of appeal. B ecause none of the notices 19 of appeal mention the August 5 filing injunction and the intent to appeal fr om it cannot be 20 inferred from the notices, we must dismiss the appeal for lack of jurisdiction insofar as the 21 appellants seek review of that filing injunction. 227 C. The August 26 Order 1 The August 26 Order merely denies New/Best’s requests to file a new c omplaint. 2 New/Be st's des cription o f their pr oposed c omplaint r

aises the same cla ims asser ted as “new” in 3 05-cv-1 702. Vac atur of the August 5 Order ensures that those

claims wil l be adeq

uately 4 reviewe d or pres erved. Accordin gly , the appe als of the

August 2 6 Order

are DEN IED as moot. 5