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11-4536-cv

Omid Nodoushani v. Southern Connecticut State University

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.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 15th 4 day of January, two thousand thirteen.

5

6 PRESENT: DENNIS JACOBS,

7 Chief Judge,

8 JON O. NEWMAN,

9 REENA RAGGI,

10 Circuit Judges.

11 _____________________________________

12

13 OMID NODOUSHANI,

14

15 Plaintiff-Appellant,

16

17 v. 11-4536-cv

18

19 SOUTHERN CONNECTICUT STATE

20 UNIVERSITY,

21

22 Defendant-Appellee.

23 _____________________________________

24

25 FOR APPELLANT: William S. Palmieri,

26 New Haven, Connecticut.

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1 FOR APPELLEE: Maria C. Rodriguez, Assistant 

2 Attorney General, 

3 Hartford, Connecticut.

4

5 Appeal from an order of the United States District

6 Court for the District of Connecticut (Thompson, J.).

7

8 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

9 AND DECREED that the judgment of the district court be

10 VACATED AND REMANDED IN PART AND AFFIRMED IN PART.

11

12 Omid Nodoushani (“Nodoushani”) appeals from judgment

13 entered on September 30, 2011 in the United States District

14 Court for the District of Connecticut (Thompson, J.)

15 granting summary judgment in favor of Defendant, Southern

16 Connecticut State University (“The University”), on

17 Nodoushani’s claims of: (1) employment discrimination and

18 retaliation pursuant to Title VII of the Civil Rights Act of

19 1964, 42 U.S.C. § 2000e et seq. (“Title VII”) and the

20 Connecticut Fair Employment Practices Act, Conn. Gen. Stat.

21 § 46a-60(a) et seq. (“CFEPA”); and (2) intentional

22 infliction of emotional distress (“IIED”). We assume the

23 parties’ familiarity with the underlying facts, the

24 procedural history, and the issues presented for review.

25

26 We review de novo a district court’s decision to grant

27 summary judgment. Mario v. P&C Food Mkts., Inc., 313 F.3d

28 758, 763 (2d Cir. 2002).

29

30 1. “The Judicial power of the United States shall not

31 be construed to extend to any suit in law or equity,

32 commenced or prosecuted against any one of the United States

33 by Citizens of another State, or by Citizens or Subjects of

34 any Foreign State.” U.S. Const. amend. XI (emphasis added). 

35 “‘Jurisdiction properly refers to a court’s power to hear a

36 case.’” Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237,

37 1246 n.5 (2010) (emphasis added) (quoting United States v.

38 Cotton, 535 U.S. 625, 630 (2002)). Given that explicit

39 limitation on judicial power, see Missouri v. Fisk, 290 U.S.

40 18, 25 (1933), the district court correctly ruled that

41 Nodoushani’s state claims are barred by the Eleventh

42 Amendment. However, those claims should have been dismissed

43 without prejudice in accordance with Fed. R. Civ. P. 41(b)

44 because the district court lacked subject matter

45 jurisdiction.

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1 2. The district court did not err in striking part of

2 Nodoushani’s Local Rule 56(a)(3) statement. District courts

3 have leeway on motions to strike in the context of summary

4 judgment motions. While a court is obliged not to consider

5 inadmissible evidence at the summary judgment stage, “[t]o

6 the extent that an affidavit or declaration contains

7 material that does not comply with [Federal Rule of Civil

8 Procedure] 56(e), the [c]ourt may strike those portions, or

9 may simply disregard them.” Rus, Inc. v. Bay Indus., Inc.,

10 322 F. Supp. 2d 302, 307 (S.D.N.Y. 2003); see also United

11 States v. Alessi, 599 F.2d 513, 514-15 (2d Cir. 1979)

12 (holding that the district court may strike inadmissible

13 portions of affidavits).

14

15 3. We affirm the district court’s decision with regard

16 to Nodoushani’s Title VII claims for the reasons stated in

17 the district court’s thorough opinion.

18

19 Finding no merit in Nodoushani’s remaining arguments,

20 we hereby AFFIRM the judgment with respect to Nodoushani’s

21 Title VII claims and VACATE the judgment of the district

22 court as to the state claims and REMAND for the district

23 court to enter an order dismissing them for lack of federal

24 subject matter jurisdiction without prejudice to such

25 remedies as may be available in state court.

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27

28 FOR THE COURT:

29 CATHERINE O’HAGAN WOLFE, CLERK

30