12-4314-cv

KM Enters., Inc. v. McDonald

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.

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 30th day of April, two thousand thirteen.

PRESENT: AMALYA L. KEARSE,

DENNY CHIN,

Circuit Judges,

JANET C. HALL,

District Judge.

*

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KM ENTERPRISES, INC. DBA EMTRAC SYSTEMS,

Plaintiff-Appellant,

-v- 12-4314-cv

JOAN McDONALD, in her capacity as 

Commissioner, New York State Department 

of Transportation,

Defendant-Appellee.

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FOR PLAINTIFF-APPELLANT: JANA YOCOM, Jana Yocom, P.C., 

Mount Vernon, Illinois.

 

* The Honorable Janet C. Hall, United States District 

Judge for the District of Connecticut, sitting by designation.
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FOR DEFENDANT-APPELLEE: BRIAN A. SUTHERLAND, Assistant 

Solicitor General, for Barbara D. 

Underwood, Solicitor General, 

Richard Dearing, Deputy Solicitor 

General, and Eric T. Schneiderman, 

Attorney General of the State of 

New York, New York, New York.

Appeal from the United States District Court for the 

Eastern District of New York (Spatt, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the judgment of the district court is 

AFFIRMED.

Plaintiff-appellant KM Enterprises, Inc. ("KME") 

appeals from the district court's September 26, 2012 judgment, 

entered pursuant to its September 25, 2012 memorandum of 

decision and order dismissing the amended complaint for lack of 

subject matter jurisdiction and failure to state a claim. See

Fed. R. Civ. P. 12(b)(1) and(6). We assume the parties' 

familiarity with the facts, procedural history, and 

specification of issues for review.

We review dismissals under Rules 12(b)(1) and 12(b)(6) 

de novo, accepting the complaint's allegations as true and 

drawing all reasonable inferences in favor of the plaintiff.

See Rothstein v. UBS AG, 708 F.3d 82, 90 (2d Cir. 2013). After 

an independent review of the record, we affirm for substantially 
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the reasons set forth by the district court in its thorough and 

well-reasoned thirty-eight page opinion.

The district court noted the myriad deficiencies in 

KME's amended complaint. KME sued defendant-appellee Joan 

McDonald in her official capacity as Commissioner of the New 

York State Department of Transportation ("DOT"), effectively 

rendering this a suit against the State of New York. See

Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). As a general 

matter, states enjoy sovereign immunity from suit in federal 

court, even if the claim arises under federal law. See U.S. 

Const. amend. XI; Alden v. Maine, 527 U.S. 706, 727-28 (1999) 

(citing Hans v. Louisiana, 134 U.S. 1, 14-15 (1890)). A narrow 

exception exists where a complaint against a state officer 

alleges a "continuing violation of federal law" requiring 

"prospective injunctive relief." Green v. Mansour, 474 U.S. 64, 

68 (1985) (emphasis added) (citing Ex parte Young, 209 U.S. 123, 

155-56 (1908)).

KME argues on appeal that there are two continuing 

violations here: first, the continuous payments of federal 

funds pursuant to the unlawfully procured contract, and second, 

the possibility that in the future the DOT will award contracts 

to other subcontractors who have not submitted the lowest 

competitive bid. But KME lacks standing to assert these claims: 
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the allegedly unlawful distribution of federal funds to others 

does not cause KME a concrete, particularized injury,

1 cf. Ariz. 

Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436, 1442-43 

(2011), and it is entirely speculative that ordering the DOT to 

employ competitive bidding for subcontractors will result in KME 

receiving these contracts in the future, see Linda R.S. v. 

Richard D., 410 U.S. 614, 618 (1973). KME's request for a 

declaratory judgment stating that the federal regulations 

require acceptance of the bid submitted by the lowest bidder for 

highway projects such as those funded here was properly 

rejected, as such a judgment would constitute an advisory 

opinion, which federal courts lack authority to render. See, 

e.g., Penguin Books USA Inc. v. Walsh, 929 F.2d 69, 72 (2d Cir. 

1991).

The amended complaint also asserts a claim under 42 

U.S.C. § 1983. Because the claim was pled against McDonald in 

her official capacity, however, it is barred by the Eleventh 

 

1 To the extent KME alleges that it suffered a concrete 

injury because the DOT should have awarded the contract and paid 

the funds to KME, that would constitute a claim for monetary 

relief, which is barred by the Eleventh Amendment, and no form 

of prospective relief could remedy that injury. Cf. Green v. 

Mansour, 474 U.S. 64, 71-73 (1985) (holding that Eleventh 

Amendment prevents federal courts from providing any relief that 

is "not the type of remedy designed to prevent ongoing 

violations of federal law," including declaratory judgments that 

past acts were unlawful).
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Amendment. See Graham, 473 U.S. at 169. Moreover, even if it 

were pled against McDonald in her individual capacity, the 

amended complaint does not allege any actions that McDonald 

personally took, or failed to take, and thus fails to state a 

claim against her. See Back v. Hastings on Hudson Union Free 

Sch. Dist., 365 F.3d 107, 127 (2d Cir. 2004) ("An individual 

cannot be held liable . . . under § 1983 merely because he held 

a high position of authority, but can be held liable if he was 

personally involved in the alleged deprivation." (quotation 

omitted)).

We have considered KME's remaining arguments and find 

them to be without merit. Accordingly, we AFFIRM the judgment 

of the district court. 

FOR THE COURT:

Catherine O'Hagan Wolfe, Clerk