12

- 4314

- cv

KM Enters. , Inc. v. McDonald
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

R ULINGS BY SUMMARY OR DER DO NOT HAVE PREC EDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1. W HEN CITING A SUMMARY ORD ER IN A DOCUMENT FIL ED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN ELECTR O NIC DATABASE ( WITH THE NOTATION

" SUMMARY ORDER "). A PARTY CITING A SUMMA RY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTE D 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 30 th day of April , two thousand thirteen

.
PRESENT: AMALYA L. KEARSE ,

DENNY CHIN ,

Circuit Judges , JANET C. HALL ,

District Judge

. *

- - - - - - - - - - - - - - - - - - - - - - - x KM ENTERPRISES, INC. DBA EMTRAC SYSTEMS , Plaintiff

- Appell ant ,

- v - 12

- 4314

- cv

JOAN M c DONALD, in her capacity as Commissioner, New York State Department of Transportation , Defendant

- Appell ee .

- - - - - - - - - - - - - - - - - - - - - - - x

FOR PLAINTIFF

- APPELL ANT : 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.- 2

-

FOR DEFENDANT

- APPELL EE : 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 Yo rk ( 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 jurisdic tion and failure to state a claim

. See

Fed

. R
. Civ

. P
. 12(b)(1) and (6)

. W e 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- 3

-

the reasons s et 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

. S ee Kentucky v. Graham , 473 U.S. 159, 165

- 66 (1985). As a general
matter, states enjo y sovereign immunity from suit in federal
court, even if the claim arises under federal law

. S ee 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 com plaint against a state officer
allege s 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:- 4

-

the allegedly unlawful distribution of federal funds to others
does not cause KME a concrete, particularized injury , 1 cf. A ri z.
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 ag ainst McDonald in

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

1 T o 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 tha t past acts were unlawful).- 5

-

Amendment. See Graham , 473 U.S. at 169. Moreover, e ven if it

w ere 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: C atherine O'Hagan Wolfe, Clerk