The Honorable Loretta A. Preska, Chief Judge of the United States District Court for the *

Southern District of New York, sitting by designation.

10-1418-cv

Drake v. Laboratory Corporation of America Holdings 

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

Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,

on the 4 day of April, two thousand eleven. th

1 PRESENT:

2 ROBERT D. SACK,

3 GERARD E. LYNCH,

4 Circuit Judges,

5 LORETTA A. PRESKA,*

6 Chief District Judge. 

7 __________________________________________

8

9 RICHARD W. DRAKE,

10 Plaintiff-Appellant, 

11

12 v. No. 10-1418-cv

13

14 LABORATORY CORPORATION OF AMERICA HOLDINGS, et al.,

15 Defendants-Appellees.

16 __________________________________________

17 

18 FOR APPELLANT: Richard W. Drake, pro se, Marshall, VA.

19

20 FOR APPELLEES: Robert I. Steiner, Kelley Drye & Warren LLP, New York, NY, D.

21 Faye Caldwell, Caldwell & Clinton P.L.L.C., Houston, TX, for

22 Laboratory Corporation of America Holdings and Kevin Wilson;
2

1 Thomas J. Mortati, Burke, Scolamiero, Mortati & Hurd, LLP,

2 Albany, New York, for Northwest Toxicology, Incorporated and

3 David J. Kuntz; Ira G. Rosenstein, Orrick, Herrington & Sutcliffe

4 LLP, New York, NY, for William H. Whaley and West Paces

5 Ferry Medical Clinic; Diane K. Farrell, Devitt Spellman Barrett,

6 LLP, Smithtown, NY, for Elsohly Laboratories, Incorporated.

7

8 Appeal from a judgment of the United States District Court for the Eastern District of

9 New York (Block, J.).

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

11 DECREED that the judgment of the district court be AFFIRMED.

12 Appellant Richard W. Drake, proceeding pro se, appeals the district court’s judgment

13 granting the defendants’ motions for summary judgment and dismissing his complaint alleging

14 that the defendants provided false drug test results to his employer. We assume the parties’

15 familiarity with the underlying facts and the procedural history of the case.

16 We review de novo a district court’s dismissal of a complaint under Federal Rule of Civil

17 Procedure 12(b)(2) for lack of personal jurisdiction, and the party asserting jurisdiction has the

18 burden of demonstrating that it exists. See Robinson v. Overseas Military Sales Corp., 21 F.3d

19 502, 507 (2d Cir. 1994). We review orders granting summary judgment de novo to determine

20 whether the district court properly concluded that there was no genuine issue as to any material

21 fact and the moving party was entitled to judgment as a matter of law. Miller v. Wolpoff &

22 Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). 

23 Having conducted an independent and de novo review, we find, for substantially the same

24 reasons as the district court, that Drake failed to establish facts supporting the district court’s

25 exercise of personal jurisdiction over Defendants-Appellees Kevin Wilson, Elsohly Laboratories,
3

1 Inc., William H. Whaley, and West Paces Ferry Medical Clinic. We further conclude, for

2 substantially the same reasons as the district court, that Drake’s claims against Defendants3 Appellees Laboratory Corporation of America Holdings, Northwest Toxicology, Inc., and David

4 J. Kuntz are barred by the statute of limitations.

5 We have considered Drake’s other arguments on appeal and, although we are fully aware

6 of his sense of grievance, have found them to be without legal merit. We reject Drake’s

7 invitation to reconsider our holding in Drake v. Delta Air Lines, Inc., 147 F.3d 169 (2d Cir.

8 1998). We may not disregard the decision of a prior panel, except in special circumstances not

9 present here. See Union of Needletrades, Indus. & Textile Emps. v. INS, 336 F.3d 200, 210 (2d

10 Cir. 2003). Accordingly, the judgment of the district court is hereby AFFIRMED.

11

12 FOR THE COURT:

13 Catherine O’Hagan Wolfe, Clerk