20-2518

Logan v. Town of Windsor

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 TO 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 for the Second Circuit, 

2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 

New York, on the 25th 3 day of January, two thousand twenty-one.

4

5 PRESENT:

6 ROBERT A. KATZMANN,

7 MICHAEL H. PARK,

8 STEVEN J. MENASHI,

9 Circuit Judges.

10 _____________________________________

11

12 Theresa A. Logan,

13

14 Plaintiff-Appellant,

15

16 v. 20-2518

17

18 Town of Windsor, New York, New York Municipal 

19 Insurance Reciprocal Insurance Company, Robert 

20 Brinks, Gregg Story,

21

Defendants-Appellees. * 22

23 _____________________________________

24

25 FOR PLAINTIFF-APPELLANT: Theresa A. Logan, pro se,

26 Windsor, NY.

27

28 FOR DEFENDANTS-APPELLEES: Thomas H. Bouman, 

29 Coughlin & Gerhart, LLP, 

30 Binghamton, NY.

* The Clerk of Court is directed to amend the caption as set forth above.
2

1 Appeal from a judgment of the United States District Court for the Northern District of 

2 New York (Suddaby, J.; Lovric, M.J.).

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

4 DECREED that the judgment of the district court is AFFIRMED. 

5 In 2019, Theresa A. Logan, pro se, sued the Town of Windsor, New York (“the Town”), 

6 Robert Brinks, Gregg Story, and the Town’s insurance company alleging that, in 2011, she was 

7 struck and injured by debris thrown from a snowplow that Brinks and Story operated. The

8 complaint asserted claims of negligence in operation of the snowplow and defamation based on 

9 the statements of the defendants’ attorney at a prior proceeding. The district court (Suddaby, J.)

10 dismissed the complaint for lack of subject matter jurisdiction, reasoning that it lacked both 

11 federal-question and diversity jurisdiction. The district court also denied leave to amend and Ms. 

12 Logan’s motion to appoint counsel. Ms. Logan timely appealed. We assume the parties’ familiarity 

13 with the underlying facts, the procedural history of the case, and the issues on appeal.

14 As an initial matter, Ms. Logan has waived any argument relevant to the district court’s 

15 dismissal of her case because she does not challenge the district court’s holding that it lacked 

16 subject matter jurisdiction in her brief. LoSacco v. City of Middletown, 71 F.3d 88, 92–93 (2d Cir.

17 1995) (holding that issues not raised by pro se litigant in appellate brief were abandoned and the 

Court “need not manufacture claims of error for an appellant proceeding pro se”).

1 18 In addition, 

19 Ms. Logan has waived any challenge to the district court’s denial of her motion to appoint counsel 

20 or its denial of leave to amend. Id. The judgment of the district court may be affirmed on these

1 Unless otherwise indicated, in quoting cases, all internal quotation marks, alterations, 

emphases, footnotes, and citations are omitted.
3

1 grounds alone.

2 Even if Ms. Logan had not waived these arguments, affirmance would be warranted. We

3 review dismissals for lack of subject matter jurisdiction de novo. Brzak v. United Nations, 597 

4 F.3d 107, 110–11 (2d Cir. 2010). While “the submissions of a pro se litigant must be construed 

5 liberally and interpreted to raise the strongest arguments that they suggest,” Meadows v. United 

6 Servs., Inc., 963 F.3d 240, 243 (2d Cir. 2020), a pro se plaintiff still “bears the burden of proving 

7 subject matter jurisdiction by a preponderance of the evidence,” Cooke v. United States, 918 F.3d 

8 77, 80 (2d Cir. 2019). The district court correctly held that Ms. Logan did not carry this burden.

9 First, the complaint did not plead federal-question jurisdiction because its claims did not 

10 “aris[e] under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. The 

11 complaint relied on no provision of federal law and instead sought relief only for claims of 

12 negligence and defamation, both of which are common-law torts governed by state law. See 

13 Pasternack v. Lab. Corp. of Am. Holdings, 27 N.Y.3d 817, 825 (2016) (negligence); Foster v. 

14 Churchill, 87 N.Y.2d 744, 751 (1996) (defamation). While state-law claims may in some 

15 circumstances provide a basis for federal-question jurisdiction if they “necessarily raise a stated 

16 federal issue,” the complaint alleged the existence of no such issue. Grable & Sons Metal Prods., 

17 Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 314 (2005).

18 Second, the complaint did not plead diversity jurisdiction because it did not meet 28 U.S.C. 

19 § 1332’s requirement of “complete diversity”—that is, that “all plaintiffs . . . be citizens of states 

20 diverse from those of all defendants.” Pa. Pub. Sch. Emps.’ Retirement Sys. v. Morgan Stanley & 

21 Co., 772 F.3d 111, 118 (2d Cir. 2014). Ms. Logan’s complaint alleged that she was domiciled in 

22 New York, making her a New York citizen. See Palazzo ex rel. Delmage v. Corio, 232 F.3d 38, 
4

1 42 (2d Cir. 2000). At least one defendant, the Town, is similarly a citizen of New York. Moor v. 

2 Alameda Cnty., 411 U.S. 693, 718 (1973) (“[F]or purposes of diversity of citizenship, political 

3 subdivisions are citizens of their respective States . . . .”). As such, there was not complete 

4 diversity, and thus no diversity jurisdiction.

5 For the foregoing reasons, the district court properly dismissed Ms. Logan’s complaint for 

6 lack of subject matter jurisdiction. It also properly denied leave to amend because this substantive 

7 deficiency could not be cured and amendment would thus be futile. See Lucente v. Int’l Bus. 

8 Machines Corp., 310 F.3d 243, 258 (2d Cir. 2002). Finally, the district court did not abuse its 

9 discretion by denying Ms. Logan’s motion for appointment of counsel because, as a result of these 

10 jurisdictional issues, her claims had little chance of success on the merits. See Carpenter v. 

11 Republic of Chile, 610 F.3d 776, 780 (2d Cir. 2010) (per curiam).

12 We have considered all of Ms. Logan’s remaining arguments and find in them no basis for 

13 reversal. We thus AFFIRM the judgment of the district court.

14 FOR THE COURT: 

15 Catherine O’Hagan Wolfe, Clerk of Court