08-5835-cv Brady v. Wing

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LO CAL RULE 32.1.1. WHEN CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE EITH ER TH E FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST 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, held at the 2 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, 3 on the 9th day of March, two thousand ten.

5 PRESENT: 6 GERARD E. LYNCH, 7 Circuit Judge, 8 DENNY CHIN,* 9 District Judge.** 10 ________________________________________ 11 Edward J Brady, Of Ferrisburgh, Addison County, Rosemary B. Brady, Of Ferrisburgh, Addison 12 County, 14 Plaintiffs-Appellants, 16 v. 18 Joan Loring Wing, of Rutland, Rutland County, Lisa Chalidze, of Benson, Rutland County, 19 Pietro J. Lynn, of South Burlington, Chittenden County, Lynn, Thomas & Mihalich, P.C., a 20 Vermont corporation with principal place of business in Burlington, Chittenden County, Gregory 21 Clayton, of Barnet, Caledonia County, Aten Clayton & Eaton PLLC, a foreign corporation with 22 principal place of Business in Littleton, New Hampshire, One Beacon Insurance Group, Ltd., a 23 foreign corporation with principal place of Business in Canton, Massachusetts, York Insurance 24 Company of Maine, a foreign corporation with principal place of Business in Canton, 25 Massachusetts, J.W. & D.E. Ryan, Inc., a Vermont corporation with principal place of Business 26 in Vergennes, Addison County, Peerless Insurance Company, A foreign corporation with 27 principal place of business in Keene, New Hampshire, 29 Defendants-Appellees.

30 _______________________________________

* The Honorable Denny Chin, of the United States District Court for the Southern District of New York, sitting by designation. ** The Honorable Rosemary S. Pooler, originally a member of this panel, did not participate in the consideration of this appeal. The two remaining members of the panel, who are in agreement, have determined the matter. See 28 U.S.C. § 46(d); 2d Cir. I.O.P. E; United States v. Desimone, 140 F.3d 457 (2d Cir. 1998).

1 FOR PLAINTIFFS-APPELLANTS: Edward J. Brady and Rosemary B. Brady, pro se, 2 Vergennes, Vermont.

4 FOR DEFENDANTS-APPELLEES: Kaveh S. Shahi, Attorney for Defendant-Appellee 5 Lisa Chalidze, Clearly, Shahi & Aicher, P.C., 6 Rutland, Vermont; Robert B. Hemley and Paul A.

7 Kearney, Attorneys for Defendants-Appellees 8 Gregory Clayton and Aten, Clayton & Eaton, PLLC, 9 Gravel and Shea, Burlington, Vermont; Robert A.

10 Mello, Attorney for Defendant-Appellee Joan 11 Loring Wing, Law Office of Robert A. Mello, PLC, 12 South Burlington, Vermont; John E. Brady, 13 Attorney for Defendants-Appellees OneBeacon 14 Insurance Group, Ltd. and York Insurance Company 15 of Maine, Brady & Callahan, P.C., Springfield, 16 Vermont; Shapleigh Smith, Jr., Attorney for 17 Defendants-Appellees Pietro J. Lynn and Lynn, 18 Thomas & Mihalich, Dinse Knapp & McAndrew, 19 P.C., Burlington, Vermont; Richard J. Windish, 20 Attorney for Defendant-Appellee J.W. & D.E.

21 Ryan, Inc., Haynes & Windish, P.C., Woodstock, 22 Vermont.

25 Appeal from the United States District Court for the District of Vermont (William K.

26 Sessions, III, Chief Judge).

29 UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED that the judgment of said District Court be and hereby is AFFIRMED.

32 Appellants Edward and Rosemary Brady appeal from the district court’s judgment dismissing their complaint for lack of subject matter jurisdiction. We assume the parties’ familiarity with the facts, proceedings below, and specification of appellate issues and hold as follows.

36 We review the dismissal of a complaint for lack of subject matter jurisdiction de novo.

37 Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 79-80 (2d Cir. 2005). “A case is properly dismissed for lack of subject matter jurisdiction under [Fed. R. Civ. P.] 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). A plaintiff asserting jurisdiction has the burden of proving that jurisdiction exists by a preponderance of the evidence. Id. 3 Having conducted an independent and de novo review of the record in light of these principles, we affirm the district court’s judgment for substantially the same reasons stated by the district court in its thorough and well-reasoned opinion. Accordingly, the judgment of the district court is hereby AFFIRMED.

8 FOR THE COURT: 9 Catherine O’Hagan Wolfe, Clerk

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