Weaver v. Indymac Federal Bank, FSB
Weaver v. Indymac Federal Bank, FSB
Opinion
SUMMARY ORDER
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment and order of the district court is AFFIRMED.
Appellant Everette Weaver, proceeding pro se, appeals from the district court’s orders (1) granting several defendants’ motions to dismiss or for judgment on the pleadings pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(c); (2) dismissing his claims against Indymac Federal Bank, FSB for lack of subject matter jurisdiction; and (3) directing the district court clerk to “terminate” his motion to amend his first amended complaint based on Weaver’s failure to comply with the court’s individual practice rules. Weaver also moves to supplement the record on appeal, and for the Court to take judicial notice of certain documents. We assume the parties’ familiarity with the underlying *523 facts, the procedural history of the case, and the issues on appeal.
This Court reviews de novo a district court’s grant of a Rule 12(b)(6) motion to dismiss, “accepting all factual allegations [in the complaint] as true and drawing all reasonable inferences in favor of the plaintiff.” Litwin v. Blackstone Grp., L.P., 634 F.3d 706, 715 (2d Cir. 2011). We review the grant of a Rule 12(c) motion for judgment on the pleadings under the same standard. See Bank of N.Y. v. First Millennium, Inc., 607 F.3d 905, 922 (2d Cir. 2010). A district court’s dismissal of a claim for lack of subject matter jurisdiction is also reviewed de novo. See Norex Petroleum Ltd. v. Access Indus., Inc., 631 F.3d 29, 32 (2d Cir. 2010) (per curiam).
Weaver has forfeited any challenge to the district court’s dismissal of his amended complaint, as he does not address in his appellate brief any of the issues addressed by the district court, and, instead, merely reiterates his factual allegations and raises new claims. See LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995) (holding, in the context of a pro se appeal, that issues not raised in an appellate brief are abandoned); see also Tolbert v. Queens Coll., 242 F.3d 58, 75 (2d Cir. 2001) (“It is a settled appellate rule that issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.” (internal quotation marks omitted)). In any event, an independent review of the record and relevant case law and statutory provisions reveals that the district court properly adopted the magistrate judge’s recommendations to dismiss Weaver’s claims, and, thus, we affirm the district court’s judgment for substantially the same reasons stated by the magistrate judge in her thorough June 2010 and February 2011 reports and recommendations.
With respect to Weaver’s motion for leave to amend his amended complaint, this Court reviews the denial of a motion to amend, which was the practical effect of the district court’s termination of his motion, for abuse of discretion. See Spiegel v. Schulmann, 604 F.3d 72, 78 (2d Cir. 2010). We conclude that the district court did not abuse its discretion in terminating Weaver’s motion to amend, especially since he provided no explanation as to why he was unable to raise those claims earlier. Furthermore, a review of Weaver’s proposed claims reflects that they are essentially recharacterizations of the claims in his first amended complaint, and, thus, would suffer from the same defects as those claims. See Bellikoff v. Eaton Vance Corp., 481 F.3d 110, 118 (2d Cir. 2007) (“Leave to amend is especially inappropriate where ... proposed amendments [are] merely recycled versions of claims which ha[ve] already fallen victim to a motion to dismiss.”). Thus, we also affirm the district court’s order terminating Weaver’s motion to amend.
We have considered all of Weaver’s arguments and find them to be without merit. Accordingly, we AFFIRM the judgment and order of the district court. It is further ORDERED that Weaver’s motion to supplement the record and for this Court to take judicial notice is DENIED, as we generally do not consider materials on appeal that were not before the district court, see Int’l Bus. Machs. Corp. v. Edelstein, 526 F.2d 37, 45 (2d Cir. 1975), and do not find that extraordinary circumstances warranting the review of such materials exist in this case.
Reference
- Full Case Name
- Everette WEAVER, Plaintiff-Appellant, v. INDYMAC FEDERAL BANK, FSB, Now Known as One West Bank, FSB, F/K/A Indymac Bank, FSB, Defendant-Appellee, Houlihan Lawrence Real Estate, Inc., John Oliveira, Defendants-Cross Defendants-Appellees, Joan Davies, Defendant-Cross Claimant-Cross Defendant-Appellee, Clove Branch Road, LLC, Kevin P. Barry, Attorney at Law, Defendants-Cross Defendants-Cross Claimants-Appellees
- Cited By
- 3 cases
- Status
- Unpublished