13‐3894‐cv Danser v. Bagir Intʹl

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 COURTʹS 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 ʺSUMMARY ORDERʺ). 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 1st day of July, two thousand fourteen.

PRESENT: GUIDO CALABRESI, DENNY CHIN, RAYMOND J. LOHIER, JR., Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

TIMOTHY L. DANSER, Plaintiff‐Appellant,

v. 13‐3894‐cv

BAGIR INTERNATIONAL, et al., Defendants‐Appellees.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

FOR PLAINTIFF‐APPELLANT: Timothy L. Danser, pro se, South Hampton, New York.

FOR DEFENDANTS‐APPELLEES: John P. Keil, Collazo, Florentino & Keil, L.L.P., New York, New York.

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

Southern District of New York (Griesa, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment is AFFIRMED.

Appellant Timothy Danser, proceeding pro se, appeals from the district

courtʹs judgment dated September 18, 2013 dismissing his complaint and denying his

motions for the entry of default judgments against defendants‐appellees. Danserʹs pro

se complaint alleged discrimination in the terms of his employment with defendant‐

appellee Bagir International and breach of the separation agreement he signed upon

leaving the company. By opinion and order dated September 17, 2013, the district court

dismissed the complaint for failure to state a claim. We assume the partiesʹ familiarity

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

We review dismissal of a cause of action under Federal Rule of Civil

Procedure 12(b)(6) de novo, accepting all factual allegations in the complaint as true and

drawing inferences in the light most favorable to the plaintiff. See Jaghory v. N.Y. State

Depʹt of Educ.,

, 329 (2d Cir. 1997). We review a district courtʹs denial of a

default judgment for abuse of discretion. See Swarna v. Al‐Awadi,

(2d

Cir. 2010). Likewise, we review the denial of leave to amend a complaint for abuse of

discretion. See Pangburn v. Culbertson,

(2d Cir. 1999). 2 While pro se complaints must contain sufficient factual allegations, pro se

complaints should be ʺconstrued liberallyʺ and interpreted ʺto raise the strongest

[claims] that they suggest.ʺ Triestman v. Fed. Bureau of Prisons,

(2d Cir.

2006) (per curiam) (internal quotation marks and alteration omitted). District courts

should afford ʺspecial solicitudeʺ to pro se complaints and should grant leave to amend

where it would not be futile. See

; Cuoco v. Moritsugu,

(2d Cir.

2000).

On appeal, Danser argues that the district court erred in (1) dismissing his

claim that defendants breached the partiesʹ separation agreement, (2) denying his

motions for default judgments, and (3) denying him leave to amend his complaint.

Because Danser does not challenge the district courtʹs determination that his

discrimination and retaliation claims were barred by the separation agreementʹs release

provision, we deem any challenge to the district courtʹs dismissal of those claims

abandoned. See LoSacco v. City of Middletown,

, 92‐93 (2d Cir. 1995) (holding,

in context of pro se appeal, that issues not raised in appellate brief are abandoned).

We affirm the district courtʹs dismissal of the breach of contract claims for

substantially the reasons stated by the district court in its thorough opinion. We agree

with the district court that Danser did not plead sufficient facts to support his claims

that defendants failed to comply with the terms of the separation agreement and, thus,

dismissal was appropriate. See Bell Atl. Corp. v. Twombly,

, 564‐65 (2007).

3 Additionally, in light of Danserʹs failure to state a claim, the district court properly

declined to enter default judgment against defendants. See City of New York v. Mickalis

Pawn Shop, LLC,

(2d Cir. 2011) (ʺ[P]rior to entering default judgment, a

district court is required to determine whether the [plaintiffʹs] allegations establish [the

defendantʹs] liability as a matter of law.ʺ (internal quotation marks omitted) (alterations

in original)).

We likewise affirm the district courtʹs denial of Danserʹs request for leave

to amend his complaint. The district court did not explicitly discuss Danserʹs request

for leave to amend, but it implicitly denied the request as leave was not granted. The

district court did not abuse its discretion in not granting leave. Danser made the

request only in passing, and he did not submit a proposed amended complaint or

identify in his opposition to the motions to dismiss any additional factual allegations

that would have cured the deficiencies of the complaint.

We have considered Danserʹs remaining arguments and conclude that

they are without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

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