18‐905‐cv Rosenwasser v. Fordham Univ.

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 7th day of May, two thousand nineteen.

PRESENT: BARRINGTON D. PARKER, DENNY CHIN, SUSAN L. CARNEY, Circuit Judges. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

MATTHEW J. ROSENWASSER, Plaintiff‐Appellant,

v. 18‐905‐cv

FORDHAM UNIVERSITY, JOHN CARROLL, Head of Security, JOSEPH MCSHANE, President, Defendants‐Appellees.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x FOR PLAINTIFF‐APPELLANT: Matthew J. Rosenwasser, pro se, New York, New York.

FOR DEFENDANTS‐APPELLEES: James Gerard Ryan, Cullen and Dykman LLP, Garden City, New York. Appeal from the United States District Court for the Southern District of

New York (Sullivan, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Plaintiff‐appellant Matthew Rosenwasser, proceeding pro se, appeals the

district courtʹs judgment entered March 15, 2018, dismissing his claims under

and Title IX of the Education Amendments of 1972,

et seq.,

against defendants‐appellees Fordham University and its head of security and

president (collectively, ʺFordhamʺ). Rosenwasserʹs claims arise from events that

occurred in May 2010 when Fordham banned Rosenwasser from its campus after a

security guard complained that he had harassed her.1 On June 11, 2011, Rosenwasser

commenced an action in state court against Fordham based on the May 2010 events.

The state court dismissed all but one of Rosenwasserʹs claims on Fordhamʹs motion to

dismiss and dismissed the final claim on summary judgment on May 12, 2017. Two

months after the state courtʹs May 2017 decision, Rosenwasser filed the current action

below, alleging similar, if not identical, claims to those raised in the state court. By

1 The facts relied on for our review are drawn from Rosenwasserʹs federal court complaint filed July 10, 2017, as well as his state court complaint filed June 11, 2011, and the state courtʹs May 12, 2017 summary judgment decision, which are incorporated by reference into the federal court complaint. See Chambers v. Time Warner, Inc.,

(2d Cir. 2002) (ʺ[A] complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference.ʺ (internal quotation marks omitted)).

‐ 2 ‐ order entered March 14, 2018, the district court granted Fordhamʹs motion to dismiss,

holding that Rosenwasserʹs federal claims were untimely. We assume the parties=

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

appeal.

We review de novo the dismissal of a complaint pursuant to Federal Rule

of Civil Procedure 12(b)(6), ʺconstruing the complaint liberally, accepting all factual

allegations in the complaint as true, and drawing all reasonable inferences in the

plaintiffʹs favor.ʺ Chambers,

; see also City of Pontiac Gen. Emps.ʹ Ret. Sys.

v. MBIA, Inc.,

(2d Cir. 2011) (reviewing district courtʹs interpretation

and application of statute of limitations at pleadings stage de novo). The complaint

must plead ʺenough facts to state a claim to relief that is plausible on its face,ʺ Bell Atl.

Corp. v. Twombly,

(2007), and to ʺallow[] the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged,ʺ Ashcroft v.

Iqbal,

(2009). We construe pro se complaints liberally to raise the

strongest claims they suggest, Triestman v. Fed. Bureau of Prisons,

(2d

Cir. 2006) (per curiam), but we ʺcannot read into pro se submissions claims that are not

consistent with the pro se litigantʹs allegations, or arguments that the submissions

themselves do not suggest,ʺ

(internal quotation marks and citation omitted).

As an initial matter, Rosenwasser does not raise on appeal his primary

argument in the district court that the three‐year statute of limitations on his federal

‐ 3 ‐ claims was tolled while he litigated in state court from June 2011 to May 2017.2

Therefore, we deem the argument abandoned. See LoSacco v. City of Middletown,

, 92‐93 (2d Cir. 1995) (noting that, despite the special solicitude afforded to them,

pro se appellants abandon issues not presented in their appellate briefs, especially when

they raised them below and elected not to pursue them on appeal).

Instead, Rosenwasser argues that the statute of limitations was equitably

tolled based on three additional grounds. These grounds, however, were neither

alleged in his pleadings nor raised in the district court, and therefore they are waived

and cannot be raised at this juncture for the first time. See Morse v. Univ. of Vt.,

(2d Cir. 1992) (declining to address appellantʹs equitable tolling argument that

was not raised in the district court); Greene v. United States,

(2d Cir.

1994) (ʺ[I]t is a well‐established general rule that an appellate court will not consider an

issue raised for the first time on appeal.ʺ).

Even assuming Rosenwasser did not waive these arguments, we conclude

that he failed to present ʺrare and exceptional circumstancesʺ warranting equitable

tolling. Walker v. Jastremski,

(2d Cir. 2005) (noting that we will apply

equitable tolling where ʺextraordinary circumstances prevented a party from timely

2 Although Rosenwasser contends that his Title IX claims are not subject to a statute of limitations, it is well established that New Yorkʹs three‐year limitation period for personal injury actions is applicable to claims brought under Title IX and § 1983. See Curto v. Edmundson,

(2d Cir. 2004) (Title IX claims); Shomo v. City of New York,

(2d Cir. 2009) (§ 1983 claims); see also

(5).

‐ 4 ‐ performing a required act, and . . . the party acted with reasonable diligence throughout

the period he sought to tollʺ (internal quotation marks and alterations omitted)). First,

Rosenwasser argues that Fordham misled him as to the proper cause of action by

labeling the security guardʹs complaint as ʺharassmentʺ ‐‐ instead of ʺsexual

harassmentʺ ‐‐ to avoid triggering Title IX. This assertion is unavailing because, even if

the allegations were mislabeled, Rosenwasser was aware of the facts underlying the

security guardʹs complaint. Second, Rosenwasser contends that Fordham prevented

him from exercising his rights by refusing to conduct a Title IX investigation. The fact

that Rosenwasser did not ʺdiscover[] the existence of Title IXʺ until ʺafter years of legal

research,ʺ Appellantʹs Reply Br. at 8, however, is of no moment because ignorance of

the law is not sufficient to justify equitable tolling. See Ormiston v. Nelson,

,

72 n.5 (2d Cir. 1997). Finally, Rosenwasserʹs claim that he timely filed his complaint

but in the wrong forum is similarly meritless because New York state courts have

concurrent jurisdiction with federal courts over Title IX and § 1983 claims and thus

these claims could have been brought in his state court action. See Town of Orangetown

v. Magee,

(1996) (adjudicating § 1983 claim in state court); In re Mularadelis

v. Haldane Cent. Sch. Bd.,

(2d Depʹt 1980) (adjudicating Title IX claim in

state court). Therefore, Rossenwasserʹs reasons for delay do not support equitable

tolling.

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We have considered Rosenwasserʹs remaining arguments and find them

to be without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O=Hagan Wolfe, Clerk of Court

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