Case Information
‐ ‐ cv Aidan A. Michael Hogan, et al.
In the
United States Court of Appeals
For the Second Circuit
________ August Term, 2014 No. ‐ ‐
A IDAN A. S MITH ,
Plaintiff Appellant , M ICHAEL H OGAN , President of University of Connecticut, P HILIP
A USTIN , Interim President University Connecticut, T HE B OARD OF T RUSTEES FOR THE U NIVERSITY OF C ONNECTICUT , C. D ENNIS
P IERCE , Director Dining Hall Services Connecticut, Hearing Officer, V ALICIA D. H ARMON D ANA R. M C G EE ,
Director Office Diversity Equity, U NIVERSITY OF C ONNECTICUT S TATE OF C ONNECTICUT [1] Defendants Appellees.
________
Appeal United States District Court District Connecticut. 3:10 cv (JBA) ― Janet Bond Arterton, Judge . ________
Submitted: April 2015 Decided: July 2015 ________
Before: K EARSE , P ARKER , AND W ESLEY , Circuit Judges .
________
Plaintiff appellant Aidan A. appeals from judgment of United States District Court for District Connecticut (Arterton, J. ) granting defendants’ dismiss complaint for lack standing for failure state claim upon which relief could granted, denying leave amend. AFFIRMED.
________
A RTHUR A. S MITH Hartford, CT, for Plaintiff ‐ Appellant Aidan A. .
P HILIP M ILLER Assistant Attorney General, for George Jepsen, Attorney General for State of Connecticut, Hartford, CT, for Defendants ‐ Appellees.
_____
B ARRINGTON D. P ARKER Circuit Judge :
BACKGROUND
Plaintiff appellant Aidan A. appeals judgment of United States District District Connecticut (Arterton, J. ) dismissing pursuant Rules 12(b)(1) 12(b)(6) Federal Rules Civil Procedure. Because we conclude affidavit attached an exhibit not “written instrument” deemed part complaint pursuant Rule 10(c), affirm court’s dismissal of wrongful termination claims brought Americans Disabilities Act Rehabilitation Act. We also affirm court’s remaining claims lack standing failure state upon relief can be ‐ granted. Finally, affirm the court’s denial Smith’s leave amend his complaint, a motion was first made following the entry the final judgment.
Because this appeal arises from court’s complaint, following facts are drawn from Amended Complaint accepted true. Over period time, Smith has suffered from series medical problems including bronchitis, bipolar disorder, learning disability, attention deficit disorder, post traumatic stress disorder. While in high school, Smith began work University Connecticut (the “University”) its Dining Hall Services student employee continued work there after enrolling at local community college 2009.
On September Smith began “feel[] ill while [working] food line.” JA 323. A supervisor told Smith get face mask, but because Smith “feared bronchitis was re ‐ occurring,” he did return food line. Id. alleges that treating physician told him it was “likely been bronchitis” made him feel ill day. asserts under Connecticut Public Health Code section B42(r), he prohibited returning food serving line with bronchitis. id. Further, because ongoing H1N1 (“swine flu”) epidemic time incident, University had “posted signs dining halls employees did need doctor’s excuses if feeling too ill work.” Id. Nevertheless, University terminated employment left food serving shift without supervisor’s permission, immediately terminable offense applicable regulations. unsuccessfully challenged discharge through
University’s internal grievance procedures. Following these proceedings, Smith’s father, attorney who represents him this appeal, contacted the University and made requests pursuant Connecticut Freedom Information (“CTFOI”) Act seeking various documents. Specifically, father requested “information related [the] University Connecticut Dining Hall Services[‘] policy pro active H1N1 procedures,” and CTFOI Commission hearing “to challenge the University’s failure comply with CTFOI Act.” Prior the hearing, father served subpoenas several University officials and employees, including the University’s president, its dining services director, and its attorney. According Smith, University’s attorney made ex parte contact with CTFOI hearing officer, and requested quash subpoenas protective order preclude additional subpoenas, both were granted.
In March 2010, filed with Connecticut Commission Human Rights Opportunities (“CHRO”) and United States Equal Employment Opportunity Commission (“EEOC”). August CHRO issued Merit Assessment Review, concluding had stated valid relief. CHRO also issued Release Jurisdiction EEOC issued its Notice Right Sue. subsequently filed lawsuit, bringing claims against
(1) officers discriminatory discharge under Americans Disabilities Act (“ADA”) U.S.C. § et seq. Rehabilitation Act U.S.C. § et seq. CTFOI hearing officer Valicia D. Harmon violating his father’s First Amendment rights granting University’s motion
No. 4276 to quash and motion protective order, and (3) all defendants for depriving him of his substantive due process rights.
The defendants moved dismiss the pursuant Rules 12(b)(1) and 12(b)(6). In September 2011, the district court granted defendants’ motion dismiss. As relevant this appeal, the court held (1) Smith’s ADA and Rehabilitation Act claims failed because bronchitis qualifying disability under either statute, and Smith’s alternate theory discrimination based an alleged anxiety disorder pled in the Amended Complaint, (2) Smith lacked standing raise First Amendment on behalf father, and Smith’s substantive due process claim failed “right” comply with state health codes does not warrant protection substantive due process clauses either Fifth Fourteenth Amendments. After dismissing the federal claims, district court declined exercise supplemental jurisdiction over Smith’s remaining state law claims, entered judgment in defendants’ favor. Smith Hogan 3:10 cv 1025, WL (D. Conn. Sept. 22, 2011).
In October Smith filed notice appeal in Court two motions district court – one reconsideration and one alter amend judgment. district treated two motions single reconsideration. November moved amend complaint. This stayed appeal pending court’s ruling various motions.
*6 No. 11 4276 ‐
Ultimately, district court denied motion for reconsideration for largely same reasons set forth original decision. See v. Hogan , 3:10 cv 1025, 2014 WL 5460716 (D. Conn. Oct. 27, 2014). Shortly thereafter, district court denied motion for leave amend, “[c]onstruing [it] as second motion for reconsideration (in light of procedural posture of case).” [3] This Court subsequently lifted stay Smith’s appeal.
STANDARD OF REVIEW
This reviews de novo district court’s for failure state claim, see Town of Babylon v. Fed. Hous. Fin. Agency , F.3d 221, (2d Cir. 2012), or for lack subject matter jurisdiction, see Triestman v. Fed. Bureau Prisons F.3d 471, 474 (2d Cir. 2006). While ordinarily, “[w]e review denial leave amend an ʹ abuse discretion ʹ standard[,] [w]hen denial leave amend based interpretation, such determination amendment would futile, reviewing court conducts de novo review.” Hutchison v. Deutsche Bank Sec. Inc. 647 F.3d (2d Cir. 2011) (citation omitted). A court’s denial motion reconsideration reviewed abuse of discretion. RJE Corp. Northville Indus . Corp ., F.3d 316 (2d Cir. 2003).
11 4276
DISCUSSION
I. ADA Rehabilitation Act Claims order establish prima facie case employment discrimination under ADA Rehabilitation Act, plaintiff must adequately plead that he was terminated because qualifying disability. See, e.g. McMillan City New York , F.3d Cir. 2013) (ADA); Doe Pfrommer (2d 1998) (Rehabilitation Act). The only theory wrongful termination pled in Smith’s complaint is that he “was terminated . . . because he left food serving shift without prior supervisory permission while ill.” JA 323. only basis feeling ill that Smith references complaint that he thought he had bronchitis. Further, he believed he did need supervisor’s permission leave when he was feeling sick because he had right do so pursuant Connecticut’s Health Code. However, Smith conceded oral argument before court bronchitis qualifying disability either ADA or Rehabilitation Act, he has attempted re litigate issue on this appeal.
Instead, argued opposition defendants’ to dismiss again appeal was terminated anxiety resulting being asked work salad line. See, e.g. Br. (describing ʹ s “disabling condition[]” being “anxious about making wraps”). However, includes no allegations knew, should known, that purported anxiety disorder was triggered being asked make salads. More critically, includes no allegations illness September even caused by anxiety. Accordingly, only theory articulated Smith’s ‐ complaint is that he was terminated because of his bronchitis, the University’s failure to accommodate his bronchitis. contends that adequately pleads an
anxiety based wrongful termination because it attaches an October affidavit that submitted connection the University grievance proceeding. The affidavit, is part of 170 pages of exhibits attached to the complaint, is four page summary of work history at the of the events that occurred the cafeteria on September 14. Specifically, he alleges that working on the salad line was “a high anxiety performance task” because “had little training at task,” that he asked be reassigned another task, after the request was denied, he began feel sick stomach. 8. district declined consider allegations
affidavit two separate reasons: (1) affidavit not “written instrument” contemplated Rule 10(c) thus, not properly considered part complaint, affidavit contains a legal theory–discrimination basis anxiety while serving food–that does not appear face complaint. See WL *4 Accordingly, court dismissed ADA Rehabilitation Act claims. Because we agree affidavit is “written instrument” purposes Rule 10(c), otherwise properly considered part dismiss, affirm court’s these claims.
Rule 10(c) provides “[a] copy written instrument that is exhibit pleading is part pleading all purposes.” Defendants contend plaintiff’s affidavit “written instrument” it document evidencing rights or 11 4276 duties or giving formal expression a legal act or agreement, such a deed, will, bond, lease, insurance policy or security agreement. Def. Br. 22 We agree.
While has previously ruled on extent to which Rule 10(c) applies plaintiff’s affidavit attached pleadings, two our sister courts have. Rose v. Bartle 871 F.2d 331, 339 n.3 Cir. 1989), Third Circuit held that affidavits are written instruments, noting “the types exhibits incorporated within pleadings by Rule 10(c) consist largely of documentary evidence, specifically, contracts, notes, other writing[s] [a party’s] action or defense based.” (internal quotation marks omitted). The Seventh Circuit held contrary Northern Indiana Gun & Outdoor Shows, Inc. v. City South Bend , F.3d & n.4 (7th Cir. 1998), concluding without explanation affidavits exhibits attached are “written instruments” Rule 10(c). Accord Schnell City Chicago (7th 1969), overruled other grounds by City Kenosha Bruno U.S. (“[A]ffidavits exhibits attached are part thereof all purposes.”).
We find Third Circuit’s holding more persuasive and align ourselves holding it consistent with general understanding what written instrument is, i.e. , “legal document defines rights, duties, entitlements, or liabilities, such statute, contract, will, promissory note, share certificate[,]” Black’s Law Dictionary (10th ed. 2014). affidavit proffered Smith, personal, narrative summary his experiences working cafeteria events occurred day discharged, bears no resemblance instruments 11 4276 such as contracts, registration statements, deeds or indentures. It is not a document that evidences legal rights or duties or sets forth the legal basis his claims therefore does satisfy definition of “written instrument.”
To be sure, has permitted consideration of other documents, apart written instruments under Rule 10(c), the dismiss stage, such as “documents that plaintiffs either possessed or knew about upon they relied in bringing suit.” City Pontiac Policemen’s & Firemen’s Ret. Sys. v. UBS AG F.3d 179 (2d Cir. 2014) (internal quotation marks omitted), including filings Securities Exchange Commission a prospectus, see Cortec Indus., Inc. Sum Holding L.P. F.2d (2d Cir. 1991). Further, have explained a may consider an “integral” document where complaint “relies heavily upon terms effect[.]” Int ʹ l Audiotext Network, Inc. Am. Tel. & Tel. Co. 1995). affidavit, writing own creation post dates his termination, is part complaint even these standards. contrast public filing prospectus, assertions affidavit no independent legal significance claim. affidavit is document relied upon in bringing wrongful termination claim, nor it document is integral it never even mentioned there.
Finally, treating affidavit part would do considerable damage Rule 8(a)’s notice requirement. The affidavit, buried pages exhibits, contains novel factual allegations purports support theory appears nowhere face Amended Complaint. If such affidavit could deemed part complaint, then Rule 8(a)’s requirement a short plain statement a claim relief could be granted would eviscerated. The exercise determining exactly what combination documents constitutes what plausibly alleges would become a needlessly complicated adventure both defendants courts. Even more troubling, adopting position would severely compromise the ability defendants courts to test viability complaints pleading stage, right integral federal procedure.
II. First Amendment Claim
Smith brought First Amendment claim against hearing officer Harmon on behalf his father improperly quashing subpoenas his father served various officers and employees.
Typically, plaintiff who asserts claims third party can obtain standing by establishing “(1) close relationship injured party barrier injured party’s ability assert own interests.” W.R. Huff Asset Mgmt. Co., LLC Deloitte & Touche LLP 2008). court dismissed claim, holding Smith “is unable demonstrate barrier his father’s ability assert his own First Amendment rights[,]” does standing bring First Amendment claim his father’s behalf. Smith WL at *5.
On appeal, argues if his father were bring own behalf, interests “may come into conflict” with son’s litigation position. Br. This conclusory assertion supported any identification purported inconsistency between two litigation positions. Nor does offer an explanation as to why father could have continued to pursue the FOI issues own capacity while representing him in this lawsuit. the alternative, Smith contends that has standing
bring First Amendment claim as facial challenge to an overbroad “practice or enactment.” Id. at 24. But Smith does challenge any statute, regulation, practice as facially overbroad. Rather, First Amendment arises the hearing officer’s specific ruling on the University’s motions to quash the subpoenas. Accordingly, we affirm the court’s dismissal claim.
III. Substantive Due Process Claim contends that the deprived him his “substantive due process liberty right to comply with state health codes.” Id. at 26. This contention has no merit. Substantive due process protections extend only those interests are “implicit concept ordered liberty,” Palko Connecticut U.S. 319, (1937), are rights “so rooted traditions and conscience our people as ranked as fundamental,” Reno v. Flores U.S. (internal quotation marks omitted). argues “[c]ompliance with health laws for student employee, lesson learning have regard well being others, well economic benefit oneself, is such privilege is essential orderly pursuit happiness.” Smith Br. We agree “[c]omplying with health codes” interest “fundamental deeply rooted . . . comparable right marry, right and raise children, right bodily integrity,” WL *8. Consequently, affirm Smith’s substantive due process claim.
IV. District ʹ s Ruling Smith’s Motion for Leave
Amend
Finally, argues district court erred in refusing “to grant leave replead after motion dismiss, without justification for futility plaintiff’s” claims. Br. 15; see also id. at Because motion leave amend was filed after entry final judgment, court construed Smith’s motion leave amend second motion reconsideration. denied motion, noting it “raises substantially same arguments raised [his] first for reconsideration, [which were] already considered denied this Court.” 316.
As previously noted, sought leave replead only after judgment had been entered. Because he did succeed having judgment vacated, entitled replead stage case. Nat ʹ l Petrochemical Co. Iran M/T Stolt Sheaf 930 1991) (explaining Rule 15(a)’s liberal amendment policy should “be employed way is contrary philosophy favoring finality judgments expeditious termination litigation” (internal quotation marks omitted)).
CONCLUSION
For these reasons, AFFIRM judgment district court.
[1] Clerk directed amend caption set forth above.
[1] also raised Fourth Fifth Amendment claims against University’s Office Diversity Equity director, Dana R. McGee, connection its independent investigation allegations. Because does discuss court’s these claims brief, has waived them appeal. See Lore City Syracuse 2012).
[2] “A party seeking file amended post[ ]judgment must first judgment vacated set aside pursuant Fed. R. Civ. P. 59(e) 60(b).” Ruotolo City New York 2008). Accordingly, appropriately construed motion amend second motion reconsideration its ruling dismiss.