569 F. App'x 48

2d Cir.

2014

Jehan Zeb MIR, Plaintiff-Appellant, v. Nirav R. SHAH, M.P.H., as Commissioner, State of New York Department of Health Services State Board for Professional Medical Conduct, Defendants-Appellees.

No. 13-55

United States Court of Appeals, Second Circuit

June 17, 2014

cuit is clear that a tippee‘s gains and losses avoided are “attributable to the tipper, regardless whether benefit accrues to the tipper.” SEC v. Warde, 151 F.3d 42, 49 (2d Cir.1998). Furthermore, the Securities Exchange Act unambiguously authorizes federal courts to impose civil penalties for insider trading in amounts “determined by the court in light of the facts and circumstances [not to] exceed three times the profit gained or loss avoided.” 15 U.S.C. § 78u-1(a)(2). Here, the district court considered but rejected Gupta‘s argument that “a treble penalty is inappropriate in light of the criminal penalties already imposed.” Gupta, 2013 WL 3784138, at *2. The district court considered the relevant factors, including the egregiousness of Gupta‘s conduct, see SEC v. Haligiannis, 470 F.Supp.2d 373, 386 (S.D.N.Y.2007), and reasonably concluded that imposition of “the maximum allowable civil penalty” was appropriate. Gupta, 2013 WL 3784138, at *2.

Accordingly, we find no abuse of discretion in the imposition of injunctive relief and civil penalties on Gupta by the district court.

We have considered Gupta‘s remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.

Jehan Zeb Mir, Redondo Beach, CA, pro se.

Mark Shawhan, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, and Michael S. Belohlavek, Senior Counsel, on the brief), for Eric T. Schneiderman, Attorney General of the State of New York, New York, NY, for Defendants-Appellees.

PRESENT: B.D. PARKER, DENNY CHIN, Circuit Judges, WILLIAM K. SESSIONS, III, District Judge.^*

SUMMARY ORDER

Plaintiff-appellant Jehan Zeb Mir, a physician whose New York medical license was revoked, proceeding pro se, appeals the district court‘s orders filed August 8, 2012 dismissing his claims challenging, inter alia, the constitutionality of New York Public Health Law § 230(10)(p) (“Section 230“), and filed December 4, 2012 denying Mir‘s motion for reconsideration.² We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

We review de novo a district court decision dismissing a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Jaghory v. N.Y. State Dep‘t of Educ., 131 F.3d 326, 329 (2d Cir.1997). To survive a Rule 12(b)(6) motion to dismiss, the complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). We also review de novo “the essentially legal determination of whether the requirements for abstention have been met.” Diamond “D” Constr. Corp. v. McGowan, 282 F.3d 191, 197 (2d Cir.2002) (internal quotation marks omitted).

Further, we review a district court‘s denial of reconsideration for abuse of discretion. See Johnson v. Univ. of Rochester Med. Ctr., 642 F.3d 121, 125 (2d Cir.2011). A district court abuses its discretion when its decision: (1) rests on an error of law or a clearly erroneous factual finding; or (2) cannot be found within the range of permissible decisions. Id. “[R]econsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked—matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir.1995). Reconsideration should not be granted where “the moving party seeks solely to relitigate an issue already decided.” Id.

We affirm for substantially the reasons stated in the district court‘s thorough and well-reasoned orders. In light of the Supreme Court‘s recent holding in Sprint Communications, Inc. v. Jacobs, — U.S. —, 134 S.Ct. 584, 187 L.Ed.2d 505 (2013), however, we revisit the issue of abstention under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).

In determining that Younger abstention precluded consideration of all but one of Mir‘s federal claims, the district court applied the three-part test derived from Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 432, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982). While this appeal was pending, however, the Supreme Court rejected this three-part test in favor of a categorical approach. See Sprint, 134 S.Ct. at 591-94. It clarified that Younger abstention is triggered by only three categories of state court proceedings: (1) “state criminal prosecutions“; (2) “civil enforcement proceedings“; and (3) civil proceedings that “implicate a State‘s interest in enforcing the orders and judgments of its courts.” Id. at 588 (internal quotation marks omitted). Prior to Sprint, our jurisprudence on Younger abstention focused on the substance of the claims involved in the state and federal proceedings by asking whether they implicated an important state interest. See Diamond “D” Constr., 282 F.3d at 198. By contrast, under the categorical approach outlined by Sprint, federal abstention requires a criminal proceeding, a civil enforcement proceeding, or a determination that a state court‘s ability to perform its judicial function would be otherwise impeded. See Sprint, 134 S.Ct. at 588. In light of Sprint, the district court‘s analysis is no longer applicable. Nevertheless, remand is not necessary because abstention is still appropriate here under the Sprint framework.

As Section 230 outlines proceedings for revoking a physician‘s medical license, it fits within Sprint‘s second category—civil enforcement proceedings. The Sprint Court defined this category with reference to two cases: Middlesex, 457 U.S. at 433-34, 102 S.Ct. 2515, a federal challenge to state disbarment proceedings; and Huffman v. Pursue, Ltd., 420 U.S. 592, 598, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975), a federal challenge to a state‘s civil suit to enforce its obscenity laws. See Sprint, 134 S.Ct. at 592. The Sprint Court explained that enforcement actions within this second category resemble criminal prosecutions in “important respects“: they “characteristically . . . sanction the federal plaintiff . . . for some wrongful act“; they are “routinely” initiated by a state actor; and they are “commonly” preceded by investigations that culminate in the “filing of a formal complaint or charges.” Id. New York‘s referral proceedings are initiated by a state actor, are preceded by investigations that culminate in formal charges, and sanction the physician for some wrongful act. See generally N.Y. Pub. Health Law § 230 (providing procedures for revocations of medical licenses). For Younger purposes, this type of proceeding resembles a criminal prosecution “in important respects.” Sprint, 134 S.Ct. at 592. Moreover, Sprint reaffirmed the court‘s adherence to abstention in disciplinary proceedings involving professional licenses. Id. Therefore, we conclude that abstention was warranted in this case.

We have considered Mir‘s remaining arguments and find them to be without merit. Accordingly, we AFFIRM the district court‘s judgment and order denying reconsideration.

Sheila WOLK, Plaintiff-Appellant, v. PHOTOBUCKET.COM, INC., Defendant-Appellee, Kodak Imaging Network, Inc., Eastman Kodak Company, Defendants.^*

No. 12-420-cv.

United States Court of Appeals, Second Circuit.

June 17, 2014.

Sheila Wolk, New York, NY, pro se.

Kenneth P. Norwick, Norwick, Schad & Goering, New York, NY; Mark Lerner, Satterlee Stephens Burke & Burke LLP, New York, NY, for Appellee.

Present: REENA RAGGI, GERARD E. LYNCH, RAYMOND J. LOHIER, JR., Circuit Judges.

Notes

We “construe notices of appeal liberally, taking the parties’ intentions into account,” , and our appellate jurisdiction “depends on whether the intent to appeal from [a] decision is clear on the face of, or can be inferred from, the notice[] of appeal,” . Here, although Mir‘s notice of appeal designates only the order denying reconsideration, his supporting papers attached to his notice address the district court‘s entire dismissal. Construing his notice of appeal liberally, we conclude that Mir intended to appeal from both orders.

The Honorable William K. Sessions, III, of the United States District Court for the District of Vermont, sitting by designation. The Clerk of Court is directed to amend the official caption as shown above.

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