Case Information
‐ ‐ cv Univ. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER
R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT S L OCAL R ULE 32.1.1. W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN ELECTRONIC DATABASE WITH THE NOTATION SUMMARY ORDER A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .
At stated term United States Appeals Second Circuit, held Thurgood Marshall Courthouse, Foley Square, New York, th day May, two thousand nineteen. PRESENT: BARRINGTON D. PARKER,
DENNY CHIN,
SUSAN L. CARNEY,
Circuit Judges.
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MATTHEW J. ROSENWASSER,
Plaintiff ‐ Appellant ‐ ‐ cv
FORDHAM UNIVERSITY, JOHN CARROLL,
Head Security, JOSEPH M C SHANE,
President,
Defendants ‐ Appellees
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FOR PLAINTIFF APPELLANT: Matthew J. Rosenwasser, New York,
New York. FOR DEFENDANTS APPELLEES: James Gerard Ryan, Cullen Dykman LLP,
Garden City, York. *2 Appeal from the District for the Southern District (Sullivan, J .).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED judgment the court AFFIRMED
Plaintiff appellant Matthew Rosenwasser, proceeding appeals court ʹ s judgment entered March 15, 2018, dismissing claims under 42 U.S.C. Education Amendments 1972, U.S.C. 1681 et seq ., against defendants appellees Fordham University its head security president (collectively, Fordham Rosenwasser ʹ s arise from events occurred May when Fordham banned Rosenwasser from its campus after security guard complained had harassed her. On June 11, 2011, Rosenwasser commenced an action state court against Fordham based on May events. The state court dismissed all one on motion dismiss dismissed final summary judgment May 12, 2017. Two months after state court May decision, filed current action below, alleging similar, if identical, those raised state court. By *3 order entered March the district court granted motion to dismiss, holding that federal untimely. We assume the parties = familiarity with the underlying facts, procedural history of the case, issues on appeal.
We review de novo the dismissal of complaint pursuant to Federal Rule Civil Procedure 12(b)(6), ʺ construing the complaint liberally, accepting all factual allegations true, drawing all reasonable inferences the plaintiff favor. ʺ Chambers , F.3d at 152; see also Pontiac Gen. Emps. ʹ Ret. Sys. v. MBIA, Inc. , F.3d Cir. 2011) (reviewing court interpretation application statute limitations at pleadings stage de novo must plead ʺ enough relief that plausible its face, ʺ Bell Atl. Corp. Twombly U.S. (2007), allow[] draw reasonable inference defendant liable misconduct alleged, Ashcroft Iqbal U.S. (2009). We construe pro se complaints liberally raise strongest they suggest, Triestman Fed. Bureau Prisons (per curiam), cannot read into pro se submissions consistent with litigant allegations, or arguments submissions themselves do suggest, id. citation omitted).
As initial matter, does raise appeal primary argument three year statute limitations was tolled while he litigated in from June 2011 to May 2017. [2] Therefore, we deem argument abandoned. See LoSacco v. City Middletown, 71 F.3d 92 ‐ 93 (2d Cir. 1995) (noting that, despite special solicitude afforded to them, appellants abandon issues not presented their appellate briefs, especially when they raised them below elected not pursue them appeal).
Instead, argues that statute limitations was equitably tolled based three additional grounds. These grounds, however, neither alleged pleadings nor raised court, therefore they are waived cannot be raised this juncture for first time. See Morse v. Univ. Vt. , 973 F.2d 125 (2d Cir. 1992) (declining address appellant equitable tolling argument that was not raised court); Greene v. , F.3d (2d Cir. 1994) [I]t is a well established general rule that appellate will consider an issue raised for first time appeal.
Even assuming did waive these arguments, we conclude failed present rare exceptional circumstances warranting equitable tolling. Walker Jastremski F.3d (2d Cir. 2005) (noting will apply equitable tolling where extraordinary circumstances prevented party timely *5 performing required act, . . party acted with reasonable diligence throughout period he sought toll ʺ alterations omitted)). First, Rosenwasser argues Fordham misled him as proper cause of action by labeling security guard ʹ ʺ harassment ʺ ‐‐ instead of ʺ sexual harassment ʺ ‐‐ avoid triggering Title IX. This assertion is unavailing because, even if allegations mislabeled, Rosenwasser was aware underlying security guard complaint. Second, contends prevented him exercising his rights by refusing conduct Title IX investigation. fact did discover[] existence Title IX ʺ until after years legal research, Appellant Reply Br. however, is no moment because ignorance law sufficient justify equitable tolling. See Ormiston Nelson n.5 1997). Finally, claim timely filed wrong forum similarly meritless because state courts have concurrent jurisdiction with courts over Title IX thus these could have been brought state action. Town Orangetown Magee N.Y.2d (1996) (adjudicating claim state court); In re Mularadelis Haldane Cent. Sch. Bd. N.Y.S.2d Dep t (adjudicating court). Therefore, Rossenwasser reasons delay do support equitable tolling.
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We have considered remaining arguments find them be without merit. Accordingly, AFFIRM judgment court. FOR THE COURT: Catherine O = Hagan Wolfe, Clerk
[1] relied our review are drawn federal court complaint filed July as well as filed June state court May summary judgment decision, which incorporated by reference into complaint. Chambers Time Warner, Inc. [A] deemed include any written instrument attached it exhibit or any statements or documents incorporated it by reference. omitted)).
[2] Although contends Title IX subject statute limitations, it well established New York three year limitation period personal injury actions applicable brought under IX 1983. Curto Edmundson Cir. 2004) (Title claims); Shomo F.3d (§ claims); see also N.Y. C.P.L.R. 214(5).