526 F. App'x 49
2d Cir.
2013

Gerardo SANCHEZ, Plaintiff-Appellant, v. Kimberly WALENTIN, personally, et al., Defendants-Appellees, Yonkers Law Firm John/Jane Does 1-20, Defendants.

No. 12-1316.

United States Court of Appeals, Second Circuit.

June 5, 2013.

517 F. App‘x 49

to determine that any issues between Kamara and his counsel had been resolved and that Kamara truly wished to withdraw the request and proceed.

Similarly, the record does not demonstrate a “total lack of communication preventing an adequate defense.” Id. (quoting Simeonov, 252 F.3d at 241). Kamara‘s counsel represented Kamara from shortly after his arrest up to and including the filing of this appeal. And counsel had submitted a substantial sentencing memorandum on Kamara‘s behalf, which contained 40 letters from his friends and family, including many from West Africa, and which the district court later complimented in the course of imposing a below-Guidelines sentence. In addition to noting explicitly his satisfaction with counsel at the time he entered his guilty plea, Kamara did not express any dissatisfaction with counsel‘s services at the sentencing hearing; in fact, he indicated unequivocally that he was withdrawing his request for substitute counsel and desired to continue with his retained counsel. Responding to the district court‘s questioning whether Kamara was “withdrawing [his] request to end [his] relationship with [counsel],” Kamara answered, “Yes, you can take away the papers admitted and continue.” Tr., Oct. 3, 2011, at Def. App‘x 89. The district court noted further that Kamara‘s attorney had “ably and eloquently represented” Kamara.

The record indicates that the district court was made aware of Kamara‘s reasons for dissatisfaction with counsel through Kamara‘s letter. Notwithstanding this fact, the court inquired into Kamara‘s reasons at the sentencing hearing only to be told repeatedly and unequivocally that Kamara wished to proceed with his retained counsel. The district court, therefore, did not exceed the bounds of its discretion in allowing Kamara to withdraw his request for new counsel. The judgment of the district court is AFFIRMED.

Gerardo Sanchez, Astoria, NY, pro se.

Ryan D. Mitola, Schneider Mitola LLP, Garden City, NY, for Appellees Kimberly Walentin, Monzur Haque, Rachel Haque, Maria Flores, John G. Angelet, Roy R. Spells, Robert Walentin, Rodney McLean, Albert Weiss, Herman Fruend, Percy Goldman, Foundry Condominium Association, Board of Managers as Agent for the Foundry Condominium Association Board John/Jane Does 1-20, Maria Diee, Doreen Brown, John J. Lease, III, and John J. Lease Management Co. Inc.

Peter T. Shapiro, Lewis Brisbois Bisgaard & Smith LLP, New York, NY, for Appellees Milber, Makris, Plousadis & Seiden, LLP, and Patrick Palladino.

Steven A. Coploff, Of Counsel, Steinberg & Cavaliere, LLP, White Plains, NY, for Appellees Smith, Buss and Jacobs, LLP, Matthew Smith, Yael Wepman, and Kenneth R. Jacobs.

PRESENT: PETER W. HALL and GERARD E. LYNCH, Circuit Judges and PAUL A. ENGELMAYER,* District Judge.

SUMMARY ORDER

Appellant Gerardo Sanchez, pro se, appeals from the district court‘s decision granting the Appellees’ motions to dismiss his complaint on the ground that Appellant attempted to proceed pro se with claims that belonged to a corporation. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

First, we address the scope of our appellate jurisdiction, which the Appellees dispute. The district court‘s January 31, 2012 order granted the Appellees’ motions to dismiss but granted Appellant leave to replead. Similarly, the district court‘s March 8, 2012 order denied Appellant‘s motion for reconsideration and again granted him leave to replead. Those orders were non-final for purposes of appellate jurisdiction. See Slayton v. Am. Express Co., 460 F.3d 215, 224 (2d Cir. 2006). Appellant‘s subsequent notice of appeal, however, filed after issuance of the above non-final orders but before issuance of the district court‘s final order and judgment, ripened into a valid notice of appeal from the January 31, 2012 and March 8, 2012 orders. See Cmty. Bank, N.A. v. Riffle, 617 F.3d 171, 174 (2d Cir. 2010) (per curiam). Appellant nonetheless failed to file a notice of appeal from the district court‘s March 27, 2012 final order and judgment, and thus we lack jurisdiction to review that order and judgment. See Bowles v. Russell, 551 U.S. 205, 214, 127 S. Ct. 2360, 168 L. Ed. 2d 96 (2007).

Turning to the merits of the appeal, to the extent the district court dismissed the complaint pursuant to Federal Rule of Civil Procedure 12(b)(7) for failure to name a party as required by Rule 19, we review that decision for abuse of discretion. See Johnson v. Smithsonian Inst., 189 F.3d 180, 188 (2d Cir. 1999). To the extent the district court dismissed the complaint pursuant to Rule 12(b)(6), we review that decision de novo, construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff‘s favor. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002).

The district court did not err in requiring Appellant to file an amended complaint, through counsel, naming the proper corporate entity as plaintiff. “In all courts of the United States the parties may plead and conduct their own cases personally or by counsel....” 28 U.S.C. § 1654. However, a layperson may not represent a corporation in which he is the sole shareholder, a limited liability company of which he is the sole member, or a partnership where he is a partner. See Berrios v. N.Y.C. Hous. Auth., 564 F.3d 130, 133 (2d Cir. 2009); see also Jones v. Niagara Frontier Transp. Auth., 722 F.2d 20, 22 (2d Cir. 1983) (“The rule that a corporation may litigate only through a duly licensed attorney is venerable and widespread.“). Thus, Appellant could not have brought claims on behalf of a corporation. Although Appellant‘s complaint alleged that a corporation named Polonia had assigned its claims to him, we have specifically barred the assignment of claims by a corporation to a layperson so as to permit the layperson to proceed pro se. See Jones, 722 F.2d at 23 (affirming the dismissal of a complaint where non-attorney proceeding pro se claimed that a corporation had assigned its claims to him).

In his motion for reconsideration, Appellant claimed that only some of the claims belonged to Polonia, and others were his alone. Appellant raised that claim for the first time in a motion for reconsideration, however, and we “generally will not consider an argument on appeal that was raised for the first time below in a motion for reconsideration.” Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 53 (2d Cir. 2012) (internal quotations and alterations omitted). While this rule is prudential, its suspension is more likely when the issues in question are purely legal and thus require no fact finding. Id. Here, consideration of Appellant‘s arguments would require a determination of the identity of the entity known as “Polonia,” as well as an examination of which claims belong to the corporation and which claims, if any, belong to Appellant. We decline to undertake such fact finding here.

We have considered Appellant‘s remaining arguments and find them to be without merit. Accordingly, the district court‘s January 31, 2012, and March 8, 2012 orders are hereby AFFIRMED.

PETER W. HALL

GERARD E. LYNCH

PAUL A. ENGELMAYER

Notes

*
Hon. Paul A. Engelmayer, of the United States District Court for the Southern District of New York, sitting by designation.
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