Lue v. JPMorgan Chase & Co.
Opinion
18‐1248‐cv Lue v. JPMorgan Chase & Co.
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 24th day of April, two thousand nineteen.
PRESENT: RICHARD C. WESLEY, DENNY CHIN,
Circuit Judges,
LEWIS A. KAPLAN,
District Judge.*
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CANDICE LUE, Plaintiff‐Appellant,
v. 18‐1248‐cv
JPMORGAN CHASE & CO., ALEX KHAVIN, FIDELIA SHILLINGFORD, JOHN VEGA, HELEN DUBOWY, PHILIPPE QUIX, THOMAS POZ, CHRIS LIASIS, MICHELLE SULLIVAN, Defendants‐Appellees.**
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* Judge Lewis A. Kaplan, of the United States District Court for the Southern District of New York, sitting by designation. ** The Clerk of Court is instructed to amend the official caption to conform to the above.
FOR PLAINTIFF‐APPELLANT: CANDICE LUE, pro se, Lodi, New Jersey.
FOR DEFENDANTS‐APPELLEES: ANSHEL J. KAPLAN (Robert S.
Whitman, on the brief), Seyfarth Shaw LLP, New York, New York.
Appeal from the United States District Court for the Southern District of New York (Nathan, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiff‐appellant Candice Lue, proceeding pro se, appeals the district courtʹs judgment entered March 28, 2018, in favor of defendants‐appellees JPMorgan Chase & Co. and its employees (collectively, ʺdefendantsʺ), dismissing Lueʹs employment discrimination and retaliation claims.1 By memorandum and order entered March 27, 2018, the district court granted defendantsʹ motion for summary judgment. We assume the partiesʹ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
1 Lue does not reference her state tort claims, hostile work environment claim, or her ʺaiding and abettingʺ and ʺfailure to take steps to preventʺ claims, except to the extent that she refers this Court to arguments in documents outside her appellate brief. Hence, we deem these claims abandoned. See Lederman v. N.Y.C. Dep’t of Parks & Recreation, 731 F.3d 199, 203 n.1 (2d Cir. 2013) (ʺAppellants do not preserve questions for appellate review by merely incorporating an argument made to the district court by reference in their brief.ʺ (internal quotation marks and alterations omitted)); LoSacco v. City of Middletown, 71 F.3d 88, 92 (2d Cir. 1995) (issues not raised in a pro se appellate brief are abandoned).
I. Procedural Matters Lue argues that the district court abused its discretion in striking her opposition to summary judgment, imposing page limits on any new submission, and ultimately deeming defendantsʹ summary judgment motion unopposed. We review the district courtʹs grant of defendantsʹ motion to strike and its imposition of page limits for abuse of discretion. See Design Strategy, Inc. v. Davis, 469 F.3d 284, 296 (2d Cir. 2006) (motion to strike)2; Pa. Pub. Sch. Emps.ʹ Ret. Sys. v. Morgan Stanley & Co., 772 F.3d 111, 121‐22 (2d Cir. 2014) (imposition of page limits). We likewise consider the district courtʹs deeming defendantsʹ summary judgment motion unopposed ‐‐ as we would its grant of default judgment ‐‐ for abuse of discretion. City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 131 (2d Cir. 2011); see also Caban Hernandez v. Philip Morris USA, Inc., 486 F.3d 1, 7‐8 (1st Cir. 2007).
Lue submitted a lengthy opposition that was out of proportion to the defendantsʹ motion, including a 198‐page memorandum of law in response to defendantsʹ 25 pages. The district courtʹs decision to strike this submission and to instruct Lue to resubmit her opposition in compliance with a reasonable page limitation
2 There is some confusion as to whether a district courtʹs grant of a motion to strike is reviewed for manifest error or abuse of discretion. Compare Hollander v. Am. Cyanamid Co., 172 F.3d 192, 198 (2d Cir. 1999) (ʺWe will not disturb a district courtʹs grant of a motion to strike unless manifestly erroneous.ʺ), with Design Strategy, Inc., 469 F.3d at 296 (analyzing motion to strike under abuse of discretion standard). Because we conclude that the district courtʹs decision to strike Lueʹs opposition survives the more lenient abuse of discretion standard, we need not resolve this inconsistency here.
was not an abuse of discretion. Although Lue argues that the courtʹs page limits would have prevented her from presenting ʺninety percentʺ of her arguments, she made no attempt to comply with the district courtʹs instructions and has not shown that she could not adequately oppose summary judgment within the courtʹs limits. Contrary to Lueʹs argument on appeal, the district court did not impose page limits on affidavits or other evidence. Lueʹs argument regarding retroactive application of individual rules of practice is similarly meritless; the district court struck her filings as ʺoverly burdensomeʺ and not for failure to comply with these rules, and the record reflects that Lue was served with defendantsʹ motion to strike. Under these circumstances, the district courtʹs decision to strike Lueʹs submission and impose page limits was well within the range of permissible decisions.3 The district court did not abuse its discretion in deeming defendantsʹ summary judgment motion unopposed, given Lueʹs repeated failure to submit a compliant opposition. Lue failed to file an opposition in compliance with the courtʹs orders, despite eight extensions of time to comply and five warnings of the consequence of continued noncompliance. See Fed. R. Civ. P. 83(b). ʺ[A]ll litigants, including pro ses, have an obligation to comply with court orders. When they flout that obligation
3 Lue claims judicial bias because the district court struck her opposition, referred the case to mediation, and declined to enter default judgment in her favor. She also asserts, incorrectly, that the district court misquoted her in an order. These arguments fail because the adverse rulings alleged here do not support a claim of judicial bias. See Zuhua Chen v. Chen Qualified Settlement Fund, 552 F.3d 218, 227 (2d Cir. 2009).
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