Gordon v. Palumbo

09-1469-cv Gordon v. Palumbo 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 COURT ’S 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 “SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL . 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 13 th day of May, two thousand ten. 5 6 PRESENT: DENNIS JACOBS, 7 Chief Judge, 8 ROSEMARY S. POOLER, 9 ROBERT A. KATZMANN, 10 Circuit Judges. 11 12 - - - - - - - - - - - - - - - - - - - -X 13 DAVID GORDON, JACQUELINE SWISKEY, 14 Plaintiffs-Appellants, 15 16 -v.- 09-1469-cv 17 18 BRIAN PALUMBO, NILES WELIKSON, HORING 19 WELIKSON & ROSEN P.C., CAROLE A. FEIL 20 and JEFFREY FEIL, as Executors of the 21 Estate of Louis Feil, CAROLE A. FEIL, 22 and JEFFREY FEIL, d/b/a Clermont York 23 Associates, ANDREW RATTNER, VIVIAN 24 TULIATOS, ABE RILL, JOSE ANTONIO RUIZ, 25 also known as Tony, CARLOS GUEVARA, 26 CARL LIEBERMAN, NANCY LIEBERMAN, BRETT 27 LIEBERMAN, JAY ANDERSON, as Trustee of 28 the Feil Foundation, ALAN ROSENBLOOM, 1 1 NICOLE GOZ, BERNARD J. GOZ, BELLA M. 2 GOZ, STANLEY KALLMANN, BRIAN J. BOLAN, 3 GENNET KALLMANN ANTIN & ROBINSON, 4 P.C., AMERICAN INTERNATIONAL GROUP, 5 ATLANTIC MUTUAL INSURANCE COMPANY, 6 Defendants-Appellees, 7 8 LOUIS FEIL, 9 Defendant. 10 - - - - - - - - - - - - - - - - - - - -X 11 12 APPEARING FOR APPELLANTS: David Gordon, pro se, New York, 13 New York; Jacqueline Swiskey, 14 pro se, New York, New York. 15 16 APPEARING FOR APPELLEES: Douglas R. Jensen, Park & Jensen 17 LLP, New York, New York; Brendan 18 Malley, Law Offices of Beth Zaro 19 Green, Brooklyn, New York; 20 Deborah E. Riegel, Rosenberg & 21 Estis, P.C., New York, New York; 22 Brian J. Bolan, Gennett, 23 Kallmann, Antin & Robinson, 24 P.C., Parsippany, New Jersey. 25 26 Appeal from a judgment of the United States District 27 Court for the Southern District of New York (Castel, J.). 28 29 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED 30 AND DECREED that the judgment of the district court be 31 AFFIRMED. 32 33 Appellants David Gordon and Jacqueline Swiskey, pro se, 34 appeal the district court’s grant of appellees’ motion to 35 dismiss their complaint pursuant to Federal Rule of Civil 36 Procedure 12(b)(6). Appellants also appeal the district 37 court’s denial of their request for recusal. We assume the 38 parties’ familiarity with the underlying facts, the 39 procedural history, and the issues presented for review. 40 41 [1] We review de novo the district court’s dismissal of a 42 complaint pursuant to Rule 12(b)(6) of the Federal Rules of 43 Civil Procedure, accepting all factual allegations as true, 44 and drawing all reasonable inferences in the non-movant’s 45 favor. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152 46 (2d Cir. 2002); see also Miller v. Wolpoff & Abramson, 2 1 L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). To survive a 2 motion to dismiss, a complaint must plead “enough facts to 3 state a claim to relief that is plausible on its face.” 4 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see 5 also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). A 6 claim will have “facial plausibility when the plaintiff 7 pleads factual content that allows the court to draw the 8 reasonable inference that the defendant is liable for the 9 misconduct alleged.” Id. In applying these principles, we 10 are mindful that pro se complaints should be read with 11 “special solicitude” and interpreted to raise the “strongest 12 [claims] that they suggest.” Triestman v. Fed. Bureau of 13 Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (internal 14 quotation marks omitted) (per curiam). Nonetheless, in this 15 case appellants’ complaint was properly dismissed, as it 16 does not plausibly state a claim for which relief can be 17 granted. 18 19 [2] This Court reviews a judge’s refusal to recuse himself 20 for abuse of discretion. See Omega Eng’g, Inc. v. Omega, 21 S.A., 432 F.3d 437, 447 (2d Cir. 2005). We consider whether 22 a reasonable person, knowing all the facts, would conclude 23 that the trial judge’s impartiality could reasonably be 24 questioned. Taking into consideration all of the facts, the 25 district judge did not abuse his discretion in denying 26 appellants’ request for recusal. 27 28 Finding no merit in appellants’ remaining arguments, we 29 hereby AFFIRM the judgment of the district court. 30 31 FOR THE COURT: 32 CATHERINE O’HAGAN WOLFE, CLERK 33 3