13‐3894‐cv
Danser v. Bagir Intʹl
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 1st day of July, two thousand fourteen.
PRESENT: GUIDO CALABRESI,
DENNY CHIN,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
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TIMOTHY L. DANSER,
Plaintiff‐Appellant,
v. 13‐3894‐cv
BAGIR INTERNATIONAL, et al.,
Defendants‐Appellees.
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FOR PLAINTIFF‐APPELLANT: Timothy L. Danser, pro se, South Hampton,
New York.
FOR DEFENDANTS‐APPELLEES: John P. Keil, Collazo, Florentino & Keil, L.L.P.,
New York, New York.
Appeal from a judgment of the United States District Court for the
Southern District of New York (Griesa, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment is AFFIRMED.
Appellant Timothy Danser, proceeding pro se, appeals from the district
courtʹs judgment dated September 18, 2013 dismissing his complaint and denying his
motions for the entry of default judgments against defendants‐appellees. Danserʹs pro
se complaint alleged discrimination in the terms of his employment with defendant‐
appellee Bagir International and breach of the separation agreement he signed upon
leaving the company. By opinion and order dated September 17, 2013, the district court
dismissed the complaint for failure to state a claim. We assume the partiesʹ familiarity
with the underlying facts, the procedural history of the case, and the issues on appeal.
We review dismissal of a cause of action under Federal Rule of Civil
Procedure 12(b)(6) de novo, accepting all factual allegations in the complaint as true and
drawing inferences in the light most favorable to the plaintiff. See Jaghory v. N.Y. State
Depʹt of Educ., 131 F.3d 326, 329 (2d Cir. 1997). We review a district courtʹs denial of a
default judgment for abuse of discretion. See Swarna v. Al‐Awadi, 622 F.3d 123, 133 (2d
Cir. 2010). Likewise, we review the denial of leave to amend a complaint for abuse of
discretion. See Pangburn v. Culbertson, 200 F.3d 65, 70 (2d Cir. 1999).
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While pro se complaints must contain sufficient factual allegations, pro se
complaints should be ʺconstrued liberallyʺ and interpreted ʺto raise the strongest
[claims] that they suggest.ʺ Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir.
2006) (per curiam) (internal quotation marks and alteration omitted). District courts
should afford ʺspecial solicitudeʺ to pro se complaints and should grant leave to amend
where it would not be futile. See id. at 475; Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.
2000).
On appeal, Danser argues that the district court erred in (1) dismissing his
claim that defendants breached the partiesʹ separation agreement, (2) denying his
motions for default judgments, and (3) denying him leave to amend his complaint.
Because Danser does not challenge the district courtʹs determination that his
discrimination and retaliation claims were barred by the separation agreementʹs release
provision, we deem any challenge to the district courtʹs dismissal of those claims
abandoned. See LoSacco v. City of Middletown, 71 F.3d 88, 92‐93 (2d Cir. 1995) (holding,
in context of pro se appeal, that issues not raised in appellate brief are abandoned).
We affirm the district courtʹs dismissal of the breach of contract claims for
substantially the reasons stated by the district court in its thorough opinion. We agree
with the district court that Danser did not plead sufficient facts to support his claims
that defendants failed to comply with the terms of the separation agreement and, thus,
dismissal was appropriate. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564‐65 (2007).
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Additionally, in light of Danserʹs failure to state a claim, the district court properly
declined to enter default judgment against defendants. See City of New York v. Mickalis
Pawn Shop, LLC, 645 F.3d 114, 137 (2d Cir. 2011) (ʺ[P]rior to entering default judgment, a
district court is required to determine whether the [plaintiffʹs] allegations establish [the
defendantʹs] liability as a matter of law.ʺ (internal quotation marks omitted) (alterations
in original)).
We likewise affirm the district courtʹs denial of Danserʹs request for leave
to amend his complaint. The district court did not explicitly discuss Danserʹs request
for leave to amend, but it implicitly denied the request as leave was not granted. The
district court did not abuse its discretion in not granting leave. Danser made the
request only in passing, and he did not submit a proposed amended complaint or
identify in his opposition to the motions to dismiss any additional factual allegations
that would have cured the deficiencies of the complaint.
We have considered Danserʹs remaining arguments and conclude that
they are without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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