15-3475
Chen v. Antel Communications, LLC et al.
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 24th day of June, two thousand sixteen.
5
6 PRESENT: DENNIS JACOBS,
7 GUIDO CALABRESI,
8 REENA RAGGI,
9 Circuit Judges.
10
11 - - - - - - - - - - - - - - - - - - - -X
12 JIA CHEN, AKA KEVIN CHEN,
13 Plaintiff-Appellant,
14
15 -v.- 15-3475
16
17 ANTEL COMMUNICATIONS, LLC & LOUIS
18 ANTONIOU,
19 Defendants-Appellees.
20 - - - - - - - - - - - - - - - - - - - -X
21
22 FOR APPELLANT: William M. Brown, Hang and
23 Associates, PLLC, Flushing, New
24 York.
25
26 FOR APPELLEES: Andrew W. Schwartz, Sills Cummis
27 & Gross, P.C., Newark, New
28 Jersey.
1
1 Appeal from an order of the United States District
2 Court for the Eastern District of New York (Feuerstein, J.).
3
4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
5 AND DECREED that the order of the district court is
6 AFFIRMED.
7
8 Jia Chen appeals from a September 30, 2015 order of the
9 United States District Court for the Eastern District of New
10 York (Feuerstein, J.), granting defendants-appellees’ motion
11 to dismiss in part and denying it in part. We assume the
12 parties’ familiarity with the underlying facts, the
13 procedural history, and the issues presented for review.
14
15 “[A] denial of a motion to dismiss is ordinarily
16 considered non-final, and therefore not immediately
17 appealable.” Hill v. City of New York, 45 F.3d 653, 659 (2d
18 Cir. 1995); see also Britt v. Garcia, 457 F.3d 264, 270 (2d
19 Cir. 2006) (“Because the district court ha[d] not yet
20 entered a final judgment, this appeal is interlocutory.”).
21 Chen has articulated no reason why he should be permitted to
22 take an interlocutory appeal in this case. Nonetheless, “‘a
23 premature notice of appeal from a nonfinal order may ripen
24 into a valid notice of appeal if a final judgment has been
25 entered by the time the appeal is heard and the appellee
26 suffers no prejudice.’” IUE AFL-CIO Pension Fund v.
27 Herrmann, 9 F.3d 1049, 1054-55 (2d Cir. 1993) (quoting Welch
28 v. Cadre Capital, 923 F.2d 989, 992 n.1 (2d Cir. 1991)).
29 Both conditions are satisfied here, so we proceed to the
30 merits of Chen’s claims.
31
32 Chen principally argues on appeal that the district
33 court erred in considering the Employment Agreement when
34 evaluating defendants-appellees’ motion to dismiss.
35 “[M]aterials outside the record may become the basis for a
36 dismissal” if: (1) the document is “‘integral’ to the
37 complaint”; (2) “no dispute exists regarding the
38 authenticity or accuracy of the document”; and (3) “there
39 exist no material disputed issues of fact regarding the
40 relevance of the document.” Faulkner v. Beer, 463 F.3d 130,
41 134 (2d Cir. 2006). The Employment Agreement meets all
42 three requirements given that, by its terms, it superseded
43 the Appointment Contract. Chen cannot evade that conclusion
44 merely because he carefully omitted mention of the
45 Employment Agreement in his complaint. “Carefully avoiding
46 all mention of [pertinent documents] does not make them any
47 less integral to [the] complaint.” Yak v. Bank Brussels
2
1 Lambert, 252 F.3d 127, 131 (2d Cir. 2001). Accordingly, the
2 district court properly exercised its discretion in taking
3 “the document into consideration in deciding the
4 [defendants’] motion to dismiss, without converting the
5 proceeding to one for summary judgment.” Int’l Audiotext
6 Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d
7 Cir. 1995).
8
9 Chen also argues he should have been given leave to
10 replead notwithstanding that he made no such application to
11 the district court. “[W]e do not deem it an abuse of the
12 district court’s discretion to order a case closed when
13 leave to amend has not been sought.” Shields v. Citytrust
14 Bancorp, Inc., 25 F.3d 1124, 1132 (2d Cir. 1994).
15
16 For the foregoing reasons, and finding no merit in
17 Chen’s other arguments, we hereby AFFIRM the order of the
18 district court.
19
20 FOR THE COURT:
21 CATHERINE O’HAGAN WOLFE, CLERK
22
3