Henry Builders, Inc. v. United States

09-0730-cv
Henry Builders, Inc. v. United States of America

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX 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 23 rd day of March, two thousand and ten.
5
6 PRESENT: ROBERT D. SACK,
7 RICHARD C. WESLEY,
8 Circuit Judges,
9 RICHARD K. EATON,
10 Judge. *
11
12
13
14 HENRY BUILDERS, INC., AVERY ENTERPRISES, INC., HKL
15 ENTERPRISES, LLC, STANLEY HENRY, JULIE HENRY, EMILY S.
16 HENRY, JULIE ANN HENRY, HILDA ROBBINS,
17
18 Plaintiffs-Appellants,
19
20 -v.- 09-0730-cv
21
22 UNITED STATES OF AMERICA, TIMOTHY F. GEITHNER, ** IN HIS
23 CAPACITY AS SECRETARY OF THE TREASURY, J.P. MORGAN CHASE,
24 BAYVIEW LOAN SERVICING, LLC, OPTION ONE MORTGAGE
25 CORPORATION,
26
27 Defendants-Appellees.
28

*
The Honorable Richard K. Eaton, of the United States Court of
International Trade, sitting by designation.

**
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Secretary
of the Treasury Timothy F. Geithner is automatically substituted for former
Secretary of the Treasury Henry M. Paulson, Jr., as a defendant in this case.
 1 FOR APPELLANT: EMANUEL A. TOWNS, Brooklyn, NY.
2
3 FOR APPELLEES: VARUNI NELSON, Assistant United States
4 Attorney (Margaret M. Kolbe, Assistant
5 United States Attorney, of counsel), for
6 Benton J. Campbell, United States
7 Attorney for the Eastern District of New
8 York, Brooklyn, NY.
9
10 SETH J. LAPIDOW (Jonathan M. Korn, David
11 C. Kistler, on the brief), Blank Rome
12 LLP, Princeton, NJ.
13 for JPMorgan Chase & Co.
14
15 Appeal from the United States District Court for the
16 Eastern District of New York (Vitaliano, J.).
17
18 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

19 AND DECREED that the judgment of said district court be

20 AFFIRMED.

21 Appellants appeal from a judgment of the United States

22 District Court for the Eastern District of New York

23 (Vitaliano, J.), which dismissed their complaint with

24 prejudice. We assume the parties’ familiarity with the

25 underlying facts, the procedural history, and the issues

26 presented for review.

27 There are three threshold showings required in order to

28 demonstrate standing. First, a plaintiff must demonstrate

29 an “injury in fact,” which is defined as “an invasion of a

30 legally protected interest which is (a) concrete and

31 particularized, and (b) actual or imminent, not conjectural

32 or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S.

33 555, 560, 561 (1992) (internal citations and quotation marks
1 omitted). Second, “there must be a causal connection

2 between the injury and the conduct complained of,” which

3 requires that “the injury has to be fairly traceable to the

4 challenged action of the defendant and not the result of the

5 independent action of some third party not before the

6 court.” Id. (internal quotation marks omitted). Third,

7 there must be a likelihood “that the injury will be

8 redressed by a favorable decision.” Id. at 561 (internal

9 quotation marks omitted).

10 The appellants have failed adequately to plead

11 causation. They have conceded both in their papers and at

12 oral argument that it was the economic crisis, not any

13 action on the part of the appellees, that caused their

14 injuries. Inasmuch as the appellants’ claims could be

15 construed as arguing that the government exacerbated, rather

16 than caused, their injuries, their claims fail because of

17 the absence of an allegation of an affirmative legal duty on

18 the part of appellees to provide appellants with any such

19 funds.

20 For the foregoing reasons, the judgment of the district

21 court is hereby AFFIRMED.

22
23 FOR THE COURT:
24 Catherine O’Hagan Wolfe, Clerk
25
26
27

3