16-2478-cv
Kammona v. Midsummer Investment, Ltd.
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
ASUMMARY ORDER@). A PARTY CITING TO 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 for the
2 Second Circuit, held at the Thurgood Marshall United States Courthouse,
3 40 Foley Square, in the City of New York, on the 20th day of April, two
4 thousand seventeen.
5
6 PRESENT:
7 PETER W. HALL,
8 GERARD E. LYNCH,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 Amir A. Kammona,
14
15 Plaintiff-Appellant,
16 v. 16-2478
17
18 Midsummer Investment, Ltd.,
19 Midsummer Capital, LLC., Joshua
20 Thomas, Michael Amsalem,
21
22 Defendants-Appellees.
23 _____________________________________
24
25 FOR PLAINTIFF-APPELLANT: Amir A. Kammona, pro se, Lenoir City,
26 TN.
27
28 FOR DEFENDANTS-APPELLEES: JACK YOSKOWITZ, Seward & Kissel LLP,
29 New York, NY.
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Appeal from an order of the United States District Court for the Southern
District of New York (Torres, J.; Fox, M.J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the order of the district court is AFFIRMED,
and Appellant’s motion to supplement the record with exhibits not presented to the
district court is DENIED.
Appellant Amir Kammona, proceeding pro se, filed a complaint in August 2014
against several defendants. Kammona objected to the form of the summonses issued
by the district court’s clerk’s office but was informed by the district court’s pro se
office that the summonses were valid. Kammona failed to serve the defendants, even
after the district court initially ordered him to serve the summonses, confirmed the
validity of the summonses, granted him two lengthy extensions to complete service,
and again ordered him to serve the defendants on pain of dismissal. Thereafter, in
June 2016, the district court dismissed the complaint without prejudice under
Federal Rule of Civil Procedure 41(b) for failure to obey a court order. Kammona now
appeals. He also moves to supplement the record with a volume of exhibits not
presented to the district court. We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the issues on appeal.
Under Rule 41(b), a district court may dismiss an action for failure to
prosecute or comply with a district court order. Fed. R. Civ. P. 41(b). We review
dismissals under Rule 41(b) for abuse of discretion. Baptiste v. Sommers, 768 F.3d
212, 216 (2d Cir. 2014). When dismissing a complaint under Rule 41(b), a court must
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consider “(1) the duration of the plaintiff’s failure to comply with the court order, (2)
whether plaintiff was on notice that failure to comply would result in dismissal, (3)
whether the defendants are likely to be prejudiced by further delay in the
proceedings, (4) a balancing of the court’s interest in managing its docket with the
plaintiff’s interest in receiving a fair chance to be heard, and (5) whether the judge
has adequately considered a sanction less drastic than dismissal.” Id. (quoting Lucas
v. Miles, 84 F.3d 532, 535 (2d Cir. 1996)). However, dismissals must “be [preceded] by
particular procedural prerequisites, including notice of the sanctionable conduct, the
standard by which it will be assessed, and an opportunity to be heard.” Id. at 217
(internal quotation marks omitted).
The district court did not abuse its discretion by dismissing Kammona’s
complaint under Rule 41(b) after considering all of the Baptiste factors. It gave
Kammona adequate notice that he was required to serve the defendants, gave him
two extensions of time to complete service, and warned him that failure to comply
would result in dismissal. Despite three orders instructing him to do so, Kammona
failed to serve the defendants within the deadlines imposed by the court. In its order
of dismissal, the district court considered the length of Kammona’s noncompliance,
his notice of the noncompliance, prejudice to the defendants resulting from the delay,
whether Kammona had an opportunity to be heard, and the possibility of lesser
sanctions. Given that Kammona’s noncompliance lasted for nearly two years, despite
two extensions and instructions by the court to serve the summonses, it was
reasonable for the court to dismiss the complaint. See Baptiste, 768 F.3d at 217
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(noting that delay of almost two years was excessive); cf. Lucas, 84 F.3d at 535 (delay
of 39 days was not a significant duration of noncompliance).
Kammona’s arguments on appeal that the summonses were invalid and the
district court failed to rule on his motion for a new summons are without merit. The
district court ordered Kammona to serve the defendants. His failure to do so, in
defiance of the court’s orders, warranted the complaint’s dismissal.
Kammona argues that he was prejudiced by the requirement that pro se
litigants submit papers to the pro se office and also prejudiced by delay or errors in
docketing certain submissions. These arguments fail. Courts are entitled to
promulgate local rules or otherwise regulate practice, as long as they do not conflict
with the Federal Rules of Civil Procedure or other federal laws. Fed. R. Civ. P. 83; see
Frazier v. Heebe, 482 U.S. 641, 645 (1987). No rule forbids the Southern District from
requiring that pro se litigants submit papers through the pro se office to ease the
administrative burden of those cases. Even assuming an unreasonable delay or error
in docketing submissions, Kammona has offered no plausible reason why any such
delay undermines the district court’s decision to dismiss. Any delay in docketing his
submissions to the court does not explain his refusal to serve the defendants.
Kammona also moves to supplement the record with postal service records
showing the actual delivery date of his complaint and an affidavit and screenshots
from the district court’s pro se office webpage. The affidavit is already part of the
record on appeal. But the postal records and screenshots were not submitted to the
district court, and the record on appeal is limited to “the original papers and exhibits
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filed in the district court.” Fed. R. App. P. 10(a)(1). While we will consider evidence
that was not presented to the district court in “extraordinary circumstances,” Int’l
Bus. Machs. Corp. v. Edelstein, 526 F.2d 37, 45 (2d Cir. 1975), Kammona has not
shown that these circumstances are extraordinary. The new exhibits have no bearing
on whether the district court abused its discretion by dismissing the complaint. Thus,
even if we were to grant Kammona’s motion or take judicial notice of the documents,
it would not change the result.
We have considered all of Kammona’s remaining arguments and find them to
be without merit. Accordingly, we AFFIRM the order of the district court and DENY
Kammona’s motion.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
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