10-1908-cv
United States v. Brow
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.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in
the City of New York, on the 11th day of January, two thousand twelve.
PRESENT:
RALPH K .WINTER,
PETER W. HALL,
DENNY CHIN,
Circuit Judges.
_________________________________________
United States of America,
Plaintiff - Counter-Defendant - Appellee,
v. 10-1908-cv
Ronald A. Brow,
Defendant - Counter-Claimant -
Third-Party Plaintiff - Appellant,
v.
Rutgers, State University of New Jersey,
Third-Party Defendant - Appellee,
Government of the US Virgin Islands,
Defendant - Third-Party Defendant.
_________________________________________
FOR APPELLANT: Ronald A. Brow, pro se, Jamaica, NY.
FOR APPELLEES: Nicole Bearce Albano, Lowenstein Sandler, PC, New York,
NY, for Appellee Rutgers, State University of New Jersey.
No appearance for the Government.
Appeal from a judgment of the United States District Court for the Eastern District
of New York (Townes, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED and the request for
sanctions by Appellee Rutgers, State University of New Jersey, is DENIED.
Appellant Ronald A. Brow, proceeding pro se, appeals from the district court’s
dismissal of his third-party complaints against Appellee Rutgers, the State University of
New Jersey (“Rutgers”). We construe Brow’s appeal as taken from the dismissal of his
third-party complaints in United States v. Brow, 05-cv-1607 (the “1607 action”), and
United States v. Brow, 05-cv-1609 (the “1609 action”). See Shrader v. CSX Transp., Inc.,
70 F.3d 255, 256 (2d Cir. 1995) (“[W]e construe notices of appeal liberally, taking the
parties’ intentions into account.”). Moreover, the district court’s judgment in this matter
brings up for our review all prior interlocutory rulings. Cf. Anobile v. Pelligrino, 303 F.3d
107, 115 (2d Cir. 2002). We assume the parties’ familiarity with the underlying facts,
procedural history of the case, and issues on appeal.
I. Third-Party Complaints Against Rutgers
Although the district court’s judgment is labeled as a grant of judgment on the
pleadings, the court had converted Rutgers’ motion to one for summary judgment, as its
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motion relied on matters outside the pleadings. We therefore treat the district court’s
judgment, with respect to the dismissal of Brow’s third-party complaints, as a grant of
summary judgment. Cf. Eklof Marine Corp. v. United States, 762 F.2d 200, 202 (2d Cir.
1985). In any event, we review de novo both the grant of a motion for judgment on the
pleadings, see Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010), and a motion for
summary judgment, see Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.
2003).
The district court dismissed Brow’s third-party actions on the sole ground that he
had failed to comply with the notice of claim requirements under the New Jersey Tort
Claims Act, N.J.S.A. §§ 59:1-1 to 9-7 (“NJTCA”), which requires that a notice of tort
claim be filed with a public entity no later than ninety days after the alleged incident.
Although Brow does not raise any challenge on appeal to the district court’s stated reasons
for dismissal, courts have found, in certain circumstances, that the NJTCA’s notice
requirements do not apply to third-party claims against public entities. See Wells v.
Dillihay, No. 07-4737, 2008 WL 2036812, at *4 n.9 (D.N.J. May 12, 2008) (citing Beretta
v. Cannon, 219 N.J. Super. 147, 155 (Law Div. 1987); Markey v. Skog, 129 N.J. Super.
192, 206 (Law Div. 1974)).
Notwithstanding the district court ruling, we need not reach the application of the
NJTCA, as we may affirm based on “any ground appearing in the record.” Freedom
Holdings, Inc. v. Cuomo, 624 F.3d 38, 49 (2d Cir. 2010). Brow’s third-party complaints
were practically devoid of factual allegations, aside from his contentions concerning
Rutgers’ response to a subpoena in an unrelated action, and contained only the most
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conclusory of accusations against the university. Specifically, his contentions that Rutgers
had committed fraud, negligence, and breach of fiduciary duty were supported by no
relevant facts.1 Pleadings of such deficient nature plainly warrant dismissal. See Ashcroft
v. Iqbal, 129 S. Ct. 1937, 1949 (2009); Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009).
Although a pro se litigant should generally be granted leave to amend his complaint
“when a liberal reading of the complaint gives any indication that a valid claim might be
stated,” Shomo v. City of N.Y., 579 F.3d 176, 183 (2d Cir. 2009) (internal quotation marks
omitted), leave to amend need not be granted where amendment would be “futile,” Ellis v.
Chao, 336 F.3d 114, 127 (2d Cir. 2003). When faced with Rutgers’ dispositive motion
pointing out several pleading deficiencies, Brow attempted to file an amended third-party
complaint that not only failed to correct the deficiencies of his original complaint, but
asserted entirely new claims that were wholly unrelated to the original complaint or the
underlying actions pertaining to his loan defaults. Likewise, to the extent that Brow
alleged that Rutgers had wrongfully charged him (more than twenty-five years ago) for
unspecified housing services he did not use, he has provided no details beyond this naked
assertion, or explained how he could establish this claim beyond the use of police reports
pertaining to an irrelevant incident involving a former student. Despite the leniency
typically afforded to pro se litigants, amendment in this case would have been futile.
Accordingly, we affirm on the ground that Brow’s third-party complaints failed to state a
plausible claim for relief.
1
In his brief, Brow focuses on his underlying fraud claim against Rutgers. Moreover, he
does not raise any specific contentions on appeal concerning the Fair Credit Reporting Act,
fiduciary duty, or negligence claims that he raised in his third-party complaints. Accordingly,
they are deemed abandoned. See Fed. R. App. P. 28(a)(9)(A); LoSacco v. City of Middletown,
71 F.3d 88, 93 (2d Cir. 1995).
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II. Vacatur of Default Against Rutgers, Default Judgment Entered Against Brow,
and Denial of Leave to File an Amended Third-Party Complaint Against
Rutgers and a Third-Party Complaint Against the Government of the U.S.
Virgin Islands (“USVI”)
On appeal, Brow challenges the district court’s vacatur of default against Rutgers,
default judgment entered against him in the 1607 action, and denial of leave to file an
amended third-party complaint against Rutgers and a third-party complaint against the
USVI. We review these rulings only for abuse of discretion. See Green v. Mattingly, 585
F.3d 97, 104 (2d Cir. 2009) (leave to amend); Pecarsky v. Galaxiworld.com Ltd., 249 F.3d
167, 171 (2d Cir. 2001) (default and default judgment); Kenneth Leventhal & Co. v. Joyner
Wholesale Co., 736 F.2d 29, 31 (2d Cir. 1984) (per curiam) (permission to implead a
third-party defendant).
Brow’s challenges to the district court’s vacatur of default as to Rutgers and denial
of leave to file a third-party complaint against the USVI are without merit substantially for
the reasons articulated by the district court in its rulings. See United States v. Brow, No.
05-1607 and No. 05-1609, 2008 WL 4534035 (E.D.N.Y. Sept. 30, 2008); United States v.
Brow, No. 05-1607, 2009 WL 393645 (E.D.N.Y. Feb. 13, 2009). Additionally, as already
concluded, leave to file an amended third-party complaint against Rutgers would have been
futile. The district court therefore committed no abuse of discretion in denying his request.
Insofar as Brow seeks to challenge the default judgment entered against him in the
1607 action, his contentions are without merit substantially for the reasons already
articulated by this Court in affirming the default judgment entered against him in the 1609
action. See United States v. Brow, 267 F. App’x 96 (2d Cir. 2008) (summary order).
Although the district court’s notice of the defects in his answer and proof of service was
docketed only under the 1609 action, it is plain that Brow was aware of both actions and
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filed answers in both actions containing the same defects. A reasonable litigant would
have understood that the court’s advice (and the opportunity to correct the deficiencies)
applied equally to both actions. Brown’s contention on appeal that he was not properly
served with a summons and complaint is unsupported, and belied by the evidence
submitted by the Government that service was properly effected. Accordingly, the district
court acted well within its discretion in entering default judgment against him in the 1607
action.
III. Rutgers’ Request for Sanctions
Rutgers urges us to impose sanctions against Brow pursuant to Fed. R. App. P. 38,
which provides that “[i]f a court of appeals determines that an appeal is frivolous, it may,
after a separately filed motion or notice from the court and reasonable opportunity to
respond, award just damages and single or double costs to the appellee.” This Court has
generally imposed Rule 38 sanctions only in cases of blatant frivolity, bad faith, and/or
repetitive filing. See, e.g., In re 60 E. 80th St. Equities, Inc., 218 F.3d 109, 119–20 (2d Cir.
2000); Moore v. Time, Inc., 180 F.3d 463, 463–64 (2d Cir. 1999). Brow’s appeal, while
devoid of merit, does not rise to the level of sanctionable conduct. To the extent that
Rutgers asks us to instruct the district court to provide Brow with a reasonable opportunity
to show cause why a filing injunction should not be imposed against him, its request would
be more appropriately directed to district court in the first instance.
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED
and Rutgers’ request for sanctions is DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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