Kim v. Columbia University

11-2496-cv
Kim v. Columbia Univ.

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 3rd day of July, two thousand twelve.

PRESENT: RALPH K. WINTER,
CHESTER J. STRAUB,
DENNY CHIN,
Circuit Judges.

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JOHN Y. KIM,
Plaintiff-Appellant,

-v.- 11-2496-cv

COLUMBIA UNIVERSITY,
Defendant-Appellee.

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FOR PLAINTIFF-APPELLANT: JOHN Y. KIM, pro se, Ho Ho Kus, New
Jersey.

FOR DEFENDANT-APPELLEE: CHARLES B. UPDIKE, Schoeman, Updike
& Kaufman, LLP, New York, New York.

Appeal from a judgment and order of the United States

District Court for the Southern District of New York (Patterson,

J.).
 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that: (1) the appeal from the judgment of the

district court is DISMISSED; and (2) the order of the district

court is AFFIRMED.

Plaintiff-appellant John Y. Kim, pro se, appeals from

the district court's: (1) judgment entered on November 18, 2010,

following a jury trial, in favor of defendant-appellee Columbia

University ("Columbia"), dismissing his employment discrimination

claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e et seq., and the Age Discrimination in Employment Act of

1967, 29 U.S.C. § 621 et seq.; and (2) order filed on May 19,

2011, denying Kim's post-judgment motion under Fed. R. Civ. P. 59

and 60. We assume the parties' familiarity with the underlying

facts, the procedural history, and the issues presented for

review.

First, upon independent review of the record, we

conclude that we lack appellate jurisdiction over Kim's appeal

from the district court's November 18, 2010, judgment dismissing
his complaint. Under Fed. R. App. P. 4, a party must file a

notice of appeal within 30 days after the date judgment is

entered. See Fed. R. App. P. 4(a)(1)(A). That deadline is

tolled when a party files a motion pursuant to Fed. R. Civ. P. 59

or 60 within 28 days of the judgment's entry. See Fed. R. App.

P. 4(a)(4)(A)(iv), (vi). The Rule 4 filing deadlines are

"'mandatory and jurisdictional.'" Bowles v. Russell, 551 U.S.

205, 209 (2007) (quoting Griggs v. Provident Consumer Disc. Co.,

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459 U.S. 56, 61 (1982) (per curiam)); see Silivanch v. Celebrity

Cruises, Inc., 333 F.3d 355, 363 (2d Cir. 2003). Thus, this

Court is "obliged to examine the question sua sponte," Travelers

Ins. Co. v. Carpenter, 411 F.3d 323, 328 (2d Cir. 2005), and

failure to comply with Rule 4 warrants dismissal, Glinka v.

Maytag Corp., 90 F.3d 72, 74 (2d Cir. 1996).

Here, Kim filed his Rule 59/60 motion on Friday,

December 17, 2010, one day after the 28-day tolling deadline

expired (i.e., 29 days after entry of judgment on November 18,

2010). See Fed. R. App. P. 4(a)(4)(A)(iv), (vi). Although Kim

now claims, and the district court stated in its order denying

his motion, that Kim filed his motion on December 16, 2010, the

district court docket sheet -- as well as the automated and

handwritten date stamps on the motion -- indicate that Kim filed

his Rule 59/60 motion on December 17, 2010. Although Kim dated

his motion December 16, 2010, we are obliged to accept the

information on the district court docket sheet and any date

stamps on filings as indicative of the operative filing dates.

See Fed. R. Civ. P. 5(d)(2) ("A paper is filed by delivering it:
(A) to the clerk; or (B) to a judge who agrees to accept it for

filing, and who must then note the filing date on the paper and

promptly send it to the clerk."). Because Kim filed his Rule

59/60 motion 29 days after entry of judgment, he failed to toll

his deadline to file a notice of appeal. Moreover, he did not

file his notice of appeal until May 29, 2011, and thus the notice

of appeal was untimely as to the November 18, 2010, judgment.

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Accordingly, this Court lacks appellate jurisdiction over the

appeal from the district court's November 18, 2010, judgment.

Further, even assuming the December 16, 2010, date in

the district court's order is correct and this Court had

appellate jurisdiction over Kim's appeal of the district court's

judgment, his claims are without merit. See Phelps v. Kapnolas,

123 F.3d 91, 93 (2d Cir. 1997) (construing pro se submissions

liberally). Kim principally argues that Columbia's purported

fraudulent misconduct and the racial composition of the jury

resulted in a miscarriage of justice. Columbia's interchangeable

use of the words "released" and "discharged" in describing Kim's

termination of employment before the district court, however, was

not fraudulent. Additionally, because Kim's claim as to the

racial composition of the jury was not raised below and is not

discussed beyond a few conclusory sentences in his brief, we do

not consider it. See In re Nortel Networks Corp. Sec. Litig.,
539 F.3d 129, 132 (2d Cir. 2008) ("'[I]t is a well-established

general rule that an appellate court will not consider an issue

raised for the first time on appeal.'" (quoting Bogle-Assegai v.
Connecticut, 470 F.3d 498, 504 (2d Cir. 2006))); Ragone v. Atl.

Video, 595 F.3d 115, 128 n.2 (2d Cir. 2010) ("'Issues not

sufficiently argued in the briefs are considered waived and

normally will not be addressed on appeal.'" (quoting Norton v.

Sam's Club, 145 F.3d 114, 117 (2d Cir. 1998))).

Second, with respect to Kim's appeal from the district

court's May 19, 2011, order and opinion, we conclude that Kim's

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notice of appeal is timely under Fed. R. App. P. 4(a)(4).

Although the notice does not make specific reference to the

denial of his Rule 59/60 motion, we have jurisdiction to consider

it because we construe the filings of pro se litigants liberally,

see Phelps, 123 F.3d at 93, and Kim indicated in his district

court motion seeking to proceed in forma pauperis that he

intended to appeal from the district court's decision on his Rule

59/60 motion.

Upon reviewing the district court's denial of Kim's
Rule 59/60 motion for abuse of discretion, we conclude that the

district court did not err. See Cash v. Cnty. of Erie, 654 F.3d

324, 339-40 (2d Cir. 2011) (Rule 59); Johnson v. Univ. of

Rochester Med. Ctr., 642 F.3d 121, 125 (2d Cir. 2011) (Rule 60).

Kim did not provide the district court with any newly-discovered

evidence that would warrant relief from the final judgment, or

with any evidence of fraud, misrepresentation, or misconduct by

Columbia or its counsel. See Fed. R. Civ. P. 59, 60. The

district court did not err in determining that Kim's motion was
meritless, and we affirm for substantially the reasons set forth

by the district court in its order and opinion.

We have considered Kim's remaining arguments and find

them to be without merit. Accordingly, we hereby AFFIRM the

judgment of the district court.

FOR THE COURT:
CATHERINE O'HAGAN WOLFE, CLERK

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