12-1650
Niblo v. UBS Global Asset Management (Americas), Inc., et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
AMENDED 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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 3rd day of January, two thousand thirteen.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 PIERRE N. LEVAL,
9 GUIDO CALABRESI,
10 Circuit Judges.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 JOHN NIBLO,
14 Plaintiff-Appellant,
15
16 -v.- 12-1650
17
18 UBS GLOBAL ASSET MANAGEMENT
19 (AMERICAS), INC.; DILLON READ CAPITAL
20 MANAGEMENT LLC; and UBS SECURITIES
21 LLC,
22 Defendants-Appellees,
23 - - - - - - - - - - - - - - - - - - - -X
24
25 FOR APPELLANT: Jeffrey Lew Liddle (Marc Adam
26 Susswein, Sherry Melissa Shore,
27 on the brief), Liddle &
28 Robinson, LLP, New York, New
29 York.
1
1
2 FOR APPELLEES: Lloyd B. Chinn (Adam Michael
3 Lupion, on the brief), Proskauer
4 Rose LLP, New York, New York.
5
6 Appeal from a judgment of the United States District
7 Court for the Southern District of New York (Batts, J.).
8
9 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
10 AND DECREED that the judgment of the district court be
11 AFFIRMED.
12
13 John Niblo appeals from the judgment of the United
14 States District Court for the Southern District of New York
15 (Batts, J.), dismissing his Complaint. Niblo, a former
16 employee of UBS Global Asset Management (Am.), Inc. (“UBS
17 GAM”), alleges that he was unlawfully denied payment under a
18 severance plan administered by UBS GAM in violation of the
19 Employee Retirement Income Security Act of 1974 (“ERISA”).
20 He argues that the district court erred in dismissing his
21 claim and refusing to let him amend his Complaint to cure
22 deficiencies. We assume the parties’ familiarity with the
23 underlying facts, the procedural history, and the issues
24 presented for review.
25
26 1. “The notice of appeal must . . . designate the
27 judgment, order or part thereof being appealed.” Fed. R.
28 App. P. 3(c)(1)(B). “While we may construe the rules
29 liberally, we do not have the authority to waive the
30 jurisdictional requirements of this rule.” New Phone Co.,
31 Inc. v. City of New York, 498 F.3d 127, 130 (2d Cir. 2007)
32 (citing Torres v. Oakland Scavenger Co., 487 U.S. 312, 317
33 (1988)). “Our jurisdiction . . . depends on whether the
34 intent to appeal from that decision is clear on the face of,
35 or can be inferred from, the notices of appeal.” Id. at
36 131. Niblo could not have intended to appeal the district
37 court’s decision on the motion for reconsideration because
38 the district court decided that motion after Niblo filed the
39 Notice of Appeal. The arguments raised in the motion for
40 reconsideration are wholly different than those raised in
41 response to the motion to dismiss. We therefore lack
42 appellate jurisdiction over arguments not raised in the
43 opposition to the motion to dismiss.
44
2
1 2. The arguments Niblo made below in opposition to
2 the motion to dismiss are waived because Niblo has not
3 briefed those arguments. See Zhang v. Gonzales, 426 F.3d
4 540, 541 n.1 (2d Cir. 2005) (holding that issues not argued
5 in the briefs are waived on appeal).
6
7 For the foregoing reasons, and finding no merit in
8 Niblo’s other arguments, we hereby AFFIRM the judgment of
9 the district court.
10
11 FOR THE COURT:
12 CATHERINE O’HAGAN WOLFE, CLERK
13
3