20-1801-cv
Emiabata v. Seton Healthcare Family
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
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
20th day of September, two thousand twenty-one.
PRESENT:
JOHN M. WALKER, JR.,
WILLIAM J. NARDINI,
STEVEN J. MENASHI,
Circuit Judges.
_______________________________________
PHILIP EMIABATA,
Plaintiff-Appellant,
v. 20-1801
SETON HEALTHCARE FAMILY, DBA DELL
SETON MEDICAL CENTER AT THE
UNIVERSITY OF TEXAS, INSTITUTE OF
RECONSTRUCTIVE PLASTIC SURGERY,
JAMES R. CULLINGTON, M.D., SANJAY
SHARMA, M.D.,
Defendants-Appellees.
_______________________________________
FOR PLAINTIFF-APPELLANT: Philip Emiabata, pro se,
Fairfield, CT.
FOR DEFENDANTS-APPELLEES: Robert O. Hickey,
Ryan Ryan Deluca, LLP,
Bridgeport, CT.
Appeal from a judgment of the United States District Court for the District of Connecticut
(Dooley, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment and post-judgment order of the district court are AFFIRMED.
Appellant Philip Emiabata, proceeding pro se, appeals from the dismissal of his complaint
for lack of personal jurisdiction. Emiabata sued Seton Healthcare Family, also known as the Dell
Seton Medical Center at the University of Texas (“Seton Healthcare”), the Institute of
Reconstructive Plastic Surgery (the “Institute”), and two doctors affiliated with those entities, Dr.
James Cullington and Dr. Sanjay Sharma. The individual defendants were citizens of Texas, and
Seton Healthcare and the Institute were organized under the laws of Texas and had their principal
places of business there, but Emiabata alleged that they conducted business in all 50 states. He
filed his complaint in the District of Connecticut. The defendants individually moved to dismiss
for lack of personal jurisdiction. After requesting an extension that the court granted, Emiabata
failed to file an opposition and the district court granted the motions to dismiss. Emiabata moved
for reconsideration, arguing that he did not have notice of the correct deadline for filing his
opposition, and that the district court should have transferred his complaint to a different venue.
The district court denied his motion, reasoning that his failure to file a timely opposition was not
grounds for reconsideration. Emiabata appeals. We assume the reader’s familiarity with the
record.
While we “liberally construe pleadings and briefs submitted by pro se litigants, reading
such submissions to raise the strongest arguments they suggest,” McLeod v. Jewish Guild for the
Blind, 864 F.3d 154, 156 (2d Cir. 2017) (internal quotation marks omitted), pro se appellants must
still comply with Federal Rule of Appellate Procedure 28(a), which “requires appellants in their
briefs to provide the court with a clear statement of the issues on appeal.” Moates v. Barkley, 147
F.3d 207, 209 (2d Cir. 1998). We “normally will not[] decide issues that a party fails to raise in
his or her appellate brief.” Id.; see also LoSacco v. City of Middletown, 71 F.3d 88, 93 (2d Cir.
1995). Nor will we decide issues that a pro se appellant raises in his brief only in passing, see
Gerstenbluth v. Credit Suisse Sec. (USA) LLC, 728 F.3d 139, 142 n.4 (2d Cir. 2013); Norton v.
Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998), or for the first time in a reply brief, see JP Morgan
Chase Bank v. Altos Hornos de Mexico, S.A. de C.V., 412 F.3d 418, 428 (2d Cir. 2005).
Here, Emiabata’s opening brief fails to address the basis for the district court’s dismissal
of his complaint: that the District of Connecticut lacked personal jurisdiction over the defendants.
This dispositive issue is thus waived, and we affirm the district court’s judgment to the extent that
it is based on dismissing the complaint for lack of personal jurisdiction. See LoSacco, 71 F.3d at
93; Norton, 145 F.3d at 117–18.
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We will, however, address the district court’s order denying reconsideration because
Emiabata has not waived his arguments concerning that order. We review the denial of a motion
for reconsideration under Rule 59(e) for abuse of discretion. Trikona Advisers Ltd. v. Chugh, 846
F.3d 22, 29 (2d Cir. 2017). Such a motion will “generally be denied unless the moving party can
point to controlling decisions or data that the court overlooked—matters, in other words, that might
reasonably be expected to alter the conclusion reached by the court.” Shrader v. CSX Transp.,
Inc., 70 F.3d 255, 257 (2d Cir. 1995).
Emiabata raises several arguments on appeal as to why the district court should have
granted his motion for reconsideration. First, he argues that the district court improperly
dismissed his case without affording him an opportunity to respond to the defendants’ motions.
However, the basis for this argument is contradicted by the record. Emiabata moved for an
extension of time to file his opposition, the district court granted it, and Emiabata simply failed to
file his opposition within the time allowed. Although the district court first set a June 6, 2020,
deadline, it promptly realized it had erred and corrected the deadline to January 6, 2020—a date
Emiabata had requested—four days later. Emiabata’s assertion that he did not receive the
corrected order is unavailing because he consented to electronic notice, and he still had an
obligation to monitor the docket. See, e.g., U.S. ex rel. McAllan v. City of New York, 248 F.3d
48, 53 (2d Cir. 2001). His status as a pro se litigant did not exempt him from this obligation. See
McDonald v. Head Crim. Ct. Supervisor Officer, 850 F.2d 121, 124 (2d Cir. 1988).
Emiabata’s argument that the district court had some affirmative duty to sua sponte transfer
his complaint to an unspecified court is meritless. Although Emiabata first raised a venue
argument in his motion for reconsideration, he never requested a transfer of venue in the district
court and, on appeal, he argues that venue in Connecticut is proper. In the alternative, Emiabata
requests a transfer to the United States District Court for the Western District of Texas at Waco,
Texas, but provides no explanation as to why venue is appropriate there. He merely cites the
venue statutes but makes no cogent argument in this regard. As a result, Emiabata has waived the
argument that the district court should have transferred his case to Texas. Gerstenbluth, 728 F.3d
at 142 n.4.
Finally, we reject Emiabata’s contention that he was entitled to jurisdictional discovery.
Emiabata did not ask for such discovery in the district court, and he likewise failed to controvert
the defendants’ affidavits showing that the court lacked personal jurisdiction (because the
defendants did not fall under the purview of Connecticut’s long-arm statute and did not have
minimum contacts with Connecticut).
In short, because Emiabata did not identify controlling law or facts that the court
overlooked, the district court properly exercised its discretion to deny reconsideration of its
dismissal. Shrader, 70 F.3d at 257.
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We have considered all of Emiabata’s remaining arguments and find them to be without
merit. Accordingly, we AFFIRM the judgment and post-judgment order of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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