Doe v. Republic of Poland , 531 F. App'x 113 ( 2013 )

12-3795-cv
Doe v. Republic of Poland, et al.
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 26th
day of August, two thousand thirteen.
PRESENT:
JOSÉ A. CABRANES,
PETER W. HALL,
DENNY CHIN,
Circuit Judges.
_____________________________________
JOHN DOE,
Plaintiff-Appellee,
v. No. 12-3795-cv
REPUBLIC OF POLAND, PERMANENT MISSION TO THE UN
OF THE REPUBLIC OF POLAND, CONSULATE GENERAL FOR THE
REPUBLIC OF POLAND, TRADE COMMISSION OF NEW YORK,
EMBASSY FOR THE REPUBLIC OF POLAND, JAROSLAW
KACZYNSKI, ANNA FORTYGA, KRZYSZTOF DABROWSKI,
KRZYSZTOF W. KASPRZYK, BEDA PEKSA-KRAWIEC, JANUSZ
REITER, ARTUR WARDZYNSKI, DARIUSZ WOIJCZEK, PAWEL
PYTLADUZ, EWA JUNCZYK-ZIOMECKA, ROBERT KUPIECKI,
AMBASSADOR, RADOSLAW SIKORSKI, W. SULGOSTOWSKI,
WOJCIECH LUKASIEWIECZ, ROBERT WISNIEWSKI, EMBASSY
OF THE REPUBLIC OF POLAND, FRELA WOJCIECH,
Defendants-Appellants,
COMEDY PARTNERS, L.L.P., WASHINGTON POST COMPANY,
DONALD E. GRAHAM, CEO, ANNE APPLEBAUM, EDITORIAL
BOARD MEMBER AND COLUMNIST, NEWSWEEK INCORPORATED,
RICHARD SMITH, CHAIRMAN, TOMAS ANCSHEIM, STEPHEN
COLBERT, SPARTINA PRODUCTIONS, INCORPORATED, BUSBOY
PRODUCTIONS, INCORPORATED, LARRY DIVNEY, CEO,
KAZIMIERCZ SIKORSKI, BG GEN.,
Defendants.1
_____________________________________
FOR PLAINTIFF-APPELLEE: John Doe, pro se, Fayetteville, NY.
FOR DEFENDANTS-APPELLANTS: Robert Wisniewski, Robert Wisniewski, P.C.,
New York, NY.
Appeal from an order of the United States District Court for the Southern District of New
York (Paul A. Engelmayer, Judge).
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the appeal is DISMISSED.
BACKGROUND
Defendants-appellants, a number of officials and entities of the government of the Republic
of Poland and their attorney (jointly, “appellants”), appeal from an August 24, 2012 order, in which
the District Court dismissed the complaint of plaintiff-appellee John Doe, also known as Eugene J.
Fisch (“Fisch”). In that order, the District Court also, sua sponte, permanently enjoined Fisch from
pursuing further litigation in any federal court in the State of New York with respect to certain
alleged actions taken by the Polish government, including: (1) allegedly breaching a $20 million oral
contract with Fisch, (2) allegedly making untrue media accounts of these events, and (3) allegedly
conspiring to cover up these events, without first seeking authorization from the District Court.
On appeal, the appellants contend that the District Court “abused its discretion when it did
not extend its permanent injunction sua sponte to at least cover [Fisch’s] filing in state courts within
the state of New York, if not in any tribunal an[y]where in the United States.” Appellants’ Br. 13.
Fisch did not file a notice of appeal and has not appeared in this Court. We assume the parties’
1
The Clerk of Court is directed to amend the caption of this case to conform to the listing of the parties shown above.
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familiarity with the underlying facts, the procedural history of the case, and the issues presented on
appeal.
DISCUSSION
A.
We have an independent obligation to address the scope of our jurisdiction. See Jennifer
Matthew Nursing & Rehab. Ctr. v. U.S. Dep’t of Health & Human Servs., 607 F.3d 951, 955 (2d Cir.
2010). Federal Rule of Appellate Procedure 3(c)(1) requires, inter alia, that a notice of appeal
“designate the judgment, order, or part thereof being appealed.” The requirements of Rule 3(c)(1)
are jurisdictional, see Gonzalez v. Thaler, 132 S. Ct. 641, 651-52 (2012), and our jurisdiction “depends
on whether the intent to appeal from [a] decision is clear on the face of, or can be inferred from, the
notice[ ] of appeal,” New Phone Co. v. City of N.Y., 498 F.3d 127, 131 (2d Cir. 2007).
Here, although the appellants moved for reconsideration of the District Court’s August 24,
2012 order and requested that the District Court broaden its filing injunction against Fisch, they did
not appeal the District Court’s September 10, 2012 order, which denied that reconsideration motion.
Instead, the appellants expressly limited the scope of their notice of appeal to the District Court’s
August 24, 2012 order, without mentioning the September 10, 2012 order or their request to
broaden the filing injunction. Accordingly, because it cannot be inferred from the notice of appeal
that the appellants sought to appeal the September 10, 2012 order, our jurisdiction, if valid, is limited
to the District Court’s August 24, 2012 order, which dismissed Fisch’s case and sua sponte enjoined
him as detailed above. See Agee v. Paramount Commc’ns Inc., 114 F.3d 395, 400 (2d Cir. 1997).
A further review of the record, however, makes clear that we lack jurisdiction to review even
the District Court’s August 24, 2012 order because the appellants are not an “aggrieved party” with
regard to that order. See Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326, 333 (1980) (“Ordinarily, only
a party aggrieved by a judgment or order of a district court may exercise the statutory right [under 28
U.S.C. § 1291] to appeal therefrom.”); In re O’Brien, 184 F.3d 140, 141 (2d Cir. 1999). Indeed, none
of the appellants―who, other than their notice of removal, made no substantive filings in the case
prior to the August 24, 2012 order―nor any of the other defendants, requested that the District
Court enjoin Fisch from making further filings. See Trust for the Certificate Holders of the Merrill Lynch
Mortg. Investors, Inc. v. Love Funding Corp., 496 F.3d 171, 173 (2d Cir. 2007) (“A party who receives all
that he has sought generally is not aggrieved by the judgment affording the relief and cannot appeal
from it.” (internal quotation marks omitted)). Accordingly, inasmuch as the appellants lack standing
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to bring this appeal, we lack jurisdiction to consider their claims. See Spencer v. Casavilla, 44 F.3d 74,
79 (2d Cir. 1994).
B.
Although we lack jurisdiction to review the District Court’s actions, we note that the District
Court, prior to imposing the filing injunction, did not provide Fisch with notice and an opportunity
to be heard as our precedents require. See Mackler Prods., Inc. v. Cohen, 225 F.3d 136, 144 (2d Cir.
2000) (“[D]ue process requires that courts provide notice and an opportunity to be heard before
imposing any kind of sanctions.” (citation and internal quotation marks) (emphasis in original)). We
also note that although we disfavor “blanket” filing injunctions that restrict a vexatious litigant from
filing any action in state courts without first obtaining leave from a federal court, see In re Martin-
Trigona, 737 F.2d 1254, 1263 (2d Cir. 1984), we have approved of certain “qualifications relating to
the protection of federal interests” that may permissibly be placed on a vexatious litigant’s access to
state courts, id. Such “qualifications” may include: (1) requiring the vexatious litigant to attach a
copy of the federal court’s sanctions order to any future state-court filing; and/or (2) fashioning a
specially-crafted injunction prohibiting the vexatious litigant “from bringing new actions in any
tribunal without leave from the district court” against persons whom the litigant has previously
harassed through judicial proceedings. Id. We need not consider these issues in this case, however,
as Fisch has not appealed or otherwise appeared before this Court.
CONCLUSION
For the reasons stated, the appeal is DISMISSED inasmuch as we lack jurisdiction to
review the District Court’s actions.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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