Pimentel v. Delta Air Lines, Inc. ( 2020 )

19-2343 (L)
Pimentel v. Delta Air Lines, Inc.
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
ASUMMARY ORDER@). A PARTY CITING TO 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 27th day of August, two thousand twenty.
Present:
ROSEMARY S. POOLER,
PETER W. HALL,
DENNY CHIN,
Circuit Judges.
_____________________________________
NICHOLAS PIMENTEL, AKA AASIR
AZZARMI,
Plaintiff-Appellant,
v. 19-2343 (L)
19-2376 (Con)
19-2499 (Con)
19-2510 (Con)
DELTA AIR LINES, INC., TANYA MORGAN, INDIVIDUALLY,
SERGEY YEREMEYEV, INDIVIDUALLY, CLIFFORD SCHWENKER, INDIVIDUALLY,
BILL ITTOUNAS, INDIVIDUALLY, SHEANDRA R. CLARK, INDIVIDUALLY,
PAMELA KELLY, INDIVIDUALLY, NATASHA ANDERSON, INDIVIDUALLY,
FABIO MACIEL, INDIVIDUALLY, CHARLOTTE LING, INDIVIDUALLY,
SUPERVISORS JOHN DOE, INDIVIDUALLY, JILL WUBBEN, INDIVIDUALLY,
RYAN RANGEL, INDIVIDUALLY, MARCY J. DAVIDSON, INDIVIDUALLY, SEDGWICK
CLAIMS MANAGEMENT SERVICES, INC., ROBERT REINLAN, DANA SABGHIR,
INDIVIDUALLY, IRA ROSENSTEIN, INDIVIDUALLY, JONES & JONES, INC.,
MORGAN, LEWIS & BOCKIUS LLP, PAMELA ALSON, INDIVIDUALLY,
ELAINE LITTLE, INDIVIDUALLY,
Defendants-Appellees.
_____________________________________
Appearing for Appellant: NICHOLAS PIMENTEL, pro se, New York, N.Y.
Appearing for Appellees: Brendan T. Killeen, Morgan, Lewis & Bockius LLP,
New York, N.Y.
Appeals from two judgments of the United States District Court for the Eastern District of
New York (Donnelly, J.; Orenstein, M.J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgments be and it hereby are AFFIRMED.
In these consolidated appeals, Appellant Nicholas Pimentel, a/k/a Aasir Azzarmi,
proceeding pro se, appeals the district court’s judgments dismissing his Discrimination Action
(E.D.N.Y. 17-cv-5317) and Labor Action (E.D.N.Y. 18-cv-2999). Appellant also moves for
various relief in this Court. After issuing several warnings to Appellant, the district court
dismissed the actions with prejudice, pursuant to Fed. R. Civ. P. 41(b), for failure to comply with
court orders and for using abusive language toward the judges. We assume the parties’
familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
We review dismissals pursuant to Rule 41(b) “for an abuse of discretion in light of the
record as a whole.” Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir. 2014). A district court must
weigh five factors when considering a Rule 41(b) dismissal: (1) the duration of noncompliance
with the court order; (2) whether notice was given that the action would be dismissed for failure
to comply; (3) whether the other party will be prejudiced by further delay in the proceedings; (4)
the balance of the court’s interest in managing its docket with the litigant’s interest in being
heard; and (5) the availability of a lesser sanction. Id. Additionally, we are mindful that dismissal
is “the harshest of sanctions” and should only be used in “extreme” situations with pro se
litigants. Id. at 217 (internal quotation marks omitted).
The district court did not abuse its discretion in dismissing Appellant’s cases with
prejudice. In its July 12, 2019 order—giving Appellant one final chance to comply with court
orders—the court adequately weighed the five factors, explaining that Appellant had been
warned several times about needing to comply with court orders, had “wasted the Court’s and
counsel’s time,” and that “opposing counsel has had to devote needless energy and time
responding to [Appellant’s] frivolous and offensive filings.” However, given Appellant’s pro se
status and the fact that his noncompliance had lasted only “a few months[,]” the court gave him
one final chance to comply with court orders by ordering him to file a letter stating that he would
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so comply, essentially imposing a “lesser sanction” and giving him one final warning. When
Appellant failed to comply with that order, and instead continued to insult the judges and declare
that he would not follow court orders, the district court properly dismissed the actions.
We have upheld dismissals with prejudice as a sanction where pro se litigants repeatedly
used abusive language toward judges. See Koehl v. Bernstein, 740 F.3d 860, 862–64 (2d Cir.
2014). In Bernstein, we explained that a court’s “liberal pro se practice . . . is not a sword with
which to insult a trial judge” and that “the right to accuse a judge of bias (or of misconduct) does
not carry with it the right to abuse and insult.” 740 F.3d at 863 (internal quotation marks
omitted).
Appellant’s challenges to the dismissal are meritless. First, the district court did not err in
dismissing the action with prejudice rather than granting Appellant’s motion for voluntary
dismissal without prejudice pursuant to Rule 41(a). Appellant’s motion was filed long after the
Appellees had answered the complaint, and thus Appellant was not entitled to dismissal without
prejudice unless the Appellees stipulated to such dismissal. See Fed. R. Civ. P. 41(a)(1)(A).
Second, the district court did not err in finding that the Labor Action was related to the
Discrimination Action and thus assigning the case to Judge Donnelly; pursuant to the court’s
local rules, “all pro se civil actions filed by the same individual” are deemed related “[i]n the
interest of judicial economy[.]” E.D.N.Y. Local Rule 50.3.1(e). In any event, even considering
the Labor Action separately, Appellant continued to insult the judges in his filings in that action
after being warned that such language could result in dismissal; thus, dismissal of the Labor
Action was proper for the reasons discussed above. Third, the district court’s reasons for
dismissal were not speculative and did not change over time—the district court repeatedly
warned Appellant that refusal to comply with court orders and the continued use abusive
language toward the judges could result in dismissal, and those were the reasons the court
ultimately dismissed the case.
To the extent Appellant challenges the district court’s orders prior to dismissal, including
its discovery orders, we do not review those orders. See Shannon v. Gen. Elec. Co., 186 F.3d
186, 192 (2d Cir. 1999) (holding that interlocutory orders do not merge with the final judgment
where the case was dismissed pursuant to Rule 41(b) and are thus unreviewable on appeal).
We also reject Appellant’s claims that the district judge and magistrate judge should have
been recused from the cases based on their alleged bias. Most of Appellant’s arguments rely on
the fact that the judges ruled against him and in favor of the Appellees, but judicial rulings alone
do not constitute evidence of bias. See Liteky v. United States, 510 U.S. 540, 555 (1994)
(“[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality motion.”).
Finally, we deny Appellant’s various motions. Appellant’s request for a refund of the
filing fee is rejected because he has been granted in forma pauperis status on appeal and has not
paid any fees to this Court. Appellant’s motions to strike the Appellees’ briefs are meritless.
C.f. Brown v. Maxwell, 929 F.3d 41, 51–52 (2d Cir. 2019.) The remaining motions—seeking to
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appeal, to vacate, to remand, for judicial notice, for certified questions, for an injunction, and to
confirm an arbitration award—are rendered moot by this decision.
We have considered the remainder of Appellant’s arguments and find them to be without
merit. Accordingly, the judgments of the district court hereby are AFFIRMED.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk of Court
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