Hines v. Veterans Outreach Center Inc. , 682 F. App'x 57 ( 2017 )

14-2734-cv
Hines v. Veterans Outreach Center 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 10th day of March, two thousand seventeen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
ROSEMARY S. POOLER,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
JERRY HINES, JR.,
Plaintiff-Appellant,
v. 14-2734
VETERANS OUTREACH CENTER INC.,
Defendant-Appellee.
_____________________________________
FOR PLAINTIFF-APPELLANT: Jerry Hines, Jr., pro se, Grady, AL.
FOR DEFENDANT-APPELLEE: Jennifer A. Shoemaker, Underberg & Kessler LLP,
Rochester, NY.
Appeal from a judgment of the United States District Court for the Western District of New
York (Feldman, M.J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the appeal is DISMISSED in part for lack of appellate jurisdiction and
DISMISSED in part without prejudice as to reinstatement.
Appellant Jerry Hines, Jr., proceeding pro se, sued his former employer, Veterans Outreach
Center Inc. (“VOC”), for retaliation under the Americans with Disabilities Act. After a five-day
trial, a jury found in favor of VOC. On appeal, Hines challenges the jury’s verdict and the
magistrate judge’s denial of his motions for judgment as a matter of law or for a new trial. Hines
filed his notice of appeal after the jury’s verdict, but did not file a new or amended notice of appeal
after the post-judgment rulings. We assume the parties’ familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.
As an initial matter, we lack appellate jurisdiction over Hines’s challenge to the
post-judgment rulings because Hines did not file a notice of appeal or amended notice of appeal
after those rulings issued, as is required under Federal Rule of Appellate Procedure 4(a)(4)(B)(ii).
See Williams v. KFC Nat’l Mgmt. Co., 391 F.3d 411, 415 (2d Cir. 2004) (“Compliance with Rule
4(a) is mandatory and jurisdictional.” (internal quotation marks omitted)).
Although Hines also challenges the verdict, he has not provided us with transcripts of the
proceedings below. Federal Rule of Appellate Procedure 10(b) requires an appellant, within 14
days after the filing of a notice of appeal, to either (1) order in writing transcripts of such parts of
the proceedings that are necessary to the appeal and that are not already on file (and satisfy the
other requirements of Rule 10(b)(1)(A)); or (2) file a certificate stating that no transcript will be
ordered. Here, Hines did neither.
Hines’s failure to provide the relevant transcripts deprives us of the ability to conduct
meaningful appellate review. Accordingly, consistent with the long-established practice of this
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Court, we are compelled to dismiss Hines’s appeal. We dismiss without prejudice, however,
because Hines is proceeding pro se and has not yet been informed of his obligations under Rule 10.
See Gayle v. Walker, 148 F.3d 214, 214 (2d Cir. 1998) (dismissing pro se appeal without prejudice
to reinstatement for failure to file transcripts); cf. Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir.
2000) (dismissing portion of appeal with prejudice because relevant transcripts were not provided
“despite two extensions of time”).
Hines’s appeal is therefore DISMISSED in part for lack of appellate jurisdiction as to his
appeal from the denial of his post-verdict motions and DISMISSED in part without prejudice to
reinstatement as to his appeal from the judgment, provided that, within 30 days of the date of this
order, he provides this Court with: (1) the relevant transcripts; (2) proof that he has ordered the
transcripts; or (3) proof that he has moved in this Court for free transcripts. Hines should adhere
to Federal Rule of Appellate Procedure 24(a) and Second Circuit Local Rule 24.1 if and when he
files a motion for transcripts. Upon timely filing of the relevant transcripts, the appeal will be
reinstated.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
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