Leila Nasser Asr v. Anthony Giordano ( 2022 )

USCA4 Appeal: 20-2276 Doc: 53 Filed: 04/04/2022 Pg: 1 of 5
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-2236
LEILA NASSER ASR, individually and as parent of minor child DM,
Plaintiff - Appellant,
v.
KAREN EADY-WILLIAMS; MECKLENBURG COUNTY COURTHOUSE,
Defendants - Appellees,
No. 20-2271
LEILA NASSER ASR, Individually and as parent of minor child DM,
Plaintiff - Appellant,
v.
MITZI Y. KINCAID; KINCAID & ASSOCIATES, PLLC,
Defendants - Appellees,
No. 20-2274
LEILA NASSER ASR, Individually and as parent of minor child DM,
Plaintiff - Appellant,
USCA4 Appeal: 20-2276 Doc: 53 Filed: 04/04/2022 Pg: 2 of 5
v.
CHARLES GUY MONNETT; CHARLES G. MONNETT III & ASSOCIATES,
Defendants - Appellees,
No. 20-2276
LEILA NASSER ASR, Individually and as parent of minor child DM,
Plaintiff - Appellant,
v.
ANTHONY GIORDANO; GIORDANO, GORDON & BURNS, PLLC,
Defendants - Appellees,
No. 20-2351
LEILA NASSER ASR, individually and as parent of minor child D.M.,
Plaintiff - Appellant,
v.
DANIEL R. HANSEN; KINDERCARE EDUCATION, LLC, f/k/a Knowledge
Universe Education LLC; KINDERCARE LEARNING CENTERS, LLC, d/b/a Park
Road Kindercare,
Defendants - Appellees.
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Appeals from the United States District Court for the Western District of North Carolina,
at Charlotte. Max O. Cogburn, Jr., District Judge. 3:20-cv-00140-MOC-DCK; 3:20-cv-
00142-MOC-DCK; 3:20-cv-00139-MOC-DCK; 3:20-cv-00143-MOC-DCK; 3:20-cv-
00141-MOC-DCK
Submitted: January 31, 2022 Decided: April 4, 2022
Before MOTZ, HARRIS, and RUSHING, Circuit Judges.
Affirmed in part, affirmed as modified in part by unpublished per curiam opinion.
Leila Nasser Asr, Appellant Pro Se. Kathryn Hicks Shields, Assistant Attorney General,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina; Karen
Harris Chapman, John Michael Durnovich, POYNER SPRUILL, LLP, Charlotte, North
Carolina; Randall Joseph Phillips, CHARLES G. MONNETT III & ASSOCIATES,
Charlotte, North Carolina; Ryan D. Bolick, CRANFILL SUMNER, LLP, Charlotte, North
Carolina; Lucas D. Garber, SHUMAKER LOOP & KENDRICK, PLLC, Charlotte, North
Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Leila Nasser Asr appeals the district court’s orders granting Appellees’ motions to
dismiss her complaints on the grounds of lack of subject matter jurisdiction, judicial and
Eleventh Amendment immunity, and collateral estoppel and res judicata. Although the
district court granted her multiple extensions of time to do so, Asr did not respond in the
district court to Appellees’ motions to dismiss and therefore failed to address their
assertions that her complaints were subject to dismissal. Accordingly, her arguments
challenging the district court’s reasons for dismissal are raised for the first time on appeal.
As a general rule in civil cases, we will not review appellate arguments that were not made
in the district court. See In re Under Seal, 749 F.3d 276, 285 (4th Cir. 2014). We have
considerable discretion in deciding which issues to consider for the first time on appeal,
id., and, “absent exceptional circumstances,” we will decline to exercise that discretion,
Hicks v. Ferreyra, 965 F.3d 302, 310 (4th Cir. 2020) (cleaned up). We have reviewed the
record and conclude that Asr has not met this standard.
Asr also argues that the district court’s orders were the result of judicial bias. Our
review of the record leads us to conclude that this argument is without merit. See, e.g.,
Belue v. Leventhal, 640 F.3d 567, 573 (4th Cir. 2011) (explaining that rulings made “on
the basis of facts introduced or events occurring in the course of the current proceedings
. . . almost never constitute a valid basis for a bias or partiality motion” (internal quotation
marks omitted)).
We therefore affirm the district court’s orders dismissing Asr’s complaints against
Eady-Williams, the Mecklenburg County Courthouse, Hansen, KinderCare Education,
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LLC, and KinderCare Learning Centers, LLC. Asr v. Eady Williams, No. 3:20-cv-00140-
MOC-DCK (W.D.N.C. Oct. 19, 2020); Asr v. Hansen, No. 3:20-cv-00141-MOC-DCK
(W.D.N.C. Nov. 23, 2020). However, the dismissal of Asr’s complaints against Kincaid,
Giordano, and Monnett for lack of subject matter jurisdiction should have been without
prejudice. See S. Walk at Broadlands Homeowner’s Ass’n, Inc. v. OpenBand at
Broadlands, LLC, 713 F.3d 175, 185 (4th Cir 2013) (explaining that court lacking
“jurisdiction has no power to adjudicate and dispose of a claim on the merits”). We
therefore modify the orders in those cases to reflect that the dismissals are without
prejudice, see 28 U.S.C. § 2106, and affirm the judgments as modified. Asr v. Kincaid,
No. 3:20-cv-00142-MOC-DCK (W.D.N.C. Oct. 29, 2020); Asr v. Giordano, No. 3:20-cv-
00143-MOC-DCK (W.D.N.C. Oct. 29, 2020); Asr v. Monnett, No. 3:20-cv-00139-MOC-
DCK (W.D.N.C. Oct. 29, 2020).
We deny Asr’s motions to seal the record on appeal and for appointment of counsel.
We dispense with oral argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would not aid the decisional
process.
AFFIRMED IN PART,
AFFIRMED AS MODIFIED IN PART
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