12-4314-cv
KM Enters., Inc. v. McDonald


                          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 30th day of April, two thousand thirteen.

PRESENT:      AMALYA L. KEARSE,
              DENNY CHIN,
                        Circuit Judges,
              JANET C. HALL,
                        District Judge.*

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KM ENTERPRISES, INC. DBA EMTRAC SYSTEMS,
                    Plaintiff-Appellant,

                      -v-                                    12-4314-cv

JOAN McDONALD, in her capacity as
Commissioner, New York State Department
of Transportation,
                    Defendant-Appellee.

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FOR PLAINTIFF-APPELLANT:              JANA YOCOM, Jana Yocom, P.C.,
                                      Mount Vernon, Illinois.



       *
          The Honorable Janet C. Hall, United States District
Judge for the District of Connecticut, sitting by designation.
FOR DEFENDANT-APPELLEE:        BRIAN A. SUTHERLAND, Assistant
                               Solicitor General, for Barbara D.
                               Underwood, Solicitor General,
                               Richard Dearing, Deputy Solicitor
                               General, and Eric T. Schneiderman,
                               Attorney General of the State of
                               New York, New York, New York.

            Appeal from the United States District Court for the

Eastern District of New York (Spatt, J.).

            UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED.

            Plaintiff-appellant KM Enterprises, Inc. ("KME")

appeals from the district court's September 26, 2012 judgment,

entered pursuant to its September 25, 2012 memorandum of

decision and order dismissing the amended complaint for lack of

subject matter jurisdiction and failure to state a claim.      See

Fed. R. Civ. P. 12(b)(1) and(6).    We assume the parties'

familiarity with the facts, procedural history, and

specification of issues for review.

            We review dismissals under Rules 12(b)(1) and 12(b)(6)

de novo, accepting the complaint's allegations as true and

drawing all reasonable inferences in favor of the plaintiff.

See Rothstein v. UBS AG, 708 F.3d 82, 90 (2d Cir. 2013).       After

an independent review of the record, we affirm for substantially



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the reasons set forth by the district court in its thorough and

well-reasoned thirty-eight page opinion.

         The district court noted the myriad deficiencies in

KME's amended complaint.   KME sued defendant-appellee Joan

McDonald in her official capacity as Commissioner of the New

York State Department of Transportation ("DOT"), effectively

rendering this a suit against the State of New York.    See

Kentucky v. Graham, 473 U.S. 159, 165-66 (1985).   As a general

matter, states enjoy sovereign immunity from suit in federal

court, even if the claim arises under federal law.   See U.S.

Const. amend. XI; Alden v. Maine, 527 U.S. 706, 727-28 (1999)

(citing Hans v. Louisiana, 134 U.S. 1, 14-15 (1890)).    A narrow

exception exists where a complaint against a state officer

alleges a "continuing violation of federal law" requiring

"prospective injunctive relief."   Green v. Mansour, 474 U.S. 64,

68 (1985) (emphasis added) (citing Ex parte Young, 209 U.S. 123,

155-56 (1908)).

         KME argues on appeal that there are two continuing

violations here:   first, the continuous payments of federal

funds pursuant to the unlawfully procured contract, and second,

the possibility that in the future the DOT will award contracts

to other subcontractors who have not submitted the lowest

competitive bid.   But KME lacks standing to assert these claims:
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the allegedly unlawful distribution of federal funds to others

does not cause KME a concrete, particularized injury,1 cf. Ariz.

Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436, 1442-43

(2011), and it is entirely speculative that ordering the DOT to

employ competitive bidding for subcontractors will result in KME

receiving these contracts in the future, see Linda R.S. v.

Richard D., 410 U.S. 614, 618 (1973).   KME's request for a

declaratory judgment stating that the federal regulations

require acceptance of the bid submitted by the lowest bidder for

highway projects such as those funded here was properly

rejected, as such a judgment would constitute an advisory

opinion, which federal courts lack authority to render.     See,

e.g., Penguin Books USA Inc. v. Walsh, 929 F.2d 69, 72 (2d Cir.

1991).

          The amended complaint also asserts a claim under 42

U.S.C. § 1983.   Because the claim was pled against McDonald in

her official capacity, however, it is barred by the Eleventh


     1
          To the extent KME alleges that it suffered a concrete
injury because the DOT should have awarded the contract and paid
the funds to KME, that would constitute a claim for monetary
relief, which is barred by the Eleventh Amendment, and no form
of prospective relief could remedy that injury. Cf. Green v.
Mansour, 474 U.S. 64, 71-73 (1985) (holding that Eleventh
Amendment prevents federal courts from providing any relief that
is "not the type of remedy designed to prevent ongoing
violations of federal law," including declaratory judgments that
past acts were unlawful).
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Amendment.   See Graham, 473 U.S. at 169.   Moreover, even if it

were pled against McDonald in her individual capacity, the

amended complaint does not allege any actions that McDonald

personally took, or failed to take, and thus fails to state a

claim against her.   See Back v. Hastings on Hudson Union Free

Sch. Dist., 365 F.3d 107, 127 (2d Cir. 2004) ("An individual

cannot be held liable . . . under § 1983 merely because he held

a high position of authority, but can be held liable if he was

personally involved in the alleged deprivation." (quotation

omitted)).

         We have considered KME's remaining arguments and find

them to be without merit.   Accordingly, we AFFIRM the judgment

of the district court.

                              FOR THE COURT:
                              Catherine O'Hagan Wolfe, Clerk




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