     16-2478-cv
     Kammona v. Midsummer Investment, Ltd.


                           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.

 1              At a stated term of the United States Court of Appeals for the
 2   Second Circuit, held at the Thurgood Marshall United States Courthouse,
 3   40 Foley Square, in the City of New York, on the 20th day of April, two
 4   thousand seventeen.
 5
 6   PRESENT:
 7               PETER W. HALL,
 8               GERARD E. LYNCH,
 9               CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11   _____________________________________
12
13   Amir A. Kammona,
14
15                         Plaintiff-Appellant,
16                 v.                                                 16-2478
17
18   Midsummer Investment, Ltd.,
19   Midsummer Capital, LLC., Joshua
20   Thomas, Michael Amsalem,
21
22                     Defendants-Appellees.
23   _____________________________________
24
25   FOR PLAINTIFF-APPELLANT:                     Amir A. Kammona, pro se, Lenoir City,
26                                                TN.
27
28   FOR DEFENDANTS-APPELLEES:                    JACK YOSKOWITZ, Seward & Kissel LLP,
29                                                New York, NY.
30
      Appeal from an order of the United States District Court for the Southern

District of New York (Torres, J.; Fox, M.J.).

      UPON      DUE      CONSIDERATION,          IT   IS    HEREBY       ORDERED,

ADJUDGED, AND DECREED that the order of the district court is AFFIRMED,

and Appellant’s motion to supplement the record with exhibits not presented to the

district court is DENIED.

      Appellant Amir Kammona, proceeding pro se, filed a complaint in August 2014

against several defendants. Kammona objected to the form of the summonses issued

by the district court’s clerk’s office but was informed by the district court’s pro se

office that the summonses were valid. Kammona failed to serve the defendants, even

after the district court initially ordered him to serve the summonses, confirmed the

validity of the summonses, granted him two lengthy extensions to complete service,

and again ordered him to serve the defendants on pain of dismissal. Thereafter, in

June 2016, the district court dismissed the complaint without prejudice under

Federal Rule of Civil Procedure 41(b) for failure to obey a court order. Kammona now

appeals. He also moves to supplement the record with a volume of exhibits not

presented to the district court. We assume the parties’ familiarity with the

underlying facts, the procedural history of the case, and the issues on appeal.

      Under Rule 41(b), a district court may dismiss an action for failure to

prosecute or comply with a district court order. Fed. R. Civ. P. 41(b). We review

dismissals under Rule 41(b) for abuse of discretion. Baptiste v. Sommers, 768 F.3d

212, 216 (2d Cir. 2014). When dismissing a complaint under Rule 41(b), a court must

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consider “(1) the duration of the plaintiff’s failure to comply with the court order, (2)

whether plaintiff was on notice that failure to comply would result in dismissal, (3)

whether the defendants are likely to be prejudiced by further delay in the

proceedings, (4) a balancing of the court’s interest in managing its docket with the

plaintiff’s interest in receiving a fair chance to be heard, and (5) whether the judge

has adequately considered a sanction less drastic than dismissal.” Id. (quoting Lucas

v. Miles, 84 F.3d 532, 535 (2d Cir. 1996)). However, dismissals must “be [preceded] by

particular procedural prerequisites, including notice of the sanctionable conduct, the

standard by which it will be assessed, and an opportunity to be heard.” Id. at 217

(internal quotation marks omitted).

      The district court did not abuse its discretion by dismissing Kammona’s

complaint under Rule 41(b) after considering all of the Baptiste factors. It gave

Kammona adequate notice that he was required to serve the defendants, gave him

two extensions of time to complete service, and warned him that failure to comply

would result in dismissal. Despite three orders instructing him to do so, Kammona

failed to serve the defendants within the deadlines imposed by the court. In its order

of dismissal, the district court considered the length of Kammona’s noncompliance,

his notice of the noncompliance, prejudice to the defendants resulting from the delay,

whether Kammona had an opportunity to be heard, and the possibility of lesser

sanctions. Given that Kammona’s noncompliance lasted for nearly two years, despite

two extensions and instructions by the court to serve the summonses, it was

reasonable for the court to dismiss the complaint. See Baptiste, 768 F.3d at 217

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(noting that delay of almost two years was excessive); cf. Lucas, 84 F.3d at 535 (delay

of 39 days was not a significant duration of noncompliance).

      Kammona’s arguments on appeal that the summonses were invalid and the

district court failed to rule on his motion for a new summons are without merit. The

district court ordered Kammona to serve the defendants. His failure to do so, in

defiance of the court’s orders, warranted the complaint’s dismissal.

      Kammona argues that he was prejudiced by the requirement that pro se

litigants submit papers to the pro se office and also prejudiced by delay or errors in

docketing certain submissions. These arguments fail. Courts are entitled to

promulgate local rules or otherwise regulate practice, as long as they do not conflict

with the Federal Rules of Civil Procedure or other federal laws. Fed. R. Civ. P. 83; see

Frazier v. Heebe, 482 U.S. 641, 645 (1987). No rule forbids the Southern District from

requiring that pro se litigants submit papers through the pro se office to ease the

administrative burden of those cases. Even assuming an unreasonable delay or error

in docketing submissions, Kammona has offered no plausible reason why any such

delay undermines the district court’s decision to dismiss. Any delay in docketing his

submissions to the court does not explain his refusal to serve the defendants.

      Kammona also moves to supplement the record with postal service records

showing the actual delivery date of his complaint and an affidavit and screenshots

from the district court’s pro se office webpage. The affidavit is already part of the

record on appeal. But the postal records and screenshots were not submitted to the

district court, and the record on appeal is limited to “the original papers and exhibits

                                           4
filed in the district court.” Fed. R. App. P. 10(a)(1). While we will consider evidence

that was not presented to the district court in “extraordinary circumstances,” Int’l

Bus. Machs. Corp. v. Edelstein, 526 F.2d 37, 45 (2d Cir. 1975), Kammona has not

shown that these circumstances are extraordinary. The new exhibits have no bearing

on whether the district court abused its discretion by dismissing the complaint. Thus,

even if we were to grant Kammona’s motion or take judicial notice of the documents,

it would not change the result.

      We have considered all of Kammona’s remaining arguments and find them to

be without merit. Accordingly, we AFFIRM the order of the district court and DENY

Kammona’s motion.

                                        FOR THE COURT:
                                        Catherine O=Hagan Wolfe, Clerk




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