    12-3889
    Theodore v. Town of Putnam


                          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 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 26thday of November, two thousand thirteen.

    PRESENT:
               ROBERT D. SACK,
               PETER W. HALL,
               DEBRA ANN LIVINGSTON,
                     Circuit Judges.
    _____________________________________

    George S. Theodore,

                                 Plaintiff-Appellant,

                     v.                                        12-3889

    Environment Facilities Corporation,
    A New York Corporation,

                                 Defendant,

    Town of Putnam,
    A New York Municipal Corporation, et al.,

                     Defendants-Appellees.
    _____________________________________
FOR PLAINTIFF-APPELLANT:                             George S. Theodore, pro se, Newton,
                                                     MA (on submission).

FOR DEFENDANTS-APPELLEES:                            William A. Scott, Glens Falls, NY.

       Appeal from a judgment and order of the United States District Court for the

Northern District of New York (Young, J.; Treece, M.J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment and order of the district court are AFFIRMED.

       Appellant George S. Theodore, a retired attorney proceeding pro se, appeals the

district court’s order dismissing Defendant Environmental Facilities Corporation (“EFC”)

as a party and the court’s judgment in favor of Defendants-Appellees Town of Putnam

and Town of Ticonderoga (collectively “the towns”) in his diversity action alleging

trespass and an unconstitutional taking for the installation of a sewer line across his

property. We assume the parties’ familiarity with the underlying facts, the procedural

history of the case, and the issues on appeal.

       We review de novo a district court’s dismissal of a complaint pursuant to Rule

12(b)(6), construing the complaint liberally, accepting all factual allegations in the

complaint as true, and drawing all reasonable inferences in the plaintiff’s favor. See

Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). With respect to the

dismissal of EFC, we affirm because the United States District Court for the District of

Massachusetts properly dismissed for failure to state a claim. See Chaiken v. VV Pub.

Corp., 119 F.3d 1018, 1026 n.2 (2d Cir. 1997) (holding that this Court had jurisdiction


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“to review the interlocutory judgment of the United States District Court for the District

of Massachusetts entered prior to the transfer of the case to a district court within our

jurisdiction and the issuance by that court of a final order”).

       In reviewing the district court’s decision in a bench trial, we review the district

court’s legal conclusions de novo and its findings of fact for clear error. See L.I. Head

Start Child Dev. Servs., Inc. v. Econ. Opportunity Comm’n of Nassau Cnty., 710 F.3d 57,

65 (2d Cir. 2013). With respect to the entry of judgment in favor of the towns, we affirm

for substantially the same reasons stated by the district court in its thorough September

13, 2012 oral ruling.

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

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

The Appellees have moved for sanctions pursuant to Federal Rule of Civil Procedure 11.

Upon due consideration, it is further ORDERED that the motion for sanctions pursuant

to Rule 11 is DENIED. See O’Malley v. New York City Transit Auth., 896 F.2d 704, 709

(2d Cir. 1990) (“An appellate court is ill-suited for the delicate, fact-intensive analysis

and judgment needed to fashion a proper sanction [under Rule 11], one that will further

the purposes behind . . . [R]ule 11 but not unduly or unjustly punish an offender”).

                                           FOR THE COURT:
                                           Catherine O’Hagan Wolfe, Clerk




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