     11-4536-cv
     Omid Nodoushani v. Southern Connecticut State University

                           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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 15th day of January, two thousand thirteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                JON O. NEWMAN,
 9                REENA RAGGI,
10                              Circuit Judges.
11       _____________________________________
12
13       OMID NODOUSHANI,
14
15                          Plaintiff-Appellant,
16
17                    v.                                          11-4536-cv
18
19       SOUTHERN CONNECTICUT STATE
20       UNIVERSITY,
21
22                     Defendant-Appellee.
23       _____________________________________
24
25       FOR APPELLANT:                        William S. Palmieri,
26                                             New Haven, Connecticut.
27


                                                  1
 1   FOR APPELLEE:              Maria C. Rodriguez, Assistant
 2                              Attorney General,
 3                              Hartford, Connecticut.
 4
 5        Appeal from an order of the United States District
 6   Court for the District of Connecticut (Thompson, J.).
 7
 8        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 9   AND DECREED that the judgment of the district court be
10   VACATED AND REMANDED IN PART AND AFFIRMED IN PART.
11
12        Omid Nodoushani (“Nodoushani”) appeals from judgment
13   entered on September 30, 2011 in the United States District
14   Court for the District of Connecticut (Thompson, J.)
15   granting summary judgment in favor of Defendant, Southern
16   Connecticut State University (“The University”), on
17   Nodoushani’s claims of: (1) employment discrimination and
18   retaliation pursuant to Title VII of the Civil Rights Act of
19   1964, 42 U.S.C. § 2000e et seq. (“Title VII”) and the
20   Connecticut Fair Employment Practices Act, Conn. Gen. Stat.
21   § 46a-60(a) et seq. (“CFEPA”); and (2) intentional
22   infliction of emotional distress (“IIED”). We assume the
23   parties’ familiarity with the underlying facts, the
24   procedural history, and the issues presented for review.
25
26        We review de novo a district court’s decision to grant
27   summary judgment. Mario v. P&C Food Mkts., Inc., 313 F.3d
28   758, 763 (2d Cir. 2002).
29
30        1. “The Judicial power of the United States shall not
31   be construed to extend to any suit in law or equity,
32   commenced or prosecuted against any one of the United States
33   by Citizens of another State, or by Citizens or Subjects of
34   any Foreign State.” U.S. Const. amend. XI (emphasis added).
35   “‘Jurisdiction properly refers to a court’s power to hear a
36   case.’” Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237,
37   1246 n.5 (2010) (emphasis added) (quoting United States v.
38   Cotton, 535 U.S. 625, 630 (2002)). Given that explicit
39   limitation on judicial power, see Missouri v. Fisk, 290 U.S.
40   18, 25 (1933), the district court correctly ruled that
41   Nodoushani’s state claims are barred by the Eleventh
42   Amendment. However, those claims should have been dismissed
43   without prejudice in accordance with Fed. R. Civ. P. 41(b)
44   because the district court lacked subject matter
45   jurisdiction.
46


                                  2
 1        2. The district court did not err in striking part of
 2   Nodoushani’s Local Rule 56(a)(3) statement. District courts
 3   have leeway on motions to strike in the context of summary
 4   judgment motions. While a court is obliged not to consider
 5   inadmissible evidence at the summary judgment stage, “[t]o
 6   the extent that an affidavit or declaration contains
 7   material that does not comply with [Federal Rule of Civil
 8   Procedure] 56(e), the [c]ourt may strike those portions, or
 9   may simply disregard them.” Rus, Inc. v. Bay Indus., Inc.,
10   322 F. Supp. 2d 302, 307 (S.D.N.Y. 2003); see also United
11   States v. Alessi, 599 F.2d 513, 514-15 (2d Cir. 1979)
12   (holding that the district court may strike inadmissible
13   portions of affidavits).
14
15        3. We affirm the district court’s decision with regard
16   to Nodoushani’s Title VII claims for the reasons stated in
17   the district court’s thorough opinion.
18
19        Finding no merit in Nodoushani’s remaining arguments,
20   we hereby AFFIRM the judgment with respect to Nodoushani’s
21   Title VII claims and VACATE the judgment of the district
22   court as to the state claims and REMAND for the district
23   court to enter an order dismissing them for lack of federal
24   subject matter jurisdiction without prejudice to such
25   remedies as may be available in state court.
26
27
28                              FOR THE COURT:
29                              CATHERINE O’HAGAN WOLFE, CLERK
30




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