        09-0977-cv
        Okoi v. El Al Israel Airlines


                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                               SUMMARY ORDER
    RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY 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 SUM M ARY ORDER IN A
    DOCUMENT FILED W ITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
    ELECTRONIC DATABASE (W ITH THE NOTATION “SUM M ARY ORDER”). A PARTY CITING TO A SUM M ARY
    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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
        New York, on the 19th day of May, two thousand ten.

        PRESENT:
                    ROGER J. MINER,
                    JOHN M. WALKER, JR.,
                    GERARD E. LYNCH,
                          Circuit Judges.
        _____________________________________

        Fidelis Okoi,

                                        Plaintiff-Appellant,

                            v.                                                      09-0977-cv

        El Al Israel Airlines,

                                        Defendant-Appellee.

        _____________________________________


        FOR PLAINTIFF-APPELLANT:                               FIDELIS OKOI, pro se, Baldwin, NY.

        FOR DEFENDANT-APPELLEE:                                BARRY S. ALEXANDER , Diane Westwood Wilson;
                                                               Clyde & Co US LLP, New York, NY.

1                 Appeal from a judgment of the United States District Court for the Eastern District of
 1   New York (Hurley, J.; Wall, M.J.).

 2          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

 3   DECREED that the judgment of the district court is AFFIRMED.

 4          Plaintiff-appellant Fidelis Okoi, proceeding pro se, appeals the district court’s grant of

 5   Defendant-Appellee’s motion to dismiss his complaint for failure to state a claim upon which

 6   relief may be granted and its denial of his motion to amend his complaint.1

 7          This Court reviews de novo a district court’s dismissal of a complaint pursuant to Federal

 8   Rule of Civil Procedure 12(b)(6), “construing the complaint liberally, accepting all factual

 9   allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff’s

10   favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). A complaint must

11   plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.

12   Twombly, 550 U.S. 544, 570 (2007). A claim will have facial plausibility “when the plaintiff

13   pleads factual content that allows the court to draw the reasonable inference that the defendant is

14   liable for the misconduct alleged.” Turkmen v. Ashcroft, 589 F.3d 542, 546 (2d Cir. 2009). In

15   the case of a pro se complaint, a court must construe the complaint liberally, see Harris v. Mills,

16   572 F.3d 66, 72 (2d Cir. 2009), and should not dismiss it without granting the plaintiff leave to

17   amend “at least once when a liberal reading of the complaint gives any indication that a valid

18   claim might be stated,” Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)


            1
 1             Additionally, we construe Appellant’s “Papers in Support of Appeal” as a motion to
 2   expand the record, and deny the motion. Absent extraordinary circumstances, this Court will not
 3   enlarge the record on appeal to include evidentiary material not presented to the district court.
 4   See Int’l Bus. Machs. Corp. v. Edelstein, 526 F.2d 37, 45 (2d Cir. 1975). Appellee’s motion to
 5   strike the exhibits in the “Papers” is therefore granted with respect to all of the exhibits therein
 6   except for the final three pages, which contain excerpts of a government publication of which
 7   this Court may take judicial notice.

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 1   (internal quotation marks omitted).

 2          Here, an independent review of the record and relevant case law reveals that the district

 3   court properly dismissed Appellant’s claims. The district court construed Appellant’s claim as a

 4   claim for tortious interference with business relations, but concluded that the claim failed. Under

 5   New York law an at-will employee may maintain a tortious interference claim in “certain limited

 6   situations,” but “she must establish that a third party used wrongful means to effect the

 7   termination such as fraud, misrepresentation, or threats.” Albert v. Loksen, 239 F.3d 256, 274

 8   (2d Cir. 2001) (internal quotation marks omitted). The district court concluded that Appellant

 9   could not show that Appellee used a wrongful means of interference when it initiated criminal

10   proceedings against him, since Appellant had pleaded guilty to the charges, which were then

11   dismissed under a “conditional discharge” agreement.

12          The district court was correct in concluding that Appellant’s plea precluded a finding that

13   the Appellee’s conduct was wrongful. The claim Appellant asserted was in essence a claim for

14   malicious prosecution. New York law requires a malicious prosecution plaintiff to demonstrate

15   a final termination of the criminal proceeding in her favor, or at least “not inconsistent with [her]

16   innocence.” Smith-Hunter v. Harvey, 95 N.Y.2d 191, 196, 198 (2000); see also Rothstein v.

17   Carriere, 373 F.3d 275, 287 (2d Cir. 2004). “A termination is not favorable to the accused . . . if

18   the charge is withdrawn or the prosecution abandoned pursuant to a compromise with the

19   accused.” Smith-Hunter, 95 N.Y.2d at 196. Although the charges against Appellant were

20   eventually dismissed under a “conditional discharge” agreement, on Appellant’s own allegations,

21   this termination was plainly upon “compromise with the accused.” Id. Thus, the district court

22   correctly concluded that Appellant’s claim failed as a matter of law.


                                                       3
 1          Appellant also contends that the district court erred in denying his motion to amend his

 2   complaint to assert Title VII hostile work environment claims against Appellee. Court reviews

 3   the district court’s denial of leave to file an amended complaint for abuse of discretion.

 4   Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001). It is not an abuse of discretion

 5   to deny leave to amend a complaint when the amendment would be futile. Foman v. Davis, 371

 6   U.S. 178, 182 (1962). Since Appellant was not an employee of Appellee, his claims against it

 7   under Title VII must fail, and amending his complaint to assert them would be futile. Gulino v.

 8   N.Y. State Educ. Dep’t, 460 F.3d 361, 370 (2d Cir. 2006) (“[T]he existence of an

 9   employer-employee relationship is a primary element of Title VII claims.”).

10          Finally, to the extent that Appellant argues that Appellee’s removal of the case from state

11   court was untimely, we note that a party opposing removal on a ground other than the lack of

12   federal jurisdiction must move to remand within thirty days after the filing of the notice of

13   removal or the objection is waived. Hamilton v. Aetna Life & Cas. Co., 5 F.3d 642, 643-44 (2d

14   Cir. 1993). Here, Appellant did not raise the timeliness of the notice of removal as a potential

15   issue until over two years after Appellee filed the notice of removal.

16          We have considered Appellant’s remaining arguments and find them to be without merit.

17   Accordingly, we AFFIRM the judgment of the district court.
18
19                                                 FOR THE COURT:
20                                                 Catherine O’Hagan Wolfe, Clerk




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