15-1963-cv
Bak v. Metro-North R.R. Co.

                                   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 24th day of May, two thousand sixteen.

PRESENT:          JON O. NEWMAN,
                  JOSÉ A. CABRANES,
                  RAYMOND J. LOHIER, JR.,
                               Circuit Judges.


CHAN YOUNG BAK, AS ADMINISTRATOR OF THE ESTATE OF HYANG JA BAK LEE, DECEASED, AND
CHAN YOUNG BAK, INDIVIDUALLY,

                              Plaintiff-Appellant,              15-1963-cv

                              v.

METRO-NORTH RAILROAD COMPANY, FUSCO
MANAGEMENT COMPANY, LLC, ABM INDUSTRIES,
INC., DBA ABM/ACSS SECURITY, DBA AMERICAN
COMMERCIAL SECURITY SERVICES,

                              Defendants-Appellees,

                              v.

METROPOLITAN TRANSPORTATION AUTHORITY,
CITY OF BRIDGEPORT, SUBURBAN CONTRACT
CLEANING SERVICES OF PENNSYLVANIA, INC., DBA
SUBURBAN CONTRACT CLEANING SERVICES, GREGG,
WIES & GARDNER ARCHITECTS, LLC, TAMS


                                                      1
CONSULTANTS, INC., NATIONAL RAILROAD
PASSENGER CORPORATION, DBA AMTRAK,

                       Defendants.


FOR PLAINTIFF-APPELLANT:                                   GARY CERTAIN, Law Office of Certain &
                                                           Zilberg, PLLC, New York, NY.

FOR DEFENDANT-APPELLEE METRO-                              IOANA WENCHELL, Metro-North
NORTH RAILROAD COMPANY:                                    Railroad Co., New York, NY; Beck S.
                                                           Fineman, Ryan Ryan Deluca LLP,
                                                           Stamford, CT.

FOR DEFENDANT-APPELLEE FUSCO                               SCOTT HAWORTH, Haworth Coleman &
MANAGEMENT COMPANY, LLC:                                   Gerstman, LLC, New York, NY.

FOR DEFENDANT-APPELLEE ABM                                 YOLANDA L. AYALA, Gallo Vitucci Klar
INDUSTRIES, INC.:                                          LLP, Hackensack, NJ.

     Appeal from a judgment of the United States District Court for the Southern District of
New York (Thomas P. Griesa, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is
AFFIRMED IN PART and VACATED IN PART and the cause REMANDED.

        Plaintiff-appellant Chan Young Bak (“Bak”) appeals from a May 26, 2015 judgment of the
District Court, which followed a jury verdict for defendants-appellees Fusco Management Co., LLC
and Metro-North Railroad Co., and a directed verdict for defendant-appellee ABM Industries, Inc.
(“ABM”). We assume the parties’ familiarity with the underlying facts, the procedural history of the
case, and the issues on appeal.

        Bak brought this action for negligence and wrongful death after his mother, Hyang Ja Bak
Lee (“Bak Lee”), sustained fatal injuries as the result of falling from a platform of the Bridgeport,
Connecticut, train station. On appeal, Bak argues that the District Court erred (1) in excluding
evidence of subsequent remedial measures and of certain safety codes; (2) in ruling as a matter of
law that ABM owed no duty of care to Bak Lee, except to notice or discover her fall and to summon
help; and (3) in denying Bak’s challenge pursuant to Batson v. Kentucky, 476 U.S. 79 (1986).1 We



   1
      We glean these issues from the body of Bak’s brief, as he has failed to include a separate
“statement of the issues presented for review,” as required by Rule 28(a)(5) of the Federal Rules of
Appellate Procedure. Bak’s brief also omitted a “summary of the argument,” as required by Rule
                                                  2
conclude that the District Court erred in denying Bak’s Batson challenge, and that a new trial is
therefore necessary.

         Batson, extended to civil cases by Edmonson v. Leesville Concrete Co., 500 U.S. 614, 628 (1991),
forbids the use of peremptory challenges to exclude potential jurors on the basis of their race.
Courts must “apply a three-step, burden-shifting analysis to determine whether a peremptory strike
has been exercised in a racially discriminatory manner.” Barnes v. Anderson, 202 F.3d 150, 155 (2d Cir.
1999). If a party makes a prima facie showing that a juror has been struck on the basis of race (step
one), the opposing party must articulate a race-neutral explanation for the strike (step two). Id. Once
a race-neutral explanation has been articulated, the court must determine “whether the opponent of
the strike has proved purposeful racial discrimination” (step three). Purkett v. Elem, 514 U.S. 765, 767
(1995).

        Bak raised a Batson challenge to defendants’ peremptory strike of juror number 15, who was
        2
black. Bak argues that the court erred by failing to make a credibility determination at the third stage
of the Batson analysis. We agree. A district court must make an “explicit adjudication” as to whether
the movant has carried his burden of persuasion in proving purposeful discrimination. Barnes, 202
F.3d at 156. Although the court need not offer an elaborate explanation, it “must somehow make
clear whether it credits the non-moving party’s race-neutral explanation for striking the relevant
panelist.” Dolphy v. Mantello, 552 F.3d 236, 239 (2d Cir. 2009) (internal quotation marks omitted).
Here, although the District Court concluded at the second Batson step that defendants had proffered
a “nonracial, nondiscriminatory reason” for striking Simmons—namely, his employment as an
actor—the court did not expressly rule on whether it found that explanation credible in the
circumstances presented.

         “Ordinarily in this circumstance we would remand to the district court with instructions
either to re-conduct the Batson analysis or, if the district court determined that it was no longer
possible to do so effectively, to order a new trial.” Barnes, 202 F.3d at 157. Here, however, further
proceedings in a federal district court are no longer appropriate. Bak has alleged only state-law
claims, and the parties lack complete diversity. Federal jurisdiction initially depended on Bak’s
naming as a defendant the National Railroad Passenger Corporation (“Amtrak”), a corporation
owned mostly by the United States. See 28 U.S.C. § 1349; see also Dep’t of Transp. v. Ass’n of Am.
Railroads, 135 S. Ct. 1225, 1231 (2015) (“The Secretary of Transportation holds all of Amtrak’s



28(a)(7). We remind Bak’s counsel that “failure to comply with Rule 28 invites dismissal of the
appeal.” Taylor v. Harbour Pointe Homeowners Ass’n, 690 F.3d 44, 48 (2d Cir. 2012).
    2
    The parties dispute whether Bak also challenged peremptory strikes against three other jurors.
Because we conclude that the District Court erred in analyzing the Batson challenge regarding juror
number 15, we need not decide whether Bak raised and preserved any other Batson claims.

                                                    3
preferred stock and most of its common stock.”). Although the District Court dismissed Amtrak
from the case following a motion for summary judgment, the District Court elected to retain
supplemental jurisdiction over Bak’s state-law claims because of the proximity of trial. See 28 U.S.C.
§ 1367; Purgess v. Sharrock, 33 F.3d 134, 138 (2d Cir. 1994). Now, however, with all federal claims
dismissed and new proceedings required, it is most appropriate for this case to be retried in a state
court. See, e.g. Giordano v. City of New York, 274 F.3d 740, 754 (2d Cir. 2001).3

         Finally, we consider Bak’s argument that the District Court erred in ruling at the summary
judgment stage that “ABM owed no duty to report, maintain, or repair defective guardrails.” See Bak
v. Metro-North R.R. Co., 100 F. Supp. 3d 331, 341 (S.D.N.Y. 2015).4 The only case Bak cites to
support his argument, Gazo v. City of Stamford, 765 A.2d 505 (Conn. 2001), is inapposite. Gazo held
that a pedestrian who slipped on an icy sidewalk was owed a duty of care by a contractor hired to
remove snow from that sidewalk. Id. at 508–09. In other words, Gazo involved a contractor that had
negligently performed the very work it had been hired to perform. Here, in contrast, ABM had been
hired to provide security services at the Bridgeport station, not to inspect its guardrails. Although
ABM was required to report hazardous conditions, Bak has not shown that ABM had any
contractual obligation to report or repair deliberately designed features that had been part of the
station for decades, such as the guardrail at issue here. We therefore find no error in the District
Court’s summary judgment ruling.

                                          CONCLUSION

        We have reviewed all of the remaining arguments raised by the parties on appeal and find
them to be without merit. For the foregoing reasons, we AFFIRM the May 26, 2015 judgment of
the District Court with respect to its ruling regarding the scope of ABM’s duty of care. We otherwise
VACATE the judgment of the District Court and REMAND the cause to the District Court with
instructions to dismiss it without prejudice to refiling in state court.


                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk




   3
     The parties agreed during argument that a new trial in state court would be more appropriate in
these circumstances than a remand to the District Court for further proceedings there.
   4
     Because we conclude that a new trial is necessary, we need not consider Bak’s argument
regarding the District Court’s evidentiary rulings.

                                                   4
