    13-292-cv
    Smith v. United States


                             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
    17th day of December, two thousand thirteen.

    PRESENT:    ROBERT D. SACK,
                GERARD E. LYNCH,
                RAYMOND J. LOHIER, JR.,
                            Circuit Judges.
    _____________________________________

    KEVIN ERIC SMITH,

                              Plaintiff-Appellant,

                       v.                                                 No. 13-292-cv

    UNITED STATES OF AMERICA, et al.,

                              Defendants-Appellees.

    _____________________________________


    FOR PLAINTIFF-APPELLANT:                         Kevin Eric Smith, pro se, Manchester, New
                                                     Hampshire.

    FOR DEFENDANTS-APPELLEES:                        Paula Ryan Conan, United States Attorney’s Office,
                                                     Syracuse, New York; Robert Joseph Dietel,
                                                     Gallagher, Callahan & Gartrell, P.C., Concord, New
                                                     Hampshire; Jonathan D. Hitsous, Denise Ann
                                                     Hartman, New York State Office of the Attorney
                                                     General, Albany, New York; Michael A. Cardozo,
                                                     New York City Law Department, New York, New
                                                     York.
       Appeal from a judgment of the United States District Court for the Northern District of

New York (Lawrence E. Kahn, Judge).

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

DECREED that the judgment and order of the district court is AFFIRMED and REMANDED.

       Kevin Eric Smith, plaintiff-appellant pro se, seeks review of a district court decision

dismissing with prejudice his complaint alleging, inter alia, various tort, breach of contract, and

42 U.S.C. § 1983 claims against an array of federal, state, and private entities. The district court

dismissed Smith’s claims against New York State and the New York Attorney General (“New

York defendants”) with prejudice under Fed. R. Civ. P. 12(b)(6) on sovereign immunity grounds,

his claims against the City of Concord, New Hampshire, and the Concord New Hampshire

Police Department (“New Hampshire defendants”) with prejudice for lack of personal

jurisdiction, and his claims against other defendants without prejudice for failure of service. The

district court also affirmed the decision of the magistrate judge to deny Smith an extension of

time to serve process to the remaining defendants beyond the 60-day time limit required by the

court’s local rules. We assume the parties’ familiarity with the underlying facts, the procedural

history of the case, and the issues on appeal.

       Because Smith’s complaint (and other documents he has submitted to the district and

appellate courts in the subsequent litigation) consists of a “labyrinthian prolixity of unrelated and

vituperative charges that def[y] comprehension,” Prezzi v. Schelter, 469 F.2d 691, 692 (2d Cir.

1972), it would not have been inappropriate for the district court to dismiss it for failing to

contain “a short and plain statement of the claim.” Fed. R. Civ. P. 8(a)(2). However, in light of

the liberal construction traditionally afforded the complaints of pro se plaintiffs, the district court


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commendably undertook the difficult effort to understand the claims being made in the

complaint and addressed them on their merits.

       We review de novo dismissals under Rule 12(b)(6), Chambers v. Time Warner, Inc., 282

F.3d 147, 152 (2d Cir. 2002), and for lack of personal jurisdiction, Metro. Life Ins. Co. v.

Robertson-Ceco Corp., 84 F.3d 560, 567 (2d Cir. 1996), assuming as true the statements in the

complaint and drawing all reasonable inferences in the plaintiff’s favor. We review for abuse of

discretion the dismissal for untimely service of process, see Zapata v. City of N. Y., 502 F.3d

192, 195 (2d Cir. 2007),1 and the denial of leave to amend the complaint, Foman v. Davis, 371

U.S. 178, 182 (1962).

       The claims against the New York defendants were properly dismissed on grounds of the

sovereign immunity established by the Eleventh Amendment. As Smith alleged no facts in the

claims against the New Hampshire defendants that indicate a connection with the state of New

York, dismissal for lack of personal jurisdiction was appropriate. Because these flaws in Smith’s

complaint, even liberally read, are fatal substantive defects that could not be cured by further

pleading, the district court did not abuse its discretion in denying leave to amend.2 See Cuoco v.

1
 Zapata concerned a dismissal under Fed. R. Civ. P. 4(m), Zapata, 502 F.3d at 195, but the same
principle would apply by analogy to dismissals pursuant to local rules regarding expedited
service of process. Cf. LoSacco v. City of Middletown, 71 F.3d 88, 92 (2d Cir. 1995) (affording
“considerable deference” to a district court’s application of local rules, and reviewing such
application for abuse of discretion).
2
 The district court ordered that Smith’s claims against the New Hampshire defendants be
dismissed “with prejudice.” However, a dismissal for want of personal jurisdiction is without
prejudice. See generally Elfenbein v. Gulf & Western Indus., Inc., 590 F.2d 445, 449 (2d Cir.
1978) (observing that whether a dismissal is with or without prejudice refers to the “Res judicata
effect of a dismissal,” a question distinct from whether leave to amend should be granted). Thus,
while the district court appropriately concluded that Smith’s claims against the New Hampshire
defendants should be dismissed without leave to amend because repleading in the Northern
District of New York could not cure the jurisdictional defect, the dismissal does not preclude
renewing those claims in a jurisdiction in which personal jurisdiction over the defendants can be
obtained. Accordingly, the judgment below should be modified in this regard.

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Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (“[A] futile request to replead should be denied.”).

Nor did the district court abuse its discretion in dismissing the charges against the remaining

defendants for Smith’s failure to serve them, and affirming the magistrate judge’s denial of his

request for an extension of time to do so, as he presented no reasonable justification for his

request. See Zapata, 502 F.3d at 193 (finding no abuse of discretion in denial of extension of

time to serve process where plaintiff “advanced no colorable excuse whatsoever for his

neglect.”). Finally, we reject as meritless Smith’s accusations of bias on the part of the district

court judge and magistrate judge, for which he provides no factual support beyond adverse

rulings on the merits of the case. See United States v. Grinnell Corp., 384 U.S. 563, 583 (1966)

(“[A]lleged bias and prejudice to be disqualifying must stem from an extrajudicial source and

result in an opinion on the merits other than what the judge learned from his participation in the

case.”).

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

Accordingly, we AFFIRM the judgment of the district court, except to the extent that the matter

is REMANDED to the district court with instructions to modify the judgment to reflect that the

dismissal as to the New Hampshire defendants is without prejudice to renew in a jurisdiction

where personal jurisdiction over the defendants could be obtained.

                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe, Clerk




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