     17-2767
     Vayani v. Pohani


                             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 ASUMMARY ORDER@). A PARTY
CITING TO 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 for the Second
 2   Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
 3   City of New York, on the 7th day of June, two thousand eighteen.
 4
 5   PRESENT:
 6               ROSEMARY S. POOLER,
 7               RAYMOND J. LOHIER, JR.,
 8                     Circuit Judges,
 9               RICHARD J. SULLIVAN,*
10                     District Judge.
11   __________________________________________
12
13   Abdul Khaliq Vayani, Security Guard, 146 West
14   29th Street Owners Corporation,
15
16                            Plaintiff-Appellant,
17
18                      v.                                                            17-2767
19
20   146 West 29th Street Owners Corporation, Berik
21   Management, Managing 146 Building, President
22   Rikin Sheth, Berik Management, Geeta Pathak,
23   Former Accountant Verik Management, Local
24   Union 32BJ SEIU, Michael Fishman, Union
25   Trustees for all benefit funds: Former Chairman
26   of the Building Service 32BJ Benefit Funds,

     * Judge Richard J. Sullivan, of the United States District Court for the Southern District of New York,
     sitting by designation.

                                                         1
 1   Former President Trustee Local Union 32BJ and
 2   Present Vice President SEIU Washington,
 3   Hector J. Figueroa, Union Trustees for all
 4   benefit funds: President and former Secretary
 5   Treasurer, Local 32 BJ, SEIU President and
 6   Trustee Local Union 32 BJ, SEIU, Todd Jenning,
 7   Officer Union 32BJ, Denis Johnston, Vice
 8   President Union 32BJ, Mike Graham, Officer
 9   Union 32BJ, Thomas Giordano, Officer Union
10   32BJ, Address: 25 West 18th St., New York, NY
11   10011, Howard I. Rothschild, Employer Trustees
12   for all benefit funds: Secretary of the Building
13   Service 32BJ Benefit Funds and President of the
14   Realty Advisory Board of Labor Relations, Inc.,
15   John Santora, Employer Trustees for all Benefit
16   Funds: Chief Operating Officer and Executive
17   Vice President, Asset Services, Cushman &
18   Wakefiled, Inc., Charles Dorego, Esq. Employer
19   Trustees for All Benefit Funds: General Counsel,
20   Glenwood Management, Ward Fred, Employer
21   Trustees for all benefit funds: Vice President for
22   Labor Relations, One Source, Michael P.
23   Fishman, Union Trustees for all benefit funds:
24   Former Chairman of the Building Service 32BJ
25   Benefit Funds and Former President of Local 32
26   BJ, SEIU Washington, Kevin J. Doyle, Union
27   Trustees for all benefit funds: Executive Vice
28   President, Local 32 BJ, SEIU, Brian Lambert,
29   Additional Union Trustees: Health Fund: Vice
30   President, Local 32 BJ SEIU, Kyle Bragg,
31   Additional Union Trustees: Pension Fund: Vice
32   President, Local 32 BJ, SEIU, Larry Engelstein,
33   Additional Union Trustees: SRSP: Assistant to
34   the President, Local 32BJ, SEIU, John Pagnotta,
35   Additional Union Trustees: Shortman Fund,
36   District leader, Local 32BJ, SEIU, Lenore
37   Friedlaender, Additional Union Trustees: Legal
38   Fund: Vice President, Local 32BJ, SEIU, Susan
39   Cowell, Executive Director, Building Service
40   32BJ, 25 West 18 Street, New York, NY
41   10011-1991, Regine Breton, Building Service
42   32BJ Benefit Funds Administrators Fund
43   Directors: Pension Fund and SRSP, Angelo
44   Dascoli, Building Service 32BJ Benefit Funds

                                                  2
 1   Administrators Fund Directors: Health Fund,
 2   Linda Nelson, Building Service 32BJ Benefit
 3   Funds Administrators Fund Directors:
 4   Shortman Fund, Alan Snyder, Building Service
 5   32BJ Benefit Funds Administrators Fund
 6   Directors: Legal Fund,
 7
 8                      Defendants-Appellees,
 9
10   Tim Rockholt, Service Employment
11   International Union SEIU Washington, Michael
12   Geffner, Union 32 BJ Counsels, RAAB Sturm,
13   Goldman & Ganchrow, LLP, Joseph Labuda
14   Counsel 146 West Building and Berik
15   Management, Milman Labuda Law Group
16   PLLC, Mevani West Side Stores Owner,
17   Chandru Hasso, Michael Prezzels, Rakhani,
18   Kishan Advani, Jay Kapadia, Saman Kukreja,
19   Sanjay Kukreja, Jal Bilmoria, Keshab Raj
20   Seadie, Shamina Khan, Chandru Jotwani,
21   Sanjay Grover, Manu Pohani, Nari Pohani,
22
23                     Defendants.
24   __________________________________________
25
26
27   FOR PLAINTIFF-APPELLANT:                       Abdul K. Vayani, pro se, Avenel, N.J.
28
29   FOR DEFENDANTS-APPELLEES:
30
31   SERV. EMPS. INT’L UNION, ET AL.                Walter M. Meginniss, Jr., Gladstein, Reif &
32                                                  Meginniss, LLP (Olivia Singer, Office of the
33                                                  General Counsel, SEIU Local 32BJ, on the
34                                                  brief), New York, N.Y.
35
36   HECTOR J. FIGUEROA, ET AL.                     Ira A. Sturm, Raab, Sturm & Ganchrow,
37                                                  LLP, Fort Lee, N.J.
38
39
40   146 W. 29TH ST. OWNERS CORP., ET AL.           Meredith Cavallaro, Paduano & Weintraub
41                                                  LLP, New York, N.Y.
42



                                                3
 1          Appeal from a judgment of the United States District Court for the Southern District of

 2   New York (Koeltl, J.).


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

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

 5          Appellant Abdul Vayani, proceeding pro se, appeals from the district court’s judgment

 6   dismissing his complaint.    Vayani sued his employer, a union that represented its employees,

 7   and various managers, employees, trustees, and administrators of the employer, the union, and

 8   the union’s benefit funds (“the Funds”).       He alleged principally that the defendants had

 9   conspired to prevent him from joining the union and thereby obtaining certain benefits. The

10   defendants moved to dismiss.     Because the Funds defendants submitted documents outside the

11   pleadings with their motion to dismiss, the district court converted their motion into a motion for

12   summary judgment.      The district court then granted the defendants’ motions to dismiss and for

13   summary judgment, reasoning that each of Vayani’s claims was either time barred or collaterally

14   estopped by a 2010 arbitration determination that Vayani was not a union member.           Vayani

15   appeals. We assume the parties’ familiarity with the underlying facts, the procedural history of

16   the case, and the issues on appeal.

17          “We review de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6),

18   construing the complaint liberally, accepting all factual allegations in the complaint as true, and

19   drawing all reasonable inferences in the plaintiff’s favor.” Chambers v. Time Warner, Inc., 282

20   F.3d 147, 152 (2d Cir. 2002).   We review a district court’s grant of summary judgment de novo,

21   drawing all factual inferences in favor of the non-moving party. Sousa v. Marquez, 702 F.3d

22   124, 127 (2d Cir. 2012).

                                                     4
1           Upon such review, we conclude that the district court properly dismissed Vayani’s claims

2    as collaterally estopped or time barred. Except as noted below, we therefore affirm for

 3   substantially the reasons stated by the district court in its thorough August 11, 2017 decision.

 4          Vayani argues that the district court erred when it converted the Funds defendants’

5    motion to dismiss into a motion for summary judgment because he did not have an opportunity

6    to engage in discovery. See Hernandez v. Coffey, 582 F.3d 303, 309 (2d Cir. 2009) (holding that

 7   a pro se plaintiff was entitled to an opportunity to take relevant discovery before the district court

 8   converted a motion for judgment on the pleadings into a motion for summary judgment). But in

 9   his Second Amended Complaint, Vayani referred to or relied on all of the documents attached to

10   the Funds defendants’ motion. Accordingly, those documents may be viewed as incorporated

11   into his pleading by reference, and were therefore proper subjects for the district court to

12   consider on a motion to dismiss. See Nicosia v. Amazon.com, Inc., 834 F.3d 22d, 230-31 (2d Cir.

13   2016). Moreover, although the district court stated that it had converted the Funds defendants’

14   motion into a motion for summary judgment, the district court did not refer to or apparently rely

15   on any of the materials submitted by the Funds defendants in rendering its decision. Accordingly,

16   notwithstanding the district court’s statement, the Funds defendants’ motion was, as a practical

17   matter, “not converted into a motion for summary judgment.” Hayden v. Cty. Of Nassau, 180

18   F.3d 42, 54 (2d Cir. 1999). As a result, dismissal was proper even though Vayani did not have an

19   opportunity to engage in discovery.

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

21   Accordingly, we AFFIRM the judgment of the district court.

22                                                  FOR THE COURT:
23                                                  Catherine O’Hagan Wolfe, Clerk of Court

                                                       5
