     14-1082
     Weinstein v. City of New York et al.



                              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 Circuit,
 2   held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
 3   New York, on the 20th day of November, two thousand fifteen.
 4
 5   PRESENT:
 6               DENNIS JACOBS,
 7               DEBRA ANN LIVINGSTON,
 8               CHRISTOPHER F. DRONEY,
 9                     Circuit Judges.
10   _____________________________________
11
12   Martin Weinstein,
13
14                                Plaintiff-Appellant,
15
16
17                      v.                                                          14-1082
18
19
20   City of New York, et al.,
21
22                     Defendants-Appellees.
23   _____________________________________
24
25   FOR PLAINTIFF-APPELLANT:                            Martin Weinstein, pro se, Commack, New York.
26
27   FOR DEFENDANTS-APPELLEES:                           Pamela Seider Dolgow, Fay Ng, Assistant
28                                                       Corporation Counsels, for Zachary W. Carter,
29                                                       Corporation Counsel of the City of New York, New
30                                                       York, New York.
 1          Appeal from a judgment of the United States District Court for the Southern District of

 2   New York (Schofield, J.).

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

 4   DECREED that the motions to supplement the record are DENIED, and the judgment of the

 5   district court is AFFIRMED.

 6          Martin Weinstein, pro se, appeals the district court’s dismissal of his complaint for failure

 7   to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). We assume the parties’

 8   familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

 9          “We review the grant of a motion to dismiss de novo, accepting as true all factual claims in

10   the complaint and drawing all reasonable inferences in the plaintiff’s favor.” Fink v. Time

11   Warner Cable, 714 F.3d 739, 740-41 (2d Cir. 2013) (per curiam). To withstand a Rule 12(b)(6)

12   motion to dismiss, the complaint must plead “enough facts to state a claim to relief that is plausible

13   on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal,

14   556 U.S. 662, 678 (2009). Although a court must accept as true all factual allegations in the

15   complaint, that requirement is “inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678.

16          As the district court determined, Weinstein’s federal claims are time barred. Weinstein

17   does not contend that his complaint was timely; rather, he argues that the statutes of limitation

18   should have been equitably tolled because the defendants prevented him from accessing emails

19   that would have provided factual support for his claims.

20          Equitable tolling is available in “rare and exceptional circumstances.” Zerilli-Edelglass v.

21   N.Y.C. Transit Auth., 333 F.3d 74, 80 (2d Cir. 2003) (alteration omitted). The district court did

22   not abuse its discretion by denying equitable tolling. Weinstein was aware of the injuries


                                                       2
1    underlying his causes of action as soon as he resigned, and actively litigated claims based on these

 2   same facts in state court. See Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 75 (2d Cir.

 3   1998) (“It is well established that a district court may rely on matters of public record in deciding a

 4   motion to dismiss under Rule 12(b)(6) . . . .”).

 5          Weinstein has not alleged that the defendants concealed his causes of action, but that he

 6   was prevented from accessing certain evidence. Fraudulent concealment doctrine excuses a

 7   plaintiff’s late filing of a complaint if the defendants concealed the cause of action itself. See

 8   Veltri v. Bldg. Serv. 32B-J Pension Fund, 393 F.3d 318, 323 (2d Cir. 2004); Pearl v. City of Long

 9   Beach, 296 F.3d 76, 84 (2d Cir. 2002). Weinstein confuses the “distinction between fraudulent

10   concealment of the existence of a cause of action and fraudulent concealment of facts that, if

11   known, would enhance a plaintiff’s ability to prevail as to a cause of action of which the plaintiff

12   was previously aware.” See Pearl, 296 F.3d at 84. Therefore, Weinstein’s excuse for his

13   delay—that the defendants concealed emails that would have provided factual support for his

14   claims—does not constitute an exceptional circumstance warranting tolling.             Cf. Brown v.

15   Parkchester S. Condos., 287 F.3d 58, 60 (2d Cir. 2002) (Sotomayor, J.); Miller v. Int’l Tel. & Tel.

16   Corp., 755 F.2d 20, 24 (2d Cir. 1985).

17          Weinstein’s motions to supplement the record on appeal are denied.                     “Absent

18   extraordinary circumstances, this Court will not enlarge the record on appeal to include

19   evidentiary material not presented to the district court.” Okoi v. El Al Israel Airlines, 378 F.

20   App’x 9, 11 n.1 (2d Cir. 2010) (summary order) (citing Int’l Bus. Machs. Corp. v. Edelstein, 526

21   F.2d 37, 45 (2d Cir. 1975)).        Weinstein has not alleged any extraordinary circumstance

22   warranting our consideration of the new evidence he seeks to submit.


                                                        3
1          We have considered Weinstein’s remaining arguments and find them to be without merit.

2   Accordingly, we AFFIRM the judgment of the district court. Weinstein’s motions to supplement

3   the record are DENIED.

4                                             FOR THE COURT:
5                                             Catherine O’Hagan Wolfe, Clerk




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