     15-3234
     Cresci v. Mohawk Valley Community College

                                      UNITED STATES COURT OF APPEALS
                                         FOR THE SECOND CIRCUIT

                                                 SUMMARY ORDER

 1   RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
 2   SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY
 3   FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
 4   WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
 5   MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
 6   NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A
 7   COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 8          At a stated term of the United States Court of Appeals for the Second Circuit, held at
 9   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
10   on the 2nd day of June, two thousand seventeen.
11
12   PRESENT:
13              PIERRE N. LEVAL,
14              GUIDO CALABRESI,
15              SUSAN L. CARNEY,
16                          Circuit Judges.
17   _________________________________________
18
19   PETER J. CRESCI,
20
21                      Plaintiff-Appellant,
22
23                               v.                                    No. 15-3234
24
25   MOHAWK VALLEY COMMUNITY COLLEGE,
26   KIMBERLY EVANS-DAME, Individually,
27   JOHN DOES 1-4,
28
29              Defendants-Appellees.
30   _________________________________________
31
32   FOR PLAINTIFF-APPELLANT:                            Peter Cresci, pro se, Cresci Law Firm LLC,
33                                                       Bayonne, NJ.
34
35   FOR DEFENDANTS-APPELLEES:                           Charles C. Spagnoli, The Law Firm of
36                                                       Frank W. Miller, East Syracuse, NY.
 1          Appeal from a judgment of the United States District Court for the Northern District
 2   of New York (Suddaby, J.).

 3          UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
 4   ADJUDGED, AND DECREED that the September 11, 2015 judgment entered by the
 5   District Court is AFFIRMED in part, REVERSED in part, and REMANDED for
 6   further proceedings.

 7          Appellant Peter J. Cresci, an attorney proceeding pro se, sued Mohawk Valley
 8   Community College (“MVCC”) and several of its employees under the Uniformed Services
 9   Employment and Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C. §§ 4301–35,
10   for discrimination and retaliation and for First Amendment retaliation under 42 U.S.C.
11   § 1983. He alleges that, in 2012 and 2013, MVCC refused to hire him for various positions
12   because of his status as a veteran and in retaliation for his protected speech. Cresci appeals
13   the District Court’s judgment dismissing with prejudice his USERRA claims for lack of
14   subject matter jurisdiction and his retaliation cause of action for failure to state a claim. We
15   assume the parties’ familiarity with the underlying facts and the procedural history of this
16   case, to which we refer only as necessary to explain our decision.

17          We review de novo a district court’s legal conclusions with respect to subject matter
18   jurisdiction. Mastafa v. Chevron Corp., 770 F.3d 170, 177 (2d Cir. 2014). A district court must
19   dismiss a cause of action under Rule 12(b)(1) for lack of subject matter jurisdiction when it
20   “lacks the statutory or constitutional power to adjudicate [the claim].” Id. (internal quotation
21   marks omitted). Section 4323 of title 38 governs jurisdiction over claims brought under
22   USERRA. Section 4323 states in relevant part:

23                  (b) Jurisdiction.—(1) In the case of an action against a State (as
24                  an employer) or a private employer commenced by the United
25                  States, the district courts of the United States shall have
26                  jurisdiction over the action.
27                  (2) In the case of an action against a State (as an employer) by a
28                  person, the action may be brought in a State court of competent
29                  jurisdiction in accordance with the laws of the State.


                                                     2
 1                   (3) In the case of an action against a private employer by a
 2                   person, the district courts of the United States shall have
 3                   jurisdiction of the action.
 4   38 U.S.C. § 4323(b) (emphasis added). USERRA defines a “State” as “each of the several
 5   States of the United States . . . (including the agencies and political subdivisions thereof).” Id.
 6   § 4303(14). Thus, lawsuits brought under USERRA by an individual against a state agency
 7   such as MVCC may not proceed in federal courts; they may be litigated only in state courts.
 8   The District Court therefore correctly determined that it lacked subject matter jurisdiction
 9   over Cresci’s USERRA claims. See McIntosh v. Partridge, 540 F.3d 315, 320–21 (5th Cir. 2008).1

10           Regarding Cresci’s First Amendment retaliation claim: we review de novo a dismissal
11   pursuant to Rule 12(b)(6). Goldstein v. Pataki, 516 F.3d 50, 56 (2d Cir. 2008). To avoid
12   dismissal, a complaint must plead “enough facts to state a claim to relief that is plausible on
13   its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal, 556 U.S.
14   662, 678 (2009). Conclusory allegations that the defendant violated the law will not suffice.
15   See Twombly, 550 U.S. at 555.

16           A plaintiff pursuing a retaliation claim under the First Amendment must allege that
17   “(1) his speech addressed a matter of public concern, (2) he suffered an adverse employment
18   decision, and (3) a causal connection exists between his speech and that adverse employment
19   decision, so that it can be said that the plaintiff’s speech was a motivating factor in the
20   adverse employment action.” Cioffi v. Averill Park Cent. Sch. Dist. Bd. of Ed., 444 F.3d 158, 162
21   (2d Cir. 2006). With respect to the “causal connection” requirement, a plaintiff must plead
22   facts from which it can reasonably be inferred that the defendant was aware of the
23   purportedly protected speech. See Wrobel v. Cnty. of Erie, 692 F.3d 22, 32 (2d Cir. 2012) (“[I]t
24   is only intuitive that for protected conduct to be a substantial or motiving factor in a
25   decision, the decisionmakers must be aware of the protected conduct.” (internal quotation
26   marks omitted)).


     1Further, the statute contains no provision permitting USERRA claims to be brought against individuals. Nor
     can a plaintiff avoid USERRA’s limitation in this respect by casting a claim based on USERRA and aimed at
     an individual state actor as one brought under 42 U.S.C. § 1983. Morris-Hayes v. Bd. of Educ. of Chester Union
     Free Sch. Dist., 423 F.3d 153, 159–61 (2d Cir. 2005).
                                                           3
 1          Cresci contends that, in declining on several occasions to hire him, MVCC acted in
 2   retaliation for his having represented clients in civil rights litigation. Even assuming that
 3   Cresci’s litigation on behalf of others was protected speech of his own—which is at best
 4   uncertain—the District Court correctly determined that Cresci failed to allege facts from
 5   which the court could infer that MVCC was aware of any such protected speech. The only
 6   allegation in the complaint that alludes to MVCC’s awareness states, without more,
 7   “Defendant Evans-Dame took exception to [Cresci’s] civil rights work.” Compl. ¶ 18. The
 8   District Court subsequently deemed incorporated into the complaint several documents that
 9   Cresci submitted with his opposition to the motion to dismiss. These included a cover letter
10   and resume that Cresci apparently submitted to Evans-Dame in connection with a job
11   application referred to in his complaint. Cresci argues now that MVCC became aware of his
12   speech from the work listed on his resume. But the resume includes only general references
13   to the numerous areas of litigation in which Cresci represented he had practiced. The
14   District Court did not err in concluding that this provided insufficient support for his
15   allegation that MVCC knew of any protected speech.

16          Cresci also alleges that Defendants retaliated against him for submitting to MVCC
17   requests pursuant to the New York State Freedom of Information Law (“FOIL”) for the
18   production of documents. Again, we need not decide whether filing such requests
19   constitutes protected speech, for even assuming that it does, the complaint docs not
20   plausibly allege that Cresci was rejected because of his FOIL request. He had already been
21   rejected for the same position in November 2012 prior to making his FOIL demand. It is
22   therefore implausible that MVCC’s decision makers, who had rejected him a few months
23   earlier before he made a FOIL demand, were now rejecting him because of his intervening
24   FOIL demand.

25          Finally, Cresci argues that the District Court erred in denying him leave to amend the
26   complaint. We agree. Simultaneously, in a single order, the court granted the defendant’s
27   motion to dismiss, identifying the flaws it found in Cresci’s complaint, and denied Cresci
28   leave to replead, faulting him for having failed to submit a proposed amended complaint in
29   the time between the defendant’s motion to dismiss and the court’s ruling on it. The court
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 1   entered judgment the same day. In so ruling, the court committed a slight variant of the
 2   error we criticized and overturned in Loreley Financing v. Wells Fargo Securities, LLC, 797 F.3d
 3   160 (2d Cir. 2015). The proper time for a plaintiff to move to amend the complaint is when
 4   the plaintiff learns from the District Court in what respect the complaint is deficient. Before
 5   learning from the court what are its deficiencies, the plaintiff cannot know whether he is
 6   capable of amending the complaint efficaciously. Here, Cresci learned what deficiencies the
 7   court had found upon receiving the District Court’s order dismissing his complaint, but that
 8   same order prohibited Cresci from amending his complaint.

 9            As we reasoned in Loreley, “Without the benefit of a ruling, many a plaintiff will not
10   see the necessity of amendment or be in a position to weigh the practicality and possible
11   means of curing specific deficiencies.” 797 F.3d at 190. The court’s error was all the more
12   egregious because Cresci, in his papers opposing the motion to dismiss, had expressly asked
13   to be allowed to replead in the event of an adverse ruling.

14            It is the District Court’s ruling, not the defendant’s arguments in support of a motion
15   to dismiss, that puts a plaintiff on notice of the complaint’s deficiencies. See id. A plaintiff has
16   no obligation to replead merely because the defendant has argued that the complaint is
17   deficient, without knowing whether the court will agree. See id. The court’s criticism of Cresci
18   for failure to submit a proposed amended complaint before learning whether, and in what
19   respects, the court would find deficiencies was unjustified, and the court’s denial of leave to
20   replead, simultaneously with its decision that the complaint was defective, effectively
21   deprived Cresci of a reasonable opportunity to seek leave to amend. Such a denial is not
22   compatible with the liberal objective of Rule 15. See Porat v. Lincoln Towers Cmty. Ass’n, 464
23   F.3d 274, 276 (2d Cir. 2006) (per curiam) (“Without doubt, this circuit strongly favors liberal
24   grant of an opportunity to replead after dismissal of a complaint under Rule 12(b)(6).”).2


     2 We also think the District Court is mistaken in interpreting NDNY Local Rule 7.1(a)(4) to mean that a plaintiff is
     compelled to provide the District Court a proposed amended complaint (or to at least identify intended changes) in the
     plaintiff’s opposition papers to a motion to dismiss, prior to knowing whether the District Court will grant the motion to
     dismiss or on what grounds. The rule requires that a plaintiff submit a proposed amended complaint together with a
     motion for leave to amend the pleading, but it does not suggest that a plaintiff is required to so move prior to learning
     that the court will find the complaint defective. This interpretation would be difficult to justify, especially given our
     ruling in Loreley Financing. A more reasonable interpretation of the Rule is that, upon moving to amend at the appropriate
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 1

 2            We therefore conclude that the District Court exceeded the permissible bounds of its
 3   discretion in failing to heed the message of Loreley, and denying Cresci an opportunity to
 4   amend after the court rendered its decision on defendant’s motion to dismiss. For this
 5   reason, we reverse the judgment of the District Court dismissing the complaint’s First
 6   Amendment retaliation claim with prejudice and remand for further proceedings consistent
 7   with this order. We affirm the District Court’s dismissal for want of jurisdiction over the
 8   USERRA claims.

 9                                                          * * *

10            We have considered all of the parties’ remaining arguments and find them to be
11   without merit. Accordingly, we AFFIRM the judgment of the District Court in part,
12   REVERSE in part, and REMAND the case for further proceedings consistent with this
13   order.

14                                                                   FOR THE COURT:
15                                                                   Catherine O’Hagan Wolfe, Clerk of Court




     time—that is, after being advised by the court of the complaint’s defects—the plaintiff must attach a proposed amended
     complaint showing how the plaintiff proposes to cure the defects.
                                                               6
