     15-3475
     Chen v. Antel Communications, LLC 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 “SUMMARY ORDER”). A PARTY CITING 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
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 24th day of June, two thousand sixteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                GUIDO CALABRESI,
 8                REENA RAGGI,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       JIA CHEN, AKA KEVIN CHEN,
13                Plaintiff-Appellant,
14
15                    -v.-                                               15-3475
16
17       ANTEL COMMUNICATIONS, LLC & LOUIS
18       ANTONIOU,
19                 Defendants-Appellees.
20       - - - - - - - - - - - - - - - - - - - -X
21
22       FOR APPELLANT:                         William M. Brown, Hang and
23                                              Associates, PLLC, Flushing, New
24                                              York.
25
26       FOR APPELLEES:                         Andrew W. Schwartz, Sills Cummis
27                                              & Gross, P.C., Newark, New
28                                              Jersey.

                                                  1
 1        Appeal from an order of the United States District
 2   Court for the Eastern District of New York (Feuerstein, J.).
 3
 4        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 5   AND DECREED that the order of the district court is
 6   AFFIRMED.
 7
 8        Jia Chen appeals from a September 30, 2015 order of the
 9   United States District Court for the Eastern District of New
10   York (Feuerstein, J.), granting defendants-appellees’ motion
11   to dismiss in part and denying it in part. We assume the
12   parties’ familiarity with the underlying facts, the
13   procedural history, and the issues presented for review.
14
15        “[A] denial of a motion to dismiss is ordinarily
16   considered non-final, and therefore not immediately
17   appealable.” Hill v. City of New York, 45 F.3d 653, 659 (2d
18   Cir. 1995); see also Britt v. Garcia, 457 F.3d 264, 270 (2d
19   Cir. 2006) (“Because the district court ha[d] not yet
20   entered a final judgment, this appeal is interlocutory.”).
21   Chen has articulated no reason why he should be permitted to
22   take an interlocutory appeal in this case. Nonetheless, “‘a
23   premature notice of appeal from a nonfinal order may ripen
24   into a valid notice of appeal if a final judgment has been
25   entered by the time the appeal is heard and the appellee
26   suffers no prejudice.’” IUE AFL-CIO Pension Fund v.
27   Herrmann, 9 F.3d 1049, 1054-55 (2d Cir. 1993) (quoting Welch
28   v. Cadre Capital, 923 F.2d 989, 992 n.1 (2d Cir. 1991)).
29   Both conditions are satisfied here, so we proceed to the
30   merits of Chen’s claims.
31
32        Chen principally argues on appeal that the district
33   court erred in considering the Employment Agreement when
34   evaluating defendants-appellees’ motion to dismiss.
35   “[M]aterials outside the record may become the basis for a
36   dismissal” if: (1) the document is “‘integral’ to the
37   complaint”; (2) “no dispute exists regarding the
38   authenticity or accuracy of the document”; and (3) “there
39   exist no material disputed issues of fact regarding the
40   relevance of the document.” Faulkner v. Beer, 463 F.3d 130,
41   134 (2d Cir. 2006). The Employment Agreement meets all
42   three requirements given that, by its terms, it superseded
43   the Appointment Contract. Chen cannot evade that conclusion
44   merely because he carefully omitted mention of the
45   Employment Agreement in his complaint. “Carefully avoiding
46   all mention of [pertinent documents] does not make them any
47   less integral to [the] complaint.” Yak v. Bank Brussels

                                  2
 1   Lambert, 252 F.3d 127, 131 (2d Cir. 2001). Accordingly, the
 2   district court properly exercised its discretion in taking
 3   “the document into consideration in deciding the
 4   [defendants’] motion to dismiss, without converting the
 5   proceeding to one for summary judgment.” Int’l Audiotext
 6   Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d
 7   Cir. 1995).
 8
 9        Chen also argues he should have been given leave to
10   replead notwithstanding that he made no such application to
11   the district court. “[W]e do not deem it an abuse of the
12   district court’s discretion to order a case closed when
13   leave to amend has not been sought.” Shields v. Citytrust
14   Bancorp, Inc., 25 F.3d 1124, 1132 (2d Cir. 1994).
15
16        For the foregoing reasons, and finding no merit in
17   Chen’s other arguments, we hereby AFFIRM the order of the
18   district court.
19
20                              FOR THE COURT:
21                              CATHERINE O’HAGAN WOLFE, CLERK
22




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