Gusler v. The City of Long Beach, No. 11-4493 (2d Cir. 2012)
Annotate this Case
Justia Opinion Summary
Want to stay in the know about new opinions from the Second Circuit US Court of Appeals?
Sign up for free summaries delivered directly to your inbox. Learn More ›
You already receive new opinion summaries from Second Circuit US Court of Appeals. Did you know we offer summary newsletters for even more practice areas and jurisdictions? Explore them here.
Plaintiff filed an action under 42 U.S.C. 1983, alleging that defendants unlawfully retaliated against him after he spoke out about issues involving his employer, the Long Beach Fire Department. The district court dismissed some of the claims against some of the defendants and the remaining individual defendants sought to appeal the denial of their dismissal motion, raising a defense of qualified immunity. The court held, however, that it lacked jurisdiction to consider their appeal because they did not file a timely notice of appeal that specified that they intended to appeal.
Download PDF
11-4493-cv Gusler v. City of Long Beach 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2012 (Submitted: September 6, 2012 Decided: November 26, 2012) Docket No. 11-4493-cv - - - - - - - - - - - - - - - - - - - - - - -x JAY GUSLER, PLAINTIFF-APPELLEE, 16 17 18 -v.- 19 20 21 22 23 24 25 26 THE CITY OF LONG BEACH, THE LONG BEACH VOLUNTEER FIRE DEPARTMENT, THE LONG BEACH POLICE DEPARTMENT, CHARLES THEOFAN, GARRET ROONEY, LISA HIRSCH, COREY KLEIN, ROBERT AGOSTISI, MARCO PASSARO, JOHN GARGAN, SCOTT KEMINS, STEPHEN FRASER, JOHN McLAUGHLIN, MICHAEL GELBERG, TIMOTHY RADIN, 27 28 29 30 31 32 33 DEFENDANTS-APPELLANTS. - - - - - - - - - - - - - - - - - - - - - - -x Before: * JACOBS, Chief Judge, Carney, Circuit Judge, Gleeson, District Judge.* The Honorable John Gleeson, United States District Judge for the Eastern District of New York, sitting by designation. 1 Plaintiff Jay Gusler, pro se, filed an action under 42 2 U.S.C. § 1983, alleging that the defendants unlawfully 3 retaliated against him. 4 dismissed some of the claims against some of the defendants. 5 The remaining individual defendants sought to appeal the 6 denial of their dismissal motion raising a defense of 7 qualified immunity. 8 consider their appeal because they did not file a timely 9 notice of appeal that specified that they intended to 10 11 The district court (Feuerstein, J.) However, we lack jurisdiction to appeal. Dismissed. 12 13 14 15 Paul F. Millus and Virginia K. Trunkes, Snitow Kanfer Holtzer & Millus, LLP, New York, NY for Defendants-Appellants. 16 17 Jay Gusler, pro se, Long Beach, NY, for Plaintiff-Appellee. 18 19 DENNIS JACOBS, Chief Judge: This appeal is taken from an order of the United States 20 District Court for the Eastern District of New York 21 (Feuerstein, J.), denying qualified immunity for certain 22 defendants on a retaliation claim asserted under 42 U.S.C. 23 § 1983. 24 because the notice fails to comply with the requirement of 25 Federal Rules of Appellate Procedure Rule 3(c)(1)(A) that 26 the notice specify the party or parties taking the appeal. We lack jurisdiction to consider this appeal 2 1 BACKGROUND 2 The factual allegations of the underlying suit are 3 irrelevant to the jurisdictional issue except insofar as 4 they assist in accounting for the procedural history. 5 Plaintiff Jay Gusler, pro se, alleges he suffered 6 retaliation for speaking out about issues involving his 7 employer, the Long Beach Fire Department. 8 the City of Long Beach, its police department and volunteer 9 fire department, and twelve individual officers and His suit names 10 officials of the city. 11 dismiss for failure to state a claim and on grounds of 12 qualified immunity. 13 to all the individual defendants, but as to eight of them 14 granted the motions to dismiss for failure to state a claim. 15 (Claims against another were withdrawn after he died.) 16 Thus, there remained claims against three: Charles Theofan, 17 Marco Passaro, and John Gargan. 18 The individual defendants moved to The court denied qualified immunity as A notice of appeal was filed within 30 days. See Fed. 19 R. App. P. 4(a)(1)(A). The notice of appeal contained the 20 full caption, naming fifteen defendants (including Theofan, 21 Passaro, and Gargan), but stated in the body: Notice is 22 hereby given that the defendant Nassau County hereby appeals 23 . . . . to the extent that the [District] Court denied 24 defendants motion to dismiss the claims against the 3 1 individual defendants on the grounds of qualified immunity. 2 (Notice of Appeal, Docket No. 1, Oct. 26, 2011.) 3 of Long Beach is in Nassau County, but Nassau County itself 4 is not a party. 5 The City After the 30-day period to file a notice of appeal had 6 lapsed, the defendants (without seeking leave of court) 7 filed an amended notice of appeal listing as appellants all 8 twelve individual defendants--without distinguishing between 9 those who had been dismissed and those who had not. 10 (Only the amended notice was included in the appendix on appeal.) 11 12 13 DISCUSSION The requirement that a party seeking to appeal be 14 specified in the notice of appeal is jurisdictional. 15 v. Marriott Corp., 906 F.2d 874, 877 (2d Cir. 1990) (citing 16 Torres v. Oakland Scavenger Co., 487 U.S. 312, 314 (1988)); 17 accord State Trading Corp. v. Assuranceforeningen Skuld, 921 18 F.2d 409, 412 (2d Cir. 1990). 19 first satisfy ourselves of our jurisdiction even though the 20 parties here have not raised the issue. 21 132 S. Ct. 641, 648 (2012); Reddington v. Staten Island 22 Univ. Hosp., 511 F.3d 126, 131 (2d Cir. 2007). 23 24 Baylis We are therefore obligated to Gonzalez v. Thaler, The original notice of appeal recites only that defendant Nassau County hereby appeals the decision of the 4 1 district court. That does not provide notice to the court 2 [or] to the opposing parties of the identity of the 3 appellant or appellants so that this Court, the district 4 court, and the plaintiff can know . . . which parties are 5 bound by the district court s [decision] [and] which parties 6 may be held liable for costs or sanctions on the appeal. 7 Baylis, 906 F.2d at 877; accord Torres, 487 U.S. 318 ( The 8 purpose of the specificity requirement of Rule 3(c) [of the 9 Federal Rules of Appellate Procedure] is to provide notice 10 both to the opposition and to the court of the identity of 11 the appellant or appellants. ). 12 party could sit on the fence, await the outcome [of the 13 appeal], and opt to participate only if it was favorable. 14 Gonzalez, 132 S. Ct. at 652. Were it otherwise, [t]he 15 Rule 3(c)(1)(A) requires that a notice of appeal 16 specify the party or parties taking the appeal by naming 17 each one in the caption or body of the notice and permits 18 an attorney representing more than one party [to] describe 19 those parties with such terms as all plaintiffs, the 20 defendants, the plaintiffs A, B, et al., or all 21 defendants except X. 22 individual defendants wishing to appeal were not specified 23 in the body of the notice. 24 appeal notice could possibly suffice would be if it is (Emphasis added.) Obviously, the So the only way that the 5 1 enough that the three parties against whom claims remain are 2 among the fifteen defendants listed in the caption of the 3 notice. 4 Because a notice of appeal must specify the party or 5 parties taking the appeal, Fed. R. App. P. 3(c)(1)(A), it 6 fails to do so if those parties are listed only in the 7 caption while the body of the notice states that someone 8 else is taking the appeal. 9 Tenn. Dep t of Emp t Sec., Inc. v. State of Tenn. Dep t of See Minority Employees of the 10 Emp t Sec., 901 F.2d 1327, 1335-36 & n.5 (6th Cir. 1990) (in 11 banc); Allen Archery, Inc. v. Precision Shooting Equip., 12 Inc., 857 F.2d 1176, 1176-77 (7th Cir. 1988) (per curiam) 13 (denying petition for rehearing). 14 Those cases pre-date the adoption of the 1993 wording 15 in Rule 3(c)(1)(A) (quoted above) which controls this 16 appeal; but they marked the trend that was codified in 1993. 17 A bit of background may be useful. 18 Scavenger Co., 487 U.S. 312 (1988), one of the appellants-- 19 unnamed in the body of the notice--was referenced in the 20 caption only by the et al. that followed the name of 21 another party. 22 jurisdiction was lacking: The specificity requirement[] of 23 Rule 3(c) is met only by some designation that gives fair 24 notice of the specific individual or entity seeking to In Torres v. Oakland The Supreme Court held that appellate 6 1 appeal. Torres, 487 U.S. at 318. Some ensuing decisions 2 found it sufficient to list a party in the caption if that 3 party s intent to appeal . . . was manifest from a reading 4 of the body of the notice of appeal and the caption. 5 Mariani-Giron v. Acevedo-Ruiz, 877 F.2d 1114, 1116 (1st Cir. 6 1989) (collecting cases); accord Minority Employees, 901 7 F.2d at 1336 (holding that a notice of appeal is 8 insufficient when the caption is inconsistent with the body 9 of the notice, because any ambiguity between the caption 10 and the body will defeat the notice ). 11 persisted over various permutations of the facts in Torres.1 12 The Advisory Committee Notes explain that [t]he [1993] 13 amendment is intended to reduce the amount of [such] 14 satellite litigation. 15 But litigation In this light, the reference in Rule 3(c)(1)(A) to 16 naming [the party] in the caption is best understood to 17 mean that the notice of appeal is sufficient even if the 18 party taking the appeal is named nowhere but in the caption 19 if--and only if--it is manifest from the notice as a whole 20 that the party wishes to appeal. 1 The notice of appeal then One example of the litigation spawned by Torres was whether an appellate court had jurisdiction over a plaintiff not listed in a caption when the body of the notice stated that plaintiffs, the plaintiffs, or all plaintiffs appealed. See, e.g., Minority Employees, 901 F.2d at 1335. 7 1 meets the requisite of specify[ing] the party or parties 2 taking the appeal. 2 3 Fed. R. App. P. 3(c)(1)(A). Our holding finds additional support in the text of 4 Rule 3(c): An appeal must not be dismissed . . . for 5 failure to name a party whose intent to appeal is otherwise 6 clear from the notice. 7 added). 8 3(c) explain: The test established by the rule for 9 determining whether . . . designations are sufficient is 10 whether it is objectively clear that a party intended to 11 appeal, 12 if it is clear that each of the eleven living individual 13 defendants listed in the caption of the notice--including 14 those against whom all claims had been dismissed--intended 15 to appeal.3 16 test established by the rule for a party to be listed in Fed. R. App. P. 3(c)(4) (emphasis The Advisory Notes for the 1993 Amendment to Rule (emphasis added). The appeal notice may suffice On the other hand, it would plainly fail [t]he 2 So, for example, Rule 3(c)(1)(A) permits an attorney representing more than one party [to] describe those parties with such terms as all plaintiffs, the defendants, the plaintiffs A, B, et al., or all defendants except X because, under such circumstances, it would be unambiguous which parties seek to appeal. 3 A party who claims immunity but prevails in district court on a ground that may subject him to defending an appeal after final judgment might have an interest in appealing the denial of immunity at the outset. The ability to bring such an appeal is an issue that might be reached if the eight defendants were appealing; that is what we do not know. 8 1 only the caption if the body of the notice leaves 2 uncertainty as to whether that party is appealing. 3 the case here: The three defendants against whom claims 4 remain are among the parties listed in the caption, but the 5 body of the notice states that someone else is appealing the 6 district court s order. 7 That is Our holding is also consistent with the purpose of the 8 specificity requirement of Rule 3(c): to provide notice 9 both to the opposition and to the court of the identity of 10 the appellant or appellants. Torres, 487 U.S. at 318; 11 accord Baylis, 906 F.2d at 877; Cotton v. U.S. Pipe & 12 Foundry Co., 856 F.2d 158, 162 (11th Cir. 1988). 13 Torres construed the Rule before the 1993 Amendment, Torres 14 and the post-Amendment Rule both require[] that the notice 15 of appeal make clear in some fashion the identity of each 16 party desiring to join the appeal. 17 Venture, PND, Ltd. v. Comm r of Internal Revenue, 200 F.3d 18 1268, 1274 (11th Cir. 1999). Although Twenty Mile Joint 19 It could be argued that, since the notice requirement 20 rules should be liberally construed, Marrero Pichardo v. 21 Ashcroft, 374 F.3d 46, 55 (2d Cir. 2004), the specificity 22 requirement of Rule 3(c)(1)(A) should be deemed satisfied if 23 the party taking the appeal is listed in the caption 24 regardless of body of the notice of appeal. 9 We disagree. 1 Such a construction would not ensure that it is objectively 2 clear which party or parties intended to appeal. 3 Fed. R. App. P. 3 advisory committee s notes to 1993 4 Amendments. 5 to inform the opposition and the courts of who is appealing. 6 Torres, 487 U.S. at 318. 7 parties have waived arguments that are not made, and which 8 parties are bound by the result on appeal. 9 See That would undermine the purpose of the Rule: And it would leave uncertain which The statement in the text of the notice--that the 10 appeal concerns the district court s order "to the extent 11 that the Court denied defendants motion to dismiss the 12 claims against the individual defendants on the grounds of 13 qualified immunity"--may give reasonable grounds for 14 concluding that only the individual defendants have an 15 interest in appealing. 16 ambiguity about whether appeal is sought by all eleven 17 individual defendants still living, considering that eight 18 of them achieved dismissal on other grounds. 19 should transpire in the future that it was error to dismiss 20 the claims against them, it is not clear whether they would 21 be bound by any decision we issued in this appeal with 22 respect to their entitlement to qualified immunity. 23 the notice fails to meet the basic requirement of informing 24 the court and the opposition of who is taking the appeal. It does not, however, resolve the 10 And if it Thus, 1 Finally, the amended notice of appeal does not fix the 2 problem. The amended notice was filed after the time to 3 appeal had run. 4 did not seek an extension of time to amend and correct the 5 notice of appeal, Fed. R. App. P. 4(a)(5), and, the time to 6 do so has long since passed, Fed. R. App. P. 4(a)(5)(C). See Fed. R. App. P. 4(a)(1)(A). Defendants 7 * * * 8 Because the notice of appeal did not specify which 9 defendants were taking an appeal of the district court s 10 decision, we lack jurisdiction to consider their appeal. 11 Torres, at 314-15, 317. 12 13 14 15 CONCLUSION Accordingly, the appeal is dismissed for lack of appellate jurisdiction. 11
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
