722 F.2d 20 (2nd Cir. 1983), 32, Jones v. Niagara Frontier Transp. Authority
|Docket Nº:||32, Docket 83-7086.|
|Citation:||722 F.2d 20|
|Party Name:||Walter L. JONES, Walter L. Jones Development Corporation, Inc., and Walter L. Jones via assignment of claim and cause of action from Walter L. Jones Development Corporation, Inc., Plaintiff-Appellant, v. NIAGARA FRONTIER TRANSPORTATION AUTHORITY, Urban Mass Transportation Administration, Neal Cavanaugh & Siegfried Construction Co., Inc., John Sande|
|Case Date:||November 23, 1983|
|Court:||United States Courts of Appeals, Court of Appeals for the Second Circuit|
Submitted Aug. 29, 1983.
Walter L. Jones, pro se, for plaintiff-appellant.
Timothy Toohey, Buffalo, N.Y., for defendant-appellee Niagara Frontier Transp. Authority.
Salvatore R. Martoche, U.S. Atty. Buffalo, N.Y. (Sonia C. Jaipaul, Asst. U.S. Atty., Buffalo, N.Y.), for defendant-appellee Urban Mass Transit Admin.
Hodgson, Russ, Andrews, Woods & Goodyear, Buffalo, N.Y. (John J. Cooney, Buffalo, N.Y.), for defendant-appellee Siegfried Const. Co., Inc.
Brown, Kelly, Turner, Hasset & Leach, Buffalo, N.Y. (Frederick D. Turner, Buffalo, N.Y.), for defendant-appellee Herbert F. Darling, Inc.
Saperston, Day, Lustig, Gallick, Kirschner & Gaglione, P.C., Buffalo, N.Y. (Richard A. Clack, James W. Gresens, Buffalo, N.Y.), for defendants-appellees The John W. Cowper Co., Inc., Fruin-Colnon/Traylor Bros./Onyx.
Before KEARSE, CARDAMONE and WINTER, Circuit Judges.
KEARSE, Circuit Judge:
This is an appeal from an order of the United States District Court for the Western District of New York, John T. Elfvin, Judge, denying a motion to amend the complaint of plaintiff Walter L. Jones Development Corporation ("Development"), in order to permit Development to assert its claim in the name of its chief executive officer and sole shareholder, Walter L. Jones ("Jones"), to whom it has assigned its
claim, thereby to allow Jones to proceed pro se in prosecuting Development's claim. Jones purports to bring this appeal in his own name as plaintiff-appellant and has so styled his appellate papers. He is not, however, a party to the action, all claims asserted by him in his individual capacity having been earlier dismissed by the district court. However, rather than dismiss the appeal because it has been prosecuted on behalf of a nonparty and because the corporation--the only party plaintiff--is improperly represented by a nonattorney, we have liberally construed the notice of appeal, have treated the appeal as being taken by Development, and have considered the arguments advanced by Jones for reversal. 1 For the reasons below, we affirm the order of the district court.
Jones is the sole stockholder and chief executive officer of Development. The action arises out of the selection by defendant Niagara Frontier Transportation Authority ("Niagara") of contractors for the construction of a light rail rapid transit facility in Buffalo, New York. Development submitted low bids on several prime contracts but was not selected to be a contractor. Niagara stated that Development's bids were rejected because Development had insufficient assets and equipment to handle such large contracts, that it did not have the requisite experience to perform the projects, that it failed to post bid bonds with its bids and that it failed to establish that it had the ability to obtain performance bonds and labor and material bonds in the event that any of the contracts were awarded to it.
On November 24, 1980, Jones, acting pro se, filed a complaint on behalf of Development and of himself individually against defendants Niagara, Urban Mass Transportation Administration, and New York State Department of Transportation, claiming that the reasons advanced by Niagara were pretexts and that the rejection of Development's bids was the result of racial discrimination. The complaint charged violations of various federal statutory and constitutional provisions, including the Fifth and Fourteenth Amendments to the United States Constitution; 42 U.S.C. Secs. 1981, 1983, 1985, and 2000d; 49 U.S.C. Sec. 1615 and 49 C.F.R. Sec. 23 et seq. Between November 24, 1980 and April 22, 1981, Jones filed several amendments to the complaint which, inter alia, added numerous new defendants.
Defendants moved to dismiss, inter alia, the claims asserted on behalf of Jones in his individual capacity, on the ground that any claims asserted belonged to Development. The district court granted this motion in April 1981 and ruled further that Jones, who is not an attorney, could not represent Development in the action. The court entered an order that "Walter L. Jones Development Corporation, Inc. may be represented in this lawsuit only by properly admitted counsel." Memorandum and Order dated April 17, 1981.
Thereafter Development appeared through counsel until October 1982. In November 1982, Jones appeared before the court in opposition to new motions to dismiss Development's current complaint (by then amended five times) and stated that Development no longer had counsel. Jones, acting pro se, moved to amend Development's complaint further to name himself as plaintiff by way of Development's assignment to him of its...
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