Opinion
20-2236 20-2271 20-2274 20-2276 20-2351
04-04-2022
LEILA NASSER ASR, individually and as parent of minor child DM, Plaintiff - Appellant, v. KAREN EADY-WILLIAMS; MECKLENBURG COUNTY COURTHOUSE, Defendants - Appellees, LEILA NASSER ASR, Individually and as parent of minor child DM, Plaintiff - Appellant, v. MITZI Y. KINCAID; KINCAID & ASSOCIATES, PLLC, Defendants - Appellees, LEILA NASSER ASR, Individually and as parent of minor child DM, Plaintiff - Appellant, v. CHARLES GUY MONNETT; CHARLES G. MONNETT III & ASSOCIATES, Defendants - Appellees, LEILA NASSER ASR, Individually and as parent of minor child DM, Plaintiff - Appellant, v. ANTHONY GIORDANO; GIORDANO, GORDON & BURNS, PLLC, Defendants - Appellees, LEILA NASSER ASR, individually and as parent of minor child D.M., Plaintiff - Appellant, v. DANIEL R. HANSEN; KINDERCARE EDUCATION, LLC, f/k/a Knowledge Universe Education LLC; KINDERCARE LEARNING CENTERS, LLC, d/b/a Park Road Kindercare, Defendants - Appellees.
Leila Nasser Asr, Appellant Pro Se. Kathryn Hicks Shields, Assistant Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina; Karen Harris Chapman, John Michael Durnovich, POYNER SPRUILL, LLP, Charlotte, North Carolina; Randall Joseph Phillips, CHARLES G. MONNETT III & ASSOCIATES, Charlotte, North Carolina; Ryan D. Bolick, CRANFILL SUMNER, LLP, Charlotte, North Carolina; Lucas D. Garber, SHUMAKER LOOP & KENDRICK, PLLC, Charlotte, North Carolina, for Appellees.
UNPUBLISHED
Submitted: January 31, 2022
Appeals from the United States District Court for the Western District of North Carolina, at Charlotte. Max O. Cogburn, Jr., District Judge. 3:20-cv-00140-MOC-DCK; 3:20-cv-00142-MOC-DCK; 3:20-cv-00139-MOC-DCK; 3:20-cv-00143-MOC-DCK; 3:20-cv-00141-MOC-DCK
Leila Nasser Asr, Appellant Pro Se.
Kathryn Hicks Shields, Assistant Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina; Karen Harris Chapman, John Michael Durnovich, POYNER SPRUILL, LLP, Charlotte, North Carolina; Randall Joseph Phillips, CHARLES G. MONNETT III & ASSOCIATES, Charlotte, North Carolina; Ryan D. Bolick, CRANFILL SUMNER, LLP, Charlotte, North Carolina; Lucas D. Garber, SHUMAKER LOOP & KENDRICK, PLLC, Charlotte, North Carolina, for Appellees.
Before MOTZ, HARRIS, and RUSHING, Circuit Judges.
Affirmed in part, affirmed as modified in part by unpublished per curiam opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM.
Leila Nasser Asr appeals the district court's orders granting Appellees' motions to dismiss her complaints on the grounds of lack of subject matter jurisdiction, judicial and Eleventh Amendment immunity, and collateral estoppel and res judicata. Although the district court granted her multiple extensions of time to do so, Asr did not respond in the district court to Appellees' motions to dismiss and therefore failed to address their assertions that her complaints were subject to dismissal. Accordingly, her arguments challenging the district court's reasons for dismissal are raised for the first time on appeal. As a general rule in civil cases, we will not review appellate arguments that were not made in the district court. See In re Under Seal, 749 F.3d 276, 285 (4th Cir. 2014). We have considerable discretion in deciding which issues to consider for the first time on appeal, id., and, "absent exceptional circumstances," we will decline to exercise that discretion, Hicks v. Ferreyra, 965 F.3d 302, 310 (4th Cir. 2020) (cleaned up). We have reviewed the record and conclude that Asr has not met this standard.
Asr also argues that the district court's orders were the result of judicial bias. Our review of the record leads us to conclude that this argument is without merit. See, e.g., Belue v. Leventhal, 640 F.3d 567, 573 (4th Cir. 2011) (explaining that rulings made "on the basis of facts introduced or events occurring in the course of the current proceedings . . . almost never constitute a valid basis for a bias or partiality motion" (internal quotation marks omitted)).
We therefore affirm the district court's orders dismissing Asr's complaints against Eady-Williams, the Mecklenburg County Courthouse, Hansen, KinderCare Education, LLC, and KinderCare Learning Centers, LLC. Asr v. Eady Williams, No. 3:20-cv-00140-MOC-DCK (W.D. N.C. Oct. 19, 2020); Asr v. Hansen, No. 3:20-cv-00141-MOC-DCK (W.D. N.C. Nov. 23, 2020). However, the dismissal of Asr's complaints against Kincaid, Giordano, and Monnett for lack of subject matter jurisdiction should have been without prejudice. See S. Walk at Broadlands Homeowner's Ass'n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir 2013) (explaining that court lacking "jurisdiction has no power to adjudicate and dispose of a claim on the merits"). We therefore modify the orders in those cases to reflect that the dismissals are without prejudice, see 28 U.S.C. § 2106, and affirm the judgments as modified. Asr v. Kincaid, No. 3:20-cv-00142-MOC-DCK (W.D. N.C. Oct. 29, 2020); Asr v. Giordano, No. 3:20-cv-00143-MOC-DCK (W.D. N.C. Oct. 29, 2020); Asr v. Monnett, No. 3:20-cv-00139-MOC-DCK (W.D. N.C. Oct. 29, 2020).
We deny Asr's motions to seal the record on appeal and for appointment of counsel. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.
AFFIRMED IN PART, AFFIRMED AS MODIFIED IN PART.