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United States Court of Appeals, Second Circuit.

Nahoko MIZUTA, individually, as parent and natural guardian of Y.M., Kentaro Mizuta, individually, as parent and natural Guardian of Y.M., Plaintiffs-Appellants, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Dora M. Lassinger, New York State Education Department, Defendants-Appellees,


Decided: October 29, 2019

Present: ROSEMARY S. POOLER, MICHAEL H. PARK, Circuit Judges, JENNIFER CHOE-GROVES,1 Judge. Appearing for Appellant: Peter G. Albert, Brain Injury Rights Group, New York, N.Y. Appearing for Appellee: Eric Lee, Assistant Corporation Counsel (Scott Schorr, Richard Dearing, on the brief), for Zachary W. Carter, Corporation Counsel of the City of New York, New York, N.Y. Blair S. Greenwald, Assistant Solicitor General, for Letitia James, Attorney General of the State of New York, New York, N.Y.


Appellants Nahoko and Kentaro Mizuta appeal from the April 9, 2019 order of the United States District Court for the Southern District of New York (Batts, J.), vacating a previously entered order granting the Mizutas’ order to show cause. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.

We dismiss plaintiffs’ appeal for lack of jurisdiction. While the Mizutas style the order as one denying injunctive relief and thereby making it an appealable interlocutory order, we disagree. Rather than serving as a denial of relief based on the merits, the order merely denied the Mizutas an evidentiary hearing, as the district court had previously done on two other occasions. An order denying an evidentiary hearing, even when characterized by an appellant as an order denying an injunction, is not an appealable interlocutory order. Frutiger v. Hamilton Cent. Sch. Dist., 928 F.2d 68, 71-72 (2d Cir. 1991).

The Mizutas rely heavily on the statement in the order that the Mizutas “failed to demonstrate the right to either a Temporary Restraining Order or a Preliminary Injunction.” See App’x at 78. But they misunderstand this statement as one addressing the merits of their claim as opposed to the procedural mechanism by which they seek relief. The local rules require parties seeking an ex parte order or an order to show cause to make a clear and specific showing as to why a procedure other than by notice of motion is necessary. Local Civ. R. 6.1(d). Taking the court’s statement in context suggests that the court was not basing its decision on the substance of the Mizutas’ claims, but rather on their tactical choice to proceed by an order to show cause instead of by notice of motion. There is no other indication that the court made a final or preliminary determination regarding the Mizutas’ substantive claims, and the order at issue thus only “regulates the conduct of the litigation, which is not considered an injunction for purposes of appellate jurisdiction.” Frutiger, 928 F.2d at 72.

Accordingly, the appeal hereby is DISMISSED.

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