Houston v. Manheim-New York Dow Lohnes PLLC

11-1760-cv; 11-1677-cv
Houston v. Manheim-New York; Dow Lohnes PLLC
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. 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 for the Second Circuit, held at
2 the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
3 York, on the11th day of April, two thousand twelve.
4
5 PRESENT: AMALYA L. KEARSE,
6 RAYMOND J. LOHIER, JR.,
7 Circuit Judges,
8 EDWARD R. KORMAN,
9 District Judge.*
10
11 ------------------------------------------------------------------
12
13 LEONARD W. HOUSTON,
14 Plaintiff-Appellant,
15
16 v. No. 11-1760-cv
17
18 MANHEIM-NEW YORK d/b/a MANHEIM SERVICES
19 CORPORATION f/k/a MANHEIM’S NEWBURGH AUTO
20 AUCTION, a wholly owned subsidiary corporation of Cox
21 Enterprises, Inc., and COX ENTERPRISES, INC., a Delaware
22 Corporation and a parent corporation for its subsidiaries,
23 Defendants-Appellees.
24
25
*
Judge Edward R. Korman, of the United States District Court for the Eastern
District of New York, sitting by designation.
1 ------------------------------------------------------------------
2
3 LEONARD W. HOUSTON,
4 Plaintiff-Appellant,
5
6 v. No. 11-1677-cv
7
8 DOW LOHNES PLLC, ATTORNEYS AT LAW, COX
9 ENTERPRISES, INC.,
10 Defendants-Appellees.
11
12 ------------------------------------------------------------------
13
14 FOR APPELLANT: Leonard W. Houston, pro se, Middletown, NY.
15
16 FOR APPELLEES: Robert E. Ganz, Ganz, Wolkenbreit & Siegfeld,
17 LLP, Albany, NY; Christopher L. Meazell, Dow
18 Lohnes PLLC, Norman, OK.
19
20 Appeals from the United States District Court for the Southern District of New
21 York (Richard Owen, Judge).
22 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
23 AND DECREED that the judgments of the District Court are AFFIRMED.
24 In these tandem appeals, which we have consolidated for decision, Appellant
25 Leonard W. Houston, proceeding pro se, appeals from two judgments of the United States
26 District Court for the Southern District of New York (Owen, J.): In No. 11-1760, he
27 challenges a judgment granting the defendants’ motion for summary judgment in his
28 employment discrimination action and denying his motion for class certification; in No.
29 11-1677, he challenges a judgment that sua sponte dismissed as frivolous his complaint in
30 a related action principally alleging witness tampering. Because Houston is a pro se
31 litigant, we construe his submissions liberally. See Triestman v. Fed. Bureau of Prisons,
32 470 F.3d 471, 476-77 (2d Cir. 2006). We assume the parties’ familiarity with the facts
2
1 and procedural histories of the cases, which we reference only as necessary to explain our
2 decision to affirm.
3 A. Houston v. Manheim-New York (No. 11-1760)
4 Houston appeals from a judgment entered on March 21, 2011, granting
5 defendants’ motion for summary judgment as to all of Houston’s claims and denying his
6 motion for class certification. In addition, Houston challenges an order entered on June
7 16, 2010, denying his motions for, among other things, sanctions against the defendants.
8 1. Discrimination Claims and Class Certification
9 “We review an award of summary judgment de novo, affirming only if there is no
10 genuine issue as to any material fact, and if the moving party is entitled to a judgment as a
11 matter of law.” City of New York v. Group Health Inc., 649 F.3d 151, 155 (2d Cir. 2011)
12 (citation omitted). In making this determination, we “must construe the facts in the light
13 most favorable to the non-moving party and must resolve all ambiguities and draw all
14 reasonable inferences against the movant.” Aulicino v. N.Y.C. Dep’t of Homeless Servs.,
15 580 F.3d 73, 79-80 (2d Cir. 2009) (citation omitted).
16 The District Court dismissed Houston’s amended complaint, which alleged
17 primarily that the defendants had denied him a promotion to Arbitration Manager because
18 of his race and color, in violation of Title VII of the Civil Rights Act of 1964 (“Title
19 VII”), 42 U.S.C. § 2000e, et seq., and his age, in violation of the Age Discrimination in
20 Employment Act (“ADEA”), 29 U.S.C. §§ 621-34.
21 We affirm the District Court’s grant of summary judgment and dismissal of
22 Houston’s discrimination claims for substantially the same reasons stated by the District
3
1 Court in its March 16, 2011 order, which referenced and adopted the findings and
2 recommendation of the Magistrate Judge made on July 7, 2010. First, Houston failed to
3 point to evidence, rather than merely to allegations, that demonstrated defendants’
4 discriminatory intent or rebutted their legitimate, nondiscriminatory reason for rejecting
5 Houston for the position, namely, that they hired a more qualified individual. See Farias
6 v. Instructional Sys., Inc., 259 F.3d 91, 99 (2d Cir. 2001); Byrnie v. Town of Cromwell,
7 Bd. of Educ., 243 F.3d 93, 103 (2d Cir. 2001). Second, the District Court did not err in
8 accepting defendants’ affirmative defense that Houston’s ADEA claim was barred
9 because he had not exhausted his administrative remedies. See Belgrave v. Pena, 254
10 F.3d 384, 386 (2d Cir. 2001).
11 Because we affirm the District Court’s dismissal of Houston’s Title VII
12 discrimination claim on the merits, his challenge to the denial of class certification on that
13 claim is moot. See Dobson v. Hartford Fin. Servs. Grp., Inc., 389 F.3d 386, 402 (2d Cir.
14 2004).
15 2. Sanctions
16 To the extent Houston challenges the Magistrate Judge’s denial of his second
17 motion for sanctions against defendants, neither Houston nor defendants addressed
18 whether the Magistrate Judge had the authority to deny such a motion under 28 U.S.C.
19 § 636(b)(1)(A) and Federal Rule of Civil Procedure 72(a) – an issue that we have not yet
20 resolved. See generally Kiobel v. Millson, 592 F.3d 78, 79-80 (2d Cir. 2010).
21
4
1 In any event, Houston has abandoned the argument that the Magistrate Judge
2 lacked the authority to deny his motion by failing to raise it on appeal. See LoSacco v.
3 City of Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995). Moreover, remanding to the
4 District Court on the motion for sanctions would be futile because Houston violated Rule
5 11(c)(2) of the Federal Rules of Civil Procedure, a safe harbor provision, which required
6 him to serve the sanctions motion on the opposing party twenty-one days prior to its
7 filing. See Hadges v. Yonkers Racing Corp., 48 F.3d 1320, 1327-28 (2d Cir. 1995).
8 Accordingly, we affirm the denial of Houston’s motion to impose sanctions, but express
9 no opinion as to whether the Magistrate Judge was authorized to deny the motion.
10 B. Houston v. Dow Lohnes PLLC (No. 11-1677)
11 Houston also separately appeals from a judgment sua sponte dismissing Houston’s
12 complaint as frivolous. A district court has the inherent authority to “dismiss a frivolous
13 complaint sua sponte even when the plaintiff has paid the required filing fee.” Fitzgerald
14 v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 364 (2d Cir. 2000). Although we
15 have not resolved whether such dismissals are reviewed de novo or for abuse of
16 discretion, we need not reach that issue to affirm the District Court’s decision “because
17 [it] easily passes muster under the more rigorous de novo review.” Id. at 364 n.2.
18 The District Court properly dismissed Houston’s complaint, which alleged that
19 counsel to defendants in Houston v. Manheim-New York acted unlawfully by sending
20 Houston a letter advising him that he had improperly named several defendants and that
21 the claims against them should be dismissed. Houston claimed that defense counsel’s
5
1 conduct constituted witness tampering, see 18 U.S.C. § 1512, and violated two civil
2 statutes, namely, 42 U.S.C. § 1985(2), which prohibits conspiracies to interfere with an
3 individual’s civil rights, and 18 U.S.C. § 1961, et seq., the civil enforcement provisions of
4 the Racketeer Influenced and Corrupt Organizations Act. Like the District Court, we
5 conclude that these claims lack an arguable basis in law or fact. See Tafari v. Hues, 473
6 F.3d 440, 442 (2d Cir. 2007) (“An appeal is frivolous when it ‘lacks an arguable basis
7 either in law or in fact.’”).
8 The District Court also did not abuse its discretion in dismissing Houston’s claims
9 without granting leave to amend. See Foman v. Davis, 371 U.S. 178, 182 (1962). The
10 court invited Houston to submit a brief explaining why his complaint should not be
11 dismissed, and Houston appears to have submitted a brief and affidavit opposing
12 dismissal. He therefore had an opportunity to argue that he should be permitted to amend
13 the complaint, but provided no basis to conclude that amendment would not have been
14 futile.
15 We have considered Houston’s remaining arguments and find them to be without
16 merit. For the foregoing reasons, the judgments of the District Court are AFFIRMED.
17
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk of Court
20
21
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