Yaohua Deng v. Compass Group USA Inc.

10-4826
Deng v. Compass Group USA, Inc.
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 32.1.1. 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 TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Daniel Patrick Moynihan United
States Courthouse, 500 Pearl Street, in the City of New York, on
the 28th day of September, two thousand twelve.
PRESENT:
PIERRE N. LEVAL,
ROBERT A. KATZMANN,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_____________________________________
Yaohua Deng, Shuyin Xu,
Plaintiffs-Appellants,
v. 10-4826
Compass Group USA Inc., DBA
Chartwells, Chrissy A. Austin,
Defendants-Appellees.
_____________________________________
FOR PLAINTIFFS-APPELLANTS: Yaohua Deng & Shuyin Xu, pro se,
Stony Brook, NY.
FOR DEFENDANTS-APPELLEES: Andrew P. Marks, Littler Mendelson,
P.C., New York, NY.
Appeal from the judgment of the United States District Court
for the Eastern District of New York (Feuerstein, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment and order of the district court are
AFFIRMED.
Plaintiffs-Appellants Yaohua Deng and Shuyin Xu
(collectively, the “plaintiffs”), proceeding pro se, appeal the
district court’s February 18, 2010 judgment dismissing their
discrimination claims brought pursuant to Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.; the
Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C.
§ 621 et seq.; 42 U.S.C. § 1981; and “New York laws.” The
plaintiffs also appeal the district court’s October 29, 2010
denial of their post-judgment motion for relief brought pursuant
to Federal Rule of Civil Procedure 60(b). We assume the parties’
familiarity with the facts, the procedural history of the case,
and the issues on appeal.
I. Rule 60(b) Motion
Federal Rule of Civil Procedure 60(b)(1) permits a district
court to grant relief from a judgment based on “mistake,
inadvertence, surprise, or excusable neglect.” Fed. R. Civ. P.
60(b)(1) (2010).
Citing the procedural due process standard set forth in
Mathews v. Eldridge, 424 U.S. 319, 332 (1976), the plaintiffs
argue that the district court should have granted their Rule
60(b) motion on the grounds that Deng did not receive a timely
2
copy of the defendants’ motion for summary judgment. The Mathews
test, however, is applicable only to “governmental decisions
which deprive individuals of ‘liberty’ or ‘property’ interests,”
Mathews, 424 U.S. at 323, whereas the defendants in this case are
a private entity and individual. Moreover, the requirements of
due process dictate only that notice is sufficient where it is
“reasonably calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and afford them
an opportunity to present their objections.” Jones v. Flowers,
547 U.S. 220, 226 (2006) (quoting Mullane v. Cent. Hanover Bank &
Trust Co., 339 U.S. 306, 314 (1950)).
Here, the defendants twice mailed their summary judgment
papers to Deng’s correct address and then, when their second
mailing was returned, successfully moved in the district court to
effect service by depositing the papers with the court’s pro se
office. Each of these means of service comports with the
requirements of Rule 5 of the Federal Rules of Civil Procedure.
See Fed. R. Civ. P. 5(b)(2)(C) (service effective when paper is
mailed “to the person’s last known address”) & (D) (service
effective when paper is left “with the court clerk if the person
has no known address”). Further, even a cursory review of the
district court’s docket sheet indicates that, on December 14,
2009, the defendants filed a letter “to Plaintiff Deng enclosing
Motion for Summary Judgment Papers,” and we have indicated that
3
it is a litigant’s responsibility to keep himself apprised of the
relevant docket sheet. See Stevens v. Miller, 676 F.3d 62, 70
(2d Cir. 2012).
In addition, Deng acknowledged in a January 21, 2010 letter
to the district court that he had received the defendants’ letter
indicating that their summary judgment motion had twice been
returned. Thus, the district court correctly determined that, as
of January 21, 2010, Deng had actual knowledge of the defendants’
summary judgment motion, and yet he made no effort at that time
either to request that the court direct the defendants to serve
the motion by alternate means or request an extension of time
from the district court to file his opposition to the motion.
Moreover, when Deng finally received the actual motion on
February 4, 2010, he waited over ten days to draft his request
for an extension of time to file his opposition, which resulted
in that request being filed the day the court entered its order
awarding summary judgment to the defendants.
While we require district courts to afford special
solicitude to pro se plaintiffs opposing summary judgment, see
Vital v. Interfaith Med. Ctr., 168 F.3d 615, 621-22 (2d Cir.
1999), we have acknowledged that this solicitude may be lessened
if the pro se litigant has prior experience with the “particular
procedural context at issue,” Tracy v. Freshwater, 623 F.3d 90,
103 (2d Cir. 2010). We note that Deng has previously brought an
4
employment discrimination action that was resolved on summary
judgment after Deng successfully moved for several extensions of
time to file his opposition. See Deng v. Aramark Educational,
E.D.N.Y. 00-cv-359. Accordingly, given Deng’s prior experience
with summary judgment proceedings, coupled with his own delays
once he learned of the defendants’ motion, we cannot say that the
district court abused its discretion in denying the plaintiffs’
Rule 60(b) motion.
II. Summary Judgment
Having conducted an independent review of the record in this
case, we affirm the grant of the defendants’ summary judgment
motions for substantially the same reasons stated by the district
court in its order dated February 17, 2010. We have considered
all of the plaintiffs’ remaining arguments and find them to be
without merit. Accordingly, we AFFIRM the judgment and order of
the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
5