18‐3261‐cv Liberty Sackets Harbor LLC v. Vill. of Sackets Harbor
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 COURTʹS 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 ʺSUMMARY ORDERʺ). A PARTY CITING 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 24th day of May, two thousand nineteen.
PRESENT: DENNY CHIN, SUSAN L. CARNEY, Circuit Judges, BRENDA K. SANNES, District Judge.* ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x LIBERTY SACKETS HARBOR LLC, RIVER NORTH, LLC, PHILIP J. SIMAO, Plaintiffs‐Appellants,
v. 18‐3261‐cv
VILLAGE OF SACKETS HARBOR, its Village Board, and its Planning Board, JANET QUINN, Planning Board Chairperson, DAVID B. GEURTSEN, individually, CONBOY, MCKAY, BACHMAN & KENDALL, LLP, Defendants‐Appellees. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
* Judge Brenda K. Sannes, of the United States District Court for the Northern District of New York, sitting by designation. FOR PLAINTIFFS‐APPELLANTS: David C. Temes, Lynn DʹElia Temes & Stanczyk, Syracuse, New York.
FOR DEFENDANTS‐APPELLEES David H. Walsh IV, Barth Sullivan Behr, VILLAGE OF SACKETS HARBOR, ITS Syracuse, New York. VILLAGE BOARD and PLANNING BOARD, JANET QUINN, and DAVID B. GUERTSEN:
FOR DEFENDANT‐APPELLEE CONBOY, Peter L. Walton, Conboy, McKay, MCKAY, BACHMAN & KENDALL, LLP: Bachman & Kendall, LLP, Watertown, New York.
Appeal from the United States District Court for the Northern District of
New York (Suddaby, C.J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiffs‐appellants Liberty Sackets Harbor LLC (ʺLibertyʺ) and its
members River North LLC and Philip Simao (collectively, ʺplaintiffsʺ) appeal from a
judgment of the district court entered September 25, 2018, in favor of defendants‐
appellees Village of Sackets Harbor (the ʺVillageʺ), its board, planning board, planning
board chairperson, and counsel, as well as its counselʹs law firm, Conboy, McKay,
Bachman & Kendall, LLP (ʺCMBK,ʺ and collectively, ʺdefendantsʺ). By decision and
order dated September 26, 2018 (but entered September 25, 2018), the district court
granted defendantsʹ motions to dismiss the complaint, which alleged constitutional
violations arising from the Villageʹs denial of plaintiffsʹ application to subdivide certain ‐2‐ real property, for lack of subject matter jurisdiction and failure to state a claim upon
which relief may be granted. We assume the partiesʹ familiarity with the underlying
facts, procedural history, and issues on appeal.
We review de novo a district courtʹs dismissal of a complaint for lack of
subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), Sunrise
Detox V, LLC v. City of White Plains, 769 F.3d 118, 121 (2d Cir. 2014), and for failure to
state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), Sherman v. Town of
Chester, 752 F.3d 554, 560 (2d Cir. 2014). Upon such review, we conclude that the
district court properly granted defendantsʹ motions to dismiss for substantially the
reasons set forth in its September 26, 2018 decision and order.
First, plaintiffsʹ federal constitutional claims are not ripe for adjudication.
Under the two‐pronged test for determining whether a takings claim is ripe, which has
also been applied to due process, equal protection, First Amendment, and
discrimination claims in the context of land‐use disputes, a plaintiff must first show that
the government entity charged with enforcing the regulations at issue has rendered a
final decision. Williamson Cty. Regʹl Planning Commʹn v. Hamilton Bank of Johnson City,
473 U.S. 172, 186‐87 (1985) (takings); see also Southview Assocs., Ltd. v. Bongartz, 980 F.2d
84, 96‐97 (2d Cir. 1992) (substantive due process); Murphy v. New Milford Zoning
Commʹn, 402 F.3d 342, 352 (2d Cir. 2005) (First Amendment); Kurtz v. Verizon New York,
Inc., 758 F.3d 506, 516 (2d Cir. 2014) (procedural due process); Sunrise Detox V, LLC, 769
‐3‐ F.3d at 122 (discrimination).1 Here, plaintiffs essentially concede that the Village has
not rendered a final decision on their subdivision application as they contend that they
are excepted from seeking a final determination because doing so would be futile. We
disagree. Plaintiffs fail to allege facts demonstrating that the defendants had ʺdug in
[their] heels and made clear that all such applications will be denied.ʺ Sherman, 752 F.3d
at 561 (internal quotation marks omitted). Indeed, as the district court noted, the
complaint does not allege that plaintiffs had applied for a variance from the new zoning
regulation or that the Village lacked discretion to grant a variance. Moreover, the
complaint alleges that the zoning dispute was resolved in January 2015 with plaintiffs
agreeing to reduce the number of subdivisions in their application. Accordingly, we
conclude that plaintiffsʹ federal constitutional claims are premature.
Second, Simao lacks standing to pursue his First Amendment retaliation
claim because, absent a direct individual injury, a companyʹs member lacks standing to
sue for an injury to the company. See Jones v. Niagara Frontier Transp. Auth., 836 F.2d
731, 736 (2d Cir. 1987) (although a shareholder may be personally aggrieved or suffer
financial loss as a result of injuries to a corporation, ʺ[a] shareholder ‐‐ even the sole
shareholder ‐‐ does not have standing to assert claims alleging wrongs to the
corporationʺ). Therefore, because Simaoʹs emotional distress and legal expenses
1 Because defendants removed plaintiffsʹ takings claim from state court to federal court, the second prong of the ripeness inquiry requiring state compensation is waived, Sherman, 752 F.3d at 563‐64, and thus we need not consider its applicability here. ‐4‐ indirectly stem from the alleged harm to Liberty, the owner of the land at issue, and
because he does not allege an injury independent of Libertyʹs injuries, Simao does not
have standing to assert his retaliation claim.
Third, the district court properly dismissed plaintiffsʹ claims against
CMBK on the ground that the complaint fails to plausibly allege that CMBK is a state
actor. Indeed, in the trial court, plaintiffs conceded that the complaint failed to allege
that CMBK was a state actor, as it acknowledged that the question ʺcannot be
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18‐3261‐cv Liberty Sackets Harbor LLC v. Vill. of Sackets Harbor
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 COURTʹS 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 ʺSUMMARY ORDERʺ). A PARTY CITING 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 24th day of May, two thousand nineteen.
PRESENT: DENNY CHIN, SUSAN L. CARNEY, Circuit Judges, BRENDA K. SANNES, District Judge.* ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x LIBERTY SACKETS HARBOR LLC, RIVER NORTH, LLC, PHILIP J. SIMAO, Plaintiffs‐Appellants,
v. 18‐3261‐cv
VILLAGE OF SACKETS HARBOR, its Village Board, and its Planning Board, JANET QUINN, Planning Board Chairperson, DAVID B. GEURTSEN, individually, CONBOY, MCKAY, BACHMAN & KENDALL, LLP, Defendants‐Appellees. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
* Judge Brenda K. Sannes, of the United States District Court for the Northern District of New York, sitting by designation. FOR PLAINTIFFS‐APPELLANTS: David C. Temes, Lynn DʹElia Temes & Stanczyk, Syracuse, New York.
FOR DEFENDANTS‐APPELLEES David H. Walsh IV, Barth Sullivan Behr, VILLAGE OF SACKETS HARBOR, ITS Syracuse, New York. VILLAGE BOARD and PLANNING BOARD, JANET QUINN, and DAVID B. GUERTSEN:
FOR DEFENDANT‐APPELLEE CONBOY, Peter L. Walton, Conboy, McKay, MCKAY, BACHMAN & KENDALL, LLP: Bachman & Kendall, LLP, Watertown, New York.
Appeal from the United States District Court for the Northern District of
New York (Suddaby, C.J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiffs‐appellants Liberty Sackets Harbor LLC (ʺLibertyʺ) and its
members River North LLC and Philip Simao (collectively, ʺplaintiffsʺ) appeal from a
judgment of the district court entered September 25, 2018, in favor of defendants‐
appellees Village of Sackets Harbor (the ʺVillageʺ), its board, planning board, planning
board chairperson, and counsel, as well as its counselʹs law firm, Conboy, McKay,
Bachman & Kendall, LLP (ʺCMBK,ʺ and collectively, ʺdefendantsʺ). By decision and
order dated September 26, 2018 (but entered September 25, 2018), the district court
granted defendantsʹ motions to dismiss the complaint, which alleged constitutional
violations arising from the Villageʹs denial of plaintiffsʹ application to subdivide certain ‐2‐ real property, for lack of subject matter jurisdiction and failure to state a claim upon
which relief may be granted. We assume the partiesʹ familiarity with the underlying
facts, procedural history, and issues on appeal.
We review de novo a district courtʹs dismissal of a complaint for lack of
subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), Sunrise
Detox V, LLC v. City of White Plains, 769 F.3d 118, 121 (2d Cir. 2014), and for failure to
state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), Sherman v. Town of
Chester, 752 F.3d 554, 560 (2d Cir. 2014). Upon such review, we conclude that the
district court properly granted defendantsʹ motions to dismiss for substantially the
reasons set forth in its September 26, 2018 decision and order.
First, plaintiffsʹ federal constitutional claims are not ripe for adjudication.
Under the two‐pronged test for determining whether a takings claim is ripe, which has
also been applied to due process, equal protection, First Amendment, and
discrimination claims in the context of land‐use disputes, a plaintiff must first show that
the government entity charged with enforcing the regulations at issue has rendered a
final decision. Williamson Cty. Regʹl Planning Commʹn v. Hamilton Bank of Johnson City,
473 U.S. 172, 186‐87 (1985) (takings); see also Southview Assocs., Ltd. v. Bongartz, 980 F.2d
84, 96‐97 (2d Cir. 1992) (substantive due process); Murphy v. New Milford Zoning
Commʹn, 402 F.3d 342, 352 (2d Cir. 2005) (First Amendment); Kurtz v. Verizon New York,
Inc., 758 F.3d 506, 516 (2d Cir. 2014) (procedural due process); Sunrise Detox V, LLC, 769
‐3‐ F.3d at 122 (discrimination).1 Here, plaintiffs essentially concede that the Village has
not rendered a final decision on their subdivision application as they contend that they
are excepted from seeking a final determination because doing so would be futile. We
disagree. Plaintiffs fail to allege facts demonstrating that the defendants had ʺdug in
[their] heels and made clear that all such applications will be denied.ʺ Sherman, 752 F.3d
at 561 (internal quotation marks omitted). Indeed, as the district court noted, the
complaint does not allege that plaintiffs had applied for a variance from the new zoning
regulation or that the Village lacked discretion to grant a variance. Moreover, the
complaint alleges that the zoning dispute was resolved in January 2015 with plaintiffs
agreeing to reduce the number of subdivisions in their application. Accordingly, we
conclude that plaintiffsʹ federal constitutional claims are premature.
Second, Simao lacks standing to pursue his First Amendment retaliation
claim because, absent a direct individual injury, a companyʹs member lacks standing to
sue for an injury to the company. See Jones v. Niagara Frontier Transp. Auth., 836 F.2d
731, 736 (2d Cir. 1987) (although a shareholder may be personally aggrieved or suffer
financial loss as a result of injuries to a corporation, ʺ[a] shareholder ‐‐ even the sole
shareholder ‐‐ does not have standing to assert claims alleging wrongs to the
corporationʺ). Therefore, because Simaoʹs emotional distress and legal expenses
1 Because defendants removed plaintiffsʹ takings claim from state court to federal court, the second prong of the ripeness inquiry requiring state compensation is waived, Sherman, 752 F.3d at 563‐64, and thus we need not consider its applicability here. ‐4‐ indirectly stem from the alleged harm to Liberty, the owner of the land at issue, and
because he does not allege an injury independent of Libertyʹs injuries, Simao does not
have standing to assert his retaliation claim.
Third, the district court properly dismissed plaintiffsʹ claims against
CMBK on the ground that the complaint fails to plausibly allege that CMBK is a state
actor. Indeed, in the trial court, plaintiffs conceded that the complaint failed to allege
that CMBK was a state actor, as it acknowledged that the question ʺcannot be
determined upon the Pleadings,ʺ and instead it argued that discovery was required to
determine the extent of CMBKʹs collaboration with the Village. Appʹx at 80 (quoting
Docket No. 13 at 18). We, however, do not ʺunlock the doors of discovery for a plaintiff
armed with nothing more than conclusions.ʺ Ashcroft v. Iqbal, 556 U.S. 662, 678‐79
(2009). We therefore conclude that plaintiffsʹ claims against CMBK fail as a matter of
law. See Ciambriello v. Cty. of Nassau, 292 F.3d 307, 324 (2d Cir. 2002) (ʺA merely
conclusory allegation that a private entity acted in concert with a state actor does not
suffice to state a [42 U.S.C.] § 1983 claim against the private entity.ʺ).2
Finally, with the exception of plaintiffsʹ state claims against CMBK, the
district court declined to exercise supplemental jurisdiction over their state
2 We decline to consider plaintiffsʹ allegation that CMBK is responsible for the actions of its employee under the theory of respondeat superior as it was raised for the first time on appeal. See Greene v. United States, 13 F.3d 577, 586 (2d Cir. 1994) (ʺ[I]t is a well‐established general rule that an appellate court will not consider an issue raised for the first time on appeal.ʺ). ‐5‐ constitutional claims. As we have affirmed the dismissal of plaintiffsʹ federal law
claims, we agree that the district court did not err in declining to exercise jurisdiction
over the remaining state law claims. See Cohen v. Postal Holdings, LLC, 873 F.3d 394, 399
(2d Cir. 2017) (ʺ[W]hen a district court correctly dismisses all federal claims for lack of
subject‐matter jurisdiction pursuant to Rule 12(b)(1), the district court is thereby
precluded from exercising supplemental jurisdiction over related state‐law claims.ʺ);
Delaney v. Bank of Am. Corp., 766 F.3d 163, 170 (2d Cir. 2014) (per curiam) (ʺIn general,
where the federal claims are dismissed before trial, the state claims should be dismissed
as well.ʺ (internal quotation marks omitted)). As to the state constitutional claims
against CMBK, we agree that the district court properly dismissed those claims for
substantially the reasons set forth in its decision.
* * *
We have considered plaintiffsʹ remaining arguments and conclude they
are without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT: Catherine OʹHagan Wolfe, Clerk
‐6‐