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 ELECTRON IC 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.

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

16 th day of November, two thousand fifteen.

Present: JOSÉ A. CABRANES,

ROSEMARY S. POOLER, DENNY CHIN, Circuit Judges

.

_____________________________________________________

ALEXANDER A. BENZEMANN,

Plaintiff-Appellant

,

v. 14-2668-cv

CITIBANK N.A., HOUSLANGER & ASSOCIATES, PLLC, TODD E. HOUSLANGER, AND NEW CENTURY FINANCIAL SERVICES,

Defendants-Appellees

. *

_____________________________________________________

Appearing for Appellant: Andrew L. Tiajolo ff, Tiajoloff & Kelly LLP (Edward P. Kelly, on the brief ), New York, NY.

Appearing for Appellees: Robe rt J. Bergson, Abrams Garfinke l Margolis Bergson, LLP (Eric B. Post, on the brief ), New York, NY, for Defendants-Appellees Houslanger & Associates, PLLC and Todd E. Houslanger.

* The Clerk of Court is directed to amend th e official caption to conform with the caption
above.2 Anthony I. Giacobbe, Zeichner Ellman & Krause LLP (Barry J. Glickman, on the brief ), New York, NY, for Defendant-Appellee Citibank, N.A.

Appeal from the United States Di strict Court for the Southern Di strict of New York (Buchwald,

J. ).

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED IN PART, VACATED IN PART, AND REMANDED

.

Appellant Alexander A. Benzemann app eals from the June 27, 2014, judgment of the
United States District Court for the Sout hern District of New York (Buchwald, J. ), dismissing
his claims under the Fair Debt Collections Prac tices Act (“FDCPA”), 42 U.S.C. § 1983, the Due Process Clause of the Fourteenth Amendment, and state law. We assume the parties’ familiarity with the underlying facts, pr ocedural history, and specifica tion of issues for review.

In this summary order, we address the dist rict court’s dismissal of the Section 1983 and Due Process claims against Defendants Hous langer & Associates, PLLC and Todd E. Houslanger (“Houslanger Defenda nts”) and all of Benzemann’s claims against Defendant Citibank, N.A (“Citibank”). An accompanying opini on addresses the remainder of Benzemann’s
claims.

I. Section 1983 and Due Process Claims Against Houslanger Defendants

Benzemann sued the Houslanger Defendant s under Section 1983 and the Due Process Clause, arguing that these defendants interfered with his Fifth and Fourteenth Amendment Due Process rights as well as his Fourth Amen dment rights against unreasonable searches and seizures when they sent re straining notices to Citibank.

“Because the United States Constitution regulates only the Government, not private parties, a litigant . . . who alleges that her cons titutional rights have b een violated must first establish that the challenged c onduct constitutes ‘state action.’” Grogan v. Blooming Grove Volunteer Ambulance Corps , 768 F.3d 259, 263 (2d Cir. 2014) (alterations, emphasis, and internal quotation marks omitted), cert. denied 135 S. Ct. 1895 (2015). “To demonstrate state action, a plaintiff must establis h both that [1] her alleged cons titutional deprivation was caused by the exercise of some right or privilege creat ed by the State or by a ru le of conduct imposed by the State or by a person for whom the State is responsible, and [2] that the party charged with the deprivation is a person who may fairly be said to be a state actor.” Id. at 263–64 (emphasis omitted).

Benzemann’s Section 1983 and due process cl aims fail both prongs of this state-action test. First, Benzemann has not established that his alleged constitutional deprivation was caused by a privilege or right granted by the state. Benzemann argues that the Houslanger Defendants misused New York State rules allowing attorneys to issue restraining no tices, but the Supreme Court has held that “private misuse of a stat e statute does not describe conduct that can be
attributed to the State.” Lugar v. Edmondson Oil Co., Inc. , 457 U.S. 922, 940–41 (1982); see3 also Dahlberg v. Becker , 748 F.2d 85, 90 (2d Cir. 1984) (“A pr ivate party’s misuse of New York’s Judiciary Law . . . is not fairly attributable to New York State.”).

Nor can the Houslanger Defendants fairly be sa id to be state actors. For the purposes of Section 1983, the actions of a nominally privat e entity are attributable to the state:

(1) [when] the entity acts pursuant to the “coercive power” of the state or is “controlled” by the state (“the compulsi on test”); (2) when the state provides “significant encouragement” to the entity, the entity is a “willful participant in joint activity with the state,” or the en tity’s functions are “entwined” with state policies (“the joint action test” or “close nexus test”); or (3) when the entity has been delegated a public function by the state, (“the public function test”).

Sybalski v. Indep. Grp. Home Living Program, Inc. , 546 F.3d 255, 257 (2d Cir. 2008) (quoting
Brentwood Acad. v. Tennessee Se condary Sch. Athletic Ass’n , 531 U.S. 288, 296 (2001)). Benzemann argues that the Houslanger Defenda nts qualify as state actors under the “public function test.” But to qualify as a state actor under that test, the public func tion that is delegated must be one that was “traditionally unde r the exclusive authority of the state.” Id. at 259. Benzemann cites no authority s upporting his view that send ing a restraining notice is “traditionally under the exclusive au thority of the state.” To the contrary, we have previously recognized that restraining notices are typically issued to banks both by private individuals and by the state. See Sykes v. Bank of Am. , 723 F.3d 399, 406 (2d Cir. 2013) (“Bank of America . . . did no more than comply with the restraining noti ce issued by [the state agency] in the same way it would with a notice from a private attorney on behalf of a private creditor.”). Because the sending of restraining notices is not traditionally under the exclusive authority of the state, Benzemann’s argument that the Houslanger Defendants qualify as state actors fails. Accordingly, the district court properly dismissed both the Se ction 1983 and the due pro cess claims against the Houslanger Defendants.

II. Claims Against Citibank

Citibank moved to compel arbitration of Be nzemann’s claims against it, arguing that the claims were subject to arbitration under the par ties’ arbitration agreement. The district court granted the motion, finding that the question whether the claims were arbitrable was itself delegated to the arbitrator by the agreement. See PaineWebber Inc. v. Bybyk , 81 F.3d 1193, 1198 (2d Cir. 1996) (noting that under federal law, parties to an arb itration agreement “may provide that the arbitrator, not the court, shall determin e whether an issue is arbitrable”). On appeal, Benzemann does not challenge the district court’ s decision to compel ar bitration. Rather, he argues only that, upon compelling arb itration, the district court im properly dismissed the claims against Citibank rather than staying the claims pending arbitration.

Recently, we “join[ed] those Circuits that c onsider a stay of proceedings necessary after
all claims have been referred to arbitration and a stay requested.” Katz v. Cellco P’ship , 794 F.3d 341, 345 (2d Cir. 2015); see also 9 U.S.C. § 3 (providing that dist rict court, after granting motion to compel arbitration, shall stay proceedings “on application of one of th e parties”). Benzemann, however, did not request a stay before the distri ct court entered judgment. Thus, Section 3 did4 not require the district court to stay the proceedings when it entered judgment against

Benzemann. See Katz , 794 F.3d at 346 (noting that, abse nt a statutory ma ndate to stay proceedings, district courts “enjoy an inherent authority to manage their dockets”). Although
Benzemann sent a letter to th e district court on July 23, 2014, re questing that the court modify the judgment to stay his claims against Citibank, Benzemann then filed a no tice of appeal on July 25, 2014. The district court correctly concluded that, after Benzemann filed the notice of appeal, the court lacked jurisdiction to decide Be nzemann’s request to modify the judgment. United States v. Rodgers , 101 F.3d 247, 251 (2d Cir. 1996) (“As a general matter, ‘the filing of a notice of appeal . . . confers jurisdiction on the court of appeals and divests the district court of its control over those aspect s of the case involved in the appeal.’” (quoting Griggs v. Provident

Consumer Disc. Co. , 459 U.S. 56, 58 (1982)). Thus, the dist rict court did not err in denying Benzemann’s request to modify the judgment.

CONCLUSION

We have considered the remainder of Be nzemann’s arguments and find them to be without merit. In an opinion i ssued simultaneously with this summary order, we vacate the
district court’s dismissal of the FDCPA and state law claims. Accordingly, we AFFIRM the judgment of the district court insofar as it (1) dismissed Benzemann’s claims against the Houslanger Defendants under Section 1983, the Du e Process Clause of the Fourteenth Amendment, and state law and (2) compelled arbi tration of and dismissed Benzemann’s claims against Citibank. We VACATE the judgment insofa r as it dismissed Benzemann’s claims against the Houslanger Defendants under the FDCPA and state law and REMAND for further proceedings consistent with the opinion issued simultaneously with this summary order. Each
side to bear its own costs.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk