20

- 2 946

- cv Futia v. Westchester County Board of Legislators

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

R ULINGS BY SUMMARY ORDER D O NOT HAVE PRECEDENTIAL EFFECT
. C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ' S L OCAL R ULE 32.1.1. W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WIT H THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX 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
.
At a stated term of the United Stat es 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 21 st day of April , two thousand twenty

- one

.
PRESENT: JOHN M. WALKER, JR. , DENNY CHIN, Circuit Judges , PAUL A. ENGELMAYER , District Judge

. *

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x ANTHONY FUTIA , JR., ROBERT L. SCHULZ, Plaintiff s

- Appellant s ,

- v - 20

- 2 946

- c v

WESTCHESTER COUNTY BOARD OF LEGISLATORS, BENJAMIN BOYKIN, II, Chairman , HARRISON TOWN BOARD, RON BELMONT, Supervisor , Defendant s

- Appell ee s

.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

* Judge Paul A . Engelmayer , of the United States District Court for the Southern District of New York , sitting by designation.2 FOR PLAINTIFF S

- APPELLANT S : ROBERT L. SCHULZ, pro se , Queensbury, New York , and Anthony Futia, Jr ., pro se , North White Plains, New York.

FOR DEFENDANT S

- APPELL EE S DAVID H. CHEN , Deputy County Attorney, WESTCHESTER COUNTY BOARD Appeals, for John M. Nonna, Westchester OF LEGISLA TORS AND County Attorney, White Plains, New York. BENJAMIN BOYKIN, II :

FOR DEFENDANTS

- APPELLEES RICHARD S. FINKEL, Bond, Schoeneck & HARRISON TOWN BOARD AND King PLLC, Garden City, New York. RON BELMONT:

Appeal from the United States District Court for the Southern District of

New York ( Briccetti , J .).

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

.
Plaintiff s
- appellants Anthony Futia, Jr. and Robert L. Schulz ( together ,

" p lain tiffs") appeal the district court's judgment, entered August 7 , 20 20 , dismissing
their claims against defendants

- appellees the Westchester County Board of Legislators

and its chairman Ben Boykin, II, and the Harrison Town Board and its supervisor Ron

Belmont ( collectively, " d efendants") 1 for lack of subject matter jurisdiction under
Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim under Rule

1 In their opposition to the d efendants ' motion to dismiss, p laintiffs clarif ied that they were not suing Boykin or Belmont , and the district court accordingly dismissed the claims against those defendants . Plaintiffs do not contest those dismissals on appeal.3 12(b)(6)

. We assume the parties' familiarity with the underlying facts, the procedural
history of the case, and the issues on appeal.

Plaintiffs' federal claims are based on their allegations that d efendants

violated the Guarantee Clause of the United States Constit ution by voting to increase
compensation for elected officials during the term for which they were elected, which
deprived p laintiffs of a republican form of government . Plaintiffs further allege that

d efendants' failure to respond to the petitions they submitted to complain about this
pay increase violated their rights under the Petition Clause of the First Amendment.
They also allege claims under state and local law. 2

" When reviewing the dismissal of a complaint for lack of subject matter
jurisdiction" under Rule 12(b)(1), "we review factual findings for clear error and legal

conclusions de novo ." Liranzo v. United States , 690 F.3d 78, 84 (2d Cir. 2012) ; see also
Cortlandt St. Recovery Corp. v. Hellas Telecomms., S. À

. R

. L. , 790 F.3d 411, 417 (2d Cir. 2015)
(reviewing dismissal of complaint for lack of standing under Rule 12(b)(1) de novo )

. We

also review de novo the dismissal of a complaint for failure to state a c laim under Rule
12(b)(6). Forest Park Pictures v. Universal Television Network , 683 F.3d 424, 429 (2d Cir.
2012). Finally, we review a district court ' s decision declining to exercise supplemental

2 In an earlier appeal brought by these plaintiffs, we affirmed by summar y order the district court's dismissal of similar claims. See Futia v. State of New York , No. 19

- 286

- cv (2d Cir. Nov. 24, 2020). The Supreme Court denied plaintiffs' petition for a writ of certiorari on March 29, 2021.4 jurisdiction over state law claims for abuse of discretion

. Klein & Co. Futures, Inc. v. Bd.
of Trade of City of New York , 464 F.3d 255, 262 (2d Cir. 2006).
The district court did not err in finding that neither p laintiff had standing

t o sue the Harrison Town Board because neither is a resident of the Town of Ha rrison,
and status as a state taxpayer alone is insufficient to establish standing. See Bd. of Educ.
of Mt. Sinai Union Free Sc h. Dist. v. New York State Tchrs

. Ret

. Sys. , 60 F.3d 106, 110 (2d
Cir. 1995) ( " State taxpayers, like federal taxpayers, do not have standing to challenge the
actions of state government simply because they pay taxes to the state. ") . Further, the
district court correctly held that Schulz, who does not live in Westchester County, does

not have standing to sue the Westchester County Board of Legislators because he does

not have a " direct and immediate " relationship with the County sufficient to confer
standing

. See i d. at 110

- 11

.
The district court also did not err in dismissing p laintiffs' Guarantee

Clause claim for lack of subject matter jurisdiction because the claim presents
nonjusticiable political question s , such as local government budget allocation

. See , e.g. ,
Rucho v. Common Cause , 139 S. Ct. 2484, 2506 (2019) ( "This Court has sever al times
concluded . . . that the Guarantee Clause does not provide the basis for a justiciable

claim

. " )

. The district court also did not err in dismissing p laintiffs' Petition Clause claim
for failure to state a claim, because the right to petition the s tate does not mean there is a
right to a response

. See Minn

. State Bd

. for C m ty

. Coll s. v. Knight , 465 U.S. 271, 285 (1986)

.5 The Supreme Court ' s broad discussion of the Petition Clause in Knight , contrary to

p laintiffs ' claim, was not limited to public employees or policy complaints

. See i d.
("Nothing in the First Amendment or in this Court's case law interpreting it suggests
that the right[] to . . . petition require[s] government policymakers to listen or respond

to individuals ' communications on public issues ." (emphasis added)). Finally, the district
court did not abuse its discretion in declining to exercise supplemental jurisdiction over

the state law claims

. See Klein & Co. Futures, Inc. , 464 F.3d at 262 ( " It is well settled that

where

. . . the federal claims are eliminated in the early stages of litigation, courts
should generally decline to exercise pendent jurisdiction over remaining state law

claims. " ).

We have considered p laintiff s ' remaining arguments an d conclude they

are without merit. Accordingly, we AFFIRM the judgment of the district court

.
FOR THE COURT: Catherine O ' Hagan Wolfe, Clerk