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.).
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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
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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
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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
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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