18-751-cv Hsin v. City of New York 

### UNITED STATES COURT OF APPEALS FOR THE SECO ND 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 PROC EDURE 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 APPEND IX OR AN ELECTRONIC DATAB ASE (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 1 Thurgood Marshall United States Courthouse, 40 Fole y Square, in the City of New York, on the 2 13 th day of June, two thousand nineteen. 3 4 Present: 5 D ENNIS J ACOBS , 6 G ERARD E. L YNCH , 7 Circuit Judges , 8 J ANET C. H ALL , * 9 District Judge

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___________________________________________ 11 12 H ENRY H ANG H SIN , C HENG W EI -H SIN , 43 162 S T
. 13 M ANAGEMENT , I NC ., 162 R EALTY M ANAGEMENT , 14 LLC, L ALUDIA M ANAGEMENT , I NC ., M ACRUSO 15 M ANAGEMENT , I NC ., E & V C ONTROL 16 M ANAGEMENT , I NC ., AND A & J C ONSULTING 17 M ANAGEMENT , I NC ., 18 19 Plaintiffs-Appellants , 20 21 v. 18-751 22 23 T HE C ITY OF N EW Y ORK , R ICK D. C HANDLER , 24 D ENNIS B URKART , P ETER S UN , N ORMAN H O , D. 25 E RIC H OYT , M UHAMMAD I MRAN , AND M ASSIMO 26 D ABUSCO , 27 28 Defendants-Appellees , 29 30 31 32

* Judge Janet C. Hall, United States District Court fo r the District of Connecticut, sitting by designation.2 J OHN /J ANE D OES , N OS

. 1-10, 1 2 Defendants. ** 3

___________________________________________ 4 5 For Plaintiffs-Appellants: Daniel J. Schneider, Farber Schneider Ferrari LLP, 6 New York, NY (Christophe r M. Slowik, Klein 7 Slowik PLLC, New York, NY, on the brief ). 8 9 For Defendants-Appellees: Antonella Karlin, Assistant Corporation Counsel 10 (Richard Dearing and Kathy Chang Park, on the 11 brief) for Zachary W. Carter, Corporation Counsel 12 of the City of New Yo rk, New York, NY. 13 14 Appeal from a judgment of the United States Di strict Court for the Eastern District of New 15 York (Allyne Ross, Judge ). 16 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 17 DECREED that the judgment of the district court is AFFIRMED

. 18 19 Plaintiffs Henry Hang Hsin, Cheng Wei-Hsin, 43 162 St. Ma nagement, Inc., 162 Realty 20 Management, LLC, Laludia Management, Inc., Macruso Management, Inc., E & V Control 21 Management, Inc., and A & J Consulting Management, Inc. (collectively, “the Hsin plaintiffs”) 22 are Asian-American property developers and real estate companies. The Hsin plaintiffs brought 23 this lawsuit against the City of New York (“th e City”), Assistant Chief Inspector Dennis Burkart 24 (“Burkart”), and several of Burkart’s collea gues at the Department of Buildings (“DOB”), 25 alleging that the defendants selectively enforced the City’s building codes on the basis of race. 26 The Hsin plaintiffs raised claims under the Equal Protection Clause, the Due Process Clause, 27 section 1981 of title 42 of the United States Code, the Monell doctrine, and New York tax law. 28

** The Clerk of Court is directed to amend the caption as shown above.3 The United States District Court for the Eastern District of New York (Ross, J. ) dismissed with 1 prejudice the Hsin plaintiffs’ federal causes of action under Federal Rule of Civil Procedure 2 12(b)(6), and it declined to exercise supplemental jurisdictio n over the remaining state claim. 3 The Hsin plaintiffs now appeal. 4 Their appeal was heard in tandem with Hu v. City of New York , Case No. 18-737-cv, a 5 related but not consolidated action brought by an Asian-American construction worker and 6 Asian-American-owned construction companies (“the Hu plaintiffs”). The Hu plaintiffs and the 7
Hsin plaintiffs filed nearly identical Amended Co mplaints, and they raise the same issues on 8 appeal. We resolve the Hu appeal in a separate Opinion file d simultaneously with this Summary 9 Order. We presume the parties’ familiarity with the facts and procedural history of this case, as 10 well as with the issues on appeal. 11 We review de novo a district court’s dismissal of a complaint under Rule 12(b)(6). 12 Carpenters Pension Tr. Fund of St. Louis v. Barclays PLC , 750 F.3d 227, 232 (2d Cir. 2014). 13 For the purposes of such a review, “this Court must accept as true all allegations in the complaint 14 and draw all reasonable inferences in favor of the non-moving party.” Matson v. Bd. of Educ. of 15 City Sch. Dist. of New York , 631 F.3d 57, 63 (2d Cir. 2011) (internal quotation marks omitted). 16 Nevertheless, a complaint must “contain sufficien t factual matter, accepted as true, to state a 17 claim to relief that is plausible on its face.” Id. “A claim is facially plausible when the plaintiff 18 pleads factual content that allows the court to draw the reasonable inference that the defendant is 19 liable for the misconduct alleged.” Progressive Credit Union v. City of New York , 889 F.3d 40, 20 48 (2d Cir. 2018) (internal quotation marks omitted). 214 The Hsin plaintiffs’ Equal Protection clai m proceeds under the theory of LeClair v. 1 Saunders , 627 F.2d 606 (2d Cir. 1980). 1 To prevail on such a claim, a plaintiff must prove that 2 “(1) the person, compared with others similarl y situated, was selectively treated, and (2) the 3 selective treatment was motivated by an intention to discriminate on the basis of impermissible 4 considerations, such as race or religion, to punish or inhibit the exercise of constitutional rights, 5 or by a malicious or bad faith in tent to injure the person.” Zahra v. Town of Southold , 48 F.3d 6 674, 683 (2d Cir. 1995) (quoting FSK Drug Corp. v. Perales , 960 F.2d 6, 10 (2d Cir. 1992)). 7 The District Court dismissed the Hsin plaintiffs’ LeClair claim for failure to plausibly allege a 8 similarly situated comparator that was treated di fferently by the defendants. Our Opinion in the 9
Hu action sets forth the similarity standard for a LeClair selective enforcement claim. To satisfy 10 this standard, the Hsin plaintiffs must plausibly allege facts showing a “reasonably close 11 resemblance” between themselves and a proffered comparator. Graham v. Long Island R.R. , 230 12 F.3d 34, 40 (2d Cir. 2000). 13 The Hsin plaintiffs and the Hu plaintiffs rely on the same four comparisons, namely: 14 (1) comparisons between white workers and As ian workers at the 34th Avenue Jobsite; 15 (2) comparisons between a non-Asian constructio n company at the West 22nd Jobsite and Asian 16 construction professionals at the College Point Jobsite; (3) comparisons between a non-Asian 17 subcontractor and an Asian general contractor at the 43-05 162nd Street Jobsite; and (4) a 18 statistical comparison between Burkart and othe r DOB inspectors that suggests that Burkart 19 sanctioned Asians at higher rates than his colleagues did. We disc uss these comparators in detail 20 in the Hu Opinion, concluding that the 34th Avenue Jobs ite raises a plausible inference that the 21

1 While the Hsin plaintiffs only alleged a LeClair claim for race-based discrimination, the Hu plaintiffs brought their Equal Protection claims under both the theory of LeClair and the class of one theory set forth in Village of Willowbrook v. Olech , 528 U.S. 562 (2000).5 defendants treated the Hu plaintiffs less favorably than another similarly situated. In contrast, we 1 conclude in this Summary Order that none of the comparators plausibly support the Hsin 2 plaintiffs’ LeClair claim for race-based selective enforcement. 3 With respect to the first two proffered comparators, the Hsin plaintiffs do not allege that 4 they worked at or were otherwise involved w ith the 34th Avenue Jobsite or the College Point 5 Jobsite. To prevail on their Equa l Protection claim, however, the Hsin plaintiffs must allege 6 specific instances in which they themselves we re treated differently than another similarly 7 situated. See Albert v. Carovano , 851 F.2d 561, 573 (2d Cir. 1988) (“To support a claim of 8 selective enforcement, appellants must allege purposeful and system atic discrimination by 9 specifying instances in which they were singled out for unlawful oppr ession in contrast to others 10 similarly situated.” (internal quotation marks and alterations omitted, emphasis omitted)). Thus, 11 because the first two proffered comparators do not implicate the Hsin plaintiffs in any way, they 12 cannot satisfy the similarity requirements for the Hsin plaintiffs’ Equal Protection claim. 13 The third proffered comparator fails because the Hsin plaintiffs make no attempt to draw 14 comparisons between themselves and this comparator. Specifically, the Amended Complaint 15 alleges that 43 162 Manageme nt, a plaintiff in the Hsin action, was the owner of the 43-05 162nd 16 Street Jobsite. The Hsin plaintiffs further allege that Burk art permitted work at this location to 17 continue when Vera Construction, a non-Asian company, was responsible for the construction 18 site, but that Burkart stopped all work on the jo bsite once Vera Construction completed its work 19 and 43 162 Management took over responsibility for th e site as its general contractor. However, 20 the Hsin plaintiffs do not allege facts suggesti ng that 43 162 Management, as the general 21 contractor and owner of the pr operty, was similarly situated to Vera Construction, a company 226 contracted to do foundation work at the jobsite. Instead, the Amended Complaint oddly draws 1 comparisons between Vera Construction and the Hu plaintiffs. 2 Finally, the Hsin plaintiffs cannot rest their LeClair claim on statistics comparing 3 Burkart’s enforcement practices to those of his colleagues. As we explained in the Hu Opinion, 4 statistics alone cannot satisfy the similarly situat ed requirement for an Equal Protection claim for 5 selective enforcement. See Albert , 851 F.2d at 573 (holding that a plaintiff’s selective 6 enforcement claim must “specify[ ] instances” in which they have been treated differently from 7 “others similarly situated”); see also Ruston v. Town Bd. for Town of Skaneateles , 610 F.3d 55, 8 59 (2d Cir. 2010) (dismissing a class of one Equal Protection claim for failure to “allege specific 9 examples” of similarly situated comparators). 10 We therefore affirm the District Court’s dismissal of the Hsin plaintiffs’ Equal Protection 11 claim, concluding that none of the Hsin plaintiffs’ proffered compar ators satisfy the similarity 12 standard for a LeClair cause of action. The Hsin plaintiffs’ failure to plausibly allege a similarly 13 situated comparator is also fatal to their sec tion 1981 claim because “plaintiffs must meet the 14 same pleading standard for their § 1981 clai ms as for their § 1983 claims under the Equal 15 Protection Clause.” 2 Brown v. City of Oneonta, New York , 221 F.3d 329, 339 (2d Cir. 2000). 16 Accordingly, we affirm the Dist rict Court’s dismissal of the Hsin plaintiffs’ section 1981 claim 17 for race-based interference with their ri ght to make and enforce contracts. 18 For the reasons set forth in the Hu Opinion, we also affirm th e District Court’s dismissal 19 of the Hsin plaintiffs’ Due Process claim and Monell claim. We further conclude that the court 20 below did not abuse its di scretion in dismissing the Hsin plaintiffs’ federal claims with prejudice, 21

2 As we explain in our Opinion in the Hu action, the similarity standard for a LeClair claim is identical to the similarity standard for a section 1981 claim.7 as the Hsin plaintiffs never sought l eave from the District Cour t to amend their Amended 1 Complaint. See Horoshko v. Citibank, N.A. , 373 F.3d 248, 249–50 (2d Cir. 2004) (“[The] 2 contention that the District Court abused its discretion in not permitting an amendment that was 3 never requested is frivolous.”). As for the Hsin plaintiffs’ argument that the District Court 4 abused its discretion by declining to exercise supplemental jurisdic tion over their state law claim, 5 we find that this argument is without merit. The District Court dismissed the Amended 6 Complaint well before trial, and we see no reason to depart from the general rule that, “where the 7 federal claims are dismissed before trial, the state claims should be dismissed as well.” New 8 York Mercantile Exch., Inc. v. IntercontinentalExchange, Inc. , 497 F.3d 109, 119 (2d Cir. 2007). 9 For the reasons set forth in the Hu Opinion, we conclude that the Hsin plaintiffs’ remaining 10 arguments are also meritless. Accordingly, th e judgment of the District Court is hereby 11 AFFIRMED

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FOR THE COURT: 13 Catherine O’Hagan Wolfe, Clerk 14