UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

LEONID SHIFRIN, a/k/a Leo Shifrin, Plaintiff-Appellant,

v. ERIN TOLL; MARCIA WATERS; PAUL MARTINEZ; CARY WHITAKER, Defendants-Appellees. No. 11-1423 (D.C. No. 1:09-CV-03040-REB-MEH) (D. Colo.)

ORDER AND JUDGMENT *

Before BRISCOE , Chief Judge, McKAY and LUCERO , Circuit Judges.

Leonid Shifrin filed suit under 42 U.S. C. § 1983 to challenge defendants’ denial of his application fo r a mortgage broker license. He now appeals the district court’s Fed. R. Civ. P. 12(b)(6 ) dismissal of his complaint fo r failure to st ate a claim. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not mate rially assist the de termination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### May 22, 2012
Elisabeth A. Shumaker Clerk of Court- 2 - I In 1993, Shifrin pleaded guilty to burglary and theft in Boulder County, Colorado. In late 2007, he applied for a permanent Colorado mortgage broker license, which involved a criminal history record check. The licensing proceedings were handled by the Division of Real Es tate, whose director at the time was Erin Toll. Paul Martinez, Marcia Waters , and Cary Whitaker were all employed by the Division of Real Estate, with Wa ters and Whitaker supervising Martinez. Shifrin’s application was complete on December 7, 2007. A Colorado statute required that the application be granted or denied within twenty-one days, or by December 28, 2007. Under the law then in effect, only convictions within the immediate five years before the application were gr ounds for denying a license. Therefore, Shifrin’s convic tions were too stale to ju stify denying a license. As of January 1, 2008, however, Colora do’s laws changed. A new statutory section was added allowing the discip line of a licensee (up to and including suspension and revocation of a license) due to a burglary or theft conviction. The Division did not grant or deny Shifrin’s a pplication by December 28, 2007. Instead, on January 2, 2008, Martinez notified Shifri n that his applicati on was denied because of the 1993 convictions. Late r, the Division specified th at the denial was based on the new Colorado law. Eventually a stat e administrative judge concluded that the new law did not apply to Shifrin because he had not yet become a licensee. Shifrin’s- 3 - application then was denied on other grounds, which resulted in further proceedings. Ultimately, however, in September 2010, the Divi sion granted Shifrin’s application. Shifrin’s original complaint alleged th at defendants, in their official and individual capacities, violated 42 U.S.C. §§ 1983, 1985, 1986, and 1988 by denying him equal protection and due process. The magistrate judge recommended dismissing all claims against defendants in their official capacities, dismissing the due process claim and the §§ 1985 and 1986 claims against defendants in their individual capacities, and allowi ng Shifrin to file an ame nded complaint setting forth an equal protection claim against defendants in their individual ca pacities. No party filed an objection, and the district court adopted those recommendations. Shifrin’s amended complaint alleged that other similarly situated applicants, i.e., “applicants without convictions in the last 5 years,” including two named individuals, were granted mortgage broker li censes while he was not. R., Vol. 1 at 310. He also alleged that he was treated differently “in that hi s application was not decided within 21 days as required by Colorado Law, Defendants considered information that was not allowed to be considered for new licensees in denying Plaintiff his license, and the Defendants used convictions outside the 5 year statutory period to deny him his license.” Id. Defendants moved to dismiss the amende d complaint under Rule 12(b)(6). After briefing on the dismissa l motion concluded, Shifri n moved to file a second amended complaint “to clarify factual allega tions [and to] plead the factual basis in- 4 - greater detail.” Id. at 636-37. Specifically, he s ought to add allegations that defendants acted with malice an d to name a third similarl y situated individual. The magistrate judge recommended that the district court grant the motion to dismiss. He concluded that Shifrin had alleged no persona l participation by Waters and Whitaker. With regard to Martinez and Toll, the magi strate judge concluded that they were entitled to qualif ied immunity. Analyzing Sh ifrin’s allegations as a class-of-one equal protection claim, the magistrate judge conc luded that Shifrin failed to state a clai m because (1) he had not adequate ly pleaded that his treatment was different from that of othe r individuals who were simila r in all materi al respects, and (2) the underlying facts showed that th e Division’s actions we re rationally related to a governmental interest. Further, the magistrate judge conc luded that Shifrin failed to identify any cases showing th at the law was clearly established. The magistrate judge also recommended that the district court deny Shifrin’s motion to amend because his proposed ame ndments were futile and the motion was untimely. Examining this circuit’s cases, the magist rate judge explained that “malice” standing alone is not an element of a class-of-one equal protection claim. He also noted that naming a third indi vidual, without more, did not overcome Shifrin’s failure to show exac tly how other persons were si milarly situated to him. Further, he noted, Shifrin had not expl ained why he had not known of the new allegations earlier and why he waited so long to seek amendment.- 5 - Shifrin objected, but the district court adopted th e report and recommendation, denied the motion to amend, dismissed the complaint, and entered judgment for defendants. Shifrin now appeals.
II
A Shifrin argues that the district court erre d in applying a class- of-one analysis to his equal protection claim. “We review de novo the dismissal of a complaint for failure to state a claim.” Kan. Penn Gaming, LLC v. Collins , 656 F.3d 1210, 1214 (10th Cir. 2011). Although Shifrin denies a ny intent to proceed under a class-of-one theory, he does not claim that defendants denied his a pplication based on his sex, race, religion, or membership in another cognizable group. Rather, he claims th at they singled him out for adverse treatment. See, e.g. , Aplt Br. at 6 (“It is Appellant’s intention to plead by amendment that no other applicant for a license was treated in this manner and this treatment was intentional . . . .”); R., Vol. 1 at 310 (sta ting, in first amended complaint, that plaintiff alone was treated differently than others similarly situated). Notwithstanding Shifrin’s disclaimers, this is a class-of-one case. See Kan. Penn Gaming , 656 F.3d at 1216 (“The paradigma tic ‘class of one’ case, sensibly conceived, is one in which a public offici al, with no conceivable basis for his action other than spite or some other improper motive (improper because unrelated to his public duties), comes down hard on a hapless private citizen .” (brackets and internal- 6 - quotation marks omitted)). Th erefore, the district court did not err in employing a class-of-one analysis. The district court also did not err in dismissing the amended complaint for failure to state a claim. Th e first element of an equal pr otection violation is that the plaintiff “was ‘intentionally treated differ ently from others simi larly situated.’” SECSYS, LLC v. Vigil , 666 F.3d 678, 688 (10t h Cir. 2012) (quoting Village of Willowbrook v. Olech , 528 U.S. 562, 564 (2000) (per curiam)); see also Jennings v. City of Stillwater , 383 F.3d 1199, 1213 (10th Cir. 2004) (“This element is especially important in class-of-one cases .”). Accordingly, “a plaintif f must first establish that others, ‘similarly situated in every material respect’ were treated differently.” Kan. Penn Gaming , 656 F.3d at 1216 (quoting Jicarilla Apache Nation v. Rio Arriba Cnty. , 440 F.3d 1202, 1210 (10th Cir. 2006)). Because “it is exceedingly difficult to demonstrate that any difference in treatmen t is not attributable to a quirk of the plaintiff or even to the fallib ility of administrators whos e inconsistency is as random as it is inevitable . . . c ourts have imposed exacting burdens on plaintiffs to demonstrate similarity in class-of-one cases.” Jicarilla Apache Nation , 440 F.3d at 1213. “Inevitably, the degree to which others are viewed as similarly situated depends substantially on the fact s and context of the case.” Jennings , 383 F.3d at
1214. Shifrin identifies certain persons as subs tantially similar to him simply because they all were free of convic tions from the past five year s. But this focus does not- 7 - account for all material characteristics. The reason the Divisi on gave for initially denying Shifrin’s application was that he had theft and burglar y convictions older than five years. Therefore, it is material whether the allegedly similar individuals had any convictions, and if th ey did, what type of crim e the convictions involved and how old they were. In addition, Shifrin’s complaint contai ns minimal references to similarity. Previously, “some courts initially requi red nothing more than the threadbare allegation of different treatment to similarly situated individuals to defeat a motion to dismiss.” Kan. Penn Gaming , 656 F.3d at 1218. But in light of the Supreme Court’s recent decisions on pleading standards, “a generalized pleading . . . is no longer sufficient to state a cl ass-of-one claim.” Id. at 1219; see also id. at 1214-15 (discussing pleading standards established by Bell Atlantic Corp. v. Twombly , 550 U.S. 544 (2007), and Ashcroft v. Iqbal , 556 U.S. 662 (2009)). “[P]laintiffs must offer enough specific factual al legations to nudge their claims across the line from conceivable to plausible.” Id. at 1219 (brackets and internal quotation marks omitted). Accordingly, dismissal is prope r where a party offers only conclusory allegations that others are similarly situ ated, without any fact ual support plausibly suggesting similarities “in all material respects.” Id. at 1220. Shifrin’s complaint offered just the type of conclusory allegati ons that are insufficien t to state a claim.- 8 - Shifrin failed to adequately plead th e first element of an equal protection claim. Therefore, we need not consider ot her aspects of the dist rict court’s analysis before concluding that the district court did not err in dismissing the complaint.
B Shifrin also argues that the district c ourt erred in denying his motion to file a second amended complaint. The district court accepted the magistrate judge’s recommendation to deny the motion to ame nd because (1) the proposed amendments would be futile, and (2) Shifri n had not offered any explana tion for failing to include his new allegations in his first amended co mplaint. “Refusing leave to amend is generally only justified upon a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory mo tive, failure to cure deficiencies by amendments previously allowed, or futility of amendment.” Frank v. U.S. West, Inc. , 3 F.3d 1357, 1365 (10th Cir. 1993). “Although we review a district court’s decision to deny a motion to amend a pleading for a buse of discretion, when the denial is based on a determination that amendment w ould be futile, our review for abuse of discretion includes de novo review of the legal basis for the fi nding of futility.” Peterson v. Grisham , 594 F.3d 723, 731 (10th Cir. 2010) (internal quotation marks omitted). On appeal, as he did in his objections to the magistrate judge’s report and recommendation, Shifrin focuses on arguing that his proposed amendments were not futile. In light of our di scussion above, we need only address whether the proposed- 9 - amendments would have cured the infirmit ies in pleading substantial similarity. With regard to this issue, Shifrin prop osed to name a thir d similarly situated individual. But the proposed addition of a new name, with no further information regarding material circumstan ces, fails to cure the defi ciencies discussed above. Therefore, allowing the amendment woul d be futile, as the second amended complaint would still fail to plead the first element of an equal protection claim. In addition, the district court offere d a second reason for denying amendment: undue delay. “It is well settled in this ci rcuit that untimeliness alone is a sufficient reason to deny leave to amend, especially when the party filing the motion has no adequate explanation for the delay.” Frank , 3 F.3d at 1365-66 (citations omitted). Before the district court, Shifrin offere d no explanation for th e delay. Moreover, “where the party seeking amendment knows or should have known of the facts upon which the proposed amendment is based but fails to include them in the original complaint, the moti on to amend is subj ect to denial.” Id. at 1366 (brackets and internal quotation marks omitted). The magi strate judge conclude d that Shifrin knew or should have known, at the time he fi led his first amended complaint, of the allegations he sought to add in the second amended complaint. For these reasons, the district court did not abuse its disc retion in denying leave to amend.
C Citing Fed. R. Civ. P. 56( d), Shifrin argues that the district court should have allowed him to engage in di scovery before dismissing hi s complaint. But Shifrin- 10 - requested discovery only in hi s objections to the magistra te judge’s second report and recommendation. The request does not iden tify with specificity what Shifrin hoped to discover, and it does not appear that he f iled a Fed. R. Civ. P. 56(d) affidavit. Because the request did not co mply with Rule 56(d)’s requi rements, the district court did not abuse its discreti on in denying discovery. See McKissick v. Yuen , 618 F.3d 1177, 1190 (10th Cir. 2010) (addressing co mpliance with Fed. R. Civ. P. 56(f), the predecessor to Rule 56(d)); Price ex rel. Pri ce v. W. Res., Inc. , 232 F.3d 779, 783-84 (10th Cir. 2000) (same).
D Finally, in his reply brief, Shifrin a sserts that the distri ct court erred in dismissing his due process clai m. This court generally does not consider arguments raised for the first time in a reply brief. See Reedy v. Werholtz , 660 F.3d 1270, 1274 (10th Cir. 2011). Further, Shifrin did not object to the magistrate judge’s recommendation that the district court dism iss the due process cl aim. Under this court’s “firm waiver rule,” a party’s fa ilure to timely object to a report and recommendation also generally precludes appellate review. See Duffield v. Jackson , 545 F.3d 1234, 1237 (10th Cir. 2008). There are exceptions to the firm waiver rule, see id. , but it does not appear that they woul d apply here, even if the due-process issue had been argued in the opening brief.- 11 - III The judgment of the dist rict court is AFFIRMED.

Entered for the Court
Monroe G. McKay Circuit Judge