     11-1760-cv; 11-1677-cv
     Houston v. Manheim-New York; Dow Lohnes PLLC

                              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. 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
     A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
     REPRESENTED BY COUNSEL.

 1         At a stated term of the United States Court of Appeals for the Second Circuit, held at
 2   the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
 3   York, on the11th day of April, two thousand twelve.
 4
 5          PRESENT: AMALYA L. KEARSE,
 6                   RAYMOND J. LOHIER, JR.,
 7                                 Circuit Judges,
 8                   EDWARD R. KORMAN,
 9                                 District Judge.*
10
11          ------------------------------------------------------------------
12
13          LEONARD W. HOUSTON,
14                                                   Plaintiff-Appellant,
15
16                                   v.                                          No. 11-1760-cv
17
18          MANHEIM-NEW YORK d/b/a MANHEIM SERVICES
19          CORPORATION f/k/a MANHEIM’S NEWBURGH AUTO
20          AUCTION, a wholly owned subsidiary corporation of Cox
21          Enterprises, Inc., and COX ENTERPRISES, INC., a Delaware
22          Corporation and a parent corporation for its subsidiaries,
23                                            Defendants-Appellees.
24
25


            *
               Judge Edward R. Korman, of the United States District Court for the Eastern
     District of New York, sitting by designation.
 1         ------------------------------------------------------------------
 2
 3         LEONARD W. HOUSTON,
 4                                                  Plaintiff-Appellant,
 5
 6                                  v.                                          No. 11-1677-cv
 7
 8         DOW LOHNES PLLC, ATTORNEYS AT LAW, COX
 9         ENTERPRISES, INC.,
10                                Defendants-Appellees.
11
12         ------------------------------------------------------------------
13
14         FOR APPELLANT:                           Leonard W. Houston, pro se, Middletown, NY.
15
16         FOR APPELLEES:                           Robert E. Ganz, Ganz, Wolkenbreit & Siegfeld,
17                                                  LLP, Albany, NY; Christopher L. Meazell, Dow
18                                                  Lohnes PLLC, Norman, OK.
19
20         Appeals from the United States District Court for the Southern District of New

21   York (Richard Owen, Judge).

22         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

23   AND DECREED that the judgments of the District Court are AFFIRMED.

24         In these tandem appeals, which we have consolidated for decision, Appellant

25   Leonard W. Houston, proceeding pro se, appeals from two judgments of the United States

26   District Court for the Southern District of New York (Owen, J.): In No. 11-1760, he

27   challenges a judgment granting the defendants’ motion for summary judgment in his

28   employment discrimination action and denying his motion for class certification; in No.

29   11-1677, he challenges a judgment that sua sponte dismissed as frivolous his complaint in

30   a related action principally alleging witness tampering. Because Houston is a pro se

31   litigant, we construe his submissions liberally. See Triestman v. Fed. Bureau of Prisons,

32   470 F.3d 471, 476-77 (2d Cir. 2006). We assume the parties’ familiarity with the facts


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 1   and procedural histories of the cases, which we reference only as necessary to explain our

 2   decision to affirm.

 3          A. Houston v. Manheim-New York (No. 11-1760)

 4          Houston appeals from a judgment entered on March 21, 2011, granting

 5   defendants’ motion for summary judgment as to all of Houston’s claims and denying his

 6   motion for class certification. In addition, Houston challenges an order entered on June

 7   16, 2010, denying his motions for, among other things, sanctions against the defendants.

 8            1. Discrimination Claims and Class Certification

 9          “We review an award of summary judgment de novo, affirming only if there is no

10   genuine issue as to any material fact, and if the moving party is entitled to a judgment as a

11   matter of law.” City of New York v. Group Health Inc., 649 F.3d 151, 155 (2d Cir. 2011)

12   (citation omitted). In making this determination, we “must construe the facts in the light

13   most favorable to the non-moving party and must resolve all ambiguities and draw all

14   reasonable inferences against the movant.” Aulicino v. N.Y.C. Dep’t of Homeless Servs.,

15   580 F.3d 73, 79-80 (2d Cir. 2009) (citation omitted).

16          The District Court dismissed Houston’s amended complaint, which alleged

17   primarily that the defendants had denied him a promotion to Arbitration Manager because

18   of his race and color, in violation of Title VII of the Civil Rights Act of 1964 (“Title

19   VII”), 42 U.S.C. § 2000e, et seq., and his age, in violation of the Age Discrimination in

20   Employment Act (“ADEA”), 29 U.S.C. §§ 621-34.

21          We affirm the District Court’s grant of summary judgment and dismissal of

22   Houston’s discrimination claims for substantially the same reasons stated by the District

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 1   Court in its March 16, 2011 order, which referenced and adopted the findings and

 2   recommendation of the Magistrate Judge made on July 7, 2010. First, Houston failed to

 3   point to evidence, rather than merely to allegations, that demonstrated defendants’

 4   discriminatory intent or rebutted their legitimate, nondiscriminatory reason for rejecting

 5   Houston for the position, namely, that they hired a more qualified individual. See Farias

 6   v. Instructional Sys., Inc., 259 F.3d 91, 99 (2d Cir. 2001); Byrnie v. Town of Cromwell,

 7   Bd. of Educ., 243 F.3d 93, 103 (2d Cir. 2001). Second, the District Court did not err in

 8   accepting defendants’ affirmative defense that Houston’s ADEA claim was barred

 9   because he had not exhausted his administrative remedies. See Belgrave v. Pena, 254

10   F.3d 384, 386 (2d Cir. 2001).

11            Because we affirm the District Court’s dismissal of Houston’s Title VII

12   discrimination claim on the merits, his challenge to the denial of class certification on that

13   claim is moot. See Dobson v. Hartford Fin. Servs. Grp., Inc., 389 F.3d 386, 402 (2d Cir.

14   2004).

15             2. Sanctions

16            To the extent Houston challenges the Magistrate Judge’s denial of his second

17   motion for sanctions against defendants, neither Houston nor defendants addressed

18   whether the Magistrate Judge had the authority to deny such a motion under 28 U.S.C.

19   § 636(b)(1)(A) and Federal Rule of Civil Procedure 72(a) – an issue that we have not yet

20   resolved. See generally Kiobel v. Millson, 592 F.3d 78, 79-80 (2d Cir. 2010).

21



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 1          In any event, Houston has abandoned the argument that the Magistrate Judge

 2   lacked the authority to deny his motion by failing to raise it on appeal. See LoSacco v.

 3   City of Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995). Moreover, remanding to the

 4   District Court on the motion for sanctions would be futile because Houston violated Rule

 5   11(c)(2) of the Federal Rules of Civil Procedure, a safe harbor provision, which required

 6   him to serve the sanctions motion on the opposing party twenty-one days prior to its

 7   filing. See Hadges v. Yonkers Racing Corp., 48 F.3d 1320, 1327-28 (2d Cir. 1995).

 8   Accordingly, we affirm the denial of Houston’s motion to impose sanctions, but express

 9   no opinion as to whether the Magistrate Judge was authorized to deny the motion.

10          B. Houston v. Dow Lohnes PLLC (No. 11-1677)

11          Houston also separately appeals from a judgment sua sponte dismissing Houston’s

12   complaint as frivolous. A district court has the inherent authority to “dismiss a frivolous

13   complaint sua sponte even when the plaintiff has paid the required filing fee.” Fitzgerald

14   v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 364 (2d Cir. 2000). Although we

15   have not resolved whether such dismissals are reviewed de novo or for abuse of

16   discretion, we need not reach that issue to affirm the District Court’s decision “because

17   [it] easily passes muster under the more rigorous de novo review.” Id. at 364 n.2.

18          The District Court properly dismissed Houston’s complaint, which alleged that

19   counsel to defendants in Houston v. Manheim-New York acted unlawfully by sending

20   Houston a letter advising him that he had improperly named several defendants and that

21   the claims against them should be dismissed. Houston claimed that defense counsel’s



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 1   conduct constituted witness tampering, see 18 U.S.C. § 1512, and violated two civil

 2   statutes, namely, 42 U.S.C. § 1985(2), which prohibits conspiracies to interfere with an

 3   individual’s civil rights, and 18 U.S.C. § 1961, et seq., the civil enforcement provisions of

 4   the Racketeer Influenced and Corrupt Organizations Act. Like the District Court, we

 5   conclude that these claims lack an arguable basis in law or fact. See Tafari v. Hues, 473

 6   F.3d 440, 442 (2d Cir. 2007) (“An appeal is frivolous when it ‘lacks an arguable basis

 7   either in law or in fact.’”).

 8             The District Court also did not abuse its discretion in dismissing Houston’s claims

 9   without granting leave to amend. See Foman v. Davis, 371 U.S. 178, 182 (1962). The

10   court invited Houston to submit a brief explaining why his complaint should not be

11   dismissed, and Houston appears to have submitted a brief and affidavit opposing

12   dismissal. He therefore had an opportunity to argue that he should be permitted to amend

13   the complaint, but provided no basis to conclude that amendment would not have been

14   futile.

15             We have considered Houston’s remaining arguments and find them to be without

16   merit. For the foregoing reasons, the judgments of the District Court are AFFIRMED.

17

18                                         FOR THE COURT:
19                                         Catherine O’Hagan Wolfe, Clerk of Court
20
21




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