     12-4574-cv
     McCulloch v. Town of Milan

                          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 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
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 25th day of March, two thousand fourteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                ROSEMARY S. POOLER,
 8                              Circuit Judges,
 9                CHRISTINA REISS,
10                              District Judge.*
11
12       - - - - - - - - - - - - - - - - - - - -X
13       CARMEN OTERO MCCULLOCH,
14
15              Plaintiff-Appellant,
16
17                    -v.-                                              No. 12-4574-cv
18
19       TOWN OF MILAN, TOWN OF MILAN TOWN
20       BOARD, JOHN V. TALMADGE, Town
21       Supervisor, ALFRED BRUTTON,
22       Councilpersons, PAULINE COMBE-CLARK,
23       Councilpersons, DIANE MAY,


                *
               Chief Judge Christina Reiss, of the United States
         District Court for the District of Vermont, sitting by
         designation.
                                                  1
 1   Councilpersons, ROSS WILLIAMS,
 2   Councilpersons, TOWN OF MILAN PLANNING
 3   BOARD, LAUREN KINGMAN, Chairman,
 4   JEFFREY ANAGOS, and Members, PETER
 5   GOSS, Member, SHEILA MARGIOTTA, MARY
 6   ANN HOFFMAN, Member, PAULINE
 7   COMBE-CLARK, GARY E. BECK, Zoning
 8   Enforcement Officer, Town of Milan,
 9   FRANK MARGIOTTA, BARBARA HUGHEY,
10   CHARLOTTE NORMAN,
11
12        Defendants-Appellees.
13   - - - - - - - - - - - - - - - - - - - -X
14
15   FOR PLAINTIFF-APPELLANT:    KENNETH J. MCCULLOCH, New York,
16                               NY.
17
18   FOR DEFENDANTS-APPELLEES:   TERRY RICE, Rice & Amon,
19                               Suffern, NY.
20
21        Appeal from a judgment and orders of the United States
22   District Court for the Southern District of New York
23   (Preska, C.J.).
24
25        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
26   AND DECREED that the judgment and orders of the district
27   court be AFFIRMED.
28
29        Carmen Otero McCulloch appeals, among other things, the
30   district court’s grant of summary judgment to the Defendants
31   with respect to McCulloch’s claims under (inter alia) the
32   Fair Housing Act (“FHA”), 42 U.S.C. §§ 3601-3631, and the
33   United States Constitution. We assume the parties’
34   familiarity with the underlying facts, the procedural
35   history, and the issues on appeal.
36
37        1.  Fair Housing Act. The district court granted
38   summary judgment to the Defendants on the FHA claims. We
39   review de novo a grant of summary judgment, drawing all
40   reasonable inferences in the non-moving party’s favor. See
41   Wrobel v. Cnty. of Erie, 692 F.3d 22, 27 (2d Cir. 2012).
42   Summary judgment is appropriate if the record shows that
43   “there is no genuine dispute as to any material fact and the

                                  2
 1   movant is entitled to judgment as a matter of law.” Fed. R.
 2   Civ. P. 56(a). A genuine dispute of fact exists only “where
 3   the evidence is such that a reasonable jury could decide in
 4   the non-movant’s favor.” Beyer v. Cnty. of Nassau, 524 F.3d
 5   160, 163 (2d Cir. 2008).
 6
 7        “An FHA violation may be established on a theory of
 8   disparate impact or one of disparate treatment.” LeBlanc-
 9   Sternberg v. Fletcher, 67 F.3d 412, 425 (2d Cir. 1995).
10   McCulloch has not established a genuine dispute of material
11   fact as to her prima facie case of discrimination based on
12   either theory.
13
14        “To establish a prima facie case of discrimination”
15   under the disparate treatment theory, “the plaintiff[] must
16   present evidence that animus against the protected group was
17   a significant factor in the position taken by the municipal
18   decision-makers themselves or by those to whom the
19   decision-makers were knowingly responsive.” Reg’l Econ.
20   Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d
21   35, 49 (2d Cir. 2002) (internal quotation marks omitted),
22   superseded by statute on other grounds, ADA Amendments of
23   2008, Pub. L. No. 110-325, 122 Stat. 3553, as recognized in
24   Brooker v. Altoona Hous. Auth., No. 3:11-CV-95, 2013 WL
25   2896814, at *9 n.8 (W.D. Pa. June 12, 2013). McCulloch
26   presents no evidence from which a reasonable jury could find
27   that the Defendants harbored animus against Hispanics, or
28   that animus played a role in the restrictions imposed on
29   McCulloch’s subdivision. McCulloch never met the
30   Defendants; her interests were represented throughout the
31   approval process by her husband, who is not Hispanic.
32   McCulloch responds by arguing, among other things, that a
33   subdivision driveway was labeled (by McCulloch) as the
34   “Otero” driveway, that “Otero” is clearly a Hispanic
35   surname, and that an unidentified non-Defendant made a
36   negative comment at a public meeting about “city people.”
37   None of these contentions gives rise to a genuine dispute
38   that the Defendants actually knew that McCulloch was
39   Hispanic and discriminated against her for that reason.1

         1
           McCulloch argues that the Defendants should have
     known she was Hispanic because the Town certified to the
     federal government that it was in compliance with its
     obligation to conduct an analysis of impediments to fair
                                  3
 1        Moreover, there is no evidence of disparate treatment.
 2   Nothing in the record suggests that the terms of the
 3   operative conservation easement agreement (which was
 4   extensively negotiated by McCulloch’s husband) were more
 5   onerous than those negotiated with non-minority developers,
 6   or that the Town’s refusal to provide an interpretation of
 7   the agreement after McCulloch commenced this litigation was
 8   unusual or remarkable.
 9
10        As for disparate impact, “[t]o establish a prima facie
11   case under this theory, the plaintiff must show: (1) the
12   occurrence of certain outwardly neutral practices, and (2) a
13   significantly adverse or disproportionate impact on persons
14   of a particular type produced by the defendant’s facially
15   neutral acts or practices.” Id. at 52-53 (internal
16   quotation marks omitted). The restrictions McCulloch
17   complains of, however, were mostly particular to her
18   subdivision and do not form “a facially neutral policy or
19   practice.” Id. at 53 (emphasis added). It is therefore
20   impossible to make a “comparison of . . . disparate impact
21   on different groups of people.” Id.
22
23        McCulloch has also not established a genuine dispute
24   that, under her disparate impact theory, she suffered a
25   personal injury because of her inability to sell her
26   properties to minorities or otherwise. McCulloch therefore
27   fails to show a genuine dispute regarding “the Art. III
28   minima of injury in fact: . . . that as a result of the
29   [Defendants’] actions [McCulloch] has suffered a distinct
30   and palpable injury.” Fair Hous. in Huntington Comm., Inc.
31   v. Town of Huntington, N.Y., 316 F.3d 357, 362 (2d Cir.
32   2003) (internal quotation marks omitted).
33
34        2.  Equal Protection. “To state a claim for an equal
35   protection violation, appellant[] must allege that a
36   government actor intentionally discriminated against [her]
37   on the basis of race, national origin or gender.” Hayden v.
38   Cnty. of Nassau, 180 F.3d 42, 48 (2d Cir. 1999). For the
39   reasons stated above, McCulloch fails to raise a genuine


     housing choices. McCulloch, however, does not explain how
     general compliance with the funding certification would have
     led the Defendants to learn specifically that McCulloch was
     Hispanic.
                                  4
 1   dispute of material fact regarding intentional
 2   discrimination.
 3
 4        3.  Injunctive and Declaratory Relief. The district
 5   court declined to exercise supplemental jurisdiction over
 6   McCulloch’s request for: (1) a “Declaratory Judgment that
 7   Plaintiff . . . may cut trees in accordance with generally
 8   accepted forest conservation practices” under the applicable
 9   conservation easement agreement, (2) a “Declaratory Judgment
10   that the [conservation easement agreement] is invalid”; and
11   (3) an injunction enjoining Defendants from enforcing the
12   agreement. Am. Compl. at 39-41, McCulloch v. Town of Milan,
13   No. 1:07-cv-09780-LAP (S.D.N.Y. Jan. 25, 2008), ECF No. 32;
14   see also Mot. for Permanent Inj., McCulloch, No. 1:07-cv-
15   09780-LAP, ECF No. 42.
16
17        “The district courts may decline to exercise
18   supplemental jurisdiction over a claim” if (1) “the claim
19   raises a novel or complex issue of State law,” (2) “the
20   claim substantially predominates over the claim or claims
21   over which the district court has original jurisdiction,”
22   (3) “the district court has dismissed all claims over which
23   it has original jurisdiction,” or (4) “in exceptional
24   circumstances, there are other compelling reasons for
25   declining jurisdiction.” 28 U.S.C. § 1367(c). Subject to
26   some limitations, “the decision whether to decline to
27   exercise supplemental jurisdiction is ‘purely discretionary’
28   . . . .” Oneida Indian Nation of N.Y. v. Madison Cnty., 665
29   F.3d 408, 437 (2d Cir. 2011) (quoting Carlsbad Tech., Inc.
30   v. HIF Bio, Inc., 556 U.S. 635, 639 (2009)), petition for
31   cert. filed, 81 U.S.L.W. 3277 (U.S. Nov. 12, 2012) (No. 12-
32   604).
33
34        The district court did not abuse discretion by
35   declining to interpret a conservation easement agreement
36   governed by state law. McCulloch’s claims for injunctive
37   and declaratory relief were redundant of her FHA claims, on
38   which the district court properly granted summary judgment
39   to the Defendants.
40
41        4.  Motion to Amend Complaint. McCulloch moved for
42   leave to amend her complaint to add a retaliation claim
43   premised on the Defendants’ alleged statement, made during
44   settlement discussions, that the Town would not provide an

                                  5
 1   interpretation of the conservation easement agreement until
 2   McCulloch dismissed her lawsuit. She also sought to add a
 3   cause of action under the New York State Human Rights Law,
 4   N.Y. Exec. Law § 290, et seq. “The standard for reviewing
 5   the denial of a motion to amend a complaint is abuse of
 6   discretion . . . .” Sista v. CDC Ixis N. Am., Inc., 445
 7   F.3d 161, 177 (2d Cir. 2006) (internal quotation marks
 8   omitted).
 9
10        The district court did not abuse discretion in denying
11   leave to amend. The motion was filed 18 months after the
12   conference at which the alleged statement was made.
13   Discovery was near a close. “The court . . . has discretion
14   to deny leave to amend where the motion is made after an
15   inordinate delay, no satisfactory explanation is offered for
16   the delay, and the amendment would prejudice other parties,
17   or where the belated motion would unduly delay the course of
18   proceedings by, for example, introducing new issues for
19   discovery.” Grace v. Rosenstock, 228 F.3d 40, 53-54 (2d
20   Cir. 2000) (citations and internal quotation marks omitted).
21
22        We have considered all of McCulloch’s remaining
23   arguments and conclude that they are without merit. The
24   judgment and orders of the district court are hereby
25   affirmed.
26
27                              FOR THE COURT:
28                              CATHERINE O’HAGAN WOLFE, CLERK
29




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