   18‐3305
   Johnson v. New York University

                      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
ASUMMARY 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 Thurgood Marshall United States Courthouse, 40 Foley
   Square, in the City of New York, on the 31st day of January, two thousand
   twenty.

   PRESENT:
              PETER W. HALL,
              RICHARD J. SULLIVAN,
              JOSEPH F. BIANCO,
                    Circuit Judges.
   _____________________________________

   Vandyke Johnson,

                     Plaintiff‐Appellant,

               v.                                           18‐3305

   New York University, New York
   University Board of Trustees, Andrew
Hamilton, in his official and individual
capacity, Cynthia Perez, in her official and
individual capacity, Teresa Gargiulo, in
her official and individual capacity,

                 Defendants‐Appellees.
_____________________________________

FOR PLAINTIFF‐APPELLANT:                    Vandyke Johnson, pro se, New York,
                                            NY.

FOR DEFENDANTS‐APPELLEES:                   William H. Miller, III, Esq., New
                                            York University Office of General
                                            Counsel, New York, NY.

      Appeal from a judgment of the United States District Court for the Southern

District of New York (Caproni, J.).

      UPON      DUE     CONSIDERATION,         IT   IS   HEREBY     ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED.

      Vandyke Johnson, a former New York University student proceeding pro

se, sued the University and several of its employees (hereinafter, referred to

collectively as Defendants‐Appellees “NYU”) under 42 U.S.C. §§ 1981 and 2000d

et seq. (also known as Title VI of the Civil Rights Act) and state law. Johnson

alleged that NYU discriminated against him based on his race and gender when

they expelled him in 2007 after he was criminally charged with (but acquitted of)


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grand larceny, and then refused to readmit him in 2017. NYU initially did not

timely respond to the complaint, and the clerk of the district court entered a

certificate of default. On NYU’s motions, the district court vacated the default

and later dismissed the complaint, reasoning that the federal discrimination claims

were time‐barred and failed to state a claim, and declining to exercise

supplemental jurisdiction over the state law claims.        Johnson appealed; he

challenges the vacatur of default, the district court’s determinations that his

complaint was time‐barred and failed to state a claim, and the court’s denial of his

motion for leave to file an amended complaint.           We assume the parties’

familiarity with the underlying facts, the procedural history, and the issues on

appeal.

      I.    Vacatur of Entry of Default

      A court may set aside the entry of default for “good cause.” Fed. R. Civ. P.

55(c). We have established three criteria for courts to consider when determining

whether to set aside default: “(1) whether the default was willful; (2) whether

setting aside the default would prejudice the adversary; and (3) whether a

meritorious defense is presented.” Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d

Cir. 1993). We review a district court’s decision to vacate an entry of default for




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abuse of discretion, id. at 95, bearing in mind the “strong preference for resolving

disputes on the merits,” New York v. Green, 420 F.3d 99, 104 (2d Cir. 2005) (internal

quotation marks omitted).

      We discern no error, let alone an abuse of discretion, in the magistrate

judge’s determination that the default was not willful.          Counsel for NYU

contacted the court within two business days of default being entered and moved

to vacate within two weeks as directed by the district court.           Contrary to

Johnson’s arguments, NYU’s counsel’s failure to contact the court until after

default had been entered does not demonstrate that the default was willful; rather,

prompt correspondence with the district court setting forth the reasons for the

oversight and seeking permission for a motion to set aside the entry of default

suggests that the default was not willful. See Enron Oil Corp., 10 F.3d at 98. The

decision to vacate default was well within the court’s discretion. See Green, 420

F.3d at 104 (“[A]ll doubts must be resolved in favor of the party seeking relief from

the judgment in order to ensure that to the extent possible, disputes are resolved

on their merits.”). Moreover, we decline to consider Johnson’s argument, raised

for the first time on appeal, that the district court should have determined whether




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NYU had correctly calculated their time to respond. See Allianz Ins. Co. v. Lerner,

416 F.3d 109, 114 (2d Cir. 2005).

      II.    Motion to Dismiss

      Johnson’s federal claims relating to his 2007 expulsion and 2017 denial of

readmission arose under 42 U.S.C. § 1981 and Title VI of the Civil Rights Act of

1964, 42 U.S.C. § 2000d et seq. Section 1981 provides, in pertinent part, that “[a]ll

persons within the jurisdiction of the United States shall have the same right . . . to

the full and equal benefit of all laws and proceedings . . . as is enjoyed by white

citizens . . . . ” 42 U.S.C. § 1981(a). “This section thus outlaws discrimination with

respect to the enjoyment of benefits, privileges, terms, and conditions of a

contractual relationship . . . .” Patterson v. Cty. of Oneida, N.Y., 375 F.3d 206, 224

(2d Cir. 2004). Title VI “prohibits a recipient of federal funds from discriminating

on the basis of race, color, or national origin.” Zeno v. Pine Plains Cent. Sch. Dist.,

702 F.3d 655, 664 (2d Cir. 2012). The district court dismissed any claims related

to the 2007 expulsion as untimely and found that the allegations related to the 2017

denial of readmission failed to state a claim upon which relief could be granted.

We review de novo the grant of a motion to dismiss, accepting the complaint’s

factual allegations as true and drawing all reasonable inferences in the plaintiff’s




                                          5
favor. Forest Park Pictures v. Universal Television Network, Inc., 683 F.3d 424, 429

(2d Cir. 2012).

      The district court correctly concluded that Johnson’s claims arising out of

his expulsion from the University in 2007 were untimely, as the applicable statute

of limitations is three years and Johnson did not file his complaint until 2017. See

Patterson, 375 F.3d at 225 (“The statute of limitations applicable to claims brought

under []§ 1981 . . . in New York is three years.”); Morse v. Univ. of Vermont, 973 F.2d

122, 126 (2d Cir. 1992) (stating that for Title VI actions, “the federal trend is to look

to the statute of limitations used in analogous federal discrimination actions such

as those brought under 42 U.S.C. §§ 1981 and 1983”). We likewise agree with the

district court that Johnson did not benefit from the continuing violation doctrine,

under which the statute of limitations period can be extended when “a plaintiff

has experienced a continuous practice and policy of discrimination.” Fitzgerald v.

Henderson, 251 F.3d 345, 359 (2d Cir. 2001) (internal quotation marks and citations

omitted).   Johnson’s situation does not qualify for relief under this doctrine

because his expulsion in 2007 and the denial of readmittance in 2017 are discrete

incidents which are “easy to identify” and thus not evidence of a continuing




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violation. Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 157 (2d Cir. 2012) (internal

quotation marks omitted).

      We find no error in the district court’s refusal to consider, on a motion to

dismiss, an affidavit signed by former dean Dennis Di Lorenzo, who reviewed

Johnson’s application for readmission in 2017 and opined that Johnson’s

qualifications, “including his disciplinary history,” did not merit admission into

the University. Johnson argues that this affidavit—which was not attached to the

complaint or the motion to dismiss, but rather submitted in support of NYU’s

motion to vacate default—would have raised an inference that NYU discriminated

against him when they denied him readmission in 2017.               This argument is

without merit. The district court was not required to consider the Di Lorenzo

affidavit because it was outside the pleadings. See Friedl v. City of New York, 210

F.3d 79, 83 (2d Cir. 2000) (stating that, on a motion to dismiss, a district court must

either “exclude the additional material and decide the motion on the complaint

alone” or “convert the motion to one for summary judgment” (internal quotation

marks omitted)). And even if the court had considered the affidavit, the affidavit

stated only that the decision to deny readmission to Johnson was based partly on




                                           7
his disciplinary history; there is nothing in the affidavit that raises an inference

that the denial of readmission was based on Johnson’s race.

      The district court properly dismissed Johnson’s claims arising out of the

denial of his readmission in 2017 for failure to state a claim. As an initial matter,

Johnson failed to state a plausible claim under any applicable gender

discrimination statute.     His allegations of gender discrimination are wholly

conclusory as his complaint contained no facts relating to gender discrimination.

See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (holding that, to state a claim,

a plaintiff must plead “more than labels and conclusions”).

      As to the race discrimination claims, to defeat a motion to dismiss, Johnson

needed only plead facts that “[gave] plausible support to a minimal inference of

discriminatory motivation.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72,

84 (2d Cir. 2015).     Johnson’s complaint attempted to raise an inference of

discrimination by referencing three white male students who, he claims, were

disciplined differently by the University after having been accused (or convicted)

of crimes.    While a plaintiff may “raise[] an inference of discrimination by

showing that [he] was subjected to disparate treatment” in comparison to others,

the comparators must be “similarly situated” to the plaintiff “in all material




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respects.” Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000) (internal

quotation marks omitted).       We agree with the district court that the white

comparators Johnson cited did not meet this standard since none of the

comparators had sought (let alone been granted) readmission after being expelled.

It is true that comparators need not be identical, but there must be at least a

“reasonably close resemblance of the facts and circumstances,” id. at 40, which was

not the case here.      Because his allegations did not raise an inference of

discrimination, the district court did not err by dismissing his complaint. See

Yusuf v. Vassar Coll., 35 F.3d 709, 713 (2d Cir. 1994) (“A plaintiff alleging racial or

gender discrimination by a university must do more that recite conclusory

assertions.”).

      III.   Leave to Amend

      Finally, the district court did not err by denying leave to amend. The denial

of leave to amend is generally reviewed for abuse of discretion, Grochowski v.

Phoenix Constr., 318 F.3d 80, 86 (2d Cir. 2003), but if the district court denies leave

because the proposed amended complaint does not state a claim upon which relief

can be granted, review is de novo, Anderson News L.L.C. v. Am. Media, Inc., 680 F.3d

162, 185–186 (2d Cir. 2012). “While generally leave to amend should be freely




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granted, it may be denied when there is a good reason to do so, such as futility,

bad faith, or undue delay.” Kropelnicki v. Siegel, 290 F.3d 118, 130 (2d Cir. 2002)

(citing Fed. R. Civ. P. 15(a)).   Johnson’s proposed amended complaint was

substantively identical to the previous version and did not allege any

nonconclusory facts showing that NYU had discriminated against him. The court

was correct to deny leave to amend as it would have been futile. See id.

      We have considered Johnson’s remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the judgment of the district court.



                                      FOR THE COURT:
                                      Catherine O’Hagan Wolfe, Clerk of Court




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