     13-136
     Duran v. Kiley

                          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 26th day of November, two thousand thirteen.
 5
 6       PRESENT: AMALYA L. KEARSE,
 7                DENNIS JACOBS,
 8                CHESTER J. STRAUB,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       TIMOTHY C. DURAN,
13
14                    Plaintiff-Appellant,
15
16                    -v.-                                              No. 13-136
17
18       KEVIN J. KILEY, KILEY, KILEY & KILEY,
19       PLLC, GARY J. DMOCH d.b.a. GARY JOHN
20       DMOCH & ASSOCIATES,
21
22                Defendants-Appellees.*
23       - - - - - - - - - - - - - - - - - - - -X


                *
               The Clerk of Court is respectfully directed to amend
         the official caption in this case to conform with the
         caption above.
                                                  1
 1
 2   FOR PLAINTIFF-APPELLANT:      TIMOTHY C. DURAN, pro se, San
 3                                 Jose, CA.
 4
 5   FOR DEFENDANTS-APPELLEES:     No appearance.
 6
 7        Appeal from a judgment and order of the United States
 8   District Court for the Southern District of New York
 9   (McMahon, J.).
10
11        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
12   AND DECREED that the judgment and order of the district
13   court be AFFIRMED.
14
15       Timothy C. Duran, pro se, appeals from the district

16   court’s (1) judgment sua sponte dismissing his complaint as

17   barred by res judicata and collateral estoppel and (2) order

18   imposing a filing injunction and denying his motion to

19   correct the judgment.     We assume the parties’ familiarity

20   with the underlying facts, the procedural history of the

21   case, and the issues on appeal.

22       A district court has the inherent authority to dismiss

23   a complaint as frivolous, even if the plaintiff pays a

24   filing fee.     See Fitzgerald v. First E. Seventh St. Tenants

25   Corp., 221 F.3d 362, 363–64 (2d Cir. 2000).     An action is

26   frivolous “where it lacks an arguable basis either in law or

27   in fact.”     Neitzke v. Williams, 490 U.S. 319, 325 (1989).

28       “Under the doctrine of res judicata, or claim

29   preclusion, a final judgment on the merits of an action

30   precludes the parties or their privies from relitigating

31   issues that were or could have been raised in that action.”

                                     2
1    Proctor v. LeClaire, 715 F.3d 402, 411 (2d Cir. 2013)

2    (internal quotation marks and brackets omitted).

3        As the district court concluded, Duran’s complaint is

4    barred by res judicata.     The settlement in the earlier

5    litigation was embodied in a final judgment on the merits.

6    See Greenberg v. Bd. of Governors of Fed. Reserve Sys., 968

7    F.2d 164, 168 (2d Cir. 1992) (“Settlements may also have

8    preclusive effect.”).     The present complaint raises anew

9    issues that Duran previously raised; and the relationship is

10   sufficiently close between the defendants in the earlier

11   litigation and the defendants in the instant case.     See,

12   e.g., Cent. Hudson Gas & Elec. Corp. v. Empresa Naviera

13   Santa S.A., 56 F.3d 359, 367-68 (2d Cir. 1995) (“[T]he

14   principle of privity bars relitigation of the same cause of

15   action against a new defendant known by a plaintiff at the

16   time of the first suit where the new defendant has a

17   sufficiently close relationship to the original defendant to

18   justify preclusion.”).     The district court did not err in

19   refusing to allow Duran to amend, as amendment would have

20   been futile in light of the preclusive effect of the prior

21   litigation.   See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d

22   Cir. 2000).

23       “A district court may, in its discretion, impose

24   sanctions against litigants who abuse the judicial process.”

                                     3
1    Shafii v. British Airways, PLC, 83 F.3d 566, 571 (2d Cir.

2    1996).   “[I]n determining whether or not to restrict a

3    litigant’s future access to the courts” through a filing

4    injunction, the court “should consider the following

5    factors: (1) the litigant’s history of litigation and in

6    particular whether it entailed vexatious, harassing or

7    duplicative lawsuits; (2) the litigant’s motive in pursuing

8    the litigation, e.g., does the litigant have an objective

9    good faith expectation of prevailing?; (3) whether the

10   litigant is represented by counsel; (4) whether the litigant

11   has caused needless expense to other parties or has posed an

12   unnecessary burden on the courts and their personnel; and

13   (5) whether other sanctions would be adequate to protect the

14   courts and other parties.”     See Safir v. U.S. Lines, Inc.,

15   792 F.2d 19, 24 (2d Cir. 1986).     Before a filing injunction

16   is imposed, however, a litigant must be provided notice and

17   an opportunity to be heard.     See Moates v. Barkley, 147 F.3d

18   207, 208 (2d Cir. 1998).     We review an order imposing a

19   filing injunction for abuse of discretion.     See Gollomp v.

20   Spitzer, 568 F.3d 355, 368 (2d Cir. 2009); United States v.

21   Int’l Bhd. of Teamsters, 266 F.3d 45, 49 (2d Cir. 2001); see

22   also Robert v. Dep’t of Justice, 439 F. App’x 32, 34 (2d

23   Cir. 2011) (summary order) (drawing same conclusion from

24   Gollomp and Int’l Bhd. of Teamsters).

                                     4
1        The district court did not abuse discretion in imposing

2    the filing injunction.   As the record demonstrates: (1) the

3    district court notified Duran of the possible injunction and

4    provided him with an opportunity to respond; (2) Duran filed

5    four other actions in connection with the same condominium

6    construction project; and (3) Duran is prevented only from

7    filing future complaints in the Southern District of New

8    York related to that same condominium construction project,

9    cf. Safir, 792 F.2d at 25 (injunction precluding a litigant

10   from “instituting any action whatsoever” was “overly

11   broad”).

12       Finally, Duran was not prejudiced by any reference to

13   28 U.S.C. § 1915(a)(3) in the district court’s judgment.

14   Duran did not move for in forma pauperis status in the

15   district court and has not done so on appeal.

16       We have considered Duran’s remaining arguments and

17   conclude that they are without merit.   The judgment and

18   order of the district court are hereby affirmed.

19
20                               FOR THE COURT:
21                               CATHERINE O’HAGAN WOLFE, CLERK
22




                                   5
