18‐3261‐cv
Liberty Sackets Harbor LLC v. Vill. of Sackets Harbor

                                  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 COURTʹS 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 ʺSUMMARY ORDERʺ). A
PARTY CITING 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 24th day of May, two thousand nineteen.

PRESENT:            DENNY CHIN,
                    SUSAN L. CARNEY,
                                         Circuit Judges,
                    BRENDA K. SANNES,
                                         District Judge.*
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
LIBERTY SACKETS HARBOR LLC, RIVER
NORTH, LLC, PHILIP J. SIMAO,
                        Plaintiffs‐Appellants,

                                        v.                                         18‐3261‐cv

VILLAGE OF SACKETS HARBOR, its Village Board,
and its Planning Board, JANET QUINN, Planning
Board Chairperson, DAVID B. GEURTSEN,
individually, CONBOY, MCKAY, BACHMAN &
KENDALL, LLP,
                          Defendants‐Appellees.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

*    Judge Brenda K. Sannes, of the United States District Court for the Northern District of
New York, sitting by designation.
FOR PLAINTIFFS‐APPELLANTS:                        David C. Temes, Lynn DʹElia Temes &
                                                  Stanczyk, Syracuse, New York.


FOR DEFENDANTS‐APPELLEES                          David H. Walsh IV, Barth Sullivan Behr,
VILLAGE OF SACKETS HARBOR, ITS                    Syracuse, New York.
VILLAGE BOARD and PLANNING
BOARD, JANET QUINN, and DAVID B.
GUERTSEN:


FOR DEFENDANT‐APPELLEE CONBOY,                    Peter L. Walton, Conboy, McKay,
MCKAY, BACHMAN & KENDALL, LLP:                    Bachman & Kendall, LLP, Watertown,
                                                  New York.

              Appeal from the United States District Court for the Northern District of

New York (Suddaby, C.J.).

              UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

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

              Plaintiffs‐appellants Liberty Sackets Harbor LLC (ʺLibertyʺ) and its

members River North LLC and Philip Simao (collectively, ʺplaintiffsʺ) appeal from a

judgment of the district court entered September 25, 2018, in favor of defendants‐

appellees Village of Sackets Harbor (the ʺVillageʺ), its board, planning board, planning

board chairperson, and counsel, as well as its counselʹs law firm, Conboy, McKay,

Bachman & Kendall, LLP (ʺCMBK,ʺ and collectively, ʺdefendantsʺ). By decision and

order dated September 26, 2018 (but entered September 25, 2018), the district court

granted defendantsʹ motions to dismiss the complaint, which alleged constitutional

violations arising from the Villageʹs denial of plaintiffsʹ application to subdivide certain
                                            ‐2‐
real property, for lack of subject matter jurisdiction and failure to state a claim upon

which relief may be granted. We assume the partiesʹ familiarity with the underlying

facts, procedural history, and issues on appeal.

              We review de novo a district courtʹs dismissal of a complaint for lack of

subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), Sunrise

Detox V, LLC v. City of White Plains, 769 F.3d 118, 121 (2d Cir. 2014), and for failure to

state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), Sherman v. Town of

Chester, 752 F.3d 554, 560 (2d Cir. 2014). Upon such review, we conclude that the

district court properly granted defendantsʹ motions to dismiss for substantially the

reasons set forth in its September 26, 2018 decision and order.

              First, plaintiffsʹ federal constitutional claims are not ripe for adjudication.

Under the two‐pronged test for determining whether a takings claim is ripe, which has

also been applied to due process, equal protection, First Amendment, and

discrimination claims in the context of land‐use disputes, a plaintiff must first show that

the government entity charged with enforcing the regulations at issue has rendered a

final decision. Williamson Cty. Regʹl Planning Commʹn v. Hamilton Bank of Johnson City,

473 U.S. 172, 186‐87 (1985) (takings); see also Southview Assocs., Ltd. v. Bongartz, 980 F.2d

84, 96‐97 (2d Cir. 1992) (substantive due process); Murphy v. New Milford Zoning

Commʹn, 402 F.3d 342, 352 (2d Cir. 2005) (First Amendment); Kurtz v. Verizon New York,

Inc., 758 F.3d 506, 516 (2d Cir. 2014) (procedural due process); Sunrise Detox V, LLC, 769


                                             ‐3‐
F.3d at 122 (discrimination).1 Here, plaintiffs essentially concede that the Village has

not rendered a final decision on their subdivision application as they contend that they

are excepted from seeking a final determination because doing so would be futile. We

disagree. Plaintiffs fail to allege facts demonstrating that the defendants had ʺdug in

[their] heels and made clear that all such applications will be denied.ʺ Sherman, 752 F.3d

at 561 (internal quotation marks omitted). Indeed, as the district court noted, the

complaint does not allege that plaintiffs had applied for a variance from the new zoning

regulation or that the Village lacked discretion to grant a variance. Moreover, the

complaint alleges that the zoning dispute was resolved in January 2015 with plaintiffs

agreeing to reduce the number of subdivisions in their application. Accordingly, we

conclude that plaintiffsʹ federal constitutional claims are premature.

              Second, Simao lacks standing to pursue his First Amendment retaliation

claim because, absent a direct individual injury, a companyʹs member lacks standing to

sue for an injury to the company. See Jones v. Niagara Frontier Transp. Auth., 836 F.2d

731, 736 (2d Cir. 1987) (although a shareholder may be personally aggrieved or suffer

financial loss as a result of injuries to a corporation, ʺ[a] shareholder ‐‐ even the sole

shareholder ‐‐ does not have standing to assert claims alleging wrongs to the

corporationʺ). Therefore, because Simaoʹs emotional distress and legal expenses



1       Because defendants removed plaintiffsʹ takings claim from state court to federal court,
the second prong of the ripeness inquiry requiring state compensation is waived, Sherman, 752
F.3d at 563‐64, and thus we need not consider its applicability here.
                                              ‐4‐
indirectly stem from the alleged harm to Liberty, the owner of the land at issue, and

because he does not allege an injury independent of Libertyʹs injuries, Simao does not

have standing to assert his retaliation claim.

               Third, the district court properly dismissed plaintiffsʹ claims against

CMBK on the ground that the complaint fails to plausibly allege that CMBK is a state

actor. Indeed, in the trial court, plaintiffs conceded that the complaint failed to allege

that CMBK was a state actor, as it acknowledged that the question ʺcannot be

determined upon the Pleadings,ʺ and instead it argued that discovery was required to

determine the extent of CMBKʹs collaboration with the Village. Appʹx at 80 (quoting

Docket No. 13 at 18). We, however, do not ʺunlock the doors of discovery for a plaintiff

armed with nothing more than conclusions.ʺ Ashcroft v. Iqbal, 556 U.S. 662, 678‐79

(2009). We therefore conclude that plaintiffsʹ claims against CMBK fail as a matter of

law. See Ciambriello v. Cty. of Nassau, 292 F.3d 307, 324 (2d Cir. 2002) (ʺA merely

conclusory allegation that a private entity acted in concert with a state actor does not

suffice to state a [42 U.S.C.] § 1983 claim against the private entity.ʺ).2

               Finally, with the exception of plaintiffsʹ state claims against CMBK, the

district court declined to exercise supplemental jurisdiction over their state



2      We decline to consider plaintiffsʹ allegation that CMBK is responsible for the actions of
its employee under the theory of respondeat superior as it was raised for the first time on
appeal. See Greene v. United States, 13 F.3d 577, 586 (2d Cir. 1994) (ʺ[I]t is a well‐established
general rule that an appellate court will not consider an issue raised for the first time on
appeal.ʺ).
                                               ‐5‐
constitutional claims. As we have affirmed the dismissal of plaintiffsʹ federal law

claims, we agree that the district court did not err in declining to exercise jurisdiction

over the remaining state law claims. See Cohen v. Postal Holdings, LLC, 873 F.3d 394, 399

(2d Cir. 2017) (ʺ[W]hen a district court correctly dismisses all federal claims for lack of

subject‐matter jurisdiction pursuant to Rule 12(b)(1), the district court is thereby

precluded from exercising supplemental jurisdiction over related state‐law claims.ʺ);

Delaney v. Bank of Am. Corp., 766 F.3d 163, 170 (2d Cir. 2014) (per curiam) (ʺIn general,

where the federal claims are dismissed before trial, the state claims should be dismissed

as well.ʺ (internal quotation marks omitted)). As to the state constitutional claims

against CMBK, we agree that the district court properly dismissed those claims for

substantially the reasons set forth in its decision.

                                          *    *    *

              We have considered plaintiffsʹ remaining arguments and conclude they

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

                                           FOR THE COURT:
                                           Catherine OʹHagan Wolfe, Clerk




                                              ‐6‐
