     18-751-cv
     Hsin v. City of New York

                                   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 TO 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 the
 2   Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
 3   13th day of June, two thousand nineteen.
 4
 5   Present:
 6               DENNIS JACOBS,
 7               GERARD E. LYNCH,
 8                     Circuit Judges,
 9               JANET C. HALL,*
10                     District Judge.
11   ___________________________________________
12
13   HENRY HANG HSIN, CHENG WEI-HSIN, 43 162 ST.
14   MANAGEMENT, INC., 162 REALTY MANAGEMENT,
15   LLC, LALUDIA MANAGEMENT, INC., MACRUSO
16   MANAGEMENT, INC., E & V CONTROL
17   MANAGEMENT, INC., AND A & J CONSULTING
18   MANAGEMENT, INC.,
19
20                                Plaintiffs-Appellants,
21
22                      v.                                                                         18-751
23
24   THE CITY OF NEW YORK, RICK D. CHANDLER,
25   DENNIS BURKART, PETER SUN, NORMAN HO, D.
26   ERIC HOYT, MUHAMMAD IMRAN, AND MASSIMO
27   DABUSCO,
28
29                                Defendants-Appellees,
30
31
32


             *
                 Judge Janet C. Hall, United States District Court for the District of Connecticut, sitting by designation.
 1   JOHN/JANE DOES, NOS. 1-10,
 2
 3                     Defendants.**
 4   ___________________________________________
 5
 6   For Plaintiffs-Appellants:                           Daniel J. Schneider, Farber Schneider Ferrari LLP,
 7                                                        New York, NY (Christopher M. Slowik, Klein
 8                                                        Slowik PLLC, New York, NY, on the brief).
 9
10   For Defendants-Appellees:                            Antonella Karlin, Assistant Corporation Counsel
11                                                        (Richard Dearing and Kathy Chang Park, on the
12                                                        brief) for Zachary W. Carter, Corporation Counsel
13                                                        of the City of New York, New York, NY.
14
15          Appeal from a judgment of the United States District Court for the Eastern District of New

16   York (Allyne Ross, Judge).

17          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

18   DECREED that the judgment of the district court is AFFIRMED.

19

20          Plaintiffs Henry Hang Hsin, Cheng Wei-Hsin, 43 162 St. Management, Inc., 162 Realty

21   Management, LLC, Laludia Management, Inc., Macruso Management, Inc., E & V Control

22   Management, Inc., and A & J Consulting Management, Inc. (collectively, “the Hsin plaintiffs”)

23   are Asian-American property developers and real estate companies. The Hsin plaintiffs brought

24   this lawsuit against the City of New York (“the City”), Assistant Chief Inspector Dennis Burkart

25   (“Burkart”), and several of Burkart’s colleagues at the Department of Buildings (“DOB”),

26   alleging that the defendants selectively enforced the City’s building codes on the basis of race.

27   The Hsin plaintiffs raised claims under the Equal Protection Clause, the Due Process Clause,

28   section 1981 of title 42 of the United States Code, the Monell doctrine, and New York tax law.




            **
                 The Clerk of Court is directed to amend the caption as shown above.

                                                              2
1    The United States District Court for the Eastern District of New York (Ross, J.) dismissed with

 2   prejudice the Hsin plaintiffs’ federal causes of action under Federal Rule of Civil Procedure

 3   12(b)(6), and it declined to exercise supplemental jurisdiction over the remaining state claim.

 4   The Hsin plaintiffs now appeal.

 5          Their appeal was heard in tandem with Hu v. City of New York, Case No. 18-737-cv, a

 6   related but not consolidated action brought by an Asian-American construction worker and

 7   Asian-American-owned construction companies (“the Hu plaintiffs”). The Hu plaintiffs and the

8    Hsin plaintiffs filed nearly identical Amended Complaints, and they raise the same issues on

 9   appeal. We resolve the Hu appeal in a separate Opinion filed simultaneously with this Summary

10   Order. We presume the parties’ familiarity with the facts and procedural history of this case, as

11   well as with the issues on appeal.

12          We review de novo a district court’s dismissal of a complaint under Rule 12(b)(6).

13   Carpenters Pension Tr. Fund of St. Louis v. Barclays PLC, 750 F.3d 227, 232 (2d Cir. 2014).

14   For the purposes of such a review, “this Court must accept as true all allegations in the complaint

15   and draw all reasonable inferences in favor of the non-moving party.” Matson v. Bd. of Educ. of

16   City Sch. Dist. of New York, 631 F.3d 57, 63 (2d Cir. 2011) (internal quotation marks omitted).

17   Nevertheless, a complaint must “contain sufficient factual matter, accepted as true, to state a

18   claim to relief that is plausible on its face.” Id. “A claim is facially plausible when the plaintiff

19   pleads factual content that allows the court to draw the reasonable inference that the defendant is

20   liable for the misconduct alleged.” Progressive Credit Union v. City of New York, 889 F.3d 40,

21   48 (2d Cir. 2018) (internal quotation marks omitted).




                                                       3
1             The Hsin plaintiffs’ Equal Protection claim proceeds under the theory of LeClair v.

2    Saunders, 627 F.2d 606 (2d Cir. 1980).1 To prevail on such a claim, a plaintiff must prove that

3    “(1) the person, compared with others similarly situated, was selectively treated, and (2) the

4    selective treatment was motivated by an intention to discriminate on the basis of impermissible

5    considerations, such as race or religion, to punish or inhibit the exercise of constitutional rights,

6    or by a malicious or bad faith intent to injure the person.” Zahra v. Town of Southold, 48 F.3d

7    674, 683 (2d Cir. 1995) (quoting FSK Drug Corp. v. Perales, 960 F.2d 6, 10 (2d Cir. 1992)).

8    The District Court dismissed the Hsin plaintiffs’ LeClair claim for failure to plausibly allege a

9    similarly situated comparator that was treated differently by the defendants. Our Opinion in the

10   Hu action sets forth the similarity standard for a LeClair selective enforcement claim. To satisfy

11   this standard, the Hsin plaintiffs must plausibly allege facts showing a “reasonably close

12   resemblance” between themselves and a proffered comparator. Graham v. Long Island R.R., 230

13   F.3d 34, 40 (2d Cir. 2000).

14            The Hsin plaintiffs and the Hu plaintiffs rely on the same four comparisons, namely:

15   (1) comparisons between white workers and Asian workers at the 34th Avenue Jobsite;

16   (2) comparisons between a non-Asian construction company at the West 22nd Jobsite and Asian

17   construction professionals at the College Point Jobsite; (3) comparisons between a non-Asian

18   subcontractor and an Asian general contractor at the 43-05 162nd Street Jobsite; and (4) a

19   statistical comparison between Burkart and other DOB inspectors that suggests that Burkart

20   sanctioned Asians at higher rates than his colleagues did. We discuss these comparators in detail

21   in the Hu Opinion, concluding that the 34th Avenue Jobsite raises a plausible inference that the



              1
                While the Hsin plaintiffs only alleged a LeClair claim for race-based discrimination, the Hu plaintiffs
     brought their Equal Protection claims under both the theory of LeClair and the class of one theory set forth in
     Village of Willowbrook v. Olech, 528 U.S. 562 (2000).
                                                               4
1    defendants treated the Hu plaintiffs less favorably than another similarly situated. In contrast, we

2    conclude in this Summary Order that none of the comparators plausibly support the Hsin

3    plaintiffs’ LeClair claim for race-based selective enforcement.

4           With respect to the first two proffered comparators, the Hsin plaintiffs do not allege that

5    they worked at or were otherwise involved with the 34th Avenue Jobsite or the College Point

6    Jobsite. To prevail on their Equal Protection claim, however, the Hsin plaintiffs must allege

7    specific instances in which they themselves were treated differently than another similarly

8    situated. See Albert v. Carovano, 851 F.2d 561, 573 (2d Cir. 1988) (“To support a claim of

9    selective enforcement, appellants must allege purposeful and systematic discrimination by

10   specifying instances in which they were singled out for unlawful oppression in contrast to others

11   similarly situated.” (internal quotation marks and alterations omitted, emphasis omitted)). Thus,

12   because the first two proffered comparators do not implicate the Hsin plaintiffs in any way, they

13   cannot satisfy the similarity requirements for the Hsin plaintiffs’ Equal Protection claim.

14          The third proffered comparator fails because the Hsin plaintiffs make no attempt to draw

15   comparisons between themselves and this comparator. Specifically, the Amended Complaint

16   alleges that 43 162 Management, a plaintiff in the Hsin action, was the owner of the 43-05 162nd

17   Street Jobsite. The Hsin plaintiffs further allege that Burkart permitted work at this location to

18   continue when Vera Construction, a non-Asian company, was responsible for the construction

19   site, but that Burkart stopped all work on the jobsite once Vera Construction completed its work

20   and 43 162 Management took over responsibility for the site as its general contractor. However,

21   the Hsin plaintiffs do not allege facts suggesting that 43 162 Management, as the general

22   contractor and owner of the property, was similarly situated to Vera Construction, a company




                                                      5
 1   contracted to do foundation work at the jobsite. Instead, the Amended Complaint oddly draws

 2   comparisons between Vera Construction and the Hu plaintiffs.

 3            Finally, the Hsin plaintiffs cannot rest their LeClair claim on statistics comparing

 4   Burkart’s enforcement practices to those of his colleagues. As we explained in the Hu Opinion,

 5   statistics alone cannot satisfy the similarly situated requirement for an Equal Protection claim for

 6   selective enforcement. See Albert, 851 F.2d at 573 (holding that a plaintiff’s selective

 7   enforcement claim must “specify[ ] instances” in which they have been treated differently from

 8   “others similarly situated”); see also Ruston v. Town Bd. for Town of Skaneateles, 610 F.3d 55,

 9   59 (2d Cir. 2010) (dismissing a class of one Equal Protection claim for failure to “allege specific

10   examples” of similarly situated comparators).

11            We therefore affirm the District Court’s dismissal of the Hsin plaintiffs’ Equal Protection

12   claim, concluding that none of the Hsin plaintiffs’ proffered comparators satisfy the similarity

13   standard for a LeClair cause of action. The Hsin plaintiffs’ failure to plausibly allege a similarly

14   situated comparator is also fatal to their section 1981 claim because “plaintiffs must meet the

15   same pleading standard for their § 1981 claims as for their § 1983 claims under the Equal

16   Protection Clause.”2 Brown v. City of Oneonta, New York, 221 F.3d 329, 339 (2d Cir. 2000).

17   Accordingly, we affirm the District Court’s dismissal of the Hsin plaintiffs’ section 1981 claim

18   for race-based interference with their right to make and enforce contracts.

19            For the reasons set forth in the Hu Opinion, we also affirm the District Court’s dismissal

20   of the Hsin plaintiffs’ Due Process claim and Monell claim. We further conclude that the court

21   below did not abuse its discretion in dismissing the Hsin plaintiffs’ federal claims with prejudice,




              2
                As we explain in our Opinion in the Hu action, the similarity standard for a LeClair claim is identical to
     the similarity standard for a section 1981 claim.
                                                                6
 1   as the Hsin plaintiffs never sought leave from the District Court to amend their Amended

 2   Complaint. See Horoshko v. Citibank, N.A., 373 F.3d 248, 249–50 (2d Cir. 2004) (“[The]

 3   contention that the District Court abused its discretion in not permitting an amendment that was

 4   never requested is frivolous.”). As for the Hsin plaintiffs’ argument that the District Court

 5   abused its discretion by declining to exercise supplemental jurisdiction over their state law claim,

 6   we find that this argument is without merit. The District Court dismissed the Amended

 7   Complaint well before trial, and we see no reason to depart from the general rule that, “where the

 8   federal claims are dismissed before trial, the state claims should be dismissed as well.” New

 9   York Mercantile Exch., Inc. v. IntercontinentalExchange, Inc., 497 F.3d 109, 119 (2d Cir. 2007).

10   For the reasons set forth in the Hu Opinion, we conclude that the Hsin plaintiffs’ remaining

11   arguments are also meritless. Accordingly, the judgment of the District Court is hereby

12   AFFIRMED.

13                                                 FOR THE COURT:
14                                                 Catherine O’Hagan Wolfe, Clerk




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