         09-2868-cv
         Prasad v. City of New York


                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                                 SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX 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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 22 nd day of March, two thousand ten.
 5
 6       PRESENT: ROBERT D. SACK,
 7                RICHARD C. WESLEY,
 8                         Circuit Judges,
 9                RICHARD K. EATON, *
10                         Judge.
11
12
13       BRAHAM PRASAD, MUMBAI, INC.,
14
15                                       Plaintiffs-Appellants,
16
17                       -v.-                                                           09-2868-cv
18
19       CITY OF NEW YORK, MICHAEL WEINBERGER,
20
21                                       Defendants-Appellees,
22
23       THOMAS LAUTERBORN, DENNIS DEQUARTRO,
24       BERNADETTE ENCHAUTEQUI, BETH GALTON,
25       FRED PHELPS, RON HOLMES, JOHN DOES I - V,
26
27                                       Defendants. **
28


                 *
                 The Honorable Richard K. Eaton, of the United States Court of
         International Trade, sitting by designation.

                 **
                  The Clerk of the Court is respectfully directed to amend the official
         caption as set forth above.
 1   FOR APPELLANTS:                    AMBROSE W. WOTORSON,
 2                                      Brooklyn, New York.
 3
 4   FOR APPELLEE CITY OF NEW YORK:     RONALD E. STERNBERG, Of
 5                                      Counsel (Leonard Koerner,
 6                                      Diana M. Murray, Of Counsel
 7                                      on the brief) for Michael
 8                                      A. Cardozo, Corporation
 9                                      Counsel of the City of New
10                                      York, New York, New York.
11
12   FOR APPELLEE WEINBERGER:           TRACY MELINDA PETERSON,
13                                      Braverman & Associates, New
14                                      York, New York.
15
16        Appeal from a judgment of the United States District
17   Court for the Southern District of New York (Crotty, J.).
18
19       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

20   AND DECREED that the judgment of the United States District

21   Court for the Southern District of New York be AFFIRMED.

22       Appellants appeal from the April 24, 2009 memorandum

23   and order and the June 2, 2009 judgment of the United States

24   District Court for the Southern District of New York

25   (Crotty, J.), granting appellees’ motion to dismiss the

26   amended complaint in its entirety and denying leave to

27   further amend the complaint.     We assume the parties’

28   familiarity with the underlying facts, the procedural

29   history, and the issues presented for review.

30       Mumbai, Inc. was a venue located in Manhattan and owned

31   by Braham Prasad.   As described by appellants, Mumbai


                                    2
1    “operated as a cultural arts center” and served as a

2    “popular nightclub.”   According to appellants, Mumbai

3    “catered to minorities.”   The nightclub closed following the

4    revocation of its liquor license by the New York State

5    Liquor Authority.   Appellee Michael Weinberger is a private

6    person who lived in the vicinity of Mumbai.   Appellants

7    brought suit against the City of New York, individually

8    named members of the New York City Police Department, 1

9    Weinberger, and several other individually named private

10   persons 2 who lived in the neighborhood where Mumbai was

11   located.

12       Appellants allege that the revocation of their liquor

13   license, among other actions taken against them, was the

         1
           The officers of the New York City Police Department
     who are named in their individual capacities were never
     served with process in this action. Appellants do not
     dispute this point. Accordingly, the claims against these
     defendants were subject to dismissal. Fed. R. Civ. P. 4(m).
     In any event, we agree with the district court that
     appellants’ claims against the individual officers lack
     merit for the same reasons that the claims against the City
     of New York fail.
         2
           Similarly, the individual neighbor defendants were
     never served with process in this action and appellants do
     not assert otherwise. Therefore, the claims against these
     defendants were also subject to dismissal pursuant to
     Federal Rule of Civil Procedure 4(m). In addition, we agree
     with the district court that the claims against these
     private neighbor defendants fail for the same reasons that
     they fail against appellee Weinberger.

                                   3
1    result of a scheme involving appellees to drive them out of

2    business, which was motivated by discrimination and animus.

3    Appellants seek damages and injunctive relief pursuant to

4    the First, Fourth and Fourteenth Amendments and under 42

5    U.S.C. §§ 1981, 1983, and 1985.

6        Before this Court, appellants maintain that the

7    district court abused its discretion in denying them leave

8    to further amend their complaint.    We review the “denial of

9    a motion for leave to amend for an abuse of discretion.”

10   Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282

11   F.3d 83, 87 (2d Cir. 2002).    Here, appellants were afforded

12   the opportunity to amend their complaint once.    Fed. R. Civ.

13   P. 15(a)(1).   We have held that “[i]t would be a mistake . .

14   . to construe” this Circuit’s precedent “as establishing a

15   broad rule to the effect that, in the case of a counseled

16   plaintiff, abuse of discretion will be found and the case

17   remanded whenever a district court fails to provide for

18   repleading.”   Porat v. Lincoln Towers Cmty. Ass’n, 464 F.3d

19   274, 276 (2d Cir. 2006) (per curiam).    Appellants did not

20   demonstrate that any amendment would cure the defects in

21   their pleading and we find no abuse of discretion in the

22   district court’s decision.    See In re Tamoxifen Citrate


                                    4
1    Antitrust Litig., 466 F.3d 187, 220 (2d Cir. 2006).

2        We review de novo the district court’s dismissal of

3    appellants’ complaint pursuant to Federal Rule of Civil

4    Procedure 12(b)(6).    E.g., Allaire Corp. v. Okumus, 433 F.3d

5    248, 249 (2d Cir. 2006).     To survive a motion to dismiss, a

6    complaint must “state a claim to relief that is plausible on

7    its face.”    Ashcroft v. Iqbal, — U.S. —, 129 S. Ct. 1937,

8    1949 (2009) (internal quotation marks omitted).        “Threadbare

9    recitals of the elements of a cause of action, supported by

10   mere conclusory statements, do not suffice.”     Id.

11       For substantially the reasons stated by the district

12   court, appellants’ claims were properly dismissed.

13   Appellants failed to make out a cause of action for

14   malicious prosecution.     See Washington v. County of

15   Rockland, 373 F.3d 310, 316 (2d Cir. 2004).     Appellants’

16   claim that they were subjected to malicious abuse of process

17   must also fail.    “[S]ection 1983 liability . . . may not be

18   predicated on a claim of malicious abuse of . . . civil

19   process.”    Green v. Mattingly, 585 F.3d 97, 104 (2d Cir.

20   2009) (internal quotation marks omitted).     With respect to

21   appellee Weinberger, his conduct cannot be said to be

22   “fairly attributable to the state.”     Tancredi v. Met. Life


                                     5
1    Ins. Co., 316 F.3d 308, 312 (2d Cir. 2003).

2        Appellants’ claim that their rights under the Equal

3    Protection Clause of the Fourteenth Amendment were violated

4    was properly dismissed.   Appellants’ “conclusory

5    allegation[s] of discrimination . . . without evidentiary

6    support” cannot survive a motion to dismiss.     Rivera-Powell

7    v. N.Y. City Bd. of Elections, 470 F.3d 458, 470 (2d Cir.

8    2006) (internal quotation marks omitted).     Similarly,

9    appellants’ allegation of a conspiracy was properly

10   dismissed as “unsupported, speculative, and conclusory.”

11   Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997)

12   (internal quotation marks omitted).

13       We have considered all of appellants’ remaining

14   arguments and find them to be without merit.     Therefore, for

15   the foregoing reasons, the judgment of the district court is

16   hereby AFFIRMED.

17
18                               FOR THE COURT:
19                               Catherine O’Hagan Wolfe, Clerk
20
21




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