15-4-cv
Houdet v. Brewer


                          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.

      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 7th day of January, two thousand sixteen.

PRESENT: REENA RAGGI,
                 RICHARD C. WESLEY,
                 CHRISTOPHER F. DRONEY,
                                 Circuit Judges.
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STEPHANE HOUDET, ALAN JOEL RICH,
                                 Plaintiffs-Appellants,

                        v.                                                No. 15-4-cv

DAVID BREWER, DAVID SCHOBEL, UNITED
STATES TENNIS ASSOCIATION, JEREMIAH
YOLKUT, DANIEL MALASKY, HARLAN STONE,
CHRIS WIDMAIER, GORDON SMITH, JOHN AND
JANE DOE (employees, agents and servants of Defendant
USTA whose names are unknown),
                                 Defendants-Appellees.
----------------------------------------------------------------------

Appearing for Appellant:                         ALAN JOEL RICH, Esq., Brooklyn, New York
                                                 (Stephen Bergstein, Bergstein & Ullrich, LLP,
                                                 Chester, New York, on the brief).


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Appearing for Appellees:                  Jeffrey Ian Carton (Joanna Frances Sandolo, on
                                          the brief), Denlea & Carton LLP, White Plains,
                                          New York.

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

of New York (Frederic Block, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on December 4, 2014, is AFFIRMED.

       Plaintiffs Stephane Houdet and Alan Joel Rich, who sue the United States Tennis

Association (“USTA”) and certain of its employees for disability discrimination and

retaliation in violation of federal and state law, see Americans with Disabilities Act of

1990, Pub. L. No. 101-336, 104 Stat. 327, codified as amended at 42 U.S.C. §§ 12101–

12213; New York State Human Rights Law, N.Y. Exec. Law §§ 290–301, here appeal

from the dismissal of their claims on the grounds of res judicata. See Houdet v. United

States Tennis Ass’n, No. 13-CV-5131 FB LB, 2014 WL 6804109, at *1 (E.D.N.Y. Dec. 3,

2014) (finding preclusive Houdet v. United States Tennis Ass’n, No. 22704/2009 (N.Y.

Sup. Ct. Aug. 13, 2013) (granting summary judgment to USTA)). We assume the parties’

familiarity with the facts and the record of prior proceedings, which we reference only as

necessary to explain our decision to affirm.

       The application of res judicata is a matter of law that we review de novo. See EDP

Med. Comput. Sys., Inc. v. United States, 480 F.3d 621, 624 (2d Cir. 2007). “Under the

doctrine of res judicata, or claim preclusion, ‘[a] final judgment on the merits of an action


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precludes the parties or their privies from relitigating issues that were or could have been

raised in that action.’” St. Pierre v. Dyer, 208 F.3d 394, 399 (2d Cir. 2000) (alteration in

original) (quoting Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981)).

Plaintiffs argue that res judicata does not apply here because the cited state court decision

reached claims that were not raised in that action and that plaintiffs did not have a full and

fair opportunity to litigate. Further, plaintiffs argue that, insofar as the state court granted

judgment for USTA’s actions up to 2009, that should not bar claims of discrimination and

retaliation for actions after 2009. Plaintiffs failed not only to raise these arguments before

the district court, but also to file any opposition at all to defendants’ motion to dismiss,

despite receiving no less than four extensions. We have held repeatedly that an argument

not raised before the district court is forfeited on appeal. See, e.g., New York ex rel.

Schneiderman v. Actavis PLC, 787 F.3d 638, 662 (2d Cir. 2015); Zalaski v. City of

Hartford, 723 F.3d 382, 395 (2d Cir. 2013). While “we may . . . exercise our discretion to

consider an issue raised for the first time on appeal where the argument presents a question

of law and there is no need for additional fact-finding,” Cortlandt St. Recovery Corp. v.

Hellas Telecomms., S.À.R.L., 790 F.3d 411, 422 (2d Cir. 2015) (internal quotation marks

omitted), plaintiffs have offered no compelling reason for us to do so. Indeed, their failure

to comply with this court’s procedures in a timely fashion—for which they have already

had their appeal dismissed and reinstated, and then lost the opportunity to file a reply

brief—leaves us ill-inclined to do so.


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      Accordingly, we hold that plaintiffs have forfeited their right to appeal the district

court’s dismissal of their complaint. The judgment of the district court is AFFIRMED.

                                  FOR THE COURT:
                                  CATHERINE O’HAGAN WOLFE, Clerk of Court




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