16-2382-cv
Nestle Waters North America, Inc. v. City of New York, et al.

                           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 2nd day of May, two thousand seventeen.

PRESENT:          AMALYA L. KEARSE,
                  GUIDO CALABRESI,
                  JOSÉ A. CABRANES,
                               Circuit Judges.


NESTLE WATERS NORTH AMERICA, INC.,

                          Plaintiff-Appellant,                              16-2382-cv

                          v.

CITY OF NEW YORK, NEW YORK CITY DEPARTMENT
OF FINANCE,

                          Defendants-Appellees.*



FOR PLAINTIFF-APPELLANT:                                        DAVID M. SCHWARTZ, Gerstman,
                                                                Schwartz & Malito, LLP, Garden City,
                                                                NY.




    *
        The Clerk of Court is directed to amend the caption as set forth.

                                                       1
FOR DEFENDANTS-APPELLEES:                                    JEREMY W. SHWEDER (Devin Slack, on the
                                                             brief) for Zachary W. Carter, Corp.
                                                             Counsel of the City of New York, New
                                                             York, NY.


     Appeal from the judgment of the United States District Court for the Southern District of
New York (Andrew L. Carter, Jr., Judge).

     UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

        Plaintiff-appellant Nestle Waters North America, Inc. (“Nestle”) appeals the June 8, 2016
judgment of the district court, dismissing Nestle’s procedural and substantive due process claims
and declining to exercise supplemental jurisdiction over a state law claim for unjust enrichment. On
appeal, Nestle argues that the City of New York and the Department of Finance of the City of New
York (“City”) maintained an unlawful and deliberate policy of issuing and enforcing jurisdictionally
defective parking summonses in contravention of Vehicle and Traffic Law (“VTL”) § 238(2).1
Nestle asserts that this policy violated its procedural and substantive due process rights and brings
claims pursuant to 42 U.S.C. §§ 1983 and 1988. It also brings a state law claim of unjust enrichment.
For the reasons set forth in the district court’s well-reasoned opinion, we find these arguments to be
without merit. We assume the parties’ familiarity with the underlying facts, procedural history of the
case, and issues on appeal.

                                                   ***

         We review de novo an order granting a motion to dismiss for failure to state a claim upon
which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). See, e.g., Harris v.
Mills, 572 F.3d 66, 71 (2d Cir. 2009). The complaint must plead “enough facts to state a claim to
relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). All
reasonable inferences are drawn in favor of the plaintiff and all factual allegations are viewed in the
light most favorable to the plaintiff. See, e.g., Chase Group Alliance LLC v. City of New York Dept. of
Finance, 620 F.3d 146, 150 (2d Cir. 2010).


    1
       VTL § 238(2) requires mandatory five elements to be listed on a summons: plate designation,
plate type, expiration date of registration, make or model of vehicle, and body type of vehicle. An
exact description of a license plate type must be denoted on the summons. See Ryder Truck Rental, Inc.
v. Parking Violations Bureau of Transp. Admin. Of City of New York, 62 N.Y.2d 667 (1984); see also Wheels,
Inc. v. Parking Violations Bureau of Dept. of Transp. Of City of N.Y., 185 A.D.2d 110 (1st Dep’t 1992),
aff’d 80 N.Y.2d 1014 (1992) (“We now amplify that decision and hold that a misdescription of any of
the five mandatory identification elements also mandates dismissal.”).

                                                    2
        First, we hold that the district court properly dismissed Nestle’s procedural due process
claim. The primary question is whether the form of review afforded through the Parking Violations
Bureau (“PVB”) administrative processes and Article 78 proceedings in New York State is adequate
for due process purposes. To determine what process is due, the courts must balance the three
factors set forth in Mathews v. Eldridge, 424 U.S. 319, 335 (1976). In the instant case, the PVB/Article
78 review procedures clearly satisfy the requirements of procedural due process. The most
persuasive fact is that Nestle successfully overturned 38 summonses through the PVB/Article 78
review procedures. It now alleges that the very procedure that previously vindicated its rights is now
constitutionally defective. Accordingly, we conclude the district court appropriately dismissed
Nestle’s procedural due process claim.

         Second, we also reject Nestle’s substantive due process claim that the City’s policy of noting
“IRB” on its parking summonses was so perverted as to rise to the level of a deprivation of
constitutional rights. “Substantive due process standards are violated only by conduct that is so
outrageously arbitrary as to constitute a gross abuse of governmental authority.” Natale v. Town of
Ridgefield, 170 F.3d 258, 263 (2d Cir. 1999). Substantive due process does not entitle federal courts to
examine every alleged violation of state law. See Cunney v. Board of Trustees of Village of Grand View, New
York, 660 F. 3d 612, 626 (2d Cir. 2011) (“Substantive due process protects against government
action that is arbitrary, conscience-shocking, or oppressive in a constitutional sense, but not against
government action that is incorrect or ill-advised.”(internal quotation marks and citations omitted)).
Accordingly, we are not persuaded that the City’s alleged policy of issuing deliberately jurisdictionally
defective parking summonses was an ultra vires act that violated Nestle’s due process rights.

         Finally, the district court was well within its discretion to decline to exercise supplementary
jurisdiction over the state law claim of unjust enrichment. “Once a district court's discretion is
triggered under § 1367(c)(3), it balances the traditional values of judicial economy, convenience,
fairness, and comity, in deciding whether to exercise jurisdiction.” Kalari v. N.Y.-Presbyterian Hasp.,
455 F.3d 118, 122 (2d Cir. 2006) (citations and internal quotation marks omitted). We typically
afford great deference to the district court’s decision whether to exercise supplemental jurisdiction
and continue to apply that deference here.

                                            CONCLUSION

        We have considered all of appellant’s claims on appeal and found them to be without merit.
For the foregoing reasons, the judgment of the District Court is AFFIRMED.

                                                         FOR THE COURT:
                                                         Catherine O’Hagan Wolfe, Clerk




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