18‐750‐cv Anthes v. Nelson, 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 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 28th day of February, two thousand nineteen.

PRESENT: BARRINGTON D. PARKER, DENNY CHIN, RICHARD J. SULLIVAN, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

LOUIS ANTHES,

Plaintiff‐Appellant,

v. 18‐750‐cv

WILLIAM E. NELSON, NEW YORK UNIVERSITY, NEW YORK UNIVERSITY SCHOOL OF LAW,

Defendants‐Appellees.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

FOR PLAINTIFF‐APPELLANT: Louis Anthes, pro se, Long Beach, California.

FOR DEFENDANTS‐APPELLEES: Susan Deegan Friedfel, Joseph J. DiPalma, Jackson Lewis P.C., White Plains, New York.

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

New York (Carter, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

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

Plaintiff‐appellant Louis Anthes, an attorney appearing pro se, sued

defendants‐appellees New York University (ʺNYUʺ), NYU School of Law, and NYU

Professor William E. Nelson (collectively, ʺDefendantsʺ), asserting nine federal and state

law causes of action arising from his time as an NYU student almost two decades ago.

In his amended complaint (the ʺComplaintʺ), Anthes alleges that Defendants are liable

for his inability to sustain employment and pay back his student loans after graduation.

The district court granted Defendantsʹ motion to dismiss, reasoning that seven of

Anthesʹs claims were untimely and that each claim failed to meet basic pleading

requirements. The district court also denied Anthesʹs motions seeking to vacate its

December 6, 2017 order and for joinder, change of venue, and judicial disqualification.

We assume the partiesʹ familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal.

2 DISCUSSION

Anthes challenges the district courtʹs rulings as to: (1) his motion for

judicial disqualification; (2) Defendantsʹ motion to dismiss; (3) his motions for leave to

amend his complaint and joinder; and (4) his motions for change of venue and to vacate

the district courtʹs December 6, 2017 order.

(1) Motion for Judicial Disqualification

The district court denied Anthesʹs motion for judicial disqualification.

ʺWe review a judgeʹs denial of a recusal motion for abuse of discretion.ʺ United States

v. Yousef,

(2d Cir. 2003). ʺAn abuse of discretion may consist of an

erroneous view of the law, a clearly erroneous assessment of the facts, or a decision that

cannot be located within the range of permissible decisions.ʺ Anderson News, L.L.C. v.

Am. Media, Inc.,

(2d Cir. 2012). Recusal is appropriate where ʺa

reasonable person, knowing all the facts, would question the judgeʹs impartiality.ʺ

Yousef,

(internal quotation marks omitted).

Here, Anthes moved to disqualify the district judge for judicial bias,

alleging six specific grounds. The district court correctly determined that Anthesʹs

motion was meritless because adverse rulings, citations to applicable cases, and

references to Anthes as plaintiff ‐‐ rather than ʺDoctorʺ ‐‐ do not demonstrate bias. See,

e.g., Liteky v. United States,

(1994) (ʺ[J]udicial rulings alone almost never

constitute a valid basis for a bias or partiality motion.ʺ); LoCascio v. United States, 473

(2d Cir. 2007) (finding no abuse of discretion where comment neither

comes from an extrajudicial source nor shows a ʺhigh degree of favoritism or

antagonism as to make fair judgment impossibleʺ (internal quotation marks omitted)).

Accordingly, we affirm the district courtʹs decision for substantially the reasons stated

in its February 28, 2018 opinion and order.1

(2) Motion to Dismiss

The district court granted Defendantsʹ motion to dismiss. ʺWe review

the grant of a motion to dismiss de novo, accepting as true all factual claims in the

complaint and drawing all reasonable inferences in the plaintiffʹs favor.ʺ Fink v. Time

Warner Cable,

, 740‐41 (2d Cir. 2013); see also Deutsche Bank Nat’l Tr. Co. v.

Quicken Loans Inc.,

(2d Cir. 2015) (reviewing application of statute of

limitations at motion to dismiss stage de novo). To survive a Rule 12(b)(6) motion, the

complaint must plead ʺenough facts to state a claim to relief that is plausible on its face.ʺ

Bell Atl. Corp. v. Twombly,

(2007). Although allegations are assumed

to be true, this tenet is ʺinapplicable to legal conclusionsʺ and ʺ[t]hreadbare recitals of

1 For the first time on appeal, Anthes also alleges that the district judge should be recused because he may be biased against Anthes based on Anthesʹs sexual orientation. Anthes provides no evidence of such bias, and identifies no reason to question Judge Carterʹs impartiality. Yousef,

.

4 the elements of a cause of action, supported by mere conclusory statements, do not

suffice.ʺ Ashcroft v. Iqbal,

(2009).2

Upon such review, we conclude that the district court properly granted

Defendantsʹ motion to dismiss. The district court correctly determined that each of

Anthesʹs claims is either time barred or requires dismissal for failure to state a claim.

We therefore affirm for substantially the reasons stated by the district court in its March

12, 2018 memorandum and order.

(3) Motions for Leave to Amend and Joinder

The district court denied Anthesʹs motions for leave to amend his

Complaint to join his spouse and loan service provider. We review a denial of motions

for joinder and leave to amend for abuse of discretion. Kim v. Kimm,

(2d Cir. 2018); Abraham v. Volkswagen of Am., Inc.,

, 251 (2d Cir. 1986).

The district court did not abuse its discretion in denying these motions

because ʺ[l]eave to amend may properly be denied if the amendment would be futile, as

when the proposed new pleading fails to state a claim on which relief can be granted.ʺ

Anderson News,

(internal citations omitted). First, Anthesʹs proposed

second amended complaint fails to state a claim against Defendants on behalf of his

2 The district court properly noted that because Anthes is an attorney licensed in California, ʺhe is not entitled to the special solicitude and latitude courts traditionally afford to pro se litigants.ʺ Appx. at 197 n.1; see also Tracy v. Freshwater,

(2d Cir. 2010) (ʺ[A] lawyer representing himself ordinarily receives no such solicitude at all.ʺ).

5 spouse. While Anthes argues that his spouse is part of the marital community, the two

did not marry until long after Anthesʹs claims against Defendants arose. Second,

Anthes fails to state a cognizable claim on behalf of his spouse against the loan service

provider; the proposed amendment only states that the provider continues to seek

payment from Anthes. Lastly, Anthesʹs proposed amendments fail to cure any of the

Complaintʹs deficiencies. Accordingly, these motions were properly denied as futile.

(4) Motions to Vacate and for Change of Venue

Because the district court properly dismissed Anthesʹs complaint, Anthesʹs

motions to vacate and for a change of venue are moot.

* * *

We have considered Anthesʹs remaining arguments and find them to be

without merit. Accordingly, the judgment of the district court is AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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