13-136
Duran v. Kiley
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 26th day of November, two thousand thirteen.
5
6 PRESENT: AMALYA L. KEARSE,
7 DENNIS JACOBS,
8 CHESTER J. STRAUB,
9 Circuit Judges.
10
11 - - - - - - - - - - - - - - - - - - - -X
12 TIMOTHY C. DURAN,
13
14 Plaintiff-Appellant,
15
16 -v.- No. 13-136
17
18 KEVIN J. KILEY, KILEY, KILEY & KILEY,
19 PLLC, GARY J. DMOCH d.b.a. GARY JOHN
20 DMOCH & ASSOCIATES,
21
22 Defendants-Appellees.*
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*
The Clerk of Court is respectfully directed to amend
the official caption in this case to conform with the
caption above.
1
1
2 FOR PLAINTIFF-APPELLANT: TIMOTHY C. DURAN, pro se, San
3 Jose, CA.
4
5 FOR DEFENDANTS-APPELLEES: No appearance.
6
7 Appeal from a judgment and order of the United States
8 District Court for the Southern District of New York
9 (McMahon, J.).
10
11 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
12 AND DECREED that the judgment and order of the district
13 court be AFFIRMED.
14
15 Timothy C. Duran, pro se, appeals from the district
16 court’s (1) judgment sua sponte dismissing his complaint as
17 barred by res judicata and collateral estoppel and (2) order
18 imposing a filing injunction and denying his motion to
19 correct the judgment. We assume the parties’ familiarity
20 with the underlying facts, the procedural history of the
21 case, and the issues on appeal.
22 A district court has the inherent authority to dismiss
23 a complaint as frivolous, even if the plaintiff pays a
24 filing fee. See Fitzgerald v. First E. Seventh St. Tenants
25 Corp., 221 F.3d 362, 363–64 (2d Cir. 2000). An action is
26 frivolous “where it lacks an arguable basis either in law or
27 in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
28 “Under the doctrine of res judicata, or claim
29 preclusion, a final judgment on the merits of an action
30 precludes the parties or their privies from relitigating
31 issues that were or could have been raised in that action.”
2
1 Proctor v. LeClaire, 715 F.3d 402, 411 (2d Cir. 2013)
2 (internal quotation marks and brackets omitted).
3 As the district court concluded, Duran’s complaint is
4 barred by res judicata. The settlement in the earlier
5 litigation was embodied in a final judgment on the merits.
6 See Greenberg v. Bd. of Governors of Fed. Reserve Sys., 968
7 F.2d 164, 168 (2d Cir. 1992) (“Settlements may also have
8 preclusive effect.”). The present complaint raises anew
9 issues that Duran previously raised; and the relationship is
10 sufficiently close between the defendants in the earlier
11 litigation and the defendants in the instant case. See,
12 e.g., Cent. Hudson Gas & Elec. Corp. v. Empresa Naviera
13 Santa S.A., 56 F.3d 359, 367-68 (2d Cir. 1995) (“[T]he
14 principle of privity bars relitigation of the same cause of
15 action against a new defendant known by a plaintiff at the
16 time of the first suit where the new defendant has a
17 sufficiently close relationship to the original defendant to
18 justify preclusion.”). The district court did not err in
19 refusing to allow Duran to amend, as amendment would have
20 been futile in light of the preclusive effect of the prior
21 litigation. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d
22 Cir. 2000).
23 “A district court may, in its discretion, impose
24 sanctions against litigants who abuse the judicial process.”
3
1 Shafii v. British Airways, PLC, 83 F.3d 566, 571 (2d Cir.
2 1996). “[I]n determining whether or not to restrict a
3 litigant’s future access to the courts” through a filing
4 injunction, the court “should consider the following
5 factors: (1) the litigant’s history of litigation and in
6 particular whether it entailed vexatious, harassing or
7 duplicative lawsuits; (2) the litigant’s motive in pursuing
8 the litigation, e.g., does the litigant have an objective
9 good faith expectation of prevailing?; (3) whether the
10 litigant is represented by counsel; (4) whether the litigant
11 has caused needless expense to other parties or has posed an
12 unnecessary burden on the courts and their personnel; and
13 (5) whether other sanctions would be adequate to protect the
14 courts and other parties.” See Safir v. U.S. Lines, Inc.,
15 792 F.2d 19, 24 (2d Cir. 1986). Before a filing injunction
16 is imposed, however, a litigant must be provided notice and
17 an opportunity to be heard. See Moates v. Barkley, 147 F.3d
18 207, 208 (2d Cir. 1998). We review an order imposing a
19 filing injunction for abuse of discretion. See Gollomp v.
20 Spitzer, 568 F.3d 355, 368 (2d Cir. 2009); United States v.
21 Int’l Bhd. of Teamsters, 266 F.3d 45, 49 (2d Cir. 2001); see
22 also Robert v. Dep’t of Justice, 439 F. App’x 32, 34 (2d
23 Cir. 2011) (summary order) (drawing same conclusion from
24 Gollomp and Int’l Bhd. of Teamsters).
4
1 The district court did not abuse discretion in imposing
2 the filing injunction. As the record demonstrates: (1) the
3 district court notified Duran of the possible injunction and
4 provided him with an opportunity to respond; (2) Duran filed
5 four other actions in connection with the same condominium
6 construction project; and (3) Duran is prevented only from
7 filing future complaints in the Southern District of New
8 York related to that same condominium construction project,
9 cf. Safir, 792 F.2d at 25 (injunction precluding a litigant
10 from “instituting any action whatsoever” was “overly
11 broad”).
12 Finally, Duran was not prejudiced by any reference to
13 28 U.S.C. § 1915(a)(3) in the district court’s judgment.
14 Duran did not move for in forma pauperis status in the
15 district court and has not done so on appeal.
16 We have considered Duran’s remaining arguments and
17 conclude that they are without merit. The judgment and
18 order of the district court are hereby affirmed.
19
20 FOR THE COURT:
21 CATHERINE O’HAGAN WOLFE, CLERK
22
5