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18‐3305
Johnson v. New York University

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
ASUMMARY ORDER@). A PARTY CITING TO 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 31
st
day of January, two thousand
twenty.

PRESENT:
PETER W. HALL,
RICHARD J. SULLIVAN,
JOSEPH F. BIANCO,
Circuit Judges.
_____________________________________

Vandyke Johnson,

Plaintiff‐Appellant,

v. 18‐3305

New York University, New York
University Board of Trustees, Andrew

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Hamilton, in his official and individual
capacity, Cynthia Perez, in her official and
individual capacity, Teresa Gargiulo, in
her official and individual capacity,

Defendants‐Appellees.
_____________________________________

FOR PLAINTIFF‐APPELLANT: Vandyke Johnson, pro se, New York,
NY.

FOR DEFENDANTS‐APPELLEES: William H. Miller, III, Esq., New
York University Office of
General
Counsel, New York, NY.

Appeal from a judgment of the United States District Court for the Southern
District of New York (Caproni, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Vandyke Johnson, a former New York
University student proceeding pro
se, sued the University and several of its employees (hereinafter, referred to
collectively as Defendants‐Appellees “NYU”) under 42 U.S.C. §§ 1981 and 2000d
et seq. (also known as Title VI of the Civil Rights Act) and state law. Johnson
alleged that NYU discriminated against him based
on his race and gender when
they expelled him in 2007 after he was criminally charged with (but acquitted of)

3
grand larceny, and then refused to readmit him in 2017. NYU initially did not
timely respond to the complaint, and the clerk of the district court entered a
certificate of default. On NYU’s motions, the district court vacated the default
and later dismissed the complaint, reasoning that the federal discrimination claims

were time‐barred and failed to state a claim, and declining to exercise
supplemental jurisdiction over the state law claims. Johnson appealed; he
challenges the vacatur of default, the district court’s determinations that his
complaint was time‐barred and failed to state a claim, and the court’s denial of his
motion for leave to file an amended complaint. We assume the parties’
familiarity with the underlying facts, the procedural history, and the issues on
appeal.
I. Vacatur of Entry of Default
A court may set aside the entry of default for “good cause.” Fed. R. Civ. P.
55(c). We have established
three criteria for courts to consider when determining
whether to set aside default: “(1) whether the default was willful; (2) whether
setting aside the default would prejudice the adversary; and (3) whether a
meritorious defense is presented.” Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d
Cir. 1993). We
review a district court’s decision to vacate an entry of default for

4
abuse of discretion, id. at 95, bearing in mind the “strong preference for resolving
disputes on the merits,” New York v. Green, 420 F.3d 99, 104 (2d Cir. 2005) (internal
quotation marks omitted).
We discern no error, let alone an abuse of discretion, in the magistrate
judge’s determination that the
default was not willful. Counsel for NYU
contacted the court within two business days of default being entered and moved
to vacate within two weeks as directed by the district court. Contrary to
Johnson’s arguments, NYU’s counsel’s failure to contact the court until after
default had been entered does not demonstrate
that the default was willful; rather,
prompt correspondence with the district court setting forth the reasons for the
oversight and seeking permission for a motion to set aside the entry of default
suggests that the default was not willful. See Enron Oil Corp., 10 F.3d at 98. The
decision to
vacate default was well within the court’s discretion. See Green, 420
F.3d at 104 (“[A]ll doubts must be resolved in favor of the party seeking relief from
the judgment in order to ensure that to the extent possible, disputes are resolved
on their merits.”). Moreover, we decline to consider Johnson’s
argument, raised
for the first time on appeal, that the district court should have determined whether

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NYU had correctly calculated their time to respond. See Allianz Ins. Co. v. Lerner,
416 F.3d 109, 114 (2d Cir. 2005).
II. Motion to Dismiss
Johnson’s federal claims relating to his 2007 expulsion and 2017 denial of
readmission arose under 42 U.S.C. § 1981 and Title VI of the Civil
Rights Act of
1964, 42 U.S.C. § 2000d et seq. Section 1981 provides, in pertinent part, that “[a]ll
persons within the jurisdiction of the United States shall have the same right . . . to
the full and equal benefit of all laws and proceedings . . . as is
enjoyed by white
citizens . . . . ” 42 U.S.C. § 1981(a). “This section thus outlaws discrimination with
respect to the enjoyment of benefits, privileges, terms, and conditions of a
contractual relationship . . . .” Patterson v. Cty. of Oneida, N.Y., 375 F.3d 206, 224
(2d Cir. 2004).
Title VI “prohibits a recipient of federal funds from discriminating
on the basis of race, color, or national origin.” Zeno v. Pine Plains Cent. Sch. Dist.,
702 F.3d 655, 664 (2d Cir. 2012). The district court dismissed any claims related
to the 2007 expulsion as untimely and found that the
allegations related to the 2017
denial of readmission failed to state a claim upon which relief could be granted.
We review de novo the grant of a motion to dismiss, accepting the complaint’s
factual allegations as true and drawing all reasonable inferences in the plaintiff’s

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favor. Forest Park Pictures v. Universal Television Network, Inc., 683 F.3d 424, 429
(2d Cir. 2012).
The district court correctly concluded that Johnson’s claims arising out of
his expulsion from the University in 2007 were untimely, as the applicable statute
of limitations is three years and Johnson did not file
his complaint until 2017. See
Patterson, 375 F.3d at 225 (“The statute of limitations applicable to claims brought
under []§ 1981 . . . in New York is three years.”); Morse v. Univ. of Vermont, 973 F.2d
122, 126 (2d Cir. 1992) (stating that for Title VI actions, “the federal
trend is to look
to the statute of limitations used in analogous federal discrimination actions such
as those brought under 42 U.S.C. §§ 1981 and 1983”). We likewise agree with the
district court that Johnson did not benefit from the continuing violation doctrine,
under which the statute of limitations period
can be extended when “a plaintiff
has experienced a continuous practice and policy of discrimination.” Fitzgerald v.
Henderson, 251 F.3d 345, 359 (2d Cir. 2001) (internal quotation marks and citations
omitted). Johnson’s situation does not qualify for relief under this doctrine
because his expulsion in 2007 and the denial of
readmittance in 2017 are discrete
incidents which are “easy to identify” and thus not evidence of a continuing

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violation. Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 157 (2d Cir. 2012) (internal
quotation marks omitted).
We find no error in the district court’s refusal to consider, on a motion to
dismiss, an affidavit signed by former dean Dennis Di Lorenzo, who reviewed
Johnson’s application for
readmission in 2017 and opined that Johnson’s
qualifications, “including his disciplinary history,” did not merit admission into
the University. Johnson argues that this affidavit—which was not attached to the
complaint or the motion to dismiss, but rather submitted in support of NYU’s
motion to vacate default—would have raised an inference that
NYU discriminated
against him when they denied him readmission in 2017. This argument is
without merit. The district court was not required to consider the Di Lorenzo
affidavit because it was outside the pleadings. See Friedl v. City of New York, 210
F.3d 79, 83 (2d Cir. 2000) (stating that,
on a motion to dismiss, a district court must
either “exclude the additional material and decide the motion on the complaint
alone” or “convert the motion to one for summary judgment” (internal quotation
marks omitted)). And even if the court had considered the affidavit, the affidavit
stated only that the
decision to deny readmission to Johnson was based partly on

8
his disciplinary history; there is nothing in the affidavit that raises an inference
that the denial of readmission was based on Johnson’s race.
The district court properly dismissed Johnson’s claims arising out of the
denial of his readmission in 2017 for failure to state a claim. As an initial matter,
Johnson
failed to state a plausible claim under any applicable gender
discrimination statute. His allegations of gender discrimination are wholly
conclusory as his complaint contained no facts relating to gender discrimination.
See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (holding that, to state a claim,
a plaintiff must
plead “more than labels and conclusions”).
As to the race discrimination claims, to defeat a motion to dismiss, Johnson
needed only plead facts that “[gave] plausible support to a minimal inference of
discriminatory motivation.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72,
84 (2d Cir. 2015). Johnson’s complaint
attempted to raise an inference of
discrimination by referencing three white male students who, he claims, were
disciplined differently by the University after having been accused (or convicted)
of crimes. While a plaintiff may “raise[] an inference of discrimination by
showing that [he] was subjected to disparate treatment” in comparison
to others,
the comparators must be “similarly situated” to the plaintiff “in all material

9
respects.” Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000) (internal
quotation marks omitted). We agree with the district court that the white
comparators Johnson cited did not meet this standard since none of the
comparators had sought (let alone been granted) readmission after being expelled.
It
is true that comparators need not be identical, but there must be at least a
“reasonably close resemblance of the facts and circumstances,” id. at 40, which was
not the case here. Because his allegations did not raise an inference of
discrimination, the district court did not err by dismissing his
complaint. See
Yusuf v. Vassar Coll., 35 F.3d 709, 713 (2d Cir. 1994) (“A plaintiff alleging racial or
gender discrimination by a university must do more that recite conclusory
assertions.”).
III. Leave to Amend
Finally, the district court did not err by denying leave to amend. The denial
of leave
to amend is generally reviewed for abuse of discretion, Grochowski v.
Phoenix Constr., 318 F.3d 80, 86 (2d Cir. 2003), but if the district court denies leave
because the proposed amended complaint does not state a claim upon which relief
can be granted, review is de novo, Anderson News L.L.C.
v. Am. Media, Inc., 680 F.3d
162, 185–186 (2d Cir. 2012). “While generally leave to amend should be freely

10
granted, it may be denied when there is a good reason to do so, such as futility,
bad faith, or undue delay.” Kropelnicki v. Siegel, 290 F.3d 118, 130 (2d Cir. 2002)
(citing Fed. R. Civ. P. 15(a)). Johnson’s proposed amended complaint was
substantively identical to the previous version and
did not allege any
nonconclusory facts showing that NYU had discriminated against him. The court
was correct to deny leave to amend as it would have been futile. See id.
We have considered Johnson’s remaining arguments and find them to be
without merit. Accordingly, we AFFIRM the judgment of the
district court.

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