Colon v. Davis
This text of Colon v. Davis (Colon v. Davis) is published on Counsel Stack Legal Research, covering District Court, N.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ______________________________________________
ALICIA COLON,
Plaintiff, 5:23-cv-00913 v. (BKS/TWD)
ANTHONY DAVIS, et al.,
Defendants. ______________________________________________
APPEARANCES:
ALICIA COLON Plaintiff, pro se 154 Hudson St. Floor 2 Syracuse, NY 13204
THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION The Clerk has sent the Court a civil rights complaint filed by Alicia Colon (“Plaintiff”) for initial review pursuant to 28 U.S.C. § 1915 together with an application to proceed in forma pauperis (“IFP”). (Dkt. Nos. 1, 2.) For the reasons discussed below, the undersigned grants Plaintiff’s IFP application and recommends dismissal of Plaintiff’s complaint in its entirety. I. IFP APPLICATION “When a civil action is commenced in a federal district court, the statutory filing fee, currently set at $402, must ordinarily be paid.” 28 U.S.C. § 1914(a). A court is authorized, however, to permit a litigant to proceed IFP status if a party “is unable to pay” the standard fee for commencing an action. 28 U.S.C. § 1915(a)(1). After reviewing Plaintiff’s IFP application (Dkt. No. 2), the undersigned finds she meets this standard. Therefore, Plaintiff’s IFP application is granted.1 II. INITIAL REVIEW OF THE COMPLAINT A. Legal Standard
“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). In addition, the Court shall dismiss any action where the complaint fails to allege facts plausibly suggesting subject matter jurisdiction. Fed. R. Civ. P. 12(h)(3); see Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 88-89 (1988) (holding subject matter jurisdiction is a “threshold question that must be resolved . . . before proceeding to the merits.”); Humphrey v. Syracuse Police Dep’t, 758 F. App’x 205, 205-06 (2d Cir. 2019) (“Before deciding any case on the merits, a district court must determine that it has subject matter jurisdiction over the matter.”)
(citing United States v. Bond, 762 F.3d 255, 263 (2d Cir. 2014)); Koziel v. City of Yonkers, 352 F. App’x 470, 471 (2d Cir. 2009) (summary order) (affirming sua sponte dismissal of complaint on initial review for lack of subject matter); Talley v. LoanCare Serv., Div. of FNF, No. 15-CV- 5017, 2018 WL 4185705, at *5 (E.D.N.Y. Aug. 31, 2018); Hughes v. Patrolmen’s Benevolent Ass’n of the City of N.Y., Inc., 850 F.2d 876, 881 (2d Cir. 1988), cert. denied, 488 U.S. 967 (1988)) (“A court shall, sua sponte, dismiss a complaint for lack of subject matter jurisdiction as soon as it is apparent that it lacks subject matter jurisdiction.”).
1 Plaintiff is advised that although she has been granted IFP status, she is still required to pay any fees and costs she may incur in this action. “In reviewing a complaint . . . the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff’s favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Courts are “obligated to construe a pro se complaint liberally.” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009); see also Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam) (reading the plaintiff’s pro se complaint “broadly, as we must” and holding that the complaint sufficiently raised a cognizable claim). “[E]xtreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and [the] parties . . . have had an opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983). The Court, however, also has an overarching obligation to determine that a claim is not legally frivolous before permitting a pro se plaintiff’s complaint to proceed. See, e.g., Fitzgerald
v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (holding that a district court may sua sponte dismiss a frivolous complaint, notwithstanding the fact that the plaintiff paid the statutory filing fee). “Legal frivolity . . . occurs where ‘the claim is based on an indisputably meritless legal theory [such as] when either the claim lacks an arguable basis in law, or a dispositive defense clearly exists on the face of the complaint.” Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998)); see also Neitzke v. Williams, 490 U.S. 319, 325 (1989) (“[D]ismissal is proper only if the legal theory . . . or factual contentions lack an arguable basis.”). B. Summary of the Complaint Plaintiff brings this action against the Syracuse City School District (“SCSD”); Anthony Davis, SCSD Superintendent; Monique Wright-Williams, Chief of Staff and Head of Family Engagement Department; and Nina Vergara, Family Engagement Facilitator of SCSD Westside
Quadrant (collectively “Defendants”). (Dkt. No. 1.) Plaintiff initially contends “Various staff & teachers throughout the thirty-four different school sites in the [SCSD] are victims of bullying & coercion & have been since at least 2009 at which time SCSD staff member Joseph Mazzella committed suicide.”2 (Dkt. No. 1 at 9.3) She claims “The bullying is continuous as recent as 2022-23 when a SCSD employee confided in the Plaintiff that her teaching job is posing a severe negative impact to her mental health.” Id. Plaintiff claims “This unknown employee was the only current SCSD employee to sign an online petition created by the Plaintiff & the Unknown Employee showed up on the SCSD social media page short after.” Id. “The Plaintiff took this as a threat to her friends’ safety & job security & has since removed her online Petition from the Change.org website.” Id.
The remainder of the complaint appears to stem from alleged incidents spanning the 2022-23 school year. From what the Court can glean, Plaintiff’s daughter attends Delaware Primary School and Plaintiff has been a Parent Advisory Council officer for several years. Id. at 9, 12. Plaintiff claims the SCSD “fails to fulfill their duty of fostering a safe school culture & environment for staff, families, and students” by encouraging staff to lie and to intimidate
2 Unless otherwise indicated, excerpts from the record are reproduced exactly as they appear in the original and errors in spelling, punctuation, and grammar have not been corrected.
3 The complaint is 83 pages and is comprised of two standard civil rights complaints, 14 typewritten pages, and 50 pages of exhibits. Page references to are to the numbers assigned by the CM/ECF docketing system maintained by the Clerk’s Office. parents, families, and board members into “silence.” Id. at 16.
Free access — add to your briefcase to read the full text and ask questions with AI
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ______________________________________________
ALICIA COLON,
Plaintiff, 5:23-cv-00913 v. (BKS/TWD)
ANTHONY DAVIS, et al.,
Defendants. ______________________________________________
APPEARANCES:
ALICIA COLON Plaintiff, pro se 154 Hudson St. Floor 2 Syracuse, NY 13204
THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION The Clerk has sent the Court a civil rights complaint filed by Alicia Colon (“Plaintiff”) for initial review pursuant to 28 U.S.C. § 1915 together with an application to proceed in forma pauperis (“IFP”). (Dkt. Nos. 1, 2.) For the reasons discussed below, the undersigned grants Plaintiff’s IFP application and recommends dismissal of Plaintiff’s complaint in its entirety. I. IFP APPLICATION “When a civil action is commenced in a federal district court, the statutory filing fee, currently set at $402, must ordinarily be paid.” 28 U.S.C. § 1914(a). A court is authorized, however, to permit a litigant to proceed IFP status if a party “is unable to pay” the standard fee for commencing an action. 28 U.S.C. § 1915(a)(1). After reviewing Plaintiff’s IFP application (Dkt. No. 2), the undersigned finds she meets this standard. Therefore, Plaintiff’s IFP application is granted.1 II. INITIAL REVIEW OF THE COMPLAINT A. Legal Standard
“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). In addition, the Court shall dismiss any action where the complaint fails to allege facts plausibly suggesting subject matter jurisdiction. Fed. R. Civ. P. 12(h)(3); see Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 88-89 (1988) (holding subject matter jurisdiction is a “threshold question that must be resolved . . . before proceeding to the merits.”); Humphrey v. Syracuse Police Dep’t, 758 F. App’x 205, 205-06 (2d Cir. 2019) (“Before deciding any case on the merits, a district court must determine that it has subject matter jurisdiction over the matter.”)
(citing United States v. Bond, 762 F.3d 255, 263 (2d Cir. 2014)); Koziel v. City of Yonkers, 352 F. App’x 470, 471 (2d Cir. 2009) (summary order) (affirming sua sponte dismissal of complaint on initial review for lack of subject matter); Talley v. LoanCare Serv., Div. of FNF, No. 15-CV- 5017, 2018 WL 4185705, at *5 (E.D.N.Y. Aug. 31, 2018); Hughes v. Patrolmen’s Benevolent Ass’n of the City of N.Y., Inc., 850 F.2d 876, 881 (2d Cir. 1988), cert. denied, 488 U.S. 967 (1988)) (“A court shall, sua sponte, dismiss a complaint for lack of subject matter jurisdiction as soon as it is apparent that it lacks subject matter jurisdiction.”).
1 Plaintiff is advised that although she has been granted IFP status, she is still required to pay any fees and costs she may incur in this action. “In reviewing a complaint . . . the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff’s favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Courts are “obligated to construe a pro se complaint liberally.” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009); see also Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam) (reading the plaintiff’s pro se complaint “broadly, as we must” and holding that the complaint sufficiently raised a cognizable claim). “[E]xtreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and [the] parties . . . have had an opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983). The Court, however, also has an overarching obligation to determine that a claim is not legally frivolous before permitting a pro se plaintiff’s complaint to proceed. See, e.g., Fitzgerald
v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (holding that a district court may sua sponte dismiss a frivolous complaint, notwithstanding the fact that the plaintiff paid the statutory filing fee). “Legal frivolity . . . occurs where ‘the claim is based on an indisputably meritless legal theory [such as] when either the claim lacks an arguable basis in law, or a dispositive defense clearly exists on the face of the complaint.” Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998)); see also Neitzke v. Williams, 490 U.S. 319, 325 (1989) (“[D]ismissal is proper only if the legal theory . . . or factual contentions lack an arguable basis.”). B. Summary of the Complaint Plaintiff brings this action against the Syracuse City School District (“SCSD”); Anthony Davis, SCSD Superintendent; Monique Wright-Williams, Chief of Staff and Head of Family Engagement Department; and Nina Vergara, Family Engagement Facilitator of SCSD Westside
Quadrant (collectively “Defendants”). (Dkt. No. 1.) Plaintiff initially contends “Various staff & teachers throughout the thirty-four different school sites in the [SCSD] are victims of bullying & coercion & have been since at least 2009 at which time SCSD staff member Joseph Mazzella committed suicide.”2 (Dkt. No. 1 at 9.3) She claims “The bullying is continuous as recent as 2022-23 when a SCSD employee confided in the Plaintiff that her teaching job is posing a severe negative impact to her mental health.” Id. Plaintiff claims “This unknown employee was the only current SCSD employee to sign an online petition created by the Plaintiff & the Unknown Employee showed up on the SCSD social media page short after.” Id. “The Plaintiff took this as a threat to her friends’ safety & job security & has since removed her online Petition from the Change.org website.” Id.
The remainder of the complaint appears to stem from alleged incidents spanning the 2022-23 school year. From what the Court can glean, Plaintiff’s daughter attends Delaware Primary School and Plaintiff has been a Parent Advisory Council officer for several years. Id. at 9, 12. Plaintiff claims the SCSD “fails to fulfill their duty of fostering a safe school culture & environment for staff, families, and students” by encouraging staff to lie and to intimidate
2 Unless otherwise indicated, excerpts from the record are reproduced exactly as they appear in the original and errors in spelling, punctuation, and grammar have not been corrected.
3 The complaint is 83 pages and is comprised of two standard civil rights complaints, 14 typewritten pages, and 50 pages of exhibits. Page references to are to the numbers assigned by the CM/ECF docketing system maintained by the Clerk’s Office. parents, families, and board members into “silence.” Id. at 16. She claims SCSD Family Engagement has failed in their duty of assisting the Parent Teacher Organizations and the agency fails to “foster effective & meaningful family engagement opportunities at every school site which are accessible to every family regardless of the language they speak.” Id. She complains
Defendants no longer send out emails with the dates and time of the Parent Advisory Council Meetings in advance in violation of her “rights to know about Family Involvement Activities occurring at her child’s school.” Id. at 16. Despite notifying Defendants, her contact information has not been updated, which violates her right to “timely communication from the local education agency which her child attends.” Id. She claims the individual Defendants are “bullies” and interfered with the administration of the Parent Advisory Council and “failed to uphold their duty of fostering effective Family Involvement & Participation.” Id. at 15-16. She asserts Defendants have failed to provide the Parent Council Officers with training, additional meetings, support, and have “failed in their duty of assisting parents & families in becoming effective participants in school planning & governance within the [SCSD] agency and at school
sites.” Id. at 16. She also complains SCSD does not have an adequate website, has refused to implement “parliamentary procedure” during Parent Advisory Council Meetings, and lacks an accessible application process for jobs and volunteering. Id. at 18-19. Plaintiff has also “incurred costs associated with Family Involvement as the agency does not supply her with internet in her family room or access to a printer, printer paper, printer ink, pens, staples, or other meeting supplies which are necessary to foster effective family involvement during the school site requirement monthly meetings with families.” Id. at 12. Moreover, on April 12, 2023, Plaintiff appeared before the “SCSD Board of Education at the general business meeting & delivered written copies of a motion to amend the SCSD Community & Family Involvement Policy.” Id. Her “motion included two policy changes: the first was a revision to the agencies current Parenting Description which appears on their Title 1 Family & Community Involvement Plan which they submit to NYS each year, & the second was an addition to the existing policy which stated Parents would have the right to prohibit the
agency & any community partners from using virtual reality equipment with the their child or placing this type of equipment on their child’s body.” Id. However, “the amendment has not appeared on the agenda and no board member has asked her any questions about it.” Id. As relief, among other things, Plaintiff seeks to “preserve the safety & job security” of her friend. Id. at 19. She wants Delaware Primary School to be assigned a different Family Engagement Facilitator to develop a “functional Volunteer Application Process” for parents that is easy to understand. Id. at 20. She wants to ensure all Parent Council officers are timely notified of the dates and times of the meetings as they were prior to November 2022. Id. She asks that all families have access to computers, printers, and the internet. Id. She wants to prevent the SCSD from using virtual reality equipment in their classroom until it can be
scientifically proven that it helps students learn. Id. She wants Defendants to provide the Parent Advisory Council with information regarding the “Pump Bus” and “where the funds for Superintendent Davis community BBQs is coming from.” Id. at 20-21. For a complete statement of Plaintiff’s claims, reference is made to the complaint. (Dkt. No. 1.) C. Analysis The Court lacks jurisdiction over the complaint as currently pled. “[F]ailure of subject matter jurisdiction is not waivable and may be raised at any time by a party or by the court sua sponte. If subject matter jurisdiction is lacking, the action must be dismissed.” Lyndonville Sav. Bank & Tr. Co. v. Lussier, 211 F.3d 697, 700-01 (2d Cir. 2000) (citations omitted); see also Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006); Fed. R. Civ. P. 12(h)(3). The plaintiff bears the burden of establishing subject matter jurisdiction. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).
In order for the Court to have jurisdiction over the matter, there must either be federal question jurisdiction or diversity jurisdiction. 28 U.S.C. §§ 1331 & 1332. Federal question jurisdiction arises in an action “arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. The complaint does not appear to assert claims that would give this Court federal question jurisdiction. (See generally Dkt. No. 1.) Although the civil cover sheet references the Every Student Succeeds Act (“ESSA”), the ESSA “does not provide a private right of action and does not create individual rights that are enforceable under a § 1983 action. Although students and their parents are intended to benefit from the ESSA, the ESSA contains no procedures, administrative or judicial, by which individuals can enforce violations of its provisions; only the Secretary of Education can enforce a state’s violation of the ESSA.” 67B
Am. Jur. 2d Schools § 350. See also Reaves v. Faulkner, No. 7:22-CV-40-FL, 2022 WL 19236195, at *2 (E.D.N.C. Oct. 12, 2022) (finding the ESSA, which amended the No Child Left Behind Act (“NCLB”), provides no private right of action), report and recommendation adopted, 2023 WL 2614573 (E.D.N.C. Mar. 23, 2023); Blakely v. Wells, 380 F. App’x 6, 8 (2d Cir. 2009) (NCLB does not provide a private cause of action) (citing Home v. Flores, 557 U.S. 433, 456 n. (2009) (noting that “NCLB does not provide a private right of action” and “is enforceable only by the agency charged with administering it”). In addition, because the complaint alleges Plaintiff and Defendants are citizens of New York (Dkt. No. 1 at 1-3), there is no diversity jurisdiction. Lever v. Lyons, No. 16-CV-5130, 2021 WL 302648, at *9 (E.D.N.Y. Jan. 28, 2021) (no diversity jurisdiction where parties were all citizens of New York). In any event, Plaintiff appears to seek only injunctive relief. (Dkt. No. 1 at 3-4.) Because the Court lacks subject matter jurisdiction, the Court recommends dismissing
Plaintiff’s complaint without prejudice. Hollander v. Garrett, 710 F. App’x 35, 36 (2d Cir. 2018); see also Humphrey v. Syracuse Police Dep’t, 758 F. App’x 205, 206-07 (2d Cir. 2019) (holding where a court dismisses a complaint for lack of subject matter jurisdiction, the court does “not have the power to reach the merits and dismiss the claims against the defendants for failure to state a claim, or to eventually dismiss the complaint with prejudice for failure to file a proposed amended complaint.”). Generally, when the court dismisses a pro se complaint sua sponte, the court should afford the plaintiff the opportunity to amend at least once; however, leave to replead may be denied where any amendment would be futile. Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993). “[L]ack of subject matter jurisdiction is a substantive defect that cannot be
cured by better pleading.” Moran v. Proskauer Rose LLP, No. 1:17-CV-00423 (MAD/TWD), 2017 WL 3172999, at *3 (N.D.N.Y. July 26, 2017). Although this Court has serious doubts about whether Plaintiff can amend to assert any form of federal jurisdiction over the situation Plaintiff describes in her complaint, in deference to Plaintiff’s pro se status and out of an abundance of caution, the Court recommends granting Plaintiff leave to amend. The Court advises Plaintiff that should she be permitted to amend her complaint, any amended pleading she submits must comply with Rules 8 and 10 of the Federal Rules of Civil Procedure. Any such amended complaint should specifically identify the legal theory or theories that form the basis for her claim. Plaintiff is cautioned that no portion of her prior complaint shall be incorporated into her amended complaint by reference. Any amended complaint submitted by Plaintiff must set forth all of the claims she intends to assert against the Defendants and must demonstrate that a case or controversy exists between the Plaintiff and the Defendant
which Plaintiff has a legal right to pursue and over which this Court has jurisdiction. If Plaintiff is alleging the Defendants violated a law, she should specifically refer to such law. III. CONCLUSION For the reasons stated herein, it is hereby ORDERED that Plaintiff’s IFP application (Dkt. No. 2) is GRANTED; and it is further RECOMMENDED that Plaintiff’s complaint (Dkt. No. 1) be DISMISSED WITHOUT PREJUDICE AND WITH LEAVE TO AMEND; and it is further ORDERED that the Clerk serve a copy of this Order and Report-Recommendation, along with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam) on Plaintiff.
Pursuant to 28 U.S.C. § 636(b)(1), Plaintiff has fourteen days within which to file written objections to the foregoing report.4 Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing
4 If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. 6(a)(1)(C). Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed. R. Civ. P. 72, 6(a). IT IS SO ORDERED. Dated: August 30, 2023 Syracuse, New York Ta zy /. Thérése Wiley Dancks United States Magistrate Judge
2018 WL 4185705 restraining order. Before the Court are defendants' motions to Only the Westlaw citation is currently available. dismiss the amended complaint pursuant to Federal Rules of For Online Publication Only Civil Procedure 12(b)(1) and 12(b)(6). For the reasons stated United States District Court, E.D. New York. below, the Court grants defendants' motions and dismisses plaintiffs' amended complaint in its entirety. Nicholas TALLEY, Donna Evans Talley, Plaintiffs, v. LOANCARE SERVICING, DIV. OF I. BACKGROUND FNF, Selene Finance, Defendants. The following facts are taken from plaintiffs' amended 15-CV-5017 (JMA) (AKT) complaint, the record before the Court and fillings from the | foreclosure action. In deciding a motion to dismiss under Rule Signed 08/31/2018 12(b)(6), the Court may take judicial notice of public records, including state court filings. Blue Tree Hotels Inv. (Canada), Attorneys and Law Firms Ltd. v. Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d Cir. 2004). The Court can also consider exhibits Donna Evans Talley, Nicholas Talley, pro se. —such as copies of the mortgage and mortgage assignments Stuart L. Kossar, Esq., Knuckles, Komosinski & Manfro, —which are attached or integral to the amended complaint. LLP, 565 Taxter Road, Suite 590, Elmsford, New York 10523, Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004). Attorney for Defendant Selene Finance, LP. Edward Rugino, Rosicki, Rosicki and Associates, P.C., 51 A. The Bay Shore Mortgage East Bethpage Road, Plainview, New York 11803, Attorney On March 7, 2009, Nicholas Talley and Donna Evans Talley for Defendant LoanCare Servicing. executed a mortgage in favor of non-party Lend America (the lender) in the principal sum of $311,558 concerning a property located at 22 Lakeland Street, Bay Shore, New York (“the Bay Shore property”). (Am. Compl., ECF No. MEMORANDUM AND ORDER 7 at 15-16.) Plaintiffs claim that there was no recording Joan M. Azrack, United States District Judge of the original title or delivery of the mortgage or deed to plaintiffs. (Id. at 5.) Plaintiffs further allege that Lend *1 On August 18, 2015, Donna Evans Talley and Nicholas America became defunct in December of 2009 and that no Talley (together “plaintiffs” or the “Talleys”) filed a pro se assignments of the mortgage occurred prior to 2012. (Id.) complaint in this Court against Selene Financing (“Selene”) By way of an endorsement to the note and two assignments and LoanCare Servicing, Division of FNF (“LoanCare”) of the mortgage, the loan instruments were transferred to (together “defendants”). On January 21, 2016, the Court defendant LoanCare on February 27, 2012. (Id. at 5, 8-12.) granted plaintiffs' applications to proceed in forma pauperis, The assignment to LoanCare was recorded on April 10, 2012 but dismissed the complaint sua sponte pursuant to 28 U.S.C. in the Suffolk County Clerk's Office. (Id. at 5.) On March 31, § 1915(e)(2)(B)(ii). Plaintiffs were given an opportunity to 2015, LoanCare assigned the mortgage to defendant Selene. file an amended complaint. On February 16, 2016, plaintiffs (Id. at 24-25.) filed an amended complaint, which seeks, among other things, injunctive relief to “[s]top illegal and fraudulent foreclosure.” (Am. Compl. at 4.) Simultaneous with the B. The Foreclosure Proceeding filing of the amended complaint, plaintiffs filed an Order *2 Plaintiffs defaulted on the note and mortgage by failing to Show Cause for a Preliminary Injunction and Temporary to make their monthly payment due in January 2011 and Restraining Order seeking to enjoin LoanCare from pursuing each month thereafter. (Kossar Decl. Ex. J, ECF No. 42-11 a foreclosure sale scheduled for March 3, 2016. In an Order at 3.) As a result, LoanCare commenced an action against dated February 24, 2016, this Court, sua sponte dismissed, plaintiffs in New York State Supreme Court, Suffolk County pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), the prayer for on March 19, 2012. (Id.) In the Talleys' verified joint answer, court denied the Talleys' request, noting that after numerous compute amounts due under the subject note and mortgage. prior attempts the parties had not been able to reach an (Id. at 8, 9.) agreement to modify the loan or settle the action. (Id.) The Talleys also asserted fifteen affirmative defenses, alleging, On September 29, 2014, the state court entered final judgment among other things: lack of personal jurisdiction; lack of for foreclosure and sale of the Bay Shore property. (Kossar standing and legal capacity; fraud in connection with the Decl. Ex. K, ECF No. 42-12 at 3-8.) The state court further origination and the servicing of the loan; lack of good faith ordered that LoanCare was entitled to judgment establishing with respect to a loan modification; and LoanCare's failure the validity of the mortgage and to recover $390,013.50 with to state a cause of action, mitigate damages and comply with interest to date of the closing of time of the referee's sale of the provisions of Real Property Actions and Proceedings Law the subject property. (Id.) and Banking Law. (Id. at 3.) LoanCare moved for summary judgment against the Talleys seeking to strike their answer and dismiss their affirmative defenses amongst other relief. C. The Instant Action (Id.) The Talleys opposed the motion and cross moved for Plaintiffs' amended complaint alleges fraud against summary judgment seeking dismissal of the complaint on the defendants LoanCare and Selene along with other claims grounds that LoanCare lacked standing. (Id. at 4.) under: (1) the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2605, § 2608; (2) federal regulation In an Order dated April 11, 2014, the state court denied the 24 C.F.R. § 203.3501 associated with the National Housing Talleys' cross motion for summary judgment in its entirety. Act, 12 U.S.C. § 1701; (3) various provisions of the Uniform (Id.) In response to the Talleys' lack of standing defense, Commercial Code (“UCC”); (4) the Pooling and Servicing the court found that, “as holder of the endorsed note and as Agreement (“PSA”) that governs plaintiffs' mortgage; and the assignee of the mortgage, [LoanCare] ha[d] standing to (5) fraud.2 (Amend. Compl.) Though stated somewhat commence [the foreclosure] action. (Id. at 5.) The court noted differently, plaintiffs' amended complaint appears to reiterate that LoanCare demonstrated that it had been in “continuous their contentions from the prior state court foreclosure action, possession of the note and mortgage since February 27, specifically alleging that LoanCare did not have standing to 2012,” concluding that LoanCare “is the transferee and holder foreclose on the Bay Shore property and that the mortgage and of the original note as well as the assignee of the mortgage by its assignment to LoanCare, and subsequently to Selene, were virtue of the written assignments.” (Id. at 6.) In sum, the court invalid and therefore unenforceable.3 (See Am. Compl.) held that LoanCare satisfied its prima facie burden as to the merits of the foreclosure action as it produced the endorsed note, the mortgage and assignments as well as evidence of 1 Plaintiffs also allege a violation of 24 C.F.R. § plaintiffs' nonpayment. (Id. at 5.) Further, the court noted that 203.35 in their amended complaint, (Am. Compl. LoanCare submitted proof of its compliance with the notice at 5), but note in their opposition to defendant requirements of the RPAPL § 1303 and § 1304. (Id.) Thus, LoanCare's motion to dismiss that this was an error. the court found that LoanCare established its entitlement to (Pls.' Opp. to LoanCare's Mot. to Dismiss, ECF No. summary judgement and dismissed the Talleys' remaining 39-12 at 3.) affirmative defenses finding that plaintiff submitted sufficient 2 Though the amended complaint seeks relief from proof to establish, prima facie, that such defenses were “LoanCare harassing us and placing us under unmeritorious. (Id. at 5, 7-9) (noting that circumstances of duress” (Am. Compl. at 5-6), the only allegation fraud must be “stated in detail” and that a defense based upon of such harassment appears in plaintiffs' opposition the “doctrine of unclean hands” lacks merit where a defendant to defendant LoanCare's motion to dismiss. (See fails to come forward with admissible evidence of immoral Pls.' Opp. to LoanCare's Mot. to Dismiss, ECF or unconscionable behavior). The court also noted that the No. 39-12 at 5-6.) A plaintiff “cannot amend [his] Talleys “failed to demonstrate that they made a reasonable complaint by asserting new facts or theories for the attempt to discover the facts which would give rise to a triable first time in opposition to [d]efendants' motion to issue of fact or that further discovery might lead to relevant dismiss”, K.D. ex rel. Duncan v. White Plains Sch. evidence.” (Id. at 8.) The court further rejected the Talleys' Dist., 921 F. Supp. 2d 197, 209 (S.D.N.Y. 2013). contention that they were entitled to a judicially mandated claims. no recordation of closing documents”; “[r]eveal identity of principal/issuer”; “LoanCare cease and desist from harassing 3 The Court notes that plaintiffs appear to use us and placing us under duress since the mortgage has been the terms “fraud”, “fraudulent concealment” and sold to Selene”; “[s]top illegal and fraudulent foreclosure by “fraud in the inducement” interchangeably. prior servicer, LoanCare without assignment.” (Id. at 4.) *3 Specifically, plaintiffs allege that the original deed has never been delivered since the inception of the mortgage. (Id. Defendants filed separate motions to dismiss pursuant to at 3.) Plaintiffs claim that although the original lender, Lend Fed. R. Civ. P. 12(b)(1) and 12(b)(6), claiming that plaintiffs' America ceased to exist as of December 2009, the mortgage claims should be dismissed because (a) they are barred by the was never assigned in the years 2009 through 2012. (Id.) Rooker-Feldman doctrine; (b) are barred by the doctrines of Plaintiffs allege that Lend America “acquired the loan without res judicata and collateral estoppel; and (c) fail to state a claim providing principal/issuer resulting in no securitization of an upon which relief can be granted.6 FHA security instrument from 2009-2012.” (Id.) Plaintiffs appear to allege that “no delivery of deed and title” concerning 6 Plaintiffs filed for Chapter 13 bankruptcy on June plaintiffs' mortgage “proves deceptive practices and fraud 5, 2017. (Pls.' Opp. to Mot. to Dismiss, Ex. J, ECF was the intention from the origination of the mortgage.” (Id.) No. 35 at 37.) Plaintiffs further allege that defendants have no standing under Article III of the Constitution because the original title was not recorded or delivered to plaintiffs. (Id. at 5-6.) Finally, II. DISCUSSION plaintiffs allege that “even if this was a legal foreclosure, we were not given our due process because we were not A. Standard of review notified by LoanCare or the Court of our Right to Appeal The court is mindful that when considering a motion thereby denying us ‘due process’.”4 (Id. at 6.) Specifically, to dismiss a pro se complaint, the court must construe plaintiffs allege that they did not receive the Notice of Entry of the complaint liberally and interpret the complaint “to Final Judgment for Foreclosure and Sale from LoanCare until raise the strongest arguments they suggest.” Triestman v. February 6, 2015 and that the September 29, 2014 judgment Federal Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. is in violation of the PSA, RESPA and the UCC because the 2006). “However, mere conclusions of law or unwarranted mortgage and note were transferred to Selene on August 1, deductions need not be accepted.” Bobrowsky, 777 F. Supp. 2014.5 (Id.) 2d at 703 (internal quotation marks and citations omitted). 4 To the extent that plaintiffs attempt to allege a due 1. Fed. R. Civ. P. 12(b)(1) process violation under 42 U.S.C. § 1983, such Federal Rule of Civil Procedure 12(b)(1) requires the claim is unwarranted as the defendants are private dismissal of a claim when there is a “lack of subject-matter parties, not state actors. jurisdiction.” Fed. R. Civ. P. 12(b)(1). A case is properly dismissed for lack of subject matter jurisdiction pursuant to 5 According to the loan transfer documents attached Rule 12(b)(1) “when the district court lacks the statutory or to plaintiffs' amended complaint, the mortgage and constitutional power to adjudicate it.” Makarova v. United note were transferred to Selene on March 31, States, 201 F.3d 110, 113 (2d Cir. 2000); see Fed. R. Civ. P. 2015. (See Am. Compl. at 23-24.) However, Selene 12(b)(1). In reviewing a motion to dismiss under this Rule, the first became involved with plaintiffs' loan when it Court accepts all factual allegations in the complaint as true. became a servicer of the loan on August 1, 2014. Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d (Pls.' Opp. to Def. LoanCare's Mot. to Dismiss, Cir. 1998). However, the Court should not draw inferences ECF No. 35-1, Ex. H at 17.) favorable to the party asserting jurisdiction. Id. In resolving Plaintiffs seek the following relief: “[d]efendants produce a jurisdictional issue, the Court may consider affidavits and orig[inal] deed of mortgage, title with covenants”; other materials beyond the pleadings, but may not rely on “[r]eimburse[ment] [of] $4,336 for services not rendered mere conclusions or hearsay statements contained therein. (deed/title)”; “[p]rove securitization of mortgage from 2009 J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Crossgates Co., 436 F.3d 82, 89, n. 8 (2d Cir. 2006) (“The 2003 WL 133232, at *7 (S.D.N.Y. Jan. 16, 2003) (citations presentation of affidavits on a motion under Rule 12(b)(1) omitted). The doctrine precludes a district court from hearing ... does not convert the motion into a motion for summary “cases brought by state-court losers complaining of injuries judgment under Rule 56.”). caused by state-court judgments rendered before the federal district court proceedings commenced and inviting district court review and rejection of those judgments.” Exxon Mobil 2. Fed. R. Civ. P. 12(b)(6) Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). *4 To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a plaintiff must allege The Second Circuit has established four requirements that sufficient facts “to state a claim to relief that is plausible must be satisfied for the Rooker–Feldman doctrine to apply: on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, (1) “the federal-court plaintiff must have lost in state 570 (2007). A claim is facially plausible only “when the court;” (2) “the plaintiff must complain of injuries caused plaintiff pleads factual content that allows the court to draw by a state court judgment;” (3) “the plaintiff must invite the reasonable inference that the defendant is liable for the district court review and rejection of the judgment;” and (4) misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 “the state-court judgment must have been rendered before the (2009) (citing Twombly, 550 U.S. at 556). Mere labels and district court proceedings commenced.” Hoblock, 422 F.3d at legal conclusions will not suffice. Twombly, 550 U.S. at 555. 85 (internal quotation marks and citations omitted). The first In reviewing a motion to dismiss, the Court must accept and fourth requirements are procedural and the second and the factual allegations set forth in the complaint as true third are substantive. Id. and draw all reasonable inferences in favor of the plaintiff. Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. Specifically, with respect to foreclosure proceedings, “courts 2006). Motions to dismiss invoking res judicata and collateral in this Circuit have consistently held that any attack on a estoppel are properly brought under Rule 12(b)(6). See Hirsch judgment of foreclosure is clearly barred by the Rooker– v. Desmond, No. 08–CV–2660, 2010 WL 3937303, at *2 Feldman doctrine.” Ashby v. Polinsky, No. 06–CV–6778, (E.D.N.Y. Sept. 30, 2010) (collateral estoppel); Wiercinski v. 2007 WL 608268, at *1 (E.D.N.Y. Feb. 22, 2007) (internal Mangia 57, Inc., No. 09–CV–4413, 2010 WL 2681168, at *1 quotation marks and citation omitted), aff'd, 328 F. App'x 20 (E.D.N.Y. July 2, 2010) (res judicata ). (2d Cir. 2009); see also Done v. Wells Fargo Bank, N.A., No. 08–CV–3040, 2009 WL 2959619, at *3 (E.D.N.Y. Sept. 14, 2009); Ward v. Bankers Trust Co. of California, N.A., B. Rooker-Feldman Doctrine No. 09–CV–1943, 2011 WL 1322205, at *5 (E.D.N.Y. Mar. Defendants' initial argument is that this Court lacks 29, 2011). This even includes challenges to a judgment of jurisdiction to hear this case under the Rooker-Feldman foreclosure that was allegedly procured by fraud, as plaintiffs doctrine. See Rooker v. Fidelity Trust Co., 263 U.S. 413 have alleged herein. See, e.g., Swiatkowski v. Citibank, 745 (1923) (holding that only the Supreme Court can entertain F. Supp. 2d 150, 164–65 (E.D.N.Y. 2010) aff'd, 446 F. App'x a direct appeal from a state court judgment); District of 360, 361 (2d Cir. 2011) (finding Rooker–Feldman doctrine Columbia Court of Appeals v. Feldman, 460 U.S. 462, 483, applied to allegations that defendants engaged in a pattern of n.3 (1983) (finding that federal courts do not have jurisdiction submitting fraudulent and perjurious documents related to the over claims which are “inextricably intertwined” with prior judgment of foreclosure and sale in other courts and that the state court determinations). The Rooker-Feldman doctrine allegations and relief sought were “inextricably intertwined “recognizes that ‘federal district courts lack jurisdiction with the state court judgment and would require overturning over suits that are, in substance, appeals from state-court the state court judgment”); Parra v. Greenpoint Mortgage judgments.’ ” Alston v. Sebelius, CV 13-4537, 2014 U.S. Co., No. Civ.A. 01–CV–02010, 2002 WL 32442231, at *2 Dist. LEXIS 123613, at *23-24 (E.D.N.Y. July 31, 2014) (E.D.N.Y. Mar. 26, 2002) (“The fact that [a] plaintiff alleges (report and recommendation), adopted by, 2014 U.S. Dist. that a state court judgment was procured by fraud does not LEXIS 122970, 2014 WL 4374644 (E.D.N.Y. Sept. 2, 2014) remove [the] claims from the ambit of Rooker–Feldman”); (quoting Hoblock v. Albany Cnty. Bd. of Elections, 422 F.3d Dockery v. Cullen & Dykman, 90 F. Supp. 2d 233, 236 77, 84 (2d Cir. 2005) ). “The doctrine applies when a litigant (E.D.N.Y. 2000) (same). seeks to reverse or modify a state court judgment or asserts claims. The procedural requirements of Rooker–Feldman to lack of [s]tanding.” (Pls.' Opp. to defendant LoanCare's are satisfied. First, plaintiffs lost in state court. (Kossar Mot. to Dismiss, ECF No. 39-12.) Plaintiffs are requesting Decl. Exs. J, K.) Second, the state court granted LoanCare this Court to do exactly what Rooker-Feldman forbids— summary judgment and denied plaintiffs' cross-motion for to overturn the New York Supreme Court judgment of summary judgment by Order dated April 9, 2014, and issued foreclosure. See Trakansook, 2007 WL 1160433, at *5 a foreclosure judgment on September 29, 2014. (See id.) (“Because [plaintiff's] complaint asks this court to vacate the Since those judgments predate the August 18, 2015 filing of judgment of foreclosure and sale and award her title to the the initial complaint in the instant action, (see Compl., ECF property, it is plain that she is inviting this court to ‘reject’ 1), all pertinent state-court decisions were issued before the the [state court order].”). A ruling in plaintiffs' favor “would proceedings in this Court commenced. effectively declare the state court judgment [of foreclosure] fraudulently procured and thus void, ... which is precisely The substantive requirements of Rooker–Feldman are also the result that the Rooker–Feldman doctrine seeks to avoid.” satisfied because plaintiffs' amended complaint seeks review Kropelnicki v. Siegel, 290 F.3d 118, 129 (2d Cir. 2002). and rejection of those state court decisions. Plaintiffs' claims complain of injuries, including, “deceptive practices and Moreover, plaintiffs' attempt to thwart application of Rooker- fraud” at the origination of the mortgage due to no delivery Feldman by labeling their claims as “fraud in the inducement” or recording of closing documents and seeks to “[s]top illegal and “fraudulent concealment” rather than the “fraud” they and fraudulent foreclosure,” in contravention of the state court alleged in the state action fails. Plaintiffs' claim of “newly judgment of foreclosure and the state court's acceptance of discovered facts of fraud in the inducement” based on the the validity of the mortgage documents that formed the basis actions of third parties at the time of the loan origination for that judgement. (Am. Compl. at 4-6.) See Trakansook fails to preclude application of Rooker-Feldman.7 (Pls.' v. Astoria Fed. Sav. & Loan Ass'n, No. 06–Civ–1640, 2007 Opp. to defendant Selene's Mot. to Dismiss, ECF No. 42-26 WL 1160433, at *5 (E.D.N.Y. Apr. 18, 2007), aff'd, No. at 1.) Plaintiffs' claims relate not to defendants' conduct 07–2224–CV, 2008 WL 4962990 (2d Cir. Nov. 21, 2008) in the course of the state court foreclosure action, but, (holding that because plaintiff's complaint asked the court rather, to the validity of the underlying mortgage documents “to vacate the judgment of foreclosure and sale and award and defendants' standing to commence the foreclosure her title to the property, it [was] plain that she [was] inviting proceeding. Thus, “the injury complained of is the judgment [the] court to ‘reject’ the [state court] order.”); Done v. permitting the foreclosure, which implicitly held that the Option One Mortgage, No. 09–civ–4770, 2011 WL 1260820, mortgage[ ] w[as] valid.” Webster v. Wells Fargo Bank, N.A., at *6 (E.D.N.Y. Mar. 30, 2011) (concluding substantive No. 08–civ–10145, 2009 WL 5178654, at *8 (S.D.N.Y. Dec. requirements of Rooker-Feldman met where “[a]lthough 23, 2009), aff'd sub nom. as amended (Jan. 24, 2012) Webster plaintiff ha[d] made a cursory reference to seeking monetary v. Penzetta, 458 F. App'x 23 (2d Cir. 2012) (finding the Court damages, it [was] abundantly clear that the whole purpose of “plainly lack[ed] subject matter jurisdiction” over plaintiff's th[e] action [was] to undo the foreclosure judgment”). claims “attacking the validity of the foreclosure proceedings and the validity of the underlying mortgage loan documents” In their amended complaint, plaintiffs contend that LoanCare pursuant to Rooker-Feldman because “the injury complained had no standing to bring the state court foreclosure action. of is the judgment permitting foreclosure, which implicitly (See Am. Compl.) However, as plaintiffs admit, the state held that the mortgages were valid.”); see also Feliciano v. court rejected this exact contention in its final judgment. U.S. Bank Nat. Ass'n, No. 13–CV–5555, 2014 WL 2945798, (Pls.' Supplemental Opp. to defendant LoanCare's Mot. to at *2–4 & n. 7 (S.D.N.Y. June 27, 2014) (finding that Dismiss, ECF No. 43 at 4; Kossar Decl. Ex. J at 7 (“The plaintiffs' claims that “[defendant] wrongfully foreclosed assertions by the defendant mortgagors as to the plaintiff's upon their home because it lacked the legal capacity to alleged lack of standing, which rest, inter alia, upon alleged accept the assignment of the underlying mortgage, and defects in the assignments, rife with speculation, are rejected therefore lacked standing in the Foreclosure Action” failed as unmeritorious ...”).) In opposition to defendants' motion under Rooker-Feldman and the fraud exception did not apply to dismiss, plaintiffs specifically state that they are seeking because “the complaint alleges fraudulent conduct (generally) “[r]escission of [f]inal [s]ummary [j]udgment”, that this by defendant prior to the institution of the Foreclosure Action Court “[r]ender the lien unenforceable due to fraudulent rather than on the state court itself.” (internal citations and a fraudulent procurement exception to the Rooker–Feldman to defenses that could have been raised in the prior action as doctrine fails. well. Waldman v. Vill. of Kiryas Joel, 39 F. Supp. 2d 370, 377 (S.D.N.Y. 1999) (res judicata “prevents a party from litigating 7 Plaintiffs appear to allege newly discovered facts any issue or defense that could have been raised or decided in in relation to the alleged fraudulent closing of the a previous suit, even if the issue or defense was not actually mortgage in 2009. (Pls.' Opp to defendant Selene's raised or decided”) (quoting Woods v. Dunlop Tire Corp., Mot. to Dismiss, ECF No. 42-26 at 1.) Specifically, 972 F.2d 36, 38 (2d Cir. 1992) ); Robbins v. Growney, 229 plaintiffs now argue, in conclusory fashion, that at A.D.2d 356, 645 N.Y.S.2d 791, 792 (N.Y. App. Div. [1st] the time of the closing of their mortgage in 2009, Dep't 1996) (“The doctrine of res judicata is applicable ... to the Title Company was a “shell company” and the defenses raised in the prior action or which, though not raised, attorney at the closing table was fraudulent. (Id.) could have been.”) (internal citation omitted). “All litigants, including pro se plaintiffs, are bound by the principles of res *6 Accordingly, the Court lacks subject matter jurisdiction judicata. Done, 2009 WL 2959619, at *3. over plaintiffs' claims and the amended complaint should be dismissed in its entirety. Here, plaintiffs' claims are barred from further adjudication by res judicata. First, the judgment of foreclosure entered against plaintiffs is an adjudication on the merits, which C. Res judicata prevents reconsideration of any claim that is based on the Alternatively, to the extent the Rooker-Feldman doctrine does same facts as the foreclosure judgment and which would not deprive the Court of subject matter jurisdiction, all of disturb LoanCare's (or Selene's) ability to enforce rights plaintiffs' claims are barred by the doctrine of res judicata. provided pursuant to the mortgage and the note securing Under the doctrine of res judicata, “a final judgment on the the Bay Shore property. See id. at *4. Second, the facts merits of an action precludes the parties or their privies from pled by plaintiffs in their amended complaint—that LoanCare re-litigating issues that were or could have been raised in that brought the foreclosure suit in the Suffolk County Supreme action.” Flaherty v. Lang, 199 F.3d 607, 612 (2d Cir. 1999) Court and was not the holder of a valid mortgage note (quotation omitted). “In applying the doctrine of res judicata, at the time of assignment, (see Am. Compl.)—would have [a court] must keep in mind that a state court judgment has been central to deciding any entitlement to a judgment of the same preclusive effect in federal court as the judgment foreclosure, and thus demonstrates that their claims in the would have had in state court.” Burka v. New York City current suit arise from the same transaction as LoanCare's Transit Auth., 32 F.3d 654, 657 (2d Cir. 1994). Further, federal claim in the previous foreclosure action. Done, 2009 WL courts must apply the doctrine of res judicata according to 2959619, at *4. Plaintiffs' claims arising from the origination the rules of the state from which the judgment is taken. See of the mortgage and attacking the ability of defendants to Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367, 373 enforce it in the foreclosure proceedings, (see Am. Compl.), (1996); Giardina v. Nassau Cnty., No. 08–CV–2007, 2010 not only could have been raised as a defense to foreclosure WL 1850793, at *3 (E.D.N.Y. May 7, 2010). New York State in the state court, but were actually raised, (see Kossar Decl. courts apply a transactional analysis, “barring a later claim Exs. I, J) and therefore cannot be relitigated in this Court. arising out of the same factual grouping as an earlier litigated See, e.g., Hinds v. Option One Mortg. Corp., No. 11–CV– claim even if the later claim is based on different legal theories 6149, 2012 WL 6827477, at *5 (E.D.N.Y. Dec. 6, 2012) or seeks dissimilar or additional relief.” Burka, 32 F.3d at 657 (report & recommendation), adopted by 2013 WL 132719 (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994) (E.D.N.Y. Jan. 10, 2013) (“Inasmuch as Plaintiff's fraud claim ); see Done, 2009 WL 2959619, at *3 (same). is premised on his allegations that Defendants obtained the underlying mortgage through predatory lending tactics and Res judicata applies when there was: (1) a previous action fraud, res judicata operates to preclude federal review of such that resulted in a final adjudication on the merits, (2) the party a claim ... [since the plaintiff's claims] arise from the same against whom res judicata is to be invoked was party to the factual grouping—namely the validity of Plaintiff's mortgage, previous action or in privity with a party to that action, and and the right of Defendants to enforce that agreement in a (3) the claims involved in the current case were, or could state court foreclosure proceeding”): Solomon v. Ocwen Loan have been, raised in the previous action. Swiatkowski, 745 Servicing, LLC, No. 12-CV-2856, 2013 WL 1715878, at *5 by plaintiff arise from the origination of the [m]ortgage federal action during the foreclosure action as counterclaims and attack the ability of defendants to enforce it in the and the relief sought by plaintiff was inconsistent with the foreclosure proceedings. These claims could have been raised ruling in the foreclosure action, the new claims were barred as a defense to foreclosure in state court, and therefore by the doctrine of res judicata).8 cannot be relitigated in a subsequent suit in federal court.”); Swiatkowski, 745 F. Supp. 2d at 171 (“Many of the factual 8 “Although New York's permissive counterclaim allegations plaintiff raises in opposition to the instant motion rule means that res judicata generally will not to dismiss involve issues that could have been raised as claims necessarily bar claims that could have been or defenses in the state court [foreclosure] proceedings.”); counterclaims in a prior action, this exception Gray v. Americredit Fin. Servs., Inc., No. 07 Civ. 4039, 2009 for counterclaims does not permit an attack on WL 1787710, at *6 n. 2 (S.D.N.Y. June 23, 2009) (“Plaintiff's a judgment” previously issued by the state court. allegations of fraud regarding the underlying loan transaction Beckford v. Citibank N.A., No. 00 Civ. 205, 2000 do not appear to be of the type recognized by certain courts as WL 1585684, at *3 (S.D.N.Y. Oct. 24, 2000) immune from res judicata.”); Yeiser v. GMAC Mortg. Corp., (internal quotation omitted). 535 F.Supp.2d 413, 421 (S.D.N.Y. 2008) (“According to New York law, ... res judicata ... applies to defenses that could have Lastly, the present action satisfies the privity requirement for been litigated, including defenses to a foreclosure.”). claim preclusion since LoanCare commenced the foreclosure proceeding and is a named party to the current action. *7 Whether cast as violations of RESPA, or regulations Further, Selene, a non-party to the earlier state court action governing the National Housing Act, plaintiffs effectively may still invoke claim preclusion if it can demonstrate allege that defendants improperly obtained the foreclosure that it was in privity with a party to the earlier action. judgment due to lack of standing based on fraud or “fraud See Houdet v. U.S. Tennis Ass'n, No. 13-CV-5131, 2014 in the inducement”. (See Am. Compl.) However, plaintiffs WL 6804109, at *4 (E.D.N.Y. Dec. 3, 2014) (finding res asserted these claims, albeit in different form, in the state judicata to apply “not just to the parties in a prior litigation foreclosure action as affirmative defenses in their verified but also to those in privity with them” where the “new answer, in their opposition to LoanCare's summary judgment defendants have a sufficiently close relationship to justify motion, and in support of their own cross motion for summary [its] application” (internal quotation marks omitted) ). “A judgment. (Kossar Decl. Exs. I, J.) Specifically, in the state relationship of privity ‘includes those who are successors action, plaintiffs alleged that LoanCare had no standing to a property interest, those who control an action although to bring a foreclosure action, had “unclean hands,” and not formal parties to it, [and] those whose interests are misled, overcharged and defrauded plaintiffs in the mortgage represented by a party to the action.’ ” Modular Devices, application, closing and servicing process. (Id., Ex. I at ¶ ¶ 3, Inc. v. Alcatel Alenia Space Espana, No. 08-CV-1441, 2010 8, 14, 18) The state court considered and ultimately dismissed WL 3236779, at *4 (E.D.N.Y. Aug. 12, 2010) (quoting Ferris plaintiffs' affirmative defenses and denied plaintiffs' summary v. Cuevas, 118 F.3d 122, 126 (2d Cir. 1997) ). Under New judgment; instead, granting summary judgment in LoanCare's York law, both the party servicing the mortgage and the party favor. (Kossar Decl. Ex. J.) “If plaintiffs were unhappy with that later acquires it (becoming a successor in interest) are the result of that proceeding, the proper recourse was a state considered to be in privity with the party to the original action court appeal. Because plaintiffs could have presented the concerning the mortgage for purposes of res judicata. Yeiser, same claims they now assert, including the RESPA claim, as 535 F. Supp. 2d at 423. defenses or counterclaims in the action for foreclosure, the doctrine of res judicata bars this litigation.” Yeiser, 535 F. The facts alleged in the amended complaint establish privity Supp. 2d at 422 (citing 12 U.S.C. § 2614, which authorizes between Selene and LoanCare, as LoanCare assigned the an action, pursuant to the provisions of RESPA, to be brought mortgage to Selene on March 31, 2015—after final judgment in the federal district court or in any other court of competent in the state foreclosure action. See Yeiser, 535 F. Supp. 2d jurisdiction in which the property involved is located, or at 423 (“[s]ince the loan was transferred to GRP in May where the violation is alleged to have occurred); Mercado v. 2005,” almost one year after the state foreclosure action, Playa Realty Corp., No. CV 03-3427, 2005 WL 1594306, at “GRP is a successor to that interest and is also in privity *7 (E.D.N.Y. July 7, 2005) (determining that because plaintiff with [the original note holder],” which was the plaintiff in n.8 (finding the privity requirement satisfied where Wells the factual issues raised in the amended complaint in the Fargo was not a party in the state court proceeding, but state foreclosure action. And, those issues were decided bought the subject property at a foreclosure sale, rendering it in LoanCare's favor. As discussed supra, plaintiffs already a successor in interest). Thus, the requirements of res judicata challenged the validity of the assignment of the mortgage are satisfied here. to LoanCare and its standing to foreclose on the Bay Shore property in state court, and the state court necessarily Therefore, to the extent Rooker-Feldman does not deprive this rejected those arguments when it found LoanCare had a valid Court of subject matter jurisdiction over plaintiffs' claims, the claim to the Bay Shore property and entered judgment of claims are barred by the doctrine of res judicata and must be foreclosure on that property. No appeal was filed in that dismissed. action. Accordingly, plaintiffs cannot relitigate these issues against defendant LoanCare in federal court. See Graham v. Select Portfolio Servicing, Inc., 156 F. Supp. 3d 491, 505–06 D. Collateral Estoppel (S.D.N.Y. 2016). Plaintiffs' claims are also precluded under the narrower doctrine of collateral estoppel. “Collateral estoppel, or Plaintiffs are also precluded from litigating these same issues issue preclusion, ‘precludes a party from relitigating in a against Selene, despite the fact that Selene was not a party subsequent action or proceeding an issue clearly raised in a to the initial suit in state court. See Jasper v. Sony Music prior action or proceeding and decided against that party ... Entm't, Inc., 378 F. Supp. 2d 334, 343 (S.D.N.Y. 2005) (“By whether or not the tribunals or causes of action are the same.’ binding the plaintiff to earlier judicial decisions in which he ” Sullivan v. Gagnier, 225 F.3d 161, 166 (2d Cir. 2000). was a party, defensive collateral estoppel precludes a plaintiff Whether relitigation of an issue is precluded is determined from getting a second bite at the apple merely by choosing a by the rules of the court that rendered the prior judgment. new adversary.”); see also Fequiere v. Tribeca Lending, No. Id. “Under New York law, the doctrine of collateral estoppel 14-CV-812, 2016 WL 1057000, at *9–10 (E.D.N.Y. Mar. 11, requires that ‘the issue in the second action [be] identical to 2016) (applying defensive non-mutual collateral estoppel to an issue which was raised, necessarily decided and material FDCPA claim). in the first action.’ ” Hines v. HSBC Bank USA, No. 15- CV-3082, 2016 WL 5716749, at *9 (E.D.N.Y. Sept. 30, 2016) Accordingly, the Court grants defendants' motions to dismiss (quoting Parker v. Blauvelt Volunteer Fire Co., 93 N.Y.2d plaintiffs' claims because they are precluded pursuant to the 343, 349 (1999) ). Thus, “[b]efore collateral estoppel can doctrine of collateral estoppel.9 be invoked, the court must find that an identical issue was necessarily decided in the prior action and is decisive of the 9 present action, and that there was a full and fair opportunity to Because plaintiffs' claims fail under Rooker- contest the decision now said to be controlling.” Yeiser, 535 Feldman, res judicata and collateral estoppel, the F. Supp. 2d at 424 (internal citation omitted). Court need not reach the defendants' alternative arguments in support of dismissal. *8 “To determine whether the issue in the first litigation was necessarily decided, the focus is on the rights, questions or E. Sanctions facts that underlie a judicial decision, not the legal theories Pursuant to Rule 11 of the Federal Rules of Civil Procedure underlying the complaint.” Id. at 424-25 (citing Coveal v. (“Rule 11”), defendant LoanCare seeks to impose sanctions Consumer Home Mortgage, Inc., 2005 WL 2708388, at *5 on plaintiffs in the form of attorneys' fees incurred in (E.D.N.Y. Oct. 21, 2005) ) “New York requires only that defendant's defense of the instant action. (Def. LoanCare's the issue have been properly raised by the pleadings or Mot. to Dismiss, ECF No. 39-7 at 19-20.) For the reasons otherwise placed in issue and actually determined in the prior discussed below, defendant's motion is denied. proceeding.” Id. (finding collateral estoppel to be applicable where all the facts giving rise to the amended complaint were As an initial matter, the Court notes that LoanCare has not presented in the foreclosure proceeding even though plaintiffs satisfied the procedural requirements for filing a sanctions did not allege all of the same causes of action). motion. Rule 11 requires that a motion for sanctions “be made separately from any other motion and ... describe the motion for sanctions. Plaintiffs' claims against defendants would be futile.” Boddie v. N.Y. State Div. of Parole, No. 08- are plainly without merit. Nevertheless, this alone does not CV-911, 2009 WL 1033786, at *5 (E.D.N.Y. Apr. 17, 2009). warrant sanctions, particularly as plaintiff is proceeding pro Here, the Court has carefully considered whether plaintiffs se. Although Rule 11 does apply to pro se litigants, the court should be granted leave to amend the complaint. Having may take into account the “special circumstances of litigants who are untutored in the law,” Maduakolam v. Columbia decided plaintiffs' claims are barred by Rooker-Feldman, res Univ., 866 F.2d 53, 56 (2d Cir. 1989), as well as whether judicata and collateral estoppel, the Court finds that any such a litigant has been warned of the possible imposition amendment of these claims would be futile. For these reasons, of sanctions. See Kuntz v. Pardo, 160 B.R. 35, 40 (S.D.N.Y. the Court declines to grant plaintiffs leave to amend. 1993); see also Fed. R. Civ. P. 11 advisory committee's note to the 1993 amendments (stating that the court should consider, inter alia, whether the motion was made in bad III. CONCLUSION faith). There are no facts indicating that plaintiff instituted or maintained this lawsuit in bad faith or that they were warned For the reasons stated above, the Court grants defendants' of the imposition of sanctions. For all of the above reasons, motions and dismisses plaintiffs' amended complaint in its LoanCare's request for sanctions is denied. entirety. The Clerk of Court is directed to close this case and send a copy of this Order to pro se plaintiffs. F. Leave to Amend *9 Pro se plaintiffs are ordinarily given the opportunity “to SO ORDERED. amend at least once when a liberal reading of the complaint All Citations gives any indication that a valid claim might be stated.” Shomo v. City of New York, 579 F.3d 176, 183 (2d Cir. 2009) Not Reported in Fed. Supp., 2018 WL 4185705 (internal quotation omitted). Nevertheless, “a district court End of Document © 2023 Thomson Reuters. No claim to original U.S. Government Works. 2022 WL 19236195 meritless legal theory.” Neitzke, 490 U.S. at 327, 109 S.Ct. Only the Westlaw citation is currently available. 1827. A claim lacks an arguable basis in fact when it describes United States District Court, E.D. North Carolina, “fantastic or delusional scenarios.” Id. at 327–28, 109 S.Ct. Southern Division. 1827. Kathy Juanita REAVES, Plaintiff, In order to state a claim on which relief may be granted, “a v. complaint must contain sufficient factual matter, accepted as Angela FAULKNER, et al., Defendants. true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 No. 7:22-CV-40-FL L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 | U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Signed October 12, 2022 “Factual allegations must be enough to raise a right to relief above the speculative level....’ ” Twombly, 550 U.S. at 555, Attorneys and Law Firms 127 S.Ct. 1955. While a complaint need not contain detailed factual allegations, the plaintiff must allege more than labels Kathy Juanita Reaves, Mullins, SC, Pro Se. and conclusions. Id. In the present case, Plaintiff is proceeding pro se, and ORDER AND MEMORANDUM pleadings drafted by a pro se litigant are held to a less AND RECOMMENDATION stringent standard than those drafted by attorneys. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d Robert B. Jones, Jr., United States Magistrate Judge 652 (1972). This court is charged with liberally construing a *1 This matter is before the court on Plaintiffs amended pleading filed by a pro se litigant to allow for the development application to proceed in forma pauperis, [DE-10], and of a potentially meritorious claim. See id.; Estelle v. Gamble, for frivolity review of the complaint, [DE-1-1], pursuant 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); to 28 U.S.C. § 1915(e)(2)(B). Plaintiff has demonstrated Noble v. Barnett, 24 F.3d 582, 587 n.6 (4th Cir. 1994). appropriate evidence of inability to pay the required court However, the principles requiring generous construction of costs, and the application to proceed in forma pauperis is pro se complaints are not without limits; the district courts allowed. However, it is recommended that the complaint be are not required “to conjure up questions never squarely dismissed. presented to them.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). I. Standard of Review Pursuant to 28 U.S.C. § 1915(e)(2)(B), the court shall dismiss II. Discussion the complaint if it is frivolous or malicious, fails to state a Plaintiff alleges she was employed as a CTE (career and claim upon which relief may be granted, or seeks money technical education) teacher at Townsend Middle School in damages from a defendant immune from such recovery. 28 Maxton, Robeson County, North Carolina. Her claims arise U.S.C. § 1915(e)(2)(B)(i–iii); see Adams v. Rice, 40 F.3d 72, from an incident that took place on December 6, 2021, 74 (4th Cir. 1994) (explaining Congress enacted predecessor when Plaintiff filed a grievance against defendant Freddie statute 28 U.S.C. § 1915(d) “to prevent abuse of the judicial Williamson, the Superintendent for the Robeson County system by parties who bear none of the ordinary financial Public Schools, for allegedly backdating her employment disincentives to filing meritless claims”). A case is frivolous contract without informing her. On December 10, 2021, if it lacks an arguable basis in either law or fact. See Neitzke v. Williamson had Plaintiff's work email blocked, and she was Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 unable login and access the CTE curriculum and standards. (1989); McLean v. United States, 566 F.3d 391, 399 (4th Cir. On January 28, 2022, Plaintiff asked Defendant Catherine 2009) (“Examples of frivolous claims include those whose Truitt, the State Superintendent of North Carolina Public factual allegations are ‘so nutty,’ ‘delusional,’ or ‘wholly Schools, to assist her in accessing the CTE curriculum but fanciful’ as to be simply ‘unbelievable.’ ”). A claim lacks an Truitt responded that she would not intervene. Plaintiff asserts CTE curriculum from December 10, 2021 through March 1. Claims on Behalf of Plaintiff's CTE Students 1, 2022, and the Board of Education conducted meetings Plaintiff asserts in her complaint that this case is not about her during this time but failed to address her grievances. Plaintiff but about the treatment of her CTE students, and she claims also alleges that Angela Faulkner, the principal at Townsend that her CTE students were damaged as a result of Defendants' Middle School, fraudulently entered grades for Plaintiff's wrongful acts. Id. at 3, 24, 26, 33, 38, 42–45, 47–50. CTE students in January 2022, despite the students being denied education, and Plaintiff reported the matter to the To the extent Plaintiff seeks to bring claims on behalf CTE coordinator, CTE director, and Truitt but they failed of her students, Plaintiff lacks standing to do so because to investigate or intervene. Plaintiff contends Defendants she proceeds in this matter unrepresented by counsel and, received state and federal money for these students to therefore, can only assert claims on her own behalf. See be educated but students were not educated during this Myers v. Louden Cnty. Pub. Schs., 418 F.3d 395, 400 (4th Cir. time period, and no Defendant intervened to remediate the 2005) (“The right to litigate for oneself ... does not create a discriminatory denial of education to Plaintiff's students or coordinate right to litigate for others.”) (citing Oxendine v. reported the denial of education as required under federal and Williams, 509 F.2d 1405, 1407 (4th Cir. 1975) (per curiam)). state law. On March 3, Plaintiff was suspended with pay for Accordingly, any claims brought on behalf of Plaintiff's ninety days in what she believes was a legal maneuver to students should be dismissed. remove her from the school premises pending prior litigation she filed in federal court for discrimination and retaliation. 2. Conspiracy to Defraud the United States – 18 U.S.C. Compl. [DE-1-1] at 2–7.1 § 371 Plaintiff contends that Defendants Williamson and Faulkner 1 The page number referenced is that assigned failed to report that Townsend Middle School was not in by CM/ECF, whereas here it differs from the compliance with federal law and that Plaintiff's CTE students document's internal page number. were discriminated against and denied CTE education, despite the Robeson County schools continuing receipt of *2 Plaintiff brings this action against Angela Faulkner, Title I, ESSA, and Covid-19 funding, all in an attempt to Freddie Williamson, Michael Mike Smith, Brenda Fairley- defraud the federal government. Compl. [DE-1-1] at 23–24. Ferebee, Herman Locklear, Demetria Grissett, Atkins Trey Michael, the Public Schools of Robeson County, the Public The conspiracy statute under which Plaintiff attempts to assert Schools of Robeson County Board of Education, Catherine a claim is criminal in nature and does not provide for a Truitt, Roy Cooper, the Public Schools of North Carolina, the civil private right of action. See Hankins v. United States, North Carolina Department of Public Instruction, the North No. 7:20-CV-179-FL, 2021 WL 4437502, at *5 (E.D.N.C. Carolina State Board of Education, and the State of North Aug. 30, 2021) (recommending on frivolity review that a Carolina. Plaintiff asserts Defendants violated 18 U.S.C. § claim under 18 U.S.C. § 371 be dismissed because the 371, Title I of the Elementary and Secondary Education Act, statute does not provide for a civil private cause of action), the Every Student Succeeds Act (“ESSA”), Chapter 115C report and recommendation adopted, 2021 WL 4428192 of the North Carolina General Statutes for Elementary and (E.D.N.C. Sept. 27, 2021); see also Tribble v. Reedy, 888 Secondary Education, the North Carolina State Tort Claims F.2d 1387, 1989 WL 126783 (4th Cir. 1989) (per curiam) Act, 20 U.S.C. Chapters 39 and 44, the Due Process and (“Unless there is a clear Congressional intent to provide a civil Equal Protection Clauses of the Fourteenth Amendment to remedy, a plaintiff cannot recover civil damages for an alleged the United States Constitution, Title VII of the Civil Rights violation of a criminal statute.”); Dingle v. Baggett, No. 5:19- Act of 1964, the North Carolina Retaliatory Employment CV-00425-D, 2020 WL 5245986, at *5 (E.D.N.C. July 31, Discrimination Act (“REDA”), and she also asserts claims 2020) (“[C]riminal statutes ‘proscribe crimes; they do not, of under state law for interference with contractual obligations, themselves, create civil liability.’ ”) (quoting Kebort v. Stiehl, negligent hiring and retention, and abuse of power/bullying No. 5:17-CV-418-D, 2018 WL 2927762, at *3 (E.D.N.C. or intentional infliction of emotional distress. Plaintiff seeks May 17, 2018)), objections overruled, 2020 WL 5217393 monetary damages for herself and on behalf of her CTE (E.D.N.C. Sept. 1, 2020), aff'd, 860 F. App'x 41 (4th Cir. students. Id. at 1–2, 23–49. 2021). Accordingly, this claim should be dismissed. 3. Failure to Report – Title I and ESSA [DE-1-1] at 27, 38–40. Plaintiff alleges Defendants Public Schools of Robeson County, Freddie Williamson, and Angela Faulkner failed Section 115C-276(e) provides that a local superintendent to provide the parents of Plaintiff's CTE students a true has a duty to “furnish as promptly as possible to the State accounting of the events between December 10, 2021 and Superintendent when requested by him, information and February 28, 2022, as required by Title I parent liaison statistics on any phase of the school work in his administrative reporting and ESSA, and therefore denied parents the unit.” N.C. Gen. Stat. § 115C-276(e). Section 115C-288(b) opportunity to mitigate the problem or move their children to outlines the powers and duties of school principals, including another resource. Compl. [DE-1-1] at 25–26, 43–44. Plaintiff the duty to make accurate reports to the superintendent and further alleges that the Public Schools of Robeson County local school board on certain matters and the penalties for did not refund any of the federal or state funding it received making false reports. Id. § 115C-288(b). Section 115C-307 for the CTE students during the time period at issue. Id. outlines the duties of teachers, including a duty to teach at 25. Throughout Plaintiff's complaint she also alleges that students “as thoroughly as they are able,” and contains Defendants violated ESSA reporting requirements, 20 U.S.C. reporting requirements similar to those of principals. Id. § § 6301, et seq. Courts have concluded that there is no private 115C-307. None of these statutes expressly provide for a right of action under Title I of the Elementary and Secondary private right of action, and North Carolina “case law generally Education Act of 1965. See, e.g., Bradford v. Morehouse holds that a statute allows for a private cause of action Par. Sch. Bd., No. CV 18-1536, 2019 WL 572981, at *5 only where the legislature has expressly provided a private (W.D. La. Jan. 28, 2019) (citing Chester Upland Sch. Dist. cause of action within the statute.” Lea v. Grier, 156 N.C. v. Pennsylvania, No. 12-132, 2012 WL 1344368, at *7 (E.D. App. 503, 508, 577 S.E.2d 411, 415 (2003) (quoting Vanasek Pa. Apr. 17, 2012); Scott v. Conley, No. 15-0371, 2016 v. Duke Power Co., 132 N.C. App. 335, 339, 511 S.E.2d WL 4257507, at *2 (D. Utah July 18, 2016), report and 41, 44 (1999)); Benjamin v. Sparks, 173 F. Supp.2d 272, recommendation adopted, 2016 WL 4257339 (D. Utah Aug. 291 (E.D.N.C. 2016) (citing Lea). Accordingly, these claims 11, 2016)), report and recommendation adopted, No. 2019 should be dismissed. WL 576007 (W.D. La. Feb. 12, 2019). Likewise, the ESSA, which amended the No Child Left Behind Act, Dickerson v. D.C., No. CV 09-2213 (PLF), 2022 WL 656172, at *1 5. North Carolina Tort Claims Act (D.D.C. Mar. 3, 2022), provides no private right of action. See Plaintiff asserts Defendants violated the North Carolina Simmons v. Putnam/N. Westchester Bd. of Coop. Educ. Servs., Tort Claims Act by concealing and failing to report the No. 19 CV 10388 (VB), 2022 WL 294753, at *2 (S.D.N.Y. discrimination against and denial of education to her CTE Feb. 1, 2022) (noting the No Child Left Behind Act “does students and intentionally inflicting emotional distress on her not contemplate a private right of action.”) (citing Horne v. by failing to intervene. Compl. [DE-1-1] at 26–27. Flores, 557 U.S. 433, 456 n.6, 129 S.Ct. 2579, 174 L.Ed.2d 406 (2009)); A. W. v. Tennessee Dep't of Educ., No. 3:20- “Under the North Carolina Tort Claims Act ..., the Industrial CV-76, 2021 WL 6246563, at *8 n.6 (E.D. Tenn. Apr. 14, Commission has exclusive jurisdiction over claims against 2021) (noting the plaintiffs provided no case precedent or the State, state departments, institutions, and agencies for support for the proposition that ESSA provides a private right personal injuries or damages sustained by any person due to of action). Accordingly, these claims should be dismissed. the negligence of [a] state officer, agent, or employee acting within the scope of his employment.” Carmona v. North Carolina, No. 3:21-CV-00211-MR, 2021 WL 2295517, at 4. N.C. Gen. Stat. §§ 115C-276(e), 115C-288(b) and *1 (W.D.N.C. May 26, 2021) (citing Guthrie v. State 115C-307 Ports Authority, 307 N.C. 522, 299 S.E.2d 618 (1983)). *3 Plaintiff contends Defendants Faulkner and Williamson Furthermore, Plaintiff asserts a claim of intentional infliction violated N.C. Gen. Stat. §§ 115C-276(e), 115C-288(b), of emotional distress rather than negligent conduct. See and 115C-307 by failing to make accurate reports to the Vincent v. N. C. Dep't of Trans., No. 1:20-CV-51, 2020 Superintendent and Board of Education regarding the events WL 5710710, at *11 (M.D.N.C. Sept. 24, 2020) (concluding surrounding Plaintiffs CTE students between December 10, intentional infliction of emotional distress is an intentional 2021 and February 28, 2022, failing to recommend the return tort) (citing Dickens v. Puryear, 302 N.C. 437, 452–53, on intentional acts,” and “[a]s such, injuries intentionally 7. 20 U.S.C. Chapter 44 – Career and Technical inflicted by employees of a state agency are not compensable Education under the Act.” Id. at *2 (citing Frazier v. Murray, 135 Plaintiff alleges she was not provided a CTE Teacher N.C.App. 43, 519 S.E.2d 525, 528 (N.C. App. 1999)); see Mentor; she never met Defendants Demetria Grissett, the also Reaves v. Brooks Pierce - Greensboro, No. 7:22-CV-53- CTE Coordinator for the Public Schools of Robeson County, FL, 2022 WL 2374621, at *1 (E.D.N.C. June 30, 2022) or Trey Michael, the CTE Director for the North Carolina (concluding plaintiffs claims under the North Carolina Tort Public Schools; she only saw Defendant Williamson on the Claims Act “fail given the forum in which it was brought day he suspended her with pay for ninety days; her students and the intentional nature of the wrongs she alleges.”) (citing were denied CTE education pursuant to 20 U.S.C. Chapter White v. Trew, 366 N.C. 360, 363, 736 S.E.2d 166 (2013) 44 during the time her work email was blocked; and all (explaining that “intentional acts of [state employees] are Defendants are in violation of Chapter 44. Compl. [DE-1-1] not compensable” under the Tort Claims Act)). Accordingly, at 27–33, 38–39. Plaintiff's claims under the North Carolina Tort Claims Act should be dismissed. The purpose of Chapter 44, 20 U.S.C. §§ 2301–2414, is “to develop more fully the academic knowledge and technical and employability skills of secondary education students and 6. 20 U.S.C. Chapter 39 – Equal Educational postsecondary education students who elect to enroll in career Opportunities and Transportation of Students and technical education programs and programs of study.” 20 *4 Plaintiff alleges that during the 2021–22 school year, U.S.C. § 2301. Plaintiff fails to point to a specific provision of there was no certified math teacher at Townsend Middle Chapter 44 that she claims Defendants violated, and it appears School and Defendants failed to provide the students with from Plaintiff's allegations that the asserted harm is to the basic math skills. Compl. [DE-1-1] at 33–34. Plaintiff also CTE students rather than any harm personal to Plaintiff. As alleges that Defendants violated 20 C.F.R. § 1703 and “20 explained above, Plaintiff may not bring claims on behalf of CFR 39,” which appears to be a reference to Chapter 39 and her students. See Myers, 418 F.3d at 400. Accordingly, these more specifically the Equal Educational Opportunity Act, 20 claims should be dismissed. U.S.C. § 1701, et seq., by denying students equal educational opportunity. Id. at 3, 6, 9–10, 19–20. 8. Due Process Section 1703 prohibits a state from denying equal educational Plaintiff alleges a violation of her Fourteenth Amendment opportunity to an individual on account of race, color, sex, or procedural due process rights, which the court construes as a national origin by (a) segregating students on the basis of race, claim under 42 U.S.C. § 1983, based on Defendant Faulkner's color, or national origin, (b) failing to remove the vestiges of attempt to conduct a teacher evaluation of Plaintiff between a dual school system, (c) assigning students to certain schools March 1 and 3, 2022, without having provided Plaintiff in a discriminatory manner, (d) discriminating against faculty with any training pursuant to the employment contract, and and staff on the basis of race, color, or national origin in Plaintiffs suspension with pay on March 3, 2022. Compl. employment, employment conditions, and school assignment, [DE-1-1] at 40–42. (e) transferring students for purposes of segregation based on race, color, or national origin, and (f) failing to take action to To state a procedural due process claim, a plaintiff must overcome language barriers that impede equal participation allege “(1) a cognizable liberty or property interest; (2) the by students. 20 U.S.C. § 1703. Plaintiff's complaint, liberally deprivation of that interest by some form of state action; construed, contains no allegations to support a plausible and (3) that the procedures employed were constitutionally inference that the conduct of which Plaintiff complains had inadequate.” Iota Xi Chapter of Sigma Chi Fraternity v. anything to do with race, color, sex, or national origin. Patterson, 566 F.3d 138, 145 (4th Cir. 2009). The Supreme Furthermore, it appears Plaintiff is attempting to assert claims Court in Zinermon v. Burch, explained the relevance of state on behalf of students, which she may not do. See Myers, 418 remedies to a § 1983 claim for violation of procedural due F.3d at 400. Accordingly, it is recommended that these claims process: be dismissed. *5 A § 1983 action may be brought for a violation of procedural due process, but here the existence of state due process claims, the deprivation by state action S.E.2d 438 (2017) (dismissing a teacher's federal procedural of a constitutionally protected interest in “life, liberty, due process claim and finding “[t]he statutory scheme set out or property” is not in itself unconstitutional; what is in N.C. Gen. Stat. § 115C-325 provided Plaintiff with all of unconstitutional is the deprivation of such an interest the procedural due process to which he was constitutionally without due process of law. Parratt, 451 U.S. at 537, 101 entitled,” and the plaintiff failed to take advantage of the S. Ct. at 1913; Carey v. Piphus, 435 U.S. 247, 259, 98 process afforded to him). Accordingly, it is recommended that S. Ct. 1042, 1050, 55 L.Ed.2d 252 (1978) (“Procedural Plaintiff's due process claim be dismissed. due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property”). The constitutional 9. Equal Protection violation actionable under § 1983 is not complete when Plaintiff alleges that her students were discriminated against the deprivation occurs; it is not complete unless and and segregated from learning the CTE curriculum when until the State fails to provide due process. Therefore, to her email address was blocked and her access to the CTE determine whether a constitutional violation has occurred, curriculum was denied, and no other North Carolina Public it is necessary to ask what process the State provided, School students were denied the CTE curriculum. Compl. and whether it was constitutionally adequate. This inquiry [DE-1-1] at 43. would examine the procedural safeguards built into the statutory or administrative procedure of effecting the The Equal Protection Clause provides that “[n]o State shall ... deprivation, and any remedies for erroneous deprivations deny to any person within its jurisdiction the equal protection provided by statute or tort law. of the laws.” U.S. Const. amend. XIV, § 1. “To succeed on an equal protection claim, a plaintiff must first demonstrate 494 U.S. 113, 125–26, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990). that he has been treated differently from others with whom he is similarly situated and that the unequal treatment was the First, Plaintiff has not plausibly alleged that Faulkner's result of intentional or purposeful discrimination.” Morrison attempt to evaluate her deprived her of any liberty or property v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001). A plaintiff interest. Second, assuming Plaintiff has a property interest must set forth “specific, non-conclusory factual allegations in her employment, she has not plausibly alleged that her that establish improper motive.” Williams v. Hansen, 326 suspension with pay constituted a procedural due process F.3d 569, 584 (4th Cir. 2003) (quoting Trulock v. Freeh, violation. Under North Carolina law, the superintendent may, 275 F.3d 391, 405 (4th Cir. 2001)) (internal quotations under certain circumstances, suspend a teacher with pay for omitted). Plaintiff has failed to state any facts in her a reasonable period of time, not to exceed ninety days. N.C. complaint from which the court could infer the alleged Gen. Stat. § 115C-325.5(c). If the superintendent does not unequal treatment resulted from an improper motive or initiate dismissal or demotion proceedings against the teacher purposeful discrimination and, thus, has failed to state an within the ninety-day period, the teacher must be reinstated equal protection claim. See Harris v. Unit Manager Avcook, immediately. Id. There are notice and hearing procedures No. 5:15-CT-3261-D, 2016 WL 2931630, at *3 (E.D.N.C. regarding the dismissal or demotion of a teacher for cause set Apr. 11, 2016) (finding failure to set forth “specific, non- forth in N.C. Gen. Stat. § 115C-325.6. conclusory factual allegations” that establish an improper motive warranted dismissal of equal protection claim on Plaintiff's complaint alleges that she was suspended with pay frivolity review), report and recommendation adopted sub for ninety days on March 3, 2022. Compl. [DE-1-1] at 3, 41– nom. Harris v. Avcook, 2016 WL 2917412 (E.D.N.C. May 42. Plaintiff filed her complaint on March 11, 2022, prior to 18, 2016). Accordingly, it is recommended that this claim be the end of the ninety-day period, and there is no allegation dismissed. that any dismissal or demotion proceedings had been initiated against her by the superintendent. Thus, under North Carolina state law, Plaintiff was not yet due a hearing. Because an 10. Title VII actionable constitutional violation “is not complete unless *6 Plaintiff alleges Defendants violated Title VII of the and until the State fails to provide due process,” Zinermon, Civil Rights Act of 1964 by discriminating against her and 494 U.S. at 126, 110 S.Ct. 975, Plaintiff has failed to state her students through the denial of CTE education and her Title VII prohibits an employer from “discharg[ing] to survive a motion to dismiss, he must state a plausible right any individual, or otherwise ... discimin[ating] against to relief.” Ofoche v. Apogee Med. Grp., Va., P.C., 815 F. App'x any individual with respect to his compensation, terms, 690, 692 (4th Cir. 2020) (citing Woods v. City of Greensboro, conditions, or privileges of employment, because of such 855 F.3d 639, 648 (4th Cir. 2017)). To state a plausible individual's race, color, religion, sex, or national origin....” 42 claim, the complaint must contain allegations from which U.S.C.A § 2000e-2(a). A plaintiff is required to exhaust her the court could find that defendant took adverse employment administrative remedies by bringing a charge with the Equal action against plaintiff because of a protected characteristic. Employment Opportunity Commission (“EEOC”) before See McCleary-Evans v. Maryland Dep't of Transp., State filing suit. See Walton v. Harker, 33 F.4th 165 (4th Cir. 2022) Highway Admin., 780 F.3d 582, 585 (4th Cir. 2015). (citing 42 U.S.C. § 2000e-5(b), (f); 29 U.S.C. § 633a(d)). “The allegations contained in the administrative charge of *7 Plaintiff alleges generally that discrimination took place discrimination generally operate to limit the scope of any but makes no factual allegations from which the court could subsequent judicial complaint.” Evans v. Techs. Applications draw a plausible inference that any adverse action was & Serv. Co., 80 F.3d 954, 962–63 (4th Cir. 1996) (citing taken against her because of her race or other protected King v. Seaboard Coast Line R.R., 538 F.2d 581, 583 characteristic. See Persaud v. Morgan State Univ., 34 F.3d (4th Cir. 1976)). While the charge-filing requirement is not 1066, 1994 WL 446797, at *2 (4th Cir. 1994) (“Conclusory jurisdictional, i.e., it can be forfeited if not timely raised, allegations of discrimination are insufficient to state a the requirement is mandatory. See Fort Bend Cnty., Texas v. claim.”) (citing Simpson v. Welch, 900 F.2d 33, 35 (4th Davis, ––– U.S. ––––, 139 S. Ct. 1843, 1849-51, 204 L.Ed.2d Cir. 1990)). As for Plaintiff's claims on behalf of students, 116 (2019); Rios v. City of Raleigh, No. 5:19-CV-00532-M, Plaintiff may not bring such claims. See Myers, 418 F.3d at 2020 WL 5603923, at *7 (E.D.N.C. Sept. 18, 2020). The 400. Accordingly, it is recommended that these claims be court may consider affirmative defenses sua sponte when a dismissed. litigant seeks to proceed in forma pauperis. See Eriline Co. S.A. v. Johnson, 440 F.3d 648, 655 (4th Cir. 2006) (citing Nasim v. Warden, Md. House of Correction, 64 F.3d 951, 11. REDA 953–54 (4th Cir. 1995)). Plaintiff has not alleged that she Plaintiff alleges that she filed a REDA complaint and exhausted her administrative remedies by filing a charge “on March 3, 2022 the NCDOL found probable cause with the EEOC prior to bringing this action. See Francisco to move forward with a retaliatory complaint against Ramos v. Def. Commissary Agency, No. 5:18-CV-380-BO, defendants Public Schools of Robeson County and defendant 2020 WL 1165282, at *1 (E.D.N.C. Mar. 9, 2020) (dismissing Freddie Williamson pursuant to REDA Retaliation.” Compl. Title VII claim where plaintiff did not file a charge with the [DE-1-1] at 20. However, Plaintiff does not allege that her EEOC), aff'd, 822 F. App'x 217 (4th Cir. 2020). Accordingly, administrative remedies have been exhausted, i.e., that she Plaintiff's Title VII claim should be dismissed for failure to has received a right to sue letter, which is a prerequisite to exhaust administrative remedies. bringing a REDA claim in federal court. See Krings v. AVL Techs., No. 1:20-CV-259-MR-WCM, 2021 WL 1235129, at Alternatively, Plaintiff has failed to plausibly allege that *5 (W.D.N.C. Feb. 10, 2021) (“[A] REDA claim requires a she was discriminated against because of her race or other plaintiff to first obtain a right-to-sue letter.”) (citing Whitfield protected characteristic in violation of Title VII. There are no v. DLP Wilson Med. Ctr., LLC, 482 F. Supp. 3d 485, 496 allegations in the complaint that constitute direct evidence of (E.D.N.C. 2020) (“Before filing a lawsuit under REDA, discrimination. “Absent direct evidence [of discrimination], plaintiff must file a complaint with the North Carolina the elements of a prima facie case of discrimination under Commissioner of Labor, obtain a right-to-sue letter from Title VII are: (1) membership in a protected class; (2) the Commissioner, and file suit within 90 days of receiving satisfactory job performance; (3) adverse employment action; that letter. These claim processing rules are mandatory under and (4) different treatment from similarly situated employees North Carolina law.”)), report and recommendation adopted, outside the protected class.” Coleman v. Md. Ct. of Appeals, 2021 WL 1233478 (W.D.N.C. Apr. 1, 2021); Satterwhite 626 F.3d 187, 190 (4th Cir. 2010) (citing White v. BFI Waste v. Wal-Mart Stores E., L.P., No. 5:11-CV-363-BO, 2012 Servs., LLC, 375 F.3d 288, 295 (4th Cir. 2004)), aff'd, 566 U.S. WL 255347, at *3 (E.D.N.C. Jan. 26, 2012) (stating that 30, 132 S.Ct. 1327, 182 L.Ed.2d 296 (2012). “Although an “[i]n order to bring a civil complaint under REDA, a right-to-sue-letter.”). Accordingly, it is recommended that Mellon Univ. v. Cohill, 484 U.S. 343, 350, 108 S.Ct. 614, 98 Plaintiff's REDA claim be dismissed for failure to exhaust her L.Ed.2d 720 (1988)). administrative remedies. III. Conclusion 12. State Law Tort Claims *8 For the reasons stated herein, Plaintiffs application to Plaintiff alleges Defendants interfered with her contractual proceed in forma pauperis is allowed, and it is recommended obligations and subjected her to bullying and intentional that the complaint be dismissed without prejudice. infliction of emotional distress, and she also alleges negligent hiring and retention and vicarious liability. Compl. [DE-1-1] IT IS DIRECTED that a copy of this Memorandum and at 27, 44–46. These are state law tort claims. See Parks v. N.C. Recommendation be served on Plaintiff. You shall have Dep't of Pub. Safety, No. 5:13-CV-74-BR, 2014 WL 32064, until October 26, 2022 to file written objections to the at *5 (E.D.N.C. Jan. 6, 2014) (concluding plaintiff's claim for Memorandum and Recommendation. The presiding district tortious interference with contractual or prospective business judge must conduct his or her own review (that is, make a de relations was an intentional tort) (citing Blue Ridge Pub. novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made Safety, Inc. v. Ashe, 712 F. Supp. 2d 440, 447–48 (W.D.N.C. and may accept, reject, or modify the determinations in 2010)) (under North Carolina law, tortious interference with the Memorandum and Recommendation; receive further contract and tortious interference with prospective economic evidence; or return the matter to the magistrate judge with advantage are intentional torts); Charles E. Daye & Mark instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. W. Morris, North Carolina Law of Torts §§ 14.10-14.60 (2d P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of ed. 1999); Taylor v. Fed. Express Corp., No. 5:19-CV-101- deadlines specified in local rules), 72.4(b), E.D.N.C. FL, 2021 WL 5985122, at *5 (E.D.N.C. Dec. 16, 2021) (recognizing intentional infliction of emotional distress is a If you do not file written objections to the Memorandum state law claim); White v. Pitt Cnty. Sch., No. 4:17-CV-00075- and Recommendation by the foregoing deadline, you will BR, 2018 WL 1020123, at *3 (E.D.N.C. Feb. 22, 2018) be giving up the right to review of the Memorandum and (considering claims for bullying and harassment as state law Recommendation by the presiding district judge as described tort claims); A.G. v. Fattaleh, No. 5:20-CV-00165-KDB- above, and the presiding district judge may enter an order or DCK, 2022 WL 2758607, at *17 (W.D.N.C. July 14, 2022) judgment based on the Memorandum and Recommendation (characterizing negligent hiring and supervision and vicarious without such review. In addition, your failure to file written liability as state law claims). The court should decline objections by the foregoing deadline will bar you from to exercise jurisdiction over these state law claims where appealing to the Court of Appeals from an order or judgment Plaintiff has failed to state a federal claim. 28 U.S.C. § 1367 of the presiding district judge based on the Memorandum and (providing that a court may decline to exercise supplemental Recommendation. See Wright v. Collins, 766 F.2d 841, 846– jurisdiction if “the district court has dismissed all claims 17 (4th Cir. 1985). over which it has original jurisdiction”); Chesapeake Ranch Water Co. v. Bd. of Comm'rs of Calvert Cnty., 401 F.3d Submitted the 12th day of October, 2022. 274, 277 (4th Cir. 2005) (having dismissed federal claims, district court properly declined supplemental jurisdiction of state claims); Shanaghan v. Cahill, 58 F.3d 106, 110 (4th All Citations Cir. 1995) (recognizing that under § 1367(c), the district courts “enjoy wide latitude in determining whether or not Slip Copy, 2022 WL 19236195 to retain [supplemental] jurisdiction over state claims when End of Document © 2023 Thomson Reuters. No claim to original U.S. Government Works. 2023 WL 2614573 dismissed. (DE 11). Plaintiff did not file objections to the M Only the Westlaw citation is currently available. & R, and the time within which to make any objection has United States District Court, E.D. North Carolina, expired. In this posture, the issues raised are ripe for ruling. Southern Division. Upon careful review of the M & R, the court may “accept, Kathy Juanita REAVES, Plaintiff, reject, or modify, in whole or in part, the findings or v. recommendations made by the magistrate judge.” 28 U.S.C. Angela FAULKNER, Freddie Williamson, Michael § 636(b)(1). Because no objections have been filed, the court Mike Smith, Brenda Fairley-Ferebee, Herman Locklear, reviews the magistrate judge's findings anc conclusions only for clear error, and need not give any explanation for adopting Demetria Grissett, Atkins Trey Michael, Public Schools the M & R. Diamond v. Colonial Life & Acc. Ins. Co., 416 of Robeson County, Public Schools of Robeson County F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198, Board of Education, Catherine Truitt, Roy Cooper, Public 200 (4th Cir. 1983). Schools of North Carolina, North Carolina Department of Public Instruction, North Carolina State Board of Here, the magistrate judge recommends dismissal of Education, and State of North Carolina, Defendants. plaintiff's claims where the statutes under which she purports to sue do not provide a private right of action, she improperly NO. 7:22-CV-040-FL attempts to bring claims on behalf of others pro se, and she | fails to state a claim. Upon careful review of the M & R, the Signed March 23, 2023 court finds the magistrate judge's analysis to be thorough, and there is no clear error. Attorneys and Law Firms Kathy Juanita Reaves, Mullins, SC, Pro Se. The court therefore ADOPTS the recommendation of the recommendation of the magistrate judge as its own. For the reasons stated therein, plaintiff's’ complaint is DISMISSED ORDER WITHOUT PREJUDICE for failure to state a claim upon which relief can be granted, pursuant to 28 U.S.C. § 1915(e) LOUISE W. FLANAGAN, United States District Judge (2)(B). *1 This matter is before the court for review of plaintiff's pro SO ORDERED, this the 23rd day of March, 2023. se complaint (DE 1-1, 12) pursuant to 28 U.S.C. § 1915(e). United States Magistrate Judge Robert B. Jones, Jr. entered memorandum and recommendation (“M & R”), pursuant to All Citations 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure Slip Copy, 2023 WL 2614573 End of Document © 2023 Thomson Reuters. No claim to original U.S. Government Works. 2021 WL 302648 2019,2 Judge Bulsara filed a report and recommendation on Only the Westlaw citation is currently available. September 12, 2019 (the “R&R”), recommending that the United States District Court, E.D. New York. Court dismiss the Amended Complaint for lack of subject matter jurisdiction because both Plaintiff and Lyons were Kenric LEVER, Plaintiff, domiciled in New York. (R&R, Docket Entry No. 73.) On v. October 29, 2019, Plaintiff filed objections to the R&R. (Pl.’s Christina LYONS and Lescele Bogle, Defendants. Obj. to R&R (“Pl.’s Obj.”), Docket Entry No. 75.) 16-CV-5130 (MKB) (SJB) 2 (See Tr. of Hr'g dated Mar. 21, 2019 (“Lever Tr.”), | Docket Entry No. 62; Tr. of Hr'g dated Apr. 3, 2019 Signed 01/27/2021 (“Lyons Tr.”) filed Apr. 5, 2019, Docket Entry No. | 64.) Filed 01/28/2021 For the reasons explained below, the Court adopts the R&R Attorneys and Law Firms and dismisses the Amended Complaint without prejudice for lack of subject matter jurisdiction. Kenric Lever, Brooklyn, NY, pro se. Christina Lyons, Orange, NJ, pro se. I. Background Lescele Bogle, Eastampton, NJ, pro se. a. Procedural background After Plaintiff filed his Complaint on September 15, 2016, Defendants moved to dismiss it on August 9, 2017, for lack of MEMORANDUM & ORDER subject matter jurisdiction and failure to state a claim pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil MARGO K. BRODIE, United States District Judge: Procedure, respectively, and for sanctions against Plaintiff. *1 Plaintiff Kenric Lever, proceeding pro se, commenced (See Letter Mot. to Dismiss by Lescele Bogle, Docket Entry the above-captioned action on September 15, 2016, against No. 26; Letter Mot. to Dismiss by Christina Lyons, Docket Defendants Christina Lyons and Lescele Bogle, also Entry No. 27.) On August 25, 2017, the Court referred the proceeding pro se. (Compl., Docket Entry No. 1.) In a prior motions to Magistrate Judge Cheryl L. Pollak for a report and Memorandum and Order, the Court found that complete recommendation. (See Order dated Aug. 25, 2017.) diversity did not exist between Plaintiff and Lyons and dismissed the action for lack of subject matter jurisdiction By report and recommendation dated January 2, 2018, Judge but granted Plaintiff leave to amend.1 Plaintiff filed an Bulsara3 recommended that the Court dismiss the Complaint Amended Complaint on June 21, 2018, asserting claims without prejudice for lack of subject matter jurisdiction and of false imprisonment, intentional infliction of emotional deny Defendants’ requests for sanctions.4 (R&R dated Jan. distress, and defamation. (Am. Compl., Docket Entry No. 2, 2018 (“2018 R&R”), at 21, Docket Entry No. 37.) On 51.) The Court referred the matter to Magistrate Judge Sanket February 26, 2018, the Court adopted the 2018 R&R in its J. Bulsara for a report and recommendation regarding the entirety over Plaintiff's objections. (Mem. and Order dated Court's subject matter jurisdiction. (See Order dated Oct. 23, Feb. 26, 2018, Docket Entry No. 45.) 2018.) 3 The case was reassigned to Judge Bulsara on 1 Lever v. Lyons, No. 16-CV-5130, 2018 WL September 5, 2017. (See Order dated Sept. 5, 2017.) 1521857 (E.D.N.Y. Jan. 2, 2018), report and recommendation adopted, 2018 WL 1089328 4 Judge Bulsara found that because Plaintiff and (E.D.N.Y. Feb. 26, 2018). Lyons were domiciled in New York, the complete diversity necessary to support jurisdiction under 28 U.S.C. § 1332 did not exist. (2018 R&R 17.) The Docket Entry No. 45.) cause those injuries and blame Plaintiff. (Id.) At the Essex *2 On June 21, 2018, Plaintiff filed an Amended Complaint, County proceeding, Lyons caused Plaintiff to be served with a (Am. Compl.),5 and Defendants filed Answers, (Lyons complaint that “intentionally defamed” him by stating that he had been abusing Lyons for years. (Id. at 5.) Lyons obtained Answer, Docket Entry No. 53; Bogle Answer, Docket Entry an order of protection that prevented Plaintiff from obtaining No. 54). After evidentiary hearings on the question of subject work as a collection agent with New York City Transit in April matter jurisdiction on March 21 and April 3, 2019, (see of 2016 because he was ineligible to obtain a handgun license. Lever Tr.; Lyons Tr.), by report and recommendation dated (Id.) September 12, 2019, Judge Bulsara determined that both Plaintiff and Lyons were domiciled in New York when the Complaint was filed and therefore the parties are not 6 Because the Amended Complaint and its completely diverse. (R&R 16.) Judge Bulsara therefore attachments are not consecutively paginated, the recommended that the Court dismiss the Amended Complaint Court refers to the ECF pagination. for lack of subject matter jurisdiction. (Id. at 17.) Plaintiff Plaintiff further alleges that on July 17, 2016, Lyons made timely filed objections to the R&R. (Pl.’s Obj.) a false report to the 78th Precinct in Brooklyn, New York, that Plaintiff was molesting his child and watching 5 The Amended Complaint alleges that Plaintiff is child pornography. (Id. at 3.) Lyons’ report caused Plaintiff a citizen of New York and that Lyons and Bogle emotional distress and caused him to be imprisoned in a are both citizens of New Jersey. (Am. Compl. 1–2.) locked room for several hours. (Id.) On the same day, Plaintiff seeks $350,000 “from both [D]efendants” Lyons “defamed [Plaintiff] by making false statements to the and punitive damages to be determined by the Superior Court of New Jersey, stating [Plaintiff] was under Court. (Id. at 5.) [f]ederal [i]nvestigation,” and submitted to the court pictures of child pornography, which Lyons stated were obtained b. Factual background from Plaintiff's computer. (Id. at 4.) Lyons “went to the state The Court assumes the truth of the factual allegations of New Jersey and made the same complaint” on July 18, in the Amended Complaint for the purposes of deciding 2016, causing Plaintiff to lose custody of his child. (Id. at Defendants’ motions and assumes the parties’ familiarity with 3.) Plaintiff contends that on August 31, 2016, the Attorney the facts set forth in the prior opinions. See Lever v. Lyons, General of Essex County submitted a report to the New Jersey No. 16-CV-5130, 2018 WL 1521857, at *1 (E.D.N.Y. Jan. state court concluding that the child pornography submitted 2, 2018), report and recommendation adopted, 2018 WL by Lyons came from Lyons’ friend, not Plaintiff's computer. 1089328 (Feb. 26, 2018). The Court provides only a summary (Id. at 4.) In addition, Lyons posted “on social media” on of the relevant facts. an unstated date that Plaintiff had abused her and that she had won a domestic violence case against him. (Id. at 5.) Plaintiff alleges that these statements are intentionally false and defamatory. (Id.) i. September 2015 police report and court appearances Plaintiff alleges that on September 8, 2015, Lyons made a false report to Newark, New Jersey, police officers “that ii. Plaintiff's allegations concerning Lyons’ domicile [Plaintiff] had threatened to harm her and had posted a story on social media [about] her.”6 (Am. Compl. 4.) The *3 Plaintiff alleges that Lyons was domiciled in New Jersey when the Complaint was filed and argues that the Court report caused an order of protection to be entered against Plaintiff and led to him standing trial for making terroristic therefore has subject matter jurisdiction.7 (Am. Compl. 2– threats on September 14, 2015, in Essex County, New Jersey 3; Deed to 121 Ward Street, Orange, New Jersey 07050 Superior Court (the “Essex County proceeding”). (Id.) At that granted to Shawn Landrum,8 at 8–13, annexed to Am. court appearance, Lyons “produce[d] pictures of her beat up Compl. as Ex. A, Docket Entry No. 51.) In support, Plaintiff with bruises and a black eye and scratches.” (Id.) She also alleges that Lyons has misrepresented her address in prior submitted those photographs in a proceeding in Kings County court appearances because property records reflect that her [W]ard Street.” (Am. Compl. 2.) Plaintiff contends that Lyons New Jersey, responded to a report at Plaintiff's New Jersey testified on August 27, 2014, in Kings County Family Court address on August 16, 2016, and found her at home.12 “that she abandon[ed] New York as her domicile and made the state of New Jersey her new home,” and also testified on July 1, 2016, before that same court that she and her child reside in 11 (Am. Compl. 3; Bills from CreditOne Bank and New Jersey.9 (Id.) In addition, Plaintiff contends that Lyons DirecTV, at 10–11, annexed to Am. Compl. as Ex. H, Docket Entry No. 51-2; 2015 Federal gave her address as 119 Ward Street in each instance. (Id.) and Nonresident and Part-Year Resident State Tax Plaintiff also asserts that Lyons’ attorney stated in a December Returns of Lyons, at 13–34, annexed to Am. 6, 2016 hearing in Kings County family court that Lyons lives Compl. as Ex. I, Docket Entry No. 51-2; Paystubs in New Jersey and requested that proceedings be transferred of Christina Lyons for Pay Periods Ending Aug. 31, there.10 (Id.) 2015, Mar. 31, 2016, Apr. 15, 2016, and June 30, 2016, at 36–40, annexed to Am. Compl. as Ex. J, 7 He also alleges that Bogle is domiciled in New Docket Entry No. 51-2.) Jersey, (Am. Compl. 2), which is not disputed. 12 (Am. Compl. 3; Dep't of Children and Families 8 Shawn Landrum is one of the landlords of the Investigation Summ. 42–55, annexed to Am. property in Orange, New Jersey. (Lever Tr. 32.) Compl. as Ex. K, Docket Entry No. 51-2.) Plaintiff asserts that Landrum “just made up” the 119 Ward Street address and that property records establish that the proper addresses for the property iii. Hearing testimony are 121A and 121B Ward Street. (Id. at 31–32.) Judge Bulsara heard testimony from Plaintiff and Lyons on 9 (Tr. of Hr'g dated Mar. 13, 2013, at 40–47, annexed the issue of Lyons’ domicile. Plaintiff testified that he believes to Am. Compl. as Ex. D, Docket Entry No. 51; Tr. that Lyons is a citizen of New Jersey because of (1) statements of Hr'g dated Aug. 27, 2014, at 4, 36–37, annexed she made in other court proceedings, transcripts of which to Am. Compl. as Ex. E, Docket Entry No. 51-1; Tr. he has submitted to the Court; (2) her New York driver's of Hr'g dated July 1, 2016, at 72, annexed to Am. license being issued to a United Parcel Service mailbox Compl. as Ex. F, Docket Entry No. 51-1.) address where she had never lived; (3) Lyons’ inconsistent statements about where she lived; (4) her January 19, 2013 10 In a December 6, 2016, hearing before the New voter registration in New Jersey;13 and (5) a lawsuit filed York Supreme Court, Kings County, the court against her in New Jersey by her landlord on July 20, 2018. noted that a New Jersey court was also hearing a (Id. at 10–11, 17–36.) Plaintiff testified that Lyons first lived dispute between Plaintiff and Lyons “on the abuse in Staten Island, then lived with Plaintiff in Brooklyn. He docket” and that the parties’ child resided in New also testified that in May of 2009, while living with Lyons Jersey. (Tr. of Hr'g dated Dec. 6, 2016, at 4–6, in Brooklyn, Plaintiff obtained an apartment in Jersey City to annexed to Am. Compl. as Ex. G, Docket Entry ease her commute, (Lever Tr. 5:5–6:13), stopped living with No. 51-2.) During a March 13, 2013 hearing in Plaintiff around the end of June of 2009, and continued to the same case, the parties discussed whether the live in Jersey City until approximately 2011. (Id. at 6:20–25). custody exchange of Plaintiff's and Lyons’ child, Lyons then moved to Irvington, New Jersey, and a year later, not the legal proceedings, should be moved from to Orange, New Jersey. (Id. at 7:2–7.) Plaintiff also testified New York to New Jersey. (Tr. of Hr'g dated Mar. that he knew where Lyons lived because they shared custody 13, 2013, at 41–47.) of their daughter, who at the time of the hearing lived with In further support of his argument that Lyons is a New Jersey Lyons’ mother in Staten Island. (Id. at 7:10–8:7.) Between domiciliary, Plaintiff relies on the addresses on Lyons’ bank 2010 and 2016, Lyons’ mother lived in Newark, New Jersey. and cable television accounts, tax filings in which Lyons (Id. at 9:3–25.) “claim[ed] that she d[id] not maintain any living quarters in New York,” and copies of pay stubs with an Orange, 13 Plaintiff noted that Lyons was registered to vote are not updated when people move. (Lever Tr. in New Jersey, that has been [child services]” proceedings 30:21–31:3.) Plaintiff added that “[w]hen [he] went concerning her daughter, who attended school in New Jersey down to the Board of Elections in New York, using Lyons’ mother's address. (Id. at 9:9–10:24.) She further they told [him] that [Lyons] took her name off explained that the state was “already familiar with [her] New York State voting and she just recently put daughter,” and as a result, Lyons believed that “when it came it back on in June of last year.” (Id. at 33:2– to any dealings with the state,” New Jersey was the better 5.) Plaintiff submitted Lyons’ voter registration option. (Id. at 9:15–19.) Lyons also testified that in June records, which showed that she registered to vote in of 2018, Plaintiff “filed court papers in New Jersey to take New York in 2008 and 2017 but registered in New custody of [their] daughter,” Lyons proved that she was a New Jersey in the interim and is still registered there. York resident, and “the case was then relinquished over to (New Jersey Voter Registration Records (“New New York.”15 (Id. at 11:12–20.) Jersey Voter Records”) 51–54, annexed to Pl.’s Suppl. Submission on Def. Lyons’ Residence as 15 Lyons did not testify about the landlord's action Ex. C, Docket Entry No. 67; New York Voter against her in New Jersey or about her alleged use Registration Records, at 88–91, annexed to Pl.’s of a post office box as an address. Suppl. Submission on Def. Lyons’ Residence as Ex. I, Docket Entry No. 67.) There were no records After the hearings, the parties submitted additional evidence, of her having voted in New Jersey. (New Jersey including 2018 records from family court proceedings, Voter Records.) (New Jersey Voter Registration Records (“New Jersey Voter Records”) 51–54, annexed to Pl.’s Suppl. Submission on *4 Lyons testified that, beginning at “the end of 2012” Def. Lyons’ Residence as Ex. C, Docket Entry No. 67), and ending approximately five years later, she resided at a which Judge Bulsara considered. Lyons told the Court about a Staten Island address and “would just go back and forth” similar lawsuit Plaintiff filed in New York state court. (Letter between that address and her mother's residence at 119 Ward dated May 13, 2019, at 4, Docket Entry No. 71.) In response to Street. (Lyons Tr. 4:13–5:1.) “[A]lmost a year” before the an order from Judge Bulsara, (see Order dated June 3, 2019), hearing, she moved from that Staten Island address to another Plaintiff assured the Court that he wanted to move forward New York address.14 (Id. at 2:23–4:16.) She has possessed a with the federal case. (Letter dated June 24, 2019, Docket New York driver's license ever since she “got [her] license ... Entry No. 72). [fifteen], almost [sixteen] years ago.” (Id. at 5:4–13.) She never considered herself a resident of New Jersey, but used her mother's New Jersey address as her mailing address until c. The R&R 2018 because Plaintiff was and is “stalking [her]” and she did Judge Bulsara recommended that the Court dismiss the not feel comfortable disclosing her residence. (Id. at 5:14– case for lack of diversity subject matter jurisdiction because 6:8.) Lyons maintained her mother's apartment in 2016 and Lyons and Plaintiff were domiciled in New York at the 2017 while her mother relocated to Virginia for work. (Id. at time Plaintiff filed the Complaint. (R&R.) As an initial 7:4–12.) She has never voted in New Jersey, but voted in New matter, Judge Bulsara noted that Plaintiff had the burden York “just this past election” and in 2008, and did not vote of demonstrating complete diversity, and that “[m]uch of anywhere during the intervening years. (Id. at 7:15–8:13.) Her the evidence submitted — particularly from [Plaintiff] — car has been registered in her name in New York since 2008 is repetitive and duplicative of the evidence previously and prior to 2008 was registered in her mother's name. (Id. at submitted,” which had been insufficient then to establish 8:14–23.) diversity jurisdiction. (Id. at 2, 5, 10–11.) He found that because Lyons had once been a New York domiciliary, 14 Lyons provided both addresses to the Court but Plaintiff needed to show that Lyons intended to change her the information has been redacted from the public citizenship. (Id. at 6.) record. (Lyons Tr. 2:22–5:2.) In evaluating the testimony, Judge Bulsara noted that Lyons’ Judge Bulsara questioned why Lyons had provided a New ties to the 119 Ward Street address, which was her mother's Jersey address during court proceedings in New Jersey. (Id. home, were “beyond dispute” but “not dispositive of [her] be “of little use,” and, if anything, undermined Plaintiff's case “action-specific” defect that required dismissal of the entire because he asserted Lyons’ address did not exist, suggesting case. (Id. at 16–17 (citing Abu Dhabi Com. Bank v. Morgan that there was no record of her owning property in New Stanley & Co., 921 F. Supp. 2d 158, 162 (S.D.N.Y. 2013)).) Jersey and “mak[ing] it less likely that Lyons ever intended Therefore, the case could not proceed against Bogle, even to reside there on a permanent basis.” (Id. at 6.) As to the though she “does not dispute she is a citizen of New Jersey” tax returns, credit card statements, and other documents all and the damages sought against her satisfied the amount-in- listing Lyons’ address as 119 Ward Street, Judge Bulsara controversy requirement. (Id. at 16.) found them to be of “little consequence” because the Court had considered them in the prior report and recommendation and concluded that those documents “indicate[d] that the d. Objections to the R&R address is a temporary, periodic second residence of ... Lyons, Plaintiff objects to the R&R,16 arguing that: (1) Judge not her primary residence or her domicile.” (Id. at 7–9.) He Bulsara erred in finding that the 119 Ward Street address was further determined that the documents Plaintiff submitted the home of Lyons’ mother based only on Lyons’ testimony after the evidentiary hearings, including filings from family and “without any documentation to prove this as fact”; (2) court proceedings in 2018, were of “little value” because Lyons told the court on May 14, 2018, that she has no they postdated the filing of the Complaint and were “filled knowledge of her mother or her mother's landlords, who with contradictory evidence, much of which is repetitive of evicted her mother from 119 Ward Street in 2018; (3) Judge facts previously submitted or is of little to no assistance in Bulsara erred in accepting Lyons’ stated New York address establishing the parties’ respective domiciles.” (Id. at 9–10.) as accurate when she had given a different, untruthful address He determined that some of the documents Plaintiff provided on her driver's license; (4) Lyons bought a house in New supported the conclusion that Lyons had ties to New York: she Jersey in 2018 and has since used that address; (5) Lyons has had registered to vote in 2017 with a New York address, has been registered to vote in New Jersey since 2013 and pays a New York driver's license, and had sought medical care for taxes as a New York nonresident, and Lyons’ pay stubs show her daughter in Staten Island in 2016 and 2017. (Id. at 10 n.5.) two addresses, one of which is “falsified”; (6) Lyons told the Court that her address is confidential, but freely gave her New *5 Judge Bulsara determined that discussions of residence Jersey address in other court proceedings; (7) The New York in state court proceedings involving Plaintiff and Lyons Administration for Children's Services “found [Lyons] does mainly concerned their daughter's residence, which was in not live nor reside part time at any location” in New York;17 New Jersey. (Id. at 7.) Judge Bulsara found that the child's (8) Plaintiff is suing Lyons’ mother, but the courts refuse residence was less probative of Lyons’ domicile than a child's to accept service at “the address”; and (9) in 2018, a court- residence would usually be because the child lived with her appointed attorney for Plaintiff and Lyons’ child stated that grandmother in New Jersey, was born in New York, and Lyons was “going state to state saying she lives in the other sometimes lived with her mother in New York. (Id. at 6–7.) jurisdiction.”18 (Pl.’s Obj. 1–4.) Plaintiff requests a further In addition, filings from the 2018 proceedings in family court hearing in which Lyons’ mother and her landlords will testify postdated the filing of this Complaint and were repetitive or as to Lyons’ permanent address, and in which he will “get otherwise unhelpful. (Id. at 9.) Judge Bulsara credited Lyons’ statements from [the New York address] where she claims to testimony that she did not intend to move permanently to New have lived.” (Id. at 4.) Jersey and that her ties to that state “were all based on residing with her mother.” (Id. at 14–16.) Lyons’ mother no longer lived in New Jersey, and Lyons no longer maintains ties to 16 Plaintiff has submitted additional papers with his the state, suggesting that she did not intend to permanently objections. Under Rule 72(b) of the Federal Rules change her domicile in 2016. (Id. at 15–16.) Given this of Civil Procedure, district courts have discretion evidence, Judge Bulsara concluded that Plaintiff had not met to, among other things, “receive further evidence” his burden of showing that Lyons changed her domicile from in considering objections to a magistrate judge's New York to New Jersey. (Id. at 11, 17.) recommended ruling. Fed. R. Civ. P. 72(b); see also Kazolias v. IBEW LU 363, 806 F.3d 45, 54 (2d Judge Bulsara explained that the Court lacked subject matter Cir. 2015) (“[T]he governing statute ... expressly jurisdiction over the entire action, because a defect in provides that the district court [in reviewing evidence.’ ” (quoting 28 U.S.C. § 636(b)(1))). In the district court reviews de novo the parts of the report light of Plaintiff's pro se status, the Court considers and recommendation to which the party objected. Id.; see the evidence submitted with his objections, which also United States v. Romano, 794 F.3d 317, 340 (2d Cir. appears to be largely duplicative of previous 2015). The district court may adopt those portions of the submissions. See Augustin v. Cap. One, No. 14- recommended ruling to which no timely objections have CV-179, 2015 WL 5664510, at *2 n.2 (E.D.N.Y. been made, provided no clear error is apparent from the face Sept. 24, 2015) (considering additional evidence of the record. See John Hancock Life Ins. Co. v. Neuman, submitted with pro se plaintiff's objections to the No. 15-CV-1358, 2015 WL 7459920, at *1 (E.D.N.Y. Nov. magistrate judge's recommended ruling). 24, 2015) (applying clear error when no objections to the 17 In a report produced by New York child welfare m Tha eg i cst lr ea at re ej ru rd og r e s's t ar ne dp ao rr dt aa ln sd o r ae pc po lm iem s e wn hd ea nti o an pw are tr ye mfil ae kd e) s. officials in November of 2018, investigators only conclusory or general objections. Fed. R. Civ. P. found that they could not ascertain Lyons’ 72(b)(2) (“[A] party may serve and file specific written address because she lived in New Jersey and objections to the [magistrate judge's] proposed findings and was uncooperative. (Nov. 1, 2018 Ct. Ordered recommendations.”); see also Colvin v. Berryhill, 734 F. Investigation 71, annexed to Pl.’s Obj. as Ex. O, App'x 756, 758 (2d Cir. 2018) (“Merely referring the court to Docket Entry No. 75.) previously filed papers or arguments does not constitute an 18 Plaintiff argues that Lyons contradicts herself adequate objection under ...Fed. R. Civ. P. 72(b).” (quoting Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir. by claiming that this Court lacks subject matter 2002))); Benitez v. Parmer, 654 F. App'x 502, 503–04 (2d Cir. jurisdiction even as she brings counterclaims 2016) (holding that “general objection[s] [are] insufficient to against Plaintiff in this Court. (Pl.’s Obj. 4.) obtain de novo review by [a] district court”). Because subject matter jurisdiction is not waivable, Lyons did not waive defects in subject matter jurisdiction by asserting counterclaims in her b. Plaintiff has failed to show that in 2018 Lever was answer. See Lyndonville Sav. Bank & Trust Co. domiciled in New Jersey v. Lussier, 211 F.3d 697, 700–01 (2d Cir. 2000). Plaintiff has not established by clear and convincing evidence In addition, based on Judge Bulsara's credibility that Lyons changed her domicile from New York to New determinations favoring Lyons, Plaintiff contends Jersey.19 that “[t]he [C]ourt seem[s] to have taken a bias stand against [him].” (Pl.’s Obj. 1.) To the extent Plaintiff is making a “bias or partiality motion,” 19 Plaintiff does not object to the R&R's findings the Court denies the application because “judicial that Lyons was domiciled in New York at birth rulings alone almost never constitute a valid basis and that the claims against Bogle cannot be for a bias or partiality motion,” Liteky v. United severed from the rest of the action. The Court States, 510 U.S. 540, 555 (1994) (citing United has reviewed the unopposed portions of the R&R States v. Grinnell Corp., 384 U.S. 563, 583 (1966)), and, finding no clear error, the Court adopts those and the finding that Lyons’ testimony was credible recommendations pursuant to 28 U.S.C. § 636(b) does not reflect the sort of “deep-seated favoritism (1). or antagonism” that would justify an exception to Federal courts are courts of limited jurisdiction and may that rule, id. not hear cases if they lack subject matter jurisdiction over the issues presented. Lyndonville Sav. Bank & Trust Co. II. Discussion v. Lussier, 211 F.3d 697, 700–01 (2d Cir. 2000). The statutory provisions for federal subject matter jurisdiction are a. Standard of review contained in 28 U.S.C. §§ 1331 and 1332. Under the diversity *6 A district court reviewing a magistrate judge's jurisdiction statute, 28 U.S.C. § 1332, federal courts have recommended ruling “may accept, reject, or modify, in whole subject matter jurisdiction over state law claims where the or in part, the findings or recommendations made by the plaintiff and defendant are of diverse citizenship and “the Pa. Pub. Sch. Emps.’ Ret. Sys. v. Morgan Stanley & Co., 772 of the residence (i.e., how permanent F.3d 111, 117–18 (2d Cir. 2014) (“Subject matter jurisdiction the living arrangement appears); ... is based on 28 U.S.C. § 1332, which requires ‘complete and the location of a person's diversity,’ i.e.[,] all plaintiffs must be citizens of states diverse physician, lawyer, accountant, dentist, from those of all defendants.”) (quoting Exxon Mobil Corp. v. stockbroker, etc. Allapattah Servs., Inc., 545 U.S. 546, 553 (2005)); Lovejoy v. Watson, 475 F. App'x 792, 792 (2d Cir. 2012) (“The complaint alleged that [the plaintiff] and the defendant resided in New New Canaan Cap. Mgmt., LLC, 2017 WL 1157153, at *4 York, thereby precluding diversity jurisdiction.”). (alterations omitted) (quoting Kennedy, 633 F. Supp. 2d at 81). Whether a person intended to change his or her domicile “For purposes of diversity jurisdiction, a party's citizenship from one state to another is a question of fact, and a “party depends on his domicile.” Davis v. Cannick, 691 F. App'x 673, alleging that there has been a change of domicile has the 673 (2d Cir. 2017) (quoting Linardos v. Fortuna, 157 F.3d burden of proving the ‘required intent ... to give up the old and 945, 948 (2d Cir. 1998)). “Domicile is not synonymous with take up the new domicile, coupled with an actual acquisition residence; a party can reside in one place and be domiciled in of a residence in the new locality,’ and must prove those another.” New Canaan Cap. Mgmt., LLC v. Ozado Partners facts ‘by clear and convincing evidence.’ ”20 Palazzo ex rel. LLC, No. 16-CV-1395, 2017 WL 1157153, at *4 (S.D.N.Y. Delmage v. Corio, 232 F.3d 38, 42 (2d Cir. 2000) (alterations Mar. 25, 2017) (quoting Kennedy v. Trs. of Testamentary omitted) (quoting Katz v. Goodyear Tire & Rubber Co., 737 Tr. of Will of Kennedy, 633 F. Supp. 2d 77, 81 (S.D.N.Y. F.2d 238, 243–44 (2d Cir. 1984)). 2009)); see also Caren v. Collins, 689 F. App'x 75, 75 (2d Cir. 2017) (“Although the individual plaintiff and the individual defendants are alleged to be residents of certain States, such 20 The Second Circuit has clarified that “the factual an allegation is insufficient to plead citizenship.”). Moreover, questions that inform a determination as to federal “one may have more than one residence in different parts of jurisdiction need not be submitted to a jury and this country or the world, but a person may have only one may be resolved by the [c]ourt.” Palazzo ex rel. domicile.” Reich v. Lopez, 858 F.3d 55, 63 (2d Cir. 2017) Delmage v. Corio, 232 F.3d 38, 42–43 (2d Cir. (quoting United States v. Venturella, 391 F.3d 120, 125 (2d 2000) (first citing Katz v. Goodyear Tire & Rubber Cir. 2004)). Co., 737 F.2d 238, 242 n.2 (2d Cir. 1984); and then citing Sligh v. Doe, 596 F.2d 1169, 1171 (4th Cir. *7 “One acquires a ‘domicile of origin’ at birth, which 1979)). continues until a change in domicile occurs.” Linardos, 157 The parties agree that Lyons resided, at least temporarily, F.3d at 948 (quoting Miss. Band of Choctaw Indians v. at 119 Ward Street in New Jersey and used that address Holyfield, 490 U.S. 30, 48 (1989)). A person changes their to receive mail, but Lyons’ residence at that address does domicile only when they take up residence in a new domicile not establish that she was domiciled in New Jersey. See and intend to stay. Davis, 691 F. App'x at 673. To determine New Canaan Cap. Mgmt., LLC, 2017 WL 1157153, at *4 whether an individual intends to stay in a particular state and (“Domicile is not synonymous with residence; a party can effects a change in domicile, courts must look to the “totality reside in one place and be domiciled in another.” (quoting of the evidence,” considering, among other factors: Kennedy, 633 F. Supp. 2d at 81)). Lyons’ use of her mother's New Jersey address to receive mail, and her use of that address in court, does not contradict her testimony that current residence; voting registration; at the time this lawsuit was filed, she divided her time driver's license and automobile between New Jersey and New York and did not intend to registration; location of brokerage remain in New Jersey permanently. Similarly, her paying and bank accounts; membership taxes as a New York nonresident does not establish that she in fraternal organizations, churches, intended to remain outside New York permanently, although and other associations; places of (as Judge Bulsara recognized) it does provide some support employment or business; ... payment for that conclusion. See Lawrence Moskowitz CLU Ltd. v. of taxes; ... whether a person owns or ALP, Inc., 830 F. App'x 50, 51 (2d Cir. 2020) (“[T]he taxes, property, bank accounts, [and] places of business or residence” and did not establish New York as his domicile). employment.” (citing Nat'l Artists Mgmt. Co. v. Weaving, 769 In addition, Lyons lived with her mother rather than renting F. Supp. 1224, 1228 (S.D.N.Y. 1991))); Braten v. Kaplan, her own residence in New Jersey, and no evidence in the No. 07-CV-8498, 2009 WL 614657, at *3 (S.D.N.Y. Mar. record suggests that Lyons planned to live there indefinitely 10, 2009) (noting that where a person pays taxes is one of to support her mother. See Kennedy, 633 F. Supp. 2d at “a number of factors” relevant to the determination of that 81 (holding “whether a person owns or rents his place of person's domicile), aff'd, 406 F. App'x 516 (2d Cir. 2011). residence” is relevant to domicile); cf. Dukes ex rel. Dukes v. NYCERS, 2014 WL 583235, *2 (E.D.N.Y. Feb. 12, 2014) *8 Moreover, Lyons’ residence and actions in 2018, (holding that where plaintiff “expressed the intent to remain including her ties to a New Jersey address that Plaintiff in Staten Island indefinitely to continue caring for her mother describes in his objections, are not dispositive of where she and working in New York City” that fact supported the was domiciled when the lawsuit was filed in 2016. See Dukes conclusion she was domiciled in New York), aff'd, Dukes ex rel. Dukes v. N.Y.C. Emps.’ Ret. Sys., 581 F. App'x 81, ex rel. Dukes, 581 F. App'x at 81. Given the conflicting 82 (2d Cir. 2017) (looking to domicile at the time the action evidence, Plaintiff has not succeeded in establishing that was commenced); Borderud v. Riverside Motorcars, LLC, Lyons changed her domicile from New York, acquired at her No. 18-CV-1291, 2020 WL 2494760, at *4 n.3 (D. Conn. birth, to New Jersey. See Gold v. Katz, No. 90-CV-7726, May 13, 2020) (“Because diversity is determined at the time 1991 WL 237807, at *3 (S.D.N.Y. Nov. 4, 1991) (“There the [c]omplaint is filed, the [c]ourt will disregard evidence is a presumption favoring a former domicile over a newly concerning events after [the plaintiff] filed his [c]omplaint.”) acquired residence.” (first citing Farrell v. Ashton, No. 89- (citing Van Buskirk v. United Grp. of Cos., Inc., 935 F.3d 49, CV-6706, 1991 WL 29261, at *5 (S.D.N.Y. Feb. 28, 1991); 53 (2d Cir. 2019)); Chappelle v. Beacon Commc'ns Corp., 863 and then citing 13B Charles A. Wright & Arthur R. Miller, F. Supp. 179, 182 n.3 (S.D.N.Y. 1994) (“Because the relevant Federal Practice and Procedure § 3612, at 535 (1984))). period for determining [the defendant's] domicile is the time the action is commenced, which in this case is December Finally, many of Plaintiff's objections are to Lyons’ [of] 1992, evidence which is probative of [the defendant's] credibility. Judge Bulsara observed Plaintiff and Lyons at the domicile after that date is not discussed.”). evidentiary hearing and found Lyons’ testimony — including that the 119 Ward Street address was primarily her mother's Other factors support the conclusion that Lyons was apartment — to be credible. (R&R 12, 14–15.) Plaintiff has domiciled in New York at the time Plaintiff commenced not presented sufficient reason to set aside this credibility this action. Lyons kept her vehicle registered in New York, determination. See Carrion v. Smith, 549 F.3d 583, 588 (2d voted in New York when she voted (although she was also Cir. 2008) (“[A] district judge should normally not reject registered to vote in New Jersey in the years surrounding a proposed finding of a magistrate judge that rests on a the filing of the Complaint), and kept a New York driver's credibility finding without having the witness testify before license, even though the address on that license was in the judge.” (quoting Cullen v. United States, 194 F.3d 401, 407 dispute. See Halbritter v. Stonehedge Acquisition Rome II, (2d Cir. 1999))); Imbruce v. Buhl, No. 15-CV-554, 2016 WL LLC, No. 07-CV-3848, 2008 WL 926583, at *3 (S.D.N.Y. 2733097, at *2 (D. Conn. May 10, 2016) (evaluating domicile Apr. 2, 2008) (holding that factors supported the conclusion “from the record and on the basis of the credible testimony of that the plaintiff was domiciled in New York and not Florida, [witnesses] at the evidentiary hearing”). including that “she was not registered to vote in Florida and had a New York driver's license and all her automobiles *9 Plaintiff has had a full opportunity to present evidence registered in New York”); Kleiner v. Blum, No. 03-CV-3846, in support of his arguments that Lyons was domiciled in New 2003 WL 22241210, at *2 (S.D.N.Y. Sept. 30, 2003) (holding Jersey at the commencement of this action and has failed to that, where the plaintiff intended to maintain residences in do so. The Court declines to grant Plaintiff further leave to New York and his presumptive Georgia domicile in the long amend the Complaint a second time. term, “that [the] plaintiff resides in New York, has adult children residing in New York, receives medical care in New York, receives his bills in New York, and maintains a pro III. Conclusion bono office in New York[]merely show that, for the past three dismisses the action without prejudice for lack of subject All Citations matter jurisdiction. Slip Copy, 2021 WL 302648 SO ORDERED. End of Document © 2023 Thomson Reuters. No claim to original U.S. Government Works. 2017 WL 3172999 Plaintiff alleges that Defendants Jacobson and Gray appeared Only the Westlaw citation is currently available. at a conference before the NYSDHR on behalf of JBFCS. United States District Court, N.D. New York. See Dkt. No. 1 at 5-6. Plaintiff alleges that, at the time of this conference, Defendants Jacobson and Gray were not Thomas J. MORAN, Plaintiff, appropriately licensed to practice law in New York State v. through the New York State Unified Court System. See id. PROSKAUER ROSE LLP; Jerold D. Jacobson; Plaintiff alleges that he told two of NYSDHR's employees and Keisha Ann Grace Gray, Defendants. that “allowing two attorneys with no valid law licenses into this conference to practice law is fraudulent.” Id. at 6. 1:17-cv-00423 (MAD/TWD) | Moreover, Plaintiff alleges that Defendant Jacobson wrote Signed 07/26/2017 a “fraudulent” email response to Plaintiff's NYSDHR complaint since Defendant Jacobson's “law license [was] Attorneys and Law Firms expired at the time the [r]esponse was sent.” Id. Plaintiff also argues that, because of Defendant Jacobson's personal APPEARANCES: THOMAS J. MORAN, 500 16th St., Apt. relationship with the JBFCS, it is inappropriate for him 203, Watervliet, New York 12189, Plaintiff, pro se. “to handle the issues of the Jewish Board.” Id. at 7. Furthermore, Plaintiff claims that Defendant Gray “tricked [Maria] Di Cosimo of Lexis-Nexis into providing Ms. ORDER Gray with information that was obtained through Ms. Di Cosimo's connection with Lexis-Nexis fraudulently.” Id. Mae A. D'Agostino, U.S. District Judge Plaintiff requests $240 million in total from Defendants and *1 Plaintiff commenced this action pro se on April 17, an injunction preventing Defendant Proskauer Rose from 2017 against Proskauer Rose LLP (“Proskauer Rose”), “continuing its practice of allowing attorneys with no law Jerold D. Jacobson (“Defendant Jacobson”), and Keisha licenses to practice law in the State of New York as well as Ann Grace Gray (“Defendant Gray”). See Dkt. No. 1. In the United States.” Id. at 8. an Order and Report-Recommendation dated May 1, 2017, Magistrate Judge Dancks granted Plaintiff's application to “[I]n a pro se case, the court must view the submissions proceed in forma pauperis for filing purposes only and by a more lenient standard than that accorded to ‘formal denied Plaintiff's motion for appointment of counsel. See pleadings drafted by lawyers.’ ” Govan v. Campbell, 289 Dkt. No. 6 at 2, 9. In reviewing the sufficiency of the F. Supp. 2d 289, 295 (N.D.N.Y. 2003) (quoting Haines v. complaint, Magistrate Judge Dancks concluded that the Court Kerner, 404 U.S. 519, 520 (1972)) (other citations omitted). lacks subject matter jurisdiction over Plaintiff's claims, and The Second Circuit has opined that the court is obligated therefore, despite Plaintiff's pro se status, recommended that to “make reasonable allowances to protect pro se litigants” Plaintiff's complaint be dismissed with prejudice. See id. at from inadvertently forfeiting legal rights merely because they 9. On May 26, 2017, Plaintiff filed objections to Magistrate lack a legal education. Id. (quoting Traguth v. Zuck, 710 Judge Dancks's Order and Report-Recommendation. See Dkt. F.2d 90, 95 (2d Cir. 1983)). However, “[t]he right of self- No. 7. representation does not exempt a party from compliance with the relevant rules of procedural and substantive law.” Massie According to the complaint, Proskauer Rose is a global law v. Ikon Office Solutions, Inc., 381 F. Supp. 2d 91, 94 (N.D.N.Y. firm and Defendants Jacobson and Gray are attorneys with 2005) (quoting Clarke v. Bank of New York, 687 F. Supp. 863, Proskauer Rose. See Dkt. No. 1 at 5. Plaintiff asserts that 871 (S.D.N.Y. 1988)). Proskauer Rose is counsel for non-party Jewish Board of Family and Children's Services (“JBFCS”), Plaintiff's former *2 In reviewing a report and recommendation, a district employer. See id. at 5-6. As Magistrate Judge Dancks noted, court “may accept, reject, or modify, in whole or in part, according to publicly available documents, Plaintiff filed a the findings or recommendations made by the magistrate complaint with the New York State Division of Human Rights judge.” 28 U.S.C. § 636(b)(1)(C). When a party makes specific objections to a magistrate judge's report, the district the objections. See id.; Farid v. Bouey, 554 F. Supp. 2d regulates only the Government, not private parties, a litigant 301, 307 (N.D.N.Y. 2008). When a party fails to make claiming that his constitutional rights have been violated must specific objections, the court reviews the magistrate judge's first establish that the challenged conduct constitutes ‘state report for clear error. See Farid, 554 F. Supp. 2d at 307; action.’ ” Flagg v. Yonkers Sav. & Loan Ass'n, 396 F.3d 178, see also Gamble v. Barnhart, No. 02-CV-1126, 2004 WL 187 (2d Cir. 2005) (quoting United States v. Int'l Bhd. of 2725126, *1 (S.D.N.Y. Nov. 29, 2004). As mentioned, Teamsters, 941 F.2d 1292, 1295 (2d Cir. 1991)). The conduct Plaintiff has submitted objections to the Order and Report- of a private actor may be considered state action when the Recommendation. See Dkt. No. 7. private actor “is a willful participant in joint activity with the State or its agents.” Ciambriello v. Cty. of Nassau, 292 F.3d Federal courts are courts of limited jurisdiction and may not 307, 324 (2d Cir. 2002) (quoting Adickes v. S.H. Kress & Co., preside over cases absent subject matter jurisdiction. Exxon 398 U.S. 144, 152 (1970)). Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 552 (2005). Federal jurisdiction is available only when a “federal *3 Defendants Jacobson and Gray are private attorneys question” is presented or when the plaintiff and the defendant working for a private law firm. See Dkt. No. 1 at 5. Plaintiff are of diverse citizenship and the amount in controversy does not allege that Defendants had any affiliation with the exceeds $75,000. 28 U.S.C. §§ 1331, 1332. When a court State of New York beyond their licensure, and therefore, lacks subject matter jurisdiction, dismissal of the complaint they cannot be deemed “state actors” under Section 1983. is mandatory. Arbaugh v. Y & H Corp., 546 U.S. 500, 514 See Licari v. Voog, 374 Fed. Appx. 230, 231 (2d Cir. (2006). Federal courts “have an independent obligation to 2010) (“[P]rivate attorneys—even if the attorney was court determine whether subject-matter jurisdiction exists, even in appointed—are not state actors for the purposes of § 1983 the absence of a challenge from any party.” Id. (citing Ruhrgas claims.”) (citing Rodriguez v. Weprin, 116 F.3d 62, 65-66 AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999)). (2d Cir. 1997)). Furthermore, Proskauer Rose's registration as a domestic limited liability partnership with the State of In order to invoke “federal question” jurisdiction, a plaintiff's New York does not render it a “state actor.”1 See Cranley claims must arise “under the Constitution, laws, or treaties v. Nat'l Life Ins. Co. of Vt., 318 F.3d 105, 112 (2d Cir. of the United States.” 28 U.S.C. § 1331. Here, as Magistrate 2003) (citing S.F. Arts & Athletics, Inc. v. U.S. Olympic Judge Dancks concluded, Plaintiff has failed to allege a claim Comm., 483 U.S. 522, 543-44 (1987)). Plaintiff has also failed that arises under the Constitution or laws of the United States to allege that Defendants conspired with any state actor to of America. Plaintiff's main allegation surrounds the state violate his constitutional rights. Accordingly, Plaintiff has bar licensure of two private attorneys employed by a private failed to allege a cause of action that provides this Court with limited liability partnership. See Dkt. No. 1 at 5. There is no subject matter jurisdiction under 28 U.S.C. § 1331. Plaintiff's federal claim that can be inferred from the facts alleged. objections offer nothing to cure this defect. Plaintiff has submitted his allegations on a form that is 1 As Magistrate Judge Dancks noted, Proskauer Rose provided by the Court for pro se litigants to file civil rights is listed as a domestic registered limited liability complaints pursuant to 42 U.S.C. § 1983 (“Section 1983”). partnership with the New York State Division of See id. at 1. However, there is no indication from Plaintiff's Corporations. See Dkt. No. 6 at 8 n.4. allegations that a Section 1983 claim could be supported. In his objections, Plaintiff agreed with Magistrate Judge Dancks As Magistrate Judge Dancks also found, Plaintiff has failed to that the reason he used a civil rights complaint form was establish a basis for diversity jurisdiction under 28 U.S.C. § because it was provided to him by the Court. See Dkt. No. 7 1332. See Dkt. No. 6 at 8. Diversity jurisdiction is only proper at 4. where “all of the adverse parties in a suit [are] completely diverse with regard to citizenship.” E.R. Squibb & Sons, Inc. To state a Section 1983 claim, “a plaintiff must allege (1) v. Accident & Cas. Ins. Co., 160 F.3d 925, 930 (2d Cir. ‘that some person has deprived him of a federal right,’ and 1998) (citing Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, (2) ‘that the person who has deprived him of that right acted 267 (1806)). For the purposes of diversity jurisdiction, the under color of state ... law.’ ” Velez v. Levy, 401 F.3d 75, 84 citizenship of limited liability partnerships, like Proskauer (2d Cir. 2005) (quoting Gomez v. Toledo, 446 U.S. 635, 640 Rose, is determined by the citizenship of all of its members. (1990); Handelsman v. Bedford Vill. Assocs. Ltd. P'ship, 213 CV-0336, 2012 WL 1977972, *6 (N.D.N.Y. June 1, 2012). F.3d 48, 51-52 (2d Cir. 2000). As such, Plaintiff's complaint is dismissed with prejudice.3 Here, the complaint states that Plaintiff lives in Watervliet, 3 Since the Court is dismissing Plaintiff's complaint New York, and that Defendants Jacobson and Gray are also with prejudice, the Court will not address Plaintiff's citizens of New York. See Dkt. No. 1 at 1-2, 5. Proskauer objection to Magistrate Judge Dancks's denial of Rose's citizenship is determined by the citizenship of each Plaintiff's motion for appointment of counsel. of its members, including Defendants Jacobson and Gray.2 *4 Accordingly, the Court hereby See id. As such, all parties are citizens of New York, and this Court lacks diversity jurisdiction over Plaintiff's claims. ORDERS that Magistrate Judge Dancks's Order and Report- Accordingly, Plaintiff's complaint is dismissed. Recommendation (Dkt. No. 6) is ADOPTED in its entirety; and the Court further 2 Defendants Jacobson and Gray are listed as partners on the Proskauer Rose ORDERS that Plaintiff's complaint (Dkt. No. 1) is website. Professionals, Proskauer Rose, http:// DISMISSED in its entirety without leave to amend; and www.proskauer.com/professionals/ (last visited the Court further July 13, 2017). When a pro se complaint fails to state a cause of action, the ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor and close this case; and the Court further court generally “should not dismiss without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” ORDERS that the Clerk of the Court shall serve a copy of this Order on Plaintiff in accordance with the Local Rules. Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (internal quotation and citations omitted). Of course, an opportunity to amend is not required where “[t]he problem with [the IT IS SO ORDERED. plaintiff's] cause of action is substantive” such that “better pleading will not cure it.” Id. (citation omitted). As Magistrate All Citations Judge Dancks found, lack of subject matter jurisdiction is a substantive defect that cannot be cured by better pleading. See Not Reported in Fed. Supp., 2017 WL 3172999 End of Document © 2023 Thomson Reuters. No claim to original U.S. Government Works.
Related
Cite This Page — Counsel Stack
Colon v. Davis, Counsel Stack Legal Research, https://law.counselstack.com/opinion/colon-v-davis-nynd-2023.