Dobbs v. SEFCU

• Court: District Court, N.D. New York
• Decided: December 13, 2022
• Docket: 1:22-cv-01228
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK _____________________________________________

KRISTY DOBBS,

Plaintiff, 1:22-CV-1228 v. (LEK/TWD)

SEFCU,

Defendant. _____________________________________________

APPEARANCES:

KRISTY DOBBS Plaintiff, pro se 315 Sheridan Ave. Albany, NY 12206

THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION Kristy Dobbs (“Plaintiff”), proceeding pro se, commenced this action against SEFCU (“Defendant”) on November 18, 2022, and, in lieu of paying the Northern District of New York’s filing fee, seeks leave to proceed in forma pauperis (“IFP”). (Dkt. Nos. 1, 2.) I. IFP APPLICATION Plaintiff declares that she is unable to pay the filing fee for this action. (See Dkt. No. 2.) The undersigned has reviewed Plaintiff’s IFP application and determines she financially qualifies to procced IFP. Therefore, Plaintiff’s IFP application is granted.1

1 Plaintiff is advised that she will still be required to pay any costs and fees that she may incur in this matter, including, but not limited to, any copying fees or witness fees. II. SCREENING OF THE COMPLAINT A. Legal Standard Under Section 1915(e), the Court must dismiss a complaint filed IFP if it 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)(B); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint, or portion thereof, when the Court lacks subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3). While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest [claims] that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (internal quotations and citations omitted, emphasis in original). A claim is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989), abrogated on other grounds by Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007); see also Denton v. Hernandez, 504 U.S. 25, 33 (1992) (holding that “a finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible”); Livingston, 141 F.3d at 437 (“[A]n action is ‘frivolous’ when either: (1) the factual contentions are clearly baseless . . . or (2) the claim is based on an indisputably meritless legal theory.”) (internal quotations and citation omitted). To survive dismissal for failure to state a claim, a complaint must contain a short and plain statement of the claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2). This short and plain statement of the claim must be “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The statement of the claim must do more than present “an unadorned, the-defendant-harmed-me accusation.” Id. It must “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Twombly, 550

U.S. at 555; see also Fed. R. Civ. P. 8(a)(2). In determining whether a complaint states a claim upon which relief may be granted, “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). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. B. Summary of the Complaint Plaintiff alleges in her Complaint that money was withdrawn from her account at Defendant SEFCU. (Dkt. No. 1.) She does not specify when or how much. Id. Plaintiff requests that the Court orders SEFCU to reimburse her in the amount of $20,000. Id.2

C. The Court’s Analysis Plaintiff provides almost no context to her allegations. More importantly, Plaintiff fails to demonstrate this Court’s jurisdiction as she demonstrates neither federal question jurisdiction

2 Plaintiff has also filed three separate actions in this District against Citizens Bank alleging someone withdrew money from her account. See Dobbs v. Citizens Bank et al., 1:10-cv-01487- LEK-RFT, Dkt. No. 1(2010) (“Dobbs I”); Dobbs v. Citizen Bank, 1:20-cv-00627-GLS-CFH, Dkt. No. 1 (2020) (“Dobbs II”); Dobbs v. Citizens Bank, 1:22-cv-01226-TJM-DJS, Dkt. No. 1 (2022) (“Dobbs III”). Dobbs I and Dobbs II were dismissed for failure to state a claim upon which relief could be granted and lack of federal subject matter jurisdiction. On December 7, 2022, U.S. Magistrate Judge Daniel J. Stewart conducted an initial review in Dobbs III and recommended dismissal of the complaint. nor diversity jurisdiction. See Smith ex. rel. Bey v. Kelly, 12-CV-2319, 2012 WL 1898944, at *2 (E.D.N.Y. May 24, 2012) (court is obligated to analyze whether subject matter jurisdiction exists as a part of § 1915(e) initial review and to dismiss the complaint when subject matter jurisdiction is found lacking).

Although Plaintiff has used a complaint form alleging subject matter jurisdiction pursuant to federal question, Plaintiff has failed to establish federal question jurisdiction as she has not set forth a federal law claim. 28 U.S.C. § 1331 confers onto federal courts subject matter jurisdiction over all federal questions, or “all civil actions arising under the Constitution, laws, or treaties of the United States.” Federal question jurisdiction exists where the complaint “establishes either that federal law creates the cause of action or that the plaintiff’s right to relief necessarily depends on a resolution of a substantial question of federal law.” Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 27-28 (1983). Even liberally construed, Plaintiff identifies no statute under which her Complaint is brought and the Court can discern none. Plaintiffs’ Complaint, at best, alleges possible state law claims for fraud in connection

with the transaction. Therefore, the Court finds there is no federal question jurisdiction. To properly allege diversity jurisdiction, Plaintiff must allege (1) diversity of citizenship between the parties, and (2) an amount in controversy that exceeds $75,000. See 28 U.S.C. § 1332(a). Here, Plaintiff cannot establish diversity jurisdiction because Plaintiff and Defendant are both citizens of the same state, New York. Plaintiff provides that she lives in Albany, New York and SEFCU is located in Albany, New York. Moreover, the amount in controversy is $20,000. Therefore, the Court finds there is no diversity jurisdiction. Accordingly, the undersigned recommends dismissing Plaintiff’s Complaint without prejudice.3 Hollander v. Garrett, 710 F. App’x 35, 36 (2d Cir. 2018) (“[D]ismissal for subject matter jurisdiction must be without prejudice.”). 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). 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 Defendant 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 that the named Defendant violated a law, she should specifically refer to such law. Lastly, Plaintiff is further cautioned that the filing of vexatious, harassing, or duplicative lawsuits may result in the

3 In light of the foregoing recommendation, Plaintiff is not prevented from filing a complaint in an appropriate state court, should she wish to do so. However, the undersigned makes no finding as to whether Plaintiff can successfully or properly bring the complaint in state court. imposition of sanctions, including limitations on her ability to file without prior permission of the Court. See Ajamian v. Nimeh, 14-CV-0320 (GTS), 2014 WL 6078425, at *3 (N.D.N.Y. Nov. 13, 2014) (“[A] federal district court may impose reasonable filing restrictions on a pro se litigant in that particular court, pursuant to 28 U.S.C. § 1651(a) and its inherent authority to

control and manage its own docket so as to prevent abuse in its proceedings.”); see also In re Sassower, 20 F.3d 42, 44 (2d Cir. 1994) (where a pro se plaintiff has demonstrated a “clear pattern of abusing the litigation process by filing vexatious and frivolous complaints,” a “leave to file” requirement may be instituted by the court as an appropriate sanction); Hong Mai Sa v. Doe, 406 F.3d 155, 158 (2d Cir. 2005) (“If a litigant has a history of filing vexatious, harassing or duplicative lawsuits, courts may impose sanctions, including restrictions on future access to the judicial system.”); see, e.g., Johnson v. Progressive.com, 19-cv-11202-CM, 2020 WL 589127, at *1 (S.D.N.Y. Feb. 5, 2020) (declining to grant pro se plaintiff leave to amend in light of the plaintiff’s “abusive litigation history” and where amendment would be futile). III. CONCLUSION

For the reasons sated herein, it is hereby ACCORDINGLY, 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 provide Plaintiff with 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). Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report.* 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 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).

Dated: December 13, 2022 —_~ Syracuse, New York Theérése Wiley Dancks United States Magistrate Judge

* 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). Ifthe 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).

2012 WL 1898944 Court can best discern, Plaintiff is defending himself in an Only the Westlaw citation is currently available. on-going criminal prosecution in the Suffolk County District United States District Court, Court. According to the Complaint, during an appearance E.D. New York. before Judge Kelley on May 4, 2012, Plaintiff was ordered to undergo a mental evaluation. Plaintiff describes that, under Matthew R. SMITH, ex rel. Kasiin Ali BEY, Plaintiff, the authority of the “Zodiac Constitution,” and in accordance v. with the “Peace and Friendship Treaty of 1836,” the state Chris Ann KELLY, Defendant. court lacks jurisdiction over him given that he is a Moorish– American. No. 12–CV–2319 (JS)(AKT). | According to the Complaint, Plaintiff requested that Judge May 24, 2012. Kelley provide Plaintiff with a “citation of authority to presume jurisdiction over a Moorish American and to state Attorneys and Law Firms the court's jurisdiction for the record.” Compl. at ¶ 5. Plaintiff alleges that Judge Kelley failed to do so and therefore now Matthew R. Smith, Ex Rel., Kasiin Ali Bey, Central Islip, NY, Plaintiff “demand[s] [that] all proceedings cease until CHRIS pro se. ANN KELLEY properly established jurisdiction for the No Appearance, for Defendant. record.” Compl. at ¶ 6. Plaintiff seeks to recover $100,000.00 for “libel” as well as $800 .00 for “filing, service and handling” and “daily interest for enduring encumbrance of the present libel” of $1,000.00 per day. ORDER SEYBERT, District Judge. DISCUSSION *1 Before the Court is the fee paid Complaint of pro se plaintiff Matthew R. Smith, ex rel. Kasiin Ali Bey I. Standard of Review (“Plaintiff”) filed pursuant to 42 U.S.C. § 1983 against the A district court is required to dismiss a complaint if the action defendant, Hon. Chris Ann Kelley, Acting County Court is frivolous or malicious; fails to state a claim on which relief Judge, Suffolk County District Court, 10th Judicial District may be granted; or seeks monetary relief against a defendant (the “Defendant”).1 Notwithstanding Plaintiff's payment of who is immune from such relief. See 28 U.S.C. § 1915(e)(2) the filing fee, for the reasons that follow, the Plaintiff's (B) (i-iii); Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir.2007). Complaint is sua sponte DISMISSED pursuant to 28 U.S.C. Regardless of whether a plaintiff has paid the filing fee, a §§ 1915(e)(2)(B)(i)-(iii). district court should dismiss a complaint, sua sponte, if it determines that the action is frivolous. Fitzgerald v. First 1 The correct spelling of Judge Kelley's last name East Seventh Street Tenants Corp., 221 F.3d 362, 363–64 (2d includes the letter “e” before the “y”. Plaintiff is Cir.2000). The Court is required to dismiss the action as soon inconsistent in the spelling of this name, sometimes as it makes such a determination. 28 U.S.C. § 1915A(a). it is “Kelly” and elsewhere it is “Kelley.” To avoid any confusion, the Court corrects the spelling of An action is “frivolous” when either: (1) “ ‘the factual Judge Kelley's name in the caption and the Clerk of contentions are clearly baseless,’ such as when allegations the Court is directed to so amend the caption. are the product of delusion or fantasy,” or (2) “the claim is ‘based on an indisputably meritless legal theory.’ “ Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 BACKGROUND (2d Cir.1998) (internal citations omitted). It is axiomatic that pro se complaints are held to less stringent standards than Plaintiff, who is alleged to be of Moorish–American pleadings drafted by attorneys and the Court is required to nationality, seeks to recover monetary damages allegedly read the plaintiff's pro se complaint liberally, Erickson v. incurred as a result of being ordered by Judge Kelley to submit Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 S.Ct. 285, 50 L.Ed.2d 251 (1976)); Chavis v. Chappius, 618 Realty, No. 12–CV–1241(ENV), 2012 WL 1634161, *1 n. F.3d 162 (2d Cir.2010), and to construe them “ ‘to raise the 1 (E.D.N.Y. May 9, 2012) (citing Bey v. Am. Tax Funding, strongest arguments that [they] suggest [ ].’ “ Chavis, 618 No. 11–CV–6458, 2012 WL 1495368, at *6 (W.D.N.Y. Apr. F.3d at 170 (quoting Harris v. City of New York, 607 F.3d 27, 2012); Gordon v. Deutsche Bank, No. 11–CV–5090, 18, 24 (2d Cir.2010)). Moreover, at the pleadings stage of 2011 WL 5325399, at *1 n. 1 (E.D.N.Y. Nov. 3, 2011); the proceeding, the Court must assume the truth of “all well- see, also Bey v. City of Rochester, 2012 WL 1565636, at *8 pleaded, nonconclusory factual allegations” in the complaint. (W.D.N.Y. Apr. 30, 2012) (citing El–Bey v. North Carolina, Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 124 (2d No. 5:11–CV–0423FL, 2012 WL 368374, at *2 (E.D.N.C. Cir.2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. Jan. 9, 2012) (unpublished) (“[A]ny claim based on the 1937, 1949–50, 173 L.Ed.2d 868 (2009)); see, also Jackson contention that Plaintiffs are not subject to the laws of North v. Birmingham Board of Education, 544 U.S. 167, 171, 125 Carolina because of their alleged Moorish nationality and S.Ct. 1497, 161 L.Ed.2d 361 (2005). the Treaty of Peace and Friendship of 1787 is frivolous.”), recommendation adopted, 2012 WL 368369 (E.D.N.C. Feb. *2 Further, “subject matter jurisdiction, because it involves 3, 2012) (unpublished); Bey v. American Tax Funding, No. the court's power to hear a case, can never be forfeited or 11–CV–6458(CJS), 2012 WL 1498368, at *6 (W.D.N.Y. waived.” United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. Apr. 27, 2012) (“[Plaintiffs'] purported status as a Moorish– 1781, 152 L.Ed.2d 860 (2002). The subject matter jurisdiction American citizen does not enable him to violate state and of the federal courts is limited. Federal jurisdiction exists only federal laws without consequence.”); Gordon v. Deutsche when a “federal question” is presented (28 U.S.C. § 1331), Bank Nat. Trust Co., No. 11–CV–5090 (WFK), 2011 WL or where there is “diversity of citizenship” and the amount in 5325399, *1, n. 1 (E.D.N.Y. Nov. 3, 2011) (“Plaintiff's controversy exceeds $75,000.00 (28 U.S.C. § 1332). There is suggestion that as a member of the ‘Moorish–American” an independent obligation for a federal court to “determine nation he is immune from the laws of the United States is whether subject matter jurisdiction exists, even in the absence misguided”) (citing Bey v. Bailey, No. 09–CV–8416, 2010 of a challenge from any party.” Arbaugh v. Y & H Corp., WL 1531172, at *4 (S.D.N.Y.Apr.15, 2010) (“petitioner's 546 U.S. 500, 514 (2006) (citation omitted). When a federal claim that he is entitled to ignore the laws of the State of New court concludes that it lacks subject matter jurisdiction, it York by claiming membership in the ‘Moorish–American’ must dismiss the complaint in its entirety. Fed.R.Civ.P. 12(h) nation is without merit ....”) (add'l citation omitted). (3). *3 Because the Court is required to dismiss a civil action “at any time of the court determines that ... the action ... II. Application is frivolous,” Plaintiff's Complaint is dismissed. The instant Having carefully reviewed Plaintiff's Complaint, the Court Complaint is clearly frivolous given Plaintiff's claim that he finds that it fails to state a plausible claim. As a threshold is not subject to the jurisdiction of the New York state court matter, Plaintiff has not properly invoked this Court's subject because he is a Moorish American. Neitzke v. Williams, 490 matter jurisdiction. Plaintiff has not alleged a federal question U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) (a nor has he satisfied the diversity requirement because claim is “frivolous” if it lacks an arguable basis in either law Plaintiff, an alleged New York resident, seeks to sue a New or fact). Clearly, the allegations in the instant Complaint are York Defendant, namely Judge Kelley, Acting County Court based upon an indisputably meritless legal theory and are thus Judge, Suffolk County District Court, 10th Judicial District. dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2)B) (i). Even if the Court's subject matter jurisdiction were established, which it is not, the Complaint must be dismissed Even if the Plaintiff's claims were not frivolous, Plaintiff because it is frivolous. Liberally read, see Hughes v. Rowe, cannot recover damages from the Defendant, a sitting New 449 U.S. 5, 9, 101 S.Ct. 173, 176, 66 L.Ed. 163 (1980), the York State Court Judge, Suffolk County District Court, since gravamen of Plaintiff's Complaint is that he is not subject as a judge, she is entitled to absolute judicial immunity to the jurisdiction of the New York state court and therefore as well Eleventh Amendment Immunity. Mahapatra v. does not have to comply with the order entered by Judge Comstock, 141 F.3d 1152 (2d Cir.1998) (“[T]he district court Kelley. The law is clear that Moorish Americans, like all properly dismissed the claims for damages based on absolute civil damages for judicial acts performed in their judicial U.S. 438, 444–45, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). capacities.”) (citing Mireles v. Waco, 502 U.S. 9, 11–12, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991)); Seminole Tribe of Florida v. Florida, 517 U.S. 44, 53–55, 116 S.Ct. 1114, 134 L.Ed.2d CONCLUSION 252 (1996); Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). For the reasons set forth above, the Complaint is sua sponte dismissed with prejudice. The Clerk of the Court is directed Given that the Complaint is based on an indisputably to close this case. meritless legal theory, the Court declines to afford Plaintiff leave to amend his Complaint, as any amendment would be SO ORDERED. futile. Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.2000). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that All Citations any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for the Not Reported in F.Supp.2d, 2012 WL 1898944 End of Document © 2022 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 © 2022 Thomson Reuters. No claim to original U.S. Government Works. 2014 WL 6078425 the face of the record in order to accept the recommendation.” Only the Westlaw citation is currently available. Id.; see also Batista v. Walker, 94–CV–2826, 1995 WL United States District Court, 453299, at *1. (S.D.N.Y. July 31, 1995) (Sotomayor, J.) (“I N.D. New York. am permitted to adopt those sections of [a magistrate judge's] report to which no specific objection is made, so long as Robert H. AJAMIAN, Plaintiff, those sections are not facially erroneous.”) (internal quotation v. marks and citations omitted). Kinah NIMEH, Stock Broker at Gunn Allen Financial, Arbitration 13–02183, Defendant. Here, based upon a review of this matter, the Court can find no error with Magistrate Judge Hummel's Report– No. 1:14–CV–0320 (GTS/CFH). Recommendation, clear or otherwise. (Dkt. No. 15.) | Magistrate Judge Hummel employed the proper standards, Signed Nov. 13, 2014. accurately recited the facts, and reasonably applied the law to those facts. (Id.) Further, Magistrate Judge Hummel's Report– Attorneys and Law Firms Recommendation would survive even a de novo review. As a result, the Report–Recommendation is accepted and adopted Robert H. Ajamian, Latham, NY, pro se. in its entirety for the reasons stated therein. DECISION and ORDER II. Proposed Amended Complaint Ostensibly pursuant to Magistrate Judge Hummel's Hon. GLENN T. SUDDABY, District Judge. recommendation that this Court grant Plaintiff leave to file an amended complaint, Plaintiff prematurely filed a *1 Currently before the Court, in the above-captioned proposed amended complaint, but did so by insisting that civil rights action filed by Robert H. Ajamian (“Plaintiff”) it be treated as a separate action. (See Ajamian v. Gunn against the above-captioned Defendants, is United States Allen Fin., et al., 1:14–CV–1211 [DNH/ATB].) As Magistrate Magistrate Christian F. Hummel's Report–Recommendation Judge Andrew T. Baxter observed, that complaint adds a recommending that Plaintiff's Complaint be dismissed defendant, adds facts and changes the basis for Plaintiff's pursuant to 28 U.S.C. § 1915 and § 1915A for failure to state allegation of jurisdiction. (See id., Dkt. No. 5) However, a claim but otherwise granting Plaintiff leave to submit an because that complaint is “challenging the same conduct by amended complaint. (Dkt. No. 15.) Plaintiff has not filed an the same defendant at the same time as the complaint in [this objection to the Report–Recommendation and the deadline action],” Magistrate Judge Baxter closed the separate action in which to do so has expired. (See generally Docket Sheet.) and directed that the complaint filed therein be filed as a Instead, Plaintiff has filed a proposed amended complaint. proposed amended complaint in this action. (See id., Dkt. For the reasons set forth below, Magistrate Judge Hummel's No. 5.) Therefore, the Court will review Plaintiff's proposed Report–Recommendation is accepted and adopted in its amended complaint to determine whether a meritorious claim entirety. In addition, Plaintiff's proposed amended complaint is stated, which would allow the action to go forward. is denied and this action is dismissed with prejudice. Further, Plaintiff is directed to show cause, within thirty (30) days of *2 As an initial matter, it is important to note that Plaintiff this Decision and Order, as to why he should not be barred filed an exact copy of the original complaint in this action in from filing any future pro se documents or motions in this the United States District Court for the District of Columbia action without first obtaining leave of the Court. on June 10, 2014, which was thereafter transferred to the Eastern District of New York. See Ajamian v. Nimeh, 2:14– I. Report–Recommendation CV–4093(JS/GRB). On September 26, 2014, the District When no objection is made to a report-recommendation, the Judge in that case dismissed Plaintiff's claims without Court subjects that reportrecommendation to only a clear prejudice and granted Plaintiff leave to file an amended error review. Fed.R.Civ.P. 72(b), Advisory Committee Notes: complaint within thirty days of the filing of the Order. See 1983 Addition. When performing such a “clear error” review, Ajamian v. Nimeh, No. 14–CV–409, 2014 WL 4828884, at the time allowed, the Complaint shall be DISMISSED WITH on lack of merit.4 PREJUDICE.” Id. (emphasis in original). Plaintiff having not filed an amended complaint in that action within the 1 See Ajamian v. State of New York, No. 13–CV– time allowed, his claims have been dismissed with prejudice. 1316, Complaint (N.D.N.Y. filed Oct. 23, 2013) For this reason, the Court finds that the proposed amended (pro se civil rights action); Ajamian v. Morgan complaint in this action is futile because Plaintiff is estopped Stanley Smith Barney, et. al, No. 14–CV–0306, from pursuing his claims under the doctrine of res judicata. Complaint (N.D.N.Y. filed Mar. 21, 2014) (pro Under the doctrine of res judicata, or claim preclusion, se civil rights action); Ajamian v. Morgan Stanley a final judgment on the merits of an action precludes Smith Barney, et. al, No. 14–CV–0319, Complaint the parties or their privies from relitigating issues that (N.D.N.Y. filed Mar. 24, 2014) (pro se civil were or could have been raised in that action. Thus, the rights action; Ajamian v. Nimeh, No. 14–CV–0320, doctrine bars later litigation if an earlier decision was (1) a Complaint (N.D.N.Y. filed Mar. 24, 2014) (pro se final judgment on the merits, (2) by a court of competent civil rights action); Ajamian v. Zakarian, No. 14– jurisdiction, (3) in a case involving the same parties or CV–0321, (N.D.N.Y.2014) (current action barred their privies, and (4) involving the same cause of action. by res judicata ); Ajamian v. Nimeh, No. 14–CV– EDP Med. Computer Sys., Inc. v. United States, 480 F.3d 4093, (E.D.N.Y.2014) (pro se civil rights action); 621, 624 (2d Cir.2007) (internal citations and quotation Ajamian v. Zakarian, No. 14–CV–1127, Complaint omitted). (N.D.N.Y. filed Sept. 15, 2014) (pro se civil rights action); Ajamian v. Morgan Stanley Smith Barney, A dismissal with prejudice has the effect of a final et. al, No. 14–CV–1204, Complaint (N.D.N.Y. adjudication on the merits favorable to defendant and bars filed Oct. 1, 2014) (pro se civil rights action); future suits brought by plaintiff upon the same cause of Ajamian v. Nimeh, No. 14–CV–1211, Complaint action. Such a dismissal constitutes a final judgment with (N.D.N.Y. filed Oct. 3, 2014) (pro se civil rights the preclusive effect of res judicata not only as to all action). matters litigated and decided by it, but as to all relevant 2 issues which could have been but were not raised and See Ajamian v. State of New York, No. 13–CV– litigated in the suit. 1316, Judgment (N.D.N.Y. filed August 11, 2014) (dismissing with prejudice for failure to state a Nemaizer v. Baker, 793 F.2d 58, 60–61 (2d Cir.1986) (internal claim and lack of subject matter jurisdiction); citations and quotation omitted). Ajamian v. Morgan Stanley Smith Barney, et. al, No. 14–CV–0306, Judgment (N.D.N.Y. filed May Consequently, Plaintiff's claims in his original complaint 28, 2014) (dismissing with prejudice for failure as well as those in the proposed amended complaint are to state a claim); Ajamian v. Morgan Stanley precluded under the doctrine of res judicata. See Nemaizer, Smith Barney, et. al, No. 14–CV–0319, Text Order 793 F.2d, at 61. For this reason, Plaintiff's proposed amended (N.D.N.Y. filed Mar. 26, 2014) (terminated action complaint is denied and this action is dismissed without as duplicative of 14–CV–306); Ajamian v. Nimeh, prejudice. No. 14–CV0320 (N.D.N.Y.2014) (current action barred by res judicata); Ajamian v. Zakarian, No. 14–CV0321, Judgment (N.D.N.Y. filed Aug. III. Appropriateness of Bar Order 26, 2014) (dismissed with prejudice for failure A review of Plaintiff's litigation history on the Federal to state a claim and lack of subject matter Judiciary's Public Access to Court Electronic Records jurisdiction); Ajamian v. Nimeh, No. 14–CV–4093, (“PACER”) Service reveals that, over the past year, Plaintiff Memorandum & Order (E.D.N.Y. filed Sept. 26, has filed nine pro se civil actions (including this one) in two 2014) (dismissed with prejudice for failure to state different federal district courts.1 Eight of these nine actions, a claim); Ajamian v. Morgan Stanley Smith Barney, including the current action, have been dismissed based on et. al, No. 14–CV–1204, Judgment (N.D.N.Y. pleading deficiencies or procedural failures.2 In addition, filed Oct. 30, 2014) (dismissed with prejudice for Judgment (N.D.N .Y. filed Oct. 9, 2014) (closed Moates v. Barkley, 147 F.3d 207, 208 (2d Cir.1998) ( “[T]he and ordered that complaint be filed as proposed district court may not impose a filing injunction on a litigant amended complaint in 14–CV320). sua sponte without providing the litigant with notice and 3 an opportunity to be heard.”); Azubuko v. Unknown Boston See Ajamian v. Morgan Stanley Smith Barney, LLC, Police Officers, 08–CV–0330, 2008 WL 1767067, at *1 No. 14–2212, Notice of Appeal (2d Cir. filed June (N.D.N.Y. Apr. 16, 2008) (McCurn, J.). 4, 2014); Ajamian v. State of New York, No. 14– 2934, Notice of Appeal (2d Cir. filed Aug. 15, Because of his history of filing unmerited and indeed 2014); Ajamian v. Zakarian, No. 14–3432, Notice vexatious lawsuits, including the current action, Plaintiff is of Appeal (2d Cir. filed Sept. 2, 2014); Ajamian hereby warned that the Court will not tolerate the filing of v. Morgan Stanley Smith Barney, 14–CV–1204, frivolous documents or motions in this action by him in Notice of Appeal to 2d Cir. (N.D.N.Y. filed Nov. 3, the future. As a result, Plaintiff is directed to show cause, 2014). within thirty (30) days, why this Court should not issue an 4 Order barring him from filing any future pro se documents See Ajamian v. Morgan Stanley Smith Barney, or motions in this action without first obtaining leave of the LLC, No. 14–2212, Order (2d Cir. filed Sept. 24, Court. In the event that Plaintiff fails to show such cause, he 2014) (dismissing appeal for lack of arguable basis will be prohibited from filing, in this action, any documents in law or fact); Ajamian v. State of New York, or motions without prior leave of the Court, pursuant to 28 No. 14–2934, Order (2d Cir. filed Oct. 22, 2014) U.S.C. § 1651(a) and the Court's inherent authority to control (dismissing appeal for lack of arguable basis in law and manage its own docket so as to prevent abuse in its or fact) (motion for reconsideration pending). proceedings. *3 Based on Plaintiff's litigation history, the Court finds that (1) Plaintiff lacks a good-faith expectation in prevailing Further, in the event Plaintiff fails to show such cause, in his lawsuits, (2) he has proven himself to be vexatious this case will be forwarded to Chief United States District and indeed incorrigible when proceeding pro se, (3) he Judge Gary L. Sharpe with the recommendation of the has caused needless expense to other parties and placed an undersigned that an Anti–Filing Injunction Order be issued unnecessary burden on the Court and its personnel, and (4) against Plaintiff, which would prohibit Plaintiff from filing, he has demonstrated that no lesser sanctions (e.g., such as in the Northern District of New York, any action pro se (that dismissal or chastisement) would be adequate to protect the is, without counsel) without first obtaining leave of the Court. Court and other parties. *4 ACCORDINGLY, it is Under such circumstances, a federal district court may impose reasonable filing restrictions on a pro se litigant in that ORDERED that Magistrate Judge Hummel's Report– particular court, pursuant to 28 U.S.C. § 1651(a) and its Recommendation (Dkt. No. 15) is ACCEPTED and inherent authority to control and manage its own docket ADOPTED in its entirety; and it is further so as to prevent abuse in its proceedings. For example, a federal district court may, after providing an appropriate ORDERED that Plaintiff's proposed amended complaint opportunity to be heard, prohibit a vexatious litigant from (Dkt. No. 32) is DENIED; and it is further filing, in that particular court, any action pro se (that is, without counsel), without prior leave of that court. See Hong ORDERED that Plaintiff's Complaint (Dkt. No. 1) is Mai Sa v. Doe, 406 F.3d 155, 158 (2d Cir.2005) (“If a litigant DISMISSED with prejudice; and it is further has a history of filing vexatious, harassing or duplicative lawsuits, courts may impose sanctions, including restrictions ORDERED that Plaintiff is hereby directed to show cause, on future access to the judicial system.”) [internal quotations within thirty (30) days of this Decision and Order, why this and citations omitted]; In re Sassower, 20 F.3d 42, 44 (2d Court should not issue an Order barring him from filing any Cir.1994) (where a pro se plaintiff has demonstrated a “clear future pro se documents or motions in this action without pattern of abusing the litigation process by filing vexatious first obtaining leave of the Court. In the event that Plaintiff and frivolous complaints,” a “leave to file” requirement fails to show such cause, he will be prohibited from filing, without counsel) without prior leave of the Court, pursuant normally used for litigants seeking redress of alleged to 28 U.S.C. § 1651(a) and the Court's inherent authority to constitutional violations through 42 U.S.C. § 1983. An control and manage its own docket so as to prevent abuse action commenced pursuant to 42 U.S.C. § 1983 requires in its proceedings. proof of the “deprivation of any right[ ], privilege[ ], or immunit[y] secured by the Constitution” or laws of the federal government. 42 U.S.C. § 1983; see also German v. Fed. Home Loan Mortg. Corp., 885 F.Supp. 537, 573 (S.D . REPORT–RECOMMENDATION and ORDER N.Y.1995) (“Section 1983 establishes a cause of action for the CHRISTIAN F. HUMMEL, United States Magistrate Judge. deprivation of any rights, privileges, or immunities secured by the Constitution and laws of the United States.”) (quotations The Clerk has sent to the Court for review a complaint filed by omitted). pro se plaintiff Robert H. Ajamian (“Ajamian”). Compl. (Dkt. No. 1). Ajamian has not paid the filing fee and instead seeks *5 Ajamian's § 1983 action should be dismissed for multiple permission to proceed with this matter in forma pauperis reasons. First, Ajamian fails to state a cognizable cause (“IFP”). Dkt. Nos. 2, 5–6, 9, 12–14. of action for which relief can be granted. It is unclear to the Court what civil or constitutional rights were allegedly violated since Ajamian fails to specify the nature of such rights. Ajamian only alleges that defendant failed to make I. Discussion conservative trades on his behalf. Furthermore, the named defendant Nimeh is not asserted to have acted under the color A. Application to Proceed IFP of state law. See, e.g., Rounseville v. Zahl, 13 F.3d 625 (2d Cir.1994) (noting state action requirement under § 1983); Ajamian has submitted an IFP Application. Despite the Wise v. Battistoni, No. 92–CV–4288 (PKL),1992 WL 380914, absence of a properly completed IFP application before the Court, due to significant efforts made by Ajamian, coupled at *1 (S.D.N.Y. Dec. 10, 1992) (same) (citations omitted).1 with a review of the information provided therein, the Court State action is an essential element of any § 1983 claim. See finds that Ajamian may properly proceed with this matter IFP. Gentile v. Republic Tobacco Co., No. 95–CV–1500 (RSP) (DNH), 1995 WL 743719, at *2 (N.D.N.Y. Dec. 6, 1995) (citing Velaire v. City of Schenectady, 862 F.Supp. 774, 776 (N.D.N.Y.1994) (citation omitted)). There is no allegation B. Allegations in the Complaint that Nimeh acted under color of state law with regard to the stock trades. As such, § 1983 is not the proper vehicle Section 1915(e) of Title 28 of the United States Code directs through which Ajamian could seek judicial review of his that, when a plaintiff seeks to proceed IFP, “the court shall claims. Accordingly, to the extent Ajamian seeks to remedy dismiss the case at any time if the court determines that ... the a constitutional violation through § 1983, the complaint fails action or appeal (i) is frivolous or malicious; (ii) fails to state a to state a cause of action to which relief can be granted and claim on which relief may be granted; or (iii) seeks monetary should be dismissed. relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). Thus, it is a court's responsibility to determine that a plaintiff may properly maintain his complaint 1 All unpublished opinions cited to by the Court before permitting him to proceed with his action. in this Report–Recommendation are, unless otherwise noted, attached to this Recommendation. Ajamian asserts that defendant Nimeh, a stock broker, Ajamian also asserts that Nimeh violated his rights under violated his constitutional rights by placing non-conservative “U.S. civil statutes 22 A.L.R. 5th 261, 152 A.L.R. Fed. 1.” trades using his retirement account between March 2005 Compl. at 1. Reliance on either authority is misplaced. Both and September 2011, which resulted in a $30,000.00 loss. references are not to federal statutes but to American Law Compl. at 2–4. Ajamian contends that he is entitled to treble Reports articles, the former concerns statutes on assaults damages, or $90,000.00. Id. For a more complete statement motivated by hate crimes and ethnic intimidation while the of Ajamian's claims, reference is made to the complaint. latter discusses governmental actions that constitute “reverse 261 (1994). The complaint is devoid of any factual allegations the amount in controversy is set at $90,000.00, thus meeting concerning these legal issues. Therefore, despite Ajamian's the amount in controversy requirement, Ajamian has failed conclusory statements, he has failed to state a claim in citing to satisfy the domicile requirement for purposes of diversity these articles. jurisdiction. Accordingly, where the domicile requirement is unmet, diversity jurisdiction does not exist and the Court It is well established that a federal court is obligated to lacks subject matter jurisdiction to consider the action. When notice on its own motion the basis for its own jurisdiction; subject matter jurisdiction is lacking, dismissal is mandatory. thus, the Court must examine whether diversity jurisdiction United States v. Griffin, 303 U.S. 226, 229 (1938); FED. R. exists. City of Kenosha, Wisconsin v. Bruno, 412 U.S. 507, CIV. P. 12(h)(3) (“If the court determines at any time that it 512 (1973); see also Alliance of Am. Ins. v. Cuomo, 854 lacks subject-matter jurisdiction, the court must dismiss the F.2d 591, 605 (2d Cir.1988) (challenge to subject matter action.”). Thus, dismissal of this action may be warranted. jurisdiction cannot be waived); FED. R. CIV. P. 12(h)(3) (court may raise basis of its jurisdiction sua sponte ). To the extent Ajamian seeks to bring criminal charges Ajamian asserts the following claims, “breach of fiduciary against Nimeh, Ajamian lacks a cognizable right in that duty, misrepresentation/non-disclosure, activity suitability, regard. It is well-settled law in this Circuit that there is no unauthorized trading, breach fo contract, error charges, constitutional right to have criminal wrongdoers prosecuted. failure to supervise, margin calls, negligence, criminal See Connecticut Action Now, Inc. v. Roberts Plating Co., 457 misrepresentation, fraudulent concealment....” Compl. at 1. F.3d 81, 86–87 (2d Cir.1972) (“It is a truism ... that in our Thus, the Court considers whether it has subject matter federal system crimes are always prosecuted by the Federal jurisdiction under 28 U.S.C. § 1332, which confers diversity Government, not by ... private citizens.”). jurisdiction. Lastly, attached to Ajamian's complaint is a “FINRA *6 For diversity jurisdiction to exist, the matter in [ (“Financial Industry Regulatory Authority”) ] dispute controversy must exceed $75,000 and must be between resolution claim information tracking form” dated July 19, 2013, which indicates that a claim was filed against Nimeh, (1) citizens of different States; to be resolved through arbitration proceedings. Compl. at 5–8. While Ajamian does not refer to a FINRA arbitral (2) citizens of a State and citizens or subjects of a foreign award in his complaint, allege specifics facts surrounding state; the circumstances of an arbitral award, request specific (3) citizens of different States and in which citizens or judicial action on such an award, or attach the award to his subjects of a foreign state are additional parties; and complaint, it appears that Ajamian filed a claim with FINRA for arbitration proceedings to resolve disputes against Nimeh. (4) a foreign state, defined in section 1603(a) of this title, Furthermore, Ajamian alludes to an arbitration proceeding as plaintiff and citizens of a State or of different States. by inserting an arbitration number in the caption of his complaint. Compl. at 1. In light of his pro se status, the 28 U.S.C. § 1332(a). For purposes of diversity jurisdiction, Court recommends that Ajamian be afforded an opportunity an individual's citizenship is the individual's domicile, which to amend his complaint to make clear this cause of action. is determined on the basis of two elements: “(1) physical Ajamian should also be provided an opportunity to provide presence in a state and (2) the intent to make the state a home.” more facts in his amended complaint which would allow the See Zimak Co. v. Kaplan, No. 98–CV–3176(DAB)NRB., Court, and defendant, to assess whether a meritorious action 1999 WL 38256, at *2 (S.D.N.Y. Jan. 28, 1999) (quoting is stated. 15 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE ¶ 102.34[2] (3d ed.1998)). Corporations are deemed to be “a citizen of any State by which it has been incorporated and of the State where it has its principal place II. Amendment of business[.]” 28 U.S.C. § 1332(c). *7 In sum, Ajamian's complaint in its current form fails to state a claim for relief and fails to state the Court's subject In the “Parties” section of the complaint and civil cover matter jurisdiction. As such, dismissal would be appropriate light of Ajamian's pro se status, this Court recommends that 28 U.S.C. § 1915 and § 1915A, plaintiff's complaint is prior to dismissing this action, Ajamian be directed to amend DISMISSED for failure to state a claim upon which relief can his complaint to provide clearer details regarding his claim. be granted and for lack of subject matter jurisdiction; and it Ajamian is directed to draft a complaint which satisfies the is further plausibility standard outlined in Ashcroft v. Iqbal, 556 U.S. 662 (2009), requiring plaintiffs to “plead [ ] factual content RECOMMENDED that alternatively, in light of plaintiff's pro se status, prior to dismissing plaintiff's complaint in that allows the court to draw the reasonable inference that its entirety, he be provided an opportunity to amend his the defendant is liable for the misconduct alleged.” Id. at complaint to amplify the facts that would support his claim 678 (citations omitted). Specifically, Ajamian is directed to for entitlement to relief; and it is further draft a complaint which Ajamian have to allege specific facts sufficient to plausibly state that the FINRA arbitration award, if it exists, merits judicial review. ORDERED that the Clerk serve a copy of this Report– Recommendation and Order on the parties in accordance with the Local Rules. III. Conclusion Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such WHEREFORE, it is hereby objections shall be filed with the Clerk of the Court “within fourteen (14) days after being served with a copy ORDERED that plaintiff's IFP application (Dkt.Nos.12– of the ... recommendation.” N.Y.N.D.L.R. 72.1(c) (citing 14)2 is GRANTED;3 and it is further 28 U.S.C. § 636(b)(1)(B)-(C)). FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL 2 Plaintiffs' pending letter motions and exhibits PRECLUDE APPELLATE REVIEW. Roldan v. Racette, (Dkt.Nos.12–14) were filed in support of his IFP 984 F.2d 85, 89 (2d Cir.1993); Small v. Sec'y of HHS, 892 application, which was first filed on March 24, F.2d 15 (2d Cir.1989); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 2014 (Dkt. No. 2). 72, 6(a), 6(e). 3 Plaintiff should note that although his IFP Application has been granted, plaintiff will still be Filed May 22, 2014. required to pay fees that he may incur in this action, All Citations including copying and/or witness fees. Not Reported in F.Supp.3d, 2014 WL 6078425 End of Document © 2022 Thomson Reuters. No claim to original U.S. Government Works. 2020 WL 589127 contentions are clearly baseless ...; or (2) the claim is based Only the Westlaw citation is currently available. on an indisputably meritless legal theory.”) (internal quotation United States District Court, S.D. New York. marks and citation omitted). Robert W. JOHNSON, Plaintiff, v. BACKGROUND AND DISCUSSION PROGRESSIVE.COM, et al., Defendants. Plaintiff filed this complaint against multiple insurance 19-CV-11202 (CM) companies and other entities, including Progressive, Axxcess | Insurance Agencies Ltd., New York Automobile Insurance Signed 02/05/2020 Plan, Global Liberty Insurance Company, Arizona Premium Finance, Chevrolet, ADESA, Nationwide, Victoria Fire & Attorneys and Law Firms Casualty Company, Allstate, Geico, and AAA. Plaintiff seeks Robert W. Johnson, Bronx, NY, pro se. “$999 trillion” in punitive damages, “$999 billion for future pain and suffering,” and “100% ownership of corporation assets, bank accounts & equities.” The complaint contains no facts. ORDER OF DISMISSAL COLLEEN McMAHON, Chief United States District Judge: Even when read with the “special solicitude” due pro se pleadings, Triestman, 470 F.3d at 474-75, Plaintiff's claims *1 Plaintiff Robert W. Johnson, of the Bronx, New York, rise to the level of the irrational, and there is no legal theory filed this complaint pro se and in forma pauperis (IFP). The on which he can rely. See Denton, 504 U.S. at 33; Livingston, Court dismisses this action for the reasons set forth below. 141 F.3d at 437. District courts generally grant a pro se plaintiff an opportunity to amend a complaint to cure its defects, but leave to amend is STANDARD OF REVIEW not required where it would be futile. See Hill v. Curcione, 657 The Court must dismiss a complaint, or portion thereof, that is F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 frivolous or malicious, fails to state a claim upon which relief F.2d 40, 42 (2d Cir. 1988). Because the defects in Plaintiff's may be granted, or seeks monetary relief from a defendant complaint cannot be cured with an amendment, and in light who is immune from such relief. 28 U.S.C. §§ 1915(e)(2) of Plaintiff's abusive litigation history, discussed below, the (B), 1915A(b); see Abbas v. Dixon, 480 F.3d 636, 639 (2d Court declines to grant Plaintiff leave to amend. Cir. 2007). While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings Plaintiff has filed scores of cases around the country in liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), connection with a 2017 car accident in Buffalo, New York, and interpret them to raise the “strongest [claims] that they and this complaint is consistent with his pattern of vexatious suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, and frivolous litigation. In Johnson v. Wolf, ECF 1:19- 474-75 (2d Cir. 2006) (internal quotation marks and citations CV-7337, 5 (S.D.N.Y. Nov. 5, 2019), Judge Wood, after omitted) (emphasis in original). discussing Plaintiff's extensive litigation history, dismissed Plaintiff's action as frivolous, for failure to state a claim upon A claim is frivolous when it “lacks an arguable basis either which relief may be granted, and for seeking monetary relief in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 324-25 against Defendants who are immune from such relief; he also (1989), abrogated on other grounds by Bell Atl. Corp. v. ordered Plaintiff to show cause why he should not be barred Twombly, 550 U.S. 544 (2007); see also Denton v. Hernandez, from filing any future action IFP in this Court without prior 504 U.S. 25, 32-33 (1992) (holding that “finding of factual permission). Plaintiff did not file a declaration as directed, frivolousness is appropriate when the facts alleged rise to the but instead, on November 13, 2019, Plaintiff filed a notice of level of the irrational or the wholly incredible”); Livingston appeal, and that appeal is pending.1 A review of the Public Access to Court Electronic Records (PACER) system reveals that since November 5, 2019, Plaintiff has filed ten new CONCLUSION actions in other federal district courts and, The Clerk of Court is directed to mail a copy of this order to including this case, four new actions in this Court. Plaintiff and note service on the docket. See Johnson v. New York State Ins. Fund, ECF 1:19-CV-11831, 2 (S.D.N.Y. filed Dec. 20. 2019); The Court dismisses this action as frivolous. 28 U.S.C. § Johnson v. Progressive.com, ECF 1:19-CV-11202, 1915(e)(2)(B)(i). 2 (S.D.N.Y. filed Dec. 5, 2019); Johnson v. New York State Dep't of Trans., ECF 1:19-CV-11127, 2 The Court certifies under 28 U.S.C. § 1915(a)(3) that any (S.D.N.Y. filed Dec. 2, 2019). appeal from this order would not be taken in good faith, and *2 By order dated January 27, 2020, entered in Johnson v. therefore in forma pauperis status is denied for the purpose Town of Onondaga, ECF 1:19-CV-11128, 4 (CM) (S.D.N.Y. of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, Jan. 27, 2020), this Court also directed Plaintiff to show cause 444-45 (1962) (holding that an appellant demonstrates good why a filing injunction should not be imposed. And at least faith when he seeks review of a nonfrivolous issue). one other court has already barred Plaintiff from filing pro se complaints without prior permission. See Johnson v. Abel, No. 19-CV-2685 (E.D. Ohio Aug. 5, 2019) (deeming Plaintiff SO ORDERED. a “vexatious” litigant and barring him from filing new pro se All Citations actions without prior leave of court). Not Reported in Fed. Supp., 2020 WL 589127 The Court's prior warnings remain in effect. End of Document © 2022 Thomson Reuters. No claim to original U.S. Government Works.