Barbosa v. Andrews

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_______________________________________________
RYAN BARBOSA,
Plaintiff,
v. 	8:25-cv-01516
(AMN/TWD)
STEFAN ANDREWS,
Defendant.
_______________________________________________
APPEARANCES:
RYAN BARBOSA
Plaintiff, pro se
15224
Jefferson County Jail
753 Waterman Drive
Watertown, NY 13601
THÉRÈSE WILEY DANCKS, United States Magistrate Judge
REPORT-RECOMMENDATION AND ORDER
I. 	INTRODUCTION
The Clerk has sent to the Court for review a complaint submitted by pro se plaintiff Ryan
Barbosa (“Plaintiff”), together with an application to proceed in forma pauperis (“IFP”). Dkt.
Nos. 1, 2. Plaintiff, who is incarcerated at the Jefferson County Jail, has not paid the filing fee
for this action.
II. 	IFP APPLICATION
“28 U.S.C. § 1915 permits an indigent litigant to commence an action in a federal court
without prepayment of the filing fee that would ordinarily be charged.” Cash v. Bernstein, No.
1:09-CV-1922, 2010 WL 5185047, at *1 (S.D.N.Y. Oct. 26, 2010). “Although an indigent,
incarcerated individual need not prepay the filing fee at the time of filing, he must subsequently
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2
pay the fee, to the extent he is able to do so, through periodic withdrawals from his inmate
accounts.” Id. (citing 28 U.S.C. § 1915(b); Harris v. City of New York, 607 F.3d 18, 21 (2d Cir.
2010)).1
Upon review, the Court finds Plaintiff has submitted a completed and signed IFP
application, which demonstrates economic need. Dkt. No. 2. Plaintiff has also filed the inmate
authorization form required in this District. Dkt. No. 3. Accordingly, Plaintiff’s IFP application
is granted.2
III. 	COMPLAINT
Plaintiff commenced this action by using the Court’s form complaint for violations of
civil rights. Dkt. No. 1. Plaintiff alleges that on October 3, 2024, he was “pushed down the
stairs” by defendant Stefan Andrews (“Defendant”). Id. at 5.3 His “statement of facts” reads, in
full:
I suffered a right elbow dislocation a right wrist broken along with
my arm and 2 fractured vertabraes. 	A verbal issue turned violent
because a Playstation was knocked over while me and another friend
were play wrestling in the house who is Stefan’s childs mother led
to him telling me to leave which I did but as I was he grabbed me
by my collar dragged me to the stairs closed the door confronted me
about the Playstation but still had me by my collar so I said get your
hand off me I tried to move his hand and he slapped and pushed me
1 Section 1915(g) prohibits a prisoner from proceeding in forma pauperis where, absent a
showing of “imminent danger of serious physical injury,” a prisoner has filed three or more
actions or appeals that were subsequently dismissed as frivolous, malicious, or failing to state a
claim upon which relief may be granted. 28 U.S.C. § 1915(g). Based upon the Court’s review
of Plaintiff’s litigation history on the Federal Judiciary’s Public Access to Court Electronic
Records (“PACER”) Service, it does not appear that Plaintiff has accumulated three strikes for
purposes of 28 U.S.C. § 1915(g).
2 Plaintiff should note that although his IFP application has been granted, he will still be required
to pay fees that he may incur in this action, including copying and/or witness fees.
3 Citations to Plaintiff’s complaint refer to the pagination generated by CM/ECF, the Court’s
electronic filing system. 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.
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down the stairs I went down a large set of old hard wooden stairs
and thru a screen door onto the porch I tried to get up on my right
arm and it bent in half and I basically went in shock a friend drove
me around the corner to stewarts gas station where I was picked up
by an ambulance[.]
Id. at 4. Plaintiff required surgery. Id. at 5. As relief, Plaintiff seeks “1 million dollars and
medical bills to be paid” for his “pain and suffering”, “depression”, “mental anguish,” “inability
to work”, and “permenant injury”. Id.
IV. 	LEGAL STANDARD
Pursuant to 28 U.S.C. § 1915(e), the court must dismiss an in forma pauperis complaint
that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks
monetary relief from a defendant who is immune from such relief. See 28 U.S.C. §
1915(e)(2)(B)(i)-(iii). Thus, even if a plaintiff meets the financial criteria to commence an action
in forma pauperis, it is the court’s responsibility to determine whether the plaintiff may properly
maintain the complaint that he filed in this District before the court may permit the plaintiff to
proceed with this action in forma pauperis. See id. The court must also dismiss a complaint, or
portion thereof, when it 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 arguments that they suggest.” Triestman v. Fed. Bureau of Prisons,
470 F.3d 471, 474-75 (2d Cir. 2006) (internal quotation marks and citation 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) (“[A]
finding of factual frivolousness is appropriate when the facts alleged rise to the level of the
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irrational or the wholly incredible”); Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437
(2d Cir. 1998) (“[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.”).
Additionally, when reviewing a complaint, a court may look to the Federal Rules of Civil
Procedure. 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.” Twombly, 550 U.S. at
570. “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). Moreover, “[a] party must state its claims or
defenses in numbered paragraphs, each limited as far as practicable to a single set of
circumstances[.]” Fed. R. Civ. P. 10. Rule 10 serves “to provide an easy mode of identification
for referring to a particular paragraph in a prior pleading[.]” Flores v. Graphtex, 189 F.R.D. 54,
55 (N.D.N.Y. 1999).
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)
(citations omitted). However, “the 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.
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V. 	FEDERAL SUBJECT MATTER JURISDICTION
“It is a fundamental precept that federal courts are courts of limited jurisdiction.” Owen
Equip. & Erec. Co. v. Kroger, 437 U.S. 365, 374 (1978). Federal jurisdiction exists only when a
“federal question” is presented, 28 U.S.C. § 1331, or where there is “diversity of citizenship” and
the amount in controversy exceeds $75,000, 28 U.S.C. § 1332. See Perpetual Sec., Inc. v. Tang,
290 F.3d 132, 136 (2d Cir. 2002).
Plaintiff brings this action under 42 U.S.C. § 1983, which provides in relevant part:
[e]very 	person 	who, 	under 	color 	of 	any 	statute, 	ordinance,
regulation, custom, or usage, of any State . . . subjects, or causes to
be subjected, any citizen of the United States . . . to the deprivation
of any rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured . . . .
28 U.S.C. § 1983. To state a claim under § 1983, a plaintiff must allege that the challenged
conduct (1) was “committed by a person acting under color of state law,” and (2) “deprived [the
plaintiff] of rights, privileges, or immunities secured by the Constitution or laws of the United
States.” Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010) (quoting Pitchell v. Callan, 13 F.3d
545, 547 (2d Cir. 1994)). “The purpose of § 1983 is to deter state actors from using the badge of
their authority to deprive individuals of their federally guaranteed rights and to provide relief to
victims if such deterrence fails.” Wyatt v. Cole, 504 U.S. 158, 161 (1992).
It is well settled that “the under-color-of-state-law element of § 1983 excludes from its
reach merely private conduct, no matter how discriminatory or wrongful.” Am. Mfrs. Mut. Ins.
Co. v. Sullivan, 526 U.S. 40, 50 (1999) (citation and internal quotation marks omitted). A
plaintiff must therefore allege facts showing that a defendant was either a state actor or a private
party acting under color of state law with regard to the claim. Ciambriello v. Cnty. of Nassau,
292 F.3d 307, 323 (2d Cir. 2002); see also United States v. Int’l Broth. of Teamsters, Chauffeurs,
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Warehousemen & Helpers of America, 941 F.2d 1292, 1295-96 (2d Cir. 1991) (“Because the
United States Constitution regulates only the Government, not private parties, a litigant claiming
that his constitutional rights have been violated must first establish that the challenged conduct
constitutes ‘state action.’”). Private actors have been found to engage in “state action” when
they are “willful participant[s] in joint activity with the State or its agents.” Adickes v. S.H.
Kress & Co., 398 U.S. 144, 152 (1970) (citing United States v. Price, 383 U.S. 787, 794 (1966)).
Here, Plaintiff has alleged no deprivation of rights secured by the United States
Constitution or under federal law, nor has he alleged facts plausibly showing Defendant was a
state actor or private party acting under color of state law in connection with his claims.
Construed most generously, Plaintiff’s complaint might be found to allege state law claims for
assault and battery.4 Therefore, the Court finds there is no federal subject matter jurisdiction
over Plaintiff’s claims.
Plaintiff’s complaint also fails to allege a basis for diversity jurisdiction under 28 U.S.C.
§ 1332. To establish jurisdiction under § 1332, diversity must be complete. See Cushing v.
Moore, 970 F.2d 1103, 1106 (2d Cir. 1992) (“[C]omplete diversity [is required] between all
plaintiffs and all defendants.”). Therefore, Plaintiff must allege that he and Defendant are
citizens of different states. He has not done so.
For diversity purposes, an individual is a citizen of the state where he is domiciled, which
is defined as the place where the individual “has his true fixed home . . . and to which, whenever
he is absent, he has the intention of returning.” Palazzo ex rel. Delmage v. Corio, 232 F.3d 38,
4 In New York, assault and battery claims are subject to a one-year statute of limitations. N.Y.
C.P.L.R. § 215. Because the incident giving rise to Plaintiff’s claims occurred on October 3,
2024, Dkt. No. 1 at 1, and Plaintiff’s complaint was signed on October 8, 2025, id. at 5, it is
likely that they would be subject to dismissal as time-barred.
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42 (2d Cir. 2000) (internal quotation marks and citation omitted). When a plaintiff is
incarcerated, there is a rebuttable presumption that he retains his pre-incarceration domicile,
rather than establishing a new domicile based on the location of his current incarceration. See
Blumatte v. Quinn, 521 F. Supp. 2d 308, 312 n.3 (S.D.N.Y. 2007) (citation omitted). In addition,
the plaintiff must allege to a “reasonable probability” that the claim is in excess of the sum or
value of $75,000.00, the statutory jurisdictional amount. See 28 U.S.C. § 1332(a); Colavito v.
N.Y. Organ Donor Network, Inc., 438 F.3d 214, 221 (2d Cir. 2006) (citation and internal
quotation marks omitted).
Here, Plaintiff alleges Defendant is a citizen of New York, but he does not identify the
state of his pre-incarceration domicile. See Dkt. No. 1 at 2. The Court is therefore unable to
determine whether Plaintiff and Defendant are citizens of different states. Assuming Plaintiff is
also a citizen of New York, complete diversity would be lacking. See Seemann v. Maxwell, 178
F.R.D. 23, 24 (N.D.N.Y. 1998). In addition, while Plaintiff’s claims may involve an amount in
excess of the sum or value of $75,000, he alleges few, if any, facts supporting such a contention.
See Weir v. Cenlar FSB, No. 7:16-cv-8650, 2018 WL 3443173, at *12 (S.D.N.Y. July 17, 2018)
(reasoning that “the jurisdictional amount, like any other factual allegation, ought not to receive
the presumption of truth unless it is supported by facts rendering it plausible”) (citation omitted).
Based upon the foregoing, the Court finds there is no federal subject matter jurisdiction
over Plaintiff’s claims. Accordingly, the undersigned recommends dismissing the complaint
without prejudice for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3); see also
Hollander v. Garrett, 710 F. App’x 35, 36 (2d Cir. 2018) (holding dismissal for subject matter
jurisdiction must be without prejudice); McKie v. Kornegay, No. 21-1943, 2022 WL 4241355, at
*2 (2d Cir. Sept. 15, 2022) (“A dismissal for lack of subject matter jurisdiction must be without
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prejudice, because ‘without jurisdiction, the district court lacks the power to adjudicate the
merits of the case.’”).
VI. 	LEAVE TO AMEND
“Generally leave to amend should be freely given, and a pro se litigant in particular
should be afforded every reasonable opportunity to demonstrate that he has a valid claim.”
Matima v. Celli, 228 F.3d 68, 81 (2d Cir. 2000) (cleaned up). An opportunity to amend is not
required, however, where “the problem with [the plaintiff’s] causes of action is substantive” such
that “better pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
“[L]ack of subject-matter jurisdiction is generally viewed as a substantive defect.” Planck v.
Schenectady Cnty., No. 1:12-CV-0336 (GTS/DRH), 2012 WL 1977972, at *6 (N.D.N.Y. June 1,
2012).
Mindful of Plaintiff’s pro se status, the undersigned recommends granting Plaintiff leave
to amend. Any amended complaint, which shall supersede and replace the original complaint in
its entirety, must allege claims of misconduct or wrongdoing against each named defendant
which Plaintiff has a legal right to pursue, and over which jurisdiction may properly be
exercised. Any amended complaint filed by Plaintiff must also comply with the pleading
requirements of Rules 8 and 10 of the Federal Rules of Civil Procedure.
VII. 	CONCLUSION
WHEREFORE, it is hereby
ORDERED that Plaintiff’s IFP application (Dkt. No. 2) is GRANTED. The Clerk shall
provide the Superintendent of the facility, designated by Plaintiff as his current location, with a
copy of Plaintiff’s inmate authorization (Dkt. No. 3) and notify the official that this action has
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been filed and that Plaintiff is required to pay the Northern District of New York the statutory
filing fee of $350.00 in installments, over time, pursuant to 28 U.S.C. § 1915; and it is further
ORDERED that the Clerk shall provide a copy of Plaintiff’s inmate authorization (Dkt.
No. 3) to the Financial Deputy of the Clerk’s Office; and it is further
RECOMMENDED that Plaintiff’s complaint (Dkt. No. 1) be sua sponte DISMISSED
without prejudice for lack of subject matter jurisdiction and with leave to amend; and it is further
ORDERED that the Clerk serve a copy of this Report-Recommendation and Order on
Plaintiff in accordance with the Local Rules and provide Plaintiff 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 (14) days within which to
file written objections to the foregoing report.5 Such objections shall be filed with the Clerk of
the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) 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); Fed. R. Civ. P. 72.
IT IS SO ORDERED.
Dated: December 10, 2025
Syracuse, New York
5 If you are proceeding pro se and are served with this Report-Recommendation and Order by
mail, three additional days will be added to the fourteen-day period, meaning that you have
seventeen days from the date the Report-Recommendation and Order 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. P. 6(a)(1)(C).
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Cash v. Bernstein, Not Reported in F.Supp.2d (2010)
2010 WL 5185047
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2010 WL 5185047
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
David J. CASH, Plaintiff,
v.
BERNSTEIN, MD, Defendant.
No. 09 Civ.1922(BSJ)(HBP).
|
Oct. 26, 2010.
REPORT AND RECOMMENDATION 1
1 At the time the action was originally filed,
the Honorable Leonard B. Sand, United States
District Judge, granted plaintiff's application for in
forma pauperis status based on plaintiff's ex parte
submission (Docket Item 1). Although the present
application seeking to revoke plaintiff's in forma
pauperis status is non-dispositive, I address it by
way of a report and recommendation to eliminate
any appearance of a conflict between the decision
of a district judge and that of a magistrate judge.
PITMAN, United States Magistrate Judge.
*1 TO THE HONORABLE BARBARA S. JONES, United
States District Judge,
I. Introduction
By notice of motion dated March 4, 2010 (Docket Item 11),
defendant moves pursuant to 28 U.S.C. § 1915(g) to revoke
plaintiff's in forma pauperis (“IFP”) status on the ground that
plaintiff has previously had at least three Section 1983 actions
dismissed as frivolous, malicious or failing to state a claim
upon which relief could be granted, and has not shown that he
is in imminent danger of serious physical injury. Defendant
further seeks an order directing that the action be dismissed
unless plaintiff pays the full filing fee within thirty (30) days.
For the reasons set forth below, I respectfully recommend that
defendant's motion be granted.
II. Facts
Plaintiff, a sentenced inmate in the custody of the New
York State Department of Correctional Services, commenced
this action on or about January 12, 2009 by submitting his
complaint to the Court's Pro Se office. Plaintiff alleges, in
pertinent part, that he has “a non-healing ulcer that is gane
green [sic ]” and that defendant Bernstein “did not want
to treat the ulcer right” (Complaint, dated March 3, 3009
(Docket Item 2) (“Compl.”), at 3).
The action was originally commenced against two defendants
—Dr. Bernstein and Dr. Finkelstein. The action was dismissed
as to Dr. Finkelstein because the complaint contained no
allegations whatsoever concerning Dr. Finkelstein (Order
dated February 18, 2010 (Docket Item 9)).
On March 4, 2010, the sole remaining defendant—Dr.
Bernstein—filed the current motion. Plaintiff failed to submit
a response. Accordingly, on August 20, 2010, I issued an
Order advising plaintiff that if he wished to oppose the
motion, he must submit his opposition by September 15, 2010
and that after that date I would consider the motion fully
submitted and ripe for decision (Order dated August 20, 2010
(Docket Item 15)). The only submission plaintiff has made
in response to my Order is a multi-part form issued by the
New York State Department of Correctional Services entitled
“Disbursement or Refund Request.” 2 By this form, plaintiff
appears to request that the New York State Department of
Correctional Services pay the filing fee for this action. The
form is marked “Denied.”
2 Plaintiff sent this form directly to my chambers,
and it has not been docketed by the Clerk of the
Court. The form will be docketed at the time this
Report and Recommendation is issued.
III. Analysis
28 U.S.C. § 1915 permits an indigent litigant to commence
an action in a federal court without prepayment of the filing
fee that would ordinarily be charged. Although an indigent,
incarcerated individual need not prepay the filing fee at the
time at the time of filing, he must subsequently pay the fee,
to the extent he is able to do so, through periodic withdrawals
from his inmate accounts. 28 U.S.C. § 1915(b); Harris v.
City of New York, 607 F.3d 18, 21 (2d Cir.2010). To prevent
abuse of the judicial system by inmates, paragraph (g) of
this provision denies incarcerated individuals the right to
proceed without prepayment of the filing fee if they have
repeatedly filed meritless actions, unless such an individual
shows that he or she is in imminent danger of serious
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Cash v. Bernstein, Not Reported in F.Supp.2d (2010)
2010 WL 5185047
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2
physical injury. See Ortiz v. McBride, 380 F.3d 649, 658 (2d
Cir.2004) (“[T]he purpose of the PLRA ... was plainly to
curtail what Congress perceived to be inmate abuses of the
judicial process.”); Nicholas v. Tucker, 114 F.3d 17, 19 (2d
Cir.1997). Specifically, paragraph (g) provides:
*2 In no event shall a prisoner bring
a civil action or appeal a judgment
in a civil action or proceeding under
this section if the prisoner has, on
3 or more prior occasions, while
incarcerated or detained in any facility,
brought an action or appeal in a court
of the United States that was dismissed
on the grounds that it is frivolous,
malicious, or fails to state a claim upon
which relief may be granted, unless the
prisoner is under imminent danger of
serious physical injury.
28 U.S.C. § 1915(g).
If an inmate plaintiff seeks to avoid prepayment of the filing
fee by alleging imminent danger of serious physical injury,
there must be a nexus between the serious physical injury
asserted and the claims alleged. Pettus v. Morgenthau, 554
F.3d 293, 298 (2d Cir.2009).
Section 1915(g) clearly prevents plaintiff from proceeding
in this action without prepayment of the filing fee.
The memorandum submitted by defendant establishes that
plaintiff has had his IFP status revoked on at least four prior
occasions as a result of his repeatedly filing meritless actions.
• In 2005, plaintiff commenced an action in the United
States District Court for the Northern District of New
York seeking to have his infected leg amputated.
Nelson 3 v. Lee, No. 9:05–CV–1096 (NAM)(DEP), 2007
WL 4333776 (N.D.N.Y. Dec. 5, 2007). In that matter,
the Honorable Norman A. Mordue, Chief United States
District Judge, accepted and adopted the Report and
Recommendation of the Honorable David E. Peebles,
United States Magistrate Judge, that plaintiff had
brought three or more prior actions that had been
dismissed for failure to state a claim and that plaintiff's
IFP status should, therefore, be revoked. 2007 WL
4333776 at *1–*2.
3 It appears that plaintiff uses the names David
J. Cash and Dennis Nelson interchangeably. In
his complaint in this matter, plaintiff states that
the Departmental Identification Number, or DIN,
assigned to him by the New York State Department
of Correctional Services (“DOCS”) is 94–B–0694
(Compl. at 7). DOCS inmate account records
submitted by plaintiff in connection with his
application for IFP status indicate that DIN 94–
B–0694 is assigned to Dennis Nelson. In addition,
the DOCS form described in footnote two bears
the docket number of this action, but is signed in
the name of Dennis Nelson and was sent in an
envelope identifying the sender as Dennis Nelson.
A subsequent action has been filed in this Court
in which the plaintiff identifies himself as Dennis
Nelson but lists his DIN as 94–B–0694, the same
DIN used by plaintiff here. Finally, plaintiff has
submitted nothing to controvert the assertion in
defendant's papers that David Cash and Dennis
Nelson are the same person. In light of all these
facts, I conclude that David Cash and Dennis
Nelson are both names used by plaintiff.
• In Nelson v. Nesmith, No. 9:06–CV–1177 (TJM)(DEP),
2008 WL 3836387 (N.D.N.Y. Aug. 13, 2008), plaintiff
again filed an action concerning the medical care
he was receiving for his left leg. The Honorable
Thomas J. McAvoy, United States District Judge,
accepted the Report and Recommendation of Magistrate
Judge Peebles, and revoked plaintiff's IFP status and
dismissed the action on the ground that plaintiff had
previously commenced at least three actions that had
been dismissed on the merits. 2008 WL 3836387 at *1,
*7.
• In Nelson v. Spitzer, No. 9:07–CV–1241 (TJM)
(RFT), 2008 WL 268215 (N.D.N.Y. Jan. 29, 2008),
Judge McAvoy again revoked plaintiff's IFP status
on the ground that plaintiff had commenced three
or more actions that constituted “strikes” under
Section 1915(g) and had not shown an imminent
threat of serious physical injury. 2008 WL 268215
at *1–*2.
• Finally, in Nelson v. Chang, No. 08–CV–1261
(KAM)(LB), 2009 WL 367576 (E.D.N.Y. Feb. 10,
2009), the Honorable Kiyo A. Matsumoto, United
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Cash v. Bernstein, Not Reported in F.Supp.2d (2010)
2010 WL 5185047
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 3
States District Judge, also found, based on the
cases discussed above, that plaintiff had exhausted
the three strikes permitted by Section 1915(g)
and could not proceed IFP in the absence of a
demonstration of an imminent threat of serious
physical injury. 2009 WL 367576 at *2–*3.
*3 As defendant candidly admits, there is one case in which
plaintiff's leg infection was found to support a finding of an
imminent threat of serious physical injury sufficient to come
within the exception to Section 1915(g). Nelson v. Scoggy,
No. 9:06–CV–1146 (NAM)(DRH), 2008 WL 4401874 at *2
(N.D.N.Y. Sept. 24, 2008). Nevertheless, summary judgment
was subsequently granted for defendants in that case, and
the complaint was dismissed. Judge Mordue concluded that
there was no genuine issue of fact that plaintiff had received
adequate medical care for his leg wound and that the failure
of the leg to heal was the result of plaintiff's own acts of
self-mutilation and interference with the treatment provided.
Nelson v. Scoggy, No. 9:06–CV–1146 (NAM)(DRH), 2009
WL 5216955 at *3–*4 (N.D.N.Y. Dec. 30, 2009). 4
4 Although the form complaint utilized by plaintiff
expressly asks about prior actions involving the
same facts, plaintiff disclosed only the Scoggy
action and expressly denied the existence of any
other actions relating to his imprisonment (Compl.
at 6).
In light of the foregoing, there can be no reasonable dispute
that plaintiff has exceeded the three “strikes” allowed by
Section 1915(g) and that he cannot, therefore, proceed here
without prepaying the filing fee unless he demonstrates
an imminent threat of serious physical injury. Plaintiff has
declined to attempt to make this showing in response to
defendant's motion, and the only suggestion in the record
of serious physical injury is the bare statement in the
complaint that plaintiff “need[s] to go back to a wound speci
[a]list before the gane green [sic ] kills [him]” (Compl. at
5). “However, unsupported, vague, self-serving, conclusory
speculation is not sufficient to show that Plaintiff is, in fact,
in imminent danger of serious physical harm.” Merriweather
v. Reynolds, 586 F.Supp.2d 548, 552 (D.S.C.2008), citing
Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir.2003) and
White v. Colorado, 157 F.3d 1226, 1231–32 (10th Cir.1998);
see also Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir.2003)
(imminent danger exception to Section 1915(g) requires
“specific fact allegations of ongoing serious physical injury,
or of a pattern of misconduct evidencing the likelihood
of imminent serious physical injury”). Given the plaintiff's
history, as set forth in the cases described above, I conclude
that this vague statement is insufficient to support a finding
that plaintiff is in imminent danger of serious physical
injury. 5
5 Plaintiff has sent me several letters describing his
wound and its symptoms in detail, and I have
no doubt that the wound is serious. However, in
granting summary judgment dismissing an action
last year based on the same allegations, Judge
Mordue of the Northern District found that there
was no genuine issue of fact that plaintiff's own
conduct was responsible for the ineffectiveness of
the treatment he was provided:
Furthermore, to the extent that Nelson's medical
treatment was delayed, much of the delay
was due to his own refusal to cooperate with
medical staff and his self-mutilations. Nelson's
actions to thwart the medical treatment of his
wound cannot be construed as interference or
indifference by anyone else.... [T]he medical
treatment Nelson received complied with
constitutional guarantees as it was appropriate,
timely, and delayed only by Nelson's own
actions.
Nelson v. Scoggy, supra, 2009 WL 5216955 at *4.
Given plaintiff's total failure to respond to the
pending motion and his failure to even deny that
he is actively thwarting treatment of his wound, it
would be sheer speculation for me to conclude that
he is in imminent danger of a serious injury as a
result of defendant's conduct.
IV. Conclusion
Accordingly, for all the foregoing reasons, I find that plaintiff
has had three or more prior actions dismissed as being
frivolous, malicious or failing to state a claim and that
plaintiff's in forma pauperis status should, therfore, be
revoked. If your Honor accepts this recommendation, I further
recommend that the action be dismissed unless plaintiff pays
the filing fee in full within thirty (30) days of your Honor's
final resolution of this motion.
V. OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of
the Federal Rules of Civil Procedure, the parties shall have
fourteen (14) days from receipt of this Report to file written
objections. See also Fed.R.Civ.P. 6(a). Such objections (and
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Cash v. Bernstein, Not Reported in F.Supp.2d (2010)
2010 WL 5185047
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responses thereto) shall be filed with the Clerk of the Court,
with courtesy copies delivered to the Chambers of the
Honorable Barbara S. Jones, United States District Judge,
500 Pearl Street, Room 1920, and to the Chambers of the
undersigned, 500 Pearl Street, Room 750, New York, New
York 10007. Any requests for an extension of time for filing
objections must be directed to Judge Jones. FAILURE TO
OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT
IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE
APPELLATE REVIEW. Thomas v. Arn, 474 U.S. 140, 155
(1985); United States v. Male Juvenile, 121 F.3d 34, 38 (2d
Cir.1997); IUE AFL–CIO Pension Fund v. Herrmann, 9 F.3d
1049, 1054 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298,
300 (2d Cir.1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57–
59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237–
38 (2d Cir.1983).
All Citations
Not Reported in F.Supp.2d, 2010 WL 5185047
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© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Great American Insurance Company v. Mowforth,
N.D.Cal., January 21, 2021
2018 WL 3443173
United States District Court, S.D. New York.
Michael WEIR; Elaine Weir; Jennifer Stasul;
Jose Francisco; Individually and on Behalf
of All Others Similarly Situated, Plaintiffs,
v.
CENLAR FSB, d/b/a Central Loan Administration
& Reporting; and Cenlar Agency, Inc., Defendants.
16-CV-8650 (CS)
|
Signed 07/17/2018
Attorneys and Law Firms
Rick S. Cowle, The Law Office of Rick S. Cowle P.C.,
Carmel, New York, Counsel for Plaintiffs.
Casey B. Howard, Locke Lord LLP, New York, New York,
Counsel for Defendants.
OPINION & ORDER
CATHY SEIBEL, U.S.D.J.
*1 Before the Court is the Motion to Dismiss of Defendants
Cenlar FSB, d/b/a Central Loan Administration & Reporting,
and Cenlar Agency, Inc. (Doc. 20.) For the foregoing reasons,
Defendants' motion is GRANTED.
I. BACKGROUND
For purposes of this motion, I accept as true the facts, but not
the conclusions, set forth in Plaintiffs' Amended Complaint.
(Doc. 14 (“AC”).)
A. Facts
This case arises out of Defendants' conduct in servicing
Plaintiffs' mortgages. Plaintiffs allege that Defendants
participated in a scheme “aimed at maximizing automated
fees assessed on [mortgage] borrowers' accounts who had
fallen into arrears on their mortgages.” (Id. ¶ 1.) Defendants
are one of the leading mortgage subservicing companies, and
as of September 30, 2016, serviced approximately 2.3 million
loans totaling $500 billion. (Id. ¶¶ 2, 26.) Plaintiffs bring
this action on behalf of themselves and a class of similarly-
situated persons, which is defined as “all persons who were
charged computer-generated inspection fees by Defendants as
a result of a late payment on their mortgage[s].” (Id. ¶ 39.)
Plaintiffs do not know the class's exact size, but estimate that
it is comprised of thousands of individuals across the United
States. (Id. ¶ 41.)
Named Plaintiffs Michael and Elaine Weir (the “Weir
Plaintiffs”) purchased a home in Fishkill, New York, and
the Security Instrument securing their mortgage with lender
National City Mortgage, a division of National City Bank,
was recorded on September 12, 2006. (Id. ¶ 13; Doc. 22
(“Howard Decl.”) Ex. A at 1-2.) 1 Among its terms, the
Instrument provides that “Lender, and others authorized by
Lender, may enter on and inspect the Property. They will do
so in a reasonable manner and at reasonable times.” (Howard
Decl. Ex. A at 9.) The Instrument further stipulates that in
the event of default, “Lender may charge ... fees for services
performed in connection with [ ] default, for the purpose
of protecting Lender's interest in the Property and rights
under this Security Instrument, including, but not limited to,
attorneys' fees, property inspection, and valuation fees.” (Id.
at 13.)
1 I may consider Plaintiffs' mortgage agreements
because they are integral to and referenced in the
Amended Complaint, as discussed further below.
Named Plaintiffs Jennifer Stasul and Francisco Jorge
(“Stasul/Jorge Plaintiffs”) purchased a home in Carmel, New
York and the Security Instrument securing their mortgage
with lender 1st Alliance Lending, LLC was recorded on June
15, 2009. (AC ¶ 20; Howard Decl. Ex. B at 1.) 2 It provides
that “Lender may inspect the Property if the Property is vacant
or abandoned or the loan is in default.” (Howard Decl. Ex. B
at 5.) It further provides that if the borrower misses payments,
“Lender may do ... whatever is necessary to protect the value
of the property and Lender's rights in the property,” and any
amounts disbursed to do so “shall become an additional debt
of Borrower.” (Id. at 6.)
2 The body of the Amended Complaint says Ms.
Stasul's husband is Francisco Jorge. (AC ¶ 20.) The
caption of the Amended Complaint lists him as Jose
Francisco. (Id. at 1.)
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*2 Both couples' mortgages were serviced by Defendants.
(AC ¶¶ 13, 20.) Defendants are Cenlar FSB, which is alleged
to be a loan servicing company, (id. ¶ 25), and Cenlar Agency,
Inc., which is alleged to be a wholly owned subsidiary of
Cenlar FSB and the instrumentality through which Cenlar
FSB is authorized to do business in New York, (id. ¶¶ 25-28).
Over the life of their loans, Plaintiffs occasionally faced
financial difficulty that caused them to miss payments. (Id.
¶¶ 14, 21.) When Plaintiffs failed to make timely payments,
their monthly statements reflected additional amounts owed
for late fees and inspections of their property. (Id. ¶¶ 15,
22.) For example, while they were working with Defendants
on a loan modification and short sale of the premises, the
Weir Plaintiffs were assessed inspection fees delineated as
“FEE PROPERTY INSPECT” in the amount of $16.25. (Id.
¶ 16.) They were charged three such fees between April 22
and April 23, 2015. (Id. ¶ 17.) They were also charged for
“Other Fees” ranging from approximately $120.00 to $275.00
per month, without further explanation. (Id.) The Stasul/Jorge
Plaintiffs, who were also working with Defendants on a short
sale of the property, were assessed numerous inspection fees
also labeled “FEE PROPERY INSPECT” in amounts ranging
from $15.00 to $20.00. (Id. ¶ 24.) 3 Plaintiffs allege upon
information and belief that Defendants did not always inspect
Plaintiffs' properties, but charged them for these inspections
nonetheless. (Id. ¶¶ 18, 23.)
3 Paragraph 24 of the Amended Complaint refers to
“Ms. Stasul and Mr. Ferdico.” (AC ¶ 24.) This is
the only reference to Mr. Ferdico in the Amended
Complaint. I assume that Plaintiffs mean to refer to
Mr. Jorge.
Plaintiffs allege that the charges for inspections and other
fees were applied through “an unjust scheme undertaken by
the Defendants to maximize profit[s] by ordering repetitive,
unfair and excessive property inspections which are then
charged to defaulted borrowers' accounts.” (Id. ¶ 29.)
Defendants manage and administer their servicing tasks with
an automated computer software program called LoanSphere
MSP, which was designed to, among other things, “manage
borrowers' accounts and assess fees.” (Id. ¶ 31.) If a borrower
defaults on a loan, LoanSphere MSP will automatically order
property inspections “without regard to actual need,” (id.),
and without an employee's determination that a property
inspection is “reasonably necessary to protect [Defendants']
interests in the subject property,” (id. ¶ 32). The property
inspections are “automatically ordered on a cyclical basis,”
“regardless of whether the property has been previously
inspected, deemed occupied, well-maintained and in good
condition,” until the borrower is no longer in default. (Id. ¶ 33;
see id. ¶ 34.) The inspections are completed by an inspector
who drives by the property. (Id. ¶ 34.) Plaintiffs allege
that the frequency of the property inspections is “excessive
and neither reasonable nor appropriate,” (id. ¶ 33), and that
Defendants “knowingly misrepresented these unreasonable
and excessive inspection fees ... by portraying them as
legitimate charges even though the Defendants knew that the
inspections were not necessary to maintain or protect the
properties or, at times, the inspections did not even occur,” (id.
¶ 36).
B. Procedural History
*3 Plaintiffs commenced this action on November 7, 2016.
(See Doc. 1.) On March 13, 2017, Defendants filed a letter
seeking a pre-motion conference to discuss their anticipated
motion to dismiss. (Doc. 10.) Plaintiffs responded on April
10, 2017, (Doc. 13), and the parties appeared for a pre-motion
conference to discuss the proposed motion on April 17, 2017,
(Minute Entry dated Apr. 17, 2017). At that conference,
the Court granted Plaintiffs leave to amend, and Plaintiffs
filed their Amended Complaint on June 16, 2017, bringing
seven causes of action. (Doc. 14.) Counts One and Two
allege violations of the Racketeer Influenced and Corrupt
Organizations Act (“RICO”), 18 U.S.C. § 1962(c), (a), and
Count Three alleges a conspiracy to violate RICO pursuant
to 18 U.S.C. § 1692(d). Plaintiffs allege that Defendants,
including their directors, employees and agents, along with
their property inspection vendors, formed an association-
in-fact enterprise (the “Cenlar Enterprise”), and violated §
1962(c) through mail and wire fraud in violation of 18
U.S.C. §§ 1341, 1343, by charging Plaintiffs unnecessary
fees. (AC ¶¶ 48-83.) Plaintiffs further allege that the income
Defendants received from their scheme was reinvested to
finance the continuing racketeering activity, violating 18
U.S.C. § 1962(a) (id. ¶¶ 84-87), and that Defendants
conspired to violate §§ 1962(a) and (c), (id. ¶¶ 88-93).
Plaintiffs also bring claims for (1) violation of the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692e(2),
(10); (2) violation of the Real Estate Settlement Procedures
Act (“RESPA”), 12 U.S.C. §§ 2605, 2607; (3) violation of
New York General Business Law (“N.Y. G.B.L.”) § 349(g);
and (4) unjust enrichment. (AC ¶¶ 94-127.) In addition to
federal question jurisdiction, Plaintiffs assert subject-matter
jurisdiction under 28 U.S.C. § 1332(d)(2), known as the Class
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Action Fairness Act of 2005, Pub. L. 109-2 § 7, 119 Stat. 13
(“CAFA”). (AC ¶¶ 8, 11.)
Defendants filed their motion on December 15, 2017. (Doc.
20.) They argue that: (1) Plaintiffs' RICO claims should
be dismissed because they fail to plausibly allege a RICO
enterprise, a fraudulent misrepresentation, or an injury;
(2) Plaintiffs' FDCPA claim fails because Plaintiffs have
not plausibly alleged a misrepresentation or deception, or
that Defendants are debt-collectors; (3) Plaintiffs' RESPA
claim is barred by a one-year statute of limitations and
the claim arose after the “inception of a mortgage,” taking
it outside the purview of the statute; (4) the N.Y. G.B.L.
§ 349 claim fails because Plaintiffs have not pleaded any
deceptive or misleading act and do not address a “consumer-
oriented” practice; and (5) Plaintiffs' unjust enrichment claim
is improper because there is a contract governing the relevant
issues. (See Doc. 21 (“Ds' Mem.”).)
Plaintiffs respond that they have adequately pleaded the
alleged enterprise as consisting of Defendants and their
inspection vendors; that, by charging Plaintiffs for “FEE
PROPERTY INSPECT,” Defendants “create[d] the belief
that the automatic and repetitive property inspections [were]
reasonable and necessary to protect the lender's security” and
that Defendants therefore fraudulently misrepresented “the
true nature” of the fees as unreasonable and unnecessary
to ensure the houses were occupied; and that they have
adequately alleged claims under the FDCPA and N.Y. G.B.L.
§ 349, and for unjust enrichment. (Doc. 24 (“Ps' Opp.”) at 7,
10-11, 15-25.) 4
4 Plaintiffs fail to respond to Defendants' arguments
for dismissal of the RESPA claims. “At the
motion to dismiss stage, where review is limited
to the pleadings, a plaintiff abandons a claim
by failing to address the defendant's arguments
in support of dismissing that claim.” Romeo &
Juliette Laser Hair Removal, Inc. v. Assara I
LLC, No. 08-CV-442, 2014 WL 4723299, at *7
(S.D.N.Y. Sept. 23, 2014); see, e.g.,Silverman v.
Miranda, 116 F. Supp. 3d 289, 303 (S.D.N.Y.
2015); Bonilla v. Smithfield Assocs. LLC, No. 09-
CV-1549, 2009 WL 4457304, at *4 (S.D.N.Y.
Dec. 4, 2009). Because Plaintiffs failed to address
Defendants' arguments, their claims under RESPA
are dismissed.
II. LEGAL STANDARD
A. Rule 12(b)(6) Motion
“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting 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.” Id. “While a complaint
attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiff's obligation to provide
the grounds of his entitlement to relief requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”Twombly, 550
U.S. at 555 (alteration, citations, and internal quotation marks
omitted). While Federal Rule of Civil Procedure 8 “marks
a notable and generous departure from the hyper-technical,
code-pleading regime of a prior era, ... it does not unlock the
doors of discovery for a plaintiff armed with nothing more
than conclusions.” Iqbal, 556 U.S. at 678-79.
*4 In considering whether a complaint states a claim
upon which relief can be granted, the court “begin[s] by
identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth,”
and then determines whether the remaining well-pleaded
factual allegations, accepted as true, “plausibly give rise to
an entitlement to relief.” Id. at 679. Deciding whether a
complaint states a plausible claim for relief is “a context-
specific task that requires the reviewing court to draw on
its judicial experience and common sense.” Id. “[W]here the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has alleged
—but it has not ‘shown’—‘that the pleader is entitled to
relief.’ ” Id. (alteration omitted) (quoting Fed. R. Civ. P. 8(a)
(2) ). 5
5 Plaintiffs cite the outdated “no-set-of-facts” motion
to dismiss standard. (Ps' Opp. at 5.) This “no
set of facts” standard was “retire[d]” by Twombly
in 2007. SeeTwombly, 550 U.S. at 563. Nobody
should be citing it any longer.
B. Documents Properly Considered
When deciding a motion to dismiss, a court is entitled to
consider:
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(1) facts alleged in the complaint
and documents attached to it or
incorporated in it by reference,
(2) documents “integral” to the
complaint and relied upon in it,
even if not attached or incorporated
by reference, (3) documents or
information contained in defendant's
motion papers if plaintiff has
knowledge or possession of the
material and relied on it in framing the
complaint ..., and (5) facts of which
judicial notice may properly be taken
under Rule 201 of the Federal Rules of
Evidence.
Weiss v. Inc. Vill. of Sag Harbor, 762 F. Supp. 2d 560, 567
(E.D.N.Y. 2011) (internal quotation marks omitted). To be
incorporated by reference, the complaint must make “a clear,
definite and substantial reference to the documents.” DeLuca
v. AccessIT Grp., Inc., 695 F. Supp. 2d 54, 60 (S.D.N.Y. 2010)
(internal quotation marks omitted). “A document is integral
to the complaint where the complaint relies heavily upon
its terms and effect. Merely mentioning a document in the
complaint will not satisfy this standard; indeed, even offering
limited quotation[s] from the document is not enough.” Goel
v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016) (alteration in
original) (citation and internal quotation marks omitted).
Defendants attach to their counsel's declaration the Weir
Plaintiffs' Security Instrument, (Howard Decl. Ex. A), and
the Stasul/Jorge Plaintiffs' Security Instrument, (id. Ex. B).
Plaintiffs attach the same documents, (Ps' Opp. Exs. C, D),
as well as affidavits from the Weir Plaintiffs and the Stasul/
Jorge Plaintiffs, (id. Ex. B). I may consider the Security
Instruments because they are referenced in and integral to the
Amended Complaint, (see AC ¶¶ 13, 20). SeeVaccaro v. Bank
of Am., N.A., No. 13-CV-2484, 2016 WL 4926201, at *1 n.1
(S.D.N.Y. Sept. 15, 2016) (collecting cases). I cannot consider
Plaintiffs' affidavits, however, as “[c]ourts ordinarily do not
consider factual assertions contained in affidavits submitted
in support of or opposition to a motion to dismiss.” Colliton
v. Bunt, No. 15-CV-6580, 2016 WL 7443171, at *5 (S.D.N.Y.
Dec. 27, 2016), aff'd, 709 Fed.Appx. 82 (2d Cir. 2018);
seeFaulkner v. Beer, 463 F.3d 130, 134 n.1 (2d Cir. 2006)
(collecting cases).
III. DISCUSSION
A. RICO Claims
Plaintiffs bring claims under three RICO provisions: 18
U.S.C. § 1962(c) (Count One); 18 U.S.C. § 1962(a) (Count
Two); and 18 U.S.C. § 1962(d) (Count Three).
Section 1962(c) makes it unlawful for “any person employed
by or associated with any enterprise engaged in, or the
activities of which affect, interstate or foreign commerce, to
conduct or participate, directly or indirectly, in the conduct
of such enterprise's affairs through a pattern of racketeering
activity or collection of unlawful debt.” 18 U.S.C. § 1962(c).
To state a claim under § 1962(c), a plaintiff must plausibly
allege that a defendant engaged in (1) conduct, (2) of an
enterprise, (3) through a pattern (4) of racketeering activity
(5) resulting in (6) injury to business or property. Anatian v.
Coutts Bank (Switz.) Ltd., 193 F.3d 85, 88 (2d Cir. 1999).
The requirements of § 1962(c) must be established as to each
individual defendant. De Falco v. Bernas, 244 F.3d 286, 306
(2d Cir. 2001).
*5 “[A] claim under § 1962(a) has two elements: (1) that
the defendant received income from a pattern of racketeering
activity; and (2) that the plaintiff was directly harmed by the
defendant's use or investment of that income.” U.S. Fire Ins.
Co. v. United Limousine Serv., Inc., 303 F. Supp. 2d 432, 448
(S.D.N.Y. 2004). The injury must come from the defendant's
“investment of racketeering income in an enterprise,” not
from the predicate acts alone. Ouaknine v. MacFarlane, 897
F.2d 75, 82-83 (2d Cir. 1990). Section 1962(d), known as
RICO conspiracy, provides that “[i]t shall be unlawful for
any person to conspire to violate any of the provisions of
subsection (a), (b), or (c) of” the RICO statute. 18 U.S.C. §
1962(d).
Defendants argue that Plaintiffs' civil RICO claims fail for
three primary reasons: (1) the members of the enterprise do
not share a common purpose; (2) the alleged enterprise is
not distinct from its alleged pattern of racketeering; and (3)
Plaintiffs failed to plausibly plead a misrepresentation, which
is a necessary element of mail and wire fraud. (Ds' Mem. at
6-18.) I agree, and thus all of Plaintiffs' civil RICO claims are
dismissed. 6
6 Defendants raise other arguments for dismissal
of Plaintiffs' RICO claims, but because the
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issues regarding the pleaded enterprise and
misrepresentations are dispositive, I will not
discuss Defendants' remaining arguments.
1. Cenlar Enterprise
A RICO “enterprise” is defined as including “any individual,
partnership, corporation, association, or other legal entity, and
any union or group of individuals associated in fact although
not a legal entity.” 18 U.S.C. § 1961(4). As the Supreme Court
has explained,
[t]he enterprise is an entity, for present
purposes a group of persons associated
together for a common purpose of
engaging in a course of conduct.... [It]
is proved by evidence of an ongoing
organization, formal or informal, and
by evidence that the various associates
function as a continuing unit.... The
“enterprise” is not the “pattern of
racketeering activity”; it is an entity
separate and apart from the pattern
of activity in which it engages. The
existence of an enterprise at all times
remains a separate element which must
be proved ....
United States v. Turkette, 452 U.S. 576, 583 (1981);
accordFirst Capital Asset Mgmt., Inc. v. Satinwood, Inc., 385
F.3d 159, 173 (2d Cir. 2004). The “enterprise” is distinct from
the “person[s]” who participate in the conduct of its affairs.
SeeCedric Kushner Promotions, Ltd. v. King, 533 U.S. 158,
161 (2002) (“[T]o establish liability under § 1962(c) one must
allege and prove the existence of two distinct entities: (1) a
‘person’; and (2) an ‘enterprise’ that is not simply the same
‘person’ referred to by a different name.”).
a. Common Purpose and Distinctness
Plaintiffs allege that the Cenlar Enterprise is an association-
in-fact enterprise that consists of Defendants, including their
directors, employees and agents, along with their property
inspection vendors. (AC ¶¶ 55-62; Ps' Opp. at 11-12.) The
alleged ultimate aim of the enterprise is to “maximiz[e]
their profits by charging unnecessary and repeated default-
related fees to Plaintiffs and [c]lass members.” (AC ¶ 58.)
By Plaintiffs' account, Defendants made false and misleading
statements by failing to disclose that the inspections for
which they were charged were unreasonable (or perhaps
not performed). (Ps' Opp. at 10-11.) Plaintiffs argue that
the vendors and Defendants shared a common purpose
of “maximizing profits by ordering unreasonable and
unnecessary inspections and imposing excessive fees on the
mortgagors who are already burdened by financial obligations
they cannot meet.” (Id. at 11.)
*6 As in Tardibuono-Quigley v. HSBC Mortg. Corp. (USA),
No. 15-CV-6940, 2017 WL 1216925, at *6 (S.D.N.Y. Mar.
30, 2017), which is nearly factually identical to this case,
Plaintiffs do “not allege that these third-party vendors own
or service mortgages, developed the guidelines for imposing
the default-related services, ordered any of the services, or
invoiced the borrowers for the services they performed.”
There, as here, “[t]he vendors' only role in the alleged
enterprise was responding to the automatically-generated
work orders. They had no say in when or how those
services would be charged to Plaintiff.” Id. As in Tardibuono-
Quigley, nothing in the Amended Complaint here suggests
that the property inspection vendors “knew that [Defendants']
activities were unnecessary or in breach of contract.” Id. In
fact, the vendors are mentioned in only four paragraphs of the
Amended Complaint, (AC ¶¶ 57, 60, 61, 109), only two of
which explain the vendors' role in the alleged enterprise, (see
id. ¶¶ 60, 61). Plaintiffs allege that:
Defendants control and operate the
Cenlar Enterprise as they, inter alia,
establish computer program guidelines
that automatically order property
inspections by vendors with respect to
loans deemed in default without regard
to whether such property inspection
are necessary; send out vendors to
inspect the property regardless of the
necessity of said inspections; arrange
the uploads of property inspection
reports to the automated system; assess
fees to borrowers for the unnecessary
and repeated property inspections;
send statements to the borrowers
that are misleading as to the nature
of the charged default-related fees;
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collect payments from said borrowers
that include inspection fees; and pay
vendors for each property inspection
completed using funds received from
borrowers.
(Id. ¶ 60.) They further allege that the LoanSphere MSP
computer system “is a common communication network by
which Defendants and the vendors share information,” and
allow “Defendants to charge Plaintiffs and Class members
unreasonable, excessive and improper fees and to gain from
the resulting profits.” (Id. ¶ 61.) Nothing in these allegations
suggests that the vendors were aware that the inspections
might have been unnecessary, that the costs were passed
on to the borrowers, or that that might breach the relevant
contracts. To the contrary, Plaintiffs specifically allege that
it was Defendants who created the scheme and directed the
vendors to inspect properties via an automated computer
system. Thus, the vendors do not plausibly share a common
purpose with Defendants and cannot help form an enterprise
for purposes of civil RICO. SeeTardibuono-Quigley, 2017
WL 1216925, at *6; see alsoCirino v. Bank of Am., N.A., No.
13-CV-8829, 2014 WL 9894432, at *10 (C.D. Cal. Oct. 1,
2014) (RICO claim dismissed where plaintiffs failed to plead
that property preservation vendors had common purpose with
bank defendant because the former “merely carry out the
inspections ordered by Defendants”).
Plaintiffs argue—but do not allege in their Amended
Complaint—that “[t]hird party vendors have been used
as the instrumentality in furtherance of the enterprise's
purposes, each unjustly profiting off the backs of
unsuspecting borrowers who are already experiencing
financial distress.” (Ps' Opp. at 11.) A plaintiff may not amend
the complaint via a memorandum of law, Fadem v. Ford
Motor Co., 352 F. Supp. 2d 501, 516 (S.D.N.Y. 2005), but in
any event, being an “instrumentality” does not thereby mean
one shares a common purpose. Defendants allegedly used the
mail in furtherance of the scheme, but that would not make
the Postal Service of a member of the enterprise.
Plaintiffs rely on Young v. Wells Fargo & Co., 671 F.
Supp. 2d 1006 (S.D. Iowa 2009), for the proposition that
an association-in-fact enterprise exists because Defendants
directed the property vendors to engage in proscribed
conduct. (Ps' Opp. at 11-12.) There, the court held that
“[t]he Complaint sets forth that Wells Fargo and the
property inspection vendors formed an association-in-fact
enterprise which fulfills the statutory requirements of a RICO
enterprise,” and noted that “Congress clearly intended RICO
liability to extend to situations where one entity directs the
formation of a RICO enterprise and then makes use of the
association to further a pattern of unlawful activity.” Young,
671 F. Supp. 2d at 1028. Under this circular reasoning,
one entity (e.g., Cenlar FSB) could direct the formation
of a RICO enterprise (the Cenlar Enterprise) consisting
of itself and third parties (the vendors) even if the latter
were unaware of the purpose for which they were joined.
Young quoted the Supreme Court to the effect that RICO
“protects the public from those who would unlawfully use
an ‘enterprise’ ... as a ‘vehicle’ through which unlawful
activity is committed,” id. at 1029 (quoting Cedric Kushner
Promotions, 533 U.S. at 164-65), but it then seemingly
equated the vendors with the enterprise without analyzing
whether they shared a common purpose with Wells Fargo, the
other member of the enterprise. In so doing, it overlooked
not only the common purpose requirement but also that
“[t]he enterprise must consist of at least two entities, and
must be more than the RICO defendant ‘referred to by a
different name.’ ” Cirino, 2014 WL 9894432, at *9 (quoting
Cedric Kushner Promotions, 533 U.S. at 161); cf.Tardibuono-
Quigley, 2017 WL 1216925, at *7 (enterprise plausibly
pleaded notwithstanding vendors' lack of common purpose
because there were other alleged members—including bank
and servicer—who shared common purpose in fraudulent
scheme). In other words, while Plaintiffs may be right that the
“[t]hird party vendors [were] used as the instrumentality in
furtherance of the enterprise's purposes,” (Ps' Opp. at 11), that
does not make the vendors members of the enterprise.
*7 With the vendors out of the picture as enterprise
members, the only remaining entities in the alleged enterprise
are Cenlar FSB, Cenlar Agency, and their directors,
employees and agents. (AC ¶ 57.) “Second Circuit law ...
holds that a corporation acting in concert and in the ordinary
course of business with its agents and employees is not
a RICO enterprise, whether or not the agents are external
or internal to the corporation,” even where that business is
alleged to be fraudulent. In re: Gen. Motors LLC Ignition
Switch Litig., Nos. 14-MD-2543, 14-MC-2543, 2016 WL
3920353, at *13 (S.D.N.Y. July 15, 2016) (collecting cases);
seeU1it4less, Inc. v. Fedex Corp., 871 F.3d 199, 206 (2d
Cir. 2017) (“[A] plaintiff may not circumvent the distinctness
requirement by alleging a RICO enterprise that consists
merely of a corporate defendant associated with its own
employees or agents carrying on the regular affairs of
the defendant....”) (internal quotation marks omitted), cert.
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denied, 138 S. Ct. 1559 (2018); Cruz v. FXDirectDealer, LLC,
720 F.3d 115, 121 (2d Cir. 2013) (corporation, chief operating
officer and corporate counsel could not form enterprise
because complaint merely alleged COO and counsel carried
out “the regular affairs of [the corporation], such as day-
to-day financial operations, including the implementation
and supervision of deceptive trading practices”) (internal
quotation marks omitted). And while a corporate agent or
employee can be a “person” who conducts the affairs of the
corporate “enterprise,” Cedric Kushner Promotions, 533 U.S.
at 164, there are no allegations regarding any specific officer
or employee responsible for the allegedly fraudulent acts, In
re Parlamat Sec. Litig., 479 F. Supp. 2d 332, 347 (S.D.N.Y.
2007) (“[R]eference to unnamed attorneys, accountants and
other agents as part of the enterprise cannot be the basis for the
distinction between a corporate person and an enterprise.”)
(alteration in original) (internal quotation marks omitted), and
no such individual is named as a “person” conducting the
affairs of the enterprise here.
Further, the enterprise cannot consist of Cenlar FSB and
Cenlar Agency because Plaintiffs allege that Cenlar Agency is
a wholly owned subsidiary of Cenlar FSB “sharing a common
office space and common officers with Cenlar [FSB].” (AC
¶ 27.) “[W]holly owned subsidiaries are not distinct from
their parent company for the purposes of alleging a RICO
enterprise.” Crabhouse of Douglaston Inc. v. Newsday Inc.,
801 F. Supp. 2d 64, 78 (E.D.N.Y. 2011); seeCruz, 720 F.3d
at 121 (wholly-owned subsidiary not distinct from enterprise
consisting of itself and parent because allegations showed
only two entities “operate[d] as part of a single, unified
corporate structure”); Discon, Inc. v. NYNEX Corp., 93 F.3d
1055, 1064 (2d Cir. 1996) (“It would be inconsistent for
a RICO person, acting within the scope of its authority,
to be subject to liability simply because it is separately
incorporated....”), vacated on other grounds by525 U.S. 128
(1998). 7 Thus, the alleged Cenlar Enterprise is not distinct
from the alleged RICO persons, Cenlar FSB and Cenlar
Agency. 8
7 If Cenlar Agency and Cenlar FSB were alleged to
serve different roles within the Cenlar Enterprise,
Plaintiffs might have plausibly pleaded the
distinctness requirement. Cf.U1it4less, 871 F.3d
at 207 (enterprise not distinct from persons
in part because “no evidence show[ed] that
any FedEx entity operated outside of a unified
corporate structure guided by a single corporate
consciousness”). Here, however, the Amended
Complaint provides no allegations that Cenlar FSB
and Cenlar Agency were anything other than “a
unified corporate structure guided by a single
corporate consciousness.” Id. Indeed, there are
no allegations that Cenlar Agency acted in any
role independent either from the alleged Cenlar
Enterprise or Cenlar FSB, and essentially no
allegations indicating Cenlar Agency's role in the
scheme at all.
8 The cases upon which Plaintiffs rely do not
convince me otherwise. In each of the cases, the
plaintiffs plausibly pleaded that multiple entities
and/or persons made up the alleged enterprise.
SeeState Farm Mut. Auto. Ins. Co. v. Fayda,
No. 14-CV-9792, 2015 WL 4104840, at *1, *2
(S.D.N.Y. June 18, 2015) (enterprise comprised of
various entities that operated out of shared medical
facility); Mayfield v. Asta Funding, Inc., 95 F. Supp.
3d 685, 699 (S.D.N.Y. 2015) (enterprise consisted
of owner, his company, subsidiary, and law firm);
Fuji Photo Film U.S.A., Inc. v. McNulty, No. 05-
CV-7869, 2009 WL 3334867, at *3 (S.D.N.Y.
Oct. 14, 2009) (reaffirming earlier holding that
plaintiff had plausibly pleaded an association-in-
fact enterprise consisting of defendant, company
at which he held managerial positions and
vendors controlled by his friends and family who
cooperated among themselves) (citing Fuji Photo
Film U.S.A., Inc. v. McNulty, 640 F. Supp. 2d
300, 314 (S.D.N.Y. 2009) ); Bias v. Wells Fargo
& Co., 942 F. Supp. 2d 915, 941 (N.D. Cal.
2013) (Wells Fargo and affiliated entity, Premiere
Asset Services, a middleman company that dealt
with vendors, were members of alleged enterprise).
Here, however, the only two possible members of
the Cenlar Enterprise are Cenlar FSB and Cenlar
Agency, and the latter is a wholly-owned subsidiary
of the former. Thus, the cases Plaintiffs cite are
inapposite.
b. Pattern
*8 Even if Plaintiffs plausibly pleaded that the Cenlar
Enterprise was distinct from the alleged RICO persons, they
have failed to allege that it is distinct from the pattern of
fraudulent conduct. The non-existence of “an enterprise that is
separate and distinct from the fraudulent ... scheme allegedly
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engaged in by the Defendants ... is fatal to Plaintiffs' RICO
claim.” Kottler v. Deutsche Bank AG, 607 F. Supp. 2d 447,
458-59 (S.D.N.Y. 2009). An enterprise is not separate or
distinct from the fraudulent scheme if the members “came
together strictly for the purpose of creating these allegedly
fraudulent” schemes. Id. at 459. Plaintiffs offer no response
to Defendants' argument that, even if the vendors were part
of the alleged enterprise, it is not separate from the alleged
fraudulent scheme. The Amended Complaint lacks even a
conclusory allegation as to how the alleged enterprise has an
existence apart from the pattern of racketeering activity, and
there is nothing in the Amended Complaint to suggest that
Cenlar and the vendors came together for some purpose other
than conducting the inspections underlying the scheme.
Consequently, “[t]he enterprise and the pattern in this case
are one and the same,” and the lack of a separate enterprise
is fatal to the RICO claims. Kottler, 607 F. Supp. 2d at 459
(dismissing RICO claim because “allegations in the Amended
Complaint fall short of alleging a RICO enterprise that existed
separate and apart from any pattern of racketeering activity
in which the Defendants and co-conspirators engaged”);
seeEaves v. Designs for Fin., Inc., 785 F. Supp. 2d 229, 263
(S.D.N.Y. 2011) (RICO claims failed where complaint did
not allege association-in-fact that existed separate and apart
from alleged racketeering activity); First Nationwide Bank
v. Gelt Funding, Corp., 820 F. Supp. 89, 97-98 (S.D.N.Y.
1993) (dismissing RICO claim where plaintiff alleged that
“at various times as early as 1985, and possibly earlier ...
defendants were associated in fact for the common purpose,
among others, of defrauding [plaintiff] through the loan
transactions described in this complaint and other means”
and that “[t]his association in fact was an ‘enterprise,’ ”
because “[c]onclusory allegations that disparate parties were
associated in fact ... are insufficient to sustain a RICO claim,
absent allegations as to how the members were associated
together in an ‘enterprise’ ”), aff'd, 27 F.3d 763 (2d Cir. 1994).
Because Plaintiffs fail to plausibly allege that the property
inspection vendors shared a common purpose, that the Cenlar
Enterprise is distinct from the alleged RICO persons, and that
the enterprise is distinct from its pattern of conduct, Plaintiffs'
substantive RICO claims fail. 9
9 The claim under Section 1962(a) fails because,
as discussed, the enterprise is insufficiently
pleaded, and for the additional reason that
Plaintiffs do not allege that they suffered any
injury from Defendants' reinvestment of their
racketeering income. SeeOuaknine, 897 F.2d
at 82-83. With respect to Plaintiffs' RICO
conspiracy claim, “Section 1962(d) prohibits
any person from conspiring to violate any
of the substantive provisions of subsections §
1962(a)-(c).” Crabhouse of Douglaston, 801 F.
Supp. 2d at 89; see18 U.S.C. § 1962(d). To
adequately plead a claim of conspiracy to violate
RICO, the underlying substantive claim must also
be adequately pleaded. SeeTardibuono-Quigley,
2017 WL 1216925, at *14 (RICO conspiracy claim
necessarily fails where underlying substantive
claim fails) (collecting cases); Crabhouse of
Douglaston, 801 F. Supp. 2d at 89 (same).
Accordingly, Plaintiffs' failure to plead a
substantive RICO claim, as discussed above,
necessarily means that their conspiracy claim is
inadequately pleaded and must be dismissed as
well.
B. FDCPA
Defendants argue that Plaintiffs do not sufficiently plead that
Defendants are debt collectors within the meaning of the
FDCPA. I agree. A “debt collector” is one “who uses any
instrumentality of interstate commerce or the mails in any
business the principal purpose of which is the collection of
any debts, or who regularly collects or attempts to collect,
directly or indirectly, debts owed or due or asserted to
be owed or due another.” 15 U.S.C. § 1692a(6). Plaintiffs
allege in entirely conclusory terms that Defendants are debt
collectors, (AC ¶ 97), but present no facts rendering that
allegation plausible. “A mortgage servicer is a ‘debt collector’
within the meaning of the FDCPA if the mortgage was in
default at the time the servicer began servicing the debt,”
but “where a mortgage servicer obtains a loan that is not
in default, it is not a debt collector within the meaning of
the FDCPA.” Zirogiannis v. Seterus, Inc., 221 F. Supp. 3d
292, 302 (E.D.N.Y. 2016) (collecting cases), reconsideration
denied, No. 15-CV-5884, 2017 WL 5508725 (E.D.N.Y.
Jan. 13, 2017), aff'd, 707 Fed.Appx. 724 (2d Cir. 2017)
(summary order). Plaintiffs do not allege that Defendants
became involved only after Plaintiffs' mortgages were in
default; to the contrary, the Amended Complaint suggests
that, if anything, the mortgages were serviced by Defendants
from inception. (AC ¶¶ 13, 20.) Because “the Court is unable
to conclude that the [Amended Complaint] contains enough
facts to make it plausible that [Defendants] began servicing
the [relevant mortgages] only after the [Plaintiffs'] default,”
Kilpakis v. JPMorgan Chase Fin. Co., LLC, 229 F. Supp. 3d
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133, 143 (E.D.N.Y. 2017) (emphasis omitted), and because it
is thus not plausible that they are “debt collector[s]” within
the meaning of the FDCPA, the FDCPA claim is dismissed.
*9 Moreover, even if Defendants were debt collectors
under the statute, the claim would still fail. The FDCPA
proscribes debt collectors from using “any false, deceptive,
or misleading representation or means in connection with the
collection of any debt.” 15 U.S.C. § 1692e. “Congress enacted
[the] FDCPA ... to eliminate abusive debt collection practices
by debt collectors....” Altman v. J.C. Christensen & Assocs.,
Inc., 786 F.3d 191, 193 (2d Cir. 2015) (internal quotation
marks omitted). “It was designed to protect consumers from
unscrupulous collectors whether or not there is a valid debt.”
Forman v. Acad. Collection Serv., Inc., 388 F. Supp. 2d
199, 202 (S.D.N.Y. 2005). Plaintiffs allege that Defendants
violated two subdivisions of Section 1692e: (1) § 1692e(2),
which prohibits a “false representation of the character,
amount, or legal status of any debt; or any services rendered
or compensation which may be lawfully received by any debt
collector for the collection of a debt;” and (2) § 1692e(10),
which makes it a violation to “use ... any false representation
or deceptive means to collect or attempt to collect any debt or
to obtain information concerning a consumer.”
In considering whether a collection notice violates § 1962e,
the Second Circuit applies the “least sophisticated consumer”
standard. SeeClomon v. Jackson, 988 F.2d 1314, 1318 (2d
Cir. 1993). This standard “ensure[s] that the FDCPA protects
all consumers, the gullible as well as the shrewd.” Id. “The
hypothetical least sophisticated consumer does not have
the astuteness of a ... lawyer or even the sophistication of
the average, everyday, common consumer, but is neither
irrational nor a dolt.” Ellis v. Solomon & Solomon, P.C.,
591 F.3d 130, 135 (2d Cir. 2010) (internal quotation marks
omitted). The least sophisticated consumer inquiry “is to be
conducted with a recognition that confusion can occur in ...
myriad ... ways, such as when a letter visually buries the
required validation notice, contains logical inconsistencies,
fails to explain an apparent inconsistency, or presents some
combination of these (or similar) vices.” Pollard v. Law Office
of Mandy L. Spaulding, 766 F.3d 98, 104 (1st Cir. 2014).
Plaintiffs' theory of misrepresentation is that “[b]y issuing
mortgage statements to Plaintiffs and Class members,
Defendants represented to the Plaintiffs and Class members
that all amounts due on these statements were lawful
and reasonable,” and thus Defendants “misrepresented to
Plaintiffs and Class members in their monthly mortgage
statements that all fees, charges and amounts due were
lawful and proper.” (AC ¶ 69.) Plaintiffs identify three
types of transactions they consider fraudulent: (1) charges
ranging from $15.00 to $20.00 listed as “FEE PROPERTY
INSPECT” for which inspections were completed, (id. ¶¶ 17,
24); (2) charges listed as “FEE PROPERTY INSPECT” for
which Plaintiffs were charged but an inspection was allegedly
never completed, (id. ¶¶ 18, 23); and (3) charges for “Other
Fees” in amounts ranging from $120.00 to $275.00 per month,
(id. ¶ 17). In the event of a default, the Weir Plaintiffs' Security
Instrument permits the lender to enter on and inspect the
property “in a reasonable manner and at reasonable times,”
and to “charge ... fees for services performed in connection
with [ ] default ... including, but not limited to, attorneys'
fees, property inspection and valuation fees.” (Howard Decl.
Ex. A at 9, 13 (emphasis added).) Similarly, the Stasul/
Jorge Plaintiffs' Security Instrument allows, in the event of
default, property inspections and action necessary to protect
the property, the costs of which “shall become an additional
debt of [the] Borrower.” (Id. Ex. B at 5-6.)
Few courts have considered whether charging mortgagors
for allegedly unreasonable property inspections or other fees
in the event of default, and accurately listing these charges
on the bill, amounts to an FDCPA violation. See, e.g.,Vega
v. Ocwen Fin. Corp., No. 14-CV-4408, 2015 WL 1383241,
at *6 (C.D. Cal. Mar. 24, 2015); Benner v. Bank of Am.,
N.A., 917 F. Supp. 2d 338, 353-54 (E.D. Pa. 2013). The
logic regarding misrepresentation as an element of mail
or wire fraud pleaded as a predicate act for civil RICO,
however, is persuasive here. With respect to the first and third
categories listed above, Plaintiffs argue that “they were not
expressly obligated under the mortgage agreement to pay for
the inspection fees charged” because the inspections were
“automatic and repetitive” and unreasonable. (Ps' Opp. at
17.) The alleged deception, according to Plaintiffs, is the
charging of unreasonable fees and the failure to disclose that
the fees were not reasonable and Plaintiffs were therefore
not obligated to pay. (Id.) In Tardibuono-Quigley, this Court
rejected in the civil RICO context an identical argument that
“Defendants committed fraud by omitting a material fact, i.e.,
failing to disclose that the assessed fees were unnecessary,”
and considered whether charges listed as “AUTO PPTY
INSPEC” constituted mail or wire fraud. 2017 WL 1216925,
at *3, *11. Relying on an analogous out-of-Circuit case that
applied similar reasoning to RICO and FDCPA claims, the
Court held that charges for property inspections did not
amount to misrepresentations because the plaintiffs'
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*10 “mortgage agreement explicitly authorizes property
inspections and [their] monthly bill[s] while [they were]
in default disclosed that [they were] charged for such
inspections. While there may be a disagreement regarding
the terms in the mortgage agreement, and whether the
property inspections were ‘reasonable’ under the mortgage
agreement, a mere disagreement does not create additional
liability. The failure to concede liability in a billing
statement does not then create additional causes of action.
It would be absurd for [defendants] to print ‘unnecessary
property inspection’ on each billing statement. There is
no wrongdoing in [plaintiffs'] billing statement[s] because
[defendants] did not concede breach of contract liability.”
Tardibuono-Quigley, 2017 WL 1216925, at *11 (emphasis
in original) (quoting Vega v. Ocwen Fin. Corp., No. 14-
CV-4408, 2015 WL 1383241, at *6 (C.D. Cal. Mar. 24, 2015)
).
Similarly here, Plaintiffs' statements included charges for
property inspections and “Other Fees,” both of which
were permitted in the event of default under the Security
Instruments. Property inspections are explicitly permitted
under the Security Instrument, (see Howard Decl. Ex. A
at 9; id. Ex. B at 5), and the Weir Plaintiffs' instrument
clearly permits other fees that are incurred as a result of
default, (see id. Ex. A at 10, 13). 10 That Plaintiffs believe
—perhaps justifiably so—that Defendants took advantage
of those provisions in their mortgage agreements and
charged for excessive and unreasonable property inspections
does not mean that labeling them for what they were
—property inspections and other fees—amounts to false
representations. SeeTardibuono-Quigley, 2017 WL 1216925,
at *13 (“Defendants did not misrepresent the nature of the
fees in any billing statements....”). Nor do Plaintiffs “allege
that Defendants charged borrowers any amount in excess
of the cost of the inspections....” Id. Thus, without any
allegations that Defendants concealed or inflated the charges
for property inspection or “Other Fees,” Plaintiffs have failed
to plausibly plead an FDCPA violation with respect to the
property inspections that were actually performed or the
“Other Fee” charges. SeeVega, 2015 WL 1383241, at *14-15
(“[E]very pending case involving property inspection fees
includes allegations that the mortgage servicer concealed the
fees on the billing statement.”); see alsoBenner, 917 F. Supp.
2d at 354 (dismissing § 1692e(2) claim because plaintiff's
mortgage explicitly allowed for property inspections in event
of default).
10 Plaintiffs allege that only the Weirs were charged
“Other Fees” in amounts higher than the property
inspections, (see AC ¶ 17), from which it can be
inferred that the “Other Fees” were for some other
charge related to default.
Regarding the second category listed above—fees charged as
“FEE PRPOERTY INSPECT” but for which no inspection
was allegedly performed—the Amended Complaint contains
insufficient facts rendering it plausible that Plaintiffs were
charged for inspections that never occurred. (See AC ¶¶
18, 23.) Plaintiffs merely repeat that “upon information
and belief,” the vendors did not inspect the properties,
(see AC ¶¶ 18, 75), and opine that “it is suspect whether
inspections actually [took] place,” (seeid. ¶ 34), without any
support aside from the fact that Defendants knew the houses
were occupied because the parties were working on short
sales, (id. ¶¶ 16, 24), which in Plaintiffs' view renders the
inspections unnecessary or unreasonable. 11 But given that
the alleged purpose of the inspections included ascertaining
if the property was being maintained or had been damaged,
and the likelihood that occupants who are having trouble
paying their mortgage might also have trouble keeping up or
repairing their property, the mere fact that the property was
occupied does not alone render an inspection irrational—and
surely does not show that an inspection never took place. 12
11 In their affidavits in opposition to the instant
motion, the Weir Plaintiffs allege that even though
they both spent most of their time at home
during the relevant period, they never saw a bank
representative or inspector come to their home
or drive by taking pictures. (Ps' Opp. Ex. B at
2 ¶¶ 6, 9.) Similarly, the Stasul/Jorge Plaintiffs
allege that an inspector came to their door once
in 2015, but no other inspector has come to
their property “to [their] knowledge.” (Id. Ex.
B at 3-4 ¶¶ 4-5.) As previously discussed, I
cannot consider these affidavits on a motion to
dismiss. See supra Section II.B. Even if I could,
Plaintiffs allege in their Amended Complaint that
the property inspections are “mere ‘drive-by’
inspections, where the inspector drives by the
property ostensibly to assess whether the house is
occupied, is being maintained and has not been
damaged.” (AC ¶ 34.) There are no allegations in
the Amended Complaint that the inspectors were
tasked with coming to the door or taking pictures
of the homes, so if the inspectors were merely
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driving by the homes for inspection, it is unlikely
that Plaintiffs would know whether the inspections
were completed or not, unless they were looking
out the window all day and the inspectors' cars were
somehow identifiable.
12 The closest Plaintiffs come to providing facts
suggesting that inspections never took place is their
allegation that the Weir Plaintiffs were charged
for three property inspections on April 22 and 23,
2015. (Id. ¶ 17.) Three inspections in two days
does indeed seem unnecessary and excessive, so
much so that one might surmise that they did
not all really occur. But the allegation is not that
three inspections occurred in two days; rather it
is that Defendants billed for three inspections on
two dates. Given the absence of any indication
that the billing date and the inspection date
are necessarily the same, and given that the
allegation is a one-off event which could have other
plausible explanations (such as belated billing by
the vendor), the allegation regarding April 22 and
23, 2015 is insufficient to nudge the allegation that
the inspections did not take place “across the line
from conceivable to plausible....” Twombly, 550
U.S. at 570.
*11 Therefore, because Plaintiffs fail to plausibly plead a
misrepresentation or that Defendants are debt collectors, their
FDCPA claims are dismissed. 13
13 Even if Plaintiffs' RICO claims did not fail due
to their failure to plausibly plead an enterprise,
their RICO claims would fail for the same reason
as their FDCPA claims—that is, for failure to
plead a misrepresentation. SeeTardibuono-Quigley,
2017 WL 1216925, at *13 (“[T]he gravamen of
Plaintiff's RICO claims is that HSBC Mortgage
breached the Security Agreement by charging
fees for unnecessary property inspections.... This
conduct, however, does not amount to a RICO
violation. Defendants did not misrepresent the
nature of the fees in any billing statements, and
Plaintiff does not allege that Defendants charged
borrowers any amount in excess of the cost of the
inspections....”); Vega, 2015 WL 1383241, at *6,
*13 (dismissing RICO claim for failure to plead
predicate act of mail or wire fraud and noting that
“[w]hile there may be a disagreement regarding
the terms in the mortgage agreement, and whether
the property inspections were ‘reasonable’ under
the mortgage agreement, a mere disagreement does
not create additional liability”); see alsoBigsby v.
Barclays Capital Real Estate, Inc., 170 F. Supp.
3d 568, 576 (S.D.N.Y. 2016) (“The defendants did
not owe the plaintiffs some legal duty beyond the
obligations contained within the contracts, and the
defendants made no misrepresentation collateral
or extraneous to the contract.”) (internal quotation
marks omitted).
C. State Law Claims
1. CAFA
Ordinarily, having dismissed all federal claims, I would
decline to exercise supplemental jurisdiction over the state
claims. SeeKolari v. N.Y.-Presbyterian Hosp., 455 F.3d 118,
122 (citing 28 U.S.C. § 1367(c)(3) ). But Plaintiffs allege that
this Court has subject-matter jurisdiction over the state claims
under CAFA. (AC ¶ 11.) Defendants argue that Plaintiffs
failed to plead that their claims would amount to $5 million
in damages, as required under CAFA. (Ds' Mem. at 23 n.5.)
Plaintiffs fail to respond to this argument in their opposition
brief, and thus I could deem it abandoned. SeeRomeo &
Juliette Laser Hair Removal, 2014 WL 4723299, at *7.
But the Court has an “independent obligation to determine
whether subject matter jurisdiction exists,” Hertz Corp. v.
Friend, 559 U.S. 77, 94 (2010); seeHalperin v. Int'l Web
Servs., LLC, 70 F. Supp. 3d 893, at 904-05 (N.D. Ill.
2014) (undertaking independent analysis of subject matter
jurisdiction under CAFA), so I turn to the merits.
“To establish federal jurisdiction under CAFA, [the
party asserting jurisdiction] ‘must prove to a reasonable
probability’ that (1) there is minimal diversity (meaning at
least one defendant and one member of the putative class
are citizens of different states); (2) the putative class exceeds
100 people; and (3) the amount in controversy is greater than
$5 million.”Fields v. Sony Corp. of Am., No. 13-CV-6520,
2014 WL 3877431, at *1 (S.D.N.Y. Aug. 4, 2014) (quoting
Blockbuster, Inc. v. Galeno, 472 F.3d 53, 59 (2d Cir. 2006)
). Defendants take issue with the third requirement—that
Plaintiffs have proven to a reasonable probability that their
claims exceed $5 million. (Ds' Mem. at 23 n.5.)
*12 “[T]he claims of the individual class members shall be
aggregated to determine whether the matter in controversy
exceeds the sum or value of $5,000,000, exclusive of
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interest and costs.” Fields, 2014 WL 3877431, at *2; 28
U.S.C. § 1332(d)(6). Courts have held that “[i]n satisfying
the ‘reasonable probability’ burden, there is ‘a rebuttable
presumption that the face of the complaint is a good faith
representation of the actual amount in controversy,’ ” Hart
v. Rick's NY Cabaret Int'l, Inc., 967 F. Supp. 2d 955, 961
(S.D.N.Y. 2014) (quoting Colavito v. N.Y. Organ Donor
Network, Inc., 438 F.3d 214, 221 (2d Cir. 2006) ), and that
to overcome that presumption, Defendants must show that
the complaint “was so patently deficient as to reflect a legal
certainty that the plaintiff could not recover the amount
alleged ...,” Colavito, 438 F.3d at 221 (internal quotation
marks omitted).
“While the plaintiffs here did not allege a specific damages
amount, that is not fatal to their jurisdictional claim.” Bigsby,
170 F. Supp. 3d at 579. Here, Plaintiffs allege that Defendants
service approximately 2.3 million loans totaling $500 billion,
(AC ¶ 2), and that the class—although its exact size is
unknown—is likely comprised of thousands of individuals
across the country, (id. ¶ 41). They provide no facts regarding
what percentage of these individuals reside in New York.
They seek actual damages—property inspection fees ranging
from $15-20, and “other fees” ranging from $125-275
—statutory damages, punitive damages, plus interest and
attorneys' fees and costs pursuant. (Seeid. ¶ 123; id. at 24-25.)
Many cases state that a plaintiff can meet his burden
of showing a reasonable probability that the jurisdictional
amount is met through a rebuttable presumption arising from
the face of the complaint, but they rely on precedent that
predates Iqbal and Twombly. See, e.g.,Hart, 967 F. Supp. 2d
at 961 (relying on Blockbuster, 472 F.3d 53, and Colavito,
438 F.3d 214). It seems to me that the jurisdictional amount,
like any other factual allegation, ought not to receive the
presumption of truth unless it is supported by facts rendering
it plausible. SeeLapaglia v. Transamerica Cas. Ins. Co., 155
F. Supp. 3d 153, 155 (D. Conn. 2016) (plausibility standard
“should ... equally govern the evaluation of factual allegations
that support federal subject matter jurisdiction, [including] the
amount in controversy”); Wood v. Maguire Auto. LLC, No. 09-
CV-0640, 2011 WL 4478485, at *2 (N.D.N.Y. Sept. 26, 2011)
(“[T]his face-of-the-complaint presumption is available only
if the face of the complaint alleges facts plausibly suggesting
the existence of claims aggregating over the jurisdictional
minimum amount in controversy.”), aff'd, 508 Fed.Appx.
65 (2d Cir. 2013) (summary order) (“Wood's allegation
in her complaint of $75,000 in controversy is conclusory
and not entitled to a presumption of truth.”) (citing Iqbal,
556 U.S. at 681); id. (“[I]in the event the complaint does
not allege, on its face, facts plausibly suggesting that the
amount in controversy exceeds the jurisdictional minimum,
the court need not presume that the general allegation that the
amount in controversy exceeds the jurisdictional minimum
constitutes a good faith representation of the actual amount in
controversy.”).
Here Plaintiffs have not plausibly alleged that $5 million
is in controversy. They allege that Defendants service
approximately 2.3 million loans, and that at least thousands
of those loans are in default. If just three percent of those 2.3
million loans were in default, and the borrowers were charged
property inspection fees of $16 only five times, the amount in
controversy would exceed $5 million. But they have provided
no information on what percentage of those borrowers are
in New York and eligible to pursue the state-law claims
alleged. 14 Nor have they provided information on how many
times or how frequently they or other class members were
charged the challenged fees. 15 So there are insufficient facts
to render it plausible that the state law claims involve an
amount in controversy exceeding $5 million. Accordingly, I
believe the Court lacks subject-matter jurisdiction over those
claims. And I decline to exercise supplemental jurisdiction
over them.
14 Plaintiffs have not brought claims under the
consumer protection statutes of any state other than
New York, and while they do not appear to rely
on any particular state law in pursuing their unjust
enrichment claim, I assume they mean to bring it
under New York law because the named Plaintiffs
are citizens of New York. (AC ¶¶ 13, 20.)
15 At the same time, Defendants, in arguing that each
individual's claim is worth $16, overlooks the fact
that many borrowers are in default for months
or years on end, and because the inspections are
alleged to be ordered “automatically ... on a cyclical
basis,” (id. ¶ 33), many borrowers are likely to
have the fee imposed more than once. But because
the cycle is not described, I cannot determine the
number of times the fees were imposed.
*13 In an excess of caution, however, and because the
Second Circuit has not overruled its pre-Twombly rulings
regarding the presumption to be afforded the face of the
complaint, and the need for the opposing party to show to a
legal certainty that the jurisdictional amount cannot be met, I
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consider in the alternative the merits of the motion to dismiss
the state claims.
2. N.Y. G.B.L. § 349(a)
To state a claim under N.Y. G.B.L. § 349, “a plaintiff must
allege: (1) the act or practice was consumer-oriented; (2) the
act or practice was misleading in a material respect; and (3)
the plaintiff was injured as a result.” Spagnola v. Chubb Corp.,
574 F.3d 64, 74 (2d Cir. 2009); seeOswego Laborers' Local
214 Pension Fund v. Marine Midland Bank, N.A., 647 N.E.2d
741, 744 (1995). Defendants argue that Plaintiffs fail to meet
the first two requirements. (Ds' Mem. at 21-23.)
a. Consumer Oriented
With respect to the first element, “[c]onsumer-oriented” does
not mean that “the defendant committed the complained-
of acts repeatedly—either to the same plaintiff or to other
consumers—but instead ... that the acts or practices have
a broader impact on consumers at large.” Oswego, 647
N.E.2d at 744. Courts have repeatedly held that a § 349
consumer “is one who purchase[s] goods and services for
personal, family or household use.” Exxonmobil Inter-Am.,
Inc. v. Advanced Info. Eng'g Servs., Inc., 328 F. Supp. 2d
443, 448 (S.D.N.Y. 2004) (alteration in original) (internal
quotation marks omitted); seeCruz v. NYNEX Info. Res.,
703 N.Y.S.2d 103, 106 (1st Dep't 2000) (“In New York
law, the term ‘consumer’ is consistently associated with an
individual or natural person who purchases goods, services
or property primarily for ‘personal, family or household
purposes.’ ”). “ ‘Consumer-oriented’ has been defined in this
circuit as ‘conduct that potentially affects similarly situated
consumers.’ ” Kapsis v. Am. Home Mortg. Servicing Inc., 923
F. Supp. 2d 430, 449 (E.D.N.Y. 2013) (quoting SQKFC, Inc.
v. Bell Atl. TriCon Leasing Corp., 84 F.3d 629, 636 (2d Cir.
1996) ). “Based on this standard, courts have found sufficient
allegations of injury to the public interest where plaintiffs
plead repeated acts of deception directed at a broad group of
individuals.” New York v. Feldman, 210 F. Supp. 2d 294, 301
(S.D.N.Y. 2002) (collecting cases).
Defendants argue that because the Weir Plaintiffs and Stasul/
Jorge Plaintiffs have different mortgage agreements, their
claims are more akin to private contract disputes, which
“ ‘would not fall within the ambit of the statute.’ ” (Ds'
Mem. at 23 (quoting Oswego, 647 N.E.2d at 744).) But
Plaintiffs plead that all class members have been subjected
to similar deceptive conduct in that they all have been
charged for unreasonable property inspection fees or other
fees. Regardless of the differing nature of the Plaintiffs'
Security Instruments, “[i]t is alleged that all [mortgagors]
would be subject to the same practices and policies” of
charging for unreasonable property inspections. White v.
Fein, Such & Crane, LLP, No. 15-CV-438, 2015 WL
6455142, at *6 (W.D.N.Y. Oct. 26, 2015) (denying motion
to dismiss § 349 claim because even though defendant
entered into private settlement agreements with plaintiffs,
defendants were alleged to subject plaintiffs to same policies
and practices across class); Kapsis, 923 F. Supp. 2d at 450
(denying motion to dismiss § 349 claim because plaintiff had
alleged defendant engaged in deceptive practices directed at
large class of similarly situated debtors); cf.N.Y.U. v. Cont'l
Ins. Co., 662 N.E.2d 763 (1995) (conduct not consumer-
oriented because parties entered into non-standard policy
“tailored to meet the purchaser's wishes and requirements”
where purchaser was sophisticated and the agreement was
heavily negotiated). Thus, at this stage, Plaintiffs have
plausibly pleaded that Defendants' actions were consumer-
oriented.
b. Deceptive Practice
*14 “Deceptive practices are acts which are dishonest or
misleading in a material respect” and “are defined objectively
as acts likely to mislead a reasonable consumer acting
reasonably under the circumstances.” Spagnola, 574 F.3d
at 74 (alteration and internal quotation marks omitted).
“[A] GBL § 349 claim does not lie when the alleged
deceptive practice ... was a matter explicitly disclosed in
and permitted under ... [a] written agreement.” Tardibuono-
Quigley, 2017 WL 1216925, at *15 (alterations in original)
(internal quotation marks omitted).
Defendants argue that Plaintiffs' § 349(a) claim fails because
they failed to plausibly plead a deceptive practice for
essentially the same reasons as their RICO and FDCPA claims
fail. (Ds' Mem. at 22.) I agree. As previously discussed,
supra Section III.B, Plaintiffs were charged for property
inspections and other fees, which were represented as such
on their billing statements. “[A] party does not violate
GBL [§] 349 by simply publishing truthful information and
allowing consumers to make their own assumptions about
the nature of the information.” Gomez-Jimenez v. N.Y. Law
Sch., 956 N.Y.S.2d 54, 59 (1st Dep't 2012); seeTardibuono-
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Quigley, 2017 WL 1216925, at *15 (dismissing § 349
claims brought under theory that billing statements failed
to indicate property inspection charges were unreasonable
under mortgage agreements); Hines v. Overstock.com, Inc.,
No. 09-CV-991, 2013 WL 4495667, at *9 (E.D.N.Y. Aug. 19,
2013) (“New York courts have dismissed claims for having
failed to satisfy this element where a defendant fully disclosed
the terms and conditions of an alleged deceptive transaction
that caused harm to the plaintiff.”); Shovak v. Long Island
Commercial Bank, 858 N.Y.S.2d 660, 662-63 (2d Dep't 2008)
(dismissing § 349 claim because charges, which were not per
se illegal, were fully disclosed to plaintiff).
Plaintiffs rely on Bauer v. Mellon Mortg. Co., 680 N.Y.S.2d
397 (Sup. Ct. N.Y. Cty. 1998), aff'd,Walts v. First Union
Mortg. Corp., 686 N.Y.S.2d 428 (1st Dep't 1999), to argue that
Defendants' failure to disclose that the fees were unreasonable
is a deceptive practice under § 349. In Bauer, the court
considered the conflict between a mortgage servicer's charges
to mortgagors for private mortgage insurance (“PMI”) and a
state law regulating when a lender may charge PMI. Id. at
398-99. Under New York law, “a lender may not require a
mortgagor to purchase private mortgage insurance ... from an
insurer designated by the lender, when the unpaid principal
loan amount represents 75% or less of the property's appraised
value.” Id. But defendants there—mortgage servicers—did
not notify plaintiffs when their unpaid principal balance fell
below this threshold set by state law, and continued to charge
them for PMI. Id. at 399. The court held because defendants
charged plaintiffs for fees that were plainly illegal under state
law, plaintiffs had stated a claim under § 349. Id. at 401.
Here, however, Plaintiffs are not arguing that the property
inspection fees were per se illegal under a state or federal law;
rather, they posit that the charges for property inspection fees
are unreasonable under their contracts. 16 Federal courts have
made a distinction between charges that are themselves illegal
under state or federal law and those that may be unreasonable
under a contract in determining whether a mortgage servicer's
actions were deceptive under § 349. See, e.g.,Mendez v. Bank
of Am. Home Loans Servicing, LP, 840 F. Supp. 2d 639,
645, 659 (E.D.N.Y. 2012) (charging allegedly unreasonable
property inspection fees not deceptive under § 349 because
not violative of state or federal law and mortgage agreement
put no limitation other than reasonableness requirement on
default-related servicing fees); Lum v. New Century Mortg.
Corp., 800 N.Y.S.2d 408, 410 (2d Dep't 2005) (“no materially
misleading statement [where fee,] which [was] not per se
illegal, was disclosed to the plaintiff”); cf.Cohen v. JP
Morgan Chase & Co., 498 F.3d 111, 126-27 (2d Cir. 2007)
(allowing § 349 claim to proceed where fees alleged to violate
substantive law). Thus, without any plausible allegations that
the property inspection fees were per se illegal under some
statute, and for the same reasons that Plaintiffs failed to
plausibly plead a misrepresentation under RICO or a false
representation under the FDCPA, Plaintiffs have failed to
plausibly plead a deceptive practice under N.Y. G.B.L. §
349(a). 17 Accordingly, if I had subject matter jurisdiction, I
would dismiss the § 349 claim.
16 While Plaintiffs argue that the unreasonable fees,
along with other facts, add up to a violation of
RICO, RESPA, and the FDCPA (an argument I
have rejected), they do not argue that any statute
explicitly outlaws such fees.
17 There perhaps could be an argument that the
Security Instruments themselves violate N.Y.
G.B.L. § 349 because a reasonable mortgagor
may decide to enter into a mortgage agreement
like those here, believing that lenders would
only perform reasonable property inspections, and
that the inspections for which Plaintiffs were
charged—generated by a computer program—
were unreasonable. SeeTardibuono-Quigley, 2017
WL 1216925, at *16. In other words, Plaintiffs
might arguably claim they were tricked into
entering the agreements. But Defendants here
did not sign the Security Instruments and were
not otherwise involved in Plaintiffs' decisions to
enter into them. The Weir Plaintiffs' Security
Instrument was between the Weirs and National
City Mortgage, a division of National City Bank,
(Howard Decl. Ex. A at 2), and the Stasul/Jorge
Plaintiffs' Security Instrument was between Stasul,
Jorge, and 1st Alliance Lending, LLC, (id. Ex. B at
2). Thus, Plaintiffs could not sustain a claim against
the named Defendants because Plaintiffs failed
to allege Defendants “had any role in the events
surrounding Plaintiff[s'] decision to enter into the”
Security Instruments. Tardibuono-Quigley, 2017
WL 1216925, at *16.
*15 3. Unjust Enrichment
To state a claim for unjust enrichment under New York law,
Plaintiffs must show that “(1) the defendant was enriched;
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(2) at the expense of the plaintiff; and (3) that it would
be inequitable to permit the defendant to retain that which
is claimed by Plaintiff.” Reynolds v. Lifewatch, Inc., 136
F. Supp. 3d 503, 524 (S.D.N.Y. 2015). “Unjust enrichment
is available only in unusual situations when, though the
defendant has not breached a contract nor committed a
recognized tort, circumstances create an equitable obligation
running from the defendant to the plaintiff.” Mahoney
v. Endo Health Sols., Inc., No. 15-CV-9841, 2016 WL
3951185, at *11 (S.D.N.Y. July 20, 2016) (internal quotation
marks omitted). “When a valid, enforceable contract exists,
courts dismiss unjust enrichment claims because the parties'
relationship is said to be governed by the terms of the
contract.” Tardibuono-Quigley, 2017 WL 1216925, at *19
(collecting cases).
Defendants argue that the mortgage agreements govern the
same subject matter as Plaintiffs' unjust enrichment. Plaintiffs
disagree and rely on In re Countrywide Fin. Corp. Mortg.
Mktg. & Sales Practice Litig., 601 F. Supp. 2d 1201 (S.D.
Cal. 2009), where the court held that an unjust enrichment
claim could proceed because the plaintiffs alleged that
defendants “engaged in a scheme to steer borrowers into
subprime mortgages, which were then sold as investments in
the secondary mortgage market.” Id. at 1207. The scheme
alleged in Countrywide went beyond the terms of the
mortgage agreements. Here, there is no dispute that the
Security Instruments address property inspection and other
fees that arise in the event of default. Indeed, Plaintiffs'
“unjust enrichment claims are based exclusively on whether
[Defendants] violated contractual terms regarding assessment
of property inspection fees.” Ellis v. J.P. Morgan Chase &
Co., No. 12-CV-3897, 2016 WL 5815733, at *10 n.11 (N.D.
Cal. Oct. 5, 2016). Plaintiffs fail to explain how the unjust
enrichment claim falls outside the confines of their Security
Agreements. Benner, 917 F. Supp. 2d at 361 (“The agreement
addresses numerous topics, including Defendant's ability to
charge for property inspections if Plaintiff defaults—as he
admittedly did—on his mortgage payments. Plaintiff has a
right, of course, to challenge the reasonableness of those
charges, but a theory of unjust enrichment is not the proper
legal vehicle.”); Tardibuono-Quigley, 2017 WL 1216925, at
*19 (dismissing unjust enrichment claim because mortgage
agreements governed dispute); Ellis, 2016 WL 5815733, at
*11 (same). Further, Plaintiffs have not alleged that they
actually paid the fees or facts rendering it plausible that
any such fees were retained by the servicer Defendants, as
opposed to the lenders. 18 Therefore, if I had subject matter
jurisdiction, I would dismiss Plaintiffs' unjust enrichment
claim.
18 The original Security Instruments were between
Plaintiffs and other lenders. It could be—although
it is not alleged—that at some point the original
lenders assigned their rights to Defendants. This
has been true in other cases where courts
have dismissed unjust enrichment claims against
servicers because a contract existed between the
plaintiffs and the original lender and was later
assigned to defendant servicer, even though the
named defendant was not a party to the original
mortgage agreement. SeeEllis, 2016 WL 5815733,
at *4 (loan originated with Washington Mutual and
was eventually assigned to defendant); Benner, 917
F. Supp. 2d at 345-46 (loan refinanced with Allied
Mortgage Group and later assigned to defendant).
If this is not the case here, however, and Defendants
are acting as servicers who assist with management
of the mortgages but do not receive the actual
fees paid by mortgagors, Defendants have not
been enriched. In either situation, Plaintiffs have
failed to plausibly plead an unjust enrichment claim
against Defendants.
IV. LEAVE TO AMEND
*16 Leave to amend a complaint should be freely given
“when justice so requires.” Fed. R. Civ. P. 15(a)(2). It is
“within the sound discretion of the district court to grant
or deny leave to amend.” McCarthy v. Dun & Bradstreet
Corp., 482 F.3d 184, 200 (2d Cir. 2007). “Leave to amend,
though liberally granted, may properly be denied for: ‘undue
delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by
virtue of allowance of the amendment, futility of amendment,
etc.’ ” Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir.
2008) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962) ).
Plaintiffs have already amended their complaint, (Doc. 14),
after having the benefit of a pre-motion letter outlining
the majority of Defendants' proposed grounds for dismissal,
(Doc. 10), and my observations during the April 17, 2017
conference. Plaintiffs' failure to fix deficiencies in the
previous pleadings, after being provided notice of them,
is alone sufficient grounds to deny leave to amend. SeeIn
re Eaton Vance Mut. Funds Fee Litig., 380 F. Supp. 2d
222, 242 (S.D.N.Y. 2005) (denying leave to amend because
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“the plaintiffs have had two opportunities to cure the
defects in their complaints, including a procedure through
which the plaintiffs were provided notice of defects in
the Consolidated Amended Complaint by the defendants
and given a chance to amend their Consolidated Amended
Complaint,” and “plaintiffs have not submitted a proposed
amended complaint that would cure these pleading defects”),
aff'd sub nom.Bellikoff v. Eaton Vance Corp., 481 F.3d 110,
118 (2d Cir. 2007) (“[P]laintiffs were not entitled to an
advisory opinion from the Court informing them of the
deficiencies in the complaint and then an opportunity to cure
those deficiencies.”) (internal quotation marks omitted).
Further, Plaintiffs have not sought to amend again or
otherwise suggested that they possess facts that would
cure the deficiencies identified in this opinion. Accordingly,
the Court will not grant leave to amend sua sponte.
SeeTechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 505
(2d Cir. 2014) (plaintiff need not be given leave to amend if
he fails to specify how amendment would cure the pleading
deficiencies in his complaint); Gallop v. Cheney, 642 F.3d
364, 369 (2d Cir. 2011) (district court did not err in dismissing
claim with prejudice in absence of any indication plaintiff
could or would provide additional allegations leading to
different result); see alsoLoreley Fin. (Jersey) No. 3 Ltd. v.
Wells Fargo Sec., LLC, 797 F.3d 160, 190 (2d Cir. 2015)
(denial of leave to amend would be proper where “request
gives no clue as to how the complaint's defects would be
cured”) (internal quotation marks omitted).
Plaintiffs are attempting to hold Defendants liable under
federal law when the gravamen of the complaint is breach of
contract. See, e.g.,Tardibuono-Quigley, 2017 WL 1216925,
at *11 (“[I]f Defendants charged for un[reasonable] services,
they could be deemed to be in breach of the Security
Agreement,” but “a breach of contract normally does not
constitute the predicate act of mail or wire fraud, or any
predicate act for that matter.”). Defendants state in a footnote
that “[w]ere Plaintiffs to plead breach of contract, these claims
would likewise fail because such inspections are authorized
by the Mortgages.” (Ds' Mem. at 9 n.3.) I am not sure that
the relevant contracts authorize passing on to borrowers the
costs of periodic inspections if, as Plaintiffs allege, those
inspections serve no purpose. And it can be a harsh, and
perhaps counter-productive, practice. But Plaintiffs did not
bring a breach of contract claim, nor did they bring claims
against the entities with whom Plaintiffs entered into their
Security Instruments. Thus, on the theories alleged in the
Amended Complaint, Plaintiffs cannot sustain claims against
Defendants.
V. CONCLUSION
*17 For the reasons stated above, Defendants' motion to
dismiss is GRANTED. The Clerk of Court is respectfully
directed to terminate the pending motion, (Doc. 20), and close
the case.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2018 WL 3443173, RICO
Bus.Disp.Guide 13,057
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McKie v. Kornegay, Not Reported in Fed. Rptr. (2022)
2022 WL 4241355
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2022 WL 4241355
Only the Westlaw citation is currently available.
United States Court of Appeals, Second Circuit.
Christopher MCKIE, Plaintiff-Appellant,
v.
Charles KORNEGAY, Irene
Kornegay, Defendants-Appellees. 1
1 The Clerk of Court is respectfully directed to
amend the caption as set forth above.
21-1943
|
September 15, 2022
Appeal from a judgment of the United States District Court
for the Eastern District of New York (Matsumoto, J.).
UPON DUE CONSIDERATION, IT IS HEREBY
ORDERED, ADJUDGED, AND DECREED that the
judgment of the district court is VACATED IN PART and
AFFIRMED IN PART, and the appeal is DISMISSED IN
PART.
Attorneys and Law Firms
For Plaintiff-Appellant: Christopher McKie, pro se,
Brooklyn, New York.
For Defendants-Appellees: William V. DeCandido, William
V. DeCandido, PC, Forest Hills, New York.
Present: Debra Ann Livingston, Chief Judge, Barrington D.
Parker, Eunice C. Lee, Circuit Judges.
SUMMARY ORDER
*1 Appellant Christopher McKie, proceeding pro se, appeals
from the August 2, 2021 order of the United States District
Court for the Eastern District of New York (Matsumoto, J.),
dismissing his claims with prejudice. McKie brought claims
against the estate of Doris Dickinson, Charles Kornegay
(“Charles”) in his official capacity as administrator of the
estate and in his individual capacity, and Irene Kornegay
(“Irene”), asserting common law tort and contract claims
premised on McKie's allegation that he was entitled to estate
assets. The district court found that it lacked subject matter
jurisdiction because the parties were not diverse, that it would
also lack subject matter jurisdiction over many claims under
the probate exception to federal diversity jurisdiction, and
that the complaint in any event failed to state a claim. For
the following reasons, the judgment of the district court is
VACATED IN PART and AFFIRMED IN PART, and the
appeal is DISMISSED IN PART. We assume the parties’
familiarity with the underlying facts, the procedural history,
and the issues on appeal, which we reference here only as
necessary to explain our decision.
I. Subject Matter Jurisdiction
On appeal from a dismissal for lack of subject matter
jurisdiction, we review the district court's factual findings for
clear error and its legal conclusions de novo. Makarova v.
United States, 201 F.3d 110, 113 (2d Cir. 2000). We “have an
independent obligation to determine whether subject-matter
jurisdiction exists, even when no party challenges it.” Hertz
Corp. v. Friend, 559 U.S. 77, 94 (2010). Federal subject
matter jurisdiction is available when a federal question is
presented, or when the parties are diverse and the amount in
controversy exceeds $75,000. 28 U.S.C. §§ 1331, 1332.
McKie's complaint cites the statutes for both federal question
and diversity jurisdiction. 2 However, McKie's brief does not
identify any basis for federal question jurisdiction, and none
is apparent—McKie's causes of action are state law tort and
contract claims.
2 On appeal, McKie also argues that the district
court should have considered whether jurisdiction
existed under 28 U.S.C. §§ 1335 and 1343(a),
but he fails to explain how either statute is
applicable to this case. See 28 U.S.C. §§ 1343(a),
1335 (jurisdiction over certain civil rights and
interpleader actions).
Diversity jurisdiction requires that the case be between
“citizens of different States,” 28 U.S.C. § 1332(a)(1),
meaning “that there must be complete diversity, i.e., that each
plaintiff's citizenship must be different from the citizenship of
each defendant,” Hallingby v. Hallingby, 574 F.3d 51, 56 (2d
Cir. 2009). “An individual's citizenship, within the meaning
of the diversity statute, is determined by his domicile.” Van
Buskirk v. United Grp. of Cos., Inc., 935 F.3d 49, 53 (2d Cir.
2019) (quotation marks and citations omitted). The diversity
statute specifies that “the legal representative of the estate of a
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decedent shall be deemed to be a citizen only of the same State
as the decedent.” 28 U.S.C. § 1332(c)(2). The citizenship of
the estate itself is, likewise, established by the citizenship of
the decedent. See Moore v. N. Am. Sports, Inc., 623 F.3d 1325,
1327 n.2 (11th Cir. 2010) (citing § 1332(c)(2)).
*2 McKie does not dispute that he is domiciled in New York,
nor that Dickinson was domiciled in New York when she died.
Instead, he argues that the district court overlooked that he
also sued Irene and Charles, both South Carolina residents,
individually. However, because McKie shared citizenship
with any of the defendants, the district court lacked subject
matter jurisdiction. See Hallingby, 574 F.3d at 56.
Having properly concluded that it lacked subject matter
jurisdiction, the district court proceeded to consider the merits
and dismiss the complaint with prejudice for failure to state a
claim. That was error. A dismissal for lack of subject matter
jurisdiction must be without prejudice, because “without
jurisdiction, the district court lacks the power to adjudicate
the merits of the case.” Carter v. HealthPort Techs., LLC,
822 F.3d 47, 54–55 (2d Cir. 2016). Accordingly, the district
court's dismissal with prejudice of claims over which it found
it lacked subject matter jurisdiction must be vacated.
Nevertheless, since the district court has already issued a
final judgment over the remaining claims, we cure part
of the jurisdictional defect here in the interest of finality,
efficiency, and economy. See United Republic Ins. Co., in
Receivership v. Chase Manhattan Bank, 315 F.3d 168, 170
(2d Cir. 2003) (“Once a district court has proceeded to
final judgment, considerations of finality, efficiency, and
economy become overwhelming, and federal courts must
salvage jurisdiction where possible.” (quotation marks and
citations omitted)). To salvage jurisdiction, we dismiss the
nondiverse defendants (i.e., the estate and Charles in his
official capacity as administrator). See Fed. R. Civ. P. 21
(“On motion or on its own, the court may at any time, on
just terms, add or drop a party.”); Newman-Green, Inc. v.
Alfonzo-Larrain, 490 U.S. 826, 837 (1989) (recognizing that
“courts of appeals have the authority to dismiss a dispensable
nondiverse party” under Rule 21); E.R. Squibb & Sons, Inc. v.
Lloyd's & Cos., 241 F.3d 154, 163 (2d Cir. 2001) (“[W]here
a change in parties, necessary to the existence of jurisdiction,
is appropriate and is made (even on or after appeal), appellate
courts have acted as if the trial court had jurisdiction from the
beginning of the litigation.”).
To the extent that McKie seeks damages from Charles and
Irene for their personal tortious conduct, the estate and its
administrator are not necessary because the case can proceed
“in equity and good conscience” without them. Fed. R. Civ.
P. 19(b). The Supreme Court has cautioned that the appellate
courts’ authority to dismiss parties “should be exercised
sparingly,” and that remand may be required to resolve factual
disputes as to whether the dismissal of a nondiverse party
will prejudice other parties. Newman-Green, 490 U.S. at 837.
Here, Charles and Irene will only benefit from the finality
of a dismissal with prejudice, and McKie and the nondiverse
defendants would be in the same position whether those
defendants are severed from this case or this case is dismissed
in its entirety without prejudice.
Still, we agree with the district court that the probate
exception to diversity jurisdiction bars some of McKie's
claims against Irene and Charles in their individual capacities.
Under the probate exception, a federal court cannot exercise
diversity jurisdiction over a complaint that seeks to (1)
“administer an estate, probate a will, or do any other purely
probate matter” or (2) “to reach a res in the custody of a
state court.” Lefkowitz v. Bank of N.Y., 528 F.3d 102, 106
(2d Cir. 2007) (quotation marks, alterations, and emphasis
omitted). The exception does not apply to actions that
“seek[ ] damages from Defendants personally rather than
assets or distributions from [the] estate,” even if they are
“intertwine[d]” with a probate action. Id. at 107–08. We
agree with the district court's analysis that McKie's claims
for breach of fiduciary duty, aiding and abetting breach
of fiduciary duty, conversion, unjust enrichment, quantum
meruit, and indebitatus assumpsit are barred by the probate
exception because they essentially “seek[ ] to mask in claims
for federal relief ... complaints about the maladministration
of [the estate]” and “[t]o provide the relief Plaintiff seeks ...
the federal court would have to assert control over property
that remains under the control of the state courts.” Id. at 107.
However, the probate exception does not bar McKie's claims
for fraudulent misrepresentation, fraudulent concealment,
and tortious interference, which seek compensatory and
punitive damages from Charles and Irene in their individual
capacities.
*3 We therefore dismiss the estate and Charles in his official
capacity from this action and proceed to consider the merits
of the remaining claims against Charles and Irene in their
individual capacities.
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II. Merits
“We review a district court's grant of a motion to dismiss de
novo, accepting as true all factual claims in the complaint
and drawing all reasonable inferences in the plaintiff's favor.”
Altimeo Asset Mgmt. v. Qihoo 360 Tech. Co., 19 F.4th 145, 147
(2d Cir. 2021) (quotation marks and citation omitted). Upon
review of the record and relevant case law, we conclude that
the district court's dismissal with prejudice of the remaining
claims was correct. We affirm for substantially the same
reasons stated by the district court in its August 2, 2021
memorandum and order, where it considered McKie's claims
for fraudulent misrepresentation, fraudulent concealment,
and tortious interference.
III. Denial of Leave to Amend
Finally, the district court did not err in denying leave to
amend. We review such denials for abuse of discretion, unless
the denial is “based on an interpretation of law.” Allen v.
Credit Suisse Sec. (USA) LLC, 895 F.3d 214, 227 (2d Cir.
2018) (quotation marks and citation omitted). A district court
generally should not dismiss a pro se complaint without
granting at least one opportunity to amend, but amendment
should be denied where the complaint gives no “indication
that a valid claim might be stated.” Cuoco v. Moritsugu, 222
F.3d 99, 112 (2d Cir. 2000) (citation omitted).
McKie does not explicitly challenge the denial of leave to
amend in his appellate brief, but he does argue that the
district court erred in denying a claim for an accounting,
which he had identified as a claim that might be raised in an
amended complaint. Such a claim relates to the estate and its
administrator, and raising it would destroy the federal courts’
diversity jurisdiction.
* * *
Accordingly, the district court's dismissal with prejudice is
VACATED in part and we DISMISS, without prejudice,
all claims against the estate of Doris Dickinson and its
administrator in his official capacity and all claims against
Charles and Irene Kornegay that fall under the probate
exception. As to the remaining claims against Charles and
Irene Kornegay in their individual capacities, we have
considered all of McKie's arguments and find them to be
without merit. Accordingly, we AFFIRM the judgment of the
district court in remaining part to dismiss those claims with
prejudice.
All Citations
Not Reported in Fed. Rptr., 2022 WL 4241355
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2012 WL 1977972
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Jason S. PLANCK, Plaintiff,
v.
SCHENECTADY COUNTY, et al., Defendants.
No. 1:12–CV–0336(GTS/DRH).
|
June 1, 2012.
Attorneys and Law Firms
Jason S. Planck, of Counsel, Schenectady, NY, pro se.
Goldberg Segalla LLP, Jonathan M. Bernstein, Esq., William
J. Greagan, Esq., of Counsel, Albany, NY, for Defendants.
MEMORANDUM–DECISION and ORDER
GLENN T. SUDDABY, District Judge.
*1 Currently pending before the Court, in this pro se
civil rights action filed by Jason S. Planck (“Plaintiff”)
against Schenectady County and fifteen of its legislators
(“Defendants”), are the following four motions: (1) Plaintiff's
motion for reconsideration of the Court's Decision and Order
of February 29, 2012, denying his motion for a temporary
restraining order (Dkt. No. 10); (2) Plaintiff's motion for
a report from the Court regarding the status of his motion
for reconsideration (Dkt. No. 30); (3) Plaintiff's motion for
a preliminary injunction (Dkt. No. 4); and (4) Defendants'
cross-motion to dismiss Plaintiffs' Complaint (Dkt. No. 17).
For the reasons set forth below, Plaintiffs' three motions are
denied; and Defendants' cross-motion is granted.
I. RELEVANT BACKGROUND
A. Plaintiff's Claims
Generally, when construed with the utmost of special
liberality, Plaintiff's Complaint asserts three civil rights
claims against Defendants-one claim asserting a violation
of Rehabilitation Act of 1973, and two claims asserting
violations of the Americans with Disabilities Act-arising
from Schenectady County's (“the County”) approval of
a project labor agreement (to construct a new nursing
home) that permits the hiring of only unionized construction
workers, thus discriminating against qualified nonunionized
construction workers with disabilities. (See generally Dkt.
No. 1.) Because this Decision and Order is intended primarily
for the review of the parties, and because Defendants (in
their memorandum of law) accurately describe the claims
and factual allegations asserted in Plaintiff's Complaint, the
Court will not describe those claims and factual allegations in
detail in this Decision and Order. Rather, the Court will refer
the reader to pages 1 through 3 of Defendants' memorandum
of law and paragraphs 2 through 4, and 7 through 44,
of Plaintiff's Complaint. (Dkt. No. 17, Attach. 11, at 6–8
[attaching pages “1” through “3” of Defs.' Memo. of Law];
Dkt. No. 1, at ¶¶ 2–4, 7–44.)
B. Briefing on the Parties' Motions
Because the parties have demonstrated in their memoranda of
law an adequate understanding of the legal arguments asserted
in each other's motions, the Court need not, and does not,
describe in detail those arguments in this Decision and Order.
Rather, the Court will simply make two points.
First, generally, in their cross-motion to dismiss, Defendants
assert the following three arguments: (1) Plaintiff's Complaint
should be dismissed under Fed.R.Civ.P. 12(b)(1), because
(a) the Court lacks subject-matter jurisdiction over Plaintiff's
challenge to the County's project labor agreement (which
must be presented by Plaintiff in an Article 78 proceeding
in state court), and (b) Plaintiff, who is not a qualified
construction worker but merely a taxpayer, lacks standing
to challenge the County's approval of the project labor
agreement; (2) in the alternative, Plaintiff's Complaint should
be dismissed for failure to state a claim upon which relief
can be granted under Fed.R.Civ.P. 12(b)(6), because Plaintiff
has failed to allege facts plausibly suggesting the elements
of a claim under either Rehabilitation Act of 1973 or the
Americans with Disabilities Act (particularly the element
requiring that he be a qualified individual with a disability);
and (3) in the alternative, Plaintiff's claims against the
legislative Defendants should be dismissed for failure to state
a claim upon which relief can be granted under Fed.R.Civ.P.
12(b)(6), because, based on Plaintiff's own factual allegations,
those claims are either duplicative of Plaintiff's claims against
the County or barred as a matter of law by the doctrine
of legislative immunity. (Dkt. No. 17, Attach. 11, at 8–22
[attaching pages “3” through “17” of Defs.' Memo. of Law].)
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*2 Second, in this District, when a party files a dispositive
motion (such as a motion for a preliminary injunction), 1 that
party is not entitled to file a surreply. N.D.N.Y. L.R. 7.1(b)(1).
Furthermore, when a party files a nondispositive motion (such
as a motion for reconsideration), that party is not even entitled
to file a reply, without prior leave of the Court. N.D.N.Y. L.R.
7.1(b)(2). Finally, when a party files a cross-motion (such as
a cross-motion to dismiss), that party is not entitled to file
a reply on its cross-motion without prior leave of the Court.
N.D.N.Y. L.R. 7.1(c). Even if it were permitted to file a reply,
that reply may address only the party's own cross-motion,
and not the opponent's original motion; otherwise, the “reply”
would, in part, constitute a surreply. 2 Here, the parties have
violated each of these rules, in addition to violating several
filing deadlines. (Dkt. Nos. 23, 25, 31, 32; see also Text
Notices filed March 9, 2012, and Apr. 2, 2012.) 3 As a result,
the submissions contained in Docket Numbers 23, 25, 31 and
32 will not be considered by the Court. The Court would add
only that, even if it were to consider the submissions, that
consideration would not change the outcome of this Decision
and Order.
1 See Odom v. Senkowski, 96–CV–0554, 1997
WL 458450, at *1 (N . D.N.Y. Aug. 7, 1997)
(Pooler, D.J.) (“Because Odom's request for a
preliminary injunction is a dispositive motion,
the magistrate judge's recommendations require de
novo review.”).
2 See Carlwood Dev. Inc. v. U.S., 10–CV–1773, 2011
WL 69374, at *1 (D.Nev. Jan. 10, 2011) (denying
petitioner's motion to strike government's improper
“cross-motion”—which did not “address[ ] any
matters even remotely indicative of a motion for
summary judgment” but rather merely responded
to the matters raised by the petitioners in their
opening brief-because “rather than striking any
portion of the [‘cross-motion’] itself, the Court
will merely construe [it] as only a response to
the [petitioner's] opening brief, and not a cross-
motion,” and strike the government's unauthorized
reply on its improper cross-motion as “nothing
more than a disingenuous attempt to get the last
word”).
3 The Court notes that, on February 28, 2012,
Plaintiff receive a courtesy copy of the Local Rules
of Practice for this Court. (See Docket Entry dated
Feb. 28, 2012; Dkt. No. 9.)
II. ANALYSIS
A. Motion for Reconsideration
Generally, there are only three grounds upon which a district
court may justifiably reconsider its previous ruling: (1) an
intervening change in controlling law, (2) new evidence, or
(3) a demonstrated need to correct a clear error of law or to
prevent manifest injustice. U.S. v. Sanchez, 35 F.3d 673, 677
(2d Cir.1994), cert. denied, 514, U.S. 1038 (1995).
Here, after carefully considering the matter, Plaintiff's motion
for reconsideration is denied for each of the numerous reasons
offered by Defendants in their memorandum of law: Plaintiff
has not satisfied the above-described standard. (Dkt. No. 17,
Attach. 11, at 15–18 [attaching pages “10” through “13” of
Defs.' Memo. of Law].)
The Court would add two alternative grounds for the denial
of Plaintiff's motion. First, Plaintiff's motion is unsupported
by a memorandum of law that is separate and apart from
an affidavit, in violation of Local Rule 7.1. The Court notes
that an affidavit may not contain legal argument. N.D.N.Y.
L.R. 7.1(a)(2). Second, Plaintiff's motion is moot in that it
seeks an order restraining Defendants from acting between a
discrete time period (i.e., the time of the Court's decision on
Plaintiff's motion a temporary restraining order and the time
of the Court's decision on Plaintiff's motion for a preliminary
injunction), which has, as of the date of this Decision and
Order, already expired.
Finally, the Court notes that Plaintiff's motion for
reconsideration also requested oral argument, and/or an
expedited decision, on Plaintiff's motion for reconsideration.
That request is denied as unsupported by a showing of cause
and/or moot.
B. Motion for a Status Report from the Court
*3 After carefully considering the matter, Plaintiff's motion
for a status report from the Court is denied as unsupported by
a showing of cause and/or moot.
C. Motion for a Preliminary Injunction
Generally, the issuance of a preliminary injunction pursuant
to Fed.R.Civ.P. 65 depends on the movant's demonstration of
(1) irreparable harm and (2) either a likelihood of success on
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the merits, or a sufficiently serious question as to the merits of
the case to make it a fair ground for litigation and a balance of
hardships tipping decidedly in its favor. Tom Doherty Assoc.,
Inc. v. Saban Entm't, Inc., 60 F.3d 27, 33 (2d Cir.1995).
Here, after carefully considering the matter, Plaintiff's
motion for a preliminary injunction is denied for each
of the numerous reasons offered by Defendants in their
memorandum of law: Plaintiff has not satisfied the above-
described standard: on the current record, Plaintiff has not
established either irreparable harm or a likelihood of success
on the merits. (Dkt. No. 17, Attach. 11, at 18–22 [attaching
pages “13” through “17” of Defs.' Memo. of Law] .) Of
particular concern to the Court is this latter deficiency (i.e.,
Plaintiff's failure to show a likelihood of success on the
merits), which is exacerbated by the various substantive
pleading defects in his Complaint. The Court would add
only that, even setting aside these pleading defects, following
the Court's denial of Plaintiff's motion for a temporary
restraining order, Plaintiff did not supplement the record
with the sufficient evidence to warrant a contrary finding.
(Compare Dkt. No. 1 and Dkt. No. 4 with Dkt. No. 10 and
Dkt. No. 22.)
D. Defendants' Cross–Motion to Dismiss
1. Legal Standard Governing Dismissal for Lack of
Subject–Matter Jurisdiction Pursuant to Fed.R.Civ.P.
12(b)(1)
“It is a fundamental precept that federal courts are courts
of limited jurisdiction.” Owen Equip. & Erection Co. v.
Kroger, 437 U.S. 365, 374 (1978). Generally, a claim may
be properly dismissed for lack of subject-matter jurisdiction
where a district court lacks constitutional or statutory power
to adjudicate it. Makarova v. U.S., 201 F.3d 110, 113 (2d
Cir.2000). A district court may look to evidence outside
of the pleadings when resolving a motion to dismiss for
lack of subject-matter jurisdiction. Makarova, 201 F.3d at
113. The plaintiff bears the burden of proving subject-matter
jurisdiction by a preponderance of the evidence. Makarova,
201 F.3d at 113 (citing Malik v. Meissner, 82 F.3d 560, 562
[2d Cir.1996] ). When a court evaluates a motion to dismiss
for lack of subject-matter jurisdiction, all ambiguities must
be resolved and inferences drawn in favor of the plaintiff.
Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635,
638 (2d Cir.2005) (citing Makarova, 201 F .3d at 113).
The Court notes that challenges to a litigant's standing
are properly raised on a motion for lack of subject-matter
jurisdiction. See Alliance for Envtl. Renewal, Inc. v. Pyramid
Crossgates Co., 436 F.3d 82, 88–89 & n. 6 (2d Cir.2006)
(“Although we have noted that standing challenges have
sometimes been brought under Rule 12(b)(6), as well as Rule
12(b)(1), ... the proper procedural route is a motion under
Rule 12(b)(1).”); A.C. v. Mattingly, 05–CV–2986, 2007 WL
894268, at *3 (S.D.N.Y. March 20, 2007) (“The argument of
lack of standing is properly raised under Rule 12(b)(1).”).
2. Legal Standard Governing Dismissal for Failure to
State a Claim Upon Which Relief Can Be Granted,
Pursuant to Fed.R.Civ.P. 12(b)(6)
*4 It has long been understood that a dismissal for failure
to state a claim, pursuant to Fed.R.Civ.P. 12(b)(6), may be
based on either or both of two grounds: (1) a challenge to
the “sufficiency of the pleading” under Fed.R.Civ.P. 8(a)
(2); or (2) a challenge to the legal cognizability of the
claim. Jackson v. Onondaga County, 549 F.Supp.2d 204, 211,
nn. 15–16 (N.D.N.Y.2008) (McAvoy, J., adopting Report–
Recommendation on de novo review) [citations omitted].
With regard to the first ground, Fed.R.Civ.P. 8(a)(2) requires
that a pleading contain “a short and plain statement of
the claim showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2) [emphasis added]. By requiring this
“showing,” Fed.R.Civ.P. 8(a)(2) requires that the pleading
contain a short and plain statement that “give[s] the defendant
fair notice of what the plaintiff's claim is and the grounds upon
which it rests.” Jackson, 549 F.Supp.2d at 212, n. 17 [citations
omitted]. The main purpose of this rule is to “facilitate a
proper decision on the merits.” Id. at 212, n. 18 [citations
omitted]. 4
4 See also Simmons v. Abruzzo, 49 F.3d 83, 86 (2d
Cir.1995) ( “Fair notice is that which will enable the
adverse party to answer and prepare for trial, allow
the application of res judicata, and identify the
nature of the case so it may be assigned the proper
form of trial.”) [citation omitted]; Salahuddin v.
Cuomo, 861 F .2d 40, 42 (2d Cir.1988) (“[T]he
principle function of pleadings under the Federal
Rules is to give the adverse party fair notice of the
claim asserted so as to enable him to answer and
prepare for trial.”) [citations omitted].
The Supreme Court has long characterized this pleading
requirement under Fed.R.Civ.P. 8(a)(2) as “simplified” and
“liberal,” and has repeatedly rejected judicially established
pleading requirements that exceed this liberal requirement. Id.
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at 212, n. 20 [citations omitted]. However, even this liberal
notice pleading standard “has its limits.” Id. at 212, n. 21
[citations omitted]. As a result, numerous Supreme Court and
Second Circuit decisions exist holding that a pleading has
failed to meet this liberal notice pleading standard. Id. at 213,
n. 22 [citations omitted]; see also Ashcroft v. Iqbal, 129 S.Ct.
1937, 1949–52 (2009).
Most notably, in Bell Atlantic Corp. v. Twombly, the Supreme
Court reversed an appellate decision holding that a complaint
had stated an actionable antitrust claim under 15 U.S.C. §
1. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007). In
doing so, the Court “retire[d]” the famous statement by the
Court in Conley v. Gibson, 355 U.S. 41, 45–46 (1957), that “a
complaint should not be dismissed for failure to state a claim
unless it appears beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle
him to relief.” Twombly, 127 S.Ct. at 1968–69. Rather than
turning on the conceivability of an actionable claim, the Court
clarified, the “fair notice” standard turns on the plausibility
of an actionable claim. Id. at 1965–74. The Court explained
that, while this does not mean that a pleading need “set out in
detail the facts upon which [the claim is based],” it does mean
that the pleading must contain at least “some factual allegation
[s].” Id . at 1965 [citations omitted]. More specifically, the
“[f]actual allegations must be enough to raise a right to relief
above the speculative level [to a plausible level],” assuming
(of course) that all the allegations in the complaint are true.
Id. [citations omitted]. 5
5 See also Iqbal v. Hasty, 490 F.3d 143, 157–58 (2d
Cir.2007) ( “[The Supreme Court] is not requiring
a universal standard of heightened fact pleading,
but is instead requiring a flexible ‘plausibility
standard,’ which obliges a pleader to amplify
a claim with some factual allegations in those
contexts where such amplification is needed to
render the claim plausible.” ).
*5 As have other Circuits, the Second Circuit has recognized
that the clarified plausibility standard that was articulated by
the Supreme Court in Twombly governs all claims, including
claims brought by pro se litigants (although the plausibility
of those claims is to be assessed generously, in light of
the special solicitude normally afforded pro se litigants). 6
It should be emphasized that Fed.R.Civ.P. 8's plausibility
standard, explained in Twombly, was in no way retracted or
diminished by the Supreme Court's decision (two weeks later)
in Erickson v. Pardus, in which (when reviewing a pro se
pleading) the Court stated, “Specific facts are not necessary”
to successfully state a claim under Fed.R.Civ.P. 8(a)(2).
Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007) [citation
omitted; emphasis added]. That statement was merely an
abbreviation of the often-repeated point of law—first offered
in Conley and repeated in Twombly—that a pleading need not
“set out in detail the facts upon which [the claim is based]”
in order to successfully state a claim. Twombly, 127 S.Ct.
1965, n. 3 (citing Conley, 355 U.S. at 47) [emphasis added].
That statement did not mean that all pleadings may achieve
the requirement of “fair notice” without ever alleging any
facts whatsoever. Clearly, there must still be enough fact set
out (however set out, whether in detail or in a generalized
fashion) to raise a right to relief above the speculative level
to a plausible level. 7
6 See, e.g., Jacobs v. Mostow, 271 F. App'x 85, 87
(2d Cir. March 27, 2008) (in pro se action, stating,
“To survive a motion to dismiss, a complaint
must plead ‘enough facts to state a claim to
relief that is plausible on its face.’ ”) [citation
omitted] (summary order, cited in accordance with
Rule 32.1[c][1] of the Local Rules of the Second
Circuit); Boykin v. KeyCorp., 521 F.3d 202, 215–
16 (2d Cir.2008) (finding that borrower's pro se
complaint sufficiently presented a “plausible claim
of disparate treatment,” under Fair Housing Act, to
give lenders fair notice of her discrimination claim
based on lenders' denial of her home equity loan
application) [emphasis added].
7 For example, in Erickson, the Supreme Court
held that, because the plaintiff-prisoner had
alleged that, during the relevant time period,
he suffered from hepatitis C, he had alleged
facts plausibly suggesting that he possessed a
sufficiently serious medical need for purposes of
an Eighth Amendment claim of inadequate medical
care. Erickson, 127 S.Ct. at 2199–2200. Expressed
differently, the Court held that such a plaintiff need
not also allege that he suffered an independent and
“substantial injury” as a result of the termination of
his hepatitis C medication (a requirement that had
been imposed by the district court). This point of
law is hardly a novel one, which is presumably why
the Erickson decision was relatively brief. Prior to
the Supreme Court's decision, numerous decisions,
from district courts within the Second Circuit
alone, had found that suffering from hepatitis
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C constitutes having a serious medical need for
purposes of the Eighth Amendment. See, e.g., Rose
v. Alvees, 01–CV–0648, 2004 WL 2026481, at *6
(W.D.N.Y. Sept. 9, 2004); Verley v. Goord, 02–CV–
1182, 2004 WL 526740, at *10 n. 11 (S.D.N.Y. Jan.
23, 2004); Johnson v. Wright, 234 F.Supp.2d 352,
360 (S.D.N.Y.2002); McKenna v. Wright, 01–CV–
6571, 2002 WL 338375, at *6 (S.D.N.Y. March
4, 2002); Carbonell v. Goord, 99–CV–3208, 2000
WL 760751, at *9 (S.D.N.Y. June 13, 2000). The
important thing is that, in Erickson, even the pro se
plaintiff was required to allege some sort of fact.
In reviewing a complaint for dismissal under Fed.R.Civ.P.
12(b)(6), the court must accept the material facts alleged in
the complaint as true and construe all reasonable inferences
in the plaintiff's favor. This standard is applied with even
greater force where the plaintiff alleges civil rights violations
and/or where the complaint is submitted pro se. However,
while the special leniency afforded to pro se civil rights
litigants somewhat loosens the procedural rules governing the
form of pleadings (as the Second Circuit has observed), 8
it does not completely relieve a pro se plaintiff of the duty
to satisfy the pleading standards set forth in Fed.R.Civ.P. 8,
10 and 12. 9 Rather, as both the Supreme Court and Second
Circuit have repeatedly recognized, the requirements set forth
in Fed.R.Civ.P. 8, 10 and 12 are procedural rules that even
pro se civil rights plaintiffs must follow. 10 Stated more
plainly, when a plaintiff is proceeding pro se, “all normal
rules of pleading are not absolutely suspended.” Jackson, 549
F.Supp.2d at 214, n. 28 [citations omitted].
8 Sealed Plaintif v. Sealed Defendant # 1, No. 06–
1590, 2008 WL 3294864, at *5 (2d Cir. Aug. 12,
2008); see also Traguth v. Zuck, 710 F.2d 90, 95 (2d
Cir.1983).
9 See Prezzi v. Schelter, 469 F.2d 691, 692 (2d
Cir.1972) (extra liberal pleading standard set
forth in Haines v. Kerner, 404 U.S. 519 [1972],
did not save pro se complaint from dismissal
for failing to comply with Fed.R.Civ.P. 8);
accord, Shoemaker v. State of Cal., 101 F.3d
108 (2d Cir.1996) (citing Prezzi v. Schelter, 469
F.2d 691) [unpublished disposition cited only to
acknowledge the continued precedential effect of
Prezzi v. Schelter, 469 F.2d 691, within the Second
Circuit]; accord, Praseuth v. Werbe, 99 F.3d 402
(2d Cir.1995).
10 See McNeil v. U.S., 508 U.S. 106, 113 (1993)
(“While we have insisted that the pleadings
prepared by prisoners who do not have access to
counsel be liberally construed ... we have never
suggested that procedural rules in ordinary civil
litigation should be interpreted so as to excuse
mistakes by those who proceed without counsel.”);
Faretta v. California, 422 U.S. 806, 834, n. 46
(1975) (“The right of self-representation is not a
license ... not to comply with relevant rules of
procedural and substantive law.”); Triestman v.
Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d
Cir.2006) (pro se status “does not exempt a party
from compliance with relevant rules of procedural
and substantive law”) [citation omitted], accord,
Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.1983);
cf. Phillips v. Girdich, 408 F.3d 124, 128, 130
(2d Cir.2005) (acknowledging that pro se plaintiff's
complaint could be dismissed for failing to comply
with Rules 8 and 10 if his mistakes either
“undermine the purpose of notice pleading [ ]or
prejudice the adverse party”).
Finally, a few words are appropriate regarding what
documents are considered when a dismissal for failure to state
a claim is contemplated. Generally, when contemplating a
dismissal pursuant to Fed.R.Civ.P. 12(b)(6) or Fed.R.Civ.P.
12(c), the following matters outside the four corners of
the complaint may be considered without triggering the
standard governing a motion for summary judgment: (1)
documents attached as an exhibit to the complaint or answer,
(2) documents incorporated by reference in the complaint
(and provided by the parties), (3) documents that, although
not incorporated by reference, are “integral” to the complaint,
or (4) any matter of which the court can take judicial notice
for the factual background of the case. 11 Moreover, in the
Second Circuit, a pro se plaintiff's papers in response to a
defendant's motion to dismiss for failure to state a claim may
be considered as effectively amending the allegations of his
complaint-to the extent those papers are consistent with the
allegations in the complaint. 12
11 See Fed.R.Civ.P. 10(c) (“A copy of any written
instrument which is an exhibit to a pleading is
a part thereof for all purposes.”); L–7 Designs,
Inc. v. Old Navy, LLC, No. 10–573, 2011 WL
2135734, at *1 (2d Cir. June 1, 2011) (explaining
that conversion from a motion to dismiss for
failure to state a claim to a motion for summary
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judgment is not necessary under Fed.R.Civ.P. 12[d]
if the “matters outside the pleadings” in consist
of [1] documents attached to the complaint or
answer, [2] documents incorporated by reference
in the complaint (and provided by the parties),
[3] documents that, although not incorporated by
reference, are “integral” to the complaint, or [4]
any matter of which the court can take judicial
notice for the factual background of the case);
DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104,
111 (2d Cir.2010) (explaining that a district court
considering a dismissal pursuant to Fed. R. Civ.
12(b)(6) “may consider the facts alleged in the
complaint, documents attached to the complaint as
exhibits, and documents incorporated by reference
in the complaint.... Where a document is not
incorporated by reference, the court may neverless
consider it where the complaint relies heavily
upon its terms and effect, thereby rendering the
document ‘integral’ to the complaint.... However,
even if a document is ‘integral’ to the complaint,
it must be clear on the record that no dispute
exists regarding the authenticity or accuracy of the
document. It must also be clear that there exist
no material disputed issues of fact regarding the
relevance of the document.”) [internal quotation
marks and citations omitted]; Chambers v. Time
Warner, Inc., 282 F.3d 147, 152 (2d Cir.2009)
(“The complaint is deemed to include any written
instrument attached to it as an exhibit or any
statements or documents incorporated in it by
reference.”) (internal quotation marks and citations
omitted); Int'l Audiotext Network, Inc. v. Am. Tel. &
Tel. Co., 62 F.3d 69, 72 (2d Cir.1995) (per curiam)
(“[W]hen a plaintiff chooses not to attach to the
complaint or incorporate by reference a [document]
upon which it solely relies and which is integral
to the complaint,” the court may nevertheless take
the document into consideration in deciding [a]
defendant's motion to dismiss, without converting
the proceeding to one for summary judgment.”)
(internal quotation marks and citation omitted).
12 See Drake v. Delta Air Lines, Inc., 147 F.3d
169, 170 n. 1 (2d Cir.1998) (per curiam) (“[W]e
deem Drake's complaint to include the facts
contained in his memorandum of law filed in
response to Delta's 1996 motion to dismiss.”);
Gill v. Mooney, 824 F.2d 192, 195 (2d Cir.1987)
( “In his affidavit submitted in opposition to
defendants' motion to dismiss, Gill asserts that
Mooney's actions amounted to deliberate and
willful indifference. Liberally construed under pro
se pleading standards, Gill's allegations against
Mooney involve more than ordinary lack of due
care for the prisoner's interests or safety, ... and
therefore state a colorable claim under the Eighth
and Fourteenth Amendments.”) (internal quotation
marks and citation omitted); Donhauser v. Goord,
314 F.Supp.2d 119, 212 (N.D.N.Y.) (Sharpe, M.J.)
(“[I]n cases where a pro se plaintiff is faced with
a motion to dismiss, it is appropriate for the court
to consider materials outside of the complaint to
the extent they “are consistent with the allegations
in the complaint.”) (collecting district court cases),
vacated on other grounds, 317 F.Supp.2d 160
(N.D.N.Y.2004) (Hurd, J.).
3. Analysis
*6 After carefully considering the matter, and applying
the above-described legal standard, Plaintiff's motion for
a preliminary injunction is denied for each of the
three alternative reasons offered by Defendants in their
memorandum of law. See, supra, Part I.B. of this Decision
and Order (summarizing those reasons).
The Court would add only two points. First, although Plaintiff
attaches 97 pages of exhibits in his opposition to Defendants'
motion to dismiss for failure to state a claim, and a 23–
page memorandum of law, the Court either (1) does not
construe the allegations in those documents as consistent
with the allegations in Plaintiff's Complaint or (2) finds the
allegations in those documents to be insufficient to rescue
the pleading defects contained in Plaintiff's claims. Second,
although Plaintiff appears to now largely hinge his claims on
Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999), and/or
Fed.R.Civ.P. 23, the Court finds that reliance to be misplaced.
(Dkt. No. 22, Attach. 1, at 4–8 .)
4. Whether Dismissal Should Be With or Without
Prejudice
Generally, when a district court dismisses a pro se action sua
sponte, the plaintiff will be allowed to amend his action. See
Gomez v. USAA Fed. Savings Bank, 171 F.3d 794, 796 (2d
Cir.1999). However, an opportunity to amend is not required
where the plaintiff has already been afforded the opportunity
to amend. 13
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13 Shuler v. Brown, 07–CV–0937, 2009 WL 790973,
at *5 & n. 25 (N.D.N.Y. March 23, 2009) (McAvoy,
J., adopting Report–Recommendation by Lowe,
M.J.) (“Of course, an opportunity to amend is not
required where the plaintiff has already amended
his complaint.”), accord, Smith v. Fischer, 07–
CV–1264, 2009 WL 632890, at *5 & n. 20
(N.D.N.Y. March 9, 2009) (Hurd, J., adopting
Report–Recommendation by Lowe, M.J.); Abascal
v. Hilton, 04–CV–1401, 2008 WL 268366, at *8
(N.D.N.Y. Jan. 130 2008) (Kahn, J., adopting, on de
novo review, Report–Recommendation by Lowe,
M.J.); see also Yang v. New York City Trans. Auth.,
01–CV–3933, 2002 WL 31399119, at *2 (E.D.N.Y.
Oct. 24, 2002) (denying leave to amend where
plaintiff had already amended complaint once);
Advanced Marine Tech. v. Burnham Sec., Inc., 16
F.Supp.2d 375, 384 (S.D.N.Y.1998) (denying leave
to amend where plaintiff had already amended
complaint once); cf. Foman v. Davis, 371 U.S. 178,
182 (1962) (denial of leave to amend not abuse
of discretion movant has repeatedly failed to cure
deficiencies in pleading).
Moreover, an opportunity to amend is not required where the
defects in the plaintiff's claims are substantive rather than
merely formal, such that any amendment would be futile.
As the Second Circuit has explained, “[w]here it appears
that granting leave to amend is unlikely to be productive, ...
it is not an abuse of discretion to deny leave to amend.”
Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d
Cir.1993) (citations omitted). 14 This rule applies even to pro
se plaintiffs. See, e.g., Cuoco, 222 F.3d at 103; Brown, 1997
WL 599355 at * 1.
14 Accord, Brown v. Peters, 95–CV–1641, 1997 WL
599355, at *1 (N.D.N.Y. Sept. 22, 1997) (Pooler,
J.) (“[T]he court need not grant leave to amend
where it appears that amendment would prove to be
unproductive or futile.”) (citation omitted); see also
Foman v. Davis, 371 U.S. 178, 182 (1962) (denial
not abuse of discretion where amendment would be
futile); Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d
Cir.2000) (“The problem with Cuoco's causes of
action is substantive; better pleading will not cure
it. Repleading would thus be futile. Such a futile
request to replead should be denied.”) (citation
omitted); Cortec Indus., Inc. v. Sum Holding L.P.,
949 F.2d 42, 48 (2d Cir.1991) (“Of course, where
a plaintiff is unable to allege any fact sufficient to
support its claim, a complaint should be dismissed
with prejudice.”) (citation omitted); Health–Chem
Corp. v. Baker, 915 F.2d 805, 810 (2d Cir.1990)
( “[W]here ... there is no merit in the proposed
amendments, leave to amend should be denied”).
Here, the Court finds that the pleading deficiency in Plaintiff's
claims are substantive and not merely formal. As an
initial matter, lack of subject-matter jurisdiction is generally
viewed as a substantive defect. 15 Even if the Court did
possess subject-matter jurisdiction over Plaintiff's claims,
the pleading defects in those detailed claims still appear
substantive. For example, it does not appear to the Court
that granting Plaintiff leave to amend his claims would likely
be productive. Setting aside the fact that he has failed to
correct those defects despite having had months in which to
do so, the fact remains that he appears to insist on asserting
nonactionable claims, rendering any amendment futile. (See
generally Dkt. No. 22, Attach. 1.) As a result, the Court
declines to afford Plaintiff an opportunity to amend his
Complaint prior to dismissal.
15 See U.S. ex rel. Phipps v. Comprehensive
Comty. Dev. Corp., 152 F.Supp.2d 443, 455
(S.D.N.Y.2001) (“[I]t is not appropriate to grant
Phipps's request [for leave to amend the Complaint]
because the Court has determined that it does
not have subject matter jurisdiction over this
action.”); Chan v. Reno, 916 F.Supp. 1289, 1302
(S.D.N.Y.1996) (“An amendment is considered
futile if the amended pleading fails to state
a claim or would be subject to a successful
motion to dismiss on some other basis. As
will be discussed herein, [the proposed amended
complaint] ... presents a non-justiciable claim and
fails to present this Court with subject matter
jurisdiction. Therefore, because [the proposed
amended complaint] would be subject to a
successful motion to dismiss ..., amendment would
be futile.”).
However, because Defendants argued persuasively that
Plaintiff should have presented his challenge to the County's
project labor agreement in an Article 78 proceeding in
state court, the Court dismisses Plaintiff's claims against the
County without prejudice to refiling in state court within
thirty (30) days of this Decision and Order. 16
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16 The Court notes that, in addition, it expresses no
opinion as to the merits of any claim, arising in the
future, that Plaintiff may or may not bring pursuant
to Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581
(1999).
*7 ACCORDINGLY, it is
ORDERED that Plaintiff's motion for reconsideration of the
Court's Decision and Order of February 29, 2012, denying
his motion for a temporary restraining order (Dkt. No. 10) is
DENIED; and it is further
ORDERED that Plaintiff's motion for a report from the Court
regarding the status of his motion for reconsideration (Dkt.
No. 30) is DENIED; and it is further
ORDERED that Plaintiff's motion for a preliminary
injunction (Dkt. No. 4) is DENIED; and it is further
ORDERED that Defendants' cross-motion to dismiss
Plaintiffs' Complaint (Dkt. No. 17) is GRANTED; and it is
further
ORDERED that Plaintiff's Complaint (Dkt. No. 1) is
DISMISSED with prejudice EXCEPT for his claims
against Schenectady County, which are DISMISSED
without prejudice to refiling in state court within THIRTY
(30) DAYS of this Decision and Order.
The Court hereby certifies, for purposes of 28 U.S.C. §
1915(a) (3), that any appeal taken from this Decision and
Order would not be taken in good faith.
All Citations
Not Reported in F.Supp.2d, 2012 WL 1977972
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