U.S. Bank, National Association, as Legal Title Trustee for Truman 2016 SC6 Title Trust v. Amelio et al

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
__________________________________________________________________
U.S. Bank, National Association,
As Legal Title Trustee For Truman
2016 SC6 Title Trust,
Plaintiff, 	6:26-CV-0070
v. 	(MAD/MJK)
Carmine P. Amelio, Paul A. Amelio,
Alfonso Amelio, Mortgage
Electronic Registration Systems, Inc.
Quicken Loans, Inc., et al.
Defendants.
__________________________________________________________________
Carmine P. Amelio, Paul A. Amelio, and
Alfonso Amelio, pro se Defendants
Sean K. Monahan, Esq., for Plaintiffs
Mitchell J. Katz, U.S. Magistrate Judge
To The Honorable Mae A. D’Agostino, U.S. District Judge:
ORDER AND REPORT-RECOMMENDATION
Currently before the Court is: (1) Plaintiff’s motion to remand (Dkt.
18); (2) Defendants Carmine P. Amelio, Paul A. Amelio, and Alfonso
Amelio’s (collectively referred to as “Amelio Defendants”) Emergency
Supplemental Motion for Temporary Restraining Order to Enforce Removal
of Stay and Declare Post-Removal Foreclosure Sale Void (Dkt. 19);
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(3) Defendant Carmine P. Amelio’s application to proceed in forma pauperis
(“IFP Application”) (Dkt. 3); and (4) the Amelio Defendants’ Motion to
Enforce Removal of Stay and to Declare Post-Removal State Court Action
Null and Void (Dkt. 7). On March 10, 2026 United States District Judge
Mae A. D’Agostino referred this matter to me for Report and
Recommendation pursuant to 28 U.S.C. § 636(b).
For the following reasons, this Court recommends that: (1) the Amelio
Defendants’ Notice of Removal (Dkt. 1) be dismissed with prejudice; (2) the
Amelio Defendants’ Emergency Supplemental Motion for Temporary
Restraining Order to Enforce Removal of Stay and Declare Post-Removal
Foreclosure Sale Void (Dkt. 19) be denied with prejudice; and (3) Plaintiff’s
Motion to Remand (Dkt. 18) be denied as moot. The Court also: (1) grants
Defendant Carmine P. Amelio’s IFP Application (Dkt. 3); and (2) denies
with prejudice the Amelio Defendants’ Motion to Enforce Removal of Stay
and to Declare Post-Removal State Court Action Null and Void (Dkt. 7).
I. 	FACTS
The following facts are relevant to the Court’s analysis of the
parties’ motions:
• 	On December 22, 2022, Plaintiff commenced a foreclosure
action in New York Supreme Court, County of Oneida, Index
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No. EFCA2023-000004, to foreclose on a note executed by
Defendant Paul A. Amelio and mortgage executed by
Defendants Paul A. Amelio, Carmine Amelio, and Alfonso
Amelio and secured by certain property located in
Whitesboro, NY. (Dkt. 18-1).
• 	On October 17, 2023, Defendant Alfonso Amelio was served
with the Summons and Complaint at 32 Main Street, New
Milford, CT 06776 pursuant to CPLR § 308(4). The required
mailing was done on October 18, 2023 and the affidavit of
service was filed on October 26, 2023. (Dkt. 18-3, pgs. 16-17).
Defendant Alfonso Amelio was served with an additional
copy of the Summons and Complaint on October 18, 2023 at
13 Academy Avenue, Middletown, NY 10940 via a person of
suitable age and discretion under CPLR § 308(2). The
additional mailing was done on October 19, 2023 and the
affidavit of service was filed on October 26, 2023. (Dkt. 18-3,
pgs. 13-14).
• 	On January 18, 2023, Defendant Carmine Amelio was
served with the Summons and Complaint at 4915 Clinton
Road, Whitesboro, NY pursuant to CPLR § 308(4). The
requisite mailing was done on January 18, 2023 and the
affidavit of service was filed on January 19, 2023. (Dkt. 18-3,
pg. 2).
Defendant Carmine Amelio was served with an additional
copy of the Summons and Complaint on June 22, 2024 at 32
Main Street, New Milford, CT 06776 under CPLR § 308(4).
The requisite mailing was done on June 26, 2024 and the
affidavit of service was filed on June 27, 2024. (Dkt. 18-3,
pgs. 10-11).
• 	On October 17, 2023, Defendant Paul Amelio was served
with the Summons and Complaint at 32 Main Street, New
Milford, CT 06776 under CPLR § 308(4). The requisite
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mailing was done on October 18, 2023 and the affidavit of
service was filed on October 26, 2023. (Dkt. 18-3, pgs. 3-4).
Defendant Paul Amelio was served with an additional copy
of the Summons and Complaint on October 11, 2023 at 401
E. 34th Street, Apt N11B, New York, NY 10016 via a person
of suitable age and discretion under CPLR § 308(2). The
requisite mailing was done on October 16, 2023 and the
affidavit of service was filed on October 18, 2023. (Dkt. 18-3,
pgs. 6-7).
• 	On December 20, 2024, Plaintiff filed a motion for a default
judgment and order of reference in Oneida County Supreme
Court. The Amelio Defendants did not oppose the motion.
(Dkt. 18-1, Monahan Decl., ¶ 7).
• 	On February 13, 2025, Oneida County Supreme Court
granted Plaintiff’s motion and entered a default judgment
and order of reference. (Id.). Notice of entry was served on
March 17, 2025. (Dkt. 18-4). The Amelio Defendants did not
appeal and their time to do so has expired. (Dkt. 18-1,
Monahan Decl., ¶ 7).
• 	On September 17, 2025, Plaintiff filed a motion for a
judgment of foreclosure and sale. The Amelio Defendants did
not oppose Plaintiff’s motion. (Dkt. 18-1, Monahan Decl., ¶
8).
• 	On October 17, 2025, Oneida County Supreme Court granted
Plaintiff’s motion and entered a judgment of foreclosure and
sale. (Dkt. 18-5, pgs.7-16). Notice of entry was served on
October 28, 2025. (Dkt. 18-5). The Amelio Defendants did
not appeal and their time to do so has expired. (Dkt. 18-1,
Monahan Decl., ¶ 8).
• 	A foreclosure sale was scheduled for January 14, 2026. (Dkt.
18-1, Monahan Decl., ¶ 9). The notice of sale was served on
Defendants. (Dkt. 18-6).
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• 	On December 31, 2025, Defendant Carmine Amelio filed a
proposed order to show cause to vacate the judgment of
foreclosure and sale. (Dkt. 18-1, Monahan Decl., ¶ 10). On
January 8, 2026, Oneida County Supreme Court declined to
sign the proposed order to show cause and ordered that the
foreclosure sale scheduled for January 14, 2026 may proceed
without stay or restraint. (Dkt. 18-7).
• 	On January 9, 2026, the Amelio Defendants filed a motion to
vacate the judgment of foreclosure and sale and dismiss the
action. (Dkt. 18-1, Monahan Decl., ¶ 11). On January 12,
2026, Oneida County Supreme Court denied the motion with
prejudice for the same reasons stated in its January 8, 2026
decision. (Dkt. 18-8).
• 	On January 14, 2026, the mortgaged premises was sold at
the foreclosure sale to Plaintiff. (Dkt. 18-1, Monahan Decl., ¶
12, Dkt. 18-9).
• 	On January 14, 2026, the Amelio Defendants filed a notice of
removal with the District Court for the Northern District of
New York. (Dkt. 1).1 2
1 Paragraph “13” of the Monahan Declaration incorrectly notes that the notice of
removal was filed in the Southern District. (Dkt. 18-1, Monahan Decl., ¶13).
2 Page “4” of Plaintiff’s Memorandum of Law incorrectly states that only Defendant
Carmine Amelio signed the notice of removal. Compare (Dkt 18-10, pg. 4) with (Dkt.
1, pg. 6)
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II. 	DISCUSSION
A. The Amelio Defendants’ removal is untimely.
This Court recommends that the District Court dismiss the
Amelio Defendants’ Notice of Removal (Dkt. 1) with prejudice because it
is untimely.
28 U.S.C. § 1446(b)(1) provides:
The notice of removal of a civil action or proceeding shall be filed
within 30 days after the receipt by the defendant, through service
or otherwise, of a copy of the initial pleading setting forth the
claim for relief upon which such action or proceeding is based, or
within 30 days after the service of summons upon the defendant if
such initial pleading has then been filed in court and is not
required to be served on the defendant, whichever period is
shorter.
The 30-day in 28 U.S.C. § 1446(b)(1) begins to run when the last
defendant is served. See Pietrangelo v. Alvas Corp., 686 F,3d 62 (2d Cir.
2012). “If a notice of removal is untimely, the case must be remanded to
the state court.” Abbo-Bradley v. City of Niagara Falls, 73 F.4th 143,
146 (2d Cir. 2023) (citing 28 U.S.C. § 1447). Here, service on Defendant
Carmine Amelio, the last served defendant, was completed on June 26,
2024 (Dkt. 18-3, pgs. 10). Accordingly, the Amelio Defendants had until
approximately July 26, 2024 to remove Plaintiff’s state court complaint.
Instead, the Amelio Defendants waited until January 14, 2026, more
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than 18 months after Defendant Carmine Amelio was served to remove
this case from Oneida County Supreme Court to this Court. Because the
Amelio Defendants waited 18 months, this Court recommends that the
District Court find their removal untimely.
B. The entry of a judgment of foreclosure and sale
precludes the Amelio Defendants’ removal.
Even if the District Court finds that the Amelio Defendants timely
filed their removal petition, it should nevertheless be dismissed with
prejudice because Oneida County Supreme Court entered a final
judgment which cannot be removed to federal court.
“[R]emoval is not authorized after final judgment is entered in a
state action. . . . [O]nly ‘pending’ actions may be removed from state to
federal court.” Deutsche Bank Nat’l Trust Co, as Tr. for Morgan Stanly
Mortg. Loan Trust. 2005-10 v. Reddy, No. 3:23-CV-0979, 2023 WL
8253767, at *3 (D. Conn. Nov. 29, 2023) (quoting § 1441(a)); see also
Meghila, LLC v. Chalek, No. 1:24-CV-8986 (LTS), 2025 WL 436677, at
*2 (S.D.N.Y. Jan. 13, 2025) (“[R]emoval is improper once the state court
has entered judgment.”); Williams v. Audubon TP4 LLC, No. 1:23-CV-
8758, 2023 WL 8528552, at *6-7 (S.D.N.Y. Dec. 5. 2023). “[I]t would be a
perversion of the removal process to allow a litigant who is subject to a
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final judgment to remove that final judgment to the federal courts for
further litigation.” Four Keys Leasing & Maintenance Corp. v. Simithis,
849 F.2d 770, 774 (2d Cir. 1988). “‘A judgment of foreclosure and sale is
final as to all questions at issue between the parties, and concludes all
matters of defense which were or could have been litigated in the
foreclosure action.’” Tromba v. Eastern Fed. Sav. Bank, FSB, 148
A.D.3d 753 (2nd Dept. 2017) (quoting Ciraldo v. JP Morgan Chase
Bank, N.A., 140 A.D.3d 912 (2nd Dept 2016)); see also Citibank, N.A. v.
Swiatkoski, No. 04-CV-5122, 2005 WL 6796770, at *2 (E.D.N.Y. Mar.
18, 2005) (remanding foreclosure action where New York Supreme
Court had already entered judgment of foreclosure and appeal was
pending when notice of removal was filed), aff'd 160 Fed. Appx. 30 (2d
Cir. 2005).
Here, the Hon. Louis P. Gigliotti, J.S.C. issued a Judgment of
Foreclosure and Sale on October 17, 2025 without any opposition from
the Amelio Defendants. (Dkt. 18-5, pgs. 7-16). The Amelio Defendants
did not appeal the Judgment of Foreclosure and Sale and their
subsequent motion to vacate their default and the Judgment of
Foreclosure and Sale was denied on January 8, 2026 by Justice
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Gigliotti. (Dkt. 18-7). Justice Gigliotti specifically ruled that the
“judgment is final as to all issues that were or could have been litigated
in this action, and Defendants may not collaterally attack that
judgment through the instant application.” (Id., at pg. 2). And because
Justice Gigliotti ruled that the Judgment of Foreclosure and Sale is
“final,” the Oneida County Supreme Court action is no longer pending
and therefore cannot be removed to this Court. The Court therefore
recommends that the Amelio Defendants’ removal petition (Dkt. 1) be
dismissed with prejudice.
C. The District Court Lacks Subject Matter
Jurisdiction.
Even if the Amelio Defendants’ removal was procedurally proper,
the Court recommends their Notice of Removal (Dkt. 1) be dismissed for
lack of subject matter jurisdiction under 28 U.S.C. §§ 1331, 1332 and
Rooker-Feldman.
i. 	28 U.S.C. § 1331
For the District Court to have jurisdiction, the action must arise
“under the Constitution, laws, or treaties of the United States.” 28
U.S.C. § 1331. A case arises under federal law if the complaint
“establishes either that federal law creates the cause of action or that
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the plaintiff’s right to relief necessarily depends on resolution of a
substantial question of federal law.” Bay Shore Union Free Sch. Dist. v.
Kain, 485 F.3d 730, 734-35 (2d Cir. 2007) (quoting Empire Healthchoice
Assur., Inc. v. McVeigh, 547 U.S. 677, 690 (2006)). Invoking federal
jurisdiction without pleading any facts demonstrating a federal law
claim, does not create federal subject matter jurisdiction. See Nowak v.
Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1188-89 (2d Cir.
1996). “A defendant may not generally remove a case to federal court
unless the plaintiff’s complaint establishes that the case arises under
federal law.” Aetna Health Inc. v. Davila, 542 U.S. 200, 207 (2004)
(quoting Franchise Tax Bd. of State of Cal. v. Constr. Laborers Vacation
Tr. for S. California, 463 U.S. 1, 10 (1983)).
Subject matter jurisdiction may not be manufactured by virtue of
a defendant’s proposed defenses, crossclaims, or counterclaims. See City
of Philadelphia v. Bradley, 2024 WL 4755810 (S.D.N.Y. Oct. 15, 2024)
(subject matter jurisdiction “could not be create[d] for purposes of
removal based on [plaintiff’s] federal defenses, crossclaims, or
counterclaims”); see also Studebaker-Worthington Leasing Corp. v.
Michael Rachlin & Co., 357 F. Supp. 2d 529, 533, 536 (E.D.N.Y. 2004)
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(applying the well-pleaded complaint rule and remanding the case to
state court because no federal question was presented in pleadings until
the defendant’s counterclaim).
Here, Plaintiff commenced the Oneida County Supreme Court
foreclosure action under state law, not federal law. See (Dkt. 2).
Nevertheless, and in support of their removal petition, the Amelio
Defendants allege that “this action necessarily raises substantial
disputed federal questions.” (Dkt. 1, pgs. 3-4) (emphasis in original).
However, it is well-established in this Circuit that claims like those
asserted by the Amelio Defendant do not confer the District Court with
subject matter jurisdiction. See Einhorn v. Best, No. 10-CV-09377, 2011
WL 1046064, at *3 (S.D.N.Y. Feb. 10, 2011) (removing defendants’
argument that state-court foreclosure action violated their
constitutional rights did not confer federal question jurisdiction), report
and recommendation adopted, 2011 WL 1046092 (S.D.N.Y. Mar. 21,
2011); see also Citibank, N.A. v. Swiatkoski, 395 F. Supp. 2d 5, 9
(E.D.N.Y. 2005) (no subject matter jurisdiction over removed foreclosure
action where removing defendant contended that her constitutional and
federal civil rights had been violated). Accordingly, the Court
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recommends finding that the Amelio Defendants’ removal petition does
not arise “under the Constitution, laws, or treaties of the United
States.” 28 U.S.C. § 1331
ii. 	28 U.S.C. § 1332
In addition to federal question jurisdiction, federal court
jurisdiction can be invoked under 28 U.S.C. § 1332, where a plaintiff
and defendant are citizens of different states. See Wis. Dep’t of Corr. v.
Schacht, 524 U.S. 381, 388 (1998). Further, to establish diversity
jurisdiction, a plaintiff must allege to a “reasonable
probability” that the claim is more than the sum or value of $75,000.00,
the statutory jurisdictional amount. See 28 U.S.C. § 1332(a); see also
Colavito v. N.Y. Organ Donor Network, Inc., 438 F.3d 214, 221 (2d Cir.
2006) (citation and internal quotation marks omitted). However, an
action may not be removed to federal court based on diversity
jurisdiction “if any of the parties in interest properly joined and served
as defendants is a citizen of the State in which such action is brought.”
28 U.S.C. § 1441(b)(2). Also, jurisdiction based on diversity of
citizenship may not be removed “more than 1 year after commencement
of the action.” 28 U.S.C. § 1446(c)(1).
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Here, the Amelio Defendants’ Notice of Removal states that they
are “citizens of New York.” (Dkt. 1, pg. 2, sec. II, ¶ 2). And because the
underlying action was commenced in New York, the Amelio Defendants
are precluded from removing the Oneida County Supreme Court action
to federal court. The Amelio Defendants are also precluded from
removing the Oneida County Supreme Court action to federal court
because more than 1 year has elapsed since the commencement of the
action.
iii. 	Rooker-Feldman
The Cout recommends that the Amelio Defendants’ Notice of
Removal be dismissed under the Rooker-Feldman doctrine.
The Rooker-Feldman doctrine stands for the proposition that
federal district courts lack jurisdiction to review state court judgments.
See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 283-
84 (2005). The Rooker-Feldman doctrine has four requirements: (1) the
federal-court plaintiff lost in state court; (2) the plaintiff’s injury is
caused by the state court judgment; (3) the plaintiff invites review of
the state court judgment; and (4) the state judgment was issued before
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the federal action commenced. See Hoblock v. Albany Cnty. Bd. of Elecs.,
422 F.3d 77, 85 (2d Cir.2005). Here, all factors are easily met.
As to the first element, the Amelio Defendants lost at the state
court level via default judgment and entry of a judgment of foreclosure
and sale. See (Dkt. 18-5). As to the second and third elements, the
Amelio Defendants seek to challenge the Oneida County Supreme Court
judgment, inviting review of the underlying foreclosure via various
federal law claims. At its core, the Amelio Defendants seek a remedy for
“an injury caused by a state judgment" — i.e., the foreclosure of the
mortgaged premises, which they now ask this Court to review. See
Hoblock, 422 F.3d at 87; see also Swiatkowski v. Citibank, 446 F. App’x
360, 361 (2d Cir. 2011) (applying Rooker-Feldman where claims
“depended entirely on the validity of the underlying state court
foreclosure judgment”); In re Wilson, 410 F. App’x 409, 410 (2d Cir.
2011) (“application of the Rooker-Feldman doctrine was warranted in
light of the connection between the federal complaint and the state
court default foreclosure judgment”).
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As to the fourth and final element, the Amelio Defendants seek to
remove the Oneida County action more than 3 months after the
Judgment of Foreclosure and Sale was entered. (Dkt. 18-5, pg. 5).
***
Because the Amelio Defendants cannot establish federal question
or diversity jurisdiction coupled with the fact that the relief they seek is
barred by Rooker-Feldman the Court recommends that the District
Court dismiss their Notice of Removal with prejudice.
D. Plaintiff’s request for sanctions
The Court recommends that Plaintiff’s motion for sanctions be
granted.
Fed. R. Civ. P. 11 governs motions for frivolous filings. “A
pleading, motion or other paper violates Rule 11 either when it has
been interposed for any improper purpose, or where, after reasonable
inquiry, a competent attorney could not form a reasonable belief that
the pleading is well grounded in fact and is warranted by existing law
or good faith argument for the extension, modification or reversal of
existing law.” See Kropelnicki v. Siegel, 290 F.3d 118, 131 (2d Cir. 2002)
(internal citations and quotations omitted). Courts impose Rule 11
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sanctions with discretion and caution. See Caisse Nationale de Credit
Agricole-CNCA v. Valcorp., 28 F.3d 259, 264 (2d Cir. 1994).Where a pro
se litigant is alleged to have violated Rule 11, Courts apply a more
lenient standard than would be applicable where a party is represented.
See Sachs v. Matano, No. 15-CV-6049, 2016 WL 4179792, at *7
(E.D.N.Y. July 15, 2016), report and recommendation adopted, 2016 WL
4186708 (E.D.N.Y. Aug. 4, 2016). Indeed, courts “do[] not expect
litigants proceeding pro se to grasp complex legal concepts, including
the grounds upon which the [c]ourt relied to dismiss plaintiff's claims[,]
. . . with the same level of understanding as attorneys.” McCluskey v.
New York State Unified Ct. Sys., No. 10-CV-2144, 2010 WL 11632696,
at *1 (E.D.N.Y. July 9, 2010). Put differently, it is proper for Courts to
“consider the special circumstances of litigants who are untutored in the
law.” Maduakolam v. Columbia Univ., 866 F.2d 53, 56 (2d Cir. 1989);
see also Zimmerman v. UBS AG, No. 17-CV-04503 (JMF), 2018 WL
4054860, at *5 (S.D.N.Y. Aug. 24, 2018) (although “tempted to impose
sanctions[,]” declining to do so “primarily because [the plaintiff] is
proceeding pro se”) (citing Newman & Cahn, LLP. v. Sharp, 388 F.
Supp. 2d 115, 119 (E.D.N.Y. 2005) (declining to impose sanctions on a
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pro se plaintiff even though the plaintiff's “petition [was] frivolous and
unwarranted”)).
In this case, the Amelio Defendants’ previous actions before the
Southern District of New York deny them the “benefit of the doubt”
which would ordinarily be afforded to pro se litigants. (Dkt. 22, ¶ 23).
The Court recommends the District Court deem the Amelio Defendants’
Notice of Removal (Dkt. 1) to be frivolous. Given their history in the
United States District Court for the Southern District of New York with
filing removal petitions arising from a foreclosure action in Orange
County, the Amelio Defendants were plainly aware that their current
removal petition lacked any merit for the reasons articulated above.
Yet, the Amelio Defendants chose to proceed with their filing. They
have wasted this Court’s limited resources, and they have also
subjected the Plaintiff to unnecessary costs and expenses. The Court
therefore recommends that sanctions be imposed against the three
defendants, jointly and severally, in the amount of $2500, noting that
only Carmine P. Amelio filed an application to proceed in forma
pauperis.
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E. 	The Amelio Defendants’ Motion to Enforce Stay
and Supplemental Emergency Motion.
On January 22, 2026, the Amelio Defendants filed a Motion to
Enforce Removal of Stay and to Declare Post-Removal State Court
Action Null and Void. (Dkt. 7). On March 6, 2026, the Amelio
Defendants filed an Emergency Supplemental Motion for Temporary
Restraining Order to Enforce Removal of Stay and Declare Post-
Removal Foreclosure Sale Void. (Dkt. 19). These filings are nothing
more than an end-around by the Amelio Defendants to obtain the same
relief they sought to obtain through their Notice of Removal. However,
for the reasons articulated above, the Amelio Defendants’ efforts are
futile. The Court therefore recommends that the Amelio Defendants’
“emergency motion” be denied with prejudice. Further, the Court is
denying with prejudice the Amelio Defendants’ “motion to enforce stay.”
Because the Court is: (1) recommending dismissal of the Amelio
Defendants’ Notice of Removal with prejudice; (2) recommending denial
with prejudice of the Amelio Defendants’ Emergency Supplemental
Motion for Temporary Restraining Order to Enforce Removal of Stay
and Declare Post-Removal Foreclosure Sale Void; and (3) denying with
prejudice the Amelio Defendants’ Motion to Enforce Removal of Stay
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and to Declare Post-Removal State Court Action Null and Void because
this Court lacks jurisdiction ab initio, Plaintiff’s Motion to Remand is
rendered moot. See U.S. Bank v. O’hara, No. 24-CV-8459, 2025 WL
358419, at * (S.D.N.Y. Jan. 21, 2025) (motion to remand denied as moot
where court sua sponte dismissed notice of removal); See Williams v.
Audubon TP4 LLC, No. 23-CV-8758, 2023 WL 8528552, at *7_
(S.D.N.Y. Dec. 5, 2023) (“The Court need not remand this improperly
removed action …”).
Despite its recommendation that the District Court deem
Plaintiff’s Motion to Remand moot, based on the Amelio Defendants
conduct in the Southern District of New York, and the two motions filed
in this Court, the Court is nevertheless recommending that the Amelio
Defendants be specifically enjoined from filing any additional removal
notices or motions in this Court associated with or related to the Oneida
County Supreme Court foreclosure action bearing Index No. EFCA
2023-00004.
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III. CONCLUSION
WHEREFORE, based on the findings above, it is
RECOMMENDED, that the Notice of Removal (Dkt. 1) filed by
Defendants Carmine P. Amelio, Paul A. Amelio, and Alfonso Amelio be
DISMISSED WITH PREJUDICE; and it is further
RECOMMENDED, that the Emergency Supplemental Motion for
Temporary Restraining Order to Enforce Removal of Stay and Declare
Post-Removal Foreclosure Sale Void filed by Defendants Carmine P.
Amelio, Paul A. Amelio, and Alfonso Amelio (Dkt. No. 19) be DENIED WITH
PREJUDICE; and it is further
RECOMMENDED, that Plaintiff’s Motion to Remand (Dkt. 18)
be DENIED as moot; and it is further
RECOMMENDED, that Carmine P. Amelio, Paul A. Amelio, and
Alfonso Amelio be enjoined from filing any additional removal notices
associated with the Oneida County Supreme Court foreclosure action
bearing Index No. EFCA 2023-00004; and it is further
RECOMMENDED, that sanctions be assessed against Carmine
P. Amelio, Paul A. Amelio, and Alfonso Amelio, jointly and severally, in
the amount of $2500; and it is further
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ORDERED, that Defendant Carmine P. Amelio’s application to
proceed in forma pauperis (Dkt. 3) is granted; and it is further
ORDERED, that Carmine P. Amelio, Paul A. Amelio, and Alfonso
Amelio’s Motion to Enforce Removal of Stay and to Declare Post-
Removal State Court Action Null and Void (Dkt. 7) is DENIED WITH
PREJUDICE; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Order
and Report-Recommendation on Carmine P. Amelio, Paul A. Amelio,
and Alfonso Amelio by regular mail.3
Under 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties
have 14 days within which to file written objections to the foregoing
report. Such objections shall be filed with the Clerk of the Court.
FAILURE TO OBJECT TO THIS REPORT WITHIN 14 DAYS
WILL PRECLUDE APPELLATE REVIEW. See Roldan v. Racette,
984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of Health and
Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.
R. Civ. P. 6(a), 6(e), 72.
Dated: March 17, 2026.
3 The Clerk shall also provide Plaintiff with copies of all unreported decisions cited
herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per
curiam).
_________________________
Hon. Mitchell J. Katz
U.S. Magistrate Judge
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United States District Court, D. Connecticut.
DEUTSCHE BANK NATIONAL TRUST CO.,
AS TRUSTEE FOR MORGAN STANLEY
MORTGAGE LOAN TRUST 2005-10, Plaintiff,
v.
Walter REDDY III, Defendant.
3:23-CV-979 (SVN)
|
Signed November 29, 2023
Attorneys and Law Firms
Benjamin T. Staskiewicz, McCalla Raymer Leibert Pierce,
LLC, Hartford, CT, for Plaintiff.
Walter Reddy, III, Weston, CT, Pro Se.
ORDER ON DEUTSCHE BANK'S MOTION
FOR REMAND TO STATE COURT
Sarala V. Nagala, United States District Judge.
*1 Defendant Walter Reddy III, proceeding pro se, removed
this summary eviction proceeding from the Connecticut
Superior Court (Housing Session), Judicial District of
Stamford/Norwalk. Notice of Removal, ECF No. 1. Plaintiff
Deutsche Bank National Trust Company (“Deutsche Bank”)
has moved to remand the case to that court, arguing that
Reddy's notice of removal is defective for various procedural
reasons. ECF No. 13. Deutsche Bank also seeks an order
preventing Reddy from filing another notice of removal in
federal court related to this eviction proceeding.
While the Court cannot remand this case for the procedural
reasons identified by Deutsche Bank, it holds that removal of
this matter to federal court is not possible because the action
has proceeded to final judgment and Reddy has exhausted his
state appeal. Further, for the reasons stated below, the Court
orders that Reddy shall not file another notice of removal of
this action without first seeking this Court's approval. Thus,
Deutsche Bank's motion to remand is DENIED IN PART and
GRANTED IN PART, and the Court remands the case to the
Connecticut Superior Court.
I. BACKGROUND
This case comes before the Court after a protracted (and
sometimes confusing) foreclosure and subsequent eviction
dispute in the Connecticut Superior Court. On March 13,
2009, Deutsche Bank National Trust Company filed a
foreclosure action against Reddy concerning a property
located at 16 Briar Oak Drive in Weston, Connecticut.
Deutsche Bank Nat'l Tr. Co. v. Walter Reddy III, Superior
Court of Connecticut, Judicial District of Stamford–Norwalk,
No. FST-CV09-5010722-S; see also id., 2014 WL 5099379,
at *1 (Conn. Super. Ct. Sept. 5, 2014). After more than
five years of litigation, the Superior Court entered summary
judgment for Deutsche Bank. Id. Then, on June 5, 2018,
Deutsche Bank became the record owner of 16 Briar Oak
Drive. Deutsche Bank Nat'l Tr. Co. v. Walter Reddy III, No.
FST-CV09-5010722-S, Dkt. 217.02 (setting Law Day for
June 5, 2018). On June 27, 2018, the Connecticut appellate
courts dismissed Reddy's appeal in the foreclosure action as
moot. Id., Dkt. 243.00.
Deutsche Bank then initiated this eviction action concerning
the 16 Briar Oak Drive property. Deutsche Bank Nat'l
Tr. Co. v. Walter Reddy III, No. NWH-CV18-6004196-S
(Conn. Super. Ct.). Deutsche Bank also initiated a separate
eviction action for an in-law unit at 16 Briar Oak Drive.
Deutsche Bank Nat'l Tr. Co. v. Walter Reddy III, No. NWH-
CV18-6004197-S (Conn. Super. Ct.), Dkts. 100.30, 100.31.
In the whole property action, which is the present matter,
the Superior Court entered judgment in favor of the bank
on February 5, 2020, after a full trial before the court.
Reddy, No. NWH-CV18-6004196-S, Dkts. 122.00, 123.00.
This judgment became final after Reddy's appeal to the
Connecticut Appellate Court was dismissed as frivolous. Id.,
Dkt. 159.00.
Both before and after the judgment, Reddy engaged in a
series of gambits to delay the eviction proceeding. These
tactics included willfully ignoring the judgment in the
underlying foreclosure action, id. Dkts. 101.00 (request
to revise plaintiff's complaint) and 109.00 at 2 (answer),
removing to federal court for the first time, id. Dkt. 114.00,
filing for bankruptcy the first time, id. Dkt. 135.00, filing for
bankruptcy a second time, id. Dkt. 148.00, petitioning for a
writ of audita querela, 1 id. Dkt. 156.00, having his appeal
to the Connecticut appellate courts dismissed as frivolous, id.
Dkt. 159.00, and removing to federal court for the second time
after his appeal was dismissed as frivolous, id. Dkt. 160.00.
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1 The writ of audita querela is a limited and
extraordinary legal remedy “when enforcement of
a judgment would be contrary to the ends of justice
due to matters that have arisen since its rendition.”
State v. Cotto, 111 Conn. 818, 820 (2008)
*2 Reddy has also advanced a series of conspiracy theories
as to why Deutsche Bank cannot evict him. As part of his
answer and defenses to the eviction complaint, Reddy claimed
that Deutsche Bank had never retained the lawyers who
appeared on its behalf to institute the proceedings against
Reddy. Id. Dkt. 109.00 at 4 (First Special Defense). Instead,
Reddy argued that the mortgage of his property was in fact
owned by a third party, not Deutsche Bank, who had been
fully paid, id. at 7–8 (Sixth Special Defense). Then, on his
first removal of these actions, Reddy argued that the mortgage
note on his property was owned by an individual named Jan
Van Eck, who an initiated a suit against Deutsche Bank in
federal court in Vermont to assert ownership. See Detusche
Nat'l Bank v. Reddy, No. 3:19-cv-461 (VAB), ECF No. 15 at
6–7. The Vermont court dismissed Mr. Van Eck's lawsuit for
failure to state a claim. Van Eck v. Deutsche Bank Americas
Holding Corp., No. 2:18-CV-232, 2019 WL 4776903 (D.
Vt. Sept. 30, 2019). In 2019, Judge Bolden remanded this
action and its companion case to the Connecticut Superior
Court on various grounds, including lack of subject matter
jurisdiction. Detusche Nat'l Bank v. Reddy, No. 3:19-cv-460
(VAB) (WIG), ECF No. 16; Detusche Nat'l Bank v. Reddy,
No. 3:19-cv-461 (VAB) (WIG), 2019 WL 7343385 (D.
Conn. Dec. 31, 2019). After remand, Reddy submitted an
affidavit from Jan Van Eck once again asserting ownership
over 16 Briar Oak Drive, this time referencing a suit he
had filed against Deutsche Bank and its attorneys seeking
damages and other relief. Reddy, No. NWH-CV18-6004196-
S, Dkt. 147.00. Now Reddy has removed both actions to
federal court for the second time, repeating many of the
same arguments he has already advanced unsuccessfully
throughout the litigation. 2 See ECF Nos. 1, 14.
2 Concurrent with this order, the Court is issuing
an order remanding the companion case, Deutsche
Bank Trust Company v. Reddy, Case No. 3:23-
cv-970 (SVN), for similar reasons.
II. DISCUSSION
The Court will first address Deutsche Bank's motion to
remand and the Court's authority to sua sponte remand,
before turning to Deutsche Bank's motion to bar Reddy from
removing this action again without this Court's approval.
A. Motion to Remand
Under 28 U.S.C. § 1441—the general federal removal statute
—a defendant may remove a state court action to federal
court if the federal court would have original subject matter
jurisdiction over the action. The federal courts have original
subject matter jurisdiction over civil actions arising under the
Constitution, laws, or treaties of the United States (“federal
question jurisdiction”) and over matters involving parties
with diverse citizenship where the amount in controversy
exceeds $75,000 (“diversity jurisdiction”). 28 U.S.C. § 1331;
28 U.S.C. § 1332. There are certain procedural requirements
for removal, including, among others, that the notice of
removal must be filed within thirty days after the defendant
receives a copy of the initial pleading or service of summons
or thirty days after which it could first be ascertained that the
case is removable, 28 U.S.C. § 1446(b)(1) & (b)(2)(C). An
opposing party may file a motion to remand after a notice of
removal is filed. 28 U.S.C. § 1447(c).
Deutsche Bank does not argue for remand because the Court
lacks subject matter jurisdiction. Rather, it argues for remand
based on procedural defaults in Reddy's notice of removal,
including that the notice of removal was untimely, fails to
explain the history of the case, and neglects to attach a copy
of the relevant pleadings. The problem for Deutsche Bank
is that “[a] motion to remand the case on the basis of any
defect other than lack of subject matter jurisdiction must be
made within 30 days after the filing of the notice of removal.”
28 U.S.C. § 1447(c). This deadline “is plainly mandatory,”
and procedural defects in a notice of removal—including
timeliness of the removal—are deemed waived if a motion
for remand is not filed within thirty days of the filing of the
notice of removal. Phoenix Glob. Ventures, LLC v. Phoenix
Hotel Assocs., Ltd., 422 F.3d 72, 75 (2d Cir. 2005); accord
Pate v. City of Rochester, 579 F. Supp. 3d 417, 421 (W.D.N.Y.
2022) (collecting cases). Reddy filed his notice of removal
on July 24, 2023, ECF No. 1, and Deutsche Bank moved to
remand on September 13, 2023, ECF No. 13, which is outside
the 30-day window to move to remand on grounds other than
a lack of subject matter jurisdiction. Indeed, despite the notice
of removal being filed on the Superior Court docket, Deutsche
Bank did not appear in this case until September 13, 2023.
This Court lacks authority to “carv[e] out an exception to the
mandatory” 30-day deadline in Section 1447. Phoenix Glob.
Ventures, LLC, 422 F.3d at 76; see also Pate, 579 F. Supp.
3d at 422. Therefore, Deutsche Bank's procedural arguments
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for removal are waived, and the Court must deny Deutsche
Bank's motion to remand.
*3 Nonetheless, the Court remands this action to
Connecticut Superior Court sua sponte because removal is
not authorized after final judgment is entered in a state action.
Under the statute governing the removal of civil actions, only
“pending” actions may be removed from state to federal court.
28 U.S.C. § 1441(a). In Four Keys Leasing & Maintenance
Corp. v. Simithis, the Second Circuit held that a final judgment
from a state court exhausted on appeal cannot be removed
to federal court. 849 F.2d 770, 774 (2d Cir. 1988); accord
Murray v. Hy Cite Corp./Royal Prestige, 150 F. Supp. 2d 527,
530 (E.D.N.Y. 2001); In re 73rd Precinct Station House in
Borough of Brooklyn, City of New York, 329 F. Supp. 1175,
1178 (E.D.N.Y. 1971). As the Second Circuit has explained,
“it would be a perversion of the removal process to allow
a litigant who is subject to a final judgment to remove that
final judgment to the federal courts for further litigation.... [A]
claim that has been reduced to a final judgment in the state
court cannot be made subject to relitigation through removal.”
Four Keys, 849 F.2d at 774. Other circuits to have addressed
this issue have come to the same conclusion. See, e.g., Oviedo
v. Hallbauer, 655 F.3d 419, 423–24 (5th Cir. 2011) (“Removal
is simply not possible after a final judgment and the time for
direct appellate review has run.”); Ohio v. Doe, 433 F.3d 502,
507 (6th Cir. 2006) (“We agree with the reasoning of our sister
circuits in ruling that when all that remains of an action is the
enforcement of a judgment, removal to federal court is not
authorized.”); Lloyd S. Mulvey Inc. Tr. v. Young, 36 F. App'x
638, 2002 WL 1316486, at *1 (9th Cir. 2002) (holding that
a defendant “cannot remove a case that is no longer pending
in the state court”); Ristuccia v. Adams, 406 F.2d 1257, 1258
(9th Cir. 1969) (per curiam) (“It would seem obvious that to
remove an action to the federal courts from a state court, it
must first be pending in the state court.”).
This is exactly the scenario here. On February 5, 2020,
the Superior Court entered judgment in favor of Deutsche
Bank after a full trial. Deutsche Bank Nat'l Tr. Co. v. Walter
Reddy III, No. NWH-CV18-6004196-S (Conn. Super. Ct.),
Dkt. 123.00. This judgment became final after Reddy's
appeal to the Connecticut Appellate Court was dismissed
as frivolous. Id., Dkt. 159.00. Thus, despite that Reddy has
been attempting to prolong execution of the judgment through
various litigation tactics—all unsuccessfully—the case is no
longer pending for purposes of seeking removal to federal
court. 3
3 Other circuits to have addressed this issue
have found that “remand to the state courts is
‘impossible ... as a matter of logic,’ as the absence
of ‘a removable cause of action [implies that
there is similarly] no cause of action that can
be remanded ....’ ” Oviedo, 655 F.3d at 425–26
(5th Cir. 2011) (quoting Ristuccia, 406 F.2d at
1258). Following this logic, the Fifth Circuit in
Oviedo dismissed the removed case, rather than
remanding it. 655 F.3d at 426. The Court declines
to adopt this approach in this instance because it is
concerned that outright dismissal would prejudice
Reddy, who is acting pro se to litigate various post-
judgment issues, and who may not have predicted
that his attempt to remove the case would result in
dismissal.
For these reasons, the Court remands the case to the
Connecticut Superior Court.
B. Motion to Bar Reddy from Removing Action
Deutsche Bank also moves for an order barring Reddy from
removing this action again, unless Reddy first seeks and
receives permission from this Court to do so. The Court grants
this portion of Deutsche Bank's motion.
“ ‘A district court may, in its discretion, impose sanctions
against litigants who abuse the judicial process,’ including
‘an injunction forbidding further litigation.’ ” Nat'l Acad. of
Television Arts & Scis., Inc. v. Goodman, No. 22-592, 2023
WL 3989876, at *2 (2d Cir. 2023) (summary order) (quoting
Shafii v. Brit. Airways, PLC, 83 F.3d 566, 571 (2d Cir. 1996)).
The Court must consider the following factors:
(1) the litigant's history of litigation and in particular
whether it entailed vexatious, harassing or duplicative
lawsuits; (2) the litigant's motive in pursuing the litigation,
e.g., does the litigant have an objective good faith
expectation of prevailing?; (3) whether the litigant is
represented by counsel; (4) whether the litigant has
caused needless expense to other parties or has posed an
unnecessary burden on the courts and their personnel; and
(5) whether other sanctions would be adequate to protect
the courts and other parties.
*4 Eliahu v. Jewish Agency for Isr., 919 F.3d 709, 714 (2d
Cir. 2019).
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All of these factors weigh in favor of barring Reddy from
removing this action again. This is Reddy's second attempt
at federal removal; he filed for bankruptcy twice during
the pendency of the state action, which appears intended to
stall the eviction process; and his history of removing this
litigation can now be considered vexatious.
Likewise, Reddy does not have an objective good faith
expectation of prevailing. Judgment in this action was
finalized in July of 2023 after the Connecticut Appellate
Court dismissed Reddy's appeal as frivolous. The prior
foreclosure action was finalized nearly seven years ago. Yet,
at each turn, Reddy has advanced frivolous defenses and
removals of the action to delay the litigation. While the
Court understands that eviction is difficult and painful for
any person, Reddy can have no good faith expectation of
prevailing, given the number of times his claims and motions
have been denied.
That Reddy is proceeding pro se also weighs in favor of a bar.
Reddy himself, not counsel, is responsible for his bad faith
litigation. And it is Reddy, not counsel, who would be subject
to sanctions for his frivolous claims. See Deutsche Bank Nat'l
Tr. Co. v. Koch, No. 3:23-cv-1022 (JAM), 2023 WL 6804727,
at *4 (D. Conn. Oct. 16, 2023).
Further, Reddy has caused needless expense to Deutsche
Bank and posed an unnecessary burden on the courts. As
the Court has already discussed, Reddy has extended the
lifespan of this case from 2009 to today. At every turn, Reddy
has engaged in tactics to delay foreclosure and eviction. It
appears Reddy may have engaged an unrelated third party to
engage in a frivolous lawsuit in Vermont to assert ownership
over his home. Reddy has removed to federal court the
second time, and filed for bankruptcy twice in this action
to invoke the automatic stay on litigation during bankruptcy.
This undoubtedly has caused needless expense to the other
party and the courts—both state and federal.
Finally, no other sanction would prove as effective at keeping
Reddy from delaying proceedings.
Thus, all five factors weigh in favor of barring Reddy or
any other party from removing this action to federal court in
the future. The Court enters an order barring Reddy or any
other related party from filing another notice of removal for
this state court eviction action unless such person first files
a motion on the docket of this case seeking leave to file a
notice of removal. If Reddy or any related party chooses to
file a notice of removal without first seeking and receiving
permission from this Court to do so, then they may be subject
to penalties for contempt of court.
III. CONCLUSION
For the reasons described herein, Deutsche Bank's motion
to remand is GRANTED IN PART and DENIED IN PART.
The Court remands this action back to the Connecticut
Superior Court (Housing Division), Judicial District of
Stamford/Norwalk. Notwithstanding the ordinary 10-day
waiting period under D. Conn. L. Civ. R. 83.7, the Clerk of
Court shall forthwith remand this action.
*5 The Court further ORDERS that Reddy and/or any
related party may not remove this action to federal court
unless Reddy or such related party first files a motion for leave
to file a notice of removal on the docket of this federal court
case (No. 3:23-cv-979 (SVN)) and unless the Court grants the
motion to allow the filing of a notice of removal.
SO ORDERED at Hartford, Connecticut, this 29th day of
November, 2023.
All Citations
Not Reported in Fed. Supp., 2023 WL 8253767
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Filings (2)
Title PDF Court Date Type
1. Memorandum of Law in Support of Motion to
Remand
DEUTSCHE BANK NATIONAL TRUST COMPANY,
Plaintiff, v. Walter REDDY, III, Defendant.
2023 WL 11922931
— D.Conn. Sep. 13, 2023 Motion
2. Docket 3:23-CV-00979
Deutsche Bank National Trust Company v. Reddy
— D.Conn. July 24, 2023 Docket
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United States District Court, S.D. New York.
MEGHILA, LLC, Plaintiff,
v.
Myriam CHALEK; Carzell Benton;
Djahida Chalek, Defendants.
24-CV-8986 (LTS)
|
Signed January 13, 2025
Attorneys and Law Firms
Carzell Benton, New York, NY, Pro Se.
ORDER
LAURA TAYLOR SWAIN, Chief United States District
Judge:
*1 Carzell Benton, who is appearing pro se, filed this
Notice of Removal. He seeks to remove an appeal pending in
the Appellate Division, First Department, to this Court. See
Meghila, LLC v. Chalek, No. 158373/21 (1st Dept.). For the
reasons set forth below, the action is remanded.
STANDARD OF REVIEW
A defendant in a state court action may remove a matter
to federal district court if the district court has original
jurisdiction of the action. 28 U.S.C. § 1441(a). To remove a
state-court action to a federal district court:
[a] defendant ... shall file in the district
court of the United States for the
district and division within which such
action is pending a notice of removal
signed pursuant to Rule 11 of the
Federal Rules of Civil Procedure and
containing a short and plain statement
of the grounds for removal, together
with a copy of all process, pleadings,
and orders served upon such defendant
or defendants in such action.
28 U.S.C. § 1446(a). The right of removal is “entirely a
creature of statute,” and the “statutory procedures for removal
are to be strictly construed.” Syngenta Crop Protection, Inc. v.
Henson, 537 U.S. 28, 32 (2002). A federal district court may
sua sponte remand an action within 30 days of the filing of the
notice of removal for a procedural defect, or at any time for a
lack of subject matter jurisdiction. See 28 U.S.C. § 1447(c);
Mitskovski v. Buffalo & Fort Erie Pub. Bridge Auth., 435 F.3d
127, 131-33 (2d Cir. 2006).
BACKGROUND
Carzell Benton is the only signatory to this Notice of
Removal. He indicates that, in an eviction proceeding to
which he was not a party, Meghila, LLC v. Chalek, No.
158373/21, the Supreme Court of the State of New York, New
York County, entered judgment against Myriam Chalek. A
copy of the judgment, attached to the Notice of Removal,
makes clear that the underlying action was for “recovery
of unpaid rent and ejectment,” and that judgment was
entered “against Defendant Myriam Chalek in the sum of
$198,863.64.” (ECF 1 at 14.)
Benton apparently was a co-occupant of the premises at issue.
He is listed as an appellant in the caption of documents filed in
the Appellate Division, First Department, in connection with
an appeal from the judgment. (Id. at 18, 21.)
Benton seeks to “remove” the pending state court appeal
to this court. He argues that the Appellate Division has
violated the constitutional rights of “the alleged defendants,”
by which he appears to mean himself and Myriam Chalek.
(ECF 1 at 1-2.) Attached to the complaint is a June 25,
2024 decision of the Appellate Division, granting a stay of
eviction on condition that appellants pay $8,000 monthly
for ongoing use and occupancy of the premises and post
a bond of $198,864.64. (Id. at 21-22.) Benton argues that
removal is proper because the Appellate Division violated his
constitutional rights, among other things, by making the stay
of eviction conditional on payment.
Benton further argues that removal of the appeal to federal
court is proper based on diversity jurisdiction. He states that
Defendants “are domiciled in New York and possess different
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nationalities, contributing to the diversity of citizenship
required for federal jurisdiction.” (Id. at 5.) Plaintiff is
alleged to be an “artificial person ... operating out of New
Jersey.” (Id.)
*2 Benton also attaches to the Notice of Removal
a document titled, “The Moorish Divine and National
Movement of the World,” and an “Affidavit of
Indigency.” (Id. at 10-11.)
Benton recently filed a bankruptcy proceeding, and the
Bankruptcy Court issued an order that included the following
description:
[Meghila, LLC (“Landlord”)] is the
owner of condominium unit PH3D,
which is located at 1600 Broadway,
New York, New York 10027. On
May 9, 2020, the Landlord and
Myriam Chalek (“Chalek”) signed
a lease pursuant to which [Carzell
Benton (“Debtor”)] and Chalek (...
the “Occupants”) took possession of
the Property. The Occupants have
apparently never made a rent payment,
and the Landlord commenced eviction
proceedings. On October 17, 2023,
the Landlord obtained an Order and
Judgment of Possession (the “Eviction
Judgment”), entitling the Landlord
to evict the Occupants, as well
as entitling the Landlord to collect
$198,863.63 in unpaid rent. Following
the Eviction Judgment, the Occupants
filed a series of bankruptcies to stay the
eviction.
In re Benton, 662 B.R. 517, 520 (Bankr. S.D.N.Y. 2024)
(citations omitted). 1 The Bankruptcy Court further noted that
Benton “is not a tenant under the lease.” Id. at 521.
1 Benton has filed a separate suit in federal court
against Judge Goetz, who presided over the
eviction proceeding (Index Number 158373/2021),
see Benton v. Goetz, No. 24-CV-3649 (S.D.N.Y.
July 31, 2024), and has twice sued Meghila LLC
and others connected with the premises, Benton v.
Cidambi, No. 1:24-CV-2968 (LTS) (S.D.N.Y. June
27, 2024); Benton v. Cidambi, No. 24-CV-5489
(LTS), 2024 WL 4635429, at *1 (S.D.N.Y Oct. 28,
2024).
DISCUSSION
Removal of this pending state court appeal is improper. As
an initial matter, the removal statutes provide for removal
by a defendant, not an appellant. See 28 U.S.C. § 1441 (a
civil action brought in a State court “may be removed by
the defendant or the defendants”); 28 U.S.C. § 1446 (“A
defendant or defendants desiring to remove any civil action
from a State court shall file ... a notice of removal ....”).
Here, Carzell Benton has filed a notice of removal of a
pending appeal in which he is an appellant. The general
removal statutes do not authorize an appellant to remove an
action to federal court. “[O]nly defendants have the authority
to remove an action to federal court.” Murray v. Deer Park
Union Free Sch. Dist., 154 F. Supp. 2d 424, 426 (E.D.N.Y.
2001).
Moreover, removal is improper once the state court has
entered judgment. “[A] claim that has been reduced to a
final judgment in the state court cannot be made subject
to relitigation through removal.” Four Keys Leasing &
Maint. Corp. v. Simithis, 849 F.2d 770, 774 (2d Cir. 1988).
“[R]emoval is not possible where the case reached final
judgment in state court.” Snelgrove v. LeBlanc, No. 20-
CV-146, 2020 WL 7647026 (D. Vt. Nov. 5, 2020).
Federal courts, with a limited exception not applicable here,
do not review state court judgments. See Verizon Md. Inc. v.
Pub. Serv. Comm'n of Md., 535 U.S. 635, 644 n.3 (2002) (“28
U.S.C. § 1331 is a grant of original jurisdiction” that “does not
authorize district courts to exercise appellate jurisdiction over
state-court judgments.”); Credit One, LLC v. Head, No. 3:09-
CV-1852 (MRK), 2010 WL 3058916, at *1 (D. Conn. Jan.
11, 2010) (rejecting the pro se plaintiff's attempt to remove a
closed state action and explaining that federal district courts
“do not sit as courts of appeal over state court judges”). 2
Thus, Benton's remedy, if any, is to continue to pursue any
available appeals in state court. If he disagrees with a final
decision of the Appellate Division, he can seek discretionary
review in the New York Court of Appeals.
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2 The exception to this rule is that the Supreme Court
of the United States has jurisdiction of appeals from
a final judgment of the highest state court. See
District of Columbia Court of Appeals v. Feldman,
460 U.S. 462, 482 (1983) (holding that, under 28
U.S.C. § 1257, federal court jurisdiction of appeals
from final state-court judgments “may be had only
in this [U.S. Supreme] Court”).
*3 The defendant bears the burden of establishing that
removal is proper.” United Food & Commercial Workers
Union, Loc. 919 v. CenterMark Props. Meriden Square, Inc.,
30 F.3d 298, 301 (2d Cir. 1994). Here, removal of the pending
appeal is not proper because this Court cannot review the
state court judgment. The action is therefore remanded to the
Appellate Division, First Department. See Mitskovski, 435
F.3d at 131 (noting that the Circuit has “interpreted section
1447(c) to authorize a remand for either a procedural defect
asserted within 30 days of the filing of notice of removal or a
lack of subject matter jurisdiction”). 3
3 The Notice of Removal also does not show that the
Court has subject matter jurisdiction of this action.
The underlying landlord-tenant matter relies on
state law, and a federal defense or counterclaim
cannot be the basis for federal question jurisdiction.
See Fax Telecommunicaciones Inc. v. AT & T,
138 F.3d 479, 486 (2d Cir. 1998) (removal based
on federal question jurisdiction “is proper only
if the federal question appears plainly on the
face of a ‘well-pleaded complaint’ ”). Moreover,
as a domiciliary of the forum state, Benton
cannot remove an action on the basis of diversity
jurisdiction. 28 U.S.C. § 1441(b)(2).
In addition, Benton has previously been warned that, if he
abuses the privilege of proceeding IFP by pursing further
duplicative or vexatious litigation in this Court, he may be
ordered to show cause why he should not be barred from
filing new actions IFP without prior permission. See Benton,
2024 WL 4635429, at *1 (relying on 28 U.S.C. § 1651). That
warning remains in effect.
CONCLUSION
Because removal is improper, the appeal is remanded,
under 28 U.S.C. § 1447(c), to the Appellate Division, First
Department. The Clerk of Court is directed to send a copy of
this order to that court and to close this action. All pending
matters are terminated.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any
appeal from this order would not be taken in good faith, and
therefore IFP status is denied for the purpose of an appeal. See
Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2025 WL 436677
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Meghila, LLC v. Chalek
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Filings
There are no Filings for this citation.
History
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Williams v. Audubon TP4 LLC, Not Reported in Fed. Supp. (2023)
2023 WL 8528552
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2023 WL 8528552
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Derek WILLIAMS; Williams Derek
Irrevocable Living Trust, Plaintiffs,
v.
AUDUBON TP4 LLC, et al., Defendants.
23-CV-8758 (LTS)
|
Signed December 5, 2023
Attorneys and Law Firms
Derek Williams, New York, NY, Pro Se.
ORDER OF DISMISSAL
LAURA TAYLOR SWAIN, Chief United States District
Judge:
*1 Plaintiff Derek Williams, who is appearing pro se,
brings this action under 42 U.S.C. § 1983, on behalf of
himself and the Williams Derek Keith Irrevocable Living
Trust (“the Trust”). He asserts that Defendants violated his
rights in a holdover proceeding in the Civil Court of the City
of New York, County of New York, Housing Part (“Civil
Court”). Plaintiff requests preliminary injunctive relief and a
temporary restraining order (“TRO”), seeking to enjoin the
state court's allegedly unlawful eviction order. (ECF 3.) By
order dated October 6, 2023, the Court granted Plaintiff's
request to proceed in forma pauperis (“IFP”), that is, without
prepayment of fees. For the reasons set forth below, the Court
denies Plaintiff's request for preliminary injunctive relief and
a temporary restraining order and dismisses this action.
STANDARD OF REVIEW
The Court must dismiss an IFP complaint, or any portion of
the 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. 28 U.S.C.
§ 1915(e)(2)(B); see Livingston v. Adirondack Beverage Co.,
141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss
a complaint when the Court lacks subject matter jurisdiction
of the claims raised. See Fed. R. Civ. P. 12(h)(3).
While the law mandates dismissal on any of these grounds, the
Court is obliged to construe pro se pleadings liberally, Harris
v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them
to raise the “strongest [claims] that they suggest,” Triestman
v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)
(internal quotation marks and citations omitted) (emphasis in
original). But the “special solicitude” in pro se cases, id. at
475 (citation omitted), has its limits – to state a claim, pro se
pleadings still must comply with Rule 8 of the Federal Rules
of Civil Procedure, which requires a complaint to make a short
and plain statement showing that the pleader is entitled to
relief.
Rule 8 requires a complaint to include enough facts to state
a claim for relief “that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is
facially plausible if the plaintiff pleads enough factual detail
to allow the Court to draw the inference that the defendant is
liable for the alleged misconduct. In reviewing the complaint,
the Court must accept all well-pleaded factual allegations as
true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). But it
does not have to accept as true “[t]hreadbare recitals of the
elements of a cause of action,” which are essentially just legal
conclusions. Twombly, 550 U.S. at 555. After separating legal
conclusions from well-pleaded factual allegations, the Court
must determine whether those facts make it plausible – not
merely possible – that the pleader is entitled to relief. Id.
BACKGROUND
Plaintiff Derek Williams brings this action on behalf of
himself and the Trust, seeking relief from an allegedly
unlawful order of eviction issued by Judge Jack Stoller in the
Civil Court action. He invokes federal question jurisdiction,
cites to 42 U.S.C. § 1983 and other statutory provisions,
and asserts that Defendants have violated “conditional rights,
human rights, [and] property rights.” (ECF 1, at 8.) 1 Plaintiff
sues the following: (1) Audubon TP4 LLC (“Audubon”),
his landlord; (2) Ann Roberts, an attorney representing
Audubon; (3) Jack K. Stoller, the judge presiding over the
Civil Court case; (4) Thomas J. Bia, a City Marshal; (5)
TaTanisha D. James, a judge in the New York Supreme Court,
Appellate Term, First Department (“Appellate Term”); (6) J.
Delacruzzapata, an officer from the New York City Police
Department (“NYPD”); (7) Jonathen, a person who assisted
with the eviction; (8) Richard Bianrosa, an NYPD officer;
(9) Christopher Spring, Audubon's Property Executive; (10)
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Dominick Matthew Giannotto, an attorney; (11) Adolfo
Carrion, the Commissioner of the New York City Department
of Housing Preservation and Development (“HPD”); and
(12) Rowan D. Wilson, the Chief Judge of the New York
Court of Appeals. Plaintiff seeks restoration of his tenancy,
reimbursement of court expenses, money damages, and
injunctive relief, including the arrest of the “wrongdoers” for
“security fraud/identity theft.” (Id. at 13.)
1 Plaintiff writes using irregular capitalization. For
readability, the Court uses standard capitalization
when quoting from the amended complaint. All
other grammar, spelling, and punctuation are as in
the original unless otherwise indicated.
*2 The following information is taken from the complaint.
Plaintiff, a participant in the federally subsidized Section 8
Housing Choice Voucher Program, resided in an apartment
located in a building owned by Audubon at 2321 Adam
Clayton Powell Boulevard in New York, New York.
According to Plaintiff, the tenant on the lease agreement
was the Trust. On November 3, 2023, Roberts, on behalf of
Audubon, filed a holdover petition against Plaintiff in the
Civil Court, asserting that Plaintiff had failed to recertify his
Section 8 tenancy and seeking rent arrears in the amount
of $105,987.62. 2 On July 26, 2023, Judge Stoller held
a bench trial, which Plaintiff contends was an “improper
court proceeding resulting in an inquest hearing.” (Id. at
12.) Judge Stoller allowed Giannotto, a “volunteer attorney
without standing,” to appear on behalf of Roberts; Plaintiff
also alleges that a witness perjured himself with “false
testimony.” (Id. at 12, 18) That same day, Judge Stoller
issued a decision granting Audubon's request for a warrant of
eviction against Plaintiff. (Id. at 34-36.) That order was based
on certain “visual evidence,” which was admitted without
being “validated or inspected.” (Id. at 12.)
2 Plaintiff attaches to the complaint multiple
documents from the state court action, including a
copy of the holdover petition. The petition is date-
stamped August 7, 2023, indicating it was filed on
that date in the Civil Court. (ECF 1, at 37-38.)
Plaintiff appealed the eviction order to the Appellate Term,
but on September 8, 2023, Judge James of that court
denied the appeal without a reason. On September 12,
2023, City Marshal Bia appeared to execute the warrant of
eviction, but upon being shown a lease bearing the name
of the Trust, he left. On September 28, 2023, however,
Defendant Bia returned with Defendants Officer Bianrosa and
Officer Delacruzzapata and unlawfully evicted Plaintiff and
his possessions from the apartment with the assistance of
Defendant Jonathen.
Plaintiff brings this action contending that both the bench
trial and order of eviction were “fraudulent” as he is not
the tenant of the apartment, that “the rightful owner to the
unit” is the Trust (Id. at 1.) He asserts that the state court
proceedings violated his constitutional rights and he seeks
an order “declaring [his] continued and prolonged eviction
unlawful” and directing Audubon “to release” the apartment
back to the Trust. (Id. at 2.) As well as citing to Section 1983,
Plaintiff references multiple statutory provisions for relief,
including 15 U.S.C. § 1635, 28 U.S.C. § 1446, 28 U.S.C. §
224, and 28 U.S.C. § 1651.
DISCUSSION
A. Proceeding Pro Se on Behalf of a Trust
Corporations, nonprofit organizations, and other artificial
entities cannot proceed pro se. Rowland v. Cal. Men's Colony,
Unit II Men's Advisory Council, 506 U.S. 194, 202 (1993)
(noting that “lower courts have uniformly held that 28 U.S.C.
§ 1654, providing that “parties may plead and conduct
their own cases personally or by counsel,” does not allow
corporations, partnerships, or associations to appear in federal
court otherwise than through a licensed attorney”) (citations
omitted); see also Jones v. Niagara Frontier Transp. Auth.,
722 F.2d 20, 22 (2d Cir. 1983) (noting that “it is established
that a corporation, which is an artificial entity that can only act
through agents, cannot proceed pro se”). “A trust is deemed
an artificial entity for the purposes of the rule barring a
nonlawyer trustee from representing the interests of the trust.”
Bell v. S. Bay Eur. Corp., 486 F. Supp. 2d 257, 259 (S.D.N.Y.
2007). Thus, the claims brought on behalf of the Trust are
dismissed without prejudice to the Trust retaining counsel and
initiating its own action.
B. Complaint Relationship to State Court Action
Plaintiff brings this action seeking injunctive relief from the
Civil Court's eviction order and immediate restoration of the
Trust's alleged tenancy. It is unclear from Plaintiff's complaint
the status of the state court action. Whether the holdover
proceeding is ongoing or has terminated, however, the Court
is barred from granting Plaintiff's request for relief.
1. Younger abstention
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*3 To the extent that Plaintiff is asking the Court to grant
injunctive or declaratory relief with respect to matters in an
ongoing action in the Civil Court, the Court must abstain from
hearing his claims. The Younger abstention doctrine cautions
federal courts against enjoining or otherwise interfering in
ongoing state proceedings. See Sprint Comms., Inc. v. Jacobs,
571 U.S 69, 77–78 (2013) (defining “Younger's scope”); see
generally Younger v. Harris, 401 U.S. 37, 43–45 (1971).
Younger abstention is appropriate in three categories of
state court proceedings: (1) state criminal prosecutions; (2)
civil enforcement proceedings that are “akin to criminal
prosecutions”; and (3) civil proceedings “that implicate a
State's interest in enforcing the orders and judgments of its
courts.” Sprint, 571 U.S. at 72-73.
In Sprint, the United States Supreme Court held that, among
other circumstances, the Younger abstention doctrine must be
applied to federal-court actions that would, in the absence
of this doctrine, intervene in state-court civil proceedings
that implicate a State's interest in enforcing the orders and
judgments of its courts.” Id. at 72-73. When a plaintiff
“seek[s] injunctive relief relating to the same property that
is the subject matter of the underlying state court action[,]
[this] Sprint prong applies.” Abbatiello v. Wells Fargo Bank,
N.A., No. 15-CV-4210, 2015 WL 5884797, at *4 (E.D.N.Y.
Oct. 8, 2015); see Clark v. Bloomberg, No. 10-CV-1263, 2010
WL 1438803, at *2 (E.D.N.Y. Apr. 12, 2010) (holding that
Younger abstention doctrine precludes federal district court
from staying pending state-court foreclosure and eviction
proceedings because “both concern the disposition of real
property and hence implicate important state interests, and
there is no reason to doubt that the state proceedings provide
[the plaintiff] with an adequate forum to make the arguments
he seeks to raise in this court”).
Plaintiff's complaint appears to be a request that this Court
intervene in the state court action by nullifying the eviction
order and restoring the Trust's tenancy. If the Civil Court's
eviction proceedings are ongoing, this conduct that would
implicate the state's interest in enforcing the orders and
judgments of its courts. To the extent Plaintiff is seeking relief
from this Court in an ongoing state court action, Younger
abstention applies and bars the relief Plaintiff is seeking.
C. Rooker-Feldman Doctrine
To the extent that Plaintiff challenges the final outcome of
any of his state court proceedings, his claims are barred
under the Rooker-Feldman doctrine. The doctrine – created
by two Supreme Court cases, Rooker v. Fidelity Trust Co., 263
U.S. 413, 415-16 (1923), and District of Columbia Court of
Appeals v. Feldman, 460 U.S. 462, 482-86 (1983) – precludes
federal district courts from reviewing final judgments of
the state courts. Exxon Mobil Corp. v. Saudi Basic Indus.
Corp., 544 U.S. 280, 284 (2005) (holding that federal district
courts are barred from deciding cases “brought by state-
court losers complaining of injuries caused by state-court
judgments rendered before the district court proceedings
commenced and inviting district court review and rejection
of those judgments”). The Rooker-Feldman doctrine applies
where the federal-court plaintiff: (1) lost in state court, (2)
complains of injuries caused by the state-court judgment, (3)
invites the district court to review and reject the state court
judgment, and (4) commenced the district court proceedings
after the state-court judgment was rendered. Vossbrinck v.
Accredited Home Lenders, Inc., 773 F.3d 423, 426 (2d Cir.
2014).
The Court does not have authority to grant Plaintiff relief from
a state court action that has been terminated. To the extent
Plaintiff is asking this Court to review or reject the holdings
of his previous state court proceedings that he alleges have
caused him injury, such claims are barred by the Rooker-
Feldman doctrine and are dismissed.
D. Section 1983
*4 Even if Plaintiff's claims arising out of the holdover
proceedings were not barred by the Younger abstention or
Rooker-Feldman doctrines, his assertions that Defendants
violated his rights under 42 U.S.C. § 1983 must still be
dismissed. Section 1983 provides redress for a deprivation
of federally protected rights by persons acting under color
of state law. 42 U.S.C. § 1983; Flagg Bros., Inc. v. Brooks,
436 U.S. 149, 155-57 (1978). To state a Section 1983 claim,
a plaintiff must allege both that: (1) a right secured by the
Constitution or laws of the United States was violated, and
(2) the right was violated by a person acting under the color
of state law, or a “state actor.” West v. Atkins, 487 U.S. 42,
48 (1988).
1. Judicial and Quasi-Judicial Immunity
The Court must dismiss Plaintiff's Section 1983 claims
against Civil Court Judge Jack Stoller, Appellate Term Judge
TaTanisha James, Chief Judge Rowan Wilson of the Court
of Appeals, City Marshal Bia, Officer Bianrosa, Officer
Delacruzzapata, and Jonathen. 3 Judges are absolutely
immune from suit for damages for any actions taken within
the scope of their judicial responsibilities. Mireles v. Waco,
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502 U.S. 9, 11 (1991). Generally, “acts arising out of, or
related to, individual cases before the judge are considered
judicial in nature.” Bliven v. Hunt, 579 F.3d 204, 210 (2d
Cir. 2009). “Even allegations of bad faith or malice cannot
overcome judicial immunity.” Id. (citations omitted). This is
because, “[w]ithout insulation from liability, judges would be
subject to harassment and intimidation ....” Young v. Selsky,
41 F.3d 47, 51 (2d Cir. 1994). In addition, Section 1983, as
amended in 1996, provides that “in any action brought against
a judicial officer for an act or omission taken in such officer's
judicial capacity, injunctive relief shall not be granted unless
a declaratory decree was violated or declaratory relief was
unavailable.” 42 U.S.C. § 1983.
3 It is clear that the judges and the City Marshal
are state actors subject to Section 1983 liability.
See, e.g., West, 487 U.S. at 50 (“[G]enerally, a
public employee acts under color of state law
while acting in his official capacity or while
exercising his responsibilities pursuant to state
law.”). Plaintiff does not, however, allege sufficient
facts concerning Jonathen's status as a state actor,
only alleging that he was a person who assisted
with his eviction from the apartment. For the
sole purpose of this order, the Court presumes
Jonathen's status as a state actor and analyzes
whether Plaintiff has established that he was
deprived of a federal right with respect to the
eviction. The Court notes, however, that if Jonathen
is not a state actor, as analyzed below, he cannot be
subject to Section 1983 liability.
Judicial immunity does not apply when the judge takes action
“outside” his judicial capacity, or when the judge takes action
that, although judicial in nature, is taken “in absence of
jurisdiction.” Mireles, 502 U.S. at 9-10; see also Bliven, 579
F.3d at 209-10 (describing actions that are judicial in nature).
But “the scope of [a] judge's jurisdiction must be construed
broadly where the issue is the immunity of the judge.” Stump
v. Sparkman, 435 U.S. 349, 356 (1978).
Absolute judicial immunity has been extended to “some
officials who are not judges but who perform functions
closely associated with the judicial process.” Dorman v.
Higgins, 821 F.2d 133, 137 (2d Cir. 1987) (citation and
internal quotation marks omitted). Courts have generally
found that law enforcement officials are protected by quasi-
judicial immunity when performing discretionary acts of a
judicial nature which are essential to the judicial process,
such as the execution of court orders. See Cleavinger v.
Saxner, 474 U.S. 193, 200 (1985) (holding that probation
officers are entitled to quasi-judicial immunity for carrying
out a court order); Harley v. Guida, No. 19-CV-6152, 2022
WL 4539510, at *4 (E.D.N.Y. Sept. 28, 2022) (City Marshal
is immune from suit for executing a facially valid eviction
warrant); Bowers v. U.S., 931 F. Supp. 2d 358, 367 (D.
Conn. 2013) (“Several district courts in this Circuit have
found the execution of valid court orders to entitle sheriffs
and others to absolute quasi-judicial immunity.”) (collecting
cases); Morris v. Katz, No. 11-CV-3556, 2011 WL 3918965,
at *4 (E.D.N.Y. Sept. 4, 2011) (holding that where plaintiff
“seeks to hold [City Marshal] liable based upon his execution
of a facially valid warrant of eviction in accordance with
his duty to carry out mandates of the court, the action
against him must be dismissed on the basis of quasi-judicial
immunity”); Maldonado v. New York Cnty. Sheriff, 2006 WL
2588911, at *5 (S.D.N.Y. Sept. 6, 2006) (“[P]ersons who
faithfully execute valid court orders are absolutely immune
from liability for damages in actions challenging conduct
authorized by the order.”) (citation omitted).
*5 Plaintiff does not allege any facts showing that Judges
Stoller, James, or Wilson acted beyond the scope of their
judicial responsibilities or outside their jurisdiction. See
Mireles, 509 U.S. at 11-12. Because the Court understands
Plaintiff to be suing Judges Stoller, James, and Wilson for
“acts arising out of, or related to, individual cases before
[them],” they are immune from suit for such claims. Bliven,
579 F.3d at 210. Furthermore, as Bia was acting within
the scope of his authority in executing the Civil Court's
facially valid eviction warrant, and Bianrosa, Delacruzzapata,
and Jonathen were assisting him with that process, they are
entitled to quasi-judicial immunity.
The Court therefore dismisses Plaintiff's claims for money
damages against Stoller, James, Wilson, Bia, Bianrosa,
Delacruzzapata, and Jonathen because he seeks monetary
relief against defendants who are immune from such relief, 28
U.S.C. § 1915(e)(2)(B)(iii), and, consequently, the claims are
frivolous, 28 U.S.C. § 1915(e)(2)(B)(i). See Mills v. Fischer,
645 F.3d 176, 177 (2d Cir. 2011) (“Any claim dismissed on
the ground of absolute judicial immunity is ‘frivolous’ for
purposes of [the in forma pauperis statute].”).
2. Private Parties
Plaintiff's claim against Audubon, Roberts, Spring, and
Giannotto must also be dismissed. A claim for relief under
Section 1983 must allege facts showing that each defendant
acted under the color of a state “statute, ordinance, regulation,
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custom or usage.” 42 U.S.C. § 983. Private parties therefore
generally are not liable under the statute. Sykes v. Bank of Am.,
723 F.3d 399, 406 (2d Cir. 2013) (citing Brentwood Acad.
v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295
(2001)); see also Ciambriello v. Cnty. of Nassau, 292 F.3d
307, 323 (2d Cir. 2002) (“[T]he United States Constitution
regulates only the Government, not private parties.”). As
Defendants Audubon, Roberts, Spring, and Giannotto are
private parties who are not alleged to work for any state or
other government body, Plaintiff has not stated a claim against
these defendants under Section 1983.
3. Personal Involvement
The Court also dismisses Plaintiff's claims against
Commissioner Carrion. To state a claim under Section
1983, a plaintiff must allege facts showing the defendants'
direct and personal involvement in the alleged constitutional
deprivation. See Spavone v. N.Y. State Dep't of Corr. Serv.,
719 F.3d 127, 135 (2d Cir. 2013) (“It is well settled in this
Circuit that personal involvement of defendants in the alleged
constitutional deprivations is a prerequisite to an award of
damages under § 1983.”) (internal quotation marks omitted).
A defendant may not be held liable under Section 1983 solely
because that defendant employs or supervises a person who
violated the plaintiff's rights. See Ashcroft v. Iqbal, 556 U.S.
662, 676 (2009) (“Government officials may not be held
liable for the unconstitutional conduct of their subordinates
under a theory of respondeat superior.”). Rather, “[t]o hold a
state official liable under § 1983, a plaintiff must plead and
prove the elements of the underlying constitutional violation
directly against the official ....” Tangreti v. Bachmann, 983
F.3d 609, 620 (2d Cir. 2020).
Plaintiff does not allege any facts showing how
Commissioner Carrion was personally involved in the events
underlying his claims. Plaintiff's claims against Carrion are
therefore dismissed for failure to state a claim on which relief
may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii).
E. Removal of State Court Holdover Proceeding
Plaintiff cites to 28 U.S.C. § 1446, which provides the
procedure for removal of civil actions, and suggests that he
would like to remove to this court the Civil Court's holdover
action. To the extent Plaintiff's complaint could be read as
a notice of removal, it suffers from procedural defects, and
Plaintiff does not establish that this Court has subject matter
jurisdiction of the holdover action.
1. Timeliness
*6 As an initial matter, a notice of removal must be filed
within 30 days of the defendant's receipt of a pleading,
motion, or other paper indicating grounds for removal. 28
U.S.C. § 1446(b)(1). “[I]f the case stated by the initial
pleading is not removable, a notice of removal may be filed
within thirty days after receipt by the defendant, through
service or otherwise, of a copy of an amended pleading,
motion, order or other paper from which it may first be
ascertained that the case is one which is or has become
removable.” 28 U.S.C. § 1446(b)(3). “[T]he 30-day removal
periods of 28 U.S.C. §§ 1446(b)(1) and (b)(3) are not
triggered until the plaintiff serves the defendant with an initial
pleading or other document” in the case that demonstrates
removability. Cutrone v. Mortg. Elec. Registration Sys., Inc.,
749 F.3d 137, 148 (2d Cir. 2014).
Plaintiff alleges that the holdover petition was filed in the
state court on November 3, 2022. (ECF 1, at 12.) He does
not allege when he was served with the petition, but he
references multiple proceedings that occurred more than 30
days before he filed this action, including the alleged unlawful
bench trial that occurred on July 26, 2023. It therefore appears
that Plaintiff's attempted removal of the state court action is
untimely. 4
4 Plaintiff makes no argument that it could not
be ascertained until recently that the case was
removable. 28 U.S.C. § 1446(b)(3).
2. Subject matter jurisdiction
Moreover, a defendant in a state court action may remove a
matter to a federal district court only if the district court has
original jurisdiction of the action. See 28 U.S.C. § 1441(a);
Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546,
591 (2005) (“The Supreme Court has interpreted [28 U.S.C.]
§ 1441 to prohibit removal unless the entire action, as it stands
at the time of removal, could have been filed in federal court
in the first instance.”). Removal based on federal question
jurisdiction is proper “only if the federal question appears
plainly on the face of a ‘well-pleaded complaint.’ ” Fax
Telecomm. Inc. v. AT&T, 138 F.3d 479, 486 (2d Cir. 1998).
Here, Plaintiff does not allege any facts suggesting that
the Court has original jurisdiction of the state court action.
The petition presents a simple landlord-tenant dispute over
nonpayment of rent, a matter of which federal courts do
not have jurisdiction. See Ally v. Sukkar, 128 F. App'x
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Williams v. Audubon TP4 LLC, Not Reported in Fed. Supp. (2023)
2023 WL 8528552
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 6
194, 195 (2d Cir. 2005) (amended summary order) (“[A]
landlord-tenant dispute [is one] over which the federal courts
simply have no [federal question] jurisdiction.”); United
Mut. Houses, L.P. v. Andujar, 230 F. Supp. 2d 349, 354
(S.D.N.Y. 2002) (noting that “the landlord-tenant relationship
is fundamentally a matter of state law” and that “[t]ime
and again, district courts have disclaimed jurisdiction over
landlord-tenant disputes” (citation and quotations marks
omitted)). Furthermore, the Court lacks diversity jurisdiction
of the state court matter because all of the parties appear to be
residents of the State of New York. See 28 U.S.C. § 1332(a).
3. Action adjudicated in state court
As noted above, it is not clear from Plaintiff's complaint
whether the Civil Court case has been terminated. When
a state court has entered final judgment in an action, that
case cannot be removed to federal court. See Four Keys
Leasing & Maint. Corp. v. Simithis, 849 F.2d 770, 774 (2d
Cir.1988) (holding that granting permission to remove a
case after entry of a final state-court judgment “would be a
perversion of the removal process”); Murray v. Deer Park
Union Free Sch. Dist., 154 F. Supp. 2d 424, 426 (E.D.N.Y.
2001) (“[A] final judgment ... not be removed to this Court
so that the plaintiff can relitigate issues already decided
by the state court.”); Credit One, LLC v. Head, No. 09-
CV-1852, 2010 WL3058916, at *1 (D. Conn. 2010) (rejecting
pro se plaintiff's attempt to remove closed state action and
explaining that federal district courts “do not sit as courts of
appeal over state court judges”). Plaintiff may not seek the
removal of a state court action in which a final judgment has
been entered.
*7 For the reasons stated, removal of this action is improper.
The Court need not remand this improperly removed action,
which may have already been adjudicated in the state court.
F. Remaining Statutory Claims
Plaintiff references many other statutory provisions in the
complaint, including 15 U.S.C. § 1635, a provision of the
Truth in Lending Act (“TILA”) concerning the right of
rescission; 28 U.S.C. § 2241, a provision to bring a petition for
a writ of habeas corpus; and 28 U.S.C. § 1651, the All Writs
Act. Because Plaintiff does not allege any facts indicating
how these statutes are applicable to his claims, the Court finds
that he has failed to state claims under these laws on which
relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(iii)
G. Leave to Amend is Denied
District courts generally grant a pro se plaintiff an opportunity
to amend a complaint to cure its defects, but leave to amend is
not required where it would be futile. See Hill v. Curcione, 657
F.3d 116, 123–24 (2d Cir. 2011); Salahuddin v. Cuomo, 861
F.2d 40, 42 (2d Cir. 1988). Because the defects in Plaintiff's
complaint cannot be cured with an amendment, the Court
declines to grant Plaintiff leave to amend his complaint.
CONCLUSION
The Court dismisses the complaint for the reasons set forth
above. All other pending matters in this action are terminated.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any
appeal from this order would not be taken in good faith, and
therefore IFP status is denied for the purpose of an appeal. See
Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2023 WL 8528552
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 6:26-cv-00070-MAD-MJK Document 25 Filed 03/17/26 Page 37 of 88

Williams v. Audubon TP4 LLC
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 1:23-CV-08758
Williams v. Audubon TP4 LLC et al
— S.D.N.Y. Oct. 05, 2023 Docket
Case 6:26-cv-00070-MAD-MJK Document 25 Filed 03/17/26 Page 38 of 88

Williams v. Audubon TP4 LLC
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History
There are no History results for this citation.
Case 6:26-cv-00070-MAD-MJK Document 25 Filed 03/17/26 Page 39 of 88

Citibank, N.A. v. Swiatkoski, Not Reported in F.Supp.2d (2005)
2005 WL 6796770
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Overruling Risk
Overruling Risk Exxon Mobil Corp. v. Saudi Basic Industries Corp., U.S.,
March 30, 2005
2005 WL 6796770
Only the Westlaw citation is currently available.
United States District Court,
E.D. New York.
CITIBANK, N.A., Plaintiffs,
v.
Lidia SWIATKOSKI, Michael Swiatkowski, Betina
Swiatkowski, American Express Travel Related Services
Co. Inc., American Express Centurion Bank, Susan
Bailey, and John Doe and/or Jane Doe # 1–10 Inclusive,
Lidia Swiatkoski, and Michael Swiatkowski, Plaintiffs,
v.
The State of New York, as an individual, George
Pataki and George Pataki as the Governor of the State
of New York, ELliot Spitzer and Elliot Spitzer as
the New York State Attorney General, Zelda Jonas,
Citibank and as Citicorp and as Citi Mortgage and
(Cmi) Servicing Agent Carl Levinson, Individually
and as Ceo, Garry R. Seligson and Garry R. Seligson
as V.P. & General Counsel, Legal Dept., Jaime
R. Hutchison, Teresa MEtcalf, David Gallo Esq.,
and Manton, Sweeney, Gallo, Reich & Bolz, LLP,
ROsemarie A. Klie Esq., RAshel M. Mehlman Esq.,
William J. Corbett Esq, jointly and severally and
“John Doe” Number 1 Through 100, These Names
Being Fictitious, the Actual Names and Address Being
Unknown; Each Named Party Individually and Jointly
And in Their Official Capacity, If Any, Defendants.
Nos. 04–cv–5122 (ADS)(ARL),
05–cv–0178 (ADS)(ARL).
|
March 18, 2005.
Attorneys and Law Firms
Lidia Swiatkowski, Massepequa, NY, pro se.
Michael Swiatkowski, Massepequa, NY, pro se.
Manton, Sweeney, Gallo, Reich & Bolz, LLP, by: Rashel
Mehlman, Esq., of Counsel, Rego Park, NY, New York State
Attorney General, by: Ralph Pernick, Assistant Attorney
General, of Counsel, Mineola, NY, for the Plaintiffs and
Defendants.
ORDER
SPATT, District Judge.
*1 Currently pending are two cases brought to this Court
by Lidia Swiatkoski and Michael Swiatkowski (collectively
“Swiatkowski”). Case number 04–5122 is a foreclosure
action, originally filed by Citibank on January 17, 2003 in
Supreme Court, Nassau County, New York, (Index No. 03–
1197) (the “Foreclosure Action”), which was removed to this
Court on November 24, 2004 by Swiatkowski. Case number
05–178 (the “2005 Action”) was filed by Swiatkowski on
January 12, 2005 against various parties involved in the
Foreclosure Action, including: (1) the State of New York
and—in both their individual and official capacities—its
Governor George Pataki, its Attorney General Elliot Spitzer,
and the Honorable Zelda Jonas, the New York State Supreme
Court Justice presiding over the Foreclosure Action; and (2)
Citibank and its CEO Carl Levinson, its V.P. & General
Counsel Garry R. Seligson, and Manton, Sweeney, Gallo,
Reich & Bolz, LLP, the law firm that represents it in the
Foreclosure Action along with its attorneys David Gallo, Esq.,
Rosemarie A. Klie, Esq., Rashel M. Mehlman, Esq., and
William J. Corbett, Esq.
On January 17, 2003, Citibank instituted the Foreclosure
Action by filing a summons and complaint in Supreme
Court, Nassau County. Swiatkowski filed an answer alleging
that the state court did not have jurisdiction because of a
pending federal action, Swiatkowski v. Bank of America, No.
02–cv–03981(ADS)(ARL) (the “2002 Action”). On August
2, 2003, this Court dismissed the 2002 Action for lack
of subject matter jurisdiction under the Rooker–Feldman
abstention doctrine. On June 17, 2004, the United States Court
of Appeals for the Second Circuit affirmed that decision.
Swiatkowski v. Bank of America, NT & SA, 103 Fed.Appx.
431, 432, 2004 WL 1367927, *1 (2nd Cir.2004) (“It is well
settled that inferior federal courts lack jurisdiction to review
state court decisions.”).
On January 29, 2004, the state court granted a motion by
Citibank for summary judgment in the Foreclosure Action.
On November 10, 2004, Swiatkowski moved by order
to show cause in state court to vacate the judgment of
foreclosure. That motion was denied. On November 22, 2004,
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Citibank, N.A. v. Swiatkoski, Not Reported in F.Supp.2d (2005)
2005 WL 6796770
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
Swiatkowski filed a notice of appeal in the Foreclosure Action
with the Appellate Division, Second Department. Two days
later, on November 24, 2004, Swiatkowski filed a petition
to remove the Foreclosure Action to this Court because “the
state court cannot, is unwilling, or that an extrajudicial climate
exists that is prejudicial to petitioner's civil rights and the
enjoyment of her constitutional rights because racial, ethnic,
or religious or other bias.” Swiatkowski's Petition at 2–3.
Citibank brought this order to show cause seeking to remand
the Foreclosure Action back to the state court. On March
15, 2005, the Court heard oral argument on the motion to
remand the case back to state court. At oral argument and in
their submissions to the Court, the Swiatkowskis continually
attack the decisions of the Supreme Court, Nassau County.
The Swiatkowskis urge this Court to review the decisions of
the Supreme Court, Nassau County, and usurp the authority
of the Appellate Division, Second Department, which has not,
as of yet, decided the Swiatkowskis' appeal.
*2 The federal courts are courts of limited jurisdiction.
The New York State supreme courts are courts of general
jurisdiction, and the presumption is that they have subject
matter jurisdiction over a particular controversy unless a
showing is made to the contrary. On the other hand, the
federal courts are only empowered to hear cases specifically
authorized by the Constitution or statute. Kokkonen v.
Guardian Life Ins. Co. of America, 511 U.S. 375, 377, 114
S.Ct. 1673, 1675, 128 L.Ed.2d 391 (1994). As such, “it would
not simply be wrong but indeed would be an unconstitutional
invasion of the powers reserved to the states if the federal
courts were to entertain cases not within their jurisdiction....”
13 Fed. Prac. & Proc. Juris.2d § 3522.
It is well-settled that the party seeking to invoke the
jurisdiction of a federal court, unlike the state court, must
demonstrate that the case is within the competence of that
court. Kokkonen, 511 U.S. at 377, 114 S.Ct. at 1675, 128
L.Ed.2d 391 (1994). The Swiatkowskis have not met this
burden. From the face of the petition and the procedural
history of the case, it is clear that this Court lacks subject
matter jurisdiction under the Rooker–Feldman abstention
doctrine. See Rooker v. Fidelity Trust Co., 263 U.S. 413,
44 S.Ct. 149, 68 L.Ed. 362 (1923); District of Columbia
Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct.
1303, 75 L.Ed.2d 206 (1983). Under this doctrine, “federal
district courts lack jurisdiction to review state court decisions
whether final or interlocutory in nature,” Gentner v. Shulman,
55 F.3d 87, 89 (2d Cir.1995), and “federal review, if any,
can occur only by way of a certiorari petition to the
Supreme Court,” Moccio v. New York State Office of Court
Admin., 95 F.3d 195, 197 (2d Cir.1996). “Such jurisdiction is
lacking because within the federal system, only the Supreme
Court may review a state court judgment.” Hachamovitch v.
DeBuono, 159 F.3d 687, 693 (2d Cir.1998).
A federal court must remand a case if “at any time before
final judgment it appears that the district court lacks subject
matter jurisdiction....” 28 U.S.C. § 1447. Here, an appeal
is pending in the Foreclosure Action before the Appellate
Division, Second Department. In addition, the Swiatkowskis
have brought nothing forward, other than attacks on the state
court decision in the Foreclosure Action that would grant this
Court an independent basis of jurisdiction. These attacks on
the state court decision can be raised in the appeal before the
Appellate Division. This Court cannot review the decisions of
the New York State Supreme Court. Immediate review of the
New York State Supreme Court can only be exercised by the
Appellate Division, where the Swiatkoski's appeal is pending.
Therefore, this case is remanded back to the state court for
lack of subject matter jurisdiction.
For the same reasons, the Court lacks subject matter
jurisdiction in the latest case filed by the Swiatkowskis.
In the 2005 Action, Swiatkowski filed a 124–page, 364–
paragraph complaint encompassing sixteen causes of action
against various parties that are involved in the Foreclosure
Action, including the New York State Supreme Court Justice
presiding over the Foreclosure Action, Citibank, and its
attorneys.
*3 The Rooker–Feldman doctrine prohibits a district court
from handling claims that are “inextricably intertwined” with
state court determinations. Kropelnicki v. Siegel, 290 F.3d
118, 128 (2d Cir.2002). A claim is inextricably intertwined
with a state court judgment when “at a minimum, ... a
federal plaintiff had an opportunity to litigate a claim in a
state proceeding (as either the plaintiff or defendant in that
proceeding), ... [and] the claim ... would be barred under the
principles of preclusion.” Kropelnicki v. Siegel, 290 F.3d 118,
128 (2d Cir.2002) (internal quotations and citation omitted).
In addition, a plaintiff cannot circumvent Rooker–Feldman
by recasting her claim as a federal civil rights violation. See
Davidson v. Garry, 956 F.Supp. 265, 268–69 (E.D.N.Y.1996).
After hearing oral argument and reviewing the submissions
of the parties, there is no doubt that the Swiatkowskis' claims
arise from their mortgage foreclosure proceedings in state
Case 6:26-cv-00070-MAD-MJK Document 25 Filed 03/17/26 Page 41 of 88

Citibank, N.A. v. Swiatkoski, Not Reported in F.Supp.2d (2005)
2005 WL 6796770
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
court. Despite the fact that the claims are cast in terms of
civil rights violations, Swiatkowski's purpose in filing this
action in federal court is clearly to avoid the results of the state
court rulings. This latest case, apparently, demonstrates their
dissatisfaction with the state court proceedings. See Pal v.
Garvey, 1998 U.S. Dist. LEXIS 11565, at * 1 (S.D.N.Y., July
29, 1998) (“[D]ismissal warranted where complaint alleged
state court exceeded its constitutional authority, made various
evidentiary errors, deprived plaintiff of right to counsel, and
deprived plaintiff of other unspecified rights....”).
Indeed, even if the actions taken by the state court were
wrongful, as alleged, the orders remains in full force and
effect until they are reversed or modified by an appropriate
state court. Put simply, Swiatkowski cannot enter through the
back door to evade the Rooker–Feldman doctrine in order to
get into federal court.
For all the foregoing reasons, it is hereby
ORDERED, that case number 04–5122 is REMANDED to
the Supreme Court, County of Nassau, New York; and it is
further
ORDERED, that Citibank's motion for sanctions is denied;
and it is further ORDERED, that the Clerk of the Court is
directed to close case number 04–5122; and it is further
ORDERED, that case number 05–178 is dismissed for lack
of subject matter jurisdiction; and it is further
ORDERED, that the Clerk of the Court is directed to close
case number 05–178.
SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2005 WL 6796770
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 6:26-cv-00070-MAD-MJK Document 25 Filed 03/17/26 Page 42 of 88

Citibank, N.A. v. Swiatkoski
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (2)
Title PDF Court Date Type
1. Docket 2:05cv00178
SWIATKOWSKI ET AL v. THE STATE OF NEW YORK
ET AL
— E.D.N.Y. Jan. 12, 2005 Docket
2. Docket 2:04cv05122
CITIBANK, N.A. v. SWIATKOWSKI ET AL
— E.D.N.Y. Nov. 24, 2004 Docket
Case 6:26-cv-00070-MAD-MJK Document 25 Filed 03/17/26 Page 43 of 88

Citibank, N.A. v. Swiatkoski
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History (2)
Direct History (1)
1. Citibank, N.A. v. Swiatkoski
2005 WL 6796770 , E.D.N.Y. , Mar. 18, 2005
Related References (1)
2. Citibank, N.A. v. Swiatkoski
395 F.Supp.2d 5 , E.D.N.Y. , Oct. 29, 2005
Case 6:26-cv-00070-MAD-MJK Document 25 Filed 03/17/26 Page 44 of 88

Citibank, N.A. v. Swiatkoski
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 6:26-cv-00070-MAD-MJK Document 25 Filed 03/17/26 Page 45 of 88

City of Philadelphia v. Bradley, Not Reported in Fed. Supp. (2024)
2024 WL 4755810
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2024 WL 4755810
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
CITY OF PHILADELPHIA, Plaintiff,
v.
Aisha Asha BRADLEY, Defendant.
24-CV-7703 (LTS)
|
Signed October 15, 2024
Attorneys and Law Firms
Aisha Asha Bradley, Philadelphia, PA, Pro Se.
ORDER
LAURA TAYLOR SWAIN, Chief United States District
Judge:
*1 Defendant, who is appearing pro se, has removed to
this Court a 2023 civil tax action that was pending in the
Court of Common Pleas of Philadelphia County, under Case
No. 2305T0155. 1 The City of Philadelphia brought this
action against Defendant Aisha Bradley seeking delinquent
real estate taxes for a property at 800 Seffert Street in
Philadelphia. Defendant previously removed this civil tax
action to the United States District Court for the Eastern
District of Pennsylvania, which remanded it. See City of
Philadelphia v. Bradley, No. 24-CV-0016, 2024 WL 406757,
at *1 (E.D. Pa. Feb. 2, 2024). For the reasons set forth below,
the action is remanded to the Court of Common Pleas of
Philadelphia County. 2
1 On the same day that Defendant brought this action,
she filed two other Notices of Removal of cases
pending in Pennsylvania. City of Philadelphia v.
Bradley, No. 24-CV-7706 (LTS) (S.D.N.Y. filed
Oct. 3, 2024); City of Philadelphia v. Bradley, No.
24-CV-7606 (LTS) (S.D.N.Y. filed Oct. 3, 2024).
Defendant nevertheless references multiple state
court actions in each of the Notices of Removal.
2 Defendant has not paid the filing fees to remove
this action. Because the action is being remanded,
and no in forma pauperis application has been
submitted, the Court does not consider whether
Defendant qualifies to proceed in forma pauperis.
STANDARD OF REVIEW
A defendant in a state court action may remove a matter
to federal district court if the district court has original
jurisdiction over the action. 28 U.S.C. § 1441(a). To remove
a state-court action to a federal district court:
[a] defendant ... shall file in the district
court of the United States for the
district and division within which such
action is pending a notice of removal
signed pursuant to Rule 11 of the
Federal Rules of Civil Procedure and
containing a short and plain statement
of the grounds for removal, together
with a copy of all process, pleadings,
and orders served upon such defendant
or defendants in such action.
28 U.S.C. § 1446(a). The right of removal is “entirely a
creature of statute,” and the “statutory procedures for removal
are to be strictly construed.” Syngenta Crop Protection, Inc. v.
Henson, 537 U.S. 28, 32 (2002). A federal district court may
remand an action sua sponte within 30 days of the filing of the
notice of removal for a procedural defect, or at any time for a
lack of subject matter jurisdiction. See 28 U.S.C. § 1447(c);
Mitskovski v. Buffalo & Fort Erie Pub. Bridge Auth., 435 F.3d
127, 131-33 (2d Cir. 2006); Hamilton v. Aetna Life & Cas.
Co., 5 F.3d 642, 643-44 (2d Cir. 1993).
DISCUSSION
Removal of this case is improper for multiple reasons. First,
a notice of removal must be filed within 30 days of the
defendant's receipt of a pleading, motion, or other paper
indicating grounds for removal. 28 U.S.C. § 1446(b)(1). 3
This action was already pending in the Court of Common
Pleas in 2023. The Notice of Removal filed on October 3,
2024, was therefore brought well beyond the 30-day deadline,
and the Court concludes that the removal of this action was
untimely.
Case 6:26-cv-00070-MAD-MJK Document 25 Filed 03/17/26 Page 46 of 88

City of Philadelphia v. Bradley, Not Reported in Fed. Supp. (2024)
2024 WL 4755810
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
3 “[I]f the case stated by the initial pleading is not
removable, a notice of removal may be filed within
thirty days after receipt by the defendant, through
service or otherwise, of a copy of an amended
pleading, motion, order or other paper from which
it may first be ascertained that the case is one which
is or has become removable.” 28 U.S.C. § 1446(b)
(3). Nothing in the Notice of Removal suggests
that this rule applies, and the removal in any event
suffers from other incurable defects.
*2 Second, removal is proper only to the federal court
embracing the district where the state action is pending. 28
U.S.C. § 1441(a). This action was pending in the Court
of Common Pleas of Philadelphia County, which is in the
Eastern District of Pennsylvania. See 28 U.S.C. § 118(a).
Removal of a case pending in Philadelphia to the Southern
District of New York is therefore improper.
Third, Defendant cannot remove this action to federal court,
under 28 U.S.C. § 1441(c), on the basis of defenses or
counterclaims arising under federal law. In the context of
removal, “federal jurisdiction exists only when a federal
question is presented on the face of the plaintiff's properly
pleaded complaint.” Rivet v. Regions Bank of Louisiana, 522
U.S. 470, 475 (1998) (internal quotation marks and citations
omitted). A federal defense or counterclaim does not provide
a basis for removal. See Beneficial Nat'l Bank v. Anderson,
539 U.S. 1, 6 (2003) (holding that a federal law defense or
counterclaim is not a proper foundation for removal of a case
from state to federal court); City of Rome, N.Y. v. Verizon
Commc'ns Inc., 362 F.3d 168, 175 (2d Cir. 2004) (holding
that “[t]he mere existence or invocation of a federal defense
does not furnish a sufficient basis for jurisdiction to attach”).
Defendant does not meet her burden, as the party seeking
removal, of showing that the City of Philadelphia's civil action
against her in state court for delinquent real estate taxes arises
under federal law.
Moreover, Defendant was already put on notice of this
deficiency. When Defendant removed this same civil tax
action to the United States District Court for the Eastern
District of Pennsylvania, the district court explained in the
remand order that Defendant's crossclaims and counterclaims
– brought against Philadelphia, the Commonwealth of
Pennsylvania, several state judges, prosecutors, and state
court employees, pursuant to 42 U.S.C. § 1983 and 28 U.S.C.
§ 1343 and various state and federal criminal statutes –
could not provide a basis for subject matter jurisdiction. 4
See Bradley, No. 24-CV-0016, 2024 WL 406757, at *2-4.
Defendant was therefore on notice before she removed this
action that she could not create subject matter jurisdiction
for purposes of removal based on her federal defenses,
crossclaims, or counterclaims. The Court therefore warns
Defendant that continuing this pattern of filing improper
Notices of Removal may result in an order barring her from
proceeding in forma pauperis in this court without first
obtaining permission from the court to bring such an action.
See 28 U.S.C. § 1651.
4 Defendant Bradley was also unsuccessful in
removing to federal court other matters pending
in the Court of Common Pleas. See City of
Philadelphia v. Bradley, No. CV 24-15, 2024 WL
406755, at *1 (E.D. Pa. Feb. 2, 2024) (Case No.
1594); City of Philadelphia v. Bradley, No. 24-
CV-0015, 2024 WL 406755, at *1 (E.D. Pa. Feb.
2, 2024) (Case No. 2305T0156).
For all of these reasons, removal of this action is improper,
and the Court directs that this matter be remanded to the Court
of Common Pleas. 28 U.S.C. § 1447(c).
CONCLUSION
Because removal of this action is improper, this action
is remanded, under 28 U.S.C. § 1447(c), to the Court of
Common Pleas of Philadelphia County.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any
appeal from this order would not be taken in good faith, and
therefore in forma pauperis status is denied for the purpose
of an appeal. See Coppedge v. United States, 369 U.S. 438,
444-45 (1962).
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2024 WL 4755810
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 6:26-cv-00070-MAD-MJK Document 25 Filed 03/17/26 Page 47 of 88

City of Philadelphia v. Bradley
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History (2)
Direct History (2)
1. City of Philadelphia v. Bradley
2024 WL 4755810 , S.D.N.Y. , Oct. 15, 2024
Appeal Withdrawn by
2. City of Philadelphia v. Bradley
2024 WL 5379025 , 2nd Cir. , Nov. 19, 2024
Case 6:26-cv-00070-MAD-MJK Document 25 Filed 03/17/26 Page 48 of 88

City of Philadelphia v. Bradley
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings
There are no Filings for this citation.
Case 6:26-cv-00070-MAD-MJK Document 25 Filed 03/17/26 Page 49 of 88

Einhorn v. Best, Not Reported in F.Supp.2d (2011)
2011 WL 1046064
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2011 WL 1046064
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Jonathan EINHORN, Plaintiff,
v.
Harriett E. BEST and Patricia Best, Defendants.
No. 10 Civ. 9377(JSR)(JLC).
|
Feb. 10, 2011.
REPORT AND RECOMMENDATION
JAMES L. COTT, United States Magistrate Judge.
*1 To The Honorable Jed S. Rakoff, United States
District Judge:
Harriett E. Best and Patricia Best (the “Bests”), proceeding
pro se, filed a notice of removal pursuant to 28 U.S.C. §
1446(a) on December 16, 2010, attempting to remove a fully
litigated foreclosure action from the Supreme Court of the
State of New York, New York County (Index No. 06–118791)
(the “Foreclosure Action”) to this Court. For the reasons set
forth below, I recommend that the Court remand this action
to state court.
BACKGROUND
On January 6, 2005, Patricia Best signed a promissory note
payable to Jonathan Einhorn (“Einhorn”) in the amount of
$160,000, plus interest as provided therein; the note was
secured by a mortgage on the property at 276 West 113th
Street, New York, New York (the “Property”). Affidavit of the
Defense Pursuant to the Request of the Court, dated January
21, 2011 (“Defs.' Aff.”), Ex. A (Dkt. No. 4). Einhorn recorded
the mortgage in the Office of the City Register in New
York County on November 6, 2006, and initiated foreclosure
proceedings on the Property in state Supreme Court. Id. Ex.
D, at 1. The state court entered a judgment of foreclosure and
sale on October 22, 2008, and a court-appointed referee sold
the Property at a public auction to Einhorn, the highest bidder,
on April 14, 2010. Id. Ex. D, at 1, 3–4. Einhorn assigned the
property to 276 W 113 LLC (“the Company”) on that date,
and the Company currently holds title to the Property under a
referee's deed. Id. Ex. D, at 1, 3–4.
About a year after the judgment of foreclosure and sale on
the Property was entered, on October 2, 2009, Patricia Best
filed a voluntary petition for bankruptcy pursuant to Chapter
13 of the Bankruptcy Code in the United States Bankruptcy
Court for the Southern District of New York. Defs.' Aff. ¶ 5 &
Ex. B. By Order dated March 11, 2010, the Bankruptcy Court
dismissed the petition, concluding that “the debtor has caused
unreasonable delay that is prejudicial to creditors by: a. failing
to appear and be examined at the meeting of creditors ...;
and b. failing to provide all documentation as required by the
Chapter 13 trustee.” Order Dismissing Chapter 13 Case, In
re Patricia Best, No. 09–15946–mg (Bankr.S.D.N.Y. Mar. 11,
2010). (ECF No. 12).
On December 16, 2010, the Bests filed a notice of removal
pursuant to 28 U.S.C. § 1446(a) (the “Notice of Removal”)
in this Court, asserting that the Foreclosure Action was
“occurring in violation of the Uniform Commercial Code
of 15 U.S.C. 1692.” 1 Notice of Removal at 1 (Dkt. No.
1). Additionally, in a “Letter of Complaint” annexed to the
Notice of Removal, the Bests assert that the Foreclosure
Action violated, among other things, the FDCPA, the Truth
in Lending Act (“TILA”), and their constitutional rights, and
seek a stay of “all State and Civil Court Proceedings and
Orders” until further order of this Court. Id. at 3. This case
was referred to me for general pretrial supervision and any
dispositive motions on December 21, 2010. Dkt. No. 2.
1 The Bests appear to be referring to the Fair Debt
Collection Practices Act (“FDCPA”), Pub.L. No.
95–109, 91 Stat. 874 (1977) (codified as amended
at 15 U.S.C. §§ 1692–1692o (2006)). Section 1692
of Title 15 sets forth the Congressional Findings
and Declaration of Purpose for the FDCPA.
*2 In response to the Notice of Removal, by letter dated
December 22, 2010, the Company informed the Court that it
has a holdover proceeding pending in New York City Civil
Court, Housing Part to evict the Bests and contended that
the Bests purport to remove the Foreclosure Action in an
attempt to have this Court stay the eviction action. Letter from
William Hill Grier, Esq. to the Honorable Jed S. Rakoff, dated
December 22, 2010 (the “Grier Letter”) at 3. 2
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2 Counsel for the Company has not otherwise
appeared in this action.
By Order dated January 10, 2011, I ordered the Bests to show
cause why the Foreclosure Action should not be remanded
to state court pursuant to 28 U.S.C. § 1447. 3 Dkt. No. 3.
On January 21, 2011, the Bests submitted an affidavit and
memorandum of law in response to my Order, asserting,
among other things, that (1) the Foreclosure Action was
invalid; (2) their removal of the Foreclosure Action was
timely; and (3) the Court has subject matter jurisdiction over
the action. Defs,' Aff; Memorandum of Law, dated January
21, 2011 (Dkt. No. 4).
3 I also ordered the Company, Einhorn's former
counsel, Eric Hoberman, Esq., and the Bests'
former counsel, Clover M. Barrett, Esq., to provide
the Court with any information relevant to the
Housing Court proceeding that took place on
December 28, 2010 and any other information that
might be relevant to this action. The Company
did not provide the Court with any additional
information. The Order to Mr. Barrett was returned
as undeliverable. By letter dated January 21,
2011, Mr. Hoberman, who no longer represents
Einhorn, confirmed that the foreclosure action was
completed years earlier.
DISCUSSION
A. This Action Must be Remanded for Lack of Subject
Matter Jurisdiction
28 U.S.C. § 1441 provides for removal of all claims over
which federal courts have “original jurisdiction.” This means
that “only state-court actions that originally could have been
filed in federal court may be removed by the defendant.
Absent diversity of citizenship, federal-question jurisdiction
is required.” Caterpillar, Inc. v. Williams, 482 U.S. 386,
392 (1987) (citations omitted). Moreover, Section 1441(b)
draws a distinction between removal of cases involving
federal question jurisdiction and those involving diversity of
citizenship jurisdiction; it provides as follows:
Any civil action of which the district
courts have original jurisdiction
founded on a claim or right arising
under the Constitution, treaties or laws
of the United States shall be removable
without regard to the citizenship or
residence of the parties. Any other
such action shall be removable only if
none of the parties in interest properly
joined and served as defendants is
a citizen of the State in which such
action is brought.
“A district court must remand a case to state court ‘if at any
time before final judgment it appears that the district court
lacks subject matter jurisdiction.’ “ Vera v. Saks & Co., 335
F.3d 109, 113 (2d Cir.2003) (quoting 28 U.S.C. § 1447(c)).
The “statutory procedures for removal are to be strictly
construed,” Syngenta Crop Protection, Inc. v. Henson, 537
U.S. 28, 32 (2002) (citations omitted), and “out of respect for
the limited jurisdiction of the federal courts and the rights of
states, [courts] must resolve any doubts against removability.”
In re Methyl Tertiary Butyl Ether Prods., 488 F.3d 112, 124
(2d Cir, 2007) (citation, internal alterations, and quotations
omitted). Moreover, “[w]here, as here, jurisdiction is asserted
by a defendant in a removal petition, it follows that the
defendant has the burden of establishing that removal is
proper.” United Food & Commercial Workers Union, Local
919 v. CenterMark Props. Meriden Square, Inc., 30 F.3d 298,
301 (2d Cir.1994) (citations omitted).
*3 The Bests have failed to meet that burden here, and
the Foreclosure Action must be remanded pursuant to 28
U.S.C. § 1447(c) for lack of subject matter jurisdiction. 4 As
an initial matter, the Bests may not remove the Foreclosure
Action on the basis of diversity jurisdiction because the Bests,
defendants in the action, are citizens of New York, and New
York is the state in which the Foreclosure Action was brought.
See28 U.S.C. § 1441(b); Lincoln Prop. Co. v. Roche, 546
U.S. 81, 84 (2005) (“Defendants may remove an action on the
basis of diversity of citizenship if there is complete diversity
between all named plaintiffs and all named defendants, and no
defendant is a citizen of the forum State .”) (emphasis added).
4 The Bests are proceeding pro se, and therefore
their submissions “ ‘must be held to less
stringent standards than formal pleadings drafted
by lawyers.’ “ Sealed Plaintiff v. Sealed Defendant,
537 F.3d 185, 191 (2d Cir.2008) (quoting Erickson
v. Pardus, 551 U.S. 89, 94 (2007)); see also
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Seidemann v. Bowen, 584 F.3d 104, 118 (2d.
Cir.2009). Additionally, the Court must liberally
construe the submissions and interpret them “ ‘to
raise the strongest arguments that they suggest.’
“ Diaz v. United States, 517 F.3d 608, 613 (2d
Cir.2008) (quoting Burgos v. Hopkins, 14 F.3d 787,
790 (2d Cir.1994)). Pro se status, however, “does
not exempt a party from compliance with relevant
rules of procedural and substantive law.” Traguth
v. Zuck, 710 F.2d 90, 95 (2d Cir.1983) (citation and
internal quotation marks omitted).
The Bests may not remove the action based on federal
question jurisdiction either. Although the Bests invoke federal
law—the FDCPA, TILA, and the Constitution—in their
Notice of Removal and Letter of Complaint and claim that
the foreclosure proceeding was unlawful, such an invocation
is insufficient to establish federal question jurisdiction under
28 U.S.C. § 1331. To invoke federal question jurisdiction,
the plaintiff's claims alleged in the state court action must
arise “under the Constitution, laws, or treaties of the United
States.” 28 U.S.C. § 1331. Moreover, under the “well-pleaded
complaint” rule:
Whether a case is one arising under
the Constitution or a law or treaty
of the United States, in the sense
of the jurisdictional statute, ... must
be determined from what necessarily
appears in the plaintiff's statement of
his own claim in the bill or declaration,
unaided by anything alleged in
anticipation of avoidance or defenses
which it is thought the defendant may
interpose.
Franchise Tax Bd. of State of Cal. v. Construction Laborers
Vacation Trust for S. Cal., 463 U.S. 1, 10 (1983); accord
Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 6 (2003)
(“[A] case will not be removable if the complaint does not
affirmatively allege a federal claim.”) (citations omitted).
Here, the Bests do not assert that the complaint in the
Foreclosure Action alleges a federal claim; in fact, they
neither refer to the complaint nor its allegations in the
documents they have submitted to the Court. Instead,
the apparent gravamen of the Bests' assertion of this
Court's federal question jurisdiction is that they have been
treated unfairly in the Foreclosure Action. “Federal question
jurisdiction is not so easily invoked. Indeed, were such
a sufficient basis for federal question jurisdiction, federal
courts would be inundated with removal cases by state court
defendants who felt that their federal rights were not being
observed by state court judges.” Citibank, N.A. v. Swiatkoski,
395 F.Supp.2d 5, 9 (E.D.N.Y.2005) (citation omitted) (no
subject matter jurisdiction over removed foreclosure action
where defendant contends that removal is necessary because
foreclosure action violated her federal civil and constitutional
rights); see also Kalamas v. Consumer Solutions Reo, LLC,
No. 09 Civ. 5045(SJF), 2010 WL 4811894, at *5 (E.D.N.Y.
Nov. 17, 2010) (no subject matter jurisdiction over removed
holdover proceeding initiated after defendant refused to leave
foreclosed upon property where defendant contends that
removal is necessary because holdover proceeding violates
the FDCPA, TILA, and his constitutional rights).
*4 Additionally, to the extent the Bests assert that the
Foreclosure Action and subsequent sale of the Property
violated the automatic stay in Patricia Best's subsequently
dismissed Chapter 13 bankruptcy proceeding, this assertion
does not provide this Court with federal question jurisdiction
because whether the Foreclosure Action and “referee's sale of
the subject premises violated the automatic bankruptcy stay
provision ... involves a straight application of the statute to the
facts of this case, without the necessity for any interpretation
or construction of the meaning, validity or effect of that
law.” Kalamas, 2010 WL 4811894, at *5 (citing Empire
Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 700–
01 (2006) and Grable & Sons Metal Prods., Inc. v. Darue
Eng'g & Mfg., 545 U.S. 308, 314–15, (2005)). 5
5 In any event, the claim is meritless as the state
Supreme Court entered the judgment of foreclosure
and sale on October 22, 2008, nearly a year before
Patricia Best even filed her bankruptcy petition and
thus triggered the operation of the automatic stay
under 11 U.S.C. § 362(a)(1). Defs.' Aff. Ex. D, at
1. The judgment of foreclosure and sale therefore
extinguished the Bests' interest in the Property
on October 22, 2008 before the automatic stay
went into effect. See, e.g., Darnley v. Ameriquest
Mortg. Co., No. 06 Civ. 4265(DLI), 2010 WL
118143, at *2 (E.D.N.Y. Jan. 8, 2010) (citing In re
Butchman, 4 B.R. 379, 381 (Bankr.S.D.N.Y.1980))
(where chapter 13 debtor filed petition six weeks
after entry of judgment of foreclosure and sale,
debtor had no rights in foreclosed upon property
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and therefore there was no automatic stay in
place preventing auction sale of property). Where,
as here, “a debtor's legal and equitable interests
in property are terminated prior to the filing
of the petition with the Bankruptcy Court that
was intended to preserve the debtor's interest in
such property, the Bankruptcy Court cannot then
cultivate rights where none can grow.” Id. (citations
omitted). Accordingly, neither the judgment of
foreclosure and sale nor the subsequent auction of
the Property violated the automatic stay provisions
of the Bankruptcy Code.
Finally, the Rooker–Feldman abstention doctrine prohibits
this Court from exercising subject matter jurisdiction over
this suit. See Rooker v. Fidelity Trust Co., 263 U.S. 413
(1923); D.C. Court of Appeals v. Feldman, 460 U.S. 462
(1983). The Rooker–Feldman doctrine is “confined to cases
of the kind from which the doctrine acquired its name; cases
brought by state-court losers complaining of injuries caused
by state-court judgments rendered before the district court
proceedings commenced and inviting district court review
and rejection of those judgments.” Exxon Mobil Corp. v.
Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). Federal
review of foreclosure actions such as the one at issue here
are routinely barred by the Rooker–Feldman doctrine. See,
e.g., Ashby v. Polinsky, 328 F. App'x 20, 21 (2d Cir.2009)
(summary order); Garvin v. Bank of New York, 227 F. App'x
7, 8 (2d Cir.2007) (summary order); Kalamas, 2010 WL
4811894, at *6;Swiatkoski, 395 F.Supp.2d at 9,aff'd160 F.
App'x 30, 32 (2d Cir.2005).
Accordingly, because the Bests have failed to meet their
burden of establishing the Court's subject matter jurisdiction
over this action, I recommend that the Court remand it
pursuant to 28 U.S.C. § 1447(c).
B. The Notice of Removal Is Untimely
Even if this Court had subject matter jurisdiction over this
action, it would nevertheless have to be remanded because
removal was untimely. 28 U.S.C. § 1446(b) provides:
The notice of removal of a civil
action or proceeding shall be filed
within thirty days after the receipt
by the defendant, through service or
otherwise, of a copy of the initial
pleading setting forth the claim for
relief upon which such action or
proceeding is based, or within thirty
days after the service of summons
upon the defendant if such initial
pleading has then been filed in court,
and is not required to be served on the
defendant, whichever period is shorter.
The Bests do not dispute that the Foreclosure Action was
filed on November 6, 2006. Although the Bests make the
conclusory statement that “[s]ervice in the onset of this matter
was defective,” Defs.' Aff. at 1, they provide no further
information regarding this statement; nor do they seek to
substantiate it. Moreover, there is no doubt that the Bests
received a copy of the initial pleading in the Foreclosure
Action as the Bests retained a lawyer on February 5, 2007 to
defend them in the action. Grier Letter Ex. C, at 1. Indeed,
the Amended Judgment of Foreclosure and Sale provides
that Harriet Best filed an Answer and Counterclaim dated
February 8, 2007. Defs.' Aff. Ex. E. Even assuming that
the Bests did not receive a copy of the initial pleading in
the Foreclosure Action until early January 2007 before they
retained a lawyer, they did not file a Notice of Removal in
this Court until December 16, 2010, years beyond the 30 days
provided for in Section 1446(b). Accordingly, the Notice of
Removal is not timely and the Court should remand the action
to state court on this ground as well. See, e.g., Kalamas, 2010
WL 4811894, at *3;Swiatkoski, 395 F.Supp.2d at 8;Citibank,
N.A. v. McGuirl, 888 F.Supp. 39, 41 (S.D.N.Y.1995) (rejecting
defendants' attempt to relitigate propriety of foreclosure by
way of removal to federal court three years after foreclosure).
CONCLUSION
*5 For the reasons stated herein, the Court should remand
this action to state court.
PROCEDURE FOR FILING OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the
Federal Rules of Civil Procedure, the parties shall have
fourteen (14) days from service of this Report to file written
objections. See alsoFed.R.Civ.P. 6. Such objections, and any
responses to objections, shall be filed with the Clerk of
Court, with courtesy copies delivered to the chambers of
the Honorable Jed S. Rakoff and the undersigned, United
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States Courthouse, 500 Pearl Street, New York, New York,
10007. Any requests for an extension of time for filing
objections must be directed to Judge Rakoff. FAILURE TO
FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS
WILL RESULT IN A WAIVER OF OBJECTIONS AND
WILL PRECLUDE APPELLATE REVIEW.See Thomas
v. Arn, 474 U.S. 140, 154 (1985); Wagner & Wagner, LLP
v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile,
P.C., 596 F.3d 84, 92 (2d Cir.2010) (citing Cephas v. Nash,
328 F.3d 98, 107 (2d Cir.2003) and Mario v. P & C Food
Mkts., Inc., 313 F.3d 758, 766 (2d Cir.2002)); 28 U.S.C. §
636(b)(1); Fed.R.Civ.P. 72. If Plaintiff does not have access to
cases cited herein that are reported on LEXIS/WESTLAW, he
should request copies from Defendants' counsel. See Lebron v.
Sanders, 557 F.3d 76, 79 (2d Cir.2009) (noting that the Court
may ask opposing counsel to provide to a pro se litigant copies
of decisions that are available electronically).
All Citations
Not Reported in F.Supp.2d, 2011 WL 1046064
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Einhorn v. Best
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 1:10cv09377
EINHORN v. BEST ET AL
— S.D.N.Y. Dec. 16, 2010 Docket
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Einhorn v. Best
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History (2)
Direct History (2)
1. Einhorn v. Best
2011 WL 1046064 , S.D.N.Y. , Feb. 10, 2011
Report and Recommendation Adopted by
2. Einhorn v. Best
2011 WL 1046092 , S.D.N.Y. , Mar. 21, 2011
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Einhorn v. Best
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Sachs v. Matano, Not Reported in Fed. Supp. (2016)
2016 WL 4179792
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2016 WL 4179792
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
Arye SACHS, Pro Se Plaintiff,
v.
Dr. Richard A. MATANO, MD, Defendant.
CV 15-6049 (JFB) (AKT)
|
Signed 07/15/2016
Attorneys and Law Firms
Arye Sachs, Lindenhurst, NY, pro se.
Robert Frank Elliott, Bartlett, McDonough, Bastone &
Monaghan, LLP, Mineola, NY, for Defendant.
REPORT AND RECOMMENDATION
A. KATHLEEN TOMLINSON, Magistrate Judge:
*1 I. PRELIMINARY STATEMENT
Pro Se Plaintiff Arye Sachs (“Plaintiff” or “Sachs”) brings
this action ostensibly pursuant to the Civil Rights Act of
1964, 42 U.S.C. § 2000d et. seq., the Civil Rights Act of
1968, 42 U.S.C. § 3601 et. seq., the Rehabilitation Act of
1973, 29 U.S.C. § 794(a), the Americans with Disabilities
Act (“ADA”), 42 U.S.C. §§ 12181-12189 and the Emergency
Medical Treatment and Active Labor Act (“EMTALA”), 42
U.S.C. § 1395dd, against Defendant Dr. Richard A. Matano
(“Defendant” or “Dr. Matano”) alleging discrimination due to
Plaintiff's national origin, religion, disability and indigence.
Plaintiff also asserts a claim for patient abandonment. See
generally, Complaint (“Compl.”) [DE 1]. 1 Presently before
the Court are (1) Defendant's motion to dismiss Plaintiff's
Complaint, pursuant to Federal Rule of Civil Procedure 12(b)
(6), for failure to state a claim upon which relief can be
granted 2 [DE 13], and (2) Defendant's motion for sanctions
[DE 14].
1 Plaintiff does not cite any particular section with
respect to the statutes he relies upon to support
his claims. However, pro se filings are to be
liberally construed. Shin v. Queens Hosp. Ctr. in
Jamaica, No. 14-CV-7237, 2014 WL 7422664,
at *3 (E.D.N.Y. Dec. 31, 2014). As such, “a pro
se complaint, however inartfully pleaded, must
be held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v. Pardus,
551 U.S. 89, 94, 127 S. Ct. 2197, 167 L.Ed. 2d
1081 (2007) (quoting Estelle v. Gamble, 429 U.S.
97, 106, 97 S. Ct. 285, 50 L.Ed. 2d 251 (1976)).
A court must therefore “read the pleadings of a
pro se plaintiff liberally and interpret them ‘to
raise the strongest arguments that they suggest.’ ”
McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.
1999) (quoting Burgos v. Hopkins, 14 F.3d 878,
890 (2d Cir. 1994)). In light of this guidance, the
Court has reviewed the Complaint in conjunction
with each statute Plaintiff relies upon to support his
allegations and has analyzed Plaintiff's Complaint
in accordance with the statutory sections that could
possibly support Plaintiff's claims.
2 Although Defendant also brings his motion to
dismiss based upon Rule 12(b)(1), Plaintiff has not
interposed any state law claims in his Complaint.
The Court otherwise has subject matter jurisdiction
pursuant to 28 U.S.C. § 1331(a) with respect to
Plaintiff's claims arising under federal law. As
such, the Court will analyze Defendant's motion to
dismiss based solely upon Rule 12(b)(6).
Judge Bianco referred both the motion to dismiss and
the motion for sanctions to this Court for a Report and
Recommendation as to whether the motions should be
granted. For the reasons set forth below, the Court respectfully
recommends to Judge Bianco that Defendant's motion to
dismiss be GRANTED and that Defendant's motion for
sanctions be DENIED.
II. BACKGROUND
A. The Complaint
The following information has been taken directly from
Plaintiff's Complaint. All facts alleged by the Plaintiff are
assumed to be true for purposes of deciding the motion
to dismiss and are construed in a light most favorable to
the Plaintiff as the non-moving party. See, e.g., LaFaro v.
N.Y. Cardiothoracic Grp., 570 F.3d 471, 475 (2d Cir. 2009);
Matthews v. City of N.Y., 889 F. Supp. 2d 418, 425 (E.D.N.Y.
2012).
*2 On Thanksgiving Day 2013, Plaintiff was admitted to
Good Samaritan Hospital in West Islip, New York (“Good
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Samaritan”) for various medical issues including shortness
of breath, fatigue and an ulcer on his right foot. Compl.
p. 3, ¶¶ 7-8. 3 Plaintiff was examined by non-party Dr.
Mancuso and, with respect to the injury to the right foot, Dr.
Mancuso diagnosed Plaintiff as having osteomyelitis of the
fifth toe. Id. p 3, ¶ 9. Upon further examination, Dr. Mancuso
performed an emergency debridement, ordered Plaintiff to
undergo an MRI and placed Plaintiff on antibiotics. Id. p. 3,
¶ 10. After Dr. Mancuso examined the wound and reviewed
the results of the MRI and lab tests, he informed Plaintiff
that the fifth toe on Plaintiff's right foot and the bone under
it required removal due to infection. Id. p. 3, ¶ 11. As part
of the pre-operative procedures, Plaintiff was required to
undergo an angiocardiography test to analyze whether his
heart was healthy enough for anesthesia and surgery. Id. p. 3,
¶¶ 12-13. After reviewing the results of the angiocardiography
test, doctors determined that Plaintiff suffered from arterial
blockages in three or more of his coronary arteries. Id. p. 3,
¶ 13.
3 To avoid confusion, the Court refers to both page
numbers and paragraphs of Plaintiff's Complaint
since the paragraphs within the Complaint are
sequentially numbered only within each section.
On December 7, 2013, Plaintiff was transferred to St.
Francis Hospital (“St. Francis”) where his cardiac condition
continued to be monitored. Id. p. 3, ¶ 14. Plaintiff was also
referred to and examined by Defendant Dr. Matano who
specializes in vascular surgery. Id. In addition to treating
patients at St. Francis, Dr. Matano maintains a private medical
practice in Great Neck, New York. Id. Plaintiff contends that
notwithstanding the Good Samaritan treatment notes, MRI
images and discharge papers regarding the condition and
recommended course of treatment for his fifth toe on his
right foot, Dr. Matano ignored such recommendations and
performed only a further debridement and excision which left
the bone intact. Id. p. 4, ¶¶ 15-17. The Complaint asserts that
Defendant's motivation in foregoing amputation of the toe,
as had been recommended by Dr. Mancuso, was based on
“recklessness, laziness and discrimination.” Id. p. 4, ¶ 17; p.
6, ¶ 23. Specifically, Plaintiff states that during his hospital
stay at St. Francis, an unidentified staff member overheard Dr.
Matano refer to Plaintiff as a “Medicaid Israeli” and that this
individual confided in a “brother Jew” that this statement was
made. 4 Id. p. 4, ¶ 17; p. 5, ¶ 18; p. 7-8, ¶ 1. As a result of
the medical procedure performed by the Defendant, Plaintiff
states that he experienced “eight months of pain, suffering,
loss of muscles, and loss of quality of life.” Id. p. 4, ¶ 19.
4 The identity of the “brother Jew” to whom Plaintiff
refers is unclear from the Complaint.
Following his discharge from St. Francis on December 24,
2013, Plaintiff remained under the care of Defendant Dr.
Matano. Id. p. 8, ¶ 2. Specifically, during one of Plaintiff's
follow-up visits with Dr. Matano at his office in Great Neck,
New York, Dr. Matano allegedly asked Plaintiff whether
“there [were] enough chairs in the waiting room? [A]re they
all in one piece?” Id. Plaintiff asserts that this comment
was not made in the context of any diagnosis of Plaintiff's
condition and was simply “a joke making a mockery of the
plaintiff....” Id. Further, Plaintiff claims that when he arrived
at Dr. Matano's office for his next visit, Dr. Matano's secretary
informed him that Dr. Matano does not accept Medicaid and
that the office would “not accept [Plaintiff for treatment].” Id.
p. 9, ¶ 4. Plaintiff asserts that despite the secretary's statement
that Dr. Matano did not accept Medicaid, this was not the case.
Id. In addition, Plaintiff states that the comment to the effect
that Dr. Matano would not accept him for treatment was itself
discriminatory. Id.
B. Relevant Procedural History
Plaintiff filed his Complaint on October 15, 2015. See
DE 1. Thereafter, on November 30, 2015, Judge Bianco
waived the pre-motion conference requirement with respect
to Defendant's anticipated motion to dismiss and set a briefing
schedule. See November 30, 2015 Electronic Order. On
January 11, 2016, Defendant filed his motion to dismiss
as well as a separate motion for sanctions. See DE 13,
14. Thereafter, on January 13, 2016, Judge Bianco referred
both of Defendant's motions to the undersigned for a Report
and Recommendation and further directed that the briefing
schedule set for Defendant's motion to dismiss would apply
equally to Defendant's motion for sanctions. See January 13,
2016 Electronic Order. The motions were fully briefed as
of February 22, 2016. Subsequently, Plaintiff filed what the
Court will refer to as a sur-reply. See DE 21. 5
5 There is no entry in the docket showing that
Plaintiff sought leave to file a sur-reply or that
such leave was granted at any point. Local Civil
Rule 6.1(b) does not contemplate the filing of a
sur-reply. See Local Civil Rule 6.1(b). Although
Plaintiff is proceeding in a pro se capacity, he has
an obligation, notwithstanding his pro se status, to
be aware of and adhere to all applicable procedural
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rules. Jonas v. Citibank, N.A., 414 F. Supp. 2d 411,
417 (S.D.N.Y. 2006) (quoting McNeil v. U.S., 508
U.S. 106, 113, 113 S. Ct. 1980, 1984, 124 L.Ed.
2d 21 (1993)) (“[W]e have never suggested that
procedural rules in ordinary civil litigation should
be interpreted so as to excuse mistakes by those
who proceed without counsel.”); See 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.”) (internal citation omitted); Traguth v. Zuck,
710 F.2d 90, 95 (2d Cir. 1983) (same); LoSacco v.
City of Middletown, 71 F.3d 88, 92 (2d Cir. 1995)
(finding that pro se litigants “generally are required
to inform themselves regarding procedural rules
and to comply with them”) (internal quotations
and citation omitted); Tomaino v. U.S., No. 09-
CV-1578, 2010 WL 1005896, at *2 (E.D.N.Y. Mar.
16, 2010) (recognizing that status as pro se plaintiff
does not “reduce [plaintiff's] burden” to adhere to
procedural rules). In light of the foregoing case law,
this Court declines to consider Plaintiff's sur-reply.
*3 Prior to the filing of his Complaint in this Court,
Plaintiff filed a Complaint in the New York State Supreme
Court, County of Nassau, on May 21, 2015, alleging medical
malpractice based upon the same nucleus of operative
facts involving Dr. Richard Matano — the same individual
named as the Defendant in the instant action. See Plaintiff's
Summons and Complaint filed in the New York State
Supreme Court, County of Nassau, attached as Ex. B to
Defendant's Memorandum of Law in Support of Motion to
Dismiss (“Def.'s Mem.”). Further, on January 21, 2016, Hon.
Arthur M. Diamond, Justice of the New York State Supreme
Court, issued a written decision granting Dr. Matano's motion
for summary judgment and dismissing Plaintiff's Complaint
in its entirety. See Summary Judgment Opinion and Order,
attached as Ex. A to Defendant's Reply Memorandum in
Support of Motion to Dismiss (“Def.'s Reply”).
III. DEFENDANT'S MOTION TO DISMISS
A. Standard of Review
In reviewing a motion to dismiss pursuant to Rule 12(b)
(6), the Court must accept the factual allegations set forth in
the complaint as true and draw all reasonable inferences in
favor of the Plaintiff. See Cleveland v. Caplaw Enters., 448
F.3d 518, 521 (2d Cir. 2006); Nechis v. Oxford Health Plans,
Inc., 421 F.3d 96, 100 (2d Cir. 2005); Buch v. Farmingdale
State College, No. 12-CV-1762, 2013 WL 789354, at *10
(E.D.N.Y. March 4, 2013); see also Meadows v. City of New
York, No. 10-CV-286, 2011 WL 864832, at *3 (E.D.N.Y.
March 11, 2011) (noting that “[A] Rule 12(b)(6) motion
to dismiss tests the legal, not the factual sufficiency of a
complaint.”)
The plaintiff must satisfy “a flexible ‘plausibility standard.’
” Iqbal v. Hasty, 490 F.3d 143, 157 (2d Cir. 2007), rev'd
on other grounds sub nom. Ashcroft v. Iqbal, 556 U.S. 662
(2009). “[O]nce a claim has been stated adequately, it may
be supported by showing any set of facts consistent with the
allegations in the complaint.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 546 (2007). The Court, therefore, does not require
“heightened fact pleading of specifics, but only enough facts
to state a claim to relief that is plausible on its face.” Id. at
570; see Operating Local 649 Annuity Trust Fund v. Smith
Barney Fund Mgmt. LLC, 595 F.3d 86, 91 (2d Cir. 2010)
(holding that a complaint must set forth “a plausible set of
facts sufficient ‘to raise a right to relief above the speculative
level.’ ”) (quoting Twombly, 550 U.S. at 555).
The Supreme Court clarified the appropriate pleading
standard in Ashcroft v. Iqbal, 556 U.S. 662 (2009). There,
the court set forth a two-pronged approach to be utilized
in analyzing a motion to dismiss. District courts are to first
“identify [ ] pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.” Id. at
679. Though “legal conclusions can provide the framework of
a complaint, they must be supported by factual allegations.”
Id. Second, if a complaint contains “well-pleaded factual
allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.” Id. “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. The plausibility standard is not akin to
a ‘probability requirement,’ but it asks for more than a sheer
possibility that a [d]efendant has acted unlawfully.” Id. at
678 (citing Twombly, 550 U.S. at 556-57) (internal citations
omitted).
In adjudicating a Rule 12(b)(6) motion to dismiss, the Court
must limit itself to facts alleged in the complaint, which are
accepted as true; to documents attached to the complaint
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as exhibits or incorporated in the complaint by reference;
to matters of which judicial notice may be taken; or to
documents whose terms and effect are relied heavily upon
in the complaint and, thus, are rendered “integral” to the
complaint. Chambers v. Time Warner, Inc., 282 F.3d 147, 152–
53 (2d Cir. 2002); see also ASARCO LLC v. Goodwin, 756
F.3d 191, 198 (2d Cir. 2014).
*4 Although a motion to dismiss is generally decided
solely upon the pleadings and documents attached thereto, a
court may consider materials outside of the pleadings when
determining issues of subject matter jurisdiction. See Wittich
v. Wittich, 2006 WL 3437407, *2 n. 2 (E.D.N.Y. Nov. 29,
2006); Trakansook v. Astoria Fed. Sav. & Loan Ass'n, No. 06-
CV-1640, 2007 WL 1160433, at *1 n. 1 (E.D.N.Y. Apr. 18,
2007), aff'd, 2008 WL 4962990 (2d Cir. 2008). In addition,
a court may examine the state court record where issues
of res judicata or collateral estoppel may be implicated.
Trakansook, 2007 WL 1160433, at *1 n. 1. Further, fairness
concerns that arise when matters outside of the pleadings
are considered are not at issue in the instant case since both
Plaintiff and Defendant were parties to the state court action
and therefore had notice of the filings and decisions rendered
by the state court in that action. Id.; see, e.g., Cortec Indus.,
Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991)
(recognizing that the primary issue involved when a court
reviews matters outside of the pleadings is lack of notice to
the plaintiff).
B. Discussion
1. Preclusion
“The Full Faith and Credit Act, 28 U.S.C. § 1738, has
long been understood to encompass the doctrines of claim
and issue preclusion and to require that federal courts not
grant a forum to litigants whose claims have previously
been resolved in state court.” Niles v. Wilshire Inv. Grp.,
LLC, 859 F. Supp. 2d 308, 337-38 (E.D.N.Y. 2012) (quoting
Trakansook, 2007 WL 1160433, at *6) (citation omitted);
D'Angelo v. City of New York, 929 F. Supp. 129, 134 (S.D.N.Y.
1996).
a. Principles of Res Judicata (Claim Preclusion)
The doctrine of res judicata 6 or claim preclusion operates
to ensure that “[a] final judgment on the merits of an action
precludes the parties or their privies from relitigating issues
that were or could have been raised in that action.” Niles,
859 F. Supp. 2d at 338; see Heimbach v. Chu, 744 F.2d 11
(2d Cir. 1984), cert. denied, 470 U.S. 1084, 105 S. Ct. 1842,
85 L.Ed. 2d 141 (1985); Saylor v. Lindsley, 391 F.2d 965,
968 (2d Cir. 1968); Done v. Wells Fargo Bank, N.A., No.
08-CV-3040, 2009 WL 2959619, at *3 (E.D.N.Y. Sept. 14,
2009); Flaherty v. Lang, 199 F.3d 607, 612 (2d Cir. 1999).
The doctrine applies equally to New York law and federal
law and thus, when applying the doctrine, a court must be
mindful that “a state court judgment has the same preclusive
effect in federal court as the judgment would have had in state
court.” Niles, 859 F. Supp. 2d at 338 (quoting Burka v. New
York City Transit Auth., 32 F.3d 654, 657 (2d Cir. 1994)).
Further, “[a]ll litigants, including pro se plaintiffs, are bound
by the principles of res judicata.” Done, 2009 WL 2959619,
at *3; see Niles, 859 F. Supp. 2d at 338; Eubanks v. Liberty
Mortgage Banking Ltd., 976 F. Supp. 171, 172–74 (E.D.N.Y.
1997) (determining that res judicata barred pro se plaintiff's
claims); see Council v. Better Homes Depot, Inc., 04 CV 5620,
2006 WL 2376381, at *4 (E.D.N.Y. Aug. 16, 2006) (citing
cases); see also Lake George Park Comm'n v. Salvador, 245
A.D.2d 605, 664 N.Y.S.2d 847, 850 (App. Div. 1997) (“A pro
se litigant acquires no greater rights than any other litigant.”).
6 Defendant first raised the defense of res judicata
in his reply brief due to the fact that summary
judgment was rendered by the state court in
Defendant's favor only after the Defendant filed the
opening papers in support of his motion to dismiss.
However, “[i]t is well established law in this circuit
that certain affirmative defenses, including res
judicata, may be raised sua sponte.” Scherer v.
Equitable Life Assurance Soc'y of U.S., 347 F.3d
394, 400 (2d Cir. 2003); Rene v. Jablonski, No.
08-CV-3968, 2009 WL 2524865, at *8 (E.D.N.Y.
Aug. 17, 2009) (“Although defendant did not raise
the affirmative defense of res judicata, the Court
has the authority to exercise its discretion to raise
the res judicata doctrine sua sponte, in the interest
of judicial economy.”); see Salahuddin v. Jones,
992 F.2d 447, 449 (2d Cir. 1993) (holding that
“the strong public interest in economizing the
use of judicial resources by avoiding relitigation”
justifies a court's sua sponte raising of res judicata,
and that “[t]he failure of a defendant to raise res
judicata in [his] answer does not deprive a court
of the power to dismiss a claim on that ground”);
Vasquez v. Gotti, No. 09–CV–1680, 2009 WL
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2226578, at *2 (E.D.N.Y. July 23, 2009) (raising
res judicata defense sua sponte and dismissing pro
se complaint). As such, even were the Court to
disregard Defendant's invocation of res judicata,
because it was raised for the first time in reply, the
Court would nevertheless raise the doctrine on its
own in light of the procedural posture of this case.
*5 In order to determine whether a subsequent lawsuit is
barred by res judicata, “a court must determine whether the
second suit involves the same ‘claim,’ or ‘nucleus of operative
fact’ as the first suit.” Carr v. Health Ins. Plan of Greater
New York, Inc., 111 F. Supp. 2d 403, 410 (S.D.N.Y. 2000)
(internal citation omitted); see Waldman v. Vill. of Kiryas Joel,
207 F.3d 403, 410 (2d Cir. 2000); Interoceanica Corp. v.
Sound Pilots, Inc., 107 F.3d 86, 90 (2d Cir. 1997). To make
this determination, a court must analyze whether: “(1) the
previous action involved an adjudication on the merits; (2) the
previous action involved the plaintiffs or those in privity with
them; [and] (3) the claims asserted in the subsequent action
were, or could have been, raised in the prior action.” Carr, 111
F. Supp. 2d at 410; see Monahan v. N.Y. City Dep't of Corr.,
214 F.3d 275, 285 (2d Cir. 2000); Bey v. City of New York,
454 Fed.Appx. 1, 3 (2d Cir. 2011); Niles, 859 F. Supp. 2d at
338; Done, 2009 WL 2959619, at *3. With respect to whether
a claim should or could have been interposed in the prior
lawsuit, New York utilizes a “transactional” approach which
provides that a claim should have been brought if it arises “out
of the same factual grouping as an earlier litigated claim even
if the later claim is based on different legal theories or seeks
dissimilar or additional relief.” Kesten v. Eastern Sav. Bank,
No. 07-CV-2071, 2009 WL 303327 at *3 (quoting Burgos v.
Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). The Court turns its
attention to the application of these elements within the facts
of the instant case.
b. Res Judicata Bars Plaintiff's Federal Lawsuit
First, the previous state court action was decided on summary
judgment. See Def.'s Reply, Ex. A (Summary Judgment
Opinion and Order). Pursuant to New York law, such a
determination constitutes an adjudication on the merits for
purposes of application of the doctrine of res judicata.
See Hwang v. Dunkin' Donuts Inc., 840 F. Supp. 193, 197
(N.D.N.Y. 1994), aff'd, 28 F.3d 103 (2d Cir. 1994) (“Under
New York law, the granting of summary judgment ‘constitutes
a final judgment on the merits for the purposes of res judicata.’
”) (quoting G & T Terminal Packaging v. Consolidated Rail
Corp., 719 F. Supp. 153, 158 (S.D.N.Y. 1989)); see also
Pantoja v. Scott, No. 96 CIV. 8593, 2001 WL 1313358,
at *6 (S.D.N.Y. Oct. 26, 2001) (recognizing that “a state
court's grant of partial summary judgment constitutes a ‘final’
judgment for res judicata purposes.”); Hennessy v. Cement
& Concrete Worker's Union Local 18A, 963 F. Supp. 334,
338-39 & n. 1 (S.D.N.Y. 1997) (same).
Second, both the instant action as well as the prior state
court action were commenced by the same Plaintiff, thus
satisfying the privity requirement. See Def.'s Mem., Ex. B
(Plaintiff's Summons and Complaint filed in New York State
Supreme Court); Def.'s Reply, Ex. A; see also Niles, 859 F.
Supp. 2d at 339 (determining that the privity requirement was
satisfied where plaintiff “was a named party to the [prior]
proceeding ... and is the party who commenced the instant
action.”); Trakansook, 2007 WL 1160433, at *7; Done, 2009
WL 2959619, at *4.
Finally, Plaintiff should have brought the discrimination
claims he asserts in the instant case in his earlier state court
action since these claims arose “out of the same factual
grouping as [his] earlier litigated claim.” Kesten, 2009 WL
303327 at *3. For example, the factual basis underlying
Plaintiff's assertion of medical malpractice set forth in his
state court complaint stems from Plaintiff's admission to
Good Samaritan Hospital on Thanksgiving Day in 2013
and the subsequent care and treatment he received from Dr.
Richard Matano regarding his injured right foot and eventual
debridement of his toe. See Def.'s Mem., Ex. A ¶¶ 6-26. A
review of Plaintiff's current federal Complaint reveals that
Plaintiff's discrimination claims arise from the very same set
of facts, namely, the care and treatment he received from
Dr. Matano for his right foot injury. See generally Compl.;
Section II. A. supra (setting forth factual background as
taken from Plaintiff's Complaint in the instant case). Further,
although Plaintiff included additional factual allegations in
the instant Complaint that were not contained within the
earlier complaint filed in state court, under New York's
“transactional” approach, the inclusion of these additional
facts — which stem from the same alleged factual nucleus
— cannot serve to frustrate the application of res judicata.
This is so because the “transactional” test merely requires
that the two actions are “related in time, space, origin,
[and] motivation [and] form a convenient trial unit.” Marvel
Comics, Inc. v. Simon, 310 F.3d 280, 287 (2d Cir. 2002); Carr,
111 F. Supp. 2d at 410.
*6 After reviewing the facts underlying Plaintiff's earlier
state court action and comparing them with the facts asserted
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in the instant case, there is no doubt that the instant matter
arises from the same set of facts as Plaintiff's earlier state court
action. Further, the fact that Plaintiff's prior action sounded in
medical malpractice while the instant case is premised upon
various forms of discrimination does not change the analysis
since “a prior decision dismissed ‘on the merits’ is binding in
all subsequent litigation between the same parties on claims
arising out of the same facts, even if based upon different legal
theories or seeking different relief on issues which were or
might have been litigated in the prior action but were not.” N.
Assur. Co. of Am. v. Square D. Co., 201 F.3d 84, 87 (2d Cir.
2000) (emphasis added) (quoting EFCO Corp. v. U.W. Marx,
Inc., 124 F.3d 394, 397 (2d Cir. 1997)); see also Trakansook,
2007 WL 1160433, at *7 (noting that “although plaintiff's
Section 1983 claim invokes a legal theory that was not raised
in the state court litigation, this is insufficient to overcome
preclusion”); Reilly v. Reid, 45 N.Y.2d 24, 30 (1978) (holding
that, “where the same foundation facts serve as a predicate for
each proceeding, differences in legal theory and consequent
remedy do not create a separate cause of action”). Indeed,
Plaintiff cannot acquire two proverbial “bites at the apple” by
“splitting his claims into various suits, based on different legal
theories,” Waldman, 207 F.3d at 410, which is precisely what
Plaintiff has attempted to do here.
By splitting his claims, Plaintiff “took the risk that res judicata
would preclude his federal claims when he filed the [previous]
action in state court and litigated it to a final judgment.
Plaintiff might have taken this risk because he preferred to be
in state court for strategic reasons. In any event, plaintiff chose
to conduct the litigation in state court and, in doing so, took
the risk that the judgment in that action would be dispositive
of his federal claims.” O'Connor v. Pierson, 482 F. Supp. 2d
228, 234 (D. Conn. 2007), aff'd, 568 F.3d 64 (2d Cir. 2009).
Further, although dividing claims “may seem attractive from
a plaintiff's perspective, it is not the system established by
[28 U.S.C.] § 1738. That statute embodies the view that it
is more important to give full faith and credit to state-court
judgments than to ensure separate forums for federal and state
claims. This reflects a variety of concerns, including notions
of comity, the need to prevent vexatious litigation, and a desire
to conserve judicial resources.” Migra v. Warren City Sch.
Dist. Bd. of Educ., 465 U.S. 75, 84, 104 S. Ct. 892, 898, 79
L.Ed. 2d 56 (1984).
In light of the foregoing analysis, this Court respectfully
recommends to Judge Bianco that Defendant's motion to
dismiss be GRANTED.
IV. DEFENDANT'S MOTION FOR SANCTIONS
A. The Law of Sanctions
1. General Principles
Rule 11 provides a mechanism for imposing sanctions against
a party who advances a frivolous legal argument or asserts
claims without a reasonable factual basis or for an improper
purpose. Fed. R. Civ. P. 11(b), (c); see Spithogianis v. Haj-
Darwish, No. 07 CIV. 4609, 2008 WL 82188, at *9 (S.D.N.Y.
Jan. 7, 2008); Lipin v. Nat'l Union Fire Ins. Co. of Pittsburgh,
Pa., 202 F. Supp. 2d 126, 139 (S.D.N.Y. 2002) (quoting
Caisse Nationale de Credit Agricole–CNCA, N.Y. Branch v.
Valcorp., Inc., 28 F.3d 259, 264 (2d Cir. 1994)) (recognizing
that Rule 11 provides for the imposition of sanctions “when
a party has signed a pleading for ‘an improper purpose such
as to delay or needlessly increase the cost of litigation,’ or ...
when a party presents to the court papers ‘without a belief
formed, from a reasonable inquiry, that the position espoused
is factually supportable and is warranted by existing law or
by a nonfrivolous argument for the extension, modification,
or reversal of existing law.’ ”). As such, Rule 11 imposes
an affirmative duty on a litigant to conduct a reasonable
inquiry into the law and facts before filing a pleading, and the
standard to be applied is one of objective reasonableness. See
Spithogianis, 2008 WL 82188, at *9; Business Guides, Inc. v.
Chromatic Commc'ns Enters., Inc., 498 U.S. 533, 551 (1991);
Oliveri v. Thompson, 803 F.2d 1265, 1278-79 (2d Cir. 1986)
(“Although [previous Second Circuit law] might be read as
leaving open the possibility of ... a subjective violation of
the rule, we hold today that there is no necessary subjective
component to a proper Rule 11 analysis.”). Utilizing this
objective standard, a violation of Rule 11 occurs where, at the
time the litigant signed the pleading, Oliveri, 803 F.2d at 1274,
it was “patently clear that a claim has absolutely no chance
of success.” Dujardin v. Liberty Media Corp., 359 F. Supp.
2d 337, 360 (S.D.N.Y. 2005) (quoting Katzman v. Victoria's
Secret Catalogue, 167 F.R.D. 649, 659 (S.D.N.Y. 1996)).
Nevertheless, the decision to impose Rule 11 sanctions rests
squarely within the sound discretion of the district court. See
Perez v. Posse Comitatus, 373 F.3d 321, 325 (2d Cir. 2004);
Lorber v. Winston, 993 F. Supp. 2d 250, 253 (E.D.N.Y. 2014)
(“[T]he decision whether to impose [Rule 11] sanctions is not
mandatory, but rather is a matter for the court's discretion.”).
Despite such unfettered authority, Rule 11 sanctions “should
be imposed with caution,” Murawski v. Pataki, 514 F. Supp.
2d 577, 590, (S.D.N.Y. 2007) (quoting Knipe v. Skinner, 19
F.3d 72, 78 (2d Cir. 1994)), and any doubts should be resolved
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in favor of the non-moving party. See Perez, 373 F.3d at 324.
In addition, any sanction that is ultimately imposed “must be
limited to what suffices to deter repetition of the conduct or
comparable conduct by others similarly situated.” Fed. R. Civ.
P. 11(c)(4).
*7 Although sanctions under Rule 11 should be imposed
with caution, it is well settled that a party's status as a pro se
litigant “does not shield him from Rule 11 sanctions because
one acting pro se has no license to harass others, clog the
judicial machinery with meritless litigation, and abuse already
overloaded court dockets.” Malley v. New York City Bd. of
Educ., 207 F. Supp. 2d 256, 258 (S.D.N.Y. 2002); see Yosef
v. Passamaquoddy Tribe, 876 F.2d 283, 287 (2d Cir. 1989);
Fariello v. Campbell, 860 F. Supp. 54, 71 (E.D.N.Y. 1994).
However, where a pro se litigant is alleged to have run afoul
of Rule 11, courts generally apply a more lenient standard
than would be applicable where a party is represented by
learned counsel. See Horton v. Trans World Airlines Corp.,
169 F.R.D. 11, 15-16 (E.D.N.Y. 1996); Fariello, 860 F. Supp.
at 71; Baasch v. Reyer, 827 F. Supp. 940, 944 (E.D.N.Y.
1993). Thus, in such cases, “Rule 11’s application [is]
determined on a sliding scale according to the litigant's level
of sophistication.” Horton, 169 F.R.D. at 16; see Simpson
v. Putnam Cty. Nat'l Bank of Carmel, 112 F. Supp. 2d 284,
292 (S.D.N.Y. 2000) (noting that “the court may consider the
‘special circumstances of litigants who are untutored in the
law.’ ”) (quoting Maduakolam v. Columbia Univ., 866 F.2d
53, 56 (2d Cir. 1989)). Further, where a litigant has some
experience with the legal system, courts may treat him less
leniently than “wholly inexperienced pro se litigants.” Muniz
v. Goord, No. 9:04-CV-0479, 2007 WL 2027912, at *6 n.
30 (N.D.N.Y. July 11, 2007); see also Kadan v. Williams, 89
Civ. 3379, 1990 WL 47680, at *3 (S.D.N.Y. April 11, 1990)
(imposing sanctions on businessman familiar with litigation);
Bryant v. American Embassy (AMC), No. 88 Civ. 0294, 1988
WL 68740, at *1 (S.D.N.Y. June 16, 1988) (noting that pro se
plaintiff's ability “to consult with an attorney” exposed him to
a higher risk of sanctions). In determining whether sanctions
should be imposed on a pro se litigant, the court should
consider whether the litigant has been previously warned
that his conduct is in derogation of Rule 11. See Commer
v. American Federation of State, County and Municipal
Employees, 272 F. Supp. 2d 332, 340 (S.D.N.Y. 2003); Daniel
v. Safir, 135 F. Supp. 2d 367, 379 (E.D.N.Y. 2001) (“The court
may also consider whether the litigant has been warned of
the possible imposition of sanctions.”) (internal quotation and
citations omitted); Elghanian v. Schachter, 97 Civ. 0959, 1997
WL 607546, at *2 (S.D.N.Y. Oct. 1, 1997); Kuntz v. Pardo,
160 B.R. 35, 40 (S.D.N.Y. 1993).
The following factors are generally considered by a court
when determining whether to levy Rule 11 sanctions: “(1)
[w]hether the improper conduct was willful, or negligent; (2)
whether it was part of a pattern or activity, or an isolated
event; (3) whether it infected the entire pleading, or only
one particular count or defense; (4) whether the person has
engaged in similar conduct in other litigation; (5) what effect
it had on the litigation process in time or expense; (6) whether
the responsible person is trained in the law; (7) what amount,
given the financial resources of the responsible person, is
needed to deter that person from repetition in the same case.”
Ratner v. Robinson, No. 13-CV-6278, 2015 WL 6965077, at
*18-19 (E.D.N.Y. Nov. 10, 2015); see Vasile v. Dean Witter
Reynolds Inc., 20 F. Supp. 2d 465, 506 (E.D.N.Y. 1998).
2. Injunctive Sanctions
As part of its inherent authority to “sanction parties appearing
before it acting in bad faith, vexatiously, wantonly, or for
oppressive reasons,” see Fariello, 860 F. Supp. at 71 (citing
Chambers v. NASCO, Inc., 501 U.S. 32, 44-46, 111 S. Ct.
2123, 2133, 115 L.Ed. 2d 27 (1991)), a court may impose
injunctive relief in the form of “prevent[ing] a litigant from
filing pleadings, motions or appeals upon a showing of
extraordinary circumstances, such as demonstrated history
of frivolous and vexatious litigation or a failure to comply
with sanctions imposed for such conduct.” 7 Malcolm v. Bd.
of Educ. Of Honeoye Falls-Lima Central Sch. Dist., 506
Fed.Appx. 65, 69 (2d Cir. 2012); see SBC 2010-1 LLC v.
Morton, 552 Fed.Appx. 9, 12 (2d Cir. 2013) (recognizing that
“a district court may impose filing injunctions subjecting a
vexatious litigant to a leave of court requirement with respect
to future filings.”); In re Martin-Trigona, 9 F.3d 226, 229 (2d
Cir. 1993).
7 The Court's authority to impose injunctive relief
of this nature also arises from the All-Writs Act,
which empowers the court to “issue all writs
necessary or appropriate in aid of their respective
jurisdictions and agreeable to the usages and
principles of law.” 28 U.S.C. § 1651(a); see MLE
Realty Assocs. v. Handler, 192 F.3d 259, 261 (2d
Cir. 1999) (“The All-Writs Act grants district courts
the power, under certain circumstances, to enjoin
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parties from filing further lawsuits”); Matter of
Hartford Textile Corp., 613 F.2d 388, 290 (2d Cir.
1979) (holding that the All-Writs Act “grant[s]
the district court power sua sponte to enjoin
further filings in support of frivolous and vexatious
claims.”); see also Brown v. Moralles, No. 14-
CV-1382; 14-CV-2932, 2014 WL 6610992, at *9
(E.D.N.Y. Nov. 18, 2014).
*8 In determining whether such a “filing sanction” is
appropriate, district courts consider the following factors: “(1)
the litigant's history of litigation and in particular whether
it entailed vexatious, harassing or duplicative lawsuits; (2)
the litigant's motive in pursuing the litigation, e.g., does
the litigant have an objective good faith expectation of
prevailing?; (3) whether the litigant is represented by counsel;
(4) whether the litigant has caused needless expense to other
parties or has posed an unnecessary burden on the courts and
their personnel; and (5) whether other sanctions would be
adequate to protect the courts and other parties.” Castro v.
Samuel, 50 F. Supp. 3d 377, 381 (E.D.N.Y. 2014), appeal
dismissed, (Jan. 14, 2015) (quoting Iwachiw v. N.Y. State
DMV, 396 F.3d 525, 528 (2d Cir. 2005)); see Brown, 2014 WL
6610992, at *9-10. Notwithstanding the guidance afforded
by these factors, “[u]ltimately, the question the court must
answer is whether a litigant who has a history of vexatious
litigation is likely to continue to abuse the judicial process
and harass other parties.” Safir v. United States Lines Inc.,
792 F.2d 19, 24 (2d Cir. 1986); Brown, 2014 WL 6610992, at
*10. In addition, prior to imposing such injunctive relief, the
court is under an obligation to provide a litigant notice of the
impending filing sanction and an opportunity to be heard. See
Castro, 50 F. Supp. 3d at 381; Brown, 2014 WL 6610992, at
*10; SBC 2010-1 LLC, 552 Fed.Appx. at 12. Likewise, any
filing sanction imposed must be narrowly tailored “so as to
preserve the litigant's right of access to the court.” Brown,
2014 WL 6610992, at *10; see Bd. of Managers of 2900
Ocean Avenue Condominium v. Bronkovic, 83 F.3d 44, 45 (2d
Cir. 1996).
B. Imposition of Sanctions
In his motion seeking sanctions against Plaintiff, Defendant
states that Plaintiff “has filed at least four complaints against
the defendant or his attorneys” and has attached copies of
each complaint to the instant motion. See Memorandum of
Law in Support of Motion for Sanctions (“Def.'s Mem.”) at
1; Exhibits A through D, attached to the January 11, 2016
Declaration of Robert F. Elliot (“Elliot Decl.”) in Support
of the Motion for Sanctions. In addition, Defendant has
attached emails written by Plaintiff to current and predecessor
counsel which Defendant alleges are “offensive, harassing,
and threatening” and contends that Plaintiff “continues to
make a point of his use of the courts for purposes of
harassment and annoyance.” Def.'s Mem. at 2. Defendant
further claims that Plaintiff has on prior occasions “engaged
in ... commencing frivolous lawsuits and then suing attorneys
for the adversary [and that] such conduct resulted in a state
court injunction.” Id. at 4; Elliot Decl., Ex. F (Supreme Court
– State of New York Short Form Order in the action of
Sachs v. Clayton). Based upon Plaintiff's course of conduct
in this action, Defendant requests that the Court impose both
monetary sanctions as well as a filing injunction to prevent
Plaintiff “or anyone acting on his behalf, from bringing any
lawsuit, without first obtaining permission from the Court,
on any subject matter and in any court, against Richard A.
Matano, M.D., St. Francis Hospital, the insurance companies
of such persons or entities, the attorneys including Robert F.
Elliot, Esq., the firm of Bartlett, McDonough, & Monaghan
LLP, or its employees or members or partners or associates.”
Id. at 7-8.
In his response, Plaintiff does not directly address Defendant's
arguments but makes only generalized statements concerning
the underlying action. Further, Plaintiff states “that [the] law
and the facts of this lawsuit are clear. There is no need for the
plaintiff to repeat them or bring any proofs at this stage.” See
Affirmative Answer to Defendant[’s] Motion to Dismiss and
Motion for Sanctions (“Pl.'s Opp'n”) at 2. Although the Court
liberally construes a pro se Plaintiff's filings in order to glean
all reasonable claims and arguments, see Thomas v. Calero,
824 F. Supp. 2d 488, 497 (S.D.N.Y. 2011), Plaintiff has not
interposed any cogent legal arguments that provide support
to his opposition to Defendant's motion for sanctions. Rather,
Plaintiff relies solely upon a generalized diatribe which is not
a substitute for proper briefing — even considering Plaintiff's
pro se status. In Defendant's reply, counsel responds that the
state court, in deciding the underlying summary judgment
motion in Defendant's favor there, necessarily illustrates
that “plaintiff's claims are without merit and demonstrates
that plaintiff was not pursuing the lawsuit for legitimate
purposes.” Reply Memorandum in Support of Motion for
Sanction (“Def.'s Reply”) at 2.
*9 After reviewing Plaintiff's Complaint through an
objective lens, the Court is not convinced that at the time of
its filing it was “patently clear that [Plaintiff's] claim[s] ha[d]
absolutely no chance of success.” Dujardin, 359 F. Supp. 2d
at 360. The aim of Rule 11 is to ensure that counsel and pro
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se litigants “conduct a reasonable inquiry into the law and
facts before signing pleadings ... [and] to ‘stop-and-think’
before initially making legal or factual contentions.” Rule 11
Advisory Committee Notes to 1993 Amendments. The Court
cannot say that Plaintiff failed to abide by this guidance at the
time the Complaint was filed, especially since “a litigant may
have good reason to believe that a fact is true or false but may
need discovery, formal or informal, from opposing parties or
third persons to gather and confirm the evidentiary basis for
the allegation.” Id. Likewise, although Defendant contends
that the allegations in Plaintiff's complaint are frivolous, see
Notice of Motion for Sanctions at 1, the Court, at this juncture,
cannot reach such a conclusion since “[a]n action is frivolous
when the factual contentions are clearly baseless, such as
when allegations are the product of delusion or fantasy.
A finding of factual frivolousness is appropriate when the
facts alleged rise to the level of the irrational or the wholly
incredible, whether or not there are judicially noticeable facts
available to contradict them.” Castro, 50 F. Supp. 3d at 380
(quoting Morse v. Network of Al–Queda Attorneys, 12–CV–
1102, 2012 WL 1155821, at *5 (E.D.N.Y. Apr. 5, 2012)).
In the instant case, this Court has determined that Plaintiff's
Complaint is procedurally improper based upon the doctrine
of res judicata. However, at the time it was filed, there
is no objective indication that Plaintiff, a pro se litigant,
filed the Complaint with affirmative knowledge that it was
procedurally improper or that the Complaint itself lacked any
basis in fact or law or was solely the product of delusion or
fantasy. As such, the Court does not find that the filing of
this Complaint was clearly violative of Rule 11, especially
given Plaintiff's pro se status. As such, imposing sanctions
upon Plaintiff on this basis alone would be inappropriate —
especially since any doubt as to such action should be made in
Plaintiff's favor, see Perez, 373 F.3d at 324, and such sanctions
“should be imposed with caution.” Murawski, 514 F. Supp. 2d
at 590 (quoting Knipe, 19 F.3d at 78); see also Daniel v. Safir,
135 F. Supp. 2d 367, 379 (E.D.N.Y. 2001) (“Plaintiff's claims
against defendants are plainly without merit. Nevertheless,
this alone does not warrant sanctions, particularly as plaintiff
is proceeding pro se.”)
However, after reviewing some of the emails written by
pro se Plaintiff Sachs prior to and during the pendency of
this litigation, the Court is especially troubled by Plaintiff's
seeming lack of civility in his communications with opposing
counsel, which reflects a disdain for the same legal system
Plaintiff seeks to invoke to vindicate his own rights. For
example, in one particular email written to Defendant's prior
counsel, Plaintiff stated “I don't get any prettier sitting here
and waiting for you. Please move your small little A** honey
and make a move.” Def.'s Mem., Ex. E (August 27, 2015
Email from pro se Plaintiff to attorney Daniele Dezago). In
another example, Plaintiff wrote that opposing counsel was
a “Donkeys [sic] rear A**.” Id. (September 18, 2015 Email
from pro se Plaintiff to attorney Robert Elliot). Moreover, the
signature line of Plaintiff's emails — containing the phrase
“Litigation 4 Recreation” — is equally troubling to the Court.
The utilization of the judicial system is not a hobby or a
game. Rather, this third branch of the government provides a
manner and means of affording those who have been legally
wronged with an avenue in which to vindicate their rights. It
is not — as Plaintiff seems to imply from such a signature
line — a forum to be used and exploited for Plaintiff's own
personal retaliatory satisfaction. Indeed, “[a] court's special
solicitude towards pro se litigants does not extend to the
willful, obstinate refusal to play by the basic rules of the
system upon whose very power the plaintiff is calling to
vindicate his rights.” Jenkins v. Eaton, No. 08-CV-0713,
2010 WL 5071995, at *3 (E.D.N.Y. Dec. 7, 2010) (quoting
Lipin v. Hunt, 573 F. Supp. 2d 836, 845 (S.D.N.Y. 2008)).
Unfortunately, Plaintiff's inappropriate conduct here does not
appear to be an isolated incident. In an Order issued by the
Honorable Dana Winslow, Justice of the Supreme Court of
the State of New York in the case of Sachs v. Clayton, the
court stated that it was “troubled by plaintiff's utter lack
of respect for his opponents and the entire court system
and further noted that “[p]laintiff's opposition papers and
his inappropriate letters to this Court and the Hon. Anthony
Marano, indicate that he seeks to use the legal system as a tool
for harassment ... [and that] plaintiff has abused the judicial
process[.]” Def.'s Mem., Ex. F (July 18, 2012 Order issued in
the case of Sachs v. Clayton).
Although “[a]buse of state judicial processes is not per se a
threat to the jurisdiction of Article III courts and does not
per se implicate other federal interests,” In re Martin-Trigona,
737 F.2d 1254, 1263 (2d Cir. 1984), the Court nevertheless has
an inherent obligation to ensure that those appearing before
it comport themselves in a manner that ensures the “orderly
and expeditious disposition of cases.” Chambers, 501 U.S.
at 43, (quoting Link v. Wabash R. Co., 370 U.S. 626, 630–
631, 82 S. Ct. 1386, 1388–1389, 8 L.Ed. 2d 734 (1962)). As
such, notwithstanding the Court's ability to impose sanctions
based upon conduct that is violative of Rule 11, the Court,
through the exercise of its inherent power, is imbued with
the authority to “fashion an appropriate sanction for conduct
which abuses the judicial process. Chambers, 501 U.S. at
44-45; DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d
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124, 136 (2d Cir. 1998) (recognizing that “the fact that there
may be a statute or rule which provides a mechanism for
imposing sanctions of a particular variety for a specific type
of abuse does not limit a court's inherent power to fashion
sanctions, even in situations similar or identical to those
contemplated by the statute or rule.”) (quoting Chambers,
501 U.S. at 44-45); Palmer v. Cty. of Nassau, 977 F. Supp.
2d 161, 167 (E.D.N.Y. 2013) (“Federal courts have inherent
equitable powers of courts of law over their own process,
to prevent abuses, oppression, and injustices. Courts may
impose sanctions and rely upon their inherent authority even
where the conduct at issue is not covered by one of the other
sanctioning provisions. Moreover, a district court may resort
to its inherent power to fashion sanctions, even in situations
similar or identical to those contemplated by a statute or
rule.”); see also Sassower v. Field, 973 F.2d 75, 80-81 (2d
Cir. 1992) (noting that a “district court has inherent authority
to sanction parties appearing before it for acting in bad faith,
vexatiously, wantonly, or for oppressive reasons.”).
*10 In the instant case, the Court finds that although the
conduct engaged in by pro se Plaintiff (i.e., the inappropriate
language and overall tenor used in his email correspondence,
coupled with the use of a signature line which establishes at
least a strong inference that Plaintiff's motivation is for other
than a proper purpose) cannot be countenanced, sanctions at
this stage are inappropriate. The reason is that Plaintiff, who
is proceeding pro se, has not yet been explicitly warned by the
Court that such conduct runs afoul of the rules of civility, is a
direct impediment to the orderly disposition of this as well as
any other case, and is sanctionable. See Baasch, 827 F. Supp.
at 944 (imposing sanctions on pro se litigant only after litigant
was put on notice that her conduct was sanctionable); London
v. SPC Comm'cs, Inc., 177 F.R.D. 196, 200 (S.D.N.Y. 1998)
(same); Daniel, 135 F. Supp. 2d at 378 (declining to impose
sanctions where pro se plaintiff received no prior warning that
conduct was sanctionable). However, pro se Plaintiff Sachs is
now on notice that the Court will not tolerate any further lack
of civility, candor or decorum when communicating with the
Court or opposing counsel during the pendency of this or any
other lawsuit filed in this Court. Further, Plaintiff is directed
to adhere strictly to the mandates set forth in Rule 11 before
submitting any future filings. In addition, Plaintiff is to ensure
that prior to filing a pleading, motion or any other paper with
the Court, there exists a sound basis in fact and law for doing
so. Although the Court is mindful that the crucible of litigation
may cause a litigant's passions and prejudices to become
inflamed, it is nevertheless incumbent upon those who seek
relief from the Court to comport themselves accordingly, both
with the Court as well as their adversary, and to adhere to all
applicable substantive and procedural rules. In the event that
Plaintiff fails to heed this Court's warnings going forward,
appropriate sanctions will be levied.
In light of the foregoing discussion, the Court respectfully
recommends to Judge Bianco that Plaintiff's motion for
sanctions be DENIED.
V. CONCLUSION
For the foregoing reasons, the Court respectfully recommends
to Judge Bianco that Defendant's motion to dismiss Plaintiff's
Complaint be GRANTED and that Defendant's motion for
sanctions be DENIED, in accordance with this Report and
Recommendation.
VI. OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1)(c) and Rule 72 of
the Federal Rules of Civil Procedure, the parties shall
have fourteen (14) days from service of this Report and
Recommendation to file written objections. See also FED. R.
CIV. P. 6(a), (e). Such objections by an attorney of record shall
be filed with the Clerk of the Court via ECF. A courtesy copy
of any objections filed is to be sent to the Chambers of
the Honorable Joseph F. Bianco, and to the Chambers of
the undersigned. Any requests for an extension of time for
filing objections must be directed to Judge Bianco prior
to the expiration of the fourteen (14) day period for filing
objections. Failure to file objections will result in a waiver of
those objections for purposes of appeal. Thomas v. Arn, 474
U.S. 140, 155 (1985); Beverly v. Walker, 118 F.3d 900, 901
(2d Cir. 1997), cert. denied, 522 U.S. 883 (1997); Savoie v.
Merchants Bank, 84 F.3d 52, 60 (2d Cir. 1996).
Defendant's counsel is directed to serve a copy of this
Report and Recommendation upon the pro se Plaintiff
forthwith by overnight mail and first class mail and to file
proof of such service on ECF.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2016 WL 4179792
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Sachs v. Matano, Not Reported in Fed. Supp. (2016)
2016 WL 4179792
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Sachs v. Matano
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 2:15cv06049
SACHS v. MATANO
— E.D.N.Y. Oct. 15, 2015 Docket
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Sachs v. Matano
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History (2)
Direct History (2)
1. Sachs v. Matano
2016 WL 4179792 , E.D.N.Y. , July 15, 2016
Report and Recommendation Adopted by
2. Sachs v. Matano
2016 WL 4186708 , E.D.N.Y. , Aug. 04, 2016
Case 6:26-cv-00070-MAD-MJK Document 25 Filed 03/17/26 Page 70 of 88

Sachs v. Matano
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 6:26-cv-00070-MAD-MJK Document 25 Filed 03/17/26 Page 71 of 88

McCluskey v. New York State Unified Court System, Not Reported in Fed. Supp. (2010)
2010 WL 11632696
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2010 WL 11632696
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
Peter MCCLUSKEY, Plaintiff,
v.
NEW YORK STATE UNIFIED COURT SYSTEM,
Chief Judge Hon. Jonathan Lippman, Gabor &
Gabor, David Gabor, Hope Gabor, Defendants.
10-CV-2144 (JFB) (ETB)
|
Signed 07/09/2010
Attorneys and Law Firms
Peter McCluskey, Lynbrook, NY, pro se.
Anne C. Leahey, Devitt Spellman Barrett, Smithtown, NY,
Joan M. Faley, Labatte, Balkan, Colavita & Contini, LLP,
Garden City, NY, for Defendants.
ORDER
JOSEPH F. BIANCO, UNITED STATES DISTRICT JUDGE
*1 Pro se plaintiff Peter McCluskey (“plaintiff”) filed a
complaint on May 11, 2010 against the defendants, New
York State Unified Court System, Chief Judge Hon. Jonathan
Lippman, Gabor & Gabor, David Gabor, and Hope Gabor. 1
The complaint purported to allege claims for deprivation of
due process against the New York State Unified Court System
and claims for malpractice against the Gabor defendants. By
Order dated June 17, 2010, the Court dismissed plaintiff’s
federal claims sua sponte, with prejudice, and declined to
exercise supplemental jurisdiction plaintiff’s state law claims.
1 For ease of reference, Gabor & Gabor, David
Gabor, and Hope Gabor are referred to collectively
as the “Gabor defendants.”
The Gabor defendants now seek to impose sanctions, pursuant
to Rule 11 of the Federal Rules of Civil Procedure (“Rule
11”), against plaintiff. Specifically, the Gabor defendants
claim that, in filing the complaint, plaintiff submitted a
frivolous pleading that was not warranted by existing law or
by a good-faith argument for the extension, modification, or
reversal of existing law, or for the establishment of new law,
and continued to pursue claims with no legal or factual basis.
Specifically, the Gabor defendants argue that plaintiff violated
Rule 11 by filing a complaint that: (i) raised claims that were
previously dismissed by the New York State courts; (ii) raised
claims that were barred by the statute of limitations; and (iii)
raised claims for which there was no basis for federal subject
matter jurisdiction. For the reasons that follow, the Gabor
defendants' motion for sanctions is denied.
Under Rule 11, to avoid the risk of sanctions, a plaintiff
must undertake reasonable inquiry to “ensure that papers filed
are well-grounded in fact, legally tenable, and not interposed
for any improper purpose.” Gal v. Viacom Int'l, Inc., 403 F.
Supp. 2d 294, 307 (S.D.N.Y. 2005) (internal quotation marks
omitted) (quoting Cooter & Gell v. Hartmarx Corp., 496
U.S. 384, 393 (1990) ). In considering a motion for sanctions
under Rule 11, this Court applies an objective standard of
reasonableness. See MacDraw, Inc. v. CIT Group Equip. Fin.,
Inc., 73 F.3d 1253, 1257-58 (2d Cir. 1996). Moreover, “Rule
11 is violated only when it is patently clear that a claim has
absolutely no chance of success.” Oliveri v. Thompson, 803
F.2d 1265, 1275 (2d Cir. 1986) (internal quotation marks and
citation omitted). Additionally, “when divining the point at
which an argument turns from merely losing to losing and
sanctionable, ... courts [must] resolve all doubts in favor of the
signer” of the pleading. Rodick v. City of Schenectady, 1 F.3d
1341, 1350 (2d Cir. 1993) (internal quotation marks omitted).
Here, resolving all doubts in favor of plaintiff, the signer of the
pleading, the Court concludes that plaintiff’s conduct does not
warrant sanctions. As a threshold matter, the Court notes that
plaintiff is proceeding pro se. Although the Court is mindful
that pro se litigants are not immune from sanctions, “the
court may consider the special circumstances of litigants who
are untutored in the law.” Maduakolam v. Columbia Univ.,
866 F.2d 53, (2d Cir. 1989); see Powers v. Duckworth, No.
90-2492, 1995 WL 496751, at *2 (7th Cir. Aug. 17, 1995)
(“[P]ro se status can be considered as a possible mitigating
factor, as can the special circumstances that can arise in
pro se litigation.” (collecting cases) ); Thomas v. Evans,
880 F.2d 1235, 1240 (11th Cir. 1989) (“Rule 11 applies to
pro se plaintiffs, but the court must take into account the
plaintiff’s pro se status when determining whether the filing
was reasonable.”); see also Pryzina v. Ley, 813 F.2d 821,
823-24 (7th Cir. 1987) (noting that what is obvious to an
attorney may not be obvious to a pro se litigant); Cory v.
Fahlstrom, No. 04-4075-RDR, 2004 WL 3186242, at *2 (D.
Kan. Dec. 8, 2004) (“A litigant’s pro se status may certainly
be considered when determining whether to impose Rule 11
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McCluskey v. New York State Unified Court System, Not Reported in Fed. Supp. (2010)
2010 WL 11632696
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sanctions.”); cf. Haines v. Kerner, 404 U.S. 519, 520 (1971)
(stating that pleadings filed by pro se litigants should be
reviewed under a “less stringent” standard). The Court does
not expect litigants proceeding pro se to grasp complex legal
concepts, including the grounds upon which the Court relied
to dismiss plaintiff’s claims—in this case, failure to allege
state action on the part of private defendants and the Rooker-
Feldman doctrine—with the same level of understanding as
attorneys. 2
2 See, e.g., Noel v. Hall, 341 F.3d 1148, 1162 (9th
Cir. 2003) (“It is commonplace for the lower
federal courts to complain that the Rooker-Feldman
doctrine is difficult to apply.”); Gottfried v. Med.
Planning Servs., Inc., 142 F.3d 326, 330 (6th Cir.
1998) (“Rooker-Feldman stands for the simple
(yet nonetheless confusing) proposition that lower
federal courts do not have jurisdiction to review a
case litigated and decided in state court....”).
*2 The fact that plaintiff’s claims were dismissed in entirety
does not automatically warrant the imposition of sanctions
in this case. See, e.g., Mareno v. Rowe, 910 F.2d 1043, 1047
(2d Cir. 1990) (“The positions advanced by [plaintiff] and his
attorney, however faulty, were not so untenable as a matter of
law as to necessitate sanction. Nor did they constitute the type
of abuse of the adversary system that Rule 11 was designed
to guard against.”); see also Nesmith v. Martin Marietta
Aerospace, 833 F.2d 1489, 1491 (11th Cir. 1987) (finding
Rule 11 sanctions unwarranted, even when “[t]he evidence
[plaintiff] presented not only failed to indicate discriminatory
treatment, but instead revealed that [plaintiff] received several
salary increases and promotions during his tenure. [Plaintiff]
made no showing that other similarly situated members of
the unprotected class were treated preferentially nor did he
present evidence of retaliation. Under these circumstances,
it is apparent that [plaintiff’s] claim may be characterized
as without foundation, but there is no evidence that he was
in bad faith in bringing the claim, or that it was brought
for any purpose other than to receive what he thought he
was entitled to under the law.”); Sci. Components Corp. v.
Sirenza Microdevices, Inc., No. 03 Civ. 1851(NGG), 2007
WL 1026411, at *5 (E.D.N.Y. Mar. 30, 2007) (“The court
agrees that [the defendant] has been imprudent in choosing
to litigate this claim. However, Rule 11 sanctions are not
appropriate where there is a viable claim that is weak.”);
Eisenberg v. Yes Clothing Co., No. 90 Civ. 8280 (JFK), 1992
WL 36129, at *4 (S.D.N.Y. Feb. 19, 1992) (“Rule 11 sanctions
are not to be imposed on every litigant that files a motion
that the Court deems premature, or ill-advised, or weak.”).
See generally Christiansburg Garment Co. v. EEOC, 434 U.S.
412, 422 (1978) (warning against the use of “hindsight logic”
that “because plaintiff did not ultimately prevail, his action
must have been unreasonable or without foundation”). 3
3 The Court further notes that the Court dismissed
plaintiff’s complaint sua sponte, thereby obviating
the necessity of the Gabor defendants filing and
litigating a time consuming or costly motion to
dismiss in this case.
In sum, there is insufficient basis to conclude that plaintiff
filed this action in bad faith or that any other grounds for
sanctions are present. The Court, however, is mindful that
“[d]uplicative litigation is, to be sure, clearly impermissible,
and plaintiff must understand that further filing of overlapping
pleadings may require sanctions.” Soling v. N. Y. State, 804 F.
Supp. 532, 539 (S.D.N. Y. 1992). Thus, the Court concludes
that “sanctions are inappropriate unless further overlapping
lawsuits are filed.” Id. at 538; see also Cory v. Fahlstrom,
143 F. App'x 84, 88 (10th Cir. 2005). Accordingly, the Gabor
defendants' motion for sanctions under Rule 11 is denied.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2010 WL 11632696
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 6:26-cv-00070-MAD-MJK Document 25 Filed 03/17/26 Page 73 of 88

McCluskey v. New York State Unified Court System
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (2)
Title PDF Court Date Type
1. Defendants' Memorandum of Law in Support of its
F.R.C.P. Rule 11 Motion
MCCLUSKEY, v. NEW YORK STATE UNIFIED COURT
SYSTEM et al.
2010 WL 3166418
E.D.N.Y. June 29, 2010 Motion
2. Docket 2:10-CV-02144
McCluskey v. New York State Unified Court System et al
— E.D.N.Y. May 11, 2010 Docket
Case 6:26-cv-00070-MAD-MJK Document 25 Filed 03/17/26 Page 74 of 88

McCluskey v. New York State Unified Court System
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History (5)
Direct History (2)
1. McCluskey v. New York State Unified Court System
2010 WL 11632696 , E.D.N.Y. , July 09, 2010
Reconsideration Denied by
2. McCluskey v. New York States Unified Court System
2010 WL 11632697 , E.D.N.Y. , July 27, 2010
Related References (3)
3. McCluskey v. New York State Unified Court System
2010 WL 2558624 , E.D.N.Y. , June 17, 2010
Affirmed by
4. McCluskey v. New York State Unified Court System
442 Fed.Appx. 586 , 2nd Cir.(N.Y.) , Sep. 07, 2011
Certiorari Denied by
5. McCluskey v. New York State Unified Court System
565 U.S. 1208 , U.S. , Feb. 21, 2012
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Zimmerman v. UBS AG, Not Reported in Fed. Supp. (2018)
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Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Robert ZIMMERMAN, Plaintiff,
v.
UBS AG et al., Defendant.
17-CV-4503 (JMF)
|
Signed 08/24/2018
Attorneys and Law Firms
Robert Zimmerman, Hampstead, NC, pro se.
David L. Goldberg, Craig Andrew Convissar, Katten Muchin
Rosenman, LLP, Gary R. Studen, Joshua Schiller, Boies,
Schiller & Flexner LLP, Richard T. Marooney, Jr., King
& Spalding LLP, New York, NY, Robyn Crowther, Boies
Schiller Flexner LLP, Los Angeles, CA, for Defendant.
OPINION AND ORDER
JESSE M. FURMAN, United States District Judge
*1 Plaintiff Robert Zimmerman, proceeding pro se, brings
suit against UBS AG and various affiliated entities and
individuals (collectively, the “UBS Defendants”), Ernst &
Young LLP and various affiliated entities and individuals
(together, the “E&Y Defendants”), and Charles Schwab
& Co., Inc. and two associated individuals (the “Schwab
Defendants”). Zimmerman alleges a total of twelve claims
—including fraudulent inducement, aiding and abetting
securities fraud, and unjust enrichment—stemming from his
investment in a security issued and underwritten by UBS
(the “Monthly Pay 2xLeveraged Exchange Traded Access
Security,” referred to by the parties by its call sign, “CEFL”).
(Docket No. 65 (“Am. Compl.”), ¶¶ 200, 816-957; see id. Ex.
2, at 88). 1 Now pending are five motions: motions by the
Schwab Defendants to compel arbitration and for sanctions
(Docket Nos. 19, 23), motions by the E&Y Defendants and
the UBS Defendants to dismiss (Docket Nos. 72, 75), and a
motion by Zimmerman for sanctions (Docket No. 40). For
the following reasons, the motions to compel arbitration and
to dismiss are granted, while the motions for sanctions are
denied.
1 Specifically, CEFL was issued by UBS AG and
sold by UBS Securities LLC. (See Docket No. 62,
Ex. 5, at 3). For convenience, the Court refers to
these and related entities collectively as “UBS.”
BACKGROUND
The material facts are not significantly disputed.
Nevertheless, the following relevant facts, which are taken
from the Amended Complaint, documents it incorporates,
and matters of which the Court may take judicial notice,
are construed in the light most favorable to Zimmerman.
See, e.g., Kleinman v. Elan Corp., 706 F.3d 145, 152 (2d
Cir. 2013); Gonzalez v. Hasty, 651 F.3d 318, 321 (2d
Cir. 2011). Zimmerman alleges that, in 2013, he invested
in the CEFL security through his Schwab account after
reading UBS’s “Product Supplement.” (Am. Compl. ¶¶ 200,
459-60). Zimmerman “continued investing in CEFL until
approximately April 2015,” when he sold all of his shares
in the security. (Id. ¶ 459). Zimmerman claims that he was
fraudulently induced to invest in CEFL—an “investment
[which] would never have occurred had [Zimmerman] been
aware of UBS’s vast criminal history”—and that he suffered
losses of “approximately $180,000-$400,000” as a result. (Id.
¶¶ 460, 541).
In January 2016, Zimmerman filed an arbitration claim
with respect to the CEFL investment against UBS
Financial Services and Schwab before the Financial Industry
Regulatory Authority (“FINRA”). (See Docket No. 21
(“Crowther Decl.”), Ex. 1 (“FINRA Claim”) ). In that
proceeding, Zimmerman contended that UBS had defrauded
him by concealing certain risks and investigations into
UBS’s business practices. (Id. at 2-6). UBS responded by
filing for an injunction in the United States District for the
Eastern District of North Carolina to prohibit Zimmerman
from pursuing arbitration. See UBS Fin. Servs., Inc. v.
Zimmerman, No. 5:16-CV-155-FL, 2016 WL 7017278, at
*1 (E.D.N.C. Dec. 1, 2016). Zimmerman responded with
counterclaims against UBS, asserting—as he does here—
securities fraud and negligent misrepresentation. Id. The
District Court dismissed Zimmerman’s counterclaims, see id.,
and later granted UBS’s injunction, finding that UBS had no
arbitration agreement with Zimmerman and thus could not be
forced to participate in the FINRA arbitration, see UBS Fin.
Servs., Inc. v. Zimmerman, No. 5:16-CV-155-FL, 2017 WL
2963445, at *3 (E.D.N.C. July 11, 2017).
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*2 In the meantime, in March 2017, Schwab and
Zimmerman executed a Confidential Settlement Agreement
and General Release settling the claims brought in arbitration.
(Crowther Decl., Ex. 5 (“Settlement Agreement”) ). Per the
terms of that agreement, Schwab agreed to pay Zimmerman
$5,000 “as full and final settlement of the Dispute,” defined as
the “dispute ... between Schwab and [Zimmerman] regarding
[Zimmerman’s Schwab account], as more fully described
in FINRA Arbitration Case No. 15-03460, styled Bob
Zimmerman v. UBS Financial Services, Inc. and Charles
Schwab & Co., Inc.” (Id. at 1). In exchange for that payment,
Zimmerman agreed to dismiss his arbitration claims with
prejudice and “to release and forever discharge Schwab” and
its affiliates “from any and all claims ..., whether now known
or unknown, suspected or unsuspected, which he ever had,
owned or held or now has, owns or holds, arising out of or
in any way connected with the Dispute, with Schwab, or with
Schwab’s handling or administration of the Account from the
date the Account was opened to the present.” (Id. at ¶ 3).
The parties also agreed to resolve any disputes “regarding the
meaning or interpretation of [the] Agreement, or the rights
and obligations of any of the parties hereto,” through “binding
arbitration.” (Id. ¶ 12).
DISCUSSION
As noted, there are five motions now pending: the
Schwab Defendants' motion to compel arbitration, the E&Y
Defendants' and the UBS Defendants' motions to dismiss, the
Schwab Defendants' motion for sanctions, and Zimmerman’s
own motion for sanctions. The Court addresses them in that
order.
A. The Schwab Defendants' Motion to Compel
Arbitration
The Schwab Defendants do not move to dismiss
Zimmerman’s claims, but move instead, pursuant to the
Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq., to
compel arbitration. (Docket No. 23; see Docket No. 24, at
7-8). In evaluating a motion to compel arbitration, a district
court must apply the summary judgment standard, and thus
may grant the motion only if “the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there
is no genuine issue as to any material fact and that movant is
entitled to judgment as a matter of law.” Cohen v. UBS Fin.
Servs., Inc., 12-CV-2147 (BSJ) (JLC), 2012 WL 6041634,
at *1 (S.D.N.Y. Dec. 4, 2012) (quoting Green Tree Fin.
Corp.-Ala. v. Randolph, 531 U.S. 79, 91 (2000) ). To decide
“whether the parties agreed to arbitrate a certain matter” for
purposes of the FAA, a court must apply “ordinary state-
law principles that govern the formation of contracts.” First
Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1995).
“Once a court is satisfied that an arbitration agreement is valid
and the claim before it is arbitrable, it must stay or dismiss
further judicial proceedings and order the parties to arbitrate.”
Cohen, 2012 WL 6041634, at *2 (quoting LaVoice v. UBS Fin.
Servs., Inc., No. 11-CV-2308 (BSJ) (JLC), 2012 WL 124590,
at *2 (S.D.N.Y. Jan. 13, 2012) ); see also Katz v. Cellco P’ship,
794 F.3d 341, 345 (2d Cir. 2015) (“We join those Circuits that
consider a stay of proceedings necessary after all claims have
been referred to arbitration and a stay requested.”).
Although there is a general presumption that courts, not
arbitrators, decide issues of arbitrability, see Telenor Mobile
Commc'ns AS v. Storm LLC, 584 F.3d 396, 406 (2d Cir.
2009), this presumption can be rebutted with “clear and
unmistakable evidence from the arbitration agreement, as
construed by the relevant state law, that the parties intended
that the question of arbitrability shall be decided by the
arbitrator,” Contec Corp. v. Remote Sol., Co., 398 F.3d
205, 208 (2d Cir. 2005) (internal quotation marks omitted).
“Clear and unmistakable evidence exists when an arbitration
clause explicitly delegates arbitrability determinations to the
arbitrator.” Arshad v. Transp. Sys., Inc., 183 F. Supp. 3d 442,
446 (S.D.N.Y. 2016).
Applying those standards here, the Court grants the Schwab
Defendants' motion to compel arbitration. First, to the extent
that Zimmerman brings claims under his initial agreement
with Schwab, the arbitration clause in that agreement
unambiguously requires that any and all disputes—including
disputes about whether or which claims must go to arbitration
in the first instance—be arbitrated. It provides, in relevant
part, as follows:
*3 Any controversy or claim
arising out of or relating to (i)
this Agreement, any other agreement
with Schwab, an instruction or
authorization provided to Schwab or
the breach of any such agreements,
instructions, or authorizations; (ii) the
Account, any other Schwab account
or Services; (iii) transactions in
the Account or any other Schwab
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account; (iv) or in any way arising
from the relationship with Schwab,
its parent, subsidiaries, affiliates,
officers, directors, employees, agents
or service providers ..., including any
controversy over the arbitrability of a
dispute, will be settled by arbitration.
(Docket No. 25 (“Schiller Decl.”), Ex. 1 (“Schwab
Agreement”), at § 15). Second, to the extent that Zimmerman
brings claims relating to the March 2017 Settlement
Agreement, the upshot is the same, as that agreement
provides that “[t]he parties agree that any dispute regarding
the meaning or interpretation of [the] Agreement, or the
rights and obligations of any of the parties hereto, shall be
resolved through binding arbitration.” (Settlement Agreement
¶ 12). The bottom line is that Zimmerman cannot (and
does not) dispute that his claims in this case are either
related to “transactions in the Account or any other Schwab
account,” (Schwab Agreement § 15), or related to “the
rights and obligations” of the parties under the Settlement
Agreement, (Settlement Agreement ¶ 13)—if not related to
both. It follows that the Schwab Defendants' motion to compel
arbitration must be and is GRANTED. 2
2 Zimmerman contends that he does not recall
assenting to the Schwab Agreement and that
FINRA is inherently discriminatory and unfair to
him. (Docket No. 31, at 6, 10). Zimmerman fails to
support his first argument with any evidence; in any
event, it is belied by both his initiation of arbitration
before FINRA in January 2016 and his contention
that he was coerced into signing the Schwab
Agreement. (See id. at 7). Zimmerman’s claim
that FINRA is unfairly biased against him is “too
speculative and attenuated to justify invalidation of
all contemplated arbitration, or to enjoin it before it
commences.” Pompano-Windy City Partners, Ltd.
v. Bear, Stearns & Co., 698 F. Supp. 504, 517
(S.D.N.Y. 1988) (rejecting a similar claim).
B. The UBS Defendants' and E&Y Defendants' Motions
to Dismiss
Next, the UBS Defendants and the E&Y Defendants
separately move to dismiss the Amended Complaint pursuant
to Rules 4(m), 8, 12(b)(2), 12(b)(5), and 12(b)(6) of the
Federal Rules of Civil Procedure. (See Docket No. 73
(“E&Y Br.”), at 5; Docket No. 76 (“UBS Br.”), at 1).
While the two motions do not overlap entirely, they share
at least one compelling argument: that CEFL’s offering
documents included or incorporated the very disclosures that
Zimmerman now complains were lacking. (See E&Y Br.
12-13; UBS Br. 7-9). These disclosures are fatal to each of
Zimmerman’s claims, and require dismissal of those claims
in their entirety against the UBS Defendants and the E&Y
Defendants. Accordingly, the Court need not and does not
reach those Defendants' remaining arguments.
In reviewing a Rule 12(b)(6) motion to dismiss, a court must
accept the factual allegations set forth in the complaint as true
and draw all reasonable inferences in favor of the plaintiff.
See, e.g., Cohen v. Avanade, Inc., 874 F. Supp. 2d 315, 319
(S.D.N.Y. 2012). A court may not dismiss claims pursuant to
Rule 12(b)(6) unless the plaintiff has failed to plead sufficient
facts to state a claim to relief that is facially plausible, see
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007),
that is, one that contains “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). More specifically, a plaintiff must allege facts
showing “more than a sheer possibility that a defendant has
acted unlawfully.” Id. A complaint that offers only “labels
and conclusions” or “a formulaic recitation of the elements
of a cause of action will not do.” Twombly, 550 U.S. at
555. If a plaintiff has not “nudged [its] claims across the
line from conceivable to plausible, [those claims] must be
dismissed.” Id. at 570. Where, as here, a plaintiff proceeds pro
se, his pleadings “must be held to less stringent standards than
formal pleadings drafted by lawyers.” Erickson v. Pardus,
551 U.S. 89, 94 (2007) (internal quotation marks omitted).
“Nonetheless, a pro se litigant must still state a plausible
claim for relief. Put another way, the Court’s duty to liberally
construe a plaintiff’s complaint is not the equivalent of a
duty to re-write it.” Thomas v. N.Y.C. Dep't of Educ., No. 15-
CV-8934 (JMF), 2016 WL 4544066, at *2 (S.D.N.Y. Aug.
31, 2016) (internal quotation marks, citation, and alterations
omitted).
*4 Here, each of Zimmerman’s twelve claims turns on
the concealment of “UBS’s vast history of criminality” in
the CEFL prospectus. (Am. Compl. ¶ 820; see also id.
¶¶ 835, 843, 849, 871, 892, 906, 930, 939, 949, 957). In
each of these counts, Zimmerman charges that Defendants
“conceal[ed] 26 material facts regarding CEFL.” (Id. ¶ 831).
But these “26 material facts” (which, in the Court’s parsing
of the Amended Complaint, seem to be closer to ten facts,
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see id. ¶¶ 335-44) were either adequately disclosed or are
too speculative to require disclosure. Zimmerman relies
principally on UBS’s publicly filed 2015 Annual Report,
in which UBS disclosed certain misconduct, as evidence of
material facts that were undisclosed in 2013, when he invested
in CEFL. (See, e.g., id. ¶¶ 221, 240). But UBS made nearly
identical disclosures in materials available to Zimmerman in
2013, and which Zimmerman concedes he read. (See, e.g., id.
¶ 459). In connection with the CEFL security, UBS issued
a Product Supplement, which summarized the product and
described certain risk factors inherent to CEFL. (Docket No.
74 (“O'Brien Decl.”), Ex. A (“CEFL Product Supplement”) ).
For instance, UBS warned that CEFL is “not secured
debt and [is] significantly riskier than ordinary unsecured
debt securities.” (CEFL Product Supplement S-18). The
Product Supplement also incorporated and attached a general
prospectus about UBS securities. (CEFL Product Supplement
i (“You should rely only on the information incorporated
by reference or provided in this product supplement or the
accompanying prospectus.”); see also O'Brien Decl., Ex. B
(“UBS Prospectus”) ). In the UBS Prospectus, UBS warned
that securities like CEFL “may present a high level of risk, and
those who invest in some indexed securities may lose their
entire investment.” (UBS Prospectus 52).
Significantly, the UBS Prospectus also explicitly referenced
and incorporated UBS’s 2013 Annual Report. Under a
heading entitled “Risk Factors Relating to UBS and
Other Considerations Relating to the Securities,” the UBS
Prospectus warned investors: “For a discussion of important
business and financial risks relating to UBS AG, please see
‘Risk Factors’ in Part I, Item 3D of our Annual Report ...
which is incorporated in this prospectus by reference.” (UBS
Prospectus 2; see also id. at 3 (“More detailed information
about [risk] factors is set forth in ... UBS’s Annual
Report....”); id. at 4 (“We incorporate by reference in this
prospectus: UBS AG’s Annual Report on Form 20-F for
the year ended December 31, 2013....”) ). 3 UBS’s 2013
Annual Report, in turn, sufficiently and expressly disclosed
the alleged misconduct of which Zimmerman now complains.
UBS disclosed that it “agreed to pay a fine of USD 500
million” as part of a settlement related to the Department of
Justice’s investigation of benchmark interest rates. (O'Brien
Decl., Ex. C (“UBS 2013 Annual Report”), at 422). UBS also
disclosed, inter alia, that it was under investigation for illicitly
soliciting clients in France, that it was fending off significant
litigation relating to residential mortgage-backed securities,
that it had been sued in connection with fraud relating to
Bernie Madoff, and that it had paid fines in connection with
proceedings in Italy. (Id. at 416-25). In sum, UBS disclosed
that it “operates in a legal and regulatory environment that
exposes it to significant litigation and similar risks arising
from disputes and regulatory proceedings.” (Id. at 416).
3 Zimmerman contends that UBS’s disclosures were
“buried hundreds of pages deep” and, thus,
“conceal[ed] or obscure[d] the information sought
to be disclosed.” (Docket No. 83, at 17). That
contention, however, is belied by the prominence
that the disclosures received in UBS’s materials,
including the multiple references to the ten-
page section on UBS’s litigation and regulatory
exposure on the second and third pages of UBS’s
Prospectus. (See, e.g., UBS Prospectus 2 (“For a
discussion of important business and financial risks
relating to UBS AG, please see ‘Risk Factors’
in Part I, Item 3D of our Annual Report....”) ).
Thus, the Court concludes, the disclosures were not
inscrutable or hidden from Zimmerman’s review.
See, e.g., I. Meyer Pincus & Assocs., P.C. v.
Oppenheimer & Co., 936 F.2d 759, 763 (2d Cir.
1991) (rejecting an analogous argument where the
section containing relevant disclosures was listed
in the Table of Contents and where the prospectus
“unambiguously communicate[d] the importance
of reading all relevant material contained within the
prospectus”).
Given Zimmerman’s express allegation (see Am. Compl.
¶ 459) that he relied on the UBS Product Supplement—
which attached and incorporated the UBS Prospectus and
the 2013 Annual Report—his contention that Defendants
“intentionally concealed the sums UBS paid in fines” (Am.
Compl. ¶ 338) is not plausible. See, e.g., In re UBS AG
Sec. Litig., No. 07-CV-11225 (RJS), 2012 WL 4471265, at
*30 (S.D.N.Y. Sept. 28, 2012) (relying on a UBS Annual
Report, which was incorporated into a security offering,
to conclude that UBS “adequately met its obligation” by
disclosing certain uncharged conduct), aff'd sub nom. City of
Pontiac Policemen’s & Firemen’s Ret. Sys. v. UBS AG, 752
F.3d 173 (2d Cir. 2014); Dujardin v. Liberty Media Corp.,
359 F. Supp. 2d 337, 350 (S.D.N.Y. 2005) (dismissing a
securities fraud claim on the ground that it was “premised on
facts that were adequately disclosed”). Further, Zimmerman’s
claim that UBS concealed the fact that the Department of
Justice revoked a non-prosecution agreement with UBS is
even more implausible, as that agreement was not revoked
until May 2015—well after Zimmerman invested in CEFL.
(See O'Brien Decl., Ex. D (“UBS 2015 Annual Report”),
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at 644). UBS’s adequate disclosure of the material facts
that Zimmerman identifies is fatal to each of Zimmerman’s
causes of action. (See, e.g., Am. Compl. ¶ 820 (arguing
that Defendants “conspired to conceal UBS’s vast history
of criminality”); id. ¶ 835 (arguing that Defendants aided
and abetted securities fraud by omitting “the 26 material risk
factors from the Product Supplement”); id. ¶ 842 (arguing that
Defendants fraudulently concealed material information) ).
Because UBS adequately disclosed the material facts that
Zimmerman identifies, the UBS Defendants' and the E&Y
Defendants' motions to dismiss are GRANTED.
C. The Motions for Sanctions
*5 Finally, the Schwab Defendants and Zimmerman have
filed competing motions for sanctions. First, the Schwab
Defendants argue that Zimmerman should be sanctioned
pursuant to Rule 11 of the Federal Rules of Civil Procedure
and made to pay Schwab’s attorneys' fees “[a]s a deterrent
against future duplicative and vexatious litigation.” (Docket
No. 20 (“Schwab’s Sanctions Mem.”), at 1). The Schwab
Defendants contend that they repeatedly warned Zimmerman
that he had already settled his claims against Schwab and
that any dispute over the settlement must be, per the
Settlement Agreement, resolved in arbitration. (Id. at 2).
Second, Zimmerman seeks sanctions against the Schwab
Defendants on the ground that they violated the California
Evidence Code by disclosing the Settlement Agreement.
(Docket No. 40, at 3).
“A pleading, motion or other paper violates Rule 11 either
when it has been interposed for any improper purpose,
or where, after reasonable inquiry, a competent attorney
could not form a reasonable belief that the pleading is well
grounded in fact and is warranted by existing law or good
faith argument for the extension, modification or reversal of
existing law.” Kropelnicki v. Siegel, 290 F.3d 118, 131 (2d
Cir. 2002) (internal citations and quotation marks omitted).
Rule 11 applies to both attorneys and pro se litigants in
guarding against frivolous, vexatious, or scurrilous lawsuits.
Maduakolam v. Columbia Univ., 866 F.2d 53, 56 (2d Cir.
1989). Indeed, the fact that a litigant appears pro se “does not
shield him from Rule 11 sanctions because one acting pro se
has no license to harass others, clog the judicial machinery
with meritless litigation, and abuse already overloaded court
dockets.” Malley v. N.Y.C. Bd. of Educ., 207 F. Supp. 2d 256,
259 (S.D.N.Y. 2002) (internal quotation marks and citations
omitted). Nevertheless, “the court may consider the special
circumstances of litigants who are untutored in the law.”
Simpson v. Putnam Cty. Nat'l Bank of Carmel, 112 F. Supp.
2d 284, 292 (S.D.N.Y. 2000) (quoting Maduakolam, 866 F.2d
at 56). “Courts impose Rule 11 sanctions with discretion
and caution,” particularly when it comes to pro se litigants.
Newman & Cahn, LLP v. Sharp, 388 F. Supp. 2d 115, 119
(E.D.N.Y. 2005) (citing Caisse Nationale de Credit Agricole-
CNCA v. Valcorp., Inc., 28 F.3d 259, 264 (2d Cir. 1994) ).
Applying those standards, the Court is tempted to impose
sanctions on Zimmerman for filing this lawsuit against the
Schwab Defendants despite the clear arbitration provisions in
both the Schwab Agreement and the Settlement Agreement.
Nevertheless, exercising its discretion, the Court declines
to do so, primarily because Zimmerman is proceeding pro
se. See, e.g., id. (declining to impose sanctions on a pro se
plaintiff even though the plaintiff’s “petition [was] frivolous
and unwarranted”); Long v. Key Bank, N.A., No. 08-CV-6497
(MAT), 2009 WL 2580101, at *3 n.2 (W.D.N.Y. Aug. 19,
2009) (declining to impose sanctions on a pro se plaintiff
while noting that, “[h]ad [plaintiff’s] claims been raised by
an attorney,” the Court likely would have imposed sanctions).
Nevertheless, Zimmerman is warned—again—that the filing
of another frivolous action or motion relating to the claims
he presses here, and previously pressed in arbitration and the
District of North Carolina, may result in monetary sanctions
under Rule 11.
By contrast, Zimmerman’s own motion for sanctions is
plainly frivolous and must be denied. Indeed, it would be
absurd to suggest, let alone hold, that a defendant who is
sued may not submit an otherwise confidential settlement
agreement to the court in aid of its argument that the lawsuit
is barred by a release or an arbitration clause. The California
Evidence Code—upon which Zimmerman relies—does not
suggest otherwise. Putting aside the question of whether
the state’s Code even applies in federal court, the sections
of the Code cited by Zimmerman concern communications
and agreements in the context of meditation. See Cal. Evid.
Code. §§ 1119-1123. Moreover, the Code expressly provides
that a “written settlement agreement prepared in the course
of, or pursuant to, a mediation, is not made inadmissible,
or protected from disclosure, ... if the agreement is signed
by the settling parties and ... [t]he agreement provides that
it is enforceable or binding or words to that effect.” Id.
§ 1123 (emphasis added). That is the case here, as the
Settlement Agreement states that it “shall be interpreted,
enforced, and governed by and under the laws of the State of
California.” (Settlement Agreement ¶ 11 (emphasis added) ).
Thus, the Schwab Defendants plainly did nothing wrong
in submitting the Settlement Agreement in support of their
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argument that Zimmerman had released the claims he brings
here and agreed to arbitrate. See Cates v. Morgan Portable
Bldg. Corp., 780 F.2d 683, 691 (7th Cir. 1985) (“Obviously
a settlement agreement is admissible to prove the parties'
undertakings in the agreement, should it be argued that a party
broke the agreement.”).
CONCLUSION
*6 For the reasons discussed above, the Schwab Defendants'
motion to compel arbitration, the UBS Defendants' motion
to dismiss, and the E&Y Defendants' motion to dismiss are
GRANTED, and the two motions for sanctions are DENIED.
The Court declines to sua sponte grant Zimmerman leave to
amend his complaint. Although leave to amend a complaint
should be freely given “when justice so requires,” Fed. R. Civ.
P. 15(a)(2), and courts should generally grant pro se plaintiffs
leave to amend “at least once when a liberal reading of the
complaint gives any indication that a valid claim might be
stated,” Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d
Cir. 1999) (per curiam) (internal quotation marks omitted), 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). Here, Zimmerman
was already granted leave to amend the complaint to cure
deficiencies raised by the UBS Defendants' and the E&Y
Defendants' motions to dismiss and was explicitly cautioned
that he would “not be given any further opportunity to amend
the complaint to address issues raised by the motion to
dismiss.” (Docket No. 35). Additionally, many—if not all—
of the problems with Zimmerman’s claims are “substantive”
and “better pleading will not cure” them. Cuoco v. Moritsugu,
222 F.3d 99, 112 (2d Cir. 2000). Finally, Zimmerman “has
not requested permission to file [an amended complaint],
nor has he given any indication that he is in possession of
facts that would cure the problems” identified in the instant
opinion dismissing his claims. Clark v. Kitt, No. 12-CV-8061
(CS), 2014 WL 4054284, at *15 (S.D.N.Y. Aug. 15, 2014).
Accordingly, the Court declines to grant Zimmerman leave to
amend his complaint for a second time.
Finally, in light of the fact that the only claims remaining—
against the Schwab Defendants—are subject to arbitration,
this action is stayed pending resolution of the arbitration.
See Katz, 794 F.3d at 345 (“[A] stay of proceedings [is]
necessary after all claims have been referred to arbitration
and a stay [is] requested.”). That said, the Court sees no
reason to keep the case open pending arbitration. Accordingly,
the Clerk of Court is directed (1) to terminate Docket Nos.
19, 23, 40, 72, and 75; (2) to terminate all Defendants as
parties, except for the Schwab Defendants (namely, Charles
Schwab & Co., Inc., Charles Schwab, and Walt Bettinger);
and (3) to administratively close the case, without prejudice
to either Zimmerman or the Schwab Defendants moving by
letter motion to reopen the case within thirty days of the
conclusion of the arbitration proceedings.
This Court certifies, pursuant to Title 28, United States Code,
Section 1915(a)(3), that any appeal from this Opinion and
Order would not be taken in good faith, and in forma pauperis
status is thus denied. See Coppedge v. United States, 369 U.S.
438, 444-45 (1962).
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2018 WL 4054860
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 6:26-cv-00070-MAD-MJK Document 25 Filed 03/17/26 Page 81 of 88

Zimmerman v. UBS AG
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (11)
Title PDF Court Date Type
1. Appellate Reply Brief
Robert ZIMMERMAN, Plaintiff - Appellant, v. UBS AG,
UBS Group AG, UBS Securities LLC, UBS Financial
Services, Inc., UBS Americas Holding L.L.C., Charles
Schwab & Co., Inc., Ernst & Young LLP, Charles Schwab,
Walt Bettinger, Axel Weber, Michel Demare, Tom Naritil,
Markus Diethelm, Sergio Ermotti, William Parrett, Ann
Godbeher, Isabelle Romy, Beatrice Weder di Mauro, Reto
Francioni, Robert McCann, Marie-Laure Delaure, Troy
Butner, Defendant - Appellees.
2019 WL 8886063
C.A.2 May 09, 2019 Brief
2. Reply Memorandum of Law in Further Support
of Motion to Dismiss of Defendant Ubs Entities and
Individuals
Robert ZIMMERMAN, Plaintiff, v. UBS AG et al.,
Defendants.
2018 WL 11304970
— S.D.N.Y. Apr. 06, 2018 Motion
3. Reply in Support of Ernst & Young LLP's Motion to
Dismiss Plaintiff's First Amended Complaint
Robert ZIMMERMAN, Plaintiff, v. UBS AG et al.,
Defendants.
2018 WL 11304971
— S.D.N.Y. Apr. 02, 2018 Motion
4. Memorandum of Law in Support of Motion to
Dismiss of Defendant Ubs Entities and Individuals
Robert ZIMMERMAN, Plaintiff, v. UBS AG et al.,
Defendants.
2018 WL 11304972
— S.D.N.Y. Jan. 31, 2018 Motion
5. Memorandum of Law in Support of Ernst & Young
LLP's Motion to Dismiss Plaintiff's First Amended
Complaint
Robert ZIMMERMAN, Plaintiff, v. UBS AG et al.,
Defendants.
2018 WL 11304974
— S.D.N.Y. Jan. 31, 2018 Motion
6. Memorandum of Law in Support of Motion to
Dismiss of Defendant Ubs Entities and Individuals
Robert ZIMMERMAN, Plaintiff, v. UBS AG et al.,
Defendants.
2017 WL 11607331
— S.D.N.Y. Dec. 08, 2017 Motion
7. Memorandum of Law in Support of Ernst & Young
LLP's Motion to Dismiss
Robert ZIMMERMAN, Plaintiff, v. UBS AG et al.,
Defendants.
2017 WL 11607329
— S.D.N.Y. Oct. 26, 2017 Motion
Case 6:26-cv-00070-MAD-MJK Document 25 Filed 03/17/26 Page 82 of 88

Zimmerman v. UBS AG
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Title PDF Court Date Type
8. Memorandum of Law in Support of Defendants
Charles Schwab & Co., Inc., Charles Schwab and Walt
Bettinger's Motion to Compel Arbitration
Robert ZIMMERMAN, Plaintiff, v. UBS AG, UBS Group
AG, UBS Securities, LLC, UBS Financial Services, Inc.,
UBS Americas Holding LLC, Charles Schwab & Co., Inc.,
Ernst & Young LLP, Charles Schwab, Walt Bettinger, Axel
Weber, Michel Demare, Tom Naritil, Markus Diethelm,
Sergio Ermotti, William Parrett, Ann Godbeher, Isabelle
Romy, Beatrice Weder Di Mauro, Reto Francioni, Robert
Mccann, Marie-Laure Delaure, Tory Butner, Defendants.
2017 WL 11607330
— S.D.N.Y. Sep. 22, 2017 Motion
9. Docket 20-885
ZIMMERMAN v. UBS AG ET AL
— C.A.2 Mar. 10, 2020 Docket
10. Docket 18-3185
ZIMMERMAN v. UBS AG
— C.A.2 Oct. 24, 2018 Docket
11. Docket 1:17-CV-04503
Zimmerman v. UBS AG et al
— S.D.N.Y. June 12, 2017 Docket
Case 6:26-cv-00070-MAD-MJK Document 25 Filed 03/17/26 Page 83 of 88

Zimmerman v. UBS AG
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History (3)
Direct History (3)
1. Zimmerman v. UBS AG
2018 WL 4054860 , S.D.N.Y. , Aug. 24, 2018
Appeal Dismissed by
2. Zimmerman v. UBS AG
789 Fed.Appx. 914 , 2nd Cir.(N.Y.) , Jan. 14, 2020
AND Appeal Dismissed by
3. Zimmerman v. UBS AG
2020 WL 5407780 , 2nd Cir.(N.Y.) , July 23, 2020
Case 6:26-cv-00070-MAD-MJK Document 25 Filed 03/17/26 Page 84 of 88

Zimmerman v. UBS AG
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 6:26-cv-00070-MAD-MJK Document 25 Filed 03/17/26 Page 85 of 88

U.S. Bank National Association v. O'Hara, Not Reported in Fed. Supp. (2025)
2025 WL 358419
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2025 WL 358419
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
U.S. BANK NATIONAL ASSOCIATION, Plaintiff,
v.
Edward O'HARA, Defendant.
24-CV-8459 (JPO)
|
Signed January 31, 2025
Attorneys and Law Firms
Sirui Sherry Xia, Hinshaw & Culbertson LLP, New York, NY,
for Plaintiff.
Edward O'Hara, Greenwich, CT, Pro Se.
ORDER
J. PAUL OETKEN, District Judge:
*1 Defendant Edward O'Hara purports to remove this case
—originally a foreclosure action filed in Connecticut state
court—from the United States District Court for the District
of Connecticut pursuant to 28 U.S.C. § 1446(a). (See ECF
No. 1 at 1.) Before the Court is Plaintiff U.S. Bank National
Association's motion to remand the case and for attorney's
fees. (ECF No. 6.) For the reasons that follow, this action is
dismissed sua sponte, the motion to remand is denied as moot,
and the motion for attorney's fees is denied.
I. Motion for Remand
Plaintiff moves this Court to remand the case, arguing that
O'Hara has failed to satisfy the requirements of Section
1446(a). (See ECF No. 8). Plaintiff is correct. Section
1446(a) provides only for removal of a “civil action from a
State court,” not another federal court. 28 U.S.C. § 1446(a)
(emphasis added). Construing O'Hara's notice of removal as
a motion for a transfer of venue would aid him no further,
as such motions must be filed in the transferor court, rather
than the transferee court. See 28 U.S.C. § 1404. Finally,
even construing O'Hara's notice of removal as purporting
to remove the case from the underlying foreclosure action
pending in Superior Court of Connecticut, Judicial District of
Samford at Samford, would not render removal to this Court
proper, as a state court action may be removed only to “the
district court of the United States for the district and division
within which such action is pending.” 28 U.S.C. § 1404(a). 1
1 O'Hara's argument that exclusive jurisdiction over
this action lies with the Bankruptcy Court for
the Southern District of New York was correctly
rejected by that court as frivolous. In re Lehman
Bros. Holdings Inc., No. 08-13555, 2025 WL
261959, at *7-8 (Bankr. S.D.N.Y. Jan. 21, 2025)
(“This case fits neatly with the clear line of
precedent in this Circuit barring relitigating the
foreclosure actions in federal courts. No matter
the (questionable, in this case) merits of O'Hara's
claims, this Court lacks subject matter jurisdiction
to hear every one of the claims he alleges because
they are all, in substance, attempts to appeal the
Foreclosure Judgment.”).
Despite the styling of Plaintiff's motion, this Court cannot
remand a case to another federal court. Therefore, this action
is dismissed sua sponte without prejudice because O'Hara
presents no non-frivolous basis for removal under 28 U.S.C.
§ 1446(a). See Pillay v. I.N.S., 45 F.3d 14, 16-17 (2d Cir.
1995) (citing Mallard v. United States Dist. Ct., 490 U.S.
296, 307-08 (1989)) (explaining the general principle that
courts have inherent authority to dismiss frivolous cases that
present “no arguably meritorious issue for ... consideration”);
Decatus v. City of New York, No. 24-CV-2224, 2024 WL
2137857, at *1 (S.D.N.Y. May 13, 2024) (“The Court has
the authority to dismiss a complaint, even when the plaintiff
has paid the filing fees, if it determines that the action is
frivolous.”) (citing Fitzgerald v. First E. Seventh Tenants
Corp., 221 F.3d 362, 363-64 (2d Cir. 2000) (per curiam)). This
order shall have no effect on the maintenance of this action
in any other court. 2 Accordingly, the motion to remand is
denied as moot.
2 Even though the Court does not formally remand
the action, 28 U.S.C. § 1446(d) shall not impede
the progress of this case in any other court as of a
result of the proceedings here because this case was
never properly removed “from a State court,” cf. 28
U.S.C. § 1446(a).
II. Attorney's Fees
*2 Plaintiff moves this Court to award costs and attorney's
fees it incurred in opposing O'Hara's attempt to remove
the action to this Court. (See ECF No. 6 at 17-18.) Such
an award is permitted by 28 U.S.C. § 1447(c) where “the
Case 6:26-cv-00070-MAD-MJK Document 25 Filed 03/17/26 Page 86 of 88

U.S. Bank National Association v. O'Hara, Not Reported in Fed. Supp. (2025)
2025 WL 358419
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
removing party lacked an objectively reasonable basis for
seeking removal.” Martin v. Franklin Cap. Corp., 546 U.S.
132, 141 (2005). Though O'Hara clearly lacked such a basis
—as he sought removal from another federal court and in
the incorrect district in plain contravention of Section 1446
—courts generally decline to award costs and fees against
pro se defendants under Section 1447(c). See, e.g., Bleiberg
v. Altvater, No. 01-CV-11507, 2002 WL 1339097, at *2
(S.D.N.Y. June 19, 2002) (“With respect to plaintiff's request
for attorney fees and costs under 28 U.S.C. § 1447(c), I
decline to find any here, although perhaps only in light
of the defendant's pro se status.”); see also Archway IP
L. PLLC v. D3Holdings, LLC, No. 19-CV-404, 2019 WL
8886224, at *1 n.1 (E.D. Va. July 1, 2019) (collecting
cases). The Court concludes that O'Hara's pro se status is an
“unusual circumstance[ ] [that] warrant[s] a departure” from
the objective reasonableness test for awarding fees under
Section 1447(c). See Martin, 546 U.S. at 141. Accordingly,
the motion for attorney's fees and costs is denied. However,
O'Hara is cautioned that should he continue to make frivolous
arguments in this Court “in bad faith, vexatiously, wantonly,
or for oppressive reasons,” he may be subject to sanctions
pursuant to this Court's inherent authority. See Weiss v.
Yotta Techs., No. 22-CV-8569, 2024 WL 4285849, at *4-5
(S.D.N.Y. Sept. 25, 2024).
III. Conclusion
For the foregoing reasons, this action is DISMISSED.
Plaintiff's motion for remand is DENIED AS MOOT.
Plaintiff's motion for attorney's fees and costs is DENIED. All
remaining motions in the case are DENIED AS MOOT.
Because this case was never properly removed to this Court,
the notice of removal filed with this Court shall have no effect,
by virtue of 28 U.S.C. § 1446(d), on any other proceeding.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2025 WL 358419
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 6:26-cv-00070-MAD-MJK Document 25 Filed 03/17/26 Page 87 of 88

U.S. Bank National Association v. O'Hara
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings
There are no Filings for this citation.
History
There are no History results for this citation.
Case 6:26-cv-00070-MAD-MJK Document 25 Filed 03/17/26 Page 88 of 88