Case Information
*1 UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
CHARLES J. ANTHONY, SR.,
Plaintiff,
5:15-CV-00450 v. (DNH/TWD) HON. JAMES P. MURPHY,
Defendant.
_____________________________________________
APPEARANCES:
CHARLES J. ANTHONY, SR.
Plaintiff pro se
8819 Gaskin Road
Clay, New York 13041
THÉRÈSE WILEY DANCKS , United States Magistrate Judge
ORDER AND REPORT-RECOMMENDATION
Plaintiff Charles J. Anthony, Sr., submitted a pro se complaint against Defendant New York State Supreme Court Justice James P. Murphy on April 15, 2015. (Dkt. No. 1.) Plaintiff also submitted an application to proceed in forma pauperis (“IFP application”). (Dkt. No. 2.) Before the Court issued its Order and Recommendation on Plaintiff’s IFP application and on its initial review of Plaintiff’s complaint, Plaintiff filed a superseding amended/supplemental complaint (Dkt. No. 4) and a second IFP application (Dkt. No. 5), which the Clerk has submitted to the Court for review. [1]
*2 I. PLAINTIFF’S IFP APPLICATION
Plaintiff’s second IFP application is the same application initially submitted. ( See Dkt. Nos. 2 and 5.) It is a New York State court IFP application form rather than the IFP application used in the Northern District of New York. [2] The application reveals monthly Social Security benefits of $1,802 and a monthly pension payment of $ 663.92 for an annual income of $29,591.04. (Dkt. No. 6 at 1.) Plaintiff has listed no income from other sources. Id . Plaintiff has listed a bank account with approximately $27.00. Id . at 2. For all property with an estimated value over $300.00, Plaintiff has listed two real properties in which he has no equity. Id . One of the properties, located at 4268 Gemini Path, Liverpool, New York, is the subject of the underlying foreclosure action. Id.
Unlike the IFP application used in the Northern District of New York, the New York State IFP application requires that only extraordinary out-of-pocket expenses, not housing, utilities, or loan payments, or other regular monthly expenses be disclosed. Therefore, most of the information on expenses required in the federal IFP application has not been included. Id . Plaintiff has indicated in his State IFP application that he is several months behind in utility bills, he cannot work, and the Gemini Path property is in foreclosure. Id.
Because Plaintiff’s application is incomplete in that it fails to include information regarding his regular expenses, the Court cannot determine whether his expenses, when *3 considered with his lack of assets and other circumstances, warrant in forma pauperis status despite the regular monthly income disclosed by him. Nonetheless, because the Court will recommend dismissal of the action on initial review under 28 U.S.C. § 1915(e), the Court grants Plaintiff’s second IFP application (Dkt. No. 6) solely for purposes of initial review.
II. LEGAL STANDARDS FOR INITIAL REVIEW
Even when a plaintiff meets the financial criteria for in forma pauperis , 28 U.S.C. § 1915(e) directs that when a plaintiff proceeds in forma pauperis , “the court shall dismiss the case at any time if the court determines that . . . the action . . . (I) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
In determining whether an action is frivolous, the court must look to see whether the complaint lacks an arguable basis either in law or in fact. Neitzke v. Williams , 490 U.S. 319, 325 (1989). “An action is frivolous when either: (1) the factual contentions are clearly baseless such as when the claims are the product of delusion or fantasy; or (2) the claim is based on an indisputably meritless legal theory.” Livingston v. Adirondack Beverage Co. , 141 F.3d 434, 437 (2d Cir. 1998) (citations and internal quotation marks omitted). Although extreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and the parties have had an opportunity to respond, Anderson v. Coughlin , 700 F.2d 37, 41 (2d Cir. 1983), the court still has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed. See, e.g., Thomas v. Scully , 943 F.2d 259, 260 (2d Cir. 1991) (per curiam) (holding that a district court has the power to dismiss a complaint sua sponte if the complaint is frivolous).
To survive dismissal for failure to state a claim, a complaint must plead enough facts to state a claim that is “plausible on its face.” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). While Rule 8(a) of the Federal Rules of Civil Procedure, which sets forth the general rules of pleading, “does not require detailed factual allegations, . . . it demands more than an unadorned, the-defendant-harmed-me accusation.” Id . In determining whether a complaint states a claim upon which relief may be granted, “the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff’s favor.” Hernandez v. Coughlin , 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal , 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id .
Where a plaintiff proceeds pro se , the pleadings must be read liberally and construed to raise the strongest arguments they suggest. Sealed Plaintiff v. Sealed Defendant , 537 F.3d 185, 191 (2d Cir. 2008) (citation omitted). A pro se complaint should not be dismissed “without giving 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) (citation and internal quotation marks omitted). An opportunity to amend is not required where “the problem with [the plaintiff’s] causes of action is substantive” such that “better pleading will not cure it.” Cuoco v. Moritsugu , 222 F.3d 99, 112 (2d Cir. 2000).
III. PLAINTIFF’S COMPLAINT AND AMENDED/SUPPLEMENTAL COMPLAINT
The Bank of America commenced a mortgage foreclosure action against Plaintiff in the New York State Supreme Court, County of Onondaga, on June 26, 2013. (Dkt. No. 1 at 6.) The Index No. for the state court action is 2013-3396. Id . The property being foreclosed upon in the action is located at 4268 Gemini Path, Liverpool, New York. Id . According to Plaintiff, no payments have been made on the mortgage since 2008, and an earlier foreclosure action, commenced in 2009, was previously dismissed. Id . at 13. Although the details of the state foreclosure action and its present status are not entirely clear from the complaint and amended/supplemental complaint and other submissions, it appears that a default judgment has been entered in the foreclosure action, and that Plaintiff attempted to file a notice of appeal. (Dkt. Nos. 1 at 6, 13-14; 4 at 4-8.)
Justice Murphy was assigned to the state foreclosure action. (Dkt. No. 4 at 1.) He is being sued by Plaintiff for judicial malpractice and treason [3] in connection with his handling of the foreclosure action. Id. Plaintiff contends that Justice Murphy acted in the clear absence of jurisdiction because the Bank of America is incorporated in the State of Delaware where the statute of limitations on a foreclosure action is three years, and Bank of America is bound by the statute of limitations in the state in which it is located. Id . Plaintiff also claims that Justice Murphy committed error in handling a dispute over the adequacy of service of process in the *6 foreclosure action.
Id . at 12.
IV. ANALYSIS
“It is a fundamental precept that federal courts are courts of limited jurisdiction.” Owen Equip. & Erec. Co. v. Kroger , 437 U.S. 365, 374 (1978). Federal jurisdiction exists only when a “federal question” is presented (28 U.S.C. § 1331), or where there is “diversity of citizenship” and the amount in controversy exceeds $75,000.00 (28 U.S.C. § 1332). See Perpetual Sec., Inc. v. Tang , 290 F.3d 132, 136 (2d Cir. 2002). Federal question jurisdiction exists where the “complaint established either that federal law creates the cause of action or that plaintiff’s right to relief necessarily depends on resolution of a substantial question of federal law.” Greenberg, Bear, Stearns & Co. , 220 F.3d 22, 25 (2d Cir. 2000) (internal quotation marks omitted). There are no allegations in the complaint or amended/supplemental complaint suggesting diversity of citizenship between Plaintiff and Justice Murphy, and even if there were a recognized claim for judicial malpractice, it would be a state law claim over which the federal court is without subject matter jurisdiction. [4]
Furthermore, even if the federal district court had subject matter jurisdiction over Plaintiff’s judicial malpractice claim, it is well-established that judges have absolute immunity from suit for acts performed in their judicial capacities. Bradley v. Fisher , 13 Wall 335, 80 U.S. *7 335 (1871); accord, Mireles v. Waco , 502 U.S. 9, 10 (1991) (per curiam) (holding that “judiciary immunity is an immunity from suit, not just from the ultimate assessment of damages”) (quoting Mitchell v. Forsyth , 472 U.S. 511, 526 (1985)). Immunity from suit is overcome in only two narrow circumstances. “First, a judge is not immune from liability for non-judicial actions, i.e., actions not taken in a judge’s judicial capacity.” Mireles , 502 U.S. at 11. “Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction.” Id.
The Supreme Court has “generally concluded that acts arising out of, or related to, individual cases before the judge are judicial in nature.” Bliven v. Hunt , 579 F.3d 204, 210 (2d Cir. 2009). Judges enjoy absolute immunity even when a plaintiff offers allegations of “bad faith or malice.” Mireles , 502 U.S. at 11. A judge cannot “be deprived of immunity because the action he took was in error . . . or was in excess of authority.” Id . at 13 (quoting Stump v. Sparkman , 435 U.S. 349, 356 (1978)).
Plaintiff claims that because the statute of limitations has expired, Justice Murphy is presiding over the foreclosure action in the clear absence of subject matter jurisdiction and can, therefore, be sued and held liable for damages. (Dkt. No. 1 at 1.) However, a complete absence of jurisdiction means that a court acts “when it does not have any statutory or constitutional power to adjudicate the case.” Gross v. Rell , 585 F.3d 72, 84 (2d Cir. 2009).
It is fundamental that Article VI, § 7 of the New York Constitution establishes the State Supreme Court as a court of “general jurisdiction in law and equity.” Const. art. VI, §7(a). Under the state constitution’s grant of authority, “the Supreme Court is competent to entertain all causes of action unless its jurisdiction has been specifically proscribed.” Sohn v. Calderon , 579 *8 N.Y.S.2d 940, 944 (1991). “That [the Supreme Court’s] original jurisdiction extends to mortgage foreclosure actions is unquestionable.” Bank of America, NA v. Simon , No. 63558/2014, 2015 WL 1343092, at * 1, 2015 U.S. Dist. LEXIS 844, at * 4-5 (N.Y. Sup. Ct. March 24. 2015).
Based upon the foregoing, the Court recommends that Plaintiff’s amended/supplemental complaint be dismissed for lack of subject matter jurisdiction, judicial immunity, and failure to state a claim. [5] The Court further recommends that the dismissal be with prejudice inasmuch as the problems with Plaintiff’s claim are substantive and cannot be cured by a better pleading. [6]
ACCORDINGLY , it is hereby
ORDERED , that Plaintiff’s original IFP application (Dkt. No, 2) is DENIED AS MOOT ; and it is further
ORDERED , that Plaintiff’s second IFP application (Dkt. No. 5) is GRANTED SOLELY FOR THE PURPOSE OF THIS INITIAL REVIEW ; and it is further
ORDERED , that Plaintiff’s original complaint (Dkt. No. 1) is superseded by his amended/supplemental complaint (Dkt. No. 4); and it is
RECOMMENDED , that Plaintiff’s amended/supplemental complaint (Dkt. No. 4) be DISMISSED WITH PREJUDICE upon initial review under 28 U.S.C. § 1915(e); and it is *9 ORDERED , that the Clerk provide Plaintiff with a copy of this Order and Report- Recommendation, along with copies of the unpublished decisions in Multani v. U.S. Dept. of Justice Solicitor General-U.S.A. , No. 97-CV-628A, 1998 WL 951813 (W.D.N.Y. July 20, 1998) and Bank of America, NA v. Simon , No. 63558/2014, 2015 WL 1343092 (N.Y. Sup. Ct. March 24. 2015) in accordance with Lebron v. Sanders , 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW . Roldan v. Racette , 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services , 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72.
Dated: April 28, 2015
Syracuse, New York Slip Copy, 47 Misc.3d 1202(A), 2015 WL 1343092 (N.Y.Sup.), 2015 N.Y. Slip Op. 50363(U) (Table, Text in WESTLAW), Unreported Disposition
(Cite as: 2015 WL 1343092 (N.Y.Sup.))
of the plaintiff to secure a mortgage note of the same date in the principal amount of $362,137.00. De- NOTE: THIS OPINION WILL NOT APPEAR IN A fendant Simon defaulted in answering the summons PRINTED VOLUME. THE DISPOSITION WILL and complaint which was served upon her on June 2, APPEAR IN A REPORTER.
2014 pursuant to CPLR 308(2), as did others persons served as unknown defendant occupants of the mort- Supreme Court, Suffolk County, New York. gaged premises. BANK OF AMERICA, NA, Plaintiff, v. Following the initialization of this action, a set-
Mirtha SIMON and “John Doe” and “Jane Doe” the tlement conference of the type mandated by CPLR last two names being fictitious, said parties intended 3408 was scheduled by quasi-judicial personnel as- being tenants or occupants, if any, having or claiming signed to the specialized mortgage foreclosure con- an interest in, or lien upon the premises described in ference part for December 15, 2014. Defendant Si- the complaint, Defendants. mon's failed to appear for such conference and such failure was duly noted in the record maintained in this No. 63558/2014. action. On December 16, 2014, this action was as- March 24, 2015. signed to the case inventory of this court. Kozeny, mccubbin & katz, Melville, for Plaintiff. On February 3, 2015, defendant Simon appeared by the uploading of a notice of appearance by her Barry N. Frank & Assoc., PC, Whitestone, for De- counsel in the NYS Courts E–Filing System and the fendant Simon. simultaneous upload of the instant motion to dismiss the complaint. The grounds for the motion relief are THOMAS F. WHELAN, J. two in number, the first being a purported lack of *1 Upon the following papers numbered 1 to 5 personal jurisdiction over defendant Simon due to read on this motion by the defendant to dismiss this improper service pursuant to CPLR 3211(a)(8). The action; Notice of Motion/Order to Show Cause and second ground is characterized by defense counsel as supporting papers 1–3; Opposing Papers: 4–5; Reply one to dismiss for lack of subject matter jurisdiction papers; it is, pursuant to CPLR 3211(a)(2). The plaintiff opposes
the motion in papers which challenge each predicate ORDERED that this motion (# 001) by the de- ground for the relief requested as lacking in merit. For the reasons stated below, the motion is denied. fendant in this mortgage foreclosure action for an order dismissing this action pursuant to CPLR
3211(a)(2) and/or (a)(8) is considered thereunder and “A process server's affidavit of service constitutes under CPLR 3012 and is denied. prima facie evidence of proper service” ( Scarano v.
Scarano, 63 AD3d 716, 716, 880 N.Y.S.2d 682 The plaintiff commenced this action on May 12, [2dDept 2009]; see NYCTL 2009–A Trust v. Tsafat- 2014 to foreclose the lien of a June 2, 2008 mortgage inos, 101 AD3d 1092, 1093, 956 N.Y.S.2d 571 [2d given by defendant Simon to a predecessor-in-interest Dept 2012] ). “Although a defendant's sworn denial of Slip Copy, 47 Misc.3d 1202(A), 2015 WL 1343092 (N.Y.Sup.), 2015 N.Y. Slip Op. 50363(U) (Table, Text in WESTLAW), Unreported Disposition
(Cite as: 2015 WL 1343092 (N.Y.Sup.))
receipt of service generally rebuts the presumption of unenforceability of the mortgage due to purported proper service established by the process server's violations of federal regulatory underwriting stand- affidavit and necessitates an evidentiary hearing, no ards on the part of the originator of the subject loan hearing is required where the defendant fails to swear and its purported acts of fraud in violation of federal Fair Housing and Predatory Lending statutes. to specific facts to rebut the statements in the process server's affidavits” ( Countrywide Home Loans Serv.,
LP v. Albert, 78 AD3d at 984–985, 912 N.Y.S.2d 96 However, the court rejects this claim as wholly [2d Dept 2010; internal quotation marks and citation lacking in merit. “Subject matter jurisdiction has been omitted]; see Mortgage Elec. Registration Sys., Inc. v. defined as the power to adjudge concerning the gen- Losco, 125 AD3d 733, 2015 WL 542795 [2d Dept eral question involved, and is not dependent upon the 2015]; JPMorgan Chase v. Todd, 125 AD3d 953, state of facts which may appear in a particular case, 2015 WL 775077 [2d Dept 2015]; Emigrant Mtge. arising, or which is claimed to have arisen, under that Co., Inc. v. Westervelt, 105 AD3d 896, 897, 964 general question” ( Thrasher v. United States Liab. N.Y.S.2d 543 [2d Dept 2013]; Countrywide Home Ins. Co., 19 N.Y.2d 159, 166, 278 N.Y.S.2d 793 Loans Serv., LP v. Albert, 78 AD3d 983, 984–985, [1967], quoting Hunt v. Hunt, 72 N.Y. 217, 229 [1878] supra ). ). As “a court of original, unlimited and unqualified
jurisdiction” ( Matter of Fry v. Village of Tarrytown, *2 Here, the affidavit of service of the plaintiff's 89 N.Y.2d 714, 718, 658 N.Y.S.2d 205 [1997], quot- process server constituted prima facie evidence of ing Kagen v. Kagen, 21 N.Y.2d 532, 537, 289 proper service pursuant to CPLR 308(2) ( see ACT N.Y.S.2d 195 [1968] ), this court is vested with gen- Prop., LLC v. Garcia, 102 AD3d 712, 957 N.Y.S.2d eral original jurisdiction and is competent to entertain 884 [2d Dept.2013]; Bank of N.Y. v. Espejo, 92 AD3d all causes of actions ( see McKinney's N.Y. Const. Art. 707, 708, 939 N.Y.S.2d 105 [2d Dept 2012]; US Natl. 6, § 7[a] ), and it may do so unless it is specifically Bank Assn. v. Melton, 90 AD3d 742, 743, 934 proscribed elsewhere in our State Constitution or in N.Y.S.2d 352 [2d Dept 2011] ), and the affidavit the Constitution of the United States or under some submitted by the defendant Simon was insufficient to pre-emptive federal statute ( see Thrasher v. United rebut the presumption of proper service ( see JPMor- States Liab. Ins. Co., 19 N.Y.2d 159, supra ). Neither gan Chase v. Todd, 125 AD3d 953, supra; Carver an act of our state legislature nor contractual terms Fed. Sav. Bank v. Supplice, 109 AD3d 572, 970 between parties can divest this court of its general N.Y.S.2d 706 [2d Dept 2013]; Bank of N.Y. v. Espejo, original jurisdiction ( see Pollicina v. Misericordia 92 AD3d 707, 708, supra ). Those portions of this Hosp. Med. Ctr., 82 N.Y.2d 332, 604 N.Y.S.2d 879 motion wherein defendant Simon seeks a dismissal of [1993]; Lischinskaya v. Carnival Corp., 56 AD3d 116, 865 N.Y.S.2d 334 [2d Dept 2008] ). the complaint pursuant to CPLR 3211(a)(8) is thus denied.
That this court's general original jurisdiction ex- The remaining portions of the this motion to tends to mortgage foreclosure actions is unquestiona- dismiss the complaint are also denied. Therein, de- ble ( see Wells Fargo Bank Minn., N.A. v. Mastro- fendant Simon claims that the court lacks subject paolo, 42 AD3d 239, 242–244, 837 N.Y.S.2d 247 [2d matter jurisdiction over the plaintiff's pleaded claim Dept 2007]; Security Pacific Natl. Bank v. Evans, 31 for foreclosure and sale and thus demands dismissal of AD3d 278, 820 N.Y.S.2d 2 [1st Dept 2006] ). The the complaint pursuant to CPLR 3211(a)(2). Under- moving papers of defendant Simon failed to allege, let lying this claim are allegations as to the invalidity or alone demonstrate, that this court has been divested of Slip Copy, 47 Misc.3d 1202(A), 2015 WL 1343092 (N.Y.Sup.), 2015 N.Y. Slip Op. 50363(U) (Table, Text in WESTLAW), Unreported Disposition
(Cite as: 2015 WL 1343092 (N.Y.Sup.))
its general, original, subject matter jurisdiction over
this mortgage foreclosure by competent constitutional
provisions or acts of federal law.
*3 Defendant Simon's attempt to recast any
claims or defenses predicated upon federal statuto-
ry/regulatory violations she may have into a jurisdic-
tional one sounding in a lack of subject matter juris-
diction so as to avoid the consequences of her default
in answering and her concomitant waiver of her right
to assert any standing defense or others premised upon
alleged statutory/regulatory violations to support this
motion to dismiss the complaint is flatly rejected by
this court as unmeritorious ( see Deutsche Bank Trust
Co. Americas v. Cox, 110 AD3d 760, 973 N.Y.S.2d
662 [2d Dept 2013]; see also Browne v. Board of
Educ., 122 AD3d 563, 996 N.Y.S.2d 96 [2d Dept
2014]; Southstar III, LLC v. Enttienne, 120 AD3d
1332, 992 N.Y.S.2d 548 [2d Dept 2014]; New York
Commercial Bank v. J. Realty F Rockaway, Ltd., 108
AD3d 756, 969 N.Y.S.2d 796 [2d Dept 2013]; Aurora
Loan Serv., LLC v. Dimura, 104 AD3d 796, 962
N.Y.S.2d 304 [2d Dept 2013]; Ferri v. Ferri, 71 AD3d
949, 896 N.Y.S.2d 890 [2d Dept 2010] ).
In view of the foregoing, the instant motion (#
001) by defendant Simon to dismiss the complaint
served in this foreclosure action is in all respects de-
nied.
N.Y.Sup.,2015.
Bank of America, NA v. Simon
Slip Copy, 47 Misc.3d 1202(A), 2015 WL 1343092
(N.Y.Sup.), 2015 N.Y. Slip Op. 50363(U)
END OF DOCUMENT
Not Reported in F.Supp., 1998 WL 951813 (W.D.N.Y.)
(Cite as: 1998 WL 951813 (W.D.N.Y.))
REPORT AND RECOMMENDATION This case was referred to the undersigned by Hon. Richard J. Arcara for pretrial matters and to hear and
Only the Westlaw citation is currently available. report on dispositive motions, in accordance with 28 U.S.C. § 636(b). Defendants have moved to dismiss United States District Court, W.D. New York. the complaint pursuant to Rule 12(b)(6) of the Federal Gurdev MULTANI , Plaintiff, Rules of Civil Procedure for failure to state a claim v. upon which relief can be granted, and plaintiff has U.S./DEPARTMENT OF JUSTICE, et al., Defend- moved for default judgment. For the following rea- ants. sons, it is recommended that the defendants' motions
be granted, and that plaintiff's motion be denied.
No. 97–CV–628A.
July 20, 1998. BACKGROUND On August 8, 1997, plaintiff filed a complaint in ORDER this court alleging “judicial malpractice” against var- ARCARA. ious state and federal courts, agencies and officials for *1 The above-referenced case was referred to dismissing a case originally brought by plaintiff in Magistrate Judge Carol E. Heckman pursuant to 28 New York State Supreme Court, Erie County. See U.S.C. § 636(b)(1)(B), on September 12, 1997. On Multani v. U.S. Dept. of Justice, 233 A.D.2d 965, 649 June 18, 1998, Magistrate Judge Heckman filed a N.Y.S.2d 311 (4th Dep't 1996), appeal dismissed, 89 Report and Recommendation, recommending that N.Y.2d 938, cert. denied, ___ U.S.___, 117 S.Ct. defendants' motions to dismiss should be granted, 1701, 137 L.Ed.2d 827, 65 USLW 3753, reh'g denied, plaintiff's motion for default judgment should be de- ___ U.S.___, 117 S.Ct. 2498, 138 L.Ed.2d 1004, 65 nied, and the complaint should be dismissed with USLW 3839 (1997). In his federal court complaint, prejudice. plaintiff seeks one hundred trillion dollars in damages,
as demanded in the state court complaint, plus the The Court having carefully reviewed the Report additional amount of five hundred trillion dollars, with interest and costs. FN1 and Recommendation, the record in this case, as well as the pleadings and material submitted by the parties;
and no objections having been timely filed, it is hereby FN1. On March 17, 1998, plaintiff filed a
similar action in this court seeking five hun- ORDERED, that pursuant to 28 U.S.C. § dred trillion dollars in damages for “judicial 636(b)(1), and for the reasons set forth in Magistrate malpractice” based on the dismissal of an Judge Heckman's Report and Recommendation, de- action brought in New York State Supreme fendants' motions to dismiss are granted, plaintiff's Court, New York County ( Multani v. Ross University, et al., 98–CV–180A(H)). motion for default judgment is denied and the com- plaint is dismissed with prejudice.
Attached to the complaint are copies of orders IT IS SO ORDERED. entered in the Multani v. U.S. Dept. of Justice case indicating that on June 5, 1996, New York State Su- Not Reported in F.Supp., 1998 WL 951813 (W.D.N.Y.)
(Cite as: 1998 WL 951813 (W.D.N.Y.))
preme Court Justice Robert J. Whelan dismissed the which relief can be granted where it is “beyond doubt action with prejudice, without opinion (Item 1, Ex. C). that the plaintiff can prove no set of facts in support of On November 8, 1996, the Appellate Division, Fourth his claims which would entitle him to relief.” Conley Department, affirmed ( id., Ex. D). On January 9, v. Gibson, 355 U.S. 41, 45–46 (1957)(quoted in Cor- 1997, the New York Court of Appeals dismissed tec Industries, Inc. v. Sum Holding, L.P., 949 F.2d 42, plaintiff's appeal ( id., Ex. E). On May 12, 1997, the 47 (2d Cir.1991)). While complaints filed by pro se United States Supreme Court denied plaintiff's peti- litigants are to be held to less stringent standards than tion for certiorari review, and on June 23, 1997, de- formal pleadings drafted by lawyers, see Haines v. nied plaintiff's petition for rehearing ( id., Ex. A). Kerner, 404 U.S. 519 (1972), the court should dismiss Plaintiff has not attached a copy of the complaint in a pro se compiaint on a Rule 12(b)(6) motion, without the state court case, and his federal court complaint granting leave to amend, where “statute or controlling contains no allegations explaining the basis for that precedent clearly forecloses the pleading, liberally lawsuit. Plaintiff simply alleges here that “[t]his in- construed.” Cameron v. Fogarty, 705 F.2d 676, 678 (2d Cir.1983). stant case questions whether plaintiff, under the due
process [clause], was deprived of rights to know why
default Judgment was denied, b) have the issue ex- As stated in Mallon v. Bartle, 1992 WL 276678 amined on the basis of the theory” ( id., p. 8). (E.D.Pa. September 30, 1992), a claim for “ ‘judicial’
malpractice ... is absurd, since this category of activity *2 On September 10, 1997, the Attorney General is nonexistent.” Id. at *1; see also McDaniel v. Dec- of the State of New York, on behalf of defendant astro, 1990 WL 106568 (N.D.Ill. July 12, 1990) (no “Supreme Court of the State of New York, Appellate arguable basis for “judicial malpractice” claim). A Division, Fourth Department,” moved to dismiss the judge, or a court, cannot be held liable for damages on complaint for failure to state a claim upon which relief account of actions performed in the exercise of judi- can be granted, and for lack of personal jurisdiction cial duties, even if the action was in error, was done (Item 3). On October 23, 1997, the Attorney General's maliciously, or was in excess of authority, unless the motion was refiled on behalf of all “state defendants” action was taken in “clear absence of all jurisdiction.” (Item 9). On October 10, 1997, the United States At- Stump v. Sparkman, 435 U.S. 349, 356–57 (1978); torney, on behalf of defendant “U.S.A/Department of Tucker v. Outwater, 118 F.3d 930, 933 (2d Cir.1997). Justice Solicitor General—U.S.A.” moved to dismiss Clearly, a ruling in a case is a matter within that court's jurisdiction. the complaint for failure to state a claim upon which
relief can be granted, and for lack of subject matter
jurisdiction (Item 7). On November 3, 1997, plaintiff In addition, the complaint contains no factual al- filed a motion for default judgment against all named legations with respect to any conduct on the part of the defendants (Item 11). For the following reasons, de- individual defendants named as “Solicitor Gen- fendants' motions to dismiss should be granted, plain- eral—U.S.A.” and “Solicitor General—State of New tiff's motion for default judgment should be denied, York” upon which the court can determine whether and the complaint should be dismissed with prejudice. plaintiff's claims against those individuals are “suffi-
ciently substantial” to confer federal subject matter DISCUSSION jurisdiction. See McDaniel v. Decastro, supra, 1990 WL 106568, at *2.
I. Failure to State a Claim Upon Which Relief Can Be Granted.
Under Rule 12(b)(6), the court is authorized to *3 To the extent that plaintiff's complaint can be dismiss a complaint for failure to state a claim upon construed to allege a claim for damages suffered as a Not Reported in F.Supp., 1998 WL 951813 (W.D.N.Y.)
(Cite as: 1998 WL 951813 (W.D.N.Y.))
result of a deprivation of due process by federal or Justice Solicitor General—U.S.A.” was filed on Oc- state government agencies or employees acting in an tober 10, 1997. Taking into account the 3–day mail official capacity, it is barred by the doctrine of sover- rule as provided in Fed.R.Civ.P. 6(e), this motion was eign immunity. See, e.g., Larson v. Domestic & For- timely filed in lieu of responsive pleadings. See Fed.R.Civ.P. 12(a). eign Commerce Corp., 337 U.S. 682, 688 (1949) (damages claim against United States or its officers
serving in official capacity barred by sovereign im- Finally, service of the summons and complaint on munity); Armstrong v. Sears, 33 F.3d 182, 185 (2d the federal and state defendants by certified mail only Cir.1994) (same); New York City Health & Hospitals was defective under Fed.R.Civ.P. 4(i) and (j), and the Corp. v. Perales, 50 F.3d 129, 135 (2d Cir.1995) court therefore lacks personal jurisdiction over those (Eleventh Amendment forecloses award of money defendants who did not answer or move to dismiss. damages required to be paid from state funds to See Krank v. Express Funding Corp., 133 F.R.D. 14, compensate for past violations of federal law by state 16 (E.D.N.Y.1990); Gibbs v. Hawaiian Eugenia or its officers serving in official capacity). Corp., 581 F.Supp. 1269, 1271 (S.D.N.Y.1984).
Accordingly, because plaintiff can allege or prove Accordingly, plaintiff is not entitled to entry of no set of facts that would entitle him to damages judgment by default against any of the defendants against the defendants named in the complaint, the named in the complaint.
complaint should be dismissed for failure to state a
claim upon which relief can be granted, without leave CONCLUSION to amend. For the foregoing reasons, defendants' motions to dismiss (Items 3, 7 & 9) should be granted, plaintiff's II. Plaintiff's Motion for Default Judgment. motion for default judgment (Item 11) should be de- Under the procedural steps contemplated by the nied, and the complaint should be dismissed with federal rules, default judgment is available only upon prejudice.
(1) entry of default by the Clerk of the Court when the
party against whom judgment is sought “has failed to *4 Pursuant to 28 U.S.C. § 636(b)(1), it is hereby plead or otherwise defend ... and that fact is made to appear by affidavit or otherwise ...,” Fed.R.Civ.P. ORDERED, that this Report and Recommenda- 55(a), and (2) entry of default judgment by the court tion be filed with the Clerk of the Court. after the defendant has had the opportunity to set aside the entry of default, Fed.R.Civ.P. 55(c), or by the ANY OBJECTIONS to this Report and Recom-
Clerk if the defendant has not appeared. Fed.R.Civ.P. mendation must be filed with the Clerk of this Court 55(b); Meehan v. Snow, 652 F.2d 274, 276 (2d within ten (10) days after receipt of a copy of this Cir.1981). In this case, the initial step of securing the Report and Recommendation in accordance with the entry of a default was omitted. Plaintiff is therefore above statute, Fed.R.Civ.P. 72(b) and Local Rule not entitled to a default judgment.
72.3(a)(3).
In addition, the record reflects that the summons The district court will ordinarily refuse to con- and complaint were served on all defendants on Au- sider on de novo review arguments, case law and/or gust 8, 1997, by certified mail only (Item 2; see also evidentiary material which could have been, but was Item 10, Ex. A). The United States Attorney's motion not presented to the magistrate judge in the first in- to dismiss on behalf of the “U.S.A./Department of Not Reported in F.Supp., 1998 WL 951813 (W.D.N.Y.)
(Cite as: 1998 WL 951813 (W.D.N.Y.))
stance. See, e.g., Patterson–Lietch Co., Inc. v. Mas-
sachusetts Municipal Wholesale Electric Co., 840
F.2d 985 (1st Cir.1988).
Failure to file objections within the specified time
or to request an extension of such time waives the
right to appeal the District Court's Order. Thomas v.
Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435
(1985); Wesolek, et al. v. Canadair Ltd., et al., 838
F.2d 55 (2d Cir.1988).
The parties are reminded that, pursuant to Rule
72.3(a)(3) of the Local Rules for the Western District
of New York, “written objections shall specifically
identify the portions of the proposed findings and
recommendations to which objection is made and the
basis for such objection and shall be supported by
legal authority.” Failure to comply with the provisions
of Rule 72.3(a)(3), or with the similar provisions of
Rule 72.3(a)(2) (concerning objections to a Magis-
trate Judge's Decision and Order), may result in the
District Court's refusal to consider the objection .
Let the Clerk send a copy of this Order and a copy
of the Report and Recommendation to the plaintiff and
to the attorneys for the defendants.
SO ORDERED.
W.D.N.Y.,1998.
Multani v. U.S./Department of Justice Solicitor Gen-
eral-U.S.A.
Not Reported in F.Supp., 1998 WL 951813
(W.D.N.Y.)
END OF DOCUMENT
[1] Even though Plaintiff’s original complaint is superseded by his amended/supplemental complaint, in light of Plaintiff’s pro se status, the Court has considered the allegations in, and attachments to, both Plaintiff’s original and amended/supplemental complaints upon its initial review.
[2] The IFP application used in the Northern District of New York is Form AO 240 (Rev. 07/10) Application to Proceed in District Court Without Prepaying Fees or Costs (Short Form).
[3] Plaintiff added a treason cause of action in his amended/supplemental complaint. (Dkt. No. 4 at 1.) However, there is nothing in either the original complaint or the amended/supplemental complaint that supports a claim for treason, and the Court finds the claim to be frivolous. See Neitzke , 490 U.S. at 325.
[4] In Multani v. U.S. Dept. of Justice Solicitor General-U.S.A. , No. 97-CV-628A, 1998 WL 951813, at * 1, 1998 U.S. Dist. LEXIS 20770, at * 5 (W.D.N.Y. July 20, 1998) (Heckman, M.J.), the court, noting that a judge cannot be held liable for damages on account of actions performed in the exercise of judicial duties, even if the action was in error, was done maliciously, or was in excess of authority, unless the action was taken in clear absence of all jurisdiction, rejected the plaintiff’s claim for judicial malpractice asserted against state and federal courts.
[5] The Court’s recommendation would be the same were its initial review directed solely to Plaintiff’s original complaint. (Dkt. No. 1.)
[6] Because the status of the state foreclosure action is not clear from the complaint or amended/supplemental complaint, the Court cannot consider the applicability of the Rooker- Feldman doctrine at this point. See Hoblock v. Albany Cnty. Bd. of Elecs ., 422 F.3d 77, 84 (2d Cir. 2005) (a federal district court does not have subject matter jurisdiction “over suits that are, in substance, appeals from state-court judgments.”)