The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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SERENA ANTOINETTE MAY,
Plaintiff,
MEMORANDUM & ORDER
-against-
19-CV-06519(KAM)(LB)
RACHEL G. PACKER, KENNETH J.
FLICKINGER, RALPH RUSSO, and
CHRISTOPHER PAUL SPINA,
Defendants.
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MATSUMOTO, United States District Judge:
Serena Antoinette May filed the instant pro se
complaint on November 14, 2019. (ECF No. 1, Compl.) For the
reasons that follow, plaintiff’s request to proceed in forma
pauperis (“IFP”) is granted, but the complaint is dismissed with
prejudice.
BACKGROUND
The complaint names four individuals as defendants,
but does not state what each individual is alleged to have done.
Plaintiff claims the court’s jurisdiction rests on sections of
the United States Code related to financial crimes; the False
Claims Act; and the Fraud Enforcement and Recovery Act of 2009
(“FERA”). (Compl. 4-5.)
Plaintiff asserts defendants sold her home after she
“won the foreclosure trial.” (Id. 5.) “After Defendants lost
[the] case, they filed a judgment and sold [plaintiff’s] home.”
(Id.) Plaintiff claims the defendants had her “arrested” and
“kidnapped,” and further alleges, “the title company has no
license or registration. They took out mortgage without my
permission.” (Id.) Plaintiff’s request for relief states: “I
want my home returned to my name, my marketable title, I want
790,000 + 20% interest. I would like for defendants to be
arrested. Restraining order so these Defendants can stop
harrising [sic] me. I want my Home title returned unused.” (Id.
6.)
The complaint appends a Memorandum Report by Referee
Tracy Catapano-Fox in a foreclosure action under Index No.
10623/2012 in the Supreme Court of the State of New York, Queens
County. (Compl. 8-17.)1 The report, dated September 11, 2015,
and issued after a trial, recommended dismissal of the
foreclosure action related to real property located at 167-38
109th Road in Jamaica, New York. The Referee found that the
plaintiff in that action, U.S. Bank National Association, as
Trustee for the Holders of the First Franklin Mortgage Loan
Trust Mortgage Pass-Through Certificates, Series 2005-FF10, had
produced the original mortgage note and shown that plaintiff had
defaulted on the loan, but failed to provide sufficient evidence
showing how U.S. Bank had obtained the mortgage. (Id.) Plaintiff
1 As the exhibits are not labeled or paginated, the Court refers to the
page numbers assigned by the Electronic Case Filing System (ECF).
does not indicate whether the presiding justice adopted the
Referee’s Memorandum Report or provide a final ruling in the
foreclosure proceeding, but a search of Index No. 10623/2012 in
the publicly-available database for the New York Courts reveals
that a Judgment of Foreclosure and Sale was decided on December
15, 2017. New York State Unified Court System,
https://iapps.courts.state.ny.us/webcivil/FCASSearch (last
visited on Dec. 11, 2019).2
Plaintiff also attaches a Notice of Eviction dated
November 4, 2019 and directed to “John Does” at 167-38 109th
Road. The eviction was scheduled to occur on November 14, 2019
or thereafter. (Compl. 25.) Notably, that is the same address
plaintiff provides for herself. She also attaches information
about FERA and its amendments to the False Claims Act. (Id. 19-
24.)
DISCUSSION
The Court is mindful that “[a] document filed pro se
is to be liberally construed, and a pro se complaint, however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.” Erickson v. Pardus,
2 The Court may take judicial notice of the Judgment of Foreclosure and
Sale. See Johnson v. Pugh, No. 11-CV-385, 2013 WL 3013661, at *2 (E.D.N.Y.
June 18, 2013) (“A court may take judicial notice of matters of public
record, including pleadings, testimony, and decisions in prior state court
adjudications, on a motion pursuant to Rule 12(b)(6).”) (citing Rothman v.
Gregor, 220 F.3d 81, 92 (2d Cir. 2000)).
551 U.S. 89, 94 (2007) (internal quotation marks and citations
omitted). If a liberal reading of the complaint “gives any
indication that a valid claim might be stated,” the court must
grant leave to amend the complaint. See Cuoco v. Moritsugu, 222
F.3d 99, 112 (2d Cir. 2000). However, pursuant to the in forma
pauperis statute, a district court must dismiss a case if the
court determines that the complaint “is frivolous or malicious;
fails to state a claim on which relief may be granted; or seeks
monetary relief against a defendant who is immune from such
relief.” 28 U.S.C. § 1915(e)(2)(B).
Rule 8 of the Federal Rules of Civil Procedure
requires a plaintiff to provide “(1) a short and plain statement
of the grounds for the court’s jurisdiction . . . , (2) a short
and plain statement of the claim showing that the pleader is
entitled to relief, and (3) a demand for the relief sought . . .
.” Fed. R. Civ. P. 8(a). Rule 8 “demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). A complaint must contain
“sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” Id. “[A] plaintiff's
obligation to provide the ‘grounds’ of his entitlement to relief
requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do. . .
. Factual allegations must be enough to raise a right to relief
above the speculative level.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007) (internal quotations and citations
omitted).
The instant complaint fails to comply with the
dictates of Rule 8. Plaintiff is obviously disappointed with the
outcome of the foreclosure action and the loss of title to her
home, but she has not alleged that any of the individual
defendants were responsible for her loss or explained what role
they played in the foreclosure proceeding. She seeks monetary
damages of $790,000, but has not suggested how these defendants
could be liable to plaintiff for such sum. Thus, she has failed
to allege a viable claim against the defendants.
Plaintiff asserts FERA, the False Claims Act, and
related provisions as bases for jurisdiction. The False Claims
Act, as amended by FERA, allows private persons called
“relators” to bring civil actions against mortgage lenders for
violations of the false claim provisions of financial crimes.
However:
[S]uch actions can be brought only “in the name of the
Government,” . . . and the initiation of such a suit
must begin with certain specific procedures: “A copy
of the complaint and written disclosure of
substantially all material evidence and information
the person possesses shall be served on the Government
pursuant to Rule 4[(i)] of the Federal Rules of Civil
Procedure. The complaint shall be filed in camera,
shall remain under seal for at least 60 days, and
shall not be served on the defendant until the court
so orders.”
Ruotolo v. Fannie Mae, 933 F. Supp. 2d 512, 522 (S.D.N.Y. 2013)
(citing 31 U.S.C. § 3730(b)(1) and (2)). “Because relators lack
a personal interest in False Claims Act qui tam actions . . .
they are not entitled to proceed pro se.” United States ex rel.
Mergent Servs. v. Flaherty, 540 F.3d 89, 93 (2d Cir. 2008).
Accordingly, the pro se plaintiff cannot bring a case under the
False Claims Act, as amended by FERA. See also Joseph v.
Emigrant Funding Corp., No. 17-CV-595-RRM-RML, 2018 WL 1368911,
at *2 (E.D.N.Y. Mar. 16, 2018) (dismissing pro se action
challenging foreclosure because FERA did not provide a basis for
jurisdiction and because the action was barred under the Rooker-
Feldman doctrine).
Plaintiff also seeks return of title to her home.
However, she has failed to provide any grounds authorizing this
court to reopening of, and intervention in the foreclosure
action or eviction. It appears that the Judgment of Foreclosure
has already been issued, along with a Notice of Eviction. Thus,
plaintiff is asking this Court to overturn a state court
judgment of foreclosure, a request that is precluded by the
Rooker-Feldman doctrine. This principle, which emanates from
the United States Supreme Court decisions Rooker v. Fidelity
Trust Co., 263 U.S. 413 (1923), and District of Columbia Court
of Appeals v. Feldman, 460 U.S. 462 (1983), holds that federal
district courts lack subject matter jurisdiction to hear 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., 544 U.S. 280, 284 (2005). The Second Circuit clarified
the four requirements for application of the Rooker-Feldman
doctrine: (1) “the federal-court plaintiff must have lost in
state court”; (2) “plaintiff must complain of injuries caused by
a state-court judgment”; (3) “plaintiff must invite district
court review and rejection of that judgment”; and (4) “the
state-court judgment must have been rendered before the district
court proceedings commenced.” Hoblock v. Albany County Bd. of
Elections, 422 F.3d 77, 85 (2d Cir. 2005) (internal quotations
omitted).
Each of these conditions appears to have been met in
this case. First, plaintiff was a defendant in the foreclosure
action and lost in state court when the Judgment of Foreclosure
was entered. Second, plaintiff complains that her injuries—the
loss of title and right of occupancy in the premises—were caused
by the state court judgment. Third, plaintiff’s requested relief
is to have the state court judgment overturned and title
restored to her. Fourth, the Judgment of Foreclosure was
entered on December 15, 2017, well before plaintiff filed the
instant lawsuit in federal court. Plaintiff apparently continued
to reside in the premises for another two years, until she was
served with a Notice of Eviction on November 4, 2019. That
Notice was also served before plaintiff filed this action. For
these reasons, Rooker-Feldman applies, and divests this court of
jurisdiction to overturn the state court Judgment of
Foreclosure.
Although the court must liberally construe pro se
complaints, and accordingly grant leave to amend if appropriate,
“[w]here it appears that granting leave to amend is unlikely to
be productive, . . . . it is not an abuse of discretion to deny
leave to amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d 129,
131 (2d Cir. 1993) (citations omitted); accord Brown v. Peters,
95–CV–1641, 1997 WL 599355, at *1 (N.D.N.Y. Sept. 22, 1997)
(“[T]he court need not grant leave to amend where it appears
that amendment would prove to be unproductive or futile.”). At
its core, the complaint is a challenge to the Judgment of
Foreclosure, and the court foresees no way for plaintiff to
challenge the state court’s decision in federal court without
running afoul of Rooker-Feldman. Even though the court
construes plaintiff’s instant claims liberally, the defects in
those claims are substantive rather than merely formal, such
that any amendment would be futile. Thus, leave to amend is
denied and the complaint is dismissed with prejudice.
CONCLUSION
For the reasons set forth above, the complaint is
dismissed for failure to comply with Rule 8 of the Federal Rules
of Civil Procedure. Moreover, the complaint is dismissed
pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a
claim against the named defendants. Leave to amend is denied
because any amendment would be futile. The Clerk of Court is
respectfully directed to enter judgment against plaintiff, close
this case, serve a copy of this Memorandum and Order and the
judgment on plaintiff at her last known address, and note
service on the docket. The Court certifies pursuant to 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 purpose of an appeal. See Coppedge v. United States,
369 U.S. 438, 444-45 (1962).
SO ORDERED.
Dated: May 6, 2020
Brooklyn, New York
/s/
Kiyo A. Matsumoto
United States District Judge