# Cai v. Civil Court of the City of New York County of Richmond

> District Court, E.D. New York · March 2, 2023

URL: https://www.frixlaw.com/law-library/cases/10309272

## Case

- **Court:** District Court, E.D. New York
- **Decided:** March 2, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10309272

## How later opinions describe it (automated extraction)

- affirming dismissal, pursuant to Rooker-Feldman, of claims by pro se plaintiff under such circumstances

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

WEIGUO CAI,
MEMORANDUM & ORDER
Plaintiff, 22-CV-07379 (HG)

v.

CIVIL COURT OF THE CITY OF NEW
YORK COUNTY OF RICHMOND and
DENNIS O. COHEN,

Defendants.

HECTOR GONZALEZ, United States District Judge:
On November 28, 2022, Plaintiff Weiguo Cai commenced this pro se lawsuit, alleging
that Defendants violated his civil rights during a separate judicial proceeding in the New York
City Civil Court, Richmond County (the “Civil Court”). ECF No. 1. At the same time, Plaintiff
sought permission to proceed in forma pauperis. ECF No. 2. The Court grants Plaintiff’s
request to proceed in forma pauperis and dismisses his complaint without leave to amend.
Plaintiff’s claims for damages against the Civil Court are barred by the Eleventh Amendment,
and the Court cannot exercise jurisdiction over the claims for injunctive relief against the Civil
Court. Plaintiff’s purported Section 1983 claim fails to state a claim against Defendant Dennis
Cohen because Cohen, a private attorney, did not act under color of state law during Plaintiff’s
Civil Court litigation, and the Court lacks diversity jurisdiction over any conceivable alternative
claim that Plaintiff could assert against Cohen.
BACKGROUND
The exact facts giving rise to Plaintiff’s claims are not apparent from his complaint, but
Plaintiff alleges that he received some sort of adverse judgment in the Civil Court, which is a
court established by New York State and funded by the City of New York to hear claims
involving less than $50,000. See ECF No. 1 at 5. Plaintiff cites Rule 60 of the Federal Rules of
Civil Procedure, which authorizes courts to provide relief from a prior federal court judgment or
order, and asks the Court to set aside the Civil Court’s judgment due to unspecified “mistakes,”
“legal errors,” and “fraud.” Id. Plaintiff also demands $30,000 in damages from the Civil Court.

Id. at 6.
Plaintiff also names as a Defendant an attorney named Dennis O. Cohen, who
participated in the Civil Court lawsuit in a capacity that Plaintiff has not described. Plaintiff
alleges that Cohen “collu[ded]” with the Civil Court and “use[d] sanctions to intimidate
[P]laintiff.” Id. at 5. Plaintiff demands $35,000 in damages from Cohen because of Cohen’s
allegedly improper threats of sanctions. Id. at 6.
Plaintiff also demands injunctive relief against both Defendants, but he does not specify
the nature of the injunctive relief that he seeks other than that the Court “stop Defendant’s all
fraud[,] sanctions[,] and benefits from [P]laintiff.” Id. Plaintiff’s complaint does not describe
the procedural posture of the Civil Court litigation or reconcile the apparent inconsistency as to

how he can seek relief from a judgment in a closed Civil Court case while simultaneously
asserting that he needs injunctive relief related to ongoing Civil Court proceedings. See id.
A review of the Civil Court’s publicly available docket sheds some light on the events
giving rise to Plaintiff’s complaint.1 Plaintiff alleges that Defendants’ misconduct occurred on
several different dates in 2022: September 14 and 21 and October 25. ECF No. 1 at 5. During
that time, Plaintiff was in the midst of litigating multiple lawsuits involving PayPal, which
Cohen represented as its outside counsel. This led to a separate lawsuit in the Civil Court in

1 The Court may take judicial notice of dockets from other courts’ proceedings because
they are public records, including when deciding whether to dismiss a complaint. See
Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006).
which Plaintiff sued Cohen personally based on alleged misconduct that Cohen committed
during a court conference related to discovery. See Cai v. PayPal Inc., No. 151878/2022 (N.Y.
Civ. Ct.) (NYSCEF No. 16).
Plaintiff’s lawsuits against Cohen and PayPal included a court appearance on September

14, 2022, during which Plaintiff voluntarily dismissed one lawsuit against PayPal. Id. The Civil
Court dismissed Plaintiff’s claims against Cohen on September 21, 2022, holding that Cohen’s
actions fell within the permissible scope of attorney advocacy during discovery. Id. The Civil
Court followed up its dismissal of Plaintiff’s case with an order sanctioning Plaintiff on October
25, 2022, directing Plaintiff to pay Cohen $250 as a sanction, and warning Plaintiff that he might
be held in contempt of court if he failed timely to pay. Cai v. PayPal Inc., No. 151878/2022
(N.Y. Civ. Ct.) (NYSCEF No. 17).
Plaintiff does not appear to have filed a state court appeal of the orders in his lawsuit
against Cohen, but he has appealed to the Appellate Division, Second Department the dismissal
of a separate lawsuit against PayPal. Cai v. PayPal Inc., No. 2022-10249 (N.Y. App. Div.)

(NYSCEF No. 1). In that notice of appeal, Plaintiff complains about misconduct that Cohen
allegedly committed while acting as PayPal’s attorney. Id. That appeal is still pending.
Plaintiff alleges that he lives in Richmond County and that Defendant Cohen lives in
Kings County. See ECF No. 1 at 2–3. The Civil Court is located in Richmond County. Id. at 2.
Plaintiff filed his complaint on a pre-printed form created by the Eastern District of New York’s
Pro Se Office, but he left blank the page of the form that asks questions regarding the basis for
the Court’s jurisdiction. See id. at 4. The form is designed for claims asserted pursuant to either
42 U.S.C. § 1983 or the Supreme Court’s decision in Bivens v. Six Unknown Named Agents, 403
U.S. 388 (1971), and its progeny. Since Plaintiff’s complaint discusses only events occurring in
the Civil Court, his complaint describes no conceivable claim against the federal government or
one of its agents, so Plaintiff cannot possibly be asserting a Bivens claim.
LEGAL STANDARD
A complaint must plead “enough facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).2 “A claim is plausible ‘when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.’” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d
Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Although all allegations
contained in a complaint are assumed to be true, this tenet is “inapplicable to legal conclusions.”
Iqbal, 556 U.S. at 678.
A pro se complaint “must be held to less stringent standards than formal pleadings
drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). The Court’s obligation “to
construe a pro se complaint liberally” continues to apply “[e]ven after Twombly” established the
plausibility standard for assessing pleadings. Newsome v. Bogan, 795 F. App’x 72, 72 (2d Cir.

2020) (quoting Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009)).
Despite this leniency afforded to pro se plaintiffs, when a plaintiff seeks permission to
proceed 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). Courts must be careful when reviewing complaints submitted by
plaintiffs seeking in forma pauperis status “not to conflate easy cases with inarguable or fanciful

2 Unless noted, case law quotations in this order accept all alterations and omit internal
quotation marks, citations, and footnotes.
ones, as only the latter warrant dismissal” as frivolous. Alvarez v. Garland, 33 F.4th 626, 637
(2d Cir. 2022). The Court therefore may not dismiss a complaint filed by a plaintiff proceeding
in forma pauperis, pursuant to 28 U.S.C. § 1915(e), “simply because the [C]ourt finds the
plaintiff’s allegations unlikely.” Denton v. Hernandez, 504 U.S. 25, 33 (1992). The Court may,

however, dismiss a complaint as frivolous “when the facts alleged rise to the level of the
irrational or the wholly incredible,” and the Court need not restrict itself to facts capable of
judicial notice when reaching that conclusion. Id.
DISCUSSION
Plaintiff’s claim for damages against the Civil Court fails because the Eleventh
Amendment provides the Civil Court with sovereign immunity from suits for damages brought
in federal court. The Second Circuit “ha[s] squarely held that the New York State Unified Court
System . . . is an arm of the state” and therefore entitled to sovereign immunity from damages
suits pursuant to the Eleventh Amendment. Barone v. Lawyers’ Fund for Client Prot., No. 22-
58-cv, 2023 WL 1975783, at *2 (2d Cir. Feb. 14, 2023) (citing Gollomp v. Spitzer, 568 F.3d 355,

366–68 (2d Cir. 2009)). Even if Plaintiff’s claims are asserted pursuant to Section 1983, the
Eleventh Amendment’s sovereign immunity still applies because the Supreme Court held long
ago that Congress “did not abrogate” the states’ sovereign immunity “by enacting Section 1983.”
Arafa v. New York, No. 22-cv-4475, 2022 WL 3867650, at *2 (E.D.N.Y. Aug. 30, 2022) (citing
Quern v. Jordan, 440 U.S. 332, 343–45 (1979)).
Although the salaries of Civil Court personnel are paid by the City of New York, see
N.Y. C.C.A. § 104, the City’s Civil Courts were established by the New York State legislature
and are a part of the New York State Unified Court System, see N.Y. C.C.A. § 102. As part of
that system, the Civil Court is considered an arm of New York State for Eleventh Amendment
purposes and is therefore entitled to sovereign immunity. See Kong v. Dajin Realty, Inc., No. 23-
cv-833, 2023 WL 2118085, at *1 (S.D.N.Y. Feb. 17, 2023) (holding that “[b]oth the Bronx
Housing Civil Court and the Queens Housing Civil Court are part of the New York State Unified
Court System, which is a well-established arm of the state” and dismissing claims against them

as barred by the Eleventh Amendment); Wu v. Civil Ct. of the City of New York, No. 21-cv-8668,
2022 WL 525561, at *3 (S.D.N.Y. Feb. 22, 2022) (holding that “[p]laintiff’s claims against the
Bronx Civil Court are barred under the Eleventh Amendment”).
The Court lacks jurisdiction over the aspect of Plaintiff’s claims against the Civil Court
seeking relief from the Civil Court’s judgment. “[T]he Rooker-Feldman doctrine establishes the
clear principle that federal district courts lack jurisdiction over suits that are, in substance,
appeals from state-court judgments.” Edwards v. McMillen Cap., LLC, 952 F.3d 32, 35 (2d Cir.
2020). “For the doctrine to apply, four requirements must be met: (1) the federal-court plaintiff
must have lost in state court; (2) the plaintiff must complain of injuries caused by a state-court
judgment; (3) the 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.” Id. The Rooker-Feldman doctrine bars review of a state court judgment even if a
plaintiff alleges that the judgment was procured through attorney misconduct. Brady v.
Goldman, 714 F. App’x 63, 64 (2d Cir. 2018) (affirming dismissal, pursuant to Rooker-Feldman,
of claims by pro se plaintiff under such circumstances).
Since all four elements required by the Rooker-Feldman doctrine apply to Plaintiff’s
request that the Court invoke Rule 60 to vacate the Civil Court’s judgment in his lawsuit against
Cohen, Rooker-Feldman bars the relief Plaintiff seeks. This remains true even though Plaintiff
appears to assert a Section 1983 claim. Gribbin v. N.Y. State Unified Ct. Sys., No. 18-cv-6100,
2020 WL 1536324, at *4 (E.D.N.Y. Mar. 31, 2020), aff’d, 838 F. App’x 646 (2d Cir. 2021) (“A
plaintiff cannot circumvent Rooker-Feldman’s bar by recasting her claims as civil rights
violations.”); see also Tomczyk v. N.Y. Unified Ct. Sys., No. 19-cv-2753, 2019 WL 2437849, at
*4 (E.D.N.Y. June 10, 2019) (holding that Rooker-Feldman prohibited injunction, sought by

plaintiff asserting Section 1983 claims, against ongoing state proceedings after plaintiff received
unfavorable decisions). Rooker-Feldman also applies to Plaintiff’s request for injunctive relief
against any other state court proceedings separate from his now-dismissed lawsuit against
Cohen—whether those be other Civil Court lawsuits or Plaintiff’s pending appeal in the Second
Department. Enjoining the state court system from recognizing the Civil Court’s judgment in
Plaintiff’s lawsuit against Cohen would amount to overturning that judgment. See Gribbin, 2020
WL 1536324, at *3.
To the extent that Plaintiff has not paid his monetary sanction imposed by the Civil Court
and faces the possibility of contempt proceedings against him, the Court must abstain from
granting any injunctive relief that interferes with those contempt proceedings, pursuant to the

Supreme Court’s decision in Younger v. Harris, 401 U.S. 37 (1971), and its progeny. The Court
recognizes that the Second Circuit has recently explained “that Younger abstention applies only
to a narrow class of state civil proceedings.” Cavanaugh v. Geballe, 28 F.4th 428, 430 (2d Cir.
2022). However, contempt proceedings are one type of civil proceeding that the Supreme Court
has said “clearly fall[s] within” the scope of Younger abstention. Id. at 433 (citing Sprint
Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 77 (2013)).
Plaintiff’s claims against Cohen also fail. To the extent Plaintiff asserts these claims
under Section 1983, they fail because Cohen, as a private attorney participating in the Civil
Court proceedings, was not acting “under color of” state law, as is required to assert a Section
1983 claim. See O’Donoghue v. U.S. Soc. Sec. Admin., 828 F. App’x 784, 787 (2d Cir. 2020)
(affirming dismissal of claims against attorney representing plaintiff’s adversary in prior state
court litigation because “[p]rivate attorneys are generally not state actors for purposes of §
1983”); Joseph v. Supreme Ct. of the State of N.Y., No. 21-cv-1685, 2021 WL 2414291, at *3

(E.D.N.Y. June 14, 2021) (dismissing as “beyond the scope of Section 1983 liability” claims
against attorneys from the Legal Aid Society who participated in plaintiff’s state court
proceeding); Hopkins v. Comptroller, No. 22-cv-4505, 2022 WL 2954350, at *3 (S.D.N.Y. July
26, 2022) (holding that “the representation of a party by private counsel does not constitute the
degree of state involvement or interference necessary to establish a claim under Section 1983”).
If Plaintiff’s claims against Cohen are not based on Section 1983, then their only
conceivable basis is common law fraud, some other common law tort, or potentially New York
Judiciary Law § 487, which creates a civil claim for certain forms of deceit by attorneys. See
N.Y. Jud. L. § 487; Sanderson v. HSBC Bank USA, No. 21-cv-2498, 2021 WL 3146030, at *2
(E.D.N.Y. July 26, 2021) (interpreting allegations that defendants obtained court judgment

through “collusion” as claim arising under N.Y. Jud. L. § 487 and dismissing claim for lack of
diversity jurisdiction). If that is the case, then diversity jurisdiction does not exist because both
Plaintiff and Cohen are citizens of New York, and Plaintiff’s total demand of $65,000 from both
Defendants falls below the $75,000 amount-in-controversy threshold of 28 U.S.C. § 1332.
Brady, 714 F. App’x at 64 (affirming dismissal, for lack of diversity jurisdiction, of claims
against opposing counsel in state court litigation “for violations of New York Judiciary Law §
487, fraud, [and] intentional infliction of emotional distress”). The Court takes no position on
whether Plaintiff’s claims adequately allege that Defendants’ “liability is common, undivided, or
joint,” thereby allowing Plaintiff to “satisfy the jurisdictional minimum by aggregating claims
against multiple defendants” because even if Plaintiff were permitted to aggregate his alleged
damages, those damages still fall below the jurisdictional minimum. See Elavon, Inc. v.
Ganzfried, No. 20-cv-908, 2022 WL 4642718, at *5 (E.D.NY. Sept. 30, 2022) (describing the
standard for determining when plaintiffs may establish diversity jurisdiction by aggregating

claims against multiple defendants).
Although district courts typically allow pro se plaintiffs an opportunity to amend their
complaints, the Court denies leave to amend because the nature of the defects in Plaintiff’s
claims would render any amendment futile. Other courts in this District have similarly denied
leave to amend to pro se plaintiffs whose claims presented the same types of defects as
Plaintiff’s complaint does. See Kelly v. New York, No. 19-cv-2063, 2020 WL 7042764, at *11
(E.D.N.Y. Nov. 30, 2020) (denying leave to amend where court dismissed claims against some
defendants based on the Eleventh Amendment); Gribbin, 2020 WL 1536324, at *8 (denying
leave to amend where court dismissed some claims based on Rooker-Feldman doctrine and the
Eleventh Amendment); Joseph, 2021 WL 2414291, at *4 (denying leave to amend after

dismissing Section 1983 claims against private attorneys); Johnson v. Horowitz, No. 22-cv-325,
2022 WL 683755, at *3 (E.D.N.Y. Mar. 7, 2022) (denying leave to amend where court abstained
based on Younger from intervening in state court proceeding).
CONCLUSION
Plaintiff’s complaint, filed in forma pauperis, is dismissed both because it fails to state a
claim upon which relief may be granted and because it seeks monetary relief against a defendant
that is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B). The Court dismisses Plaintiff’s
claims against the Civil Court for lack of jurisdiction without prejudice to Plaintiff re-filing those
claims in another court that may have jurisdiction to decide them. The Court dismisses
Plaintiff’s purported Section 1983 claim against Cohen with prejudice for failure to state a claim.
The Court dismisses any other claims that Plaintiff may have against Cohen related to the
allegations in Plaintiff’s complaint for lack of diversity jurisdiction without prejudice to Plaintiff
re-filing those claims in another court that may have jurisdiction to decide them.

The Clerk of Court is respectfully directed to enter judgment dismissing Plaintiff’s
complaint, to mail a copy of the judgment and this order to the pro se Plaintiff, and to close this
case.
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 the
purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444–45 (1962).
SO ORDERED.
/s/ Hector Gonzalez .
HECTOR GONZALEZ
United States District Judge
Dated: Brooklyn, New York
March 2, 2023

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10309272. Public record. Not legal advice.