# Colon v. Davis

> District Court, N.D. New York · August 30, 2023

URL: https://www.frixlaw.com/law-library/cases/10316035

## Case

- **Court:** District Court, N.D. New York
- **Decided:** August 30, 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/10316035

## How later opinions describe it (automated extraction)

- finding the Court damages, it [was] abundantly clear that the whole purpose of “plainly lack[ed] subject matter jurisdiction” over plaintiff's th[e] action [was] to undo the foreclosure judgment”

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
______________________________________________

ALICIA COLON,

Plaintiff,
5:23-cv-00913
v. (BKS/TWD)

ANTHONY DAVIS, et al.,

Defendants.
______________________________________________

APPEARANCES:

ALICIA COLON
Plaintiff, pro se
154 Hudson St.
Floor 2
Syracuse, NY 13204

THÉRÈSE WILEY DANCKS, United States Magistrate Judge
ORDER AND REPORT-RECOMMENDATION
The Clerk has sent the Court a civil rights complaint filed by Alicia Colon (“Plaintiff”)
for initial review pursuant to 28 U.S.C. § 1915 together with an application to proceed in forma
pauperis (“IFP”). (Dkt. Nos. 1, 2.) For the reasons discussed below, the undersigned grants
Plaintiff’s IFP application and recommends dismissal of Plaintiff’s complaint in its entirety.
I. IFP APPLICATION
“When a civil action is commenced in a federal district court, the statutory filing fee,
currently set at $402, must ordinarily be paid.” 28 U.S.C. § 1914(a). A court is authorized,
however, to permit a litigant to proceed IFP status if a party “is unable to pay” the standard fee
for commencing an action. 28 U.S.C. § 1915(a)(1). After reviewing Plaintiff’s IFP application
(Dkt. No. 2), the undersigned finds she meets this standard. Therefore, Plaintiff’s IFP
application is granted.1
II. INITIAL REVIEW OF THE COMPLAINT
A. Legal Standard

“Notwithstanding any filing fee, or any portion thereof, that may have been paid, 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).
In addition, the Court shall dismiss any action where the complaint fails to allege facts
plausibly suggesting subject matter jurisdiction. Fed. R. Civ. P. 12(h)(3); see Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 88-89 (1988) (holding subject matter jurisdiction is a
“threshold question that must be resolved . . . before proceeding to the merits.”); Humphrey v.
Syracuse Police Dep’t, 758 F. App’x 205, 205-06 (2d Cir. 2019) (“Before deciding any case on
the merits, a district court must determine that it has subject matter jurisdiction over the matter.”)

(citing United States v. Bond, 762 F.3d 255, 263 (2d Cir. 2014)); Koziel v. City of Yonkers, 352
F. App’x 470, 471 (2d Cir. 2009) (summary order) (affirming sua sponte dismissal of complaint
on initial review for lack of subject matter); Talley v. LoanCare Serv., Div. of FNF, No. 15-CV-
5017, 2018 WL 4185705, at *5 (E.D.N.Y. Aug. 31, 2018); Hughes v. Patrolmen’s Benevolent
Ass’n of the City of N.Y., Inc., 850 F.2d 876, 881 (2d Cir. 1988), cert. denied, 488 U.S. 967
(1988)) (“A court shall, sua sponte, dismiss a complaint for lack of subject matter jurisdiction as
soon as it is apparent that it lacks subject matter jurisdiction.”).

1 Plaintiff is advised that although she has been granted IFP status, she is still required to pay
any fees and costs she may incur in this action.
“In reviewing a complaint . . . 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). However, “the tenet that a court
must accept as true all of the allegations contained in a complaint is inapplicable to legal

conclusions. Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Courts are “obligated to construe a pro se complaint liberally.” Harris v. Mills, 572 F.3d
66, 72 (2d Cir. 2009); see also Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam)
(reading the plaintiff’s pro se complaint “broadly, as we must” and holding that the complaint
sufficiently raised a cognizable claim). “[E]xtreme 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, however, also has an overarching obligation to determine that a claim is not
legally frivolous before permitting a pro se plaintiff’s complaint to proceed. See, e.g., Fitzgerald

v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (holding that a district
court may sua sponte dismiss a frivolous complaint, notwithstanding the fact that the plaintiff
paid the statutory filing fee). “Legal frivolity . . . occurs where ‘the claim is based on an
indisputably meritless legal theory [such as] when either the claim lacks an arguable basis in law,
or a dispositive defense clearly exists on the face of the complaint.” Livingston v. Adirondack
Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998)); see also Neitzke v. Williams, 490 U.S. 319, 325
(1989) (“[D]ismissal is proper only if the legal theory . . . or factual contentions lack an arguable
basis.”).
B. Summary of the Complaint
Plaintiff brings this action against the Syracuse City School District (“SCSD”); Anthony
Davis, SCSD Superintendent; Monique Wright-Williams, Chief of Staff and Head of Family
Engagement Department; and Nina Vergara, Family Engagement Facilitator of SCSD Westside

Quadrant (collectively “Defendants”). (Dkt. No. 1.)
Plaintiff initially contends “Various staff & teachers throughout the thirty-four different
school sites in the [SCSD] are victims of bullying & coercion & have been since at least 2009 at
which time SCSD staff member Joseph Mazzella committed suicide.”2 (Dkt. No. 1 at 9.3) She
claims “The bullying is continuous as recent as 2022-23 when a SCSD employee confided in the
Plaintiff that her teaching job is posing a severe negative impact to her mental health.” Id.
Plaintiff claims “This unknown employee was the only current SCSD employee to sign an online
petition created by the Plaintiff & the Unknown Employee showed up on the SCSD social media
page short after.” Id. “The Plaintiff took this as a threat to her friends’ safety & job security &
has since removed her online Petition from the Change.org website.” Id.

The remainder of the complaint appears to stem from alleged incidents spanning the
2022-23 school year. From what the Court can glean, Plaintiff’s daughter attends Delaware
Primary School and Plaintiff has been a Parent Advisory Council officer for several years. Id. at
9, 12.
Plaintiff claims the SCSD “fails to fulfill their duty of fostering a safe school culture &
environment for staff, families, and students” by encouraging staff to lie and to intimidate

2 Unless otherwise indicated, excerpts from the record are reproduced exactly as they appear in
the original and errors in spelling, punctuation, and grammar have not been corrected.

3 The complaint is 83 pages and is comprised of two standard civil rights complaints, 14
typewritten pages, and 50 pages of exhibits. Page references to are to the numbers assigned by
the CM/ECF docketing system maintained by the Clerk’s Office.
parents, families, and board members into “silence.” Id. at 16. She claims SCSD Family
Engagement has failed in their duty of assisting the Parent Teacher Organizations and the agency
fails to “foster effective & meaningful family engagement opportunities at every school site
which are accessible to every family regardless of the language they speak.” Id. She complains

Defendants no longer send out emails with the dates and time of the Parent Advisory Council
Meetings in advance in violation of her “rights to know about Family Involvement Activities
occurring at her child’s school.” Id. at 16. Despite notifying Defendants, her contact
information has not been updated, which violates her right to “timely communication from the
local education agency which her child attends.” Id. She claims the individual Defendants are
“bullies” and interfered with the administration of the Parent Advisory Council and “failed to
uphold their duty of fostering effective Family Involvement & Participation.” Id. at 15-16. She
asserts Defendants have failed to provide the Parent Council Officers with training, additional
meetings, support, and have “failed in their duty of assisting parents & families in becoming
effective participants in school planning & governance within the [SCSD] agency and at school

sites.” Id. at 16. She also complains SCSD does not have an adequate website, has refused to
implement “parliamentary procedure” during Parent Advisory Council Meetings, and lacks an
accessible application process for jobs and volunteering. Id. at 18-19.
Plaintiff has also “incurred costs associated with Family Involvement as the agency does
not supply her with internet in her family room or access to a printer, printer paper, printer ink,
pens, staples, or other meeting supplies which are necessary to foster effective family
involvement during the school site requirement monthly meetings with families.” Id. at 12.
Moreover, on April 12, 2023, Plaintiff appeared before the “SCSD Board of Education at
the general business meeting & delivered written copies of a motion to amend the SCSD
Community & Family Involvement Policy.” Id. Her “motion included two policy changes: the
first was a revision to the agencies current Parenting Description which appears on their Title 1
Family & Community Involvement Plan which they submit to NYS each year, & the second was
an addition to the existing policy which stated Parents would have the right to prohibit the

agency & any community partners from using virtual reality equipment with the their child or
placing this type of equipment on their child’s body.” Id. However, “the amendment has not
appeared on the agenda and no board member has asked her any questions about it.” Id.
As relief, among other things, Plaintiff seeks to “preserve the safety & job security” of
her friend. Id. at 19. She wants Delaware Primary School to be assigned a different Family
Engagement Facilitator to develop a “functional Volunteer Application Process” for parents that
is easy to understand. Id. at 20. She wants to ensure all Parent Council officers are timely
notified of the dates and times of the meetings as they were prior to November 2022. Id. She
asks that all families have access to computers, printers, and the internet. Id. She wants to
prevent the SCSD from using virtual reality equipment in their classroom until it can be

scientifically proven that it helps students learn. Id. She wants Defendants to provide the Parent
Advisory Council with information regarding the “Pump Bus” and “where the funds for
Superintendent Davis community BBQs is coming from.” Id. at 20-21.
For a complete statement of Plaintiff’s claims, reference is made to the complaint. (Dkt.
No. 1.)
C. Analysis
The Court lacks jurisdiction over the complaint as currently pled. “[F]ailure of subject
matter jurisdiction is not waivable and may be raised at any time by a party or by the court sua
sponte. If subject matter jurisdiction is lacking, the action must be dismissed.” Lyndonville Sav.
Bank & Tr. Co. v. Lussier, 211 F.3d 697, 700-01 (2d Cir. 2000) (citations omitted); see also
Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006); Fed. R. Civ. P. 12(h)(3). The plaintiff bears
the burden of establishing subject matter jurisdiction. Makarova v. United States, 201 F.3d 110,
113 (2d Cir. 2000).

In order for the Court to have jurisdiction over the matter, there must either be federal
question jurisdiction or diversity jurisdiction. 28 U.S.C. §§ 1331 & 1332. Federal question
jurisdiction arises in an action “arising under the Constitution, laws, or treaties of the United
States.” 28 U.S.C. § 1331. The complaint does not appear to assert claims that would give this
Court federal question jurisdiction. (See generally Dkt. No. 1.) Although the civil cover sheet
references the Every Student Succeeds Act (“ESSA”), the ESSA “does not provide a private
right of action and does not create individual rights that are enforceable under a § 1983 action.
Although students and their parents are intended to benefit from the ESSA, the ESSA contains
no procedures, administrative or judicial, by which individuals can enforce violations of its
provisions; only the Secretary of Education can enforce a state’s violation of the ESSA.” 67B

Am. Jur. 2d Schools § 350. See also Reaves v. Faulkner, No. 7:22-CV-40-FL, 2022 WL
19236195, at *2 (E.D.N.C. Oct. 12, 2022) (finding the ESSA, which amended the No Child Left
Behind Act (“NCLB”), provides no private right of action), report and recommendation adopted,
2023 WL 2614573 (E.D.N.C. Mar. 23, 2023); Blakely v. Wells, 380 F. App’x 6, 8 (2d Cir. 2009)
(NCLB does not provide a private cause of action) (citing Home v. Flores, 557 U.S. 433, 456 n.
(2009) (noting that “NCLB does not provide a private right of action” and “is enforceable only
by the agency charged with administering it”).
In addition, because the complaint alleges Plaintiff and Defendants are citizens of New
York (Dkt. No. 1 at 1-3), there is no diversity jurisdiction. Lever v. Lyons, No. 16-CV-5130,
2021 WL 302648, at *9 (E.D.N.Y. Jan. 28, 2021) (no diversity jurisdiction where parties were all
citizens of New York). In any event, Plaintiff appears to seek only injunctive relief. (Dkt. No. 1
at 3-4.)
Because the Court lacks subject matter jurisdiction, the Court recommends dismissing

Plaintiff’s complaint without prejudice. Hollander v. Garrett, 710 F. App’x 35, 36 (2d Cir.
2018); see also Humphrey v. Syracuse Police Dep’t, 758 F. App’x 205, 206-07 (2d Cir. 2019)
(holding where a court dismisses a complaint for lack of subject matter jurisdiction, the court
does “not have the power to reach the merits and dismiss the claims against the defendants for
failure to state a claim, or to eventually dismiss the complaint with prejudice for failure to file a
proposed amended complaint.”).
Generally, when the court dismisses a pro se complaint sua sponte, the court should
afford the plaintiff the opportunity to amend at least once; however, leave to replead may be
denied where any amendment would be futile. Ruffolo v. Oppenheimer & Co., 987 F.2d 129,
131 (2d Cir. 1993). “[L]ack of subject matter jurisdiction is a substantive defect that cannot be

cured by better pleading.” Moran v. Proskauer Rose LLP, No. 1:17-CV-00423 (MAD/TWD),
2017 WL 3172999, at *3 (N.D.N.Y. July 26, 2017).
Although this Court has serious doubts about whether Plaintiff can amend to assert any
form of federal jurisdiction over the situation Plaintiff describes in her complaint, in deference to
Plaintiff’s pro se status and out of an abundance of caution, the Court recommends granting
Plaintiff leave to amend.
The Court advises Plaintiff that should she be permitted to amend her complaint, any
amended pleading she submits must comply with Rules 8 and 10 of the Federal Rules of Civil
Procedure. Any such amended complaint should specifically identify the legal theory or theories
that form the basis for her claim. Plaintiff is cautioned that no portion of her prior complaint
shall be incorporated into her amended complaint by reference. Any amended complaint
submitted by Plaintiff must set forth all of the claims she intends to assert against the Defendants
and must demonstrate that a case or controversy exists between the Plaintiff and the Defendant

which Plaintiff has a legal right to pursue and over which this Court has jurisdiction. If Plaintiff
is alleging the Defendants violated a law, she should specifically refer to such law.
III. CONCLUSION
For the reasons stated herein, it is hereby
ORDERED that Plaintiff’s IFP application (Dkt. No. 2) is GRANTED; and it is further
RECOMMENDED that Plaintiff’s complaint (Dkt. No. 1) be DISMISSED WITHOUT
PREJUDICE AND WITH LEAVE TO AMEND; and it is further
ORDERED that the Clerk serve a copy of this Order and Report-Recommendation,
along with copies of the unpublished decisions cited herein in accordance with Lebron v.
Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam) on Plaintiff.

Pursuant to 28 U.S.C. § 636(b)(1), Plaintiff has fourteen days within which to file written
objections to the foregoing report.4 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

4 If you are proceeding pro se and are served with this Order and Report-Recommendation by
mail, three additional days will be added to the fourteen-day period, meaning that you have
seventeen days from the date the Order and Report-Recommendation was mailed to you to serve
and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a
Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day
that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. 6(a)(1)(C).
Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1)
(Supp. 2013); Fed. R. Civ. P. 72, 6(a).
IT IS SO ORDERED.
Dated: August 30, 2023
Syracuse, New York Ta zy /.
Thérése Wiley Dancks
United States Magistrate Judge

10

2018 WL 4185705 restraining order. Before the Court are defendants' motions to
Only the Westlaw citation is currently available. dismiss the amended complaint pursuant to Federal Rules of
For Online Publication Only Civil Procedure 12(b)(1) and 12(b)(6). For the reasons stated
United States District Court, E.D. New York. below, the Court grants defendants' motions and dismisses
plaintiffs' amended complaint in its entirety.
Nicholas TALLEY, Donna Evans Talley, Plaintiffs,
v.
LOANCARE SERVICING, DIV. OF I. BACKGROUND
FNF, Selene Finance, Defendants.
The following facts are taken from plaintiffs' amended
15-CV-5017 (JMA) (AKT) complaint, the record before the Court and fillings from the
| foreclosure action. In deciding a motion to dismiss under Rule
Signed 08/31/2018 12(b)(6), the Court may take judicial notice of public records,
including state court filings. Blue Tree Hotels Inv. (Canada),
Attorneys and Law Firms Ltd. v. Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d
212, 217 (2d Cir. 2004). The Court can also consider exhibits
Donna Evans Talley, Nicholas Talley, pro se.
—such as copies of the mortgage and mortgage assignments
Stuart L. Kossar, Esq., Knuckles, Komosinski & Manfro, —which are attached or integral to the amended complaint.
LLP, 565 Taxter Road, Suite 590, Elmsford, New York 10523, Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004).
Attorney for Defendant Selene Finance, LP.
Edward Rugino, Rosicki, Rosicki and Associates, P.C., 51 A. The Bay Shore Mortgage
East Bethpage Road, Plainview, New York 11803, Attorney On March 7, 2009, Nicholas Talley and Donna Evans Talley
for Defendant LoanCare Servicing. executed a mortgage in favor of non-party Lend America
(the lender) in the principal sum of $311,558 concerning
a property located at 22 Lakeland Street, Bay Shore, New
York (“the Bay Shore property”). (Am. Compl., ECF No.
MEMORANDUM AND ORDER
7 at 15-16.) Plaintiffs claim that there was no recording
Joan M. Azrack, United States District Judge of the original title or delivery of the mortgage or deed
to plaintiffs. (Id. at 5.) Plaintiffs further allege that Lend
*1 On August 18, 2015, Donna Evans Talley and Nicholas America became defunct in December of 2009 and that no
Talley (together “plaintiffs” or the “Talleys”) filed a pro se assignments of the mortgage occurred prior to 2012. (Id.)
complaint in this Court against Selene Financing (“Selene”) By way of an endorsement to the note and two assignments
and LoanCare Servicing, Division of FNF (“LoanCare”) of the mortgage, the loan instruments were transferred to
(together “defendants”). On January 21, 2016, the Court defendant LoanCare on February 27, 2012. (Id. at 5, 8-12.)
granted plaintiffs' applications to proceed in forma pauperis, The assignment to LoanCare was recorded on April 10, 2012
but dismissed the complaint sua sponte pursuant to 28 U.S.C. in the Suffolk County Clerk's Office. (Id. at 5.) On March 31,
§ 1915(e)(2)(B)(ii). Plaintiffs were given an opportunity to 2015, LoanCare assigned the mortgage to defendant Selene.
file an amended complaint. On February 16, 2016, plaintiffs (Id. at 24-25.)
filed an amended complaint, which seeks, among other
things, injunctive relief to “[s]top illegal and fraudulent
foreclosure.” (Am. Compl. at 4.) Simultaneous with the B. The Foreclosure Proceeding
filing of the amended complaint, plaintiffs filed an Order *2 Plaintiffs defaulted on the note and mortgage by failing
to Show Cause for a Preliminary Injunction and Temporary to make their monthly payment due in January 2011 and
Restraining Order seeking to enjoin LoanCare from pursuing each month thereafter. (Kossar Decl. Ex. J, ECF No. 42-11
a foreclosure sale scheduled for March 3, 2016. In an Order at 3.) As a result, LoanCare commenced an action against
dated February 24, 2016, this Court, sua sponte dismissed, plaintiffs in New York State Supreme Court, Suffolk County
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), the prayer for on March 19, 2012. (Id.) In the Talleys' verified joint answer,
court denied the Talleys' request, noting that after numerous compute amounts due under the subject note and mortgage.
prior attempts the parties had not been able to reach an (Id. at 8, 9.)
agreement to modify the loan or settle the action. (Id.) The
Talleys also asserted fifteen affirmative defenses, alleging, On September 29, 2014, the state court entered final judgment
among other things: lack of personal jurisdiction; lack of for foreclosure and sale of the Bay Shore property. (Kossar
standing and legal capacity; fraud in connection with the Decl. Ex. K, ECF No. 42-12 at 3-8.) The state court further
origination and the servicing of the loan; lack of good faith ordered that LoanCare was entitled to judgment establishing
with respect to a loan modification; and LoanCare's failure the validity of the mortgage and to recover $390,013.50 with
to state a cause of action, mitigate damages and comply with interest to date of the closing of time of the referee's sale of
the provisions of Real Property Actions and Proceedings Law the subject property. (Id.)
and Banking Law. (Id. at 3.) LoanCare moved for summary
judgment against the Talleys seeking to strike their answer
and dismiss their affirmative defenses amongst other relief. C. The Instant Action
(Id.) The Talleys opposed the motion and cross moved for Plaintiffs' amended complaint alleges fraud against
summary judgment seeking dismissal of the complaint on the defendants LoanCare and Selene along with other claims
grounds that LoanCare lacked standing. (Id. at 4.) under: (1) the Real Estate Settlement Procedures Act
(“RESPA”), 12 U.S.C. § 2605, § 2608; (2) federal regulation
In an Order dated April 11, 2014, the state court denied the 24 C.F.R. § 203.3501 associated with the National Housing
Talleys' cross motion for summary judgment in its entirety. Act, 12 U.S.C. § 1701; (3) various provisions of the Uniform
(Id.) In response to the Talleys' lack of standing defense, Commercial Code (“UCC”); (4) the Pooling and Servicing
the court found that, “as holder of the endorsed note and as Agreement (“PSA”) that governs plaintiffs' mortgage; and
the assignee of the mortgage, [LoanCare] ha[d] standing to (5) fraud.2 (Amend. Compl.) Though stated somewhat
commence [the foreclosure] action. (Id. at 5.) The court noted differently, plaintiffs' amended complaint appears to reiterate
that LoanCare demonstrated that it had been in “continuous their contentions from the prior state court foreclosure action,
possession of the note and mortgage since February 27, specifically alleging that LoanCare did not have standing to
2012,” concluding that LoanCare “is the transferee and holder foreclose on the Bay Shore property and that the mortgage and
of the original note as well as the assignee of the mortgage by its assignment to LoanCare, and subsequently to Selene, were
virtue of the written assignments.” (Id. at 6.) In sum, the court invalid and therefore unenforceable.3 (See Am. Compl.)
held that LoanCare satisfied its prima facie burden as to the
merits of the foreclosure action as it produced the endorsed
note, the mortgage and assignments as well as evidence of 1 Plaintiffs also allege a violation of 24 C.F.R. §
plaintiffs' nonpayment. (Id. at 5.) Further, the court noted that 203.35 in their amended complaint, (Am. Compl.
LoanCare submitted proof of its compliance with the notice at 5), but note in their opposition to defendant
requirements of the RPAPL § 1303 and § 1304. (Id.) Thus, LoanCare's motion to dismiss that this was an error.
the court found that LoanCare established its entitlement to (Pls.' Opp. to LoanCare's Mot. to Dismiss, ECF No.
summary judgement and dismissed the Talleys' remaining 39-12 at 3.)
affirmative defenses finding that plaintiff submitted sufficient 2 Though the amended complaint seeks relief from
proof to establish, prima facie, that such defenses were
“LoanCare harassing us and placing us under
unmeritorious. (Id. at 5, 7-9) (noting that circumstances of
duress” (Am. Compl. at 5-6), the only allegation
fraud must be “stated in detail” and that a defense based upon
of such harassment appears in plaintiffs' opposition
the “doctrine of unclean hands” lacks merit where a defendant
to defendant LoanCare's motion to dismiss. (See
fails to come forward with admissible evidence of immoral
Pls.' Opp. to LoanCare's Mot. to Dismiss, ECF
or unconscionable behavior). The court also noted that the
No. 39-12 at 5-6.) A plaintiff “cannot amend [his]
Talleys “failed to demonstrate that they made a reasonable
complaint by asserting new facts or theories for the
attempt to discover the facts which would give rise to a triable
first time in opposition to [d]efendants' motion to
issue of fact or that further discovery might lead to relevant
dismiss”, K.D. ex rel. Duncan v. White Plains Sch.
evidence.” (Id. at 8.) The court further rejected the Talleys'
Dist., 921 F. Supp. 2d 197, 209 (S.D.N.Y. 2013).
contention that they were entitled to a judicially mandated
claims. no recordation of closing documents”; “[r]eveal identity of
principal/issuer”; “LoanCare cease and desist from harassing
3 The Court notes that plaintiffs appear to use us and placing us under duress since the mortgage has been
the terms “fraud”, “fraudulent concealment” and sold to Selene”; “[s]top illegal and fraudulent foreclosure by
“fraud in the inducement” interchangeably. prior servicer, LoanCare without assignment.” (Id. at 4.)
*3 Specifically, plaintiffs allege that the original deed has
never been delivered since the inception of the mortgage. (Id. Defendants filed separate motions to dismiss pursuant to
at 3.) Plaintiffs claim that although the original lender, Lend Fed. R. Civ. P. 12(b)(1) and 12(b)(6), claiming that plaintiffs'
America ceased to exist as of December 2009, the mortgage claims should be dismissed because (a) they are barred by the
was never assigned in the years 2009 through 2012. (Id.) Rooker-Feldman doctrine; (b) are barred by the doctrines of
Plaintiffs allege that Lend America “acquired the loan without res judicata and collateral estoppel; and (c) fail to state a claim
providing principal/issuer resulting in no securitization of an upon which relief can be granted.6
FHA security instrument from 2009-2012.” (Id.) Plaintiffs
appear to allege that “no delivery of deed and title” concerning 6 Plaintiffs filed for Chapter 13 bankruptcy on June
plaintiffs' mortgage “proves deceptive practices and fraud
5, 2017. (Pls.' Opp. to Mot. to Dismiss, Ex. J, ECF
was the intention from the origination of the mortgage.” (Id.)
No. 35 at 37.)
Plaintiffs further allege that defendants have no standing
under Article III of the Constitution because the original title
was not recorded or delivered to plaintiffs. (Id. at 5-6.) Finally, II. DISCUSSION
plaintiffs allege that “even if this was a legal foreclosure,
we were not given our due process because we were not A. Standard of review
notified by LoanCare or the Court of our Right to Appeal The court is mindful that when considering a motion
thereby denying us ‘due process’.”4 (Id. at 6.) Specifically, to dismiss a pro se complaint, the court must construe
plaintiffs allege that they did not receive the Notice of Entry of the complaint liberally and interpret the complaint “to
Final Judgment for Foreclosure and Sale from LoanCare until raise the strongest arguments they suggest.” Triestman v.
February 6, 2015 and that the September 29, 2014 judgment Federal Bureau of Prisons, 470 F.3d 471, 474 (2d Cir.
is in violation of the PSA, RESPA and the UCC because the 2006). “However, mere conclusions of law or unwarranted
mortgage and note were transferred to Selene on August 1, deductions need not be accepted.” Bobrowsky, 777 F. Supp.
2014.5 (Id.) 2d at 703 (internal quotation marks and citations omitted).
4 To the extent that plaintiffs attempt to allege a due 1. Fed. R. Civ. P. 12(b)(1)
process violation under 42 U.S.C. § 1983, such Federal Rule of Civil Procedure 12(b)(1) requires the
claim is unwarranted as the defendants are private dismissal of a claim when there is a “lack of subject-matter
parties, not state actors. jurisdiction.” Fed. R. Civ. P. 12(b)(1). A case is properly
dismissed for lack of subject matter jurisdiction pursuant to
5 According to the loan transfer documents attached Rule 12(b)(1) “when the district court lacks the statutory or
to plaintiffs' amended complaint, the mortgage and constitutional power to adjudicate it.” Makarova v. United
note were transferred to Selene on March 31, States, 201 F.3d 110, 113 (2d Cir. 2000); see Fed. R. Civ. P.
2015. (See Am. Compl. at 23-24.) However, Selene 12(b)(1). In reviewing a motion to dismiss under this Rule, the
first became involved with plaintiffs' loan when it Court accepts all factual allegations in the complaint as true.
became a servicer of the loan on August 1, 2014. Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d
(Pls.' Opp. to Def. LoanCare's Mot. to Dismiss, Cir. 1998). However, the Court should not draw inferences
ECF No. 35-1, Ex. H at 17.) favorable to the party asserting jurisdiction. Id. In resolving
Plaintiffs seek the following relief: “[d]efendants produce a jurisdictional issue, the Court may consider affidavits and
orig[inal] deed of mortgage, title with covenants”; other materials beyond the pleadings, but may not rely on
“[r]eimburse[ment] [of] $4,336 for services not rendered mere conclusions or hearsay statements contained therein.
(deed/title)”; “[p]rove securitization of mortgage from 2009 J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d
Crossgates Co., 436 F.3d 82, 89, n. 8 (2d Cir. 2006) (“The 2003 WL 133232, at *7 (S.D.N.Y. Jan. 16, 2003) (citations
presentation of affidavits on a motion under Rule 12(b)(1) omitted). The doctrine precludes a district court from hearing
... does not convert the motion into a motion for summary “cases brought by state-court losers complaining of injuries
judgment under Rule 56.”). caused by state-court judgments rendered before the federal
district court proceedings commenced and inviting district
court review and rejection of those judgments.” Exxon Mobil
2. Fed. R. Civ. P. 12(b)(6) Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005).
*4 To survive a motion to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6), a plaintiff must allege The Second Circuit has established four requirements that
sufficient facts “to state a claim to relief that is plausible must be satisfied for the Rooker–Feldman doctrine to apply:
on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, (1) “the federal-court plaintiff must have lost in state
570 (2007). A claim is facially plausible only “when the court;” (2) “the plaintiff must complain of injuries caused
plaintiff pleads factual content that allows the court to draw by a state court judgment;” (3) “the plaintiff must invite
the reasonable inference that the defendant is liable for the district court review and rejection of the judgment;” and (4)
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 “the state-court judgment must have been rendered before the
(2009) (citing Twombly, 550 U.S. at 556). Mere labels and district court proceedings commenced.” Hoblock, 422 F.3d at
legal conclusions will not suffice. Twombly, 550 U.S. at 555. 85 (internal quotation marks and citations omitted). The first
In reviewing a motion to dismiss, the Court must accept and fourth requirements are procedural and the second and
the factual allegations set forth in the complaint as true third are substantive. Id.
and draw all reasonable inferences in favor of the plaintiff.
Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. Specifically, with respect to foreclosure proceedings, “courts
2006). Motions to dismiss invoking res judicata and collateral in this Circuit have consistently held that any attack on a
estoppel are properly brought under Rule 12(b)(6). See Hirsch judgment of foreclosure is clearly barred by the Rooker–
v. Desmond, No. 08–CV–2660, 2010 WL 3937303, at *2 Feldman doctrine.” Ashby v. Polinsky, No. 06–CV–6778,
(E.D.N.Y. Sept. 30, 2010) (collateral estoppel); Wiercinski v. 2007 WL 608268, at *1 (E.D.N.Y. Feb. 22, 2007) (internal
Mangia 57, Inc., No. 09–CV–4413, 2010 WL 2681168, at *1 quotation marks and citation omitted), aff'd, 328 F. App'x 20
(E.D.N.Y. July 2, 2010) (res judicata ). (2d Cir. 2009); see also Done v. Wells Fargo Bank, N.A.,
No. 08–CV–3040, 2009 WL 2959619, at *3 (E.D.N.Y. Sept.
14, 2009); Ward v. Bankers Trust Co. of California, N.A.,
B. Rooker-Feldman Doctrine
No. 09–CV–1943, 2011 WL 1322205, at *5 (E.D.N.Y. Mar.
Defendants' initial argument is that this Court lacks
29, 2011). This even includes challenges to a judgment of
jurisdiction to hear this case under the Rooker-Feldman
foreclosure that was allegedly procured by fraud, as plaintiffs
doctrine. See Rooker v. Fidelity Trust Co., 263 U.S. 413
have alleged herein. See, e.g., Swiatkowski v. Citibank, 745
(1923) (holding that only the Supreme Court can entertain
F. Supp. 2d 150, 164–65 (E.D.N.Y. 2010) aff'd, 446 F. App'x
a direct appeal from a state court judgment); District of
360, 361 (2d Cir. 2011) (finding Rooker–Feldman doctrine
Columbia Court of Appeals v. Feldman, 460 U.S. 462, 483,
applied to allegations that defendants engaged in a pattern of
n.3 (1983) (finding that federal courts do not have jurisdiction
submitting fraudulent and perjurious documents related to the
over claims which are “inextricably intertwined” with prior
judgment of foreclosure and sale in other courts and that the
state court determinations). The Rooker-Feldman doctrine
allegations and relief sought were “inextricably intertwined
“recognizes that ‘federal district courts lack jurisdiction
with the state court judgment and would require overturning
over suits that are, in substance, appeals from state-court
the state court judgment”); Parra v. Greenpoint Mortgage
judgments.’ ” Alston v. Sebelius, CV 13-4537, 2014 U.S.
Co., No. Civ.A. 01–CV–02010, 2002 WL 32442231, at *2
Dist. LEXIS 123613, at *23-24 (E.D.N.Y. July 31, 2014)
(E.D.N.Y. Mar. 26, 2002) (“The fact that [a] plaintiff alleges
(report and recommendation), adopted by, 2014 U.S. Dist.
that a state court judgment was procured by fraud does not
LEXIS 122970, 2014 WL 4374644 (E.D.N.Y. Sept. 2, 2014)
remove [the] claims from the ambit of Rooker–Feldman”);
(quoting Hoblock v. Albany Cnty. Bd. of Elections, 422 F.3d
Dockery v. Cullen & Dykman, 90 F. Supp. 2d 233, 236
77, 84 (2d Cir. 2005) ). “The doctrine applies when a litigant
(E.D.N.Y. 2000) (same).
seeks to reverse or modify a state court judgment or asserts
claims. The procedural requirements of Rooker–Feldman to lack of [s]tanding.” (Pls.' Opp. to defendant LoanCare's
are satisfied. First, plaintiffs lost in state court. (Kossar Mot. to Dismiss, ECF No. 39-12.) Plaintiffs are requesting
Decl. Exs. J, K.) Second, the state court granted LoanCare this Court to do exactly what Rooker-Feldman forbids—
summary judgment and denied plaintiffs' cross-motion for to overturn the New York Supreme Court judgment of
summary judgment by Order dated April 9, 2014, and issued foreclosure. See Trakansook, 2007 WL 1160433, at *5
a foreclosure judgment on September 29, 2014. (See id.) (“Because [plaintiff's] complaint asks this court to vacate the
Since those judgments predate the August 18, 2015 filing of judgment of foreclosure and sale and award her title to the
the initial complaint in the instant action, (see Compl., ECF property, it is plain that she is inviting this court to ‘reject’
1), all pertinent state-court decisions were issued before the the [state court order].”). A ruling in plaintiffs' favor “would
proceedings in this Court commenced. effectively declare the state court judgment [of foreclosure]
fraudulently procured and thus void, ... which is precisely
The substantive requirements of Rooker–Feldman are also the result that the Rooker–Feldman doctrine seeks to avoid.”
satisfied because plaintiffs' amended complaint seeks review Kropelnicki v. Siegel, 290 F.3d 118, 129 (2d Cir. 2002).
and rejection of those state court decisions. Plaintiffs' claims
complain of injuries, including, “deceptive practices and Moreover, plaintiffs' attempt to thwart application of Rooker-
fraud” at the origination of the mortgage due to no delivery Feldman by labeling their claims as “fraud in the inducement”
or recording of closing documents and seeks to “[s]top illegal and “fraudulent concealment” rather than the “fraud” they
and fraudulent foreclosure,” in contravention of the state court alleged in the state action fails. Plaintiffs' claim of “newly
judgment of foreclosure and the state court's acceptance of discovered facts of fraud in the inducement” based on the
the validity of the mortgage documents that formed the basis actions of third parties at the time of the loan origination
for that judgement. (Am. Compl. at 4-6.) See Trakansook fails to preclude application of Rooker-Feldman.7 (Pls.'
v. Astoria Fed. Sav. & Loan Ass'n, No. 06–Civ–1640, 2007 Opp. to defendant Selene's Mot. to Dismiss, ECF No. 42-26
WL 1160433, at *5 (E.D.N.Y. Apr. 18, 2007), aff'd, No. at 1.) Plaintiffs' claims relate not to defendants' conduct
07–2224–CV, 2008 WL 4962990 (2d Cir. Nov. 21, 2008) in the course of the state court foreclosure action, but,
(holding that because plaintiff's complaint asked the court rather, to the validity of the underlying mortgage documents
“to vacate the judgment of foreclosure and sale and award and defendants' standing to commence the foreclosure
her title to the property, it [was] plain that she [was] inviting proceeding. Thus, “the injury complained of is the judgment
[the] court to ‘reject’ the [state court] order.”); Done v. permitting the foreclosure, which implicitly held that the
Option One Mortgage, No. 09–civ–4770, 2011 WL 1260820, mortgage[ ] w[as] valid.” Webster v. Wells Fargo Bank, N.A.,
at *6 (E.D.N.Y. Mar. 30, 2011) (concluding substantive No. 08–civ–10145, 2009 WL 5178654, at *8 (S.D.N.Y. Dec.
requirements of Rooker-Feldman met where “[a]lthough 23, 2009), aff'd sub nom. as amended (Jan. 24, 2012) Webster
plaintiff ha[d] made a cursory reference to seeking monetary v. Penzetta, 458 F. App'x 23 (2d Cir. 2012) (finding the Court
damages, it [was] abundantly clear that the whole purpose of “plainly lack[ed] subject matter jurisdiction” over plaintiff's
th[e] action [was] to undo the foreclosure judgment”). claims “attacking the validity of the foreclosure proceedings
and the validity of the underlying mortgage loan documents”
In their amended complaint, plaintiffs contend that LoanCare pursuant to Rooker-Feldman because “the injury complained
had no standing to bring the state court foreclosure action. of is the judgment permitting foreclosure, which implicitly
(See Am. Compl.) However, as plaintiffs admit, the state held that the mortgages were valid.”); see also Feliciano v.
court rejected this exact contention in its final judgment. U.S. Bank Nat. Ass'n, No. 13–CV–5555, 2014 WL 2945798,
(Pls.' Supplemental Opp. to defendant LoanCare's Mot. to at *2–4 & n. 7 (S.D.N.Y. June 27, 2014) (finding that
Dismiss, ECF No. 43 at 4; Kossar Decl. Ex. J at 7 (“The plaintiffs' claims that “[defendant] wrongfully foreclosed
assertions by the defendant mortgagors as to the plaintiff's upon their home because it lacked the legal capacity to
alleged lack of standing, which rest, inter alia, upon alleged accept the assignment of the underlying mortgage, and
defects in the assignments, rife with speculation, are rejected therefore lacked standing in the Foreclosure Action” failed
as unmeritorious ...”).) In opposition to defendants' motion under Rooker-Feldman and the fraud exception did not apply
to dismiss, plaintiffs specifically state that they are seeking because “the complaint alleges fraudulent conduct (generally)
“[r]escission of [f]inal [s]ummary [j]udgment”, that this by defendant prior to the institution of the Foreclosure Action
Court “[r]ender the lien unenforceable due to fraudulent rather than on the state court itself.” (internal citations and
a fraudulent procurement exception to the Rooker–Feldman to defenses that could have been raised in the prior action as
doctrine fails. well. Waldman v. Vill. of Kiryas Joel, 39 F. Supp. 2d 370, 377
(S.D.N.Y. 1999) (res judicata “prevents a party from litigating
7 Plaintiffs appear to allege newly discovered facts any issue or defense that could have been raised or decided in
in relation to the alleged fraudulent closing of the a previous suit, even if the issue or defense was not actually
mortgage in 2009. (Pls.' Opp to defendant Selene's raised or decided”) (quoting Woods v. Dunlop Tire Corp.,
Mot. to Dismiss, ECF No. 42-26 at 1.) Specifically, 972 F.2d 36, 38 (2d Cir. 1992) ); Robbins v. Growney, 229
plaintiffs now argue, in conclusory fashion, that at A.D.2d 356, 645 N.Y.S.2d 791, 792 (N.Y. App. Div. [1st]
the time of the closing of their mortgage in 2009, Dep't 1996) (“The doctrine of res judicata is applicable ... to
the Title Company was a “shell company” and the defenses raised in the prior action or which, though not raised,
attorney at the closing table was fraudulent. (Id.) could have been.”) (internal citation omitted). “All litigants,
including pro se plaintiffs, are bound by the principles of res
*6 Accordingly, the Court lacks subject matter jurisdiction judicata. Done, 2009 WL 2959619, at *3.
over plaintiffs' claims and the amended complaint should be
dismissed in its entirety. Here, plaintiffs' claims are barred from further adjudication
by res judicata. First, the judgment of foreclosure entered
against plaintiffs is an adjudication on the merits, which
C. Res judicata
prevents reconsideration of any claim that is based on the
Alternatively, to the extent the Rooker-Feldman doctrine does
same facts as the foreclosure judgment and which would
not deprive the Court of subject matter jurisdiction, all of
disturb LoanCare's (or Selene's) ability to enforce rights
plaintiffs' claims are barred by the doctrine of res judicata.
provided pursuant to the mortgage and the note securing
Under the doctrine of res judicata, “a final judgment on the
the Bay Shore property. See id. at *4. Second, the facts
merits of an action precludes the parties or their privies from
pled by plaintiffs in their amended complaint—that LoanCare
re-litigating issues that were or could have been raised in that
brought the foreclosure suit in the Suffolk County Supreme
action.” Flaherty v. Lang, 199 F.3d 607, 612 (2d Cir. 1999)
Court and was not the holder of a valid mortgage note
(quotation omitted). “In applying the doctrine of res judicata,
at the time of assignment, (see Am. Compl.)—would have
[a court] must keep in mind that a state court judgment has
been central to deciding any entitlement to a judgment of
the same preclusive effect in federal court as the judgment
foreclosure, and thus demonstrates that their claims in the
would have had in state court.” Burka v. New York City
current suit arise from the same transaction as LoanCare's
Transit Auth., 32 F.3d 654, 657 (2d Cir. 1994). Further, federal
claim in the previous foreclosure action. Done, 2009 WL
courts must apply the doctrine of res judicata according to
2959619, at *4. Plaintiffs' claims arising from the origination
the rules of the state from which the judgment is taken. See
of the mortgage and attacking the ability of defendants to
Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367, 373
enforce it in the foreclosure proceedings, (see Am. Compl.),
(1996); Giardina v. Nassau Cnty., No. 08–CV–2007, 2010
not only could have been raised as a defense to foreclosure
WL 1850793, at *3 (E.D.N.Y. May 7, 2010). New York State
in the state court, but were actually raised, (see Kossar Decl.
courts apply a transactional analysis, “barring a later claim
Exs. I, J) and therefore cannot be relitigated in this Court.
arising out of the same factual grouping as an earlier litigated
See, e.g., Hinds v. Option One Mortg. Corp., No. 11–CV–
claim even if the later claim is based on different legal theories
6149, 2012 WL 6827477, at *5 (E.D.N.Y. Dec. 6, 2012)
or seeks dissimilar or additional relief.” Burka, 32 F.3d at 657
(report & recommendation), adopted by 2013 WL 132719
(quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)
(E.D.N.Y. Jan. 10, 2013) (“Inasmuch as Plaintiff's fraud claim
); see Done, 2009 WL 2959619, at *3 (same).
is premised on his allegations that Defendants obtained the
underlying mortgage through predatory lending tactics and
Res judicata applies when there was: (1) a previous action
fraud, res judicata operates to preclude federal review of such
that resulted in a final adjudication on the merits, (2) the party
a claim ... [since the plaintiff's claims] arise from the same
against whom res judicata is to be invoked was party to the
factual grouping—namely the validity of Plaintiff's mortgage,
previous action or in privity with a party to that action, and
and the right of Defendants to enforce that agreement in a
(3) the claims involved in the current case were, or could
state court foreclosure proceeding”): Solomon v. Ocwen Loan
have been, raised in the previous action. Swiatkowski, 745
Servicing, LLC, No. 12-CV-2856, 2013 WL 1715878, at *5
by plaintiff arise from the origination of the [m]ortgage federal action during the foreclosure action as counterclaims
and attack the ability of defendants to enforce it in the and the relief sought by plaintiff was inconsistent with the
foreclosure proceedings. These claims could have been raised ruling in the foreclosure action, the new claims were barred
as a defense to foreclosure in state court, and therefore by the doctrine of res judicata).8
cannot be relitigated in a subsequent suit in federal court.”);
Swiatkowski, 745 F. Supp. 2d at 171 (“Many of the factual 8 “Although New York's permissive counterclaim
allegations plaintiff raises in opposition to the instant motion
rule means that res judicata generally will not
to dismiss involve issues that could have been raised as claims
necessarily bar claims that could have been
or defenses in the state court [foreclosure] proceedings.”);
counterclaims in a prior action, this exception
Gray v. Americredit Fin. Servs., Inc., No. 07 Civ. 4039, 2009
for counterclaims does not permit an attack on
WL 1787710, at *6 n. 2 (S.D.N.Y. June 23, 2009) (“Plaintiff's
a judgment” previously issued by the state court.
allegations of fraud regarding the underlying loan transaction
Beckford v. Citibank N.A., No. 00 Civ. 205, 2000
do not appear to be of the type recognized by certain courts as
WL 1585684, at *3 (S.D.N.Y. Oct. 24, 2000)
immune from res judicata.”); Yeiser v. GMAC Mortg. Corp.,
(internal quotation omitted).
535 F.Supp.2d 413, 421 (S.D.N.Y. 2008) (“According to New
York law, ... res judicata ... applies to defenses that could have Lastly, the present action satisfies the privity requirement for
been litigated, including defenses to a foreclosure.”). claim preclusion since LoanCare commenced the foreclosure
proceeding and is a named party to the current action.
*7 Whether cast as violations of RESPA, or regulations Further, Selene, a non-party to the earlier state court action
governing the National Housing Act, plaintiffs effectively may still invoke claim preclusion if it can demonstrate
allege that defendants improperly obtained the foreclosure that it was in privity with a party to the earlier action.
judgment due to lack of standing based on fraud or “fraud See Houdet v. U.S. Tennis Ass'n, No. 13-CV-5131, 2014
in the inducement”. (See Am. Compl.) However, plaintiffs WL 6804109, at *4 (E.D.N.Y. Dec. 3, 2014) (finding res
asserted these claims, albeit in different form, in the state judicata to apply “not just to the parties in a prior litigation
foreclosure action as affirmative defenses in their verified but also to those in privity with them” where the “new
answer, in their opposition to LoanCare's summary judgment defendants have a sufficiently close relationship to justify
motion, and in support of their own cross motion for summary [its] application” (internal quotation marks omitted) ). “A
judgment. (Kossar Decl. Exs. I, J.) Specifically, in the state relationship of privity ‘includes those who are successors
action, plaintiffs alleged that LoanCare had no standing to a property interest, those who control an action although
to bring a foreclosure action, had “unclean hands,” and not formal parties to it, [and] those whose interests are
misled, overcharged and defrauded plaintiffs in the mortgage represented by a party to the action.’ ” Modular Devices,
application, closing and servicing process. (Id., Ex. I at ¶ ¶ 3, Inc. v. Alcatel Alenia Space Espana, No. 08-CV-1441, 2010
8, 14, 18) The state court considered and ultimately dismissed WL 3236779, at *4 (E.D.N.Y. Aug. 12, 2010) (quoting Ferris
plaintiffs' affirmative defenses and denied plaintiffs' summary v. Cuevas, 118 F.3d 122, 126 (2d Cir. 1997) ). Under New
judgment; instead, granting summary judgment in LoanCare's York law, both the party servicing the mortgage and the party
favor. (Kossar Decl. Ex. J.) “If plaintiffs were unhappy with that later acquires it (becoming a successor in interest) are
the result of that proceeding, the proper recourse was a state considered to be in privity with the party to the original action
court appeal. Because plaintiffs could have presented the concerning the mortgage for purposes of res judicata. Yeiser,
same claims they now assert, including the RESPA claim, as 535 F. Supp. 2d at 423.
defenses or counterclaims in the action for foreclosure, the
doctrine of res judicata bars this litigation.” Yeiser, 535 F. The facts alleged in the amended complaint establish privity
Supp. 2d at 422 (citing 12 U.S.C. § 2614, which authorizes between Selene and LoanCare, as LoanCare assigned the
an action, pursuant to the provisions of RESPA, to be brought mortgage to Selene on March 31, 2015—after final judgment
in the federal district court or in any other court of competent in the state foreclosure action. See Yeiser, 535 F. Supp. 2d
jurisdiction in which the property involved is located, or at 423 (“[s]ince the loan was transferred to GRP in May
where the violation is alleged to have occurred); Mercado v. 2005,” almost one year after the state foreclosure action,
Playa Realty Corp., No. CV 03-3427, 2005 WL 1594306, at “GRP is a successor to that interest and is also in privity
*7 (E.D.N.Y. July 7, 2005) (determining that because plaintiff with [the original note holder],” which was the plaintiff in
n.8 (finding the privity requirement satisfied where Wells the factual issues raised in the amended complaint in the
Fargo was not a party in the state court proceeding, but state foreclosure action. And, those issues were decided
bought the subject property at a foreclosure sale, rendering it in LoanCare's favor. As discussed supra, plaintiffs already
a successor in interest). Thus, the requirements of res judicata challenged the validity of the assignment of the mortgage
are satisfied here. to LoanCare and its standing to foreclose on the Bay
Shore property in state court, and the state court necessarily
Therefore, to the extent Rooker-Feldman does not deprive this rejected those arguments when it found LoanCare had a valid
Court of subject matter jurisdiction over plaintiffs' claims, the claim to the Bay Shore property and entered judgment of
claims are barred by the doctrine of res judicata and must be foreclosure on that property. No appeal was filed in that
dismissed. action. Accordingly, plaintiffs cannot relitigate these issues
against defendant LoanCare in federal court. See Graham v.
Select Portfolio Servicing, Inc., 156 F. Supp. 3d 491, 505–06
D. Collateral Estoppel (S.D.N.Y. 2016).
Plaintiffs' claims are also precluded under the narrower
doctrine of collateral estoppel. “Collateral estoppel, or Plaintiffs are also precluded from litigating these same issues
issue preclusion, ‘precludes a party from relitigating in a against Selene, despite the fact that Selene was not a party
subsequent action or proceeding an issue clearly raised in a to the initial suit in state court. See Jasper v. Sony Music
prior action or proceeding and decided against that party ... Entm't, Inc., 378 F. Supp. 2d 334, 343 (S.D.N.Y. 2005) (“By
whether or not the tribunals or causes of action are the same.’ binding the plaintiff to earlier judicial decisions in which he
” Sullivan v. Gagnier, 225 F.3d 161, 166 (2d Cir. 2000). was a party, defensive collateral estoppel precludes a plaintiff
Whether relitigation of an issue is precluded is determined from getting a second bite at the apple merely by choosing a
by the rules of the court that rendered the prior judgment. new adversary.”); see also Fequiere v. Tribeca Lending, No.
Id. “Under New York law, the doctrine of collateral estoppel 14-CV-812, 2016 WL 1057000, at *9–10 (E.D.N.Y. Mar. 11,
requires that ‘the issue in the second action [be] identical to 2016) (applying defensive non-mutual collateral estoppel to
an issue which was raised, necessarily decided and material FDCPA claim).
in the first action.’ ” Hines v. HSBC Bank USA, No. 15-
CV-3082, 2016 WL 5716749, at *9 (E.D.N.Y. Sept. 30, 2016) Accordingly, the Court grants defendants' motions to dismiss
(quoting Parker v. Blauvelt Volunteer Fire Co., 93 N.Y.2d plaintiffs' claims because they are precluded pursuant to the
343, 349 (1999) ). Thus, “[b]efore collateral estoppel can doctrine of collateral estoppel.9
be invoked, the court must find that an identical issue was
necessarily decided in the prior action and is decisive of the
9
present action, and that there was a full and fair opportunity to Because plaintiffs' claims fail under Rooker-
contest the decision now said to be controlling.” Yeiser, 535 Feldman, res judicata and collateral estoppel, the
F. Supp. 2d at 424 (internal citation omitted). Court need not reach the defendants' alternative
arguments in support of dismissal.
*8 “To determine whether the issue in the first litigation was
necessarily decided, the focus is on the rights, questions or E. Sanctions
facts that underlie a judicial decision, not the legal theories Pursuant to Rule 11 of the Federal Rules of Civil Procedure
underlying the complaint.” Id. at 424-25 (citing Coveal v. (“Rule 11”), defendant LoanCare seeks to impose sanctions
Consumer Home Mortgage, Inc., 2005 WL 2708388, at *5 on plaintiffs in the form of attorneys' fees incurred in
(E.D.N.Y. Oct. 21, 2005) ) “New York requires only that defendant's defense of the instant action. (Def. LoanCare's
the issue have been properly raised by the pleadings or Mot. to Dismiss, ECF No. 39-7 at 19-20.) For the reasons
otherwise placed in issue and actually determined in the prior discussed below, defendant's motion is denied.
proceeding.” Id. (finding collateral estoppel to be applicable
where all the facts giving rise to the amended complaint were As an initial matter, the Court notes that LoanCare has not
presented in the foreclosure proceeding even though plaintiffs satisfied the procedural requirements for filing a sanctions
did not allege all of the same causes of action). motion. Rule 11 requires that a motion for sanctions “be
made separately from any other motion and ... describe the
motion for sanctions. Plaintiffs' claims against defendants would be futile.” Boddie v. N.Y. State Div. of Parole, No. 08-
are plainly without merit. Nevertheless, this alone does not CV-911, 2009 WL 1033786, at *5 (E.D.N.Y. Apr. 17, 2009).
warrant sanctions, particularly as plaintiff is proceeding pro
Here, the Court has carefully considered whether plaintiffs
se. Although Rule 11 does apply to pro se litigants, the court
should be granted leave to amend the complaint. Having
may take into account the “special circumstances of litigants
who are untutored in the law,” Maduakolam v. Columbia decided plaintiffs' claims are barred by Rooker-Feldman, res
Univ., 866 F.2d 53, 56 (2d Cir. 1989), as well as whether judicata and collateral estoppel, the Court finds that any
such a litigant has been warned of the possible imposition amendment of these claims would be futile. For these reasons,
of sanctions. See Kuntz v. Pardo, 160 B.R. 35, 40 (S.D.N.Y. the Court declines to grant plaintiffs leave to amend.
1993); see also Fed. R. Civ. P. 11 advisory committee's
note to the 1993 amendments (stating that the court should
consider, inter alia, whether the motion was made in bad III. CONCLUSION
faith). There are no facts indicating that plaintiff instituted or
maintained this lawsuit in bad faith or that they were warned For the reasons stated above, the Court grants defendants'
of the imposition of sanctions. For all of the above reasons, motions and dismisses plaintiffs' amended complaint in its
LoanCare's request for sanctions is denied. entirety. The Clerk of Court is directed to close this case and
send a copy of this Order to pro se plaintiffs.
F. Leave to Amend
*9 Pro se plaintiffs are ordinarily given the opportunity “to SO ORDERED.
amend at least once when a liberal reading of the complaint
All Citations
gives any indication that a valid claim might be stated.”
Shomo v. City of New York, 579 F.3d 176, 183 (2d Cir. 2009) Not Reported in Fed. Supp., 2018 WL 4185705
(internal quotation omitted). Nevertheless, “a district court
End of Document © 2023 Thomson Reuters. No claim to original U.S. Government Works.
2022 WL 19236195 meritless legal theory.” Neitzke, 490 U.S. at 327, 109 S.Ct.
Only the Westlaw citation is currently available. 1827. A claim lacks an arguable basis in fact when it describes
United States District Court, E.D. North Carolina, “fantastic or delusional scenarios.” Id. at 327–28, 109 S.Ct.
Southern Division. 1827.
Kathy Juanita REAVES, Plaintiff, In order to state a claim on which relief may be granted, “a
v. complaint must contain sufficient factual matter, accepted as
Angela FAULKNER, et al., Defendants. true, to ‘state a claim to relief that is plausible on its face.’
” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173
No. 7:22-CV-40-FL L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
| U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
Signed October 12, 2022 “Factual allegations must be enough to raise a right to relief
above the speculative level....’ ” Twombly, 550 U.S. at 555,
Attorneys and Law Firms 127 S.Ct. 1955. While a complaint need not contain detailed
factual allegations, the plaintiff must allege more than labels
Kathy Juanita Reaves, Mullins, SC, Pro Se.
and conclusions. Id.
In the present case, Plaintiff is proceeding pro se, and
ORDER AND MEMORANDUM pleadings drafted by a pro se litigant are held to a less
AND RECOMMENDATION stringent standard than those drafted by attorneys. See Haines
v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d
Robert B. Jones, Jr., United States Magistrate Judge
652 (1972). This court is charged with liberally construing a
*1 This matter is before the court on Plaintiffs amended pleading filed by a pro se litigant to allow for the development
application to proceed in forma pauperis, [DE-10], and of a potentially meritorious claim. See id.; Estelle v. Gamble,
for frivolity review of the complaint, [DE-1-1], pursuant 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976);
to 28 U.S.C. § 1915(e)(2)(B). Plaintiff has demonstrated Noble v. Barnett, 24 F.3d 582, 587 n.6 (4th Cir. 1994).
appropriate evidence of inability to pay the required court However, the principles requiring generous construction of
costs, and the application to proceed in forma pauperis is pro se complaints are not without limits; the district courts
allowed. However, it is recommended that the complaint be are not required “to conjure up questions never squarely
dismissed. presented to them.” Beaudett v. City of Hampton, 775 F.2d
1274, 1278 (4th Cir. 1985).
I. Standard of Review
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the court shall dismiss II. Discussion
the complaint if it is frivolous or malicious, fails to state a Plaintiff alleges she was employed as a CTE (career and
claim upon which relief may be granted, or seeks money technical education) teacher at Townsend Middle School in
damages from a defendant immune from such recovery. 28 Maxton, Robeson County, North Carolina. Her claims arise
U.S.C. § 1915(e)(2)(B)(i–iii); see Adams v. Rice, 40 F.3d 72, from an incident that took place on December 6, 2021,
74 (4th Cir. 1994) (explaining Congress enacted predecessor when Plaintiff filed a grievance against defendant Freddie
statute 28 U.S.C. § 1915(d) “to prevent abuse of the judicial Williamson, the Superintendent for the Robeson County
system by parties who bear none of the ordinary financial Public Schools, for allegedly backdating her employment
disincentives to filing meritless claims”). A case is frivolous contract without informing her. On December 10, 2021,
if it lacks an arguable basis in either law or fact. See Neitzke v. Williamson had Plaintiff's work email blocked, and she was
Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 unable login and access the CTE curriculum and standards.
(1989); McLean v. United States, 566 F.3d 391, 399 (4th Cir. On January 28, 2022, Plaintiff asked Defendant Catherine
2009) (“Examples of frivolous claims include those whose Truitt, the State Superintendent of North Carolina Public
factual allegations are ‘so nutty,’ ‘delusional,’ or ‘wholly Schools, to assist her in accessing the CTE curriculum but
fanciful’ as to be simply ‘unbelievable.’ ”). A claim lacks an Truitt responded that she would not intervene. Plaintiff asserts
CTE curriculum from December 10, 2021 through March 1. Claims on Behalf of Plaintiff's CTE Students
1, 2022, and the Board of Education conducted meetings Plaintiff asserts in her complaint that this case is not about her
during this time but failed to address her grievances. Plaintiff but about the treatment of her CTE students, and she claims
also alleges that Angela Faulkner, the principal at Townsend that her CTE students were damaged as a result of Defendants'
Middle School, fraudulently entered grades for Plaintiff's wrongful acts. Id. at 3, 24, 26, 33, 38, 42–45, 47–50.
CTE students in January 2022, despite the students being
denied education, and Plaintiff reported the matter to the To the extent Plaintiff seeks to bring claims on behalf
CTE coordinator, CTE director, and Truitt but they failed of her students, Plaintiff lacks standing to do so because
to investigate or intervene. Plaintiff contends Defendants she proceeds in this matter unrepresented by counsel and,
received state and federal money for these students to therefore, can only assert claims on her own behalf. See
be educated but students were not educated during this Myers v. Louden Cnty. Pub. Schs., 418 F.3d 395, 400 (4th Cir.
time period, and no Defendant intervened to remediate the 2005) (“The right to litigate for oneself ... does not create a
discriminatory denial of education to Plaintiff's students or coordinate right to litigate for others.”) (citing Oxendine v.
reported the denial of education as required under federal and Williams, 509 F.2d 1405, 1407 (4th Cir. 1975) (per curiam)).
state law. On March 3, Plaintiff was suspended with pay for Accordingly, any claims brought on behalf of Plaintiff's
ninety days in what she believes was a legal maneuver to students should be dismissed.
remove her from the school premises pending prior litigation
she filed in federal court for discrimination and retaliation.
2. Conspiracy to Defraud the United States – 18 U.S.C.
Compl. [DE-1-1] at 2–7.1
§ 371
Plaintiff contends that Defendants Williamson and Faulkner
1 The page number referenced is that assigned failed to report that Townsend Middle School was not in
by CM/ECF, whereas here it differs from the compliance with federal law and that Plaintiff's CTE students
document's internal page number. were discriminated against and denied CTE education,
despite the Robeson County schools continuing receipt of
*2 Plaintiff brings this action against Angela Faulkner,
Title I, ESSA, and Covid-19 funding, all in an attempt to
Freddie Williamson, Michael Mike Smith, Brenda Fairley-
defraud the federal government. Compl. [DE-1-1] at 23–24.
Ferebee, Herman Locklear, Demetria Grissett, Atkins Trey
Michael, the Public Schools of Robeson County, the Public
The conspiracy statute under which Plaintiff attempts to assert
Schools of Robeson County Board of Education, Catherine
a claim is criminal in nature and does not provide for a
Truitt, Roy Cooper, the Public Schools of North Carolina, the
civil private right of action. See Hankins v. United States,
North Carolina Department of Public Instruction, the North
No. 7:20-CV-179-FL, 2021 WL 4437502, at *5 (E.D.N.C.
Carolina State Board of Education, and the State of North
Aug. 30, 2021) (recommending on frivolity review that a
Carolina. Plaintiff asserts Defendants violated 18 U.S.C. §
claim under 18 U.S.C. § 371 be dismissed because the
371, Title I of the Elementary and Secondary Education Act,
statute does not provide for a civil private cause of action),
the Every Student Succeeds Act (“ESSA”), Chapter 115C
report and recommendation adopted, 2021 WL 4428192
of the North Carolina General Statutes for Elementary and
(E.D.N.C. Sept. 27, 2021); see also Tribble v. Reedy, 888
Secondary Education, the North Carolina State Tort Claims
F.2d 1387, 1989 WL 126783 (4th Cir. 1989) (per curiam)
Act, 20 U.S.C. Chapters 39 and 44, the Due Process and
(“Unless there is a clear Congressional intent to provide a civil
Equal Protection Clauses of the Fourteenth Amendment to
remedy, a plaintiff cannot recover civil damages for an alleged
the United States Constitution, Title VII of the Civil Rights
violation of a criminal statute.”); Dingle v. Baggett, No. 5:19-
Act of 1964, the North Carolina Retaliatory Employment
CV-00425-D, 2020 WL 5245986, at *5 (E.D.N.C. July 31,
Discrimination Act (“REDA”), and she also asserts claims
2020) (“[C]riminal statutes ‘proscribe crimes; they do not, of
under state law for interference with contractual obligations,
themselves, create civil liability.’ ”) (quoting Kebort v. Stiehl,
negligent hiring and retention, and abuse of power/bullying
No. 5:17-CV-418-D, 2018 WL 2927762, at *3 (E.D.N.C.
or intentional infliction of emotional distress. Plaintiff seeks
May 17, 2018)), objections overruled, 2020 WL 5217393
monetary damages for herself and on behalf of her CTE
(E.D.N.C. Sept. 1, 2020), aff'd, 860 F. App'x 41 (4th Cir.
students. Id. at 1–2, 23–49.
2021). Accordingly, this claim should be dismissed.
3. Failure to Report – Title I and ESSA [DE-1-1] at 27, 38–40.
Plaintiff alleges Defendants Public Schools of Robeson
County, Freddie Williamson, and Angela Faulkner failed Section 115C-276(e) provides that a local superintendent
to provide the parents of Plaintiff's CTE students a true has a duty to “furnish as promptly as possible to the State
accounting of the events between December 10, 2021 and Superintendent when requested by him, information and
February 28, 2022, as required by Title I parent liaison statistics on any phase of the school work in his administrative
reporting and ESSA, and therefore denied parents the unit.” N.C. Gen. Stat. § 115C-276(e). Section 115C-288(b)
opportunity to mitigate the problem or move their children to outlines the powers and duties of school principals, including
another resource. Compl. [DE-1-1] at 25–26, 43–44. Plaintiff the duty to make accurate reports to the superintendent and
further alleges that the Public Schools of Robeson County local school board on certain matters and the penalties for
did not refund any of the federal or state funding it received making false reports. Id. § 115C-288(b). Section 115C-307
for the CTE students during the time period at issue. Id. outlines the duties of teachers, including a duty to teach
at 25. Throughout Plaintiff's complaint she also alleges that students “as thoroughly as they are able,” and contains
Defendants violated ESSA reporting requirements, 20 U.S.C. reporting requirements similar to those of principals. Id. §
§ 6301, et seq. Courts have concluded that there is no private 115C-307. None of these statutes expressly provide for a
right of action under Title I of the Elementary and Secondary private right of action, and North Carolina “case law generally
Education Act of 1965. See, e.g., Bradford v. Morehouse holds that a statute allows for a private cause of action
Par. Sch. Bd., No. CV 18-1536, 2019 WL 572981, at *5 only where the legislature has expressly provided a private
(W.D. La. Jan. 28, 2019) (citing Chester Upland Sch. Dist. cause of action within the statute.” Lea v. Grier, 156 N.C.
v. Pennsylvania, No. 12-132, 2012 WL 1344368, at *7 (E.D. App. 503, 508, 577 S.E.2d 411, 415 (2003) (quoting Vanasek
Pa. Apr. 17, 2012); Scott v. Conley, No. 15-0371, 2016 v. Duke Power Co., 132 N.C. App. 335, 339, 511 S.E.2d
WL 4257507, at *2 (D. Utah July 18, 2016), report and 41, 44 (1999)); Benjamin v. Sparks, 173 F. Supp.2d 272,
recommendation adopted, 2016 WL 4257339 (D. Utah Aug. 291 (E.D.N.C. 2016) (citing Lea). Accordingly, these claims
11, 2016)), report and recommendation adopted, No. 2019 should be dismissed.
WL 576007 (W.D. La. Feb. 12, 2019). Likewise, the ESSA,
which amended the No Child Left Behind Act, Dickerson
v. D.C., No. CV 09-2213 (PLF), 2022 WL 656172, at *1 5. North Carolina Tort Claims Act
(D.D.C. Mar. 3, 2022), provides no private right of action. See Plaintiff asserts Defendants violated the North Carolina
Simmons v. Putnam/N. Westchester Bd. of Coop. Educ. Servs., Tort Claims Act by concealing and failing to report the
No. 19 CV 10388 (VB), 2022 WL 294753, at *2 (S.D.N.Y. discrimination against and denial of education to her CTE
Feb. 1, 2022) (noting the No Child Left Behind Act “does students and intentionally inflicting emotional distress on her
not contemplate a private right of action.”) (citing Horne v. by failing to intervene. Compl. [DE-1-1] at 26–27.
Flores, 557 U.S. 433, 456 n.6, 129 S.Ct. 2579, 174 L.Ed.2d
406 (2009)); A. W. v. Tennessee Dep't of Educ., No. 3:20- “Under the North Carolina Tort Claims Act ..., the Industrial
CV-76, 2021 WL 6246563, at *8 n.6 (E.D. Tenn. Apr. 14, Commission has exclusive jurisdiction over claims against
2021) (noting the plaintiffs provided no case precedent or the State, state departments, institutions, and agencies for
support for the proposition that ESSA provides a private right personal injuries or damages sustained by any person due to
of action). Accordingly, these claims should be dismissed. the negligence of [a] state officer, agent, or employee acting
within the scope of his employment.” Carmona v. North
Carolina, No. 3:21-CV-00211-MR, 2021 WL 2295517, at
4. N.C. Gen. Stat. §§ 115C-276(e), 115C-288(b) and *1 (W.D.N.C. May 26, 2021) (citing Guthrie v. State
115C-307 Ports Authority, 307 N.C. 522, 299 S.E.2d 618 (1983)).
*3 Plaintiff contends Defendants Faulkner and Williamson Furthermore, Plaintiff asserts a claim of intentional infliction
violated N.C. Gen. Stat. §§ 115C-276(e), 115C-288(b), of emotional distress rather than negligent conduct. See
and 115C-307 by failing to make accurate reports to the Vincent v. N. C. Dep't of Trans., No. 1:20-CV-51, 2020
Superintendent and Board of Education regarding the events WL 5710710, at *11 (M.D.N.C. Sept. 24, 2020) (concluding
surrounding Plaintiffs CTE students between December 10, intentional infliction of emotional distress is an intentional
2021 and February 28, 2022, failing to recommend the return tort) (citing Dickens v. Puryear, 302 N.C. 437, 452–53,
on intentional acts,” and “[a]s such, injuries intentionally 7. 20 U.S.C. Chapter 44 – Career and Technical
inflicted by employees of a state agency are not compensable Education
under the Act.” Id. at *2 (citing Frazier v. Murray, 135 Plaintiff alleges she was not provided a CTE Teacher
N.C.App. 43, 519 S.E.2d 525, 528 (N.C. App. 1999)); see Mentor; she never met Defendants Demetria Grissett, the
also Reaves v. Brooks Pierce - Greensboro, No. 7:22-CV-53- CTE Coordinator for the Public Schools of Robeson County,
FL, 2022 WL 2374621, at *1 (E.D.N.C. June 30, 2022) or Trey Michael, the CTE Director for the North Carolina
(concluding plaintiffs claims under the North Carolina Tort Public Schools; she only saw Defendant Williamson on the
Claims Act “fail given the forum in which it was brought day he suspended her with pay for ninety days; her students
and the intentional nature of the wrongs she alleges.”) (citing were denied CTE education pursuant to 20 U.S.C. Chapter
White v. Trew, 366 N.C. 360, 363, 736 S.E.2d 166 (2013) 44 during the time her work email was blocked; and all
(explaining that “intentional acts of [state employees] are Defendants are in violation of Chapter 44. Compl. [DE-1-1]
not compensable” under the Tort Claims Act)). Accordingly, at 27–33, 38–39.
Plaintiff's claims under the North Carolina Tort Claims Act
should be dismissed. The purpose of Chapter 44, 20 U.S.C. §§ 2301–2414, is “to
develop more fully the academic knowledge and technical
and employability skills of secondary education students and
6. 20 U.S.C. Chapter 39 – Equal Educational postsecondary education students who elect to enroll in career
Opportunities and Transportation of Students and technical education programs and programs of study.” 20
*4 Plaintiff alleges that during the 2021–22 school year, U.S.C. § 2301. Plaintiff fails to point to a specific provision of
there was no certified math teacher at Townsend Middle Chapter 44 that she claims Defendants violated, and it appears
School and Defendants failed to provide the students with from Plaintiff's allegations that the asserted harm is to the
basic math skills. Compl. [DE-1-1] at 33–34. Plaintiff also CTE students rather than any harm personal to Plaintiff. As
alleges that Defendants violated 20 C.F.R. § 1703 and “20 explained above, Plaintiff may not bring claims on behalf of
CFR 39,” which appears to be a reference to Chapter 39 and her students. See Myers, 418 F.3d at 400. Accordingly, these
more specifically the Equal Educational Opportunity Act, 20 claims should be dismissed.
U.S.C. § 1701, et seq., by denying students equal educational
opportunity. Id. at 3, 6, 9–10, 19–20.
8. Due Process
Section 1703 prohibits a state from denying equal educational Plaintiff alleges a violation of her Fourteenth Amendment
opportunity to an individual on account of race, color, sex, or procedural due process rights, which the court construes as a
national origin by (a) segregating students on the basis of race, claim under 42 U.S.C. § 1983, based on Defendant Faulkner's
color, or national origin, (b) failing to remove the vestiges of attempt to conduct a teacher evaluation of Plaintiff between
a dual school system, (c) assigning students to certain schools March 1 and 3, 2022, without having provided Plaintiff
in a discriminatory manner, (d) discriminating against faculty with any training pursuant to the employment contract, and
and staff on the basis of race, color, or national origin in Plaintiffs suspension with pay on March 3, 2022. Compl.
employment, employment conditions, and school assignment, [DE-1-1] at 40–42.
(e) transferring students for purposes of segregation based on
race, color, or national origin, and (f) failing to take action to To state a procedural due process claim, a plaintiff must
overcome language barriers that impede equal participation allege “(1) a cognizable liberty or property interest; (2) the
by students. 20 U.S.C. § 1703. Plaintiff's complaint, liberally deprivation of that interest by some form of state action;
construed, contains no allegations to support a plausible and (3) that the procedures employed were constitutionally
inference that the conduct of which Plaintiff complains had inadequate.” Iota Xi Chapter of Sigma Chi Fraternity v.
anything to do with race, color, sex, or national origin. Patterson, 566 F.3d 138, 145 (4th Cir. 2009). The Supreme
Furthermore, it appears Plaintiff is attempting to assert claims Court in Zinermon v. Burch, explained the relevance of state
on behalf of students, which she may not do. See Myers, 418 remedies to a § 1983 claim for violation of procedural due
F.3d at 400. Accordingly, it is recommended that these claims process:
be dismissed.
*5 A § 1983 action may be brought for a violation of
procedural due process, but here the existence of state
due process claims, the deprivation by state action S.E.2d 438 (2017) (dismissing a teacher's federal procedural
of a constitutionally protected interest in “life, liberty, due process claim and finding “[t]he statutory scheme set out
or property” is not in itself unconstitutional; what is in N.C. Gen. Stat. § 115C-325 provided Plaintiff with all of
unconstitutional is the deprivation of such an interest the procedural due process to which he was constitutionally
without due process of law. Parratt, 451 U.S. at 537, 101 entitled,” and the plaintiff failed to take advantage of the
S. Ct. at 1913; Carey v. Piphus, 435 U.S. 247, 259, 98 process afforded to him). Accordingly, it is recommended that
S. Ct. 1042, 1050, 55 L.Ed.2d 252 (1978) (“Procedural Plaintiff's due process claim be dismissed.
due process rules are meant to protect persons not from
the deprivation, but from the mistaken or unjustified
deprivation of life, liberty, or property”). The constitutional 9. Equal Protection
violation actionable under § 1983 is not complete when Plaintiff alleges that her students were discriminated against
the deprivation occurs; it is not complete unless and and segregated from learning the CTE curriculum when
until the State fails to provide due process. Therefore, to her email address was blocked and her access to the CTE
determine whether a constitutional violation has occurred, curriculum was denied, and no other North Carolina Public
it is necessary to ask what process the State provided, School students were denied the CTE curriculum. Compl.
and whether it was constitutionally adequate. This inquiry [DE-1-1] at 43.
would examine the procedural safeguards built into the
statutory or administrative procedure of effecting the The Equal Protection Clause provides that “[n]o State shall ...
deprivation, and any remedies for erroneous deprivations deny to any person within its jurisdiction the equal protection
provided by statute or tort law. of the laws.” U.S. Const. amend. XIV, § 1. “To succeed on
an equal protection claim, a plaintiff must first demonstrate
494 U.S. 113, 125–26, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990). that he has been treated differently from others with whom
he is similarly situated and that the unequal treatment was the
First, Plaintiff has not plausibly alleged that Faulkner's result of intentional or purposeful discrimination.” Morrison
attempt to evaluate her deprived her of any liberty or property v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001). A plaintiff
interest. Second, assuming Plaintiff has a property interest must set forth “specific, non-conclusory factual allegations
in her employment, she has not plausibly alleged that her that establish improper motive.” Williams v. Hansen, 326
suspension with pay constituted a procedural due process F.3d 569, 584 (4th Cir. 2003) (quoting Trulock v. Freeh,
violation. Under North Carolina law, the superintendent may, 275 F.3d 391, 405 (4th Cir. 2001)) (internal quotations
under certain circumstances, suspend a teacher with pay for omitted). Plaintiff has failed to state any facts in her
a reasonable period of time, not to exceed ninety days. N.C. complaint from which the court could infer the alleged
Gen. Stat. § 115C-325.5(c). If the superintendent does not unequal treatment resulted from an improper motive or
initiate dismissal or demotion proceedings against the teacher purposeful discrimination and, thus, has failed to state an
within the ninety-day period, the teacher must be reinstated equal protection claim. See Harris v. Unit Manager Avcook,
immediately. Id. There are notice and hearing procedures No. 5:15-CT-3261-D, 2016 WL 2931630, at *3 (E.D.N.C.
regarding the dismissal or demotion of a teacher for cause set Apr. 11, 2016) (finding failure to set forth “specific, non-
forth in N.C. Gen. Stat. § 115C-325.6. conclusory factual allegations” that establish an improper
motive warranted dismissal of equal protection claim on
Plaintiff's complaint alleges that she was suspended with pay frivolity review), report and recommendation adopted sub
for ninety days on March 3, 2022. Compl. [DE-1-1] at 3, 41– nom. Harris v. Avcook, 2016 WL 2917412 (E.D.N.C. May
42. Plaintiff filed her complaint on March 11, 2022, prior to 18, 2016). Accordingly, it is recommended that this claim be
the end of the ninety-day period, and there is no allegation dismissed.
that any dismissal or demotion proceedings had been initiated
against her by the superintendent. Thus, under North Carolina
state law, Plaintiff was not yet due a hearing. Because an 10. Title VII
actionable constitutional violation “is not complete unless *6 Plaintiff alleges Defendants violated Title VII of the
and until the State fails to provide due process,” Zinermon, Civil Rights Act of 1964 by discriminating against her and
494 U.S. at 126, 110 S.Ct. 975, Plaintiff has failed to state her students through the denial of CTE education and her
Title VII prohibits an employer from “discharg[ing] to survive a motion to dismiss, he must state a plausible right
any individual, or otherwise ... discimin[ating] against to relief.” Ofoche v. Apogee Med. Grp., Va., P.C., 815 F. App'x
any individual with respect to his compensation, terms, 690, 692 (4th Cir. 2020) (citing Woods v. City of Greensboro,
conditions, or privileges of employment, because of such 855 F.3d 639, 648 (4th Cir. 2017)). To state a plausible
individual's race, color, religion, sex, or national origin....” 42 claim, the complaint must contain allegations from which
U.S.C.A § 2000e-2(a). A plaintiff is required to exhaust her the court could find that defendant took adverse employment
administrative remedies by bringing a charge with the Equal action against plaintiff because of a protected characteristic.
Employment Opportunity Commission (“EEOC”) before See McCleary-Evans v. Maryland Dep't of Transp., State
filing suit. See Walton v. Harker, 33 F.4th 165 (4th Cir. 2022) Highway Admin., 780 F.3d 582, 585 (4th Cir. 2015).
(citing 42 U.S.C. § 2000e-5(b), (f); 29 U.S.C. § 633a(d)).
“The allegations contained in the administrative charge of *7 Plaintiff alleges generally that discrimination took place
discrimination generally operate to limit the scope of any but makes no factual allegations from which the court could
subsequent judicial complaint.” Evans v. Techs. Applications draw a plausible inference that any adverse action was
& Serv. Co., 80 F.3d 954, 962–63 (4th Cir. 1996) (citing taken against her because of her race or other protected
King v. Seaboard Coast Line R.R., 538 F.2d 581, 583 characteristic. See Persaud v. Morgan State Univ., 34 F.3d
(4th Cir. 1976)). While the charge-filing requirement is not 1066, 1994 WL 446797, at *2 (4th Cir. 1994) (“Conclusory
jurisdictional, i.e., it can be forfeited if not timely raised, allegations of discrimination are insufficient to state a
the requirement is mandatory. See Fort Bend Cnty., Texas v. claim.”) (citing Simpson v. Welch, 900 F.2d 33, 35 (4th
Davis, ––– U.S. ––––, 139 S. Ct. 1843, 1849-51, 204 L.Ed.2d Cir. 1990)). As for Plaintiff's claims on behalf of students,
116 (2019); Rios v. City of Raleigh, No. 5:19-CV-00532-M, Plaintiff may not bring such claims. See Myers, 418 F.3d at
2020 WL 5603923, at *7 (E.D.N.C. Sept. 18, 2020). The 400. Accordingly, it is recommended that these claims be
court may consider affirmative defenses sua sponte when a dismissed.
litigant seeks to proceed in forma pauperis. See Eriline Co.
S.A. v. Johnson, 440 F.3d 648, 655 (4th Cir. 2006) (citing
Nasim v. Warden, Md. House of Correction, 64 F.3d 951, 11. REDA
953–54 (4th Cir. 1995)). Plaintiff has not alleged that she Plaintiff alleges that she filed a REDA complaint and
exhausted her administrative remedies by filing a charge “on March 3, 2022 the NCDOL found probable cause
with the EEOC prior to bringing this action. See Francisco to move forward with a retaliatory complaint against
Ramos v. Def. Commissary Agency, No. 5:18-CV-380-BO, defendants Public Schools of Robeson County and defendant
2020 WL 1165282, at *1 (E.D.N.C. Mar. 9, 2020) (dismissing Freddie Williamson pursuant to REDA Retaliation.” Compl.
Title VII claim where plaintiff did not file a charge with the [DE-1-1] at 20. However, Plaintiff does not allege that her
EEOC), aff'd, 822 F. App'x 217 (4th Cir. 2020). Accordingly, administrative remedies have been exhausted, i.e., that she
Plaintiff's Title VII claim should be dismissed for failure to has received a right to sue letter, which is a prerequisite to
exhaust administrative remedies. bringing a REDA claim in federal court. See Krings v. AVL
Techs., No. 1:20-CV-259-MR-WCM, 2021 WL 1235129, at
Alternatively, Plaintiff has failed to plausibly allege that *5 (W.D.N.C. Feb. 10, 2021) (“[A] REDA claim requires a
she was discriminated against because of her race or other plaintiff to first obtain a right-to-sue letter.”) (citing Whitfield
protected characteristic in violation of Title VII. There are no v. DLP Wilson Med. Ctr., LLC, 482 F. Supp. 3d 485, 496
allegations in the complaint that constitute direct evidence of (E.D.N.C. 2020) (“Before filing a lawsuit under REDA,
discrimination. “Absent direct evidence [of discrimination], plaintiff must file a complaint with the North Carolina
the elements of a prima facie case of discrimination under Commissioner of Labor, obtain a right-to-sue letter from
Title VII are: (1) membership in a protected class; (2) the Commissioner, and file suit within 90 days of receiving
satisfactory job performance; (3) adverse employment action; that letter. These claim processing rules are mandatory under
and (4) different treatment from similarly situated employees North Carolina law.”)), report and recommendation adopted,
outside the protected class.” Coleman v. Md. Ct. of Appeals, 2021 WL 1233478 (W.D.N.C. Apr. 1, 2021); Satterwhite
626 F.3d 187, 190 (4th Cir. 2010) (citing White v. BFI Waste v. Wal-Mart Stores E., L.P., No. 5:11-CV-363-BO, 2012
Servs., LLC, 375 F.3d 288, 295 (4th Cir. 2004)), aff'd, 566 U.S. WL 255347, at *3 (E.D.N.C. Jan. 26, 2012) (stating that
30, 132 S.Ct. 1327, 182 L.Ed.2d 296 (2012). “Although an “[i]n order to bring a civil complaint under REDA, a
right-to-sue-letter.”). Accordingly, it is recommended that Mellon Univ. v. Cohill, 484 U.S. 343, 350, 108 S.Ct. 614, 98
Plaintiff's REDA claim be dismissed for failure to exhaust her L.Ed.2d 720 (1988)).
administrative remedies.
III. Conclusion
12. State Law Tort Claims
*8 For the reasons stated herein, Plaintiffs application to
Plaintiff alleges Defendants interfered with her contractual proceed in forma pauperis is allowed, and it is recommended
obligations and subjected her to bullying and intentional that the complaint be dismissed without prejudice.
infliction of emotional distress, and she also alleges negligent
hiring and retention and vicarious liability. Compl. [DE-1-1] IT IS DIRECTED that a copy of this Memorandum and
at 27, 44–46. These are state law tort claims. See Parks v. N.C. Recommendation be served on Plaintiff. You shall have
Dep't of Pub. Safety, No. 5:13-CV-74-BR, 2014 WL 32064, until October 26, 2022 to file written objections to the
at *5 (E.D.N.C. Jan. 6, 2014) (concluding plaintiff's claim for Memorandum and Recommendation. The presiding district
tortious interference with contractual or prospective business judge must conduct his or her own review (that is, make a de
relations was an intentional tort) (citing Blue Ridge Pub. novo determination) of those portions of the Memorandum
and Recommendation to which objection is properly made
Safety, Inc. v. Ashe, 712 F. Supp. 2d 440, 447–48 (W.D.N.C.
and may accept, reject, or modify the determinations in
2010)) (under North Carolina law, tortious interference with
the Memorandum and Recommendation; receive further
contract and tortious interference with prospective economic
evidence; or return the matter to the magistrate judge with
advantage are intentional torts); Charles E. Daye & Mark
instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ.
W. Morris, North Carolina Law of Torts §§ 14.10-14.60 (2d
P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of
ed. 1999); Taylor v. Fed. Express Corp., No. 5:19-CV-101-
deadlines specified in local rules), 72.4(b), E.D.N.C.
FL, 2021 WL 5985122, at *5 (E.D.N.C. Dec. 16, 2021)
(recognizing intentional infliction of emotional distress is a
If you do not file written objections to the Memorandum
state law claim); White v. Pitt Cnty. Sch., No. 4:17-CV-00075-
and Recommendation by the foregoing deadline, you will
BR, 2018 WL 1020123, at *3 (E.D.N.C. Feb. 22, 2018)
be giving up the right to review of the Memorandum and
(considering claims for bullying and harassment as state law
Recommendation by the presiding district judge as described
tort claims); A.G. v. Fattaleh, No. 5:20-CV-00165-KDB-
above, and the presiding district judge may enter an order or
DCK, 2022 WL 2758607, at *17 (W.D.N.C. July 14, 2022)
judgment based on the Memorandum and Recommendation
(characterizing negligent hiring and supervision and vicarious
without such review. In addition, your failure to file written
liability as state law claims). The court should decline
objections by the foregoing deadline will bar you from
to exercise jurisdiction over these state law claims where
appealing to the Court of Appeals from an order or judgment
Plaintiff has failed to state a federal claim. 28 U.S.C. § 1367
of the presiding district judge based on the Memorandum and
(providing that a court may decline to exercise supplemental
Recommendation. See Wright v. Collins, 766 F.2d 841, 846–
jurisdiction if “the district court has dismissed all claims
17 (4th Cir. 1985).
over which it has original jurisdiction”); Chesapeake Ranch
Water Co. v. Bd. of Comm'rs of Calvert Cnty., 401 F.3d
Submitted the 12th day of October, 2022.
274, 277 (4th Cir. 2005) (having dismissed federal claims,
district court properly declined supplemental jurisdiction of
state claims); Shanaghan v. Cahill, 58 F.3d 106, 110 (4th
All Citations
Cir. 1995) (recognizing that under § 1367(c), the district
courts “enjoy wide latitude in determining whether or not Slip Copy, 2022 WL 19236195
to retain [supplemental] jurisdiction over state claims when
End of Document © 2023 Thomson Reuters. No claim to original U.S. Government Works.
2023 WL 2614573 dismissed. (DE 11). Plaintiff did not file objections to the M
Only the Westlaw citation is currently available. & R, and the time within which to make any objection has
United States District Court, E.D. North Carolina, expired. In this posture, the issues raised are ripe for ruling.
Southern Division.
Upon careful review of the M & R, the court may “accept,
Kathy Juanita REAVES, Plaintiff, reject, or modify, in whole or in part, the findings or
v. recommendations made by the magistrate judge.” 28 U.S.C.
Angela FAULKNER, Freddie Williamson, Michael § 636(b)(1). Because no objections have been filed, the court
Mike Smith, Brenda Fairley-Ferebee, Herman Locklear, reviews the magistrate judge's findings anc conclusions only
for clear error, and need not give any explanation for adopting
Demetria Grissett, Atkins Trey Michael, Public Schools
the M & R. Diamond v. Colonial Life & Acc. Ins. Co., 416
of Robeson County, Public Schools of Robeson County
F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198,
Board of Education, Catherine Truitt, Roy Cooper, Public
200 (4th Cir. 1983).
Schools of North Carolina, North Carolina Department
of Public Instruction, North Carolina State Board of Here, the magistrate judge recommends dismissal of
Education, and State of North Carolina, Defendants. plaintiff's claims where the statutes under which she purports
to sue do not provide a private right of action, she improperly
NO. 7:22-CV-040-FL
attempts to bring claims on behalf of others pro se, and she
|
fails to state a claim. Upon careful review of the M & R, the
Signed March 23, 2023
court finds the magistrate judge's analysis to be thorough, and
there is no clear error.
Attorneys and Law Firms
Kathy Juanita Reaves, Mullins, SC, Pro Se. The court therefore ADOPTS the recommendation of the
recommendation of the magistrate judge as its own. For the
reasons stated therein, plaintiff's’ complaint is DISMISSED
ORDER WITHOUT PREJUDICE for failure to state a claim upon
which relief can be granted, pursuant to 28 U.S.C. § 1915(e)
LOUISE W. FLANAGAN, United States District Judge (2)(B).
*1 This matter is before the court for review of plaintiff's pro SO ORDERED, this the 23rd day of March, 2023.
se complaint (DE 1-1, 12) pursuant to 28 U.S.C. § 1915(e).
United States Magistrate Judge Robert B. Jones, Jr. entered
memorandum and recommendation (“M & R”), pursuant to All Citations
28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure
Slip Copy, 2023 WL 2614573
End of Document © 2023 Thomson Reuters. No claim to original U.S. Government Works.
2021 WL 302648 2019,2 Judge Bulsara filed a report and recommendation on
Only the Westlaw citation is currently available. September 12, 2019 (the “R&R”), recommending that the
United States District Court, E.D. New York. Court dismiss the Amended Complaint for lack of subject
matter jurisdiction because both Plaintiff and Lyons were
Kenric LEVER, Plaintiff, domiciled in New York. (R&R, Docket Entry No. 73.) On
v. October 29, 2019, Plaintiff filed objections to the R&R. (Pl.’s
Christina LYONS and Lescele Bogle, Defendants. Obj. to R&R (“Pl.’s Obj.”), Docket Entry No. 75.)
16-CV-5130 (MKB) (SJB) 2
(See Tr. of Hr'g dated Mar. 21, 2019 (“Lever Tr.”),
|
Docket Entry No. 62; Tr. of Hr'g dated Apr. 3, 2019
Signed 01/27/2021
(“Lyons Tr.”) filed Apr. 5, 2019, Docket Entry No.
|
64.)
Filed 01/28/2021
For the reasons explained below, the Court adopts the R&R
Attorneys and Law Firms and dismisses the Amended Complaint without prejudice for
lack of subject matter jurisdiction.
Kenric Lever, Brooklyn, NY, pro se.
Christina Lyons, Orange, NJ, pro se.
I. Background
Lescele Bogle, Eastampton, NJ, pro se.
a. Procedural background
After Plaintiff filed his Complaint on September 15, 2016,
Defendants moved to dismiss it on August 9, 2017, for lack of
MEMORANDUM & ORDER subject matter jurisdiction and failure to state a claim pursuant
to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil
MARGO K. BRODIE, United States District Judge:
Procedure, respectively, and for sanctions against Plaintiff.
*1 Plaintiff Kenric Lever, proceeding pro se, commenced (See Letter Mot. to Dismiss by Lescele Bogle, Docket Entry
the above-captioned action on September 15, 2016, against No. 26; Letter Mot. to Dismiss by Christina Lyons, Docket
Defendants Christina Lyons and Lescele Bogle, also Entry No. 27.) On August 25, 2017, the Court referred the
proceeding pro se. (Compl., Docket Entry No. 1.) In a prior motions to Magistrate Judge Cheryl L. Pollak for a report and
Memorandum and Order, the Court found that complete recommendation. (See Order dated Aug. 25, 2017.)
diversity did not exist between Plaintiff and Lyons and
dismissed the action for lack of subject matter jurisdiction By report and recommendation dated January 2, 2018, Judge
but granted Plaintiff leave to amend.1 Plaintiff filed an Bulsara3 recommended that the Court dismiss the Complaint
Amended Complaint on June 21, 2018, asserting claims without prejudice for lack of subject matter jurisdiction and
of false imprisonment, intentional infliction of emotional deny Defendants’ requests for sanctions.4 (R&R dated Jan.
distress, and defamation. (Am. Compl., Docket Entry No. 2, 2018 (“2018 R&R”), at 21, Docket Entry No. 37.) On
51.) The Court referred the matter to Magistrate Judge Sanket February 26, 2018, the Court adopted the 2018 R&R in its
J. Bulsara for a report and recommendation regarding the entirety over Plaintiff's objections. (Mem. and Order dated
Court's subject matter jurisdiction. (See Order dated Oct. 23, Feb. 26, 2018, Docket Entry No. 45.)
2018.)
3 The case was reassigned to Judge Bulsara on
1
Lever v. Lyons, No. 16-CV-5130, 2018 WL September 5, 2017. (See Order dated Sept. 5, 2017.)
1521857 (E.D.N.Y. Jan. 2, 2018), report and
recommendation adopted, 2018 WL 1089328 4 Judge Bulsara found that because Plaintiff and
(E.D.N.Y. Feb. 26, 2018). Lyons were domiciled in New York, the complete
diversity necessary to support jurisdiction under 28
U.S.C. § 1332 did not exist. (2018 R&R 17.) The
Docket Entry No. 45.) cause those injuries and blame Plaintiff. (Id.) At the Essex
*2 On June 21, 2018, Plaintiff filed an Amended Complaint, County proceeding, Lyons caused Plaintiff to be served with a
(Am. Compl.),5 and Defendants filed Answers, (Lyons complaint that “intentionally defamed” him by stating that he
had been abusing Lyons for years. (Id. at 5.) Lyons obtained
Answer, Docket Entry No. 53; Bogle Answer, Docket Entry
an order of protection that prevented Plaintiff from obtaining
No. 54). After evidentiary hearings on the question of subject
work as a collection agent with New York City Transit in April
matter jurisdiction on March 21 and April 3, 2019, (see
of 2016 because he was ineligible to obtain a handgun license.
Lever Tr.; Lyons Tr.), by report and recommendation dated
(Id.)
September 12, 2019, Judge Bulsara determined that both
Plaintiff and Lyons were domiciled in New York when
the Complaint was filed and therefore the parties are not 6 Because the Amended Complaint and its
completely diverse. (R&R 16.) Judge Bulsara therefore attachments are not consecutively paginated, the
recommended that the Court dismiss the Amended Complaint Court refers to the ECF pagination.
for lack of subject matter jurisdiction. (Id. at 17.) Plaintiff Plaintiff further alleges that on July 17, 2016, Lyons made
timely filed objections to the R&R. (Pl.’s Obj.) a false report to the 78th Precinct in Brooklyn, New
York, that Plaintiff was molesting his child and watching
5 The Amended Complaint alleges that Plaintiff is child pornography. (Id. at 3.) Lyons’ report caused Plaintiff
a citizen of New York and that Lyons and Bogle emotional distress and caused him to be imprisoned in a
are both citizens of New Jersey. (Am. Compl. 1–2.) locked room for several hours. (Id.) On the same day,
Plaintiff seeks $350,000 “from both [D]efendants” Lyons “defamed [Plaintiff] by making false statements to the
and punitive damages to be determined by the Superior Court of New Jersey, stating [Plaintiff] was under
Court. (Id. at 5.) [f]ederal [i]nvestigation,” and submitted to the court pictures
of child pornography, which Lyons stated were obtained
b. Factual background from Plaintiff's computer. (Id. at 4.) Lyons “went to the state
The Court assumes the truth of the factual allegations of New Jersey and made the same complaint” on July 18,
in the Amended Complaint for the purposes of deciding 2016, causing Plaintiff to lose custody of his child. (Id. at
Defendants’ motions and assumes the parties’ familiarity with 3.) Plaintiff contends that on August 31, 2016, the Attorney
the facts set forth in the prior opinions. See Lever v. Lyons, General of Essex County submitted a report to the New Jersey
No. 16-CV-5130, 2018 WL 1521857, at *1 (E.D.N.Y. Jan. state court concluding that the child pornography submitted
2, 2018), report and recommendation adopted, 2018 WL by Lyons came from Lyons’ friend, not Plaintiff's computer.
1089328 (Feb. 26, 2018). The Court provides only a summary (Id. at 4.) In addition, Lyons posted “on social media” on
of the relevant facts. an unstated date that Plaintiff had abused her and that she
had won a domestic violence case against him. (Id. at 5.)
Plaintiff alleges that these statements are intentionally false
and defamatory. (Id.)
i. September 2015 police report and court appearances
Plaintiff alleges that on September 8, 2015, Lyons made a
false report to Newark, New Jersey, police officers “that ii. Plaintiff's allegations concerning Lyons’ domicile
[Plaintiff] had threatened to harm her and had posted a
story on social media [about] her.”6 (Am. Compl. 4.) The *3 Plaintiff alleges that Lyons was domiciled in New Jersey
when the Complaint was filed and argues that the Court
report caused an order of protection to be entered against
Plaintiff and led to him standing trial for making terroristic
therefore has subject matter jurisdiction.7 (Am. Compl. 2–
threats on September 14, 2015, in Essex County, New Jersey 3; Deed to 121 Ward Street, Orange, New Jersey 07050
Superior Court (the “Essex County proceeding”). (Id.) At that granted to Shawn Landrum,8 at 8–13, annexed to Am.
court appearance, Lyons “produce[d] pictures of her beat up Compl. as Ex. A, Docket Entry No. 51.) In support, Plaintiff
with bruises and a black eye and scratches.” (Id.) She also alleges that Lyons has misrepresented her address in prior
submitted those photographs in a proceeding in Kings County court appearances because property records reflect that her
[W]ard Street.” (Am. Compl. 2.) Plaintiff contends that Lyons New Jersey, responded to a report at Plaintiff's New Jersey
testified on August 27, 2014, in Kings County Family Court address on August 16, 2016, and found her at home.12
“that she abandon[ed] New York as her domicile and made the
state of New Jersey her new home,” and also testified on July
1, 2016, before that same court that she and her child reside in 11 (Am. Compl. 3; Bills from CreditOne Bank and
New Jersey.9 (Id.) In addition, Plaintiff contends that Lyons DirecTV, at 10–11, annexed to Am. Compl. as
Ex. H, Docket Entry No. 51-2; 2015 Federal
gave her address as 119 Ward Street in each instance. (Id.)
and Nonresident and Part-Year Resident State Tax
Plaintiff also asserts that Lyons’ attorney stated in a December
Returns of Lyons, at 13–34, annexed to Am.
6, 2016 hearing in Kings County family court that Lyons lives
Compl. as Ex. I, Docket Entry No. 51-2; Paystubs
in New Jersey and requested that proceedings be transferred
of Christina Lyons for Pay Periods Ending Aug. 31,
there.10 (Id.)
2015, Mar. 31, 2016, Apr. 15, 2016, and June 30,
2016, at 36–40, annexed to Am. Compl. as Ex. J,
7 He also alleges that Bogle is domiciled in New Docket Entry No. 51-2.)
Jersey, (Am. Compl. 2), which is not disputed. 12 (Am. Compl. 3; Dep't of Children and Families
8 Shawn Landrum is one of the landlords of the Investigation Summ. 42–55, annexed to Am.
property in Orange, New Jersey. (Lever Tr. 32.) Compl. as Ex. K, Docket Entry No. 51-2.)
Plaintiff asserts that Landrum “just made up” the
119 Ward Street address and that property records
establish that the proper addresses for the property iii. Hearing testimony
are 121A and 121B Ward Street. (Id. at 31–32.)
Judge Bulsara heard testimony from Plaintiff and Lyons on
9 (Tr. of Hr'g dated Mar. 13, 2013, at 40–47, annexed the issue of Lyons’ domicile. Plaintiff testified that he believes
to Am. Compl. as Ex. D, Docket Entry No. 51; Tr. that Lyons is a citizen of New Jersey because of (1) statements
of Hr'g dated Aug. 27, 2014, at 4, 36–37, annexed she made in other court proceedings, transcripts of which
to Am. Compl. as Ex. E, Docket Entry No. 51-1; Tr. he has submitted to the Court; (2) her New York driver's
of Hr'g dated July 1, 2016, at 72, annexed to Am. license being issued to a United Parcel Service mailbox
Compl. as Ex. F, Docket Entry No. 51-1.) address where she had never lived; (3) Lyons’ inconsistent
statements about where she lived; (4) her January 19, 2013
10 In a December 6, 2016, hearing before the New voter registration in New Jersey;13 and (5) a lawsuit filed
York Supreme Court, Kings County, the court against her in New Jersey by her landlord on July 20, 2018.
noted that a New Jersey court was also hearing a (Id. at 10–11, 17–36.) Plaintiff testified that Lyons first lived
dispute between Plaintiff and Lyons “on the abuse in Staten Island, then lived with Plaintiff in Brooklyn. He
docket” and that the parties’ child resided in New also testified that in May of 2009, while living with Lyons
Jersey. (Tr. of Hr'g dated Dec. 6, 2016, at 4–6, in Brooklyn, Plaintiff obtained an apartment in Jersey City to
annexed to Am. Compl. as Ex. G, Docket Entry ease her commute, (Lever Tr. 5:5–6:13), stopped living with
No. 51-2.) During a March 13, 2013 hearing in Plaintiff around the end of June of 2009, and continued to
the same case, the parties discussed whether the live in Jersey City until approximately 2011. (Id. at 6:20–25).
custody exchange of Plaintiff's and Lyons’ child, Lyons then moved to Irvington, New Jersey, and a year later,
not the legal proceedings, should be moved from to Orange, New Jersey. (Id. at 7:2–7.) Plaintiff also testified
New York to New Jersey. (Tr. of Hr'g dated Mar. that he knew where Lyons lived because they shared custody
13, 2013, at 41–47.) of their daughter, who at the time of the hearing lived with
In further support of his argument that Lyons is a New Jersey Lyons’ mother in Staten Island. (Id. at 7:10–8:7.) Between
domiciliary, Plaintiff relies on the addresses on Lyons’ bank 2010 and 2016, Lyons’ mother lived in Newark, New Jersey.
and cable television accounts, tax filings in which Lyons (Id. at 9:3–25.)
“claim[ed] that she d[id] not maintain any living quarters
in New York,” and copies of pay stubs with an Orange, 13 Plaintiff noted that Lyons was registered to vote
are not updated when people move. (Lever Tr. in New Jersey, that has been [child services]” proceedings
30:21–31:3.) Plaintiff added that “[w]hen [he] went concerning her daughter, who attended school in New Jersey
down to the Board of Elections in New York, using Lyons’ mother's address. (Id. at 9:9–10:24.) She further
they told [him] that [Lyons] took her name off explained that the state was “already familiar with [her]
New York State voting and she just recently put daughter,” and as a result, Lyons believed that “when it came
it back on in June of last year.” (Id. at 33:2– to any dealings with the state,” New Jersey was the better
5.) Plaintiff submitted Lyons’ voter registration option. (Id. at 9:15–19.) Lyons also testified that in June
records, which showed that she registered to vote in of 2018, Plaintiff “filed court papers in New Jersey to take
New York in 2008 and 2017 but registered in New custody of [their] daughter,” Lyons proved that she was a New
Jersey in the interim and is still registered there. York resident, and “the case was then relinquished over to
(New Jersey Voter Registration Records (“New New York.”15 (Id. at 11:12–20.)
Jersey Voter Records”) 51–54, annexed to Pl.’s
Suppl. Submission on Def. Lyons’ Residence as 15 Lyons did not testify about the landlord's action
Ex. C, Docket Entry No. 67; New York Voter
against her in New Jersey or about her alleged use
Registration Records, at 88–91, annexed to Pl.’s
of a post office box as an address.
Suppl. Submission on Def. Lyons’ Residence as
Ex. I, Docket Entry No. 67.) There were no records After the hearings, the parties submitted additional evidence,
of her having voted in New Jersey. (New Jersey including 2018 records from family court proceedings,
Voter Records.) (New Jersey Voter Registration Records (“New Jersey Voter
Records”) 51–54, annexed to Pl.’s Suppl. Submission on
*4 Lyons testified that, beginning at “the end of 2012”
Def. Lyons’ Residence as Ex. C, Docket Entry No. 67),
and ending approximately five years later, she resided at a
which Judge Bulsara considered. Lyons told the Court about a
Staten Island address and “would just go back and forth”
similar lawsuit Plaintiff filed in New York state court. (Letter
between that address and her mother's residence at 119 Ward
dated May 13, 2019, at 4, Docket Entry No. 71.) In response to
Street. (Lyons Tr. 4:13–5:1.) “[A]lmost a year” before the
an order from Judge Bulsara, (see Order dated June 3, 2019),
hearing, she moved from that Staten Island address to another
Plaintiff assured the Court that he wanted to move forward
New York address.14 (Id. at 2:23–4:16.) She has possessed a
with the federal case. (Letter dated June 24, 2019, Docket
New York driver's license ever since she “got [her] license ...
Entry No. 72).
[fifteen], almost [sixteen] years ago.” (Id. at 5:4–13.) She
never considered herself a resident of New Jersey, but used
her mother's New Jersey address as her mailing address until c. The R&R
2018 because Plaintiff was and is “stalking [her]” and she did Judge Bulsara recommended that the Court dismiss the
not feel comfortable disclosing her residence. (Id. at 5:14– case for lack of diversity subject matter jurisdiction because
6:8.) Lyons maintained her mother's apartment in 2016 and Lyons and Plaintiff were domiciled in New York at the
2017 while her mother relocated to Virginia for work. (Id. at time Plaintiff filed the Complaint. (R&R.) As an initial
7:4–12.) She has never voted in New Jersey, but voted in New matter, Judge Bulsara noted that Plaintiff had the burden
York “just this past election” and in 2008, and did not vote of demonstrating complete diversity, and that “[m]uch of
anywhere during the intervening years. (Id. at 7:15–8:13.) Her the evidence submitted — particularly from [Plaintiff] —
car has been registered in her name in New York since 2008 is repetitive and duplicative of the evidence previously
and prior to 2008 was registered in her mother's name. (Id. at submitted,” which had been insufficient then to establish
8:14–23.) diversity jurisdiction. (Id. at 2, 5, 10–11.) He found that
because Lyons had once been a New York domiciliary,
14 Lyons provided both addresses to the Court but Plaintiff needed to show that Lyons intended to change her
the information has been redacted from the public citizenship. (Id. at 6.)
record. (Lyons Tr. 2:22–5:2.)
In evaluating the testimony, Judge Bulsara noted that Lyons’
Judge Bulsara questioned why Lyons had provided a New ties to the 119 Ward Street address, which was her mother's
Jersey address during court proceedings in New Jersey. (Id. home, were “beyond dispute” but “not dispositive of [her]
be “of little use,” and, if anything, undermined Plaintiff's case “action-specific” defect that required dismissal of the entire
because he asserted Lyons’ address did not exist, suggesting case. (Id. at 16–17 (citing Abu Dhabi Com. Bank v. Morgan
that there was no record of her owning property in New Stanley & Co., 921 F. Supp. 2d 158, 162 (S.D.N.Y. 2013)).)
Jersey and “mak[ing] it less likely that Lyons ever intended Therefore, the case could not proceed against Bogle, even
to reside there on a permanent basis.” (Id. at 6.) As to the though she “does not dispute she is a citizen of New Jersey”
tax returns, credit card statements, and other documents all and the damages sought against her satisfied the amount-in-
listing Lyons’ address as 119 Ward Street, Judge Bulsara controversy requirement. (Id. at 16.)
found them to be of “little consequence” because the Court
had considered them in the prior report and recommendation
and concluded that those documents “indicate[d] that the d. Objections to the R&R
address is a temporary, periodic second residence of ... Lyons, Plaintiff objects to the R&R,16 arguing that: (1) Judge
not her primary residence or her domicile.” (Id. at 7–9.) He Bulsara erred in finding that the 119 Ward Street address was
further determined that the documents Plaintiff submitted the home of Lyons’ mother based only on Lyons’ testimony
after the evidentiary hearings, including filings from family and “without any documentation to prove this as fact”; (2)
court proceedings in 2018, were of “little value” because Lyons told the court on May 14, 2018, that she has no
they postdated the filing of the Complaint and were “filled knowledge of her mother or her mother's landlords, who
with contradictory evidence, much of which is repetitive of evicted her mother from 119 Ward Street in 2018; (3) Judge
facts previously submitted or is of little to no assistance in Bulsara erred in accepting Lyons’ stated New York address
establishing the parties’ respective domiciles.” (Id. at 9–10.) as accurate when she had given a different, untruthful address
He determined that some of the documents Plaintiff provided on her driver's license; (4) Lyons bought a house in New
supported the conclusion that Lyons had ties to New York: she Jersey in 2018 and has since used that address; (5) Lyons has
had registered to vote in 2017 with a New York address, has been registered to vote in New Jersey since 2013 and pays
a New York driver's license, and had sought medical care for taxes as a New York nonresident, and Lyons’ pay stubs show
her daughter in Staten Island in 2016 and 2017. (Id. at 10 n.5.) two addresses, one of which is “falsified”; (6) Lyons told the
Court that her address is confidential, but freely gave her New
*5 Judge Bulsara determined that discussions of residence Jersey address in other court proceedings; (7) The New York
in state court proceedings involving Plaintiff and Lyons Administration for Children's Services “found [Lyons] does
mainly concerned their daughter's residence, which was in not live nor reside part time at any location” in New York;17
New Jersey. (Id. at 7.) Judge Bulsara found that the child's (8) Plaintiff is suing Lyons’ mother, but the courts refuse
residence was less probative of Lyons’ domicile than a child's to accept service at “the address”; and (9) in 2018, a court-
residence would usually be because the child lived with her appointed attorney for Plaintiff and Lyons’ child stated that
grandmother in New Jersey, was born in New York, and Lyons was “going state to state saying she lives in the other
sometimes lived with her mother in New York. (Id. at 6–7.) jurisdiction.”18 (Pl.’s Obj. 1–4.) Plaintiff requests a further
In addition, filings from the 2018 proceedings in family court
hearing in which Lyons’ mother and her landlords will testify
postdated the filing of this Complaint and were repetitive or
as to Lyons’ permanent address, and in which he will “get
otherwise unhelpful. (Id. at 9.) Judge Bulsara credited Lyons’
statements from [the New York address] where she claims to
testimony that she did not intend to move permanently to New
have lived.” (Id. at 4.)
Jersey and that her ties to that state “were all based on residing
with her mother.” (Id. at 14–16.) Lyons’ mother no longer
lived in New Jersey, and Lyons no longer maintains ties to 16 Plaintiff has submitted additional papers with his
the state, suggesting that she did not intend to permanently objections. Under Rule 72(b) of the Federal Rules
change her domicile in 2016. (Id. at 15–16.) Given this of Civil Procedure, district courts have discretion
evidence, Judge Bulsara concluded that Plaintiff had not met to, among other things, “receive further evidence”
his burden of showing that Lyons changed her domicile from in considering objections to a magistrate judge's
New York to New Jersey. (Id. at 11, 17.) recommended ruling. Fed. R. Civ. P. 72(b); see also
Kazolias v. IBEW LU 363, 806 F.3d 45, 54 (2d
Judge Bulsara explained that the Court lacked subject matter Cir. 2015) (“[T]he governing statute ... expressly
jurisdiction over the entire action, because a defect in provides that the district court [in reviewing
evidence.’ ” (quoting 28 U.S.C. § 636(b)(1))). In the district court reviews de novo the parts of the report
light of Plaintiff's pro se status, the Court considers and recommendation to which the party objected. Id.; see
the evidence submitted with his objections, which also United States v. Romano, 794 F.3d 317, 340 (2d Cir.
appears to be largely duplicative of previous 2015). The district court may adopt those portions of the
submissions. See Augustin v. Cap. One, No. 14- recommended ruling to which no timely objections have
CV-179, 2015 WL 5664510, at *2 n.2 (E.D.N.Y. been made, provided no clear error is apparent from the face
Sept. 24, 2015) (considering additional evidence of the record. See John Hancock Life Ins. Co. v. Neuman,
submitted with pro se plaintiff's objections to the No. 15-CV-1358, 2015 WL 7459920, at *1 (E.D.N.Y. Nov.
magistrate judge's recommended ruling). 24, 2015) (applying clear error when no objections to the
17 In a report produced by New York child welfare m Tha eg i cst lr ea at re ej ru rd og r e s's t ar ne dp ao rr dt aa ln sd o r ae pc po lm iem s e wn hd ea nti o an pw are tr ye mfil ae kd e) s.
officials in November of 2018, investigators only conclusory or general objections. Fed. R. Civ. P.
found that they could not ascertain Lyons’ 72(b)(2) (“[A] party may serve and file specific written
address because she lived in New Jersey and objections to the [magistrate judge's] proposed findings and
was uncooperative. (Nov. 1, 2018 Ct. Ordered recommendations.”); see also Colvin v. Berryhill, 734 F.
Investigation 71, annexed to Pl.’s Obj. as Ex. O, App'x 756, 758 (2d Cir. 2018) (“Merely referring the court to
Docket Entry No. 75.) previously filed papers or arguments does not constitute an
18 Plaintiff argues that Lyons contradicts herself adequate objection under ...Fed. R. Civ. P. 72(b).” (quoting
Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir.
by claiming that this Court lacks subject matter
2002))); Benitez v. Parmer, 654 F. App'x 502, 503–04 (2d Cir.
jurisdiction even as she brings counterclaims
2016) (holding that “general objection[s] [are] insufficient to
against Plaintiff in this Court. (Pl.’s Obj. 4.)
obtain de novo review by [a] district court”).
Because subject matter jurisdiction is not waivable,
Lyons did not waive defects in subject matter
jurisdiction by asserting counterclaims in her b. Plaintiff has failed to show that in 2018 Lever was
answer. See Lyndonville Sav. Bank & Trust Co. domiciled in New Jersey
v. Lussier, 211 F.3d 697, 700–01 (2d Cir. 2000). Plaintiff has not established by clear and convincing evidence
In addition, based on Judge Bulsara's credibility that Lyons changed her domicile from New York to New
determinations favoring Lyons, Plaintiff co

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10316035. Public record. Not legal advice.