Brown v. RXR Soyo Exalta, LLC

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

MARLA McKEIDA BROWN,

Plaintiff,

-against- 1:24-CV-4250 (LTS)

JENNIFER L. ALEXANDER; ALISON

ORDER OF DISMISSAL

LENIHAN, ESQ.; RXR SOYO EXALTA, LLC;

STATE OF NEW YORK,

Defendants.

LAURA TAYLOR SWAIN, Chief United States District Judge:

Plaintiff Marla McKeida Brown, who appears pro se, brings this action asserting claims

under 18 U.S.C. §§ 241 and 242, 42 U.S.C. § 1983, and the Racketeer Influenced and Corrupt

Organizations Act (“RICO”).1 She sues: (1) Jennifer L. Alexander; (2) Alison Lenihan; (3) RXR

SOYO EXALTA, LLC (“RXR”); and (4) the State of New York. Plaintiff seeks damages and

injunctive relief.2 The Court construes Plaintiff’s amended complaint as also asserting claims

under state law. For the reasons set forth below, the Court dismisses this action.

STANDARD OF REVIEW

The Court must dismiss an IFP complaint, or any portion of the complaint, that is

frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary

relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see

Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also

1 Plaintiff’s amended complaint is the operative pleading for this action. (ECF 8.)

2 In an order dated June 10, 2024, the Court denied Plaintiff’s request for preliminary

injunctive relief. (ECF 7.)

dismiss a complaint when the Court lacks subject matter jurisdiction of the claims raised. See

Fed. R. Civ. P. 12(h)(3).

While the law mandates dismissal on any of these grounds, the Court is obliged to

construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret

them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470

F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted, emphasis in

original). But the “special solicitude” in pro se cases, id. at 475 (citation omitted), has its limits –

to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil

Procedure, which requires a complaint to make a short and plain statement showing that the

pleader is entitled to relief.

Rule 8 requires a complaint to include enough facts to state a claim for relief “that is

plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially

plausible if the plaintiff pleads enough factual detail to allow the Court to draw the inference that

the defendant is liable for the alleged misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In

reviewing the complaint, the Court must accept all well-pleaded factual allegations as true. Id.

But it does not have to accept as true “[t]hreadbare recitals of the elements of a cause of action,”

which are essentially just legal conclusions. Id. (citing Twombly, 550 U.S. at 555). After

separating legal conclusions from well-pleaded factual allegations, the Court must determine

whether those facts make it plausible – not merely possible – that the pleader is entitled to relief.

Id. at 679.

BACKGROUND

Plaintiff’s amended complaint is difficult to understand, but Plaintiff seems to allege the

following: As the beneficiary and the executrix of the “Marla Brown Estate Trust, [Plaintiff]

entered into a trust deed agreement with RXR . . . with expressed intent on November 21, 2023,

conveying property addressed 45 Main St. . . . Yonkers, New York . . . for the benefit of

[Plaintiff, such that she would] take possession of the property on December 1, 2023.” (ECF 8, at

5.) RXR, however, “failed to disclose all matters related to the agreement[,] [b]reaching trust and

failing to act in [Plaintiff’s] best interests.” (Id. at 6.) Plaintiff “contacted RXR expressing

concerns about its breach of trust [and] fiduciary duties and seeking an accounting of the account

for [Plaintiff’s] review.” (Id.) RXR, however, “failed to answer or rebut [n]otice.” (Id.) RXR

“continued [to] fail[] to respond or rebut the facts.” (Id.) Plaintiff has “interpret[ed] their [sic]

silence as a[] Respondent’s implicit tacit agreement and acquiescence of the truth of those facts

and acceptance of the settlement.” (Id.) “As a result, [Plaintiff] and [her] Family Estate have

suffered irreparable harm and injury.” (Id.)

DISCUSSION

A. Plaintiff’s claims on behalf of others

To the extent that Plaintiff asserts claims pro se on behalf of others, including members

of her family, a trust, and/or a deceased person’s estate in which she is one of multiple

beneficiaries, the Court must dismiss such claims. The statute governing appearances in federal

court, 28 U.S.C. § 1654, “allow[s] two types of representation: ‘that by an attorney admitted to

the practice of law by a governmental regulatory body, and that by a person representing

[herself].’” Lattanzio v. COMTA, 481 F.3d 137, 139 (2d Cir. 2007) (quoting Eagle Assocs. v.

Bank of Montreal, 926 F.2d 1305, 1308 (2d Cir. 1991)). A nonlawyer cannot bring suit on behalf

of another person or on behalf of an artificial entity, see United States ex rel. Mergent Servs. v.

Flaherty, 540 F.3d 89, 92 (2d Cir. 2008); Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir. 1998);

courts generally do not allow corporations, partnerships, associations, and other artificial entities,

such as trusts, to appear in court without an attorney, see Rowland v. Cal. Men’s Colony, Unit II

Men’s Advisory Council, 506 U.S. 194, 202-03 (1993); Bell v. S. Bay. European Corp., 486 F.

Supp. 2d 257, 259 (S.D.N.Y. 2007) (“A trust is deemed an artificial entity for the purposes of the

rule barring a nonlawyer trustee from representing the interests of the trust.”). In addition, a

nonlawyer beneficiary is not permitted to assert claims on behalf of a deceased person’s estate

pro se when there are other beneficiaries to that estate. Compare Pappas v. Philip Morris, Inc.,

915 F.3d 889, 893 (2d Cir. 2019) (“[W]hen the administrator and sole beneficiary of an estate

with no creditors seeks to appear pro se [in federal court] on behalf of the estate, she is in fact

appearing solely on her own behalf, because she is the only party affected by the disposition of

the suit. Under those circumstances, the assignment of the sole beneficiary’s claims to a paper

entity – the estate – rather than to the beneficiary herself, is only a legal fiction.” (citing Guest v.

Hansen, 603 F.3d 15, 20-21 (2d Cir. 2010) (emphasis added))), with Guest, 603 F.3d at 20

(“Where there are other beneficiaries, ‘an action cannot be described as the litigant’s own,

because the personal interests of the estate, other survivors, and possible creditors . . . will be

affected by the outcome of the proceedings.” (quoting Iannaccone, 142 F.3d at 559 (emphasis

added))).

Plaintiff does not allege that she is an attorney. She seems, however, to assert claims pro

se on behalf of other people, including members of her family, and on behalf of a trust, and/or on

behalf of a deceased person’s estate in which she appears to be one of multiple beneficiaries (the

“Family Estate” (ECF 8, at 6)). Because Plaintiff is not permitted to do so, the Court dismisses

these claims without prejudice.

B. Private prosecution

By citing federal criminal statutes, 18 U.S.C. §§ 241, 242, Plaintiff seems to seek the

federal criminal prosecution of the defendants. If that is the case, the Court must dismiss those

claims for such relief. Plaintiff cannot initiate a criminal prosecution in this court because “the

decision to prosecute is solely within the discretion of the prosecutor.” Leeke v. Timmerman, 454

U.S. 83, 86-87 (1981). Neither Plaintiff nor the Court can direct prosecutors to initiate a criminal

proceeding against anyone because prosecutors possess discretionary authority to bring criminal

actions and they are “immune from control or interference by citizen or court.” Conn. Action

Now, Inc. v. Roberts Plating Co., 457 F.2d 81, 87 (2d Cir. 1972). Accordingly, because Plaintiff

lacks standing to cause the federal criminal prosecution of others, see Linda R.S. v. Richard D.,

410 U.S. 614, 618-19 (1973), the Court dismisses, for lack of subject matter jurisdiction, any

claims in which Plaintiff seeks the federal criminal prosecution of anyone, including the

defendants, see Fed. R. Civ. P. 12(h)(3); Mahon v. Ticor Title Ins. Co., 683 F.3d 59, 62 (2d Cir.

2012) (“If [a] plaintiff[ ] lack[s] Article III standing, a [federal] court has no subject matter

jurisdiction to hear [his] claim.” (internal quotation marks and citation omitted)).

C. Claims under 42 U.S.C. § 1983 and RICO against the State of New York

The Court must dismiss Plaintiff’s claims brought under 42 U.S.C. § 1983 and RICO

against the State of New York. “[A]s a general rule, state governments may not be sued in

federal court unless they have waived their Eleventh Amendment immunity, or unless Congress

has abrogated the states’ Eleventh Amendment immunity. . . .” Gollomp v. Spitzer, 568 F.3d 355,

366 (2d Cir. 2009). “[T]he immunity recognized by the Eleventh Amendment extends beyond

the states themselves to state agents and state instrumentalities that are, effectively, arms of a

state.” Id. (internal quotation marks and citation omitted). This immunity shields States from

claims for money damages, injunctive relief, and retrospective declaratory relief. See Green v.

Mansour, 474 U.S. 64, 72-74 (1985); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,

101-02 (1984).

Congress has not abrogated the States’ immunity from claims under Section 1983 and

RICO, see Dube v. State Univ. of N.Y., 900 F.2d 587, 594 (2d Cir. 1990) (Section 1983); Komatsu

v. City of New York, No. 1:20-CV-6510 (LLS), 2020 WL 8641274, at *3 (S.D.N.Y. Oct. 21, 2020)

(RICO), aff’d sub nom., Komatsu v. Cubesmart, 2021 WL 6060603 (2d Cir. Dec. 20, 2021)

(summary order); Combier v. New York, No. 09-CV-5314 (RJH) (FM), 2010 WL 3785130, at *7

(S.D.N.Y. Aug. 25, 2010) (same), report & recommendation adopted, 2010 WL 3835030

(S.D.N.Y. Oct. 1, 2010), and the State of New York has not waived its immunity to suit in federal

court, see Trotman v. Palisades Interstate Park Comm’n, 557 F.2d 35, 40 (2d Cir. 1977). The

Court therefore dismisses Plaintiff’s claims under Section 1983 and RICO against the State of

New York under the doctrine of Eleventh Amendment immunity, for lack of subject matter

jurisdiction, and for seeking monetary relief from a defendant that is immune from such relief.

See 28 U.S.C. § 1915(e)(2)(B)(iii); Fed. R. Civ. P. 12(h)(3); see Close v. New York, 125 F.3d 31,

38-39 (2d Cir. 1997) (“[U]nless New York waived its immunity, the district court lacked subject

matter jurisdiction.”); Atl. Healthcare Benefits Tr. v. Googins, 2 F.3d 1, 4 (2d Cir. 1993)

(“Although the parties do not address the Eleventh Amendment in their briefs, we raise it sua

sponte because it affects our subject matter jurisdiction.”).

D. Claims under Section 1983 against Alexander, Lenihan, and RXR

The Court must dismiss Plaintiff’s claims under Section 1983 against Alexander,

Lenihan, and RXR. To state a claim under Section 1983, a plaintiff must allege both that: (1) a

right secured by the Constitution or laws of the United States was violated, and (2) the right was

violated by a person acting under the color of state law, or a “state actor.” See West v. Atkins, 487

U.S. 42, 48-49 (1988). “The traditional definition of acting under color of state law requires that

the defendant . . . exercise[ ] power possessed by virtue of state law and made possible only

because the wrongdoer is clothed with the authority of state law.” Id. at 49 (internal quotation

marks and citation omitted). “Because the United States Constitution regulates only the

Government, not private parties, [with respect to a claim brought under Section 1983,] a litigant

claiming that [her] constitutional rights have been violated must first establish that the

challenged conduct constitutes state action.” Flagg v. Yonkers Sav. & Loan Ass’n, 396 F.3d 178,

186 (2d Cir. 2005) (internal quotation marks and citation omitted). Private parties generally are

not state actors, and therefore are not usually liable under Section 1983. Sykes v. Bank of Am.,

723 F.3d 399, 406 (2d Cir. 2013) (quoting Brentwood Acad. v. Tenn. Secondary Sch. Athletic

Ass’n, 531 U.S. 288, 295 (2001)). Absent special circumstances suggesting concerted action

between an attorney and a state representative, see Adickes v. S.H. Kress & Co., 398 U.S. 144,

152 (1970), a private attorney’s legal representation does not constitute state action for the

purpose of stating a claim under Section 1983 against that attorney, regardless of whether that

attorney is privately retained, court-appointed, or employed as a public defender, see Bourdon v.

Loughren, 386 F.3d 88, 90 (2d Cir. 2004) (citing Polk Cnty. v. Dodson, 454 U.S. 312, 318-19

(1981), and Rodriguez v. Weprin, 116 F.3d 62, 65-66 (2d Cir. 1997)); see also Shorter v. Rice,

No. 12-CV-0111, 2012 WL 1340088, at *4 (E.D.N.Y. Apr. 10, 2012) (“[I]t is axiomatic that

neither public defenders, such as Legal Aid attorneys, nor court-appointed counsel, nor private

attorneys, act under the color of state law merely by virtue of their position.”).

Alexander, RXR, and Lenihan, whom Plaintiff alleges is an attorney, all appear to be

private parties, and Plaintiff alleges no facts showing that any of them acted as a state actor with

regard to the alleged violations of Plaintiff’s federally protected rights. Thus, the Court dismisses

Plaintiff’s claims under Section 1983 against those defendants for failure to state a claim on

which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii).

E. Claims under RICO against Alexander, Lenihan, and RXR

Plaintiff seems to attempt to assert claims against Alexander, Lenihan, and RXR under

the civil provision of RICO, which “creates a private right of action for individuals to enforce the

RICO statute.” Mathon v. Feldstein, 303 F. Supp. 2d 317, 322 (E.D.N.Y. 2004). The civil RICO

enforcement provision states that “[a]ny person injured in [her] business or property by reason of

a violation of [18 U.S.C. § 1962] . . . may sue . . . in any appropriate United States district court

and shall recover threefold the damages.” 18 U.S.C. § 1964(c). In order to state a violation of

Section 1962, and thus, a claim under the civil RICO enforcement provision, a plaintiff must

allege facts showing: “(1) that the defendant (2) through the commission of two or more acts

(3) constituting a ‘pattern’ (4) of ‘racketeering activity’ (5) directly or indirectly invests in, or

maintains an interest in, or participates in (6) an ‘enterprise’ (7) the activities of which affect

interstate or foreign commerce.” Moss v. Morgan Stanley, Inc., 719 F.2d 5, 17 (2d Cir. 1983)

(quoting Section 1962(a)-(c)). Such a plaintiff must also “allege that [s]he was ‘injured in [her]

business or property by reason of a violation of section 1962.’” Id. (quoting § 1964(c) (emphasis

in original)).

To state a claim of a civil RICO conspiracy under Section 1962(d), a plaintiff must allege

facts showing that the defendants “agreed to form and associate themselves with a RICO

enterprise and that they agreed to commit two predicate acts in furtherance of a pattern of

racketeering activity in connection with the enterprise.” Cofacredit, S.A. v. Windsor Plumbing

Supply Co., 187 F.3d 229, 244 (2d Cir. 1999). A plaintiff must also show that, “if the agreed

upon predicate acts had been carried out, they would have constituted a pattern of racketeering

activity.” Id. at 244-45.

Civil RICO claims must be brought against a defendant “in the district court of the

United States for any district in which such [defendant] resides, is found, has an agent, or

transacts [his/her/its] affairs.” 18 U.S.C. § 1965(a). Plaintiff does not allege where RXR is found

or has an agent, but she seems to allege that it transacts its affairs within this judicial district; she

does not allege any facts, however, showing that Alexander and Lenihan are found, have an

agent, or transact their affairs within this judicial district. Thus, while this court appears to be a

proper venue for Plaintiff’s claims under RICO against RXR, Plaintiff has not alleged facts

sufficient to show that this court is a proper venue for her claims under RICO against Alexander

and Lenihan.

Notwithstanding whether this court is a proper venue for Plaintiff’s civil claims under

RICO against Alexander, Lenihan, and/or RXR, Plaintiff fails to provide any facts that would

support a civil claim under RICO – either a claim for civil enforcement or one of conspiracy –

against any of those defendants; she alleges nothing that would satisfy the pleading standard for

either type of claim against any of those defendants. Rather, Plaintiff’s claims seem to arise from

a dispute with RXR about real estate located in Yonkers, New York. Thus, the Court dismisses

these claims for failure to state a claim on which relief may be granted. See § 1915(e)(2)(B)(ii).

F. Claims under state law

The Court understands Plaintiff’s claims under state law as brought under the court’s

supplemental jurisdiction. A federal district court may decline to exercise supplemental

jurisdiction of claims under state law when it “has dismissed all claims over which it has original

jurisdiction.” 28 U.S.C. § 1367(c)(3). Generally, “when the federal-law claims have dropped out

of the lawsuit in its early stages and only state-law claims remain, the federal court should

decline the exercise of jurisdiction.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)

(footnote omitted). Having dismissed Plaintiff’s claims of which the Court has original subject

matter jurisdiction, the Court declines to exercise its supplemental jurisdiction of any of

Plaintiff’s claims under state law. See Kolari v. New York-Presbyterian Hosp., 455 F.3d 118, 122

(2d Cir. 2006) (“Subsection (c) of § 1367 ‘confirms the discretionary nature of supplemental

jurisdiction by enumerating the circumstances in which district courts can refuse its exercise.’”

(quoting City of Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156, 173 (1997))).

G. Leave to amend is denied

District courts generally grant a pro se plaintiff an opportunity to amend a complaint to

cure its defects, but leave to amend is not required where it would be futile. See Hill v. Curcione,

657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988).

Because the defects in Plaintiff’s amended complaint cannot be cured with an amendment, the

Court declines to grant Plaintiff leave to file a second amended complaint.

CONCLUSION

The Court dismisses this action for the reasons set forth in this order.

The Court certifies, under 28 U.S.C. § 1915(a)(3), that any appeal from this order would

not be taken in good faith and, therefore, IFP status is denied for the purpose of an appeal. See

Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

The Court directs the Clerk of Court to enter a judgment dismissing this action for the

reason set forth in this order.

SO ORDERED.

Dated: December 10, 2024

New York, New York

/s/ Laura Taylor Swain

LAURA TAYLOR SWAIN

Chief United States District Judge