Petition for Writ of Certiorari — John Hassan, Petitioner v. Lawrence K. Marks, Chief Administrative Judge, et al.
Supreme Court briefOct 8, 2018
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Case 17-3167, Document 118, 09/25/2018, 2396500, Pagel of 1
UNITED STATES COURT OF APPEALS
FOR THE
SECOND CIRCUIT
At a Stated Term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on
the 25th day of September, two thousand and eighteen,
Before:
JOSÉ A. CABRANES,
GE1Iui) E. LYNCH,
Circuit judges,
EDWARD R. KORMAN,
District Juage.*
John Hassan,
ORDER
Docket No. 17-3167
Plaintiff Appellant,
-
I,,
Chief Administrative Judge Lawrence K. Marks,
Supervising Judge Karen Kerr, Holiday Beach Property
Owners Association, Inc.,
Defendants Appellees.
-
Appellant having filed a petition for panel rehearing and the panel that determined the
appeal having considered the request,
IT IS HEREBY ORDERED that the petition is DENTED.
For The Court:
Catherine O'Hagan Wolfe,
Clerk of Court
Judge Edward R. Korman, of the United States District Court for the Eastern District of New York,
sitting by designation.
*
\
71 E
L
se
;!
17-3167
Hassan P. Marks
Filed 10/02/18 Page 1 of 4 PagelD //: 279
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary
order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of
Appellate Procedure 32.1 and this Court's Local Rule 32.1.1. When citing a summary order in
a document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation "summary order"). A party citing a summary order
must serve a copy of it on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 22" day of August, two thousand eighteen.
PRESENT: JOSÉ A. CABRANES,
GERARD E. LYNCH,
Circuit Judges,
EDWARD R. KORMAN,
*
District Judge.
JOHN HASSAN,
17-3167
PIaintiAppe1/ant,
V.
CHIEF ADMINISTRATIVE JUDGE LAWRENCE K.
MARKS, SUPERVTSINGJUDGE KAREN KERR,
HOLIDAY BEACH PROPERTY OWNERS ASSOCIATION,
INC.,
Defendants-Appe/lees.t
Judge Edward R. Korman, of the United States District Court for the Eastern District of New
York, sitting by designation,
t The Clerk of Court is directed to amend the caption as shown above.
I
MANDATE ISSUED ON 10/02/2018
Case 2:16-cv-01653-JMA-SIL Document 34 Filed 10/02/18
Page 2 of 4 PagelD #: 280
John Hassan,pro se, Center Moriches, NY.
FOR PLAINTIFF-APPELLANT:
FOR DEFENDANTS-APPELLEES
Chief Administrative Judge Lawrence
K. Marks and Supervising Judge Karen Kerr:
Barbara D. Underwood, Solicitor General,
Andrew W. Amend, Senior Assistant
Solicitor General, and Mark H. Shawhan,
Assistant Solicitor General ,for Eric T.
Schneiderman, Attorney General, State of
New York, New York, NY.
FOR DEFENDANT-APPELLEE
Holiday Beach Property Owners
Association, Inc.:
Robert L. Folks, Robert L. Folks &
Assocs., LLP, Melville, NY.
Appeal from a judgment of the United States District Court for the Eastern District of New
York Ooan M. Azrack, Judge).
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the September 26, 2017 judgment of the District Court be
and hereby is AFFIRMED.
Plaintiff-Appellant John Hassan ("Hassan"), proceeding pro Se, appeals from a judgment of
the District Court adopting the August 15, 2017 Report and Recommendation of United States
Magistrate Judge Steven I. Locke and dismissing Hassan's complaint in its entirety. Hassan sued
Defendants-Appellees Chief Administrative Judge Lawrence K. Marks and Supervising Judge Karen
Kerr (together, the "State Defendants"), and Holiday Beach Property Owners Association, Inc.
("Holiday Beach"), alleging that the State Defendants and Holiday Beach conspired to deprive him
of easement rights purportedly permitting him to use certain beach-front property. We assume the
parties' familiarity with the underlying facts, the procedural history of the case, and the issues on
appeal.
We review de novo the dismissal of a complaint pursuant to Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6), accepting as true all factual allegations in the complaint and drawing all
reasonable inferences in Hassan's favor. See Lirano P. United States, 690 F.3d 78,84 (2d Cir. 2012)
(Rule 12(b)(1)); Biro v. Conde'Nast, 807 F.3d 541, 544 (2d Cir. 2015) (Rule 12(b)(6)). To survive a
motion to dismiss for failure to state a claim, the complaint must plead "enough facts to state a
claim to relief that is plausible on its face." Bel/Ati. Corp. v. Twomb/y, 550 U.S. 544, 570 (2007); see also
2
Case 2:16-cv-01653-JMA-SIL Document 34 Filed 10/02/18 Page 3 of 4 PagelD //: 281
Ashcivfi P. Iqbal, 556 U.S. 662, 678 (2009). Though we must accept as true Hassan's factual
allegations, we disregard any unadorned "legal conclusions." Iqbal, 556 U.S. at 678.
As a threshold matter, both Holiday Beach and the State Defendants argue that the District
Court lacked subject matter jurisdiction over this action. Holiday Beach contends that the RookerFeldman doctrine precludes consideration of Hassan's claims. See D.C. Court ofAppeals v. Feldman, 460
U.S. 462, 482, 486-87 (1983); Rookery. Fid. Trust Co., 263 U.S. 413, 415-16 (1923). We conclude that
the doctrine does not apply. To the extent Hassan raises issues related to the 1980s litigation in
which he intervened, he Is not a "state-court loer[ ]" for the purposes of the doctrine. See Exxon
Mobil Coip. v. Saudi Basic Indus. Coip., 544 U.S. 280, 284 (2005). Although the state court denied
Hassan's motion for summary judgment in that action, there was no final judgment, and the
litigation was dismissed for failure to prosecute. See Green v. Matting/y, 585 F.3d 97, 102-03 (2d Cir.
2009) (holding that party was not a "state-court loser" for purposes of the Rooker-Feldman doctrine
where state court "proceedings were dismissed without a final order of disposition"). Hassan's
challenge to the 2016 small claims suit is not barred by Rooker-Feldman because the small claims
ruling post-dated the filing of the federal action. See Exxon Mobil Corp., 544 U.S. at 284 (requiring
that state court judgment be "rendered before the district court proceedings commenced").
With respect to the State Defendants, the District Court correctly concluded that Hassan's
claims are barred by the Eleventh Amendment and by the doctrine of judicial immunity. Insofar as
Hassan asserts claims against the State Defendants in their official capacity, the State Defendants are
shielded by sovereign immunity. Gollomp v. Spiter, 568 F.3d 355, 365-68 (2d Cir. 2009) (holding that
the New York Unified Court System is an "arm of the State" and affirming dismissal of § 1983 claim
on sovereign-immunity grounds); In re Deposit Ins. Ageny, 482 F.3d 612, 617 (2d Cu. 2007) (sovereign
immunity protects "a state official acting in his or her official capacity"). And to the extent the
complaint could be construed as asserting individual-capacity claims against the State Defendants,
they are protected by the doctrine of judicial immunity. As the District Court observed, Hassan's
claims arise out of the State Defendants' conduct in their judicial capacity, and Hassan has not
alleged that the State Defendants acted in the clear absence of jurisdiction. See Tucker u. Outwater, 118
F.3d 930, 933 (2d Cir. 1997) (judicial immunity bars claims against judge acting in "judicial capacity"
unless he or she "acted in the clear absence of all jurisdiction").
We also see no error in the District Court's conclusion that the complaint fails to state a
claim. Even construed liberally, the complaint contains no factual allegations supporting Hassan's
assertion that the State Defendants and Holiday Beach conspired to deprive Hassan of his easement
rights—the predicate for Hassan's various claims. Because the "conspiracy allegations are strictly
conclusory," the District Court correctly concluded that Hassan's claims should be dismissed.
Ciambriello P. Cy. of Nassau, 292 F.3d 307, 325 (2d Cir. 2002) (affirming dismissal of 1983
conspiracy claim).
Case 2:16-cv-01653-JMA-SIL Document 34 Piled 10/02/18
Page 4 of 4 PagelD #: 282
We have considered Hassan's remaining arguments and find them to be without merit.
Accordingly, we AFFIRM the judgment of the District Court.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
SECOND
A True Copy
Catherine:O'Hagan
United States Cou1 Ae,\Second Circuit
f( SEÔ?D \
Case 2:16-cv-01653-JMA-SIL Document 30 Filed 09/26/17
Page 1 of 1 PagelD #: 274
FILED
CLERK
9/26/2017 11:23 am
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------X
JOHN HASSAN,
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
Plaintiff,
-
against
JUDGMENT
CV 16-1653 (JMA)(SJL)
-
CHIEF ADMINISTRATIVE JUDGE
LAWRENCE K. MARKS, SUPERVISING
JUDGE KAREN KERR, and HOLIDAY
BEACH PROPERTY OWNERS ASSN, INC.,
Defendants
------------------------------x
An Order of Honorable Joan M. Azrack, United States District Judge, having been filed
on September 25, 2017, adopting the August 15, 2017 Report and Recommendations of United
States Magistrate Judge Arlene R. Lindsay with respect to all arguments except that premised on
the Rooker-Feldman doctrine, dismissing the complaint in its entirety, and directing the Clerk of
Court to close this case, it is
ORDERED AND ADJUDGED that plaintiff John Hassan take nothing of defendants
Chief Administrative Judge Lawrence K. Marks, Supervising Judge Karen Kerr, and Holiday
Beach Property Owners Ass., Inc.; that the complaint is dismissed in its entirety; and that this
case is hereby closed.
Dated: Central Islip, New York
September 26, 2017
DOUGLAS C. PALMER
CLERK OF THE COURT
BY:
Is! JAMES J. ToRwrO
DEPUTY CLERK
I
Case 2:16-cv-01653-JMA-SIL Document 29 Filed 09/25/17 Page 1 of 4 PagelD #: 270
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
x
For Online Publication Only
JOHN HASSAN
Plaintiff,
ORDER
16-cv-1653 (JMA) (SIL)
-against-
CHIEF ADMINISTRATIVE JUDGE
LAWRENCE K. MARKS, SUPERVISING
JUDGE KAREN KERR, and HOLIDAY BEACH
PROPERTY OWNERS ASSN, INC.,
Defendants.
x
FILED
CLERK
9/25/2017 5:25 pm
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
AZRACK, United States District Judge:
Before the Court are p se plaintiff John Hassan's objections to Magistrate Judge
Steven I. Locke's Report and Recommendation dated August 15, 2017 (the "R&R").
Plaintiff has advanced a number of claims against the defendants, all of which arise from
his allegations that the "New York State Courts" have been "colluding" with defendant Holiday
Beach Property Owners Assn., Inc. "to create a private, governmental authority to seize residents'
real estate easements." (See Compl. § 111(B).) Defendants Chief Administrative Judge Lawrence
K. Marks and Supervising Judge Karen Kerr (the "State Defendants") and Holiday Beach Property
(the "Private Defendant") each moved to dismiss plaintiff's complaint in its entirety pursuant to
Rules 12(b)(1), (2), and (6) of the Federal Rules of Civil Procedure. All defendants advanced
arguments premised on the Rooker-Feldman doctrine and the doctrine of Younger abstention. All
defendants also argued that plaintiff has failed to state any claims upon which relief may be
granted: Separately, the State Defendants advanced a number of arguments premised on their
immunity from suit and on the absence of personal jurisdiction due to plaintiff's improper service,
Case 2:16-cv-01653-JMA-SIL Document 29 Piled 09/25/17 Page 2 of 4 PagelD #: 271
and the Private Defendant advanced arguments premised on the doctrine of collateral estoppel and
on timeliness.
In the R&R, Judge Locke recommends granting the pending motions to dismiss on all
proffered grounds. Plaintiff has submitted, ostensibly as an objection, a one-and-a-half page
handwritten letter. The letter does not clearly indicate the portions of R&R to which plaintiff
objects, but the Court discusses the putative objections below
The Court assumes familiarity with the facts underlying this case, which are referenced
only as necessary to explain the Court's decision.
I. STANDARD OF REVIEW
Those portions of a report and recommendation to which there is no specific reasoned
objection are reviewed for clear error. See Pall Corp. v. Entegris, Inc., 249 F.R.D. 48, 51
(E.D.N.Y. 2008).
In reviewing a magistrate judge's report and recommendation, a court must "make
a de novo determination of those portions of the report or
.
.
recommendations to which
objection[s] [are] made." 28 U.S.C. § 636(b)(1); see also Brown v. Ebert, No. 05—CV-5579, 2006
WL 3851152, at *2 (S.D.N.Y. Dec. 29, 2006). The court "may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1).
II. DISCUSSION
Plaintiff appears to object to two aspects of Judge Locke's R&R. First, plaintiff states that
his suit "is directed at the New York State Court System and Lawrence K. Marks and Karen Kerr
as Supervisory Administrative Officers
-
NOT IN ANY JUDICIAL CAPACITY." (Pt's Obj.)
The Court interprets this as an objection to Judge Locke's recommendation that the State
Defendants are immune from suit either due to their judicial immunity or under the Eleventh
Case 2:16-cv-01653-JMA-SIL Document 29 Filed 09/25/17 Page 3 of 4 PagelD #: 272
Amendment. Second, plaintiff claims that the state court "did not conclude or even hold a hearing
before I initiated my action in U.S. District Court," which the Court interprets as an objection to
the application of the Rooker-Feldman doctrine. (P1's Obj.) The Court cannot discern any
additional objections in plaintiff's filings.'
Plaintiff has not objected to Judge Locke's recommendations that the complaint be
dismissed in its entirety (a) under the doctrine of Younger absention and (b) because the plaintiff
has failed to state any claims upon which relief may be granted. Further, plaintiff has not objected
to Judge Locke's recommendation that the complaint be dismissed as against the State Defendants
due to plaintiff's failure to properly serve the complaint on those defendants. Plaintiff has also
failed to object to Judge Locke's recommendations that the complaint be dismissed as against the
•Private Defendant based on the doctrine of collateral estoppel and on timeliness. All of those
recommendations are therefore reviewed for clear error. Having reviewed Judge Locke's thorough
and well-reasoned R&R, the Court finds no clear error and therefore adopts the recommendation
that the complaint should be dismissed for all of the above reasons.
After conducting a de novo review of Judge Locke's recommendation concerning the
applicability of judicial immunity, the Court finds plaintiffs objection to be meritless. Despite
plaintiffs contention that he did not name the State Defendants "in any judicial capacity," his
complaint makes clear that his entire dispute with the State Defendants arises out of their roles in
the earlier state court action. Further, plaintiff has alleged no facts whatsoever suggesting that the
State Defendants acted in the clear absence of jurisdiction. Thus, the Court adopts Judge Locke's
R&R and finds that plaintiffs claims against the State Defendants are also barred by both the
The remainder of plaintiffs objections appear to consist of allegations concerning "felony crimes being committed"
investigate these federal crimes" because to do otherwise "would
and a request that "the U.S. Dept. of Justice
allow these defendants and other similar court systems and persons to burst into a national Holocaust of corruption as
is the organized criminal ways of 100 years ago." (P1's Obj.)
...
Case 2:16-cv-01653-JMA-SIL Document 29 Filed 09/25/17 Page 4 of 4 PagelD #: 273
Eleventh Amendment and by the doctrine ofjudicial immunity. See,
Tucker v. Outwater, 118
F.3d 930, 936 (2d Cir. 1997) (finding that judicial immunity protects a state judge even where she
"may well have acted in excess of her jurisdiction"); McKnight v. Middleton, 699 F. Supp. 2d 507,
521-23 (E.D.N.Y: 2010) (finding that "the New York State Unified Court System is entitled to
sovereign immunity as an 'arm of the State" under the Eleventh Amendment) (quoting Gollomp
v. Spitzer, 568 F.3d 355, 368 (2d Cir. 2009)).
Finally, it is unnecessary for, the Court to address plaintiffs objections
concerning Rooker-Feldman because Judge Locke's other recommendations, which the Court has
already adopted, are sufficient to dismiss the case in its entirety.
For the reasons laid out above, the Court adopts the R&R with respect to all arguments
except that premised on the Rooker-Feldman doctrine and, accordingly, dismisses the complaint
in its entirety. The Court does not reach the question of whether dismissal is also warranted
under Rooker-Feldman. The Clerk of Court is therefore directed to close the case.
SO ORDERED.
Date: September 25, 2017
Central Islip, New York
Is! (JMA)
Joan M. Azrack
United States District Judge
Case 2:16-cv-01653-JMA-SIL Document 26 Filed 08/15/17 Page 1 of 28 PagelD #: 208
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------- x
JOHN HASSAN,
Plaintiff,
-
CHIEF ADMINISTRATIVE JUDGE
LAWRENCE K. MARKS, SUPERVISING
JUDGE KAREN KERR, and HOLIDAY BEACH
PROPERTY OWNERS ASSN, INC.,
aginst-
REPORT AND
RECOMMENDATION
16-CV-1653 (JMA)(SIL)
Defendants.
---------------------------------------------x
LOCKE, Magistrate Judge:
Presently before the Court, on referral from Honorable Joan M. Azrack for
Report and Recommendation, are Defendants' Chief Administrative Judge
Lawrence K. Marks ("Judge Marks") and Supervising Judge Karen Kerr ("Judge
Kerr") (collectively "State Defendants"), and Holiday Beach Property Owner's
Association, Inc. ("Holiday Beach" or "Private Defendant") respective motions to
dismiss pro se Plaintiff John Hassan's ("Hassan" or "Plaintiff") Complaint ("Compl.")
See motion to dismiss ("State Motion"), Docket Entry ("DE") [23]; motion to dismiss
("Holiday Beach Motion"), DE [17]; see also Compl., DE [1]. On April 6, 2016, Plaintiff
commenced the instant action seeking money damages and equitable relief arising
from Defendants' alleged conspiracy to divert property maintenance fees and
interfere with his property easement rights.' See id. On April 12, 2017, Judge Azrack
1
The Court construes the action against the State Defendants as being brought pursuant to
42 U.S.C. § 1983.
1
Case 2:16-cv-01653-JMA-SIL Document 26 Filed 08/15/17 Page 2 of 28 PagelD #: 209
referred these motions to this Court for a Report and Recommendation as to whether
they should be granted. See DE [26]. For the reasons set forth herein, the Court
respectfully recommends that the both motions be granted in their entirety and that
the Complaint be dismissed with prejudice.
I.
STATEMENT OF RELEVANT FACTS
The following facts, set forth in the Complaint and the attached exhibits, are
presumed true for purposes of Defendants' motions.
The gravamen of Plaintiffs claims appears to be that, starting in 1958, the
"New York State Courts" have been "colluding" with Defendant Holiday Beach "to
create a private governmental authority to seize residents' real estate easements."
Compi. at § 111(B). Hassan owns property in Center Moriches, New York, which
abuts certain beach and boating easements that are subject to the control of
Holiday Beach. See id. at § 111(C). In exchange for the payment of membership
dues, Holiday Beach allows homeowners the right to use the easements. See id.
According to Plaintiff, the Private Defendant has illegally diverted these
maintenance fees and interfered with his easement rights. See id.
In October 1987, Hassan intervened in a pending lawsuit filed in Suffolk
County Supreme Court against Holiday Beach and asserted that:
(a) Holiday Beach had no authority to collect membership dues; and (b) that
Holiday Beach should account for all membership dues paid.
See Schrabal v. Holiday Beach Prop. Owners Assn, Inc., 195 A.D.2d 453,
601 N.Y.S.2d 818 (2d Dep't 1993). During the course of litigation, Plaintiff moved
2
Case 2:16-cv-01653-JMA-SIL Document 26 Filed 08/15/17 Page 3 of 28 PagelD #: 210
for summary judgment, which was denied by the Suffolk County Supreme Court,
and that denial was affirmed by the Appellate Division, Second Department.
See id. Eventually, Plaintiff abandoned this action, which was administratively
purged in August 1998. See Docket Report of Schrabal v. Holiday Beach Property,
No. 11573/1987 (Suffolk County Sup. Ct.), DE [18-1]. Holiday Beach subsequently
initiated a lawsuit in Suffolk County District Court against Hassan for unpaid
membership dues. See Compi. at § 111(C). On June 6, 2016, after a hearing, Mr.
Hassan was found liable to the Private Defendant for $1,212.50 in damages. See id.
Plaintiff commenced the instant action seeking, among other things, to "quash [the]
lawsuits filed by [Holiday Beach]," account for payments, and punitive damages.
See id. at § V.
II.
PROCEDURAL HISTORY
As set forth above, Hassan filed his Complaint on April 6, 2016. See DE [1].
The Complaint seeks money damages and equitable relief for: 1) Racketeering; 2)
Extortion; 3) Slander of Title; and 4) Unspecified violations of Article IV, Section 4,
and the Fifth and Fourteenth Amendments of the U.S. Constitution.2 See generally
Compl. In response, on August 19, 2016 and October 21, 2016, the Private and State
Defendants, respectively, moved pursuant to the Federal Rules of Civil Procedure to
dismiss on a variety of grounds, including for a lack of subject matter and personal
2 Plaintiff repeatedly cites "Section 4, Clause 1" without identifying the relevant Article within the
United States Constitution. While Article I, Section 4 of the Constitution discusses the election of
Senators and Representatives, Article IV, Section 1 ensures that states respect and honor the state
laws and court orders of other states. Accordingly, the Court construes Plaintiff's allegation as
invoking Article IV, Section 1 of the Constitution.
3
Case 2:16-cv-01653-JMA-SIL Document 26 Filed 08/15/17
Page 4 of 28 PagelD #: 211
jurisdiction and for failure to state a claim, and on April 6, 2017, Judge Azrack
referred the motions to this Court for Report and Recommendation. See DE [26].
III.
LEGAL STANDARD
A. Fed. R. Civ. P. 12(b)(1)
Pursuant to Article III, Section 2 of the United States Constitution, "the
jurisdiction of the federal courts is limited to 'Cases' and 'Controversies,' which
'restricts the authority of the federal courts to resolving 'the legal rights of litigants
in actual controversies." Amityville Mobile Home Civic Assn v. Town of Babylon, No.
14-CV-2369, 2015 WL 1412655, at *2 (E.D.N.Y. Mar. 26, 2015) (quoting Genesis
Healthcare Corp. v. Symczyk, 569 U.S. 66, 133 S. Ct. 1523, 1528 (2013)). In the
absence of a case or controversy, Fed. R. Civ. P. 12(b)(1) "provides that a party may
move to dismiss a case for lack of subject matter jurisdiction." Amityville Mobile
Home, 2015 WL 1412655, at *3 The Second Circuit has held that, "[t]he hallmark of
a case or controversy is the presence of adverse interests between parties who have a
substantial personal stake in the outcome of the litigation." Evans v. Lynn, 537 F.2d
571, 591 (2d Cir. 1975); see also Ayazi v. N. Y. C. Bd. of Educ., No. 98-CV-7461, 2006
WL 1995134, at *2 (E.D.N.Y. July 14, 2006), vacated on other grounds, 315 Fed.App'x.
313 (2d Cir. 2009) ("Without standing, this court does not have jurisdiction to hear
the claim."). Therefore, to survive a defendant's motion to dismiss for lack of subject
matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1), "a plaintiff must allege facts
'that affirmatively and plausibly suggest that it has standing to sue." Brady v. Basic
11
Case 2:16-cv-01653-JMA-SIL Document 26 Filed 08/15/17 Page 5 of 28 PagelD #: 212
Research, L.L.C., 101 F. Supp. 3d 217, 227 (E.D.N.Y. 2015) (quoting Amidax Trading
Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140, 145 (2d Cir. 2011)).
In deciding a motion to dismiss for lack of subject matter jurisdiction, "a court
must accept as true all material factual allegations in the complaint and refrain from
drawing inferences in favor of the party contesting jurisdiction." U.S. ex rel. Phipps
v. Comprehensive Cmty. Dev. Corp., 152 F. Supp. 2d 443, 449 (S.D.N.Y. 2001).
However, "[w]here subject matter jurisdiction is challenged,
.
.
.
a court may consider
materials outside the pleadings, such as affidavits, documents and testimony." Id.;
see also All. For Envtl. Renewal, Inc. v. Pyramid Crossgates Co., 436 F.3d 82, 89, n. 8
(2d Cir. 2006) ("The presentation of affidavits on a motion under Rule 12(b)(1)
.
does not convert the motion into a motion for summary judgment under Rule 56.")
B. Fed. R. Civ. P. 12(b)(2)
"A plaintiff bears the burden of demonstrating personal jurisdiction over the
person or entity against whom it seeks to bring suit." Penguin Grp. (USA) Inc. v. Am.
Buddha, 609 F.3d 30, 34 (2d Cir. 2010) (citation omitted). Federal Rule of Civil
Procedure 12(b)(2) "permits a defendant to challenge a court's personal jurisdiction
over it prior to the filing of an answer or the commencement of discovery."
A.W.L.I. Group, Inc. v. Amber Freight Shipping Lines, 828 F.Supp.2d 557, 562
(E.D.N.Y .2011). In considering a motion to dismiss for lack of personal jurisdiction,
a court may rely on materials beyond the pleadings. Phillips v. Reed Group, Ltd., 955
F.Supp.2d 201, 225 (S.D.N.Y .2013) (when considering a 12(b)(2) motion, "the Court
may also rely on submitted affidavits and other supporting materials submitted in
Case 2:16-cv-01653-JMA-SIL Document 26 Filed 08/15/17 Page 6 of 28 PagelD #: 213
relation to the motion"). "When responding to a Rule 12(b)(2) motion to dismiss for
lack of personal jurisdiction, the plaintiff bears the burden of establishing that the
court has jurisdiction over the defendant."
Bank Brussels Lambert v. Fiddler
Gonzalez & Rodriguez, 171 F.3d 779, 784 (2d Cir. 1999). Where a court opts to
determine the jurisdictional issue without an evidentiary hearing or discovery, a
plaintiff need "make only a prima facie showing of jurisdiction through its own
affidavits and supporting materials." Marine Midland Bank, N.A. v. Miller, 664 F.2d
899, 904 (2d Cir. 1981). When, however, a court permits the parties to engage in
jurisdictional discovery, the party seeking to establish jurisdiction bears "the burden
of proving by a preponderance of the evidence that personal jurisdiction exists."
Landoil Resources Corp. v. Alexander & Alexander Servs., Inc., 918 F.2d 1039, 1043
(2d Cir. 1991). Undereither scenario, the "pleadings and affidavits are construed in
the light most favorable to the plaintiff, and all doubts are resolved in its favor."
Mazloum v. International Commerce Corp., 829 F.Supp.2d 223, 227 (S.D.N.Y. 2011).
C. Fed. R. Civ. P. 12(b)(6)
To survive a motion to dismiss pursuant to Rule 12(b)(6), a complaint must set
forth "enough facts to state a claim to relief that is plausible on its face." Bell Ati.
Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007). "A claim has facial
plausibility when the plaintiff pleads factual content that allows the Court to draw
the reasonable inference that the defendant is liable for the misconduct alleged."
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009). But, a pleading
"that offers only 'labels and conclusions' or 'a formulaic recitation of the elements of
"I
Case 2:16-cv-01653-JMA-SIL Document 26 Filed 08/15/17 Page 7 of 28 PagelD #: 214
a cause of action will not do." Id. (quoting Twombly, 550 U.S. at 555, 127 S. Ct. at
1965). "Nor does a complaint suffice if it tenders 'naked assertion [s]' devoid of 'further
factual enhancement." Id. (quoting Twombly, 550 U.S. at 557, 127 S. Ct. at 1966).
In reviewing a motion to dismiss, the Court must accept the factual allegations
set forth in the complaint as true and draw all reasonable inferences in favor of the
non-moving party. See LaFaro v. New York Cardiothoracic Grp., PLLC, 570 F.3d 471,
475 (2d Cir. 2009). Where the complaint is filed by a pro se litigant, the Court must
also be careful to "interpret the complaint liberally to raise the strongest claims that
the allegations suggest." Rosen v. N. Shore Tower Apartments, Inc., 11-CV-00752,
2011 WL 2550733, at *2 (E.D.N.Y. June 27, 2011) (citing Cruz v. Gomez, 202 F.3d
593, 597 (2d Cir. 2000)). Notwithstanding, "threadbare recitals of the elements of a
cause of action" that are supported by "conclusory" statements and mere speculation
are inadequate and subject to dismissal. See Chavis v. Chappius, 618 F.3d 162, 170
(2d Cir. 2010) (internal quotation and citation omitted).
In deciding a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the court
may consider:
(1) the factual allegations in the complaint, which are
accepted as true; (2) documents attached to the complaint
as an exhibit or incorporated
by reference; (3) matters
of which judicial notice may be taken; and (4) documents
upon whose terms and effect the complaint relies
heavily, i.e., documents that are "integral" to the
complaint.
.
.
.
Calcutti v. SBU, Inc., 273 F. Supp. 2d 488, 498 (S.D.N.Y. 2003) (internal citation
omitted); see also Miotto v. Yonkers Pub. Sch., 534 F. Supp. 2d 422, 425 (S.D.N.Y.
7
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2008) ("[I]n assessing the legal sufficiency of a claim, the court may consider only the
facts alleged in the complaint, and any document attached as an exhibit to the
complaint or incorporated in it by reference."). The Court is also permitted to "take
judicial notice of documents in the public record, which includes records and reports
of administrative bodies." Vale v. Great Neck Water Pollution Control Dist., 80
F.Supp.3d 426, 433 (E.D.N.Y. 2015) (quoting Volpe v. Nassau County, 915 F.Supp.2d
284, 291 (E.D.N.Y. 2013)).
IV.
DISCUSSION
Applying the standards outlined above, and for the reasons set forth herein,
the Court respectfully recommends that Defendants' motions to dismiss the
Complaint be granted in their entirety. Initially, the Court considers the State and
Private Defendants' argument that the Court lacks jurisdiction to hear this case
under the Rooker-Feldman doctrine and abstain from issuing injunctive relief under
the Younger Doctrine. The Court then examines the remaining arguments contained
in the State and Private Defendants' motions in turn.
A. Rooker-Feldman Doctrine
The Defendants' initial argument is that the Court lacks jurisdiction to hear
this case under the Rooker-Feldman doctrine.
See Rooker v. Fidelity Trust Co.,
263 U.S. 413, 44 S.Ct. 149 (1923) (holding that only the Supreme Court can entertain
a direct appeal from a state court judgment); District of Columbia Court of Appeals v.
Feldman, 460 U.S. 462, 483, n.3, 103 S.Ct. 1303, 1308 (1983) (finding that federal
courts do not have jurisdiction over claims which are "inextricably intertwined" with
Case 2:16-cv-01653-JMA-SIL Document 26 Filed 08/15/17 Page 9 of 28 PagelD #: 216
prior state court determinations). The Rooker-Feldman doctrine "recognizes that
'federal district courts lack jurisdiction over suits that are, in substance, appeals from
state-court judgments."
Alston v. Sebelius, CV 13-4537, 2014 U.S. Dist. LEXIS
123613, at *23*24 (E.D.N.Y. July 31, 2014) (Report and Recommendation), adopted
by 2014 U.S. Dist. LEXIS 122970 (E.D.N.Y. Sept. 2, 2014) (quoting Ho block v. Albany
Cnty. Bd. of Elections, 422 F.3d 77, 84 (2d Cir. 2005)). "Underlying the RookerFeldman doctrine is the principle, expressed by Congress in 28 U.S.C. § 1257, that
within the federal judicial system, only the Supreme Court may review state-court
decisions." Green v. Mattingly, 585 F.3d 97, 101 (2d Cir. 2009) (quoting Ho block, 422
F.3d at 85) (internal citations omitted).
The Second Circuit has identified four requirements that must be met before
the Rooker-Feldman doctrine applies:
First, the federal-court plaintiff must have lost in state
court. Second, the plaintiff must 'complain [] of injuries
caused by [a] state-court judgment[.]' Third, the plaintiff
must 'invite district court review and rejection of [that]
judgment [].' Fourth, the state-court judgment must have
been 'rendered before the district court proceedings
commenced'—i.e., Rooker-Feldman has no application to
federal-court suits proceeding in parallel with ongoing
state-court litigation.
-
-
Hoblock, 422 F.3d at 85 (quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,
544 U.S. 280, 282, 125 S. Ct. 1517, 1521-22 (2005)). This doctrine also prohibits a
district court review of state court judgments to claims that are "inextricably
intertwined" with a state court's determinations. Kropelnicki v. Siegel, 290 F.3d 118,
128 (2d Cir. 2002). A claim is inextricably intertwined with the state court judgment
Case 2:16-cv-01653-JMA-SIL Document 26 Filed 08/15/17 Page 10 of 28 PageD #: 217
if "the federal claim succeeds only to the extent that the state court wrongly decided
the issues before it." Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 14, 25, 107 S. Ct. 1519,
1533 (1987). In addition, a plaintiff cannot circumvent Rooker—Feldman by recasting
his claim as a federal civil rights violation.
See Davidson v. Garry, 956 F.
Supp. 265, 268-69 (E.D.N.Y. 1996).
The Court finds that all four factors compelling the application of the RookerFeldman doctrine, and therefore dismissal of Plaintiffs claims, are present here.
Initially, Hassan's allegations, construed liberally in his favor, essentially challenge
the validity of his unpaid membership dues at issue in Hassan's state court real
property action. In broad terms, Plaintiff claims that "New York State Courts [are]
colluding with Holiday Beach Property Owners Ass'n Inc., to create a governmental
authority to seize residents real estate easements to create [a] commercial marina
and charge residents exorbitant dues[,] penalties and interest[,] and prevent access
to easement [to] real estate beach and boating easements." Compl. § II, B. Plaintiffs
instant claims, therefore, presuppose and hinge entirely upon the allegation that
Holiday Beach was not legally entitled to collect the unpaid membership dues in the
first place. Hassan's claims as to his unpaid membership dues, however, were fully
and fairly litigated in state court and he lost. Moreover, Plaintiff is complaining of
injuries caused by the Suffolk County District Court judgment, namely, money
damages in the amount of $1,212.50 awarded to Holiday Beach. In essence, Hassan
is inviting this Court to review the merits of that judgment insofar as it was
improperly based upon alleged collusion between the New York State Courts and
10
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Holiday Beach. And, upon such review, Plaintiff seeks to have this Court "quash" the
Private Defendant's State Court lawsuit. Finally, it is undisputed that the Suffolk
County District Court action concluded and the judgment was rendered prior to the
commencement of this federal action. As a result, Plaintiffs claims are precluded by
the Rooker-Feldman doctrine and, consequently, this Court lacks subject matter
jurisdiction over them. Accordingly, the Court recommends that Defendants' motion
to dismiss under Fed. R. Civ. P. 12(b)(1) be granted and Hassan's claims be dismissed.
B. Younger Abstention
Alternatively, to the extent Plaintiff seeks to enjoin the state court proceeding,
the Court rejects the claim under Younger v. Harris, 401 U.S. 37, 43-44, 91 S. Ct.
746, 750 (1971). In Younger, the Supreme Court held that federal courts should
abstain from granting injunctive relief against a state criminal prosecution instituted
in good faith unless certain exceptions are met. "Younger is not a jurisdictional bar
based on Article III requirements, but instead a prudential limitation on the court's
exercise of jurisdiction grounded in equitable considerations of comity."
Spargo v. New York State Comm'n on Judicial Conduct, 351 F.3d 65, 74 (2d Cir. 2003)
(internal citations omitted). In Sprint Commc'ns, Inc. v. Jacobs,
U.S.
,
134 S.
Ct. 584, 591-92 (2013), the Supreme Court held that the Younger abstention doctrine
applies only to three classes of state court proceedings: (1) state criminal
prosecutions; (2) civil enforcement proceedings; and (3) civil proceedings that
"implicate a State's interest in enforcing the orders and judgments of its courts."
Id. at 588. Notably; in the "interests of comity and federalism," the Younger
11
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abstention doctrine requires federal courts to abstain from jurisdiction "whenever
federal claims have been or could be presented in ongoing state judicial proceedings
that concern important state interests." Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229,
237-38, 104 S. Ct. 2321, 2327-28 (1984). The Second Circuit has held that "Younger
abstention is appropriate when: 1) there is an ongoing state proceeding; 2) an
important state interest is implicated; and 3) the plaintiff has an avenue open for
review of constitutional claims in the state court." Hansel v. Town Court for the Town
of Springfield, N.Y., 56 F.3d 391, 393 (2d Cir. 1995). Exceptions to Younger
abstention should be made only on a "showing of bad faith, harassment, or.
.
.
other
unusual circumstance." Younger, 401 U.S. at 54, 91 S. Ct. at 755.
All three Younger requirements are met here. As to the first and second
requirements, Hassan cannot contest that enforcement of his Suffolk County District
court action is an ongoing state proceeding, and that the New York State judiciary
has an interest in enforcing its own orders. Finally, the Court presumes that the
state appellate courts provide Plaintiff with an adequate opportunity to raise federal
constitutional claims. See Spargo v. New York State Comm'n on Judicial Conduct,
351 F.3d 65, 77 (2d Cir. 2003) ("[I]n conducting the Younger inquiry, considerations
of comity 'preclude[] any presumption that the state courts will not safeguard federal
constitutional rights."). Again, construed liberally, Plaintiff argues that the alleged
collusion between the Suffolk County District Court and Holiday Beach constitute
bad faith, harassment, or other unusual circumstance that bars the application of the
Younger doctrine. However, "[m]ere conclusory allegations of bias are insufficient to
12
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overcome Younger." Kirschner, 225 F.3d at 234. Moreover, "the genesis of the socalled bad faith exception was in the context of criminal prosecutions," and thus, to
invoke this exception, "a federal plaintiff must show that the state proceeding was
initiated with and is animated by a retaliatory, harassing, or other illegitimate
motive." Diamond "D" Const. Corp. v. McGowan, 282 F.3d 191, 198-199 (2d Cir.
2002). Therefore, Hassan cannot prevail on this exception, as here it was Holiday
Beach, not the State, who initiated the relevant state court proceedings. Plaintiffs
claims of alleged collusion also do not excuse his failure to exhaust his state appellate
remedies. As the Second Circuit has explained:
Fundamental to Younger is the principle that "a party.
must exhaust his state appellate remedies before seeking
relief in the District Court[;]
the considerations of
comity and federalism which underlie Younger permit no
truncation of the exhaustion requirement merely because
the losing party in the state court
believes that his
chances of success on appeal are not auspicious.
.
.
.
.
.
.
Glatzer v. Barone, 394 F. Appx. 763, 765 (2d Cir. 2010) (alterations in original)
(quoting Huffman v. Persue, 420 U.S. 592, 608, 95 S. Ct. 1200, 1210 (1975)).
Accordingly, the Court recommends dismissing Plaintiffs claims for injunctive relief
under the Younger doctrine.
C. Claims Against the State Defendants
In addition to the preceding arguments, the State Defendants make, inter alia,
three arguments in favor of dismissing the Complaint. Initially, the State Defendants
argue that Hassan's claims against Judges Marks and Kerr are immune from suit
based on the Eleventh Amendment and the doctrine of absolute immunity.
13
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Additionally, the State Defendants move to dismiss pursuant to Federal Rule of
Procedure 12(b)(2) due to a lack of personal jurisdiction.
i. Eleventh Amendment Immunity and the State Defendants
Initially, the Court turns to the State Defendants' argument that Plaintiffs
claims, to the extent they are brought against them in their official capacity as judges
representing New York State, are barred by the Eleventh Amendment. As a result,
the Court lacks subject matter jurisdiction over these claims and they should be
dismissed pursuant to Fed. R. Civ. P. 12(b)(1). The Eleventh Amendment bars suits
in federal court by private parties against a state absent consent to suit or in express
statutory waiver of the state's otherwise presumed sovereign immunity
Board of
Trustees of University of Alabama v. Garrett, 531 U.S. 356, 362, 121 S. Ct. 955, 962
(2001) ("The ultimate guarantee of the Eleventh Amendment is that nonconsenting
States may not be sued by private individuals in federal court."). This same immunity
from suit is extended to a state's agencies and departments, including judges,
understanding them to be arms of the state. Puerto Rico Aqueduct & Sewer Auth. v.
Metcalf & Eddy, Inc., 506 U.S. 139, 146, 113 S. Ct. 684, 688 (1993); see also McKnight
v. Middleton, 699 F. Supp, 2d 507, 521-23 (E.D.N.Y. 2010) (dismissing claims asserted
against Kings County family court and family court judge in her official capacity on
sovereign immunity grounds). Thus, a claim that is barred by a state's sovereign
immunity is properly dismissed pursuant to the Eleventh Amendment for a lack of
subject matter jurisdiction. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54,
116 S. Ct. 1114, 1121 (1996) ("For over a century [the Supreme Court has] reaffirmed
that federal jurisdiction over suits against unconsenting States 'was not
II
Case 2:16-cv-01653-JMA-SIL Document 26 Filed 08/15/17 Page 15 of 28 PagelD #: 222
contemplated by the Constitution when establishing the judicial power of the United
States."); see also Bryant v. Steele, 25 F. Supp. 3d 233, 241 (E.D.N.Y. 2014) (citing
Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 252, 131 S. Ct. 1632, 1637
(2011) (noting that "the Eleventh Amendment
...
confirm[s] the structural
understanding that States entered the Union with their sovereign immunity intact,
unlimited by Article Ill's jurisdictional grant")).3 As explained in other decisions of
this Court, the Eleventh Amendment serves to prevent state governments from being
sued in federal court under § 1983. See Willner v. Town of North Hempstead, 977 F.
Supp. 182, 193 (E.D.N.Y. Sept. 11, 1997).
Here, Hassan seeks money damages and injunctive relief against the State
Defendants, both of whom are alleged to be state actors sued in their official
capacities.
See, e.g., Caldwell v. Pesce, 83 F. Supp. 3d 472, 482 (E.D.N.Y. 2015),
aff'd, 639 F. App'x 38 (2d Cir. .2016), cert. denied, 137 S. Ct. 307 (2016), reh'g denied,
137 S. Ct. 587 (2016) (dismissing claims against current state court judges based on
Eleventh Amendment grounds); see also Casaburro v. Giuliani, 986 F.Supp. 176, 182
The Court is mindful that the question of "whether the claim of sovereign immunity [under the
Eleventh Amendment] constitutes a true issue of subject matter jurisdiction or is more appropriately
viewed as an affirmative defense" has not been definitively answered by the Supreme Court or the
Second Circuit. Carver v. Nassau Cty. Interim Fin. Auth., 730 F.3d 150, 156 (2d Cir. 2013) (citing
Wisconsin Dept of Corr. v. Schacht, 524 U.S. 381, 391, 118 S. Ct. 2047, 2053 (1998) (leaving open the
question of whether "Eleventh Amendment immunity is a matter of subject-matter jurisdiction");
Woods v. Rondout Valley Cent. Sch. Dist. Bd. of Educ., 466 F.3d 232, 237-39 (2d Cir. 2006) (holding
that the burden of proof regarding sovereign immunity rests on the party asserting it as is true of
affirmative defenses generally)). However, the Supreme Court repeatedly and recently has discussed
the Eleventh Amendment as a jurisdictional bar and has confirmed that a state's sovereign immunity
conferred by it can be raised for the first time on appeal. See Woods, 466 F.3d at 237-38 (collecting
cases). Both holdings are consistent with the issue being essentially jurisdictional. See id. As the
exact characterization of Eleventh Amendment immunity does not substantively impact this Court's
Report and Recommendation that the Complaint be dismissed, the Court assumes it to be
jurisdictional and does not analyze the issue further.
15
Case 2:16-cv-01653-JMA-SIL Document 26 Filed 08/15/17 Page 16 of 28 PagelD #: 223
(S.D.N.Y. 1997) (granting state court clerk's motion to dismiss official capacity suit
on Eleventh Amendment grounds). Accordingly, Plaintiffs claims are barred by the
Eleventh Amendment and the State Defendants' motion to dismiss on this basis
should also be granted.
ii. Judicial Immunity and the State Defendants
The State Defendants argue in the alternative that, to the extent that Hassan's
claims against them are based on their conduct allegedly committed in their
individual capacities, those claims are barred by the doctrine of absolute judicial
immunity. It is well-established that judges are immune from liability for damages
for acts committed within the scope of their jurisdiction.
See Mireles v. Waco,
502 U.S. 9, 11-12, 112 S. Ct. 286, 288 (1991) (per curiam) (finding that judges have
absolute immunity from suits for damages arising out of judicial acts performed in
their judicial capacities); see also Stump v. Sparkman, 435 U.S. 349, 359, 98 S. Ct.
1099, 1106 (1978); Fields v. Soloff, 920 F.2d 1114, 1119 (2d Cir. 1990). A judge will
not be deprived of this immunity even when the action was taken in error, done
maliciously or was in excess of his authority. See Stump, 435 U.S. at 356-58, 98 S. Ct.
at 1104. This absolute immunity is necessary to permit judges to act independently
and without fear of consequences to themselves. Stump, 435 U.S. at 355, 98 S. Ct. at
1104.
A judge will be denied immunity for money damages where he or she (i) acts
in the clear absence of all jurisdiction and (ii) knew or must have known that he or
she was acting in such a manner.
Tucker v. Outwater, 118 F.3d 930, 936
(2d Cir. 1997). The first element is an "objective" inquiry, i.e., "that no reasonable
16
Case 2:16-cv-01653-JMA-SIL Document 26 Filed 08/15/17 Page 17 of 28 PagelD #: 224
judge would have thought jurisdiction proper." Maestri v. Jut kofsky, 860 F.2d 50, 53
(2d Cir. 1988). The second element is a subjective inquiry as to whether "the judge
whose actions are questioned actually knew or must have known" of the jurisdictional
defect. Id.
The Federal Courts Improvement Act of 1996 also extends judicial immunity
to most actions seeking prospective injunctive relief. Specifically, that law provides
that "in any action brought against a judicial officer for an act or omission taken in
such officer's judicial capacity, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was unavailable."
Federal Courts Improvement Act of 1996, § 309(c), Pub. L. No. 104-317, 110 Stat.
3847,3853 (1996) (amending 42 U.S.C. § 1983); see, e.g., Huminski v. Corsones, 396
F.3d 53, 74 (2d Cir. 2005).
Applying the standards above, to the extent Hassan's claims are brought
against the State Defendants in their individual capacities, they are barred by
judicial immunity. Here, the Suffolk County State Court is clearly vested with
subject matter jurisdiction over Plaintiff's real property case. The underlying State
Court rulings regarding the real property dispute were also well within their
jurisdiction. Therefore, it cannot be said that the Suffolk County District Court acted
in clear absence of its jurisdiction. Moreover, because Hassan does not allege, and
the record does not suggest, that a declaratory decree was violated, absolute judicial
immunity bars injunctive relief. Accordingly, the Court recommends that the State
17
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Defendants' motion to dismiss be granted and that Hassan's claims against them be
dismissed in their entirety
iii. Personal Jurisdiction over State Defendants
The State Defendants also argue that the Court lacks personal jurisdiction
under Fed. R. Civ. P. 12(b)(2) due to inadequate service. "Valid service of process is
an essential element of personal jurisdiction."
Daval Steel Prod. v. M V. Juraj
Dalmatinac, 718 F.Supp. 159, 161 (S.D.N.Y. 1989). Turning to the applicable rules
for service of process, Federal Rule of Civil Procedure 4(e) governs the manner in
which individuals within a judicial district of the United States may be served. See
Fed. R. Civ. P. 4(e). According to this rule, service may be completed by:
following state law for serving a summons in an action
brought in courts of general jurisdiction in the state where
the district court is located or where service is made; or
doing any of the following:
delivering a copy of the summons and of the
complaint to the individual personally;
leaving a copy of each at the individual's dwelling or
usual place of abode with someone of suitable age
and discretion who resides there; or
delivering a copy of each to an agent authorized by
appointment or by law to receive service of process.
Fed. R. Civ. P. 4(e).
As the first subsection of Rule 4(e) incorporates state law, the Court may, in
this case, looks to applicable statute, section 308 of the New York Civil Practice Law
and Rules ("C.P.L.R."). See N.Y. C.P.L.R. § 308. Pursuant to section 308, service
upon an individual may be effectuated by:
Case 2:16-cv-01653-JMA-SIL Document 26 Filed 08/15/17 Page 19 of 28 PagelD #: 226
U delivering the summons within the state to the person
to be served; or
[]delivering the summons within the state to a person of
suitable age and discretion at the actual place of business,
dwelling place or usual place of abode of the person to be
served and by either mailing the summons to the person to
at his or
be served at his or her last known residence or
her actual place of business . . .; [or]
.
.
.
U delivering the summons within the state to the agent
for service of the person to be served . . . ; [or]
where service under paragraphs one and two cannot be
made with due diligence, by affixing the summons to the
door of either the actual place of business, dwelling place
or usual place of abode within the state of the person to be
served and by either mailing the summons to such person
at his or her last known residence or. at his or her actual
place of business . . .; [or]
.
.
in such manner as the court, upon motion without notice,
directs, if service is impracticable under paragraphs one,
two and four of this section.
N.Y. C.P.L.R. § 308; see Allen v. Nassau Cty. Exec. Office, No. CV 09-1520, 2011 WL
1061019, at *5 (E.D.N.Y. Feb. 15, 2011), (Report and Recommendation), adopted sub
nom. Allen v. Suozzi, 2011 WL 1059147 (E.D.N.Y. Mar. 21, 2011) (reciting same
standard). The method of service attempted by plaintiff most resembles that
permitted under § 308(2).
The court finds that Hassan has not complied with the requirements of
§ 308(2). The State Defendants argue that they have not been properly served
with a copy or an original of Plaintiffs Summons and Complaint. As indicated in
Plaintiff's Opposition papers, while he mailed a certified copy of the Summons and
Complaint to the State Defendants' actual place of business, he failed to deliver the
19
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Summons and Complaint to a person of suitable age and discretion at the actual place
of business. See Response in Opposition, DE [24] at 4. Accordingly, as Hassan has
failed to properly serve the State Defendants, this Court lacks personal jurisdiction
over them.
However, Federal Rule of Civil Procedure 4(m) provides, in relevant part, that
"provided that if the plaintiff shows good cause for the failure, the court shall extend
the time for service for an appropriate period." Fed. R. Civ. P. 4(m). Good cause, in
the context of Rule 4(m), is measured against (a) the plaintiffs reasonable efforts to
effect service, and (b) the prejudice to defendant from the delay. See Husowitz v. Am.
Postal Workers Union, 190 F.R.D. 53, 57 (E.D.N.Y. 1999) (internal citations omitted).
Here, Plaintiff did in fact attempt to properly serve Judges Marks and Kerr in a
diligent manner. See Response in Opposition, DE [24] at 4. Initially, Plaintiff mailed
the Summons and Complaint to their place of business, but as described in his
Opposition Papers, was denied entry to deliver the Summons and Complaint at the
State Defendants' actual place of business. See id.
Considering Plaintiff's pro se
status, the Court therefore recommends granting the State Defendants' to dismiss the
Complaint pursuant to Rule 12(b)(2), but without prejudice. Accordingly, the Court
recommends granting the State Defendants' motion to dismiss for lack of personal
jurisdiction, and also allow Hassan to serve his Complaint within 90 days of the
Court's order on the motion to dismiss as may be appropriate if the Court decides not
to dismiss Plaintiff's claims with prejudice.
20
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D. Claims against the Private Defendant
Holiday Beach also moves to dismiss under Fed. R. Civ. P. 12(b)(6). Initially,
the Private Defendant argues for dismissal pursuant to the doctrine of collateral
estoppel. In addition, Holiday Beach argues that Hassan has failed to state a claim
for which relief can be granted. Holiday Beach makes two arguments to this end.
Specifically, Holiday Beach argues that Plaintiffs unspecified constitutional claims:
(a) are untimely; and (b) do not allege facts sufficient to plausibly put forth a valid
cause of action.
i. Collateral Estoppel
The Private Defendant argues that Plaintiffs claims are barred by the doctrine
of collateral estoppel. The doctrine of collateral estoppel prevents a party from relitigating an issue of fact or law that has been decided in an earlier suit. See Wilder
v. Thomas, 854 F.2d 605, 616 (2d Cir. 1988), cert. denied, 489 U.S. 1053, 109 S.Ct.
1314 (1989). Federal courts are required by 28 U.S.C. § 1738 to give effect to
collateral estoppel rules of the state that rendered a prior judgment where the same
issues are later raised in a federal proceeding. Id. (citing Migra v. Warren City School
Dist. Bd. of Educ., 465 U.S. 75, 81, 104 S.Ct. 892, 896 (1984)). Under New York law,
there are two requirements for collateral estoppel: (1) an identity of issues that were
necessarily decided in the previous action and are decisive in the present action; and
(2) a full and fair opportunity to contest the decision now said to be controlling.
See Schwartz v. Pub. Adm'r of Bronx, 24 N.Y.2d 65, 73, 298 N.Y.S.2d 955, 961 (1969).
New York courts adhere to a broad transactional analysis "barring a later claim
arising out of the same factual grouping as an earlier litigated claim even if the later
21
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claim is based on different legal theories or seeks dissimilar or additional relief."
Niles v. Wilshire I nv. Grp., LLC, 859 F. Supp. 2d 308, 338 (E.D.N.Y. 2012) (internal
citations omitted).
"Under collateral estoppel, once an issue is actually and
necessarily determined by a court of competent jurisdiction, that determination is
conclusive in subsequent suits based on a different cause of action involving a party
to the prior litigation." Montana v. U.S., 440 U.S. 147, 153, 99 S. Ct. 970, 973, (1979).
"What matters for collateral estoppel purposes is that the issues are identical, not the
claims themselves."
Cerny v. Rayburn, 972 F.Supp.2d 308, 317 (E.D.N.Y. 2013)
(internal citations omitted). In determining whether a party had a full and fair
opportunity to litigate the issue, New York courts direct that "the various elements
which make up the realities of litigation should be explored, including the size of the
claim, the forum of the prior litigation, the use of initiative, the extent of the
litigation, the competence and experience of counsel, the availability of new evidence,
indications of a compromise verdict, differences in the applicable law and
foreseeability of future litigation." Kosakow v. New Rochelle Radiology Assocs., P.C.,
274 F.3d 706, 734 (2d Cir. 2001) (quoting Schwartz, 24 N.Y.2d at 72, 298 N.Y.5.2d at
961) (internal punctuation omitted).
Here, Hassan raises issues regarding his property maintenance fees and
easements right that were that were previously decided in the prior state court
actions and are decisive in the present litigation. As described above, Holiday Beach's
previous action asserts claims premised upon the issue of whether the Private
Defendant may collect property maintenance fees based on asserted easement rights.
22
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This is precisely the underlying issue Plaintiff seeks to litigate here. Thus, the Court
would be unable to grant Plaintiff relief on any of his asserted causes of action, which
emanate from his property dispute, without making findings directly contrary to
those made in the previous state court proceedings. See LaFleur v. Whitman, 300
F.3d 256, 273 (2d Cir.2002) (concluding that issues raised by petitioner in federal
action were identical to issues raised in the state court action because the court could
not grant the requested relief "without directly contradicting the state court on issues
it has previously decided.") Accordingly, the Court concludes that Holiday Beach has
established an identity of issues for purposes of collateral estoppel.
Plaintiff also had a full and fair opportunity to contest the previous decisions.
In looking at Hassan's Suffolk County District Court proceedings, they demonstrate
that he fully participated in the hearing and ultimately lost.
See Response in
Opposition, DE [24] at 4. Additionally, Plaintiff also had a full and fair opportunity
to contest these issues in Suffolk County Supreme Court and abandoned his claims
after several unfavorable decisions. Accordingly, Hassan has received a full and fair
opportunity to contest the prior decision. As a result, Plaintiff is collaterally estopped
from re-litigating issues stemming from his underlying property dispute in the
instant action and the Private Defendant's motion to dismiss should be granted under
the doctrine of collateral estoppel.
ii. Hassan's Constitutional Claims
This Court further finds that all of Hassan's constitutional claims fail as they
are untimely, and in the alternative, fail to state a claim upon which relief can be
23
Case 2:16-cv-01653-JMA-SIL Document 26 Filed 08/15/17 Page 24 of 28 PagelD #: 231
granted.4 Plaintiff advances several claims arising under the United States
Constitution, including unspecified violations of Article IV, Section 4, and the Fifth
and Fourteenth Amendments that date back to 1958. Initially, Holiday Beach moves
to dismiss Plaintiff's claims on timeliness grounds. Where Congress has not provided
a specific statute of limitations period for a federal cause of action, "the applicable
limitations period
.
.
.
is that specified in the most nearly analogous limitations
statute of the forum state." Muto v. CBS Corp., 668 F.3d 53, 57 (2d Cir. 2012)
(internal quotations omitted). New York State has a three-year statute of limitations
governing such claims. See CPLR § 214(5). A federal claim accrues when the plaintiff
"knows or has reason to know of the injury that is the basis of the action." M.D. v.
Southington Bd. of Educ., 334 F.3d 217, 221 (2d Cir. 2003). Here, Hassan complains
of alleged collusion to interfere with his real estate easements that date back to 1958.
Moreover, Hassan's prior involvement with state court proceedings demonstrate that
he knew or had reason to know of his injury in 1987. See Schrabal, 195 A.D.2d at
453, 601 N.Y.S.2d at 818. Therefore, to the extent that Plaintiff knew or had reason
to know of his injury, his three-year limitations period began no later than October.
1987, and ended in October 1990. Accordingly, because the Complaint was filed on
April 6, 2016, over sixteen years later, Plaintiff's federal claims are untimely and
should be dismissed.
The Court notes that, if the claims against the County Defendants are not dismissed on
Rooker-Feldman, Younger, Eleventh Amendment or judicial immunity grounds, they should also be
deemed untimely and failing to state a claim upon which relief can be granted, and therefore,
dismissed on these additional alternate bases.
'
Case 2:16-cv-01653-JMA-SIL Document 26 Filed 08/15/17 Page 25 of 28 PagelD #: 232
Alternatively, Plaintiffs Complaint also fails to plausibly state a cause of
action. While a pro se complaint must be construed liberally, see Hill v. Curcione, 657
F.3d 116, 122 (2d Cir. 2001), it must still plausibly state a claim for relief. See Harris
v. Mills, 572 F.3d 66, 73 (2d Cir. 2009). Initially, the Court is unable to discern any
relation between Plaintiffs invocation of Article IV, Section 1 of the Constitution and
any of his factual allegations. Moreover, to the extent that Hassan's Fifth
Amendment claims are based on alleged Takings and Due Process Clause violations,
they fail because he does not allege a specific state action. See Story v. Green, 978
F.2d 60, 62 (2d Cir. 1992) ("To state a claim either the Due Process Clause or the
Takings Clause, plaintiffs [are] required to allege facts showing that state action
deprived them of a protected liberty interest."). To the extent that Hassan's
Fourteenth Amendment claims are based on alleged Equal Protection Clause
violations, they similarly fail as he alleges that all property owners subject to the
authority of Holiday Beach were treated similarly. Finally, Hassan's Complaint
alleges no underlying facts to support his allegations of a conspiratorial or collusive
scheme. Accordingly, Holiday Beach's motion to dismiss should also be granted on
both timeliness grounds and for failure to state a cause of action.
E. Supplemental Jurisdiction Over State-Law Claims
Having recommended that each of Plaintiffs federal claims be dismissed, the
Court further recommends that the Court decline to exercise supplemental
jurisdiction over any remaining state law causes of action. See Quiroz v. U.S. Bank
Nat'l Ass'n, No. 10-CV-2485, 2011 WL 2471733, at *8 (E.D.N.Y. May 16, 2011)
25
Case 2:16-cv-0653-JMA-SIL Document 26 Filed 08/15/17 Page 26 of 28 PagelD #: 233
(recommending that the district court decline to exercise supplemental jurisdiction)
(Report and Recommendation), adopted by, 2011 WL 3471497 (E.D.N.Y. Aug. 5,
2011). Supplemental jurisdiction over Plaintiffs state-law claims is governed by
28 U.S.C. § 1367, which provides that, "in any civil action of which the district courts
have original jurisdiction, the district courts shall have supplemental jurisdiction
over all other claims that are so related to claims in the action within such original
jurisdiction that they form part of the same case or controversy
.
.
.
"
28 U.S.C.
§ 1367(a). However, a district court may decline to exercise supplemental jurisdiction
where, as here, all claims over which it had original jurisdiction have been dismissed.
28 U.S.C. § 1367(c). When such circumstances arise prior to the commencement of
trial, Second Circuit precedent consistently recognizes that, "the balance of factors to
be considered," which includes "judicial economy, convenience, fairness and comity,"
"will point toward declining to exercise jurisdiction over the remaining state-law
claims." Valencia v. Lee, 316 F.3d 299, 305 (2d Cir. 2003).
Defendants' filed their Rule 12 motions to dismiss the Complaint in lieu of an
Answer. See DE [17], [23]. Thus, this litigation is still in its initial stages and no
discovery has taken place. Accordingly, the Court respectfully recommends that
the Defendants' motion to dismiss be granted as to Plaintiffs federal claims and
the District Court decline to exercise supplemental jurisdiction over Hassan's statelaw causes of action. See Quiroz, 2011 WL 2471733, at *8 (recommending that the
district court decline to exercise supplemental jurisdiction over state law claim once
federal claims were dismissed).
26
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F. Leave to File an Amended Complaint
While leave to amend a complaint should be freely given "when justice so
requires," Fed. R. Civ. P. 15(a)(2), it is "within the sound discretion of the district
court to grant or deny leave to amend." McCarthy v. Dun & Bradstreet Corp., 482
F.3d 184, 200 (2d Cir. 2007). However, the court must be mindful of the unique
context of a pro se complaint and "should not dismiss without granting leave to amend
at least once when a liberal reading of the complaint gives any indication that a valid
claim might be stated." Aquino v. Prudential Life & Cas. Ins. Co., 419 F. Supp. 2d
259, 278 (E.D.N.Y. 2005); see also Thompson v. Carter, 284 F.3d 411, 419 (2d Cir.
2002) ("The liberal pleading standards applicable to pro se civil rights complaints in
this circuit require that the district court give [plaintiff] an opportunity to flesh out
his somewhat skeletal complaints before dismissing them"). Nevertheless, "a district
court may deny leave to amend when, as here, amendment would be futile because
the problem with the claim 'is substantive
...
[and] better pleading will not cure it."
Reynolds v. City of Mount Vernon, 14-CV-1481, 2015 WL 1514894, at *5
(S.D.N.Y. Apr. 1, 2015) (quoting Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)).
Despite the leniency afforded Plaintiff considering his pro se status, the Court
finds that the deficiencies in his pleadings are substantive and, due to the untenable
and untimely nature of his claims, any subsequent amendments would be futile.
Additionally, in his opposition Hassan has not requested permission to file an
amended complaint, nor has he "given any indication that he is in possession of facts
that would cure the problems identified in this opinion." Clark v. Kitt, 12-CV-8061,
27
Case 2:16-cv-01653-JMA-SIL Document 26 Filed 08/15/17 Page 28 of 28 PagelD #: 235
2014 WL 4054284, at *15 (S.D.N.Y. Aug. 15, 2014). Accordingly, as the facts present
in the pleadings "gives no indication that a valid claim may be stated," the Court
respectfully recommends that Plaintiff not be granted leave to amend. See Flaherty
v. All Hampton Limousine, Inc., 02-CV-4801, 2008 WL 2788171, at *8 (E.D.N.Y. July
16, 2008).
CONCLUSION
Accordingly, based on the foregoing, the Court respectfully recommends that
the District Court grant the State and Private Defendants' motions to dismiss the
Complaint for lack of subject matter jurisdiction and for failure to state a claim in
their entirety and with prejudice.
OBJECTIONS
A copy of this Report and Recommendation is being served on Defendants by
electronic filing on the date below. Defendants are directed to serve a copy of this
Report and Recommendation on Plaintiff and promptly file proof of service by ECF.
Any objections to this Report and Recommendation must be filed with the Clerk of
the Court within fourteen (14) days of receipt of this report. Failure to file objections
within the specified time waives the right to appeal the District Court's order. See 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a); Ferrer v. Woliver, 05-3696, 2008 WL 4951035,
at *2 (2d Cir. Nov. 20, 2008); Beverly v. Walker, 118 F.3d 900, 902 (2d Cir. 1997);
Savoie v. Merchants Bank, 84 F.3d 52, 60 (2d Cir. 1996).
Dated: Central Islip, New York
August 15, 2017
Is! Steven I. Locke
STEVEN I. LOCKE
United States Magistrate Judge
Additional material
from this filing is
Is
available in the
Clerk's Office.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.