Opposition Brief — Veena Sharma, Petitioner v. Santander Bank

No. 20-980

In the

Supreme Court of the United States

VEENA SHARMA,

Petitioner,

v.

SANTANDER BANK,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of A ppeals for the First Circuit

BRIEF IN OPPOSITION

Patrick S. Tracey

Counsel of Record

Bowditch & Dewey, LLP

101 Federal Street, Suite 1405

Boston, MA 02110

(617) 757-6504

ptracey@bowditch.com

Counsel for Respondent

302358

A

(800) 274-3321 • (800) 359-6859

i

QUESTIONS PRESENTED

1.

Whether Petitioner has presented any compelling

reasons to merit this Court’s review on a writ of

certiorari.

2.

W hether the cour t of appeals committed

reversible error in affirming the district court’s

dismissal of Petitioner’s complaint for failure to

state a claim under 28 U.S.C. § 1915(e)(2) without

issuing a summons to Respondent.

3.

Whether, as a matter of law, Petitioner’s complaint

stated claims against Respondent for which relief

could be granted.

4.

Whether dismissal of Petitioner’s complaint may

have been affirmed on the alternative ground that

her action was frivolous and malicious.

ii

CORPORATE DISCLOSURE STATEMENT

Pursuant to Supreme Court Rule 29.6, Respondent

Santander Bank, N. A . has the follow ing pa rent

corporation(s) and publicly held corporation(s) that own

10% or more of its stock: Santander Bank, N.A. f/k/a

Sovereign Bank, N.A., a national bank, is a wholly owned

subsidiary of Santander Holdings USA, Inc., a Virginia

Corporation. Effective January 30, 2009, Banco Santander

S.A. acquired all of the outstanding common stock of

Sovereign Bancorp, Inc., n/k/a Santander Holdings USA,

Inc. (corporate name change effective February 3, 2010).

iii

RELATED PROCEEDINGS

1.

United States District Court for the District of

Massachusetts, Veena Sharma v. Santander

Bank, No. 1:19-cv-12184-FDS, judgment entered

February 25, 2020.

2.

United States Court of Appeals for the First

Circuit, Veena Sharma v. Santander Bank, No.

20-1317, judgment affirmed September 25, 2020.

iv

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i

CORPORATE DISCLOSURE STATEMENT . . . . . . . ii

RELATED PROCEEDINGS . . . . . . . . . . . . . . . . . . . . iii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . vi

JURISDICTIONAL STATEMENT . . . . . . . . . . . . . . . . 1

STATUTORY PROVISIONS

AND RULES INVOLVED . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 3

A. The State Court Action . . . . . . . . . . . . . . . . . . . . . 3

B. Procedural History of the Present Action . . . . . 4

C. The District Court’s Memorandum and

Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

D. The Court of Appeals’ Judgment . . . . . . . . . . . . . 7

REASONS FOR DENYING CERTIORARI . . . . . . . . 8

A. There Are No Compelling Reasons to

Grant A Petition for Writ of Certiorari . . . . . . . . 8

v

Table of Contents

Page

B. The Court of Appeals Did Not Err in

Affirming the District Court’s Dismissal of

The Action Without Issuing A Summons to

Santander . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

C. The District Court Properly Dismissed the

Action for Failure to State A Claim . . . . . . . . . . 12

1.

The Statute of Limitations Bars

Sharma’s Claims . . . . . . . . . . . . . . . . . . . . . . 13

2.

The Doctrine of Res Judicata Bars

Sharma’s Claims . . . . . . . . . . . . . . . . . . . . . . 15

3.

S h a r m a Fa i le d t o E st abl i s h a

P r ivat e R ight of Ac t ion Under

18 U.S.C. § 656 . . . . . . . . . . . . . . . . . . . . . . . 17

D. Sharma Failed to Plead Fraud w ith

Particularity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

E. T he Cou r t of App ea ls Cou ld Have

Affirmed the Dismissal of the Action

Because It Was Frivolous . . . . . . . . . . . . . . . . . . 20

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

vi

TABLE OF CITED AUTHORITIES

Page

CASES

Abdallah v. Bain Capital LLC,

752 F.3d 114 (1s t Cir. 2014) . . . . . . . . . . . . . . . . . . . . 14

Arroyo-Torres v. Ponce Fed. Bank, F.B.S.,

918 F.2d 276 (1st Cir. 1990) . . . . . . . . . . . . . . . . . . . . 18

Bell Atlantic Corp. v. Twombly,

550 U.S. 544 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Cok v. Cosentino,

876 F.2d 1 (1st Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . 17

Frisby v. Schultz,

487 U.S. 474 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Green v. McKaskle,

788 F.2d 1116 (5th Cir. 1986) . . . . . . . . . . . . . . . . . . . 11

Herman v. Meiselman,

541 F.3d 59 (1st Cir. 2008) . . . . . . . . . . . . . . . . . . . . . 16

Hill v. Didio,

191 F. App’x 13 (2d Cir. 2006) . . . . . . . . . . . . . . . . . . 18

In re Sonus Networks, Inc, S’holder

Derivative Litig.,

499 F.3d 47 (1st Cir. 2007) . . . . . . . . . . . . . . . . . . . . . 16

vii

Cited Authorities

Page

Kale v. Combined Ins. Co. of Am.,

924 F.2d 1161 (1st Cir. 1991) . . . . . . . . . . . . . . . . . . . . 16

Kaufman v. CVS Caremark Corp.,

836 F.3d 88 (1st Cir. 2016) . . . . . . . . . . . . . . . . . . . . . 19

Kersey v. Prudential Ins. Agency,

2017 WL 5162006 (D. Mass. Feb. 3, 2017) . . . . . . . . 13

Lillacalenia v. Kit Fed. Credit Union,

2014 WL 3940289 (W.D. Ky. Aug. 12, 2014) . . . . . . . 18

McDonough v. City of Quincy,

452 F.3d 8 (1st Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . 16

Medina-Padilla v.

U.S. Aviation Underwriters, Inc.,

815 F.3d 83 (1st Cir. 2016) . . . . . . . . . . . . . . . . . . . . . . 15

Mitchell v. Farcass,

112 F.3d 1483 (11th Cir. 1997) . . . . . . . . . . . . . . . . . . 13

Nasuti v. U.S. Sec’y of State John Forbes Kerry,

137 F. Supp. 3d 132 (D. Mass. 2016) . . . . . . . . . . . . . 17

Neitzke v. Williams,

490 U.S. 319 (1989) . . . . . . . . . . . . . . . . . . . . . . . . 12, 20

Ocasio-Hernandez v. Fortuno-Burset,

640 F.3d 1 (1st Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . 13

viii

Cited Authorities

Page

Parklane Hosiery Co. v. Shore,

439 U.S. 322 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Rodriguez-Garcia v. Miranda-Marin

610 F.3d 756 (1st Cir. 2010) . . . . . . . . . . . . . . . . . . . . . 16

RTR Techs., Inc. v. Helming,

815 F. Supp. 2d 411 (D. Mass. 2011) . . . . . . . . . . . . . 14

Rutan v. Republican Party of Illinois,

497 U.S. 62 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Tellabs, Inc. v. Makor Issues & Rights, Ltd.,

551 U.S. 308 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Trans-Spec Truck Serv., Inc. v. Caterpillar Inc.,

524 F.3d 315 (1st Cir. 2008) . . . . . . . . . . . . . . . . . . . . 13

U.S. v. Gen. Motors Corp.,

323 U.S. 373 (1945) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Vinci v. Byers,

65 Mass. App. Ct. 135 (20...05) . . . . . . . . . . . . . . . . . . 14

STATUTES AND RULES

18 U.S.C. § 656 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

18 U.S.C. § 3293 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

28 U.S.C. § 1254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 8

ix

Cited Authorities

Page

28 U.S.C. § 1915(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

28 U.S.C. § 1915(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

28 U.S.C. § 1915(e)(2) . . . . . . . . . . . . . . . . . . . . . . . . passim

Mass. Gen. Laws ch. 260, § 2 . . . . . . . . . . . . . . . . . . . 7, 14

Mass. Gen. Laws ch. 260, § 2A . . . . . . . . . . . . . . . . 4, 7, 14

Mass. Gen. Laws ch. 260, § 4 . . . . . . . . . . . . . . . . . . . . . . 4

Mass. Gen. Laws ch. 260, § 5 . . . . . . . . . . . . . . . . . . . . . 14

Mass. Gen. Laws ch. 260, § 5A . . . . . . . . . . . . . . . . . . . . . 7

Supreme Court Rule 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Supreme Court Rule 10(a) . . . . . . . . . . . . . . . . . . . . . . . . . 1

Supreme Court Rule 14(e) . . . . . . . . . . . . . . . . . . . . . . . . . 8

L.R., D. Mass. 7.1(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Fed. R. Civ. P. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Fed. R. Civ. P. 4(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Fed. R. Civ. P. 9(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Fed. R. Civ. P. 12(b)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

1

JURISDICTIONAL STATEMENT

The United States Court of Appeals for the First

Circuit entered judgment affirming the United States

District Court’s decision dismissing the case sua sponte in

the underlying appellate matter, styled as Veena Sharma

v. Santander Bank, No. 20-1317, on September 25, 2020.

This Court docketed the Petition for Writ of Certiorari

in this matter on January 25, 2021. The jurisdiction of

this Court is presumably invoked under 28 U.S.C. § 1254.

STATUTORY PROVISIONS

AND RULES INVOLVED

1. Supreme Court Rule 10(a):

Review on a writ of certiorari is not a matter

of right, but of judicial discretion. A petition

for a writ of certiorari will be granted only for

compelling reasons. The following, although

neither controlling nor fully measuring the

Court’s discretion, indicate the character of the

reasons the Court considers:

(a) a United States court of appeals

has entered a decision in conf lict

with the decision of another United

States court of appeals on the same

important matter; has decided an

important federal question in a way

that conflicts with a decision by a

state court of last resort; or has so

far departed from the accepted and

usual course of judicial proceedings,

2

or sanctioned such a departure by a

lower court, as to call for an exercise

of this Court’s supervisory power;

...

A petition for a writ of certiorari is rarely

granted when the asserted error consists of

erroneous factual findings or the misapplication

of a properly stated rule of law.

2. 28 U.S.C. § 1915(e)(2):

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—

(A) the allegation of poverty is untrue;

or

(B) the action or appeal—

(i) is frivolous or malicious;

(ii) fails to state a claim on which

relief may be granted; or

(i i i) seeks moneta r y relief

against a defendant who is

immune from such relief.

3

STATEMENT OF THE CASE

A. The State Court Action

As noted by the United States District Court for the

District of Massachusetts in its Memorandum and Order,

dated February 25, 2020 (“USDC Order”), this case

originates from earlier litigation in the Superior Court

of Massachusetts, Essex County (the “Essex Superior

Court”) going back more than a decade. USDC Order, 1-2.

On October 9, 2008, the Trustees of the Andover Gardens

Condominium Trust (the “Trustees”) initiated an action

against Petitioner Veena Sharma (“Sharma”) in the Essex

Superior Court. They obtained a judgment against her for

unpaid common expenses. Id. at 3.

In 2010, the Trustees commenced a second action

against Sharma seeking the appointment of a receiver.

Id. On February 10, 2011, the court appointed Michael

B. Feinman, Esq. as a receiver. Id. On January 26, 2012,

Attorney Feinman filed an Amended Final Account and

Request for Dismissal, which the Essex Superior Court

allowed the following day. Id. at 3-4.

On November 13, 2018, Sharma commenced an action

against the Trustees in Essex Superior Court, styled as

Sharma v. Trustees of Andover Gardens Condo Trust,

1877CV01631 (the “State Court Action”). Id. at 4. Sharma

asserted claims based on the Trustees’ purportedly

unlawful withdrawals of funds from her account located

at Sovereign Bank, which is the name under which

Santander operated at the time. See Complaint, USDC

Case No. 1-19-cv-12184-FDS, Document 1. Her complaint

alleged that she “came to know on June 3, 2011 that

4

Trustees of Andover Garden Condominium Trust has

unlawfully managed to withdraw approximately $192,000

dollars from my accounts at Sovereign Bank and Fidelity

Investments for unpaid condominium fee of approximately

$18,059.33 without my permission.” Id. Sharma demanded

$1,000,000.00 in damages from the Trustees. Id.

On June 11, 2019, the Trustees, represented by

attorney Domenic S. Terranova, moved to dismiss

the State Court Action on the grounds that Sharma’s

claims were time-barred under the applicable statute of

limitations, Massachusetts General Laws chapter 260, §§

2A and 4. USDC Order, 4. Since Sharma had alleged that

she first learned of the purported account withdrawals in

June 2011, yet she failed to bring an action based on those

withdrawals for over seven (7) years until November 2018,

the Essex Superior Court, applying the Massachusetts

three-year tort statute of limitations, dismissed the State

Court Action as time-barred. Id.

B. Procedural History of the Present Action

In October 2019, Sharma commenced the current

action by filing a complaint against Santander in

the United States District Court for the District of

Massachusetts, styled as Veena Sharma v. Santander

Bank, No. 19012184-FDS. USDC Order, 4. Sharma

additionally filed two related proceedings, styled as Veena

Sharma v. Fidelity Investments, No. 19-12186-FDS (the

“Fidelity Case”), and Veena Sharma v. Attorney Domenic

S. Terranova et al., No. 19-12220-FDS (the “Terranova

Case”). Id. at 1-2. In all three actions, Sharma requested

to proceed in forma pauperis. Id. Although neither the

Fidelity Case nor the Terranova Case are part of this

5

appeal, the district court’s Memorandum and Order

addressed the Fidelity and Terranova Cases together with

the present action, dismissing all three for the reasons

stated therein. Id. at 10.

Sharma’s case against Santander, the Fidelity Case,

and the Terranova Case all originated from the same

alleged transactions and occurrences that were the subject

of the State Court Action. According to Sharma, in 2011,

she attempted to withdraw funds from her checking

account at Sovereign Bank and discovered a depleted

checking account containing no funds. Id. at 4. Sharma

stated that she contacted the police and brought the matter

to Sovereign Bank’s attention, but the bank took no action

to investigate the purported theft. Complaint, USDC Case

No. 1-19-cv-12184-FDS, Document 1 (“USDC Complaint”),

at 6. In 2017, Sharma obtained certain documents from

Attorney Feinman, the receiver appointed by the Essex

Superior Court in 2011, that included a copy of a check

issued by Sovereign Bank in the amount of $28,069.09,

payable to Attorney Feinman, presumably relating to

the Trustees’ favorable judgment for unpaid common

expenses and the associated receivership matter in Essex

Superior Court. Id. Additionally, Sharma purportedly

obtained a letter from Attorney Feinman to Sovereign

Bank that she alleges contained “falsified information

and false pretense.” Id. Sharma alleged that Attorney

Feinman and Santander “committed wire and mail fraud

by intercepting my mail to obtain information on my

bank accounts and identity theft.” Id. at 8. She contended

that she is a victim of a criminal act by Santander and

sought relief under 18 U.S.C. § 656, a statute which

provides criminal penalties for theft, embezzlement, or

misapplication of assets by a bank officer or employee. Id.

6

at 3, 8. Sharma sought $10,500,000.00 in damages from

Santander in her district court suit, where she alleged

mail, wire, and bank fraud. Id. at 8.

The district court did not issue a summons to

Santander, yet Santander nevertheless appeared in the

case and filed a motion to dismiss under Fed. R. Civ. P.

12(b)(6) on November 26, 2019. USDC Order, 5. Despite

receiving the appropriate notice and copies of Santander’s

motion to dismiss, Sharma did not reply to Santander’s

motion. Because Sharma moved to proceed in forma

pauperis, the district court exercised its authority

under 28 U.S.C. § 1915(e)(2) to review the Complaint and

determine if the action was malicious, frivolous, sought

damages against a party immune from such relief, or

failed to state a claim upon which relief can be granted.

Id. at 2. For the reasons set forth in the Memorandum and

Order, the district court concluded that Sharma had failed

to state any claims on which relief could be granted. Id.

at 10. It dismissed the action along with the Fidelity and

Terranova Cases. Id.

C. The District Court’s Memorandum and Order

Sharma’s Complaint relied on a federal criminal

statute to support her demand for a money judgment

against Santander. Nevertheless, the district court

concluded that Sharma’s civil claims, however they were

derived from criminal laws, “are sufficiently colorable to

confer federal-question jurisdiction, even if only barely

so.” USDC Order, 9-10.

The district court identified two separate grounds

for dismissing the action. Id. at 9. First, by Sharma’s own

7

admission, she became aware of the alleged theft and/or

missing funds from her Sovereign Bank checking account

at least seven years before bringing the lawsuit. Id. This

fact time barred Sharma’s claims against Santander under

three separate statutory limitations periods: Mass. Gen.

Laws ch. 260, §§ 2A (three-year statute of limitations

for tort claims), 5A (four-year statute of limitations for

consumer protection claims under chapter 93A), and

2 (six-year statute of limitations for breach of contract

claims). Id.

Second, the district court concluded that the doctrine

of claim preclusion, or res judicata, precluded Sharma’s

claims against Santander. Id. Specifically, the court

found that Sharma’s claims against Santander arose

from the allegation that the Trustees stole money from

her account. Id. at 10. These claims were or should have

been raised as part of the State Court Action, which the

state court dismissed by a final judgment on the merits.

Id. Accordingly, the district court dismissed Sharma’s

Complaint for failure to state a claim upon which relief

may be granted. Id.

D. The Court of Appeals’ Judgment

Upon reviewing Sharma’s appeal from the judgment

of the district court, the court of appeals affirmed the

dismissal of her claims against Santander, specifically on

statute of limitations grounds. Judgment, U.S. Court of

Appeals for the First Circuit, Case No. 20-1317, Document

00117647782 (“1st Cir. Judgment”), at 1. It found that

Sharma’s reliance on 18 U.S.C. § 656 was unavailing, since

it is a criminal provision and Sharma “failed to explain how

that provision might create a right of action for a private

8

civil litigant.” Id. Moreover, the court of appeals held

that there was “no error and no abuse of discretion in the

district court’s decision to grant [Santander’s] motion to

dismiss without first sua sponte providing [Sharma] leave

to amend her complaint,” noting that Sharma “did not seek

such leave, despite having been placed on notice of the

purported deficiencies in her complaint via [Santander’s]

motion to dismiss,” and, “[i]n any event, as the claims

were clearly time-barred based on [Sharma’s] own factual

allegations, amendment would have been futile.” Id. at 2.

REASONS FOR DENYING CERTIORARI

A. There Are No Compelling Reasons to Grant A

Petition for Writ of Certiorari

Sharma’s Petition for Writ of Certiorari does not

identify “the statutory provision believed to confer on

this Court jurisdiction to review on a writ of certiorari

the judgment or order in question,” as required under

Supreme Court Rule 14(e). Presumably, she seeks to

invoke jurisdiction under 28 U.S.C. § 1254, which provides

that “[c]ases in the courts of appeals may be reviewed by

the Supreme Court . . . [b]y writ of certiorari granted

upon the petition of any party to any civil or criminal

case, before or after rendition of judgment or decree.”

However, Supreme Court Rule 10 is unambiguous in that

“[r]eview on a writ of certiorari is not a matter of right,

but of judicial discretion,” and that “[a] petition for a writ

of certiorari will be granted only for compelling reasons.”

No such compelling reasons are present here.

As reflected by Supreme Court Rule 10(a), the Court

will only exercise its discretion to review a decision of a

court of appeals in limited circumstances, such as when:

9

a United States court of appeals has entered a

decision in conflict with the decision of another

United States court of appeals on the same

important matter; has decided an important

federal question in a way that conflicts with a

decision by a state court of last resort; or has

so far departed from the accepted and usual

course of judicial proceedings, or sanctioned

such a departure by a lower court, as to call for

an exercise of this Court’s supervisory power.

Additionally, certiorari has been granted where the

questions presented were deemed important or substantial,

see Rutan v. Republican Party of Illinois, 497 U.S. 62,

68, 110 S. Ct. 2729, 2733, 111 L. Ed. 2d 52 (1990); Frisby

v. Schultz, 487 U.S. 474, 479, 108 S. Ct. 2495, 2499, 101

L. Ed. 2d 420 (1988), or where the ruling of the court of

appeals was fundamental to the further conduct of the

case, see U.S. v. Gen. Motors Corp., 323 U.S. 373, 377, 65

S. Ct. 357, 359, 89 L. Ed. 311 (1945).

Sharma has not identified any valid grounds for

issuance of a writ of certiorari, but rather asserts

jurisdiction based on the exact same arguments she

presented to the court of appeals. Specifically, Sharma

argues in her Jurisdictional Statement that the court of

appeals improperly affirmed the district court’s dismissal

of her Complaint “without issuing any summons to

[Santander],” without affording Sharma the opportunity to

provide “additional information,” and prior to scheduling

a hearing or jury trial on the merits of her claims. See

Petition, at 3. Supreme Court Rule 10 plainly states that

“[a] petition for a writ of certiorari is rarely granted when

the asserted error consists of erroneous factual findings or

10

the misapplication of a properly stated rule of law.” That

is precisely the case here. The issues of which Sharma

complains do not evince important, novel issues of law,

nor do they involve recent factual developments. Indeed,

by her own admission, the circumstances underpinning

her claims occurred in and before 2011. See Petition, at 3.

She has persistently engaged in litigation related to those

same claims ever since, to no avail, with both state and

federal courts decisively concluding that her claims are

not viable under any theory of law. In the absence of any

compelling, important, or substantial issues that require

this Court’s review, Sharma is simply not entitled to a

writ of certiorari.

B. The Court of Appeals Did Not Err in Affirming the

District Court’s Dismissal of The Action Without

Issuing A Summons to Santander

Aside from Sharma’s failure to present any sufficient

grounds to invoke this Court’s jurisdiction, the rulings

of the courts below are legally incontrovertible. Sharma

argues that the court of appeals committed reversible

error in affirming the district court’s dismissal of her

case without first: (1) issuing a summons to Santander,

(2) holding a hearing, (3) asking her to “clarify” her

allegations, and (4) submitting her case to a jury. See

Petition, at 1 and 5. Sharma does not cite any legal support

for this position. Other than filing a complaint and seeking

to proceed in forma pauperis, Santander is not aware of

any other conditions that must be met before a district

court can dismiss an action under the in forma pauperis

statute, 28 U.S.C. § 1915(e)(2) (the “IFP Statute”).

11

In this case, because Sharma was proceeding in forma

pauperis, she was not entitled to receive a summons and

serve Santander herself. See 28 U.S.C. § 1915(d) (where

the plaintiff proceeds in forma pauperis, “[t]he officers

of the [district] court shall issue and serve all process,

and perform all duties in such cases.”); Fed. R. Civ. P.

4(c)(3) (providing that only persons appointed by the

district court can effectuate service if the plaintiff is

authorized to proceed in forma pauperis). Furthermore,

the IFP Statute authorizes the district court to review

a complaint prior to ordering service on a defendant in

order to determine whether the action is fit to proceed.

See 28 U.S.C. § 1915(e)(2); Green v. McKaskle, 788 F.2d

1116, 1119 (5th Cir. 1986) (“A district court may dismiss

an IFP proceeding for frivolousness or maliciousness at

any time, before or after service of process and before or

after the defendant’s answer.”).

A civil action is commenced by filing a complaint with

the district court, not issuing a summons to the defendant.

See Fed. R. Civ. P. 3. Once Sharma filed her Complaint and

moved to proceed in forma pauperis, the district court

was empowered to dismiss the Complaint for failure to

state a claim without further process, and the court of

appeals was justified in affirming this final judgment.1

1. As to Sharma’s arguments for a hearing and trial on her

claims, a district court can dismiss an action without a hearing, see

L.R., D. Mass. 7.1(f), and it is axiomatic that claims which do not

pass muster under Federal Rules 8 and 9 cannot proceed to trial.

12

C. The District Court Properly Dismissed the Action

for Failure to State A Claim

The IFP Statute allows any court of the United

States to authorize the commencement of a civil action

without prepayment of fees. See 28 U.S.C. § 1915(a). It also

authorizes the court to dismiss an action that the court

finds “frivolous or malicious.” See 28 U.S.C. § 1915(e)(2)

(B)(i). In 1996, Congress amended the law to additionally

allow the court to dismiss the action “at any time” if it

determines that the action: (1) fails to state a claim on

which relief may be granted; or (2) seeks monetary relief

against a defendant who is immune from such relief. See

28 U.S.C. § 1915(e)(2)(B)(ii) and (iii). As this Court has

recognized, the IFP Statute’s dismissal power:

is designed largely to discourage the filing of,

and waste of judicial and private resources upon,

baseless lawsuits that paying litigants generally

do not initiate because of the costs of bringing

suit and because of the threat of sanctions for

bringing vexatious suits under Federal Rule

of Civil Procedure 11. To this end, the statute

accords judges not only the authority to dismiss

a claim based on an indisputably meritless legal

theory, but also the unusual power to pierce the

veil of the complaint’s factual allegations and

dismiss those claims whose factual contentions

are clearly baseless.

Neitzke v. Williams, 490 U.S. 319, 327, 109 S. Ct. 1827,

1833, 104 L. Ed. 2d 338 (1989).

13

The language of the IFP Statute at section 1915(e)(2)

(B)(ii) tracks the language of Federal Rule 12(b)(6) and

district courts apply the same standard when evaluating

a complaint for failure to state a claim under the IFP

Statute. See Mitchell v. Farcass, 112 F.3d 1483, 1490

(11th Cir. 1997); Kersey v. Prudential Ins. Agency, LLC,

No. CV 15-14186-GAO, 2017 WL 5162006, at *9 (D. Mass.

Feb. 3, 2017). Federal Rule 8(a)(2) requires the complaint

to comprise “a short and plain statement of the claim

showing that the pleader is entitled to relief.” In order to

“show” an entitlement to relief, a complaint must contain

enough factual material “to raise a right to relief above the

speculative level on the assumption that all the allegations

in the complaint are true (even if doubtful in fact).” See

Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12 (1st

Cir. 2011) (quoting Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 555 (2007)).

1.

The Statute of Limitations Bars Sharma’s

Claims

As the district court correctly noted, affirmative

defenses, such as the statute of limitations, may be raised

in a motion to dismiss under Federal Rule 12(b)(6) if the

facts establishing the defense are clear on the face of the

complaint. See Trans-Spec Truck Serv., Inc. v. Caterpillar

Inc., 524 F.3d 315, 320 (1st Cir. 2008).

In this case, even if Sharma could derive common

law claims from Santander’s purported violation of 18

U.S.C. § 656, those claims would be necessarily barred

by the statute of limitations. In her Complaint, Sharma

stated that she first discovered the alleged theft of her

funds in 2011: eight years before filing her lawsuit in 2019.

14

USDC Complaint, 1. As the district court and court of

appeals both concluded, all applicable limitations periods

for any tort expired well before she filed her Complaint.

See Mass. Gen. Laws ch. 260, §§ 2 (providing a six-year

period for actions of contract), 2A (providing a three-year

period after the cause of action accrues for actions of

tort), 5 (providing a two-year period for actions to recover

penalties or forfeitures under penal statutes), and 5A

(providing a four-year period for consumer protection

actions). Moreover, having alleged knowledge of her

injury in 2011, the statute of limitations did not toll. See

Abdallah v. Bain Capital LLC, 752 F.3d 114, 120 (1st Cir.

2014) (“[T]he statute of limitations . . . is not tolled if the

plaintiff has actual knowledge of the facts giving rise to

his cause of action.”); RTR Techs., Inc. v. Helming, 815

F. Supp. 2d 411, 423-24 (D. Mass. 2011) (quoting Vinci

v. Byers, 65 Mass. App. Ct. 135, 837 N.E.2d 1140, 1145

(2005) (“Although the question when the cause of action

accrued typically presents a question of fact, when the

facts regarding discovery of harm are undisputed, the

question may be decided as a matter of law.”).

Anticipating her statute of limitations problem, as she

did in her submission to the court of appeals, Sharma’s

Petition relies on 18 U.S.C. § 3293, which provides: “No

person shall be prosecuted, tried, or punished for a

violation of, or conspiracy to violate . . . section . . . 656 . . .

unless the indictment is returned or the information is filed

within 10 years after the commission of the offense.” See 18

U.S.C. § 3293. As the court of appeals correctly concluded,

this statute imposes a 10-year limitations period on

criminal prosecutions and Sharma “failed to explain how

that provision might create a right of action for a private

civil litigant.” 1st Cir. Judgment, 1. Accordingly, Sharma’s

15

claims, however construed, are barred by the applicable

statutes of limitation.

2.

The Doctrine of Res Judicata Bars Sharma’s

Claims

The doctrine of res judicata provided separate

grounds for the district court’s decision to dismiss

Sharma’s Complaint. An affirmative defense such as res

judicata may support dismissal for failure to state a claim

when the facts establishing the defense are clear on the

face of the plaintiff’s pleadings. See Medina-Padilla v.

U.S. Aviation Underwriters, Inc., 815 F.3d 83, 85 (1st

Cir. 2016).

There are two kinds of res judicata: claim preclusion

and issue preclusion:

As the names suggest, claim preclusion operates

o n t h e l e ve l o f t h e c l a i m , a n d i s s u e

preclusion operates on the level of the issue.

Claim preclusion is based on the idea that the

precluded litigant had the opportunity and

incentive to fully litigate the claim in an earlier

action, so that all matters that were or could

have been adjudicated in the earlier action on

the claim are considered to have been finally

settled by the first judgment. In contrast, issue

preclusion does not reach issues unless they

were actually litigated and decided in the first

litigation; however, it bars relitigation of those

issues even in the context of a suit based on an

entirely different claim.

16

In re Sonus Networks, Inc, S’holder Derivative Litig.,

499 F.3d 47, 56 (1st Cir. 2007) (internal citations omitted).

Claim preclusion exists where there is (1) a final judgment

on the merits in an earlier proceeding, (2) sufficient

identity between the causes of action asserted in the

earlier and later suits, and (3) sufficient identity between

the parties in the two actions. See Kale v. Combined Ins.

Co. of Am., 924 F.2d 1161, 1165 (1st Cir. 1991). The parties

need not be identical so long as the precluded party had a

full and fair opportunity for judicial resolution of the same

issue. See Rodriguez-Garcia v. Miranda-Marin, 610 F.3d

756, 771 (1st Cir. 2010).

In this case, the Essex Superior Court’s dismissal of

the State Court Action constituted a final judgment on

the merits based on the applicable statute of limitations.

The causes of action articulated or implied in the State

Court Action are sufficiently identical to Sharma’s claims

in this case for the purposes of claim preclusion because

they “derive . . . from the same transaction or series

of connected transactions.” See McDonough v. City of

Quincy, 452 F.3d 8, 16 (1st Cir. 2006). Both Sharma’s

lawsuit against the Trustees and the present action

against Santander center on the allegedly unlawful and

unauthorized withdrawal of funds from her bank account.

See Herman v. Meiselman, 541 F.3d 59, 62 (1st Cir.

2008) (“Although a set of facts may give rise to multiple

counts based on different legal theories, if the facts form

a common nucleus that is identifiable as a transaction or

series of related transactions, then those facts represent

one cause of action.”).

As the plaintiff in the State Court Action, Sharma had

a full and fair opportunity for judicial resolution such that

17

she should not be permitted to relitigate identical issues

by “switching adversaries.” See Parklane Hosiery Co. v.

Shore, 439 U.S. 322, 329 (1979). Sharma filed the State

Court Action some seven years after she first learned of

the withdrawal of funds from her account at Sovereign

Bank and one year after she obtained a copy of the check

Santander allegedly issued to Attorney Feinman, which

form the basis of her claim in this case. Accordingly, the

district court validly dismissed this case because the

Essex Superior Court’s final judgment in the State Court

Action precluded Sharma from relitigating identical

claims.

3.

Sharma Failed to Establish a Private Right of

Action Under 18 U.S.C. § 656

As reflected by the court of appeals’ judgment, the

undisputed record supports dismissal on the alternative

ground that Sharma failed to establish a private right of

action against Santander. Sharma argues that Santander

participated in a federal crime to defraud her and steal

her money. See Petition, 3-4. She has sought more than

$10 million in damages from Santander for this alleged

crime. See id. at 4-5. Section 656 is a criminal statute

that punishes bank employees who steal their customers’

funds. 18 U.S.C. § 656. “Generally, a private citizen has no

authority to initiate a federal criminal prosecution.” Cok

v. Cosentino, 876 F.2d 1, 2 (1st Cir. 1989). Sharma had the

burden of showing that this criminal statute creates either

an explicit or implied private right of action. See Nasuti v.

U.S. Sec’y of State John Forbes Kerry, 137 F. Supp. 3d 132,

139 (D. Mass. 2016). The court of appeals held that Sharma

failed to satisfy this burden, as she made no attempt “to

explain how [Section 656] might create a right of action

for a private civil litigant.” 1st Cir. Judgment, 1.

18

In determining whether a private right of action is

implied in a federal statute, the court must focus on the

intent of Congress. See Arroyo-Torres v. Ponce Fed.

Bank, F.B.S., 918 F.2d 276, 278 (1st Cir. 1990). In her

Petition, Sharma relies exclusively on a criminal statute

and has failed to show how the language of the statute, the

statutory structure, or some other congressional purpose

implies a private remedy. See Hill v. Didio, 191 F. App’x

13, 14 (2d Cir. 2006) (“As a general matter, we have long

recognized that crimes are prosecuted by the government,

not by private parties.”). Moreover, even if case law were

to recognize a civil analogue to Section 656, the criminal

statute punishes the conduct of individuals who exploit

their position to steal customer funds. Sharma does not

explain in her Petition how these claims would extend to

an institution like Santander, despite the court of appeals’

instruction that the absence of such an explanation was

fatal to her claims. Accordingly, Sharma failed to establish

a private right of action under 18 U.S.C. § 656 and,

therefore, she failed to state a claim on which relief may

be granted. See Lillacalenia v. Kit Fed. Credit Union, No.

3:14CV-151-H, 2014 WL 3940289, at *2 (W.D. Ky. Aug. 12,

2014) (citing cases holding that there is no private right of

action under 18 U.S.C. § 656).

D. Sharma Failed to Plead Fraud with Particularity

Even if Sharma had an avenue for pursuing claims

against Santander based on events that occurred in 2011,

her Complaint failed to satisfy the pleading standard of

Federal Rule 9(b). Sharma contended that Santander

conspired with Attorney Feinman to defraud her of money

on deposit at the bank. Federal Rule 9(b) requires the

plaintiff to state allegations of fraud with particularity.

19

Rule 9(b)’s heightened pleading requirements exist to

place the defendant on notice and enable it to prepare a

meaningful response, and to safeguard the defendant from

frivolous charges. The circumstances to be stated with

particularity include “the who, what, where, and when of

the allegedly misleading representation.” See Kaufman

v. CVS Caremark Corp., 836 F.3d 88, 91 (1st Cir. 2016).

Sharma’s Complaint contained no such particulars.

In fact, her allegations suggested that Santander (then

doing business as Sovereign Bank) was ignorant of any

wrongdoing. USDC Complaint, 6. According to Sharma,

when she reported the missing funds to a bank manager,

“[t]he manager suggested that I should report the matter

to the police as this was a grand larceny.” Id. Sharma

allegedly discovered a copy of a check that Santander had

issued to Attorney Feinman in the amount of $28,069.09

and a letter “which he [] submitted to Sovereign Bank

with falsified information and false pretense.” Id. These

allegations do not suggest a conspiracy. To the contrary,

they imply that the letter misled Santander into disbursing

funds to Attorney Feinman. See Tellabs, Inc. v. Makor

Issues & Rights, Ltd., 551 U.S. 308, 314, 127 S. Ct. 2499,

2505, 168 L. Ed. 2d 179 (2007) (stating that an adequately

pled allegation of fraudulent intent “must be cogent

and at least as compelling as any opposing inference

of nonfraudulent intent.”). Sharma’s failure to state a

claim against Santander with particularity as required

by Federal Rule 9(b) provided an alternative ground for

affirming the district court’s dismissal.

20

E. The Court of Appeals Could Have Affirmed the

Dismissal of the Action Because It Was Frivolous

Finally, on de novo review, the court of appeals was

permitted to consider the record, including the allegations

set forth in Sharma’s Complaint, and affirm dismissal

because the action was frivolous and malicious. The

term “frivolous,” when applied to a complaint, includes

both inarguable legal conclusions and “fanciful factual

allegation[s].” See Neitzke, 490 U.S. at 325. In this case,

Sharma has sought a money judgment against Santander

based upon a federal criminal law that provides a statutory

fine and imprisonment for individuals who break that law.

Santander is a financial institution and, even if the district

court or the court of appeals had found a civil analogue to

18 U.S.C. § 656, there is no basis for extending liability

to an institution for an individual’s purported crimes.

Furthermore, the Complaint’s conclusory allegations and

the patently unreasonable demand of over $10 million in

damages provided ample support for dismissal on the

additional grounds that Sharma filed a frivolous and

malicious lawsuit against Santander while proceeding in

forma pauperis. See 28 U.S.C. § 1915(e)(2)(B)(i).

21

CONCLUSION

Because Petitioner has failed to present any compelling

reasons for this Court to grant Petitioner’s Petition for

Writ of Certiorari, and the decisions of the courts below

were supported and legally justified, the Petition should

be denied.

Respectfully submitted,

Patrick S. Tracey

Counsel of Record

Bowditch & Dewey, LLP

101 Federal Street, Suite 1405

Boston, MA 02110

(617) 757-6504

ptracey@bowditch.com

Counsel for Respondent

February 24, 2021