Petition for Writ of Certiorari — Yan Ping Xu, Petitioner v. Suffolk County, New York, et al.

la

APP-A

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 19th day of

November, two thousand twenty-one

Yan Ping Xu,

Plaintiff - Appellant,

v.

ORDER

Docket No: 20-2326

Suffolk County, Suffolk County

Sheriffs Office, Errol D. Toulon, Jr.,

Christopher Guercio,

Mccoyd, Parkas & Ronan LLp,

Bill P. Parkas, Raymond E. Van’Zwienen,

Stacey Mcgovern, Peter Kirwin,

Sue Desena, Bridgette Sedenfelder,

Defendants - Appellees.

Appellant, Yan Ping Xu, filed a motion for

panel reconsideration, or, in the alternative, for

reconsideration en banc. The panel that determined

the appeal has considered the request for

reconsideration, and the active members of the

Court

have

considered

the

request

for

reconsideration en banc.

IT IS HEREBY ORDERED that the motion is

denied.

FOR THE COURT:

s/ Catherine O’Hagan Wolfe, Clerk

2a

APP-B

E.D.N.Y. - C. Islip

19-cv-1362

Azrack, J.

Lindsay, M.J.

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 2nd day of

September, two thousand twenty-one.

Present:

John M. Walker, Jr.,

Guido Calabresi,

Steven J. Menashi,

Circuit Judges.

Yan Ping Xu,

Plaintiff-Appellant,

v.

Suffolk County, et al.,

20-2326

Defendants-Appellees.

Appellant, pro se, moves to stay the cancellation of

the “lis penden[s] pending appeal,” “for leave to file

an oversized reply brief,” and “for hard copies of

[Appellees’] brief and supplemental appendix.”

Upon due consideration, it is hereby ORDERED that

the motions are DENIED and the appeal is

DISMISSED because it “lacks an arguable basis

either in law or in fact.” Neitzke v. Williams, 490

U.S. 319, 325 (1989); see also 28 U.S.C. § 1915(e).

FOR THE COURT:

s/ Catherine O’Hagan Wolfe, Clerk of Court

3a

APP-C

YANPING XU, Plaintiff,

v.

SUFFOLK COUNTY, SUFFOLK COUNTY

SHERIFF OFFICE, ERROL D. TOULON, JR.,

CHRISTOPHER GUERCIO, McCOYD PARKAS

& RONAN LLP, BILL P. PARKAS, ESQ.,

RAYMOND E. VAN ZWIENEN, STACEY

McGovern, peter kirwin, sue desena,

BRIDGETTE SEDENFELDER, Defendants.

No. 19-CV-1362(JMA)(ARL).

United States District Court, E.D. New York.

July 14, 2020.

MEMORANDUM & ORDER*

AZRACK. United States District Judge:

*1 Before the Court are the defendants’ motions to

dismiss the amended complaint filed by oro se

plaintiff Yanping Xu (“Plaintiff’). For the reasons

that follow, the amended complaint is dismissed in

its entirety without prejudice for lack of subject

matter jurisdiction pursuant to Federal Rules of

Civil Procedure 12(b)(1) and 12(h)(3).

I. BACKGROUND

A. Procedural History

On March 8, 2019, Plaintiff commenced this action

against Suffolk County, the Sheriff’s] Department

(Office)

of Suffolk

County

(the

“Sheriffs

Department”), Suffolk County Sheriff Errol D.

Toulon, Jr. (“Sheriff Toulon”), John Does 1-6,

McCoyd Parkas & Ronan LLP (“MPR LLP”), Bill P.

Parkas, Esq. (“Parkas”), and Raymond E. Van

Zwienen (‘Van Zwienen”) (collectively, the “Original

Defendants”) alleging, inter alia, a deprivation of her

Constitutional rights with regard to her eviction

from the premises known as 12 Mallar Avenue, Bay

Shore, New York. (ECF No. 1.) The named Original

4a

Defendants each requested a pre-motion conference

in anticipation of filing a motion to dismiss the

complaint and Plaintiff responded to those requests.

(ECF Nos. 18, 20, 24, 29, and 31.) By Electronic

Order dated August 12, 2019, the Court waived its

pre-motion conference requirement and set a

briefing schedule for the motions to dismiss. After

receiving the moving papers from some of the

Original Defendants, Plaintiff sought leave to file an

amended complaint. (ECF No. 47.)

By Order dated November 15, 2019, the Court

granted Plaintiffs application and deemed the

amended complaint to be the operative pleading.

(ECF Nos. 47-1, 48) The amended complaint

continued to name the Original Defendants but

replaced the “John Does” with the following

individuals, all of whom are employed by the Suffolk

County Sheriffs Department: Captain Christopher

Guercio (“Guercio”), and Deputy Sheriffs Stacey

McGovern (“McGovern”), Peter Kirwin (“Kirwin”),

Sue Desena (“Desena”), and Bridgette Sedenfelder

(“Sedenfelder”) (collectively with the named Original

Defendants, “Defendants”) (ECF Nos. 47-1, 49.) The

Court also modified the briefing schedule to allow

the Defendants who had already served their motion

to serve supplemental briefs and to allow Plaintiff to

file opposition papers. (ECF No. 48.) The newlyadded defendants also sought leave to move to

dismiss and requested a briefing schedule (ECF No.

58), which the Court set.

B. Plaintiffs Allegations and the Underlying

Litigation in State Court

The following facts are taken from the amended

complaint and judicially noticed records of related

state court proceedings. See Blue Tree Hill Inv.

(Can.) Ltd, v. Starwood Hotels & Resorts Worldwide.

Inc.. 369 F.3d 212. 217 (2d Cir. 2004) (taking judicial

notice of state court records).

5a

This action arises from the eviction of Plaintiff from

the premises known as 12 Mallar Avenue, Bay

Shore, New York (the “Subject Premises”). (Am.

Compl., generally, and 1.) Plaintiff alleges that she

is of “Chinese national origin” and resided at the

subject premises beginning in 2001 following her

marriage to William H. Van Zwienen (“William” or

“decedent”) who owned the subject premises prior to

the marriage. (Id. H 1-2.) William died on September

29, 2016. (Id)

*2 According to the complaint, William “settled [the

Subject Premises] in his revocable trust in 2008.” (Id.

1.) The William H. Van Zwienen Revocable Trust

(the “Trust”), dated July 15, 2008, was funded with

the subject premises and named Plaintiff as the

beneficiary of the Trust. However, the Trust was

subsequently amended on December 16, 2013 (“First

Amendment”) and on October 17, 2014 (“Second

Amendment”). (Id. f 28; Decision & Order dated

April 5, 2018, Surrogate's Court, Suffolk County at

1-2 (the “April Order”, ECF No. 73-6.)) The First

Amendment removed Plaintiff as a beneficiary

entirely and left the Trust property equally to

William's four adult children from a previous

marriage. (See April Order at 1, ECF No. 73-6.) The

Second Amendment permitted Plaintiff to reside at

the subject premises for six (6) months after

William's death, after which the subject premises

was to be sold with the proceeds equally distributed

among Plaintiff and William's four children. (Id. at

1-2, ECF No. 73-6.) Thus, under the terms of the

amended Trust, Plaintiffs possessory right to occupy

the Subject Premises terminated on March 29, 2017,

six (6) months after William's death. Plaintiff

refused to vacate the Subject Premises at the end of

this six-month period. (See Am. Compl. generally:

April Order, generally.)

Accordingly, Van Zwienen—a defendant herein and

one of the decedent's four children who was named

6a

as the Executor of the decedent's estate and as

Successor Trustee of the Trust—filed a petition in

the Surrogate's Court, Suffolk County, on December

22, 2017, to recover possession of the Subject

• Premises and for the ejectment of Plaintiff (the

“Surrogate's Court Action”). (Am. Compl. ]Hj 28-29.)

Van Zwienen was represented by MPR LLC and

Parkas during these proceedings. (Id.

29-30.)

Plaintiff defaulted in the Surrogate's Court action

and, on February 16, 2018, the court ordered

Plaintiff to vacate the subject premises within ten

(10) days from the date of the Order and directed the

Sheriff to eject her should she fail to so vacate.

(See Decision & Order dated February 16, 2018,

Surrogate's Court, Suffolk County (the “February

Order”, ECF No. 73-5.)) Plaintiff moved to vacate her

default; that motion was denied on April 5, 2018 (the

“April Order”). (ECF No. 73-6.) Plaintiff filed an

appeal of the April Order in the Appellate Division,

Second Department, and requested a temporary stay

of eviction pending a decision on the appeal. On June

8, 2018, the Second Department denied her request

for a stay of the eviction. (ECF No. 74-5.)

Plaintiff then filed a motion in Surrogate's Court for

an automatic stay of the April Order pursuant to

N.Y. C.P.L.R. $ 5519(a)(6). On August 16, 2018, the

Surrogate's Court granted Plaintiffs motion for a

stay of eviction conditioned upon the filing of an

undertaking in the amount of $2,400/month, payable

to Van Zwienen as Trustee. (See Decision & Order

dated August 16, 2018, Surrogate's Court, Suffolk

County at 1-2 (the “August Order”, ECF No. 74-6.))

Plaintiff did not pay the undertaking, nor did she

vacate the Subject Premises. Rather, on September

17, 2018, she filed a motion in Surrogate's Court for

leave to renew and/or reargue the motion resulting

in the August Order, and also filed an Order to Show

Cause seeking a restraining order and a stay of the

proceedings. On October 10, 2018, the Court declined

to sign the Order to Show Cause and reaffirmed its

7a

decision as set forth in the August Order that the

stay would take effect conditional upon her

payments of the undertaking. (See Decision & Order

dated October 10, 2018, Surrogate's Court, Suffolk

County (the “October Order”, ECF No. 74-7.))

Accordingly, having received the October Order, by

letter dated October 12, 2018, MPR LLP, as counsel

for Van Zwienen, requested that the Sheriff enforce

the April Order and eject Plaintiff from the Subject

Premises. (Am. Compl. ^ 19.) Thereafter, Plaintiff

filed another motion seeking re-argument of the

Court's October Order and staying the undertaking

requirement and restraining the eviction. On

December 3, 2018, the Surrogate's Court denied the

motion. (ECF No. 74-9, 18-6)

Accordingly, on December 5, 2018, the Sheriff posted

a 72-hour Eviction Notice on the Subject Premises

and subsequently mailed copies by regular and

certified mail to Plaintiff. Plaintiff did not vacate. On

December 7, 2018, the Appellate Division, Second

Department, signed Plaintiffs Order to Show Cause

seeking, inter alia, a preliminary injunction vacating

the April Order and a temporary restraining order.

(ECF No. 74-10.) However, the Court crossed out the

language in Plaintiffs submission requesting that

Van Zwienen and the Sheriff be restrained from

entering the Subject Premises pending the decision

on the motion. (Id.) Thus, as no temporary

restraining order was entered, on December 14,

2018, the Sheriff effected the eviction of Plaintiff. By

Decision and Order dated January 15, 2019, the

Second Department denied Plaintiffs renewed

motion for a stay of her eviction from the Subject

Premises. (ECF No. 74-11.)

*3 In addition, while Plaintiffs September 17, 2018

motion was still pending in Surrogate's Court, on

December 17, 2018, Plaintiff filed another motion in

Surrogate's Court seeking leave to renew her

application to vacate the February 2018 and April

8a

2018 orders. On January 25, 2019, the Surrogate's

Court denied both the September 2018 and

December 2018 motions and enjoined Plaintiff from

filing further applications without first obtaining

written leave of court due to her abuse of the judicial

process. (ECF No. 18-8, 74-12.) Shortly thereafter, on

March 8, 2019, Plaintiff commenced this action.

(Compl., ECF No. 1.)

Although “[Pjlaintiff was not at home” at the time of

the eviction, Plaintiff claims she was “forcefully

evict[ed]” from the Subject Premises on December

14, 2018 when Suffolk County Deputy Sheriffs

McGovern, Kirwin, Desena and Sedenfelder

“physically entered into the [SJubject [PJremises and

changed the locks without a warrant.” (Id.

1, 9.)

“Warnings” were posted on the front and back door

stating that: “These premises have been put in the

possession of the landlord pursuant to Court

order. Only the landlord or his representative may

enter or remain.” (Id. f 9.) Plaintiff also alleges that,

on December 5, 2018, McGovern signed a 72-hour

eviction notice and affixed it to the front door of the

Subject Premises, together with the April Order of

the Surrogate's Court, Suffolk County. (Id.

10.)

The eviction notice and April Order were also mailed

to Plaintiff by regular, first class mail on December

7, 2020 and by certified mail on December 8, 2020.

(Id.) The amended complaint asserts, without

further explanation, that Plaintiff notified Sheriff

Toulon on October 19, 2018 “of the eviction issue.”

Oil if.)

Plaintiff complains that MPR and Parkas “deceived”

the state courts and “did not disclose information to

the Surrogate that reflected defendant Van

Zwienen's disqualification as a fiduciary.” (hi IHj 2224.) Plaintiff alleges that MPR and Parkas

“knowingly failed to disclose to the courts controlling

legal authority known to them to be directly adverse

to Van Zwienen's position and not disclosed by

9a

plaintiff. They have been intentionally misleading

the courts on the law and facts for leading said

eviction.” (Id,. ^ 27.)

Following her eviction, Plaintiff complains that, on

or about December 27, 2018, Van Zwienen and his

attorneys authorized realtors to enter the Subject

Premises and, on February 24, 2019, the realtors

were authorized by Van Zwienen and his attorneys

to post a “for sale” sign in front of the premises. (Id.1l

33-34.) Plaintiff also complains that, in February

2019, Van Zwienen and his attorneys “changed the

key of decedent's automobile,” which was parked at

the Subject Premises, and accessed unspecified

“tangible personal properties which were stored

inside decedent's automobile since 12/8/18.” (Id.1TIT

35, 37.)

As a result of the foregoing, Plaintiff alleges that the

“seizure of said private home violated Plaintiffs

constitutional, statutory and regulatory interests

and rights.” (Id.1T 43.) Plaintiff alleges that her

action is brought “pursuant to the warrant clause of

the Fourth Amendment, the due process and equal

protection clauses of the Fourteenth Amendment” as

well as federal and state statutory law. (IdU 3.)

Plaintiff also alleges that “jurisdiction may be

appropriate under 42 U.S.C. §§ 1981. 1982. 1983.

1985. 1986. 1988. the Federal Fair Housing Act

(Title VIII of the Civil Rights act of 1968), N.Y.

Constitution Art. 1 §3 1. 6, 11, 12, NYSHRL, N.Y.

Gen Mun. L. § 50-1. Civil Rights § 8, RPAPL §§

749. 735(2)(b). 853. RPTL $ 425(3)(c). EPTL $ 71.2. CPLR §§ 214. 302(a). SCPA § 401. Judiciary

Law g$ 90(2). 487(1). 22 NYCRR gg 207.9(b). 1200.0.

1240 as well as any related N.Y. Constitution,

statutes, regulations, and rules.” (Id,H 4.)

*4 Plaintiff claims that “eviction has continued to

discriminate and harm [Pjlaintiff.” (Id. 1T1I 47-49.) In

support of this purported discrimination, Plaintiff

10a

alleges only that she is Chinese and Van Zwienen is

Caucasian.

Plaintiff alleges that the “seizure of the subject

private home and housing discrimination caused

[Plaintiff's

financial and pecuniary losses

psychological injury, humiliation, emotional distress,

along with other damages” for which she seeks

“reinstatement] of the status quo before 12/14/2018”

in addition to an award of treble damages, punitive

damages, costs and attorney's fees. (Id.

47-48.)

C. The Defendants* Motions

All Defendants have filed motions to dismiss

pursuant to Federal Rules of Civil Procedure 12(b)(1)

and 12(b)(6) claiming that, inter alia. Plaintiffs

claims: (1) are barred by the Rooker-Feldman

doctrine; (2) are barred by the Colorado River

abstention doctrine; and (3) fail to state a claim upon

which relief may be granted. In addition, Van

Zwienen seeks cancelation of the notice of lis

pendens and Van Zwienen, together with Parkas and

MPR LLP, also seek the entry of a litigation

injunction against Plaintiff.

II. DISCUSSION

A. Standard of Review

The Court is mindful that when considering a

motion to dismiss a pro se complaint, the Court must

construe the complaint “liberally” and interpret it “to

raise the strongest arguments that [it] suggests].”

Triestman v. Fed. Bureau of Prisons. 470 F.3d 471.

474 (2d Cir. 2006) (per curiam) (internal citation and

quotation marks omitted). Nonetheless, “mere

conclusions of law or unwarranted deductions need

not be accepted.” Bobrowskv v. Yonkers Courthouse.

777 F. Supp. 2d 692. 703 (S.D.N.Y. 2011) (internal

quotation marks and citation omitted).

11a

1. Fed. R. Civ. P. 12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) provides for

the dismissal of a claim when there is a “lack of

subject-matter jurisdiction.” Fed. R. Civ. P. 12(h)(1).

A case is properly dismissed for lack of subjectmatter jurisdiction pursuant to Rule 12(b)(1) “when

the district court lacks the statutory or

constitutional power to adjudicate it.” Makarova v.

United States. 201 F.3d 110, 113 (2d Cir. 2000);

see Fed. R. Civ. P. 12(b)(1). In reviewing a motion to

dismiss under Rule 12(b)(1). the Court accepts all

factual allegations in the complaint as true.

Shipping Fin. Servs. Corp. v. Drakos. 140 F.3d 129,

131 (2d Cir. 1998). The party asserting jurisdiction,

in this case the Plaintiff, bears the burden of

showing by a preponderance of the evidence that the

Court has subject matter jurisdiction. APWU v.

Potter. 343 F.3d 619. 623 (2d Cir. 2003). In resolving

a jurisdictional issue, the Court may consider

“affidavits and other materials beyond the

pleadings” but “may not rely on mere conclusions or

hearsay statements contained” therein. J.S. ex rel.

N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir.

2004). The application of the Rooker-Feldman

doctrine “goes to subject-matter jurisdiction.”

Hoblock v. Albany Ctv. Bd. of Elections. 422 F.3d 77,

83 (2d Cir. 2005k

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

Federal Rule of Civil Procedure 12(b)(6) provides for

the dismissal of a claim when a plaintiff fails to

allege facts sufficient “to state a claim to relief that

is plausible on its face.” Bell Atl. Corn, v. Twomblv,

550 U.S. at 544, 570 (2007): see Fed. R. Civ. P.

12(b)(6). A claim is facially plausible only “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 (2009) (citing Twomblv. 550

U.S. at 556). Mere labels and legal conclusions will

12a

not suffice. Twomblv. 550 U.S. at 555. In reviewing a

motion to dismiss, the Court must accept “as true

the complaint's factual allegations and draw[ ] all

inferences in the plaintiffs favor.” Karedes v.

Ackerlev Grp.. Inc.. 423 F.3d 107. 113 (2d Cir. 20051.

B. The Rooker-Feldman Doctrine

*5 Defendants argue that this Court lacks

jurisdiction over this action pursuant to the RookerFeldman doctrine. See Rooker v. Fidelity Trust Co..

263 U.S. 413 (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. 486 (1983)

(finding that federal courts do not have jurisdiction

over claims which are “inextricably intertwined”

with prior state court determination). The Court

agrees.

The Rooker-Feldman doctrine establishes “the clear

principle that federal district courts lack jurisdiction

over suits that are, in substance, appeals from statecourt judgments.” Sung Cho v. City of New York. 910

F.3d 639. 644 (2d Cir. 2018) (quoting Hoblock. 422

F.3d at 84). This doctrine is the “clear principle that

federal district courts lack jurisdiction over suits

that are, in substance, appeals from state-court

judgments.” Hoblock. 422 F.3d at 84. At its core,

the Rooker-Feldman doctrine precludes a district

court from hearing “cases brought by state-court

losers complaining of injuries caused by state-court

judgments rendered before the district court

proceedings commenced and inviting district court

review and rejection of those judgments.” Exxon

Mobil Corn, v. Saudi Basic Indus. Corn.. 544 U.S.

280. 284 (2005).

For the Rooker-Feldman doctrine to apply, the

Second Circuit requires four elements to be met: (1)

“the federal-court plaintiff must have lost in state

court,” (2) “the plaintiff must complain of injuries

caused by a state-court judgment,” (3) “the plaintiff

13a

must invite district court review and rejection of that

judgment,” and (4) “the state-court judgment must

have been rendered before the district court

proceedings commenced.” Vossbrinck v. Accredited

Home Lenders. Inc.. 773 F.3d 423. 426 (2d Cir.

2014) (citing Hoblock. 422 F.3d at 85) (internal

quotation marks and citations omitted). The first

and fourth requirements are procedural, while the

second

and

third

requirements

are

substantive. Id As discussed below, all four of these

requirements are met here, and the Rooker-Feldman

doctrine therefore bars adjudication of Plaintiffs

claims in this Court.

1. Procedural Requirements

The procedural requirements of the Rooker-Feldman

doctrine have been satisfied. The first and fourth

requirements have been met because Plaintiff lost in

state court before she commenced this action on

March 8, 2019. The underlying state court record

amply

demonstrates

that

Plaintiff

has

unsuccessfully challenged the New York Surrogate's

Court's Decision and Order dated February 16, 2018,

that ordered Van Zwienen, as Successor Trustee of

the Decedent's Revocable Trust, to take possession of

the Subject Premises and directed Plaintiff “to

vacate such premises within ten (10) days of the date

of being served with a true copy of this order.” (ECF

No. 74*3.) The February Order further authorized

that, upon Plaintiffs failure to vacate the premises,

“the Sheriff of the County of Suffolk shall be and is

hereby immediately required to enter upon the

premises located at 2 Mallar Avenue, Bay Shore,

New York and eject therefrom Yan Ping Xu....” (Id.)

As is readily apparent, Plaintiff has consistently lost

in state court. Indeed, Plaintiffs appeals of the

Surrogate Court's decisions to the Appellate Division

demonstrate that she recognized that she had lost in

the Surrogate's Court. The Order causing the

Plaintiff injury and giving rise to her claims here

14a

was issued on February 16, 2018 before Plaintiff

filed her complaint in this Court on March 8, 2019.

Even if the Court were to consider the latest decision

from the state court, issued on January 25, 2019, it

too was decided before Plaintiffs March 8, 2019

filing.

*6 Notwithstanding this procedural history, Plaintiff

contends that she is not a “state court loser” because

there is no final decision from the state court given

her pending appeal of the April Order to the

Appellate Division, Second Department. The Court

disagrees. Courts in this Circuit have routinely

applied Rooker-Feldman despite pending state-court

appeals. See, e.g.. Caldwell v. Gutman. Mintz. Baker

& Sonnenfeldt. P.C.. 701 F. Supp, 2d 340, 347

(E.D.N.Y. 2010) (collecting cases) (reasoning that the

purpose of Rooker-Feldman was to prevent “federal

courts (other than the Supreme Court) from

reviewing and reversing unfavorable state-court

judgments.”) (internal quotation, citations, and

alterations omitted). “This purpose would be

undermined if the doctrine is inapplicable simply

because a litigant happens to be seeking state

appellate review of a state-court judgment, while

also seeking federal district court review of that

judgment. Regardless of the status of any state court

appeals, the litigant is still seeking federal review of

a state-court judgment.” Id.; see also Phillips ex rel.

Green v. City of N.Y.. 453 F. Supp. 2d 690. 714

(S.D.N.Y. 2006).

This Court agrees that Rooker-Feldman applies as

long as the federal action seeks review of a previous

state court judgment, regardless of whether that

judgment is being appealed in the state.courts when

the federal case begins. Caldwell. 701 F. Supp. 2d at

347. Indeed, the Supreme Court made clear in Exxon

Mobil.

544

U.S.

at

283.

that “RookerFeldman prevents federal courts (other than the

Supreme Court) from ‘review[ing] and reversing]

15a

unfavorable state-court judgments.’ ” (emphasis

added). Accordingly, because the February 16, 2018

judgment of the Surrogate's Court was entered wellbefore the March 8, 2019 filing of the complaint in

this Court, the first and fourth procedural

requirements are satisfied.

2. Substantive Requirements

The substantive requirements of the RookerFeldman doctrine have also been satisfied. The

second requirement has been met because Plaintiff

complains of injuries caused by the state Surrogate's

Court action. The gravamen of the amended

complaint is that Plaintiff was wrongfully removed

from the subject premises, which was the very issue

presented to—and decided by—the Surrogate's

Court. Although Plaintiff now argues in conclusory

fashion, that she suffered discrimination based on

her national origin, such contention does not change

the fact that the injuries of which Plaintiff complains

were caused by the decisions of the Surrogate's

Court. Plaintiff now also appears to contend that

Van Zwienen, together with Parkas and MPR LLP,

“intentionally deceived facts to the Surrogate” and

lists a myriad of their alleged misdeeds. (PI. Opp. Br.

at 23-24, ECF No. 76-26.) However, Plaintiff has had

the opportunity, of which she availed herself over

the course of the more than three-year litigation in

state court, to present evidence regarding these

. challenges in her efforts to obtain a favorable

decision.

Although

Plaintiff

now

also

claims, inter alia, a deprivation of her constitutional

rights as a result of the judgment of the state court,

“the fact that plaintiff is alleging a new claim discrimination - does not change the injury about

which she complains,” which was caused by the

decision of the state court. Voltaire v. Westchester

Cntv. Dep't of Soc. Servs.. No. ll-CV-8876. 2016 WL

4540837. at *11 (S.D.N.Y. Aug. 29. 2016) (internal

quotation omitted); Castiglione v. Pana. et al.. 423 F.

16a

App'x 10. .13 (2d Cir. 2011) (“As noted by the District

Court, [plaintiff] cannot avoid application of

the Rooker-Feldman doctrine simply by ‘presenting

in federal court a legal theory not raised in state

court,’ for example, by framing her claims under §§

1983 or 1985.”) (citing Hoblock, 422 F.3d at

86): see also Lomnicki v. Cardinal McCloskev Servs..

No. 04-CV-4548. 2007 WL 2176059. at *5 (S.D.N.Y.

July 26. 2007) (plaintiff who sought damages for

discrimination by family court, rather than review of

family court's determination, was barred on RookerFeldman grounds because her injury was “caused by

the Family Court judgment”). Indeed, the Second

Circuit has long held that a “federal plaintiff cannot

escape the Rooker-Feldman bar simply by relying on

a legal theory not raised in state court.” Hoblock. 422

F.2d at 87. Thus, the second requirement is met.

*7 The third requirement has also been satisfied

because Plaintiff can only prevail here if the Court

reviews and rejects the state court's judgments.

Plaintiffs prayer for relief makes this clear. Given

Plaintiffs request that “[Pjlaintiffs actual residence

in the subject premise should be reinstated, i.e., to

the status quo before 12/14/18” (Am. Compl. H 48,

ECF No. 49), such relief would require a direct

reversal of the state court judgments. In asking this

Court to reinstate her occupancy of the subject

premises, “it is plain that [plaintiff] is inviting this

court to ‘reject’ ” the state court's decisions.

Trakansook v. Astoria Fed. Sav. & Loan Ass'n. 06CV-1640, 2007 WL 1160433. at *5 (E.D.N.Y. Apr. 18.

2007). Because Plaintiffs factual allegations and the

relief she seeks are inextricably intertwined with the

state court's Surrogate's Court judgments, she has

invited this Court to review and reject the state

court's judgments, thereby satisfying the third

element. Furthermore, Rooker-Feldman also bars

attempt

seek

monetary

Plaintiffs

to

damages. Lomnicki v. Cardinal McCloskev Servs..

No. 04-CV-4548 (KMK). 2007 WL 2176059. at *5

17a

(S.D.N.Y. July 26. 2007) (“Similarly, Plaintiff does

not avoid Rooker-Feldman by seeking damages

instead of injunctive relief. In order to award

damages to Plaintiff, the Court would have to review

the decision of the Family Court.”).

Given that, as is readily apparent, Plaintiff seeks to

reverse the state court's judgments in the underlying

Surrogate's Court proceedings, the Court concludes

that all of the requirements of the Rooker-Feldman

doctrine have been met.i Accordingly, the Court

lacks subject-matter jurisdiction over Plaintiffs

claims, and the amended complaint is thus

dismissed in its entirety without prejudice pursuant

to Federal Rules of Civil Procedure 12(b)(1) and

12fti)(3).2

C. Cancellation of the Notice of Pendency

*8 As noted above, Van Zwienen also requests that

this Court cancel the notice of pendency or lis

pendens filed by Plaintiff concerning the subject

property. Rule 64 of the Federal Rules of Civil

Procedure requires this Court to look to state law

governing lis pendens. See Fed. R. Civ. P. 64: State

Street Bank & Trust Co. v. Trafalgar Power Inc.. 95CV-0493, 1997 WL 369384. at *2 (N.D.N.Y. June 23.

19971. Under New York law, a plaintiff who brings a

lawsuit claiming interest in real property may file

a lis pendens with respect to the property. See N.Y.

Civil Practice Law & Rules §§ 6501-6516.

The lis pendens provides notice to a potential

purchaser that an action is pending that could affect

title to the property. N.Y. C.P.L.R. § 6501: Diaz v.

Paterson. 547 F.3d 88. 89 (2d Cir. 2008). Whether to

cancel a notice of pendency under Section 6515 is a

matter entirely within the discretion of the Court.

Purchase Real Estate Group. Inc, v. Jones. 489 F,

Supp. 2d 345. 348 (S.D.N.Y. 2007) (citing 5303

Realty Corp, v. Q & Y Equity Corp.. 64 N.Y.2d 313.

(1984)). Where, as here, the complaint is dismissed

for lack of subject matter, the notice of pendency

18a

should be canceled. See, e.g.. Peddie v. 2436 Marion

Ave. Assoc, v. Young. 01-CV-1239. 2001 WL 995337.

at *2 (S.D.N.Y. Aug. 30. 20011 (citing N.Y. C.P.L.R. S

6514(b)). Accordingly, the Clerk of the Court shall

serve a copy this Order upon the County Clerk,

County of Suffolk, and the County Clerk is directed

to cancel the notice of pendency filed by Plaintiff

concerning the property located at 12 Mallar

Avenue, Bay Shore, New York 11706.

D. Leave to Amend

A pro se plaintiff should ordinarily be given the

opportunity “to amend at least once when a liberal

reading of the complaint gives any indication that a

valid claim might be stated.” Shomo v. City of New

York. 579 F.3d 176. 183 (2d Cir. 2009) (internal

quotation marks and citation omitted). Though

“pro se plaintiffs are generally given leave to amend

a deficient complaint, a district court may deny leave

to amend when amendment would be futile.” Hassan

v. U.S. Dep't of Veterans Affairs. 137 F. App'x 418.

420 (2d Cir. 2005).

Here, the Court has carefully considered whether

Plaintiff should be granted leave to further amend

the complaint. Having decided that Plaintiffs claims

are barred by the Rooker-Feldman doctrine, the

Court finds that any further amendment of

Plaintiffs claims would be futile. Consequently, the

Court declines to grant Plaintiff leave to further

amend.

E. Litigation Injunction Under the All Writs

Act

Given Plaintiffs litigation history in the state court,

Van Zwienen, Parkas, and MPR LLC ask this Court

to enter a litigation injunction against Plaintiff. For

the reasons that follow, that application is denied at

this time. Under the All Writs Act, a federal court

“may issue all writs necessary or appropriate in aid

of their respective jurisdictions and agreeable to the

19a

usages and principles of law.” 28 U.S.C. § 1651(a).

The All Writs Act “grants district courts the power,

under certain circumstances, to enjoin parties from

filing further lawsuits.” MLE Realty Assocs. v.

Handler. 192 F.3d 259. 261 (2d Cir. 1999). Those

circumstances include cases where a litigant engages

in the filing of repetitive and frivolous

suits. See Mallev v. N.Y. City Bd. of Educ.. 112 F.3d

69 (2d Cir. 1997) (per curiam) (filing injunction may

issue if numerous complaints filed are based on the

same events). Such an injunction, while protecting

the courts and parties from frivolous litigation,

should be narrowly tailored so as to preserve the

right of access to the courts. In addition, the Court

must provide plaintiff with notice and an

opportunity to be heard before imposing a filing

injunction. Moates v. Barkley. 147 F.3d 207, 208 (2d

Cir. 1998) (per curiam).

The instant case is Plaintiffs first in the United

States District Court for the Eastern District of New

York relating' to the Subject Premises. Plaintiffs

history of frivolous litigation in the state court,

together with the instant action, suggests that she

may file a new action here concerning this subject

and/or

the

prior

underlying

state

court

litigation.^ The Court has an “obligation to protect

the public and the efficient administration of justice

from individuals who have a history of litigation

entailing vexation, harassment and needless expense

to other parties and an unnecessary burden on the

courts and their supporting personnel.” Lau v.

Meddaugh. 229 F. 3d 121. 123 (2d Cir.

2000) (internal quotation marks, citations, and

alteration omitted).

*9 Given Plaintiffs pro se status and her probable

unfamiliarity with the Rooker-Feldman doctrine, the

Court does not believe that there are sufficient

grounds, at this time, for a litigation injunction.

However, now that Plaintiff is being fully advised of

20a

the frivolous nature of her lawsuit, future,

duplicative lawsuits filed by Plaintiff will not be

tolerated by the Court. In short, given Plaintiffs

well-documented history of vexatious litigation

involving duplicative applications seeking to

challenge the underlying Surrogate's Court order

directing her to vacate the Subject Premises,

Plaintiff is cautioned that sanctions may be imposed,

including in the form of a litigation injunction,

should she continue in this course of conduct.

Given Plaintiffs state court litigation history, the

Court now cautions Plaintiff that, should she file

another complaint in the federal district court

relating to the underlying Surrogate's Court

proceedings and/or her claimed rights concerning the

property located at 12 Mallar Avenue in Bay Shore,

New York, and/or her ejectment therefrom, the

Court will order Plaintiff to show cause why a

litigation bar should not be entered.

Finally, Plaintiff is cautioned that Rule 11 of the

Federal

Rule

of

Civil

Procedure applies

to pro se litigants, see Maduakolam v. Columbia

Univ.. 866 F.2d 53. 56 (2d Cir. 1989) (“Rule

11 applies both to represented and pro se litigants

...”), and should she file another action relating to

the underlying Surrogate's Court proceedings or any

claimed rights concerning the subject property

and/or her ejectment therefrom, it is within the

Court's authority to consider imposing sanctions

upon her. See Fed. R. Civ. P. 11: In re MartinTrigona. 737 F.2d 1254, 1262 (2d Cir. 1984) (a

district court has “the power and the obligation to

protect the public and the efficient administration of

justice from [a vexatious litigant's] litigious

propensities”); Safir v. U.S. Lines. Inc.. 792 F.2d 19.

24 (2d Cir. 1986) (“ ‘A district court not only may but

should protect its ability to carry out its

constitutional functions against the threat of

onerous, multiplicitous, and baseless litigation.’ ”)

21a

(quoting Abdullah v. Gatto. 773 F.2d 487. 488 (2d

Cir. 1985) (per curiam)).

III. CONCLUSION

For the reasons stated above, the Court grants

Defendants’ motions insofar as the Court lacks

subject matter jurisdiction pursuant to the RookerFeldman doctrine. Accordingly, the Court dismisses

Plaintiffs amended complaint in its entirety without

prejudice pursuant to Federal Rules of Civil

Procedure 12(b)(1) and 12(h)(3) and cancels the

notice of lis pendens. The Clerk of the Court shall

serve a copy this Order upon the County Clerk,

County of Suffolk, and the County Clerk is directed

to cancel the notice of pendency filed by Plaintiff

concerning the property located at 12 Mallar

Avenue, Bay Shore, New York 11706.

Although Plaintiff paid the filing fee to commence

this action, the Court certifies pursuant to 28 U.S.C.

$ 1915(a)(3) that any appeal from this Order would

not be taken in good faith and therefore, should

Plaintiff seek leave to appeal in forma pauperis,

such status is denied for the purpose of any

appeal. See Coppedge v. United States. 369 U.S. 438,

444-45 (1962).

SO ORDERED.

1 Plaintiffs amended complaint alleges, in passing,

that, in February 2019, Van Zwienen and his

attorneys “changed the key of decedent's

automobile,” which was parked at the Subject

Premises, and accessed unspecified “tangible

personal properties which were stored inside

decedent's automobile since 12/8/18.” (Id.

35, 37.)

It is not clear what, if any, claims Plaintiff seeks to

bring based on these allegations. Given that Plaintiff

had already been evicted from the Premises, it would

appear that any personal property that Plaintiff left

on the premises would be deemed abandoned. These

allegations appear to be yet another gloss on

22a

Plaintiffs claims that the Surrogate's Court order

authorizing her eviction was erroneous and procured

by fraud. As such, Plaintiffs claims premised on

these allegations are barred by Rooker-Feldman.

Even if these allegations could give rise to claims

that are not barred by Rooker-Feldman. there are

additional reasons why the Court lacks jurisdiction

over any claims based on these allegations. First,

Plaintiff does not raise any colorable federal claims

concerning these allegations. A plaintiff invokes

jurisdiction under 18 U.S.C. § 1331 when she pleads

a “colorable claim” arising under the Constitution or

federal law. Arbaugh v. Y & H Corn.. 546 U.S. 500.

513 (20061. A claim alleging federal question

jurisdiction “may be dismissed for want of subjectmatter jurisdiction if it is not colorable, i.e., if it is

‘immaterial and made solely for the purpose of

obtaining jurisdiction’ or is ‘wholly insubstantial and

frivolous.’ ” Id. at 513 n. 10 (quoting Bell v. Hood.

327 U.S. 678. 682-683 (19461). Second, the Court

lacks diversity jurisdiction over any state law claims

against these defendants as both Plaintiff and the

law firm defendant are citizens of New York. To

establish diversity jurisdiction under 18 U.S.C. 1332,

there must be complete diversity of citizenship

between the plaintiffs and the defendants. Exxon

Mobil Corp. v. Allapattah Servs., Inc.. 545 U.S. 546.

553 (2005). “Diversity is not complete if any plaintiff

is a citizen of the same state as any defendant.” St.

Paul Fire and Marine Ins. Co. v. Universal Builders

Supply. 409 F.3d 73. 80 (2d Cir. 2005).

2 Given the Court's lack of subject matter

jurisdiction, it declines to address Defendants’

remaining contentions, including that Plaintiff has

failed to state a claim for relief under Federal Rule

of Civil Procedure 12(b)(6). Bobrowskv, 777 F.

Supp.2d at 703 (“When a defendant moves to dismiss

under Rule 12(b)(1) for lack of subject matter

jurisdiction, and also moves to dismiss on other

grounds such as Rule 12(b)(6) for failure to state a

23a

claim upon which relief can be granted, the Court

must consider the Rule 12(b)(1) motion first.”)

(citing Rhulen Agency. Inc, v. Ala. Ins. Guar. Ass'n,

896 F.2d 674, 678 (2d Cir. 1990)); see also Humphrey

v. Syracuse Police Den't, 758 F. App’x 205, 206-07

(2d Cir. 2019) (holding that where a court dismisses

a complaint for lack of subject matter jurisdiction,

the court does “not have the power to reach the

merits and dismiss the claims against the

defendants for failure to state a claim, or to

eventually dismiss the complaint with prejudice for

failure to file a proposed amended complaint.”).

3Indeed, the January 25, 2019 Decision and Order of

Surrogate's Court imposed a sanction enjoining

Plaintiff from filing further applications in that court

without first obtaining written permission to do so.

* Source: copy of 2020 WL 3975471

24a

APP-D

CONSTITUTIONAL AND STATUTROEY

PROVISIONS INVOLVED

42 U.S. Code § 1983 - Civil action for

deprivation of rights

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

or Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof

to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at

law, suit in equity, or other proper proceeding for

redress, except 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. For the

purposes of this section, any Act of Congress

applicable exclusively to the District of Columbia

shall be considered to be a statute of the District of

Columbia.

Amendment IV

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation,

and particularly describing the place to be searched,

and the persons or things to be seized

25a

New York Constitution Article XIII § 1

Members of the legislature, and all officers,

executive and judicial,

shall, before they enter

on the duties of their respective offices, take and

subscribe the following oath or affirmation: “I do

solemnly swear (or affirm) that I will support the

constitution of the United States, and the

constitution of the State of New York, and that I will

faithfully discharge the duties of the office of..... ,

according to the best of my ability;..”

New York General Construction Law

§ 28-a. Mandate (2018)

"Mandate" includes a writ, process or other

written direction, issued pursuant to law, out of a

court, or made pursuant to law, by a court, a judge

or person acting as a judicial officer, and

commanding a court, board or other body, or an

officer or other person, named or otherwise

designated therein, to do or to refrain from doing an

act therein specified.

New York Real Prop Actions L

§ 749 Warrant (2018)

1. Upon rendering a final judgment for

petitioner, the court shall issue a warrant directed

to the sheriff of the county ..., describing the

property, and commanding the officer to remove all

persons, and, except where the case is within section

715, to put the petitioner into full possession.

2. (a) The officer to whom the warrant is directed

and delivered shall give at least seventy-two hours

notice, excluding any period which occurs on a

Saturday, Sunday or a public holiday, in writing and

in the manner prescribed in this article for the

service of a notice of petition, to the person or

persons to be evicted or dispossessed and shall

execute the warrant between the hours of sunrise

and sunset.