Petition for Writ of Certiorari — George H. Finn, Petitioner v. New York, et al.

APPENDIX A

OPINION US COURT OF APPEALS FOR THE SECOND CIRCUIT

23-126

Sr'

23-126-cv

Finn v. State ofNew York

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 TO 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

25th day of October, two thousand twenty-three.

Present:

Pierre N. Leval

Susan L. Carney

William J. Nardini,

Circuit Judges.

George H. Firm,

Plaintiff-Appellant,

23-126

v.

State of New York, Hinman, Howard & Kartell,

LLC, Harvey Shapiro, Esq., Katherine A. Fitzgerald,

Esq., Nelson F. Migdal, Esq., Ronald Schiess, LLS,

Bruce W. Snyder, Director of LS, Delta Engineers,

Architects, & Land Surveyors, PC, Jenee

Rasmussen-Green, LLS, Ronald Green, LLS,

Rasmussen Land Survey PLLC,

Defendants-Appellees.

For Plaintiff-Appellant:

George H. Finn, pro se, Windsor, NY.

For Defendants-Appeliees:

Barbara D. Underwood, Solicitor General, Victor

Paladino, Senior Assistant Solicitor General, Sean P.

Mix, Assistant Solicitor General, for Letitia James,

Attorney General of the State of New York, Albany, NY

(for State of New York)

Philip A. Davolos, HI, Cipriani & Wemer, P.C., Port

Jervis, NY (for Katherine A Fitzgerald; Nelson Migdal;

and Hinman, Howard & Kattell, LLC).

Alfred Paniccia, Jr., The Law Office of Alfred Paniccia,

Jr., Binghamton, NY (for Bruce W. Snyder and Delta

Engineers, Architects, & Land Surveyors, PC).

Daniel R. Rose, Costello, Cooney & Fearon, PLLC,

Syracuse, NY (for Jenee Rasmussen-Green, Ronald

Green, and Rasmussen Land Survey PLLC).

Appeal from a judgment of the United States District Court for the Northern District of

New York (David N. Hurd, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

Appellant George Finn, proceeding pro se, appeals from a judgment of the United States

District Court for the Northern District ofNew York (David N. Hurd, Judge) dismissing his claims

due to lack of subject matter jurisdiction. Finn alleged that the defendants conspired to steal a

portion of land from his family and brought suit under 42 U.S.C. §§ 1983 and 1985. The district

court dismissed his complaint, for lack of subject matter jurisdiction. Finn appealed. We assume

the parties’ familiarity with the case.

I.

Forfeiture of Issues on Appeal

We “liberally construe pleadings and briefs submitted by pro se litigants, reading such

2

submissions to raise the strongest arguments they suggest.” McLeod v. Jewish Guildfor the Blind,

864 F.3d 154, 156 (2d Cir. 2017).1 Pro se appellants, however, must still comply with Federal

Rule of Appellate Procedure 28(a), which “requires appellants in their briefs to provide the court

with a clear statement of the issues on appeal.” Moates v. Barkley, 147 F.3d 207, 209 (2d Cir.

1998). We generally will not “manufacture claims of error” for a pro se party, decide issues that a

party fails to raise or reach issues discussed only “in passing. ” LoSacco v. City of Middletown, 71

F.3d 88,93 (2d Cir. 1995); Gerstenbluth v. Credit Suisse Secs. (USA) LLC, 728 F.3d 139,142 n.4

(2d Cir. 2013).

Here, Finn’s brief fails to meaningfully address the district court’s decision dismissing his

amended complaint. Aside from an in-passing mention of federal question jurisdiction, he does

not challenge the district court’s reasoning and argues only that he should not have been subject

to the defendants’ alleged actions. Any challenges to the underlying merits of the district court’s

ruling are thus forfeited. See LoSacco, 71 F.3d at 93; Gerstenbluth, 728 F.3d at 142 n.4. And

although Finn briefly addresses the issue of diversity jurisdiction in his reply brief and raises issues

in response to the defendants’ merits briefs, we do not consider these issues because he did not

raise them in his opening brief. See Conn. Bar. Ass ’n v. United States, 620 F.3d 81,91 n.13 (2d.

Cir. 2010).

II.

Merits

Even if Finn had not forfeited his challenge to the district court’s ruling on appeal, we

Unless otherwise indicated, case quotations omit all internal quotation marks, alterations, footnotes, and

citations.

3

would affirm.

We note that while the district court reasoned that it lacked subject matter

jurisdiction over the action, its analysis was more akin to a dismissal on the merits. Cf Monsky

v. Moraghan, 127 F.3d 243,245 (2d Cir. 1997) (“Though some courts have considered a deficient

allegation of the color-of-law element of section 1983 as a jurisdictional deficiency ..., we have

ruled that the sufficiency of a color-of-law allegation is to be tested under Rule 12(b)(6).”).

Because we can affirm on any basis supported by the record, we therefore affirm on the alternative

ground that Finn failed to state a claim. See Leon v. Murphy, 988 F.2d 303,308 (2d Cir. 1993).

Finn has not shown that the conduct of any of the defendants—with the exception of the

State of New York—constitutes state action, a requirement under § 1983. See Ciambriello v.

Cnty. ofNassau, 292 F.3d 307, 323 (2d Cir. 2002). Here, the private defendants consisted of a

law firm, attorneys, and land surveyors hired to address the property boundary issue. Finn did

not allege any facts showing that they acted pursuant to the compulsive power of the state,

participated in joint action with the state, or were delegated a public function by the state. See

Sybalski v. Independent Grp. Home Living Prog., Inc., 546 F.3d 255,257 (2d Cir. 2008). As for

his naming the State of New York as a defendant, sovereign immunity bars Finn’s claims. See

Woods v. Rondout Valley Cent. School Dist. Bd. ofEduc., 466 F.3d 232,236 (2d Cir. 2006).

As the district court reasoned, the closest any ofthe private defendants came to acting under

color of state law were acts taken by the two defendants, Nelson Migdal and Harvey Shapiro, who

were appointed as commissioners by the New York state court in the 1980s. But even assuming

that their conduct could be considered state action, Finn’s claim was untimely. Claims arising

under § 1983 in New York have a statute of limitations of three years. See Lucente v. Cnty. of

4

Suffolk, 980 F.3d 284, 308 (2d Cir. 2020).

The alleged transmission and filing of the

commissioner’s deed occurred in 1984,38 years before this 2022 lawsuit. Nor is the claim subject

to equitable tolling. See Abbas v. Dixon, 480 F.3d 636, 642 (2d Cir. 2007) (“The plaintiff bears

the burden of showing that the action was brought within a reasonable period of time after the facts

giving rise to the equitable tolling... claim have ceased to be operational.”). Finn became aware

of the alleged discrepancies in 2016 at the latest, six years before he filed his lawsuit. Given that

the statute of limitations on § 1983 claims is three years, a six-year delay in filing suit was not

reasonable.

The complaint does not state a § 1985 conspiracy claim. A conspiracy under § 1985 must

be “motivated by some racial or perhaps otherwise class-based, invidious discriminatory animus.”

Dolan v. Connolly, 794 F.3d 290,296 (2d Cir. 2015). Finn did not allege any facts suggesting that

the defendants were motivated by his race or his membership in another class. Accordingly, he

failed to state a claim for relief.

We have considered Finn’s remaining arguments and find them to be unpersuasive.

Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court

5

APPENDIX B

OPINION US DISTRICT COURT NORTHERN DISTRICT OF NY

3:22-CV-721

Case 3:22-cv-00721-DNH-ML Document 70 Filed 10/21/22 Page 1 of 26

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

GEORGE H. FINN,

Plaintiff,

3:22-CV-721

-vSTATE OF NEW YORK,

HINMAN HOWARD &

KATTELL, LLC, KATHERINE

A. FITZGERALD, ESQ.,

HARVEY SHAPIRO, ESQ.,

NELSON F. MIGDAL, ESQ.,

RONALD SCHIESS, LLS,

BRUCE W. SNYDER, Director

of LS, DELTA ENGINEERS,

ARCHITECTS, & LAND

SURVEYORS, PC, JENEE

RASMUSSEN-GREEN,LLS,

RONALD GREEN, and

RASMUSSEN LAND SURVEY PLLC,

Defendants.

APPEARANCES:

GEORGE H. FINN

Plaintiff, Pro Se

227 Springsteen Road

Windsor, NY 13865

OF COUNSEL:

Case 3:22-cv-00721-DNH-ML Document 70 Filed 10/21/22 Page 2 of 26

| HON. LETITIA JAMES

New York State Attorney General

Attorneys for Defendant State of

New York

The Capitol

Albany, NY 12224

ADRIENNE J. KERWIN, ESQ.

Ass’t Attorney General

CIPRIANI & WERNER, P.C.

Attorneys for Defendants Hinman

Howard & Kattell, LLC,

Katherine A. Fitzgerald, Esq.,

and Nelson F. Migdal, Esq.

PHILIP A. DAVOLOS, III, ESQ.

HARVEY SHAPIRO, ESQ.

Defendant, Pro Se

101 Tamarack Lane

Trumansburg, NY 14886

PANICCIA, BECK LAW FIRM

Attorneys for Defendants Bruce

W. Snyder, and Delta Engineers,

Architects, & Land Surveyors, P.C.

ALFRED PANICCIA, JR., ESQ.

COSTELLO, COONEY &

PAUL G. FERRARA, ESQ.

FEARON, PLLC

Attorney for Defendants Jenee

Rasmussen-Green, Ronald Green, and

Rasumussen Land Survey PLLC

DAVID N. HURD

United States District Judge

MEMORANDUM-DECISION and ORDER

I. INTRODUCTION

On July 8, 2022, pro se plaintiff George Finn (“Finn” or “plaintiff’) filed

this civil action alleging that certain defendants conspired to assist in the

theft of certain parcels of plaintiffs real property by, inter alia, altering a

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Case 3:22-cv-00721-DNH-ML Document 70 Filed 10/21/22 Page 3 of 26

property deed and falsifying a survey description. Dkt. No. 1. Plaintiff also

moved to appoint counsel, Dkt. No. 4, but that motion was denied by U.S.

Magistrate Judge Miroslav Lovric without prejudice to renew, Dkt. No. 6.

On July 21, 2022, Judge Lovric advised Finn that he bore responsibility

for serving the summonses, copies of his pleading, and General Order 25 on

the named defendants in accordance with Rule 4 of the Federal Rules of Civil

Procedure. Dkt. No. 11. Judge Lovric instructed plaintiff to file affidavits of

service on or before September 28, 2022. Id. And Judge Lovric cautioned

plaintiff that his failure to do so could result in the dismissal of his case. Id.

Thereafter, most of the named defendants moved to dismiss Finn’s

complaint under Rule 12(b) of the Federal Rules of Civil Procedure.1 First to

move were defendants Delta Engineers, Architects, & Land Surveyors, P.C.

(“Delta Surveyors”) and Bruce W. Snyder (“Snyder”). Dkt. No. 13. Second to

move was defendant State of New York (the “State”). Dkt. No. 16. The third

group of movants were defendants Katherine A. Fitzgerald, Esq. (“Attorney

Fitzgerald”) and Hinman Howard & Kattell, LLC (the “Firm”). Dkt. No. 24.

Finn opposed some of these motions. Dkt. Nos. 22, 23. But his filings

suggested that he was having trouble making sense of his obligations under

the Federal Rules of Civil Procedure. See, e.g., Dkt. No. 12 (advising Court on

1 Defendant Harvey Shapiro, Esq. (“Attorney Shapiro”) answered the pleading. Dkt. No. 19.

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Case 3:22-cv-00721-DNH-ML Document 70 Filed 10/21/22 Page 4 of 26

status of service); Dkt. No. 18 (attempting to amend pleading in piecemeal

fashion); Dkt. No. 21 (attempting same).

On August 11, 2022, Judge Lovric ordered the Clerk of the Court to strike

Finn’s partial filings as improper. Dkt. No. 28. At that time, Judge Lovric

explained to plaintiff he was still permitted to amend his pleading once as of

right, but that in order to do so he would need to file a “wholly integrated and

complete pleading that does not rely upon or incorporate by reference any

pleading or document previously filed with the Court.” Id. And Judge Lovric

cautioned plaintiff that further amendments—after the first “freebie”—would

require either his opponents’ written consent or leave from the court. Id.

On August 19, 2022, Finn filed an amended complaint. Dkt. No. 33. A

few days later, Judge Lovric issued a second text order reminding plaintiff

that he was obligated to serve the summonses, his amended complaint, and

General Order 25 on the named defendants in accordance with Rule 4 of the

Federal Rules of Civil Procedure. Dkt. No. 34.

On August 22, 2022, Finn filed a letter motion in which he stated:

I have been fighting for decades to obtain one thing,

the undoing of what was done to my family’s property

deed. If the court decides that I have no complaint and

then dismiss it; I ask the court to consider just

correcting the property deed.

I am attached a

proposed deed to this letter in hopes that, if nothing

else, I might live a few years not dealing with any of

this.

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Case 3:22-cv-00721-DNH-ML Document 70 Filed 10/21/22 Page 5 of 26

v

Dkt. No. 35 (attaching proposed “corrected” deed).

On August 24, 2022, this Court stepped in and directed the Clerk of the

Court to terminate Finn’s letter motion with the attached “corrected”

property deed. Dkt. No. 39. Because plaintiffs amended complaint had

become the operative pleading, the Court further directed the Clerk to deny

all of the pending motions to dismiss without prejudice as moot. Id.

At that time, the Court also reminded Finn of his obligation to serve the

amended complaint on his opponents. Dkt. No. 39. The Court reiterated to

plaintiff that any further amendments to his pleading were impermissible

absent defendants’ consent or the Court’s leave. Id. Finally, the Court

cautioned plaintiff that his failure to follow these instructions or other court

rules could result in the dismissal of his action. Id.

On September 1, 2022, Finn filed a letter requesting additional time in

which to complete service. Dkt. No. 42. Judge Lovric granted that request in

part. Dkt. No. 43. At that time, Judge Lovric advised plaintiff that he

remained obligated to serve each defendant and file proof with the Court. Id.

On September 13, 2022, defendants Delta Surveyors and Mr. Snyder

(collectively the “Surveyor defendants”) and defendants Attorney Fitzgerald,

Nelson F. Migdal, Esq. (“Attorney Migdal”), and the Law Firm (collectively

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Case 3:22-cv-00721-DNH-ML Document 70 Filed 10/21/22 Page 6 of 26

the “Law Firm defendants”) renewed their motions to dismiss Finn’s

amended complaint.2 Dkt. Nos. 51, 52.

Defendant Attorney Shapiro answered the pleading. Dkt. No. 45. So did

defendants Jenee Rasmussen-Green , LLC (“Rasmussen-Green”), Rasmussen

Land Survey PLLC (“Rasmussen”), and Ronald Green (“Green”) (collectively

the “Rasmussen defendants”). Dkt. No. 60. Although the State participated

in the prior round of briefing, it has not answered or moved against plaintiffs

amended complaint. Dkt. No. 44 (affidavit of service of amended

complaint). Nor has named defendant Ronald Schiess. Dkt. No. 40 (same).

The motions filed by the Surveyor defendants and the Law Firm

defendants have been briefed and will be considered on the basis of the

submissions without oral argument.

II. BACKGROUND

The following facts are taken from Finn’s operative complaint, Dkt. No. 33,

and are assumed true in light of plaintiffs pro se status and the procedural

posture of the case. In 1940, one of plaintiffs predecessors-in-interest staved

off an attempt by an adjoining landowner to “illegally claim” certain

land. Am. Compl. at 5

3.3

2 Plaintiff took an interlocutory appeal from Judge Lovric’s denial of his motion to appoint

counsel, Dkt. No. 47, but he later withdrew the appeal, Dkt. No. 68.

3 Pagination corresponds to CM/ECF.

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Case 3:22-cv-00721-DNH-ML Document 70 Filed 10/21/22 Page 7 of 26

In 1974, one of Finn’s relatives rebuffed a renewed attempt by a surveyor

working on behalf of the Hurlburt family to move certain property boundaries

in a second effort to wrongfully obtain the same land that was disputed back

in 1940. Am. Compl. at 9 ^ 18.

Finn alleges that the Hurlburt family’s surveyor—a man named Edward

L. Darling—eventually succeeded in improperly or unlawfully redrawing the

boundary lines in 1981, shortly after one of plaintiffs relatives died. Am.

Compl. at 9 TI 19.

Beginning in 1982 and continuing until 1984, Attorney Fitzgerald

“performed a tenant deed separation” between Finn and his “now deceased

former brother-in-law.” Am. Compl. at 9 If 22. As plaintiff explains, Attorney

Fitzgerald sent to Attorney Migdal a commissioner’s deed to be filed with the

Broome County Clerk. Id. ^ 23.

According to Finn, on April 24, 1984, Attorney Migdal, Attorney Shapiro,

and non-party Vincent Vitrano, Esq., “submitted the commissioner’s deed” to

New York Supreme Court, an act which in plaintiffs view “initiated” the

“fraud conspiracy” about which he complains. Am. Compl. at 9 *[f 24.

Finn alleges this so-called “commissioner’s deed” varies from the previous,

correct deed for the property. Am. Compl. at 10—11 Tf 32. As he explains:

it is almost identical to the previous deed, except for

right in the middle of the description it was parted,

sliced open, or separate and a false fictitious survey

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Case 3:22-cv-00721-DNH-ML Document 70 Filed 10/21/22 Page 8 of 26

was placed right into the middle of the deed. I say

fictitious and false and can state adamantly without a

doubt because it is not in the warranty deed, as stated

in the Commissioners deed, prepared by the defendant

[Law Firm] just 3 months prior to the submission of

the Commissioner’s deed.

Am. Compl. at 10-11 ^f 32. According to plaintiff, various aspects of the

survey in this deed show that it is “false.” Id. at 11 ^ 35.

Finn alleges that this false survey description “is a proposed perjury that

was committed by New York State Official’s [sic], having been appointed by

the New York State Supreme Court.” Am. Compl. at 15

43. Plaintiff

further alleges that he “feels it is up to the Federal Court and the State of

New York to ascertain why the commissioners lied or who put them up to it

and who or how many are involved.” Id. at ^ 44.

In 1997, Finn hired Southern Tier Surveyors to perform a land survey

“after loggers logged timber” from his property. Am. Compl. at 16 f 54. After

the survey was completed, plaintiff “discussed” with defendant Schiess, the

Southern Tier Surveyor, “what [he] felt were discrepancies.” Id. at ^ 55.

As Finn explains, defendant Schiess’s survey “was based upon the false

survey description that was transcribed into the commissioner’s property

deed.” Am. Compl. at 16

55. Afterward, defendant Schiess “placed and

corrected at least three (3) of the property iron’s [sic].” Id. at If 56.

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Case 3:22-cv-00721-DNH-ML Document 70 Filed 10/21/22 Page 9 of 26

Finn alleges that when he checked the property irons that had just been

placed by defendant Schiess he discovered “that they had been moved by his

business partner Roger Holmes.” Am. Compl. at 17 If 57. Plaintiff alleges

that defendant Schiess “was unaware of what happened after he left that

day.” Id. at 16 ]j 56. Plaintiff tried to speak with defendant Schiess but was

told by non-party Roger Holmes that “he was the sole owner” of the surveying

company now. Id. at f 58.

In 1999, Finn tried to view maps at the tax office “but was denied

access.” Am. Compl. at 17

61. Plaintiff alleges he believes that tax map

employee Dane Clark copied the incorrect survey map generated by the

surveying company. Id. at 1f 62. According to plaintiff, this was just the

beginning of “over 20 years of trying to determine why [he] was being

subjected to timber theft and survey iron’s [sic] being moved or disappearing

all together [sic].” Id. at U 63.

Finn alleges he sought help from the Firm, but was repeatedly told that he

needed to get a land survey. Am. Compl. at 17 U 64. Plaintiff suffered

several “medical emergencies” that required him to undergo “two subsequent

surgeries.” Id. at 17-18

65-66. As plaintiff explains, this “interfered with

[his] being able to meet or continue [his] attempts to understand [his]

property issues or focus on them except now and then.” Id. at 18 f 66.

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j

Case 3:22-cv-00721-DNH-ML Document 70 Filed 10/21/22 Page 10 of 26

On May 14, 2013, Finn hired Delta Surveyors “to do a land survey that

included all deed/mapping research.” Am. Compl. at 18 *| 69. Plaintiff

alleges defendant Mr. Snyder, the Delta Surveyor, made contradictory

statements about the property lines. Id. at f 70. When plaintiff “realized”

Delta Surveyors were “repeating” the same mistakes that Southern Tier

Surveyors had made, he “released” them. Id. at f 71.

On May 18, 2016, Finn hired defendant Rasmussen to “do title research

and afterwards a property survey.” Am. Compl. at 18 *[f 73. Plaintiff

“witnessed] deliberate falsification” by defendant Green that “disgusted”

him. Id. at ^ 74. However, plaintiff alleges this also gave him more “insight

into what was causing the problem. Id. at 18-19 % 74.

Although defendant Rasmussen-Green commented to Finn that “the deed

is wrong,” they nevertheless “went on to draft their survey to duplicate”

Southern Tier Surveyors “work, again ignoring existing property irons,

surrounding deed’s [sic] and surveys; but most of all the fact that ‘the deed is

wrong.’” Am. Compl. at 19

75. Plaintiff contacted the State Police, but

“was told they do not have the resources to investigate the matter.” Id.

80.

On November 9, 2020, Finn e-mailed Attorney Fitzgerald “telling her [hel

had figured it out, all but who had prepared the deed back in 1984.” Am.

Compl. at 19 f 83. Attorney Fitzgerald told him she did not know who

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Case 3:22-cv-00721-DNH-ML Document 70 Filed 10/21/22 Page 11 of 26

performed the work, and the Firm told him they had no records of ever

having performed the work. Id. at 20 If 85.

However, on June 1, 2021, Finn received some paperwork “from the 1980s”

that “revealed that” the Firm had performed the deed work and that Attorney

Fitzgerald “had drafted the deed.” Am. Compl. at 20 U 86.

Finn submitted two deed corrections to the Broome County Clerk, but they

refused to help him. See Am. Compl. at 20 HU 87-88. During this process,

plaintiff has approached various disciplinary bodies to file complaints but

they have all “refused to do anything.” Id. at U 89.

According to Finn, the refusal by various parties to correct the errors in

his property deed have subjected him “to a lifetime of mental and physical

anguish,” damaged him monetarily, and ended his “40 year happy

marriage.” Am. Compl. at 20 UU 90-91.

III. LEGAL STANDARDS

A. Subject Matter Jurisdiction

“A case is properly dismissed for lack of subject matter jurisdiction under

Rule 12(b)(1) when the district court lacks the statutory or constitutional

power to adjudicate it.” Forjone v. Dep’t of Motor Vehicles, 414 F. Supp. 3d

292, 297-98 (N.D.N.Y. 2019) (cleaned up). “The Second Circuit has drawn a

distinction between two types of Rule 12(b)(1) motions: (i) facial motions and

(ii) fact-based motions.” Nicholas v. Trump, 433 F. Supp. 3d 581, 586

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Case 3:22-cv-00721-DNH-ML Document 70 Filed 10/21/22 Page 12 of 26

(S.D.N.Y. 2020); see also Carter v. HealthPort Techs., LLC, 822 F.3d 47, 56

(2d Cir. 2016) (“A Rule 12(b)(1) motion challenging subject matter jurisdiction

may be either facial or fact-based.”).

“A facial Rule 12(b)(1) motion is one based solely on the allegations of the

complaint or the complaint and exhibits attached to it.” Nicholas, 433 F.

Supp. 3d at 586 (cleaned up). “A plaintiff opposing such a motion bears no

evidentiary burden.” Id. “Instead, to resolve a facial Rule 12(b)(1) motion, a

district court must determine whether the complaint and its exhibits allege

facts that establish subject matter jurisdiction.” Id. “And to make that

determination, a court must accept the complaint’s allegations as true and

draw all reasonable inferences in favor of the plaintiff.” Id.

“Alternatively, a defendant is permitted to make a fact-based Rule 12(b)(1)

motion, proffering evidence beyond the complaint and its exhibits.” Nicholas,

433 F. Supp. 3d at 586 (quoting Carter, 822 F.3d at 57). “In opposition to

such a motion, a plaintiff must come forward with evidence of their own to

controvert that presented by the defendant, or may instead rely on the

allegations in their pleading if the evidence proffered by the defendant is

immaterial because it does not contradict plausible allegations that are

themselves sufficient to show standing.” Id. (cleaned up). “If a defendant

supports his fact-based Rule 12(b)(1) motion with material and controverted

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extrinsic evidence, a district court will need to make findings of fact in aid of

its decision as to the subject matter jurisdiction.” Id.

B. Personal Jurisdiction

Rule 12(b)(2) “permits a defendant to challenge a court’s personal

jurisdiction over it prior to the fifing of an answer or the commencement of

discovery.” A.W.L.I. Grp., Inc. v. Amber Freight Shipping Lines, 828 F. Supp.

2d 557, 562 (E.D.N.Y. 2011). Once a 12(b)(2) challenge is asserted, “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).

“A court has ‘considerable procedural leeway’ on a Rule 12(b)(2) motion,

and may decide it on the basis of affidavits alone, permit discovery, in aid of

the motion, or conduct an evidentiary hearing.” Zornoza v. Terraform Global,

Inc., 419 F. Supp. 3d 715, 726 (S.D.N.Y. 2019) (quoting Dorchester Fin. Sec.,

Inc. v. Banco BRJ, S.A., 722 F.3d 81, 85 (2d Cir. 2013) (per curiam)).

Indeed, “[i]t is well settled under Second Circuit law that, even where

plaintiff has not made a prima facie showing of personal jurisdiction, a court

■

may still order discovery, in its discretion, when it concludes that the plaintiff

may be able to establish jurisdiction if given the opportunity to develop a full

factual record.” Leon v. Shmukler, 992 F. Supp. 2d 179, 194 (E.D.N.Y. 2014).

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Case 3:22-cv-00721-DNH-ML Document 70 Filed 10/21/22 Page 14 of 26

“Where a court opts to determine the jurisdictional issue without an

evidentiary hearing or discovery, a plaintiff need make only a prim a facie

showing of jurisdiction through its own affidavits and supporting

materials.” Brady v. Basic Research, L.L.C., 101 F. Supp. 3d 217, 229

(E.D.N.Y. 2015) (cleaned up). “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.’” Id.

In either case, “[t]he court construes any pleadings and affidavits in the

light most favorable to the plaintiff and resolves all doubts in plaintiffs

favor.” Zornoza, 419 F. Supp. 3d at 726. “However, courts should ‘not draw

argumentative inferences in the plaintiffs favor’ or ‘accept as true a legal

conclusion couched as a factual allegation.’” Id. (citation omitted). In sum,

plaintiff s “prima facie showing must include an averment of facts that, if

credited by the ultimate trier of fact, would suffice to establish jurisdiction

over the defendant.”. Id. (cleaned up).

C. Service of Process

Rule 12(b)(5) authorizes a defendant to move for pre-answer dismissal of a

pleading for insufficient service of process. FED. R. ClV. P. 12(b)(5). “[Wjhen

a defendant moves to dismiss under Rule 12(b)(5), the plaintiff bears the

burden of proving adequate service.” Dickerson v. Napolitano, 604 F.3d 732,

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Case 3:22-cv-00721-DNH-ML Document 70 Filed 10/21/22 Page 15 of 26

752 (2d Cir. 2010) (quoting Burda Media, Inc. v. Viertel, 417 F.3d 292, 298

(2d Cir. 2005)). “In deciding a Rule 12(b)(5) motion, a court looks to materials

outside of the pleadings to determine whether service of process has been

sufficient.” Jordan v. Asset Forfeiture Support Assocs., 928 F. Supp. 2d 588,

594 (E.D.N.Y. 2013) (cleaned up). If service is found to be insufficient, the

court may grant plaintiff leave to cure the insufficiency or dismiss the

action. See, e.g., DiFillippo v. Special Metals Corp., 299 F.R.D. 348, 353

(N.D.N.Y. 2014) (D’Agostino, J.).

D. Failure to State a Claim

To survive a Rule 12(b)(6) motion to dismiss, the complaint’s factual

allegations must be enough to elevate the plaintiffs right to relief above the

level of speculation. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). So

while legal conclusions can provide a framework for the complaint, they must

be supported with meaningful allegations of fact. Ashcroft v. Iqbal, 556 U.S.

662, 679 (2009). In short, a complaint must contain “enough facts to state a

claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.

To assess this plausibility requirement, the court must accept as true all of

the factual allegations contained in the complaint and draw all reasonable

inferences in the non-movant’s favor. Erickson v. Pardus, 551 U.S. 89, 94

(2007). In doing so, the court generally confines itself to the facts alleged in

the pleading, any documents attached to the complaint or incorporated into it

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by reference, and matters of which judicial notice may be taken. Goel v.

Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016).

IV. DISCUSSION

As an initial matter, Finn is proceeding pro se. Accordingly, his filings

must be “liberally construed” and “held to less stringent standards than a

formal pleading drafted by lawyers.” Ahlers u. Rabinowitz, 684 F.3d 53, 60

(2d Cir. 2012) (cleaned up); see also Bertin u. United States, 478 F.3d 489, 491

(2d Cir. 2007) (observing that courts must liberally construe pleadings and

briefs submitted by pro se litigants in a way that raises the strongest

arguments they suggest).

However, even accounting for Finn’s status as a pro se litigant, this action

must be dismissed. “A federal court exercises limited jurisdiction pursuant to

Article III of the Constitution. It may exert subject matter jurisdiction over

claims in which: (1) there is a ‘federal question’ in that a colorable claim

arises under the ‘Constitution, laws or treaties of the United States,’ 28

U.S.C. § 1331; and/or if (2) there is complete ‘diversity of citizenship’ between

each plaintiff and all defendants and a minimum of $75,000 in controversy,

28 U.S.C. § 1332.” White v. Renzi, 2022 WL 3646825, at *10 (N.D.N.Y. Aug.

24, 2022) (citations omitted).

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A. Federal-Question Jurisdiction

Finn’s amended complaint identifies two bases for federal-question

jurisdiction: the Due Process Clause and 42 U.S.C. § 1985(3). Am. Compl. at

1

1. Under the “well-pleaded complaint” rule, “federal jurisdiction exists

only when a federal question is presented on the face of the plaintiffs

properly pleaded complaint.” Beneficial Nat’l Bank v. Anderson, 539 U.S. 1,

12 (2003). Upon review, plaintiff has not alleged a colorable claim under

either provision of federal law.

1. Due Process

“A due process claim cannot lie against a private actor unless the allegedly

unconstitutional conduct is ‘fairly attributable to the State.’” Doe v. Livanta

LLC, 489 F. Supp. 3d 11, 17 (E.D.N.Y. 2020) (quoting Am. Mfrs. Mut. Ins. Co.

v. Sullivan, 526 U.S. 40, 50 (1999)). “In other words, the due process clause

provides no shield against merely private conduct, however discriminatory or

wrongful.” Id. (cleaned up).

“[S]tate action requires both an alleged constitutional deprivation ‘caused

by the exercise of some right or privilege created by the State or by a rule of

conduct imposed by the State or by a person for whom the State is

responsible,’ and that ‘the party charged with the deprivation must be a

person who may fairly be said to be a state actor.’” Am. Mfrs. Mut. Ins. Co.,

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526 U.S. at 50 (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937

(1982)).

As the Supreme Court has recognized, “there is no single test to identify

state actions and state actors.” Brentwood Acad. v. Tenn. Secondary Sch.

Athletic Ass’n, 531 U.S. 288, 294 (2001). Although a host of factors can bear

on this question, three main tests have emerged:

For purposes of section 1983, the actions of a

nominally private entity are attributable to the state

when: (1) the entity acts pursuant to the “coercive

power” of the state or is “controlled” by the state (“the

compulsion test”); (2) when the state provides

“significant encouragement” to the entity, the entity is

a “willful participant in joint activity with the state,”

or the entity’s functions are “entwined” with state

policies (“the joint action test” or “close nexus test”); or

(3) when the entity “has been delegated a public

function by the state (“the public function test”).

Sybalski v. Indep. Grp. Home Living Program, Inc., 546 F.3d 255, 257 (2d Cir.

2008) (cleaned up).

Finn’s amended complaint alleges wrongdoing attributable to private

individuals—surveying companies and their owners or employees, various

lawyers, and a law firm. Importantly, none of the conduct they are alleged to

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have undertaken vis-a-vis the disputed property boundaries satisfies any of

the “state action” tests in Sybalski.4

To the extent Finn has attempted to allege that a couple of the named

defendants was engaged in “state action” when, on April 24, 1984, they

“submitted the commissioner’s deed” to a state court, Am. Compl. at 9

22,

that is insufficient to qualify under any of Sybalski’s tests.

Even assuming otherwise, any claim based on that alleged conduct would

be clearly time-barred. In New York, claims under 42 U.S.C. § 1983-—as

Finn’s due process claim would be—are subject to a three-year statute of

limitations. Patterson v. Cnty. of Oneida, 375 F.3d 206, 225 (2d Cir. 2004).

The three-year clock begins to run on the date the particular cause of action

accrues; i.e., when the plaintiff knows or has reason to know of the harm.

Eagleston v. Guido, 41 F.3d 865, 871 (2d Cir. 1994).

If measured from the date on which the alleged fraud occurred; i.e., April

24, 1984, Finn’s claim is clearly untimely. Broadly construed, however,

plaintiffs amended complaint could be understood to allege that this fraud

was concealed from his knowledge for a period of time. Even so, plaintiff

4 This lack of state action is fatal to a due process claim. Importantly, though it would also be

fatal to any other kind of § 1983 claim that might be construed (in light of Finn’s pro se status) from

the facts alleged in the amended complaint. See, e.g., Fabrikant v. French, 691 F.3d 193, 206 (2d Cir.

2012) (“Because the United States Constitution regulates only the government, not private parties, a

litigant claiming that his constitutional rights have been violated must first establish that the

challenged conduct constitutes ‘state action.’”).

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alleges that he realized or became aware of the alleged misconduct from 1984

either in 1997, when he hired Southern Tier Surveyors, or at the latest, on or

about May 18, 2016, shortly after he witnessed Rasmussen attempt to survey

the incorrect or disputed property boundaries.

Although the doctrine of “equitable tolling” can extend the three-year

limitations period in cases of “fraud, misrepresentation! 1 or deception,”

Abbas v. Dixon, 480 F.3d 636, 642 (2d Cir. 2007), a plaintiff still “bears the

burden of showing that the action was brought within a reasonable period of

time after the facts giving rise to the equitable tolling . . . have ceased to be

operational.” Id. (cleaned up).

Finn did not file this civil action until July 8, 2022, nearly six years after

even he admits to discovering the source and nature of the fraud. Although

he alleges he did not discover that Attorney Fitzgerald performed the 1984

deed work until he received paperwork from the Firm on June 1, 2021, Am.

Compl. at 20

86, plaintiff still knew, or had reason to know, of the harm by

at least 2016, when he became aware of the false survey description in the

deed. Accordingly, any § 1983 claim—whether based due process or any

provision of federal law—based on this alleged misconduct is clearly

time-barred even if the state action requirement were somehow satisfied.

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2. Conspiracy

Finn’s second claim fares no better. Plaintiff identifies 42 U.S.C. § 1985,

which “provides a statutory remedy where a plaintiff can prove a conspiracy

to violate his/her civil rights.” Morpurgo v. Inc. Vill. of Sag Harbor, 697 F.

Supp. 2d 309, 339 (E.D.N.Y. 2010). However, in order to state an actionable

claim under § 1985(3), “the plaintiff must also show that the conspiracy was

motivated by ‘some racial, or perhaps otherwise class-based, invidious

discriminatory animus behind the conspirators’ actions.’” Id. (quoting Mian

v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1088 (2d Cir. 1993)).

Finn has not done so. Plaintiffs amended complaint alleges a conspiracy

by some of the named defendants to personally deprive him of a portion of his

real property.5 Plaintiff has not alleged membership in any “class” protected

by § 1985(3). “When a plaintiff fails to establish membership in a protected

group, a civil rights conspiracy complaint under Section 1985 must be

dismissed.” Morpurgo, 697 F. supp. 2d at 341.

5 Section 1985(3) also requires “state action.” Young v. Suffolk Cnty., 705 F. Supp. 2d 183, 208

n.8 (E.D.N.Y. 2010). It likewise imposes a three-year statute of limitations, which runs separately

from each “overt act” alleged to have damaged the plaintiff. Farbstein v. Hicksville Public Library,

323 F. Supp. 2d 414, 420 (E.D.N.Y. 2004). Even broadly construed, the overt acts—which would

include conduct such as presenting a false deed to the state court—are all clearly time-barred as they

occurred decades ago.

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B. Diversity Jurisdiction

As noted supra, even in the absence of colorable federal claims a district

court can still exercise subject matter jurisdiction over a lawsuit if the parties

are completely diverse and the amount in controversy exceeds $75,000.

In this context, “diverse citizenship” means a party’s “domicile,” which in

turn means “the place where a person has his true fixed home and principal

establishment, and to which, whenever he is absent, he has the intention of

returning.” Palazzo ex rel. Deimage v. Corio, 232 F.3d 38, 42 (2d Cir. 2000).

Finn’s amended complaint alleges facts that, broadly construed, establish

his domicile as New York. Am. Compl. at 2

2a. But plaintiff also alleges

facts that, broadly construed, establish that each of the named defendants is

also domiciled in New York. Id. at

2a-21.6 In short, plaintiff has failed to

allege the complete diversity required by the statute. See, e.g., Lincoln

Property Co. v. Roche, 546 U.S. 81, 82 (2005).

C. Frivolous

To the extent that a basis for subject matter jurisdiction might exist,

Finn’s amended complaint would still be subject to dismissal because it is

frivolous. “A district court has the inherent authority to dismiss an action

6 The only exception is Attorney Migdal, who is alleged to reside at an address in Washington,

D.C. Am. Compl. at 3 f 2f. But as the Firm defendants correctly note, the only conduct alleged to

have been undertaken by Attorney Migdal is his receipt and transmission of the commissioner’s deed

he received from Attorney Fitzgerald in 1984. Id. at 9 1H[ 22-24. That kind of ministerial act,

standing alone and occurring decades ago, does not establish a basis for jurisdiction.

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that lacks an arguable basis either in law or in fact, regardless of whether the

plaintiff has paid the filing fee.” MacKinnon v. City of N. Y. /Human Res.

Admin., 580 F. App’x 44, 45 (2d Cir. 2014) (summary order) (cleaned up).

As relevant here, Finn’s amended complaint lacks an arguable basis in

law. An action lacks an arguable basis in law when it is based on “an

indisputably meritless legal theory” or “a dispositive defense clearly exists on

the face of the complaint.” Livingston v. Adirondack Beverage Co., 141 F.3d

434, 437 (2d Cir. 1998) (cleaned up).

The specific events about which Finn complains occurred many decades

ago. Although the misconduct may have been concealed from his knowledge

for a period of time, plaintiff acknowledges learning about the misconduct in

1997 or, at the latest, in 2016. The alleged misconduct he has identified is

attributable to a group of entirely private actors. As explained supra,

constitutional claims against wholly private actors are not cognizable in

federal court. To the extent they might have once been actionable, they are

clearly time-barred.

Notably, the only named defendants against which Finn has actually

levied possible accusations of misconduct are Attorney Fitzgerald and the

Firm, who in 1984 allegedly facilitated the recording of a false or incorrect

property deed. In other words, although plaintiff obviously disagrees with

the approach taken by the surveying companies he later hired, he seems to

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recognize that these entities acted in good-faith (if incorrect) reliance on the

so-called “false” deed filed all the way back in 1984.

This is noteworthy, because the Firm defendants point out that Finn has

already tried to proceed in a civil action against them based on the alleged

misconduct that occurred in 1984. That action was dismissed with prejudice

by a state court. See Ex. B to Davolos Decl., Dkt. No. 52-4.

Absent vacatur of, or a successful appeal from, that prior state court

decision, any subsequent lawsuit based on the same facts against those same

defendants—such as this one—would be barred by res judicata, which

precludes parties from relitigating issues that were or could have been raised

in a prior action. Howard Carr Cos., Inc. v. Cumberland Farms, Inc., 456 F.

Supp. 3d 462, 468 (N.D.N.Y. 2020) (explaining preclusion principles).

Importantly, in declaring that this action would be “frivolous” the Court

does not intend to be insensitive to Finn’s strongly held belief that he has

been wronged by one or more of the named defendants. Instead, it is simply

the legal term of art used to recognize the fact that plaintiff cannot further

pursue his claims in this federal forum. Eggsware v. E. Coast Syndicate,

2022 WL 1129855, at *4 (N.D.N.Y. Feb. 7, 2022) (Report & Recommendation

of Hummel, M. J.) (“This Court has an overarching obligation to determine

that a claim is not legally frivolous before permitting a pro se plaintiffs

complaint to proceed.”).

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D. Leave to Amend

The final question is whether Finn should be given leave to amend his

pleading, which he has already amended once as of right. “Generally, leave

to amend should be freely given, and a pro se litigant in particular should be

afforded every reasonable opportunity to demonstrate that he has a valid

claim.” Matima v. Celli, 228 F.3d 68, 81 (2d Cir. 2000) (cleaned up).

However, “it is well established that leave to amend a complaint need not

be granted where amendment would be futile.” Ellis v. Chao, 336 F.3d 114,

127 (2d Cir. 2003). After considering the matter, Finn will not be given leave

to further amend because the problems with his underlying claims are

substantive ones—however characterized, they are grounded in a set of facts

that took place several decades ago and that involve purely private actors.

As noted supra, to the extent Finn has actually alleged actionable

wrongdoing against Attorney Fitzgerald and the Firm, those claims would be

barred because he already litigated them in state court. In short, because

plaintiff cannot sustain any claims based on the facts alleged, leave to amend

would be futile. Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).

V. CONCLUSION

Finn’s amended complaint must be dismissed. If plaintiff has a good-faith

belief that one or more of the attorneys or land surveying companies (or their

owners or employees) committed malpractice or violated their ethical

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obligations, the remedy for that conduct lies in either state court or in a

grievance to the appropriate regulatory body.

Therefore, it is

ORDERED that

1. The Delta Surveyor defendants’ motion to dismiss is GRANTED;

2. The Law Firm defendants’ motion to dismiss is GRANTED; and

3. Finn’s amended complaint is DISMISSED in its entirety without leave

to amend.

The Clerk of the Court is directed to terminate the pending motions, enter

a judgment accordingly, and close the file.

IT IS SO ORDERED.

Dated: October 21, 2022

Utica, New York.

DavidNiHurcr

U.S. District Judge

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