Opinion
22 CV 975 (DEH) (RWL)
04-04-2024
CARMINE P. AMELIO, ALFONSO AMELIO, and PAUL AMELIO, Plaintiffs, v. GALIA HOURI, EYAL RONEN, UNKNOWN FEMALE TRESPASSER “NEVO,” NICHOLAS BLASONE, MAY HESS, PATRICIA BLASONE, THE LEGAL AID SOCIETY, MAX REINHARDT, RICHARD SEMEGRAM, NAVEED M. SIDDIQI, SIDDIQI LAW GROUP, LEIROZE MIZRAHI, INSTALOCK LOCKSMWITH 304 INC, JONATHAN CORRADO, NADAVE HOURI, BERNADETTE COREY, and JOEL POLANCO Defendants.
REPORT AND RECOMMENDATION TO HON. DALE E. HO: MOTION TO DISMISS AND MOTION TO AMEND
ROBERT W. LEHRBURGER, United States Magistrate Judge.
Plaintiffs, three brothers, filed this action alleging a variety of claims under state law arising from the rental of and damage to Plaintiffs' residential property in the Bronx, New York. Their first complaint was dismissed for lack of subject matter jurisdiction; Plaintiffs had not asserted any federal law claim and had met neither the diversity nor monetary requirements necessary for diversity jurisdiction. Plaintiffs have since amended their complaint three times, added claims under federal law, and now seek leave to amend a fourth time. In the meantime, Defendants the Legal Aid Society, Max Reinhardt, and Richard Semegram (the “Legal Aid Defendants”) have moved to dismiss the claims against them with prejudice. This report and recommendation addresses both motions. For the reasons set forth below, the Legal Aid Defendants' motion to dismiss should be granted in its entirety, and Plaintiffs' motion to amend should be granted in part and denied in part.
Factual Background
As required on a motion to dismiss, the facts are based on the well-pled allegations of the currently operative pleading, the Third Amended Complaint (“TAC”) (Dkt. 25), and for the motion to amend, on the well-pled allegations of the proposed pleading, the Fourth Amended Complaint (“FAC”) (Dkt. 81).
Plaintiffs Alfonso Amelio and Carmine Amelio reside in Connecticut. (TAC ¶¶ 2-3; FAC ¶¶ 2-3.) Plaintiff Paul Amelio resides in both Connecticut and New York. (TAC ¶ 4; FAC ¶ 4.) The named Defendants fall into several groups, all of whom are alleged to be residents of or otherwise domiciled in New York or Florida. (TAC ¶¶ 5-21; FAC ¶¶ 5-21.)
A. Rental, Damage, And Landlord-Tenant Dispute
On or about July 28, 2020, Defendant Galia Houri (“Houri”) booked a reservation, through Airbnb, at a house located in the Bronx, New York (the “Property”). (TAC ¶ 23; FAC ¶ 23.) Each of the three Amelio brothers has an ownership interest in the Property. (TAC ¶¶ 2-4; FAC ¶¶ 2-4.) Houri stayed at the Property with her husband Eyal Ronen (“Ronen”). (TAC ¶ 24; FAC ¶ 24.)
Plaintiffs allege that Houri and Ronen caused at least $12,486 in damages to the Property by, inter alia, clogging plumbing, causing water damage, altering walls, and damaging cabinets, flooring, and furniture. (TAC ¶¶ 25-26, 48; FAC ¶¶ 25-26, 48.) Plaintiffs also allege unauthorized access to their Optimum Cable internet account. (TAC ¶¶ 33-38; FAC ¶¶ 33-38.)
Houri and Ronen occupied the Property beyond the end of their rental agreement for a period of approximately six months, resulting in $19,500 in unpaid rent. (TAC ¶¶ 2731; FAC ¶¶ 27-31.) Related to their stay at the Property, Houri and Ronen filed multiple lawsuits against Plaintiffs in New York State Landlord-Tenant court in the Bronx allegedly claiming, falsely, “illegal lockout” and causing holdover damages in the amount of $39,000. (TAC ¶ 32; FAC ¶ 32.)
The FAC alleges that Houri and Ronen filed four Landlord-Tenant actions (¶ 32), but later says that Houri and Ronen filed three actions, while Carmine filed a Landlord-Tenant action against them (¶ 82). The discrepancy is irrelevant to the instant motions.
B. Trespasser Incidents
On or about September 14, 2021, Carmine observed Houri and Ronen leave the Property with large suitcases. (TAC ¶ 39; FAC ¶ 39.) The following day, Carmine observed that someone had removed no trespassing signs and blocked security cameras at the Property's rear entrance. (TAC ¶ 40; FAC ¶ 40.) On September 16, 2021, Carmine filed a complaint at the 45th Police Precinct concerning Houri and Ronen, unauthorized access to Carmine's cable account, and breach of his security cameras by an unknown person. (TAC ¶ 42; FAC ¶ 42.) The police allegedly refused to take Carmine's complaint and instead made a harassment report. (TAC ¶ 43; FAC ¶ 43.) Carmine sent a text to Houri and Ronen advising them that he had filed a police complaint against them and warning them not to tamper with his mail and mailbox. (TAC ¶¶ 44-46; FAC ¶¶ 44-46.)
Late at night on September 16, 2021, Carmine observed an “unknown” female trespasser referred to as “Nevo” attempting to enter the Property. (TAC ¶ 49; FAC ¶ 49.) The next day, Carmine observed Nevo breaking into the Property with the help of a locksmith, Defendant Leiorze Mizrahi, owner of Defendant Instalock Locksmith 304 Inc. (the “Locksmith Defendants”). (TAC ¶ 51; FAC ¶ 51.) Carmine called the police, after which “Officer Hasan” arrived on the scene. (TAC ¶¶ 52-53; FAC ¶¶ 52-53.) Based on information provided by Defendant Nicholas Blasone (“Blasone”), a neighbor, Officer Hasan permitted Nevo to remain on the Property. (TAC ¶ 54; FAC ¶ 54.)
On October 1, 2021, Carmine observed Nevo's car parked in the Property's driveway despite the presence of no-parking signs. (TAC ¶ 56; FAC ¶ 56.) Carmine called 911, and the police ticketed Nevo's car; Carmine then had the car towed away. (TAC ¶ 57; FAC ¶ 57.) Carmine called the 45th Precinct again on October 7, 2021, to complain that Nevo was trespassing and illegally occupying the Property. (TAC ¶ 58; FAC ¶ 58.) Carmine spoke with Defendant Detective Anthony Corrado, who informed Carmine that he was within his rights and should secure the Property. (TAC ¶¶ 59-60; FAC ¶¶ 59-60.) Detective Corrado also arranged for police officers to assist Carmine. (TAC ¶¶ 61-62; FAC ¶¶ 61-62.)
The following evening, Carmine again observed Nevo attempting to enter the Property and also entering Blasone's house. (TAC ¶¶ 63-64; FAC ¶¶ 63-64.) Police came to the scene, and one of the officers informed Nevo that she was not permitted to enter the Property. (TAC ¶¶ 65-66; FAC ¶¶ 65-66.) Carmine then met Nevo at the Property for her to retrieve her belongings, but she refused to do so and instead verbally harassed Carmine. (TAC ¶¶ 67-69; FAC ¶¶ 67-69.) On October 11, 2021, Carmine observed Defendants Houri and Ronen at the Property after not having seen or heard from them since mid-September. (TAC ¶ 71; FAC ¶ 71.)
C. Arrest And Complaints
On October 12, 2021, Carmine received a call from Detective Corrado instructing Carmine to let Houri and Ronen back into the Property. (TAC ¶ 72; FAC ¶ 72.) Carmine believes Detective Corrado acted on false statements made by Houri and Ronen. (TAC ¶ 73; FAC ¶ 73.) Based on Houri and Ronen's false statements to the police, Carmine was “forced and coerced under duress by the police” to provide keys and allow Houri and Ronen access to the Property. (TAC ¶ 77; FAC ¶ 77.)
On October 14, 2021, however, Carmine was arrested by Defendant Officer Bernadette Corey for illegal eviction. (TAC ¶ 78; FAC ¶ 78.) Neither the TAC or FAC provides any additional information about the alleged arrest.
On November 10, 2021, Carmine again filed police complaints against Houri and Ronen, as well as Detective Corrado and Officer Corey. (TAC ¶ 79; FAC ¶ 79.) Defendant Sergeant Joel Polanco investigated and dismissed the complaints, which Plaintiffs allege he “used as a cover up for complaints against Detective Corrado and Officer Corey.” (TAC ¶ 79; FAC ¶79.) Neither the TAC nor FAC provides any additional information about the alleged “cover up.”
Plaintiffs also allege that on or about March 18, 2020, Carmine filed complaints with the United States Postal Service and United States Postal Inspector for mail tampering and unauthorized access to his secure mailbox by Defendants Houri and Ronen. (FAC ¶¶ 80-81.) That allegation is not taken as well-pled as March 18, 2020, precedes by several months the date when Defendants Houri and Ronen are first to have rented the Property in late July 2020. (See FAC ¶ 23.) In any event, those allegations are immaterial to resolution of the instant motions.
D. Landlord-Tenant Actions
Plaintiffs allege that “[s]ubsequently” (neither the TAC nor FAC provides any dates), Houri filed three petitions in Landlord-Tenant court “with false statements and allegations, including false reporting of income in order to obtain free legal service from The Legal Aid Society.” (TAC ¶ 82; FAC ¶ 82.) Defendants Max Reinhardt and Richard Semegram are the Legal Aid attorneys who represented Houri. (Id.) Plaintiffs allege that the petitions were filed “in retaliation and meant to harass Plaintiffs.” (Id.) The FAC expands on the allegations about the Landlord-Tenant actions, asserting that records from the cases provide clear and unequivocal evidence of frivolous litigation, deception, disparagement, extortion, and fraud upon the Court by Houri and her attorneys that deprived Plaintiffs of due process. (FAC ¶ 82.) Plaintiffs further allege that the petitions were unlawfully commenced in violation of Carmine's personal bankruptcy proceeding, and breached the rental agreement entered into with Plaintiffs. (Id.)
On January 8, 2022, Carmine retained Defendant attorney Naveed M. Siddiqi and his firm, Defendant Siddiqi Law Group P.C. (the “Siddiqi Defendants”) both to represent him in at least one of the Landlord-Tenant actions and to commence a case against Houri and Ronen in New York State Supreme Court. (TAC ¶ 83; FAC ¶ 83.) The FAC charges the Siddiqi Defendants with malpractice for providing incorrect advice about the strategic benefit of filing the Supreme Court action, and failing to respond to opposing counsel and communicate with Carmine about settlement of the Landlord-Tenant action. (Id.) Carmine fired the Siddiqi Defendants and proceeded pro se in the Landlord-Tenant action. (Id.) Under duress, Carmine then settled the Landlord-Tenant action with Houri and Ronen. (Id.) Carmine requested return of a $1,200 deposit paid to the Siddiqi Defendants, but they refused. (Id.)
The settlement apparently included return of items belonging to Houri, Ronen and Nevo, as well as two Defendants not otherwise mentioned anywhere else in the FAC, May Hess and Nadev Houri. (TAC ¶ 83; FAC ¶ 83.) Although the FAC adds Patricia Blasone as a Defendant to the FAC, the FAC does not include any allegations about her conduct.
Procedural History
A. The Currently Operative Third Amended Complaint
Plaintiffs commenced the action on February 3, 2022. The current, operative complaint is the TAC filed on June 16, 2023. (Dkt. 25) It asserts sixteen counts: (I) Breach of contract and fiduciary duty (against Houri, Ronen, the Siddiqi Defendants); (II) Property damage (against Houri, Ronen, Nevo, Blasone, the Legal Aid Defendants, and the Locksmith Defendants); (III) Impersonation and unauthorized access to Plaintiffs' internet account (against Houri and Ronen); (IV) Mail tampering in violation of 18 U.S.C. § 1708 (against Houri and Ronen); (V) Harassment under New York common law (against Houri, Ronen, Nevo, Blasone, the Legal Aid Defendants, Locksmith Defendants, and Defendants Corrado, Corey, and Polanco (the “Police Defendants”)); (VI) Negligence (against Houri, Ronen, Nevo, Blasone, the Legal Aid Defendants, Locksmith Defendants, Siddiqi Defendants, and Police Defendants); (VII) Intentional infliction of emotional distress (against Houri, Ronen, Nevo, Blasone, the Legal Aid Defendants, Locksmith Defendants, Siddiqi Defendants, and Police Defendants); (VIII) Negligent infliction of emotional distress (no Defendants specified); (IX) Tortious interference with Plaintiffs' property (no Defendants specified); (X) Conspiracy under New York common law (against Houri, Ronen, Nevo, Blasone, the Legal Aid Defendants, Locksmith Defendants, and Police Defendants); (XI) Unlawful seizure in violation of the Fourth Amendment (against the Police Defendants); (XII) Retaliation in violation of the First Amendment (against Houri, Ronen, Nevo, Blasone, the Legal Aid Defendants, Locksmith Defendants, Siddiqi Defendants, and Police Defendants); (XIII) False statements by a public official in violation of the Fourteenth Amendment (against Houri, Ronen, Nevo, Blasone, the Legal Aid Defendants, Locksmith Defendants, Siddiqi Defendants, and Police Defendants); (XIV) Denial of procedural due process and equal protection in violation of the Fourteenth Amendment (against Houri, Ronen, Nevo, Blasone, the Legal Aid Defendants, Locksmith Defendants, Siddiqi Defendants, and Police Defendants); (XV) Cover up (against the Police Defendants), and (XVI) legal malpractice (against the Siddiqi Defendants and Legal Aid Defendants).
Count XVI is erroneously identified as Count XIIII in the Third Amended Complaint.
B. The Legal Aid Defendants' Motion To Dismiss
On November 1, 2023, the Legal Aid Defendants moved to dismiss the Third Amended Complaint. (Dkt. 62-64.) They argue that the Court lacks subject matter jurisdiction because there is not complete diversity between the parties, and because Plaintiffs' claims against the Legal Aid Defendants seek to relitigate state court claims resolved in the Landlord-Tenant proceedings and thus implicate the Rooker-Feldman doctrine. They further contend that the federal claims in the Third Amended Complaint cannot be asserted against the Legal Aid Defendants as they are not state actors. Without any viable federal claims against them, the Legal Aid Defendants assert that the Court should decline to exercise jurisdiction over the remaining state law claims. Finally, they argue that the Third Amended Complaint fails to state a claim against them.
C. Plaintiffs' Proposed Fourth Amended Complaint
Plaintiffs did not file a substantive response to the Legal Aid Defendants' motion to dismiss. Instead, they filed a motion, “In Lieu of Opposition,” for leave to file the FAC to address issues raised by the Legal Aid Defendants and to add defendants and facts. (Dkt. 74.) Plaintiffs' motion did not include a copy of the proposed FAC. At the Court's direction, on January 27, 2024, Plaintiffs filed the proposed pleading, along with a comparison to the TAC. (Dkt. 81.)
Plaintiffs filed an earlier version of their motion to amend on December 11, 2023. (Dkt. 71.)
The Legal Aid Defendants filed their own comparison of the TAC and proposed FAC. (Dkt. 88.)
The FAC replaces allegations of diversity jurisdiction with allegations of federal question jurisdiction pursuant to 28 U.S.C. § 1331 and civil rights jurisdiction under 28 U.S.C. § 1343. (See FAC ¶ 1.) It adds facts, recounted above, expanding on the Landlord-Tenant petitions filed with the assistance of the Legal Aid Defendants. (See FAC ¶ 82.) The FAC also modifies or expands several of the asserted counts and the Defendants charged with them. Those modifications principally include (1) redenominating Count II as common-law negligence, willful damage to property, trespass, and nuisance (rather than simply “property damage”); (2) replacing Count III's allegations of impersonation and unauthorized access to Plaintiffs' internet account with claims of trespass to chattel, conversion, fraud, and violation of the Computer Fraud and Abuse Act (“CFAA”); (3) augmenting Count IV to include not only mail tampering in violation of 18 U.S.C. § 1708, but also claims of obstruction of justice, abuse of legal process, and lying to police, pursuant to 18 U.S.C. §§ 1503, 1505, 1589, and 1694, and expanding the Defendants against whom the claims are made to include not only Houri and Ronen, but also Nevo, Blasone, the Legal Aid Defendants, Locksmith Defendants, Siddiqi Defendants, and Police Defendants; (4) changing Count V from harassment to abuse of process; (5) identifying the particular Defendants against whom Counts VIII and IX are asserted; (6) expanding Count XI to include not only unlawful seizure in violation of the Fourth Amendment but also deprivation of the right to personal privacy and dignity; and (7) adding a count XVII for malicious abuse of process pursuant to 42 U.S.C. § 1983.
The proposed FAC also makes a handful of non-material changes, such as (1) deleting 28 U.S.C. § 1367 (the pendent jurisdiction statute) from the title of various counts in which it had been included (see Counts V to X); (2) adding “pursuant to 42 U.S.C. § 1983” in the title of federal constitutional claims (see Counts XI to XV); and (3) renumbering Count “XIIII” for legal malpractice to be Count XVI.
D. Responses To Plaintiffs' Motion To Amend For A Fourth Time
The only Defendants who have appeared in the action so far are the Legal Aid Defendants and the Police Defendants. (Dkts. 34, 37, 53.) Both groups object to filing of the Fourth Amended Complaint.
On January 31, 2024, the Police Defendants filed a letter contending that Plaintiffs' motion to amend should be denied as to all substantive amendments concerning the Police Defendants because those claims are futile. (Dkt. 82.) In particular, the Police Defendants explained that the state law claims asserted against them are futile because Plaintiffs have not, and cannot, plead compliance with New York's notice-of-claim requirement. As to the federal counts, the Police Defendants asserted that no civil cause of action exists for violation of the federal criminal statutes set forth in Count IV; that Plaintiffs as landlords have no reasonable expectation of privacy with respect to their tenants and that there is no cause of action for deprivation of dignity as alleged in Count XI; that Count XIII's claim for deprivation of due process and equal protection is duplicative; and that Count XVII's claim for malicious abuse of process fails to plausibly allege required elements.
The Police Defendants had filed a similar letter on December 14, 2023, following Plaintiffs' initial request to file a Fourth Amended Complaint, which was superseded by Plaintiffs' amended motion on December 14, 2023. (See Dkt. 71, 73, 74.)
The Police Defendants assert that Count XIII (deprivation of right to due process and equal protection) is improperly “duplicative of Count XVI, which is already a claim in this action.” (Dkt. 82 at 3.) Count XVI of the FAC is for legal malpractice, which is an entirely different claim. It is possible that the Police Defendants intended to say that Count XIII is duplicative of Count XIV in that both assert violations of due process and equal protection under the Fourteenth Amendment. Count XIV, however, specifies “procedural” due process and therefore, liberally construed, is not duplicative of Count III's claim for violation of substantive due process. See Hurd v. Fredenburgh, 984 F.3d 1075, 1092 (2d Cir. 2021) (“substantive due process analysis differs from procedural due process”).
The same day, the Court issued an order that, inter alia, directed the Legal Aid Defendants to indicate, by February 14, 2024, whether they consented to or opposed Plaintiffs' motion to amend and whether they stood on their pending motion to dismiss. (Dkt. 83.) Additionally, the Court stated that it had reviewed the proposed FAC “and, while affording the pro se Plaintiffs a liberal construction of their pleading, sua sponte has determined that certain of Plaintiffs' proposed additional claims necessarily should not be allowed due to futility. The Court specifically identified the claims and the reasons for their futility. In particular, the Court addressed Count III vis-a-vis the CFAA; Count IV (criminal statutes); all Section 1983 claims as to Defendants other than the Police Defendants (Counts XII-XIV and XVII); and Count XII in its entirety, even as to the Police Defendants, for failure to allege any plausible allegations of retaliation. The Court ordered that Plaintiffs file by February 14, 2024, a letter explaining why the claims are not futile and should be allowed in the event that any amendment were allowed.
On February 14, 2024, the Legal Aid Defendants filed a letter opposing Plaintiffs' proposed amendments, not only for failing to meet requisite pleading standards, but also because they are futile as to the Legal Aid Defendants. (Dkt. 88.) They argued that the federal claims asserted against the Legal Aid Defendants are futile because the Legal Aid Defendants are not governmental actors operating under the color of state law, and because, with respect to Count IV, there is no private cause of action for violation of the criminal statutes asserted. The Legal Aid Defendants reiterated their subject matter jurisdiction argument based on the Rooker-Feldman doctrine and asked that the Court deny Plaintiffs' motion to amend and grant the Legal Aid Defendants' motion to dismiss.
Plaintiffs did not file a response to the order to show cause as required by February 14, 2024. Instead, they filed a letter that day asking for an extension of time until March 4, 2024. (Dkt. 89.) The Court granted the request and directed that “to the extent Plaintiffs wish to respond to Defendants' letters at Dkt. 82 and 88, both of which concern Plaintiffs' proposed Fourth Amended Complaint, Plaintiffs must do so in the same letter due by March 4, 2024.” (Dkt. 90.) The order concluded with a warning that “Plaintiffs will not be given any further extensions to respond.” Yet again, Plaintiffs did not respond as directed. Instead, they asked for an additional extension of two weeks. (Dkt. 91.) The Court denied the request, as well as Plaintiffs' motion for reconsideration. (Dkts. 92, 94.)
Throughout this litigation, Plaintiffs have asked for extension after extension after extension, pleading various medical conditions and not having enough time because they are occupied with many other pending litigation matters. (See, e.g., orders at Dkts. 8, 10, 12, 14, 24, 31, 65, 68, 70.) Plaintiffs are no strangers to the courts and the necessity of complying with court rules, having filed numerous actions in federal and state courts. Carmine Amelio in particular has unnecessarily clogged the courts and court dockets with frivolous motions and actions. One court described Carmine Amelio as having “demonstrated a history of vexatious, harassing, and duplicative lawsuits,” Amelio v. Piazza, No. 19-CV-5944, 2020 WL 5535241, at *4 (S.D.N.Y. Sept. 15, 2020), while another court described him as “a vexatious litigant” who has “purposely filed frivolous and vexatious motions and pleadings.” Id. at *2 (quoting Bankruptcy Court, which imposed a filing injunction on Amelio because of his vexatious conduct). See also Amelio v. Morris, 19-CV-8696, 2019 WL 5294931, at *3 (S.D.N.Y. Oct. 18, 2019) (warning Carmine Amelio that he will be subject to a filing injunction for engaging in “further duplicative or frivolous litigation”). The Court has little sympathy for time lost to Plaintiffs' own vexatious and duplicative legal proceedings. In any event, as explained below, notwithstanding the liberal reading afforded pro se litigants' pleadings, pro se parties must still adhere to procedural rules of court.
Legal Standards
A. Motions To Dismiss For Failure To State A Claim
Federal Rule of Civil Procedure 12(b)(6) permits motions to dismiss a complaint for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). To survive a Rule 12(b)(6) motion, a complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when the factual content pleaded allows a court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.'” Id. (quoting Twombly, 550 U.S. at 557).
In considering a motion to dismiss for failure to state a cause of action, a district court “accept[s] all factual claims in the complaint as true, and draw[s] all reasonable inferences in the plaintiff's favor.” Lotes Co., Ltd. v. Hon Hai Precision Industry Co., 753 F.3d 395, 403 (2d Cir. 2014) (internal quotation marks omitted). This tenet, however, is “inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. “Rather, the complaint's [f]actual allegations must be enough to raise a right to relief above the speculative level ... i.e., enough to make the claim plausible.” Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) (internal quotation marks omitted). A complaint is properly dismissed where, as a matter of law, “the allegations in [the] complaint, however true, could not raise a claim of entitlement to relief.” Twombly, 550 U.S. at 558.
When deciding a motion to dismiss pursuant to Rule 12(b)(6), a court generally is confined to the facts alleged in the complaint. Cortec Industries v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991). A court may, however, consider additional materials, including documents attached to the complaint, documents incorporated into the complaint by reference, and public records. See Kleinman v. Elan Corp., PLC, 706 F.3d 145, 152 (2d Cir. 2013) (quoting ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007)). And, if “a document relied on in the complaint contradicts allegations in the complaint, the document, not the allegations, control, and the court need not accept the allegations in the complaint as true.” Poindexter v. EMI Record Group Inc., No. 11-CV-559, 2012 WL 1027639, at *2 (S.D.N.Y. March 27, 2012) (citing Barnum v. Millbrook Care Ltd. Partnership, 850 F.Supp. 1227, 1232-33 (S.D.N.Y. 1994)).
B. Motions To Amend
Motions to amend are principally governed by Federal Rule of Civil Procedure 15(a). Under that rule, “[t]he court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2); see Aetna Casualty and Surety Co. v. Aniero Concrete Co., 404 F.3d 566, 603 (2d Cir. 2005). A district court, however, “has discretion to deny leave for good reason.” McCarthy v. Dun and Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007). The Second Circuit has held that a Rule 15(a) motion “should be denied only for such reasons as undue delay, bad faith, futility of the amendment, and perhaps most important, the resulting prejudice to the opposing party.” Aetna Casualty, 403 F.2d at 603-04 (quoting Richardson Greenshields Securities, Inc. v. Lau, 825 F.2d 647, 653 n.6 (2d Cir. 1987)). Delay alone generally is an insufficient justification for the denial of a motion to amend under Rule 15(a). Block v. First Blood Associates, 988 F.2d 344, 350 (2d Cir. 1993). Whether amendment would be futile is governed by the same standards that apply to a 12(b)(6) motion to dismiss for failure to state a claim. IBEW Local Union No. 58 Pension Trust Fund and Annuity Fund v. Royal Bank of Scotland Group, PLC, 783 F.3d 383, 389 (2d Cir. 2015).
Where a party moves to amend after the court-ordered deadline for doing so has expired, a good-cause standard applies pursuant to Rule16 of the Federal Rules of Civil Procedure. That rule does not apply in this instance because Plaintiffs' motion preceded any deadline for amendment.
C. Consideration Of Pro Se Pleadings
“A document filed pro se is ‘to be liberally construed,' and ‘a pro se complaint, however, inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97 (1976)). Courts construe such complaints “to raise the strongest arguments that they suggest,” the idea being that “[i]mplicit in the right of selfrepresentation is an obligation on the part of the court to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal training.” Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).
That said, “even pro se plaintiffs cannot withstand a motion to dismiss unless their pleadings contain factual allegations sufficient to raise a ‘right to relief above the speculative level.'” Martinez v. Ravikumar, 536 F.Supp.2d 369, 370 (S.D.N.Y. 2008) (quoting Twombly, 550 U.S. at 555). Moreover, pro se plaintiffs are not exempt from compliance with relevant rules of procedural and substantive law. See Azzarmi v. Key Food Stores Co-Operative Inc., No. 20-CV-8635, 2021 WL 1734922, at *3 (S.D.N.Y. May 3, 2021) (“Pro se status ‘does not exempt a party from compliance with relevant rules of procedural and substantive law'”) (quoting Maisonet v. Metropolitan Hospital and Health Hospital Corp., 640 F.Supp.2d 345, 348 (S.D.N.Y. 2009)); Harley v. Nesby, No. 08-CV-5791, 2011 WL 6188718, at *11 (S.D.N.Y. Dec. 12, 2011) (“pro se parties are not excused from complying with procedural rules”) (collecting cases).
The Legal Aid Defendants' Motion To Dismiss
The Legal Aid Defendants' motion to dismiss should be granted. The sole allegation against the Legal Aid Defendants, other than jurisdictional, in the TAC is that they represented Houri in the landlord-tenant actions she filed against Plaintiffs. (TAC ¶ 82.) In the proposed FAC, Plaintiffs further allege that the claims in the actions filed by Houri with the assistance of the Legal Aid Defendants were frivolous and fraudulent, being based on “false and/or defective evidence,” including as to whether Houri was entitled to free counsel. (FAC ¶ 82.) The Legal Aid Defendants' motion is based on three independent grounds: absence of subject matter jurisdiction due to lack of diversity; absence of subject matter jurisdiction under the Rooker-Feldman doctrine; and failure to state a claim. The Court addresses each in turn.
A. No Federal Subject Matter Jurisdiction
“To state the obvious, federal courts have subject matter jurisdiction either on the basis of substance, where there is a federal question, or on the basis of citizenship, where the requirements for diversity jurisdiction are satisfied.” See Gottlieb v. Carnival Corp., 436 F.3d 335, 337 n.3 (2d Cir. 2006). In the TAC, Plaintiffs' predicate subject matter jurisdiction on diversity jurisdiction. (TAC ¶ 1.)
Plaintiffs have not met their burden to establish diversity jurisdiction. “[D]iversity jurisdiction exists over civil actions (1) between ‘citizens of different States' and (2) between ‘citizens of a State and citizens or subjects of a foreign state.'” Herrick Co., Inc. v. SCS Communications, Inc., 251 F.3d 315, 322 (2d Cir. 2001) (quoting 28 U.S.C. § 1332). Diversity of citizenship must be complete, id.; diversity does not exist if any plaintiff and any defendant share the same citizenship. Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 553 (2014); Phoenix Four, Inc. v. Strategic Research Corp., 446 F.Supp.2d 205, 212 (S.D.N.Y. 2006) (“in a case with multiple defendants, if a single defendant is from the same state as the plaintiff, the district court loses diversity jurisdiction over the entire action”).
Diversity jurisdiction also requires that the amount in controversy exceed $75,000. 28 U.S.C. § 1332. The TAC enumerates damages to property and unpaid rent and holdover costs that come close to but do not exceed that threshold. The proposed FAC does the same. Plaintiffs allege, however, additional unspecified damages for emotional distress. Whether Plaintiffs satisfy the monetary threshold is a question the Court need not answer given the absence of complete diversity between the parties.
Here, the named Defendants indisputably include persons or entities, such as the Legal Aid Society, that are citizens of New York. The TAC, however, fails to set forth facts to establish a prima facie case of complete diversity. See Platinum-Montaur Life Sciences, LLC v. Navidea Biopharmaceuticals, Inc., 943 F.3d 613, 615, 616-17 (2d Cir. 2019) (as the party invoking the court's jurisdiction, plaintiff has the burden of “prov[ing] jurisdiction by a preponderance of the evidence”); Durant, Nichols, Houston, Hodgson and Cortese-Costa P.C. v. Dupont, 565 F.3d 56, 64 (2d Cir. 2009) (plaintiff bears the burden of “includ[ing] in its complaint adequate allegations to show that the district court has subject matter jurisdiction”). That is because the TAC identifies Plaintiff Paul Amelio as a resident of both Connecticut and New York but does not provide sufficient factual allegations to determine whether Paul Amelio is a citizen of either or both. (TAC ¶ 4.) See Axalta Coating Systems, LLC v. Atlantic Auto Body of Freeport LLC, No. 18-CV-3521, 2019 WL 1491959, at *2 (E.D.N.Y. April 4, 2019) (dismissing case due to insufficiently plead allegations of diversity jurisdiction and distinguishing allegations of residency from allegations of citizenship); Krause v. Forex Exchange Market, Inc., 356 F.Supp.2d 332, 336 (S.D.N.Y. 2005) (“The allegations of the residences of the individuals ... are not equivalent to allegations of citizenship and therefore are insufficient”). Nor does the proposed FAC. To the contrary, in the FAC, Plaintiffs replace the asserted basis for the Court's subject matter jurisdiction - diversity under 28 U.S.C. § 1332 - with federal question jurisdiction under 28 U.S.C. § 1331 and civil rights jurisdiction under 28 U.S.C. § 1343. (FAC ¶ 1.)
In the absence of diversity jurisdiction, the Court would still have subject matter jurisdiction over the TAC's claims against the Legal Aid Defendants if those claims plausibly presented a question of federal law. The TAC does include such claims, specifically claims alleging violation of civil and constitutional rights by a state actor pursuant to 42 U.S.C. § 1983. (TAC Counts XII-XV.) None of those claims, however, may be asserted against the Legal Aid Defendants because neither the Legal Aid Society nor its attorneys are state actors subject to liability under § 1983. See Caroselli v. Curci, 371 Fed.Appx. 199, 201 (2d Cir. 2010) (holding that the Legal Aid Society and individual lawyer employed by the Legal Aid Society were not state actors for purposes of § 1983 claims); Lefcourt v. Legal Aid Society, 445 F.2d 1150, 1156-57 (2d Cir. 1971) (holding that the Legal Aid Society is not a state actor).
In short, the TAC provides no basis for federal subject matter jurisdiction over the claims against the Legal Aid Defendants. Nothing in the proposed FAC would alter the outcome; Plaintiffs assert no new relevant citizenship allegations, and the only federal law claims against the Legal Aid Defendants are grounded in § 1983 for which they cannot be held liable. The Court theoretically could exercise pendent jurisdiction, pursuant to 28 U.S.C. § 1367, of the claims against the Legal Aid Defendants -assuming, for the moment, Plaintiffs have plausible federal law claims against any of the other Defendants. Nonetheless, even if pendent jurisdiction were warranted, the claims against the Legal Aid Defendants still require dismissal for the other reasons advanced by them.
B. The Rooker-Feldman Doctrine Applies
The Court lacks subject matter jurisdiction over the claims against the Legal Aid Defendants for an additional reason: the claims against them improperly implicate review of the New York State Landlord-Tenant litigation that is the basis for Plaintiffs' claims against the Legal Aid Defendants.
The Rooker-Feldman doctrine arises from two decisions issued by the United States Supreme Court, Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), and stands for the proposition that “lower federal courts possess no power whatever to sit in direct review of state court decisions.” Atlantic Coast Line Rail Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 296 (1970); accord Hoblock v. Albany County Board of Elections, 422 F.3d 77, 84 (2d Cir. 2005) (“federal district courts lack jurisdiction over suits that are, in substance, appeals from state-court judgments.”). The doctrine applies to “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 Corp. v. Saudi Basic Industries, 544 U.S. 280, 284 (2005). Rooker-Feldman is jurisdictional in nature, see Exxon Mobil, 544 U.S. at 293, and has four elements: (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 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.” Hoblock, 422 F.3d at 85 (internal citations and quotations omitted); accord Sykes v. Mel S. Harris & Associates LLC, 780 F.3d 70, 94 (2d Cir. 2014).
Those four requirements are met here with respect to Plaintiffs' claims against the Legal Aid Defendants. The only claims against the Legal Aid Defendants concern their role in representing Houri in the New York State court landlord-tenant actions. The second element is satisfied because Plaintiffs allege they were injured as a result of the settlement resulting from the litigation with Houri. (TAC ¶ 83; FAC ¶ 83.) The first element is satisfied because a settlement agreement may constitute a state court judgment for purposes of Rooker-Feldman. See Green v. City of New York, 438 F.Supp.2d 111, 119 (E.D.N.Y.2006) (“courts have treated settlement agreements as final judgments for the purpose of the Rooker-Feldman doctrine”) (citing Allianz Insurance Co. v. Cavagnuolo, No. 03-CV-1636, 2004 WL 1048243, at *6 (S.D.N.Y. May 7, 2004)). The fourth element is satisfied because Plaintiffs commenced the instant litigation after the events that are alleged to have transpired.
As for the third element, neither the TAC nor FAC expressly ask this Court to review and reject the settlement. But they do so implicitly, inviting the Court to review the state court proceedings to determine if the claims made by Houri were frivolous and whether the outcome was tainted by fraud and deception. Indeed, the FAC admits that Plaintiffs' claims against the Legal Aid Defendants are based “[u]pon careful and complete review of the pleadings, certifications and proofs submitted to the court by petitioner [Houri] and counsel [the Legal Aid Defendants], along with the records maintained by the New York Civil Clerk's Office.” (FAC ¶ 82.) In other words, Plaintiffs ask that this Court to conduct a “complete review” of the state court proceedings, exactly what Rooker-Feldman prohibits.
This is not the first time the Amelios have resorted to federal court after unsuccessful state court litigation over property issues in violation of Rooker-Feldman. Just last year, Judge Carter dismissed an action filed by Carmine and Alfonso Amelio seeking federal court review of a state court judgment of foreclosure. Amelio v. McCabe, Weisberg & Conway, No. 19-CV-8761, 2023 WL 6393400 (S.D.N.Y. Sept. 29, 2023). As Judge Carter observed there, “[i]f the Court were to find for Plaintiff on any claim, it necessitates effectively declaring the state court judgment fraudulently procured and thus void the judgment, which is precisely the result that the Rooker-Feldman doctrine seeks to avoid.” Id. at *4 (citations omitted). The same is no less true here. Accordingly, the Court does not have subject matter jurisdiction over Plaintiffs' claims against the Legal Aid Defendants. The claims should therefore be dismissed pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction.
C. Failure To State A Claim
Even if the Court had subject matter jurisdiction over the claims against the Legal Aid Defendants, dismissal still would be warranted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a plausible claim. As noted above, none of the federal claims asserted against the Legal Aid Defendants are viable because none of them are state court actors subject to civil rights and constitutional claims pursuant to § 1983. And none of the state law claims are plausible as the TAC asserts nothing more than conclusory allegations against the Legal Aid Defendants and the fact that they represented Houri in the state court litigation. (See TAC ¶ 82.)
As for the proposed FAC, Plaintiffs have already had four attempts at stating plausible claims against the Legal Aid Defendants but have failed to do so. (Dkts. 1, 5, 15, 25.) A further attempt would be just as futile as the previous ones and is not warranted. See Jackson v. Wells Fargo Home Mortgage, 811 Fed.Appx. 27, 30 (2d Cir. 2020) (pro se plaintiff “was already granted one unsuccessful opportunity to amend her pleading with the court below, and on her counseled appeal she identifies no new facts that would cure the FAC's deficiencies. The district court thus rightly concluded that granting leave to amend was futile.”); Ruotolo v. City of New York., 514 F.3d 184, 191 (2d Cir. 2008) (“Leave to amend, though liberally granted, may properly be denied” for “repeated failure to cure deficiencies by amendments previously allowed' ” or “futility of amendment” among other reasons) (internal quotation marks and citation omitted); Pottetti v. Educational Credit Management Corporation, No. 19-CV-4479, 2020 WL 5645194, at *7 (E.D.N.Y. Sept. 20, 2022) (denying leave to amend where plaintiff has had “multiple opportunities to properly state his claims ... and it does not appear that further opportunities to amend would allow Plaintiff to cure such significant defects”) (internal quotation marks and citation omitted). Indeed, although the FAC expands somewhat on the allegations about the state court actions, the allegations against the Legal Aid Defendants remain hopelessly conclusory and grounded solely on their representation of Houri. The claims therefore fail to state a claim and are futile. Accordingly, the Court should dismiss the Legal Aid Defendants from the case without further opportunity to amend.
Plaintiffs' Motion For Leave To Amend
The Court has already addressed above the futility of amendment as against the Legal Aid Defendants. Plaintiffs also have failed to show cause why other claims in the proposed FAC should not be allowed due to futility. The Court addresses each proposed new amendment identified as futile by the Police Defendants and the Court in the order to show cause.
A. Federal Claims
Proposed Count III seeks to add a claim under the CFAA. The FAC, however, is devoid of any allegations, as required to state a claim under the CFAA, that (1) any Defendant accessed a protected computer without authorization or exceeded authorized access, or (2) anything obtained through such unauthorized access and use was worth more than $5,000. See Goodman v. Goodman, No. 21-CV-10902, 2022 WL 17826390, at *6-7 (S.D.N.Y. Dec. 21, 2022), R. & R. adopted, 2023 WL 1967577 (S.D.N.Y. Feb. 12, 2023). Rather, the FAC alleges, liberally construed, that an unauthorized request was made to Plaintiffs' internet service provider to move Plaintiffs' internet service and that the account subsequently was used without Plaintiffs' authorization. (See FAC ¶¶ 33-38.) There are no allegations of unauthorized access to and use of a computer or any resulting damage exceeding $5,000. The proposed amendment to include a CFAA claim is therefore futile.
Proposed Count IV asserts claims under criminal statutes for which there is no private right of action. See, e.g., Zahl v. Kosovsky, No. 08-CV-8308, 2011 WL 779784, at *10 (S.D.N.Y. March 3, 2011) (no private right of action under 18 U.S.C. § 1708), aff'd, 471 Fed.Appx. 34 (2d Cir. 2012); Nichairmhaic v. Dembo, No. 13-CV-1184, 2013 WL 6385041, at *6 (D. Conn. Dec. 4, 2013) (no private right of action under 18 U.S.C. § 1503). 18 U.S.C. § 1589 does provide a private right of action, but it has no applicability to the instant case as that statute concerns trafficking in forced labor. Count IV is therefore futile.
The FAC includes several counts asserting § 1983 claims. None of the Defendants as alleged in the FAC acted under color of state law except for the Police Defendants. Nor does the FAC sufficiently allege joint action or conspiracy between the police and other Defendants; to the contrary, the FAC alleges that police acted on false information provided by others but not that any officer knew or had reason to know the information was false or that there was any agreement between the police and the other Defendants. (See FAC ¶ 77.) See McDaniel v. City of New York, 585 F.Supp.3d 503, 521 (S.D.N.Y. 2022) (dismissing § 1983 conspiracy claim because plaintiff did not allege any specific facts to suggest defendant police officers acted pursuant to an agreement to violate plaintiff's constitutional rights); Moroughan v. County of Suffolk, 514 F.Supp.3d 479, 528-31 (E.D.N.Y. 2021) (granting summary judgment on conspiracy claim). Accordingly, Counts XII, XIII, XIV, and XVII are futile to the extent asserted against any defendant other than the Police Defendants for lack of state action.
Moreover, even some of the § 1983 claims should be rejected as futile as against the Police Defendants. Count XII alleges retaliation in violation of the First Amendment and § 1983. But the FAC makes no allegation that the Police Defendants (as distinct from other Defendants such as Houri) retaliated against Plaintiffs for anything, let alone for exercising First Amendment rights. Count XII therefore is futile.
The Police Defendants also oppose amendment of Count XI, which as currently set forth in the TAC asserts a claim under the Fourth Amendment for “unlawful seizure for trial.” The FAC seeks to add to that claim the “deprivation of right to personal privacy and dignity” under the Fourth Amendment. The Police Defendants assert that the “deprivation of privacy” claim is futile because a landlord does not have a reasonable expectation of privacy with respect to property rented to a tenant, and that is occupied by the tenant. (Dkt. 82 at 3.) That may be so, but the Plaintiffs' allegations about the Police Defendants occurred at a time when Plaintiffs claim the occupant of the Property was not a legal tenant. The Police Defendants also assert that there is no “dignity claim” under the Fourth Amendment. (Id.) Dignity, as well as privacy, however, is part and parcel of an unlawful seizure claim. See City of Ontario, California v. Quon, 560 U.S. 746, 755-56 (2010) (The Fourth Amendment “guarantees the privacy, dignity, and security of persons against certain arbitrary and invasive acts by officers of the Government”) (internal quotation marks and citation omitted); Schmerber v. California, 384 U.S. 757, 767 (1966) (“The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State”). In any event, the additional language Plaintiffs seek to add to the title of Count XI does not substantively expand the claim, which is for unlawful seizure.
Count XVII of the proposed FAC adds a claim for “malicious abuse of process” pursuant to § 1983. “In order to establish liability for malicious abuse of process under § 1983, a plaintiff must establish the claim's elements under state law as well as the deprivation of a constitutional right.” Hoffman v. Town of Southampton, 893 F.Supp.2d 438, 446 (E.D.N.Y. 2010) (citing Cook v. Sheldon, 41 F.3d 73, 79-80 (2d Cir.1994)). A plaintiff may assert a malicious abuse of process claim where a defendant: “‘(1) employs regularly issued legal process to compel performance or forbearance of some act (2) with intent to do harm without excuse [or] justification, and (3) in order to obtain a collateral objective that is outside the legitimate ends of the process.'” Savino v. City of New York, 331 F.3d 63, 76 (2d Cir.2003) (quoting Cook, 41 F.3d at 80). The Police Defendants argue that the FAC does not satisfy the required elements. They are correct.
Under the third prong of the test for malicious abuse of process, the defendant must have used the process “in order to obtain a collateral objective that is outside the legitimate ends of the process.” Savino, 331 F.3d at 76. In evaluating this element, the Second Circuit expressly distinguishes between a “malicious motive” and an “improper purpose”; only the latter suffices to meet the “collateral objective” prong of the abuse of process standard. See Savino, 331 F.3d at 77 (“In order to state a claim for abuse of process, a plaintiff must establish that the defendants had an improper purpose in instigating the action.... Improper motive is not enough”) (internal quotation marks and citation omitted). “Accordingly, to state a claim for abuse of criminal process, it is not sufficient for a plaintiff to allege that the defendants were seeking to retaliate against him by pursuing his arrest and prosecution. Instead, he must claim that they aimed to achieve a collateral purpose beyond or in addition to his criminal prosecution.” Savino, 331 F.3d at 77.
Insofar as the Police Defendants are concerned, the FAC, like the TAC, includes an allegation of wrongful arrest of Carmine Amelio by Police Defendant Corey “for illegal eviction,” and claims for unlawful seizure in violation of the Fourth Amendment. (TAC ¶ 78 and Count XI; FAC ¶ 78 and Count XI.) Both pleadings also include allegations of false statements and cover up in violation of Plaintiffs' due process and equal protection rights under the Fourteenth Amendment. (TAC ¶ 79, Counts XIII and XV; FAC ¶ 79 and Counts XIII to XV.) Neither pleading, however, alleges that any of the Police Defendants had a collateral purpose in carrying out any of their alleged actions. The FAC thus fails to state a claim for malicious abuse of process, and amendment to include Count XVII for malicious abuse of process should be denied.
B. State Law Claims
Finally, the FAC would assert one new state law claim against the Police Defendants and name them specifically as Defendants under four existing state law counts. (See FAC Counts V, VII, VIII, IX, X.) As the Police Defendants correctly point out, however, any state law claim against the Police Defendants is futile because Plaintiffs have not pled compliance with the notice-of-claim requirements set forth in New York General Municipal Law § 50-i(1)(b). (See Dkt. 82 at 3.) Under that law, a plaintiff may not maintain any action for personal injury or damage to real or personal property based on the negligence or wrongful act of a city officer or employee unless the plaintiff has first served a notice of claim on the city within 90 days from when the claim arose. N.Y. Gen. Mun. Law § 50-i(1)(b); see also N.Y. Gen. Mun. Law § 50-e (delineating notice-of-claim requirements); Brown v. City of New York, No. 18 Civ. 3287, 2020 WL 1819880, at *7 (S.D.N.Y. Apr. 9, 2020) (“Under New York law, a plaintiff asserting tort claims against the City or its employees must file a notice of claim within ninety days after the incident giving rise to the claim and commence the action within a year and ninety days from the date of the incident”). “Filing a notice of claim is a mandatory condition precedent to suit against the City and its employees; failure to comply with the notice of claim warrants dismissal.” Faruki v. City of New York, No. 10-CV-9614, 2012 WL 1085533, at *9 (S.D.N.Y. March 30, 2012).
Even though given a chance to respond to the Police Defendants' arguments, Plaintiffs have not submitted anything to indicate that they ever filed a notice of claim, let alone a timely one. Their state law tort claims against the Police Defendants thus cannot be maintained. Any amendments in the FAC that add newly asserted state law tort claims against the Police Defendants or add the Police Defendants to existing state law tort claims are futile and should not be permitted.
The absence of allegations of compliance with New York's notice-of-claim requirements also merits dismissal of any existing state law claims asserted against the Police Defendants in the TAC. However, there is no such motion presently before the Court.
In sum, Plaintiffs' motion for leave to file the FAC should be granted in part and denied in part. Specifically, Plaintiffs should be permitted to file the proposed FAC except that the FAC should not include:
1. Any claim under the Computer Fraud and Abuse Act (Count III);
2. Count IV (violation of criminal statutes) in its entirety;
3. Any claim pursuant to 28 U.S.C. § 1983 as against any Defendant other than the Police Defendants;
4. Count XII (retaliation in violation of First Amendment) in its entirety;
5. Count XVII (malicious abuse of process, erroneously numbered as a second Count XVI) in its entirety.
6. Any state cause of action against the Police Defendants (Counts V, VII, VIII, IX, X).
Conclusion
For the foregoing reasons, I recommend: (1) granting the Legal Aid Defendants' motion to dismiss in full without leave to replead as against them, and (2) granting in part and denying in part Plaintiffs' motion to file the Fourth Amended Complaint, consistent with the discussion above.
Objections And Appeal
Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days to file written objections to this Report and Recommendation. Any party shall have fourteen (14) days to file a written response to the other party's objections. Any such objections and responses shall be filed with the Clerk of Court, with courtesy copies delivered to the Chambers of the Honorable Dale E. Ho, United States Courthouse, 40 Foley Square, New York, New York 10007, and to the Chambers of the undersigned, United States Courthouse, 500 Pearl Street, New York, New York 10007. Any request for an extension of time for filing objections must be addressed to the District Judge. Failure to file timely objections will result in a waiver of the right to object and will preclude appellate review.