Opinion
01 Civ. 11598 (RWS)
November 6, 2002
Barry I. Bloom, New York, NY, Plaintiff Pro Se.
Christopher K. Tahbaz, Esq., Dennis H. Hranitzky, Esq., DeBevoise Plimpton New York, NY, for Defendant Democratic National Committee
David E. Kendall, Esq., Williams Connolly, Washington, DC, for Defendants William Clinton and Hillary Rodham Clinton
O P I N I O N
Plaintiff Barry I. Bloom, pro se ("Bloom"), filed a default judgment which was treated as a motion for default. Defendant Democratic National Committee ("DNC") has opposed the motion and cross-moved under Fed.R.Civ.P. 12(b)5 and 12(b)6 for dismissal or alternatively under Fed.R.Civ. 12(e) for a more definite statement. Defendants former President William Clinton ("President Clinton") and United States Senator Hillary Rodham Clinton ("Senator Clinton") (collectively, the "Clintons") joined and adopted the cross-motion of the DNC. For the reasons set forth below, the motion of Bloom is denied, and the cross-motion of the DNC to dismiss the amended complaint is granted.
Prior Proceedings
Bloom filed his complaint on December 18, 2001 against President Clinton, paid the filing fee, filed an amended complaint on April 2, 2002, which was identical to the initial complaint except for the addition of Senator Clinton and the DNC.
On April 30, 2002, an individual, identified by Bloom to be Vandal Moore ("Moore") left an envelope on the desk of Joseph M. Birkenstock ("Birkenstock"), Chief Counsel of the DNC, containing a copy of the amended complaint and nothing more.
The amended complaint is annexed as Appendix A and contains the following "Statement of Claims or Facts."
1. Statements sent monthly for original bill without any response from defendant.
2. This Court has jurisdiction because the debt was incurred while plaintiff and defendant were residents of different states. The sum of money in dispute is greater than seventy five thousand dollars.
3. Remedy sought from defendant:
a. Plaintiff seeks payment in full for the original bill of eighteen million dollars.
b. Interest at the rate of one percent above prime compounded quarterly from the third week of January 1992 until the present on the original fee of eighteen million dollars, the final accounting of the amount of interest due at the time of the final payment.
c. All receipts from fund raising events to be turned over directly to Barry Bloom.
d. All family income to be turned over to Barry Bloom until the debt is satisfied.
The exhibits attached to the amended complaint consist of a letter dated July 24, 1998 addressed to then President Clinton, which purports to be a "bill for campaign text and slogan" for the "Campaign of 1992 for the Presidency and Vice Presidency of the United States," which is annexed as Appendix B. The letter which states that Bloom's fee of $18 million is due within thirty days of receipt, was received at the White House on August 3, 1998.
The exhibits to the amended complaint include additional certified mail receipts, dated September 10, 1998 through October 20, 2001, for each month to President Clinton at the White House (and later at his New York City office) requesting payment.
At a pretrial conference on June 18, 2002, Bloom submitted a default judgment which was treated as a motion by the Court by written endorsement and made returnable on July 15, 2002.
The motion for a default judgment and the cross motions were marked fully submitted on August 7, 2002.
Default Judgment is Denied for Lack of Jurisdiction
The Court lacks personal jurisdiction over the defendants because Bloom failed to serve them with process according to Birkenstock's uncontradicted affidavit. There is no showing of service of either a summons or the amended complaint upon the Clintons. Any default judgment entered against the DNC would thus be void for want of personal jurisdiction. See Kearney v. New York State Legislature, 103 F.R.D. 625, 628 (E.D.N.Y. 1984) (service of process is jurisdictional, and invalid service of process renders default judgment void).
In order to serve the DNC in this case, Bloom had to either:
• Comply with the requirements for service set forth in Fed.R.Civ.P. 4(h)(1) "by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process";
• Comply with the applicable law in the State of New York, CPLR § 311, which requires delivery of the summons to "an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service"; or
• Comply with the applicable law governing service of process in the District of Columbia — Rule 4 of the D.C. Rules of Civil Procedure — which is identical to Federal Rule 4(h)(1) in relevant part. D.C. R.Civ.P. 4.
Because no summons was served on the DNC, Bloom's attempted service of process was fatally defective. See, e.g., Barron v. Miami Executive Towers Assocs. Ltd. P'Ship, 142 F.R.D. 394, 397 (S.D.N.Y. 1992) ("actual receipt of both the summons and the complaint is a base requirement" of Rule 4); Coomer v. Sharp Electronics Corp., 181 F.R.D. 609, 611 (N.D.Ill. 1998) (Rule 12(b)(5) motion to dismiss granted when complaint served without summons since "service of the summons is necessary for proper service"). Therefore, the motion for a default judgment is denied and the amended complaint will be dismissed pursuant to Fed.R.Civ.P. 12(b)(5).
The Second Circuit's recent opinion in Thompson v. Maldonado is inapplicable here as here the Court does not act sua sponte and plaintiff has received notice. Thompson v. Maldonado, 2002 WL 313999796 (2d Cir. Oct. 25, 2002) (sua sponte dismissal under Rule 4(m) required that plaintiff be given notice).
The Amended Complaint is Dismissed
The defendants have moved to dismiss pursuant to Fed.R.C.P. 12(b)(6) for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). The amended complaint will be construed in the light most favorable to the non-moving party and its allegations are taken as true. Harris v. City of New York, 186 F.3d 243, 247 (2d Cir. 1999).However, Bloom fails to describe the nature of the claim being asserted against DNC. Construing the pleading liberally, it appears that Bloom has tried to claim a breach of contract. However, even a generous reading of the amended complaint, including the attached exhibits, fails to reveal any claim upon which the request for relief might be granted.
Pro se litigants' papers should be construed liberally and interpreted to raise the strongest arguments they suggest. Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995).
The amended complaint does not allege that any defendant entered into any contractual relationship with Bloom, or agreed to pay him for any service whatsoever. The elements essential to pleading a breach of contract claim under New York law are the making of an agreement, performance by the plaintiff, breach by the defendant, and damages suffered by the plaintiff. Startech, Inc. v. USA Arts, 126 F. Supp.2d 234, 236 (S.D.N.Y. 2000). Bloom must allege facts sufficient to show he is entitled to relief. See id. (citing Fed.R.Civ.P. 8(a)(2)).
For the purposes of this motion, New York law will be applied.
The amended complaint and the exhibits establish only that Bloom sent copies of the same letter to President Clinton over a period of three years seeking an $18 million payment. Without any allegation of an agreement between the parties, the terms of the agreement, and the provisions of the agreement supposedly breached by the DNC, Bloom fails to state a viable claim for breach of contract. Americorp Fin., Inc. v. St. Joseph's Hosp. Health Ctr., 180 F. Supp.2d 387, 390 (N.D.N.Y. 2001).
Insofar as the amended complaint could be read as a claim for account stated, the claim also fails as a matter of law. "An account stated is an agreement between parties to an account based upon prior transactions between them with respect to the correctness of the account items and balance due." Sisters Charity Hosp. v. Riley, 661 N.Y.S.2d 352, 231 A.D. 272, 282 (4th Dept. 1977) (citations omitted). However, an account stated cannot create liability where none exists. See, e.g., Gurney, Becker Bourne, Inc. v. Benderson Dev. Co., 47 N.Y.2d 995, 420 N.Y.S.2d 212, 213 (1979). Bloom has not alleged the existence of any agreement from which any liability running in his favor could exist.
The District of Columbia recognizes a cause of action for account stated, a principal element of which is an agreement that a particular amount was due and owing. See Reed Research, Inc. v. Schumer Co., 243 F.2d 602, 605 (D.C. Cir. 1957). ("The essence of an account stated is a finding . . . [that] the parties at some point agreed that a particular amount was due and owing.").
Finally, any breach of contract claim, even if properly alleged, would be time-barred. Under New York law, actions on contracts must be commenced within six years from the time of breach. CPLR § 213(2). Bloom filed his original complaint on December 18, 2001 and cannot recover for any breach of contract that occurred more than six years ago.
Since the amended complaint does not allege where any contract was formed or performed, New York law will be assumed. New York's six-year statute of limitations for breach of contract actions is longer than that of the District of Columbia. See D.C. Code § 12-301(7) (statute of limitations for actions on all express or implied contract is three years).
The amended complaint alleges that any default must have occurred before the third week of January 1992, when Bloom alleges that interest began to accrue. The amended complaint is also dismissed on statute of limitations grounds.
Conclusion
For the reasons set forth, this action is dismissed with prejudice, no jurisdiction having been established.
It is so ordered.