Opinion
CIVIL 1:21-CV-01288
12-06-2021
In the Matter of ELLA CARD, An Incapacitated Person.[1]
CONNER, D.J.
REPORT AND RECOMMENDATION
William I. Arbuckle, U.S. Magistrate Judge.
I. INTRODUCTION
In 2011, a New York State Court found Ella Card incompetent. Ten years later, Ms. Card and some of her family members are still trying to make a federal case out of Ms. Card's guardianship proceedings. In this third attempt at removing Ms. Card's state court case, the Court, sua sponte, should dismiss this case for lack of subject matter jurisdiction and remand this case back to the Supreme Court of New York, Kings County. These frivolous attempts at removal are a drain on Court resources and are overly burdensome to the 25 defendants who must answer this lawsuit.
Therefore, it is RECOMMENDED that:
(1) Plaintiff's Notice of Removal/Amended Complaint (Doc. 5) should be DISMISSED for lack of subject matter jurisdiction and be REMANDED to the Supreme Court of New York, Kings County.
(2) The Clerk of Court be DIRECTED to CLOSE this case.
(3) Plaintiffs' Motion for Emergency Declaratory Relief (Doc. 15) be denied as MOOT.
(4) Defendant UFT's Motion to Dismiss, (Doc. 22), Defendant Bonnie Bernstein's Motion to Dismiss (Doc. 33), and Defendant Christine Mooney's Motion to Dismiss (Doc. 42) be denied as MOOT.
(5) Defendant Bonnie Bernstein's Motion for Costs and Fees (Doc. 33) should be DENIED.
(6) The Court should consider the issue of sanctions, as raised by Defendant Bonnie Bernstein's Motion for a Pre-Filing Injunction (Doc. 33), and if appropriate, remand this matter to the undersigned for further proceedings on the issue of sanctions, including issuing a show cause order and a report and recommendation.
(7) Plaintiffs and Defendant Lauren Shell's Unopposed Motion to Dismiss (Doc. 36) be denied as MOOT.
II. FACTUAL AND PROCEDURAL HISTORY
This pro se, fee paid, action began when Ella Card; her two daughters, Cindy Card and Ladonna Card; and Ella Card's son in law, Ken Swenson, filed a Complaint on July 22, 2021. The Complaint, entitled, “EMERGENCY COMPLAINT: PLAINTIFFS REQUEST EMERGENCY DECLARATORY RELIEF UNDER RULE 57 AND EMERGENCY INJUNCTION UNDER RULE 65” asked, inter alia, for the Court to issue an emergency injunction that stopped all proceedings related to Ella Card's guardianship case in New York state court (Doc. 1). They claim that in 2011, a New York court found Ella Card incompetent, but she has always been competent to begin with, and that various actors in her guardianship proceedings have taken advantage of her. (See generally Doc. 1). I rejected
Plaintiff's request for an injunction and a restraining order. (Doc. 4). I also required that all Plaintiffs sign the Complaint, as only Mr. Swenson signed the Complaint. (Id.).
In response, Plaintiffs filed a document on September 15, 2021, styled, “Federal Removal Action/Amended Complaint/ Complaint for Damages/ Demand for Jury Trial.” (Doc. 5, p. 1). Newly included as a Plaintiff in this document is Faith Card, Ella Card's granddaughter. (Id.). The Notice of Removal/Amended Complaint clocks in at 73 pages, names 25 defendants and lists 23 causes of action. (Id.). The gist of the action is simple: Plaintiffs want to remove a New York State Court guardianship case to this Court and offer 23 state and federal reasons why Ms. Card's guardianship order should be voided. (See generally Doc. 5). Similar to the allegations in the original Complaint, Plaintiffs allege that Ms. Card is competent, the New York judge who deemed her incompetent did so illegally, and that various parties lied in their court filings. (Id.). For relief, they ask the Court to “protect Mrs. Card's civil rights . . . [issue] a permanent protective order for Mrs. Card against her two sons and illegally appointed guardians Raymond and Kermit Card, void or terminate the Guardianship of the Property . . . [and] to award Mrs. Card and Plaintiff's $25 million from each defendant per year for each year the lower court denied Mrs. Card her property ” (Id. at p. 71).
There are discrepancies between the defendants listed in the header of the Notice of Removal/Amended Complaint and in a list of a defendants at the end of the document. All in all, there are 25 unique defendants listed in the document. The defendants are: Nicholas Turner, John Holt, Kimberly George, Laura Negron, Lisa Friedman, Alexandra Schonfeld, Judge Betsy Barros, Judge Leon Ruchelsman, Christine Mooney, Paul O'Brien, David VanLeeuwen, Bonnie Bernstein, Julie Fernandez, Raymond Card, Lauren Shell, Patrick Marc, Kermit Card, Kings County, Judge Lawrence Knipel, the State of New York, UFT, NYC Employee Health Benefits - IRMAA, Eddie Torres, Arlene Torres, and Progressive General Contractors. Most of these defendants are are judges, court evaluators, attorneys for some of the parties that petitioned for Ella Card's guardianship, and the guardians themselves.
The 23 causes of action are: racial discrimination, a violation of 42 U.S.C. § 1983, violation of the due process clause of the 14th Amendment, conspiracy to interfere with civil rights (42 U.S.C. § 1985), action for neglect to prevent (42 U.S.C. § 1986), conspiracy against rights (18 U.S.C. § 241), deprivation of civil rights (18 U.S.C. § 242), cruel and unusual punishment (8th Amendment), Hobbs Act violations, Racketeer Influenced and Corrupt Organizations Act (RICO) violations, fraud on the court, a violation of the right to choose counsel, a 6th Amendment violation, an ineffective assistance of counsel claim, a 14th Amendment violation, loss of subject matter jurisdiction (Mental Hygiene Law § 81.08(a)(14)), a violation of the Americans with Disabilities Act (ADA), breach of fiduciary duties, elder abuse and financial exploitation violating the 8th Amendment, care provider deprivation of goods violating New York law, professional negligence, declaratory relief, mail fraud, wire fraud, and manifest injustice.
On November 11, 2021, Plaintiffs filed a copy of the notice of removal to the Supreme Court of New York, Kings County with this Court, but it was incorrectly mislabeled as a Certificate of Service. (Doc. 39).
A. TWO PREVIOUS ATTEMPTS AT REMOVAL
This is not Ella Card's first attempt to remove her guardianship proceedings to federal court. She has tried to do so twice, once in the Eastern District of New York and once in the Middle District of Pennsylvania.
Ms. Card filed her first removal action in the United States District Court for the Eastern District of New York on January 3, 2012. In re Card, No. 12-cv-114, 2012 U.S. Dist. LEXIS 12984 (E.D.N.Y. Feb. 6, 2012). In her Notice of Removal, she alleged that various actors involved in her guardianship proceedings violated the Fifth, Sixth, Seventh, and Fourteenth Amendments. Id. at 1-2. Like this present case, Ms. Card styled her first Notice of Removal with herself as the plaintiff, and a list of judges, court evaluators, attorneys, family members, and guardians as the defendants. Id. Because of these alleged wrongs, Ms. Card asked the court to void her guardianship, and asked for money damages from each of the named defendants. Id. District Judge Eric Vitaliano remanded the case back to the Supreme Court of New York, Kings County for lack of subject matter jurisdiction. Id. at 7-8. He explained that federal court did not have federal question jurisdiction over Ms. Card's guardianship case. Id. at 2-6. And, while Ms. Card attempted to bring 42 U.S.C. § 1983 claims against those involved her guardianship proceeding, the court held that all the defendants were likely protected by absolute immunity. Id. at 6-7. Judge Vitaliano noted that her basis for federal jurisdiction were “merely potential defenses, dressed in constitutional trappings, and thus do not confer jurisdiction.” Id.
Nine of the defendants in the removed E.D.N.Y. case are similarly named in this present case.
On September 6, 2017, Ella Card filed her second removal action. In re Card, No. 1:17-cv-1583, 2017 U.S. Dist. LEXIS 155238 (M.D. Pa. Sept. 21, 2017). In her Notice of Removal, Ms. Card attempted to remove her guardianship proceeding to federal court but styled the case with the Vera Institute for Justice as the plaintiff and herself as the defendant. Id. at 1 n.1. To establish federal jurisdiction, Ms. Card alleged both diversity and federal question jurisdiction. Id. at 4-5. She claimed federal question jurisdiction because the Vera Institute violated her constitutional rights, so 42 U.S.C. § 1983 applies. Id. Ms. Card also alleged diversity jurisdiction, because she is now a Pennsylvania citizen and the Vera Institute is a New York citizen. Id.
In a Report and Recommendation, Judge Saporito rejected both of Ms. Card's theories of subject matter jurisdiction. Id. Diversity must be present at both the time of the state court filing and the time of removal to federal court to invoke diversity jurisdiction in removal proceedings. Id. (citing Stevens v. Nichols, 130 U.S. 230, 231-32 (1889); Fiorentino v. Huntingside Assoc., 679 F.Supp. 3, 5 (E.D. Pa. 1987); Moser v. Bostich Div. of Textron, Inc., 609 F.Supp. 917, 918-19 (W.D. Pa. 1985)).
But, at the time of the state court filing, Ms. Card was a New York citizen, thus destroying diversity. Id. Judge Saporito also held that federal question jurisdiction did not exist because a court appointed guardian is not a state actor and held that any Section 1983 claims Ms. Card had were potential defenses to her state court case, which could not confer jurisdiction. Id. Judge Jones adopted Judge Saporito's Report and Recommendation in full, overriding Ms. Card's objections. Order Adopting Report and Recommendation, The Vera Institute for Justice v. Ella Card, No. 1:17-cv-1583 (M.D. Pa. Oct. 17, 2017), ECF No. 11.
III. ANALYSIS
Considering the blended nature of Plaintiff's filings, I must first decide whether to construe their “Federal Removal Action/Amended Complaint/ Complaint for Damages/ Demand for Jury Trial, ” (Doc. 5), as a Notice of Removal or an original civil action. Then, I must decide if this Court has subject matter jurisdiction over this matter and if it is subject to sua sponte dismissal, as a federal court has a “continuing obligation to examine their subject matter jurisdiction throughout the pendency of every matter before them.” In re Wolverine Radio Co., 930 F.2d 1132, 1137 (6th Cir. 1991); see also Nesbit v. Gears Unlimited, Inc., 347 F.3d 72, 76-77 (3d Cir. 2003) (a “court can raise sua sponte subject-matter jurisdiction concerns.”).
A. IS THIS A REMOVAL ACTION OR A NEW CIVIL COMPLAINT?
While styled as both an Amended Complaint and a Notice of Removal, Plaintiff's filing is best read and construed as a Notice of Removal. First, Plaintiffs write in the beginning of their Notice of Removal/Amended Complaint, “Federal removal of the guardianship of Ella Rubina Card to federal court, where all the orders of the state court are void ad initio ....” (Doc. 5, p. 2) (all uppercase in the original). Paragraphs 2 and 3 of the document reference removal, including the principle that once a notice of removal is filed in state court, the state court proceedings are paused unless the case is remanded back to the state court. (Id. at ¶¶ 2-3). Second, on November 22, 2021, Plaintiffs docketed a “Notice of Removal of State Court Action to Federal Court” with the Supreme Court of New York, Kings County. (Doc. 39). Attached to the state court notice is a narrative of a process server who had a difficult time serving/docketing this notice to the state court clerk in Kings County, New York. (Doc. 39-1). Third, the Amended Complaint's proposed causes of actions are merely defenses to Ms. Card's guardianship proceedings. Therefore, I will construe this action as a removal action.
B. REMOVAL IS NOT PROPER
Section 1441(a) of Title 28 of the United States Code provides that “any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant . . . to the district court of the United States.” If a state court action invokes federal jurisdiction, then the defendant may remove the action within 30 days of the defendant's receipt of the initial pleading. 28 U.S.C. § 1446(b).
Here, Plaintiffs assert subject matter jurisdiction through two different foundations. First, they allege there is diversity jurisdiction because their requested monetary relief is more than $75,000, and Ella Card is a citizen of Pennsylvania. (Doc. 5, ¶ 45-46). Second, they allege federal question jurisdiction because they allege various violations of federal law, including a Section 1983 claim, a civil RICO claim, and a 6th Amendment claim. (Id. at ¶ 43). Neither of these alleged bases for jurisdiction are meritorious.
First, diversity jurisdiction. Federal courts have original jurisdiction over all civil actions between citizens of different states so long as the amount in controversy exceeds $75,000. 28 U.S.C. § 1332; Lincoln Benefit Life Co. v. AEI Life, LLC, 800 F.3d 99, 104-05 (3d Cir. 2015). Diversity jurisdiction requires complete diversity between the parties, so unless there is another basis for federal jurisdiction, “no plaintiff may be a citizen of the same state as any defendant.” Lincoln Benefit Life Co., 800 F.3d at 104-05 (quoting Zambelli Fireworks Mfg. Co. v. Wood, 592 F.3d 412, 419 (3d Cir. 2010)). In a removal proceeding, diversity of the parties must exist at two stages: (1) at the time of the state court filing, and (2) at the time of removal. See In re Card, No. 1:17-cv-1583, 2017 U.S. Dist. LEXIS 155238 (M.D. Pa. Sept. 21, 2017) (citing Stevens v. Nichols, 130 U.S. 230, 231-32 (1889); Fiorentino v. Huntingside Assoc., 679 F.Supp. 3, 5 (E.D. Pa. 1987); Moser v. Bostich Div. of Textron, Inc., 609 F.Supp. 917, 918-19 (W.D. Pa. 1985)). During the time of the state court filing, complete diversity did not exist, as Ella Card was a New York citizen, and most, if not all, Defendants were residents of New York. Therefore, I do not have subject matter jurisdiction through diversity.
Second, federal question jurisdiction. Plaintiffs allege I have jurisdiction because they claim that Defendants violated a variety of federal laws. But, all of their supposed federal causes of action are really just federal defenses to Ms. Card's guardianship hearing. I agree with Judge Vitaliano of the Eastern District of New York when he wrote, “with respect to the removed proceeding, Card's offered bases for federal jurisdiction are merely potential defenses, dressed in constitutional trappings, and thus do not confer jurisdiction.” In re Card, No. 1:17-cv-1583, 2017 U.S. Dist. LEXIS 155238 (M.D. Pa. Sept. 21, 2017) (citing In re Card, No. 12-cv-114, 2012 U.S. Dist. LEXIS 12984, (E.D.N.Y. Feb. 6, 2012)).
C. BONNIE BERNSTEIN'S MOTION FOR COSTS & FEES AND FOR A PRE FILING INJUNCTION
Bonnie Bernstein moved for costs and fees, and for a pre-filing injunction on Plaintiffs. I recommend that Ms. Bernstein's Motion for Cost and Fees be denied, but her Motion for a Pre-Filing Injunction be granted.
Ms. Bernstein bases her Motion for Cost and Fees on the removal statute, 28 U.S.C. § 1447. That statute provides that if a case is removed, only to be remanded for lack of subject matter jurisdiction, the Court “may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.” 28 U.S.C. § 1447(c). “Absent unusual circumstances, courts may award attorney's fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005) (citing Hornbuckle v. State Farm Lloyds, 385 F.3d 538, 541 (5th Cir. 2004); Valdes v. Wal-Mart Stores, Inc., 199 F.3d 290, 293 (5th Cir. 2000)).
While Plaintiffs' removal action is objectively unreasonable, the Court finds that an award of costs and expenses is not warranted at this time. I am sympathetic to Ms. Bernstein for the time she had to take to respond to Plaintiffs' meritless removal action. But, because Ms. Bernstein is proceeding pro se, it is unclear to me what costs and expenses she has actually incurred in responding to Plaintiffs' removal action. If she is seeking attorney's fees, she cannot receive them as a pro se litigant, even if she is an attorney. Latzanich v. James Hardie Bldg. Prods., No. 3:17-cv-2389, 2018 U.S. Dist. LEXIS 152661, at *7-8 n.7 (M.D. Pa. Sept. 7, 2018) (citing Kay v. Ehrler, 499 U.S. 432, 435-37 (1991)).
Ms. Bernstein also asks the Court to use its power pursuant to the All Writs Act to enter a pre-filing injunction against Plaintiffs. Ms. Bernstein argues that Ella Card's (or her family member's) three attempts to remove her guardianship case amounts to a “vexatious abuse of the courts.” (Doc. 34, p. 23).
Pursuant to the All Writs Act, 28 U.S.C. § 1651, a district court may enjoin litigants from engaging in “abusive, groundless and vexatious” conduct in filing meritless and repetitive actions. Brow v. Farelly, 994 F.2d 1027, 1038 (3d Cir. 1993). Despite a Court's lack of subject matter jurisdiction over the underlying case, the Court still has the authority to institute a pre-filing injunction pursuant to the All Writs Act. See Bishop v. Dep't of Homeland Sec., No. 14-cv-5244, 2015 U.S. Dist. LEXIS 59181 (D.N.J. May 6, 2015) (granting a motion for a pre-filing injunction despite not having subject matter jurisdiction over the underlying lawsuit). Before issuing an injunction under the All Writs Act, the district court must satisfy three requirements.
First, the Court must ensure the litigant's rights to due process and access to the courts. Brow, 994 F.2d at 1038. A litigant should not be enjoined from filing claims absent exigent circumstances, such as a litigant's continuous abuse of the judicial process by filing meritless and repetitive actions. Id. (citing Matter of Packer Ave. Assoc., 884 F.2d 745, 747 (3d Cir. 1989); Chipps v. United States Dist. Ct. for the Middle Dist. of Pa., 882 F.2d 72, 73 (3d Cir. 1989), In re Oliver, 682 F.2d 443, 446 (3d Cir. 1982)). Second, the litigant must be given notice of the potential injunction and an opportunity to oppose it. Brow, 994 F.2d at 1038. Third, if an injunction is appropriate, it must be narrowly tailored to fit the particular circumstances of the case. Id.
This is the third removal action Plaintiffs' have instituted in federal court, and the second in this district. The first two actions were summarily dismissed for lack of subject matter jurisdiction. This third action seems to face a similar end. And answering these lawsuits wastes both the Court's and Defendants' resources. Accordingly, I recommend that the District Judge consider imposing an injunctive sanction that prevents Plaintiffs from filing a removal action or a Complaint that is related to Ella Card's guardianship proceedings that is docketed in the Supreme Court of New York, Kings County, Case Number 100016/11. Additionally, I recommend the District Judge issue an injunctive sanction that prevents Plaintiffs from filing suit against any of the named 25 defendants in this case if it is related to the guardianship of Ella Card. In the alternative, I recommend that the case be remanded back to me for further proceedings on an appropriate sanction, including issuing a show cause order and a report and recommendation on the issue of an appropriate sanction.
IV. CONCLUSION
A federal court can only exercise jurisdiction under very specific circumstances, circumstances that are not present in this case. And, despite filing the same action over and over again, Ella Card (or her family members) have not been deterred from filing a futile removal action for a third time. Therefore, it is RECOMMENDED that:
(1) Plaintiff's Notice of Removal/Amended Complaint (Doc. 5) should be DISMISSED for lack of subject matter jurisdiction and be REMANDED to the Supreme Court of New York, Kings County.
(2) The Clerk of Court be DIRECTED to CLOSE this case.
(3) Plaintiffs' Motion for Emergency Declaratory Relief (Doc. 15) be denied as MOOT.
(4) Defendant UFT's Motion to Dismiss, (Doc. 22), Defendant Bonnie Bernstein's Motion to Dismiss (Doc. 33), and Defendant Christine Mooney's Motion to Dismiss (Doc. 42) be denied as MOOT.
(5) Defendant Bonnie Bernstein's Motion for Costs and Fees (Doc. 33) should be DENIED.
(6) The Court should consider the issue of sanctions, as raised by Defendant Bonnie Bernstein's Motion for a Pre-Filing Injunction (Doc. 33), and if appropriate, remand this matter to the undersigned for further proceedings on the issue of sanctions, including issuing a show cause order and a report and recommendation.
(7) Plaintiffs and Defendant Lauren Shell's Unopposed Motion to Dismiss (Doc. 36) be denied as MOOT.
NOTICE IS HEREBY GIVEN that any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.