Opinion
01 Civ. 8791 (LAK)(FM)
April 30, 2002
Carmie Joseph [Pro Se], Brooklyn, New York.
REPORT AND RECOMMENDATION
I. Introduction
Having failed to obtain the relief that she wanted in a state court suit against her insurance company, pro se plaintiff Carmie Joseph has instituted this action in federal court in an effort to secure similar relief against the insurer, its counsel, and the state court judge who heard her case. The defendants have now moved to dismiss the action pursuant to Fed.R.Civ.P. 12(b)(1) and (6), and Ms. Joseph has cross-moved for summary judgment pursuant to Fed.R.Civ.P. 56. As set forth below, the defendants' motions should be granted and Ms. Joseph's motion denied.
II. Relevant Facts
Because Ms. Joseph is proceeding pro se, I have reviewed all of her extensive papers in an effort to set forth the relevant facts in the light most favorable to her.
Ms. Joseph's troubles evidently began in April 1997 when there was a fire in the furnace of a house in Brooklyn that she owned. (See Aff. of Paul J. Israelson, Esq., dated Dec. 12, 2001 ("Israelson Aff."), ¶ 5 Ex. A; Compl. Point II at 4). Defendant Nationwide Insurance Company ("Nationwide") offered to pay for some of the damaged items, such as "burnt clothing," and for the repair of the furnace, but Ms. Joseph considered the proposed settlement inadequate. (Id.). In particular, she believed that the furnace needed to be replaced, not simply repaired. (Israelson Aff. ¶¶ 7, 8; Joseph v. Nationwide Ins., No. 104282/98 (Sup.Ct., N.Y. County, Oct. 1, 1999)).
In or around March 1998, Ms. Joseph commenced a coverage suit against Nationwide in state court. On October 1, 1999, Justice Beverly Cohen issued a decision and order dismissing every claim in that case other than Ms. Joseph's breach of contract claim. (Id.). Thereafter, by order dated June 8, 2000, Judicial Hearing Officer Alfred Toker transferred the case to the Civil Court of the City of New York, New York County, pursuant to Rule 202.13(a) of the Uniform Rules for the New York State Trial Courts and Section 325(d) of the New York Civil Practice Law and Rules. (Israelson Aff. Ex. U).
Section 325(d) permits the removal of an action to a lower court "where it appears that the amount of damages sustained may be less than demanded." Because such transfers are effected without the plaintiff's consent, the plaintiff's ability to recover damages after the transfer is limited only by the monetary jurisdiction of the original court. N.Y. CPLR § 325(d).
After Ms. Joseph failed to appear in Civil Court on the scheduled trial date, the case was stricken from the trial calendar. Judge Karen S. Smith later granted a motion to restore the case to the calendar, conditioned upon the requirement that Ms. Joseph "serve and file a new notice of trial and obtain a new calendar number upon payment of the appropriate fee within thirty (30) days." (Id. ¶¶ 30, 31 Ex. V). According to the Civil Court docket sheet, none of these required steps have been taken since the entry of Judge Smith's order on February 8, 2000.
By letter dated April 19, 2002, Mr. Israelson furnished me with a copy of the state court docket sheet.
Ms. Joseph commenced the present action by the filing of a complaint on September 28, 2001. On October 19, 2001, Nationwide acknowledged service of process by mail. (See Docket No. 4). It does not appear that the three other defendants have been served.
Ms. Joseph's complaint does not contain a short and plain statement of the grounds upon which this Court's jurisdiction depends or of her claims, as Fed.R.Civ.P. 8(a) requires. Nevertheless, her papers can be liberally construed to allege that: (1) defendant Nationwide's failure to pay for the replacement of her boiler led to a number of consequences, including the foreclosure of the mortgage on her house (Compl. at 1 ¶ 2); (2) defendant Cohen (and Hearing Officer Toker) took steps in the state court action that amount to judicial misconduct (id. at 1 ¶ 3, 6 ¶ 2); and (3) defendant Nationwide's state court counsel — defendant Paul Israelson, Esq. ("Israelson") and his firm, defendant Israelson Gold (the "Firm") — conspired with the other defendants to deprive Ms. Joseph of her rights. (Id. at 6 ¶¶ 5, 7, 10).
One of the events in the state court action that Ms. Joseph apparently considers pivotal relates to the alleged theft of certain documents concerning her furnace that she had subpoenaed from Brooklyn Union Gas. (Id. at 1 ¶ 3, 6 ¶ 6; Israelson Aff. ¶ 14). Although Ms. Joseph suggests that Israelson improperly removed those documents from the state courthouse on the subterfuge that there was no operable copier there, a minute order entered by Justice Cohen on May 11, 1999, plainly indicates that the "[o]riginal records supplied by Brooklyn Union Gas [were] returned to plaintiff in court today." (Israelson Aff. Ex. K). For that reason, Justice Cohen denied as moot Ms. Joseph's request to recover $200,000 in damages as a consequence of Nationwide's alleged delay in returning the records. (Id.).
III. Discussion A. Ms. Joseph Failed to Effect Timely Service Against Defendants Other Than Nationwide
Fed.R.Civ.P. 4(m) generally requires a plaintiff to effect service of the summons and complaint within 120 days after a suit is commenced. Consequently, because this action was commenced on September 28, 2001, service had to be effected on or before January 26, 2002 to be timely. Since Ms. Joseph failed to complete service on Cohen, Israelson, and the Firm by that date, the Court would be entitled to give her notice that her complaint will be dismissed without prejudice as to these defendants unless she is able to demonstrate good cause for her noncompliance. See Fed.R.Civ.P. 4(m). No purpose would be served by following this procedure in this case, because, as shown below, Ms. Joseph's complaint would be subject to dismissal with prejudice even if it had been properly served on all of the defendants.
B. The Contract Claim Must Be Dismissed for Lack of Diversity Jurisdiction
To the extent that Ms. Joseph seeks to assert a breach of contract claim against Nationwide in this Court, her complaint must be dismissed because she has failed to allege any facts establishing the existence of diversity jurisdiction. See John Birch Soc'y v. Nat'l Broad. Co., 377 F.2d 194, 197-98 (2d Cir. 1967) ("diversity of citizenship must be apparent from the pleadings"). Moreover, it is apparent that the necessary factual allegations could not possibly be made in this case because: (a) each of Ms. Joseph's papers in this action confirms that she resides in Brooklyn, New York (see, e.g., Compl.); (b) defendant Israelson is also a resident of New York State (see Israelson Aff. ¶ 33); (c) by reason of Israelson's residence, the Firm is likely also a New York citizen see Equitable Life Assurance Soc'y v. Alexander Grant Co., 627 F. Supp. 1023, 1026 (S.D.N.Y. 1985); and (d) defendant Cohen is required by law to be a New York resident, see N.Y. Pub. Off. Law § 3 (McKinney 2001). There consequently is no basis for this Court to exercise diversity jurisdiction over Ms. Joseph's contract claim. See 28 U.S.C. § 1332(a)(1).
C. The Remaining Claims Have No Legal Basis
To the extent that Ms. Joseph seeks to assert a federal claim against the defendants, she faces other equally formidable obstacles. Insofar as she seeks to recover for an alleged deprivation of her due process rights by Israelson and the Firm, Ms. Joseph has failed to allege any facts which would bring her case within the ambit of the federal civil rights statutes. See, e.g., United Bhd. of Carpenters, Local 610 v. Scott, 463 U.S. 825, 829, 103 S.Ct. 3352, 3356, 77 L.Ed.2d 1049 (1983) (section 1985 conspiracy must be motivated by racial or class-based discriminatory animus); Annis v. County of Westchester, 136 F.3d 239, 245 (2d Cir. 1998) (claim under section 1983 requires showing that defendant acted under color of state law); Brown v. City of Oneonta, 106 F.3d 1125, 1133 (2d Cir. 1997) ("A complaint containing only conclusory, vague, or general allegations of conspiracy to deprive a person of constitutional rights cannot withstand a motion to dismiss.") (quoting Summer v. Dixon, 709 F.2d 173, 175 (2d Cir. 1983)); Mian v. Donaldson, Lufkin Jenrette Secs. Corp., 7 F.3d 1085, 1087 (2d Cir. 1987) (plaintiff bringing claim under section 1981 must allege that the defendant's discriminatory activities were motivated by race); Garg v. Albany Indus. Dev. Agency, 899 F. Supp. 961, 967 (N.D.N.Y. 1995) ("[I]n order to survive a motion to dismiss his § 1981 claim, a plaintiff must allege with specificity facts sufficient to show or raise a plausible inference that the defendant purposefully discriminated against him because of the plaintiff's race."). Ms. Joseph's constitutional claims against Israelson and the Firm must therefore be dismissed.
Ms. Joseph's allegations against Justice Cohen also cannot be entertained by this Court. It is settled law that judges are absolutely immune from suits such as this one which allege that they performed their judicial functions improperly or inadequately. Mireles v. Waco, 502 U.S. 9, 11, 112 S.Ct. 286, 288, 116 L.Ed.2d 9 (1991) (per curiam); Montero v. Travis, 171 F.3d 757, 760 (2d Cir. 1999). This absolute judicial immunity "is an immunity from suit, not just from ultimate assessment of damages," Mireles, 502 U.S. at 11, 112 S.Ct. at 288 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985)), and it applies even if the plaintiff alleges that the judge acted in bad faith or with malice. Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967). There are only two exceptions to absolute judicial immunity. The first arises when the action complained of is "not taken in the judge's judicial capacity." Mireles, 502 U.S. at 11-12, 112 S.Ct. at 288. The second occurs when the action is judicial in nature but the court acts "in the complete absence of all jurisdiction." Id. On the undisputed facts of this case, neither of these exceptions is applicable.
Furthermore, to the extent that Ms. Joseph seeks money damages against Justice Cohen in her official capacity, the prosecution of her claims is also barred by the Eleventh Amendment to the United States Constitution. Under the Eleventh Amendment, a state is generally immune from suit in federal court unless it consents to be sued. Papasan v. Allain, 478 U.S. 265, 276, 106 S.Ct. 2932, 2939, 921 L.Ed.2d 209 (1986). This immunity extends to state officials if the relief to be granted "would bind the state or where the state is the real party in interest." Melo v. Coombes, No. 97 Civ. 0204, 1998 WL 67667, at *3 (S.D.N.Y. Feb. 18, 1998) (Koeltl, J.) (quoting Russell v. Dunston, 896 F.2d 664, 667 (2d Cir. 1990)). When officials are sued in their official, rather than their personal capacities, the state is the real party in interest. Id. Ms. Joseph therefore may not recover damages from Justice Cohen in her official capacity. See, e.g., Idaho v. Cour d'Alene Tribe, 521 U.S. 261, 269-70, 117 S.Ct. 2028, 2034, 138 L.Ed.2d 438 (1997).
Finally, the Rooker-Feldman doctrine also acts as a bar to hearing Ms. Joseph's claims. See Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16, 44 S.Ct. 149, 150, 68 L.Ed. 362 (1923); Dist. of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476, 103 S.Ct. 1303, 1311, 75 L.Ed.2d 206 (1983). "Under that doctrine, federal district courts lack jurisdiction to review state court decisions, whether final or interlocutory in nature." Gentner v. Shulman, 55 F.3d 87, 89 (2d Cir. 1995). A litigant dissatisfied with the outcome of a state court proceeding may therefore obtain federal review only by appealing through the state courts and then petitioning the United States Supreme Court for a writ of certiorari. Moccio v. N.Y.S. Office of Court Admin., 95 F.3d 195, 197 (2d Cir. 1996).
The Rooker-Feldman doctrine plainly applies to this case if Ms. Joseph's complaint is construed as seeking to set aside the outcome of her state court lawsuit. See Campbell v. Greisberger, 80 F.3d 703, 706-07 (2d Cir. 1996). The doctrine also applies if Ms. Joseph's complaint is viewed as a due process challenge to the manner in which the state courts reached that result because Ms. Joseph has not shown, as she must, that the "procedural safeguards . . . established by the state are insufficient to protect her rights." Moccio, 95 F.3d at 200 (quoting Valmonte v. Bane, 18 F.3d 992, 1002 (2d Cir. 1994)).
D. The Complaint Should Be Dismissed With Prejudice
When a complaint is dismissed pursuant to Rule 12(b)(6) for failure to state a claim and the plaintiff has sought leave to replead, that request usually must be granted, especially where there has been no prior request to amend. Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991). In this case, Ms. Joseph has not sought leave to amend in the event her complaint is dismissed. Moreover, Ms. Joseph's complaint is also subject to dismissal pursuant to Rule 12(b)(1) because the parties are non-diverse and because the suit violates both the Eleventh Amendment and the Rooker-Feldman doctrine. Accordingly, as Ms. Joseph's lengthy submissions make clear, she "can prove no set of facts . . . which would entitle [her] to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). The dismissal of Ms. Joseph's complaint should therefore be with prejudice.
IV. Conclusion
For the foregoing reasons, the defendants' motions to dismiss the Amended Complaint should be granted, Ms. Joseph's cross-motion for summary judgment should be denied, and this case should be closed.
IV. Notice of Procedure for Filing Objections to this Report and Recommendation
The parties shall have ten days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a) and (e). Any such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Lewis A. Kaplan and the chambers of the undersigned, at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. Any requests for an extension of time for filing objections must be directed to Judge Kaplan. The failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985);Fed.R.Civ.P. 6(a), 6(e), 72(b).