Smalls v. Riviera Towers Corp.

Full title: PATRICIA SMALLS, Plaintiff, v. RIVIERA TOWERS CORP., et al. Defendants.

Court: UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CAMDEN VICINAGE

Date published: Feb 15, 2018

Civil No. 16-847(RMB/KMW) (D.N.J. Feb. 15, 2018)

Opinion

Civil No. 16-847(RMB/KMW)

02-15-2018

PATRICIA SMALLS, Plaintiff, v. RIVIERA TOWERS CORP., et al. Defendants.

RENÉE MARIE BUMB United States District Judge

[Dkt. Nos. 96, 112, and 114] AMENDED MEMORANDUM OPINION ^*

* This Opinion amends page 2, paragraph 2, column 2 of the Court's January 26, 2018 Memorandum Opinion [Dkt. No. 124] by replacing "See Docket No. 24-7 in Civil Action No. ????????June 13, 2012" with "See Docket No. 24-7 in Civil Action No. 16-847; see also id. at Docket No. 24-10 (action for default on loan)."

This matter comes before the Court on three motions: (1) Plaintiff Patricia Smalls' Motion to Reconsider under Rule 60 [Docket No. 96]; (2) Defendants First Service Residential's ("First Service") and Anthony Iacono's Motion to Dismiss [Docket No. 112]; and (3) Plaintiff's Motion to Strike [Docket No. 114]. For the reasons set forth herein, Plaintiff's Motion to Reconsider is DENIED; Defendants First Service Residential and Anthony Iacono's Motion to Dismiss will be converted to a Motion for Summary Judgment; and Plaintiff's Motion to Strike is dismissed as moot.

The case before this Court has been a protracted one involving numerous claims, parties, and accusations. This Court has labored countless days and attempted to do its best in sorting through the years of litigation and the various cases that Plaintiff has brought. In that regard, a chart may be helpful to all concerned.

Action	Cause(s) ofAction	Disposition
1.Riviera TowersCorp. v. Smalls,HUD-L-438-11Case filed in theSuperior Court of NewJersey, Hudson County	Failure to paymonthly fees	• December 11, 2011,Final Judgment entered infavor of Riviera Towersagainst Smalls in amountof $10,056.15;terminating leaseagreement and any rightto Apartment #27H, 6040Boulevard East, West NewYork, New Jersey (the"Property"). Immediatepossession to RivieraTowers [See Docket No.24-7 in Civil Action No.16-847] June 13, 2012.Final Judgment amended to$8,133.50 [Id., DocketNo. 24-8].
2.PHH Mortgage v. Smalls,HUD-L-1185-16Case filed in theSuperior Court of NewJersey, Hudson County	See Docket No. 24-7in Civil Action No.16-847; see alsoid. at Docket No.24-10 (action fordefault on loan).	• Order entered grantingPHH Mortgage to withdrawall funds, totaling$105,037.21 [PHH hadobtained judgment againstSmalls in the amount of$106,112.13 [See DocketNo. 24-10 in Civil ActionNo. 16-847].

3. [First Fed. Action]Action No. 12-6312Smalls v. Riviera TowersCorp. ("TRC") filedOctober 5, 2012; AmendedNovember 2, 2012.Kenneth Blane (RTCPresident);John Negri (RTC BoardMember);Richard Gillen (RTCBoard Member);Signature PropertyGroups, Inc.;Robert Weible (RTC VicePresident);Hermant Amin (RTCMember);Michael Moran (RTC BoardMember);Wentworth PropertyManagement;Ariena Narayanan (RTCBoard Member);Jennifer Shashaty (RTCBoard Member);Angela Alvarez (RTCBoard Member)	18 U.S.C. § 241,242U.S.C. § 3601, 15U.S.C. § 689; 18U.S.C. § 876,"race, sex and agediscriminationcommon law andcontract claimsarising out of theeviction ofPlaintiff from andsubsequent sale ofher West New Yorkapartment	• August 9, 2013 Hon.Stanley R. Cheslergranted Motions toDismiss by WentworthProperty Management andSignature Property Groupwithout prejudice [DocketNo. 50]. Smalls failed tofile an amended Complaintby September 13, 2013.Therefore, a finaljudgment issued. SeeHoffman v. NordicNaturals, Inc., 837 F.3d272, 279 (3d Cir.2016)("The District Courtdismissed [the Complaint]without prejudice forfailure to state a claim- a decision on themerits - and provided[Plaintiff] leave toamend . . . . By optingnot to amend hisComplaint . . . withinthe time . . . theDistrict Court'sdismissal [was converted]into a final order.")• November 20, 2013,Judge Chesler grantedremaining Defendantsmotion for judgment onthe pleadings. Smallsfailed to file amendedcomplaint. Therefore, afinal judgment issued.Hoffman, supra.• On January 16, 2014,Judge Chesler dismissedentire case withprejudice.

4. [Second Fed. Action]Action No. 13-4637Smalls v. BuckalewFrizzell Crevina, LLP;Fein Such Kahn & ShepardPC;John Middleton, Jr.,Esq.;Daniel Ortiz, SignatureProperty Corp.;American Movers, Inc.;Lazara Carvajal, Esq.;Barbara Karpowicz, Esq.;Anthony Iacono,Wentworth PropertyManagement Corp.;American Express Bank,FSB;Robert J. Buckalew,Esq.;Nicholas Canova, Esq.;PHH Mortgage Corp.;David Frizzell, Esq.	18 U.S.C. §§ 241,242, 3601, 15U.S.C. § 689, 18U.S.C. § 876, 18U.S.C. § 371,various state lawclaims; "fourth andFourteenthAmendmentConstitutionalRights Violations,""civil rightsViolations", "Raceand SexDiscrimination"arising out of theeviction ofPlaintiff from andsubsequent sale ofher West New Yorkapartment	• On November 19, 2013,Judge Chesler dismissedComplaint againstDefendants BuckalewFrizzell & Crevina, LLP,Robert Buckalew, DavidFrizzell, BarbaraKarpowicz and JohnMiddleton, Jr. withoutprejudice, to Plaintiff'smoving to seek leave ofCourt to file AmendedComplaint which Plaintiffnever sought.• On June 25, 2014, JudgeChesler dismissedComplaint againstDefendants AmericanExpress Bank, Fein, Such,Kahn & Shepard, NicholasCanova, Esq., PHHMortgage, LazaroCarvajal, AmericanMovers, Inc. and DanielOrtiz without prejudiceto Plaintiff's moving toseek leave of Court tofile amended complaintwhich Plaintiff neversought.• On October 8, 2014,Judge Chesler dismissedthe case pursuant toFederal Rule of CivilProcedure 4(m).
5. [Third Fed. Action]Action No. 13-4698Smalls v. Hon. BarrySarkisian, Hon. HectorVelazquez, Hon. Peter	Same causes ofaction as earlierfederal casesarising out of theeviction ofPlaintiff from and	• On December 13, 2013,Judge Chesler dismissedthe Complaint againstseven state judges, JohnTonelli, and Lt. RobertMcGrath with prejudice

Bariso, Jr., Hon.Mitchel Ostrer, Hon.Marie P. Simonelli, Hon.Stuart Rabner, Hon.John A. Tonelli, Jr.,Michael Zitt, CaptainWest New York Police,Felix Rogue, Mayor ofWest New York, SusanHandler-Menahem, RobertE. McCrath, lt. N.J.Attorney General.	subsequent sale ofher West New Yorkapartment.	[Docket No. 18].• On June 2, 2014, JudgeChesler dismissed theComplaint against allremaining Defendants withprejudice [Docket No.345].
6. [Fourth Fed. Action]Action No. 16-847 Smallsv. Riviera Towers Corp.,Buckalew FrizzellCrevina LLPFirst ServiceResidential,American Express BankFSB.,PHH Mortgage Corp.,Fannie Mae, ColdwellBanker, American Movers,Inc.,West New York Police,Hudson CountyProsecutor's Office,Hon. Chris Christie,Hon. Robert Menendez,Hon. Stanley Chesler,Hon. Theodore McKee,Hon. Glenn Grant,Carlo Abad,Amariliz A. Diaz,Paul Blaine,	Same causes ofaction as earlierfederal casesarising out of theeviction ofPlaintiff from andsubsequent sale ofher West New Yorkapartment.(Plaintiff alsoalleged § 1983Violations for"certainprotectionsguaranteed to herby the Fourth,Fifth, Seventh,Eighth, Ninth, andFourteenthAmendments")	• By Opinion and Orderdated 21, 2017, thisCourt dismissed claimsagainst Riviera Towersand Blane, PHH, AmEX,Buckalew Frizzell, andFein Such, under doctrineof res judicata, as wellas failure to state aclaim. Court dismissedthose claims underprinciples of immunityand failure to state aclaim.1As to Defendants SenatorMenendez, GovernorChristie, Judges McKee,Chesler, Diaz, Grant,AUSA Blaine, and theHudson CountyProsecutor's Office, theCourt dismissed thoseclaims under principlesof immunity and failure

Michael E. Camprion,Michael Signorile,Kenneth Blaine,Robert Buckalew,Anthony Iacono,Lourdes Mercado		to state a claim.As to West New York, theclaims were dismissed onseveral grounds, failureto state a claim, statuteof limitations, andfailure to state a claim.The Court vacated thedefault entered againstSignorile and dismissedthe claim against him forfailure to state a claim.Although the court didnot specifically addressDefendants ColdwellBanker and LourdesMercado, the Court foundthat Plaintiff failed tostate claims against themunder 18 U.S.C. §§ 241and 242. They are notstate actors and theallegation that they"participated in theillegal sale" isconclusory.Despite the lack of meritof any of Plaintiff'sclaims, the Courtafforded Plaintiff anopportunity to seek leaveof the Court within 20days to amend herComplaint, and Plaintifffailed to do so. As aresult, all claims on themerits were dismissedwith prejudice. Hoffman,supra (all claims againstRiviera Towers, Blane,PHH, AmEx, BuckalewFrizzell, and Fein Suchwere on non-meritsgrounds, see Hoffman,supra).

1 Although the Court's Opinion states that Smalls "does not explicitly assert a claim under Section 1983," Docket No. 89-9, the Court, upon reconsideration, corrects the record that Plaintiff did, in fact, allege such claim. This claim nonetheless fails for the reasons set forth in the Court's Opinion. Similarly, such claims may not be barred under the applicable two-year statute of limitations, but nonetheless they fail for the alternate reasons set forth therein.

Pending Motions

Plaintiff has filed a Motion to Reconsider under Rule 60.² Rule 60 provides that the Court may reconsider its earlier decision for:

2 Notably, Plaintiff did not timely file a motion to reconsider under the Court's Local Civil Rule 7.1(i).

(1) Mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or

(6) any other reason that justifies relief.

F.R.C.P. 60(h). The Court finds that Plaintiff's Motion is nothing more than a mere re-hashing of all of the arguments she has already made.³ Rule 60(b) is not an appropriate vehicle to relitigate the Court's prior conclusions. The motion is therefore denied.

3 The Court notes a few clarifications of its Opinion as set forth in the Chart above.

Turning to the Motion to Dismiss filed by First Service and Iacono, the motion was untimely. The Court nonetheless will, pursuant to Rule 12(d), convert the motion to one for summary judgment under Federal Rule of Civil Procedure 56.⁴ As best the Court can understand the allegations against First Service and Iacono, Plaintiff alleges that they hired a locksmith to change her locks without permission, and Iacono, "knowing he was dealing in stolen property arranged for [defendant] American Movers, Inc. to store whatever items from [Plaintiff's] co-op . . . ." [Docket No. 1, at 8]. Moreover, Plaintiff alleges that Defendant Iacono lied to the West New York Police Department that Plaintiff was "legally evicted for not paying rent, but he never provided [West New York Police Department] with a warrant of removal." Id. Moreover, she alleges, Defendant Iacono had me "falsely arrested for being in the lobby of my co-op as a Defiant Trespasser." Id. Although these allegations appear to contradict the state court judgments authorizing the sale of Plaintiff's apartment, as Defendants contend, such finding would require this Court to look beyond the pleadings. Accordingly, the Court will await the completion of summary judgment. The summary judgment papers shall address these allegations pursuant to the strict mandates of Rule 56, particularly Rule 56(c).⁵

4 The Court notes that contrary to these Defendants' arguments, the doctrine of res judicata is not applicable because these Defendants were not parties in the prior actions.

5 The only remaining Defendant in the case is American Movers, Inc. who has filed no motions to date. --------

Accordingly, for the foregoing reasons, Defendants First Service and Iacono's Motion to Dismiss is CONVERTED to a Motion for Summary Judgment; Plaintiff's Motion to Strike and Motion for Reconsideration are DENIED.

An Order shall issue.

s/Renee Marie Bumb

RENÉE MARIE BUMB

United States District Judge Dated: February 15, 2018