Filed: Nov. 27, 2007
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 11-27-2007 Soni v. Holtzer Precedential or Non-Precedential: Non-Precedential Docket No. 07-2896 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "Soni v. Holtzer" (2007). 2007 Decisions. Paper 186. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/186 This decision is brought to you for free and open access by the Opinions of the United S
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 11-27-2007 Soni v. Holtzer Precedential or Non-Precedential: Non-Precedential Docket No. 07-2896 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "Soni v. Holtzer" (2007). 2007 Decisions. Paper 186. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/186 This decision is brought to you for free and open access by the Opinions of the United St..
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Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
11-27-2007
Soni v. Holtzer
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-2896
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"Soni v. Holtzer" (2007). 2007 Decisions. Paper 186.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/186
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
ALD-46 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-2896
___________
SHASHIBALA SONI,
Appellant
v.
BENJAMIN HOLTZER; STEVE MANIKEN; ALAN NISSELSON; FRANCIS G.
CONRAD; DIMITRI JONES
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 06-cv-03894)
District Judge: Honorable Jose L. Linares
____________________________________
Submitted for Possible Dismissal Due to a Jurisdictional Defect or Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
November 8, 2007
Before: SLOVITER, FISHER and HARDIMAN, Circuit Judges
(Opinion filed: November 27, 2007)
_________
OPINION
_________
PER CURIAM
The United States District Court for the District of New Jersey dismissed
Appellant’s claims. We will summarily affirm.
I.
On August 17, 2006, Appellant Shashibala Soni filed a pro se complaint, naming
five defendants: (1) Benjamin Z. Holczer, Esq. (identified as “Benjamin Holtzer”); (2)
Alan Nisselson, Esq.; (3) Steve Maniken (identified as “Steve Miniken”); (4) former
Eastern District of New York Bankruptcy Judge Francis G. Conrad; and (5) Assistant
United States Attorney Demetri Jones, Esq. (identified as “Dmitri Jones”). Soni alleged
that Defendants, together with her ex-husband, were part of the “Brooklyn Mafia group”
and that they conspired to defraud her, seize her property, and damage her medical
practice by means of a corrupt bankruptcy proceeding in the Eastern District of New
York. It appears that Judge Conrad presided over the bankruptcy case, which began in
1991 and ended by July 2000. Nisselson served as the bankruptcy trustee, in which
capacity he was represented by Holczer. The complaint itself contained no specific
allegations with respect to Jones, but it appears that she is currently prosecuting Soni for
tax fraud in the Eastern District of New York. In the end, the District Court liberally
construed Soni’s pro se pleading as alleging a federal cause of action for conspiracy to
violate her due process rights as well as state-law tort claims for injury to property and
fraud.
Soni then filed a default judgment motion, seeking an award of approximately $5
million. Although service of process was contested by Defendants, Soni claimed she had
in fact served them all via certified mail sent to their alleged business addresses in New
York. According to Soni, unspecified persons in the District Court Clerk’s Office told
her that such mailing constituted a proper method of service. The District Court denied
2
her motion on January 4, 2007, stating, in an accompanying letter opinion, that neither
federal law, nor the laws of New Jersey or New York, authorized service of process by
mail in these circumstances. The District Court accordingly ordered that Soni’s case be
dismissed pursuant to Federal Rule of Civil Procedure 4(m) unless she submitted proofs
of proper service by February 5, 2007.
On that date, Soni filed the required proofs, purportedly showing that process
servers had effected service by personal delivery to individuals at Defendants’ alleged
New York dwellings or places of business as well as by first-class mail addressed to such
locations. Receiving no documentation regarding Maniken, the District Court dismissed
all claims against this defendant on February 7, 2007. Holczer, Judge Conrad, and Jones
argued that there was no proper service of process, and Nisselson moved to dismiss
pursuant to Federal Rules of Civil Procedure 12(b)(1), (2), and (6). Soni filed no
opposition, and the District Court disposed of the pending matters in an order and letter
opinion entered on May 23, 2007. It dismissed the claims against Holczer for failure to
effect proper service and granted Nisselson’s motion to dismiss. Nevertheless, the
District Court refrained from dismissing the claims against Judge Conrad and Jones
because, among other things, the two federal Defendants had failed to address whether
the alleged service was proper under either New Jersey or New York law. The District
Court accordingly ordered Judge Conrad and Jones to file a supplemental submission
challenging the method of service, an answer to the complaint, or a motion to dismiss by
June 8, 2007.
3
On that date, Judge Conrad and Jones moved to dismiss pursuant to Rules
12(b)(2), (5), and (6) or, alternatively, for summary judgment under Federal Rule of Civil
Procedure 56. On June 20, 2007, Soni filed a notice of appeal, in which she expressly
appealed from the District Court’s May 23, 2007 order. In an “affidavit” attached to this
notice, she essentially stated her grounds for opposing the then-pending dismissal motion.
On August 17, 2007, the District Court granted the motion to dismiss as to both Judge
Conrad and Jones.
III.
We have appellate jurisdiction over Soni’s appeal from the May 23, 2007 order
pursuant to 28 U.S.C. § 1291.1 Summary action is appropriate if there is no substantial
question presented in the appeal. See, e.g., Third Circuit LAR 27.4; Third Circuit I.O.P.
1
This appeal was submitted for possible dismissal on the grounds that the order of
May 23, 2007 did not appear to constitute a final appealable order because of its failure to
dispose of all claims as to all parties in this case. The District Court expressly refused to
dismiss Soni’s claims against Judge Conrad and Jones, and the two Defendants’ motion to
dismiss was still pending when Soni filed her notice of appeal on June 20, 2007.
Nevertheless, we do have jurisdiction over her appeal of the May 23, 2007 ruling. As
asserted in the then-pending dismissal motion (and as expressly found by the District
Court with respect to Jones), Judge Conrad and Jones were arguably never served with
process. See, e.g., Gomez v. Gov’t of the Virgin Islands, 882 F.2d 733, 736 (3d Cir.
1989) (stating that named but unserved defendant is not considered to be “party” for final
judgment purposes). Furthermore, even if it was premature at the time of filing, Soni’s
notice of appeal nevertheless “ripened” upon the District Court’s disposal of the
remaining claims against Judge Conrad and Jones on August 17, 2007. See, e.g., DL
Res., Inc. v. FirstEnergy Solutions Corp., — F.3d —,
2007 WL 2993114, at *4 (3d Cir.
2007) (stating that “‘a premature notice of appeal, filed after disposition of some of the
claims before a district court, but before entry of final judgment, will ripen upon the
court’s disposal of the remaining claims.’” (citation omitted)).
4
10.6. For the following reasons, we find that this appeal presents no such substantial
question.
The District Court was correct that Soni failed to effect proper service of process
on most Defendants. It appropriately sympathized with the difficulties that a pro se
litigant may face in attempting to effect service of process. The difficulties here were
further compounded by allegedly inaccurate advice received from the District Court
Clerk’s Office. Nevertheless, the District Court properly recognized that it remains the
plaintiff’s duty to serve process on the named defendants in a manner consistent with the
Federal Rules of Civil Procedure. Regarding Soni’s initial attempt at service before filing
her default judgment motion, service of process by certified mail in such circumstances
was not authorized by the federal service-of-process rule, New Jersey law (as the state in
which the District Court was located), or New York law (as the state in which Defendants
were allegedly served). See, e.g., Fed. R. Civ. P. 4(e)(2), (i)(2)(B); N.J. Ct. R. 4:4-3(a),
4:4-4 (b)(1), (c); N.Y. C.P.L.R. 312-a(a), (f). Her subsequent efforts to effect service
through professional process servers were likewise unsuccessful. It appears that Soni
never attempted to serve Maniken after the District Court’s January 4, 2004 ruling and, at
the very least, failed to present the required proof of such service. As to Holczer, the
District Court correctly found that the summons and complaint were delivered and mailed
to the wrong address. Holczer worked on the eighteenth floor of the building as opposed
to its first floor, and, according to his affidavit, he never received the alleged mailing.
The District Court also appropriately dismissed the claims against Nisselson on
5
statute of limitations grounds. In fact, the applicable statutes of limitations barred Soni’s
claims against Maniken and Holczer as well. As Soni herself admitted, the allegedly
improper bankruptcy proceeding began in 1991 and was terminated in July 2000.
However, she did not file her complaint until August 17, 2006. This was clearly too late
under either the possibly applicable statutes of limitations for federal constitutional
claims, see, e.g., McKithen v. Brown, 481 F.3d 89, 100 n.12 (3d Cir. 2007) (stating that
statute of limitations for section 1983 claims accruing in New York was three years);
Montgomery v. De Simone,
159 F.3d 120, 126 n.4 (3d Cir. 1998) (stating that statute of
limitations for section 1983 claims that accrued in New Jersey was two years), or the
limitations periods for a cause of action under state tort law, see, e.g., N.Y. C.P.L.R. 213
(providing that fraud action must be commenced within the greater of six years from date
of accrual or two years from time plaintiff discovered or reasonably could have
discovered fraud), 214 (providing that action for injury to property must be brought
within three years); Kaufman v. i-State Corp.,
754 A.2d 1188, 1205 (N.J. 2000) (finding
that New Jersey fraud claim was subject to six-year statute of limitations). In the
“affidavit” attached to her notice of appeal, Soni contends that the consequences of the
alleged misconduct “are felt till this date” and that “[t]here is no statute of limitation on
criminal action.” (Notice at 3.) However, any alleged continuing violation would have
ended no later than the termination of her bankruptcy case in 2000, and neither the
continuing violation nor any other equitable doctrine would justify filing a complaint
more than six years later. See, e.g., West v. Phila. Elec. Co.,
45 F.3d 744, 754-55 (3d Cir.
6
1995) (addressing some elements of continuing violation theory). Likewise, criminal
prosecutions are often restricted by their own statutes of limitations, and Soni herself filed
a civil case subject to otherwise applicable civil time limits.2
III.
Therefore, because Soni’s appeal fails to present a substantial question, we will
affirm.
2
It therefore appears that Soni’s claims against both Judge Conrad and Jones were
likewise time-barred. Furthermore, Jones herself was never properly served with process,
given that Soni sent the necessary summons and complaint to the wrong address. In any
case, the District Court did not dispose of the claims against these two individuals until
August 17, 2007. However, the notice of appeal was filed on June 20, 2007 and therefore
did not encompass this subsequent ruling. See supra n.1. Soni then had the opportunity
to file a second or supplemental notice of appeal after the District Court’s August 17,
2007 ruling, but she did not do so. In these circumstances, the District Court’s dismissal
of the claims against Judge Conrad and Jones is not before us in this current appeal.
Although not mentioned by the District Court, Soni also alleged that Defendants
defrauded and took the property of her friends or “associates.” Soni, however, clearly
lacked the standing to assert claims based on alleged damages suffered by others.
7
