JOSEPH F. BIANCO, District Judge.
On August 21, 2009, pro se plaintiffs Rosaria Niles ("Rosaria") and Salvatore A. Bono ("Bono") (together, "plaintiffs") brought this action, pursuant to a lengthy list of statutes and constitutional provisions,
Before the Court is a Report and Recommendation ("R & R") from Magistrate Judge Arlene Lindsay, as well as plaintiffs' objections to the R & R. The R & R recommended that all defendants' motions to dismiss be granted. Furthermore, the R & R recommended that the District Court impose a filing injunction on plaintiffs prohibiting plaintiffs from filing any further lawsuits in the Eastern District of New York without permission of the court.
For the reasons that follow, the Court adopts in full Magistrate Judge Lindsay's thorough and well-reasoned R & R, except that the Court narrows the recommended language of the injunction to make it pertain only to the subject matter of the instant litigation (and the other prior lawsuits described infra).
As relevant background, the instant action and many of the plaintiffs' earlier judicial proceedings relate to events concerning the estates of Laura J. Niles and her brother Henry E. Niles, who inherited a large fortune from their father. Rosaria married Henry Niles in 1992, and, in 1997, Laura Niles amended her will and modified certain trust agreements, nominating Bono, who is Rosaria's son, as executor of her will and trustee of her trusts. (R & R at 2-4.)
The instant action is the latest in a series of judicial proceedings that includes:
1. An action commenced January 20, 1998 in New Jersey Superior Court that, among other things, removed plaintiff
2. A proceeding in New York State Surrogate Court to probate the Last Will and Testament of Henry E. Niles. Rosaria filed various objections to the probate of the will and commenced a proceeding by Petition verified September 17, 1998 to revoke preliminary letters testamentary issued to Laura Niles's friend and financial advisor, Parkinson, and Parkinson's attorney, Selby, and also commenced a proceeding by Petition verified December 20, 1999 against the estate of Henry E. Niles to compel payment of a claim. (R & R at 5.)
3. A lawsuit filed on September 29, 1999 by Bono in U.S. District Court for the Eastern District of New York ("E.D.N.Y.") against several defendants, including, for example, counsel for Parkinson and Selby, a New Jersey Superior Court Judge, a Superior Court Surrogate, and a court-appointed guardian ad litem in the New Jersey probate action. The suit alleged that defendants conspired to manipulate and subvert the judicial systems of the states of New York and New Jersey in an effort to reap financial gains at the expense of Bono and elderly citizens of New York and New Jersey. Bono amended his complaint to allege that Selby and Parkinson acted in concert with Joseph J. Kunzeman, who was conservator of Henry Niles's property, to manipulate the judicial system to avoid losing control over the Niles's assets. (R & R at 7.)
4. A foreclosure proceeding instituted by TierOne on July 11, 2005 against Rosaria to foreclose the mortgage held on Rosaria's residence located at 223 Lakeview Avenue West in Brightwaters, New York. Rosaria filed a notice of removal of the foreclosure proceeding to the E.D.N.Y. and asserted cross-claims against Parkinson, Selby, and others, alleging, inter alia, that various CIA officers persecuted the Niles family. Judge Joanna Seybert remanded the action to New York Supreme Court, Suffolk County, which granted summary judgement to TierOne, entered a judgment of foreclosure, and appointed a referee to sell the mortgaged premises at public auction. Rosaria made numerous attempts to stay enforcement of the judgement of foreclosure and sale, which the Appellate Division, Second Department twice denied in January 2008. Rosaria then attempted to stay the foreclosure by filing petitions in Bankruptcy Court. After the automatic stay was lifted, Rosaria made two unsuccessful applications to reinstate the stay, then filed another motion in the Appellate Division, Second Department, seeking, inter alia, another stay of the foreclosure sale pending appeal. The Appellate Division denied the motion. Rosaria filed another application in Supreme Court, Suffolk County seeking, inter alia, an order staying the foreclosure sale and vacating the judgment of foreclosure. The application was denied, and the premises were sold at a foreclosure sale to Wilshire and American Key on April 8, 2009. (R & R at 8-10.)
On August 21, 2009, plaintiffs commenced the instant action. On September 2, 2009, plaintiffs initiated another action in Supreme Court, Suffolk County, seeking principally the same relief as in the instant action. (R & R 10-11.)
On August 21, 2009, pro se plaintiffs filed their complaint. On April 26, 2010, defendants Geoffrey M. Parkinson, Leland C. Selby, James Lamb, the Laura J. Niles Foundation, Inc., and the Henry E. Niles Foundation ("the Foundation Defendants") filed a motion to dismiss. On April 29, 2010, TierOne filed a motion to dismiss. On April 30, 2010, Wilshire Investment
By Order dated September 1, 2010, the Court referred the motions to Magistrate Judge Lindsay for a report and recommendation. On September 17, 2010, Magistrate Judge Lindsay terminated the above four motions to dismiss and implemented the bundle rule. On November 1, 2010, plaintiffs filed an amended complaint.
On March 18, 2011, the Federal Defendants, the Foundation Defendants, and Defendants Wilshire and American Key each filed motions to dismiss. By Affirmation dated March 17, 2011, TierOne joined in the motions brought by the Federal Defendants and the Foundation defendants. On March 18, 2011, in accordance with the bundle rule, plaintiffs filed a Memorandum in Opposition, and defendants Wilshire and American Key filed a reply.
On August 31, 2011, Magistrate Judge Lindsay issued the R & R recommending that all defendants' motions to dismiss be granted and recommending that the District Court impose a filing injunction on plaintiffs. The R & R further instructed that any objections to the R & R be submitted within fourteen (14) days of receipt. (R & R at 37.) On September 19, 2011, plaintiffs filed an objection to the R & R. (Pls.' Objections to the R & R, Sept. 19, 2011, ECF No. 163 ("Obj.").) The Foundation Defendants filed a Memorandum in Opposition to the plaintiffs' objection on October 3, 2011.
A district judge may accept, reject, or modify, in whole or in part, the findings and recommendations of the Magistrate Judge. See DeLuca v. Lord, 858 F.Supp. 1330, 1345 (S.D.N.Y.1994); Walker v. Hood, 679 F.Supp. 372, 374 (S.D.N.Y. 1988). As to those portions of a report to which no "specific written objection" is made, the Court may accept the findings contained therein, as long as the factual and legal bases supporting the findings are not clearly erroneous. See Greene v. WCI Holdings Corp., 956 F.Supp. 509, 513 (S.D.N.Y.1997) (citing Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985)); Santana v. United States, 476 F.Supp.2d 300, 302 (S.D.N.Y.2007). Where the report is dispositive of the case, the Court reviews de novo the portions to which objections have been filed. See Fed. R.Civ.P. 72(b); Williams v. Beemiller, Inc., 527 F.3d 259, 264 (2d Cir.2008) (noting that a report recommending remand was dispositive).
The Court has conducted a review of the full record, including, among other things, the complaint, the parties' respective submissions in connection with the parties' motions, as well as the R & R, applicable law, and plaintiffs' objections. Having reviewed de novo all portions of the R & R to which plaintiffs specifically object, and having reviewed the remainder of the R & R for clear error, the Court adopts the Report in its entirety (with the exception of narrowing the language of the litigation injunction), for the reasons set forth therein and below.
As set forth below, these arguments are wholly without merit.
Plaintiffs object that the Rooker-Feldman doctrine does not apply to the New York State foreclosure proceeding, the New York State Surrogate's Court Litigation, the New Jersey State Court litigation, and the New York State Court Conservatorship litigation, (Objections # 11, 12, 13, 14.), and that plaintiffs' claims are
In her well-reasoned and thorough R & R, Magistrate Judge Lindsay fully explained the bases for her decision, which include:
1. The Rooker-Feldman doctrine operates to bar all of plaintiffs' claims in connection with the New York State Foreclosure proceeding, the New York State Surrogate's Court litigation, the New Jersey State Court litigation, and the New York State Court Conservatorship litigation.
In the instant action, plaintiffs are simply attempting for this Court to review, reject, and overturn the results of these state court actions. For each state proceeding, the requirements of the Rooker-Feldman doctrine, set forth in the R & R at pages 20-21, are satisfied. Accordingly, plaintiffs' claims in connection with the state proceedings — for example, that the defendants executed their vast scheme and conspiracy by manipulating and subverting the judicial system in these proceedings — are barred by Rooker-Feldman.
2. Res Judicata (or claim preclusion) operates to bar plaintiffs' federal claims. The instant action meets the criteria, set forth in the R & R at pages 27-29, for claim preclusion under New York and New Jersey law.
With respect to the New York proceedings, a final judgment on the merits was entered in the Supreme Court, Suffolk County litigation, and the Settlement Agreement in Surrogate's Court operates as a final judgment. The privity requirement is satisfied because Rosaria Niles was a named party in both cases. Finally, the factual allegations in the instant case and in the state court actions arise from the same transaction or series of events, namely an alleged fraud and conspiracy resulting in the foreclosure of the subject premises, the state court's issuance of a Judgment of Foreclosure and Sale, and the subsequent purchase of the subject premises by defendant Wilshire at the foreclosure auction, as well as an alleged conspiracy and fraud resulting in the Settlement Agreement executed in state court concerning the probate of Henry Niles' estate.
As to the New Jersey proceedings, a final judgment on the merits was entered in Superior Court of New Jersey concerning the estate of Laura Niles. Privity is satisfied because the plaintiffs were named parties in the Superior Court action. Finally, the factual allegations in the state court action and the instant matter arose from the same transaction or series of events, namely, an alleged conspiracy and fraud wherein the defendants manipulated and subverted the New Jersey State judicial system in the New Jersey litigation.
Accordingly, the R & R properly concluded that plaintiffs' federal claims were barred by res judicata.
3. Collateral Estoppel (or issue preclusion) operates to bar many of plaintiffs' actions because many of these issues were litigated in (i) the mortgage foreclosure proceeding, (ii) Surrogate Court litigation concerning the estate of Henry Niles, and (iii) the New Jersey litigation concerning the estate of Laura Niles. The R & R notes, however, that "the nearly indecipherable allegations set forth in plaintiffs' amended complaint make it impossible to determine the extent to which issue preclusion applies to plaintiffs' claims." (R & R at 33.)
Many of plaintiffs' objections are premised on the argument that the R & R is fraudulent, is based on false statements, and does not take into account various documentary evidence. (Objections # 1, 3, 7, 8, 9, 10, 18, 19.) A corollary to this argument is that Magistrate Judge Lindsay
The Court finds that Magistrate Judge Lindsay properly adhered to the standard set forth in Jaghory v. New York State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997) and credited all of plaintiffs' allegations as true. See id. ("the court must accept all factual allegations in the complaint as true and draw inferences from those allegations in the light most favorable to the plaintiff"). Magistrate Judge Lindsay properly found these claims to be barred by the Rooker-Feldman doctrine, res judicata, and/or collateral estoppel.
To the extent that the plaintiffs argue that Magistrate Judge Lindsay exhibited bias or partiality in her rulings, or should have recused herself, there is absolutely no evidence to support those allegations.
Plaintiffs also contend that their federal tort claim is not time-barred. (Objection # 16.) As Magistrate Judge Lindsay explained in the R & R, under 28 U.S.C. § 2401(b), a tort claim against the United States is barred "unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing ... of notice of final denial of the claim by the agency to which it was presented." (R & R at 31 n. 27.) At the very latest, plaintiffs made allegations in February 2006 of a vast government conspiracy orchestrated by the CIA. Plaintiffs failed to file a claim against the United States under the Federal Tort Claims Act in accordance with the applicable regulations, and more than two years have passed since plaintiffs made these identical allegations. (Id.) Thus, the R & R properly found that the federal tort claim is time-barred.
Plaintiffs allege that Magistrate Judge Lindsay did not conduct the required proceedings in accordance with Federal Rule of Civil Procedure 72 and erred in not granting plaintiffs' request for a hearing under Federal Rules of Civil Procedure 11 and 16. (Objection # 2.) Rule 72 directs magistrate judges to "promptly conduct the required proceedings" when dispositive or nondispositive matters are referred to him or her. Fed.R.Civ.P. 72. Upon review of the docket and the record, this Court concludes that Magistrate Judge Lindsay promptly conducted all required proceedings concerning dispositive and non-dispositive matters. Rule 11 generally sets forth requirements for parties concerning pleadings, motions, papers, and representations to the courts. Rule 11 also permits the court, in certain circumstances, to impose sanctions. Fed. R. Civ. Proc. 11. This rule, therefore, does not even apply to a court's decision about whether to hold a hearing. In any event, Magistrate Judge Lindsay has fully complied with Rule 11 throughout the case. Rule 16 grants discretion to a court to order attorneys or parties to appear at pretrial conferences, and permits the court discretion in determining what matters to consider at a pretrial conference. Fed. R. Civ. Proc. 16. Rule 16 also requires judges to issue a scheduling order after certain events. Id. Throughout the case, Magistrate Judge Lindsay fully adhered to the precepts of Rule 16.
Accordingly, the Court finds no merit to plaintiffs' objection that Magistrate Judge Lindsay violated the Federal Rules of Civil Procedure.
Finally, plaintiffs argue that there is no merit to Magistrate Judge Lindsay's recommendation that this Court impose a litigation injunction. (Objection #20.) As set forth below, after de novo review, the Court agrees with Magistrate Judge Lindsay that a litigation injunction is warranted.
Magistrate Judge Lindsay thoroughly documented plaintiffs' history of vexatious litigation involving duplicative lawsuits that served to burden numerous other parties and to burden the efficient administration of the courts. (See R & R at 35-36.) Applying the factors set forth in Safir v. United States Lines, Inc., 792 F.2d 19, 24 (2d Cir.1986), this Court agrees that injunctive relief is warranted in this case. (See R & R at 34-35.) Specifically, as Magistrate Judge Lindsay explained:
Significantly, shortly after commencing the within action, plaintiffs initiated a lawsuit in Supreme Court, Suffolk County asserting the same allegations contained in the amended complaint in this action, which the Supreme Court dismissed on the grounds that plaintiffs had yet again raised the same arguments of fraud and conspiracy that were raised and decided in multiple actions in both state and federal courts and enjoined plaintiffs from filing any further actions in that court without prior leave of the court. (Finkelstein Aff., dated March 17, 2011, Ex. A.) Although plaintiffs are proceeding pro se in this action, "a court's authority to enjoin vexatious litigation extends equally over pro se litigants and those represented by counsel, and a court's special solicitude towards pro se litigants does not extend to the willful, obstinate refusal to play by the basic rules of the system upon whose very power the plaintiff[s] [are] calling to vindicate [their] rights." Lipin v. Hunt, 573 F.Supp.2d 836, 845 (S.D.N.Y.2008) (internal quotation marks and citation omitted). The prolix and redundant pleadings make conclusory reference to a multitude of causes of action against multiple defendants as part of a vaguely defined CIA conspiracy which have caused the defendants to repeatedly incur unreasonable expenses in the defense of these unfounded allegations and have imposed upon the
"In limiting a citizen's ability to litigate, a court should take special care to ensure that the restrictions placed on the party are taken together, not so burdensome as to deny the litigant meaningful access to the courts." Fitzgerald v. Field, No. 99 Civ 2406, 1999 WL 1021568, at *5 (S.D.N.Y. Nov. 9, 1999) (internal quotation marks and citation omitted).
(R & R at 34-37.)
This Court agrees entirely with Magistrate Judge Lindsay's findings as to each of the factors and concludes that a litigation injunction is warranted. However, the Court is narrowing the recommended language of the injunction to make it pertain only to the subject matter of the instant litigation (and the other prior lawsuits described supra).
The plaintiffs also make a motion for the undersigned to recuse himself. (See Letter Seeking Recusal, Sept. 12, 2011, ECF No. 162.) There is no basis for recusal under the relevant statute. See 28 U.S.C. § 455. Accordingly, plaintiffs' motion for recusal is denied.
Having conducted a de novo review of all portions of the R & R to which plaintiffs specifically object, and having reviewed the remainder of the R & R for clear error, the Court adopts the R & R in its entirety, except that the Court narrows the language of the litigation injunction. Accordingly, for the reasons set forth in the R & R and this Memorandum and Order, all defendants' motions to dismiss are granted, and the complaint is dismissed. To the extent plaintiffs are attempting to raise any new state law claims, the Court declines to exercise supplemental jurisdiction over any state law claims. IT IS FURTHER ORDERED that this Court hereby enjoins Rosaria Niles and Salvatore A. Bono from instituting, without prior permission of the Court, any new action in the United States District Court for the Eastern District of New York that is based on, or relates in any way to, events concerning the estates of Laura Niles and Henry E. Niles, or that is based on, or relates in any way to, the foreclosure proceedings on the mortgage held on the residence at 223 Lakeview Avenue West in Brightwaters, New York. The Clerk of the Court shall enter judgment accordingly and close the case.
A copy of this Order has been mailed to pro se plaintiffs.
SO ORDERED.
LINDSAY, United States Magistrate Judge:
Before the court, on referral from District Judge Bianco, are the motions to dismiss of the defendants (1) United States of America/Central Intelligence Agency, the United States Attorney's Office for the Eastern District of New York, Mitchell E. Kline, Lydia Spellman, John T. Martinez, and their commanding superior CIA officers, John and/or Jane Doe (the "Federal Defendants"); (2) Geoffrey M. Parkinson, Leland C. Selby, James Lamb, Laura J. Niles Foundation, Inc., and Henry E. Niles Foundation, Inc. (the "Foundation Defendants"); (3) TierOne Bank
This action arises out of a series of events in connection with a foreclosure proceeding instituted by defendant TierOne in July 2005 in New York Supreme Court, Suffolk County, seeking to foreclose the mortgage held on pro se plaintiff Rosaria Niles' ("Rosaria") residence located at 223 Lakeview Avenue West in Brightwaters, New York (the "premises"). The following facts are taken from the Amended Complaint and are presumed true for purposes of this motion. In addition, the undersigned takes judicial notice of court documents relating to plaintiffs Rosaria's and Salvatore A. Bono's ("Bono") (collectively "plaintiffs") prior state and federal court actions in order to describe the procedural posture and factual history of this case.
Laura J. Niles ("Laura Niles") and her brother Henry E. Niles ("Henry Niles") inherited a large fortune from their father's estate and lived together in their jointly owned family home in Brightwaters, New York until 1986. Matter of Niles, 176 N.J. 282, 286-87, 823 A.2d 1 (2003). In the 1980s, defendant Geoffrey M. Parkinson ("Parkinson"), an investment counselor and friend of Laura and Henry Niles, became their financial advisor. Id. at 287, 823 A.2d 1. In 1986, Laura Niles moved, and because of his declining health, Henry Niles remained at the family home in Brightwaters. Id. At that time, a friend of Laura Niles asked Rosaria
Laura Niles executed three inter vivos trusts, viz. (1) a revocable trust which designated the defendant Laura J. Niles Foundation, Inc., as her residuary beneficiary, on March 31, 1992; (2) a charitable remainder unitrust, wherein she placed a small portion of her assets and designated that on her death the assets would be held for her brother Henry for his life and upon his death would pass to the Laura J. Niles Foundation, Inc., on March 21, 1992; and (3) a second charitable remainder unitrust on August 23, 1994. Id. Parkinson was
On January 20, 1998, Parkinson commenced an action in New Jersey Superior Court seeking, inter alia, an allowance of the settlement of his account as the former trustee of the trusts and the appointment of a guardian ad litem for Laura Niles
Following the death of Henry Niles on December 27, 1997, Parkinson and Selby petitioned the New York State Surrogate's Court, Suffolk County for the probate of the Last Will and Testament of Henry E. Niles, dated December 16, 1988, and a codicil thereto dated January 11, 1990. (Santoro Decl., dated December 17, 2010, Ex. G.) Rosaria filed objections to the probate of the will and codicil and to the appointment of Parkinson and Selby as
Pursuant to the Settlement Agreement, Rosaria executed releases on March 15, 2000(1) in favor of Parkinson and Selby, releasing them individually and as fiduciaries of the Estate of Henry E. Niles for all claims, including but not limited to all matters in connection with, or arising from, the Estate of Henry E. Niles; and (2) in favor of the Laura J. Niles Foundation, Inc., the Henry E. Niles Foundation, Inc., and the Estate of Laura J. Niles, releasing such entities and their agents for any and all claims whatsoever, including, but not limited to, all matters in connection with, or arising from, the Estate of Henry E. Niles. (Santoro Decl., dated December 17, 2010, Ex. H.) Bono sent a letter dated March 15, 2000 to the Hon. A. Gail Prudenti, Suffolk County Surrogate, stating "you committed nothing less than extortion" and "should be ashamed of yourself for what you did to my mother and for ignoring the law to help Kunzeman, Luciano and the Parkinson and Selby racketeering scheme." (Santoro Decl., dated December 17, 2010, Ex. I.)
On April 3, 2000, Laura J. Niles Foundation, Inc. entered a New Jersey Judgment in the records of Suffolk County, New York in the amount of $526,296. (Santoro Decl., dated December 17, 2010, Ex. J.) On August 4, 2000, the Estate of Henry E. Niles paid the balance of the funds of $2,750,000 owed under the Settlement Agreement to Rosaria by issuing a check in the amount of $2,239,773.22 and by honoring the Notice to Garnishee by paying the Sheriff the sum of $566,203.10 in satisfaction of Rosaria's liability to the Laura J. Niles Foundation, Inc. pursuant to the New Jersey Judgment. (Santoro Decl., dated December 17, 2010, Exs. E, G, J.)
On September 29, 1999, Bono commenced an action in the United States District Court for the Eastern District of New York against John Barnosky
On July 11, 2005, defendant TierOne commenced an action in New York State Supreme Court, Suffolk Country against Rosaria to foreclose the mortgage held on Rosaria's residence located at 223 Lakeview Avenue West in Brightwaters, New York (the "Foreclosure Proceeding"). (Santoro Decl., dated December 17, 2010, Ex. M.) In response, Rosaria interposed a "Verified Answer, Objections, and Counterclaim" dated August 15, 2005 which stated that Bono prepared the document on her behalf. (Santoro Decl., dated December 17, 2010, Ex. N.)
On February 1, 2006, Rosaria filed a notice of removal of the Foreclosure Proceeding to this Court and asserted cross-claims against Parkinson, Lamb, Selby, the Laura J. Niles Foundation, Inc. and the United States of America alleging, inter alia, that the evidence would "conclusively prove how CIA Case Officer Mitchell Klein, CIA Officer Lydia Spellman, CIA advisor John T. Martinez (their respective superior commanding officers) and persons under their supervision and control, betrayed the legality and constitutionality of the CIA's activities, and redefined their rank and role within our government as a `permission slip' to wage to full-fledged persecution against a family of United States persons on United States soil, [ ] Niles and members of her family." (Docket No. CV-06-0447, Docket Entry 1 at 3.) By Memorandum and Order dated February 15, 2006, District Judge Joanna Seybert remanded the action to New York Supreme Court, Suffolk County.
By Order dated June 30, 2006, the Supreme Court, Suffolk County (i) granted summary judgment in favor of defendant
After the Bankruptcy Court lifted the stay, Rosaria filed another motion in the Appellate Division, Second Department, seeking, inter alia, another stay of the foreclosure sale pending appeal. By Decision and Order dated January 13, 2009, the Appellate Division denied the motion and sua sponte dismissed the appeal on the ground that the right of direct appeal from the October 23, 2006 Order terminated with the entry of Judgment on November 17, 2007 and no appeal from the Judgment had been taken. (Santoro Decl., dated December 17, 2010, Ex. Z.)
Rosaria subsequently filed another application "by her son and attorney-in-fact Salvatore A. Bono" in Supreme Court, Suffolk County action seeking, inter alia, an order staying the foreclosure sale and vacating the Judgment of Foreclosure. Rosaria alleged, inter alia, that:
(Id.) By Order dated April 16, 2009, the Supreme Court denied the application and held that any allegations of fraud in the action were raised or could have been raised in the answer, in opposition to the summary judgment motion or in Rosaria's motions to reargue and renew. (Id.)
The premises were sold at a foreclosure sale to defendants Wilshire and American Key on April 8, 2009. (Finkelstein Aff., dated March 17, 2011, Ex. A.) A trial was thereafter held in Suffolk County District Court, and on July 30, 2009, defendants Wilshire and American Key were awarded a judgment of possession of the premises and a warrant of eviction against plaintiffs.
On September 2, 2009, plaintiffs initiated another action in Supreme Court, Suffolk County seeking principally the same relief as in the instant action. By Decision and Order dated April 6, 2010, the Supreme Court dismissed the action on the grounds that their causes of action were barred by the doctrines of res judicata and collateral estoppel and enjoined plaintiffs from filing any further actions in that court without prior leave of the court.
On August 21, 2009, plaintiffs filed the complaint in this action against defendants.
Plaintiffs brought the amended complaint pursuant to:
(Amended Compl., ¶ 3.) Plaintiffs allege principally that the defendants have operated, together with other non-parties, as CIA operatives as part of a scheme and conspiracy,
Although the 177-page amended complaint does not designate any causes of action, it contains what plaintiffs describe as six "Special Counts" under a heading "Section V — The Plaintiffs' Claims against the Defendants." (Id. at ¶¶ 128-340, 823 A.2d 1.) Special Count I alleges that defendants (and others) were operating under the auspices of the CIA and repeatedly manipulated and subverted the state judicial system in order to impose countless acts of fraud, felony offenses, and constitutional
Special Count III alleges that defendants (and others) systematically subverted the Suffolk County Surrogate's Court under color of official right in order to deny Rosaria and Henry and Laura Niles their property rights
(Id. at ¶¶ 225-86, 823 A.2d 1.) Plaintiffs seek actual, nominal, punitive damages and legal fees and Bono seeks recovery on behalf of his children for unspecified damages over the years. (Id. at ¶¶ 285-86, 823 A.2d 1.)
Special Count V alleges that defendants (and others) were operating under the auspices of the CIA and manipulated and subverted the state judicial system under color of official right to secure the Bono-Niles home through mortgage fraud and a foreclosure proceeding in Suffolk County Supreme Court and seeks equitable relief restoring title on the premises that was the subject of the foreclosure proceeding to Rosaria, as well as seeks damages in the amount of the replacement value of the subject premises and improvements thereon as well as legal fees and other related relief. (Id. at ¶¶ 287-32, 823 A.2d 1.) Special Count VI alleges that it is a "wraparound count" incorporating the allegations
Defendants now move to dismiss the Amended Complaint pursuant to Fed. R.Civ.P. 2(b)(5) for lack of subject matter jurisdiction and pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim. In addition, the defendants seek a litigation injunction pursuant to 28 U.S.C. § 1651(a). Defendants' motions will be addressed together.
"When a defendant moves to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction, and also moves to dismiss on other grounds, such as Rule 12(b)(6) for failure to state a claim upon which relief can be granted, the Court must consider the Rule 12(b)(1) motion first." Bobrowsky v. The Yonkers Courthouse, 777 F.Supp.2d 692, 703 (S.D.N.Y. 2011); see Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir.1990) ("Where, as here, the defendant moves for dismissal under Rule 12(b)(1), as well as other grounds, the court should consider the Rule 12(b)(1) challenge first since if it must dismiss the complaint for lack of subject matter jurisdiction, the accompanying defenses and objections become moot and do not need to be determined") (internal quotation marks and citations omitted); cf. Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 90 L.Ed. 939 (1946) (holding the court may decide a motion to dismiss for failure to state a claim only after finding subject matter jurisdiction exists). The court is mindful that when considering a motion to dismiss a pro se complaint, the court must construe the complaint liberally and interpret the complaint "to raise the strongest arguments they suggest." Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 474 (2d Cir.2006). "However, mere conclusions of law or unwarranted deductions need not be accepted." Bobrowsky, 777 F.Supp.2d at 703 (internal quotation marks and citations omitted).
A case is properly dismissed for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) "when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000); see Baur v. Commissioner of Social Sec., No. 10-CV-3781 (CBA), 2011 WL 1877726, at *2 (E.D.N.Y. May 16, 2011). Under both Rule 12(b)(1) and Rule 12(b)(6) "the court must accept as true all material factual allegations in the complaint and draw all inferences from those allegations in the light most favorable to the plaintiff." Jaghory v. New York State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997); see Baur, 2011 WL 1877726, at *2. "When considering a motion to dismiss, courts are generally limited to examining the sufficiency of the pleadings, but where a party challenges the court's subject matter jurisdiction, the court may resolve disputed jurisdictional fact issues by reference to evidence outside the pleadings." Baur, 2011 WL 1877726, at *2 (internal quotation marks and citation omitted). Moreover, "[i]n contrast to the standard for a motion to dismiss for failure to state
The Supreme Court has instructed that "[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotation marks and citations omitted). Rather, "[f]actual allegations must be enough to raise a right to relief above the speculative level." Id. If the plaintiffs "have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed." Id. at 570, 127 S.Ct. 1955. "In adjudicating a Rule 12(b)(6) motion, a district court must confine its consideration to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference and to matters of which judicial notice may be taken." Leonard F. v. Israel Discount Bank of N.Y., 199 F.3d 99, 107 (2d Cir.1999) (internal quotation marks and citation omitted); see Staehr v. Hartford Fin. Servs. Grp., Inc., 547 F.3d 406, 424-25 (2d Cir.2008) (citing Kramer v. Time Warner, Inc., 937 F.2d 767, 774 (2d Cir.1991) ("courts routinely take judicial notice of documents filed in other courts... to establish the fact of such litigation and related filings")).
Defendants move to dismiss the plaintiffs' amended complaint for lack of subject matter jurisdiction pursuant to Fed. R.Civ.P. 12(b)(1) as barred by the Rooker-Feldman doctrine and, alternatively, as barred by the doctrines of res judicata and collateral estoppel. Defendants also move to dismiss the plaintiffs' amended complaint for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6).
Under the Rooker-Feldman doctrine, "federal district courts lack jurisdiction over suits that are, in substance, appeals from state-court judgments." Hoblock v. Albany Cty. Bd. of Elecs., 422 F.3d 77, 84 (2d Cir.2005); see generally District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482-86, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983) and Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16, 44 S.Ct. 149, 68 L.Ed. 362 (1923); see also Atlantic Coast Line R.R. Co. v. Brotherhood of Locomotive Eng'rs, 398 U.S. 281, 296, 90 S.Ct. 1739, 26 L.Ed.2d 234 (1983) ("lower courts possess no power whatever to sit in direct review of
The Second Circuit has established four requirements that must be satisfied for the Rooker-Feldman doctrine to apply: (1) "the federal-court plaintiff must have lost in state court;" (2) "the plaintiff must complain of injuries caused by a state court judgment;" (3) "the plaintiff must invite district court review and rejection of the judgment;" and (4) "the state-court judgment must have been rendered before the district court proceedings commenced." Hoblock, 422 F.3d at 85 (internal quotation marks and citations omitted). As the Second Circuit noted, the "first and fourth of these requirements may be loosely termed procedural; the second and third may be termed substantive." Id. If the plaintiffs' claims meet all four requirements, the court will lack subject matter jurisdiction to hear the claims under Rooker-Feldman. In the instant matter, plaintiffs complain of the state-court judgments in the New York State Foreclosure Proceeding, the New York State Surrogate's Court Litigation, the New Jersey State Litigation, and the New York State Conservatorship Proceeding. Applying these principles, the court will address each state-court judgment in turn.
With respect to the Foreclosure Proceeding, "courts in this Circuit have consistently held that any attack on a judgment of foreclosure is clearly barred by the Rooker-Feldman doctrine."
In addition, to the extent plaintiffs seek to challenge the state court judgment of foreclosure, the substantive requirements of the Rooker-Feldman doctrine are met as well. The injuries of which plaintiffs complain were caused by the state-court judgment, namely the divestiture of title to Rosaria's home and the attendant dispossession of the premises. Read as a whole, the amended complaint alleges that defendants have engaged in a scheme and conspiracy of submitting fraudulent documents in connection with the November 2, 2007 Judgment of Foreclosure and Sale in other courts, including the Bankruptcy Court, and have manipulated and subverted the state judicial system to unlawfully divest title to plaintiffs' home. (Amended Compl. ¶¶ 287-332.) Thus, the genesis of plaintiffs' alleged injuries (the sale and dispossession of the Brightwaters premises) directly followed the state-court judgment of foreclosure. Moreover, as evidenced by the allegations in the amended complaint and motion for a preliminary injunction and restraining order, plaintiffs are seeking to have this court review and undo the 2007 state-court judgment of foreclosure on the grounds that the judgment was fraudulently procured. A ruling here in plaintiffs' favor "would effectively declare the state court judgment [of foreclosure] fraudulently procured and thus void, .... which is precisely the result that the Rooker-Feldman doctrine seeks to avoid." Kropelnicki, 290 F.3d at 129.
In sum, plaintiffs' allegations make clear that they are attempting to litigate the validity of the foreclosure action in this court. Plaintiffs' opposition to defendants' motions does not address defendants' arguments but appears to reiterate in an incoherent manner conclusory allegations and statements all associated with events leading up to and including the foreclosure. Plaintiffs' complaint of injuries to themselves, their families and others caused by the state-court foreclosure judgment substantively seeks this court's review and rejection of that judgment. This court concludes, however, the Rooker-Feldman doctrine bars any such review of plaintiffs' claims with respect to the Foreclosure Proceeding that can be said to arise out of the allegations in the amended complaint, including those allegations contained in Special Count V (and corresponding allegations in Special Count VI).
The Rooker-Feldman doctrine applies to plaintiffs' claims in connection with the New York State Surrogate's Court litigation. With respect to this litigation, plaintiffs seek to void the stipulation of settlement executed in the probate proceeding
In turning to the procedural prongs, the court acknowledges that as a threshold matter, "a settlement agreement may constitute a state court judgment for purposes of Rooker-Feldman." Reyes v. Fairfield Properties, 661 F.Supp.2d 249, 274 (E.D.N.Y.2009). In order to satisfy the first requirement of the doctrine, "rather than putting the court in the position of evaluating subjectively whether a settlement should be considered a loss, it seems sufficient for plaintiffs to allege that the court-approved settlement[ ] somehow violated their rights." Green v. City of New York, 438 F.Supp.2d 111, 119 (E.D.N.Y.2006). Because plaintiffs assert that the settlement agreement violated Rosaria's rights, inter alia, to her husband's estate and other properties, the court deems plaintiff Rosaria a losing party in a state court action for purposes of the first Rooker-Feldman requirement. The fourth requirement is also satisfied as there is no question that the settlement agreement was entered on March 15, 2000, prior to plaintiffs commencing this action on August 21, 2009. The substantive requirements are also met here, as plaintiff Rosaria complains of financial injuries and violations of her property rights caused by the stipulation of settlement and clearly invites this court to review and reject the stipulation of settlement executed in the state surrogate court, by asking the court to vacate the settlement agreement and award her as a measure of damages, recovery for herself in the amount of one-third of Henry Niles' estate and recovery on behalf of certain charities of the remaining two-thirds of his estate. (Amended Compl. ¶¶ 159, 224.) Having met all the requirements, the court concludes that the Rooker-Feldman doctrine bars any such review of plaintiffs' claims with respect to the New York State Surrogate's Court Litigation that can be said to arise out of the allegations in the amended complaint, including those allegations contained in Special Count III (and corresponding allegations in Special Count VI).
The Rooker-Feldman doctrine applies to plaintiffs allegations in the amended complaint with respect to the New Jersey State Court litigation. Plaintiffs aver in their amended complaint that the New Jersey Superior Court's finding of undue influence, nullification of the amendments to Laura Niles' estate plan, removal of plaintiff Bono as trustee and the imposition of a money judgment against plaintiffs resulted from the surreptitious conduct of defendants, who, acting under the auspices of the CIA, manipulated and subverted the state judicial system under color of official right in furtherance of a CIA scheme. (Amended Compl., ¶¶ 160-89.) Plaintiff Rosaria seeks the financial equivalent of a bequest of real property under Laura Niles' will together with legal fees and fiduciary commissions. (Id. ¶¶ 188-89.) Inasmuch as plaintiffs are clearly state court losers; who commenced this instant action more than five years after the Third Amended Judgment of the Superior Court of New Jersey, dated April 2, 2004; are complaining of an injury directly related to the state court judgment; and is seeking to have this court revisit the results of the New Jersey litigation, any claim that can
The Rooker-Feldman doctrine applies to plaintiffs' claims in connection with the New York State Conservatorship Proceeding. With respect to this litigation, plaintiffs allege that the defendants herein manipulated and subverted the New York State Judicial system in the Conservatorship Proceeding after filing a false petition therein and seek this court's review of the outcome of that proceeding, which resulted in the appointment of Kunzeman as conservator for Henry Niles from 1992 until his death in 1997, to award plaintiff Rosaria recovery of one-third the value of Henry Niles' estate and certain other unspecified measure of damages sustained by her as a result of its outcome. (Amended Compl., 128-59.) To the extent plaintiffs invite this court to review and reject the result in the Conservatorship Proceeding which was rendered well before this action commenced, the court declines such an invitation on the grounds that the Rooker-Feldman doctrine precludes jurisdiction over any such claims, including any that may arise out of the allegations in Special Count I (and corresponding allegations in Special Count VI).
In summary, although the amended complaint sets forth a stream of incoherent, disjointed conclusory allegations, read together with plaintiffs' opposition to defendants' motions, plaintiffs appear to (i) allege in essence that defendants have engaged in a fraudulent scheme and vast CIA conspiracy resulting in the foreclosure and sale of (and eviction from) the subject premises; (ii) detail the history of all of the court proceedings associated with the foreclosure and sale of (and eviction from) the premises, including the proceedings concerning the estates of Laura and Henry Niles; (iii) complain of injuries resulting from the foreclosure on Rosaria's property caused by the state court order (as well as injuries from state court proceedings leading up to the resultant judgment of foreclosure and sale); and (iv) invite the court to review and reject the judgment of foreclosure, the stipulation of settlement, and conservatorship appointment in the New York State courts and the New Jersey State court judgment. Because the adjudication of plaintiffs' federal claims in the instant action are inextricably intertwined with the merits of the state court proceedings, this court lacks subject matter jurisdiction over the instant action. Accordingly, the undersigned reports and recommends that the district court grant defendants' motions to dismiss plaintiffs' federal claims.
Alternatively, to the extent plaintiffs' amended complaint can be construed as raising claims specific to the federal defendants' conduct during the alleged conspiracy orchestrated by the CIA and/or defendants' conduct during the state and federal court proceedings, the undersigned still concludes that all of plaintiffs' federal claims are barred by ordinary preclusion principles. "The Full Faith and Credit Act, 28 U.S.C. § 1738, has long been understood to encompass the doctrines of claim and issue preclusion and to require that federal courts not grant a forum to litigants whose claims have previously been resolved in state court." Trakansook v. Astoria Fed. Savings and Loan Ass'n, No. 06-CV-1640 (SMG), 2007 WL 1160433,
"A federal court considering the preclusive effect of a state court judgment looks to the law of the state in which the judgment was rendered." Id.; see Ferris v. Cuevas, 118 F.3d 122, 125-26 (2d Cir. 1997) (holding "we give preclusive effect to a state court judgment whenever the courts of that state would do so"). In the case at hand, the effect of the prior state court judgments at issue is governed by New York and New Jersey law.
"Under both New York law and federal law, the doctrine of res judicata or claim preclusion, provides that [a] final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action." Id. (internal quotation marks and citations omitted); see Flaherty v. Lang, 199 F.3d 607, 612 (2d Cir.1999). "In applying the doctrine of res judicata, [a court] must keep in mind that a state court judgment has the same preclusive effect in federal court as the judgment would have had in state court." Burka v. New York City Transit Auth., 32 F.3d 654, 657 (2d Cir.1994). New York courts adhere to a broad transactional analysis "barring a later claim arising out of the same factual grouping as an earlier litigated claim even if the later claim is based on different legal theories or seeks dissimilar or additional relief." Id. (internal quotation marks and citation omitted); see Done, 2009 WL 2959619, at *3 (same). Res judicata applies in New York where "(1) there is a previous adjudication on the merits; (2) the previous action involved [the party against whom res judicata is invoked] or its privy; and (3) the claims involved were or could have been raised in the previous action." Caldwell v. Gutman, Mintz, Baker & Sonnenfeldt., P.C., 701 F.Supp.2d 340, 351 (E.D.N.Y.2010) (quoting Whelton v. Educational Credit Mgmt. Corp., 432 F.3d 150, 155 (2d Cir.2005)).
"Under New Jersey law, res judicata or claim preclusion is governed by the entire controversy doctrine, which requires a plaintiff in a civil action to seek complete relief for vindication of the wrong he charges in that single suit." Union Muffler Corp. v. Midas Int'l Corp, No. 91 Civ. 1522(JFK), 1992 WL 6186, at *2 (S.D.N.Y. Jan. 3, 1992) (internal quotation marks and citation omitted). The entire controversy doctrine forecloses "subsequent litigation not only of claims actually litigated but of all claims arising out of the same controversy that could have been raised in the earlier action." Id.; see Schneider v. United States, Civil No. 06-3200(JBS), 2007 WL 4440976, at *4 (D.N.J. Dec. 17, 2007) (observing that New Jersey's "entire controversy doctrine is essentially res judicata by another name and that the purpose of both doctrines is to require litigants to bring all possible claims in one proceeding"). "Under New Jersey law, claim preclusion will prevent a litigant from relitigating disputes that had been resolved in an earlier proceeding if three requirements are met: (1) the judgment in the prior action must be valid, final, and on the merits; (2) the parties in the later action must be identical to or in privity with those in the prior action; and (3) the claim in the later action must grow out of the same transaction or occurrence as the claim in the earlier one." Id. (internal quotation marks and citation omitted).
"All litigants, including pro se plaintiffs, are bound by the principles of res judicata." Done, 2009 WL 2959619, at *3. "A judgment of foreclosure and sale obtained by default constitutes a decision on the merits." Id. at *4; see Council v.
The within action meets the requisite criteria for claim preclusion under New York law. First, a final judgment on the merits was entered in the Supreme Court, Suffolk County litigation, to wit, the judgment of foreclosure and sale entered against plaintiff Rosaria, which prevents reconsideration of any claim that is based on the same facts as the foreclosure judgment. Additionally, the Settlement Agreement in the Surrogate's Court litigation operates as a final judgment on the merits for res judicata purposes and bars reconsideration of any claim that is based on the same facts as the probate proceeding for the probate of Henry Niles' will. Notably, plaintiffs' claims concerning the conservatorship action were subsumed in the Settlement Agreement as the allegations concerned a conspiracy and scheme to manipulate and subvert the judicial system with respect to Henry Niles' will. Moreover, the present action satisfies the privity requirement for claim preclusion since Rosaria was a named party to the foreclosure proceeding and to the settlement agreement and is the party who commenced the instant action. Finally, the factual allegations in the state court action and the instant matter arose from the same transaction or series of events, namely, an alleged conspiracy and fraud resulting in the foreclosure of the subject premises, the state court's issuance of a Judgment of Foreclosure and Sale, and the subsequent purchase of the subject premises by defendant Wilshire at the foreclosure auction, as well as an alleged conspiracy and fraud resulting in a Settlement Agreement executed in state court concerning the probate of Henry Niles' estate, and plaintiffs presented (and could have presented all of their constitutional claims) in the state court foreclosure litigation and during the state probate proceedings.
The within action likewise meets the requisite criteria for claim preclusion under New Jersey law as a final judgment on the merits was entered in the Superior Court of New Jersey concerning the estate of Laura Niles, which was affirmed by appellate court, and which prevents reconsideration of any claim that is based on the same facts as the Third Amended Judgment of the Superior Court of New Jersey. Moreover, the present action satisfies the privity requirement for claim preclusion since plaintiffs were named parties in the Superior Court action and also commenced the instant action. Further, the factual allegations in the state court action and the instant matter arose from the same transaction or series of events, namely, an alleged conspiracy and fraud wherein the defendants manipulated and subverted the New Jersey State judicial system in the New Jersey litigation.
Hence, any of plaintiffs' federal claims against defendants that can be said to arise out of the allegations of the amended complaint concerning the conspiracy
"[C]ollateral estoppel ... means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Leather v. Eyck, 180 F.3d 420, 424 (2d Cir.1999) (internal quotation marks and citation omitted). "Collateral estoppel, like the related doctrine of res judicata, has the dual purpose of protecting litigants from the burden of relitigating an identical issue with the same party or his privy and of promoting judicial economy by preventing needless litigation." Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979). "Under New York law, collateral estoppel bars relitigation of an issue when (1) the identical issue necessarily was decided in the prior action and is decisive of the present action, and (2) the party to be precluded from relitigating
Similarly, "[u]nder New Jersey law, the doctrine of collateral estoppel operates to foreclose relitigation of an issue when the party asserting the bar shows that: (1) the issue to be precluded is identical to the issue decided in the prior proceeding, (2) the issue was actually decided in the prior proceeding, (3) the court in the prior proceeding issued a final judgment on the merits, (4) the determination of the issue was essential to the prior judgment, and (5) the party against whom the doctrine is asserted was a party to or in privity with a party to the earlier proceeding." Hogg's v. New Jersey, 352 Fed. Appx. 625, 629 (3d Cir.2009).
Although it is clear that many of the issues concerning defendants' conduct and alleged underlying conspiracy were litigated in the (i) mortgage foreclosure proceedings, (ii) Surrogate Court litigation concerning the estate of Henry Niles and (iii) the New Jersey litigation concerning the estate of Laura Niles and would therefore be foreclosed in this action by collateral estoppel, the nearly indecipherable allegations set forth in plaintiffs' amended complaint make it impossible to determine the extent to which issue preclusion applies to plaintiffs' claims.
To the extent that plaintiffs are attempting to allege any new state law claims in this action, the district court should decline to exercise supplemental jurisdiction over any such claims because the court lacks subject matter jurisdiction over plaintiffs' federal claims. See 28 U.S.C. § 1367(c)(3); see also Cave v. East Meadow Union Free Sch. Dist., 514 F.3d 240, 250 (2008) ("We have already found that the district court lacks subject matter jurisdiction over appellants' federal claims. It would be clearly inappropriate for the district court to retain jurisdiction over the state law claims when there is no basis for supplemental jurisdiction."); Kolari v. New York Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir.2006) ("Where a court is reluctant to exercise supplemental jurisdiction because of one of the reasons put forth by § 1367(c), or when the interests of judicial economy, convenience, comity and fairness to the litigants are not violated by refusing to entertain matters of state law, it should decline supplemental jurisdiction and allow the plaintiff to decide whether or not to pursue the matter in state court."). "In the interest of comity, the Second Circuit instructs that absent exceptional circumstances, where federal claims can be disposed of pursuant to Rule 12(b)(6) or summary judgment grounds, courts should abstain from exercising pendent jurisdiction." Swiatkowski, 745 F.Supp.2d at 173 n. 14 (internal quotation marks and citations omitted). Accordingly, the undersigned reports and recommends that the district court, in its discretion, "decline to exercise supplemental jurisdiction" over plaintiffs' state law claims as it "has dismissed all claims over which it has original jurisdiction." Kolari, 455 F.3d at 122 (internal quotation marks and citation omitted).
"The district courts have the power and the obligation to protect the public and the
Safir v. United States Lines, Inc., 792 F.2d 19, 24 (2d Cir.1986). "Ultimately, the question the court must answer is whether a litigant who has a history of vexatious litigation is likely to continue to abuse the judicial process and harass other parties." Id. The undersigned finds that all of these factors support imposing restrictions on plaintiffs' access to the courts.
In the case at hand, plaintiffs have a well documented history of vexatious litigation involving duplicative lawsuits. In the Foreclosure Proceeding
Significantly, shortly after commencing the within action, plaintiffs initiated a lawsuit in Supreme Court, Suffolk County asserting the same allegations contained in the amended complaint in this action, which the Supreme Court dismissed on the grounds that plaintiffs had yet again raised the same arguments of fraud and conspiracy that were raised and decided in multiple actions in both state and federal courts and enjoined plaintiffs from filing any further actions in that court without prior leave of the court. (Finkelstein Aff., dated March 17, 2011, Ex. A.) Although plaintiffs are proceeding pro se in this action, "a court's authority to enjoin vexatious litigation extends equally over pro se litigants and those represented by counsel, and a
"In limiting a citizen's ability to litigate, a court should take special care to ensure that the restrictions placed on the party are taken together, not so burdensome as to deny the litigant meaningful access to the courts." Fitzgerald v. Field, No. 99 Civ 2406, 1999 WL 1021568, at *5 (S.D.N.Y. Nov. 9, 1999) (internal quotation marks and citation omitted). Notably, the Second Circuit has found a filing injunction restricting a litigant's access to the court not to be overbroad where the litigant maintains the ability to assert a meritorious claim with prior court approval. See Safir, 792 F.2d at 25. Accordingly, the undersigned reports and recommends that the district court impose a filing injunction on plaintiffs prohibiting plaintiffs from filing any further lawsuits in the Eastern District of New York without prior permission of the court and prohibiting plaintiffs from filing any papers in connection with this case unless such papers are in response to those submitted by an adversary, or, when appropriate, to seek appellate review of a decision.
A copy of this Report and Recommendation is being served by the Court on all parties. Any objections to this Report and Recommendation must be filed with the Clerk of the Court within 14 days. Failure to file objections within this period waives the right to appeal the District Court's Order. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72; Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir.2010); Beverly v. Walker, 118 F.3d 900, 902 (2d Cir.1997); Savoie v. Merchants Bank, 84 F.3d 52, 60 (2d Cir.1996).
August 31, 2011
(R & R at 12-13.)
Id. at 300-01.
(Id.) The Court held that
(Id.)
28 U.S.C. § 2401(b). Here, plaintiffs have not filed a claim under the FTCA in accordance with the applicable regulations against the United States, and at the very latest, plaintiffs' allegations of a vast government conspiracy by the CIA were made in February 2006, which is more than two years since the same allegations were made in the instant matter. Thus, this court lacks subject matter jurisdiction over any such claim against the United States. See Celestine v. Mount Vernon Neighborhood Health Center, 403 F.3d 76, 82 (2d Cir.2005); see Morrow v. DuPont, No. 08 CV 3083(SJF) (WDW), 2010 WL 1005856, at *3 (E.D.N.Y. Mar. 15, 2010) ("The FTCA's exhaustion requirement is jurisdictional and not subject to waiver").
With respect to a claim against the individual defendants under Bivens, the applicable statute of limitations for this claim brought in federal courts in New York is three years. Chin v. Bowen, 833 F.2d 21, 24-25 (2d Cir. 1987). While state law supplies the statute of limitations period, "federal law determines when a federal claim accrues." Kronisch v. United States, 150 F.3d 112, 123 (2d Cir. 1998). "Under federal law, the claim accrues when the alleged conduct has caused the claimant harm and the claimant knows or has reason to know of the allegedly impermissible conduct and the resulting harm." Rueda v. Kreth, No. 01 CV 2819(SJ), 2005 WL 323711, at *3 (E.D.N.Y. Feb. 7, 2005). As set forth supra, plaintiffs have alleged the existence of CIA driven conspiracy against them for years, and at the latest, plaintiffs alleged in their notice of removal in this court, cross claims of a CIA conspiracy against them. Inasmuch as more than three years has expired from the February 2006 allegations and the filing of the instant action in August 2009, any purported Bivens' claim is time-barred.
