JOSEPH F. BIANCO, District Judge.
Pro se plaintiff Andrew S. Mackey ("plaintiff') commenced this action in New York Supreme Court, Nassau County, on April 13, 2017. (Dkt. No. 1-1.) On May 8, 2017, defendants United States Department of Justice and Federal Bureau of Prisons (together, the "federal defendatits") removed this action to this Court. (Dkt. No. 1.) On June 26, 2017, defendants Astoria Bank ("Astoria") and Dovenmuehle Mortgage, Inc., s/h/a/ Dovenmuelhe Mortgage Inc. ("DMI," and together with Astoria, the "moving defendants") filed a motion to dismiss plaintiff's complaint. (Dkt. No. 13.) The Court referred the moving defendants' motion to Magistrate Judge Arlene R. Lindsay for a Report and Recommendation on October 26, 2017. (Dkt. No. 36.) On January 8, 2018, Judge Lindsay issued a Report and Recommendation ("R&R," Dkt. 40), recommending that the Court grant the moving defendants' motion to dismiss.
For the reasons set forth below, the Court adopts the R&R's finding and recommendation that the Court grant the moving defendants' motion to dismiss for lack of subject matter jurisdiction. The Court has already determined that the claims against the moving defendants are barred by the Rooker-Feldman doctrine, and the Court adheres to that ruling. However, because those claims were removed from state court and this Court has no subject matter jurisdiction over the claims, the Court remands the claims against the moving defendants (and defendants Secured Asset Management, LLC ("Secured Asset") and Sterling National Insurance Corp. ("Sterling National"))
As Judge Lindsay explained in the R&R, it is necessary to review plaintiff's history of litigation against the current parties in order to understand the instant dispute.
On July 12, 2016, plaintiff filed a complaint in this Court against the federal defendants, Astoria Federal Savings Bank, and Secured Asset. Compl., Mackey v. U.S. Dep't of Justice, 16-CV-3865 (JFB) (ARL) (E.D.N.Y. July 12, 2016).
On January 30, 2017, Judge Lindsay issued a Report and Recommendation (the "initial R&R," Mackey I, Dkt. No. 59), recommending that the motions to dismiss be granted and that leave to amend be denied. More specifically, Judge Lindsay recommended that the motions to be dismiss be granted for lack of subject matter jurisdiction, because there was neither diversity jurisdiction nor federal question jurisdiction, and the Rooker-Feldman doctrine would bar adjudication of plaintifrs claims. By Order dated February 22, 2017, the Court adopted the initial R&R in its entirety and dismissed plaintiff's claims against Astoria and Secured Asset. (Mackey I, Dkt. No. 62.) The Court also determined that, assuming arguendo that federal question jurisdiction existed over plaintiff's claims against the federal defendants, pendant party jurisdiction did not exist over plaintiff's claims against Astoria and Secured Asset because they arose from a different nucleus of operative facts than those against the federal defendants. Accordingly, the Court directed plaintiff to file a letter with the Court advising the Court whether he intended to proceed with his claims against the federal defendants.
After the Court adopted the initial R&R, the Court received plaintifrs objections. (Mackey I, Dkt. No. 63.) In his objections, plaintiff argued that there was diversity jurisdiction and federal question jurisdiction, and that the Rooker-Feldman doctrine did not apply. By Order dated February 27, 2017, the Court rejected plaintifrs objections. ((Mackey I, Dkt. No. 64.) The Court concluded again that there was no diversity jurisdiction and, even assuming arguendo that plaintiff could state a plausible federal cause of action against Astoria and Secured Asset, the Rooker-Feldman doctrine would bar adjudication of plaintiff's claims. On March 3, 2017, plaintiff moved for reconsideration (Mackey I, Dkt. No. 65), and on March 8, 2017, the Court denied plaintiff's motion (Mackey I, Dkt. No. 66). The Court again directed plaintiff to submit a letter notifying the Court whether he intended to proceed with his claims against the federal defendants. By letter dated March 21, 2017, plaintiff confirmed that he intended to proceed against the federal defendants. (Mackey I, Dkt. No. 67.)
Thereafter, as noted above, plaintiff commenced this action in Nassau County Supreme Court. Plaintiff's complaint is essentially a repeat of his filings in Mackey I.
(Id.) Without commenting on the accuracy of plaintiff's statement, the Court notes that plaintiff appears to have attempted to file his action in state court, consistent with the Court's Orders in Mackey I finding no subject matter jurisdiction over plaintiff's claims against Astoria and Secured Asset. Nevertheless, plaintiff named the federal defendants as parties to his state court action, even though he represented to the Court that he intended to proceed against the federal defendants in Mackey I. Thus, the federal defendants removed plaintiff's case to this Court pursuant to 28 U.S.C. § 1442(a)(1) (providing for removal by "[t]he United States or any agency thereof"). The federal defendants then filed the same motion to dismiss in this action and in Mackey I (Dkt. No. 35; Mackey I, Dkt. No. 86), both of which have been referred to Judge Lindsay (Dkt. No. 36; Mackey I, Dkt. No. 87).
In short, the Court finds itself in essentially the same position it was in a year ago—deciding whether the Court has jurisdiction to hear plaintiff's claims against the non-federal defendants.
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 objections" are 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 Fed. R. Civ. P. 72(b); Thomas v. Arn, 474 U.S. 140, 149 (1985); Greene v. WCI Holdings Corp., 956 F.Supp. 509, 513 (S.D.N.Y. 1997). When "a party submits a timely objection to a report and recommendation, the district judge will review the parts of the report and recommendation to which the party objected under a de novo standard of review." Jeffries v. Verizon, 10-CV-2686 (JFB)(AKT), 2012 WL 4344188, at *1 (E.D.N.Y. Sept. 21, 2012); see also 28 U.S.C. § 636(b)(1)(C) ("A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made."); Fed. R. Civ. P. 72(b)(3) ("The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.").
Plaintiff submitted objections to the R&R on March 1, 2018.
On March 6, 2018, the moving defendants submitted an opposition to plaintiff's objections. (Dkt. No. 47.) The moving defendants argue that plaintiff's objections are without merit, primarily because plaintiff did not object to the R&R's finding that plaintiff's claims are barred by res judicata. The moving defendants also assert that the Court should adopt the R&R in its entirety, dismiss the complaint against them with prejudice, and enjoin plaintiff from filing further actions against them.
The Court has fulling considered the parties' submissions.
The Court agrees with the R&R's recommendation that the Court grant the moving defendants' motion to dismiss for lack of subject matter jurisdiction. As set forth in the R&R, although dismissals based on lack of subject matter jurisdiction generally do not have res judicata effect because there is no final decision on the merits, "a prior dismissal based on lack of subject matter jurisdiction is `a final decision regarding the lack of the district court's power to act on those claims.'" George v. Storage Am., No. 13 Civ. 9226(LAK), 2014 WL 1492484, at *3 (S.D.N.Y. Mar. 6, 2014), report and recommendation adopted, 2014 WL 1494116 (S.D.N.Y. Apr. 16, 2014) (quoting Wagstaff v. U.S. Dep't of Educ., 366 F. App'x 564, 565 (5th Cir. 2010)) (collecting cases); see also Da Silva v. Kinsho Int'l Corp., 229 F.3d 358, 362 (2d Cir. 2000) ("[A] party that has unsuccessfully litigated a court's subject matter jurisdiction is normally collaterally estopped from such a subsequent challenge."). The R&R correctly found that the Court's finding that it lacked subject matter jurisdiction in Mackey I is res judicata on the issue of subject matter jurisdiction in this case. (See R&R at 9-12.)
Even ifthe Court were to independently decide the issue of jurisdiction again (as plaintiff appears to urge in his objections), it would likewise conclude that plaintiff's complaint must be dismissed against the moving defendants (and Secured Asset and Sterling National) for lack of subject matter jurisdiction. In short, assuming arguendo that diversity and/or federal question jurisdiction exists, the Court lacks jurisdiction over those claims under the Rooker-Feldman doctrine. See Kropelnicki v. Siegel, 290 F.3d 118, 128 (2d Cir. 2002) ("Under the Rooker-Feldman doctrine, lower federal courts lack subject matter jurisdiction over claims that effectively challenge state court judgment."); Andrews v. Citimortgage, Inc., No. 14-CV-1534 (JS)(AKT), 2015 WL 1509511, at *2 (E.D.N.Y. Mar. 31, 2015) ("Even if diversity or federal question jurisdiction were present here, the Court would not exercise jurisdiction because of the Rooker-Feldman doctrine."). Plaintiffs complaint in this action requests that the court "vacate the [foreclosure] judgment entered on or about March 23rd 2016" and "order all sale and foreclosure proceedings to cease until the true facts can be heard by the Plaintiff, and to show cause why the judgment should not be vacated." (Dkt. No. 1-1 at 4-5.)
Plaintiff's argument that defendants waived jurisdictional arguments by failing to timely move to remand this action is also unavailing. Although 28 U.S.C. § 1447(c) provides that a motion to remand must be filed within thirty days of the filing of the notice of removal, the statute clearly states that this time constraint is limited to "any defect other than lack of subject matter jurisdiction." The law is clear that subject matter jurisdiction cannot be waived, under the removal statute or otherwise. Lyndonville Sav. Bank & Tr. Co. v. Lussier, 211 F.3d 697, 700-01 (2d Cir. 2000); In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 522 F.Supp.2d 557, 561 & n.29 (S.D.N.Y. 2007) (collecting cases).
Finally; the Court declines the moving defendants' requests to dismiss plaintiff's claims against them with prejudice and enjoin plaintiff from filing further actions against the moving defendants. First, because the Court concludes that it does not have subject matter jurisdiction over plaintiff's claims against the moving defendants, it lacks the authority to dismiss such claims with prejudice. Vandor, Inc. v. Militello, 301 F.3d 37, 38-39 (2d Cir. 2002) (per curiam) ("[A]bsent jurisdiction `federal courts do not have the power to dismiss with prejudice.'" (quoting Hernandez v. Conriv Realty Assocs., 182 F.3d 121, 122 (2d Cir. 1999))).
For the foregoing reasons, IT IS HEREBY ORDERED that the Court adopts the thorough and well-reasoned finding and recommendation in the R&R (Dkt. No. 40) that the moving defendants' motion to dismiss be granted for lack of subject matter jurisdiction. Accordingly, the moving defendants' motion to dismiss (Dkt. No. 13) is granted for the reasons set forth herein. In addition, plaintiff's claims against the moving defendants (and Secured Asset and Sterling National) are remanded to Nassau County Supreme Court. See Vossbrinck v. Accredited Home Lenders, Inc., 773 F.3d 423, 427 (2d Cir. 2014) (concluding removed claims for which there was no subject matter jurisdiction should be remanded, rather than dismissed outright).
IT IS FURTHER ORDERED that the moving defendants shall serve a copy of this Order on plaintiff and file proof of service with the Court.
SO ORDERED.
The Court also notes that in Mackey I, plaintiff incorrectly sued Astoria Federal Savings Bank, instead of Astoria Bank. (Mackey I, Dkt. Nos. 13, 15.) Accordingly, the Astoria defendant is the same in Mackey I and this action, and the Court uses "Astoria" to refer to it in both actions.
The Court also notes that the moving defendants point out that prior Orders in Mackey I dismissed plaintiff's claims against Secured Asset and Astoria with prejudice. (See Mackey I, Dkt. Nos. 62, 64.) However, as noted above, that was clearly an error in light of applicable case law. Therefore, those prior Orders are modified to reflect that those dismissals were without prejudice.
