ROSLYNN R. MAUSKOPF, District Judge.
Pro se plaintiff Elena Strujan ("Strujan") commenced this action in New York Supreme Court, Kings County on December 10, 2013. Defendant FedEx Office ("FedEx") removed the action to this Court based on diversity jurisdiction. Viewed liberally, Strujan's complaint raises numerous claims sounding in tort and contract
By Order dated March 27, 2015, the Court dismissed all claims in Strujan's original complaint with the exception of the legal malpractice claim against Davis. (Order of Dismissal (Doc. No. 41) at 8.) With respect to the remaining malpractice claim, the Court ordered Strujan to show cause in writing why service had been properly made, or why she should be permitted to re-serve given that her claims against Davis appeared to be time barred. (Id. at 9.) Strujan was granted thirty (30) days' leave to amend.
Following the Court's March 27, 2015 order, Strujan filed a flurry of separate documents. (See e.g. Doc. Nos. 43-53, 57-59) These included a document titled "amended claim," which appears to be her Amended Complaint, and a document title "Response to Memorandum and Order #41," which appears to constitute her response to the Court's Order to Show Cause. (See Am. Compl. (Doc. No. 49); Response to Order (Doc. No. 48).) These documents fail to raise plausible claims, and for the reasons set forth below, Strujan's remaining claims are dismissed.
In order to withstand a motion to dismiss, the complaint "must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010). Although the complaint need not contain "detailed factual allegations," simple "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). At this stage, the Court assumes the truth of the facts alleged in the complaint, and draws all reasonable inferences in Strujan's favor. See Harris, 572 F.3d at 71.
Although a pro se plaintiff must satisfy the pleading requirements, the Court is "obligated to construe a pro se complaint liberally." Harris, 572 F.3d at 72 (citations omitted). In other words, the Court holds pro se pleadings to a less exacting standard than pleadings drafted by attorneys, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Boykin v. KeyCorp, 521 F.3d 202, 214 (2d Cir. 2008) (citation omitted), and reads them to "raise the strongest arguments that they suggest." Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (citations omitted). Nonetheless, the Court "need not argue a pro se litigant's case nor create a case for the pro se which does not exist." Molina v. New York, 956 F.Supp. 257, 260 (E.D.N.Y. 1995). Where a pro se plaintiff has altogether failed to satisfy a pleading requirement, the Court must dismiss the claim. See Rodriguez v. Weprin, 116 F.3d 62, 65 (2d Cir. 1997) (citation omitted).
Strujan's original complaint and supplemental materials are disjointed and extraordinarily hard to decipher. In essence, Strujan alleged that she previously sued Merck Sharp & Dohme Corp. ("Merck") for injuries she claimed to have suffered from taking the prescription medication Vioxx. She alleged that her former attorney, Davis, along with FedEx and TD Bank, conspired with Merck — not a party to this action — to do her harm through a series of wideranging actions between 2005 and 2012. These alleged actions included a conspiracy to kill her, the mysterious disappearance of items from several TD Bank safe deposit boxes, and efforts by FedEx employees to alter legal pleadings while those pleadings were being reproduced and bound for court filing.
Strujan's Amended Complaint does not plausibly plead any claims related to those set forth in her original complaint.
As discussed in the original Order of Dismissal, a finding of frivolousness "is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them." Denton v. Hernandez, 504 U.S. 25, 33 (1992); Mendlow v. To be Named After Discovery Unknown Gov't Agencies, 152 F.3d 919 (2d Cir. 1998). "[A] court may dismiss a claim as factually frivolous only if the facts alleged are `clearly baseless,'" Denton, 504 U.S. at 32 (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)), a high bar satisfied only by claims that "are `fanciful,' `fantastic,' or `delusional,'" Gallop, 642 F.3d at 368 (quoting Denton, 504 U.S. at 32-33). Strujan's claims as pled are barred under this standard. For the reasons set forth in the original Order of Dismissal, and because, as set forth above, Strujan has failed to provide any additional facts remedying the deficiencies in the original complaint, Strujan has failed to state any plausible claims in her Amended Complaint.
In its original Order of Dismissal, the Court found that, liberally construed, Strujan's complaint might conceivably state a claim for malpractice against Davis. However, the Court raised concerns about whether Strujan had properly served Davis and noted potential issues relating to the statute of limitations. Specifically, Strujan claimed to have served Davis on March 7, 2014 at "1960 Williamsbridge Road, New York, N.Y. 10461-1607." (Pl.'s Aff. in Opp'n (Doc. No. 22) at 10.) However, the original affidavit of service signed by Strujan's process server, which was notarized on March 8, 2014, reflects that the complaint and summons were hand-delivered to "196 William Bridge Road N.Y. 10461-1607." (Doc. No. 1 at 42-43) That address, unlike 1960 Williamsbridge Road, is not a valid address in New York City. On March 27, 2015, the Court ordered Strujan to "Show Cause in Writing why service has been properly made on Davis, or, in the alternative, why she should be permitted to re-serve in light of the fact that her claims against Davis appear to be time barred." (3/27/2015 Order.) The Court warned Strujan: "Failure to comply with these orders will result in dismissal of this action." (Id.)
In response, Strujan unleashed a deluge of disjointed documents to corroborate proper service. (See generally Doc. Nos. 43-53, 57-59) The Court has reviewed those documents and finds that Strujan has again failed to demonstrate proper service of process. In an attempt to show proper service, Strujan submitted a revised affidavit of service signed by Juliana Szablyar. (Response to Mem. (Doc. No. 48) at 13.) The affidavit of service indicates that Szablyar personally served the summons and complaint on Davis at "1960 William Bridge Road, New York 10461-1607," and that she mailed the same to his last known address.
To date, in contravention of the Court's order, Strujan has offered no evidence whatsoever to support proper service of Davis. (See 3/27/2015 Order.) As a consequence, Strujan has improperly suspended the specter of this litigation over Davis for nearly three years. On March 27, 2015, the Court warned Strujan that failure to "Show Cause in Writing why service has been properly made on Davis . . . will result in dismissal of this action." (Id.) Accordingly, Strujan's malpractice claim against Davis is hereby dismissed.
For the forgoing reasons, Strujan's remaining claims are dismissed. Strujan's motion for a certificate of default and default judgment against FedEx, TD Bank, and Davis (Default Mot. (Doc. No. 57)), is denied. The Clerk of Court is directed to enter judgment and close the case.
Although Strujan paid the filing fee to initiate the action, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith, and therefore, in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
The Clerk of Court is directed to mail a copy of this Memorandum and Order to pro se plaintiff Strujan and note the mailing on the docket.
SO ORDERED.