Kaufman v. All Seasons Marine Works, Inc. et al
ORDER granting 10 Motion to Dismiss for Lack of Jurisdiction; granting 12 Motion to Dismiss for Lack of Jurisdiction; denying 20 Motion to Amend/Correct. See attached memorandum of decision. The Court dismisses Plaintiff's federal law cl aims. Because Plaintiff's federal law claims are dismissed, the Court lacks subject matter jurisdiction to entertain Plaintiff's state law claims. The Plaintiff may pursue his state law claims in Connecticut Superior Court. The Clerk is directed to close the case. Signed by Judge Vanessa L. Bryant on 10/16/2012. (Fernandez, Melissa)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ALL SEASONS MARINE WORKS, INC.
: CIVIL ACTION NO. 3:11cv1874(VLB)
: OCTOBER 16, 2012
MEMORANDUM OF DECISION GRANTING DEFENDANTS’ [DKT. ##10,12]
MOTIONS TO DISMISS AND DENYING PLAINTIFF LEAVE TO AMEND [Dkt.#20]
The Plaintiff, Alan Kaufman, proceeding pro se, brings this action against
Defendants, All Seasons Marine Works, Inc. (“All Seasons”) and Middlesex
Marine Sales and Repair LLC (“Middlesex”) and against individual Defendant,
Theodore O’Neill, Jr., President and Manager of All Seasons alleging breach of
contract (Count I), breach of covenant of good faith and fair dealing (Count II),
violation of vessel lien statute (Count III), violation of the constitutional right to
petition (Count IV), violation of procedural due process (Count V), rescission
(Count VI), violation of the Connecticut Unfair Trade Practices Act (Count VII), and
for punitive damages (Count VIII). Middlesex and All Seasons have both moved
to dismiss Plaintiff’s complaint pursuant to Fed. R. Civ. P. 12(b)(1) for lack of
subject matter jurisdiction and Fed. R. Civ. P. 12(b)(6) for failure to state a claim
arguing that Plaintiff has failed to state a cognizable federal claim against the
Defendants. Plaintiff has moved to amend his complaint which has been
opposed by the Defendants on the grounds that any amendment would be futile.
For the foregoing reasons, the Court GRANTS Defendants’ motions to dismiss
Plaintiff’s federal law claims and DENIES Plaintiff leave to amend for futility as
discussed below. Plaintiff may pursue his state law claims in Connecticut
Background and Factual Allegations
The following facts and allegations are taken from Plaintiff’s complaint.
The Plaintiff lives in Darien, Connecticut. All Seasons has its main place of
business in Rowayton, Connecticut and Middlesex has its main place of business
in Portland, Connecticut. Plaintiff alleges that the Defendants are citizens of
Connecticut and the principal acts and events occurred in Connecticut. [DKT #5,
Amended Compl., ¶¶1-4,7].
Around May 2001, the Plaintiff purchased a 20 foot boat, a LTS 20 model
manufactured by Hydra Sports for $15,100. The Plaintiff used the boat for several
years and at the conclusion of every season, winterized and stored the boat at All
Seasons. Id. at ¶9-12. From 2004 to 2009, the boat, shrink wrapped and
winterized, remained in storage, until the Plaintiff contacted All Seasons in the
spring of 2009 requesting that the boat be prepared for use in June of that year.
Id. at ¶13-14. However, All Seasons never responded. When the Plaintiff
attempted to update the boat’s registration in January 2010, the Registry notified
the plaintiff that he no longer owned the boat. Id. at ¶14-15. O’Neill told the
Plaintiff that he would supply all the documentation relating to the sale. Id. at
¶18. After several months had passed, the Plaintiff again requested the
documents and learned from O’Neill that there had been unpaid invoices and that
after two years All Seasons had placed a lien on the boat and sold it at auction.
Id. at ¶19-20.
The Plaintiff contacted the Department of Environmental Protection, the
Marine Vessel division, and was “told that there was no documentation that
would have been required to have been filed for boats classified as abandoned.”
Id. at ¶22. The Plaintiff checked with the office of the Connecticut’s Secretary of
State and discovered no record of a lien on the boat. Id. at 23.
The Plaintiff then filed a formal request with the Marine Vessel division and
received documentation relating to the sale. Id. at ¶25. The documentation
revealed that the boat had been sold on January 7, 2006 to Middlesex. Id. at ¶26.
Plaintiff alleges that the documents bore the forged signature of Plaintiff. Id. at
On June 18, 2006, Middlesex sold the boat to Mr. Brian Johnson for a price
of $10,000 where the bill of sale had two allegedly forged signatures of the
Plaintiff. A DMV-Form Q1, required for a bill of sale between Middlesex and Mr.
Johnson, also had a purportedly forged signature of the Plaintiff. Id. at ¶35.
Plaintiff alleges that none of the Defendants executed a DMV Form B-203 which is
required for the lawful sell of the boat because it requires the Defendants to
certify that the owner could not be located and to explain why the Plaintiff’s
owner signature could not be obtained for a transfer by normal and lawful sale.
Id. at ¶¶37-38.
In Count IV of the amended complaint, the Plaintiff asserts a cause of
action for violation of his constitutional right to petition. Id. at ¶62-69. Plaintiff
alleges that under Connecticut law the right to petition is set forth in Conn. Gen.
Stat. §49-55b and “incudes the right of the owner of a vessel subject to a lien to
petition the superior court to dissolve the lien.” Id. Plaintiff further alleges that
All Seasons filed a lien and obtained authority from the State of Connecticut to
conduct a sale and was therefore acting “under color of state law.” Id. Plaintiff
contends that by “failing to give timely notice to the plaintiff, that defendant All
Seasons, acting under color of state law, deprived the plaintiff of his
constitutional right to petition” and that by “acting under color of state law and
purporting to conduct an auction in a manner that deprived the plaintiff of his
right to petition, the defendant All Seasons violated the plaintiff’s constitutional
rights under the First Amendment.” Id.
In Count V, the Plaintiff asserts a cause of action for violation of procedural
due process. The Plaintiff alleges that the sale of his property “under color of
state law and without adequate notice and without conforming to the
requirements for such sale as set forth by statute deprived the plaintiff of
property without due process of law in violation of the Fourteenth and Fifth
Amendments.” Id. at ¶¶70-75. The Plaintiff further alleges that if Conn. Gen.
Stat. §§49-55a et seq. had “been followed notice in the town in which the boat
resided should have been given and where there was no notice the defendants
deprived plaintiff of his property without due process of the law.” Id.
The standards of review for a motion to dismiss under Rule 12(b)(1) for lack
of subject matter jurisdiction and under 12(b)(6) for failure to state a claim are
“substantively identical.” Lerner v. Fleet Bank, N.A., 318 F.3d 113, 128 (2d. Cir.
2003). However, on a motion to dismiss under Rule 12(b)(1), the party invoking
the Court’s jurisdiction bears the burden of proof to demonstrate that subject
matter jurisdiction exists, whereas the movant bears the burden of proof on a
motion to dismiss under Rule 12(b)(6). Id. In deciding both types of motions, 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.” In
re AIG Advisor Group Sec. Litig., 309 Fed. App’x. 495, 497 (2d Cir. 2009). “To
survive a motion to dismiss [under Rule 12(b)(6)], a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal
quotation marks omitted). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id.
The Court’s review on a motion to dismiss pursuant to Rule 12(b)(6) is
generally limited to “the facts as asserted within the four corners of the
complaint, the documents attached to the complaint as exhibits, and any
documents incorporated in the complaint by reference.” McCarthy v. Dun &
Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). In addition, the Court may also
consider “matters of which judicial notice may be taken” and “documents either
in plaintiffs’ possession or of which plaintiffs had knowledge and relied on in
bringing suit.” Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993). In
deciding a motion to dismiss for lack of subject matter jurisdiction under Rule
12(b)(1), however, the Court “may resolve disputed factual issues by reference to
evidence outside the pleadings, including affidavits.” State Employees
Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 77 n.4 (2d Cir. 2007).
Motion to Dismiss
Defendants argue that Plaintiff’s complaint must be dismissed for lack of
subject matter jurisdiction as the Plaintiff has not plausibly pled that the
Defendants, all private entities or persons, were acting under color of state law to
maintain his federal law claims under Section 1983.
Defendants argue that
because Plaintiff’s Section 1983 claims in counts IV and V must be dismissed, the
Court lacks subject matter jurisdiction to entertain Plaintiff’s remaining state law
claims as there is no diversity jurisdiction or other federal subject matter
jurisdiction available. Plaintiff argues that Defendants were acting under “color
of state law” because they placed a lien and then sold his boat pursuant to a
Connecticut state statute. This Court agrees that the Plaintiff has failed to alleged
facts demonstrating that the Defendants were acting under color of state law
even construing the pro se complaint liberally.
“It is well settled that Section 1983 does not create any new substantive
rights, but merely provides a federal cause of action for violations of certain
federal rights.” Mrs. W. v. Tirozzi, 832 F.2d 748, 754 (2d Cir.1987). “To state a
claim for relief in an action brought under § 1983, [a plaintiff] must establish that
they were deprived of a right secured by the Constitution or laws of the United
States, and that the alleged deprivation was committed under color of state law.”
Am. Mnfs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50, 119 S.Ct. 977, 143 L.Ed.2d
130 (1999) (internal quotations omitted). “Because the United States Constitution
regulates only the Government, not private parties, a litigant claiming that his
constitutional rights have been violated must first establish that the challenged
conduct constitutes state action.” Flagg v. Yonkers Sav. & Loan Ass'n, 396 F.3d
178, 186 (2d Cir.2005) (internal quotation marks omitted). “A plaintiff pressing a
claim of violation of his constitutional rights under § 1983 is thus required to
show state action.” Tancredi v. Metro. Life Ins. Co., 316 F.3d 308, 312 (2d Cir.2003)
“[S]tate action requires both an alleged constitutional deprivation caused
by the exercise of some right or privilege created by the State or by a rule of
conduct imposed by the State or by a person for whom the State is responsible,
and that ‘the party charged with the deprivation must be a person who may fairly
be said to be a state actor. Conduct that is formally ‘private’ may become so
entwined with governmental policies or so impregnated with a governmental
character that it can be regarded as governmental action.” Fabrikant v. French,
691 F.3d 193, 206-07 (2d Cir. 2012) (internal quotation marks and citations
“But a private entity does not become a state actor for purposes of
§ 1983 merely on the basis of “the private entity's creation, funding, licensing, or
regulation by the government. Rather, there must be such a close nexus between
the [s]tate and the challenged action” that the state is responsible for the specific
conduct of which the plaintiff complains.” Id. (internal quotation marks and
The Second Circuit has explained that “Supreme Court cases on the
subject of state action ‘have not been a model of consistency,’ and we therefore
have ‘no single test to identify state actions and state actors. Rather, there are a
host of factors that can bear on the fairness of an attribution of a challenged
action to the State.’” Id. at 207 (quoting Cooper v. U.S. Postal Serv., 577 F.3d 479,
491 (2d Cir. 2009)).
Three main tests have emerged to determine whether the
“actions of a nominally private entity are attributable to the state ... (1) [when] the
entity acts pursuant to the coercive power of the state or is controlled by the
encouragement to the entity, the entity is a willful participant in joint activity with
the state, or the entity's functions are entwined with state policies (‘the joint
action test’ or ‘close nexus test’); or (3) when the entity has been delegated a
public function by the state (‘the public function test’).” Id. (citations omitted).
Here, the alleged conduct of the private Defendants in placing a lien and
then selling the Plaintiff’s boat pursuant to a valid Connecticut statute does not
fall within any of these tests. The Defendants were neither controlled by the state
nor did they act pursuant to the coercive power of the state. In addition, there is
no allegation that the Defendants had been delegated a public function by the
state. Lastly, the Defendants did not act jointly with a state actor when they
placed a lien and sold the Plaintiff’s boat pursuant to a valid state statute. It is
well established that the “[p]rivate misuse of an otherwise valid state statute is
not state action.” Kash v. Honey, 38 Fed. Appx. 73, 76 (2d Cir. 2002) (citing
Dahlberg v. Becker, 748 F.2d 85, 90 (2d Cir. 1984)); Moher v. Stop & Shop
Companies, Inc., 580 F.Supp. 723, 725 (D. Conn. 1984) (holding that store did not
act under color of state law by acting under state statute which allowed a
shopkeeper to stop and detain any person reasonably believed to be committing
larceny and noting that “[s]uch a claim has been repeatedly held to be
jurisdictionally defective in a § 1983 action inasmuch as acting under such a
statute does not transform tortious conduct by a private merchant into an action
undertaken by the state or under color of law.) (internal quotation marks and
citations omitted); McCarthy v. Wachovia Bank, N.A., 759 F.Supp.2d 265, 277
(E.D.N.Y. 2011) (holding that private defendants seeking to restrain plaintiff’s
property pursuant to New York statute were not acting under color of state law);
Johnson v. Chemical Bank, No.96Civ.4262(SS), 1996 WL 706893, at *5 (S.D.N.Y.
Dec. 9, 1996) (“The mere fact that defendants utilized state statutes to pursue a
state court remedy against the plaintiff does not constitute ‘state action’ by
The Plaintiff argues that the Supreme Court’s decision in Lugar v.
Edmonson Oil Co., 457 U.S. 922 (1982) controls here. In Lugar, the Supreme
Court held that a lessee who had obtained an ex parte writ of attachment
pursuant to an unconstitutional state statute operated under color of state law
because he acted jointly with a state actor when the writ of attachment was
executed by a sheriff.
However, the Plaintiff’s reliance on Lugar is misplaced.
As the Second Circuit observed, “the Supreme Court [in Lugar] held that a private
party who attaches a debtor's assets pursuant to a state's attachment statute
would be subject to § 1983 liability if the statute was found to be
unconstitutional.” Pinsky v. Duncan, 79 F.3d 306, 311 (2d Cir. 1996) (citing Lugar,
457 U.S. at 941) (emphasis added). The Supreme Court’s holding in Lugar was
constitutionality of the state statute. The Supreme Court unequivocally stated in
Lugar that “private misuse of a state statute does not describe conduct that can
be attributed to the state” and that only the “procedural scheme created by the
statute obviously is the product of state action.” 457 U.S. at 941. Consequently,
the Supreme Court in Lugar held that the “Petitioner presented a valid cause of
action under §1983 insofar as he challenged the constitutionality of the Virginia
statute; he did not insofar as he alleged only misuse or abuse of the statute.” Id.
at 942. Consequently, “Lugar does not preclude a § 1983 claim for misuse or
abuse of an attachment statute after it has been declared unconstitutional.”
Pinsky, 79 F.3d at 312. Lugar therefore holds that a private individual who uses a
“state replevin, garnishment or attachment statute later declared to be
unconstitutional acts under color of state law for § Section 1983 liability
purposes.” Wyatt v. Cole, 504 U.S. 158, 159 (1992).
Here, the Plaintiff has not challenged the constitutionality of Conn. Gen.
Stat. §49-55 nor has another court declared it unconstitutional.
Plaintiff has merely alleged the private misuse or abuse of Conn. Gen. Stat. §4955 on the part of the Defendants which the Supreme Court has unequivocally
stated does not describe conduct attributable to the state. Since none of the
alleged conduct by the Defendants can be deemed fairly attributable to the state,
the Defendants did not act under color of state law and are not subject to Section
1983 liability. The Court therefore dismisses Plaintiff’s count IV and V Section
1983 claims. Since the Court has dismissed Plaintiff’s federal law claims, this
Court lacks subject matter jurisdiction to entertain Plaintiff’s state law claims for
breach of contract, breach of covenant of good faith and fair dealing, violation of
vessel lien statute, rescission, and violation of the Connecticut Unfair Trade
Practices Act. However, the Plaintiff may pursue these claims in state court.
Motion to Amend
Plaintiff has moved to amend his complaint after responding to
Defendants’ motions to dismiss. However Plaintiff’s proposed complaint fails for
the same reasons as discussed above.
Rule 15 of the Federal rules of Civil
Procedure provides that leave to amend the pleadings should be “freely give[n] ...
when justice so requires.” Fed.R.Civ.P. 15(a)(2). “However, it is well established
that leave to amend a complaint need not be granted when amendment would be
futile.” Ellis v. Chao, 336 F.3d 114, 127 (2d Cir.2003); see also Jones v. New York
State Div. of Military & Naval Affairs, 166 F.3d 45, 50 (2d Cir.1999) (“[A] district
court may properly deny leave when amendment would be futile.”). “Where, as is
the case here, a proposed amendment is in response to a motion to dismiss
under Rule 12(b)(6), ‘leave to amend will be denied as futile only if the proposed
new claim cannot withstand a 12(b)(6) motion to dismiss for failure to state a
claim, i.e., if it appears beyond doubt that the plaintiff can plead no set of facts
that would entitle him to relief.’ “ McLaughlin v. CitiMortgage, Inc., No.3:09–cv–
1762(MRK), 2010 WL 3037810, at *2 (D.Conn. Aug. 4, 2010) (quoting Milanese v.
Rust–Oleum Corp., 244 F.3d 104, 110 (2d Cir.2001)); see also Tocker v. Philip
Morris Cos., Inc., 470 F.3d 481, 491 (2d Cir.2006).
proposed complaint will be considered under the familiar Rule 12(b)(6) standard.
Plaintiff contends that his proposed complaint details how the Defendants
were acting in concert with “multiple departments of the State of Connecticut to
deprive him of his property without due process of the law.” [Dkt. #20, p. 2].
However all of Plaintiffs’ newly added allegations essentially boil down to the
same contention that the Defendants were acting under color of state law
because they were “authorized” to auction his boat pursuant to state statute.
For example, Plaintiff alleges that O’Neill told him that the State of Connecticut
“authorized us to auction the boat to settle the lien. We performed this auction as
prescribed by the statute.” See [Dkt. #20, Proposed Compl., ¶23]. Plaintiff further
alleges that O’Neill conducted “the sale with the advance authorization and
approval of the State of Connecticut, which implicates the State of Connecticut
directly in the sale of the boat.” Id. at ¶75. Lastly, Plaintiff alleges that “no lawful
sale of a boat can be completed without the consent and cooperation of the State
through the Department of Motor Vehicles” and that the Department of Motor
Vehicles “accepts, reviews, and approves the sale of boats.” Id. at ¶¶76-77. To
the extent that the Plaintiff is implying that the State of Connecticut and the
Department of Motor Vehicles knowingly condoned the fraudulent sale of his
boat, the Plaintiff has failed to allege any specific facts that the State was aware
that the Defendants had forged Plaintiff’s signature or had other knowledge of the
Defendants’ fraudulent scheme.
All of Plaintiff’s allegations in his proposed
complaint simply describe the private misuse or abuse of a valid attachment
statute which cannot be attributed to the state. It would therefore be futile to
permit Plaintiff leave to amend his complaint.
Plaintiff further informs the Court in his motion to amend that after he
obtains certain information through discovery he plans to amend his complaint
yet another time to assert a claim under the Racketeer Influenced and Corrupt
Organizations Act (“RICO”) which will “set forth a pattern of boat theft
undertaken by the defendants through the use of bogus auctions of boats and
implemented through the use of forged documents, perjured filings with the
Registry of Motor Vehicles and other felonious acts.”
[Dkt. #20, p. 2].
Plaintiff admits that at present “[a]lthough there is no basis under currently
known facts to assert the claim, in view of this District’s specific pleading
requirements for RICO claims, it is being deferred until the completion of early
discovery to avoid unnecessary motion practice.” Id. at 3.
Although the Court appreciates the pro se Plaintiff’s understanding that he
cannot assert a claim without a pleading a plausible factual basis for that claim, it
is axiomatic that “discovery is unwarranted where it would function as a fishing
expedition for evidence in search of a theory that has yet to be asserted.” KBL
Corp. v. Arnouts, 646 F.SUpp.2d 335, 346 n. 6 (S.D.N.Y. 2009) (internal quotation
marks and citation omitted); Lituma v. United States, No. 04 Civ. 8955, 2005 WL
1705088, at *2 (S.D.N.Y. July 18, 2005) (“Discovery is not intended to be a fishing
expedition, but rather is meant to allow the parties to flesh out allegations for
which they initially have at least a modicum of objective support.”) (internal
quotation marks and citation omitted). “Indeed, allowing the plaintiff to conduct
discovery to piece together a claim would undermine the purpose of Federal Rule
of Civil Procedure 12(b)(6), ‘which is to streamline litigation by dispensing with
needless discovery and factfinding’ where the plaintiff has failed to state a claim
under the law.” Id. (quoting Neitzke v. Williams, 490 U.S. 319, 326-27 (1989)).
Even if the Court did not find the proposed complaint futile, the Plaintiff would not
have been permitted to conduct discovery in the hopes of piecing together a
claim which could survive a Rule 12(b)(6) motion. Lastly, the Court notes that
Plaintiff would also be barred by the Eleventh Amendment from amending his
complaint to bring suit against the state of Connecticut should he intend to do so.
See Ying Jing Gan v. City of New York, 996 F.3d 522, 529 (2d Cir. 1993) (The
Eleventh Amendment “bars federal courts from entertaining suits brought by a
private party against a state in its own name”).
Based upon the above reasoning, Defendant’s [Dkt. #10,12] motion to
dismiss is GRANTED and the Plaintiff’s [Dkt. #20] motion for leave to amend his
complaint is DENIED. Because the Plaintiff’s federal law claims are dismissed,
the Court lacks subject matter jurisdiction to entertain Plaintiff’s state law claims.
The Plaintiff may pursue his state law claims in Connecticut Superior court. The
Clerk is directed to close the case.
IT IS SO ORDERED.
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: October 16, 2012
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