Gonzalez et al v. Ocwen Home Loan Servicing et al

Filing 13

ORDER OF DISMISSAL (see attached). Plaintiffs' Amended Complaint [Doc. 9 ] is DISMISSED WITH PREJUDICE. Plaintiffs' pending motions, requesting discovery from Defendants [Doc. 2 and 3 ] and a stay of ejection from the East Wind sor Property [Doc. 6 ] are all DENIED AS MOOT. The Clerk is directed to close the file and send a copy of this Order by certified mail to Plaintiffs at their address of record. Signed by Judge Charles S. Haight, Jr. on February 25, 2015. (Dorais, L.)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT

LUIS GONZALEZ and SONIA GONZALEZ,
Plaintiffs,
Civil Action No.
3:14 - CV - 53 (CSH)

v.
OCWEN HOME LOAN SERVICING, SAND
CANYON CORPORATION, DALE M.
SUGIMOTO, FABIOLA N. CAMPERI,
MATTHEW A. ENGEL, WILLIAM S.
SMITH, LEOPOLD & ASSOCIATES,
OPTION
ONE
MORTGAGE
CORPORATION, AMERICAN HOME
MORTGAGE SERVICE, INC., DEUTSCHE
BANK NATIONAL TRUST COMPANY,
SOUNDVIEW HOME LOAN TRUST 2005OPT3, HUNT LEIBERT JACOBSON PC,
BENJAMIN T. STASKIEWICZ, S. BRUCE
FAIR, ESQ., JON DOE, JAN DOE,
HINSHAW & CULBERTSON, LLP,
VALERIE NICOLE DOBLE,

FEBRUARY 25, 2015

Defendants.

ORDER OF DISMISSAL
HAIGHT, Senior District Judge:

I. INTRODUCTION
On January 16, 2014, pro se Plaintiffs Luis Gonzalez and Sonia Gonzalez commenced this
action against various defendant mortgage companies, banks, and individuals (counsel to and
executives for said mortgage companies and banks), alleging violations of the United States

1

Constitution and the United Nations Declaration on the Rights of Indigenous Peoples ("UNDRIP"),
"banking fraud," and conspiracy with respect to the foreclosed mortgage of 54 Abbe Road, East
Windsor, Connecticut (the "East Windsor Property").1 Doc. 1. This is the latest of three federal
actions Plaintiffs have filed requesting redress from a Connecticut state court's order of foreclosure
on the East Windsor Property. Two such prior federal actions were dismissed by this Court. See,
e.g., Gonzalez v. Capital One Mortgage Corp., No. 3:12-cv-01470 (CSH) (dismissed for lack of
subject matter jurisdiction and failure to state a claim upon which relief may be granted); Gonzalez
v. United States, 3:13-cv-650 (CSH) ( dismissed for lack of proper service, failure to prosecute,
failure to state a claim upon which relief may be granted, and in light of the bar of the RookerFeldman doctrine).
In the case at bar, upon analysis of the pertinent complaint and the court record in this case,
the Court finds that the operative complaint –the Amended Complaint [Doc. 9] – is properly subject
to dismissal on numerous grounds. First, this Court lacks subject matter jurisdiction in that there
is neither a colorable claim arising under the Constitution or federal statute, i.e., no "federal
question," 28 U.S.C. § 1331, nor diversity of citizenship, 28 U.S.C. § 1332(a).
Furthermore, were the Court to find that either basis for subject matter jurisdiction existed,
the action is still barred by the Rooker-Feldman doctrine. That doctrine "directs federal courts to
abstain from considering claims when . . . (1) the plaintiff lost in state court, (2) the plaintiff
complains of injuries caused by the state court judgment, (3) the plaintiff invites district court review
of that judgment, and (4) the state court judgment was entered before the plaintiff's federal suit

1

Also among the named Defendants, Plaintiffs include the generic, un-named "Jon Doe"
and "Jan Doe." It is unclear whom Plaintiffs seek to represent with these designations.
2

commenced." McKithen v. Brown, 626 F.3d 143, 154 (2d Cir.2010). In the present case, Plaintiffs'
allegations are inextricably intertwined with prior state court judgments, such that their federal
claim would succeed only if the state court wrongly decided the issues. Under these circumstances,
the Rooker-Feldman doctrine bars the action. In short, this Court lacks subject matter jurisdiction
to resolve Plaintiffs' requests for relief and must dismiss the action.
Second, alternative bases for dismissal warrant dismissal of this action. Specifically,
Plaintiffs have failed to state a claim upon which relief may be granted, Fed. R. Civ. P. 12(b)(6), and
have failed to serve and/or prosecute their action for more than six months, each of which constitutes
grounds for involuntary dismissal. See Fed. R. Civ. P. 4(m); Fed. R. Civ. P. 41 (b); and D. Conn.
L. Civ. R. 41(a).
II. BACKGROUND
As this Court previously recounted in Gonzalez v. Option One Mortgage Corporation, No.
3:12 - CV - 1470 (CSH), on July 29, 2005, Plaintiff Luis Gonzalez signed a note (the "Note")
promising to pay the lender, Option One Mortgage Corporation ("Option One"), $258,750.000.
Plaintiffs executed a Mortgage in favor of Option One, relating to the East Windsor Property, to
secure the Note.2 Plaintiffs subsequently defaulted on this Mortgage Loan. As a result, Deutsche
Bank National Trust Company ("Deutsche Bank"), as trustee and holder of the Note, accelerated the
balance due.3

2

The Court will address the Note and the Mortgage collectively as the "Mortgage Loan"
in this Ruling.
3

Deutsche Bank has clarified for the Court that Defendant "Ocwen Loan Servicing LLC
is the current servicer" of the Mortgage Loan; and the "prior servicer was Homeward Residential,
Inc., f/k/a American Home Mortgage Servicing, Inc." Doc. 8, p. 3.
3

On May 19, 2010, Deutsche Bank, by and through its counsel, Hunt Leibert Jacobsen, PC,
initiated a foreclosure action against Plaintiffs in Connecticut Superior Court, Judicial District of
Hartford at Hartford, Deutsche Bank National Trust Co. v. Gonzalez, No. HHD-CV-07-6001411-S.
Deutsche Bank obtained a judgment of strict foreclosure in that action on July 28, 2011.4 See
Gonzalez v. Option One Mortgage Corp., No. 3:12 - CV - 1470 (CSH), Doc. 23, Ex. A. The final
law day was set for September 26, 2011 [Doc. 8, Ex. D ("Foreclosure Docket and August 8, 2011
Order")]. On September 29, 2011, title to the Property became conclusively vested in Deutsche Bank
as Trustee, and all of Plaintiffs' interest was extinguished.5 A Certificate of Foreclosure was recorded

4

Deutsche Bank had previously obtained a judgment of strict foreclosure in Connecticut
Superior Court on June 12, 2008 (Case No. HHD-CV-07-6001411S), but then withdrew the action
in an attempt to settle the case with Plaintiffs. See Gonzalez v. Option One Mortgage Corp., 3:12-cv1470 (CSH), Doc. 4-2 (Strict Foreclosure, dated 6/12/2008) & Doc. 4-3 (withdrawal of action by
Deutsche Bank, dated 7/9/2009). In May of 2010, Deutsche Bank reinitiated the action in
Connecticut Superior Court (Case No. HHD-CV10-6011071-S) and obtained a judgment of strict
foreclosure.
5

Defendant Deutsche Bank informed the Court of the following facts regarding
ejectment of Plaintiffs from the East Windsor property after the title to said property vested in
Deutsche Bank:
Plaintiffs failed and/or refused to leave the Property. As such, the foreclosure
court originally issued an Execution of Ejectment on October 31, 2011. Ex. D,
Foreclosure Docket, Entry No. 135.00. Initially, ejectment was voluntarily postponed
until judgment was entered in favor of Deutsche Bank as Trustee in a separate civil
lawsuit filed by Plaintiffs in state court in an effort to avoid and/or delay ejectment
from the Property (the "State Court Case"). . . .
On December 12, 2013, the foreclosure court issued a second Execution of
Ejectment. See Ex. D, Foreclosure Docket and Application and Execution for
Ejectment Foreclosure. After receiving the Execution of Ejectment from the
foreclosure court, Deutsche Bank as Trustee's counsel requested that a state marshal
schedule and complete ejectment. The state marshal scheduled ejectment for January
23, 2014. Plaintiffs received notice of the January 23, 2014 ejectment on or before
January 12, 2014. See Plaintiffs’ Motion, dated January 12, 2014 (referencing the
Execution of Ejectment and January 23, 2014 ejectment date).
4

on November 23, 2011. See Doc. 8, Ex. E ("Certificate of Foreclosure").
Plaintiffs thereafter commenced an action in state court, seeking to avoid foreclosure,
regarding the Mortgage Loan on the East Windsor Property against Option One, American Home
Mortgage Servicing, Inc. ("American Home Mortgage"), Deutsche Bank, the Hunt Leibert Jacobson
law firm, and two individual attorneys in that firm, Benjamin Staskiewicz, and S. Bruce Fair.6 See
Gonzalez v. Option One Mortgage Corp., No. HHD-CV-11-5035882-S. In that action, alleging
fraud and mistreatment with respect to the Mortgage Loan, Defendants Hunt Leibert Jacobson, PC,
and Attorneys Benjamin Staskiewicz and S. Bruce Fair (collectively the "Hunt Leibert Defendants"),
filed motions to strike and for judgment. See id., Doc. 4-5 (docket sheet of state action). On March
5, 2012, the state court granted the motion to strike [Doc. 105.86] ; and on August 9, 2012, that court
granted the motion for judgment in favor of the Hunt Leibert Defendants [Doc. 107.86]. Option One
thereafter filed a motion to dismiss [Doc. 144], which was granted on September 10, 2013; and
judgment of dismissal as to Option One entered on that date [Doc. 144.87]. The state court
ultimately entered a general "Judgment Without Trial" for defendants [Doc. 154.87, dated
9/10/2013].
Plaintiffs thereafter filed three actions in federal court, including the one at bar. In the first

Despite timely notice of the issuance of the Execution of Ejectment and that
ejectment was scheduled for January 23, 2014, Plaintiff Sonia Gonzalez filed for
bankruptcy. Plaintiffs also filed a second federal lawsuit and duplicate Motions to
Stay in both of the federal lawsuits, as well as in the Foreclosure Action.
Doc. 8 ("Opposition to Plaintiff's Motion For Stay/Restraining Order/Injunctions from Ejectment"),
p. 4.
6

Plaintiffs have also included Staskiewicz and Fair as individual defendants in this

action.
5

action, Gonzalez v. Capital One Mortgage Corp., No. 3:12-cv-01470 (CSH), 2014 WL 2475893
(D.Conn. June 3, 2014), this Court granted Defendants' motions to dismiss for lack of subject matter
jurisdiction, pursuant to Rule 12(b)(1), Fed. R. Civ. P., in that there was no diversity of citizenship
between Plaintiffs and Defendants and no federal question arising under the Complaint. See 28
U.S.C. §§ 1332(a), 1331, respectively. In particular, the Court found that Plaintiffs and at least three
of the Defendants were citizens of Connecticut. Furthermore, despite Plaintiffs' references to several
federal statutes, they had failed to set forth any relevant facts giving rise to either a federal statutory
or constitutional claim. Therefore, the Court lacked a basis upon which to exercise federal
jurisdiction.
The Court also explained that even if there had been "diversity of citizenship" or "federal
question" grounds to exercise subject matter jurisdiction, the action would still be subject to
dismissal in that it was barred by the Rooker-Feldman doctrine (in light of Plaintiffs' previous losses
in state court on the same facts and issues presented in federal court) and failed to set forth any valid
claim upon which relief could be granted, Fed. R. Civ. P. 12(b)(6)
Thereafter, in Gonzalez v. United States, No. 3:13-cv-650 (CSH), 2014 WL 3738179
(D.Conn. July 29, 2014), this Court once again dismissed Plaintiffs' claims, this time in light of (1)
Plaintiffs' failure to serve the summons and Complaint upon the Defendant United States and (2)
Plaintiff's failure to prosecute the action since its inception. The Court explained that even if it were
to allow Plaintiffs, as pro se litigants, additional time to cure those defects, their "Tort Claims
Complaint" was "not only vague and incomprehensible in its language," but also "based on a
patently meritless legal theory and wholly 'frivolous,' as that term is used with respect to legally
impossible claims." 2014 WL 3738179, at *7. Moreover, Plaintiffs' attempt to set forth a claim
6

under the Federal Torts Claim Act ("FTCA"), 28 U.S.C. § 1346(b), was also not possible at law
under the particular circumstances of the case. Id. Lastly, Plaintiffs' claims "with respect to their
East Windsor property, asserting claims regarding foreclosed property for which they received
unfavorable rulings in state court and which were previously dismissed in federal court," were also
"barred by the Rooker-Feldman doctrine." Id.
In the case at bar, the third federal action Plaintiffs have filed in response to the Connecticut
state court foreclosure on the East Windsor property, the Court finds that the Amended Complaint
is properly subject to dismissal on the same grounds that led to dismissal of their prior actions before
this Court.7 Namely, Plaintiffs have failed to establish subject matter jurisdiction, and have, in fact,
filed this action in violation of the Rooker-Feldman doctrine. Moreover, Plaintiffs have: (1) failed
to state a claim upon which relief can be granted, Fed. R. Civ. P. 12(b)(6); (2) failed to make proper
service of the complaint and summons upon the Defendants, Fed. R. Civ. P. 4(m); and (3) failed to
prosecute their action, Fed. R. Civ. P. 41 (b); D. Conn. L. Civ. R. 41(a).

III. DISCUSSION
A.

Lack of Subject Matter Jurisdiction
1.

No Federal Question or Diversity of Citizenship

First and foremost, the Court must examine whether it has subject matter jurisdiction in this
action. A federal court is obligated to inquire into subject matter jurisdiction sua sponte at the
earliest opportunity to determine whether such jurisdiction exists. See, e.g., Transatlantic Marine
7

As counsel for Deutsche Bank previously noted, "Deutsche Bank as Trustee is entitled
to take possession of the [East Windsor] Property in accordance with Connecticut Law and the
Execution of Ejectment issued and/or to be issued by the Connecticut Superior Court, Judicial
District of Hartford at Hartford, in Case No. HHD-CV10-6011071-S." Doc. 8, p. 2.
7

Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 107-08 (2d Cir. 1997); Licari v. Nutmeg
Ins. Adjusters, Inc., No. 3:08mc245(WIG), 2008 WL 3891734, at * 1 (D. Conn. July 31, 2008).
Then if subject matter jurisdiction is lacking, the action must be dismissed. See Fed. R. Civ. P.
12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must
dismiss the action.").
In the case at bar, the Court finds no valid basis for subject matter jurisdiction. Plaintiffs
explicitly state that "[j]urisdiction is pursuant to a POPE[']S DECREE," namely an "Apostolic
Letter" by Pope Francis dated July 11, 2013, "On the Jurisdiction of Judicial Authorities of Vatican
City State in Criminal Matters." Doc. 9 ("Amended Complaint," History), ¶ 4; Doc. 12 (caption of
"Apostolic Letter issued Motu Proprio of the Supreme Pontiff Francis").
The Court recognizes that Plaintiffs are entitled to their belief in "higher powers" than those
exercised by a federal court. Moreover, the Pope, as the head of the Catholic Church, is entitled to
make papal law a motu proprio, "on his own impulse" as that Latin phrase may be translated.
Nonetheless, in the United States, there is a fundamental separation of church and state pursuant to
the "Establishment Clause" and "Free Exercise Clause" of the First Amendment of the Constitution.
See U.S. Const. amend. I. A federal court may not exercise subject matter jurisdiction based on a
papal decree.
A federal court exercises limited jurisdiction pursuant to Article III of the Constitution. It
may exert subject matter jurisdiction over claims in which: (1) there is a "federal question" in that
a colorable claim arises under the "Constitution, laws or treaties of the United States," 28 U.S.C.
§ 1331; and/or if (2) there is complete "diversity of citizenship" between each plaintiff and all

8

defendants and a minimum of $75,000 in controversy, 28 U.S.C. § 1332.8 See, e.g., Da Silva v.
Kinsho International Corp., 229 F.3d 358, 363 (2d Cir. 2000) (delineating two categories of subject
matter jurisdiction). Absent jurisdiction under one of these two prongs, a case must be dismissed.
Fed. R. Civ. P. 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction,
the court must dismiss the action.").
In the present case, Plaintiffs appear to allege, in vague terms, the presence of constitutional
issues. See, e.g., Doc. 9 (introduction), ¶¶ 6-7, 9, 11 (referencing "[c]onstitutionality," "No law shall
ever be passed to curtail or restrain the liberty of speech or of the press," "due process" and "[t]he
people shall be secure in their persons, houses, papers[,] possessions from unreasonable searches or
seizures"). None of these statements, however, include sufficient facts to state a constitutional
claim. 9
Absent a "federal question" – a federal statutory or constitutional claim, the Court examines
whether there is "diversity of citizenship" subject matter jurisdiction, 28 U.S.C. § 1332(a)(1). It is
clear that Plaintiffs have failed to allege sufficient grounds for "diversity of citizenship." In order for
there to be diversity of citizenship, there must be "complete diversity," i.e., all plaintiffs must be

8

The Court also notes that a federal court may exercise subject matter jurisdiction over
a claim brought against the federal government, but the federal government is not a party to this
action. See 28 U.S.C. § 1346.
9

Plaintiffs also assert that Defendants have violated provisions of UNDRIP as grounds
for arguing that this case has a "constitutional question." Doc. 9 (introduction), ¶¶ 2.1, 2.4-.5.
Plaintiffs, however, erroneously equate a Declaration of the United Nations with the United States
Constitution to allege constitutional violations. Unlike the Constitution, "UN Declarations are
generally not legally binding," but rather "represent the dynamic development of international legal
norms and reflect the commitment of states to move in certain directions, abiding by certain
principles." See http://www.un.org/esa/socdev/unpfii/documents/faq_drips_en.pdf.
9

citizens of states diverse from those of all defendants." Pa. Pub. Sch. Emps.' Ret. Sys. v. Morgan
Stanley & Co., 772 F.3d 111, 118 (2d Cir. 2014) (citing Exxon Mobil Corp. v. Allapattah Servs.,
Inc., 545 U.S. 546, 553 (2005)). Thus, "[d]iversity is not complete if any plaintiff is a citizen of the
same state as any defendant." St. Paul Fire and Marine Ins. Co. v. Universal Builders Supply, 409
F.3d 73, 80 (2d Cir. 2005) (citing Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365,
373-74 (1978)). In addition, "[i]n an action in which jurisdiction is premised on diversity of
citizenship, diversity must exist at the time the action is commenced." Universal Licensing Corp.
v. Lungo, 293 F.3d 579, 581 (2d Cir. 2002).
At the commencement of this action, in the original Complaint, and again later in the
Amended Complaint, Plaintiffs declare that they are "domicile[d] at Connecticut Republic . . . at East
Windsor[,] 54 Abbe Road." Doc. 1, ¶ 1; Doc. 9 ("History"), ¶ 1. As such, they are citizens of
Connecticut. See, e.g., Palazzo v. Corio, 232 F.3d 38, 42 (2d Cir. 2000) (an individual's citizenship
for diversity purposes is determined by his or her domicile); Linardos v. Fortuna, 157 F.3d 945, 948
(2d Cir. 1998) ("For purposes of diversity jurisdiction, a party's citizenship depends on his
domicile.").
With respect to Defendants, Plaintiffs allege that Deutsche Bank is a "[c]itizen of the US
federal enclave" and "non[-]native or foreign" business, Doc. 9 ("History"), ¶ 2, and that Option One
is a "foreign" business and "of divers [sic] citizenship," id., ¶ 14. Moreover, Plaintiffs allege that
Sand Canyon Corporation has a principal place of business located in Irvine, California. Id., ¶ 21.
Absent a full list of their states of incorporation and principal places of business, the Court cannot
determine the citizenship of these corporate entities. See 28 U.S.C. § 1332(c)(1) ("a corporation
shall be deemed to be a citizen of any State by which it has been incorporated and of the State where
10

it has its principal place of business"). In any event, even if Plaintiffs were able to provide sufficient
facts to establish diversity with these corporate entities, diversity would be destroyed by the
citizenship of other Defendants in the case, including individuals and entities who are citizens of
Connecticut.
In the Option One Mortgage case, No. 3:12-cv-1470 (CSH), "Defendants represent[ed] that
Plaintiffs and Defendants Hunt Leibert Jacobson, P.C., Benjamin T. Staskiewicz, and S. Bruce Fair
are, and most importantly were at the commencement of the action, citizens of Connecticut." 2014
WL 247589, at *6. Hunt Leibert Jacobson, Staskiewicz, and Fair are also Defendants in this action.
Furthermore, Plaintiffs list Connecticut addresses for Defendants Glauss & Braus and Leopold &
Associates. Doc. 9, p. 15. Under these circumstances, Plaintiff and three or more Defendants in this
action are citizens of Connecticut, which destroys diversity.10
Finally, Plaintiffs fail to allege and/or establish that the amount in controversy meets or
exceeds the jurisdictional minimum of $75,000. They make no mention of any dollar amount with
respect to damages. Thus, the Court concludes that subject matter jurisdiction has not been
demonstrated.
10

As discussed above, Hunt Leibert Jacobsen and individuals Staskiewicz and Fair are
Connecticut citizens. Moreover, if Glauss & Braus and Leopold & Associates are corporations,
incorporated in Connecticut and/or with their principal places of business located in Connecticut,
or limited liability companies, comprised of members who are citizens of Connecticut, they are also
citizens of Connecticut and thus non-diverse from Plaintiffs in their citizenship. See 28 U.S.C.
§ 1332(c)(1) (defining citizenship of corporation for diversity purposes); Bayerische Landesbank,
New York Branch v. Aladdin Capital Management, 692 F.3d 42, 49 (2d Cir. 2012) ("a limited
liability company takes the citizenship of each of its members").
As to other Defendants in this action, Plaintiffs fail to address their citizenship altogether.
Any one of these Defendants could be citizens of Connecticut as well. In any event, as long as one
Defendant in this action is a citizen of the same state as the Plaintiffs (i.e., Connecticut), there is no
complete diversity.
11

However, even if Plaintiffs were able to properly establish "federal question" or "diversity
of citizenship" jurisdiction, as set forth below, this action must be dismissed on other grounds.11

2.

Rooker-Feldman Doctrine

Even if Plaintiffs were able to assert a federal claim or establish diversity of citizenship, the
Court would still lack subject matter jurisdiction over this matter pursuant to the Rooker-Feldman
doctrine. "The Rooker–Feldman doctrine provides that, in most circumstances, the lower federal
courts do not have subject matter jurisdiction to review final judgments of state courts." Grim v.
Baker, 553 F. App'x 84, 85 (2d Cir. 2014) (citing D.C. Court of Appeals v. Feldman, 460 U.S. 462,
482–83 (1983) (holding that "a United States District Court has no authority to review final
judgments of a state court in judicial proceedings”); Rooker v. Fidelity Trust Co., 263 U.S. 413,
414–16 (1923) ("no court of the United States other than [the Supreme Court] could entertain a
proceeding to reverse or modify [a state court's] judgment for errors")). "The Supreme Court has
clarified that the doctrine is confined to cases brought by state-court losers complaining of injuries
caused by state-court judgments rendered before the district court proceedings commenced and
inviting district court review and rejection of those judgments." Grim, 553 F. App'x at 85 (quoting
Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005) (internal quotation marks
omitted).
As the Second Circuit has articulated, "Rooker–Feldman directs federal courts to abstain
from considering claims when four requirements are met: (1) the plaintiff lost in state court, (2) the
11

Normally, the Court would require evidence from the parties to substantiate their states
of citizenship for diversity purposes and then make a determination as to whether subject matter
jurisdiction exists. In light of the numerous grounds for dismissal, the Court will avoid making the
parties expend resources in a futile effort.
12

plaintiff complains of injuries caused by the state court judgment, (3) the plaintiff invites district
court review of that judgment, and (4) the state court judgment was entered before the plaintiff's
federal suit commenced." McKithen v. Brown, 626 F.3d 143, 154 (2d Cir.2010). Accord Remy v.
New York State Dep't of Taxation and Finance, 507 F. App'x 16, 18 (2d Cir. 2013). Moreover, "the
applicability of the Rooker–Feldman doctrine turns not on the similarity between a party's state-court
and federal-court claims . . . but rather on the causal relationship between the state-court judgment
and the injury of which the party complains in federal court." McKithen v. Brown, 481 F.3d 89, 9798 (2d Cir. 2007), cert. denied, 552 U.S. 1179 (2008).
"Even where a plaintiff alleges that a state court judgment was procured by fraud,
Rooker–Feldman will divest the federal court of jurisdiction." Astoria Federal Sav. & Loan Ass'n
v. Arcamone, No. 3:12-cv-230 (WWE), 2012 WL 4355550, at *2 (D.Conn. Sept. 18, 2012) (citing
Done v. Wells Fargo Bank, N.A., No. 08–CV–3040 (JFB)(ETB), 2009 WL 2959619, at *3 n.6
(E.D.N.Y. Sept. 14, 2009)). See also Smith v. Wayne Weinberger P.C., 994 F.Supp. 418, 423
(E.D.N.Y.1998) ("The fact that the plaintiff alleges that the State Court judgment was procured by
fraud does not remove his claims from the ambit of Rooker-Feldman.").
In the particular context of state court judgments of foreclosure, "Courts in this Circuit have
consistently held that any attack on a judgment of foreclosure is clearly barred by the RookerFeldman doctrine."

Gunn v. Ambac Assur. Corp., No. 11 Civ. 5497(PAC)(JLC), 2012 WL

2401649, at *12 (S.D.N.Y. June 26, 2012) (collecting cases), report and recommendation adopted,
2012 WL 3188849 (S.D.N.Y. Aug. 6, 2012). See also Swiatkowski v. Bank of America, NT & SA,
103 F. App'x 431, 432 (2d Cir. 2004) (affirming district court's "holding that under the RookerFeldman doctrine, the [district] court lacked subject matter jurisdiction: even reading the complaint
13

liberally, . . . [plaintiffs'] lawsuit was effectively seeking to re-litigate a judgment of foreclosure
entered against them by the state court"); Billie v. Aurigremma, No. 3:13-cv-1432 (JBA), 2013 WL
6331358, at *2 (D.Conn. Dec. 5, 2013) ("any claims contesting the validity of the state court
foreclosure judgment are precluded by the Rooker-Feldman doctrine"); Aluria v. Jurgelas, No.
3:12-cv-1443 (WWE), 2013 WL 2286051, at *1 (D.Conn. May 23, 2013) ("Plaintiff's action invites
this court to review and reject the judgment rendered in the foreclosure action prior to plaintiff's
commencement of this action;" and "[t]hus, plaintiff[']s challenge to a judgment of foreclosure
issued by the state superior court satisfies the Rooker–Feldman factors, and the Court lacks subject
matter jurisdiction to resolve plaintiff's request for relief."); Astoria Federal Sav. & Loan Ass'n,
2012 WL 4355550, at *2 (where plaintiff sought "an injunction to prevent the subject property from
being 'stolen' from him" and "an order to void the [state court's] foreclosure orders," his "challenge
to a judgment of foreclosure issued by the state superior court satisfie[d] the Rooker-Feldman
factors, and the Court lack[ed] subject matter jurisdiction to resolve plaintiff's request for relief");
Vossbrink v. Accredited Home Lenders, Inc., No. 3:11-cv-1312 (WWE), 2012 WL 2952374, at * 1
(D.Conn. July 19, 2012) ("Here, plaintiff's motion for issuance of a temporary restraining order or
preliminary injunction challenges a judgment of foreclosure issued by the state superior court;"
"[t]hus, the Rooker-Feldman factors apply and the Court lacks subject matter jurisdiction to resolve
plaintiff's request for relief."); Smith v. Wayne Weinberger P.C., 994 F.Supp. 418, 423
(E.D.N.Y.1998) (in action where plaintiff alleged that state court default judgment in a foreclosure
proceeding was procured by fraud, court dismissed the plaintiff's action as "in contravention of
Rooker–Feldman" because the conversion claims were "merely a thinly-veiled effort to invalidate
the State Court's foreclosure judgment").
14

In the present action, all four Rooker-Feldman factors are present. First, the Plaintiffs clearly
lost in state court. Plaintiffs initially lost when attempting to defend against foreclosure in the
Connecticut state action of Deutsche Bank National Trust Co. v. Gonzalez, HHD-CV10-6011071-S
(Conn. Super. Ct. 2010). See Option One Mortgage, No. 3:12–CV–1470 (CSH), Doc. 17-1, p. 2-5
(docket sheet reflecting, inter alia, "Judgment of Strict Foreclosure" with respect to Plaintiffs' East
Windsor Property, 7/18/2011; and "Execution of Ejectment Issued," 10/31/2011).
Plaintiffs lost for a second time when they sued in Connecticut Superior Court, Judicial
District of Hartford, to obtain relief from their mortgage obligations and to avoid foreclosure on the
East Windsor Property. See Gonzalez v. Option One Mortgage, HHD-CV11-5035882-S (Conn.
Super. Ct. 2011).12 In that second action, upon motion by the Hunt Leibert Defendants, the state
court struck Plaintiffs' complaint in its entirety and entered judgment in Defendants' favor on August
9, 2012. See docket sheet of state court action, reflecting, inter alia, Order [Doc. 107.86] entering
"Judgment pursuant to Practice Book § 10-44 disposing of this matter . . . in favor of Defendants,
Hunt Leibert Jacobson, PC; Benjamin T. Staskiewicz, Esq.; and S. Bruce Fair, Esq.," dated
8/9/2012).

The court subsequently entered a general judgment without trial in favor of the

remaining defendants on September 10, 2013.13
Second, in the case at bar, the Plaintiffs once again complain of the injuries caused by the

12

See also Gonzalez v. Option One Mortgage Corp., No. 3:12–CV–1470 (CSH), Doc. 171, p. 13-16.
13

The defendants in the state court action included many of the Defendants in the case at
bar: Option One Mortgage Corporation; American Home Mortgage Servicing, Inc.; Deutsche Bank
National Trust Company; Benjamin T. Staskiewicz, Esq.; S. Bruce Fair, Esq.; and Hunt Leibert
Jacobson, PC. Attorney Valerie Doble, who is a Defendant herein, was defense counsel for Deutsche
Bank in the state court action.
15

state court judgments. Specifically, Plaintiffs allege that they will be deprived of their property at
54 Abbe Road, East Windsor, Connecticut, due to "bad banking practices, predatory lending, false
claim[s] [of] abandonement [sic], and other fraud" by Defendants. See Doc. 9 ("History"), ¶ 2; see
also id., ¶ 5 (alleging "[c]laims are brought pursuant [to] bank negligence, predatory lending, fraud
and other torts"), id., ¶ 34 (alleging blatant "[f]raud and contradictions . . . by defendants). In their
Amended Complaint, Plaintiffs thus request, inter alia, "[a] judgment for plaintiff[s] to retain full
possession of [the] property" in East Windsor.

Id. ("Notice of Claims"), ¶ 1.

Third, in challenging the state court's judgments, including foreclosure, the Plaintiffs invite
this Court to review and reject those judgments, which were clearly unfavorable to them. In federal
court, Plaintiffs have presented the same issues for the third time – the validity of the Mortgage
Loan and opposition to foreclosure on the East Windsor Property – that they raised, or could have
raised, in their state court actions. Where "the issues raised in a plaintiff's complaint are inextricably
intertwined with a state court judgment" so that "the federal claim would succeed only if the state
court wrongly decided the issue," the Rooker-Feldman factors are present.14 See, e.g., Barnett v.
Conn. Light & Power Co., 900 F.Supp. 2d 224, 241 (D.Conn. 2012) (quoting Dockery v. Cullen &
Dykman, 90 F.Supp.2d 233, 236 (E.D.N.Y. 2000), aff'd, 2 F. App'x 78 (2d Cir. 2001)); Rene v.
Citibank, N.A., 32 F.Supp.2d 539, 543 (E.D.N.Y.1999) (same).
14

"In the Rooker–Feldman doctrine, the Supreme Court's use of 'inextricably intertwined'
means, at a minimum, that where a federal plaintiff had an opportunity to litigate a claim in a state
proceeding (as either the plaintiff or defendant in that proceeding), subsequent litigation of the claim
will be barred under the Rooker-Feldman doctrine if it would be barred under the principles of
preclusion." Weiss v. Weiss, 375 F.Supp. 2d 10, 18 (D.Conn. 2005) (citation and internal quotation
marks omitted). "Stated another way, a federal claim is 'inextricably intertwined' with the state-court
judgment if the relief sought may be granted only on the federal court's finding that the state court
determined the issues before it erroneously." Weiss, 375 F.Supp. 2d at 18 (quoting Pennzoil Co. v.
Texaco Inc., 481 U.S. 1, 25 (1987) (plurality opinion)).
16

With respect to the fourth Rooker-Feldman factor, entry of the state court judgment prior to
Plaintiffs' initiation of the federal lawsuit, Plaintiffs commenced this latest action in federal court
on January 16, 2014. The state court judgment of foreclosure preceded this federal action by years.
See Deutsche Bank National Trust Co. v. Gonzalez, HHD-CV10-6011071-S (Conn. Super. Ct.
2010) ("Judgment of Strict Foreclosure," 7/28/2011, and "Execution of Ejectment Issued,"
10/31/2011).15 The state court clarified that the foreclosure judgment was final when later denying
a motion to open judgment by Luis Gonzalez's present co-plaintiff and wife, Sonia Urdinola (a/k/a
Gonzalez).16 The docket in that action also reflects that Deutsche Bank provided the requisite

15

The Court notes that Plaintiffs' later attempt to avoid foreclosure in Connecticut
Superior Court, Judicial District of Hartford, was also unsuccessful. See Gonzalez v. Option One
Mortgage, HHD-CV11-5035882-S (Conn. Super. Ct. 2011).
16

In Deutsche Bank v. Gonzalez, in denying plaintiff Sonia Urdinola's motion to open
judgment of strict foreclosure, the state court clarified that it considered the judgment final, as
follows:
The court entered a judgment of strict foreclosure in this matter on July 18, 2011,
and title vested in the plaintiff on September 29, 2011. The defendant, Sonia
Urdinola, entered her appearance in the case on March 3, 2014, and filed a motion
to open judgment arguing that the judgment should be opened because the plaintiff
did not file a "Certification of Compliance with Foreclosure Procedures" with the
clerk, because the plaintiff lacks standing as the real party in interest to bring this
action, and she also supplies information showing that she and the the [sic]
defendant, Luis Gonzales, have health problems. Due to the fact that the motion is
so late, the court, ordinarily, has no jurisdiction to grant it. General Statutes § 49-15;
Thompson Gardens West Condominium Ass’n, Inc. v. Masto, 140 Conn. App. 271,
(2013). There are exceptions in cases where the court obviously lacked subject matter
jurisdiction, Argent Mortgage Co., LLC v. Huertas, 288 Conn. 568, 576 (2008), or
where the equities are so strong that “the principle of protection of finality of
judgments must give way to the principle of fairness and equity.” (Citation omitted;
internal quotation marks omitted.) Citibank v. Lindland, 131 Conn. App. 653, 661,
(2011), aff’d in part and rev’d in part on other grounds, 310 Conn. 147 (2013). This
is not such a case. First, there is no "Certification of Compliance with Foreclosure
Procedures" that must be filed in this action. . . . Second, the issue of standing was
already raised in this case. . . . The issue was resolved in favor of the plaintiff on
17

affidavit of debt and foreclosure worksheet [Doc. 124, 125] to enable the court to make the necessary
calculations of debt and issue an Execution of Ejectment [Doc. 135]. Under Connecticut law, "a
judgment of foreclosure constitutes an appealable final judgment when the court has determined the
method of foreclosure and the amount of the debt." Moran v. Morneau, 129 Conn.App. 349, 356
(2011) (quoting Danzig v. PDPA, Inc., 125 Conn.App. 254, 261 (2010), cert. denied, 300 Conn. 920
(2011)).
Moreover, the second state court action, brought by Plaintiffs against many of the Defendants
herein resulted in a second state court judgment which is inextricably linked with the issues
presented to this Court. That second action was dismissed and judgment entered in favor of the Hunt
Leibert Defendants on August 9, 2012 – prior to the filing of this federal action.17
The Second Circuit has held that the Rooker–Feldman doctrine applies not only to final
orders, such as the entry of strict foreclosure, but also to interlocutory decisions, such as the
dismissal of the case against the Hunt Leibert Defendants. Green v. Mattingly, 585 F.3d 97, 101 (2d
Cir. 2009) (noting that the "doctrine applied both to final state court judgments and to interlocutory
state court orders"); Doctor's Associates, Inc. v. Distajo, 107 F.3d 126, 138 (2d Cir. 1997) ("It cannot

March 28, 2011. Doc. No. 114.86. There is no justification to relitigate the point. See
Urban Redevelopment Commission v. Katsetos, 86 Conn. App. 236, 243 (2004), cert.
denied, 272 Conn. 919 (2005). And, current health problems are not justification to
open a judgment entered over two and a half years ago. All other of defendant’s
arguments have no merit. Accordingly, the motion is dismissed.
Doc. 145.00 (Order, dated 3/20/2014) (emphasis added) (parallel citations omitted).
17

As this Court has previously noted, Plaintiffs neither appealed the motion to dismiss the
action against the Hunt Leibert Defendants nor preserved their right to appeal by filing a notice of
intent to appeal, pursuant to Conn. R. App. P. § 61-5. Accordingly, the state court judgment as to
the Hunt Leibert Defendants is final.
18

be the meaning of Rooker-Feldman that, while the inferior federal courts are barred from reviewing
final decisions of state courts, they are free to review interlocutory orders.") (citation omitted);
Gentner v. Shulman, 55 F.3d 87, 89 (2d Cir.1995) ( "Under [the Rooker-Feldman] doctrine, federal
district courts lack jurisdiction to review state court decisions whether final or interlocutory in
nature").
In sum, as to the foreclosure action, the state court ruled that the judgment of strict
foreclosure in favor of Deutsche Bank was final. Attempts to reopen that judgment have been
denied. Furthermore, with respect to Plaintiffs' subsequent action in state court to avoid foreclosure,
although the interlocutory dismissal pertained only to the Hunt Leibert Defendants, the issues in that
state action were inextricably intertwined with the issues now presented in the federal action.
Because the Rooker–Feldman applies to both final and interlocutory orders, this Court lacks subject
matter jurisdiction over Plaintiffs' federal action.
Furthermore, even though Plaintiffs allege that the state court judgments resulted from fraud,
Rooker-Feldman still bars their federal claims.18 See, e.g., Astoria Federal Sav. & Loan Ass'n, 2012
WL 4355550, at *2 ("Even where a plaintiff alleges that a state court judgment was procured by
fraud, Rooker-Feldman will divest the federal court of jurisdiction.") (citing Done, 2009 WL
2959619, at *3 n. 6). Thus, "even if the state court judgment was wrongly procured, it is effective
and conclusive until it is modified or reversed in the appropriate State appellate or collateral
proceeding."

Simpson v. Putnam County Nat'l Bank of Carmel, 20 F.Supp.2d. 630, 633

(S.D.N.Y.1998) (citation omitted).
18

In their Amended Complaint [Doc. 9], Plaintiffs once again allege that "fraud" was
committed by Defendants with respect to the mortgage foreclosure. See Doc. 9, introductory
paragraph; id., ("History"), ¶¶ 2, 5, 7, 14, 24, 34, 37, 40; id., ("Notice of Claims"), ¶ 2.
19

Because Plaintiffs seek review and reversal of prior unfavorable state court judgements in
a later federal action, this Court lacks subject matter jurisdiction pursuant to the Rooker-Feldman
doctrine. See, e.g., Aluria, 2013 WL 2286051, at *1 ("Plaintiff's action invites this court to review
and reject the judgment rendered in the foreclosure action prior to plaintiff's commencement of this
action;" and "[t]hus, plaintiff's challenge to a judgment of foreclosure issued by the state superior
court satisfies the Rooker-Feldman factors, and the Court lacks subject matter jurisdiction to resolve
plaintiff's request for relief."). Construing the language of the Amended Complaint in its broadest
terms, there is a clear relationship between the state court judgments and the injury Plaintiffs seek
to redress in federal court. Plaintiffs lost in the foreclosure action and lost against the Hunt Leibert
Defendants in Plaintiff's state action to attempt to avoid foreclosure. Plaintiffs may not now relitigate the validity of the foreclosure in federal court.

B.

Failure to State a Claim upon Which Relief May Be Granted
In the absence of subject matter jurisdiction, the Court need not decide whether the

Complaint states any viable claims. See Fed. R. Civ. P. 8, 12(b)(6).19 However, as an alternative
basis for dismissal (i.e., if subject matter jurisdiction were deemed to exist), the Court finds that the
allegations in the Complaint fail to set forth any claims upon which relief may be granted.20 See
Gherardi v. New York, 161 F. App'x 60, 61 (2d Cir. 2005) ("An alternative holding may be

19

Rule 8(a)(2) mandates that "a claim for relief must contain . . . a short and plain
statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Rule
12(b)(6) permits a party to assert by motion the defense of "failure to state a claim upon which relief
can be granted." Id. 12(b)(6).
20

For example, with respect to Rooker-Feldman, to the extent that Plaintiffs have
attempted to assert any causes of action that are independent of the prior state court judgments, those
allegations fail to state any claim upon which relief could be granted.
20

considered conclusive in a subsequent proceeding where, as here, the litigants had the incentive and
opportunity to address the issue, and the issue was carefully considered by the court.").
"In the Second Circuit, the district court has the authority to dismiss actions sua sponte in the
rare case when it faces a truly frivolous suit." Byars v. Malloy, No. 3:11cv17 (SRU), 2011 WL
4538073, at *5 (D.Conn. Sept. 29, 2011) (citing Abrams v. Sprizzo, 201 F.3d 430, 1999 WL
1295815 (Table), at *1 (2d Cir. 1999)). See also Leonhard v. United States, 633 F.2d 599, 609 n.
11 (2d Cir.1980) ("[t]he district court has the power to dismiss a complaint sua sponte for failure to
state a claim") (citing Robins v. Rarback, 325 F.2d 929[, 930] (2d Cir. 1963), cert. denied, 379 U.S.
974 (1965)); Mallard v. U.S. District Court for Southern District of Iowa, 490 U. S. 296, 307-08
(1989) (although in the context of in forma pauperis proceedings, a particular statute, 28 U.S.C.
§ 1915(d), "authorizes courts to dismiss a 'frivolous or malicious' action, but there is little doubt they
would have power to do so even in the absence of this statutory provision").
An action is frivolous as a matter of law when "the 'factual contentions are clearly baseless,'
such as when allegations are the product of delusion or fantasy," when "the claim is 'based on an
indisputably meritless legal theory,'" or when "a dispositive defense clearly exists on the face of the
complaint."21 Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir.1998) (quoting
Nance v. Kelly, 912 F.2d 605, 606 (2d Cir.1990) (per curiam)).
The Second Circuit has repeatedly advised leniency in interpreting pro se litigant's
21

As Judge Underhill explained in Byars, 2011 WL 4538073, at *5 n. 2:

By "frivolous[,]" the court does not mean to suggest that [Plaintiff] has not suffered
harm, or that his . . . claims should not be treated with care and respect. Rather, this
court only uses "frivolous" as a term of art applicable in this case because it is legally
impossible for Plaintiff to obtain relief.
21

complaints – reminding courts that "pro se litigants . . . cannot be expected to know all of the legal
theories on which they might ultimately recover" so that "[i]t is enough that they allege that they
were injured, and that their allegations can conceivably give rise to a viable claim." Phillips v.
Girdich, 408 F.3d 124, 130 (2d Cir.2005). A court must therefore allow its "imagination [to] be
limited only by [the plaintiff]'s factual allegations, not by the legal claims set out in his pleadings."
Ford v. New Britain Trans. Co., Case No. 3:03cv150 (MRK), 2005 WL 1785269, at *1 (D.Conn.
July 26, 2005) (quoting Phillips, 408 F.3d at 130).
"Importantly, however, the Court is not required to engage in 'rank speculations' in an effort
to manufacture a federal claim for pro se plaintiffs, Ford, 2005 WL 1785269 at *5, and thus, a court
may dismiss a complaint if it appears beyond doubt that no set of facts could be proven that would
establish an entitlement to relief." Rzayeva v. United States, 492 F.Supp.2d 60, 70 (D.Conn. 2007)
(citing Weixel v. Bd. of Educ. of New York, 287 F.3d 138, 145–46 (2d Cir.2002)).
The Second Circuit has held that in general, a district court cannot dismiss a claim sua
sponte unless the plaintiff has been given notice of the court's intention to dismiss and the
opportunity to respond. See Perez v. Ortiz, 849 F.2d 793, 797–98 (2d Cir.1988). Providing notice
and an opportunity to be heard generally ensures that "a litigant can continue to fight his case by, for
example, amending his complaint or clarifying his legal theory," enabling him to "secure a just
determination." Byars, 2011 WL 4538073, at *5 n.3 (quoting Perez, 849 F.2d at 797).
However, the Second Circuit has also acknowledged that "sua sponte dismissals may be
appropriate in some circumstances." Perez, 849 F.2d at 797 (citing, inter alia, Leonhard, 633 F.2d
at 609 n. 11, Robins, 325 F.2d 929). See also Snider v. Melindez, 199 F.3d 108, 113 (2d Cir. 1999)
(noting that "[u]nless it is unmistakably clear that the court lacks jurisdiction, or that the complaint
22

lacks merit or is otherwise defective," there must be notice) (emphasis added). Numerous courts,
including this District, have thus properly dismissed actions sua sponte without notice where
"further hearings and filings are unnecessary because the plaintiff seeks a legal impossibility."
Byars, 2011 WL 4538073, at *5 n.3. Accord Baker v. Director, U. S. Parole Comm'n, 916 F.2d
725, 726-27 (D.C. Cir. 1990) (failure to "enforce a strict notice requirement with regard to sua
sponte dismissals" is justified and "appropriate" where "the plaintiff has not advanced a shred of a
valid claim" so that notice "can only lead to a waste of judicial resources"); McKinney v. Oklahoma.,
Dept. Of Human Services, Shawnee OK, 925 F.2d 363, 365 (10th Cir. 1991) ("Although the preferred
practice is to accord a plaintiff notice and an opportunity to amend his complaint before acting upon
a motion to dismiss for failure to state a claim, we agree with and adopt the reasoning of the D.C.
Circuit [in Baker, 916 F.2d at 726-27] and hold that a sua sponte dismissal under Rule 12(b)(6) is
not reversible error when it is 'patently obvious' that the plaintiff could not prevail on the facts
alleged, . . . and allowing him an opportunity to amend his complaint would be futile.").
The case at bar is the rare situation in which sua sponte dismissal without prior notice to the
Plaintiffs is appropriate. Plaintiffs' Amended Complaint patently fails to state any viable claims,
naming no particular cause of action, much less attempting to plead the elements of any cognizable
claim. Rather, Plaintiffs make broad references to "bad banking practices," "fraud," "conspiracy,"
and "unconstitutional" behavior without setting forth any supporting facts. Furthermore, Plaintiffs
alternatively cite constitutional amendments and UNDRIP articles, misconstruing a United Nations
declaration as a legally binding authority. Doc. 9 (introduction), p. 1. Plaintiffs thus assert that
failure to follow UNDRIP is a violation of "constitutional articles." Id. Similarly, Plaintiffs
reference a decree of Pope Francis in July 2013 as the jurisdictional basis for their claim. Id.
23

("History"), ¶ 4. As in Plaintiffs' prior action, the Court finds it "impossible to extract [the] claims
from the 'mass of verbiage' contained in the present Complaint." Callan v. Paulson, No. 3:08-cv01625 (CSH), 2009 WL 1011344, at *4 (D.Conn. April 15, 2009).
Although a pro se complaint must be liberally construed to raise the strongest arguments it
may suggest, Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir.2007), pro se litigants are nonetheless
obligated to comply with the minimal standards of notice pleading under Rule 8, Fed. R. Civ. P.
See, e.g., Nielsen, 746 F.3d at 63. In other words, "a pro se complaint must state a plausible claim
for relief." Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013). See also Collins v. Blumenthal, 581
F. Supp. 2d 289, 291 (D. Conn. 2008) ("[T]he rule in favor of liberal construction cannot save pro
se litigants who do not present cognizable arguments."). Moreover, "[d]ismissal of a complaint is
proper when it is 'so confused, ambiguous, vague or otherwise unintelligible that its true substance,
if any, is well disguised.'" Little v. U.S. Postal Service, No. 3:99CV887(PCD), 2002 WL 32191568,
at *1 (D.Conn. Jan. 18, 2002) (quoting Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988)).
Here "it is pointedly clear that the complaint at bar runs afoul of Rule 8," containing only
"vague and incomprehensible allegations." Lonesome v. Lebefeff, 141 F.R.D. 397, 398 (E.D.N.Y.
1992). Where the Amended Complaint is fatally vague, ambiguous, or otherwise unintelligible, it
is properly subject to dismissal as "frivolous."

C.

Lack of Service
This case may also be properly dismissed for lack of service. On January 16, 2014, Plaintiffs

filed their "Complaint" against the named mortgage companies, banks, and individual attorneys and
mortgage executives. See Doc. 1. Two months elapsed and Plaintiffs failed to serve their Complaint

24

and Summons on Defendants. On March 20, 2014, Plaintiffs filed an Amended Complaint [Doc.
9], but again failed to either serve their complaint and summons upon the Defendants or to provide
"good cause" for said failure to serve.22
Pursuant to Rule 4(c)(1), Fed. R. Civ. P., the party initiating an action "is responsible for
having the summons and complaint served within the time allowed by Rule 4(m)," – i.e., "within
120 days after the complaint is filed." Moreover, "[i]f a defendant is not served within [those] 120
days after the complaint is filed, the court – on motion or on its own after notice to the plaintiff –
must dismiss the action without prejudice against that defendant or order that service be made within
a specified time." Fed. R. Civ. P. 4(m).
As set forth supra, more than 120 days have expired without service of the Amended
Complaint and Summons upon Defendants. Absent such service, this Court lacks jurisdiction over
the Defendants as parties. In such circumstances, "[a]bsent proper service and personal jurisdiction,
the court would normally dismiss the complaint," Funches v. Conn. Dep't of Pub. Health, No.
3:08–CV–1714 (RNC), 2010 WL 122445, at *1 (D.Conn. Jan. 7, 2010). See also Fed. R. Civ. P.
4(m) (court must dismiss without prejudice or order service after 120 days); Eiden v. McCarthy,
531 F.Supp. 2d 333, 343 (D.Conn. 2008) ("A motion to dismiss pursuant to Rule 12(b)(5) must be
granted if the plaintiff fails to serve a copy of the summons and complaint on the defendants
22

In their Amended Complaint, Plaintiffs make reference to service of the complaint in
another action to some of the Defendants named herein. Plaintiffs appear not to comprehend that
service of a complaint in a prior action does not excuse service in the present one. Doc. 9 ("History"),
¶¶ 23, 43, 49. Similarly, Plaintiffs argue that certain Defendants "cannot say they were insufficiently
served . . . if they had . . . prior knowledge of the complaint against them." Id., ¶ 33. A defendant's
possible knowledge of a complaint is not sufficient to excuse a plaintiff from providing the requisite
service of that complaint, along with a summons, upon that defendant. Otherwise, unreliable
statements about the possible existence of litigation would replace service and effectively destroy
defendants' right to notice of being sued.
25

pursuant to Rule 4 of the Federal Rules, which sets forth the federal requirements for service.")
(citation omitted).
At this point, if the Court had subject matter jurisdiction, the Court would ordinarily grant
Plaintiffs a brief additional period within which to effect proper service before dismissing the
complaint without prejudice. For the reasons set forth supra, however, the Court finds that granting
Plaintiffs additional time for service would be futile because their Complaint is fatally defective in
that it sets forth "frivolous" claims which cannot be remedied by amendment. See Part III.B, herein.

D.

Failure to Prosecute
Finally, the Court notes that Plaintiffs have failed to take the requisite actions to prosecute

this action under Federal Rule 41(b) of Civil Procedure.23 Because they have failed to even serve
the Amended Complaint and Summons, the Defendants have not appeared. Consequently, the
parties failed to meet and confer to file a joint Rule 26(f) Report, which would have resulted in the
Court's entry of a scheduling order to set case deadlines, including those for discovery.
The only actions Plaintiffs have taken have been legally impermissible. For example, without
even serving Defendants with the Amended Complaint, Plaintiffs have requested discovery from
them via two motions filed with the Court. See Doc. 2 ("Request for Disclosure") and Doc. 3

23

Pursuant to Federal Rule 41(b) of Civil Procedure, "[i]f the plaintiff fails to prosecute
or to comply with these [R]ules . . . a defendant may move to dismiss the action or any claim against
it" and such a dismissal ordinarily "operates as an adjudication on the merits." Similarly, under
Local Rule 41(a) of Civil Procedure, "[i]n civil actions in which no action has been taken by the
parties for six (6) months . . . , the Clerk shall give notice of proposed dismissal to counsel of record
and pro se parties, if any." D. Conn. L. Civ. R. 41(a) ("Dismissal of Actions – For Failure to
Prosecute"). "If such notice has been given and no action has been taken in the action in the
meantime and no satisfactory explanation is submitted to the Court within twenty (20) days
thereafter, the Clerk shall enter an order of dismissal." Id.
26

("Motion for Discovery & Disclosure"). The discovery period has not officially begun in that no
Rule 26(f) Report has been filed, much less approved. See Fed. R. Civ. P. 26(d)(1) (captioned
"Timing") ("A party may not seek discovery from any source before the parties have conferred as
required by Rule 26(f) . . . ."). Furthermore, even after the Court enters a case scheduling order,
discovery requests should not be filed with the Court, but rather served on the party from whom
discovery is sought. See Fed. R. Civ. P. 34. Unless or until the parties confer in good faith and are
unable to resolve their differences, they should not file a request for discovery or motion to compel
with the Court. See Fed. R. Civ. P. 37 (a) (a motion to compel discovery "must include a
certification that the movant has in good faith conferred or attempted to confer with the person or
party failing to make disclosure or discovery in an effort to obtain it without court action").
In addition, Plaintiffs' self-styled "motion for a stay" relates to the Connecticut state court's
final order of foreclosure, directing ejectment of Plaintiffs from the East Windsor Property. See
Deutsche Bank National Trust Co. v. Gonzalez, HHD-CV10-6011071-S (Conn. Super. Ct. 2010)
("Judgment of Strict Foreclosure," 7/28/2011, and "Execution of Ejectment Issued," 10/31/2011).
A stay of the state court's Execution of Ejectment is the same relief Plaintiffs have repeatedly sought
in all of their prior proceedings. For at least the third time, Plaintiffs seek to prevent execution of
the state court's ruling of foreclosure in federal court. As set forth supra, that challenge is barred
by the Rooker-Feldman doctrine. See Part III.A.2., supra.
Since the date Plaintiffs filed the Amended Complaint on March 20, 2014, other than the
aforementioned improper motions, Plaintiff have taken no action, failing to effect service and

27

prosecute in almost a year.24 Pursuant to both Rule 41(b), Fed. R. Civ. P., captioned "Involuntary
Dismissal," and or Local Rule 41(a), D. Conn. L. Civ. R., upon notice to a plaintiff, his or her action
may be subject to dismissal for failure to prosecute.
Even with the Court's exercise of leniency toward pro se litigants, affording them "special
solicitude," as directed by the Second Circuit, Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,
475 (2d Cir. 2006) (per curiam), pro se litigants are expected to comply with the Federal Rules of
Civil Procedure, McDonald v. Head Criminal Court Supervisor Officer, 850 F.2d 121, 124 (2d
Cir.1988).

Failure to follow the Federal Rules may result in dismissal of a pro se plaintiff's

pleadings or claims. See, e.g. McNally v. O'Flynn, No. 09-CV-621S(F), 2010 WL 891151, at
*1- 2 (W.D.N.Y. Mar. 10, 2010) Baez v. Kennedy Child Study Center, No. 11 Civ. 7635(JMF), 2013
WL 705913, at *1 (S.D.N.Y. Feb. 27, 2013).
Under other circumstances, the Court would simply deny the improper motions and provide
Plaintiffs with an additional twenty days to serve the complaint and summons and prosecute their
action – or provide a "satisfactory explanation" for failure to do so – before dismissing the Amended
Complaint. Here, however, additional time would be pointless. As set forth, supra, the Amended
Complaint is subject to sua sponte dismissal in that it sets forth exclusively frivolous and/or legally
impossible claims. See Part III.B., supra.

E.

Bankruptcy Petition of Sonia Gonzalez
Finally, the Court takes judicial notice that Plaintiff Sonia Gonzalez filed a voluntary Chapter
24

Plaintiffs' latest filing was the "Pope's Decree," an apostolic letter, filed June 16, 2014.
Plaintiffs filed no accompanying memorandum to explain the significance of the filing, but the Court
deduces from the Amended Complaint that Plaintiffs consider this document the basis for the Court's
jurisdiction over this matter. Doc. 9 ("History"), ¶ 4.
28

13 petition in bankruptcy on the same date that she filed this action, January 16, 2014.25 See In re
Sonia U. Gonzalez, No.14-20063 (Bankr. D. Conn. January 16, 2014).

A debtor who files a

bankruptcy petition obtains an automatic stay of proceedings under 11 U.S.C. § 362(a)(1) for "the
commencement or continuation . . . of a judicial, administrative, or other action or proceeding
against the debtor that was or could have been commenced before the commencement of the case"
in the bankruptcy court. The stay is effective immediately upon the filing of the petition, Shimer v.
Fugazy (In re Fugazy Express, Inc.), 982 F.2d 769, 776 (2d Cir.1992).
A filing receipt on the bankruptcy docket shows that Sonia Gonzalez filed her bankruptcy
petition at 4:36 p.m. on January 16, 2014. On the same date, she manually filed her Complaint to
commence this action in federal court. It is impossible to tell whether her bankruptcy petition was
filed before or after the Complaint in this federal action. Nonetheless, she apparently attempted to
initiate the two actions on the same date. The electronic filing receipt in this case shows that the
original Complaint was "entered" by the Clerk on the docket "on 1/17/2014 at 4:28 p.m.," but "filed
on 1/16/2014."
In any event, Sonia Gonzalez's bankruptcy filing has no effect on the ability of this Court to
ascertain its subject matter jurisdiction and dismiss the action at this time. The Second Circuit has
repeatedly held that where an action is commenced by, rather than against, a debtor, said action does
not fall within the scope of the automatic stay. See, e.g., Koolik v. Markowitz, 40 F.3d 567, 568 (2d
Cir. 1994) (per curiam) ("This Court has recognized that the automatic stay is applicable only to
proceedings 'against,' 11 U.S.C. § 362(a)(1), the debtor."); In re Berry Estates, Inc., 812 F.2d 67,

25

To date, Plaintiffs, the only parties currently of record in this action due to their failure
to serve Defendants, have not provided the Court with notice of Sonia Gonzalez's bankruptcy.
29

71 (2d Cir. 1987) ("The State court actions were brought by [the debtor] and were not subject to
either an automatic stay, or an ordered stay;" holding automatic stay provision applicable only to
actions against the bankrupt or to seizures of property of the bankrupt) (internal citation omitted),
cert. denied, 484 U.S. 819 (1987). See also In re Kauffman, 254 B.R. 781, 785 (Bankr. D.Conn.
2000) ("the automatic stay provision does not prevent entities against whom the debtor proceeds in
an offensive posture . . . from protecting their legal rights").26
Because Sonia Gonzalez commenced this action in an offensive posture on the very day she
filed her bankruptcy petition, it is clear that she filed it with intent to pursue and/or protect her
perceived legal rights. This action was plainly not filed "against the debtor" within the meaning of
11 U.S.C. § 362(a)(1). No automatic stay applies to this case.
Moreover, even were the Court to conclude otherwise – i.e., to construe the application of
11 U.S.C. § 362(a) to encompass Plaintiffs' federal action as potentially affecting Sonia Gonzalez's

26

See also Victor Foods, Inc. v. Crossroads Econ. Dev. of St. Charles County, Inc., 977
F.2d 1224, 1226-27 (8th Cir.1992) (debtor's "bankruptcy does not toll the statute because the
automatic stay applies to actions filed against rather than by" debtor); Martin–Trigona v. Champion
Fed. Sav. and Loan Ass'n, 892 F.2d 575, 577 (7th Cir.1989) (recognizing that "[t]he Second and
Third Circuits have held the automatic stay applicable only to actions against the bankrupt or to
seizures of property of the bankrupt"); Carley Capital Group v. Fireman's Fund Ins. Co., 889 F.2d
1126 (D.C. Cir.1989)(per curiam) (the automatic stay provision of section 362 "by it terms only
stays proceedings against the debtor," and "does not address actions brought by the debtor which
would inure to the benefit of the bankruptcy estate") (footnote omitted); In re Financial News
Network Inc., 158 B.R. 570, 573 (S.D.N.Y. 1993) ("Since section 362 mandates a stay only of
litigation 'against the debtor' designed to seize or exercise control over the property of the debtor, 11
U.S.C. § 362(a), it does not prevent entities against whom the debtor proceeds in an offensive
posture – for example, by initiating a judicial or adversarial proceeding – from "protecting their legal
rights."). Accord DiLieto v. County Obstetrics and Gynecology Group, No. CV970150435S, 2000
WL 278699, at *2 (Conn. Super. Ct. Feb. 29, 2000) ("federal cases construing 11 U.S.C. § 362(a)(3)
have consistently limited its application to proceedings against debtors, not actions brought by
them.") (collecting cases).
30

property as a debtor, the outcome would be no more fortuitous for Plaintiffs. Under those
circumstances, the automatic stay would preclude the action from its commencement, rendering it
void ab initio. See, e.g., Wright v. Tarragon Management, Inc., NO. KNLCV116011620, 54 Conn.
L. Rptr. 10, 2012 WL 2044564, at *2 (Conn Super. Ct. May 11, 2012) ("[T]he automatic stay
precludes the filing of this matter because the bankruptcy proceedings were instituted before the
present action was filed;" and, "[a]s a result, the plaintiff's commencement of this case is in violation
of the automatic stay, and is void ab initio and of no effect.") An action commenced in violation
of the automatic stay is void ab initio. Consequently, the Court would lack jurisdiction to consider
this matter from its very inception.
In the case at bar, the Bankruptcy Court dismissed Plaintiff's bankruptcy petition on March
31, 2004 [Bankruptcy Case No. 14-20063, Doc. 27];27 and the case was concluded on April 17, 2014.
Even were this Court to retroactively consider the present case stayed during the bankruptcy
proceedings, and then revived upon their termination on April 17, 2014, the Court would still be
obligated to dismiss the action for lack of subject matter jurisdiction for the reasons stated supra.
The Court has no "federal question" or "diversity of citizenship" subject matter jurisdiction.
Moreover, due to the substance of Plaintiffs' "claims" in the action, it is barred by the RookerFeldman doctrine. 28

27

See Bankruptcy Case No. 14-20063, Doc. 27 ("Order Dismissing Chapter 13 Case,"
filed March 31, 2014).
28

The record of Gonzalez's bankruptcy case also reflects that upon motion by Deutsche
Bank and after a hearing, the Bankruptcy Court (Dabrowski, C.J.) specifically granted Deutsche
Bank relief from the automatic stay pursuant to 11 U.S.C. § 362(d) to permit Deutsche Bank to
"commence, continue and prosecute an eviction with respect to the real property located at 54 Abbe
Road, East Windsor, CT 06088, in accordance with state law." See Bankruptcy Case No. 14-20063,
Doc. 25 ("Order Granting Motion for Relief from Stay," filed March 10, 2014).
31

IV. CONCLUSION
For the above-mentioned reasons, Plaintiffs' Amended Complaint [Doc. 9] is DISMISSED
WITH PREJUDICE. Plaintiffs' pending motions, requesting discovery from Defendants [Doc. 2 and
3] and a stay of ejection from the East Windsor Property [Doc. 6] are all DENIED AS MOOT.
Plaintiffs have now brought three federal actions in this Court regarding the Connecticut state
court's foreclosure of real property located at 54 Abbe Road in East Windsor, Connecticut. Plaintiffs
are cautioned that it is an abuse of the federal justice system to repeatedly re-file claims which have
been dismissed with prejudice by the Court in an attempt to revive them. Plaintiffs are thus
cautioned that future initiation of another action in this Court – the filing of complaints, petitions,
or other pleadings – regarding the foreclosure of the East Windsor Property will once again violate
the Rooker-Feldman doctrine. Any such action will be regarded as "frivolous," subjecting Plaintiffs
not only to dismissal but to possible imposition of a fine pursuant to Rule 11, Fed. R. Civ. P.
The Clerk is directed to close the file.
It is SO ORDERED.
Dated: New Haven, Connecticut
February 25, 2015

/s/Charles S. Haight, Jr.
CHARLES S. HAIGHT, JR.
Senior United States District Judge

32