Oxman et al v. Oxman et al

Filing 138

ORDER granting 42 Motion to Dismiss for Lack of Jurisdiction; granting 48 Motion to Dismiss for Lack of Jurisdiction; granting 80 Motion to Dismiss; granting 89 Motion to Set Aside Default; granting 90 Motion to Dismiss; granting 94 Motion to Set Aside Default; granting 96 Motion to Dismiss; granting 101 Motion to Vacate; granting 101 Motion to Dismiss for Lack of Jurisdiction; granting 102 Motion to Dismiss for Lack of Jurisdiction; denying 108 Motion for Default Judgment; denying 113 Motion to Amend/Correct; denying as moot 116 Motion for Extension of Time ; denying as moot 117 Motion for Extension of Time. Signed by Judge Dominic J. Squatrito on 9/13/17. (Glynn, T.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ELLEN OXMAN,
Plaintiff,
v.
JOHN CRAIG OXMAN, DAVID
CRAIG OXMAN, CATE KEENEY,
PETER BRONSTEIN, DAVID
TYPERMAAS, MICHAEL D.
STUTMAN, ANGELA FLOREA,
CARMELLA P. BUDKINS,
JOHN DOES 1-20, and
JANE DOES 1-20,
Defendants.

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No. 3:16cv1304 (DJS)

RULING ON MOTIONS
The plaintiff, Ellen Oxman (“Oxman”), brings this action pursuant to 42 U.S.C. § 1983
against eight named defendants,1 claiming that her constitutional rights were violated by these
defendants on the basis of an “illegal ‘Judgment’ (of Divorce)” entered by a New York state
court and the ensuing “unlawful loss of her home and its contents at 9 Paddock Drive, Greenwich
Connecticut.” (Doc. # 40, at 3-4, ¶ 6 and at 9, ¶ 14). Oxman also raises a Hobbs Act claim, a
mail fraud claim, and various state law claims. Pending before the Court are motions to dismiss
filed by seven of the defendants, motions to set aside default filed by the defendants John Craig
Oxman (“John Oxman”), Carmella P. Budkins (“Budkins”), and David Typermaas
(“Typermaas”), the plaintiff’s motion for default judgment, and the plaintiff’s motion to further
1

The caption of the Second Amended Complaint also names “Jane Does 1-20” and “John
Does 1-20” as defendants, but there is no reference to a Jane Doe or John Doe defendant in any
of the factual allegations within the Second Amended Complaint. Whatever the plaintiff may
have intended by including the Doe defendants in the caption of the Second Amended
Complaint, the Court concludes that the plaintiff has failed to state a colorable claim against any
Doe defendant.

amend her Complaint. For the reasons stated below, the defendants’ motions to dismiss and to set
aside default are granted and the plaintiff’s motions for default judgment and to further amend
her Complaint are denied.2
A. PROCEDURAL BACKGROUND
Oxman filed her original Complaint on August 1, 2016, requesting that the Court issue
orders “vacating the illegal Quitclaim Deeds for the property [located at] 9 Paddock Drive,
Greenwich, Ct.” and “vacating default judgment entered against Plaintiff [in New York state
court] on or about 1 November 2006.” (Doc. # 1, at 1). The Court (Shea, J.) entered an Order on
August 2, 2016, directing the plaintiff to show cause “why this case should not be dismissed for
lack of jurisdiction” and to file an amended complaint that, among other things, contained “a
short and plain statement of the grounds for the court’s jurisdiction .” (Doc. # 6).
The plaintiff filed an Amended Complaint on October 3, 2016. This Court dismissed the
Amended Complaint without prejudice on October 12, 2016, and directed the plaintiff to file a
further amended complaint that complied with the requirements of the Federal and Local Rules
of Civil Procedure and to also file a document addressing the issue of jurisdiction. The plaintiff
filed her Second Amended Complaint on November 7, 2016. On December 8, 2016, the Court,
having concluded that it lacked subject matter jurisdiction over all of the plaintiffs’s federal
claims, dismissed the plaintiff’s federal claims with prejudice and dismissed without prejudice
her state law claims. Judgment entered in favor of the defendants against the plaintiff on
December 8, 2016.
2

Two of the defendants, Michael D. Stutman and Carmella P. Budkins, also filed motions
for an extension of time to respond to the plaintiff’s motion to further amend her Complaint. In
light of the Court’s denial of the plaintiff’s motion to amend, the defendants’ motions for
extension of time are denied as moot.
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At the time the Court dismissed the plaintiff’s claims, two of the named defendants had
filed motions to dismiss. The plaintiff had been granted an extension of time to February 13,
2017 to respond to one of the motions, and she had moved for an extension of time to respond to
the second motion to dismiss. On December 19, 2016, the plaintiff filed a motion for
reconsideration in which she requested that the Court vacate the Judgment entered on December
8, 2016. In her motion for reconsideration, the plaintiff contended that was deprived of the
opportunity to respond to the arguments and issues raised in the defendants’ motions to dismiss,
and that this gave the Court “the appearance of not being impartial.” (Doc. # 69, at 2).
Although the Court’s December 8, 2016 Ruling and Order was not a direct response to
either of the two pending motions to dismiss, but related instead to the Order to Show Cause
regarding jurisdiction issued by Judge Shea on August 2, 2016, the Court recognized that the
issues discussed in the December 8, 2016 Ruling and Order were also raised in the defendants’
motions to dismiss, and that, based upon the filing of those motions, the plaintiff might have
concluded that she had additional time to respond to those issues. For that reason, the Court
granted the plaintiff’s motion for reconsideration and provided her with an opportunity to
respond to all of the claims raised in the defendants’ motions to dismiss. After the Court granted
the plaintiff’s motion for reconsideration, five additional defendants filed motions to dismiss.
The plaintiff subsequently sought, and was granted, multiple extensions of time to respond to the
seven pending motions to dismiss.
In response to a motion for entry of default against seven of the defendants, an entry of
default was entered in the record as to the defendants John Oxman, Angela Florea (“Florea”),
Budkins, and Typermaas on January 27, 2017. In its Order granting in part the plaintiff’s motion
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for entry of default, the Court noted that “[b]ecause there are serious questions as to whether the
Court has subject matter jurisdiction over this matter . . . and whether the allegations in the
Complaint otherwise establish the liability of any [of] the named defendants, the Court hereby
stays any further action relating to the entry of a default judgment against any of the defendants
until such time as the Court has ruled on the pending motions to dismiss that raise these issues.”
(Doc. # 86). The defendants John Oxman, Budkins, and Typermaas each subsequently filed a
motion to set aside the default that had been entered against him or her.

B. DISCUSSION
I. MOTIONS TO DISMISS
While they are not identical, all seven of the motions to dismiss raise similar issues,
including the claim that the Court lacks subject matter jurisdiction over this action. “A plaintiff
seeking to bring a lawsuit in federal court must establish that the court has subject matter
jurisdiction over the action.” McNeill v. Lee’s Toyota, 16-CV-02058 (NGG), 2016 U.S. Dist.
LEXIS 63556, at *5 (E.D.N.Y. May 13, 2016). Where subject matter jurisdiction is lacking, the
suit must be dismissed. Id. A district court may “dismiss for lack of subject matter jurisdiction - even if a federal claim is asserted on the face of the complaint - - where the federal question is
so plainly insubstantial as to be devoid of any merits and thus does not present any issue worthy
of adjudication.” Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1189 (2d Cir.
1996) (internal quotation marks and alterations omitted). “Although courts are generally limited
to examining the sufficiency of the pleadings on a motion to dismiss, on a challenge to a district
court’s subject matter jurisdiction, the court may also resolve disputed jurisdictional fact issues
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by reference to evidence outside the pleadings.” Licci v. Lebanese Canadian Bank, SAL, 834
F.3d 201, 211 (2d Cir. 2016).
i. Rooker-Feldman
Although the allegations contained in the plaintiff’s Second Amended Complaint are
couched in terms of fraud and violations of constitutional rights, it is apparent that the injuries
the plaintiff claims she has sustained all relate back to the Judgment of the New York Supreme
Court entered in the plaintiff’s divorce case in 2006 and the consequences flowing from that
Judgment, e.g., the transfer of the 9 Paddock Drive property to John Oxman.
The record as it pertains to the New York divorce action demonstrates the following: The
plaintiff initiated a divorce action against the defendant John Oxman in 2004. On November 1,
2006, a Judgment of Divorce was entered in the New York Supreme Court in the divorce action
the plaintiff had initiated in 2004. The Judgment of Divorce, which indicated that the parties had
entered into a written Stipulation of Settlement dated October 27, 2006, included the following
provision:
ORDERED AND ADJUDGED that the written Stipulation subscribed
to by the parties hereto and acknowledged in the form required to
entitle a deed to be recorded, a copy of which was submitted with the
Findings of Fact and Conclusions of Law, is hereby incorporated by
reference herein, and such Stipulation shall survive as an
independent contract and not be merged in this judgment, and the
parties are hereby directed to comply with every legally enforceable
term and provision of such Stipulation . . . .
(Doc. # 91-1, at 6).
The Stipulation of Settlement referenced in the court’s Judgment of Divorce included the
following provisions:

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13. The parties are the owners, without encumbrances of any kind,
of a house and land located at 9 Paddock Drive, Greenwich,
Connecticut 06831 (hereafter, “Greenwich”), where they have
heretofore resided. The defendant [John Craig Oxman] shall have
sole ownership and exclusive use and occupancy of Greenwich from
and after the execution of this Stipulation of Settlement.
14. The plaintiff [Ellen Oxman] hereby conveys all her right,
title and interest in Greenwich to the defendant. Simultaneously
with the execution of this Stipulation of Settlement, the plaintiff
shall execute a quitclaim deed, together with any and all
documents required by Connecticut law, duly executed and
acknowledged and in recordable form, to effectively convey her
interest in Greenwich to the defendant.
(Doc. # 91-2, at 4).

In 2016, the plaintiff filed a motion in the New York Supreme Court seeking to vacate the
2006 Judgment of Divorce and Stipulation of Settlement. In that motion, the plaintiff claimed:
that her signature on the Stipulation was forged; that the Stipulation
was entered without her knowledge; that she was never represented
by Michael Stutman, Esq. (the attorney who signed the Stipulation and
approved the Judgment of Divorce), that Defendant’s prior counsel
inappropriately notarized her forged signature and signed the
Stipulation as her counsel; that the marital assets were never
properly valued and that notice of entry of the Judgment of Divorce
was never filed.
(Doc. # 91-4, at 3-4). The New York state court denied the plaintiff’s motion to vacate. In
addition to concluding that the plaintiff had failed to raise her objections in a timely manner, the
New York state court found that in other post-judgment proceedings “Plaintiff attested to the
validity of the Stipulation and Judgment of Divorce. She never claimed her signature was forged
or that she was not represented at the time the Stipulation and Judgment were entered.” (Id. at 4).
“Under the Rooker-Feldman doctrine, federal district courts lack jurisdiction over cases

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that essentially amount to appeals of state court judgments.” Vossbrinck v. Accredited Home
Lenders, Inc., 773 F.3d 423, 426 (2d Cir. 2014). “Under Rooker-Feldman, a district court may
not review a claim that is ‘inextricably intertwined’ with a state court’s judgment.” Simpson v.
Putnam County National Bank of Carmel, 20 F. Supp. 2d 630, 633 (S.D.N.Y. 1998) (quoting
D.C. Court of Appeals v. Feldman, 460 U.S. 462, 483 n.16 (1983)). The Rooker-Feldman
doctrine has four requirements: “(1) the federal court plaintiff lost in state court; (2) the plaintiff
complains of injuries caused by a state court judgment; (3) the plaintiff invites the federal court
to review and reject that judgment; and (4) the state court judgment was rendered prior to the
commencement of proceedings in the district court.” Brodsky v. Carter, 673 F. App’x 42, 43 (2d
Cir. 2016). “[I]n determining whether the doctrine applies, the key inquiry is whether the
complaint alleges an injury caused by a state court judgment.” Id.
It is readily apparent that the plaintiff is complaining in this federal action of injuries that
flow from the Judgment of Divorce entered in the New York Supreme Court in 2006 and the
2016 denial of her motion to vacate that Judgment. All of her claims relate back to those state
court decisions, including the incorporation of the Stipulation of Settlement into the Judgment of
Divorce. It is equally apparent that she is inviting this Court to review and reject those state court
decisions. With respect to timing, the New York state court decision denying the plaintiff’s
motion to vacate the Judgment of Divorce and the Stipulation of Settlement issued on May 10,
2016. The plaintiff filed this federal action on August 1, 2016.
The Court concludes that the Rooker-Feldman doctrine applies and, as a result, this Court
lacks subject matter jurisdiction over the plaintiff’s claims. The plaintiff’s assertion that the New
York Judgment of Divorce was illegally obtained as a result of fraud does not prevent the
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application of the Rooker-Feldman doctrine. “[E]ven if the state court judgment was wrongfully
procured, it is effective and conclusive until it is modified or reversed in the appropriate State
appellate or collateral proceeding.” Gonzalez v. Ocwen Home Loan Servicing, 74 F. Supp. 3d
504, 517 (D. Conn. 2015) (internal quotation marks omitted). Because the Court lacks subject
matter jurisdiction over the plaintiff’s claims, her Second Amended Complaint must be
dismissed.
ii. Section 1983
The plaintiff has made it clear that she seeks to invoke the Court’s jurisdiction on the
basis of a federal question, specifying that her Second Amended Complaint is “a civil action
under 42 U.S.C. 1983 . . . [brought] to vindicate her federal constitutional rights in United
States District Court, District of Connecticut.” (Doc. # 40-1, at 1, ¶ 1 and at 2, ¶ 2). The Second
Amended Complaint includes the following claims brought pursuant to 42 U.S.C. § 1983
(“Section 1983”): Count One, Violation of First Amendment Rights; Count Two, Fourteenth
Amendment Violation; and Count Three, Monell Claims.
In the Court’s December 8, 2016 Ruling and Order3 the plaintiff was advised that Section
1983 “‘excludes from its reach merely private conduct, no matter how discriminatory or
wrongful.’” (Doc. # 65, at 3-4) (quoting American Manufacturers Mutual Insurance Co. v.
Sullivan, 526 U.S. 40, 50 (1999)). The plaintiff was further advised that her Second Amended
Complaint “is devoid of any allegations that would support a finding that any defendant other
than Carmella P. Budkins . . . acted under color of state law.” (Doc. # 65, at 4).
Despite clear direction from the Court on this point, and despite the fact many of the
3

This Ruling and Order was subsequently vacated when the Court granted the plaintiff’s
motion for reconsideration. (Doc. # 75).
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pending motions to dismiss also raise this issue, the plaintiff fails to address this issue in her
responses to the motions. The Court once again concludes that even though “a federal claim is
asserted on the face of the complaint . . . [as to these defendants] the federal question is so plainly
insubstantial as to be devoid of any merits and thus does not present any issue worthy of
adjudication.” Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1189 (2d Cir. 1996)
(internal quotation marks and alterations omitted). For this additional reason, the Court lacks
subject matter jurisdiction over the Section 1983 claims against John Craig Oxman, David Craig
Oxman, Angela Florea, Michael D. Stutman, Cate Keeney, David Typermaas, and Peter
Bronstein.
“A claim alleging federal-question jurisdiction may be dismissed for want of subjectmatter jurisdiction if it is not colorable, i.e., if it is immaterial . . . or is wholly insubstantial and
frivolous.” McNeill v. Lee’s Toyota, 16-CV-02058 (NGG), 2016 U.S. Dist. LEXIS 63556, at *6
(E.D.N.Y. May 13, 2016) (internal quotation marks omitted). With regard to the defendant
Budkins, the Court previously concluded that “[t]he Second Amended Complaint does not state a
colorable claim of a constitutional violation attributable to the defendant Budkins.” (Doc. # 65, at
6). In support of her motion to dismiss, Budkins also argues that the Second Amended Complaint
“fails to allege any facts that would support any ‘federal question’ cause of action against Ms.
Budkins because Plaintiff’s allegations lack any foundation in fact or law . . . .” (Doc. # 103, at
2).
The plaintiff alleges that Budkins, in her capacity as the Town Clerk for Greenwich,
Connecticut, accepted and recorded a defective quitclaim deed concerning the property located at
9 Paddock Drive, Greenwich, Connecticut. The plaintiff then asserts that she “lost her home and
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her personal property on a fully fraudulent Quitclaim Deed to 9 Paddock Drive Greenwich Ct
because of a failure to oversee the Town Clerk by the Town of Greenwich, Connecticut” and a
“fail[ure] to train its employees.” (Doc. # 40, at 21, ¶¶ 55, 56). According to the plaintiff, “the
Defendants are liable to Plaintiff pursuant to 42 U.S.C. 1983 – Monell Claims, for punitive
damages, and financial damages to be determined . . . .” (Id. at 22, ¶ 58).
In Monell v. Department of Social Services, 436 U.S. 658 (1978), the Supreme Court held
that local governments are subject to suit under Section 1983 where “the action that is alleged to
be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision
officially adopted and promulgated by that body’s officers.” Id. at 690. In all cases alleging
municipal liability under Section 1983, there must be “a direct causal link between a municipal
policy or custom and the alleged constitutional deprivation.” City of Canton v. Harris, 489 U.S.
378, 385 (1989).
The factual allegations pertaining to Budkins, i.e., that she accepted and recorded a
defective quitclaim deed, do not state a claim to relief under Section 1983 that is plausible on its
face. Those facts would not permit the Court to draw the reasonable inference that Budkins
violated a constitutional right held by the plaintiff, much less that there was “a direct causal link
between a municipal policy or custom and the alleged constitutional violation.” Id. For this
additional reason, the Section 1983 claim against Budkins is dismissed for lack of subject matter
jurisdiction.
iii. The Hobbs Act and Mail Fraud Claims
The Second Amended Complaint also includes claims of mail fraud, based on 18 U.S.C.
§ 1341 (The Mail Fraud Act), and unlawful search and seizure/extortion, based on 18 U.S.C. §
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1951 (The Hobbs Act). The Mail Fraud Act and The Hobbs Act are criminal statutes. Neither of
them provides a private cause of action. See Official Publications, Inc. v. Kable News Co., 884
F.2d 664, 667 (2d Cir. 1989) (The Mail Fraud Statute); Barge v. Apple Computer, Inc., No. 979068, 1998 U.S. App. LEXIS 22044, at *4-5 (2d Cir. Aug. 21, 1998) (The Hobbs Act).
Consequently the Complaint fails to state a colorable claim under either The Mail Fraud Act or
The Hobbs Act. This is an additional reason why those claims are subject to dismissal.

iv. State Law Claims
In her Second Amended Complaint the plaintiff raises several state law claims, i.e., unjust
enrichment, breach of fiduciary duties, and intentional infliction of emotional distress.
The Court has already concluded that it lacks subject matter jurisdiction over all of the plaintiff’s
claims on the basis of the Rooker-Feldman doctrine. With regard to the plaintiff’s state law
claims, the Court also notes that “[w]hile the district court may, at its discretion, exercise
supplemental jurisdiction over state law claims even where it has dismissed all claims over
which it had original jurisdiction, it cannot exercise supplemental jurisdiction unless there is first
a proper basis for original federal jurisdiction.” Nowak, 81 F.3d at 1187 (citation omitted). The
Court has otherwise concluded that it lacks subject matter jurisdiction over all of the plaintiff’s
federal claims. Consequently, the Court could not, apart from the Rooker-Feldman doctrine,
exercise supplemental jurisdiction over the plaintiff’s state law claims.
II. MOTIONS TO SET ASIDE DEFAULT AND FOR DEFAULT JUDGMENT
“[P]rior to entering default judgment, a district court is required to determine whether the
plaintiff’s allegations establish the defendant’s liability as a matter of law.” City of New York v.
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Mickalis Pawn Shop, LLC, 645 F.3d 114, 137 (2d Cir. 2011) (internal quotation marks and
alterations omitted). Because the Court has determined that the plaintiff’s allegations fail to
establish the liability of any defendant as a matter of law, and, indeed, has determined that it
lacks subject matter jurisdiction over the plaintiff’s claims, the Court finds it appropriate to grant
the motions to set aside default filed by the defendants John Oxman, Budkins, and Typermaas.
The Court also recognizes that a certain amount of uncertainty may have resulted from the
December 8, 2016 dismissal of the plaintiff’s claims for lack of subject matter jurisdiction and
subsequent granting of the plaintiff’s motion for reconsideration. The Court finds that uncertainty
to be an additional reason to grant the motions to set aside default.
With regard to the plaintiff’s motion for default judgment, the Court has concluded that it
lacks subject matter jurisdiction over the plaintiff’s claims. Consequently the motion for default
judgment must be denied.
III. MOTION TO FURTHER AMEND THE COMPLAINT
In her motion to further amend her complaint, the plaintiff represents that her proposed
third amended complaint “adds heretofore new and unseen documents and information that
attempts to clarify the fraudulent schemes around the intentional and deliberate ‘loss’ of Plaintiff
‘Ellen Oxman’s’ home and its contents at 9 Paddock Drive, Greenwich, Connecticut.” (Doc. #
113, at 2). The plaintiff also seeks to add a ninth defendant, an attorney who, according to the
plaintiff, “remains the Plaintiff ‘Ellen Oxman’s’ attorney of record in the underlying matter that
caused Plaintiff to lose Plaintiff ‘Ellen Oxman’s’ home at 9 Paddock Drive, Greenwich,
Connecticut.” (Id.).
The plaintiff has already amended her Complaint twice. By virtue of the Court’s
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December 8, 2016 Ruling and Order, as well as the seven motions to dismiss filed by the
defendants, she has been fully informed of the deficiencies in her pleadings. Despite the
numerous paragraphs in the proposed third amended complaint that cite various federal statutes
pursuant to which, according to the plaintiff, this Court has jurisdiction, the proposed third
amended complaint does not remedy the fundamental jurisdictional defects previously discussed
in this opinion. The fact remains that all of the plaintiff’s claims are “‘inextricably intertwined’
with a state court’s judgment,’” Simpson v. Putnam County National Bank of Carmel, 20 F.
Supp. 2d 630, 633 (S.D.N.Y. 1998) (quoting D.C. Court of Appeals v. Feldman, 460 U.S. 462,
483 n.16 (1983)). Additionally, all but one of the defendants, including the proposed ninth
defendant, is a private actor. See Ciambriello v. County of Nassau, 292 F.3d 307, 324 (2d Cir.
2002) (“A merely conclusory allegation that a private entity acted in concert with a state actor
does not suffice to state a § 1983 claim against the private entity.”).4
Although the Federal Rules of Civil Procedure provide that leave to amend a complaint
should be granted freely, it is within the Court’s discretion to grant or deny leave to amend and
futility of the amendment is a reason to deny such leave. See John Hancock Mutual Life
Insurance Co. v. Amerford International Corp., 22 F.3d 458, 462 (2d Cir. 1994). The Court
concludes that the proposed amendment of the Complaint would be futile and denies the
plaintiff’s motion to amend.
CONCLUSION
For the reasons stated above, the Court GRANTS the motions to dismiss filed by the
4

Although the Court did not find it necessary to address them, additional defenses raised
in the motions to dismiss appear on their face to have merit. These defenses include applicable
statutes of limitations and lack of personal jurisdiction over certain defendants.
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following defendants: Michael D. Stutman (doc. # 42), Cate Keeney (doc. # 48), Peter Bronstein
(doc. # 80), John Craig Oxman (doc. # 90), David Craig Oxman (doc. # 96), David Typermaas
(doc. # 101), and Carmella P. Budkins (doc. # 102).
The Court further GRANTS the motions to set aside default filed by the defendants John
Craig Oxman (doc. # 89), Carmella P. Budkins (doc. # 94), and David Typermaas (doc. # 101).
The Court DENIES as moot the motions for extension of time filed by the defendants
Michael D. Stutman (doc. # 116) and Carmella P. Budkins (doc. # 117).
The Court DENIES the plaintiff’s motion for default judgment (doc. # 108) and motion
to amend (doc. # 113).

This action is dismissed and the Clerk is directed to close this case.

SO ORDERED this 13th

day of September, 2017.

_________/s/ DJS__________________________
Dominic J. Squatrito
United States District Judge

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