Rogowitz v. The Mallard Lake Community Association, Inc.
MEMORANDUM OPINION. Signed by Judge Richard G. Andrews on 5/9/2022. (nms)
Case 1:21-cv-01776-VAC Document 14 Filed 05/09/22 Page 1 of 5 PageID #: 185
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JOHN RICHARD ROGOWITZ,
: Civil Action No. 21-1776-VAC
THE MALLARD LAKE COMMUNITY
ASSOCIATION , INC. ,
jbhn Richard Rogowitz, Selbyville , Delaware. Pro Se Plaintiff
Eileen M. Ford , Esquire, Marks, O'Neill, O'Brien , Doherty & Kelly, P.C ., Wilmington ,
Delaware. Counsel for Defendant.
rv, ay 9, 2022
Wilmington , Delaware
Case 1:21-cv-01776-VAC Document 14 Filed 05/09/22 Page 2 of 5 PageID #: 186
ANDREWS, U.S. District Judge:
Plaintiff John Richard Rogowitz appears pro se and proceeds in forma pauperis.
He commenced this action on December 20 , 2021 . (D .I. 2) . Before the Court had an
opportunity to screen the case, Defendant filed motions to dismiss. (D .I. 10, 12). The
Court proceeds to screen the Complaint pursuant to 28 U.S.C . § 1915(e)(2)(B).
The following facts are taken from the Complaint and assumed to be true for
purposes-of screening the Complaint. See Umland v. PLANCO Fin. Servs. , Inc., 542
F·.3d 59, 64 (3d Cir. 2008). Plaintiff filed this matter as a complaint and request for
fnjunction. (D.I. 2). He asserts this Court has jurisdiction by reason of a federal
l:r6estion and diversity of citizenship . (Id. at 3) . The civil cover sheet refers to this
matter as a foreclosure action . (D .I .2-2). The Complaint alleges that "a cloud on all
title activity exists due to no definitive claimant of ownership of the due notes due to
d,lvergent paths taken by both the mortgage note and by the deed of trust. " (D.I. 2 at 4) .
Plaintiff alleges the denial of his right to "due process and constitutional rights per
improper mortgage company procedures , both servicing through an independent
B ker/realtor, and otherwise, and including , but not limited to , improper noticing for
ffi ortgage note and deed activities ." (Id. at 5) . Plaintiff seeks compensatory and
pLnitive damages. (Id.) .
SCREENING OF COMPLAINT
A federal court may properly dismiss an action sua sponte under the screening
provisions of 28 U.S.C. § 1915(e)(2)(B) if "the action is frivolous or malicious , fails to
~ ate aclaim
upon which relief may be granted, or seeks monetary relief from a
Case 1:21-cv-01776-VAC Document 14 Filed 05/09/22 Page 3 of 5 PageID #: 187
defendant who is immune from such relief." Ba// v. Famiglio , 726 F.3d 448 , 452 (3d Cir.
2013). See also 28 U.S.C . § 1915(e)(2) (in forma pauperis actions) . The Court must
accept all factual allegations in a complaint as true and take them in the light most
favorable to a prose plaintiff. Phillips v. County of Allegheny, 515 F.3d 224 , 229 (3d
Cir. 2008) ; Erickson v. Pardus , 551 U.S. 89, 93 (2007) . Because Plaintiff proceeds pro
se, his pleading is liberally construed and his Complaint, "however inartfully pleaded ,
fn ust be held to less stringent standards than formal pleadings drafted by lawyers. "
b ickson v:·Pardus, 551 U.S. at 94 .
A complaint is not automatically frivolous because it fails to state a claim. See
Wooley v. Wetzel, 957 F.3d . 366, 374 (3d Cir. 2020) . "Rather, a cla im is frivolous only
Where it depends 'on an "indisputably meritless legal theory" or a "clearly baseless" or
"fantastic or delusional" factual scenario ."' Id.
The legal standard for dismissing a complaint for failure to state a claim pursuant
·o§ 1915(e)(2)(B)(ii) is identical to the legal standard used when ruling on Rule 12(b)(6)
· otions . Tourscherv. McCullough , 184 F.3d 236 , 240 (3d Cir. 1999). However, before
rsmissing a complaint or claims for failure to state a claim upon which relief may be
Yranted pursuant to the screening provisions of 28 U.S.C. § 1915, the Court must grant
Plaintiff leave to amend his complaint unless amendment would be inequitable or futile .
See Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002) .
A well-pleaded complaint must contain more than mere labels and conclusions .
See Ashcroft v. Iqbal, 556 U.S. 662 (2009) ; Bell At/. Corp. v. Twombly, 550 U.S. 544
(2007). A plaintiff must plead facts sufficient to show that a claim has substantive
plausibility. See Johnson v. City of Shelby, 574 U.S.10 (20 14) . A compla int may not
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dismissed , however, for imperfect statements of the legal theory supporting the claim
serted. See id. at 11 .
A court reviewing the sufficiency of a complaint must take three steps: (1) take
~·ote of the elements the plaintiff must plead to state a claim ; (2) identify allegations that,
because they are no more than conclusions , are not entitled to the assumption of truth ;
and (3) when there are well-pleaded factual allegations, assume their veracity and then
€:letermine whether they plausibly give rise to an entitlement to relief. Connelly v. Lane
Constr. Corp. , 809 F.3d 780 , 787 (3d Cir. 2016) . Elements are sufficiently alleged when
the facts in the complaint "show" that the plaintiff is entitled to relief. Iqbal, 556 U.S. at
679 (quoting Fed . R. Civ. P. 8(a)(2)). Deciding whether a claim is plausible will be a
"context-specific task that requires the reviewing court to draw on its judicial experience
and common sense." Id.
The Complaint will be dismissed for lack of jurisdiction . I have reviewed the
t ·omplaint and it does not raise a federal civil claim for violations of the United States
6 onstitution or federal statutes . See 28 U.S.C. § 1331. Plaintiff alleges violations of his
right to due process and constitutional rights in a conclusory manner, yet the Complaint
§tates no such claims. In addition , both parties are in domiciled in Delaware and ,
therefore, there is no diversity of citizenship as required for diversity jurisdiction. See 28
U.S.C. § 1332.
The Court does not have jurisdiction over this matter. Therefore, the case w ill be
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For the above reasons , the Court will : (1) dismiss as moot the pending motions
to dismiss; and (2) dismiss the Complaint for want of jurisdiction. The Court finds
An appropriate Order will be entered.
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