Riley v. Cardozo et al

Filing 60

ORDER granting 25 Memorandum of Law in Support of the New York State Defendants' Motion to Dismiss Plaintiff's Amended Complaint; 30 Defendant's Alex S. Avitabile's Motion to Dismiss Plaintiff's Amended Complaint, wit h Prejudice, and Memorandum of Law in Support Thereof; and 32 Motion to Dismiss or to Transfer Venue on Behalf of Defendants New York City and Michael A. Cardozo to the extent that Plaintiff's claims against Defendants Alex S. Avitabile, Inga M. O'Neal, Nancy T. Sunshine, the City of New York, and Michal A. Cardozo are dismissed without prejudice for lack of personal jurisdiction. Plaintiff shall have up to and including July 14, 2017, to show cause why the Court should not dismiss her claims against Defendant Jay S. Markowitz without prejudice for lack of personal jurisdiction. Signed by Judge Marcia Morales Howard on 6/28/2017. (JW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
BARBARA J. RILEY,
Plaintiff,
Case No. 3:16-cv-961-J-34MCR
vs.
MICHAEL A. CARDOZO, Individual in his
Manhattan Attorney capacity, Esquire,
et al.,
Defendants.
/
ORDER
THIS CAUSE is before the Court on several motions. Plaintiff Barbara J. Riley, pro
se, initiated this action on July 28, 2016. See Complaint Verified for Civil Rights Violations
(Doc. 1). On August 1, 2016, Riley filed her Amended Complaint Verified for Civil Rights
(Doc. 4; Amended Complaint) in which she asserts claims under 42 U.S.C. §§ 1983, 1985,
and 1988 against Defendants Michael A. Cardozo, Alex S. Avitabile, Inga M. O’Neale,
Nancy T. Sunshine, Jay S. Markowitz, and the City of New York (the City). Along with the
Amended Complaint, Riley also filed Plaintiff’s Affidavit in Support of Amended Complaint
(Doc. 5; Riley Aff.). Thereafter, Defendants Cardozo, Avitabile, O’Neale, Sunshine, and
the City of New York (Defendants) filed motions to dismiss this action pursuant to Rule
12(b), Federal Rules of Civil Procedure (Rule(s)).1 See Memorandum of Law in Support
of the New York State Defendants’ Motion to Dismiss Plaintiff’s Amended Complaint (Doc.

1

The only Defendant who did not move for dismissal is Jay S. Markowitz. Instead, on November 9,
2016, Markowitz filed an Answer (Doc. 39). In this Order, the Court refers to the defendants who filed Motions
to Dismiss collectively as “Defendants” and to Markowitz separately by name. Additionally, because
Markowitz did not file a motion to dismiss, the Court will address the claims against him separately in Part IV
of this Order.

25; State Motion), filed October 20, 2016; Defendant’s [sic] Alex S. Avitabile’s Motion to
Dismiss Plaintiff’s Amended Complaint, with Prejudice, and Memorandum of Law in
Support Thereof (Doc. 30; Avitabile Motion), filed October 25, 2016; Motion to Dismiss or
to Transfer Venue on Behalf of Defendants New York City and Michael A. Cardozo (Doc.
32; City Motion), filed October 25, 2016 (collectively, Motions).2 Riley responded to each
of these Motions. See Plaintiff’s Response Verified re 25 Non-Party Unlicensed Attorney’s
Motion to Dismiss of October 20, 2016 with Memorandum of Law and 4 Exhibits A to D
(Doc. 45; Response to State Motion), filed November 16, 2016; Response Verified re 30
With Legal Authorities with 5 Additional Exhibits A to E in Support as Proof in Rem Tax
Foreclosure Class Action No. 51 Not Commenced in Court Proving Sham Motion to
Dismiss with Sham Defenses of Unlicensed Counsel Gore is New Fraud on This Court
(Doc. 47; Response to Avitabile Motion), filed November 29, 2016; Response Verified re
32 With Legal Authorities With 5 Additional Exhibits A to E in Support as Proof in Rem Tax
Foreclosure Class Action No. 51 Not Commenced in Court Proving Sham Motion to
Dismiss with Sham Defenses of Unlicensed Counsel Leitch is New Fraud on this Court
(Doc. 46; Response to State Motion), filed November 29, 2016 (collectively, Responses).3
Accordingly, this matter is ripe for review.

2

On October 25, 2016, the City and Cardozo also filed a Notice of Joinder in the Legal Arguments I
and IV through VIII Raised by the New York State Defendants [Document 25, Including Exhibits] (Doc. 31).
3

The Court notes that Riley denotes a significant portion of her Responses to baseless, personal
attacks on the attorneys representing Defendants. Riley’s accusations are improper, and her contention that
these attorneys are not authorized to represent Defendants in this Court is frivolous. Riley is cautioned that
this manner of litigating not only does nothing to advance her claims, but also could lead to the imposition of
sanctions against her. Nonetheless, the Court has endeavored to carefully parse the Responses for any
arguments that might be relevant to the actual substance of the Motions.
Riley also has filed several other documents accusing the undersigned, the assigned Magistrate
Judge, and the Clerk’s Office staff of corruption, bias, prejudice and fraud. See Plaintiff’s Notice Verified re
The Deputy Clerks’ Ongoing Documents Filing Fraud Scheme Constituting Fraud on the Court by the Duputy
[sic] Clerks Involved (Doc. 48; Notice re Clerk), filed November 30, 2016; Plaintiff’s Objection to Void Order

2 

I.

Standard of Review
In the Motions, Defendants raise numerous arguments in support of dismissal,

including a lack of subject matter jurisdiction under the Rooker-Feldman doctrine and a
lack of personal jurisdiction. See generally Motions. Upon review, the Court finds the
personal jurisdiction analysis to be straightforward and dispositive. As such, the Court
exercises its discretion to address this argument first. See Sinochem Int’l Co. Ltd. v.
Malaysia Int’l Shipping Corp., 549 U.S. 422, 431 (2007) (“[J]urisdictional questions
ordinarily must precede merits determinations in dispositional order, [but] there is no
mandatory ‘sequencing of jurisdictional issues.’” (quoting Ruhrgas AG v. Marathon Oil Co.,
526 U.S. 574, 584 (1999))); Ruhrgas, 526 U.S. at 588 (“Where . . . a district court has
before it a straightforward personal jurisdiction issue presenting no complex question of

of U.S. District Judge Marcia Morales Howard of February 3, 2017 Fraudulently Denying Plaintiff’s Rule
60(B)(4) Motion Submitted With Clear Evidence (Doc. 55; Objection), filed February 8, 2017; Pro Se Plaintiff’s
Notice of Filing 3 Exhibits of Defendants’ Fraud on the New York State Unified Court System, Defendants’
59 Void Personal Judgments Without Pleadings and Defendants’ Fraud on this Court in Support of re 55
Plaintiff’s Objection to Void re 54 Order Denying re 53 Plaintiff’s Rule 60(b)(4) Motion (Doc. 58; Notice re
Fraud), filed March 28, 2017. Long on vitriol, and short on actual facts or evidence, the Court rejects Riley’s
accusations as entirely without merit. Indeed, with respect to the Clerk’s Office’s purported refusal to file her
documents, the Court notes that Riley does not identify a single document that she was unable to file, and
the docket reflects that Riley submitted briefs and evidence in response to all of Defendants’ Motions.
In addition, although Riley did not file a motion for recusal, it appears from the foregoing filings that
Riley believes that the undersigned’s recusal from this matter is warranted. See Notice re Fraud at 6;
Objection at 3. However, the sole basis for this request is Riley’s disagreement with the undersigned's rulings
in this matter. The undersigned has fully reviewed and considered the filings and finds that there is no reason
for the undersigned to recuse herself in this case. See Byrne v. Nezhat, M.D., 261 F.3d 1075, 1102-03 (11th
Cir. 2001) abrogated on other grounds by Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639 (2008);
McWhorter v. City of Birmingham, 906 F.2d 674, 678-79 (11th Cir. 1990); Ivey v. Snow, Civil Action No. 1:05CV-1150-JOF, 2007 WL 1810213, at *2 (N.D. Ga. June 21, 2007). As such, the undersigned is obligated to
continue to preside over this matter. See United States v. Greenough, 782 F.2d 1556, 1558 (11th Cir. 1986)
(“[A] judge, having been assigned to a case, should not recuse [her]self on unsupported, irrational, or highly
tenuous speculation.”); Lawal v. Winners Int'l Rests. Co. Operations, Inc., No. 1:04-CV-0913-WSD, 2006 WL
898180, at *4 (N.D. Ga. Apr. 6, 2006) (“‘A trial judge has as much obligation not to recuse [her]self when
there is no reason to do so as [s]he does to recuse [her]self when the converse is true.’” (quoting United
States v. Bray, 546 F.2d 851, 857 (10th Cir. 1976))); United States v. Malmsberry, 222 F. Supp. 2d 1345,
1349 (M.D. Fla. 2002) (“[A] judge has as strong a duty to sit when there is no legitimate reason to recuse as
[s]he does to recuse when the law and facts require.”).

3 

state law, and the alleged defect in subject-matter jurisdiction raises a difficult and novel
question, the court does not abuse its discretion by turning directly to personal
jurisdiction.”); see also Republic of Panama v. BCCI Holdings (Luxembourg) S.A., 119 F.3d
935 (11th Cir. 1997) (“As a general rule, courts should address issues relating to personal
jurisdiction before reaching the merits of a plaintiff’s claims.”). For the reasons set forth
below, the Court determines that it does not have personal jurisdiction over Defendants,
and thus, the Court need not address the remainder of Defendants’ arguments for
dismissal.
“A plaintiff seeking the exercise of personal jurisdiction over a nonresident defendant
bears the initial burden of alleging in the complaint sufficient facts to make out a prima facie
case of jurisdiction.” See United Tech. Corp. v. Mazer, 556 F.3d 1260, 1274 (11th Cir.
2009). Where a defendant “challenges jurisdiction by submitting affidavit evidence in
support of its position, ‘the burden traditionally shifts back to the plaintiff to produce
evidence supporting jurisdiction.’” See id. (quoting Meier ex rel. Meier v. Sun Int’l Hotels,
Ltd., 288 F.3d 1264, 1269 (11th Cir. 2002)). A district court has discretion to conduct an
evidentiary hearing on a motion to dismiss for lack of personal jurisdiction. See Delong
Equip. Co. v. Wash. Mills Abrasive Co., 840 F.2d 843, 845 (11th Cir. 1988). However,
where the court does not conduct an evidentiary hearing, “the plaintiff must present only a
prima facie showing of . . . personal jurisdiction.” Id.
A plaintiff makes a prima facie showing by presenting evidence sufficient to
withstand a motion for directed verdict on the issue of personal jurisdiction. Morris v. SSE,
Inc., 843 F.2d 489, 492 (11th Cir. 1988). Thus, “[t]he district court must construe the
allegations in the complaint as true, to the extent they are uncontroverted by defendant's
4 

affidavits[,]” and “where the evidence presented by the parties’ affidavits . . . conflicts, the
court must construe all reasonable inferences in favor of the non-movant plaintiff.” Id.
(citing Delong Equip. Co., 840 F.2d at 845). This construction in favor of the plaintiff is
particularly necessary where the jurisdictional questions are intertwined with the merits of
a case. See Delong Equip. Co., 840 F.2d at 845. Here, upon consideration of the Motions
and Responses, the Court determines that an evidentiary hearing is not warranted. Thus,
the Court considers whether Riley has made a prima facie showing of personal jurisdiction
as to each Defendant.
II.

Background4
This case arises out of a dispute over real property, located in New York, which was

allegedly owned by Riley’s “ancestor-father C. Riley” until his death in 1973. See Amended
Complaint ¶ 17; Plaintiff’s Aff. ¶ 2, Ex. A; see also Response to State Motion at 12, Ex. C;
State Motion, Ex. A. According to Riley, this property rightfully belongs to her, however her
claim to the property appears to be in conflict with that of C. Riley’s Estate. See Amended
Complaint ¶¶ 17, 24-26 (referencing an allegedly forged will). The dispute between Riley
and the Estate has been the subject of litigation in New York state courts. See id. ¶ 26;
Riley Aff. ¶ 2, Exs. C-D. In addition, as a result of unpaid tax liens, the City foreclosed on
this property in 2011. See Amended Complaint ¶¶ 18-19; State Motion, Ex. A; Response
to State Motion, Ex. D. Riley contends that this foreclosure was a “sham,” procured by
“extrinsic fraud on the courts,” and amounts to theft of her property by the City. See

4

As stated above, for purposes of considering these Motions to Dismiss on the basis of personal
jurisdiction, the Court “‘must accept the facts alleged in the [Amended Complaint] as true, to the extent they
are uncontroverted’” by Defendants’ evidence. See Snow v. DirecTV, Inc., 450 F.3d 1314, 1317 (11th Cir.
2006) (quoting Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990)). Where the Amended Complaint and
the evidence conflict, the Court “must construe all reasonable inferences in [P]laintiff’s favor.” Id.

5 

Amended Complaint ¶¶ 18-19. Her dispute with the Estate, disagreement with the City’s
foreclosure, and ongoing claim to the property have led to myriad additional lawsuits and
court proceedings in New York. Riley has thus far been unsuccessful in her legal battles.
Of course, according to the Amended Complaint, the reason she has not prevailed in any
of those cases is that the individuals involved have engaged in fraudulent, conspiratorial,
and even criminal acts, in violation of her civil rights. See id. ¶¶ 1, 5. As such, Riley initiated
the instant lawsuit premised on what she describes as “Defendants’ legal wrongs, extrinsic
frauds on surrogate, state and federal courts and false statements made and entered in
said courts.” Id. ¶ 5.
The defendants in this action include the City of New York, as well as various
attorneys who were in some way connected to the legal proceedings involving the property.
Specifically, Riley names the following individual defendants and describes them as
follows: (1) Michael A. Cardozo, a “Manhattan attorney” who works in New York and was
counsel for the City of New York, (2) Alex S. Avitabile, a “Manhattan attorney,” who works
in New York, (3) Inga M. O’Neale, a “Brooklyn attorney,” and the law clerk to the state court
justice who presided over the foreclosure proceedings in New York, (4) Nancy T. Sunshine,
a “Brooklyn attorney,” who works in New York as the clerk of a New York state court, and
(5) Jay S. Markowitz, a “Queens attorney,” who works in New York. See id. ¶¶ 8-14.
Notably, Riley alleges that “all Defendants are citizens of the state of New York.” See id.
¶ 6. Riley accuses these individuals of all manner of wrongdoing related to the New York
legal proceedings and the property, the details of which are largely vague, conclusory and
difficult to follow. However, the Court finds it unnecessary to summarize Riley’s allegations
of misconduct any further.

Rather, in determining whether this Court has personal
6 

jurisdiction over Defendants, the Court has carefully reviewed the Amended Complaint for
any allegations connecting Defendants, or the alleged causes of action, to Florida. The
only allegations related to Florida in the Amended Complaint are: (1) “the cause of action
arose within the Middle District of Florida and the Eastern District of New York Electronically
and through the United States Mail,” id. ¶ 4, and (2) Riley is a citizen of the state of Florida
whose mailing address is in Florida, id. ¶¶ 6, 7.
III.

Discussion
A. Applicable Law5
In considering a motion to dismiss for lack of personal jurisdiction under Rule

12(b)(2), courts conduct a two-part analysis. First, the Court must determine “whether the
applicable statute potentially confers jurisdiction over the defendant . . . .” See Republic of
Panama v. BCCI Holdings (Luxembourg) S.A., 119 F.3d 935, 942 (11th Cir. 1997). “When
a federal statute provides for nationwide service of process, it becomes the statutory basis
for personal jurisdiction.” Id.; see also Rule 4(k)(1)(A), (C) (“Serving a summons or filing a
waiver of service establishes personal jurisdiction over a defendant: (A) who is subject to
the jurisdiction of a court of general jurisdiction in the state where the district court is
located; . . . or (C) when authorized by a federal statute.”). In the absence of such a statute,

5

The Supreme Court distinguishes between two types of personal jurisdiction: “specific or case-linked
jurisdiction and general or all-purpose jurisdiction.” See See BNSF Ry. Co. v. Tyyrell, No. 16-405, 581 U.S.
____, slip op. at 10 (May 30, 2017). “Specific personal jurisdiction is founded on a party’s contacts to the
forum state that are related to the cause of action.” See Delong Equip. Co., 840 F.2d at 853. Whereas,
“[g]eneral personal jurisdiction arises from a party’s contacts to the forum state that are unrelated to the
litigation; the test for general jurisdiction is whether the party [has] had ‘continuous and systematic’ general
business contacts with the forum state.” Id. (quoting Perkins v. Benquet Consol. Mining Co., 342 U.S. 437,
438 (1952)). Because Riley fails to address personal jurisdiction in either the Amended Complaint or her
Responses, it is unclear whether she intends to rely on general or specific personal jurisdiction. Nonetheless,
as the Amended Complaint contains no allegations indicating that Defendants have had any contact with the
State of Florida outside of their connection to Riley, only the propriety of specific personal jurisdiction is at
issue here.

7 

the Court turns to the law of the state where it is located. See Delong Equip. Co., 840 F.2d
at 847; Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623, 626-27 (11th Cir. 1996) (“When
jurisdiction is based on a federal question arising under a statute that is silent regarding
service of process, Rule 4(e) . . . directs us to look to the state long-arm statute in order to
determine the existence of personal jurisdiction.”); see also Walden v. Fiore, 134 S. Ct.
1115, 1121 (2014).

Second, the Court must consider whether exercising personal

jurisdiction over Defendants “would violate the Due Process Clause of the Fourteenth
Amendment to the United States Constitution, which requires that the defendant have
minimum contacts with the forum state and that the exercise of jurisdiction over the
defendant does not offend ‘traditional notions of fair play and substantial justice.’” Mut.
Serv. Ins. Co. v. Frit Indus., Inc., 358 F.3d 1312, 1319 (11th Cir. 2004) (quoting Sculptchair,
Inc., 94 F.3d at 626). “Only if both prongs of the analysis are satisfied may a federal or
state court exercise personal jurisdiction over a nonresident defendant.” Robinson v.
Giarmarco & Bill, P.C., 74 F.3d 253, 256 (11th Cir. 1996) (internal quotations omitted).
Riley brings this lawsuit pursuant to 42 U.S.C. §§ 1983, 1985, and 1988. See
Amended Complaint at 1. Because these statutes do not provide for nationwide service of
process, the Court looks to Florida’s long-arm statute, section 48.193 of the Florida
Statutes, as a basis for exercising personal jurisdiction. See Stroman Realty, Inc. v.
Wercinski, 513 F.3d 476, 482 (5th Cir. 2008) (“Because 42 U.S.C. § 1983 lacks a provision
for service of process, federal courts adopt state jurisdictional statutes to reach out-of-state
defendants.”) (internal footnote omitted); see also Courboin v. Scott, 596 F. App’x 729, 732
(11th Cir. 2014) (explaining that because the federal statute at issue “does not have a

8 

nationwide service-of-process provision,” the court must “look to the state long-arm statute
as a basis for exercising jurisdiction”). The Florida long-arm statute provides that:
[a] person, whether or not a citizen or resident of this state, who personally
or through an agent does any of the acts enumerated in this subsection
thereby submits himself or herself . . . to the jurisdiction of the courts of this
state for any cause of action arising from [the enumerated acts.]
See Fla. Stat. § 48.193(1)(a). Because Riley fails to address personal jurisdiction in any
of her filings, she has not identified which of the enumerated acts she contends is
applicable here. Nevertheless, upon careful review of the record before the Court, for the
reasons set forth below, the Court finds that personal jurisdiction is lacking because Riley
cannot satisfy the due process prong of the analysis, and as such, the Court need not
address the Florida long-arm statute. See Smith v. Poly Expert, Inc., 186 F. Supp. 3d
1297, 1300 (N.D. Fla. May 16, 2016); see also Robinson, 74 F.3d at 256 (instructing that
a court may exercise personal jurisdiction over a defendant only if both prongs of the
analysis are satisfied).
As stated above, for a court to exercise personal jurisdiction over a defendant, the
Due Process Clause of the Fourteenth Amendment to the United States Constitution
“requires that the defendant have minimum contacts with the forum state and that the
exercise of jurisdiction over the defendant does not offend ‘traditional notions of fair play
and substantial justice.’” Mut. Serv. Ins. Co., 358 F.3d at 1319 (quoting Sculptchair, Inc.,
94 F.3d at 626). A determination of whether exercising personal jurisdiction comports with
the requirements of due process requires a two-part inquiry. See Sculptchair, Inc., 94 F.3d
at 630-31 (11th Cir. 1996). First the Court looks to see whether Defendants have sufficient
“minimum contacts” with the state of Florida. See id. at 630. In Licciardello v. Lovelady,
544 F.3d 1280 (11th Cir. 2008), the Eleventh Circuit explained that:
9 

[t]he Constitution prohibits the exercise of personal jurisdiction over a
nonresident defendant unless his contact with the state is such that he has
“fair warning” that he may be subject to suit there. This “fair warning”
requirement is satisfied if the defendant has “purposefully directed” his
activities at residents of the forum, and the litigation results from alleged
injuries that “arise out of or relate to” those activities. In this way, the
defendant could have reasonably anticipated being sued in the forum’s
courts in connection with his activities there.
Licciardello, 544 F.3d at 1284 (internal citations omitted). Second, the Court determines
whether the exercise of jurisdiction over the defendant “would offend ‘traditional notions of
fair play and substantial justice.’” Sculptchair, Inc., 94 F.3d at 630-31 (quoting Robinson,
74 F.3d at 258). Relevant factors to this inquiry “include ‘the burden on the defendant, the
interests of the forum . . . , and the plaintiff’s interest in obtaining relief.’” See id. at 631
(quoting Asahi Metal Indus. Co. v. Super. Ct. of Cal., 480 U.S. 102, 113 (1987)).
Turning first to the “minimum contacts” prong, “[j]urisdiction may be constitutionally
asserted over the nonresident defendant whenever he has by his own purposeful conduct
created a ‘substantial connection’ with the forum state.” Licciardello, 544 F.3d at 1285.
Indeed, even a single act can support jurisdiction, “so long as it creates a substantial
connection with the forum.” Id. (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462,
475 (1985)). Significantly, “[i]ntentional torts are such acts, and may support the exercise
of personal jurisdiction over the nonresident defendant who has no other contacts with the
forum.” Id. (citing Calder v. Jones, 465 U.S. 783, 790 (1984)). In such intentional tort
cases, the Eleventh Circuit evaluates the defendant’s connection with the forum using the
“effects test” set forth by the Supreme Court in Calder. See Licciardello, 544 F.3d at 1288
(finding that allegations of “the commission of an intentional tort, expressly aimed at a
specific individual in the forum whose effects were suffered in the forum” satisfied the
Calder “effects test”); Calder, 465 U.S. at 788-89; see also Oldfield v. Pueblo De Bahia
10 

Lora, S.A., 558 F.3d 1210, 1220 n.28 (11th Cir. 2009); Brennan v. Roman Catholic Diocese
of Syracuse N.Y., Inc., 322 F. App’x 852, 856 (11th Cir. 2009).6 Specifically, to satisfy the
“minimum contacts” prong, the Calder “effects test” requires a plaintiff to demonstrate that
the defendant committed a tort that was: “(1) intentional; (2) aimed at the forum state; and
(3) caused harm that the defendant should have anticipated would be suffered in the forum
state.” See Licciardello, 544 F.3d at 1286.
Significantly, in Walden, the Supreme Court emphasized that the “effects” of a
defendant’s intentional conduct must connect the defendant to the forum, not just to a
plaintiff who lives there. See Walden, 134 S. Ct. at 1124. As such, “mere injury to a forum
resident is not a sufficient connection to the forum.” Id. at 1125. The Walden Court
explained that “[t]he proper question is not where the plaintiff experienced a particular injury
or effect but whether the defendant’s conduct connects him to the forum in a meaningful
way.” Id. Indeed, “it is the defendant’s conduct that must form the necessary connection
with the forum State that is the basis for its jurisdiction over him.” Id. at 1122. As such,
while “a defendant’s contacts with the forum State may be intertwined with his transactions
or interactions with the plaintiff or other parties,” “a defendant’s relationship with a plaintiff
or third party, standing alone, is an insufficient basis for jurisdiction.” Id. at 1123.

6

On the other hand, in cases of negligence, the Court applies a different test:
Minimum contacts are constitutionally sufficient for specific personal jurisdiction when (1)
there “exist[s] some act by which the defendant purposefully avails itself of the privilege of
conducting activities within the forum . . ., thus invoking the benefits and protections of its
laws[,]” and “the defendant’s contacts with the forum . . . relate to the plaintiff’s cause of
action or have given rise to it.”

Ellis v. Jackson Nat’l Life Ins. Co., No. 2:11-cv-1064-WKW, 2012 WL 3777150, at *6 n. 6 (M.D. Ala. Aug. 30,
2012) (alterations in original) (quoting Oldfield, 558 F.3d at 1220).

11 

B. Analysis
Here, Riley asserts that Defendants are all New York citizens and New York
attorneys, with work addresses in New York. The State of Florida is connected to this case
only insofar as Riley lives here and received mail here. See Amended Complaint ¶¶ 4, 7.
Notably, Riley does not allege that Defendants communicated or corresponded with her in
Florida, nor does she attempt to allege that Defendants were even aware that she was
located in this state. At most, it appears some Defendants may have known of Riley’s
Florida address and perhaps exchanged legal correspondence with her based on her
address of record in the New York lawsuits. See State Motion, Ex. A at 8 (certifying service
to Riley in Florida), Ex. B at 3 (same). Nonetheless, Defendants’ purportedly wrongful
actions took place in New York, as part of lawsuits filed in New York, in connection with
real property located in New York. As such, Defendants’ alleged misconduct was not
aimed or directed toward Florida, nor even directed at Riley in Florida. Rather, Defendants’
conduct was directed at Riley only to the extent she was exerting her presence in New
York, by seeking possession of real property in New York, through the court system in New
York, although she may have been living in Florida.
Based on the foregoing, the Court finds that the only link between Defendants and
Florida is that Riley experienced the effects of their alleged intentional wrongdoing while
she was living in Florida. However, mere injury to Riley in Florida, without more, is not a
sufficient connection to satisfy the minimum contacts requirements of the Due Process
Clause. See Walden, 134 S. Ct. at 1125. Indeed, Defendants could not have reasonably
anticipated that their actions in connection with New York lawsuits over New York property
would subject them to being haled into court in Florida. See id. at 1123 (“Due process
12 

requires that a defendant be haled into court in a forum State based on his own affiliation
with the State, not based on the ‘random, fortuitous, or attenuated’ contacts he makes by
interacting with other persons affiliated with the State.”); see also Courboin, 596 F. App’x
at 735 (“In essence, jurisdiction is proper only ‘where the defendant’s contacts with the
forum proximately result from actions by the defendant himself that create a substantial
connection with the forum state,’ such that the defendant ‘should reasonably anticipate
being haled into court there.’” (quoting Madara v. Hall, 916 F. 2d 1510, 1516-17 (11th Cir.
1990))). Because Riley fails to establish a constitutionally sufficient relationship between
Defendants, Florida, and this litigation, see Walden, 134 S. Ct. at 1121, the Court
concludes that it lacks personal jurisdiction over Defendants and the Motions are due to be
granted on this basis.7
IV.

Defendant Jay S. Markowitz
Defendant Markowitz also maintains that this Court lacks personal jurisdiction over

him. However, rather than filing a motion to dismiss, Markowitz raised personal jurisdiction
as an affirmative defense in his Answer. See Answer (Doc. 39) at 2. Upon consideration
of the Amended Complaint, the Court observes that it contains no additional allegations of
personal jurisdiction specific to Markowitz, and as such, the Court’s analysis regarding its

7

Although Riley’s arguments are difficult to decipher, she appears to contend that the Motions should
be denied because the New York judgments are void and her claims are meritorious, such that she is entitled
to a jury trial. However, absent personal jurisdiction, her arguments as to the merits of this case are irrelevant.
Regardless of whether Riley’s claims have any validity, personal jurisdiction represents “a restriction on
judicial power,” such that without it, this Court is “powerless to proceed to an adjudication.” Ruhrgas, 526
U.S. at 584 (internal quotations omitted). Indeed, “[a] defendant that is not subject to the jurisdiction of the
court cannot be bound by its rulings.” See Republic of Panama, 119 F.3d at 940. Thus, somewhat ironically,
Riley urges this Court to hear the merits of her case, a case in which she seeks to challenge allegedly void
judgments procured in violation of the Constitution, but if the Court were to enter judgment in her favor, such
judgment, itself, would be void. See Sloss Indus. Corp. v. Eurisol, 488 F.3d 922, 924 (11th Cir. 2007) (“[A]n
in personam judgment entered without personal jurisdiction over a defendant is void as to that defendant.”
(internal quotations omitted)).

13 

lack of personal jurisdiction over the other Defendants appears to be equally applicable to
Markowitz. Notably, “[a] district court may on its own motion dismiss an action as to
defendants who have not moved to dismiss where such defendants are in a position similar
to that of moving defendants or where claims against such defendants are integrally
related.” See Courboin, 596 F. App’x at 735 (affirming dismissal for lack of personal
jurisdiction of non-moving defendants where the non-moving defendants were similarly
situated to the moving defendants). However, “[a] ‘district court can only dismiss an action
on its own motion as long as the procedure employed is fair.’” See Tazoe v. Airbus S.A.S.,
631 F.3d 1321, 1336 (11th Cir. 2011) (quoting Carroll v. Fort James Corp., 470 F.3d 1171,
1177 (5th Cir. 2006)). A fair procedure generally requires providing the plaintiff with “‘notice
of its intent to dismiss and an opportunity to respond.’” Id. (quoting Am. United Life Ins.
Co. v. Martinez, 480 F.3d 1043, 1069 (11th Cir. 2007)). Accordingly, the Court will provide
Riley with the opportunity to show cause why, for the reasons set forth above, the Court
should not dismiss her claims against Markowitz for lack of personal jurisdiction. In light of
the foregoing, it is
ORDERED:
1. The Memorandum of Law in Support of the New York State Defendants’ Motion to
Dismiss Plaintiff’s Amended Complaint (Doc. 25), Defendant’s Alex S. Avitabile’s
Motion to Dismiss Plaintiff’s Amended Complaint, with Prejudice, and Memorandum
of Law in Support Thereof (Doc. 30), and the Motion to Dismiss or to Transfer Venue
on Behalf of Defendants New York City and Michael A. Cardozo (Doc. 32) are
GRANTED to the extent set forth below.

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2. Plaintiff Barbara J. Riley’s claims against Defendants Alex S. Avitabile, Inga M.
O’Neale, Nancy T. Sunshine, the City of New York, and Michael A. Cardozo are
DISMISSED WITHOUT PREJUDICE for lack of personal jurisdiction.
3. Plaintiff Barbara J. Riley shall have up to and including July 14, 2017, to show cause
why the Court should not dismiss her claims against Defendant Jay S. Markowitz
without prejudice for lack of personal jurisdiction. Upon receipt of Riley’s show
cause response, the Court will set a deadline for Markowitz to file a reply, if
necessary.
DONE AND ORDERED in Jacksonville, Florida, this 28th day of June, 2017.

lc11
Copies to:
Counsel of Record
Pro Se Parties

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