Cohen et al v. Attorney General of the Commonwealth of Massachusetts

Filing 7

Judge Nathaniel M. Gorton: MEMORANDUM AND ORDER entered: Defendant's Motion to Dismiss (Docket No. 4) is ALLOWED; This Court finds this action to be frivolous, malicious, abusive, and/or vexatious, and this action is DISMISSED sua sponte on this ground as well; and Judge Zobel's Order of Enjoinment of Plaintiffs is hereby MODIFIED as follows: A. Plaintiffs Cohen and Lustgarten are PROHIBITED from filing any further pleadings in any previously-filed or removed civil case, or from filing any new civil actions which seek, directly or indirectly, to raise issues previously decided in the state courts or in the prior federal litigation, and which relate in any fashion to claims inuring to the Estate of Susan R. Lustgarten or her benefi ciaries, unless Plaintiffs obtain leave of Court prior to the filing, upon a Motion to Institute a Lawsuit and upon good cause shown; Plaintiffs Cohen and Lustgarten must also submit a Certification of Good Faith signed by each Plaintiff under oath a t the time of filing any Motion to Institute a Lawsuit. Plaintiffs also must pay the Miscellaneous Business Docket filing fee or seek a waiver thereof, in connection with any Motion to Institute a Lawsuit; and Any claims raised on behalf of the Estate of Susan R. Lustgarten may only be raised through duly-licensed counsel. (PSSA, 1)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JILLIAN M. COHEN, ET AL.,
Plaintiff,
v.
ATTORNEY GENERAL OF THE
COMMONWEALTH OF MASSACHUSETTS,
Defendant.

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C.A. No. 11-11500-NMG

MEMORANDUM AND ORDER
GORTON, D.J.
BACKGROUND
On August 24, 2011, Plaintiff Jillian M. Cohen (“Cohen”), purporting to be acting in her
capacity as the “Full Statutory Administratrix” of the deceased, Susan R. Lustgarten,1 and CoPlaintiff, Stewart J. Lustgarten (“Lustgarten”),2 filed a document entitled “Plaintiffs’ Fed. R. Civ.
P. 5.1 Notice of a Constitutional Question of State Statue [sic] M.G.L. c. 211, 9, aka Mass. R.
App. P. 23 and Mass. R. App. P. 28.” Complaint (Docket No. 1). Plaintiffs also paid the
$350.00 filing fee.
The pleading is unorganized and virtually incoherent. At the outset, Plaintiffs assert that
their federal question is:
Can the Appeals Court in the Commonwealth of Massachusetts ignore making a
sua sponte determination of lack of personal standing of the Plaintiff party in an
appeal from a judgment of the Middlesex Superior Court from which the record
came and applying rescription pursuant to M.G.L. c. 211A, 9, aka Mass. R.
App.P. 28, Mass. R. Civ. P. 23 and Mass. R. Civ. P. 60 which do not preempt
making a sua sponte determination of personal standing?

1

Cohen is the daughter of the deceased.

2

Lustgarten is the husband of the deceased.

Id. at 1-2.3
I.

The State Court Actions
The Plaintiffs’ relevant litigation background is extensive, and, as it is not clearly set

forth in the Complaint, this Court summarizes the background that was set forth succinctly by
the Massachusetts Appeals Court in its June 6, 2011 decision affirming a March 4, 2010
judgment against Plaintiffs. See Cohen v. Brigham & Women’s Hosp., 2011 WL 2175966
(Mass. App. Ct. June 6, 2011) (unpublished decision). The relevant background is as follows.
Cohen, acting as “voluntary” administratrix of the estate of Susan R. Lustgarten, twice
brought civil actions in the Massachusetts Superior Court for negligence, products liability, and
wrongful death against the Defendant Brigham & Women’s Hospital. Cohen alleged that the
physicians caused Susan R. Lustgarten’s death by using a toxic bone cement during a 2005 knee
replacement operation. Id. at *1.
A state court judge dismissed the first civil action under Mass. R. Civ. P. 12(b)(6).
Cohen filed a Notice of Appeal, which was subsequently dismissed for failure to prosecute. Id.

3

Mass. Gen. Laws ch. 211A, § 9 provides for decisions, opinions, and rescripts of the
Appeals Court. It provides that:
In the determination of causes, all decisions of the appeals court shall be given in
writing, except as otherwise provided herein, and the grounds for each decision
shall be stated and filed in the cause in which rendered. The court may, in
appropriate cases, enter a proper order, direction, judgment or decree for the
further disposition of a case without stating the reasons therefor, or may cause a
rescript containing a brief statement of the grounds and reasons for the decision,
to be filed therein. Opinions and rescripts of the appeals court shall be published
by the reporter of decisions.
Id.
2

Thereafter, Cohen filed a second Complaint, identifying herself this time as a “full
administratrix” but asserting the same allegations. Id. A different state court judge dismissed
the action on the grounds of res judicata, and entered judgment on March 4, 2010. Id.
Cohen, along with Co-Plaintiffs Lustgarten, Shelby L. Tutty, and Jennifer S. Kahn,
appealed the decision. On appeal, the Massachusetts Appeals Court noted the deficient record
appendix, but addressed the merits briefly, finding that Cohen had failed to perfect her appeal in
the first action, and thus the case was not properly before the Court. With respect to the second
action, the Massachusetts Appeals Court agreed with the judge that the dismissal of the first
action constituted an adjudication on the merits with preclusive effect. Cohen argued that, in the
first action she was proceeding as the “voluntary administratrix,” and therefore she lacked
standing to bring the first action. Consequently, she contends the first judgment was “void” and
could not provide a basis for precluding the second action. The Massachusetts Appeals Court,
however, rejected this argument, and found that the judgment had become final, and the parties
were bound to it unless relieved from it pursuant to Mass. R. Civ. P. 60(b). Id. Along those
lines, it also noted that parties could not raise the issue of standing in a Rule 60(b) motion. Id. at
n.6.
II.

The Instant Action
In this action, Cohen and Lustgarten allege that on July 5, 2011, the Massachusetts

Appeals Court rescripted the judgment affirming the decision of the Superior Court pursuant to
Mass. R. App. P. 28, after denying the petition for rehearing pursuant to Mass. R. App. P. 27.
See Notice of Rescript (Docket No. 1 at 22). Further, in their incorporated Memorandum of
Law, Plaintiffs again argue that Cohen lacked standing to pursue the first state action, and that

3

the Superior Court should have made a determination, sua sponte, as to her personal standing.
Plaintiffs also reassert the argument that the case should have been dismissed for lack of
standing without any preclusive effect. They seek review by this Court to determine the
constitutionality of the dismissal of the first action, and then review of the effects of the
rescription of judgment regarding res judicata and collateral estoppel.
On September 15, 2011, the Massachusetts Attorney General’s Office (“AGO “) filed a
Motion to Dismiss and Assign Case to Hon. Rya W. Zobel (Docket No. 4), along with a
Memorandum in Support (Docket No. 5). The AGO contends that the instant action is related to
Judge Zobel’s three prior civil actions (discussed infra). The AGO also contends that this
lawsuit violates Judge Zobel’s Order enjoining the Plaintiffs, and, in any event, the action is
barred by Eleventh Amendment sovereign immunity. Next, the AGO contends that, to the extent
this action is construed as one raising a federal constitutional challenge to a state statute, the
Massachusetts Attorney General is not a proper Defendant based solely on her role as chief
litigation counsel for the Commonwealth of Massachusetts, citing Shell Oil Co. v. Noel, 608
F.2d 208, 211 (1st Cir.1979) (mere fact that an attorney general has a duty to prosecute actions in
which the state has an interest is not sufficient to make him or her a proper defendant in every
action challenging the constitutionality of a state statute); Aguiar v. Russo, 2009 WL 1137916, at
*3 n.7 (D. Mass. 2009); and CSWS, LLC v.Madigan, 2009 WL 1789368, at *2 (N.D. Ill. 2009).
Finally, the Defendant contends that this action essentially seeks review of an
unfavorable Massachusetts Appeals Court decision, and as such, is foreclosed by the RookerFeldman doctrine.
On September 23, 2011, Plaintiffs filed an Opposition (Docket No. 6) to the Defendant’s

4

motion. They argue that this action is not related to the prior actions before Judge Zobel. They
further contend that this case was brought pursuant to Fed. R. Civ. P. 5.1 and that the
Massachusetts Attorney General is the proper Defendant. Additionally, they argue this case is
not a derivative or removal case.
On September 26, 2011, this Court entered an Electronic Order denying the Motion to
Reassign the case to Judge Zobel.
III.

The Three Federal District Court Actions and Order Enjoining Plaintiffs
As noted above, prior to filing the instant action, Cohen and Lustgarten have prosecuted

three related federal court actions asserting the wrongful death of the deceased, Susan R.
Lustgarten. The first action was assigned to Judge Zobel as Jillian M. Cohen, as Administratrix
of the Estate of Susan R. Lustgarten, Stewart J. Lustgarten and Jennifer S. Kahn v. Stryker
Corporation and Stryker/Howmedica Osteonics, Civil Action No. 08-11575- RWZ. The case
was initially filed in the Superior Court in the Commonwealth of Massachusetts, but was
removed to this Court by the Defendant.
On August 5, 2009, Judge Zobel granted the Defendants’ Motion to Dismiss on the
grounds that none of the Plaintiffs had standing to bring the action because none of them were
duly appointed as the estate administrator/trix. Additionally, Judge Zobel noted that even if
Cohen were officially appointed as the estate administratrix, she could not bring this action
without representation of duly-licensed counsel. See Order (Docket No. 56). Thereafter, Judge
Zobel denied the Plaintiff’s Motion for Reconsideration by Electronic Order on August 28, 2009.
On September 4, 2009, Plaintiffs filed a Motion for Remand, which was denied by Judge Zobel
by Electronic Order on September 15, 2009.

5

The second action was assigned to Judge Zobel as Jillian Cohen, as Administratrix of the
Estate of Susan R.Lustgarten v. Stryker Corporation and Howmedica Osteonics Inc., Civil
Action No.09-11698-RWZ. That action was also filed in state court, and later removed on
October 9, 2009 to this Court. Plaintiffs sought the same recovery from the same Defendants,
again asserting the wrongful death of Susan R. Lustgarten. The Complaint asserted other legal
theories of recovery as well. The Defendants moved to dismiss the Complaint based on res
judicata and collateral estoppel. On December 4, 2009, Judge Zobel dismissed the action, noting
the Complaint suffered from the same infirmities as the first action, and that Cohen’s “attempt to
proceed pro se in her representative capacity is as flawed in this proceeding as it was in the
earlier case.” Electronic Order entered December 4, 2009. Plaintiffs appealed, and on July 2,
2010, the United States Court of Appeals for the First Circuit (“First Circuit”) affirmed the
dismissal based on issue preclusion, noting that Cohen had not appealed the original dismissal,
and thus she was precluded from relitigating the issue of pro se representation of the Estate. See
Judgment (Docket No. 24); Mandate (Docket No. 25). Plaintiff’s petition for rehearing en banc
was denied, and the time had lapsed for filing a petition for writ of certiorari with the United
States Supreme Court. On August 13, 2010, Plaintiff filed a motion for reconsideration of the
First Circuit’s denial of the petition for rehearing; that motion was denied on August 16, 2010.
On the heels of the conclusion of the second action, Cohen, and others, filed the third
civil action, in state court. Again, the action was removed by the Defendants. See Cohen v.
Stryker Corp., et al., C.A. 10-12053-RWZ. The Complaint reasserted the same causes of action
against the same Defendants, based on the same alleged wrongful death. Additionally, Cohen
included as a party the AGO, seeking an order compelling the AGO to prosecute the wrongful

6

death claim on her behalf. Defendants asserted that the inclusion of the AGO was fraudulent, as
Massachusetts law allows only the estate administrators and executors to bring wrongful death
actions, and the claim against the AGO was asserted for the sole purpose of defeating diversity
jurisdiction in order to keep the case in state court. Additionally, the Defendants asserted that
the third civil action was barred by res judicata and collateral estoppel.
On February 4, 2011, Judge Zobel issued an Electronic Order granting the Defendants’
Motion to Dismiss, stating:
“Plaintiff's third attempt to litigate the same claims against the same defendants
with the lack of standing by plaintiff is barred by the doctrines of res judication
and collateral estoppel. The motion to dismiss is allowed. Judgment may be
entered dismissing the complaint with prejudice; granting [Docket No. 10]
Motion to Dismiss the complaint against the Attorney General is barred by the
11th Amendment. Judgment may be entered dismissing the complaint.
Electronic Order entered Feb. 4, 2011 (brackets added).
Plaintiffs later filed a Motion to Extend the Time to File an Appeal. Judge Zobel denied
that motion. Thereafter, Plaintiff’s filed a Motion to Vacate the Judgment. Judge Zobel also
denied that motion, and directed Cohen to demonstrate good cause in writing why she has not
violated Fed. R. Civ. P. 11(b) and why sanctions should not be imposed.
On August 19, 2011, Judge Zobel issued an Order (Docket No. 25) stating:
Jillian M. Cohen, as Administratrix of the Estate of Susan R. Lustgarten, Stewart
J. Lustgarten, Jennifer S. Kahn4 three times prosecuted a wrongful death action
against defendants, a medical device manufacturer, Howmedica Osteonics
Corporation, and its corporate parent, Stryker Corporation. Three times this court
dismissed the complaint. The second dismissal was appealed and, on appeal,
affirmed. Repeated requests by plaintiffs to the Court of Appeals for rehearing
and/or reconsideration ultimately resulted in an order by that court directing the

4

A fourth plaintiff, Shelby L Tutty, is named as a plaintiff in the second and third
complaints, but has never appeared by counsel or pro se.
7

clerk “not to accept any further filings in this appeal.” The third dismissal
plaintiffs unsuccessfully sought to appeal after the time therefore had expired.
Undeterred plaintiffs then filed a motion to “void” this court’s judgment pursuant
to Fed. R. Civ. P. 60. Defendants opposed the motion and sought an order to
show cause why plaintiffs should not be sanctioned under Fed. R. Civ. P. 11. The
court denied the motion to vacate its judgment and entered an order to plaintiffs to
show cause why sanctions should not be granted.
The response to that order is an incomprehensible document appended to a
“Motion for Leave for Excess Pages,” both of which are signed not by Jillian M.
Cohen, the only representative party, but by her father, “Stewart J. Lustgarten,
Pro se” who is a party only with respect to his own frivolous claim. Since August
11, 2008, Stewart J. Lustgarten and one or more of his daughters have pursued
their lawsuits relentlessly and in total disregard of the holdings of this court and
the Court of Appeals.
Rule 11, by its terms, applies to parties as well as attorneys, and, given the
litigational history of these cases, sanctions against plaintiffs, Jillian M. Cohen,
Stewart J. Lustgarten, and Jennifer S. Kahn, are appropriate. Accordingly,
plaintiffs are prohibited from filing any further pleadings in this or any of the
preceding actions, C.A. 08-11575 and C.A. 09-11698. Further, the clerk of this
court is hereby directed not to accept any further filings related to this or any of
the preceding actions, nor any new actions arising from the same underlying facts.
Any violations of this order by plaintiffs may give rise to monetary sanctions.
Order (Docket No. 25 at 1-2) (underline added).
Five days after this Order enjoining Plaintiffs, the instant action was filed.5
DISCUSSION
I.

Standard of Review
The AGO has moved for dismissal (presumably pursuant to Fed. R. Civ. P. 12(b)(6)). To

survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), the factual
allegations in a complaint must “possess enough heft” to set forth “a plausible entitlement to

5

It is not clear whether or not Plaintiffs had notice of Judge Zobel’s Order prior to the
filing of the instant action, and therefore this Court will not impute a deliberate violation of the
Order.
8

relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Dismissal for failure to state a
claim is appropriate if the complaint fails to set forth “‘factual allegations, either direct or
inferential, respecting each material element necessary to sustain recovery under some actionable
legal theory.’” Centro Médico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 6 (1st Cir.
2005) (quoting Berner v. Delahanty, 129 F.3d 20, 25 (1st Cir. 1997)). “The factual allegations
must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.
The Supreme Court explained in Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), that “[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice. . . . [And] where the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]’-‘that the
pleader is entitled to relief.’” Iqbal, 129 S.Ct. at 1949-50.
In evaluating a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a court should draw all
reasonable inferences in Plaintiffs’ favor and accept all well-pleaded facts in the complaint as
true. Gargano v. Liberty Int'l Underwriters, Inc., 572 F.3d 45, 48 (1st Cir. 2009). This direction
applies even more forcefully in pro se proceedings, for “pro se pleadings are to be liberally
construed, in favor of the pro se party.” Ayala Serrano v. Lebron Gonzalez, 909 F.2d 8, 15 (1st
Cir. 1990). Still, a court should not credit “bald assertions . . . or problematic suppositions.”
Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir. 2008) (internal quotations omitted). Finally, a
court may consider documents “central to the plaintiffs’ claim” or “sufficiently referred to in the
complaint” without converting the motion to dismiss into one for summary judgment. Watterson
v. Page, 987 F.2d 1, 3 (1st Cir. 1993).
Here, apart from considering the merits of Plaintiffs’ claims in connection with the

9

Motion to Dismiss, this Court also has inherent authority to dismiss a frivolous or malicious
complaint sua sponte. See Mallard v. United States District Court, 490 U.S. 296, 307-08 (1989)
(courts have authority to dismiss a frivolous or malicious lawsuits even in absence of any
specific statutory provision); Fitzgerald v. First East Seventh Street Tenants Corp., 221 F.3d 362,
363-64 (2d Cir. 2000) (“district courts are especially likely to be exposed to frivolous actions,
and thus have an even greater need for inherent authority to dismiss such actions quickly in order
to preserve scarce judicial resources” and district court properly dismissed frivolous case, even
in a fee-paying case.). See also Bustos v. Chamberlain, 2009 WL 2782238, *2 (D.S.C. 2009)
(noting that the court has inherent authority “to ensure a plaintiff has standing, that subject
matter jurisdiction exists, and that a case is not frivolous”) citing, inter alia, Mallard, 490 U.S. at
307-308. Further, a court may also dismiss a complaint on its own motion for failure to state a
claim upon which relief may be granted. See Gaffney v. State Farm Fire and Cas. Co., 294 Fed.
Appx. 975, 977 (5th Cir. 2008) (unpublished decision). Finally, the Court has an independent
obligation to inquire, sua sponte, into its subject matter jurisdiction.6
Even under a liberal construction of the Complaint, however, this action will be
dismissed in its entirety for the reasons discussed below.
II.

Failure to State a Claim Upon Which Relief May Be Granted
Although Plaintiffs couch their Complaint as one challenging the constitutionality of

Massachusetts statutes, they have failed to set forth any grounds for this assertion in accordance

6

See McCulloch v. Velez, 364 F.3d 1, 5 (1st Cir. 2004); Fed. R. Civ. P. 12(h)(3) (“If the
court determines ... it lacks subject matter jurisdiction, the court must dismiss the action.”). See
also In re Recticel Foam Corp., 859 F.2d 1000, 1002 (1st Cir. 1988) (“It is too elementary to
warrant citation of authority that a court has an obligation to inquire sua sponte into its subject
matter jurisdiction, and to proceed no further if such jurisdiction is wanting.”).
10

with Rule 5.1,7 nor have they set forth any other plausible claims upon which relief may be
granted that comports with the Twombly standard. Indeed, they have not set forth any basis
raising a cognizable constitutional question. Rather, the crux of this case is Plaintiffs’ assertion
that the state Superior Court and the Massachusetts Appeals Court erred in its decisions (i.e.,
holding that Plaintiffs first civil action was dismissed properly, and holding that Plaintiffs second
civil action was barred by res judicata with preclusive effect based on the finality of the first
dismissal). Based on their arguments, this Court reasonably construes this action not as a bona
fide challenge to a state statute, but as a claim for federal judicial review of alleged
unconstitutional decisions of the state court.
As such Plaintiffs’ claims are barred, as the AGO contends, because this Court lacks
jurisdiction to review those state court decisions pursuant to the Rooker-Feldman doctrine. The
Rooker-Feldman doctrine is a distillation of two Supreme Court decisions: Rooker v. Fidelity
Trust Co., 263 U.S. 413 (1923) and District of Columbia Court of Appeals v. Feldman, 460 U.S.
462 (1983). The doctrine precludes a federal action if the relief requested in that action would
effectively reverse a state court decision or void its holding or if the plaintiff’s claims are
“inextricably intertwined” with the state court’s decision. See Johnson v. De Grandy, 512 U.S.
997, 1005-1006 (1994); Exxon Mobil Corp. v. Saudi Basic Industries Corp., Inc., 544 U.S. 280
(2005) (doctrine applies to cases by state court losers seeking review and rejection of state court
judgments rendered prior to commencement of federal suit). The doctrine appears squarely on

7

Rule 5.1 requires the filing of a notice of a constitutional question stating the question
and identifying the paper that raises it. Although the Court must certify the question to the
appropriate Attorney General notifying that a statute has been questioned, Plaintiffs’ incoherent
identification of the question prevents this Court from doing so. See Fed. R. Civ. P. 5.1(a)(1)
and (b).
11

point here.8
Accordingly, Plaintiffs’ action shall be dismissed.
III.

The Complaint is Frivolous, Malicious, Abusive, or Vexatious
Even if this Court had jurisdiction to review Plaintiffs’ claims, this Court finds that

dismissal is warranted on other grounds. This Court views this action to be an improper method
employed by the Plaintiffs solely to circumvent the rulings of the state and federal court. Indeed,
as noted above, they present no cognizable constitutional challenge to any state statute.
Plaintiffs’ own identification of the federal question -- can the [Massachusetts] Appeals Court
ignore making a sua sponte determination of lack of personal standing of the Plaintiff ... and
apply rescription under Massachusetts law -- warrants no other conclusion but that they are
really seeking to challenge decisions of the Massachusetts Appeals Court, as well as the res
judicata and collateral estoppel rulings of the state court. As such, this case is frivolous,
malicious, abusive, and/or vexatious as that term is used in legal parlance.9 Based on the
allegations in the Complaint, and the litigation history as noted above, no reasonable person
could suppose this case to have any merit.
IV.

Other Deficiencies in the Complaint
Apart from the legal deficiencies discussed above, this Court notes there are other

8

In view of this holding, this Court need not address the AGO’s assertion of sovereign
immunity, which assertion has not been fully developed in this action. The AGO has not
provided any information as to the proper Defendant who could defend the constitutionality of
the state statute. See, e.g., CSWS, LLC, 2009 WL 1789368, * 3 (discussing sovereign immunity
and the propriety of naming the attorney general in an official capacity suit).
9

Vexatious conduct occurs where a party's actions are frivolous, unreasonable or without
foundation. Local 285, Service Employees Intern. Union v. Nonotuck Resource Assoc., Inc., 64
F.3d 735, 737 (1st Cir. 1995). Subjective bad intent is not necessary to justify a finding of
vexatious conduct, id., and bad-faith behavior in this context is equivalent to bringing suit on a
frivolous claim, meaning a claim that no reasonable person could suppose to have any merit.
Lee v. Clinton, 209 F.3d 1025, 1026 (7th Cir. 2000).
12

problems with this action. These problems have not been raised by the AGO in the Motion to
Dismiss, and do not, in and of themselves, warrant sua sponte dismissal. Nevertheless, these
problems should be mentioned for completeness of the record.
A.

Failure to Sign Complaint

The Complaint purports to contain two Plaintiffs (Cohen and Lustgarten); however, it
appears that only Lustgarten has signed the Complaint.10 Rule 11(a) of the Federal Rules of
Civil Procedure provide that every pleading must be signed by the attorney of record or by a
party personally if the party is unrepresented. Id. Unsigned pleadings must be stricken unless
the omission is promptly corrected after being called to the party’s attention. In light of the
dismissal of this action, however, Cohen need not be afforded an opportunity to cure this defect.
B.

Cohen May Not Appear For the Estate Pro Se or Others Pro Se

As this Court has previously noted, Cohen may not appear in this Court and prosecute
any claims on behalf of the Estate of Susan R. Lustgarten. In this action, the Complaint indicates
that Cohen is asserting claim in her capacity as “full statutory administratrix” of Susan R.
Lustgarten’s Estate. Notwithstanding that Cohen may have authority to act based on her
appointment as Administratrix, that is not sufficient to permit her to represent the interest of the
Estate, where she is not a duly-licensed attorney admitted to practice in this Court. Although 28
U.S.C.§ 1654 permits persons to proceed pro se, this provision does not allow unlicenced lay
people to represent other pro se litigants. See Feliciano v. DuBois, 846 F. Supp. 1033, 1039 (D.
Mass. 1994); Eagle Assocs. v. Bank of Montreal, 926 F.2d 1305, 1308 (2d Cir. 1991).
Additionally, this Court’s Local Rules do not provide such authorization. See District of
Massachusetts Local Rule 83.5.3(c), providing that “[a] person who is not a member of the bar of
this court, and to whom sections (a) and (b) are not applicable, will be allowed to appear and
10

Since Cohen has filed (and signed) an Opposition to the Motion to Dismiss (Docket No.
6), it appears that she intends to prosecute this action as a pro se Plaintiff.
13

practice before the court only in his own behalf.” Id. See also Pridgen v. Anderson, 113 F.3d
391, 393 (2d Cir. 1997) (holding that “an administratrix or executrix of an estate may not
proceed pro se when the estate has beneficiaries or creditors other than the litigant.”). Here, it
appears that there are several beneficiaries and/or creditors, and thus claims inuring to the Estate
of Susan R. Lustgarten may only be prosecuted in this Court by duly-licensed counsel.
The same is true with respect to the other Co-Plaintiffs in this action. In other words,
Jillian Cohen may not represent the claims of Lustgarten pro se, nor may Lustgarten represent
the claims of Cohen, as a pro se litigant. Again, however, no further action is warranted on this
issue in light of the dismissal of this action.
V.

Modification of Order of Enjoinment
This Court views that this institution of this action by the Plaintiffs violates the spirit of

Judge Zobel’s Order of Enjoinment, but, as noted herein, it is not clear whether Plaintiffs had
actual notice of that Order at the time suit was filed. Moreover, the Order directed the Clerk to
reject any new actions arising from the same underlying facts, but did not expressly forbid
Plaintiffs from attempting to file suit, particularly where they have tried to present their claims as
a separate constitutional challenge (a matter that, if it had been a bona fide claim, would likely
not have been subsumed within Judge Zobel’s Order).
In light of this, the Court finds that a modification of Judge Zobel’s Order of Enjoinment
is necessary to make it perfectly clear that the Plaintiffs’ may not again raise issues seeking to
litigate those matters already decided, regardless of their position on the validity of those
decisions. The Order also will make clear that Plaintiffs may not proceed pro se in pursuing
claims on behalf of the Estate of Susan R. Lustgarten.
Accordingly, Judge Zobel’s Order of Enjoinment will be MODIFIED as follows.

14

1.

Plaintiffs Cohen and Lustgarten are PROHIBITED from filing any further pleadings in
any previously-filed or removed civil case, or from filing any new civil actions which
seek, directly or indirectly, to raise issues previously decided in the state courts or in the
prior federal litigation, and which relate in any fashion to claims inuring to the Estate of
Susan R. Lustgarten or her beneficiaries, unless Plaintiffs obtain leave of Court prior to
the filing, upon a Motion to Institute a Lawsuit and upon good cause shown;11

2.

Plaintiffs Cohen and Lustgarten must also submit a Certification of Good Faith signed by
each Plaintiff under oath at the time of filing any Motion to Institute a Lawsuit. Plaintiff’s
also must pay the Miscellaneous Business Docket filing fee or seek a waiver thereof, in
connection with any Motion to Institute a Lawsuit; and

3.

Any claims raised on behalf of the Estate of Susan R. Lustgarten may only be raised
through duly-licensed counsel.
Failure to comply with this Order may result in the imposition of severe sanctions.
CONCLUSION
Based on the foregoing, it is hereby Ordered that:

1.

Defendant’s Motion to Dismiss (Docket No. 4) is ALLOWED;

2.

This Court finds this action to be frivolous, malicious, abusive, and/or vexatious, and this
action is DISMISSED sua sponte on this ground as well; and

3.

Judge Zobel’s Order of Enjoinment of Plaintiffs is hereby MODIFIED as follows:
A.

Plaintiffs Cohen and Lustgarten are PROHIBITED from filing any further
pleadings in any previously-filed or removed civil case, or from filing any new
civil actions which seek, directly or indirectly, to raise issues previously decided
in the state courts or in the prior federal litigation, and which relate in any fashion
to claims inuring to the Estate of Susan R. Lustgarten or her beneficiaries, unless
Plaintiffs obtain leave of Court prior to the filing, upon a Motion to Institute a
Lawsuit and upon good cause shown;12

11

This ruling does not apply to the filing of a Notice of Appeal and payment of the
appellate filing fees or a request for a waiver of those fees. This Order does not apply to Shelby
L. Tutty or Jennifer S. Kahn, as they are not parties to this action.
12

This ruling does not apply to the filing of a Notice of Appeal and payment of the
appellate filing fees or a request for a waiver of those fees. This Order does not apply to Shelby
L. Tutty or Jennifer S. Kahn, as they are not parties to this action.
15

B.

Plaintiffs Cohen and Lustgarten must also submit a Certification of Good Faith
signed by each Plaintiff under oath at the time of filing any Motion to Institute a
Lawsuit. Plaintiff’s also must pay the Miscellaneous Business Docket filing fee or
seek a waiver thereof, in connection with any Motion to Institute a Lawsuit; and

C.

Any claims raised on behalf of the Estate of Susan R. Lustgarten may only be
raised through duly-licensed counsel.

SO ORDERED.
/s/ Nathaniel M. Gorton
NATHANIEL M. GORTON
UNITED STATES DISTRICT JUDGE
DATED: October 18, 2011

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