Malin v. Malin et al

Filing 16

Judge Douglas P. Woodlock: ORDER entered granting 13 Motion for Reconsideration of the denial of plaintiff's request to proceed in forma pauperis; denying 15 Motion to Appoint Counsel; allows plaintiff to proceed in forma pauperis and dismisses this action. (PSSA, 4)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
IRINA MALIN,

)
)
)
)
)
)
)

Plaintiff,
v.
GENNADY MALIN, et al.,
Defendants.

C.A. No. 12-11948-DPW

MEMORANDUM AND ORDER
For the reasons stated below, the Court (1) grants plaintiff’s
motion for reconsideration of the denial of her request to proceed
in

forma

pauperis; (2) allows plaintiff to proceed in

forma

pauperis; (3) denies plaintiff’s renewed motion to appoint counsel;
(4) dismisses this action because her amended complaint fails to
support federal jurisdiction in this matter.
BACKGROUND
On October 18, 2012, plaintiff Irina Malin, a resident of
Newton, Massachusetts, filed her self-prepared diversity complaint
against her former husband, Gennady Malin, and his mother Sheva
Sirota alleging fraud and other state law claims.

With her

complaint, plaintiff filed an Application to Proceed in District
Court

Without

Prepaying

Fees

or

Costs

(“IFP

Application”

or

“application”) and a motion for appointment of counsel. See Docket
Nos. 2, 3.

Four days later, On October 22, 2012, plaintiff filed

an amended complaint to include a civil RICO claim, see Docket No.
6, and in November she filed a second amended complaint (the “SAC”)
adding four new defendants.

See Docket No. 9.

Plaintiff contends

that

the

defendants

are

a

“group

of

people”

that

are

an

“‘enterprise’ acting for [the] purpose to defraud Plaintiff in two
real estate, assets and executed the multiple instanses (sic) of
the same fraud and the same pattern.”

Id. at p. 2.

As best can be gleaned from the SAC, the marriage between
plaintiff and Gennady Malin ended in divorce.

Divorce proceedings

were commenced in 2007 in Middlesex Probate and Family Court and
concluded in July 2009.

See SAC, p. 3.

Plaintiff alleges that the

divorce judgment directed Gennady Malin to pay plaintiff 50% of the
sale proceeds from the sale of the marital home.

Id. at p. 7.

Plaintiff alleges that after the divorce, and after the sale of the
marital home in 2010, she discovered that her former husband was
involved in a series of fraudulent transactions such as (1) in
2006, transferring $155,00 to his mother from an account that was
funded by the sale of plaintiff’s condominium in Ashdod, Israel;
(2) depleting $44,000 from their son’s college fund; and (3) in
2010, selling the marital home at 24 Kerr Path more than $100,000
below the appraised value and transferring the funds to his mother.
Id. at pp. 3 - 6.

Plaintiff seeks from defendants Gennady Malin

and Sheva Sirota money damages in the amount of $275,000.

Id. at

p. 8.
By Order dated October 25, 2012, plaintiff’s original motion
to proceed in forma pauperis was denied without prejudice because
it was incomplete.

See Docket No. 7.

2

Specifically, plaintiff

failed to answer Question 2(b) and Question 3 on the Application
completely. On November 16, 2012, plaintiff filed a renewed motion
to proceed in forma pauperis by submitting a Long Form Application.
See Docket No. 10-3.
Because the renewed motion failed to demonstrate sufficiently
that she is without sufficient funds to pay the filing fee, her
subsequent application was denied.

See Docket No. 11.

The

application failed to provide specific information concerning any
persons who would ordinarily provide her with necessities and also
whether she possessed any credit cards.
The March 18th Order granted plaintiff until April 8, 2013 to
pay the $350 filing fee.

On April 1, 2013, Plaintiff filed a

motion for reconsideration of the denial of her request to proceed
in forma pauperis.

See Docket No. 13.

She filed a supporting

Affidavit and a renewed motion for appointment of counsel.

See

Docket Nos. 14, 15.
DISCUSSION
I.

Motion for Reconsideration of
Denial In Forma Pauperis Status

Plaintiff’s

motion

for

reconsideration

and

supporting

affidavit clarify plaintiff’s financial status. Plaintiff does not
have any family or friends that provide support to her and she
doesn’t have any credit cards. Based upon the information provided
in the motion and supporting affidavit, the Court finds that
plaintiff qualifies for in forma pauperis status and will allow her
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to proceed without prepayment of the filing fee.
II.

Standard of Review

Because the plaintiff is proceeding in forma pauperis, her
second amended complaint is subject to screening under 28 U.S.C. §
1915(e)(2).
complaint

Summonses do not issue until the Court reviews the
and

determines

that

it

requirements of 28 U.S.C. § 1915.

satisfies

the

substantive

Section 1915 authorizes federal

courts to dismiss complaints if the claims therein lack an arguable
basis in law or in fact, fail to state a claim on which relief may
be granted, or seek monetary relief against a defendant who is
immune from such relief.

See 28 U.S.C. § 1915(e)(2); Neitzke v.

Williams, 490 U.S. 319, 325 (1989); Denton v. Hernandez, 504 U.S.
25, 32-33 (1992).
In conducting a review of a complaint filed by a litigant
proceeding in forma pauperis, the court reads plaintiff's complaint
with "an extra degree of solicitude," Rodi v. Ventetuolo, 941 F.2d
22, 23 (1st Cir. 1991), due to her pro se status, see id.; see also
Strahan v. Coxe, 127 F.3d 155, 158 n. 1 (1st Cir. 1997) (noting
obligation to construe pro se pleadings liberally) (citing Haines
v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595–96, 30 L.Ed.2d 652
(1972)).
III. Screening of Plaintiff’s Second Amended Complaint
A.

Failure to Comply With Fed. R. Civ. P. 8(a) and 10;
Failure to State a Claim Upon Which Relief May Be Granted

As filed, plaintiff's second amended complaint is subject to
4

dismissal because it does not comport substantially with the
pleading requirements of Rules 8(a) and 10 of the Federal Rules of
Civil Procedure.

Rule 10 of the Federal Rules of Civil Procedure

provides for the form of pleadings, while Rule 8(a) governs the
substance of

pleadings.

Rule 10(b) provides, in relevant part:

(b) Paragraphs; Separate Statements. A party must state its
claims or defenses in numbered paragraphs, each limited as far
as practicable to a single set of circumstances.
Fed. R. Civ. P. 10(b).
Rule 8(a) governs the substance of a pleading, and requires a
plaintiff to include in the complaint, among other things, "a short
and plain statement of the claim showing that the pleader is
entitled to relief."

Fed. R. Civ. P. 8(a) (2).

To survive a

motion to dismiss, a complaint "must ‘give the defendant fair
notice of what the . . . claim is and the grounds upon which it
rests,' and allege ‘a plausible entitlement to relief.'"

Decotiis

v. Whittemore, 635 F.3d 22, 29 (1st Cir. 2011) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555, 559 (2007)).
As the United States Supreme Court has stated, under Rule 8,
a plaintiff must plead more than a mere allegation that the
defendants have harmed her.

Ashcroft v. Iqbal, 129 S.Ct. 1937,

1949 (2009) (detailed factual allegations are not required under
Rule 8, but a complaint "demands more than an unadorned, the
defendant-unlawfully-harmed-me accusation." quoting Twombly, 550
U.S. at 555).

See Chiang v. Skeirik, 582 F.3d 238, 244 (1st Cir.

5

2009) ("‘Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice' [citing
Maldonado v. Fontanes], 568 F.3d 263, 268 (1st Cir. 2009) (quoting
Iqbal, 129 S. Ct. at 1949).").
In the instant case, the SAC consists of nine typewritten
pages.

Although plaintiff uses numbered paragraphs, most of the

paragraphs consist of allegations in a lengthy, verbose form that
prevents the Court from identifying with clarity each claim.

The

factual allegations span five typewritten pages, yet are found in
two numbered paragraphs.

See SAC, ¶¶ 4, 5.

Except for Gennady Malin and Sheva Sirota, there are no factual
allegations directed at defendants Kovalcik, German, Moxon or Morse.
These individuals are simply listed as parties.

The SAC fails to

set forth specific factual allegations and/or specific claims
concerning violations of the civil RICO statute, 18 U.S.C. § 1861,
et seq., as well as Mass. Gen. Laws ch. 109A (the Massachusetts
Uniform Fraudulent Transfer Act).1
B.

Failure to State a Civil RICO Claim

Plaintiff appears to allege that the defendants violated the
civil RICO statute, 18 U.S.C. § 1861.

1

“A civil RICO claim, 18

The SAC references the UAFC. See SAC, p. 8. The Court
believes plaintiff intends to reference the Massachusetts Uniform
Fraudulent Conveyance Act (UFCA), which is the UFTA’s
predecessor. See Cheswell, Inc. v. Premier Homes and Land Corp.
319 F. Supp. 2d 135, 138-139 (D. Mass. 2004).
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U.S.C. § 1962(c), requires proof of several elements including the
existence of a racketeering ‘enterprise’ and its conduct through a
‘pattern’ of racketeering activity, which requires at least two
[related] acts of racketeering . . . .”

Rectrix Aerodrome Ctrs.,

Inc. v. Barnstable Mun. Airport Comm’n, 610 F.3d 8, 11 (1st Cir.
2010), quoting 18 U.S.C. §§ 1961(4)-(5).

Crimes constituting

predicate acts are set out in the statute. See 18 U.S.C. §§ 1961(1),
1962(c). An enterprise may be a legal entity or a group of persons
associated in fact.

United States v. Turkette, 452 U.S. 576,

580-581 (1981); see also Libertad v. Welch, 53 F.3d 428, 442 (1st
Cir. 1995) (anti-abortion groups found to be an “association in
fact”).

Here, plaintiff alleges that the “defendants” executed

“multiple instanances (sic) of mail fraud and wire fraud.”
at p. 2.

See SAC

Plaintiff’s allegations fail to satisfy the enterprise

element and the predicate act requirement of RICO.

The SAC is

devoid of any specific mention of all but two of the defendants.
Moreover, the SAC does not adequately identify or describe a crime
allegedly committed by defendants that would remotely qualify under
the statute as a predicate act.

In addition to being conclusory

and, at times, confusing, the allegations do not state violations
of any of the laws specified in 18 U.S.C. § 1961(1).

Plaintiff

appears to rely on mail and wire fraud as predicate acts, however,
the allegations fail to satisfy the particularity requirements of
Rule 9(b).

Cordero-Hernandez v. Hernandez-Ballesteros, 449 F.3d

7

240, 244 (1st Cir. 2006).

Thus, the SAC is subject to dismissal

because it fails to sufficiently specify the enterprise element as
well as the predicate acts underlying plaintiff’s civil RICO claim.
C.

Massachusetts Uniform Fraudulent Transfer Act Claim

Because the SAC is subject to dismissal for the reasons stated
above, supra., ¶¶ III(A), III(B), grounds no longer exist for
federal subject matter jurisdiction over plaintiff's remaining
claims.

The claims under the Uniform Fraudulent Transfer Act and

Uniform Fraudulent Conveyance Act arise under the Massachusetts
General Laws and are thus properly classified as state law claims.
This Court derives its authority to decide plaintiff’s federal
claim from 28 U.S.C. § 1331, which provides that district courts
have original jurisdiction over civil actions “arising under the
Constitution, laws, or treaties of the United States.”

Federal

courts are given the additional power to exercise supplemental
jurisdiction over state law claims which “form part of the same case
or controversy under Article III of the United States Constitution.”
28 U.S.C. § 1367(a).

As a general rule the unfavorable disposition

of a plaintiff’s federal claims at the early stages of a suit will
trigger the dismissal without prejudice of any supplemental state
law claims.

Gonzalez-De Blasnini v. Family Dep’t, 377 F.3d 81, 89

(1st Cir. 2004) (citing Rodriguez v. Doral Mortgage Corp., 57 F.3d
1168, 1177 (1st Cir. 1995)).
Section § 1367(c)(3) states that “[t]he district courts may

8

decline to exercise supplemental jurisdiction over a claim under
subsection (a) if ... the district court has dismissed all claims
over which it has original jurisdiction....” Id. § 1367(c)(3).2
IV.

The Renewed Motion for Appointment of Counsel

With her motion for reconsideration, plaintiff filed a renewed
motion for appointment of pro bono counsel.

Under 28 U.S.C. §

1915(e)(1), the court “may request an attorney to represent any
person unable to afford counsel.” 28 U.S.C. § 1915(e)(1).

However,

a civil plaintiff lacks a constitutional right to free counsel.
Desrosiers v. Moran, 949 F.2d 15, 23 (1st Cir. 1991).

In order to

qualify for appointment of counsel, a party must be indigent and
exceptional circumstances must exist such that denial of counsel
will result in fundamental unfairness impinging on the party’s due
process rights.

Id.

Because the second amended complaint is so plainly subject to
dismissal, the Court cannot find that exceptional circumstances
exist warranting the appointment of pro bono counsel.

Accordingly,

the motion for appointment of counsel will be denied.
CONCLUSION
ACCORDINGLY, it is hereby
ORDERED, plaintiff’s motion for reconsideration of the denial

2

Moreover, Plaintiff has not alleged that her citizenship is
diverse from the citizenship of all of the defendants ( i.e.,
citizens of different states) for purposes of 28 U.S.C. § 1332.
Without complete diversity of citizenship, her state law claims
are not actionable in this Court. See 28 U.S.C. 1332.
9

of her application to proceed without prepayment of fees is granted.
Plaintiff may proceed in forma pauperis; and it is further
ORDERED, plaintiff’s renewed motion for appointment of counsel
is DENIED; and it is further
ORDERED, this action be dismissed.
SO ORDERED.
August 25, 2013
DATE

/s/ Douglas P. Woodlock
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE

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