Awad v. First Tower Funding LLC et al

Filing 23

Magistrate Judge Judith G. Dein: ORDER entered. MEMORANDUM OF DECISION AND ORDER on 17 Defendants' Motion to Dismiss. (Dambrosio, Jolyne)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

BASSAM AWAD,
Plaintiff,
v.
FIRST TOWER FUNDING, LLC
and FRED LEVITAN,
Defendants.

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CIVIL ACTION
NO. 17-10994-JGD

MEMORANDUM OF DECISION AND ORDER
ON DEFENDANTS’ MOTION TO DISMISS
June 8, 2018
DEIN, U.S.M.J.
I. INTRODUCTION
The pro se plaintiff, Bassam Awad, claims that he was discriminated against in housing
because of his perceived national origin (he identifies as Egyptian, but believes the defendants
thought he was Lebanese or Palestinian) and religion (Christian Coptic Orthodox). The
residence in question is an apartment he rents with his fiancé. Awad brought suit against First
Tower Funding LLC (the company that manages the building) and Fred Levitan (the company’s
agent).1 The crux of the complaint is that Awad’s fiancé was on the lease for the apartment,
the defendants allegedly refused to add Awad to the lease for discriminatory reasons, and the
defendants wrongfully refused to renew the lease and threatened Awad’s fiancé with eviction

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On or about October 4, 2017, Awad purported to add Carabetta Management Co., Inc. as a defendant.
Docket No. 5. However, he made no allegations against Carabetta, and no summons was issued for that
entity. See Docket No. 9 at ¶ 5.

for having an unauthorized male occupant (Awad) living in the apartment. Awad contends that
this was due to marital status discrimination. In his complaint, Awad lists diversity of citizenship
as the basis for federal court jurisdiction, and does not identify any federal statute, federal
treaty and/or provision of the United States Constitution as being at issue in this case. See
Docket No. 1 at § II. Nevertheless, he alleges a violation of various state and federal housing
and discrimination laws. See Docket No. 1-1.
On March 8, 2018, the defendants filed a Motion to Dismiss the complaint in its entirety,
pursuant to Fed. R. Civ. P. 12(b)(1)(3)(4)(5) & (6) & 12(h)(3). Docket No. 17. The defendants
contend that this court lacks jurisdiction as there is no diversity between the parties, and that
dismissal is warranted due to a prior pending action, insufficient service of process, failure to
state a claim upon which relief can be granted, and collateral estoppel. Id. The plaintiff failed
to file an Opposition to the motion to dismiss, which was due on March 22, 2018. The court,
sua sponte, issued an order extending the time for the plaintiff to respond to April 23, 2018.
Docket No. 20. No response was filed by the plaintiff.
On May 11, 2018 this court ordered First Tower Funding LLC to notify the court by way
of affidavit if any of its members is a resident of Massachusetts so as to defeat diversity
jurisdiction. Docket No. 21. On May 24, 2018, Evelyn Carabetta filed an affidavit, attesting to
the fact that she is a member of the LLC and a resident of Massachusetts. Docket No. 22.
After consideration of all the arguments, the defendants’ motion to dismiss is
ALLOWED.

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II. ANALYSIS
A.

This Court Lacks Diversity Jurisdiction

To the extent that the plaintiff relies on diversity jurisdiction as a basis for this court’s
jurisdiction, this case must be dismissed as there is no diversity between the plaintiff and the
defendants. Pursuant to 28 U.S.C. § 1332(a):
district courts shall have original jurisdiction of all civil actions where the
matter in controversy exceeds the sum or value of $75,000, exclusive of
interest and costs, and is between –
(1) citizens of different States[.]
With respect to an LLC, its citizenship is determined by the citizenship of its members. Lincoln
Benefit Life Co. v. AEI Life, LLC, 800 F.3d 99, 105 (3d Cir. 2015). “[T]he burden of proof is on the
plaintiff to support allegations of jurisdiction with competent proof when the allegations are
challenged by the defendant.” O’Toole v. Arlington Tr. Co., 681 F.2d 94, 98 (1st Cir. 1982).
By his complaint, the plaintiff has alleged that he is a resident of Massachusetts. The
affidavit of Ms. Carabetta establishes that the LLC defendant is also a resident of Massachusetts. Docket No. 22. The defendant Fred Levitan has also filed an affidavit attesting to the fact
that he is a resident of Massachusetts. Docket No. 17 at Ex. N. There is no diversity jurisdiction
in this court.
B.

This Action is Barred by the Doctrine of Collateral Estoppel

As detailed more fully in the defendants’ memorandum (Docket No. 17), Awad had the
opportunity to fully litigate the issues he is attempting to present here. Thus, First Tower
Funding, LLC initiated an eviction action against Awad in the Chelsea District Court, which
reached its conclusion. In his answer to the eviction complaint, Awad counterclaimed with an
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allegation of discrimination based on race, ethnic origin and marital status. Docket No. 17 at
Ex. E. Ultimately Awad and his fiancé were defaulted as they failed to appear for a jury trial. Id.
at Ex. C. As the defendants explain:
It would be patently unfair for the Plaintiff to be able to reassert claims of
discrimination that he already alleged in the Answer to the eviction case
and were also asserted at MCAD. Importantly, Mr. Awad, as a litigant in
the eviction case was actively participating in the adversarial litigation
process. He engaged in a number of pretrial procedures, including
discovery motions, motions for reconsideration, as well as an appeal of the
underlying default.
It would be incredulous to allow Mr. Awad to proceed through virtually all
stages of litigation in the summary process action, including dispositive
motions on his counterclaim of retaliation, completion of discovery,
scheduling of a jury trial, subsequent default on that jury trial date, a status
hearing upon which Awad failed to appear, numerous motions to stay the
issuance of the execution, appeals to the Appeals Court and Supreme
Judicial Court including emergency stays, and the filing of a Temporary
Restraining Order in the Eastern Housing Court to stop the use of the
execution, and to thereafter allow Plaintiff to litigate his assertions in a
subsequent action.
Docket No. 17 at 7-8. This court agrees that this is one of those rare cases where the doctrine
of collateral estoppel bars the relitigation of issues that were concluded by default. As the
court held in Treglia v. MacDonald, 430 Mass. 237, 717 N.E.2d 249 (1999):
[E]ven in the case of a judgment entered by default, there may be some
circumstances in which an issue may be given preclusive effect in
subsequent litigation between the same parties. We can, for example,
envision circumstances in which a litigant may so utilize our court system in
pretrial procedures, but nonetheless be defaulted for some reason, that
the principle and rationale behind collateral estoppel would apply. See,
e.g., Matter of Gober, 100 F.3d 1195 (5th Cir.1996) (holding that default
judgment based on failure to answer does not support issue preclusion but
where default issued as discovery sanction against defendant debtor after
two years of litigation in which defendant had answered and denied all
allegations of complaint, collateral estoppel applied); In re Bush, 62 F.3d
1319, 1324 (11th Cir.1995) (applying collateral estoppel effect to prior
default judgment against debtor based on fraud, where debtor “actively
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participated” in adversary process for almost one year through filing
answer, counterclaim, and discovery requests).
Id. at 242-43, 717 N.E.2d at 254.
For all these reasons, the motion to dismiss is allowed. The court declines to reach the
other grounds raised by the defendants.
III. CONCLUSION
For the reasons detailed herein, the “Defendants’ Motion to Dismiss Pursuant to Fed. R.
Civ. P. 12(b)(1)(3)(4)(5) & (6) & 12(h)(3)” (Docket No. 17) is ALLOWED.

/ s / Judith Gail Dein
Judith Gail Dein
United States Magistrate Judge

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